Filed 6/29/26 P. v. Howard CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B342993

Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. VA132212-01)

DOMINICK ELIJAH HOWARD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Maria Andrea Davalos, Judge. Affirmed.

John Lanahan, 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, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Dominick Elijah Howard
(defendant) contends the trial court erred “in denying [his]
request for a jury trial in the event the court would … reimpose
an upper base term sentence” during resentencing proceedings
pursuant to Penal Code1 sections 1172.1 and 1172.75. Pointing to
a split of authority on the issue (see People v. Gonzalez (2024) 107
Cal.App.5th 312 (Gonzalez) and People v. Brannon-Thompson
(2024) 104 Cal.App.5th 455 (Brannon-Thompson)), and the fact
that the issue is currently pending before the Supreme Court in
People v. Eaton2 (Mar. 14, 2025, C096853) (nonpub. opn.), review
granted May 14, 2025, S289903, defendant urges us to follow
Gonzalez. We disagree.
We affirm.

BACKGROUND3
In 2015, a jury convicted defendant of one count of grand
theft (§ 487, subd. (c); count 1) and one count of second degree
robbery (§ 211; count 2).
The trial court sentenced defendant to an aggregate term of
15 years as a second-strike defendant. Specifically, the court
imposed the high term of five years in count 2, doubled pursuant
to the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12), and

1 Unless otherwise designated, all further statutory
references are to the Penal Code.
2 The Supreme Court granted review in People v. Eaton,
supra, C096853, to resolve the following question: “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))?”
3 Because the facts of the underlying offense are not relevant
to the issues presented, we omit them.

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imposed a five-year enhancement pursuant to section 667, subd.
(a)(1). The court imposed and stayed sentence on a one-year
section 667.5, subdivision (b) enhancement. Sentence on count 1
was stayed pursuant to section 654.
On appeal, we reversed and struck the conviction on count
1 as an unauthorized conviction of both a greater and lesser
included offense. We otherwise affirmed judgment on count 2.
(People v. Howard (Oct. 26, 2016, B262667) [nonpub. opn.].)
In 2022, defendant was identified by the California
Department of Corrections and Rehabilitation (CDCR) as an
individual serving a sentence that may include an enhancement
pursuant to section 667.5, subdivision (b), and therefore eligible
for relief pursuant to section 1172.75. The court appointed
counsel to represent defendant and set the matter for hearing.
On November 5, 2024, defendant, through counsel, filed a
resentencing petition pursuant to sections 1172.75 and 1172.1,
which included (1) a psychiatric report written by Dr. Jack
Rothberg in 2014 at the time of defendant’s original sentencing;
(2) certificates of completion from defendant’s time in custody; (3)
a letter from the Department of Mental Health; (4) “relevant
central file information”; (5) a conditional letter of employment;
and (6) an offer of support services for defendant upon release.
On December 24, 2024, the court held a resentencing
hearing, during which it struck the one-year section 667.5,
subdivision (b) enhancement. The court otherwise reimposed the
same sentence, including the upper term sentence in count 2.
Defendant filed a timely notice of appeal.

DISCUSSION
The trial court did not err in reimposing an upper term
sentence during resentencing pursuant to section 1172.75
A. Relevant facts
Ahead of resentencing, defendant filed a sentencing brief
asking the court to strike the one-year prison prior enhancement
and conduct a full resentencing wherein the court would dismiss

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the prior strike conviction pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, strike the five-year enhancement
imposed pursuant to section 667, subdivision (a)(1), and impose a
lower term sentence on count 2. Relevant here, defendant asked
the court to impose the low term pursuant to section 1170,
subdivision (b)(6) because he “experienced psychological,
physical, or childhood trauma” within the meaning of section
1170, subdivision (b)(6)(A) and he was a youth at the time of the
offense as described in section 1170, subdivision (b)(6)(B).
During the resentencing hearing, defense counsel relied on
Gonzalez, supra, 107 Cal.App.5th 312, and asked the court to
resentence defendant to the low or middle term because “no
aggravating factors were stipulated to or proven beyond a
reasonable doubt by a jury.” Alternatively, defense asked the
court to “strike the nickel prior under [section] 667(a)” because
the “prior District Attorney’s position was not to file those” and
because defendant was 21 years old at the time of the offense and
was 18 years old at the time of his prior strike conviction, and his
sentence of 15 years was “inordinately lengthy” given the
relatively minor nature of the offense. He asked the court to
impose the low term of two years, doubled to four years as a
second striker. In support of the request, defense counsel pointed
to family and community support available to defendant upon his
release. Finally, defense counsel indicated defendant was due to
be released from CDCR custody in July 2025.4

