Filed 7/9/26 P. v. Aston CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085365
Plaintiff and Respondent,
v. (Super. Ct. Nos.
SCD223882, SCD244270)
PATRICK ASTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego, Eugenia
Eyherabide, Judge. Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Senior Assistant Attorney General,
Stephanie H. Chow and Elana Miller, Deputy Attorneys General for the
Plaintiff and Respondent.
In February 2011, Patrick Aston pleaded guilty (case No. SCD223882)
to four counts of first degree residential burglary (Pen. Code,1 §§ 459, 460),
and admitted allegations that a person was present in the residence during
one burglary’s commission (§ 667.5, subd. (c)(21)). He also admitted he had
six prior prison convictions (§§ 667.5, subd. (b), 668) and one strike prior
conviction (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced him to a
13-year state prison term.2 About two and a half years later in August 2013,
Aston pleaded guilty (case No. SCD244270) to solicitation for murder (§ 653f,
subd. (b)) and admitted allegations that he intended to cause great bodily
injury (§ 667, subd. (e)(2)(c)(iii)) and had suffered a prior strike conviction
(§ 667, subds. (b)-(i)). Under his plea, Aston stipulated to a 12-year term (a 6-
year midterm, doubled) to run consecutively with his 13-year term in case
No. SCD223882.
The court in 2014 sentenced Aston in case No. SCD244270 accordingly.
It resentenced him in case No. SCD223882 to two years eight months (one-
third the midterm, doubled) on count 2, plus one year four months (one-third
the midterm) on each of counts 1, 3, and 4, and a consecutive five years for
the serious felony prior (§ 667, subd. (a)(1)). His total term was 23 years
eight months.
In 2019, the Secretary of the Department of Corrections and
Rehabilitation (the Department), acknowledging newfound authority to
strike a consecutive section 667, subdivision (a)(1) enhancement,
1 Undesignated statutory references are to the Penal Code.
2 That term consisted of four years (the low term of two years doubled)
on count 2 and a consecutive eight months for each of counts 1, 3 and 4 plus
one year for the prior prison term. The court struck the prior strikes for
counts 1, 3, and 4.
2
recommended the court recall Aston’s sentence and resentence him under
former section 1170, subdivision (d) (now section 1172.1). The court declined
to recall and impose a different sentence. (People v. Aston (Jul. 25, 2024,
D081963 [nonpub. opn.].) On Aston’s appeal, this court reversed and directed
the court to exercise its discretion to determine whether to strike the prior
serious felony enhancements under sections 667, subdivision (a)(1) and 1385.
(Ibid.) On remand, the court again declined to recall and resentence Aston,
finding he poses an unreasonable risk of danger to public safety.
In this appeal, Aston contends the court abused its discretion by its
order. Specifically, he argues the court failed to follow the statutory
structure, accord weight to the Department’s recommendation, and apply the
statutory presumption for recall and resentencing set forth in section 1172.1
subdivision (b)(2). He contends the record lacks substantial evidence to
support the court’s finding that he currently poses an unreasonable risk of
danger to public safety. He further contends the court abused its discretion
by refusing to strike his serious felony prior conviction enhancement (§ 667,
subd. (a)(1)) under section 1385, subdivision (c)(2); that the court erred by
failing to make findings that dismissing the enhancement would endanger
public safety, relying on Aston’s prior solicitation-of-murder conviction, and
failing to consider mitigating factors set out in section 1385, subdivision
(c)(2)(A)-(F). We affirm the order.
3
FACTUAL AND PROCEDURAL BACKGROUND
Aston’s Offenses3
Case No. SCD223882
In July 2009, R.M.’s wallet went missing after he had placed it on a
workbench in his garage. Days later, while looking for his wallet, he realized
two bags of golf clubs were also missing. R.M. contacted his bank and
learned that someone had tried several times to use his debit card to
purchase gas.
