Filed 10/5/26 P. v. Atkins CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B344804
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. YA093316)
DESHON ATKINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Jennifer Peabody and Jennifer Hansen, under appointment
by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Stephen D. Svetich and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Deshon Atkins
(defendant) of two counts of attempted murder and found true
gang and firearm enhancement allegations. The trial court
sentenced defendant to life in prison plus a 45-year determinate
term. Defendant appealed, and we remanded for the trial court
to consider whether to exercise its then-newly granted discretion
to strike the firearm enhancements. The trial court declined.
Defendant again appealed, and we held true findings on the gang
enhancements and the related “principal-armed” firearm
enhancements defective under then-prevailing law (applied
retroactively) and we remanded to allow the People to retry those
enhancements if they so chose—while affirming “[i]n all other
respects.” The People declined to retry the defective
enhancements, the trial court ordered those enhancement
allegations “dismissed” at the request of counsel for defendant,
and a new abstract of judgment without the defective
enhancement findings was entered without any other change to
defendant’s sentence. Defendant appeals, and we are asked to
decide whether the cause must again be remanded either because
the trial court should have granted defendant’s People v. Marsden
(1970) 2 Cal.3d 118 request for new counsel or because the court
did not hold a “full resentencing.”
I. BACKGROUND
A. Defendant’s Convictions and Original Sentence
In 2016, a jury found defendant guilty on two counts of
willful, deliberate, and premeditated attempted murder. Briefly
described, the charges rested on evidence that defendant
participated in a drive-by shooting of rival gang members in
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which one of the victims was shot in the finger and the other was
shot in the ankle, thigh, wrist, and lower back.
The jury found true allegations that both attempted
murders were gang-related within the meaning of Penal Code
section 186.22, subdivision (b)(1)(C).1 The jury also found alleged
firearm enhancements attached to each attempted murder charge
true. For one of those charges (in count four), the jury found
defendant personally and intentionally discharged a firearm
within the meaning of section 12022.53, subdivision (c), and
found “a principal” discharged a firearm within the meaning of
section 12022.53, subdivision (e) (which permits application of a
firearm enhancement without a defendant’s personal use when a
gang-related allegation is also found true). For the other charge
(in count five), the jury found defendant personally and
intentionally discharged a firearm causing great bodily injury
within the meaning of section 12022.53, subdivision (d) and found
“a principal” discharged a firearm causing great bodily injury
within the meaning of section 12022.53, subdivisions (d) and (e).
The trial court sentenced defendant to life in prison for the
count four attempted murder conviction and added a 20-year
determinate term for the section 12022.53, subdivision (c) firearm
enhancement found true. For the count five attempted murder
conviction, the court sentenced defendant to life in prison and
added a 25-year determinate term for the section 12022.53,
subdivision (d) firearm enhancement found true. The court
ordered these two sentences to run consecutively because it found
the attempted murders evinced a “high degree of cruelty,
1
Undesignated statutory references that follow are to the
Penal Code.
3
viciousness, and callousness.” The court stayed punishment on
the gang enhancements.
B. Defendant’s First Appeal
Defendant appealed from the judgment of conviction and
argued, among other things, that insufficient evidence supported
both his conviction on one of the attempted murder charges and
the jury’s true findings on the gang enhancements. Another
panel of this court rejected defendant’s arguments for reversal
but modified the abstract of judgment to reflect the proper
amount of presentence credits. (People v. Atkins (Aug. 21, 2017,
B278735) [nonpub. opn.] (Atkins I).)
Defendant then petitioned for review and our Supreme
Court granted the petition and transferred the cause back to this
court with directions to reconsider the matter in light of Senate
Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), which gave trial
courts discretion to strike firearm enhancements as specified in
section 12022.53, subdivision (h). Complying with the Supreme
Court’s directions, this court then remanded the matter to the
trial court to “consider whether to strike defendant’s section
12022.53 enhancements.” (People v. Atkins (Jan. 23, 2018,
B278735) [nonpub. opn.] (Atkins II).) Beyond this remand and a
modification of defendant’s presentence credits, Atkins II
“otherwise affirmed” defendant’s judgment of conviction.
