People v. Mitchell CA4/1

INTRODUCTION

Kenyatta Mitchell’s 17-year sentence was reduced to 15 years when he

was resentenced under Penal Code1 section 1172.75 and two now-invalid prison prior enhancements under former section 667.5, subdivision (b), were stricken. In resentencing Mitchell, the trial court again imposed an upper term sentence based on prior convictions that were admitted by Mitchell in his original trial. Mitchell claims for the first time on appeal that the resentencing provisions of section 1172.75, subdivision (d), violate his right to equal protection of the laws by treating defendants resentenced under section 1172.75 differently than defendants resentenced under other laws. As a remedy, he seeks a remand for a new resentencing hearing. We conclude Mitchell fails to demonstrate he was personally subjected to the allegedly disparate treatment of which he complains. For this reason, we decline to exercise our discretion to consider his forfeited constitutional challenge; even if we were to consider it, it would fail because Mitchell suffered no prejudice. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2016, a jury found Mitchell guilty of second degree robbery (§ 211). Mitchell then…