Full Opinion

Filed 10/28/26 P. v. Reymundo CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F090676 Plaintiff and Respondent, (Super. Ct. No. CF96564410) v. DAVID G. REYMUNDO, OPINION Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. James Kelley, Judge. Gayle Gutekunst, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Kimberley A. Donohue, Senior Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent. * Before Levy, Acting P. J., Meehan, J. and Snauffer, J. -ooOoo- Defendant David G. Reymundo was convicted of residential burglary in 1997. In 2023, the Department of Corrections and Rehabilitation (CDCR) identified defendant as a person eligible for relief pursuant to Penal Code section 1172.75. 1 On September 19, 2024, the trial court determined defendant was no longer eligible for resentencing because he had been released from prison to serve a term of parole and it took his matter off calendar. On appeal, defendant contends the court erred when it declined to resentence him because he was paroled after having been identified as a person eligible for relief pursuant to section 1172.75 by CDCR. The People concede the error. We reverse the court’s order and remand with directions to recall defendant’s sentence and hold a full resentencing hearing. PROCEDURAL SUMMARY On April 10, 1997, defendant was convicted of one count of first degree residential burglary (§§ 459, 460). As part of that trial, true findings were returned on allegations that defendant had suffered two prior strike convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12), two prior convictions for serious felonies (§ 667, subd. (a)), and three prior convictions—for nonsexually violent offenses—for which he served terms of incarceration in the state prison (§ 667.5, former subd. (b)). On May 14, 1997, the trial court imposed a term of 13 years plus 25 years to life as follows: an indeterminate sentence of 25 years to life for the residential burglary (§§ 459, 460) with two prior strike convictions, plus five years each for the two prior serious felony convictions (§ 667, subd. (a)), plus three one-year prior prison term enhancements (§ 667.5, former subd. (b)). 1 All further statutory references are to the Penal Code unless otherwise noted. 2. In 2023, CDCR identified defendant as a person entitled to relief pursuant to section 1172.75, subdivision (b), and defendant’s case was sent to the Fresno County Superior Court for resentencing. On July 31, 2023, the trial court appointed counsel to represent defendant for possible recall and resentencing under section 1172.75. Over the next two years, the matter was continued several times at the request of defense counsel. On November 21, 2024, the prosecution filed a sentencing brief which argued, because defendant was released from custody on parole, he was not eligible for a recall and resentencing. At a hearing on September 3, 2025, the trial court took the matter off calendar and “in effect, den[ied] the motion” and found “[d]efendant [was] no longer eligible for resentencing pursuant to [section] 1172.75 due to defendant no longer serving a term.” The court’s October 29, 2025 written order stated defendant was released from CDCR custody around September 19, 2024, and held defendant did not qualify for resentencing under section 1172.75 because “he [was] not currently serving a term in prison.” On October 30, 2025, defendant filed a notice of appeal. DISCUSSION Defendant contends that the order finding him ineligible for resentencing must be reversed and the matter remanded for a full resentencing hearing. 2 The People concede the trial court erred. We agree with the parties; we reverse the court’s order and remand with directions to recall defendant’s sentence and hold a full resentencing hearing. “In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136), which amended section 667.5[, subdivision] (b) to eliminate prior-prison-term enhancements for all prior crimes except for ‘sexually violent offense[s] as defined in subdivision (b) of 2 A factual summary is omitted because the issue before the court is a pure issue of law for which no factual summary is required. 3. [s]ection 6600 of the Welfare and Institutions Code.’ (Stats. 2019, ch. 590, § 1.) In 2021, Senate Bill No. 483 (2021–2022 Reg. Sess.) made this change retroactive. It enacted … section 1171.1 (Stats. 2021, ch. 728, §§ 1, 3), later renumbered without substantive change as … section 1172.75 … (Stats. 2022, ch. 58, § 12), which declares: ‘Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code is legally invalid.’ ” (People v. Rhodius (2025) 17 Cal.5th 1050, 1054 (Rhodius).) “A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. [Citation.] To facilitate the process, the statute directs [CDCR] to ‘identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a).’ [Citation.] Upon receiving that information, the sentencing court must ‘review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a).’ [Citation.] ‘If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant.’ [Citation.] The statute provides separate deadlines for identification, review, and resentencing of ‘individuals … currently serving a sentence based on the enhancement’ and ‘all other individuals.’ ” (Rhodius, supra, 17 Cal.5th at p. 1055.) “Section 1172.75, subdivision (d) sets forth detailed instructions for resentencing once a sentence has been recalled. As relevant here, subdivision (d) specifies: ‘Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer 4. sentence than the one originally imposed.’ [Citation.] The trial court must ‘apply the sentencing rules of the Judicial Council’ as well as ‘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.’ [Citation.] In addition, 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.’ ” (Rhodius, supra, 17 Cal.5th at p. 1055.) “[S]ection 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.” (Rhodius, supra, 17 Cal.5th at p. 1054.) “Section 1172.75 requires that the defendant be incarcerated at the beginning of the process, when correctional officials ‘identify those persons in their custody currently serving a term for a judgment that includes’ a one-year prior prison term enhancement imposed under section 667.5, former subdivision (b) .… [Citation.] It does not require the defendant thereafter remain incarcerated until the time of resentencing to maintain his or her eligibility for relief. Nor is resentencing such a subsequently released defendant an empty exercise, as it can afford practical relief that includes shortening the applicable parole term.” (People v. Washington (2026) 117 Cal.App.5th 1057, 1061.) Thus, a person who has been released on parole prior to the resentencing hearing “remains eligible and should still be resentenced.” (Ibid.) “Under the section 1172.75 resentencing scheme, there is necessarily a lag between the time the CDCR provides the court with information about a defendant potentially eligible for resentencing, and the time when the court can determine whether 5. in fact the defendant is entitled to resentencing and in fact resentence him or her. Recognizing this aspect of the process, the Legislature included in section 1172.75 deadlines for the CDCR and resentencing courts to act.” (People v. Washington, supra, 117 Cal.App.5th at p. 1066.) Here, defendant’s judgment included a prior prison term enhancement that was imposed and executed before January 1, 2020. The prior prison term enhancement was not for a sexually violent offense. Defendant was still incarcerated on July 31, 2023, when CDCR identified him as a person eligible for relief pursuant to section 1172.75. However, he had been released on parole in the two plus years in which his resentencing hearing was pending. The trial court below did not have the benefit of Washington when it issued its ruling. Thus, the matter must be reversed and remanded, the court to recall defendant’s sentence and conduct a full resentencing hearing. We express no opinion on whether defendant would be entitled to any further relief at the resentencing hearing on remand. DISPOSITION Thus, the matter shall be reversed, remanded, and defendant’s sentence recalled. The trial court is to conduct a full resentencing hearing. 6.