People v. Tang

Summary

The California Court of Appeal affirmed the denial of Kim H. Tang’s motion for resentencing under Penal Code section 1172.75. The court held that a prior-prison-term enhancement stricken from the judgment is not an enhancement that was “imposed” within the meaning of the statute, and directed the trial court to issue an amended abstract of judgment reflecting the 2002 striking of the enhancement.

Holdings

1. A prior-prison-term enhancement that was stricken from the judgment is not a sentence enhancement that was imposed within the meaning of Penal Code section 1172.75, subdivision (a), and therefore does not trigger eligibility for resentencing under that statute.
2. The abstract of judgment does not control when the operative appellate judgment struck the enhancement; the trial court properly determined that the judgment did not include a qualifying enhancement despite the unamended abstract's description of the enhancement as imposed and stayed.

Questions Presented

1. Whether a prior-prison-term enhancement that was stricken from the judgment on appeal qualifies as a sentence enhancement that was imposed under Penal Code section 1172.75, subdivision (a), thereby entitling the defendant to resentencing.
2. Whether the abstract of judgment's continued description of the enhancement as imposed and stayed establishes eligibility for section 1172.75 resentencing despite the appellate judgment striking the enhancement.

Disposition

affirmed