Several days later, R.C. found his camera missing after he left it in his
car, which he had parked in his garage. Police later determined Aston, who
was on parole at the time, had pawned the camera.
In September 2009, J.B. parked her car in her garage and left the
garage door open with her designer purse on the front passenger seat. About
a half hour later, her husband heard noises from the car and saw Aston
running away with something in his hand, enter a BMW vehicle and drive
away.
In October 2009, C.R. saw Aston crouching down next to the passenger
side of her car parked in her garage. Aston screamed that she had scared
him and claimed he was looking for his dog, describing it and giving her a
phone number to call if she found it. Aston then left in a BMW vehicle. C.R.
felt Aston was using the lost dog story as a ruse for casing houses.
Case No. SCD244270
In approximately 2009, during Aston’s incarceration, he discussed with
another inmate a plan to kill his stepfather, S.T. and S.T.’s family. Aston
told the inmate his stepfather owned a business worth $100 million and kept
3 We state the facts of the underlying offenses from Aston’s probation
reports.
4
valuable jewelry in his home, which would be the inmate’s payment for
killing the family. According to the inmate, who happened to be a
confidential informant, Aston’s original plan was that upon his release, he
would gather specific information such as his stepfather’s address and give it
to the inmate, and that Aston wanted to coordinate the timing so he would be
out of custody and on vacation when the murders were committed. Aston
described specific pieces of jewelry and a watch that he would give to the
inmate. Aston told the inmate he would need a good alibi because the
remaining family members would suspect him.
The inmate lost contact with Aston in 2009 when Aston was released
from custody, but became cellmates again with him in 2011. In 2011, Aston
related to him details about the location and description of S.T.’s primary
residence, S.T. and his family’s whereabouts, and the locations of other
family homes. They eventually discussed a new plan in which Aston would
give the inmate S.T.’s exact residence and business addresses so the inmate
could follow him from the business to the residence. Aston described S.T.’s
height and weight and possible vehicles, as well as their personalized license
plates. Aston handwrote a floor plan of S.T.’s residence, and told the inmate
to copy it into his own writing in case something happened, so Aston would
not be connected to the crime.
Aston also gave the inmate details about the residence door locks,
described how the inmate could gain access to the residence and its backyard,
and where to park. He described portions of the home to the inmate, and told
him how many children there were. Aston left the details of the job up to the
inmate, but told him he wanted the family killed because that was the only
way to get all of the jewelry out of the house. Aston gave the inmate the
alarm code for another home owned by S.T., and told him which house would
5
be easier to access. He told the inmate about another occupant and the
family dog, but that he would give the dog’s name to the inmate once he was
out of custody.
Aston’s Motion for Resentencing
Following this court’s remand, Aston in November 2024 filed a motion
for resentencing under section 1172.1. In part, he argued that while he had
suffered a super strike conviction, the act occurred over a decade ago, and he
was listed in the lowest security group in the Department. He argued there
was no evidence to overcome the presumption in favor of recall and
resentencing under section 1172.1, which would occur only if the court found
he was an unreasonable risk of danger to public safety within the meaning of
subdivision (c) of section 1170.18, that is, a risk that the person will commit a
new “super strike.” Aston pointed to the fact he had completed several
programs to prepare him for successful reentry into the community, had
completed community college courses, and had no prison rule violations
involving violence. He argued the passage of time and his age reduced his
risk for future violence. He argued his continued incarceration was no longer
in the interest of justice. Aston asked the court if it opted to resentence him
to exercise its discretion under section 1385 to dismiss his enhancements and
strike his prior serious felony conviction.
