People v. Gromo CA1/3

Filed 11/3/26 P. v. Gromo CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, A170565 Plaintiff and Respondent, v. (Sonoma County JOHN ROBERT GROMO, JR., Super. Ct. No. SCR227001) Defendant and Appellant. John Robert Gromo, Jr. was convicted of numerous offenses stemming from his abuse of multiple victims. Nearly three decades later, the trial court recalled Gromo’s sentence and resentenced him pursuant to section 1172.75 of the Penal Code1 because his sentence included invalid prior prison term enhancements. On appeal, Gromo argues the court erred in reimposing upper term sentences for his offenses and failed to properly award him custody credits. We remand to the trial court for recalculation of the custody credits but otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND Gromo met Rose while he was in prison for sexual battery against a 15- year-old victim. After his release, he lived with Rose and her two younger daughters from October 1991 to April 1994. During that time, he subjected 1 Undesignated statutory references are to the Penal Code. 1 Rose and her daughters to constant physical, emotional, or sexual abuse, and threatened to kill them if they reported him. In May 1994, Gromo met a friend of one of Rose’s daughters and offered her drugs and alcohol until she passed out. She awoke multiple times, realizing Gromo was raping her. In 1996, a jury convicted Gromo of over 30 offenses related to his abuse of Rose and her daughters, and his rape of Rose’s daughter’s friend. Gromo was sentenced to a total aggregate term of 148 years,2 which included upper terms on numerous counts and two one-year prior prison term enhancements under section 667.5, former subdivision (b). (See Stats. 2014, ch. 442, § 10, eff. Sept. 18, 2014.) In 2023, Gromo filed a motion seeking to recall his original sentence and requesting resentencing. He asked to have his two prior prison term enhancements stricken pursuant to section 1172.75 and, based on steps he had taken to improve himself, further sought the imposition of lower terms for many of his offenses. Gromo requested a reduced sentence of 62 years. The People conceded the two enhancements under section 667.5, former subdivision (b), should be stricken, but opposed any further sentence reductions due to Gromo’s “highly dangerous criminal history.” At the resentencing hearing, the trial court struck the two prior prison term enhancements but declined to further reduce Gromo’s sentence. Gromo appeals. 2 The record lacks clarity regarding the length of Gromo’s sentence. One document indicates he was sentenced to 150 years and six months, while others indicate he was sentenced to 148 years. At the time of resentencing, the abstract of judgment reflected Gromo was serving a sentence of 148 years. 2  DISCUSSION Gromo argues the trial court erred in reimposing the upper terms for his offenses when it resentenced him under section 1172.75. He also asserts the court failed to properly award him custody credits in its amended abstract of judgment. A. Resentencing Under Section 1172.75 We review a trial court’s resentencing decision for an abuse of discretion. (People v. Moseley (2024) 105 Cal.App.5th 870, 874.) Questions of statutory interpretation, however, are reviewed de novo. (People v. Braden (2023) 14 Cal.5th 791, 804.) Background and Applicable Law When Gromo was sentenced in 1996, former section 1170, subdivision (b), provided 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’ ” and these circumstances were proven by a preponderance of the evidence. (See People v. Lynch (2024) 16 Cal.5th 730, 746 (Lynch).) This sentencing scheme was later invalidated by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), which held that 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, the authority to find facts that exposed a defendant to an elevated sentence. (Lynch, at p. 747.) As Cunningham explained, except for prior conviction allegations, the Sixth Amendment requires “any fact that exposes a defendant to a greater potential sentence” to be “found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. 281.) In so holding, the high court 3 observed that California could adopt one of two approaches to bring its sentencing scheme into compliance with the Sixth Amendment. (Cunningham, at pp. 293–294; see Lynch, supra, 16 Cal.5th at p. 747, citing Cunningham.) First, it could retain determinate sentencing and call upon the jury to find any fact necessary to the imposition of an elevated sentence. (Cunningham, at p. 294.) Or second, it could permit judges “genuinely ‘to exercise broad discretion’ ” in sentencing “ ‘within a statutory range.’ ” (Ibid.) In response to Cunningham, the Legislature opted for the second approach by amending section 1170 in 2007 to provide that the choice between the lower, middle, and upper terms would “ ‘rest within the sound discretion of the court.’ ” (Lynch, supra, 16 Cal.5th at p. 747.) But as relevant here, the Legislature subsequently changed course and amended section 1170 to reflect its adoption of the first approach. Effective January 1, 2022, section 1170 provides for a presumptive middle term and a heightened burden of proof for an upper term, as follows: “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 [the upper 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) (“§ 1170(b)(2)”); Lynch, at p. 748.) In the same legislative session as its 2022 amendment to section 1170, the Legislature enacted section 1172.75, which invalidated certain prior prison term enhancements and established resentencing procedures for defendants serving terms that included the invalidated enhancements. (See People v. Mathis (2025) 111 Cal.App.5th 359, 371 (Mathis), review granted Aug. 13, 2025, S291628.) 4  As relevant here, section 1172.75 provides that a resentencing under its provisions must “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.” (§ 1172.75, subd. (d)(1).) Moreover, “any other changes in law that reduce sentences or provide for judicial discretion” must be applied “so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) Lastly, section 1172.75 provides an important exception to section 1170(b)(2)’s new burden of proof requirements: “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.” (§ 1172.75, subd. (d)(4) (“§ 1172.75(d)(4)”), italics added.) Analysis Gromo contends the trial court erred in reimposing his upper term sentences based on aggravating factors not found true beyond a reasonable doubt by a jury, as required by section 1170(b)(2). The People respond that section 1170(b)(2)’s factfinding requirements do not apply because section 1172.75(d)(4) creates an exception to this ameliorative change in the law when upper terms were originally imposed on a defendant. The parties’ positions track a current split in the Courts of Appeal. Beginning with People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, (Brannon-Thompson), the weight of authority concludes the heightened burden of proof is required only when a court considers the imposition of an 5 upper term for the first time at a section 1172.75 resentencing hearing; in other words, the heightened burden has no application where an upper term is reimposed after having been imposed in the original sentencing. (Brannon- Thompson, at pp. 466–467; see, e.g., People v. Lua (2026) 121 Cal.App.5th 472, 478 (Lua), review granted Sept. 16, 2026, S297581; People v. Dozier (2025) 116 Cal.App.5th 700, 710–717 (Dozier), review granted Feb. 11, 2026, S294597; Mathis, supra, 111 Cal.App.5th at pp. 371–374.) Only one case— People v. Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez)—holds to the contrary. (See Lua, at p. 478.) 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.) We concur in the majority view. In enacting section 1172.75, the Legislature provided a vehicle for defendants with invalidated prior prison term enhancements to be resentenced. (§ 1172.75, subds. (a), (c).) To this end, the Legislature established various guidelines for how resentencing should occur, including the general requirement that a trial court must apply any ameliorative changes in the law. (§ 1172.75, subds. (c), (d)(2).) Considered in isolation, section 1170(b)(2) embodies one such ameliorative change—it bars the imposition of upper terms unless there are circumstances in aggravation that 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. (See Gonzalez, supra, 107 Cal.App.5th at p. 329.) Importantly, however, the language of section 1172.75(d)(4) stipulates that this new requirement applies “[u]nless the court originally imposed the upper term.” (Italics added.) Giving this language its plain meaning, it is “evident the Legislature intended the new burden of proof amendments to section 1170, subdivision (b) apply only if the trial court is imposing the 6 upper term for the first time at a section 1172.75 resentencing.” (Brannon- Thompson, supra, 104 Cal.App.5th at pp. 466–467, italics added.) Thus, section 1172.75(d)(4) stands as an “exception to the general rule that the trial court must apply ameliorative changes in the law at a section 1172.75 resentencing.” (Brannon-Thompson, at p. 467.) In contending to the contrary, Gromo relies on Gonzalez, which rejects the reasoning of the Brannon-Thompson line of cases. Gonzalez held that “another reasonable