Filed 8/25/26 P. v. Reck CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090009
Plaintiff and Respondent,
(Super. Ct. Nos. VCF306715B;
v. VCF285703)
MICHAEL RAY RECK,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Jennifer Conn
Shirk, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary, Darren
K. Indermill, Caitlin M. Franzen and William K. Kim, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
This appeal follows from a resentencing hearing. Appellant Michael Ray Reck
entered a plea agreement in 2014 with a stipulated prison term that included the
admission of a one-year prior prison term, and the imposition of an upper term sentence
for voluntary manslaughter (Pen. Code,1 § 192, subd. (a)) and a firearm enhancement
(§ 12022.5, subd. (a)). Following the passage of Senate Bill No. 136 (2019-2020 Reg.),
the trial court recalled Reck’s sentence and struck the prior prison term enhancement
(former § 667.5, subd. (b)), reducing Reck’s prison sentence to 23 years. We vacated his
sentence on appeal because Reck was not personally present at his resentencing hearing,
and his presence had not been properly waived.
On remand, the trial court reimposed the upper term sentence. Reck did not
stipulate to the presence of any aggravating circumstances, nor were any found true by a
jury, or by a judge following waiver of his right to a jury trial. (See § 1170, subd. (b)(2),
eff. Jan. 1, 2022.) Under the Sixth Amendment, “any fact, beyond the bare fact of a prior
conviction, that exposes a defendant to harsher punishment, must be found by a jury
beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury
trial.” (People v. Wiley (2025) 17 Cal.5th 1069, 1084, italics added.)
Our Supreme Court recently held that “a plea bargain that includes a stipulated
upper term sentence absolves the trial court of its duty to determine that the sentence is
justified by facts found in compliance with section 1170[, subdivision ](b)(2)’s
provisions.” (People v. Mitchell (2026) 19 Cal.5th 729, 744.) However, “this is only true
if the defendant, in entering the plea bargain, validly waives section 1170[, subdivision
](b)’s requirements.” (Ibid.)
The instant case raises the following question: is a waiver of section 1170,
subdivision (b)’s requirements constitutionally required at a section 1172.75 resentencing
hearing when the upper term sentence is reimposed pursuant to a negotiated plea with a
1 All undefined statutory citations are to the Penal Code unless otherwise indicated.
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stipulated prison term (see § 1172.75, subd. (d)(4))? We conclude that because the Sixth
Amendment right to a jury trial is not implicated under these circumstances, a waiver of
section 1170, subdivision (b)’s requirements are not constitutionally compelled.
Reck also raises two challenges to the restitution fines (§ 1202.4) imposed at his
resentencing hearing, including the fact that the unpaid balance of these fines must be
vacated pursuant to section 1465.9, subdivision (d). We agree and will therefore vacate
the section 1202.4 restitution fines. We otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
On September 17, 2014, in case No. VCF285703, Reck pleaded no contest to
voluntary manslaughter (§ 192) and admitted to personally using a firearm in the
commission of the offense (§ 12022.5, subd. (a)). In addition, he admitted to having
served one prior prison term (former § 667.5, subd. (b)).
On October 23, 2014, in case No. VCF306715B, Reck pleaded no contest to two
counts of assault by means of force likely to inflict great bodily injury (§ 245, subd. (a)(4)).
On January 14, 2015, the trial court sentenced Reck to an aggregate determinate
term of 24 years, consisting of 22 years for his conviction in case No. VCF285703, plus
two years for his conviction in case No. VCF306715B. The court also imposed section
1202.4, subdivision (b) restitution fines in the amount of $300 for both cases.2
On June 29, 2023, the trial court recalled Reck’s sentence and struck the prior prison
term enhancement (former § 667.5, subd. (b)), reducing Reck’s prison sentence to 23 years.
On July 24, 2023, Reck filed an unsuccessful petition seeking resentencing on his
conviction for voluntary manslaughter under section 1172.6.
2 The abstract of judgment reflects that Reck was also serving sentences in two
other cases, including case No. PCF258513, wherein the court unstayed a previously
imposed mandatory supervision revocation restitution fine in the amount of $500, and
case No. VCF282249, in which no restitution fine is reflected. The abstract of judgment
from Reck’s subsequent resentencing hearing on April 28, 2025, does not reflect
sentences or fines from these cases.
3.
Reck appealed from the denial of his petition for resentencing and his resentencing
hearing.
On September 10, 2024, we affirmed the denial of Reck’s section 1172.6 petition,
but remanded the matter to the lower court for a full resentencing hearing. (See People v.
Reck (Sept. 10, 2024, F087215) [nonpub. opn.].) Because Reck had received the upper
term sentence for voluntary manslaughter and a gun use enhancement, we observed a
then-existing split of authority regarding whether Senate Bill No. 567 (2021–2022 Reg.
