Opinion
F087351
09-10-2024
THE PEOPLE, Plaintiff and Respondent, v. TONY HENRY, JR., Defendant and Appellant.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and John Merritt, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. BF166756A Elizabet Rodriguez, Judge.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, and John Merritt, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2018, a jury convicted defendant Tony Henry Jr. of three counts of second degree robbery (Pen. Code, § 212.5, subd. (c); counts 1, 2 & 5) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 6). (Undesignated statutory references are to the Penal Code.) The jury also found true allegations defendant inflicted great bodily injury during the commission of the robbery and assault alleged in counts 5 and 6. In a bifurcated proceeding, the court found true enhancement allegations defendant suffered a prior strike conviction that also qualified as a prior serious felony under section 667, subdivision (a), and a prison prior under section 667.5, former subdivision (b). The court also found true another prior prison enhancement pursuant to section 667.5, former subdivision (b).
The court originally sentenced defendant to 10 years for the robbery alleged in count 5 (the upper term of five years doubled for the strike prior), plus three years for the great bodily injury enhancement, five years for the prior serious felony enhancement, and one year for one prior prison term enhancement; two years for the robbery alleged in count 1 (one-third the middle term doubled for the strike prior); and two years for the robbery alleged in count 2 (one-third the middle term double for the strike prior). The court also imposed and stayed an upper term of eight years on count 6, and three years for the related great bodily injury enhancement.
In 2023, defendant petitioned for resentencing under section 1172.75, and the court struck his prison prior enhancement but otherwise resentenced defendant to the same terms, declining to strike the strike or other enhancements or to impose lower terms of imprisonment. Defendant appeals from the resentencing order. Counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) asking us to independently review the record and defendant did not file a letter brief.
Based upon our independent review of the record, we requested and received supplemental briefing from the parties pursuant to Government Code section 68081 regarding whether the imposed Penal Code section 667.5, former subdivision (b) prior prison enhancement stricken during the December 15, 2023, resentencing hearing was imposed for a "sexually violent offense" such that the enhancement is still legally valid (see Pen. Code, § 288, subd. (a); Welf. & Inst. Code, § 6600.1; see also Pen. Code, §§ 667.5, subd. (b), 1172.75, subd. (a)), and, if so, whether the trial court had jurisdiction to resentence defendant under Penal Code section 1172.75.
We now reverse the trial court's order.
FACTUALANDPROCEDURALHISTORY
Charges, Verdict, and Original Sentence
In July 2018, a jury convicted defendant of three counts of second degree robbery (§ 212.5, subd. (c) [count 1: of I.G. on or about Oct. 27, 2016; count 2: of K.W. on or about Dec. 29, 2016; count 5: of B.C. on or about Sept. 23, 2016]) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4) [count 6: of B.C. on or about Sept. 23, 2016]). The jury also found true allegations defendant inflicted great bodily injury on B.C. during the commission of the robbery and assault alleged in counts 5 and 6.
In a bifurcated proceeding, the court found true enhancement allegations that defendant committed a violation of section 288, subdivision (a) on December 21, 1999, that qualified as a prior strike conviction, a prior serious felony under section 667, subdivision (a), and a prison prior under section 667.5, former subdivision (b). The court also found true another prior prison enhancement pursuant to section 667.5, former subdivision (b) based on defendant's September 22, 2009, conviction for a violation of section 290.011, subdivision (a).
In September 2018, the court denied defendant's motion to strike his prior strike conviction and sentenced defendant to an aggregate term of 23 years: 10 years for the count 5 robbery of B.C. (the upper term of five years doubled for the strike prior), plus three years for the great bodily injury enhancement (§ 12022.7), five years for the prior serious felony enhancement (§ 667, subd. (a)), and one year for the prior prison term (§ 667.5, former subd. (b)) associated with the December 21, 1999, violation of section 288, subdivision (a); two years for the count 1 robbery of I.G. (one-third the middle term doubled for the strike prior); and two years for the count 2 robbery of K.W. (one-third the middle term doubled for the strike prior). The court also imposed and stayed pursuant to section 654 an upper term of eight years on count 6, plus three years for the great bodily injury enhancement. The court did not impose the prior prison enhancement related to defendant's September 22, 2009, conviction for a violation of section 290.011, subdivision (a).
