People v. Mitchell CA2/1

Opinion

Filed 8/31/26 P. v. Mitchell CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B344395

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA138142) v.

BRYAN MITCHELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Pat Connolly, Judge. Affirmed with directions. Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Zachary John Crvarich, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________ Bryan Mitchell appeals from a judgment entered after resentencing, contending the superior court erred by reimposing the upper term for his attempted murder conviction. We disagree and affirm, subject to ordering the abstract of judgment modified to correct the calculation of Mitchell’s custody credits.

BACKGROUND In 2015, Mitchell broke into the house of S.S. and assaulted her. He struck S.S. multiple times on the head and body with a baseball bat and then raped her. A jury convicted Mitchell of spousal rape, attempted murder, and assault with a deadly weapon; found as to each count that he inflicted great bodily injury; and found he used a deadly and dangerous weapon while committing the rape and attempted murder. In a bifurcated proceeding, the court found Mitchell had suffered a prior conviction under California’s “Three Strikes” law as well as a prior serious felony conviction, and had served two separate prison commitments. The court sentenced Mitchell to 69 years to life in prison, which included the upper term for the attempted murder conviction. We affirmed the conviction on direct appeal but ordered the trial court to correct the sentence in one respect. (People v. Mitchell (March 29, 2018, B285079) [nonpub. opn.].) In 2024, Mitchell petitioned for resentencing pursuant to Penal Code section 1172.75.1 The resentencing court stated that other than striking invalid one-year enhancements, the court would not change Mitchell’s sentence “at all.” Accordingly, the court struck the enhancements but otherwise left Mitchell’s sentence— including the original custody credits—intact.

1 Undesignated statutory references are to the Penal Code.

2 Mitchell appealed.

DISCUSSION A. Resentencing Mitchell contends the trial court erred in failing to apply section 1170, subdivision (b)(2), which allows imposition of an upper term only where aggravating circumstances supporting such a term are either stipulated or proven beyond a reasonable doubt to a trier of fact. We disagree.

1. Section 1170 When a statute specifies three terms, subdivision (b) of section 1170 grants the trial court limited discretion to select the term. Generally, the court may impose a sentence exceeding the middle term only when “there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2); see People v. Lynch (2024) 16 Cal.5th 730, 746.)

2. Section 1172.75 Section 1172.75 provides a resentencing procedure that eliminates sentence enhancements for prior prison terms unless the prior terms were for sexually violent offenses. If the sentence, as here, includes such an enhancement, the trial court is required to recall the sentence and resentence the defendant ab initio. (§ 1172.75, subd. (c).) Under subdivision (d)(2) of section 1172.75, in resentencing a defendant the court must apply all ameliorative changes in the law. Subdivision (d)(2) of section 1172.75 “ ‘ “requires a full resentencing, not merely that the trial court 3 strike the newly ‘invalid’ enhancements.” ’ ” (People v. Grajeda (2025) 111 Cal.App.5th 829, 836.) Subdivision (d)(4) of section 1172.75 states that “[u]nless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”

3. Brannon-Thompson In People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466, our colleagues in the Third District held that subdivision (d)(4) of section 1172.75 unambiguously permits a resentencing court to reimpose an upper term—without heightened factfinding—if it imposed the term originally. (Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.) The burden of proof requirements under subdivision (b) of section 1170 “apply only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing.” (Brannon-Thompson, supra, at pp. 466–467.)

4. Application Here, the trial court reimposed the upper term sentence it had initially imposed. Thus, pursuant to subdivision (d)(4) of section 1172.75, the court had no obligation to apply the factfinding requirement set forth in section 1170, subdivision (b). Mitchell urges us to reject the reasoning of Brannon- Thompson in favor of the Sixth District’s decision in People v. Gonzalez (2024) 107 Cal.App.5th 312, 328, 330 (Gonzalez), which expressly disagreed with Brannon-Thompson. In Gonzalez, the court reversed the reimposition of an upper term sentence under 4 section 1172.75 because the resentencing court had not complied with the factfinding requirement in section 1170, subdivision (b). The Gonzalez court “acknowledge[d] that the plain language of section 1172.75, subdivision (d)(4), on its face, could be interpreted as not requiring proof of aggravating factors before reimposing an upper term sentence.” (Gonzalez, supra, 107 Cal.App.5th at pp. 328–329.) The court stated, however, that “another reasonable interpretation of section 1172.75, subdivision (d)(4) would simply restrict the scope of defendants eligible to receive the upper term at resentencing to those who previously received the upper term, instead of creating a condition or exception independently justifying the imposition of the upper term.” (Gonzalez, supra, at p. 329, italics omitted.) Under this interpretation, only a defendant originally sentenced to the upper term would be eligible to be resentenced to the upper term, but even then, the court could not impose the upper term sentence without proof of aggravating factors beyond a reasonable doubt. (Ibid.) The Gonzalez court found this interpretation was necessary to avoid a Sixth Amendment violation under Lynch, which held that under amended section 1170, subdivision (b), “ ‘a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence.’ ” (Gonzalez, supra, at p. 330.) We disagree with Gonzalez. The construction of subdivision (d)(4) of section 1172.75 that Gonzalez advances clashes with the statute’s wording and grammatical structure. Gonzalez reads the first clause of the subdivision as though it is appended to the end of the provision by the conjunction “and.” But the first clause of the subdivision begins with the word “unless”—a subordinating conjunction that signals an exception— and the clause appears at the beginning of the provision set off by a comma, indicating that it modifies the text that follows.

5 During Mitchell’s resentencing proceeding, the trial court permissibly elected to retain the upper term sentence previously imposed. We thus decline Mitchell’s invitation to follow Gonzalez.

B. Fines and Fees Mitchell argues the abstract of judgment erroneously included fines and fees that were not orally pronounced by the court. We disagree. The resentencing court expressly stated that it reimposed Mitchell’s entire sentence but for the one-year priors, impliedly including the fines and fees imposed in the original judgment. (Cf. People v. Salstrom (2025) 117 Cal.App.5th 596, 600 [trial courts have jurisdiction to modify fines at resentencing, but based on the court’s oral pronouncement, it clearly intended to reimpose the original restitution fine].) Mitchell concedes that the fines listed on his most recent abstract of judgment mirror those listed on the original abstract. Accordingly, the abstract of judgment accurately reflects the court’s oral pronouncement by reimposing the fines originally imposed.

C. Custody Credits Mitchell contends the abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. The People concede the point, and we agree. (See People v. Buckhalter (2001) 26 Cal.4th 20, 23 [when resentencing results in a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the new sentence].) We will therefore direct the trial court to amend the abstract of judgment to reflect Mitchell’s current custody- and good time credit.

6 DISPOSITION The judgment is affirmed. On remand, the superior court is directed to recalculate custody- and good time credits, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED.

ROTHSCHILD, P. J. We concur:

BENDIX, J.

WEINGART, J.