People v. Avalos CA5

INTRODUCTION

The trial court found defendant Michael Anthony Avalos ineligible for resentencing pursuant to Penal Code1 section 1172.75 because the sentencing enhancements imposed for his having suffered a prior prison term (§ 667.5, former subd. (b)) were imposed and stayed during his initial sentencing proceedings. We conclude section 1172.75 applies to prior prison term enhancements that have been imposed and stayed. We reverse and remand for the trial court to recall defendant’s sentence and resentence him in compliance with section 1172.75.

PROCEDURAL BACKGROUND2

On May 31, 2013, a jury found defendant guilty of attempted voluntary manslaughter (§§ 192, subd. (a), 664; count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). On count 1, the jury found true an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)). As to both counts, the jury found gang and great bodily injury enhancements to be true (§§ 186.22, subd. (b)(1)(C), (4), 12022.7, subd. (a)). In a bifurcated court trial, the trial court found true that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which also constituted a “strike” (§§ 667,…