Reported / Citable
Background
Hugo Jose Lua was convicted of two carjackings in 2008 and sentenced to 28 years and four months in state prison, including a nine-year upper term on the lead count. That sentence was imposed under the version of Penal Code § 1170(b) then in effect — a post-Cunningham scheme that gave trial courts broad discretion to choose any term in the sentencing triad without a jury finding of aggravating facts.
In 2022, Lua became eligible for resentencing under Penal Code § 1172.75, which retroactively invalidates pre-2020 prison prior enhancements for non-sexually violent offenses and requires recall of affected sentences. His two prison priors were stricken. At a 2024 resentencing hearing, the court also dismissed a five-year prior serious felony enhancement but reimposed the nine-year upper term on the carjacking count, citing seven aggravating circumstances including the violent nature of the crimes, a long history of violent conduct, and prior parole failures.
Lua appealed, arguing that Senate Bill 567’s 2022 amendments to § 1170(b) — which made the middle term presumptive and required a jury finding or stipulation before imposing the upper term — applied at resentencing. He also contended that the court’s consideration of additional or different aggravating factors at resentencing independently triggered the Sixth Amendment’s factfinding requirements under Apprendi v. New Jersey.
The Court’s Holding
The Fourth District Court of Appeal, Division Two, affirmed. The court held that Penal Code § 1172.75(d)(4) contains an unambiguous exception to SB 567’s new factfinding requirements: when the original sentencing court imposed the upper term, a resentencing court may reimpose that same upper term without a new jury finding or defendant stipulation regarding aggravating circumstances.
The statute’s opening clause — “Unless the court originally imposed the upper term” — operates as a carve-out. The court joined the majority of published California appellate decisions (including People v. Dozier, People v. Mathis, and People v. Brannon-Thompson), which read this language as an exemption permitting reimposition of an already-sanctioned upper term, and rejected the contrary reading in People v. Gonzalez. The California Supreme Court is currently reviewing the conflict in People v. Eaton (S289903), so a definitive ruling is pending.
The court also rejected the Sixth Amendment challenge. Because Lua’s original 2008 sentence was imposed under the post-Cunningham amendment to § 1170(b) that gave judges unfettered discretion within the triad, it was constitutionally valid without any jury finding of aggravating facts. The court further held that even if the resentencing court considered additional aggravating factors, that did not restart the Sixth Amendment clock where the upper term was already lawfully in place.
Key Takeaways
- § 1172.75(d)(4) exception: Where the original court imposed the upper term, the resentencing court may reimpose it without a new jury finding or stipulation — even if it considers different or additional aggravating factors.
- SB 567 factfinding applies only to first-time upper term impositions at a § 1172.75 resentencing, not to reimposition of an already-imposed upper term.
- No Sixth Amendment issue where the original upper term was lawfully imposed under the broad-discretion sentencing framework that existed from 2007 through 2021.
- Circuit split still active: The California Supreme Court is reviewing the divided appellate authority in People v. Eaton (S289903) — expect a definitive ruling to displace current case law.
- Practical tip for defense counsel: Meritorious Sixth Amendment arguments at § 1172.75 resentencing are limited to defendants who did not originally receive an upper term; document this at the outset.
Why It Matters
California’s § 1172.75 resentencing process — driven by the Legislature’s 2020 decision to invalidate most prison prior enhancements — has produced thousands of resentencing hearings across the state. Whether those resentencing courts must apply SB 567’s new factfinding requirements to reimpose upper term sentences is a major contested question affecting a large class of defendants. This decision confirms the majority position: defendants who already received the upper term the first time around cannot use resentencing as an opportunity to demand a new jury hearing on aggravating factors.
For criminal defense attorneys, this ruling defines the realistic outer limit of the Sixth Amendment argument in § 1172.75 proceedings. For prosecutors and trial courts, it provides a clear framework: confirm the original sentence included an upper term, and the exception applies. All eyes are now on the California Supreme Court in People v. Eaton, which will resolve the split once and for all.