P. v. Baltazar CA1/4

Filed 9/29/26 P. v. Baltazar CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and
Respondent, A171648

v. (Sonoma County
JOSE FIGEROA BALTAZAR, Super. Ct. No.
SCR7543201)
Defendant and
Appellant.

A jury convicted defendant Jose Figeroa Baltazar of, among
other things, willful, deliberate and premeditated attempted
murder. Defendant’s main contentions on appeal are: (1) the
evidence was insufficient for the jury to find that the attempted
murder was willful, deliberate, and premeditated; (2) giving the
jury an instruction on voluntary intoxication (CALCRIM
No. 3426) along with instructions related to consciousness of guilt
(CALCRIM Nos. 362 & 372), constituted instructional error; and
(3) the court erred in declining to strike a Penal Code1 section
12022.53, subdivision (d) (section 12022.53(d)) enhancement
under section 1385. We will remand for the trial court to correct

1 All further statutory references are to the Penal Code.

1
errors in the sentencing minute order and the abstract of
judgment, but we otherwise affirm.
BACKGROUND
A third amended information was filed against defendant
charging one count of willful, deliberate and premeditated
attempted murder (§§ 664/187(a)); one count of shooting into an
occupied vehicle (§ 246); one count of assault with a semi-
automatic firearm (§ 245, subd. (b)); one count of possession of a
firearm with a qualifying prior juvenile adjudication (§ 29820,
subd. (b)); and one count of being a felon in possession of
ammunition with a qualifying prior juvenile adjudication
(§ 30305, subd. (a)(1)). For counts 1 and 2, the information
alleged personal and intentional discharge of a firearm causing
great bodily injury under section 12022.53(d). For count 3, the
information alleged personal infliction of great bodily injury
(§ 12022.7, subd. (a)) and personal use of a firearm (§ 12022.53,
subd. (a)). The information further alleged that defendant had a
prior strike conviction (§§ 667, subds. (d) & (e), 1170.12,
subds. (b) & (c)).
Before trial, defendant pleaded guilty to count four,
charging him with possession of a firearm with a qualifying prior
juvenile adjudication, and count five, charging him with
possession of ammunition with a qualifying prior juvenile
adjudication.
The Prosecution’s Case
At trial, victim Alexis G. testified that he started drinking
before 2:00 p.m. on May 22, 2022. He conceded that he had a

2
drinking problem at that time and would become heavily
intoxicated daily.
Luis P., with whom Alexis G. was good friends, came to
Alexis G.’s home at around 5:00 p.m., and the two drank tequila
and watched soccer. Defendant came to the house to see Luis P.
and drank beer. Alexis G. knew defendant from elementary and
middle school, but they were not friends and had only seen each
other approximately three times as adults.
After the soccer game ended, defendant drove everyone to
Luis P.’s house in defendant’s SUV; Alexis G. was in the back and
Luis P. was in the front passenger seat. Alexis G. testified that
he was intoxicated. The three men drank beer outside of Luis
P.’s house for about two hours. A camera recorded the three men
standing outside Luis P.’s house near a parked truck for about an
hour, and then they crossed the street and got back into
defendant’s SUV and drank bottles of beer. Alexis G. could not
recall what they talked about, and he remembered only parts of
what happened that night.
At some point, Alexis G. heard defendant “load the gun, the
clocking motion,” and defendant said he was going to shoot Alexis
G. Alexis G. tried to put his hand up, and defendant shot him in
the neck. Alexis G. did not know why defendant shot him. Alexis
G. testified that the three were talking when defendant suddenly
told him to get out of the car, but Alexis G. did not get out
because defendant had said he was going to shoot him.
The People showed Alexis G. their exhibit 1, video footage
from a nearby garage camera that recorded the shooting, and

