Background
John Robert Gromo, Jr. was convicted in 1996 of more than 30 offenses involving abuse of multiple victims and was sentenced to an aggregate term that included upper terms on numerous counts and two one-year prior prison term enhancements under former section 667.5(b). The opinion notes that the record lacks clarity regarding the length of Gromo's sentence, with one document indicating 150 years and six months and others indicating 148 years, and that at the time of resentencing the abstract of judgment reflected 148 years. In 2023, Gromo sought recall and resentencing under section 1172.75, asking that the two enhancements be stricken and that lower terms be imposed on many offenses based on his rehabilitative efforts.
The prosecution agreed that the two prior prison term enhancements should be stricken but opposed further reductions because of Gromo's criminal history. At the resentencing hearing, the trial court struck the two prior prison term enhancements but declined to further reduce Gromo's sentence. On appeal, Gromo challenged the upper terms because the aggravating facts had not been found true beyond a reasonable doubt under section 1170(b)(2), and he also contended that the amended abstract of judgment failed to award custody credits earned since the original sentencing.
The Court’s Holding
The Court of Appeal rejected the upper-term challenge and joined the majority view in the existing appellate split. It explained that section 1172.75 generally requires application of ameliorative sentencing changes, but subdivision (d)(4) expressly qualifies the new factfinding requirement with the phrase "Unless the court originally imposed the upper term." Reading that language according to its plain meaning, the court concluded that the heightened burden applies when an upper term is imposed for the first time at a section 1172.75 resentencing, not when an originally imposed upper term is reimposed.
The court found the contrary interpretation in People v. Gonzalez unpersuasive. It reasoned that Gonzalez conflicted with the statutory text and was not supported by legislative history, which did not indicate that jury or court trials would be needed to establish aggravating circumstances for defendants previously sentenced to upper terms. The court also rejected the Sixth Amendment concern, explaining that Cunningham and the section 1170 amendments do not retroactively apply to judgments already final when those changes occurred, and that the Legislature may limit the retroactivity of ameliorative laws.
The court therefore held that the trial court did not err by reimposing the upper terms without finding the aggravating factors true beyond a reasonable doubt. It did not separately resolve Gromo's additional argument based on People v. Wiley, stating that Wiley did not concern reimposition of an upper term in a section 1172.75 proceeding. On custody credits, the prosecution conceded error under section 2900.1, so the court remanded for recalculation and affirmed the judgment in all other respects.
Key Takeaways
- Section 1172.75(d)(4) permits reimposition of an originally imposed upper term without the new beyond-a-reasonable-doubt findings required by section 1170(b)(2).
- The court aligned itself with Brannon-Thompson, Lua, Dozier, and Mathis rather than the contrary interpretation in Gonzalez.
- The opinion treats the statutory exception as supported by both the plain text and the absence of legislative-history indications that new aggravating-fact trials would be required.
- The Sixth Amendment argument failed because the relevant sentencing changes did not retroactively reopen final judgments, and the Legislature could define a narrower ameliorative remedy.
- The only relief ordered was a remand to recalculate custody credits, with the judgment otherwise affirmed.
Why It Matters
The decision adds another unpublished appellate opinion to the majority side of a recognized split over how section 1172.75(d)(4) interacts with section 1170(b)(2). Its practical distinction is between imposing an upper term for the first time at resentencing and reimposing one from the original judgment. The opinion also identifies the issue as pending before the California Supreme Court, so it resolves Gromo's appeal without suggesting that the broader legal conflict has been finally settled.
The limited disposition is equally important: striking the invalid enhancements and rejecting the upper-term challenge did not end the case, because the undisputed custody-credit error required further trial-court calculation.