Filed 9/14/26 P. v. Barrasa CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
E086590
Plaintiff and Respondent,
(Super.Ct.Nos. FSB24004566,
v. & FSB25000838)
SALVADOR BARRASA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Reversed and remanded.
William D. Farber, 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, Assistant Attorney General, Christine Y. Friedman and
Joshua Trinh, Deputy Attorneys General, for Plaintiff and Respondent.
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Salvador Barrasa pled guilty in two separate cases to second degree robbery and
petty theft, and he was sentenced to the upper term for the robbery conviction. On
appeal, Barrasa argues the trial court erred by imposing the upper term without finding
any aggravating factors true. The People concede the trial court erred but argue Barrasa
forfeited the issue. We reverse and remand for resentencing.
BACKGROUND
In December 2024 Barrasa pled guilty to second degree robbery. (Pen. Code,
§ 211.)1 Following his plea agreement, the trial court suspended imposition of his
sentence and placed him on two years’ formal probation.
On February 5, 2025 Barrasa admitted to violating probation by failing to report.
The court reimposed probation, added a condition that he serve 97 days in county jail,
then awarded him 97 days of custody credits. It also ordered him to report two days later.
On February 21, 2025 the probation department filed a petition for revocation
based on Barrasa’s failure to appear. The court revoked probation and issued a warrant
for his arrest.
On March 3, 2025, Barrasa was charged in a new case with petty theft with two
prior felony theft convictions. (§ 666.1, subd. (a)(1).) Barrasa was arraigned on the new
petty theft conviction on March 4, and on the second probation violation on March 6.
Barrasa entered a plea agreement in both cases on March 26, 2025, admitting the
probation violation, pleading no contest to the petty theft charge, and admitting to the two
1 Unlabeled statutory citations refer to the Penal Code.
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alleged prior convictions. He also admitted the probation violation. In exchange, Barrasa
was placed back on probation with the condition he serve two concurrent 180 day
commitments in county jail.
In April 2025 the probation department filed a third petition for revocation, again
alleging Barrasa failed to report. Prior to the probation revocation hearing, the probation
department prepared a supplemental report listing several alleged aggravating
circumstances. These aggravating circumstances were that the crime involved threat of
great bodily injury, Barrasa was armed, the victim was particularly vulnerable, the crime
involved a taking of great monetary value, Barrasa engaged in violent conduct, had prior
convictions of increasing severity, and he served prior prison terms. It recommended
revoking probation and imposing the upper term of five years for the robbery conviction.
The court held a probation violation hearing in July 2025. The court found
Barrasa violated probation, then revoked and terminated it. The court explained its
decision by saying that probation was not an option because Barrasa did not have a
significant break in his criminal activity after his first conviction in 1998 and he
continued to be violent and to steal. The court then sentenced Barrasa to the upper term
of five years for the robbery conviction, plus a consecutive eight months (one-third the
middle term) for the petty theft conviction. The court made no specific findings about
aggravating factors, nor did it otherwise explain the reason for imposing the upper
sentence.
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DISCUSSION
Barrasa argues the trial court erred by imposing the upper term without a
competent factfinder first finding any alleged aggravating factor true, and without stating
the basis for imposing that sentence. The People concede the court prejudicially erred,
but argue Barrasa forfeited the issue by failing to raise it below.
“In order to encourage prompt detection and correction of error, and to reduce the
number of unnecessary appellate claims, reviewing courts have required parties to raise
certain issues at the time of sentencing. In such cases, lack of a timely and meaningful
objection forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351.) This
includes “complaints about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons . . . .” (Id. at p. 356.)
Barrasa concedes he did not object to the trial court’s decision to impose the upper
term on the specific grounds that this decision was unlawful, but only in the general sense
that he opposed any sentence beyond reimposing probation. A panel of the Court of
Appeal has found a defendant forfeited a claim that a low-term sentence was mandated
under § 1170, subdivision (b)(6), which requires a factual basis that triggers the low term.
(People v. Achane (2023) 92 Cal.App.5th 1037, 1044 (Achane).) Presented with a similar
issue, a different panel concluded that where there was a presumption of a particular term
without any factual findings, a defendant did not “forfeit[] the benefit of the
presumption,” which “is not subject to forfeiture.” (People v. Frederickson (2023) 90
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Cal.App.5th 984, 994 fn.8.) Another panel has sided with the latter case. (See People v.