3
Alexis G. confirmed that the video was a fair and accurate
recording of the incident. Alexis G. also testified that defendant
had announced that he was going to shoot Alexis G. before the
video showed defendant getting out of the SUV.
In the video, defendant says, “Get your bitch ass out,
homie,” and someone responds, “Calm down, dog.” Defendant
then exits the SUV, opens the back door, and tells Alexis G.: “Get
the fuck out of my car, homie. I’ll fucking kill you, homie.”
Defendant reaches into the back seat and backs up when a glass
bottle falls out. The video recorded the sound of a gun being
cocked, after which defendant shoots into the SUV’s backseat,
pulls a motionless Alexis G. out and dumps him on the ground,
and gets back into the SUV and drives off. After defendant got
back into his SUV and before he drove off, the video recorded him
saying something like, “Fucker had it coming.”
Police were dispatched and found Alexis G. lying face down
on the sidewalk and street at the scene of the shooting. Officer
Sollom was given the license plate number of a red SUV that was
observed leaving the scene of the shooting. Sollom spotted the
SUV driving at 25 miles per hour and followed the car while he
waited for backup. Sollom opined that the slow rate of speed
could have been the sign of an impaired driver.
While Sollom followed defendant, defendant did not commit
any traffic violations, he executed a series of turns, and he
parked cleanly in a residential driveway. Sollom pulled up
behind defendant, and defendant fled on foot. Sollom pulled his
gun and commanded defendant to come back, and defendant

4
complied. Defendant had no trouble understanding Sollom’s
instructions.
Sollom handcuffed defendant and placed him in his patrol
car. About 20 minutes elapsed between when the shooting was
reported and the handcuffing. Defendant smelled like alcohol,
but Sollom did not detect other objective signs of intoxication.
Sollom took defendant to the police station. Defendant provided
his name and birthdate, corrected the officer’s spelling of his
name, and had no issues going up the stairs at the police station.
When defendant got out of the police car at the station, he said he
was “buzzing.” Sollom believed that “buzzing” meant feeling the
effects of alcohol but not to the point of impairment or
intoxication.
Detective White interviewed defendant approximately nine
hours after defendant arrived at the police station. White noticed
that defendant’s eyes were “very bloodshot and watery,” and
defendant smelled like stale alcohol. White asked defendant
when he last saw Luis P., and defendant said the previous
morning or day at a Safeway. When White showed defendant the
video footage that the police had recovered of the shooting,
defendant started crying and slumped down. White testified that
defendant was not surprised when he saw the video and
defendant never indicated that he did not remember what had
happened.
A video of defendant’s police interview with White was
played for the jury. During the interview, after White played the
video of the shooting for defendant and told defendant that he

5
had an opportunity to tell the truth, defendant told White they
were drunk, got into an argument, and “that happened.”
Defendant admitted that he shot Alexis G. and tossed the gun out
on the road when he was driving. White asked what the shooting
was about, and defendant responded, “Just stupid things. I don’t
know. Like we were just talking and then he just like, he was so
drunk, like grabbing me . . . , right? And I was like stop. And
then he . . . kept going, he was drunk, and that’s when I snapped,
you know, but I didn’t do nothing wrong, nothing.” Defendant
gave White the approximate location where he had thrown the
gun, and police found the loaded gun and magazine discarded
along the route that defendant had driven after the shooting.
Alexis G. was hospitalized for over three months after the
shooting. For three to four months, he could not move from his
neck down.
The Defense Case
Officer Vickers went to the location where Sollom was
detaining defendant on the night of the shooting. Vickers spoke
with defendant for a few seconds and said to other officers later
in “banter” that defendant was “probably drunk” or “drunk as
hell.” However, the smell of alcohol was the only objective sign of
intoxication that Vickers observed, and Vickers testified that he
did not have adequate time to conclude whether defendant was
impaired.
Police found a total of 13 empty beer bottles at the scene of
the shooting and in defendant’s car. The bed of a truck parked in