4 According to defendant and, based on our search of the
CDCR’s inmate locator, it appears defendant has been released.
We address the appeal because, while we do not know
defendant’s supervision status, it is possible if he had been
resentenced to the low or middle term, he would have been
released with reduced postrelease supervision. (See People v.
Washington (2026) 117 Cal.App.5th 1057, 1061 [“resentencing
such a subsequently released defendant [is not] an empty
exercise, as it can afford practical relief that includes shortening
the applicable parole term”].)

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 The People opposed defendant’s requests based on the
nature of the offense. Specifically, the victim was 66 years old
and “minding her own business” and defendant’s actions
demonstrated “very poor impulse control.” The People pointed to
the fact defendant was on parole at the time of the instant offense
and had “a significant history for someone … so young.” The
People listed defendant’s criminal history.
The court discussed defendant’s difficult upbringing,
“which nobody should go through,” but the court found defendant
had not done the work in custody to rehabilitate. The court
indicated it “spent a long time reviewing [defendant’s] C[entral]-
file” and expressed concern over defendant’s disciplinary history,
including write-ups as recently as 2024. The court listed many of
defendant’s in-custody infractions, including two 2022 “battery on
a peace officer” offenses. The court noted defendant’s custody has
included time spent in state hospitals and listed some of the
offenses defendant committed there as well. Defendant’s
unsatisfactory behavior in state hospital resulted in defendant
being returned to the custody of CDCR.
Ultimately, the court found defendant “continue[d] to pose
a danger” and found it could not “in good conscience release him
early to the public.” The court struck the now-invalid section
667.5, subdivision (b) enhancement and kept the remainder of
defendant’s sentence intact.
As discussed, on appeal defendant contends the trial court
erred in reimposing the upper term because there were no
aggravating circumstances found beyond a reasonable doubt by
the jury or stipulated to as required by section 1170, subdivision
(b).5 We disagree.

5 We note this is the thrust of defendant’s argument.
However, he frames the issues as a denial of his “request for a
jury trial in the event the trial court would (and did) reimpose”
the upper term on count 2. We find no such request in the record,
and defendant does not point to one.

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 B. Standard of review
We review the trial court’s sentencing decision pursuant to
section 1172.75 for abuse of discretion and “‘“ask whether the
trial court’s findings of fact are supported by substantial
evidence, whether its rulings of law are correct, and whether its
application of the law to the facts was neither arbitrary nor
capricious.”’” (People v. Garcia (2024) 101 Cal.App.5th 848, 857.)
We review issues of statutory interpretation de novo.
(Brannon-Thompson, supra, 104 Cal.App.5th at p. 466.) “Our
goal in reviewing statutory language is to determine the
legislative intent of the statute. [Citation.] ‘Because the
statutory language is generally the most reliable indicator of that
intent, we look first at the words themselves, giving them their
usual and ordinary meaning.’ [Citations.] When the statutory
language is unambiguous, its plain meaning controls.” (Ibid.)
C. Section 1172.75
Section 1172.75, subdivision (a) states, “[a]ny sentence
enhancement that was imposed prior to January 1, 2020,
pursuant to subdivision (b) of Section 667.5 … is legally invalid.”
When a judgment includes such an enhancement, “the court shall
recall the sentence and resentence the defendant.” (§ 1172.75,
subd. (c).) Section 1172.75 requires full resentencing for all
defendants who qualify for recall of sentence under the statute.
(People v. Rogers (2025) 108 Cal.App.5th 340, 361 (Rogers).) The
court may “revisit all prior sentencing decisions” (People v.
Valenzuela (2019) 7 Cal.5th 415, 424–425) and “‘“has jurisdiction
to modify every aspect of the sentence, and not just the portion
subjected to the recall”’” (Rogers, supra, at p. 358).
Section 1172.75, subdivision (d)(1) directs that resentencing
“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” and
“shall not result in a longer sentence than the one originally

