Filed 6/24/26 P. v. Adams CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102518
Plaintiff and Respondent,
(Super. Ct. No. 11F01280)
v.
TORREY LEVARR ADAMS,
Defendant and Appellant.
Defendant Torrey Levarr Adams was resentenced pursuant to Penal Code1
section 1172.75. After striking defendant’s prior prison term enhancements, the trial
court declined to further reduce defendant’s sentence. On appeal, defendant claims the
trial court erred by (1) declining to dismiss a firearm enhancement, or otherwise reduce
it; (2) reimposing an upper term sentence without a jury finding aggravating factors
affiliated with that conviction true; (3) reimposing defendant’s restitution fine 10 years
after it was originally imposed; and (4) failing to prepare and transmit an abstract of
judgment pertaining to defendant’s indeterminate sentence.
We agree with defendant that his restitution fine must be vacated and accordingly
modify the judgment. Because the fine is vacated, the court will need to amend
defendant’s abstract of judgment related to his indeterminate sentence, making that issue
1 Further undesignated section references are to the Penal Code.
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moot. In all other respects, we disagree with defendant and affirm the judgment as
modified.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, defendant shot Antonne Nelms in the neck during a drive by shooting;
Nelms later died. Defendant admitted to being the shooter. At the time defendant was
taken into custody, he was in possession of a loaded revolver and cocaine. A jury
subsequently found defendant guilty of second degree murder, possession of cocaine for
sale, and being a felon in possession of a firearm. The jury also found defendant
personally and intentionally discharged a firearm causing death during the murder and
possessed a firearm while possessing cocaine for sale. The trial court later found true two
prior prison term enhancements. Defendant was initially sentenced to 20 years to life in
prison for second degree murder and 25 years to life for the attached firearm
enhancement; four years for possessing cocaine for sale and five years for the attached
firearm enhancement; two years for being a felon in possession of a firearm, stayed
pursuant to section 654; and one year for each of the two prior prison term enhancements.
Defendant’s aggregate sentence was 45 years to life plus 11 years and included $10,000
of restitution fines under section 1202.4, subdivision (b).
In 2024, defendant was identified as a person who could be resentenced under
section 1172.75. Defendant requested the trial court strike the firearm enhancement
attached to his murder conviction under section 1385. The trial court explained that, if it
found the dismissal would endanger public safety, the court did not need to inquire
further. Then the trial court acknowledged its duty to consider defendant’s threat to
public safety at the time defendant would be eligible for parole in 2031, as well as the
date defendant expected to be eligible if his 25-year firearm enhancement were stricken,
which was anticipated to be “much earlier.” The trial court noted that, if it did not find
defendant was a danger to public safety, it would determine if dismissal of the firearm
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enhancement would be in the interest of justice. The trial court then identified that
multiple enhancements had been found true in defendant’s case.
The trial court found dismissal of the 25-year firearm enhancement would
endanger public safety given defendant’s rule violations while in prison and the
callousness and severity of his crime. As to defendant’s rules violations, the trial court
noted defendant’s argument he had been rehabilitated but also questioned the good faith
nature of his attempts to rehabilitate while “continu[ing] to engage in misconduct while
in custody,” pointing to defendant’s multiple rule violations in prison. Recent violations
classified as serious occurred in 2017, 2019, 2021, and 2024; in the most recent incident,
defendant was found guilty of a repeat violation of possessing a cell phone. While
defendant contested the truth and severity of the rule violations, the court accepted the
disciplinary findings as true.
Given the trial court’s public safety finding, it also found substantial credible
evidence of countervailing aggravating factors weighed against dismissal. It further
explained, “[E]ven if the [c]ourt were not to make [the adverse public safety] finding, the
[c]ourt would still balance the aggravating factors against the mitigating factors.” Based
on this reasoning, the trial court found “dismissal of the enhancement [was] not in the
furtherance of justice.” The court continued its analysis, acknowledging its authority to
strike the 25-year enhancement and impose a lesser sentence; however, it specifically
found “any lesser enhancement would also endanger public safety.”
Accordingly, the trial court reimposed defendant’s original sentence except for
striking two prior prison term enhancements, for an aggregate sentence of 45 years to life
plus nine years. The court also confirmed and reimposed all previous terms, conditions,
fines and fees, and admonishments in accordance with the original sentence.
