Dozier

INTRODUCTION

Penal Code section 1172.751 declares most one-year prior prison term enhancements imposed under section 667.5, former subdivision (b), legally invalid and authorizes the superior court to strike those enhancements and resentence the defendant. Section 1172.75, subdivision (d)(4), states that, when the court resentences the defendant, “[u]nless 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.” Most courts have held that, under section 1172.75, the superior court can reimpose an upper term sentence, even if at resentencing a jury or judge has not found the facts underlying the aggravating circumstances true beyond a reasonable doubt, so long as the trial court that originally sentenced the defendant imposed an upper term. That’s because section 1172.75, subdivision (b)(4), begins with, “Unless the court originally imposed the…