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imposed.” The statute requires the court to apply “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)) and provides that the court
“may consider postconviction factors, including, but not limited
to, the disciplinary record and record of rehabilitation of the
defendant while incarcerated, evidence that reflects whether age,
time served, and diminished physical condition, if any, have
reduced the defendant’s risk for future violence, and evidence
that reflects that circumstances have changed since the original
sentencing so that continued incarceration is no longer in the
interest of justice.” (§ 1172.75, subd. (d)(3).)
Finally, “[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.” (§ 1172.75, subd. (d)(4),
italics added.)
D. Section 1170
“The original version of section 1170 … stated that, when a
statute specified three terms, ‘the court shall order imposition of
the middle term, unless there are circumstances in aggravation
or mitigation of the crime.’” (People v. Dozier (2025) 116
Cal.App.5th 700, 710, review granted February 11, 2026,
S294597 (Dozier).) In 2007, Cunningham v. California (2007) 549
U.S. 270 (Cunningham) held California’s determinate sentencing
law violated a defendant’s Sixth Amendment right to a jury trial
by giving the trial judge, rather than the jury, “authority to find
the facts that expose a defendant to an elevated ‘upper term’
sentence.” (Cunningham, supra, at p. 274.) Cunningham
suggested the problem could be remedied by either (1) having the
jury “find any fact necessary to the imposition of an elevated

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sentence,” or (2) by “permit[ting] judges genuinely ‘to exercise
broad discretion … within a statutory range.’” (Id. at p. 294.)
In response to Cunningham, the Legislature followed the
second of the two approaches, amending section 1170, subdivision
(b) to “eliminate the middle term presumption and instead give
the trial court authority to select among any of the three terms as
a matter of discretion and without any judicial factfinding.”
(People v. Lynch (2024) 16 Cal.5th 730, 759 (Lynch).) This is the
statutory provision under which defendant was sentenced.
In 2022, the Legislature amended section 1170, subdivision
(b) to reflect the first of the two Cunningham approaches.
(Lynch, supra, 16 Cal.5th at p. 748.) Thus, under the current
version of section 1170, subdivision (b), when a statute specifies
three possible terms, the middle term is the presumptive
sentence and trial court may “‘impose a sentence exceeding the
middle term only when there are circumstances in aggravation of
the crime that justify the imposition of an upper term sentence,
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.’” (Lynch, supra, at p. 748.) This change “safeguard[s] the
Sixth Amendment jury trial guarantee” by requiring that “‘any
fact that exposes a defendant to a greater potential sentence must
be found by a jury, not a judge, and established beyond a
reasonable doubt, not merely by a preponderance of the
evidence.’” (Lynch, Id., at p. 760, original italics, quoting
Cunningham, supra, 549 U.S. at p. 281.)
E. Analysis
At the time of defendant’s sentencing in 2015, when a
statute specified three possible terms, section 1170, subdivision
(b) provided the choice between the lower, middle, and upper
terms “shall rest within the sound discretion of the court.”
(Former § 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2,
pp. 6–7; see Lynch, supra, 16 Cal.5th at p. 747.) Under this

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provision, the trial court sentenced defendant to an upper term
sentence.
As noted, section 1172.75, subdivision (d)(4) mandates,
upon resentencing, a “court may not impose a sentence exceeding
the middle term” without heightened factfinding requirements,
“[u]nless the court originally imposed the upper term.” (Italics
added.) As noted, Courts of Appeal currently disagree about how
to properly interpret the meaning of this provision, and the issue
is presently pending before the California Supreme Court in
People v. Eaton, supra, C096853, review granted.
In Brannon-Thompson, the court interpreted section
1172.75, subdivision (d)(4) by looking at the plain language. In so
doing, Brannon-Thompson found, in cases where a defendant was
originally sentenced to an upper term, the resentencing court
may reimpose the upper term even if aggravating factors were
not found true beyond a reasonable doubt. (Brannon-Thompson,
supra, 104 Cal.App.5th at p. 458.) The court found, although
section 1172.75, subdivision (d)(2) generally requires the
resentencing court to apply any ameliorative changes in the law
during a section 1172.75 resentencing, subdivision (d)(4) “carves
out an exception to the general rule” and “does not require
aggravating factors to be found true beyond a reasonable doubt if
the upper term was previously imposed.” (Bannon, supra, at
p. 458.) Thus, Brannon-Thompson concluded the “plain meaning”
of the statute makes it “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.” (Id., at pp. 466–
467.)
In Gonzalez, the 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.) However, the Gonzalez court was