Sess.), which amended section 1170, subdivision (b), applied to his sentence, even
though his sentence was imposed pursuant to a negotiated agreement with a stipulated
term.
On April 18, 2025, the trial court reimposed the upper terms and sentenced Reck
to a prison term of 23 years. The court also imposed $6,300 and $1,200 in restitution
fines in case Nos. VCF285703 and VCF306715B, respectively.
Reck filed a timely notice of appeal.
The Resentencing Hearing
At the 2025 resentencing hearing, trial counsel argued that because Reck had not
stipulated to the presence of any aggravating factors, the court lacked authority to impose
the upper term. The trial court concluded that the law did not support counsel’s argument
because Reck had entered a plea with a stipulated sentence. It explained, “The Court
certainly may find reasons to deviate from the aggravated when there is a stipulated
aggravated term, but we are not required to.”
DISCUSSION
I. THE TRIAL COURT’S IMPOSITION OF UPPER TERMS AT
RESENTENCING
Reck contends the trial court erred by declining to consider imposition of middle
term sentences because Reck had stipulated to the upper term as part of his negotiated
plea agreement. He explains that the court declined to consider whether he (Reck) was
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required to waive section 1170, subdivision (b)’s requirements before reimposing the
upper term sentence. We find no error.
We conclude that Reck has failed to demonstrate reversible error on appeal.
(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Our task is to evaluate the
legal correctness of the trial court’s ruling, rather than its stated rationale. (People v.
Zapien (1993) 4 Cal.4th 929, 976.) In reimposing the upper term, the court here drew an
implied conclusion that Reck was not required to waive section 1170, subdivision (b)’s
requirements. We find no error in that conclusion.
A. Applicable Law
Subdivision (d)(4) of section 1172.75 provides the following:
“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.)
The appeal presents two related questions. First, whether section 1172.75,
subdivision (d)(4) permits a resentencing court to reimpose an upper term sentence
without complying with the factfinding requirements set forth in section 1170,
subdivision (b). Second, if subdivision (d)(4) is construed to permit reimposition of a
prior upper term without new jury findings or a stipulation by the defendant, whether that
construction is consistent with the Sixth Amendment right to a jury trial. (See Apprendi
v. New Jersey (2000) 530 U.S. 466, 490 [“[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt”].) There is a split of
authority among the California appellate courts on these issues.
In People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon-
Thompson), our colleagues in the Third Appellate District examined the plain language of
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subdivision (d)(4) of section 1172.75, and concluded that if the trial court had originally
sentenced the defendant to the aggravated term and the court reimposes that term, the
People are not required to prove aggravating factors beyond a reasonable doubt at a
section 1172.75 resentencing hearing. (Brannon-Thompson, supra, at pp. 466–467.) The
court reasoned that subdivision (d)(4) is “an exception to the general rule that the trial
court must apply ameliorative changes in the law at a section 1172.75 resentencing.” (Id.
at p. 467.)
Brannon-Thompson’s conclusion has been adopted by at least three other appellate
courts in published opinions. (See People v. Mathis (2025) 111 Cal.App.5th 359, 373–
374 [concluding that section 1172.75, subdivision (d)(4), does not require additional
factfinding when the court retains an upper-term sentence that was lawfully imposed
under the prior version of section 1170, subdivision (b)];3; People v. Dozier (2025) 116
Cal.App.5th 700, 715 [holding that a defendant sentenced to an upper term before section
1170 was first amended to comply with Apprendi could be resentenced to that term under
section 1172.75 without additional factfinding]; People v. Moss (2026) 120 Cal.App.5th
375, 380 [concluding “the Legislature intended subdivision (d)(4) to limit the otherwise
broad, ameliorative scope of a section 1172.75 resentencing, and that the Legislature
3 Until 2007, section 1170, former 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; Stats.
1998, ch. 926, § 1.5.) Cunningham v. California (2006) 549 U.S. 270 held that this
scheme violated the Sixth Amendment right to a jury trial because it allowed a
defendant’s sentence to be increased beyond the statutory maximum based on a fact not
admitted or found true by a jury. (Cunningham v. California, supra, at pp. 274–275.)
To remedy this violation, the Legislature amended section 1170, subdivision (b) to
eliminate the middle term as the presumptive term and provide courts with “broad
discretion” to choose the term. (§ 1170, former subd. (b), enacted by Sen. Bill No. 40
(2007–2008 Reg. Sess.) Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.)
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could so limit the scope of relief for defendants with already-imposed, proper upper term
sentences without generating new constitutional concerns under Apprendi”].)
The Sixth District Court of Appeal reached a contrary conclusion in People v.
Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez) holding that section 1172.75,
subdivision (d)(4) limits the pool of defendants eligible for the upper term at resentencing
rather than creating a freestanding exception to section 1170, subdivision (b)’s
requirements. (Gonzalez, supra, at p. 329.) Under the Gonzalez court’s interpretation, “a
defendant would be eligible for the upper term but could not receive it in the absence of
aggravating factors stipulated to by the defendant or proven beyond a reasonable doubt to
the trier of fact.” (Ibid.)
Relying upon our Supreme Court’s decision in People v. Lynch (2024) 16 Cal.5th
730 (Lynch), the court in Gonzalez explained that “ ‘[T]he aggravating facts that would
“justify” an upper term sentence [citation] are the same facts that “expose” the defendant
to imposition of that sentence in the trial court’s discretion. [Citation.] Stated another
way, under the current statute the aggravating facts used to “justify” an upper term
sentence are “necessary to [its] imposition,” [citation], and effectively function like
elements of a crime. [Citation.]’ ” (Gonzalez, supra, 107 Cal.App.5th at p. 330, citing
Lynch, supra, at p. 760.)
The Gonzalez court concluded that a defendant has a Sixth Amendment right to a
jury trial on aggravating facts, and interpreting subdivision (d)(4) of section 1172.75 as
an exception to section 1170’s requirements (see, e.g, Brannon-Thompson, supra, 104
Cal.App.5th at p. 458) would permit the trial court to circumvent Sixth Amendment
requirements. (Gonzalez, supra,107 Cal.App.5th at p. 330.)
Gonzalez further reasoned that subdivision (d)(2) of section 1172.75 “directs the
resentencing court to ‘apply any other changes in law that reduce sentences or provide
judicial discretion so as to eliminate disparity of sentences and … promote uniformity of
sentencing.’ (Italics added.) It therefore would follow that ‘changes in law’ would
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include the current version of section 1170, subdivision (b)(2), which became effective
January 1, 2022.” (Gonzalez, supra, 107 Cal.App.5th at p. 329.)
This split of authority is imminently pending resolution by our Supreme Court,
which has granted review to address the following issue: “May a trial court reimpose a
previously imposed upper term sentence under Penal Code section 1172.75, subdivision
(d)(4) where the facts underlying one or more aggravating circumstances were neither
stipulated to by the defendant nor found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial (cf. Pen. Code, § 1170, subd. (b)(2); id., § 1172.75,
subd. (d)(2))?” (People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review
granted May 14, 2025, S289903.)4
Our Supreme Court recently addressed section 1170, subdivision (d)’s
requirements where there is a stipulated sentence, albeit in a different context than the
instant case. In Mitchell, the appellant entered into a negotiated agreement with a
stipulated sentence. (Mitchell, supra, 19 Cal.5th at p. 735.) On direct appeal from
Mitchell’s judgment of conviction, Mitchell argued that the court was required to comply
with section 1170, subdivision (b)(1) and (2)’s requirements before an upper term
sentence may be imposed, which became effective during the pendency of her appeal.
(Mitchell, supra, at p. 735.)
Our Supreme Court held, “a plea bargain that includes a stipulated upper term
sentence absolves the trial court of its duty to determine that the sentence is justified by
facts found in compliance with section 1170(b)(2)’s provisions. But this is only true if
the defendant, in entering the plea bargain, validly waives section 1170(b)’s
requirements.” (Mitchell, supra,19 Cal.5th at p. 744.) The court continued, “ ‘[a]bsent
the finding and articulation of such justification and facts, or a valid waiver of these new
4 As of the filing of this opinion, the case is fully briefed, but argument has not been
scheduled.
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requirements, the imposition of the aggravated term is outside the discretion of the
sentencing court under newly amended section 1170, subdivision (b).’ ” (Id. at pp. 744–
745.) The court explained that such a waiver must comply with the requirements for
waiving a constitutional right. (Ibid.; see Blakely v. Washington (2004) 542 U.S. 296,
310 [“If appropriate waivers are procured, States may continue to offer judicial
factfinding as a matter of course to all defendants who plead guilty”].)
Mitchell is clear: a stipulated upper term plea satisfies section 1170, subdivision
(b) if and only if the defendant validly waived those requirements. Without a valid
waiver, the stipulation alone does not authorize the court to reimpose the upper term at
resentencing. However, it is less clear whether Mitchell controls this appeal, which
stands in a very different procedural posture.
This appeal arises from a resentencing hearing under section 1172.75. Section
1172.75 is an ameliorative resentencing provision enacted as a legislative act of lenity.
(See generally, Brannon-Thompson, supra, 104 Cal.App.5th at p. 466.)
