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March 20, 2026 Get Citation Alerts Download PDF Add Note

People v. Fite CA2/3

California Court of Appeal

• Citations: None known
• Docket Number: B340187

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.2K)

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Combined Opinion

Filed 3/20/26 P. v. Fite CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B340187

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA056886
v.

DEON STACEY FITE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Kristen Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
The superior court resentenced appellant Deon Stacey Fite
under Penal Code section 1172.75.1 On appeal, he challenges the
court’s imposition of the upper term for his conviction of robbery
without complying with the factfinding requirement of section
1170, subdivision (b). But section 1172.75, subdivision (d)(4)
allows an exception to the factfinding requirement if the upper
term was previously imposed as it was for Fite’s original
sentence. We also reject Fite’s argument that the superior court
was unaware of its discretion to impose a term on the lesser
firearm enhancement under section 12022.5, instead of the 10-
year term it imposed for the enhancement under section
12022.53, subdivision (b).
The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts2
On July 20, 2012, Fite entered a gas station store in
Lancaster, California. He “swept” his gun through the inside of
the store and pointed it at a customer. Fite next pointed the gun
at the cashier’s head and demanded money. Fite took cash from
the register, as well as a red envelope which contained additional
cash and a laminated two-dollar bill. Before leaving, Fite told
everyone to lie down and put their hands on the back of their
heads.

1 All further undesignated statutory references are to the
Penal Code.
2 We refer to the factual background from the opinion in
People v. Fite (Apr. 23, 2014, B249434) [nonpub. opn.], which
affirmed the judgment of conviction.

2
Fite was arrested at a nearby apartment complex with a
gun, the red envelope, and the laminated two-dollar bill.
II. Procedure
A. Trial court proceedings
On May 3, 2013, a jury convicted Fite of second degree
robbery (§ 211; count 1) and assault with a firearm (§ 245, subd.
(a)(2); count 2). As to the robbery, the jury found allegations true
for personal use of a firearm under sections 12022.53, subdivision
(b) and section 12022.5, subdivision (a). As to the assault, the
jury found the firearm allegation true under section 12022.5,
subdivision (a) only. The jury also convicted Fite of possession of
a firearm by a felon (§ 29800, subd. (a)(1); count 4).
Fite admitted that he previously sustained one conviction
for the prior serious felony conviction enhancement (§ 667, subd.
(a)(1)), one felony conviction under the Three Strikes law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)), and one conviction for
which he served a prior prison term (§ 667.5, subd. (b)).
On June 13, 2013, the trial court sentenced Fite. For the
robbery conviction, the court imposed 20 years, calculated as the
upper term of five years, doubled pursuant to the Three Strikes
law, plus 10 years for the firearm enhancement under section
12022.53, subdivision (b). For the possession of a firearm by a
felon conviction, the court imposed a consecutive term of one year
and four months, calculated as one-third the mid-term of two
years, doubled pursuant to the Three Strikes law. The court
imposed and stayed 18 years pursuant to section 654 for the
assault and the firearm enhancement. The court imposed an
additional five years for the prior serious felony conviction
enhancement and one year for the prior prison term

3
enhancement. The total aggregate term was 27 years and four
months.
Fite timely appealed. On April 23, 2014, another panel of
this court affirmed the judgment.3
B. Resentencing
On July 26, 2024, the superior court conducted a
resentencing hearing pursuant to section 1172.75 after receiving
correspondence from the Department of Corrections and
Rehabilitation. The court dismissed the prior prison term
enhancement. It also struck the prior serious felony conviction
enhancement, finding it was improperly based on a prior
sustained juvenile petition. The court denied Fite’s request to
strike the prior felony conviction under the Three Strikes law.
The superior court reimposed the upper term on the
robbery conviction and doubled it pursuant to the Three Strikes
law. It also reimposed the additional 10-year term for the
firearm enhancement under section 12022.53, subdivision (b).
For the possession of a firearm by a felon conviction, the court
reimposed a consecutive one year and four months. For the
conviction of assault with the firearm and the firearm
enhancement, it reimposed and stayed 18 years pursuant to
section 654. The total aggregate term was reduced to 21 years
and four months.

