Providing Access to Justice by Ensuring Oversight and Quality Control in California’s Appointed Appellate Counsel System.

Penal Code section 1172.75, subdivision (d)(4), suggests that when a defendant is being resentenced per SB 483, the court may impose the upper term without complying with the beyond-a-reasonable-doubt provisions of newly amended Penal Code section 1170, subdivision (b) if that upper term was imposed when the defendant was originally sentenced.  People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 adopted that interpretation.

Now, People v. Gonzalez (H050752, 2024) ___Cal.App.5th___ [2024 Cal.App.LEXIS 790] has reached the opposite result. In a nutshell, Gonzalez concludes that to read section 1172.75(d)(4) as an exception to section 1170(b) would run afoul of the defendant’s right to a jury trial emphasized in People v. Lynch (2024) 16 Cal.5th 730. Gonzalez reads section 1172.75(d)(4) as doing no more than limiting the pool of defendants who can get an upper term. According to Gonzalez, those defendants who got the upper term the first time around can get it again – but only if the factors in aggravation are properly proven or admitted.

If you have this issue and a brief was already filed, consider whether supplemental briefing should be filed asap.

If, during your review of an appellate record,  you discover your client has a qualifying Penal Code section 667.5, subdivision (b) enhancement that was imposed or stayed, but the client is not on the CDCR list of potentially eligible defendants that was sent to the superior courts, you can now email the CDCR directly to request they be added to the list.

Email your request and any supporting documentation to the CDCR at cdcr-dai-sb483inquiry@cdcr.ca.gov.