The People opposed the request. They argued Aston’s criminal history,
and particularly the fact he made very detailed plans for the murder of S.T.
and his family, demonstrated he was an unreasonable risk of danger to public
safety. The People submitted a victim statement from S.T., in which he
described drastic changes he had made to his life and the stress he
experienced as a result of Aston’s solicitation offense. S.T. related that in
June 2018, Aston had “obtained a cell phone in prison and began calling my
6
office trying to find out if I was there or when I would be their [sic] type of
information.” He stated he did not know what Aston intended to do with the
information, but believed it could not be “anything good.” S.T. filed a formal
complaint and requested that Aston cease all forms of further
communication. The People also pointed to Aston’s 19 rule violations in
custody beginning from the end of 2000, the last of which most recently
occurred in June 2024. They argued Aston came close to committing super
strikes during his 2009 residential burglaries, and then committed a super
strike in 2011, when he plotted the death of S.T. and his family. The People
argued that given resentencing objectives, and the fact the circumstances in
aggravation outweighed those in mitigation, Aston’s current sentence,
including its enhancements and imposition of a strike, remained the proper
sentence. According to the People, striking Aston’s strikes would not be in
furtherance of justice.
Court’s Ruling
The court conducted a hearing on the matter in November 2024. It
stated at the outset that it had read and considered all of the parties’ papers.
Aston’s attorney began by pointing out that the 2019 Department letter made
exceptional conduct recommendations, which were based on an inmate
staying out of serious trouble and completing programs allowing him to
evolve and lower his recidivism risk. Counsel then stated: “So, your Honor,
there is a legislative initiative after 2019 that creates a presumption that
where the path to resentencing is this letter from [the Department] [sic].
There’s a presumption in favor of recall and resentencing unless the Court
can find that the individual is [an] unreasonable risk of danger to public
safety. [¶] And what that means in this context is that it is a risk that that
person will commit a new super strike.” Counsel pointed to the fact Aston’s
7
super strike had occurred more than ten years ago, as well as his completion
of programs, college classes and efforts to reform. Counsel argued that the
Department did not view him as a risk during the past five years since it had
sent its letter. Aston’s counsel argued that nothing in Aston’s correctional
disciplinary history—which reflected minor violations—indicated he
currently posed a danger to public safety. Counsel further pointed out that
Aston qualified for section 1385 relief given an enhancement resulted in his
over-20-year sentence, and Aston’s documented history of prior victimization
or childhood trauma.
The prosecutor pointed out that the Department’s letter merely invited
the court to consider recalling Aston’s sentence; it did not tell the court to
release him or that the Department was saying he would not commit a super
strike. Summarizing Aston’s criminal history before the present offenses, the
prosecutor stated that Aston’s super strike was not “just [an] aberration, it
was a whole lifetime of behavior.” He argued recall was inappropriate
because Aston was a “current, unreasonable risk of danger to the community,
which translates into unreasonable risk to commit a super strike.” The
prosecutor argued as to Aston’s request under section 1385 that “you’re
looking at does it endanger public safety to dismiss those things” and argued
there was a current risk to public safety concerning S.T. and his family if
Aston was sentenced to a lower term. He asked the court to not recall the
sentence, but if it decided recall was appropriate to reimpose the original
sentence.
Ultimately, the court denied Aston’s request. It stated at the outset: “I
know there’s many things that I have to consider, and I will put on the record
that I am considering them.” The court explained it did not give a lot of
weight to the Department letter, which was a “standard letter” without
8
saying “anything specific in terms of why [you] don’t pose [an] unreasonable
risk.” It acknowledged that the Department sent the letter in 2019, but “[t]he
law has changed . . . .” The court commended Aston on his classes and drug
treatment and explained it did not give “much weight” to his prison
disciplinary actions, which it acknowledged were “not that bad.” But the
court found the facts of his solicitation offense “egregious” and “quite scary,”
and considered the fact that Aston in 2018 began calling S.T.’s office to find
his location. Observing Aston’s solicitation offense had been orchestrated
from prison, the court found he presented an unreasonable risk of danger to
public safety, particularly to S.T. Specifically, it found there was an
unreasonable risk Aston would commit a violent felony within the meaning of
section 667 and “potentially another solicitation for murder, especially since
[he] reached out to [S.T.] all these years later.” The court exercised its
discretion to deny Aston’s request to strike his serious felony prior conviction
under section 1385.
