Full Opinion

Filed 11/10/26 P. v. Barksdale CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E086935 v. (Super.Ct.No. SWF1400382) KENNETH DEAN BARKSDALE, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Reversed with directions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Stephanie H. Chow and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent. 1 Kenneth Dean Barksdale appeals after the trial court resentenced him under Penal Code section 1172.75. (Unlabeled statutory references are to this code.) On appeal, Barksdale argues that the court abused its discretion by concluding that it did not have discretion to dismiss his prior strike convictions under subdivision (a) of section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The People concede the point, and we agree. We also agree with the parties that there are errors in Barksdale’s abstract of judgment. We therefore reverse and remand with directions to recall Barksdale’s sentence, resentence him under subdivision (d) of section 1172.75, and prepare a new abstract of judgment. BACKGROUND In January 2016, the People filed an amended information charging Barksdale with three counts of burglary. (§ 459.) As to the third count, the People alleged that another person, not an accomplice, was present during the commission of the burglary. (§ 667.5, subd. (c)(21).) The People also alleged that Barksdale served four prior prison terms (§ 667.5, subd. (b)), had three prior serious felony convictions (§ 667, subd. (a) (section 667(a))), and had 19 prior strike convictions (§§ 667, subds. (c), (e), 1170.12, subd. (c)). A jury found Barksdale guilty on all three counts, and it found true the allegation that a person other than an accomplice was present. (People v. Barksdale (Dec. 20, 2016, E065843) [nonpub. opn.] (Barksdale).) The trial court subsequently found that Barksdale 2 had served four prior prison terms, suffered three prior serious felony convictions, and suffered 19 prior strike convictions. (Barksdale, E065843.) The court sentenced Barksdale to an indeterminate term of 75 years to life, consisting of 25 years to life for each burglary count pursuant to the three strikes law. The court struck one of the prison prior term enhancements and sentenced him to a determinate term of 48 years, consisting of 15 years each for his three prior serious felony convictions and one year each for his remaining prior prison term enhancements. In 2022, the court received notice from the California Department of Corrections and Rehabilitation (CDCR) that Barksdale was serving a term for a judgment that included prior prison term enhancements that are now invalid under section 1172.75.1 In October 2023, the court recalled Barksdale’s sentence and struck his now- invalid prior prison term enhancements. In August 2025, the court held a resentencing hearing. The court recognized Barksdale’s “exceptional” performance in prison and struck his section 667(a) enhancements. The court stated that “with regard to each of the three remaining consecutive 25-to-life sentences, I believe my hands are tied. I have to acknowledge that I have given this a lot of thought and I have struggled over this because there would be a substantial argument to be made that I could be persuaded to strike a prior if I had that discretion.” The court concluded that it did not have discretion to dismiss any of 1 On our own motion, we take judicial notice of the motion to augment the record filed in case No. E082642, including the declaration of Aimee Vierra and the attached CDCR list dated June 16, 2022, listing individuals eligible for relief under section 1172.75. Barksdale is listed on page 11 of that CDCR list. 3 Barksdale’s prior strike convictions, and it sentenced him to 75 years to life in state prison. The court reiterated that if it had discretion to dismiss the prior strike convictions, then it “would have been, obviously, seriously considering exercising” it. DISCUSSION I. Romero and section 1172.75 Barksdale argues that the court erred by concluding that it did not have discretion to dismiss any of his prior strike convictions at his section 1172.75 resentencing hearing. The People concede the point, and we agree. When the court recalls a sentence under section 1172.75, the court conducts a “‘full resentencing.’” (People v. Rogers (2025) 108 Cal.App.5th 340, 361 (Rogers).) At resentencing, “[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) “The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).) We review a trial court’s ruling on a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) “‘[W]hen a trial court’s decision rests 4 on an error of law, that decision is an abuse of discretion.’” (People v. Lopez (2021) 66 Cal.App.5th 561, 574.) Rogers held that “the trial court ha[s] the authority to exercise its discretion under section 1385[, subdivision] (a) and Romero to strike any or all” of a defendant’s prior strike convictions “after recalling his sentence and for the purpose of resentencing him under section 1172.75.” (Rogers, supra, 108 Cal.App.5th at p. 364.) The trial court therefore abused its discretion by denying Barksdale’s Romero motion on the ground that the court lacked discretion to grant it.2 II. Abstract of judgment Barksdale argues, and the People concede, that his most recent abstract of judgment contains errors that should not be repeated in the new abstract of judgment that will be prepared following resentencing on remand. We agree. First, Barksdale’s original abstract of judgment from April 2016 awarded him 810 days of actual custody credit and 121 days of conduct credit. But those numbers apparently were incorrect, because a first amended abstract of judgment filed in August 2016 revised Barksdale’s custody credits, nunc pro tunc, to 817 days of actual custody and 122 days of conduct credit. But the abstract of judgment prepared in September 2025 after resentencing under section 1172.75 reverts to the numbers from the original abstract 2 It appears that the court’s ruling may have been based on case law concerning a potential conflict between resentencing under section 1172.75 and resentencing under section 1170.126. Barksdale’s case did not implicate that potential conflict, however, because section 1170.126 does not apply to him. In addition, the Supreme Court held (a few months after Barksdale’s resentencing) that section 1172.75 and section 1170.126 do not conflict. (See People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850.) 5 of judgment, i.e., 810 days of actual custody and 121 days of conduct credit, while also adding 3,430 days of time in CDCR custody. When Barksdale’s custody credits are again recalculated following resentencing on remand, the court should use the numbers from the August 2016 abstract of judgment, i.e., 817 days of actual custody and 122 days of conduct credit, plus an updated total for time in CDCR custody since his original sentencing in 2016. Second, the September 2025 abstract of judgment lists three section 667(a) enhancements, with a notation “PS” next to each one, which presumably means “punishment struck.” The resentencing minute order likewise states that the court struck the punishment on those three enhancements. But the reporter’s transcript reflects that the court struck the enhancements, not just the punishment. The minute order thus failed to conform to the court’s oral pronouncement of judgment, and those enhancements should not have appeared on the abstract of judgment at all. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Third, at Barksdale’s resentencing, the court imposed but suspended restitution fines of $300 per count under subdivision (b) of section 1202.4, for a total of $900. The resentencing minute order does not mention the fines or the suspension. The court also waived the court security fee (§ 1465.8) and the criminal conviction assessment (Gov. Code, § 70373) because of Barksdale’s inability to pay. The minute order just states generally, “Court finds that defendant does not have the ability to pay fines/fees pursuant to Duenas[].” The September 2025 abstract of judgment includes the $900 in restitution 6 fines but does not say they were suspended. It also includes the $120 court security fee and the $90 criminal conviction assessment even though they were not imposed. An attachment to the abstract of judgment, however, states that the “[c]ourt finds that defendant does not have the ability to pay fines and fees pursuant to Duenas.” Again, both the minute order and the abstract of judgment should conform to the court’s oral pronouncement—for example, the court imposed neither the court security fee nor the criminal conviction assessment, so they should not appear on the abstract of judgment. (See People v. Kopp (2025) 19 Cal.5th 1, 31.) DISPOSITION The judgment is reversed. The matter is remanded with directions to recall Barksdale’s sentence, resentence him pursuant to subdivision (d) of section 1172.75, and prepare a new abstract of judgment consistent with this opinion. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MENETREZ J. We concur: McKINSTER Acting P. J. RAPHAEL J. 7