9
concerned that “reading an exemption into section 1172.75,
subdivision (d)(4) … and thereby allowing a court to resentence a
defendant to an upper term sentence without proof beyond a
reasonable doubt of aggravating factors, would run afoul of the
Sixth Amendment implications identified in Lynch[, supra, 16
Cal.5th at p. 768].” (Gonzalez, supra, at p. 330.) We find no such
impediment.
When evaluating the two approaches taken in Brannon-
Thompson and Gonzalez, the court in People v. Mathis (2025) 111
Cal.App.5th 359, review granted August 13, 2025, S291628
(Mathis) agreed with Brannon-Thompson’s conclusion and
further concluded the approach did not implicate the Sixth
Amendment as Gonzalez found. (Mathis, supra, at pp. 373–374,
see also People v. Moss (2026) 120 Cal.App.5th 375, 380 [rejecting
Gonzalez and adopting the rationale in Mathis].) The
Mathis court reasoned, when a defendant was originally
sentenced to an upper term prior to 2022, like defendant here,
the statutory scheme “did not run afoul of the Sixth Amendment”
because it authorized the imposition of upper term sentences
without any additional factfinding. (Matthis, supra, at p. 373.)
As a result, where “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, at pp. 373–374.) Thus, according to Mathis, only “for
defendants who did not receive an upper term in their original
sentencing, to ensure that any newly imposed upper term
sentence is consistent with the Sixth Amendment, [did] the
Legislature mandate[] that any such aggravating fact be found
pursuant to the heightened factfinding requirements specified in
Cunningham.”6 (Mathis, supra, at p. 373.) Because defendant’s

6 We note the court in Dozier, went a step further, finding
the Sixth Amendment was not implicated for defendants
sentenced before section 1170 was amended as a result of

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sentence comported with Sixth Amendment requirements set
forth in Cunningham, it “‘encounters no Sixth Amendment
shoal.’” (Lynch, supra, 16 Cal.5th at p. 747.)
Mathis further explained, although “we presume that the
Legislature intends ameliorative changes in sentencing law to
apply in all cases that are nonfinal, including cases which became
nonfinal due to resentencing[] [citation] … the Legislature is also
free to ‘write statutes that provide for a different or more limited
form of retroactivity, or for no retroactivity at all,’ and it may
‘disclaim the application of a new ameliorative law to proceedings
that occur after a defendant’s conviction or sentence has been
vacated.’ [Citations.] Section 1172.75, subdivision (d)(4), does
exactly that. It expresses the Legislature’s intent that the new,
heightened factfinding requirements for aggravating factors do
not apply where the defendant was originally, lawfully sentenced
to an upper term.” (Mathis, supra, 111 Cal. App.5th at p. 374.)
We conclude, pursuant to the plain language of section 1172.75,
subdivision (d)(4), the trial court did not err in reimposing the
upper term during defendant’s resentencing.

DISPOSITION
The judgment upon resentencing is affirmed.

Cunningham. Specifically, the court reasoned the Legislature is
presumed to have been aware of and intended “that, under
section 1172.75, subdivision (d)(4), some defendants previously
sentenced to an upper term based on judicial factfinding could be
resentenced to an upper term without any new heightened
factfinding[; and found t]he Legislature was entitled to make that
choice in enacting this ameliorative legislation.” (Dozier, supra,
116 Cal.App.5th at p. 715, review granted.)

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 CHAVEZ, Acting P. J.

We concur:

RICHARDSON, J.

GILBERT, J.*

* Retired Presiding Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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