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front of Luis P.’s residence also contained several empty Modelo
cans, some of which were double sized.
Professor Dr. Alan Wu, an expert in alcohol and its effects
on the human body, testified that alcohol impairs judgment and
can affect decision making, distort perception, diminish
inhibition, and result in reckless behavior and cause the eyes to
become watery. Alcohol typically makes a person more talkative,
impulsive, and aggressive. Alcohol can be excreted through
breathing and through the skin, and can be smelled. Dr. Wu
stated that in preparation for his testimony, he examined the
following: videos of the shooting and defendant’s questioning by
police at the time of his arrest and during his interrogation at the
police department, photographs of the scene of the shooting and
the vehicle in which defendant and Alexis G. had been seated,
and tabulations of the amount of alcoholic containers strewn
about the scene. Based thereon, his opinion was that, at the time
of the shooting, defendant was impaired, and in fact all three
men were impaired.
On cross-examination, Dr. Wu stated defendant’s
impairment could be slight to moderate, but he did not believe it
was significant because defendant was able to drive and
appeared cogent at the time of his arrest. Dr. Wu did not recall
hearing defendant threaten to kill Alexis G. on the video he had
watched, but it would have been important to him because it
suggested that defendant had thought about killing Alexis G. and
the shooting was not a random act, although it could also have
been part of defendant’s “impairment, paranoia, aggression.” Dr.

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Wu conceded that he had not known that Sollom did not observe
any traffic violations when following defendant.
On redirect, Dr. Wu opined that the fact that White
observed that defendant smelled of alcohol nine hours after he
was taken to the police station indicated that defendant likely
still had alcohol in his system and pointed to a very high level of
alcohol consumption the prior evening.
The jury convicted defendant of all remaining counts and
found true each of the enhancement allegations. The court
separately found the prior strike allegation true. The court
sentenced defendant to an aggregate term of 39 years to life in
prison, and defendant timely appealed.
DISCUSSION
I. Sufficiency of The Evidence of Willfulness,
Deliberation, and Premeditation
A. General Legal Principles
“ ‘[A]ttempted murder requires the specific intent to kill
and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ ” (People v. Smith (2005)
37 Cal.4th 733, 739.) An attempted murder “is premeditated and
deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse. [Citation.]
However, the requisite reflection need not span a specific or
extended period of time. ‘ “ ‘Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at
quickly . . . .’ ” ’ ” (People v. Stitely (2005) 35 Cal.4th 514, 543.)

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“Appellate courts typically rely on three kinds of evidence
in resolving the question raised here: motive, planning activity,
and manner of killing. (People v. Perez [(1992)] 2 Cal.4th 1117,
1125, applying People v. Anderson [(1968)] 70 Cal.2d 15, 26–27
[Anderson].) These factors need not be present in any particular
combination to find substantial evidence of premeditation and
deliberation. [Citation.] However, ‘[w]hen the record discloses
evidence in all three categories, the verdict generally will be
sustained.’ [Citation.] In conducting this analysis, we draw all
reasonable inferences necessary to support the judgment.”
(People v. Stitely, supra, 35 Cal.4th at p. 543.) The Anderson
factors provide a framework for assessing whether the evidence
supports an inference that the killing resulted from preexisting
reflection and weighing of considerations, but they are not
exhaustive or exclusive of other considerations. (People v.
Boatman (2013) 221 Cal.App.4th 1253, 1270 (Boatman).)
“Review on appeal of the sufficiency of the evidence
supporting the finding of premeditated and deliberate murder
[or attempted murder] involves consideration of the evidence
presented and all logical inferences from that evidence . . . .”
(People v. Perez, supra, 2 Cal.4th at p. 1124.) “ ‘[I]t is the jury,
not the appellate court which must be convinced of the
defendant’s guilt beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also
be reasonably reconciled with a contrary finding does not warrant
a reversal of the judgment.’ ” (Ibid.)