Resentencing Proceedings
In August 2023, defendant filed a petition for resentencing under section 1172.75. In December 2023, defendant filed "Supplemental Points and Authorities" in support of his section 1172.75 petition for resentencing. He asserted, "Although the California Department of Corrections is responsible for identifying all individuals whose sentence includes an invalid sentence enhancement, it appears that in this case that has not been done." He further stated his "prison prior was for a violation of [Penal Code] section 288, subdivision (a) which is not a sexually violent offense as defined by Welfare and Institutions Code section 6600, because there was no evidence that the [Penal Code] section 288, subdivision (a) was committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." He argued, since his "prior conviction was not for a sexually violent offense, he is entitled to be resentenced." He asserted, because he was entitled to resentencing, a full resentencing should occur at which the court should consider ameliorative legislation that passed since his original sentencing. Specifically, he asserted there were no jury findings or stipulations to circumstances in aggravation, so the upper term could not be imposed under section 1170, subdivision (b)(1) as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.). He also argued, under amended section 1385, subdivision (c)(2)(C), the court was required to strike or dismiss some of the enhancements because they resulted in a sentence that exceeded 20 years. He also asserted the court was required to strike or dismiss his strike prior pursuant to section 1385, subdivision (c)(2)(H) because it was based upon a conviction that was over five years old.
On December 15, 2023, the court held a hearing during which it struck defendant's prison prior enhancement but otherwise resentenced defendant to the same term, declining to strike the strike or enhancements or to impose lower terms. At the resentencing hearing, the People submitted on the probation department's recommendation and provided the court with a certified rap sheet that was marked as an exhibit. In resentencing defendant, the court explained it would "strike all 667.5(b) priors." But it would not exercise its discretion under section 1385 to strike defendant's strike "based upon the facts of the case and the defendant's criminal history. The defendant's criminal history span [sic] in a range of about 17 years from 1999 to 2016 in this offense. While the defendant's prior strike was from 8/27/99 for a PC 288 and about 17 years old at the time of this offense, the defendant did not remain crime free for any significant period of time during those 17 years. He had a conviction almost every year in that period when he was not in prison. Here the defendant went on a violent robbery spree. He robbed two banks on two separate dates, and then he robbed a woman on a third date at another bank. The defendant beat the woman when she refused to give up her purse, and he continued this assault even after she did let go of her purse. Also the Court has not received information regarding the rehabilitative efforts by the defendant. For these reasons the Court will select the upper term ... in addition based upon the certified rap sheet. The Court will not exercise its discretion under 1385(c)(2)(b) to strike multiple enhancements. The Court finds the dismissal of the enhancements would endanger public safety for the reasons previously stated in denying the Romero. For those same reasons, the Court will not exercise its discretion to strike the 3 year great bodily injury enhancement that would result in a sentence of over 20 years. Noting that without the 3 year enhancement, the sentence would be 19 years." Accordingly, defendant was resentenced to a total fixed term of 22 years.
DISCUSSION
As noted above, appellate counsel filed a brief pursuant to Wende with this court. The brief included counsel's declaration that petitioner was advised he could file his own brief with this court. The court also advised defendant by letter that he could file a supplemental letter or brief raising any arguable issues. Defendant failed to do so.
Based upon our independent review of the record, we requested and received supplemental briefing from the parties pursuant to Government Code section 68081 regarding whether the Penal Code section 667.5, former subdivision (b) prior prison enhancement that was stricken during the December 15, 2023 resentencing hearing was imposed for a "sexually violent offense" such that the enhancement is still legally valid (see Pen. Code, § 288, subd. (a); Welf & Inst. Code, § 6600.1; see also Pen. Code, §§ 667.5, subd. (b), 1172.75, subd. (a)), and, if so, whether the trial court had jurisdiction to resentence defendant under Penal Code section 1172.75.
In his letter brief, defendant argues his 1999 conviction for a violation of section 288, subdivision (a), upon which his prison prior enhancement was based, should not be considered a sexually violent offense for purposes of section 1172.75. We reject defendant's arguments and conclude the court erred in striking defendant's prison prior enhancement pursuant to section 1172.75 because it was imposed for a sexually violent offense. Accordingly, we reverse the court's order and order the original judgment to be reinstated.
I. Passage of Senate Bill No. 483 and Enactment of Section 1172.75
In October of 2021, the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.), effective on January 1, 2022, which added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." (Pen. Code, § 1172.75, subd. (a).)
Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment" that includes a now legally invalid prior prison enhancement, and to provide the names of such persons, their dates of birth, and the relevant case numbers or docket numbers to the sentencing court that imposed the enhancement. (§ 1172.75, subd. (b).) After the court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
When resentencing a defendant under section 1172.75, the court must "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).)
II. Jurisdiction
Initially, in their response to our request for supplemental briefing, the People argue for the first time that the court lacked jurisdiction to rule on defendant's motion for resentencing pursuant to section 1172.75 below; thus, the resulting order is void. Because the People's argument implicates whether the trial court had jurisdiction to enter the challenged order, we address their contention first.
The People assert, in part, the trial court lacked jurisdiction to resentence defendant because "section 1172.75 does not allow defendants to file standalone resentencing petitions." They contend the record in this case reflects defendant filed a petition but the petition "did not, on its own, trigger any statutory exception granting the trial court jurisdiction." They further assert the record contains "no mention of any 'involvement' from CDCR," and defendant's filing in the trial court "indicated that CDCR had not identified him as eligible for relief."
Following briefing by the parties, we granted defendant's motion to augment the clerk's transcript in this matter and an augmented confidential record was filed by the clerk of the Superior Court of Kern County establishing the CDCR identified defendant as potentially eligible for resentencing in 2022. CDCR provided this identification to the Superior Court of Kern County (received Feb. 24, 2022) before the court recalled defendant's sentence and resentenced him pursuant to section 1172.75 in December 2023.
It is true that, "[i]n general, '"once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence."'" (People v. Cota (2023) 97 Cal.App.5th 319, 329; accord, People v. King (2022) 77 Cal.App.5th 629, 634; People v. Howard (1997) 16 Cal.4th 1081, 1089.) However, our court has previously held, in the context of resentencing pursuant to section 1172.75, "[o]nce the trial court received that identification information from the [CDCR], it had authority over the matter and was statutorily authorized to act." (Cota, supra, at pp. 332-333.) That is, under section 1172.75, subdivision (b), once the CDCR provided this identification of defendant to the trial court, "it triggered the trial court's review and resentencing obligations under section 1172.75, subdivision (b) thereby placing the matter within a statutorily authorized exception to the general rule that a trial court has no jurisdiction to modify a final judgment." (Cota, at p. 332.) And though section 1172.75 "does not authorize a defendant to seek resentencing on his or her own motion or petition," the filing of such a procedurally unauthorized motion did not deprive "the trial court of the jurisdiction afforded to it by statute to resentence a defendant as mandated by section 1172.75." (Cota, at pp. 332, 333.)
Accordingly, we reject the People's argument the trial court lacked jurisdiction to recall and resentence defendant pursuant to section 1172.75.
III. The Court Erred in Striking Defendant's Prison Prior Enhancement
Nevertheless, we conclude the court erred in striking defendant's prior prison enhancement because it was for a sexually violent offense and, thus, remains valid. In reaching our conclusion, we consider and reject each of defendant's arguments in turn.
A. Applicable Law-Statutory Interpretation
"'"When we interpret a statute, '[o]ur fundamental task … is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning.… If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.] 'Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.'"'" (People v. Reynoza (2024) 15 Cal.5th 982, 989-990.)
B. Analysis
Here, the imposed section 667.5, former subdivision (b) enhancement that was stricken pursuant to section 1172.75 was for defendant's prior violation of section 288, subdivision (a) (lewd and lascivious act upon a child under 14 years of age). In his section 1172.75 petition for resentencing below, defendant acknowledged that the section 288, subdivision (a) offense was the basis for the imposed prison prior enhancement, but he alleged it was not a "sexually violent offense" because there was no evidence it was committed by force or fear. (See Welf & Inst. Code, § 6600, subd. (b) [listing acts that are a "sexually violent offense," including a felony violation of § 288, "when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person"].)
The original probation report reflects the probation department noted the two section 667.5, former subdivision (b) enhancements were found true; "however, one of these allegations is enumerated in the PC 667(a) allegation." Accordingly, the department recommended imposition of only one section 667.5, former subdivision (b) prior prison enhancement (presumably the one related to the violation of § 290.011 since the § 288, subd. (a) violation was the basis for the § 667, subd. (a) enhancement). (See People v. Jones (1993) 5 Cal.4th 1142, 1150 [holding where same conviction forms basis of multiple statutory enhancements, only the greater enhancement may apply].) The record reflects the court imposed the one-year term for the section 667.5, former subdivision (b) enhancement in allegation 4 to count 5-which is the enhancement related to the section 288, subdivision (a) violation. The abstract of judgment and minute order only reflect the imposed section 667.5 former subdivision (b) enhancement. They do not reflect that the other section 667.5, former subdivision (b) enhancement was ordered stayed.