Under Dillon v. United States (2010) 560 U.S. 817, the Sixth Amendment right to
a jury trial on aggravating facts does not apply to such proceedings. Dillon explained that
ameliorative resentencing proceedings are not constitutionally compelled—they are
legislative acts of lenity. Any factfinding in such proceedings therefore affects only the
court’s exercise of discretion within the original sentencing range and does not increase
punishment beyond what was originally authorized. Apprendi has no application under
the circumstances. (Dillon, supra, at p. 828.) Other cases which have addressed
postconviction resentencing statutes have reached similar conclusions. (See, e.g., People
v. James (2021) 63 Cal.App.5th 604, 611 [“Apprendi does not apply because the [section
1172.6] procedure is designed solely to permit the reduction of a defendant’s
punishment”]; People v. Bradford (2014) 227 Cal.App.4th 1322, 1334 [finding Apprendi
does not apply in the context of postconviction section 1170.126 proceedings].)
9.
Mitchell’s waiver requirement rests on the Sixth Amendment foundation discussed
in Lynch, which provides that absent a stipulation or a valid waiver, aggravating facts
supporting the upper term must be found true by a jury beyond a reasonable doubt.
(Mitchell, supra , 19 Cal.5th at p. 738, discussing Lynch, supra, 16 Cal.5th at pp. 755–
767.) Because that constitutional right does not apply in the context of section 1172.75
resentencing proceedings, we conclude that Mitchell’s waiver framework has no
foundation here.
Accordingly, we find the trial court was not required to obtain a valid waiver of
section 1170, subdivision (b)’s requirements before reimposing the upper term at Reck’s
section 1172.75 resentencing hearing. Reck’s assertion to the contrary is unpersuasive.
II. THE RESTITUTION FINES
Reck raises two challenges to the restitution fines imposed at resentencing. First,
he contends the court erred by increasing the restitution fines originally imposed.
Second, he asserts that the remaining balance of the fines must be vacated under section
1465.9, subdivision (d). Both contentions have merit.
A. Background
The abstract of judgment and minute order from the original sentencing hearing on
January 14, 2015, reflect that the court-imposed restitution fines of $300 in case Nos.
VCF285703 and VCF306715B.
On June 29, 2023, the court struck the prison priors, reducing Reck’s total
sentence to 23 years. The court reimposed restitution fines of $300 in case Nos.
VCF285703 and VCF306715B.
On April 18, 2025, following remand from this court’s unpublished opinion in
People v. Reck, supra, F087215 the trial court reimposed the 23-year determinate term.
However, the court imposed increased restitution fines in the amount of $6,300 in case
No. VCF285703 and $1,200 in case No. VCF306715B.
10.
B. Analysis
1. The Increased Restitution Fines Violate Double Jeopardy
Section 1202.4, subdivision (b) requires that when “a person is convicted of a crime,
the court shall impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the record.” “A
restitution fine under section 1202.4 constitutes punishment.” (People v. Kopp (2025) 19
Cal.5th 1, 13, italics omitted.)
California’s prohibition against double jeopardy precludes the imposition of a
more severe punishment on resentencing when a defendant successfully appeals a
criminal conviction. This includes imposing a greater restitution fine than what was
originally imposed. (People v. Hanson (2000) 23 Cal.4th 355, 357.) That is precisely
what occurred here.
The court originally imposed restitution fines of $300 in each case. At the April
18, 2025 resentencing hearing, the court increased those fines to $6,300 and $1,200
respectively. Because the increased fines constitute more severe punishment imposed at
resentencing, they violate double jeopardy.
However, we need not reduce the fines, since the balance of the fines must be
vacated. Our analysis is detailed below.
2. The Balance of the Fines Must be Vacated
Effective January 1, 2025, section 1465.9 was amended to add subdivision (d),
which provides: “Upon the expiration of 10 years after the date of imposition of a
restitution fine pursuant to [s]ection 1202.4, the balance, including any collection fees,
shall be unenforceable and uncollectible and any portion of a judgment imposing those
fines shall be vacated.” (See Assem. Bill No. 1186 (2023-2024 Reg. Sess.); Stats. 2024,
ch. 805, § 1.)
The Attorney General agrees that Reck is entitled to have his restitution fines
vacated pursuant to section 1465.9, subdivision (d). We agree as well.
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The 10-year period runs from the date of imposition of the restitution fines.
Reck’s section 1202.4, subdivision (b) restitution fines were originally imposed on
January 14, 2015. More than 10 years have elapsed since that date. Accordingly, the
remaining balance of the restitution fines, including any outstanding collection fees, is
unenforceable and uncollectible, and the portion of the judgment imposing those fines
must be vacated.
DISPOSITION
The judgment is modified to vacate the restitution fines imposed pursuant to
section 1202.4, subdivision (b), pursuant to section 1465.9, subdivision (d). The trial
court is directed to prepare an amended abstract of judgment reflecting the modification
and to forward the amended abstract to the Department of Corrections and Rehabilitation
and any other appropriate entities. In all other respects, the judgment is affirmed.
FRANSON, Acting P. J.
WE CONCUR:
DE SANTOS, J.
HARRELL, J.
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