Filed 7/21/26 P. v. Aviles CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B343539
(Super. Ct. No. 1398080)
Plaintiff and Respondent, (Santa Barbara County)
v.
JOSE ANTONIO AVILES,
Defendant and Appellant.
In 2010, Jose Antonio Aviles committed an armed robbery.
In 2014, he pled no contest and was sentenced to 24 years in
prison. He appeals from the denial of his request for
resentencing pursuant to Penal Code section 1172.1, subdivision
(a)(1).1 Appellant contends the trial court abused its discretion
by failing to consider his postconviction record of rehabilitation
and his allegation of childhood sexual abuse when it denied his
request to strike two firearm enhancements. We affirm.
1 Statutory references are to the Penal Code unless
otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
Robbery and plea
In 2010, appellant and three accomplices entered a jewelry
store in Santa Barbara. Appellant pointed a firearm at the store
owner’s head, ordered him to the ground, and threatened to kill
him. Eventually, appellant and his accomplices herded the
owner, his wife, and a 70-year-old employee into a back room
where they bound the victims with zip ties. Still wielding a
firearm, appellant threatened to kill the victims several times.
At one point, he put his foot on the owner’s face as he lay bound
on the floor. The victims pleaded for their lives. Appellant and
his accomplices left with approximately $750,000 in jewelry and
$13,000 in cash. Appellant took the owner’s wallet and told him
he knew where he lived. He threatened to hunt the owner down
and shoot his family if he followed appellant or reported the
crime.
In 2011, police linked appellant to the jewelry store robbery
using DNA evidence from the zip ties. By that time, appellant
was already serving a 14-year prison sentence for an unrelated
armed robbery in another county.
In 2014, appellant pleaded no contest to three counts of
second degree robbery (§ 211) and one count of felony dissuading
a witness (§ 136.1, subd. (c)(1)). He admitted personal firearm
use enhancements (§ 12022.53, subd. (b)) as to each of the
robbery counts. The victims gave statements about how
appellant traumatized them, damaged their business and
negatively impacted their physical and mental health. The court
sentenced appellant to 24 years, eight months in prison
concurrent to the 14-year sentence for the unrelated armed
robbery.
2
Prison record
In prison, appellant associated with the Paisa prison gang.
He was disciplined on three occasions for gang-related activity.
In September 2018, after an eruption of violence between rival
gangs in his housing unit. Appellant refused orders to return to
his dorm. The following month, appellant took part in an inmate
riot in a prison recreation yard and was stabbed in the back
multiple times. During another riot in 2019, appellant used an
inmate-manufactured weapon to repeatedly stab a rival gang
member who was laying on the ground. Appellant was
administratively charged with attempted murder and spent 18
months in solitary confinement following the 2019 riot. That was
the last recorded incident of prison violence prior to appellant’s
request for resentencing.
Appellant earned education certificates for passing a high
school equivalency test, three general education courses, a
computer and technology course, and a domestic violence course.
He also participated in four hours of Narcotics Anonymous
meetings and 27 hours of Alcoholics Anonymous.
Section 1172.1 petition and ruling
In 2024, the secretary of the Department of Corrections and
Rehabilitation (CDCR) sent a letter to the trial court
recommending that it consider recalling appellant’s sentence
pursuant to section 1172.1 and changes in the criminal law that
give trial judges the discretion to strike firearm enhancements in
the interests of justice under section 1385. The letter
acknowledged appellant’s participation in the prison riots,
summarized his educational record in prison, and listed the self-
help classes he had completed. The letter noted that appellant’s
earliest possible release date is November 7, 2029.
3
Appellant asked the trial court to exercise its discretion
under section 1385 to dismiss two firearm enhancements and
resentence him to a term of 18 years in prison. He pointed out he
had sustained no rules violations for more than five years and
had worked his way down to a “Level 1” classification. Appellant
emphasized his educational accomplishments and efforts at self-
improvement.
Appellant’s request also included a “journey letter”
outlining his background. He explained the poverty of his youth,
abandonment by his father, and an unstable living situation that
alternated between California and Mexico. He alleged that a
family friend sexually abused him when he was around seven
years old. He began drinking when he was 12 years old. He
turned to cocaine at the age of 15 and then developed a serious
addiction to methamphetamine that lasted until he was arrested
for the robberies that resulted in his prison commitment.
In another letter, appellant explained his time in solitary
confinement had changed his thinking and he became motivated
to stay away from drugs and to educate himself. Appellant later
enrolled in GED classes, finished in 10 months, and went on to
take computer classes and graduate from a technology course.
The People opposed the resentencing petition, arguing
appellant still posed an unreasonable risk of danger to public
safety. They cited his record of gang violence in prison and
argued he had “only minimally participated in any rehabilitative
programming.”
At the resentencing hearing, the trial court denied appellant’s
petition, stating: “[T]hese were very violent crimes. Over a
million dollars was stolen, I think, between both cases. And
there’s the very disturbing gang violence and stabbing. Although
4
none of those were in the last five years. But the behavior in
prison is – continues to exhibit violence. So I’m going to deny the
petition.”
DISCUSSION
Standard of review
Trial courts may recall a defendant’s sentence and
resentence them at any time upon the recommendation of the
Secretary of the CDCR. (§ 1172.1, subd. (a)(1).) In recalling and
resentencing, the court “shall . . . apply any changes in law that
provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing.” (Id., subd.
(a)(2).)
We review the trial court’s denial of appellant’s
resentencing petition under section 1172.1 for abuse of discretion.