Aston appeals.
DISCUSSION
I. Legal Principles and Standard of Review
Section 1172.1 gives a trial court authority to recall a sentence and
resentence a defendant upon the Department’s recommendation. It is “a
statutory exception to the general rule that a trial court lacks jurisdiction to
modify a sentence after judgment is rendered and execution of the sentence
has begun.” (People v. Brinson (2025) 112 Cal.App.5th 1040, 1045; see also
People v. McMurray (2022) 76 Cal.App.5th 1035, 1040 [Department
recommendation is “ ‘an invitation to the court to exercise its equitable
jurisdiction’ ”].)
9
Section 1172.1, subdivision (a)(1) provides in part: “When a defendant,
upon conviction for a felony offense, has been committed to the custody of the
Secretary of the Department . . . , the court may, . . . at any time upon the
recommendation of the secretary . . . , recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, whether or not the defendant is still
in custody, and provided the new sentence, if any, is no greater than the
initial sentence.”
Subdivision (a)(5) of section 1172.1 sets out postconviction factors that
a court “shall consider” in recalling and resentencing a defendant. These
“includ[e], but [are] not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that reflects
whether age, time served, and diminished physical condition, if any, have
reduced the defendant’s risk for future violence, and evidence that reflects
that circumstances have changed since the original sentencing so that
continued incarceration is no longer in the interest of justice. Evidence that
the defendant’s incarceration is no longer in the interest of justice includes,
but is not limited to, evidence that the defendant’s constitutional rights were
violated in the proceedings related to the conviction or sentence at issue, and
any other evidence that undermines the integrity of the underlying conviction
or sentence. The court shall consider if the defendant has experienced
psychological, physical, or childhood trauma, including, but not limited to,
abuse, neglect, exploitation, or sexual violence, . . . and whether those
circumstances were a contributing factor in the commission of the offense.”
The statute provides that if the Department requests resentencing,
“[t]here shall be a presumption favoring recall and resentencing of the
defendant, which may only be overcome if a court finds the defendant
10
currently poses an unreasonable risk of danger to public safety, as defined in
subdivision (c) of Section 1170.18.” (§ 1172.1, subd. (b)(2).) An “unreasonable
risk of danger to public safety” means “an unreasonable risk that the
petitioner will commit a new violent felony within the meaning of clause (iv)
of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
(§ 1170.18, subd. (c).) The referenced subdivision “identifies eight types of
particularly serious or violent felonies, known colloquially as ‘super strikes.’ ”
(People v. Valencia (2017) 3 Cal.5th 347, 351.) The list includes solicitation to
commit murder as defined in section 653f. (Id. at p. 351, fn. 3; § 667, subd.
(e)(2)(C)(iv)(V).)
We review for abuse of discretion the trial court’s decision to decline the
Department’s recommendation to recall and resentence a defendant under
section 1172.1. (People v. E.M. (2022) 85 Cal.App.5th 1075, 1082; People v.
Frazier (2020) 55 Cal.App.5th 858, 863 [applying section 1172.1’s
predecessor], superseded by statute on other grounds as stated in People v.
McMurray, supra, 76 Cal.App.5th at p. 1041.) Under this standard, “we
presume the order is correct, indulge all intendments and presumptions to
support it on matters as to which the record is silent, and [Aston] bears the
burden to affirmatively show error.” (People v. Allen (2019) 41 Cal.App.5th
312, 330.) To meet this burden, Aston “must establish the court ‘act[ed] while
unaware of the scope of its discretion’ [citation], ‘considered impermissible
factors’ [citation], or made a choice ‘so irrational or arbitrary that no
reasonable person could agree with it.’ ” (People v. Olea (2025) 115
Cal.App.5th 889, 902-903.)
