Filed 8/31/26 P. v. Mitchell CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B344395
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138142)
v.
BRYAN MITCHELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Pat Connolly, Judge. Affirmed with directions.
Sarvenaz Bahar, 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, Wyatt E. Bloomfield and Zachary John Crvarich,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Bryan Mitchell appeals from a judgment entered after
resentencing, contending the superior court erred by reimposing the
upper term for his attempted murder conviction. We disagree and
affirm, subject to ordering the abstract of judgment modified to
correct the calculation of Mitchell’s custody credits.
BACKGROUND
In 2015, Mitchell broke into the house of S.S. and assaulted
her. He struck S.S. multiple times on the head and body with a
baseball bat and then raped her.
A jury convicted Mitchell of spousal rape, attempted murder,
and assault with a deadly weapon; found as to each count that
he inflicted great bodily injury; and found he used a deadly and
dangerous weapon while committing the rape and attempted
murder. In a bifurcated proceeding, the court found Mitchell had
suffered a prior conviction under California’s “Three Strikes” law
as well as a prior serious felony conviction, and had served two
separate prison commitments.
The court sentenced Mitchell to 69 years to life in prison,
which included the upper term for the attempted murder
conviction.
We affirmed the conviction on direct appeal but ordered the
trial court to correct the sentence in one respect. (People v. Mitchell
(March 29, 2018, B285079) [nonpub. opn.].)
In 2024, Mitchell petitioned for resentencing pursuant to
Penal Code section 1172.75.1 The resentencing court stated that
other than striking invalid one-year enhancements, the court would
not change Mitchell’s sentence “at all.” Accordingly, the court
struck the enhancements but otherwise left Mitchell’s sentence—
including the original custody credits—intact.
1 Undesignated statutory references are to the Penal Code.
2
Mitchell appealed.
DISCUSSION
A. Resentencing
Mitchell contends the trial court erred in failing to apply
section 1170, subdivision (b)(2), which allows imposition of an upper
term only where aggravating circumstances supporting such a term
are either stipulated or proven beyond a reasonable doubt to a trier
of fact. We disagree.
1. Section 1170
When a statute specifies three terms, subdivision (b) of
section 1170 grants the trial court limited discretion to select the
term. Generally, 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); see People v. Lynch
(2024) 16 Cal.5th 730, 746.)
2. Section 1172.75
Section 1172.75 provides a resentencing procedure that
eliminates sentence enhancements for prior prison terms unless
the prior terms were for sexually violent offenses. If the sentence,
as here, includes such an enhancement, the trial court is required
to recall the sentence and resentence the defendant ab initio.
(§ 1172.75, subd. (c).) Under subdivision (d)(2) of section 1172.75,
in resentencing a defendant the court must apply all ameliorative
changes in the law. Subdivision (d)(2) of section 1172.75
“ ‘ “requires a full resentencing, not merely that the trial court
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strike the newly ‘invalid’ enhancements.” ’ ” (People v. Grajeda
(2025) 111 Cal.App.5th 829, 836.)
Subdivision (d)(4) of section 1172.75 states that “[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.”
3. Brannon-Thompson
In People v. Brannon-Thompson (2024) 104 Cal.App.5th 455,
466, our colleagues in the Third District held that subdivision (d)(4)
of section 1172.75 unambiguously permits a resentencing court to
reimpose an upper term—without heightened factfinding—if it
imposed the term originally. (Brannon-Thompson, supra, 104
Cal.App.5th at pp. 466–467.) The burden of proof requirements
under subdivision (b) of section 1170 “apply only if the trial court is
imposing the upper term for the first time at a section 1172.75
resentencing.” (Brannon-Thompson, supra, at pp. 466–467.)
4. Application
Here, the trial court reimposed the upper term sentence it
had initially imposed. Thus, pursuant to subdivision (d)(4) of
section 1172.75, the court had no obligation to apply the factfinding
requirement set forth in section 1170, subdivision (b).
Mitchell urges us to reject the reasoning of Brannon-
Thompson in favor of the Sixth District’s decision in People v.
Gonzalez (2024) 107 Cal.App.5th 312, 328, 330 (Gonzalez), which
expressly disagreed with Brannon-Thompson. In Gonzalez, the
court reversed the reimposition of an upper term sentence under
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section 1172.75 because the resentencing court had not complied
with the factfinding requirement in section 1170, subdivision (b).
The Gonzalez 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.) The court stated, however,
that “another reasonable interpretation of section 1172.75,
subdivision (d)(4) would simply restrict 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.” (Gonzalez, supra, at p. 329, italics omitted.) Under this
interpretation, only a defendant originally sentenced to the upper
term would be eligible to be resentenced to the upper term, but
even then, the court could not impose the upper term sentence
without proof of aggravating factors beyond a reasonable doubt.
(Ibid.) The Gonzalez court found this interpretation was necessary
to avoid a Sixth Amendment violation under Lynch, which held that
under amended section 1170, subdivision (b), “ ‘a Sixth Amendment
violation occurs when the trial court relies on unproven aggravating
facts to impose an upper term sentence.’ ” (Gonzalez, supra, at
p. 330.)
We disagree with Gonzalez. The construction of
subdivision (d)(4) of section 1172.75 that Gonzalez advances
clashes with the statute’s wording and grammatical structure.
Gonzalez reads the first clause of the subdivision as though
it is appended to the end of the provision by the conjunction
“and.” But the first clause of the subdivision begins with the word
“unless”—a subordinating conjunction that signals an exception—
and the clause appears at the beginning of the provision set off
by a comma, indicating that it modifies the text that follows.
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During Mitchell’s resentencing proceeding, the trial court
permissibly elected to retain the upper term sentence previously
imposed. We thus decline Mitchell’s invitation to follow Gonzalez.
B. Fines and Fees
Mitchell argues the abstract of judgment erroneously included
fines and fees that were not orally pronounced by the court. We
disagree.
The resentencing court expressly stated that it reimposed
Mitchell’s entire sentence but for the one-year priors, impliedly
including the fines and fees imposed in the original judgment.
(Cf. People v. Salstrom (2025) 117 Cal.App.5th 596, 600 [trial
courts have jurisdiction to modify fines at resentencing, but based
on the court’s oral pronouncement, it clearly intended to reimpose
the original restitution fine].) Mitchell concedes that the fines
listed on his most recent abstract of judgment mirror those listed
on the original abstract. Accordingly, the abstract of judgment
accurately reflects the court’s oral pronouncement by reimposing
the fines originally imposed.
C. Custody Credits
Mitchell contends the abstract of judgment produced
upon resentencing failed to include several years of custody credit
earned between his original sentencing in 2019 and resentencing
in 2025. The People concede the point, and we agree. (See People v.
Buckhalter (2001) 26 Cal.4th 20, 23 [when resentencing results in a
modification of a felony sentence during the term of imprisonment,
the trial court must calculate the actual time the defendant has
already served and credit that time against the new sentence].)
We will therefore direct the trial court to amend the abstract of
judgment to reflect Mitchell’s current custody- and good time credit.
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DISPOSITION
The judgment is affirmed. On remand, the superior court is
directed to recalculate custody- and good time credits, prepare an
amended abstract of judgment, and forward a certified copy of the
amended abstract of judgment to the California Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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