People v. Varney CA4/2

I.

INTRODUCTION

The trial court found defendant and appellant Austin Carter Varney ineligible for 1 resentencing pursuant to Penal Code section 1172.75 because the sentencing

enhancement imposed for his having suffered one prior prison term (§ 667.5, subd. (b))

was imposed and stayed during his initial sentencing proceedings.

On appeal, defendant contends he is entitled to a full resentencing hearing

pursuant to section 1172.75, even though his prison priors (§ 667.5, subd. (b)) were

imposed and stayed. We agree that defendant is entitled to sentencing relief under section

1172.75 for his prior prison term enhancement which were imposed and stayed. We

therefore reverse the order and remand for the trial court to recall defendant’s sentence,

vacate his prison prior enhancement, and resentence him under section 1172.75,

subdivision (d).

II.

PROCEDURAL BACKGROUND

In December 2004, an information was filed charging defendant with murder

(§ 187, subd. (a); count 1); possession of a shotgun by a felon (§ 246.3; count 2); and

possession of a short barreled shotgun (§12020, subd. (a); count 3). As to count 1, it was

1 All future statutory references are to the Penal…