C. The Hearing on Remand and Defendant’s Next
Appeal
Complying with this court’s remand directions, the trial
court held a hearing in 2018 and articulated its understanding
that the matter was remanded only for “the court to consider
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possibly modifying sentence based on [SB 620’s] change in the
law . . . .” The prosecution argued for keeping the sentencing “as
is” and defense counsel urged the court to strike the firearm
enhancements. The trial court declined to exercise its discretion
to reduce defendant’s sentence and explained its reasons on the
record: “The court feels that, based on the facts of this case, of
the gang nature of the offenses, the injuries that were sustained,
substantial injuries to at least one of the victims—the other, in
this court’s view, having, quite frankly, been lucky not to have
sustained the same injuries as the victim[ ] who ended up in the
hospital—feels that discretion is not warranted in this case, and
that striking or dismissing the g[un] enhancement[s] would not
be in . . . furtherance of justice.”
Approximately four and a half years later, defendant filed a
notice of appeal from this ruling. This court granted defendant’s
application to file a belated notice of appeal.
In the opinion that this court later issued to resolve that
appeal, we rejected defendant’s arguments that the trial court
erred in declining to strike the firearm enhancements, in not
holding a full resentencing, or in not retroactively applying
Senate Bill No. 81 (2021-2022 Reg. Sess.) (a statute that directs
trial courts to give great weight to certain mitigating
circumstances when deciding whether to dismiss a sentencing
enhancement in furtherance of justice). This court accepted,
however, defendant’s argument that Assembly Bill No. 333 (2021-
2022 Reg. Sess.) (legislation making defendant-favorable
amendments to the gang enhancement provisions of section
186.22) applied retroactively. We accordingly vacated the true
findings on defendant’s section 186.22, subdivision (b)(1) gang
enhancements and on the section 12022.53, subdivision (e)
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“principal armed” firearm enhancement allegations predicated on
the gang enhancement true findings. (Vacatur of these findings,
however, did not disturb the jury’s true findings on the charged
enhancements alleging defendant personally discharged a
firearm pursuant to section 12022.53, subdivisions (c) (count
four) and (d) (count five).) Our disposition permitted retrial of
the vacated gang and firearm enhancements if the People so
chose and affirmed the judgment of conviction “[i]n all other
respects.” (People v. Atkins (Aug. 29, 2024, B323859) [nonpub.
opn.] (Atkins III).) Defendant filed no petition for review of
Atkins III.
D. The Hearing from Which Defendant Noticed This
Third Appeal
On remand from Atkins III, the trial court issued a January
2, 2025, minute order continuing a scheduled hearing on our
remittitur and designating a “Bar Panel Attorney” as counsel for
defendant. A week later, the superior court issued an
appointment order referring to the same attorney as a “Private
Attorney.”
The continued hearing on this court’s remittitur was held
in February 2025, and the People represented they would not
retry the enhancements this court vacated. Defense counsel
stated she believed defendant “need[s] to be resentenced,” but the
court disagreed in light of this court’s remittitur. The court then
heard from defendant personally.
Defendant asked the court to continue the matter so he
could prepare and file a Marsden motion for a new appointed
attorney. The court stated it was “ready to rule today” and there
was “no reason to put it over” because the court was going to rule
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in defendant’s favor (i.e., to resolve the only remaining issue in
dispute, whether the gang and firearm enhancements would be
retried, by eliminating those enhancements). Defendant,
however, reiterated his desire to make a Marsden motion and the
court held a Marsden hearing outside the presence of the
prosecution.