Defendant appeals.
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DISCUSSION
Under section 1172.75, defendants are entitled to resentencing when they have a
prior prison term enhancement. (§ 1172.75, subds. (a)-(c).) “[S]ection 1172.75 requires
a full resentencing, not merely that the trial court strike the newly ‘invalid’
enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) Resentencing
must occur under current law in accordance with section 1172.75, subdivision (d)(2).
I
The Trial Court Did Not Abuse Its Discretion
By Declining To Reduce Or Strike The Firearm Enhancement
Defendant contends the trial court abused its discretion by failing to reduce or
strike the 25-year firearm enhancement attached to his murder conviction. We disagree.
We review the trial court’s decision not to strike a sentence enhancement under
section 1385, subdivision (c) for an abuse of discretion. (People v. Gonzalez (2024)
103 Cal.App.5th 215, 225.) “ ‘[A]n abuse of discretion arises if the trial court based its
decision on impermissible factors … or on an incorrect legal standard.’ ” (Ibid.) When
utilizing the correct standard and permissible facts, “a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Section 1385, subdivision (c)(1) provides, “[T]he court shall dismiss an
enhancement if it is in the furtherance of justice to do so.” “In exercising its discretion
under this subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating circumstances” listed in the
statute “are present.” (§ 1385, subd. (c)(2).) Presence of any of “these [mitigating]
circumstances weighs greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public safety.” (Ibid.)
“ ‘Endanger public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious danger to others.” (Ibid.)
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Our Supreme Court explained, “[I]f the court does not conclude that dismissal
would endanger public safety, then mitigating circumstances strongly favor dismissing
the enhancement. But ultimately, the court must determine whether dismissal is in
furtherance of justice. This means that, absent a danger to public safety, the presence of
an enumerated mitigating circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial, credible evidence of
countervailing factors that ‘may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement is not in furtherance of
justice.’ ” (People v. Walker (2024) 16 Cal.5th 1024, 1036.) Thus, “ ‘the ultimate
question before the trial court remains whether it is in the furtherance of justice to dismiss
an enhancement.’ ” (Id. at p. 1033.)
Defendant argues the trial court used the wrong standard when declining to
dismiss the 25-year firearm enhancement because it believed it was not required to
perform a furtherance of justice analysis if it found dismissal of the enhancement would
endanger public safety. Our Supreme Court has observed that “in most cases, ‘if the trial
court finds that dismissal of an enhancement would endanger public safety, then it is hard
to see how dismissal would further the interests of justice,’ notwithstanding the
applicability of any mitigating factors identified in [section 1385,] subdivision (c)(2).”
(People v. Walker, supra, 16 Cal.5th at p. 1033.) Our Supreme Court, however, was also
clear that a furtherance of justice analysis is required in every section 1385,
subdivision (c) analysis. (Walker, at p. 1033.) Thus, the trial court misstated the
applicable law when describing the standard. The court, however, accounted for this
possibility and expressly found, even if it had not made the adverse public endangerment
finding, countervailing aggravating factors existed to support its finding that dismissal of
the 25-year enhancement was not in the furtherance of justice. Because the trial court
made express findings under the correct standard, the court misstating the applicable
standard did not constitute error. (See People v. Mayfield (1993) 5 Cal.4th 142, 196 [“the
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court correctly applied the law [citation], even if it did not correctly and consistently
pronounce it”].) Because the court ultimately applied the correct standard, we do not
need to address defendant’s argument regarding the proper weight to afford the factors in
light of an endangerment finding or the proper standard for assessing future
dangerousness under section 1385, subdivision (c)(2).
As to the trial court’s determination under the correct standard, defendant argues
the court still abused its discretion because it did not give sufficient weight to defendant’s
postsentence rehabilitative efforts and the Legislature’s intent to reduce prison sentences,
instead focusing on defendant’s danger to public safety, the circumstances of the
underlying offense, and defendant’s rule violations. The record reflects the trial court
identified that multiple enhancements had been found true in defendant’s case. Given the
trial court’s acknowledgment, we presume it complied with the law and gave that factor
great weight in its furtherance of justice balancing analysis. (§ 1385, subd. (c)(2)(C);
People v. Caparrotta (2024) 103 Cal.App.5th 874, 905 [“ ‘In the absence of evidence to
the contrary, we presume that the court “knows and applies the correct statutory and case
law” ’ ”].) Further, the trial court considered defendant’s risk to public safety at the time
of his potential release and considered his rehabilitative efforts, making defendant’s true
argument a complaint about the way in which the court balanced the relevant
circumstances and came to a conclusion. Defendant has failed to demonstrate an abuse
of discretion in this regard.