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B. Analysis
Defendant contends that the evidence is insufficient to
support the jury’s finding that his attempted murder of Alexis G.
was willful, deliberate and premeditated under Anderson, supra,
70 Cal.2d 15. We disagree. While the Anderson factors are not
exclusive, applying them here shows that, when viewed in the
light most favorable to the judgment, there was sufficient
evidence to sustain defendant’s conviction.
First, there was sufficient evidence of planning. While in
the SUV with his loaded gun, defendant told Alexis G. to get out
of the car and said he would kill him. Defendant then exited the
SUV, again demanded that Alexis G. get out, and again said he
was going to kill Alexis G. Defendant then appeared to try to pull
Alexis G. out of the car, stopped, stepped back, cocked his loaded
gun, shot Alexis G., pulled him out of the car, and dumped his
body on the ground. After the shooting, defendant said, “Fucker
had it coming.” The jury could reasonably infer from this
evidence that defendant formed a premeditated and deliberate
plan to kill Alexis G. while holding his loaded gun, tried to get
Alexis G. out of the car to kill him, and then opted to kill Alexis
G. in the car when he resisted. Around 20 seconds passed
between the time defendant first threatened Alexis G. in the SUV
and the shooting, but 20 seconds was sufficient time for
defendant to form and execute a deliberate and premeditated
decision to kill Alexis G. with his loaded gun. (See People v. Disa
(2016) 1 Cal.App.5th 654, 666 [planning activity occurring over a
short period of time sufficient to find premeditation and

10
deliberation]; People v. Kelly (1990) 51 Cal.3d 931, 956–957
[evidence sufficient to show willfulness, deliberation and
premeditation although this intent formed rapidly as victim
thwarted defendant’s attempt to kidnap and rape another].)
The second Anderson factor is motive. The People contend
that the evidence supports an inference that some form of
argument between defendant and Alexis G. provided defendant’s
motive to kill. We agree that defendant’s statements to police
that the two had an argument and Alexis G. was grabbing
defendant before the shooting, along with defendant’s statement
that Alexis G. “had it coming” after the shooting, provided
evidence of motive.
The third Anderson factor — the manner of the attempted
killing — also supports the jury’s finding of willfulness,
deliberation, and premeditation. Defendant shot Alexis G. in the
neck from a close range with a single bullet “indicative of a
deliberate intent to kill.” (People v. Koontz (2002) 27 Cal.4th
1041, 1082.) Defendant argues that the fact that he fired only
one bullet instead of many negates premeditation and
deliberation, but we disagree, especially considering Alexis G.
appeared motionless after the shooting. (See ibid.)
Relying on Boatman, supra, 221 Cal.App.4th 1253, and
People v. Wear (2020) 44 Cal.App.5th 1007, defendant argues that
his conviction must be reversed. In Boatman, the defendant shot
his girlfriend once in the face while they were in his bedroom, but
claimed the shooting was accidental. (Boatman, at p. 1257.) The
defendant gave conflicting accounts of what happened but was

11
heard weeping in the background during the 911 call reporting
the incident. (Id. at pp. 1258–1261.) The court concluded that
insufficient evidence supported the finding of premeditation and
deliberation. (Id. at p. 1274.) The case lacked any evidence of
planning and strongly suggested “a lack of a plan to kill.” (Id. at
p. 1267.) The court found no evidence of motive that would in
turn support an inference that the killing was the result of pre-
existing reflection, concluding that evidence the defendant and
his girlfriend had argued immediately prior to the killing was
more suggestive of an unconsidered or rash impulse to kill, rather
than premeditation and deliberation. (Id. at p. 1268.) As to the
manner of killing, the court acknowledged that a gunshot to the
face generally would constitute evidence of premeditation and
deliberation, but that no evidence suggested the shooting was an
“ ‘execution-style’ ” murder. (Id. at p. 1269.)
In People v. Wear, supra, 44 Cal.App.5th at page 1009, the
defendant and a friend went to meet an acquaintance (the victim)
to either buy or steal a gun and to possibly supply drugs. An
argument ensued, and the victim, who had two guns, shot the
defendant’s friend. (Id. at pp. 1009.) The defendant then took
one of the guns, shot the victim twice in the head, and fled. (Id.
at pp. 1009–1010.) Wear concluded that the evidence was
insufficient to support a finding that the murder was deliberate
and premeditated. (Id. at p. 1032.) There was some evidence of
motive — a witness testified defendant and the victim had
threatened to kill each other months before, but she did not
believe they were serious, and several hours after the shooting

