Filed 10/27/26 P. v. Berriozabal CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B341413
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA329101
v.
STEVEN BERRIOZABAL et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Jacqueline H. Lewis, Retired Judge. Reversed
and remanded.
Bases & Bases, Arielle Bases, under appointment by the
Court of Appeal, for Appellant Steven Berriozabal.
Elizabeth Richardson-Royer, under appointment by the
Court of Appeal, for Appellant Jorge Reyes.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jonathan J. Kline and Megan Moine,
Deputy Attorneys General, for Plaintiff and Respondent
Defendants and appellants Steven Berriozabal and Jorge
Reyes were convicted of two counts of robbery and one count of
unlawfully taking a vehicle. Each defendant was sentenced to an
aggregate term of 33 years and 8 months for their underlying
crimes and various enhancements. Years later the superior court
resentenced defendants under Penal Code section 1172.75.1 The
court struck the prior-prison-term enhancement for each
defendant but otherwise reimposed the original terms. On
appeal, both defendants contend that the court failed to properly
apply various provisions of the ameliorative sentencing laws
enacted since 2008. We vacate the true findings on the gang
enhancements under Assembly Bill No. 333 (2021−2022 Reg.
Sess.) (AB 333) and remand for the trial court to determine
harmlessness in the first instance. In all other respects we
affirm.
BACKGROUND
I. The Offense and the 2008 Judgment
Berriozabal and Reyes stole a car and then robbed three
elderly women walking to church at gunpoint.2 A jury convicted
1 All undesignated statutory references are to the Penal Code.
Because the two appeals arise from a single resentencing proceeding
and present overlapping contentions, we resolve them together.
2 The People’s statement of facts draws on this court’s opinion in
the prior appeal, People v. Reyes and Berriozabal (Dec. 17, 2009,
B211478) [nonpub. opn.], of which they ask us to take judicial notice.
We notice the existence of that proceeding and this court’s decision
(People v. Marlow (2004) 34 Cal.4th 131, 149), but not the truth of the
factual matters recited in the opinion (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1564–1565). We draw the facts stated here from the
record of the resentencing proceeding.
2
both defendants of two counts of second degree robbery (§ 211)
and one count of unlawfully taking or driving a vehicle
(Veh. Code, § 10851, subd. (a)), and as to each defendant found
true a firearm enhancement (§ 12022.53, subd. (b)) and a gang
enhancement (§ 186.22, subd. (b)(1)(C)) on each robbery count.
At a bifurcated bench trial the court found true one prior-prison-
term allegation (§ 667.5, former subd. (b)) as to each defendant.
The trial court sentenced each defendant to an aggregate
term of 33 years 8 months. On count 1, the first robbery, the
court imposed the upper term of five years, plus 10 years for the
firearm enhancement, 10 years for the gang enhancement, and
one year for the prior-prison enhancement, for a term of 26 years.
On count 2, the second robbery, it imposed a consecutive
subordinate term of one-third the middle term (one year), plus
one-third of each enhancement (three years four months each),
for a term of 7 years 8 months. On count 3, the vehicle count, it
imposed a concurrent middle term of three years.
The record on appeal omits the reporter’s transcript of the
2008 trial. The reporter who took those proceedings is no longer
employed by the court, but her stenographic notes remain
archived in the superior court’s repository. The affidavit in lieu
of a transcript states that Court Reporter Services was unable to
secure a note reader to transcribe them for this request.
II. The 2024 Section 1172.75 Resentencing
With an exception not applicable here, section 1172.75
invalidates the section 667.5, subdivision (b), prior-prison
enhancement and authorizes recall of any sentence that included
it. Berriozabal and Reyes each sought resentencing under this
statute. Each was represented by counsel, and each asked the
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court to apply various ameliorative sentencing laws enacted since
2008.
On September 25, 2024, the superior court recalled the
2008 sentence and stated that both defendants would receive “a
full resentencing as required by law.” In the interest of justice,
the court struck the section 667.5, subdivision (b), prior-prison
enhancement for both defendants “and, otherwise, [left] their
sentence intact.”
Turning to the upper term on count 1, the court stated: “I
would note that the original court sentenced them to the high
term, and, therefore, the changes in the law really do not apply to
them, and certainly it was deserving in this case and the
egregiousness.” The court then reimposed, as to both defendants,
the upper term of five years on count 1, the firearm enhancement
under section 12022.53, subdivision (b), and the gang
enhancement under section 186.22, subdivision (b)(1)(C), without
stating any analysis of the elements added to section 186.22 by
AB 333. The subordinate term on count 2 and the concurrent
term on count 3 were left undisturbed. With the one-year prior-
prison enhancement stricken, the court reimposed an aggregate
term of 32 years 8 months as to each defendant.