II. Order Denying Recall
Aston contends the trial court abused its sentencing discretion by
failing to apply the presumption favoring recall and resentencing and by
11
finding that he posed an unreasonable risk of committing a new super strike
without evidentiary support. He argues the record is ambiguous whether the
court was aware of the statutory presumption, as the court did not mention
it. Aston maintains that while the court considered post-conviction factors, it
gave them little importance, even though according to Aston they
demonstrate his commitment to rehabilitation and that he is not an
unreasonable risk to public safety given his age, time served and passage of
time since he committed his crimes, and the opinion of a program facilitator
that he was not likely to repeat his past behaviors. He points to the court’s
remarks concerning the Department’s letter, characterizing it as a
“misapprehension of the law” and the record as showing the court gave “no
weight to [the Department’s] recommendation, the statutory presumption, or
relevant statutory factors, and instead based its findings on less than the
preponderance of the evidence.”
In assessing these contentions under the relevant review standard, we
emphasize that reversal is not required simply because reasonable minds
would reach a different conclusion based on the evidence. (See People v.
Myers (1999) 69 Cal.App.4th 305, 310 [addressing motion to strike prior
convictions].) “ ‘ “ ‘A merely debatable ruling cannot be deemed an abuse of
discretion.’ ” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 605.) “Where the
record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we
shall affirm the trial court’s ruling, even if we might have ruled differently in
the first instance.” (Myers, at p. 310.) The “court is presumed to have
considered all relevant factors in the absence of an affirmative record to the
contrary.” (Ibid.)
12
Applying these standards, we reject Aston’s arguments. First, the trial
court expressly stated it was considering all factors it was required to
consider, which reasonably means the various postconviction factors
delineated in section 1172.1. We do not interpret the court’s remarks
concerning the Department’s letter as ignoring or refusing to apply the
statutory presumption in favor of recall and resentencing, particularly where
the parties briefed the presumption and the court acknowledged that the law
had changed since 2019. Aston mischaracterizes the record when he argues
the court gave the letter “no weight,” and “no consideration” to evidence that
he was physically abused by his stepfather. The fact the court bases
explanatory comments on only one or some factors does not mean that it
considered only that factor. (People v. Allen, supra, 41 Cal.App.5th at p. 330.)
But here, the court expressly stated it had considered all required factors. In
the absence of record evidence to the contrary, not present here, we presume
it knew the applicable law and followed it. (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 398; People v. Neilsen (2026) 119 Cal.App.5th
816, 829.)
It is true Aston’s criminal conduct took place years ago and Aston has
taken steps since then toward his personal reform and rehabilitation. But
his solicitation offense, a super strike, is extraordinarily serious. The court
reasonably assessed in its current risk analysis the fact that approximately
nine years after he solicited the inmate to murder S.T., Aston called S.T.’s
office seemingly to learn his whereabouts. That act suggests Aston still
harbors the hatred that led him to solicit the murder of S.T. and his children.
That a trier of fact could reasonably draw different conclusions about the
reason or nature of the call is irrelevant. While the court recognized Aston’s
record of rehabilitation was laudatory, it reasonably concluded based on the
13
seriousness of his conduct and actions years after the offenses that he
remained an unreasonable risk of danger to public safety, particularly to S.T.
We conclude Aston has not demonstrated the court abused its sentencing
discretion in declining to recall and resentence him.
III. Section 1385 Ruling
Under section 1385, a court “shall dismiss an enhancement if it is in
the furtherance of justice to do so, except if dismissal of that enhancement is
prohibited by any initiative statute.” (§ 1385, subd. (c)(1); People v. Walker
(2024) 16 Cal.5th 1024, 1032.) The statute provides that “[i]n 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 in subparagraphs (A) to (I) are present. Proof of
the presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety. ‘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.” (§ 1385, subd. (c)(2); see
People v. Torres (2025) 113 Cal.App.5th 88, 92.)4 The statutory language
does not mean trial courts are to rebuttably presume an enhancement must
be dismissed in furtherance of justice unless the court makes a finding the
resultingly short sentence would endanger public safety. (People v. Walker,
supra, 16 Cal.5th at p. 1032; see also id. at p, 1033 [“the plain language of
section 1385, subdivision (c)(2) does not erect a rebuttable presumption in
4 One mitigating circumstance is that “[t]he application of an
enhancement could result in a sentence of over 20 years. In this instance, the
enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(C).) Another is the
use of a conviction that is over five years old as the basis for the
enhancement. (§ 1385, subd. (c)(2)(H).)
