Filed 8/7/26 P. v. Chappell CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B342803
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. KA083569)
LESTER CHAPPELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jacqueline Lewis, Judge. Affirmed.
Antonio M. Zaldana, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and
Susan Sullivan Pithey, Assistant Attorneys General, Wyatt E.
Bloomfield and Chelsea Zaragoza, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________________________
Lester Chappell appeals the judgment entered after a
resentencing hearing under Penal Code1 section 1172.75. He
argues the trial court erred in reimposing the upper term for his
convictions without findings beyond a reasonable doubt of the
aggravating circumstances. We affirm.
FACTS AND PROCEDURAL HISTORY
1. Facts2
On June 18, 2008, appellant with a gun in hand
approached a victim who was sitting in his car. Appellant
demanded money, but the man had only coins. Appellant got into
the car and demanded the victim to drive, eventually telling him
to stop. Appellant told him to disrobe and to lie down on his
stomach. He then tried to sodomize him. Unsuccessful, he forced
the victim to orally copulate him. After taking the victim’s car
keys, appellant ordered him to stay in the car while appellant
went somewhere, warning that he would return in a minute. The
victim ran away and called the police, who eventually caught
appellant driving the stolen vehicle.
2. Procedural history
On August 6, 2008, appellant was charged by information
with one count each of kidnapping (§ 207, subd. (a)), kidnapping
for carjacking (§ 209.5, subd. (a)), assault with intent to commit a
felony (§ 220, subd. (a)), forcible oral copulation (§ 288, subd.
(c)(2)), failure to update registration annually (§ 290.012, subd.
(a)), and criminal threats (§ 422). It was further alleged that
appellant kidnapped the victim for the purpose of committing
1 Undesignated statutory references are to the Penal Code.
2 These facts are drawn from the preliminary hearing
transcript, probation officer’s report, and police report, which
formed the factual basis for appellant’s plea.
2
forcible oral copulation (§ 667.8, subd. (a)) and that he suffered a
prior prison term (§ 667.5, subd. (b)).
Appellant pleaded no contest to kidnapping and forcible
oral copulation and admitted the special allegation in exchange
for a sentence of 26 years in prison, which included the upper
terms of eight years each for the kidnapping and the forcible oral
copulation, plus nine years for the special allegation, and one
year for a prior prison term.
In 2023, appellant’s name appeared on the Department of
Corrections and Rehabilitation’s list of those eligible for
resentencing under Senate Bill No. 483. He was appointed
counsel and requested a full resentencing.
Appellant asked the court to resentence him to the
midterms of five years for the kidnapping and six years for the
forcible oral copulation, plus nine years for the enhancement, and
to strike the one-year enhancement for the prior prison term.
The People opposed any modification other than striking one year
for the prior prison term.
On November 21, 2024, the trial court convened the
resentencing hearing and struck the now invalid one-year
enhancement, but reimposed the upper terms, resulting in a
sentence of 25 years.
DISCUSSION
1. Section 1172.75 resentencing and standard of review
Effective January 1, 2022, the Legislature added section
1172.75 (Stats. 2021, ch. 728, § 3), which renders “legally invalid”
any prior prison term enhancement imposed under subdivision
(b) of section 667.5 before January 1, 2020, except for those
involving a sexually violent offense. (§ 1172.75, subd. (a).) If a
judgment includes such an enhancement, the court shall recall
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the sentence and resentence the defendant. (§ 1172.75, subd. (c).)
Those who qualify are entitled to a full resentencing, at which the
trial court “shall apply . . . any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.”
(§ 1172.75, subd. (d)(2).)
We generally review sentencing decisions for an abuse of
discretion (People v. Moseley (2024) 105 Cal.App.5th 870, 874),
but we review de novo subsidiary questions of statutory
interpretation (People v. Terwilligar (2025) 109 Cal.App.5th 585,
595).
2. The trial court did not err in reimposing the upper
term because it was originally imposed
Until 2007, section 1170, subdivision (b) provided that “the
court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.”