Defendant complained his attorney provided ineffective
assistance when she did not advise him of his right to appeal
years earlier in 2018. When the court asked defendant, “Is that
it[?],” defendant replied he had a “full motion” he wanted to send
to the court. The court said it was ready to hear any issues
defendant wanted to raise during the hearing. Defendant
responded that his attorney was no longer on the indigent
defense panel, he believed the panel had someone available to
represent him, and he had “considerable differences with her, the
attorney-client relationship.” The court asked, “What are they?,”
adding, “[w]hat else” beyond the one issue defendant raised about
not being advised of his right to appeal years earlier. Defendant
said, “It was the her not advising me, and I’m pretty sure, I
believe that there is other things that I want to present to the
court that, like evidence I want to introduce in my favor for
resentencing that might involve her error and incompetency in
the case.” When the court then asked defendant if he had
anything further he wanted to say, defendant replied, “That
would be all.”
The trial court invited defendant’s attorney to respond, and
she mentioned she believed someone with the independent
counsel office managing the criminal defense panel had contacted
defendant and “told him what to say” without being aware of the
rule that if trial counsel is still available, trial counsel should
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represent a defendant on any post-conviction matters.
Defendant’s attorney also stated she had never received any
notice from this court regarding a finding of ineffective assistance
of counsel and she believed “there’s absolutely nothing that can
be done anymore on this case that’s going to hurt [defendant]. I
don’t know what his issue is.”
The court denied defendant’s Marsden motion. In doing so,
the court observed it held a Marsden hearing out of an abundance
of caution but the case was on remand for “the very limited issue
whether the prosecutor is going to be proceeding with the gang
and [firearm] allegation as it relates to the gang allegation” and
there was “nothing else to do” because Atkins III “simply sa[id]
that if the People . . . decide not to proceed with the gang
allegation and the gun allegation then they’re vacated.”
With the Marsden proceedings concluded, and back in the
presence of the prosecution, the court reviewed portions of Atkins
III on the record and stated it believed there was “nothing else to
do” because the People had decided not to retry the gang and
firearm enhancements and Atkins III had affirmed the judgment
against defendant “‘in all other respects.’” Defense counsel
argued, however, that the court should formally dismiss the
enhancements for which this court had vacated the jury’s true
findings. The trial court agreed, stating, “They are gone.” An
amended abstract of judgment was thereafter prepared that does
not include the gang enhancements and the “principal armed”
firearm enhancements that the jury previously found true.
II. DISCUSSION
Neither of the two arguments defendant makes for another
remand to the trial court have merit. In Atkins III, a prior panel
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of this court held defendant was not entitled to a full
resentencing, vacated the jury’s true findings on the gang and
“principal armed” firearm enhancements, and remanded solely
for the purpose of giving the prosecution the opportunity to retry
those enhancements—affirming the judgment of conviction in all
other respects. Atkins III was thus a conditional modification by
this court of defendant’s judgment, not a partial reversal
requiring resentencing if the enhancements were not retried.
Defendant did not petition for review of this court’s disposition in
Atkins III, and the trial court was accordingly bound by it. For
the same reason, denying defendant’s Marsden motion (which in
any event was really just a complaint about counsel’s failure to
advise defendant of his appeal rights some seven years earlier)
was not error.
It is well understood that a reviewing court “may reverse,
affirm, or modify a judgment or order appealed from . . . or
modify any or all of the proceedings subsequent to, or dependent
upon, such judgment or order, and . . . may, if proper, remand the
cause to the trial court for such further proceedings as may be
just under the circumstances.” (§ 1260; see also People v.
Buckhalter (2001) 26 Cal.4th 20, 35 [“[S]ection 1260, which sets
out the permissible dispositions of a criminal appeal, permits the
reviewing court to ‘“remand the cause to the trial court for such
further proceedings as may be just under the circumstances.”’
[Citation.] Thus, . . . ‘[w]e may assume that a reviewing court
has the power, when a trial court has made a mistake in
sentencing, to remand with directions that do not inevitably
9
require all of the procedural steps involved in arraignment for
judgment and sentencing’”].)
