Resentencing under PC 1172.75 is available where the PC 667.5(b) enhancement was originally imposed and stayed. Section 1172.75 requires resentencing when a prison prior enhancement is imposed; the court found no good reason to additionally require that the enhancement was executed. (But noting People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169.)

Section 1172.75(d)(1)’s mandate that resentencing “shall result in a lesser sentence than the one originally imposed” was fulfilled even though the defendant received a sentence which totaled same the number of years. Even when a prison prior is stayed and not executed, elimination of the prison prior reduces the potential sentence facing the defendant and therefore results in a lesser sentence than the one originally imposed.

Finally, the record did not overcome the presumption that the trial court knew the sentencing laws and followed them. The trial court’s sentencing choices were permissible where the trial court chose not to dismiss an enhancement under section 1385(c); not to impose a lower term under section 1170(b)(6); and to select upper terms pursuant to section 1172.75(d)(4) when defendant’s original sentence included upper terms for those counts.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/A168580.PDF