Filed 8/19/26 P. v. Cunningham CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086271
v. (Super.Ct.No. SWF1200117)
CHRISTOPHER JAMES OPINION
CUNNINGHAM,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam,
Judge. Affirmed.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Arlene A. Sevidal, Christopher P. Beesley, and Connor O. Sakati, Deputy Attorneys
General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Christopher James Cunningham appeals from an order
resentencing him under Penal Code1 section 1172.75. He argues that the court erred by
reimposing the upper term on the principal count, since he did not admit, nor did a jury
find true, any aggravating factors. We affirm.
PROCEDURAL BACKGROUND
On April 19, 2012, defendant entered a plea agreement and pled no contest to
attempted murder (§§ 664/187, count 1) and admitted he personally used a deadly
weapon (§ 12022, subd. (b)(1)), personally caused great bodily injury (GBI) (§ 12022.7,
subd. (a)), committed a hate crime (§ 422.75, subd. (a)), and suffered one prior prison
term (§ 667.5, subd. (b)). In exchange for the dismissal of an allegation that the
attempted murder was deliberate and premeditated and a charge of assault with a deadly
weapon (§ 245, subd. (a)(1)), defendant agreed to the upper term of nine years for the
attempted murder, one year for the weapon enhancement, three years for the GBI
enhancement, the upper term of three years for the hate crime enhancement, and one year
for the prison prior, for a total of 17 years in state prison.
On May 8, 2012, the court sentenced defendant in accordance with the terms of
the plea agreement.
1 All further statutory references will be to the Penal Code, unless otherwise
indicated.
2
On or about May 2, 2023, defendant filed a petition to vacate his attempted murder
conviction pursuant to former section 1170.95, since renumbered to section 1172.6.
Defendant subsequently withdrew this petition.
On October 10, 2023, counsel for defendant filed a resentencing brief, pursuant to
Senate Bill No. 483 (2021-2022 Reg. Sess.), requesting the dismissal of the prison prior
under section 1172.75 and a full resentencing. He specifically requested the court to
modify the sentence on count 1 to the midterm of seven years, since no aggravating
factors were alleged.
On October 16, 2023, the People filed a brief opposing resentencing under
section 1172.75, aside from dismissing the prison prior.
On November 27, 2023, the court held a hearing, recalled the sentence, and struck
the prison prior as invalid, pursuant to section 1172.75. The court sentenced defendant to
16 years in state prison and continued the matter for further resentencing.
On March 11, 2025, defendant filed a supplemental brief, noting that the court
previously struck the invalid prison prior.
On April 7, 2025, the People filed a supplemental opposition to the request for
resentencing.
The court held a further section 1172.75 resentencing hearing on June 2, 2025, and
noted it had reviewed the parties’ briefs. After hearing argument from counsel, the court
noted that defendant was a danger to the community and resentenced him to the upper
term of nine years on count 1, one year on the weapon enhancement (§ 12022,
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subd. (b)(1)), three years on the GBI enhancement (§ 12022.7, subd. (a)), and the middle
term of two years on the hate crime enhancement (§ 422.75, subd. (a)), for a total of
15 years in state prison.
DISCUSSION
The Trial Court Properly Resentenced Defendant
Defendant argues the court erred in imposing the upper term on count 1 when it
resentenced him, since he did not admit, nor did a jury find true, any aggravating factors.
The People respond that section 1172.75, subdivision (d)(4), creates an exception to the
fact-finding requirement for upper term sentences imposed on resentencing when the trial
court originally sentenced the defendant to the same upper term. We agree with the
People.
A. Standard of Review
We review a trial court’s sentencing decisions for abuse of discretion. (People v.
Knowles (2024) 105 Cal.App.5th 757, 765.) A court abuses its discretion when it acts
arbitrarily and capriciously, relies on improper matters, or is unaware of the scope of its
discretion such that it does not exercise its discretion at all. (Id. at p. 765.) We
independently review questions of statutory interpretation implicated by the trial court’s
decisions. (People v. Mathis (2025) 111 Cal.App.5th 359, 366 (Mathis), review granted
Aug. 13, 2025, S291628.)
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B. The Court Did Not Err in Reimposing the Upper Term
Section 1172.75 rendered legally invalid any prior prison term enhancement
imposed before January 1, 2020 (unless the enhancement was imposed for a prior
sexually violent conviction), and it created a resentencing procedure for defendants who
are currently serving sentences that include such an enhancement. (§ 1172.75, subds. (a)-
(c).) Section 1172.75, subdivision (c), requires a court to strike any now-invalid prior
prison term enhancement and recall the defendant’s sentence. Section 1172.75,
subdivision (d), provides instructions for resentencing. Among other things, the
provision requires the court to resentence the defendant under current law, including any
“changes in law that reduce sentences.” (§ 1172.75, subd. (d)(2).)
Effective January 1, 2022, the Legislature made the middle term the presumptive
determinate sentence when a “statute specifies three possible terms.” (§ 1170,
subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.) “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).)
As relevant here, section 1172.75, subdivision (d)(4), provides the following upon
recall and resentencing: “Unless the court originally imposed the upper term, the court
may not impose a sentence exceeding the middle term unless there are circumstances in
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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.)
There is currently a split in the Courts of Appeal regarding whether the new
burden of proof in section 1170, subdivision (b), applies in resentencing a defendant
under section 1172.75, subdivision (d)(4), when the court “originally imposed” the upper
term on the defendant. (Compare People v. Brannon-Thompson (2024) 104 Cal.App.5th
455, 466-467 (Brannon-Thompson) [“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”]; with People v.
Gonzalez (2024) 107 Cal.App.5th 312, 329 (Gonzalez) [the new language in
subdivision (d)(4) of section 1172.75 “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”].) This issue is currently pending before our Supreme
Court. (See People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted
May 14, 2025, S289903.)
Defendant urges us to follow Gonzalez for the proposition that section 1172.75,
subdivision (d)(4), should be read as a restriction and not an exemption, such that only
those who previously received the upper term where the aggravated factors were
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stipulated to or were proven beyond a reasonable doubt to the trier of fact can receive the
upper term at resentencing. However, we agree with Brannon-Thompson that the plain
language of section 1172.75, subdivision (d)(4), creates an exception to the new burden
of proof required by section 1170, subdivision (b), when sentencing a defendant to an
upper term. (See Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466-467; accord
People v. Dozier (2025) 116 Cal.App.5th 700, 713, review granted Jan. 5, 2026, S294597
[“the plain language of section 1172.75, subdivision (d)(4), creates an exception to the
heightened factfinding requirements where the upper term was originally
imposed”]; Mathis, supra, 111 Cal.App.5th at pp. 373-374 [when “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)”].) Thus, until we receive further guidance, we shall follow
the Brannon-Thompson court’s interpretation of section 1172.75, subdivision (d)(4).
We therefore find no error in the trial court’s imposition of the upper term on the
attempted murder conviction.
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DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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