Defendant argues the court erred by considering he was a danger to society
because it did not take into consideration defendant’s age at the time of release and the
impact of a lengthy prison sentence. But the trial court did consider defendant would be
eligible for parole “much earlier” rather than in 2031 and found that defendant’s
numerous and recent rule violations demonstrated he posed a danger, implying a finding
that defendant posed a risk in the timeframe at issue despite his rehabilitative efforts.
There is nothing irrational or arbitrary with the trial court’s reasoning regarding
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defendant’s danger to public safety. Further, while defendant contested the truth and
severity of the rule violations, it was not unreasonable for the trial court to defer to
official findings of the Department of Corrections and Rehabilitation.
Defendant also argues the trial court did not consider its ability to reduce the
25‑year enhancement. Not so. The court acknowledged its ability to reduce the
enhancement and found any lesser enhancement would also endanger public safety.
Thus, defendant has not demonstrated an abuse of discretion on this basis.
Defendant finally raises a Sixth Amendment challenge premised on the trial
court’s abuse of discretion when applying section 1385. Because we concluded the court
did not abuse its discretion, we further conclude there was no Sixth Amendment
violation.
II
The Trial Court Did Not Err By Reimposing An Upper Term
Defendant contends the trial court was prohibited from imposing the upper term
for defendant’s cocaine possession conviction based on aggravating factors neither
stipulated to nor found true beyond a reasonable doubt at trial. The People do not argue
forfeiture in light of defendant’s failure to object on this basis in the trial court, and thus
we will reach the merits. On the merits, we disagree with defendant’s contention the
upper term was unavailable to the court for the reasons articulated in People v.
Brannon‑Thompson (2024) 104 Cal.App.5th 455, 466-467, which found the language of
section 1172.75 permitted the court to reimpose the upper term regardless of current law
requiring a jury finding to do so. Defendant asks us to reconsider Brannon‑Thompson in
light of the constitutional concerns addressed in People v. Gonzalez (2024)
107 Cal.App.5th 312 and People v. Wiley (2025) 17 Cal.5th 1069. We decline to diverge
from our prior holding.
Indeed, the Gonzalez court “acknowledge[d] that the plain language of
section 1172.75, subdivision (d)(4), on its face, could be interpreted as not requiring
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proof of aggravating factors before reimposing an upper term sentence.” (People v.
Gonzalez, supra, 107 Cal.App.5th at pp. 328-329.) The Gonzalez court, however, feared
“reading an exemption into section 1172.75, subdivision (d)(4) … and thereby allowing a
court to resentence a defendant to an upper term sentence without proof beyond a
reasonable doubt of aggravating factors, would run afoul of the Sixth Amendment
implications identified in [People v. Lynch (2024) 16 Cal.5th 730].” (Gonzalez, at
p. 330.)
Our Supreme Court has granted review on this issue. (See People v. Eaton
(Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.) In
the meantime, we respectfully disagree with the Gonzalez court’s analysis. “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.) There is no dispute that, under
Lynch, the additional factual determinations required to impose the upper term under
section 1170, subdivision (b) implicate the Sixth Amendment jury trial right. (People v.
Lynch, supra, 16 Cal.5th at pp. 768-769.) As our Supreme Court explained, “[U]nder the
current statute the aggravating facts used to ‘justify’ an upper term sentence are
‘necessary to [its] imposition,’ [citation] and effectively function like elements of a
crime.” (Id. at p. 760.) But, section 1172.75, subdivision (d)(4) “carves out an
exception” to the factfinding requirements of section 1170, subdivision (b). (People v.