12
the defendant said the victim deserved to be shot. (Id. at
pp. 1013–1014, 1017, 1029 & fn. 12.) But there was no evidence
of planning and the prior death threats occurred well before the
shootings, evincing no particular plan to follow through. (Ibid.)
Finally, while the manner of shooting was execution-style, it was
insufficient, viewing the evidence as a whole, to establish first
degree murder, especially when combined with the strong
evidence that the defendant impulsively shot the victim after the
victim shot the defendant’s friend. (Id. at pp. 1030–1032.)
Boatman and Wear are factually distinguishable. Unlike in
those cases, with a loaded gun, defendant here expressly stated
that he intended to kill Alexis G. multiple times and demanded
that he get out of the car; when Alexis G. did not comply,
defendant cocked his gun and shot Alexis G. in the neck from
close range. And unlike in Boatman and Wear, right after
announcing that he would kill Alexis G. and shooting him,
defendant said, “Fucker had it coming,” supporting the inference
that defendant considered the attempted killing and then
executed his plan. In this case, the evidence is sufficient to
support the jury’s finding of willful, deliberate, and premeditated
attempted murder.
II. The Instructional Error Claim
A. Additional Background
During discussions regarding jury instructions, the People
requested that the court add the phrase, “voluntary intoxication
is not a defense,” to the jury instructions for several general
intent offenses. The court ultimately incorporated limiting

13
language into a modified CALCRIM No. 3426. When the court
presented the modified CALCRIM No. 3426 instruction and
invited comment, the People pointed out a typographical error.
Defendant did not object to the substance of the instruction,
requesting only that the court give the modified CALCRIM
No. 3426 instruction after CALCRIM No. 601. After the court
confirmed that the instruction was placed after CALCRIM
No. 601, defense counsel responded, “Oh, okay. Submit.”
Defendant did not object to the court giving CALCRIM No. 362.
He objected to CALCRIM No. 372, but only because he
maintained that he left the scene slowly, which was not fleeing.
The court instructed the jury with the modified CALCRIM
No. 3426 that it could consider evidence of defendant’s
intoxication only for the purpose of deciding whether the People
had proven beyond a reasonable doubt that defendant acted with
the intent to kill, or with deliberation and premeditation. The
court also gave CALCRIM No. 372, which instructed the jury it
could consider evidence of defendant’s flight as indicating
consciousness of guilt, and CALCRIM No. 362, which instructed
that evidence of false statements could be considered probative of
consciousness of guilt. The People argued briefly in closing that
defendant’s flight and his false statement to White that he last
saw Luis P. on the morning of the shooting showed consciousness
of guilt.
B. Analysis
Relying on People v. Wiidanen (2011) 201 Cal.App.4th 526,
and People v. McGehee (2016) 246 Cal.App.4th 1190, defendant

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argues that giving the modified voluntary intoxication instruction
(CALCRIM No. 3426) with the instructions on consciousness of
guilt (CALCRIM Nos. 362 & 372) constituted instructional error.
Specifically, he contends that the voluntary intoxication
instruction improperly prevented jurors from considering
whether his flight and false statement to police reflected
intoxication rather than guilt. (See People v. Wiidanen, at p. 528
[finding instructional error in giving both CALCRIM Nos. 362 &
3462 where latter prohibited jury from considering intoxication in
determining whether defendant made false or misleading
statements “knowing the statements were false or intending to
mislead”]; People v. McGehee, at pp. 1204–1205 [reaching similar
conclusion with CALCRIM Nos. 362 & 3428].) Responding to the
People’s forfeiture argument, defendant contends that we should
review this instructional error claim because CALCRIM Nos. 362
and 372 misstated the law and affected his substantial rights.
Assuming without deciding that instructional error
occurred, any error was harmless. For the reasons set forth
below, we conclude that it is not reasonably probable that
defendant would have achieved a more favorable result in the
absence of the claimed instructional error. (People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson).)2
Defendant contends that he established prejudice under
Watson because, without the instructional error, the jury would

2 In his opening brief, defendant argues the instructional

error at issue should be reviewed under Watson, supra, 46 Cal.2d
818, and the People agree. We will accordingly apply Watson to
assess prejudicial error.