(§ 1170, former subd. (b); Stats. 1977, ch. 165, § 15.) In 2007, the
United States Supreme Court held that this “violated the Sixth
Amendment right to a jury trial because it allowed a defendant’s
prison sentence to be increased beyond the statutory maximum
based on facts that had not been found true beyond a reasonable
doubt by a jury or admitted by the defendant.” (People v. Mathis
(2025) 111 Cal.App.5th 359, 370 (Mathis); see Cunningham v.
California (2007) 549 U.S. 270, 274–275 [127 S.Ct. 856, 166
L.Ed.2d 856] (Cunningham).) Cunningham “noted that
California could comply with the Sixth Amendment either by
requiring jury findings for any facts necessary to impose an
aggravated sentence, or by authorizing sentencing courts ‘ “to
exercise broad discretion . . . within a statutory range.” ’ ”
(Mathis, at pp. 370–371.)
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Our Legislature initially responded (in 2007) by choosing
the second option, which allowed courts “ ‘broad discretion’ ” to
choose between the lower, middle, and upper terms. (Mathis,
supra, 111 Cal.App.5th at p. 371.) This scheme—in effect when
appellant was originally sentenced in 2008—was one that
“ ‘ “everyone agree[d]” ’ ” “ ‘encounter[ed] no Sixth Amendment
shoal.’ ” (Ibid.; People v. Lynch (2024) 16 Cal.5th 730, 747
(Lynch).)
Effective January 1, 2022, however, our Legislature
adopted the first option in Cunningham by amending section
1170, subdivision (b), to make the middle term presumptive and
to allow the imposition of the upper term only “when there are
circumstances in aggravation of the crime” and the facts
underlying those circumstances “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); Stats. 2021, ch. 731, § 1.3.) Enacted
the same year, section 1172.75, subdivision (d)(4) refines how this
change operates in the context of resentencing under section
1172.75, stating that, “[u]nless the court originally imposed the
upper term,” the court may not impose a sentence exceeding the
middle term unless the circumstances in aggravation are
admitted or found true beyond a reasonable doubt. (Italics
added.)
Appellant argues that the trial court erred in reimposing
the upper term for assault without admissions or findings beyond
a reasonable doubt of aggravating factors. We disagree. The
plain language of section 1172.75 shows that the Legislature
intended the heightened standard in section 1170, subdivision (b)
to apply at a section 1172.75 resentencing hearing only if a trial
court is imposing the upper term for the first time. (People v.
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Brannon-Thompson (2024) 104 Cal.App.5th 455, 466–467
(Brannon-Thompson); accord, People v. Lua (2026) 121
Cal.App.5th 472, 478 (Lua).) In other words, a trial court is not
limited to imposing a middle or lower term sentence absent
aggravating factors admitted or proven beyond a reasonable
doubt when the upper term was “originally imposed” (§ 1172.75,
subd. (d)(4)). The Brannon-Thompson court adopted this plain
meaning in rejecting a claim that defense counsel was ineffective
for failing to object at resentencing to the reimposition of the
upper term. (Id. at p. 466 [“ ‘there was no sound legal basis’ ” for
counsel to object to the superior court reimposing the upper
term].)
Appellant urges us to follow People v. Gonzalez (2024) 107
Cal.App.5th 312 (Gonzalez), which disagreed with Brannon-
Thompson’s plain reading based on “the doctrine of constitutional
avoidance.” (Gonzalez, at p. 330; id. at pp. 327–330 [noting that
the Brannon-Thompson court did not grapple with “the
constitutional aspect of section 1170, subdivision (b)”].) Although
the Gonzalez court recognized that section 1172.75 “could be
interpreted as not requiring proof of aggravating factors before
reimposing an upper term sentence,” it reasoned that such a
reading “would run afoul of the Sixth Amendment implications
identified in Lynch.”3 (Id. at pp. 329, 330.) Gonzalez quoted
3 Our Supreme Court has granted review of an unpublished
Court of Appeal decision to resolve the split over whether section
1172.75, subdivision (d)(4), allows a trial court to reimpose an
upper term sentence when circumstances in aggravation were
neither stipulated to nor found true beyond a reasonable doubt.