DISCUSSION
I. The Gang Enhancement Findings Must Be Reconsidered
under Assembly Bill 333
AB 333 changed what the prosecution must prove to
establish a gang enhancement. As relevant here, it narrowed the
definition of a “criminal street gang,” required that any pattern of
criminal activity be one the gang’s members “collectively engage”
in, and required that the offense have “commonly benefited” the
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gang in a way that is “more than reputational.” (§ 186.22, subds.
(e)(1), (f), (g); see People v. Clark (2024) 15 Cal.5th 743, 761–762
[describing the “organizational nexus” the amended statute
requires].) The jury that found the gang enhancements true in
2008 was not instructed on these requirements because they did
not yet exist.
The amendments apply to these defendants. A recall and
resentencing under section 1172.75 reopens the judgment, and a
sentence that has been reopened is not final for purposes of In re
Estrada (1965) 63 Cal.2d 740. Our Supreme Court so held in
People v. Lopez (2025) 17 Cal.5th 388, concluding that a case “in
which an appellate court has affirmed the conviction and
remanded for reconsideration of sentencing-related issues[ ] is
not final” and that ameliorative legislation therefore applies. (Id.
at pp. 392–393.) The People agree that AB 333 applies and that a
remand is required. So do we.3
The parties divide, however, over who assesses
harmlessness and when. The People contend that the trial court
should determine in the first instance whether the failure to
instruct on the amended elements of gang enhancement was
harmless beyond a reasonable doubt, and that the present record
does not permit that determination now. (See People v. Tran
(2022) 13 Cal.5th 1169, 1207 [omission of an element added by
intervening law requires reversal unless it appears beyond a
reasonable doubt that the verdict would have been the same].)
We agree that a limited remand is the appropriate course.
3 Because we reach the defendants’ contentions on the merits, we
need not address Berriozabal’s argument that his claims were
preserved below, and we do not reach his alternative contention that
trial counsel rendered ineffective assistance in failing to raise them.
5
Defendants urge a different course, but we are not
persuaded. They contend we should vacate the enhancements
outright and remand only for a possible retrial.
We agree that in our discretion, in the appropriate case, we
can determine whether the erroneous imposition of a gang
enhancement was harmless based on the appellate record. For
example, in People v. Cooper (2023) 14 Cal.5th 735, 743–
747 (Cooper), our Supreme Court did so on a developed record.
But here, unlike in Cooper, no reporter’s transcript of the 2008
trial has been prepared, and the trial evidence is not available to
us. Accordingly, the trial court is better positioned to develop
that record and to assess harmlessness against it.
We do not shift the burden the law assigns. The burden of
establishing that the omission of a correct jury instruction was
harmless beyond a reasonable doubt rests with the People, as the
beneficiaries of the error, and it remains with them on remand.
(People v. Cutting (2019) 42 Cal.App.5th 344, 349.) We express
no view on how the harmlessness question should be resolved.
II. The Court Was Authorized to Reimpose the Upper Term
Without New Jury Findings
Senate Bill No. 567 (2021−2022 Reg. Sess.) amended
section 1170 after defendants were sentenced. (Stats. 2021, ch.
731, §§ 1-3.) Under the amended statute, the middle term
sentence must be imposed unless aggravating circumstances
have been found true beyond a reasonable doubt at trial or the
parties stipulated to the existence of such circumstances. (See
§ 1170, subd. (b)(2).)
Both defendants contend that when the court reimposed
the upper term on count 1 it was required to find beyond a
reasonable doubt that the requisite aggravating circumstances
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existed. The trial court’s failure to make such findings,
defendants argue, violated their Sixth Amendment rights. We
reject this argument.
Section 1172.75, subdivision (d)(4) provides a specific rule
for resentencing: “Unless the court originally imposed the upper
term, the court may not impose a sentence exceeding the middle
term unless there are circumstances in aggravation that justify
the imposition of a term of imprisonment exceeding the middle
term, and those facts 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.” (§ 1172.75, subd. (d)(4),
italics added.)
The plain text of section 1172.75, subdivision (d)(4),
authorizes the court to reimpose the upper term without making
findings of aggravating circumstances because the original court
had imposed the upper term. The Sixth Amendment does not
require otherwise.
We acknowledge there is a split of authority on how to
interpret section 1172.75, subdivision (d)(4) and that the issue is
currently pending in the California Supreme Court. (See People
v. Eaton, review granted May 14, 2025, S289903 [The court shall
decide whether “a trial court [may] reimpose a previously
imposed upper term sentence under Penal Code section 1172.75,
subdivision (d)(4) where the facts underlying one or more
aggravating circumstances were neither stipulated to by the
defendant nor found true beyond a reasonable doubt at trial by
the jury or by the judge in a court trial”].)
