Filed on 8/7/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064690
v. (Super. Ct. No. 13WF3516)
RYAN PAUL MCALISTER, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Derek Guy Johnson, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
When a criminal defendant is resentenced pursuant to statute,
the defendant is often entitled to the benefit of any other ameliorative
changes in the sentencing law since the time he was originally sentenced. But
the application of new laws to older cases is not always straightforward, with
this proceeding being a case in point.
Defendant Ryan McAlister appeals from a resentencing pursuant
to Penal Code section 1172.75, which was enacted to retroactively dismiss
any now-invalid one-year prison prior enhancements. That part of the
resentencing was straightforward. The complication arose because McAlister
had struck a plea deal in which he agreed to be sentenced to the upper term
for attempted murder. Between the time he was sentenced and his
resentencing, the Legislature amended Penal Code section 1170, subdivision
(b), so that a court may impose the upper term of a sentencing triad only if a
jury found an aggravating circumstance to be true, or if the defendant
stipulated that an aggravating circumstance was true. 1 The question
presented here is whether this sentencing change applies to McAlister’s
resentencing.
We conclude it does not. Section 1172.75, subdivision (d)(4),
mirrors the conditions imposed by section 1170, subdivision (b), except it adds
the following caveat: “Unless the court originally imposed the upper
term . . . .” This means a court may reimpose the upper term at
resentencing—even in the absence of a jury finding—if the court previously
imposed the upper term. Although one court has held that this interpretation
of section 1172.75 would create a potential Sixth Amendment violation, we do
not share that concern and, therefore, apply the statute’s plain meaning.
1 All statutory references are to the Penal Code unless stated
otherwise.
2
McAlister also contends that a plain-language interpretation
would violate the Equal Protection clause because other resentencing
statutes do not contain an exception to the jury-finding requirement of
section 1170, subdivision (b). Applying a rational basis review, we conclude
the Legislature had reasonable grounds for treating section 1172.75 different
from other resentencing statutes. Accordingly, we find no Equal Protection
violation and affirm the judgment.
PROCEDURAL HISTORY
In 2014, McAlister pleaded guilty to two counts of attempted
murder (§§ 187, subd. (a); 664, subd. (a); counts 1–2), shooting at an occupied
motor vehicle (§ 246; count 3), first degree burglary (§ 460, subd. (a); count 4),
unlawful possession of ammunition (§ 30305, subd. (a)(1); count 5), and
possession of a useable quantity of methamphetamine (Health & Saf. Code, §
11377, subd. (a); count 6) With respect to count 1, McAlister admitted he
personally used a firearm in the commission of the offense. He further
admitted one prison prior allegation.
As part of his plea, and in exchange for the dismissal of
premeditation and deliberation allegations, McAlister agreed to a stipulated
sentence of 25 years in prison as follows: the upper term of nine years on
count 1, plus a consecutive 10-year term for the firearm allegation, plus two
years four months on count 2 (one-third the middle term), plus one year four
months on count 4 (one-third the middle term), plus eight months (one-third
the middle term) on each of counts 5 and 6, plus a consecutive one-year term
for the prison prior allegation.
In 2024, McAlister was resentenced pursuant to section 1172.75.
At the resentencing, the court dismissed his prior prison term enhancement
and reduced his controlled substance conviction to a misdemeanor, reducing
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appellant’s total sentence from 25 years to 23 years 4 months. McAlister
appealed.
DISCUSSION
I.
SECTION 1172.75, SUBDIVISION (D)(4), PERMITS REIMPOSITION OF AN UPPER
TERM SENTENCE WITHOUT A JURY FINDING OR STIPULATION
In 2020, the Legislature amended section 667.5, subdivision (b),
to eliminate the imposition of one-year sentencing enhancements for having
served a recent prison term (a “prison prior”), except for certain sexually
violent offenses. Two years later, the Legislature passed section 1172.75,
which provides a mechanism to retroactively resentence defendants who had
suffered a now-invalid prison prior. (People v. Burgess (2022) 86 Cal.App.5th
375, 379–380.)
That same year, 2022, the Legislature passed Senate Bill 567,
which amended section 1170, subdivision (b), so that a court cannot impose
the upper term of a sentencing triad unless a jury found an aggravating
circumstance true beyond a reasonable doubt, or unless the defendant
stipulated to the facts underlying a finding of aggravation. (People v. Mitchell
(2026) 19 Cal.5th 729, 737–738 (Mitchell).) Settling a split of authority in the
courts of appeal, our high court recently held that a defendant who pleaded to
an upper term before this amendment, but is resentenced afterward, is
entitled to the benefit of the amendment. If the prosecutor refuses to accept a
middle term sentence, the defendant is entitled to withdraw the plea and
proceed to trial. (Id. at p. 735–736.) The court reached this conclusion under
the broad rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada). (Mitchell,
supra, 19 Cal.5th at p. 735.)
