People v. Willis CA2/4

Filed 10/27/26 P. v. Willis CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B342644 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA136041) v. NORVALLE MAURICE WILLIS, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa P. Magno, Judge. Affirmed in part and remanded with directions. Gloria C. Cohen, 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, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.  INTRODUCTION In 2015, a jury found defendant Norvalle M. Willis guilty of two counts of attempted voluntary manslaughter (counts 1 and 2) and one count of possession of a firearm by a felon (count 5). As to counts 1 and 2, the jury found true firearm allegations. In a bifurcated proceeding, the trial court found true a prior prison term allegation within the meaning of Penal Code section 667.5.1 In 2025, the trial court resentenced defendant pursuant to section 1172.75, striking the now-invalid prior prison term enhancement. The court then stayed the sentence on count 5 but otherwise reimposed the original sentence, which included the upper terms on count 1 and the related firearm enhancement. On appeal, defendant contends the trial court erred by reimposing the upper terms without finding aggravating factors admitted by defendant or proven beyond a reasonable doubt by a trier of fact. We are not persuaded. Additionally, the Attorney General argues and defendant agrees that the trial court erred in staying the sentence on count 5. We agree as well. Accordingly, we remand the matter for resentencing on count 5 but otherwise affirm the judgment. 1 All further statutory references are to the Penal Code. 2  PROCEDURAL HISTORY2 I. Conviction and Sentence In 2015, a jury found defendant guilty of two counts of attempted voluntary manslaughter. (§§ 664, 192, subd. (a), counts 1 and 2.)3 As to counts 1 and 2, the jury found true the firearm allegations. (§ 12022.53, subds. (b)-(d).) The jury further found defendant guilty of one count of possession of a firearm by a felon (§ 29800, subd. (a), count 5). In a bifurcated proceeding, the trial court found true the prior prison term allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of 19 years and six months in state prison, consisting of: as to count 1, the upper term of five years and six months plus 10 years for the firearm enhancement under section 12022.53, subdivision (b); as to count 2, one year (reflecting one-third the mid-term of three years) plus 16 months for the firearm enhancement under section 12022.53, subdivision (b); as to count 5, eight months (reflecting one-third the mid-term of 24 months) plus one year for the prior prison term enhancement under section 667.5, subdivision (b).4 2 We omit a fact statement because it is not necessary to discuss the facts of the underlying case to resolve the issues on appeal. 3 As to counts 1 through 4, the jury acquitted defendant of attempted murder (§§ 664, 187, subd. (a)). As to counts 3 and 4, the jury also acquitted defendant of the lesser included crime of attempted voluntary manslaughter (§§ 664, 192, subd. (a)). 4 The trial court mistakenly stated the total term was 19 years, 10 months, but the minute order and abstract of judgment correctly note that it was 19 years, six months. 3  On appeal, a different panel of this division affirmed the judgment but modified the sentence as to counts 1 and 2 by striking the terms imposed under section 12022.53, subdivision (b) and reimposing the same terms under section 12022.5, subdivision (a). (People v. Willis (Dec. 21, 2016, B267863) [nonpub. opn.].) The 10-year term for the firearm enhancement under section 12022.5, subdivision (a) in count 1 remained the upper term sentence. II. Resentencing Defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Defendant, through appointed counsel, filed a petition to recall and resentence. In the petition, defendant asked the trial court to strike the now-invalid prior prison term enhancement and impose the low term for count 1 and the accompanying firearm enhancement. The People filed a response to the petition, opposing resentencing defendant other than dismissing the now-invalid prior prison term enhancement. The parties submitted supplemental briefs addressing defendant’s risk to public safety. In November 2024, the trial court held a resentencing hearing. After argument, the court struck the one-year prior prison term enhancement and stayed the sentence on count 55 but otherwise imposed the original sentence, which included the upper terms for count 1 and the accompanying firearm enhancement. The court noted that section 1172.75, subdivision (d)(4), did not require a trier of fact to find, beyond a reasonable doubt, any aggravating 5 It appears the trial court misspoke at the hearing, indicating that the sentence would be stayed on count 3, instead of count 5. As noted, defendant was acquitted of count 3 at trial. The parties do not dispute the court intended to stay the sentence on count 5. The stay as to count 5 is reflected in the resentencing minute order and amended abstract of judgment. 