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not have found deliberation or premeditation, or that he harbored
the specific intent to kill. But there was overwhelming evidence
that defendant intentionally shot into the SUV after announcing
his intent to kill Alexis G., and a reasonable jury would not
understand the consciousness of guilt instructions to specifically
address defendant’s mental state for the murder charge. In
People v. Arias (1996) 13 Cal.4th 92, 142, the court gave a
consciousness of guilt instruction based on the defendant’s false
statements, and the defendant argued that a clarifying
instruction should have been given that jurors were not
permitted to use his statements against him on the issue of
intent to kill. Our high court concluded that a clarifying
instruction was not necessary. (Ibid.) “[T]he instruction told the
jury only that pretrial lies may bear on ‘consciousness of guilt’
(italics added); a reasonable jury would understand this phrase to
mean only ‘consciousness of some wrongdoing,’ not consciousness
of each and every element of the charged offense.” (Ibid.; see also
People v. Crandell (1988) 46 Cal.3d 833, 871 [consciousness of
guilt “instructions do not address the defendant’s mental state at
the time of the offense and do not direct or compel the drawing of
impermissible inferences in regard thereto”].) The same logic
applies to CALCRIM Nos. 362 and 372. Because a reasonable
juror instructed with CALCRIM Nos. 362 and 372 would not
understand them to mean that pretrial lies or flight can be used
to draw inferences regarding premeditation and deliberation or
specific intent to kill, defendant fails to substantiate his prejudice
argument.

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Furthermore, the jury here specifically considered
defendant’s alleged intoxication but concluded it did not affect his
ability to form the specific intent to kill Alexis G. with
deliberation and premeditation at the time of the shooting. And
any evidence that intoxication inhibited defendant’s awareness of
guilt immediately after the crime or his knowledge of the falsity
of his statement to police thereafter is weak. The false statement
at issue was defendant’s statement that he had last seen Luis P.
on the morning of the shooting, but, after police revealed the
video of the shooting to defendant, defendant started crying and
slumped down, then readily discussed the shooting and the fact
that Luis P. had been with him that night. These responses
provide strong evidence that defendant was conscious of his guilt
when he fled from Sollom and lied to White, rather than
intoxicated.
Based on this record, defendant fails to establish
prejudicial error under Watson, supra, 46 Cal.2d 818.
III. The Section 12022.53(d) Enhancement
At the sentencing hearing, the court expressly
acknowledged that it had discretion to strike or reduce the
section 12022.53(d) enhancement, but it declined to do so.
Stating, “The Court does find given the conduct in this particular
case that a dismissal of this enhancement would endanger the
public safety,” the court instead imposed the section 12022.53(d)
enhancement on count one.
Defendant argues that the trial court abused its discretion
by declining to strike the section 12022.53(d) enhancement