3 People v. Fite, supra, B249434.

4
DISCUSSION
I. Resentencing under section 1172.75
Fite contends that the superior court erred by reimposing
the upper term for his robbery conviction when resentencing him
under section 1172.75. He reasons that reimposition of the upper
term violated section 1170, subdivision (b) because no
aggravating circumstance was admitted by him, stipulated to by
the parties, or found true beyond a reasonable doubt by the court
or a jury. We disagree.
A. Exception under section 1172.75, subdivision
(d)(4)
Effective January 1, 2020, Senate Bill No. 136 (2019–2020
Reg. Sess.) amended section 667.5 by restricting the prior prison
term enhancement to sentences for sexually violent offenses.
(Stats. 2019, ch. 590, § 1.) It invalidated prior prison term
enhancements for other offenses. (People v. Burgess (2022) 86
Cal.App.5th 375, 379–380 (Burgess).)
Effective January 1, 2022, Senate Bill No. 483 (2021–2022
Reg. Sess.) made the changes by Senate Bill No. 136 retroactive
and added former section 1171.1, now section 1172.75, which
provided a mechanism for resentencing defendants whose
sentences included terms on the invalid enhancements. (Stats.
2021, ch. 728, §§ 1, 3; Stats. 2022, ch. 58, § 12.) Under the
resentencing procedure, the Department of Corrections and
Rehabilitation identifies defendants currently serving a term for
a judgment that included the invalid enhancement and forwards
their information to the superior courts. Upon verification of
eligibility of relief, the superior court recalls the sentence and

5
conducts a resentencing hearing. (Burgess, supra, 86 Cal.App.5th
at p. 380.)
Section 1172.75, subdivision (d)(2) requires the court to
“apply any other changes in the law that reduce sentences or
provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing.” Effective
January 1, 2022, Senate Bill No. 567 amended section 1170,
subdivision (b) to prohibit imposition of a sentence exceeding the
middle term when a statute specifies three possible terms.
(Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2)
permits imposing the upper term “only when there are
circumstances in aggravation of the crime that justify the
imposition of a term . . . exceeding the middle term, and the facts
underlying those circumstances 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.”
The resentencing provision under section 1172.75 provides
an exception to the factfinding requirement of section 1170,
subdivision (b). Section 1172.75, subdivision (d)(4) states:
“Unless 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.”
The first clause—“Unless the court originally imposed the upper
term”— provides an exception for defendants who were originally

6
sentenced to the upper term from the second clause’s factfinding
requirement.
According to the court in People v. Brannon-Thompson, the
plain language of section 1172.75, subdivision (d)(4) indicates
that the factfinding requirement under section 1170, subdivision
(b) applies only if the court is imposing the upper term for the
first time. (People v. Brannon-Thompson (2024) 104 Cal.App.5th
455, 466–467.) Brannon-Thompson concluded that section
1172.75, subdivision (d)(4) permits the court to reimpose an
upper term sentence even if a factfinder never found an
aggravating factor beyond a reasonable doubt. (Brannon-
Thompson, at p. 458.)
We agree with this interpretation of section 1172.75,
subdivision (d)(4), and see no ambiguity in it. (People v. Cornett
(2012) 53 Cal.4th 1261, 1265 [when interpreting a statute, “[t]he
plain meaning controls if there is no ambiguity in the statutory
language”].)
B. No Sixth Amendment violation
The court in People v. Gonzales (2024) 107 Cal.App.5th 312,
328–329, acknowledged that the plain language of section
1172.75, subdivision (d)(4) could be interpreted as it was in
Brannon-Thompson. But Gonzalez concluded that permitting
imposition of the upper term without a stipulation to, or a jury
finding of, an aggravating circumstance beyond a reasonable
doubt would violate the Sixth Amendment. (Gonzales, at pp.
329–330; People v. Lynch (2024) 16 Cal.5th 730, 759.) Under the
Sixth Amendment, “any fact that exposes a defendant to a
greater potential sentence must be found by a jury, not a judge,
and established beyond a reasonable doubt.” (Cunningham v.
California (2007) 549 U.S. 270, 281 (Cunningham).) Gonzalez

7
interpreted section 1172.75, subdivision (d)(4) as only restricting
eligibility to receive the upper term at resentencing to those who
previously received the upper term. But according to Gonzalez,
section 1172.75, subdivision (d)(4) does not permit a court to
entirely circumvent the factfinding requirement. (Gonzalez, at p.
329.)
People v. Mathis addressed this Sixth Amendment issue.
(People v. Mathis (2025) 111 Cal.App.5th 359, 372–373, review
granted Aug. 13, 2025, S291628 (Mathis).) In Mathis, the version
of section 1170, subdivision (b) in effect at the time of the
defendant’s original sentence in 2017 granted the trial court
broad discretion to select any of the three prison terms provided
for the offense.4 The middle term was not presumptive and no
requirement existed for a jury or a court to find a particular fact
to justify imposition of the upper term. Section 1170, subdivision
(b) did not violate the Sixth Amendment because an additional