4 factors in order to reimpose the upper terms at resentencing. Defendant was resentenced to 17 years, 10 months in state prison. Defendant timely appealed. DISCUSSION I. Reimposing the Upper Terms Defendant argues the trial court violated his Sixth Amendment rights by reimposing the upper terms on count 1 and the accompanying firearm enhancement because any aggravating factors were neither admitted by him nor found true by a jury beyond a reasonable doubt. We review the court’s resentencing decision for abuse of discretion (People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628 (Mathis)) and questions of statutory interpretation de novo (People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 856). A. Statutory Framework Previously, section 667.5, subdivision (b), required trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant served a separate prior prison term and had not remained free of custody for at least five years. (Former § 667.5, subd. (b); People v. Renteria (2023) 96 Cal.App.5th 1276, 1282; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) However, with the enactment of Senate Bill No. 136 (effective Jan. 1, 2020), the Legislature amended subdivision (b) of section 667.5 to impose a one-year enhancement only for each prior term served for a conviction of a sexually violent offense. (Stats. 2019, ch. 590, 5 § 1.) “Enhancements based on prior prison terms served for other offenses became legally invalid.” (People v. Burgess (2022) 86 Cal.App.5th 375, 380 (Burgess).) The Legislature later enacted Senate Bill No. 483, effective January 1, 2022, making the changes implemented by Senate Bill No. 136 retroactive by adding former section 1171.1 (now section 1172.75) to the Penal Code. (See Stats. 2021, ch. 728, § 1; accord, Burgess, supra, at p. 380; accord, People v. Monroe (2022) 85 Cal.App.5th 393, 399.) Section 1172.75, subdivision (c) requires the trial court to recall an applicable sentence and resentence the defendant. Section 1172.75, subdivision (d)(1), mandates that the trial court impose “a lesser sentence than the one originally imposed . . . unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” At resentencing, the court “shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Id., subd. (d)(2).) The court may also consider post-conviction factors, including the defendant’s disciplinary record, his rehabilitation, and his age and physical condition affecting any risk for future violence, among other factors. (Id., subd. (d)(3).) “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.” (Id., subd. (d)(4), italics added.) 6  Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.) amended section 1170, subdivision (b) to prohibit imposition of a sentence that exceeds the middle term where a statute specifies three possible terms. (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) permits imposing the upper term “only when there are circumstances in aggravation of the crime that justify the imposition of a term ... 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.” B. Interpretation of Section 1172.75, Subdivision (d)(4) There is currently a split of authority whether section 1172.75, subdivision (d)(4), permits the reimposition of the upper term at resentencing without the applicable aggravating factors being found true beyond a reasonable doubt by a trier of fact or stipulated to by a defendant.6 Defendant’s argument falls directly in line with People v. Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez). The Gonzalez court held that subdivision (d)(4) of section 1172.75 should be read as a restriction and not an exception, meaning that only those defendants that had previously received the upper term where the aggravating factors were stipulated to or were proven beyond a reasonable doubt by the trier of fact could then receive the upper term at resentencing. Gonzalez is the only published opinion that has endorsed this interpretation. 6 The issue is currently before our Supreme Court in People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903. 