Thursday, January 15, 2026
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Court of Appeal:
Parolees May Be Entitled to Resentencing Relief After Release
Opinion Says Statutory Language That Refers to ‘Current’ Incarceration Does Not Restrict Application to Those in Prison at Time of Hearing
By Kimber Cooley, associate editor
Div. One of this district’s Court of Appeal has held that a defendant, who has been identified as eligible for resentencing under a provision that contemplates such reconsideration if the accused’s initial sentence includes a now-defunct prior-prison enhancement, is not foreclosed from securing relief by virtue of having been released on parole before the hearing takes place even though the statute references inmates “currently serving a term.”
At issue is Penal Code §1172.75 which legally invalidates any prior prison enhancement “that was imposed” under Penal Code §667.5(b) before Jan. 1, 2020, when that section was amended to eliminate the availability of penalty increases based on a defendant’s previous incarceration unless the term was served for certain “sexually violent offense[s].”
The statutory scheme dictates that the California Department of Corrections and Rehabilitation (“CDCR”) “shall identify those persons in [its] custody currently serving a term for a judgment that includes a [§667.5(b)] enhancement” and notify the sentencing court of its determination.
If the trial court finds that the judgment includes a defunct enhancement, it is directed to resentence the defendant and apply “any other changes in law that reduce sentences or provide for judicial discretion.”
Tuesday’s opinion, authored by Justice Gregory J. Weingart and joined in by Acting Presiding Justice Helen I. Bendix and Justice Michelle C. Kim, declares:
“Does an incarcerated defendant identified as eligible for resentencing under Penal Code section 1172.75 lose the opportunity for such relief if he or she is released on parole before the resentencing takes place? We answer that question no; such an individual remains eligible and should still be resentenced. 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….It does not require the defendant [to] remain incarcerated until the time of resentencing to maintain his or her eligibility for relief.”
First-Degree Burglary
Asserting entitlement to relief under §1172.75 was Daquon Washington, who pled no contest in 2019 to a charge of first-degree residential burglary with a person present in the home, in violation of Penal Code §459, and admitted to having served time in prison for a prior strike and a lesser offense within the previous five years.
Los Angeles Superior Court Judge Laura Laesecke sentenced him to eight years in state prison and imposed but stayed additional time based on enhancements under §667.5(b).
In 2022, the CDCR identified Washington as a person who was eligible for resentencing under §1172.75. After an April 2024 hearing, Laesecke determined that he was not entitled to relief because the penalty attributable to the enhancement had been stayed at sentencing; Washington appealed the decision.
While the appeal was pending, the defendant was released on parole and the California Supreme Court held, in last year’s People v. Rhodius opinion, that §1172.75 applies regardless of whether an enhancement was stayed or executed.
Following the decision, lawyers with the Office of the Attorney General conceded that the Rhodius case would govern the resolution of the appeal but for Washington’s release on parole, asserting that §1172.75 only applies to defendants who are currently incarcerated at the time of resentencing.
Plain Language
Looking to the plain language of the section, Weingart wrote:
“Because ‘parole is a mandatory component of any prison sentence’…, Washington suggests that anyone in the constructive custody of the CDCR, such as a parolee, is ‘currently serving a term’ as that phrase is used in section 1172.75 and should be identified by the CDCR as eligible for resentencing. We disagree.”
He continued:
“That a defendant must be incarcerated at the time the CDCR was tasked with identifying inmates for possible resentencing does not mean, however, that the defendant remains eligible for resentencing only by staying in prison….The statute does not task the court with verifying the defendant remains incarcerated, or condition the court’s obligation to resentence on continued incarceration.”
Acknowledging that “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 in fact the defendant is entitled to resentencing and in fact resentence him,” the justice remarked:
“[I]t appears the Legislature intended the court-related criterion for resentencing eligibility—whether ‘the current judgment’ includes an invalid section 667.5(b) enhancement—to operate independently from earlier conditions applicable at the CDCR identification stage. If the Legislature had intended to preclude resentencing for individuals who had been released on parole after being referred to the court by the CDCR, we expect it would have stated so in clear, express terms.”
Uncodified Preamble
Addressing an uncodified legislative preamble that provides that “it is the intent of the Legislature to…apply” the section “to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements,” he said:
“[T]he plain language of section 1172.75 contains no continued incarceration up until resentencing requirement, and we decline to read one into the statute based on an ambiguous general statement of intent. We say ambiguous because one can read the statement of intent as indicating only that the Legislature sought to retroactively apply the changes to section 667.5(b) to all individuals ‘currently serving a term’ at the initiation of the resentencing process….Even if one assumes…that the statement of intent refers to custodial status at the time of court review, its descriptive focus…does not necessarily mean the Legislature intended to deny resentencing…where an individual was released on parole after being referred by the CDCR….”
Saying that “resentencing an individual…like Washington…is not an idle act,” he added:
“Where, as here, a resentencing statute is silent as to how custody credits apply to the new sentence, ‘generally applicable sentencing procedures govern the issue.’…Should the resentencing court impose a sentence shorter than the original sentence, Washington may be entitled…to credit for any time served that exceeds the new sentence, which could in turn reduce or terminate his period of parole.”
Weingart declared:
“The order denying resentencing is reversed and the matter is remanded for the superior court to resentence Washington in accordance with section 1172.75.”
The case is People v. Washington, 2026 S.O.S. 112.
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