“[W]hen a court orders a remand—limited or otherwise—it
does so to permit further proceedings concerning an issue raised
on appeal, as part of its resolution of that appeal. [Citations.] In
those circumstances, the remittitur issues and ‘“the trial court is
revested with jurisdiction of the case”’ to carry out the judgment
as ordered by the appellate court. [Citation.]” (People v. Wilson
(2024) 16 Cal.5th 874, 949; accord, Griset v. Fair Political
Practices Com’n (2001) 25 Cal.4th 688, 701 [remittitur “defines
the scope of the jurisdiction of the court to which the matter is
returned”]; People v. Martinez (2017) 10 Cal.App.5th 686, 719;
People v. Dutra (2006) 145 Cal.App.4th 1359, 1367 [“whether the
trial court believed our decision was right or wrong, or had been
impaired by subsequent decisions, it was bound to follow the
remittitur”].)
Here, this court’s disposition in Atkins III, and the
remittitur that issued thereon, modified the criminal judgment
against defendant by vacating the true findings on the gang and
“principal armed” firearm enhancements and affirmed the
judgment in all other respects but one: remanding so the
prosecution could decide whether to retry the enhancements that
this court vacated. When the prosecution opted not to do so on
remand (and when the trial court dismissed the charged
enhancements at issue that may have still been technically
pending on paper), the trial court did all that this court’s remand
order directed it to do and no full resentencing was required.2
2
Considering a counterfactual well illustrates why. If this
court had modified the judgment by vacating the enhancements
10
(Dutra, supra, 145 Cal.App.4th at 1367; cf. People v. Edwards
(1985) 39 Cal.3d 107, 118 [“Although defendant’s convictions
cannot stand, it does not necessarily follow that the judgment
must be unconditionally reversed. ‘An appellate court is not
restricted to the remedies of affirming or reversing a judgment.
Where the prejudicial error goes only to the degree of the offense
for which the defendant was convicted, the appellate court may
reduce the conviction to a lesser degree and affirm the judgment
as modified, thereby obviating the necessity for a retrial.
[Citations]’”].) If defendant or the prosecution believed a full
resentencing should have been ordered, the time to advance that
belief was in a petition for review of Atkins III. None, of course,
was filed, and it is too late to object now.3
For essentially the same reason, defendant’s contentions
that the court should have granted his Marsden motion or erred
in question without giving the prosecution the opportunity to
decide whether to retry them, it is obvious no full resentencing
would have been either held or necessary (only the preparation of
an amended abstract of judgment reflecting this court’s
modification would be required). There is no reason the result
should be any different because the prosecution was given, but
declined, the opportunity to retry the enhancements.
3
Defendant argues the holding in People v. Buycks (2018) 5
Cal.5th 857 establishes a full resentencing should have been held
in this case. That, however, overreads Buycks. That case does
not stand for the proposition that a full resentencing is required
in every case where some part of a sentence is stricken (though
that may be the remedy in most cases). Rather, Buycks holds
that in those cases where a reviewing court remands for
resentencing, the resentencing required is a full resentencing, not
a resentencing limited to the stricken component of the
11
because there was insufficient evidence supporting the
appointment of “private counsel” under section 987.2 fail.
Defendant cannot have been prejudiced by either asserted error
given the limited scope of our remand and the prosecution’s
decision not to retry the vacated enhancements.
defendant’s sentence. (Id. at 893 [“We have held that when part
of a sentence is stricken on review, on remand for resentencing ‘a
full resentencing as to all counts is appropriate, so the trial court
can exercise its sentencing discretion in light of the changed
circumstances’], italics added; see also People v. Harbison (2014)
230 Cal.App.4th 975, 986; People v. Haskin (1992) 4 Cal.App.4th
1434, 1441 [“When sentencing error does not require additional
evidence, further fact finding, or further exercise of discretion,
the appellate court may modify the judgment appropriately and
affirm it as modified”].) More to the point, however, even if
defendant were right that Buycks invariably requires a full
resentencing any time a reviewing court makes any alteration to
a defendant’s criminal judgment and Atkins III should have
accordingly required the trial court to hold a full resentencing,
Atkins III didn’t. Defendant nevertheless did not then ask our
Supreme Court to intervene, and now is not the time to challenge
our earlier disposition.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
HOFFSTADT, P. J.
KIM (D.), J.
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