(See People v. Eaton (Mar. 14, 2025) C096853, review granted
May 14, 2025, S289903.)
6
Lynch, supra, 16 Cal.5th at page 759, as follows: “ ‘Under the
current statute the middle term is the maximum term that can
be imposed unless additional factual determinations are made. It
is the requirement of additional factfinding that brings the Sixth
Amendment into play.’ ” (Gonzalez, at p. 330.)
Gonzalez’s reliance on Lynch is misplaced. As Lynch
explained, “ ‘any fact that exposes a defendant to a greater
potential sentence must be . . . established beyond a reasonable
doubt.’ ” (Lynch, supra, 16 Cal.5th at p. 760, quoting
Cunningham, supra, 549 U.S. at p. 281, italics added.) Section
1172.75 is an ameliorative statute that precludes the imposition
of any greater sentence, only allowing resentencing courts to
reduce or leave intact the original sentence.4 It thus impacts the
scope of judicial discretion, but does not involve improper
factfinding to increase a defendant’s sentence. (See Dillon v.
United States (2010) 560 U.S. 817, 828–829 [130 S.Ct. 2683, 177
L.Ed.2d 271] [any facts found at the sentence modification
proceedings under “a congressional act of lenity intended to give
prisoners the benefit of later enacted adjustments” “do not serve
to increase the prescribed range of punishment,” but rather
“affect only the judge’s exercise of discretion within that range”;
“such discretion does not contravene the Sixth Amendment even
if it is informed by judge-found facts”]; accord, People v. Perez
(2018) 4 Cal.5th 1055, 1064 [applying Dillon’s reasoning to
4 “Resentencing pursuant to this section shall result in a
lesser sentence than the one originally imposed as a result of the
elimination of the repealed enhancement, unless the court finds
by clear and convincing evidence that imposing a lesser sentence
would endanger public safety. Resentencing pursuant to this
section shall not result in a longer sentence than the one
originally imposed.” (§ 1172.75, subd. (d)(1).)
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another resentencing scheme whose “enactment [was also]
intended to give inmates serving otherwise final sentences the
benefit of ameliorative changes to applicable sentencing laws”].)
What is more, the Legislature’s post-Cunningham
amendment—in place when both appellant and the defendant in
Gonzalez received upper term sentences—“eliminate[d] the
middle term presumption,” and “instead g[a]ve the trial court
authority to select among any of the three terms as a matter of
discretion and without any judicial factfinding.” (Lynch, supra,
16 Cal.5th at p. 759.) This change “effectively eliminated the
requirement of a jury trial which would otherwise have been
required under the Sixth Amendment.” (Ibid.; see also id. at
p. 756 [“what the Sixth Amendment requires is necessarily
informed by what the state statutory scheme requires”].) We
agree with Mathis that “[w]here, as here, the trial court elects to
retain an upper term sentence that complied with the Sixth
Amendment when originally imposed, the court need not engage
in any additional factfinding under section 1172.75, subdivision
(d)(4).” (Mathis, supra, 111 Cal.App.5th at pp. 373–374; accord,
People v. Moss (2026) 120 Cal.App.5th 375, 380.)
Appellant further urges that “the trial court seemingly
made findings regarding aggravated circumstances” in deciding
to reimpose the upper term, thereby entitling him to a jury trial.
Under the exception provided in subdivision (d)(4) of section
1172.75, it is of no consequence that the court may have
considered aggravating factors at resentencing because the upper
term sentence was originally imposed. (Accord, Lua, supra, 121
Cal.App.5th at p. 476.) We therefore reject appellant’s contention
that the trial court erred in reimposing the upper term.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
GOORVITCH, J.
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