However, a violation of Penal Code section 288, subdivision (a) involves the commission of a lewd or lascivious act upon a child who is under the age of 14 years, and Welfare and Institutions Code section 6600.1 provides, "If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a 'sexually violent offense' for purposes of Section 6600." Thus, a Penal Code section 288, subdivision (a) violation is necessarily a sexually violent offense "for purposes of [Welfare and Institutions Code] Section 6600" in light of the express language of Welfare and Institutions Code section 6600.1. (See generally People v. Lowe (2012) 211 Cal.App.4th 678, 682, fn. 2 [noting "[a] violation of Penal Code section 288 against a victim under 14 years old is a 'sexually violent offense' as a matter of law"].)
However, seeking to avoid this conclusion, in his letter brief defendant argues "the current version of [Welfare and Institutions Code] section 6600.1 did not come into existence until 2006-seven years after defendant's [Penal Code section] 288(a) offense-when it was enacted as part of Proposition 83," and "the character of the offense should be determined based on when the offense was committed." In support, he cites People v. Johnson (2015) 61 Cal.4th 674 (Johnson).
In Johnson, a jury convicted the defendant of two counts of attempting to dissuade a witness in 1998 and found true allegations he had suffered three prior convictions-robbery (§ 211), first degree burglary (§ 459), and assault with a firearm (§ 245, subd. (a)(2)). (Johnson, supra, 61 Cal.4th at p. 679.) Based on the defendant's prior convictions, the court sentenced the defendant to two terms of 25 years to life under the three strikes law. (Ibid) After Proposition 36 (the Three Strikes Reform Act of 2012) was passed on November 6, 2012, authorizing prisoners serving third strike sentences whose "current" offense (i.e., the offense for which the third-strike sentence was imposed) is not a serious or violent felony to petition for recall of the sentence and for resentencing as a second-strike case, the defendant petitioned for relief. (Johnson, at pp. 679-680.) The trial court held and the appellate court affirmed that the defendant was ineligible for relief because his current offenses for dissuading a witness were serious or violent felonies as of the effective date of Proposition 36, rendering the defendant ineligible for relief, despite the fact such a crime was not classified as a serious or violent felony when the defendant committed them in 1998. (Johnson, at p. 680.) The California Supreme Court affirmed that the classification of an offense as a serious or violent felony is determined as of November 7, 2012, the effective date of Proposition 36. (Id. at pp. 679, 680.) In reaching its conclusion, the Johnson court relied upon "section 1170.126's use of the present verb tense in describing the character of the current offense, the parallel structure of the sentencing and resentencing provisions, and the ballot arguments in support of Proposition 36." (Id. at p. 683.)
Relevant here, Penal Code section 1172.75, subdivision (a), provides, "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid." Referencing the phrase "was imposed," defendant argues, "[b]y its use of the past tense, the statute speaks to when the offense was committed, not to when [Penal Code] section 1172.75 was enacted." We disagree; we cannot conclude the referenced phrase suggests the Legislature intended to classify a prior conviction as a "sexually violent offense" based on its characterization at the time it was committed. To the contrary, Penal Code section 1172.75, subdivision (a), generally references "sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Italics added.) It does not include a time-specific incorporation of the definition of a "sexually violent offense," but rather suggests the present definition of a sexually violent offense controls. (See People v. Nettles (2015) 240 Cal.App.4th 402, 408 ["Had the electorate intended this restriction on resentencing under the [Three Strikes Reform] Act to apply only to offenses that appeared in the definition of sexually violent offense at the time the inmate was sentenced to his or her indeterminate life term under the three strikes law, as defendant asserts, the electorate would have so specified. We cannot, under the guise of statutory interpretation, rewrite the statute"].) Indeed, the California Supreme Court has held "'"where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified …."'" (People v. Rojas (2023) 15 Cal.5th 561, 570.) "At the same time, '"there is a cognate rule … to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time …."'" (Ibid.)
