Full Opinion

Filed 10/23/26 P. v. King CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) THE PEOPLE, C103476 Plaintiff and Respondent, (Super. Ct. No. 06F02788) v. LEONARD MICHAEL KING, Defendant and Appellant. In 2025, defendant Leonard Michael King was resentenced under Penal Code section 1172.75.1 After striking his prior prison term enhancement, the trial court declined to further reduce King’s sentence. On appeal, King contends the trial court erred in imposing the upper term based on aggravating factors that were not stipulated to by him or found true beyond a reasonable doubt by a jury. We will vacate the restitution fine and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND In 2006, King took the victim on a car ride against her will, eventually stopping at his uncle’s house. The uncle got in the backseat with the victim, and King said she would have to have sex with the uncle. King laughed while the uncle raped the victim. The uncle gave King $10. 1 Undesignated statutory references are to the Penal Code. 1 In 2008, a jury found King guilty of rape in concert (§ 264.1; count one) and sexual battery (§ 243.4, subd. (a); count two). In bifurcated proceedings, the trial court found true that King had a prior strike (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony (§ 667, subd. (a)), and a prior prison term (former § 667.5, subd. (b)). The trial court sentenced King to an aggregate prison term of 32 years, as follows: 18 years (the upper term of nine years, doubled due to the strike) on count one; eight years consecutive (the upper term of four years, doubled due to the strike) on count two; five years consecutive for the prior serious felony enhancement; and one year consecutive for the prior prison term enhancement. The court imposed various fines and fees, including a $4,800 restitution fine (§ 1202.4, subd. (b)), a $242.29 main jail booking fee, plus a $27.22 main jail classification fee (Gov. Code, former § 29550.2). This court affirmed the judgment on appeal. (People v. King (Nov. 22, 2011, C065908) [nonpub. opn.].)2 The Department of Corrections and Rehabilitation identified King as eligible for resentencing under section 1172.75. In 2024, the court appointed counsel and ordered briefing. King asked the trial court to shorten his aggregate sentence, dismiss the now- invalid prior prison term enhancement, strike his prior strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; § 1385), and dismiss the prior serious felony enhancement (§ 1385). He argued he did not pose a risk for future violence because he was now 43 years old; had served a lengthy time in custody (18 years); and had taken “meaningful steps” in rehabilitation, including substance abuse recovery, therapy, and anger management classes. In sum, there was “no evidence” that King currently posed “any risk of physical harm to anyone.” In addition, multiple enhancements were alleged, the application of the enhancements resulted in a sentence of more than 20 years, and the 2 On the court’s own motion, we take judicial notice of our prior opinion in case No. C065908. 2 enhancement was based on a prior conviction that was more than five years old. King further noted that the trial court could not impose an upper term unless the aggravating circumstances were either stipulated to by him or found true beyond a reasonable doubt by a trier of fact. The prosecution asked the trial court to dismiss the prior prison term enhancement but otherwise leave the sentence unchanged because any reduction was not in the interest of justice and would endanger public safety. In April 2025, the trial court dismissed the prior prison term enhancement but otherwise left the sentence unchanged, with a new aggregate term of 31 years. The court noted that, despite the changes to section 1170, it could reimpose the upper term under section 1172.75, subdivision (d). In addition, given the prior true finding on the prior prison term enhancement, the court found true beyond a reasonable doubt that King had served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).) That aggravating factor outweighed any other mitigating factor, including King’s youth at the time of the crimes. Under the circumstances, any lesser term was contrary to the interest of justice. The trial court also ordered that all “other terms of the prior judgment remain unchanged and are reimposed exactly as ordered previously, including … all fines and fees,” except the now-invalid jail booking and classification fees. (Gov. Code, former § 29550.2; see Gov. Code, § 6111 [requiring the vacation of any portion of a judgment imposing costs under Gov. Code, former § 29550.2].) The abstract of judgment lists the $4,800 restitution fine. King timely appealed in April 2025. His opening brief was filed in April 2026, and this case was fully briefed on August 3, 2026. 