People v. Tilei CA4/2

DISCUSSION

A. HAVING STRUCK THE PRIOR PRISON TERM ENHANCEMENTS,

THE TRIAL COURT WAS REQUIRED TO CONDUCT A FULL

RESENTENCING UNDER SECTION 1172.

Defendant contends the trial court had a duty to exercise its discretion as to

whether to dismiss the firearm discharge enhancement. The People agree.

On March 16, 2022, defendant filed a petition for resentencing under former

section 1170.95. On February 10, 2023, the trial court held a hearing, denying

defendant’s petition. After the denial, defendant’s counsel inquired about other details of

defendant’s sentence. Counsel asked the court to strike the two prison priors, which it

did, under section 1172.75. Counsel then asked the court to use its discretion and

reconsider the gun enhancements, which it did not, believing it lacked jurisdiction to do

so.

4 However, having stricken defendant’s two prison priors under section 1172.75, the

court was required to apply section 1172.75 subdivision (d)(2), as well, and exercise its

discretion as to whether to dismiss the firearm enhancements. Section 1172.

subdivision (d)(2) requires the court to “apply any other changes in law that reduce

sentences or provide for…