17
because the decision “was predicated on speculation that striking
the enhancement[ ] would result in [defendant’s] being released
from prison while dangerous.” His argument has two main
components: first, per People v. Gonzalez (2024) 103 Cal.App.5th
215, 228–230 (Gonzalez), he contends that the court’s finding was
speculative because it did not consider the role that the Board of
Parole Hearings would play when evaluating whether to release
defendant on parole if the enhancement were stricken; and,
second, he argues that, because the Board of Parole Hearings
must consider changes in a defendant’s maturity, understanding,
and mental state during imprisonment when deciding whether
release on parole would threaten public safety, and because trial
court could not know what these changes would be, the trial court
could not logically conclude that dismissal of the enhancement
would endanger public safety.
Gonzalez, supra, 103 Cal.App.5th 215 is distinguishable
and does not assist defendant here. In Gonzalez, the defendant
argued that the trial court should consider what his release date
would be in determining whether he posed an unreasonable risk
of danger to the public under section 1385. (Gonzalez, at pp. 221,
223–224.) The record affirmatively established that the trial
court focused only on the defendant’s current dangerousness
when deciding whether to strike an enhancement. The appellate
court reversed, holding that the trial court applied an incorrect
legal standard by focusing solely on “whether the defendant
currently poses a danger.” (Id. at p. 228.) In addition to the
defendant’s current dangerousness, a sentencing court should

18
consider how dismissal of enhancements would impact the length
of the defendant’s sentence or parole eligibility, because a
defendant “who has no prospect of release from prison until he is
elderly” may pose less of a risk to public safety. (Id. p. 228; see
id. at pp. 228–229.) For a defendant serving a lengthy
indeterminate sentence, a sentencing court should “take into
account that the defendant’s release from prison is contingent on
review by the Board of Parole Hearings” because such “future
review will act as a safety valve against a release that would
endanger the public.” (Id. at p. 228.)
Unlike Gonzalez, the court here did not expressly limit its
analysis to an assessment of defendant’s current dangerousness.
We thus must presume that the court considered the length of
defendant’s sentence and the future role of the Board of Parole in
making its determination, as there is nothing in the record that
establishes otherwise. “We assume the trial court was aware of
and followed applicable law.” (People v. Coleman (2024)
98 Cal.App.5th 709, 724.) The court was not required to
expressly state what time period it was relying on in considering
whether to dismiss the enhancement. (See People v. Bravo (2025)
107 Cal.App.5th 1144, 1157 [if court declines to dismiss
enhancement under section 1385, it is not mandated to use any
“particular language” in doing so].)
Next, we reject defendant’s argument that “it was logically
impossible” for the trial court to have found that dismissal of the
enhancement would endanger public safety because the court had
to (but could not) consider the changes in the defendant’s

19
maturity, understanding, and mental state during imprisonment
for an indeterminate sentence. Defendant correctly observes that
a sentencing court deciding whether to strike an enhancement
under section 1385 will never know for certain what changes may
occur to the defendant’s maturity, understanding and mental
state during imprisonment. Under defendant’s view, then, a
court could never determine that dismissal of the enhancement
would endanger public safety where a defendant’s sentence
included an indeterminate term. But the plain language of
section 1385 simply does not limit the statute’s application to
cases involving determinate sentencing. (See Gonzalez, supra,
103 Cal.App.5th at p. 228, fn. 10 [“We do not suggest that a trial
court is permitted to delegate its judgment regarding a
defendant’s future threat to public safety to the Board of Parole
Hearings”].)
IV. Correction of Record Errors
We agree with the parties that the court’s sentencing
minute order incorrectly states that the trial court imposed a
term of 14 years to life for his conviction for shooting into an
occupied vehicle (§ 246), whereas the reporter’s transcript
correctly reflects that the court imposed a 14-year determinate
sentence stayed pursuant to section 654 for that conviction. We
also agree with the parties that defendant’s stayed determinate
sentences for assault with a semiautomatic firearm (§ 245,
subd. (b)) and shooting into an occupied vehicle (§ 246) are
incorrectly reflected on the abstract of judgment for defendant’s
indeterminate prison term and should instead be listed only on

20
the abstract of judgment for defendant’s determinate prison term.
These errors should be corrected by the trial court.
DISPOSITION
This matter is remanded to the trial court to correct the
errors in the sentencing minute order and abstract of judgment
delineated above. The clerk of the superior court is directed to
prepare a corrected abstract of judgment for defendant’s
indeterminate and determinate terms and to forward a certified
copy to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.
GORDON, J.

People v. Baltazar (A171648)


Judge of the Superior Court of San Francisco County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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