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“Because the Estrada rule reflects a presumption about
legislative intent, rather than a constitutional command, the Legislature . . .
may choose to modify, limit, or entirely forbid the retroactive application of
ameliorative criminal-law amendments if it so chooses.” (People v. Conley
(2016) 63 Cal.4th 646, 656.) The question in this appeal is whether the
Legislature chose to do so in the context of a resentencing under section
1172.75.
We conclude it did. The text of section 1172.75 limits the
retroactive application of section 1170, subdivision (b). Section 1172.75,
subdivision (d)(4), states, “Unless 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.” (Italics added.) In
other words, this subsection repeats the substance of section 1170,
subdivision (b), but exempts the application of that rule in cases where the
court originally imposed the upper term. In People v. Brannon-Thompson
(2024) 104 Cal.App.5th 455, 466–467 (Brannon-Thompson), the court found
this language was dispositive: “Giving this language its plain meaning, it is
evident the Legislature intended the new burden of proof amendments to
section 1170, subdivision (b) apply only if the trial court is imposing the
upper term for the first time at a section 1172.75 resentencing.”
We are aware of only one decision that examined the specific
language of section 1172.75 and concluded that a defendant who was
previously sentenced to the upper term must, nevertheless, be resentenced to
the middle or low term. In People v. Gonzalez (2024) 107 Cal.App.5th 312
5
(Gonzalez) the court acknowledged 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.” (Id.
at pp. 328–329.) Nevertheless, it concluded there was another way to
interpret that language: it “simply restrict[s] 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.” (Id. at p. 329.) In other words,
the Gonzalez court read the statute to say that a court may only impose the
upper term on resentencing if the upper term was imposed originally and if
the facts underlying that sentence were proven to a jury or conceded by the
defendant.
The Gonzalez court opted for this latter interpretation under the
doctrine of constitutional avoidance, which provides that a statute should not
be interpreted to violate the Constitution if another interpretation is viable.
(Gonzalez, supra, 107 Cal.App.5th at p. 330.) The potential constitutional
infringement the court identified was the Sixth Amendment right to a jury
trial, though it did not explain precisely how interpreting section 1172.75
according to its plain language would violate the Sixth Amendment. (Ibid.)
Since Gonzalez was decided, at least two decisions have disagreed
with it. (People v. Dozier (2025) 116 Cal.App.5th 700, 716, rev. granted
February 11, 2026, S294597 (Dozier); People v. Mathis (2025) 111
Cal.App.5th 359, 373, rev. granted Aug. 13, 2025, S291628 (Mathis).) As the
court explained in Mathis, it is judicial factfinding that implicates the Sixth
Amendment, and neither McAlister’s original sentence, nor his resentencing,
involved any judicial factfinding. Nor does section 1172.75, subdivision (d),
call for any judicial factfinding. (Mathis, at p. 373; see People v. Lynch (2024)
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16 Cal.5th 730, 759 [“It is the requirement of additional factfinding that
brings the Sixth Amendment into play.”].) In the absence of judicial
factfinding, a trial judge may exercise broad discretion to select a sentence,
“which, ‘everyone agrees,’ encounters no Sixth Amendment shoal.”
(Cunningham v. California (2007) 549 U.S. 270, 294.) As the Dozier court
noted, the Legislature has broad discretion to make ameliorative sentencing
changes that are either not retroactive, partially retroactive, or fully
retroactive. “By not extending the new heightened factfinding requirements
to defendants . . . previously sentenced to an upper term, the Legislature left
them in the same position they were in before resentencing—unable to take
advantage of a non-retroactive ameliorative change in the law.” (Dozier,
supra, 116 Cal.App.5th at p. 716.)
We conclude that the Brannon-Thompson/Mathis/Dozier line of
cases is more persuasive. Gonzalez employed a strained interpretation of the
plain language of section 1172.75, subdivision (d)(4). We think it quite clear
that by prefacing subdivision (d)(4) with “Unless the court originally imposed
the upper term . . .,” the Legislature intended to carve out an exception to the
requirement that a jury finding or a stipulation undergird an upper term
sentence. Although Gonzalez’s strained interpretation may have been
justified in the face of a genuine conflict with the Constitution, we find no
such conflict in the Sixth Amendment because, as other courts pointed out, no
judicial factfinding is involved in reimposing a term previously stipulated to
by the defendant. Accordingly, we hold that there was no error in reimposing
the upper term in McAlister’s resentencing.
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II.
SECTION 1172.75, SUBDIVISION (D)(4), DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE
We must address one additional argument raised by McAlister
that, so far as we can tell, has not been addressed in the published caselaw:
an Equal Protection claim. McAlister contends our interpretation of section
1172.75, subdivision (d)(4), violates the Equal Protection clause of the 14th
Amendment because the language “Unless the court originally imposed the
upper term” does not apply to defendants who are resentenced under other
resentencing provisions. Specifically, McAlister points to resentencing under
sections 1170.18 and 1172.1 as examples of resentencing provisions that do
not contain a similar exception.