3 DISCUSSION I The Trial Court Did Not Err by Reimposing Upper Term King contends the trial court erred in imposing the upper term based on aggravating factors neither stipulated to nor found true beyond a reasonable doubt by a jury. We disagree for the reasons articulated in People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 at pages 466 to 467, which found the language of section 1172.75, subdivision (d)(4) permits a court to reimpose an upper term regardless of current law requiring a stipulation or jury finding to do so. King asks us to reconsider Brannon- Thompson in light of the constitutional concerns addressed in People v. Gonzalez (2024) 107 Cal.App.5th 312, People v. Lynch (2024) 16 Cal.5th 730, and People v. Wiley (2025) 17 Cal.5th 1069. We reject King’s invitation to diverge from this court’s prior holding. Our Supreme Court has granted review and is poised to resolve this issue. (See People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.) In the meantime, we respectfully disagree with the Gonzalez court’s analysis. “Under the Sixth Amendment, 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.” (Cunningham v. California (2007) 549 U.S. 270, 281.) There is no dispute that, under Lynch, the additional factual determinations required to impose the upper term under section 1170, subdivision (b) implicate the Sixth Amendment right to a jury trial. (People v. Lynch, supra, 16 Cal.5th at pp. 768-769.) As our Supreme Court explained, “under the current statute the aggravating facts used to ‘justify’ an upper term sentence are ‘necessary to [its] imposition,’ [citation] and effectively function like elements of a crime.” (Id. at p. 760.) However, section 1172.75, subdivision (d)(4) “carves out an exception to the general rule that all ameliorative changes to the law must be applied at a section 1172.75 resentencing.” (People v. Brannon-Thompson, supra, 104 Cal.App.5th at p. 458.) Because section 1170, subdivision (b)’s factfinding 4 requirements do not apply when reimposing the upper term during a section 1172.75 resentencing, the Sixth Amendment is not implicated. (See Lynch, at p. 759 [“It is the requirement of additional factfinding that brings the Sixth Amendment into play”]; see also id. at p. 756 [“in this context, what the Sixth Amendment requires is necessarily informed by what the state statutory scheme requires”].) Further, contrary to defendant’s assertion, our Supreme Court’s recent opinion in People v. Wiley, supra, 17 Cal.5th 1069 did not concern whether a court must apply ameliorative changes in the law when reimposing an upper term sentence. Wiley addressed section 1170, subdivision (b)(3), which provides that “the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (See Wiley, at p. 1076.) Wiley interpreted section 1170, subdivision (b)(3) as limited in scope, meaning that “a jury [must] determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.” (Wiley, at p. 1078.) Wiley does not impact a court’s ability to reimpose the upper term pursuant to section 1172.75, subdivision (d)(4). As such, King has failed to demonstrate error. Given our conclusions, we need not reach the People’s alternate argument that the trial court was permitted to impose the upper term based on it finding true beyond a reasonable doubt that defendant had served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).) (See People v. Zapien (1993) 4 Cal.4th 929, 976 [“ ‘ “a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason” ’ ”].) 5 II Restitution Fine Our review of the record revealed that the trial court erroneously reimposed a $4,800 restitution fine under section 1202.4, subdivision (b), despite the fact that King was originally sentenced in 2008. Section 1465.9, subdivision (d) mandates vacating these fines after 10 years. Because King’s fine was imposed more than 10 years ago, any balance is unenforceable and uncollectible by operation of law, and the fine must be vacated. (See People v. Salstrom (2025) 117 Cal.App.5th 596, 599-601 [§ 1172.75 resentencing does not restart § 1465.9’s 10-year clock], review granted Mar. 11, 2026, S295038.) DISPOSITION The judgment is modified to vacate the $4,800 restitution fine pursuant to section 1202.4, subdivision (b). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. /s/ BOULWARE EURIE, J. We concur: /s/ MAURO, Acting P. J. /s/ MESIWALA, J. 6