14
favor of dismissal that can only be overcome by a finding that dismissal
endangers public safety”].) “Thus, notwithstanding the presence of a
mitigating circumstance, trial courts retain their discretion to impose an
enhancement based on circumstances ‘long deemed essential to the
“furtherance of justice” inquiry.’ ” (Id. at p. 1033.) “[I]n 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 subdivision (c)(2).” (Ibid.) We review the court’s decision under section
1385 for abuse of discretion. (People v. Gonzalez (2024) 103 Cal.App.5th 215,
225.)
Maintaining the court failed to make a finding that dismissal of his
five-year serious prior felony conviction enhancement would endanger public
safety, Aston contends the court abused its discretion by declining to strike it.
In part, he argues that even if the court had made such a finding, it would be
unsupported by the record. The People respond that Aston forfeited issues
about the court’s reasoning or findings by failing to object at the hearing, but
the arguments are without merit in any event because the court was not
required to make an on-the-record statement of reasons, the court was aware
of its discretion based on the parties’ briefing and arguments, and it
presumably rejected Aston’s arguments based on its finding from its section
1172.1 analysis.
With regard to the asserted absence of findings or the court’s unclear
reasoning, we agree with the People that Aston forfeited the contention by
failing to object at the hearing. (See, e.g., People v. Smith (2001) 24 Cal.4th
849, 852 [with limited exceptions, “ ‘claims involving the trial court’s failure
to properly make or articulate its discretionary sentencing choices’ raised for
15
the first time on appeal are not subject to review”]; People v. Anderson (2023)
88 Cal.App.5th 233, 242 [defendant forfeited argument that court erred by
failing to articulate reasons for imposing an upper term sentence under
amended section 1170].)
In any event, section 1385 does not require the court to state reasons
when it declines to dismiss an enhancement. (In re Coley (2012) 55 Cal.4th
524, 560 [section 1385 does not require “an on-the-record statement of
reasons when a court declines to strike a prior” conviction]; People v. Bravo
(2025) 107 Cal.App.5th 1144, 1157.) As stated, “[a]bsent evidence to the
contrary, we presume that the trial court knew the law and followed it.”
(People v. Ramirez (2021) 10 Cal.5th 983, 1042; see also People v. Caparrotta
(2024) 103 Cal.App.5th 874, 905; People v. Bravo, at p. 1157.) We apply this
presumption here, particularly where the parties briefed section 1385 and
Aston’s counsel specifically addressed the applicable mitigating factors. We
conclude given its reference to Aston’s solicitation offense and its prior
finding that Aston presented an unreasonable risk of danger to public safety
with respect to section 1172.1, that it concluded implicitly that dismissal of
the five-year enhancement—and the concomitant lesser sentence—“would
result in . . . serious danger to others.” (§ 1385, subd. (c)(2).) Because as
discussed above, the record contains substantial evidence to support such a
finding, Aston has not established the court abused its wide discretion by
declining to strike the enhancement under section 1385.
Because the court implicitly found dismissal of the enhancement would
endanger public safety, it was not required to consider the mitigating factors
in section 1385, subdivision (c)(2). (People v. Mendoza (2023) 88 Cal.App.5th
287, 297.)
16
DISPOSITION
The order is affirmed.
O’ROURKE, J.
WE CONCUR:
MCCONNELL, P. J.
DO, J.
17