Lopez-Tapia (2026) 120 Cal.App.5th 690, 697.)
Here, unlike the cases involving a low term presumption when facts support it,
Barrasa needed make no argument nor offer any evidence to obtain the benefit of the
middle-term presumption, nor to trigger the requirement that the trial court state the
reasons for choosing a higher sentence. What he is arguing for was required by statute.
(§ 1170, subds. (b)(2), (b)(5).)
In any event, “neither forfeiture nor application of the forfeiture rule is automatic.”
(People v. McCullough (2013) 56 Cal.4th 589, 593.) An appellate court may choose to
“refrain from applying the forfeiture bar,” under its discretion. (Ibid.) Here, “[w]e
decline to decide whether there was any forfeiture; even if there were, we would exercise
our discretion to address the issue on the merits to forestall a claim of ineffective
assistance of counsel.” (People v. Lua (2017) 10 Cal.App.5th 1004, 1014; People v.
Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Crittenden (1994) 9 Cal.4th 83,
146.)
Under section 1170, subdivision (b)(2) “[t]he court may impose a sentence
exceeding the middle term only when there are circumstances in aggravation . . . and the
facts underlying those circumstances have been stipulated to by the defendant or have
been found true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” “[A] defendant is entitled to a jury trial on all aggravating facts, other than the
bare fact of a prior conviction and its elements, that expose the defendant to imposition of
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a sentence more serious than the statutorily provided midterm.” (People v. Wiley (2025)
17 Cal.5th 1069, 1086 (Wiley).) “The burden is on the People to prove beyond a
reasonable doubt the facts relied on to justify an upper term sentence. If those facts are
properly proven, the court may take them into account and exercise its discretion under
section 1170(b) to determine what sentence to impose.” (Ibid.) The court “shall set forth
on the record the facts and reasons for choosing the sentence imposed.” (§ 1170,
subd. (b)(5).)
“When a defendant is deprived of a jury trial on aggravating facts used to justify
imposition of an upper term sentence, the reviewing court must apply the Chapman [v.
California (1967) 386 U.S. 18] standard of review. [Citations.] Under that standard, ‘a
sentence imposed under . . . section 1170(b) must be reversed and remanded unless the
reviewing court concludes beyond a reasonable doubt that a jury, applying that same
standard, would have found true all of the aggravating facts upon which the court relied
to conclude the upper term was justified, or that those facts were otherwise proved true in
compliance with the current statute.” (Wiley, supra, 17 Cal.5th at p. 1087.)
Here, the People correctly concede that the trial court imposed the upper term
without first finding any aggravating facts true, and that Barrasa neither waived a jury
trial on those factors nor admitted those factors. Indeed, the court never discussed its
reasoning for imposing the upper term at all, and only described its reasoning for denying
probation. The People further concede that “[t]his error was not harmless beyond a
reasonable doubt.” We agree. The prosecution offered no evidence in favor of any of the
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aggravating factors proposed by the supplemental probation report. Being on probation,
and unsatisfactory performance on probation, are both aggravating factors a court may
consider, and which the People necessarily proved at the probation revocation hearing.
(Cal. Rules of Court, Rule 4.421(b)(4)-(5).) However, the People correctly concede this
was not enough, as the standard at a probation revocation hearing is only preponderance
of the evidence and not the beyond a reasonable doubt standard required to prove an
aggravating factor. (People v. Rodriguez (1990) 51 Cal.3d 437, 447 [“we hold that proof
of facts supporting the revocation of probation . . . may be made by a preponderance of
the evidence”].)
We also agree with the parties that given the error, the appropriate remedy is to
remand for resentencing. (Achane, supra, 92 Cal.App.5th at p. 1044.) On remand, the
prosecution should be given the opportunity to prove the aggravating circumstances if
they so wish. Regardless, when resentencing the trial court may not consider any
aggravating circumstances not so proven.
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DISPOSITION
We vacate Barrasa’s sentence and remand for resentencing. On remand, the
prosecution may choose to prove the necessary aggravating circumstances by any
appropriate vehicle.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
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