“ ‘The concept of the equal protection of the laws compels
recognition of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.’”(In re Gary W.
(1971) 5 Cal.3d 296, 303.) “At core, the requirement of equal protection
ensures that the government does not treat a group of people unequally
without some justification.” (People v. Chatman (2018) 4 Cal.5th 277, 288,
(Chatman).)
“The degree of justification required to satisfy equal protection
depends on the type of unequal treatment at issue. Courts apply heightened
scrutiny when a challenged statute or other regulation involves a suspect
classification such as race, or a fundamental right such as the right to vote,
and accordingly will demand greater justification for the differential
treatment. [Citations.] But when a statute involves neither a suspect
classification nor a fundamental right, the ‘general rule is that legislation is
presumed to be valid and will be sustained if the classification drawn by the
8
statute is rationally related to a legitimate state interest.’” (People v. Hardin
(2024) 15 Cal.5th 834, 847.) McAlister concedes that rational basis is the
appropriate review here.
“The rational basis test is extremely deferential and does not
allow inquiry into the wisdom of government action.” (Las Lomas Land Co.,
LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 858.) The test asks “if
there is any reasonably conceivable state of facts that could provide a rational
basis for the [difference in treatment].” (FCC v. Beach Communications, Inc.
(1993) 508 U.S. 307, 313.) Because the Legislature is not required to
articulate the basis for its decisions, our analysis “may be based on rational
speculation unsupported by evidence or empirical data.” (Id. at p. 315.) It is
ultimately the appellant’s burden to “‘negative every conceivable basis which
might support’” the Legislature’s distinction. (Lehnhausen v. Lake Shore Auto
Parts Co. (1973) 410 U.S. 356, 364.) We will uphold the legislative action
“‘unless the varying treatment of different groups or persons is so unrelated
to the achievement of any combination of legitimate purposes that we can
only conclude that the [Legislature’s] actions were irrational.’” (Gregory v.
Ashcroft (1991) 501 U.S. 452, 471.)
The different groups McAlister points to are defendants
resentenced under section 1172.75, as he was, compared with defendants
resentenced under either section 1170.18 or 1172.1. 2
Section 1170.18 was passed in 2014 as part of Proposition 47,
which reclassified certain theft and drug offenses from felonies to
misdemeanors. Section 1170.18 provides that a person serving a felony
2 We assume, without deciding, that a resentencing under these
provisions would require the court to apply section 1170, subdivision (b).
9
sentence for what was redesignated as a misdemeanor is entitled to
resentencing.
Section 1172.1 provides broad authority for the trial court to
recall and resentence a defendant on its own motion, or at the
recommendation of a law enforcement or prosecutorial agency, and is
generally applied where sentencing laws have changed and the interests of
justice call for resentencing. A defendant is not entitled to petition for recall
and resentencing under this section. (§ 1172.1, subd. (c).) Only the court or
one of the listed law enforcement or prosecutorial agencies may file such a
petition.
We conclude there are at least two rational justifications for
exempting defendants resentenced under section 1172.75 from having their
upper terms revisited pursuant to section 1170, subdivision (b).
First, it seems likely that such a resentencing would create a
large administrative and financial burden that the Legislature could have
concluded was undesirable. Prison-prior enhancements were extremely
common. And the context of section 1172.75 shows that the Legislature was
particularly sensitive to the administrative burden the resentencing scheme
could impose. Section 1172.75 provides no mechanism for a defendant to
initiate a resentencing proceeding and instead required the Department of
Corrections to provide a list of defendants serving a prison prior and required
the court to automatically resentence defendants on the list. (People v. Newell
(2023) 93 Cal.App.5th 265, 268; § 1172.75, subd. (b).) The Legislature
imposed strict deadlines by which that process was to be completed.
(§ 1172.75, subd. (b)–(c).) The Legislature could have reasonably concluded
that it would have been too costly and time consuming to revisit every upper
term sentence pursuant to section 1170, subdivision (b).
10
(See People v. Chatman (2018) 4 Cal.5th 277, 290 [“Preserving the
government’s financial integrity and resources is a legitimate state
interest.”].)
Second, given that prison-priors were usually a small fraction of a
defendant’s overall sentence (particularly for defendants who received an
upper-term felony sentence), the Legislature could have concluded that
defendants who suffered an upper term sentence were undeserving of having
that aspect of their sentence revisited. By contrast, sections 1170.18 and
1172.1 apply respectively to situations where a crime was changed from a
felony to a misdemeanor and where a change in the law rendered an existing
sentence unjust. The Legislature may have deemed those to be weightier
situations that, in the interests of justice, called for a more expansive
resentencing, even for defendants whose crimes previously warranted an
upper term sentence. Those are value judgments the Legislature is entitled to
make, and it is within the Legislature’s broad authority to provide for a
partial resentencing rather than a complete resentencing.
For both reasons, there is no Equal Protection violation.
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DISPOSITION
The judgment is affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
GOODING, J.
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