7  We disagree with Gonzalez. Rather, we agree with the majority of appellate courts, including those in our district, that construe subdivision (d)(4) as an exception to the factfinding requirement of section 1170, subdivision (b). (People v. Lua (2026) 121 Cal.App.5th 472, review granted Sept. 16, 2026, S297581; People v. Moss (2026) 120 Cal.App.5th 375, 380, review granted July 22, 2026, S296595; People v. Salstrom (2025) 117 Cal.App.5th 596, 599, review granted Mar. 11, 2026, S295038; People v. Dozier (2025) 116 Cal.App.5th 700, 713, review granted Feb. 11, 2026, S294597; Mathis, supra, 111 Cal.App.5th at pp. 373–374; People v. Brannon- Thompson (2024) 104 Cal.App.5th 455, 458 (Brannon-Thompson).) Section 1172.75, subdivision (d)(4), by starting with the phrase “[u]nless the court originally imposed the upper term,” indicates that there are two rules for imposing an upper term on resentencing: one rule for those with prior upper term sentences and another rule, involving heightened factfinding, for those without. Based on the plain language of section 1172.75, subdivision (d)(4), “it is evident the Legislature intended the new burden of proof of 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.” (Brannon-Thomas, supra, at pp. 466-467.) And when the Legislature expresses its intent that an ameliorative change not apply “ ‘to proceedings that occur after a defendant’s conviction or sentence has been vacated,’ ” as it did with section 1172.75, subdivision (d)(4), we must follow its intent. (Mathis, supra, at p. 374, quoting People v. Padilla (2022) 13 Cal.5th 152, 162.) Here, the trial court imposed the upper terms at the original sentencing, and by the plain language of section 1172.75, subdivision (d)(4), 8 could do so again without a reasonable doubt finding or defendant’s stipulation.7 C. Sixth Amendment Defendant contends that section 1172.75, subdivision (d)(4) would violate the Sixth Amendment unless it were interpreted to make the heightened factfinding requirement under section 1170, subdivision (b), applicable to cases in which the defendant was originally sentenced to the upper term. When defendant was originally sentenced in 2015, his sentence was imposed pursuant to a prior version of section 1170, subdivision (b), that granted the trial court broad discretion to select any of the three applicable prison terms. (See § 1170, former subd. (b), enacted by Sen. Bill No. 40 (2007-2008 Reg. Sess.), Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) “That sentencing scheme . . . was one that ‘ “everyone agrees”’ raised no Sixth Amendment concerns.” (Mathis, supra, 111 Cal.App.5th at p. 371, citing People v. Lynch (2024) 16 Cal.5th 730, 747.) “The . . . statutory scheme under which [defendant] was sentenced had long been in effect at the time that the Legislature established the section 1172.75 resentencing procedures applicable here. As a result, it was not necessary for the Legislature to impose the heightened factfinding requirement for defendants . . . who originally received upper term sentences under the prior version of section 1170, subdivision (b). (Mathis, supra, at p. 373.) As discussed, “[t]hat sentencing scheme fully complied with the Sixth Amendment.” (Ibid.) Accordingly, we reject defendant’s contention that the exception in section 7 We do not address whether the trial court’s decision to impose the high terms was an abuse of discretion as defendant does not raise this issue on appeal. 9 1172.75, subdivision (d)(4) “must be construed, as a matter of constitutional avoidance, to nonetheless require aggravating factors to be found by the factfinder or admitted by the defendant.” (Ibid.) Therefore, we conclude defendant’s argument lacks merit. II. Staying the Sentence on Count 5 The Attorney General contends, and defendant agrees, that the trial court was not permitted to stay the sentence on count 5. We agree as well. “[W]hen the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendants appeal is pending, the appellate court should remand the case for a proper sentence.” (People v. Benton (1979) 100 Cal.App.3d 92, 102.) “It is well settled, for example, that the court acts in ‘excess of its jurisdiction’ and imposes an ‘unauthorized’ sentence when it erroneously stays . . . execution of a sentence . . . .” (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) At resentencing, the trial court expressed its intention to “give [defendant] a little break but not what [his] attorney [was] requesting.” We note that defendant did not request any relief as to count 5. The court then elected to “stay” the eight-month sentence on count 5. This was an unauthorized sentence as the court failed to articulate a statutory basis during pronouncement of sentence and the abstract of judgment does not reflect the 10 statutory basis.8 Therefore, we remand to the trial court so it may impose a proper sentence on count 5.9 DISPOSITION The matter is remanded for resentencing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ZUKIN, P. J. We concur: TAMZARIAN, J. DAUM, J. 8 In the abstract of judgment, count 5 is erroneously identified as an “incomplete sentence.” 9 We decline the Attorney General’s invitation to direct the trial court to impose a sentence on count 5 or strike the conviction. (See § 1385.) We express no view on how the court should exercise its sentencing discretion. 11