Furthermore, as in Johnson, interpreting section 1172.75 in a way that ignores the current classification of the character of defendant's prior crime is inconsistent with the intent expressed in the legislative history of Senate Bill No. 136 (2019-2020 Reg. Sess.)-which amended the parallel sentencing provision, section 667.5, subdivision (b), with regard to the imposition of a prison prior enhancement- to "exclude sexual predators so that these offenders are still subject to this 1-year enhancement." (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 136 (2019-2020 Reg. Sess.) Sept. 13, 2019, p. 3; see Johnson, supra, 61 Cal.4th at p. 686.) Given that defendant's prior crime is now considered a sexually violent offense, the intent reflected in this legislative history would not be served by interpreting the parallel resentencing provision in section 1172.75 to authorize a reduction in defendant's sentence in this instance. Rather, there appears to be no reason a prison prior enhancement based on a violation of section 288, subdivision (a) should only be appropriate if the offense was committed after the enactment of Proposition 83, or that inmates who committed such an offense should be given shorter sentences in order to make room for individuals who committed the identical offense after the crime was reclassified as a sexually violent offense. (See Johnson, supra, at p. 687.) Accordingly, the plain language of section 1172.75 and the related legislative history and intent do not support defendant's argument that the classification of his prior conviction as a sexually violent offense should be based upon the state of the law in effect when that crime was committed.
In the alternative, defendant argues that Welfare and Institutions Code section 6600.1 does not apply because it is not mentioned in the text of Penal Code sections 1172.75, subdivision (a), or 667.5, subdivision (b). He contends "there is nothing in the language or legislative history of [Penal Code] section 1172.75, subdivision (b) to support the conclusion that the Legislature intended that [Welfare and Institutions Code] section [6600.1] would apply for purposes of determining the validity of sentence enhancements imposed under former section 667.5(b) [of the Penal Code] prior to January 1, 2020." Again, we disagree.
Defendant appears to erroneously refer to the statute as Welfare and Institutions Code section 6601. However, because that section has no import to the issues presented here, we presume defendant intended to refer to Welfare and Institutions Code section 6600.1 as he does elsewhere in his brief.
Section 6600.1 of the Welfare and Institutions Code expressly broadens the list of crimes qualifying as sexually violent offenses "for purposes of Section 6600." (See People v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558, 569 [Welf & Inst. Code, "section 6600.1 modifies section 6600, subdivision (b)"]; see also People v. Carlin (2007) 150 Cal.App.4th 322, 328, fn. 3 ["Proposition 83 broadened the category of convictions that constitute a sexually violent offense"].) And "[t]he Legislature is presumed to be aware of all laws in existence when it passes or amends a statute." (In re Greg F. (2012) 55 Cal.4th 393, 407; accord, People v. Licas (2007) 41 Cal.4th 362, 367 ['"[T]he Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes '"in light of such decisions as have a direct bearing upon them"""].) Accordingly, when the Legislature drafted Penal Code section 1172.75 to reference Welfare and Institutions Code section 6600, it is presumed to have been aware of and incorporated the related law-Welfare and Institutions Code section 6600.1-which necessarily informs the definition of a sexually violent offense as contained in Welfare and Institutions Code section 6600. (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199 ["We do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied. [Citation.] Rather, we must assume that … the Legislature was aware of existing related laws and intended to maintain a consistent body of rules"].)
Accordingly, we conclude the imposed prison prior enhancement-based upon a violation of section 288, subdivision (a)-that was stricken by the court below is still valid under amended section 667.5, subdivision (b) because it was for a sexually violent offense. Thus, it should not have been stricken pursuant to section 1172.75. And, because there was no legally invalid prison prior enhancement, the court erred in recalling defendant's sentence and resentencing him under section 1172.75, which requires the court to "recall the sentence and resentence the defendant" if the court determines the current judgment includes a now invalid prison prior enhancement. (§ 1172.75, subd. (c).)
Accordingly, we reverse the court's order and direct it to reinstate the original judgment.
DISPOSITION
The court's December 15, 2023, order is reversed and the original sentence of 23 years' imprisonment is ordered to be reinstated. The clerk of the superior court is directed to prepare an amended abstract of judgment that correctly lists the sentence and enhancements and to forward a copy to the CDCR.
[*]Before Franson, Acting P. J., Peña, J. and Meehan, J.