(People v. Craig (2026) 117 Cal.App.5th 1165, 1175; People v.
Olea (2025) 115 Cal.App.5th 889, 902; People v. E.M. (2022) 85
Cal.App.5th 1075, 1082.) In making a resentencing decision, the
trial court “shall consider postconviction factors, including, but
not limited to, the disciplinary record and record of rehabilitation
of the defendant while incarcerated” and evidence that
demonstrates the defendant poses a reduced risk of future
violence. (§ 1172.1, subd. (a)(5).) In addition, the court “shall
consider if the defendant has experienced . . . childhood
trauma . . . or sexual violence . . . .” (Ibid.)
If the CDCR secretary makes a resentencing
recommendation, “[t]here shall be a presumption favoring recall
and resentencing of the defendant, which may only be overcome if
a court finds the defendant currently poses an unreasonable risk
of danger to public safety.” (§ 1172.1, subd. (b)(2).) An
unreasonable risk of danger to public safety is an unreasonable
5
risk that the defendant will commit one of the enumerated
violent felonies known as “super strike” offenses set forth in
section 667, subdivision (e)(2)(C)(iv).
In deciding whether a defendant poses an unreasonable
risk of danger to public safety, the court may consider the
defendant’s criminal history, disciplinary record of rehabilitation
while incarcerated, and other evidence the court determines to be
relevant. (§ 1170.18, subd. (b)(1)–(3).) The court is required to
state on the record the reasons for its decision to grant or deny a
request for recall and resentencing. (§ 1172.1, subd. (a)(7).)
We presume the trial court “considered all of the relevant
[sentencing] factors in the absence of an affirmative record to the
contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310;
accord People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
977-978; see also People v. Kelly (2018) 28 Cal.App.5th 886, 904
[where court does not make explicit ruling at sentencing, it is
inferred court “made the finding appropriate to the sentence it
imposed”].)
When the record is silent, the court is presumed aware of
the applicable law. (People v. Lee (2017) 16 Cal.App.5th 861, 866-
867; People v. Brown (2007) 147 Cal.App.4th 1213; 1228-1229.)
Moreover, “ ‘ “[a]ll intendments and presumptions are indulged to
support [a judgment or order of the trial court] on matters as to
which the record is silent, and error must be affirmatively
shown.” ’ ’’ (People v. Giordano (2007) 42 Cal.4th 644, 666.)
Analysis
Appellant contends the trial court abused its discretion by
failing to address “multiple postconviction factors” and failing to
“discuss the evidence of appellant’s rehabilitation while
6
incarcerated.” He also argues the court failed to consider his
history of childhood trauma and sexual abuse.
The trial court had appellant’s criminal history, prison
activity, personal history and postconviction progress in the
record before it. This included appellant’s efforts at
rehabilitation and betterment; a summary of his childhood,
including an allegation of sexual abuse and drug and alcohol use;
and rules violations reports from prison. We may presume the
court reviewed the complete record, and the court’s comments at
the resentencing hearing corroborate that presumption. The
court referred to facts that were not argued by the parties at the
hearing, such as the fact that appellant had been discipline-free
for five years.
While it is true the trial court did not discuss each of the
postconviction factors listed in the applicable statutes or recite all
of the mitigating facts in the record, the absence of this
discussion does not suggest the court was unaware of or did not
consider appellant’s childhood trauma, sexual abuse and/or his
educational and rehabilitative efforts while incarcerated. “ ‘The
court is presumed to have considered all of the relevant factors in
the absence of an affirmative record to the contrary.’ [Citation.]
‘[T]he fact that the court focused its explanatory comments on
[one factor] does not mean that it considered only that factor.’ ”
(People v. Allen (2019) 41 Cal.App.5th 312, 330.) Appellant has
not identified anything in the record that supports the trial court
affirmatively failed to consider relevant information, and as a
result, he cannot establish the court abused its discretion.
Appellant suggests that even if the trial court considered
the required factors, it did not give the mitigating factors the
proper weight. The weight afforded to any given factor is
7
subjective and not properly before us. The issue is whether the
trial court’s decision was so irrational or arbitrary that no
reasonable person could agree with it. (People v. Strother (2021)
72 Cal.App.5th 563, 571.) Appellant fails to make this showing.
The trial court’s explanation for denying the request for
resentencing was focused on appellant’s criminal history.
Appellant’s crimes were cruel and violent. He repeatedly
threatened to kill his victims during the robbery and then told
the owner he knew where he lived and would hunt him down and
kill him if he reported the crime. Appellant’s conduct resulted in
substantial monetary losses and significant personal trauma to
his victims. While in prison, appellant was involved in gang
activity and acts of violence after which he was transferred to
solitary confinement for 18 months. These facts, referenced by
the court as a basis for its decision, provided reasonable grounds
for the determination that appellant posed an unreasonable risk
of danger to public safety.
The trial court’s determination was not arbitrary and there
was no abuse of discretion.
DISPOSITION
We affirm the order denying appellant’s request to recall
and resentence.
NOT TO BE PUBLISHED.
MCKAIG, J.*
We concur:
YEGAN, Acting P. J. BALTODANO, J.
* Judge of the Ventura Superior Court assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
8
Pauline Maxwell, Judge
Superior Court County of Santa Barbara
______________________________
Diane Berley, 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, Assistant
Attorney General, Noah P. Hill and Stephen D. Svetich, Deputy
Attorneys General, for Plaintiff and Respondent.