Brannon-Thompson, supra, 104 Cal.App.5th at p. 458.) Because those factfinding
requirements do not apply when reimposing the upper term at a section 1172.75
resentencing, the Sixth Amendment is not implicated. (See Lynch, at p. 759 [“It is the
requirement of additional factfinding that brings the Sixth Amendment into play”]; see
also id. at p. 756 [“in this context, what the Sixth Amendment requires is necessarily
informed by what the state statutory scheme requires”].)
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Further, contrary to defendant’s assertion, our Supreme Court’s recent opinion in
People v. Wiley, supra, 17 Cal.5th 1069 did not concern whether a court must apply
ameliorative changes in the law when reimposing an upper term sentence. Wiley
addressed section 1170, subdivision (b)(3), which provides that “the court may consider
the defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (See Wiley, at p. 1076.)
Wiley held that the scope of section 1170, subdivision (b)(3) is limited, and specifically
that “a jury [must] determine whether the particular details of a defendant’s criminal
history establish an unsatisfactory probation performance or demonstrate convictions of
increasing seriousness, before a trial court can rely on those facts to justify an upper term
sentence.” (Wiley, at p. 1078.) Wiley does not impact a court’s ability to reimpose the
upper term pursuant to section 1172.75, subdivision (d)(4). Accordingly, defendant has
not demonstrated error.
III
The Restitution Fine Under Section 1202.4, Subdivision (b) Must Be Vacated
Defendant contends the trial court erred by reimposing a restitution fine under
section 1202.4, subdivision (b) because the language of section 1465.9, subdivision (d)
mandates vacating these fines after 10 years. The People disagree and counter
defendant’s fines were reimposed at the resentencing hearing, making section 1465.9
inapplicable because “10 years have not elapsed” under the statute. We agree with
defendant.
This dispute raises a question of statutory interpretation, which we review de
novo. (John v. Superior Court (2016) 63 Cal.4th 91, 95.)
Section 1465.9, subdivision (d) states: “Upon the expiration of 10 years after the
date of imposition of a restitution fine pursuant to [s]ection 1202.4, the balance, including
any collection fees, shall be unenforceable and uncollectible and any portion of a
judgment imposing those fines shall be vacated.” Trial courts have jurisdiction to modify
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“every aspect” of a sentence at a full resentencing hearing, including fines. (People v.
Buycks (2018) 5 Cal.5th 857, 893; see People v. Rosas (2010) 191 Cal.App.4th 107, 117;
People v. Nilsson (2015) 242 Cal.App.4th 1, 34.)
Here, at resentencing the trial court “confirm[ed] and reimpose[d] all previous
terms, conditions, fines and fees, and admonishments provided by the [c]ourt on the day
of [defendant’s] original sentenc[ing].” The court clearly intended to reimpose the
original restitution fine and not an additional, new obligation under section 1202.4,
subdivision (b).
As in People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted on
another issue March 11, 2026, S295038, we find no support for the People’s position that
this reimposition restarted section 1465.9’s 10-year clock. The plain language of
section 1465.9, subdivision (d) provides legislative intent to eliminate restitution fines
under section 1202.4 after 10 years. “[A]llowing trial courts to reimpose a restitution fine
under section 1202.4, subdivision (b) originally imposed more than 10 years prior could
render section 1465.9 effectively meaningless for any defendant who is subject to a full
resentencing” or is successful on an appeal or a collateral attack. (Salstrom, at p. 601.)
For these reasons, we conclude defendant’s restitution fine under section 1202.4,
subdivision (b), originally imposed in 2012, must be vacated pursuant to section 1465.9,
subdivision (d). Given this conclusion, the trial court will have to prepare an amended
abstract of judgment for defendant’s indeterminate term, making his claim for such
moot.2
2 Even so, we note defendant cites to an unpublished case in support of this
argument. California Rules of Court, rule 8.1115(a) provides that an opinion of a
California Court of Appeal “that is not certified for publication or ordered published must
not be cited or relied on by a court or a party in any other action.” Defense counsel is
cautioned against citing such authority.
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DISPOSITION
Defendant’s restitution fine under section 1202.4, subdivision (b) is vacated. The
judgment is affirmed as modified. The trial court shall prepare amended abstracts of
judgment for both defendant’s determinate and indeterminate sentences and forward a
certified copy to the Department of Corrections and Rehabilitation.
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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