Full Opinion

Filed 11/3/26 P. v. Harris CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115.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, E082950 v. (Super.Ct.No. BLF1400195) MICHAEL DESHAWN HARRIS, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with instructions. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. 1 Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Kathryn Kirschbaum and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent. This appeal is before us for the second time. In our first opinion we affirmed the order of the Riverside County Superior Court denying defendant and appellant Michael DeShawn Harris’ request for a resentencing hearing pursuant to section 1172.75 of the Penal Code.1 (People v. Harris (Apr. 18, 2025, E082950) [nonpub. opn.] (Harris I).) The California Supreme Court granted defendant's petition for review and deferred his case pending consideration and disposition of People v. Espino (2026) 20 Cal.5th 57 (Espino), which was also awaiting decision by that court in its case No. S286987.2 After issuing its opinion Espino, the Supreme Court transferred defendant’s matter back to this court with directions to vacate our opinion in Harris I, and to reconsider the cause in light of Espino, supra, 20 Cal.5th 57. In keeping with the Supreme Court’s instructions, we vacated our opinion in Harris I and invited the parties to file supplemental briefs and they did so. Both parties argue, and we agree, that defendant is entitled to a full resentencing hearing under section 1172.75. Accordingly, we will reverse the trial court’s order finding defendant is 1 All further statutory references are to the Penal Code unless otherwise noted. 2 The Supreme Court initially held defendant’s case pending disposition of People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius II) but, after it issued its opinion in that case, the court deferred defendant’s cause again pending disposition of Espino, supra, 20 Cal.5th 57. 2 ineligible for resentencing relief and remand the matter with instructions that defendant be afforded a resentencing hearing pursuant to section 1172.75, subdivision (d). BACKGROUND AND DISCUSSION In 2014, the trial court sentenced defendant to a prison term of 15 years after he was convicted of first degree burglary with a person present who was not an accomplice (§§ 459, 667.5, subd. (c)(21)), infliction of corporal injury on a spouse (§ 273.5, subd. (a)), and first degree robbery (§ 211, count 3). It also imposed but struck a one-year sentence for a prison prior enhancement (§ 667.5, subd. (b)). The Statutory Backdrop In 2019, the Legislature amended subdivision (b) of section 667.5 (amended § 667.5(b)) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The amendment was retroactive as to any case in which the judgment was not final on January 1, 2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) In 2022, section 1172.75 became effective.3 (Stats. 2021, ch. 728, § 3, eff. Jan. 1, 2022.) Subdivision (a) of that provision declares legally invalid any prison prior sentence enhancement defined in amended section 667.5(b) that was imposed prior to January 1, 2020 (often referred to herein as a qualifying prison prior). (§ 1172.75, subd. (a).) To ensure defendants serving sentences that include a qualifying prison prior would receive 3 At the time of its enactment in January 2021, section 1172.75 was numbered section 1171.1, but was renumbered effective June 30, 2022, with no substantive changes to the statute (Stats. 2022, ch. 58, § 12). 3 timely relief, section 1172.75 directed the California Department of Corrections and Rehabilitation (CDCR) to identify persons serving sentences that include a qualifying prison prior and provide those persons’ names, birthdates, and docket numbers to the sentencing court, which would in turn determine whether the person was entitled to section 1172.75 resentencing relief. (§ 1172.75, subds. (b) & (c).) Following the passage of section 1172.75, a dispute arose in the courts of appeal with respect to whether the word “imposed” in subdivision (a) was intended to limit the provision’s resentencing relief to defendants whose qualifying prison prior was imposed and executed, or if resentencing was also available in cases like the present one in which the sentence was imposed but stricken. This court held “imposed” meant “imposed and executed.” (People v. Rhodius (2023) 97 Cal.App.5th 38, 45 (Rhodius I), reversed at Rhodius II, supra, 17 Cal.5th at p. 1068.) Defendant’s Section 1172.75 Proceedings and Appeal Defendant was included in a CDCR list of persons sentenced in Riverside County considered to be eligible for section 1172.75 resentencing relief because of a prison prior.4 At the ensuing hearing in December 2023, the sentencing court denied 4 On our own motion, we (i) take judicial notice of the declarations of Aimee Vierra and David McKinney, filed in case No. E082642, and (ii) augment the record in this case to include the CDCR list attached to those declarations. That list, dated June 16, 2022, sets forth the names of persons eligible for relief under section 1172.75 in active cases for Riverside County. Defendant’s name appears on page 18. 4 defendant’s request for a full resentencing hearing “for the reasons articulated in [the sentencing court’s case number] RIF1605083.”5 Defendant appealed. In Harris I, we adhered to our opinion in Rhodius I, supra, 97 Cal.App.5th 38 and found defendant was not entitled to section 1172.75 resentencing relief because the punishment for his prison prior had been stricken, not imposed and executed. As noted ante, defendant’s petition for review by the California Supreme Court was granted and his cause deferred pending that court’s decision in Espino. The Supreme Court recently issued its Espino opinion, which holds that a sentence is “imposed” for the purposes of section 1172.75 even if the sentencing court struck the punishment for the prison prior enhancement. (Espino, supra, 20 Cal.5th at p. 60.) In keeping with Supreme Court’s order directing us to do so, we have reconsidered defendant’s matter in light of Espino and find that, because his sentence includes a qualifying prison prior that was imposed and stricken, he is entitled to a section 1172.75, subdivision (d) resentencing hearing. DISPOSITION The trial court’s finding that defendant ineligible for resentencing under section 1172.75 is reversed and the matter is remanded with instructions to strike defendant’s 5 The case the court referred to appears to be its decision in People v. Archuleta, which was appealed to this court. (People v. Archuleta (Oct. 19, 2026, E082960) [nonpub. opn.].) There, we reversed the order of the Riverside County Superior Court (Judge John D. Malloy) denying the defendant relief on the grounds he was ineligible for recall and resentencing under section 1172.75 because he was not serving any additional time for his prison priors, which had been imposed and the punishment stricken. (Ibid.) 5 section 667.5, subdivision (b) prison prior enhancement in its entirety and to hold a resentencing hearing in accordance with section 1172.75, subdivision (d). We express no opinion on whether defendant would be entitled to any additional relief at the resentencing hearing. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ _____________________________________________________________________________________________________________________________ _________________________________________ P. J. We concur: McKINSTER _____________________________________________________________________________________________________________________________ _________________________________________ J. MILLER _____________________________________________________________________________________________________________________________ _________________________________________ J. 6