4 Until 2007, section 1170, former subdivision (b) provided
that “the court shall order imposition of the middle term, unless
there are circumstances in aggravation or mitigation of the
crime.” (§ 1170, former subd. (b); Stats. 1977, ch. 165, § 15; Stats.
1998, ch. 926, § 1.5.) Cunningham held that this scheme violated
the Sixth Amendment right to a jury trial because it allowed a
defendant’s sentence to be increased beyond the statutory
maximum based on a fact he or she did not admit or not found
true by a jury. (Cunningham, supra, 549 U.S. at pp. 274–275.)
To remedy this violation, the Legislature amended section
1170, subdivision (b) to eliminate the middle term as the
presumptive term and provide courts with “broad discretion” to
choose the term. (§ 1170, former subd. (b), enacted by Sen. Bill
No. 40 (2007–2008 Reg. Sess.); Stats. 2007, ch. 3, § 2, eff. Mar. 30,
2007.)

8
factual determination was unnecessary to impose a greater
sentence.
According to Mathis, because this same statutory scheme
was in effect when the Legislature established section 1172.75,
the heightened factfinding requirement was not necessary for
defendants who originally received the upper term. (Mathis,
supra, 111 Cal.App.5th at p. 373, review granted.) These
defendants would have been sentenced under the prior version of
section 1170, subdivision (b), which provided courts with the
broad discretion that allowed them to dispense with the
heightened factfinding requirement. (Mathis, at p. 373, review
granted.) Under this version of section 1170, subdivision (b), an
upper term sentence would have complied with the Sixth
Amendment when originally imposed. (Mathis, at pp. 373–374.)
When resentencing under section 1172.75, a court need not
engage in any additional factfinding if the upper term was
originally imposed. 5
The Supreme Court granted review in a nonpublished case
to decide the split of authority created by Brannon-Thompson
and Gonzalez and will have the final say over whether section
1172.75, subdivision (d)(4) permits a court to reimpose an upper
term sentence without satisfying the factfinding requirement of

5 Fite cites People v. Wiley (2025) 17 Cal.5th 1069 to argue
that imposing the upper term without a jury finding of an
aggravating factor is an error of “constitutional dimension.” But
Wiley discussed the right to a jury determination of a fact related
to a prior conviction to impose an upper term sentence. (Id. at p.
1076.) Fite acknowledges that Wiley addressed a different issue
than that raised by the statutory exception for reimposing the
upper term without a jury finding of an aggravating
circumstance.

9
section 1170, subdivision (b). (Mathis, supra, 111 Cal.App.5th at
pp. 372–373, fn. 6, review granted [referring to People v. Eaton
(Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14,
2025, S289903].) Until then, we agree with Brannon-Thompson
and Mathis and decline to follow Gonzalez. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.)
II. Discretion to impose a term for the firearm
enhancement under section 12022.5
Fite argues that the superior court abused its discretion by
failing to consider imposing a term for the firearm enhancement
under section 12022.5, rather than imposing the 10-year term for
under section 12022.53, subdivision (b). He asserts that the court
was unaware of its discretion to impose a term for the firearm
enhancement under section 12022.5, subdivision (a), as
recognized by the Supreme Court in People v. McDavid (2024) 15
Cal.5th 1015 (McDavid). We reject Fite’s argument.
A. Applicable law and analysis
When first enacted in 1997, section 12022.53 mandated the
imposition of “ ‘substantially longer prison sentences’ ” for the use
of firearms in the commission of specific crimes. (People v. Garcia
(2002) 28 Cal.4th 1166, 1172 [quoting Stats. 1997, ch. 503, § 1].)
The original version mandated 10 years, 20 years, or 25 years to
life, depending on whether the offender personally used,
discharged, or discharged a firearm causing great bodily injury or
death. It also prohibited striking the punishment or dismissing
the enhancement.
In 2017, the Legislature enacted Senate Bill No. 620 (2017–
2018 Reg. Sess.), amending section 12022.53, subdivision (h) to
remove the prior prohibition against striking the punishment or

