In this appeal from a Senate Bill No. 483 resentencing hearing, the Court of Appeal remanded for resentencing, because based on People v. Lynch (2024) 16 Cal.5th 730, the record here did not demonstrate that all facts used to support the reimposition of appellant’s upper term were established as required under section 1170, subdivision (b)(2).

This issue reflects a split within the Courts of Appeal that is under review by the California Supreme Court. Here, the Court of Appeal disagreed that Penal Code section 1172.75, subdivision (d)(4) permits a resentencing court to reimpose an upper term sentence even if aggravating factors were never found true beyond a reasonable doubt. Rather, a defendant resentenced pursuant to section 1172.75 is eligible for the upper term only if it was originally imposed and there are aggravating factors stipulated to by the defendant or proven beyond a reasonable doubt to the trier of fact.