People v. Garcia CA4/2

I.

INTRODUCTION

The trial court found defendant and appellant Andrew Garcia, Jr. ineligible for

resentencing pursuant to Penal Code1 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 prior (§ 667.5, subd. (b)) was

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

section 1172.75 for prior prison term enhancement which was 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 BACKGROUND2

In January 2008, defendant pleaded guilty to five counts of robbery (§ 211), one

count of attempted robbery (§§ 664/211), and one count of second degree burglary

(§ 459). He also admitted that he had suffered one prior prison term (§ 667.5, subd. (b)),

one prior serious felony conviction (§ 667, subd. (a)), and one…