10
dismissing the enhancement. (People v. Tirado (2022) 12 Cal.5th
688, 696 (Tirado).)
The Supreme Court in Tirado further expanded a court’s
authority under section 12022.53, subdivision (j), after striking
an enhancement for personal discharge causing great bodily
injury or death (§ 12022.53, subd. (d)) which was alleged in the
accusatory pleading and found true by a jury. In such a
situation, that provision allowed the court to impose a lesser
included firearm enhancement for personal use (id., subd. (b)) or
personal discharge (id., subd. (c)). (Tirado, supra, 12 Cal.5th at
p. 700.)
In 2024, McDavid expanded Tirado to permit a sentencing
court—upon striking the section 12022.53 enhancement under
subdivision (h)—to impose a lesser included, uncharged firearm
enhancement under a law other than section 12022.53, if it is
supported by facts that have been alleged and found true.
(McDavid, supra, 15 Cal.5th at pp. 1021, 1030.)
For two years prior to McDavid, the courts of appeal were
divided over whether a sentencing court could substitute an
uncharged section 12022.5 enhancement for a charged section
12022.53 enhancement found true by a jury or admitted by the
defendant. (Compare People v. Fuller (2022) 83 Cal.App.5th 394,
400; People v. Johnson (2022) 83 Cal.App.5th 1074, 1082, with
People v. Lewis (2022) 86 Cal.App.5th 34, 36, 42.)
As Fite concedes, McDavid predated Fite’s resentencing by
nearly three months. Even if the superior court was unaware of
McDavid, at least one line of cases recognized a sentencing
court’s discretion to impose the lesser enhancement for roughly
two years before Fite’s resentencing.

11
We presume the trial court understood its discretion and
applied the pertinent law, unless the record demonstrates
otherwise. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390
(Gutierrez); People v. Thomas (2011) 52 Cal.4th 336, 361.) During
Fite’s resentencing hearing, the superior court stated that it was
“aware of all of the changes in the law that have occurred since
the original sentencing on June 13th of 2013, and has exercised
its discretion in the way that it feels most appropriate to arrive at
the most appropriate sentence.” Fite describes the superior
court’s declaration as “hyperbolic.” But he fails to point out
anything in the record that questions the court’s declaration or
suggests it was unaware of its discretion under McDavid or
Fuller and Johnson. (People v. Lee (2017) 16 Cal.App.5th 861,
866–867.)
The superior court’s other sentencing decisions establish a
“clear indication . . . that it would be idle” to remand. (Gutierrez,
supra, 58 Cal.4th at p. 1391; People v. Salazar (2023) 15 Cal.5th
416, 431.) The court dismissed the prior prison term
enhancement under section 667.5, subdivision (b) and the prior
serious felony conviction enhancement under section 667,
subdivision (a)(1) only because they were invalid. It had multiple
options to otherwise reduce the sentence. First, it could have
entirely stricken the 10-year term for the section 12022.53,
subdivision (b) enhancement. Second, the court could have
stricken the prior conviction under the Three Strikes law. Third,
it could have imposed the lower or middle term for the robbery
conviction. Fourth, the court could have imposed a concurrent
sentence for the possession of a firearm by a felon conviction.
This option would have reduced the sentence by a mere year and
four months. By declining to reduce the sentence in any of these

12
ways, the court demonstrated its unwillingness to reduce the
sentence by imposing the lesser included firearm enhancement
under section 12022.5, subdivision (a).
B. Ineffective assistance of counsel claim
We also reject Fite’s claim that his attorney provided
ineffective assistance of counsel for not requesting that the court
impose a lesser term for the firearm enhancement under section
12022.5.
To establish ineffective assistance of counsel, Fite “ ‘must
show that counsel’s performance was deficient.’ (Strickland [v.
Washington (1984) 466 U.S. 668, 687 ].)” (People v. Ledesma
(1987) 43 Cal.3d 171, 216.) He must also show a “reasonable
probability” that he would have received a more favorable result
had counsel’s performance not been deficient. (Strickland, at pp.
693–694; Ledesma, at pp. 217–218; People v. Mai (2013) 57
Cal.4th 986, 1009.)
Fite has not cited anything in the record to suggest the
superior court was inclined to impose anything less than the 10-
year term required for an enhancement under section 12022.53,
subdivision (b). As stated, the court had at least four other
options to reduce the sentence, including one that would have
reduced the sentence by only one year and four months. But it
chose to impose the maximum term available. We conclude it
was not reasonably probable that Fite would have received a
more favorable result if his counsel had requested a lesser term
for the firearm enhancement under section 12022.5.

13
DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HANASONO, J.

We concur:

EDMON, P. J.

ADAMS, J.

14