interpretation” of section 1172.75(d)(4) is that it merely “restrict[s] the scope of defendants eligible to receive the upper term at resentencing to those who previously received the upper term.” (Gonzalez, supra, 107 Cal.App.5th at p. 329, italics omitted.) Under that interpretation, only defendants who previously received the upper term are eligible for an upper term upon resentencing, and then only if the aggravating factors have been stipulated to by the defendant or proven beyond a reasonable doubt to the trier of fact. (Id. at p. 330.) Gonzalez reasoned this interpretation was necessary to avoid any conflict between section 1172.75 and section 1170(b)(2), and to avoid running afoul of the Sixth Amendment’s prohibition against trial courts relying on unproven aggravating factors to impose an upper term sentence. (Gonzalez, at p. 330.) Like the courts in Lua, Dozier, and Mathis, we find Gonzalez unpersuasive. As discussed, its reasoning is at odds with the plain meaning of section 1172.75 (d)(4). But even assuming the language of the statute could be viewed as ambiguous, the legislative history behind its enactment does not support Gonzalez’s interpretation. When considering the passage of section 1172.75, the Legislature indicated it would “modestly reduce prison and jail populations.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 483 (2021–2022 Reg. Sess.) Apr. 27, 2021, italics added.) The Legislature 7 additionally noted the legislation would result in “[o]ne time costs . . . possibly in the millions of dollars” for trial courts to process the removal of the repealed enhancements with costs to run higher “[i]f a court is required is required to hold a hearing . . . depending on how long it takes to verify the elimination of the enhancement.” (Sen. Rules Com., Off. of Sen. Floor Analysis of Sen. Bill No. 483 (2021–2022 Reg. Sess.) as amended Sept. 1, 2021, italics added.) Nowhere did these analyses state or otherwise indicate that jury or court trials, and the significant costs associated therewith, would be necessitated to establish the requisite aggravating circumstances for defendants who were previously sentenced to upper terms, some of whom like Gromo were sentenced decades earlier. (See, e.g., Sen. Com. on Public Safety, Analysis of Sen. Bill No. 483 (2021–2022 Reg. Sess.) Apr. 27, 2021; Sen. Rules Com., Off. of Sen. Floor Analysis of Sen. Bill No. 483 (2021–2022 Reg. Sess.) Sept. 1, 2021.) Nor are we swayed by Gonzalez’s concern that section 1172.75(d)(4) will run afoul of the Sixth Amendment if it were construed as an exception to the new factfinding requirements in section 1170(b). As pointed out in Dozier, even if defendants were originally sentenced to upper terms under the sentencing scheme that was later invalidated by Cunningham, neither Cunningham nor the amendments to section 1170 apply retroactively to judgments that were already final when these changes in the law occurred. (See Dozier, supra, 116 Cal.App.5th at pp. 715–716.) Indeed, the Legislature is free to “write statutes that provide for a different or more limited form of retroactivity, or for no retroactivity at all.” (People v. Padilla (2022) 13 Cal.5th 152, 162.) It may also “disclaim the application of a new ameliorative 8 law to proceedings that occur after a defendant’s conviction or sentence has been vacated.”3 (Ibid.) In sum, the trial court did not err in reimposing the upper terms in Gromo’s sentence without finding the aggravating factors to be true beyond a reasonable doubt. B. Custody Credits Gromo asserts the trial court failed to award the custody credits he earned since the time of his original sentencing, as required by section 2900.1. The People concede this error. In the absence of any dispute, we remand the matter to the trial court to recalculate Gromo’s custody credits. DISPOSITION The matter is remanded for the recalculation of custody credits. In all other respects, the judgment is affirmed. 3 Having so concluded, we do not address Gromo’s additional argument regarding People v. Wiley (2025) 17 Cal.5th 1069, which determined a trial court violated a defendant’s federal constitutional right to a jury trial when it adjudicated underlying facts related to his prior convictions and improperly relied on these conclusions in choosing to impose an upper term sentence. In any event, Wiley is inapposite as it did not deal with the reimposition of an upper term sentence on a defendant in a section 1172.75 resentencing proceeding. (See id. at p. 1077.) 9  _________________________ Fujisaki, J. WE CONCUR: _________________________ Tucher, P. J. _________________________ Rodríguez, J. People v. Gromo (A170565) 10