Unreported / Non-Citable
Background
In 2003, Matthew Steven Cross and an accomplice stole a car from a Riverside auto auction lot, took a white truck from a residential driveway, and later carjacked a van from a good Samaritan who stopped to help, simulating a firearm during the offenses. A jury convicted Cross of carjacking and vehicle theft, and the court found true two prior strike convictions for kidnapping and robbery, a prior serious felony, and a prior prison term. The court originally sentenced Cross to 83 years to life, including an indeterminate term of 27 years to life on the carjacking count using the upper term.
Cross's sentence was modified several times. In 2016 the court imposed 27 years to life plus a determinate 14 years; in 2023 it vacated the prior prison term enhancement as legally invalid under section 1172.75, subdivision (a), and resentenced him to 27 years to life plus 13 years. On June 13, 2025, Cross moved to strike his prior strikes and for resentencing under sections 1172.75 and 1385, citing his youth, 23 years incarcerated, and prison programming.
At a July 11, 2025 hearing, the court took the matter under submission. In its July 31, 2025 sentencing order, it declined to strike the strike priors, finding Cross did not fall outside the spirit of the Three Strikes Law given the aggravated offenses, his criminal history, and his failure to address substance abuse and anger risks. The court struck the five-year serious felony enhancement but reimposed the upper term of nine years, tripled to 27 years, on the carjacking count in case No. RIF108334, for an aggregate of 27 years to life. Cross appealed, arguing the court erred in reimposing the upper term without stipulation or proof of aggravating factors under section 1170, subdivision (b), and the Sixth Amendment.
The Court’s Holding
The Court of Appeal affirmed the postjudgment order. Section 1172.75, subdivision (d)(4) provides that unless the court originally imposed the upper term, it may not impose a sentence exceeding the middle term at resentencing. Because Cross's original sentence included the upper term on the carjacking count, the trial court was permitted to reimpose that upper term without factual findings stipulated to or proven beyond a reasonable doubt.
The court acknowledged a split of authority. The Sixth District in People v. Gonzalez reads subdivision (d)(4) merely to limit which defendants are eligible for the upper term while still requiring proof of aggravating factors. This court instead followed the majority view in People v. Lua, Dozier, Mathis, and Brannon-Thompson, which treat subdivision (d)(4) as an exception allowing reimposition of an originally imposed upper term without a stipulation or jury finding of aggravated circumstances.
The first clause of subdivision (d)(4)—'Unless the court originally imposed the upper term'—is a clear and unambiguous exception to the factfinding requirements. Because Cross's original upper term was imposed under a sentencing scheme that fully complied with the Sixth Amendment, no additional factfinding was required, and the record failed to show the trial court did not make an informed decision.
Key Takeaways
- When a defendant was originally sentenced to the upper term, section 1172.75, subdivision (d)(4) lets a resentencing court reimpose that term without aggravating factors stipulated to or proven beyond a reasonable doubt under section 1170, subdivision (b)(2).
- The Fourth District joined the majority of appellate districts in reading subdivision (d)(4) as an exception to the heightened factfinding requirements, rejecting the Sixth District's contrary reading in People v. Gonzalez.
- The California Supreme Court has granted review in People v. Eaton and People v. Dozier on this precise issue, so the conflict remains unresolved pending that decision.
- A court's refusal to strike prior strikes under section 1385 at a section 1172.75 resentencing is reviewed for abuse of discretion and may rest on the offenses' circumstances, criminal history, and unaddressed risk factors.
- The Sixth Amendment is not implicated when the retained upper term was originally imposed under a constitutionally compliant sentencing scheme.
Why It Matters
The decision reinforces the majority view among California appellate courts that section 1172.75, subdivision (d)(4) exempts defendants originally sentenced to the upper term from section 1170, subdivision (b)'s new factfinding requirements, allowing upper terms to be reimposed at resentencing without new jury findings or stipulations where the original upper term was lawfully imposed.
Because the California Supreme Court has granted review in Eaton and Dozier, the split with the Sixth District remains open; until then, trial courts following the majority view may reimpose upper terms without additional factfinding.