People v. Polk CA4/2

I.

INTRODUCTION

The trial court found it did not have jurisdiction to recall the sentence and 1 resentence defendant and appellant Kenneth Bernard Polk pursuant to Penal Code

section 1172.75 because the sentencing enhancement imposed for his having suffered a

prior prison term (§ 667.5, subd. (b)) had been stricken in 2002 from the original 1998

sentence based on dual use of facts. The court also denied defendant’s section 1172.

petition for resentencing under People v. Rhodius (2023) 97 Cal.App.5th 38, review

granted February 21, 2024, S283169 (Rhodius).

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

stayed or stricken. He also claims the order must be reversed because the hearing was

conducted in his absence in violation of his federal and state constitutional right to be

present. Because the trial court lacked jurisdiction to hear defendant’s personally filed

section 1172.75 petition, we dismiss the appeal. However, as noted by defendant, the

1 All future statutory references are to the Penal Code.

2 The question of whether section 1172.75 applies…