We agree with People v. Brannon-Thompson (2024) 104
Cal.App.5th 455, 458 (Brannon-Thompson), that section 1172.75,
subdivision (d)(4) “does not require aggravating factors to be
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found true beyond a reasonable doubt if the upper term was
previously imposed.” The opening clause is written as an
exception, not a condition: it “carves out an exception to the
general rule that all ameliorative changes to the law must be
applied at a section 1172.75 resentencing.” (Brannon-Thompson,
at p. 458; accord, People v. Moss (2026) 120 Cal.App.5th 375, 380,
review granted July 22, 2026, S296595; People v. Dozier (2025)
116 Cal.App.5th 700, 715, review granted Feb. 11, 2026, S294597;
People v. Mathis (2025) 111 Cal.App.5th 359, 371–374 (Mathis),
review granted Aug. 13, 2025, S291628.)
People v. Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez)
disagrees with the Brannon-Thompson line of cases. Gonzalez
holds that Brannon-Thompson’s interpretation of section 1172.75,
subdivision (d)(4) would violate the Sixth Amendment.
(Gonzalez, at p. 330.) We respectfully disagree with Gonzalez.
Where “the trial court elects to retain an upper term
sentence that complied with the Sixth Amendment when
originally imposed, the court need not engage in any additional
factfinding under section 1172.75, subdivision (d)(4).” (Mathis,
supra, 111 Cal.App.5th at pp. 373−74.) In other words, there is
no Sixth Amendment problem with the reimposition of an upper
term sentence that complied with the Sixth Amendment at the
time it was originally imposed.
Here, the original court imposed the upper term of five
years on count 1 against both defendants in 2008. The original
court did so after the jury found defendants guilty beyond a
reasonable doubt in compliance with their Sixth Amendment
rights. Accordingly, when the trial court resentenced defendants,
it properly reimposed the upper term without making findings
about aggravating circumstances.
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The defendants’ remaining arguments do not alter that
conclusion. Berriozabal invokes the rule of lenity, but that rule
“applies ‘only if two reasonable interpretations of the statute
stand in relative equipoise’ ” and has no application where a
court “can fairly discern a contrary legislative intent.” (In re
M.M. (2012) 54 Cal.4th 530, 545.) That is not the case here,
where the language of the statute is clear. And because we
conclude the upper term was authorized and its reimposition was
no error, we do not reach the defendants’ contention that any
failure to apply Senate Bill 567 was not harmless beyond a
reasonable doubt.
III. The Remaining Sentencing Contentions Do Not Require
Reversal
Defendants raise two additional challenges to the
resentencing: (1) that the trial court failed to afford the
mitigating circumstances the “great weight” section 1385,
subdivision (c), demands; and (2) that it failed to consider
substituting a lesser firearm enhancement under section 12022.5
for the enhancement imposed under section 12022.53. Reyes also
argues the trial court failed to apply the age-based low-term
presumption of section 1170, subdivision (b)(6), to him, and that
it failed to sentence him on his own record. We reject these
challenges in turn.
A. The Court Did Not Abuse Its Discretion in Declining
to Dismiss the Firearm and Gang Enhancements
Section 1385, subdivision (c)(1), directs the court to dismiss
an enhancement “if it is in the furtherance of justice to do so,”
and subdivision (c)(2) requires it to “afford great weight” to the
enumerated mitigating circumstances. Berriozabal contends the
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court failed to afford these mitigating circumstances great
weight. Reyes contends the court never engaged the mitigating
circumstances at all, weighing only the aggravating side of the
ledger. We review the decision not to dismiss for abuse of
discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298;
People v. Carmony (2004) 33 Cal.4th 367, 371.)
Defendants’ argument fails to acknowledge a basic
presumption on appeal. We presume the court considered all
relevant mitigating circumstances absent an affirmative showing
to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Defendants have not made that showing. That the court did not
utter the words “great weight” or name each enumerated
circumstance does not establish that it failed to weigh them. The
statute requires weighing, not recitation.
Moreover, the record here confirms the weighing. The
court stated that it had read and considered the resentencing
petitions, which set out the mitigating circumstances the
defendants now invoke. It then identified substantial
countervailing factors: a gunpoint robbery of three elderly
churchgoers, and continuing criminal conduct in custody by both
defendants, including a recent conviction of Berriozabal for
assault with a deadly weapon by a prisoner, for which he was
sentenced to a consecutive 32 months. On that record it declined
to strike the enhancements. A court that considers the
mitigating circumstances and then identifies substantial, credible
evidence of countervailing conduct that may “neutralize even the
great weight of the mitigating circumstance” has done what the
statute asks. (People v. Walker (2024) 16 Cal.5th 1024, 1036.)
The decision to decline dismissal on this record was not arbitrary,
and we find no abuse of discretion.
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B. The Court Was Not Required to Consider
Substituting a Lesser Firearm Enhancement
Defendants contend the court should have considered
striking the section 12022.53, subdivision (b) firearm
enhancement and imposing in its place a lesser enhancement
under section 12022.5, the substitution authorized by People v.
Tirado (2022) 12 Cal.5th 688 (Tirado). The court did not overlook
its power to strike the enhancement. It expressly declined to
strike it.
A court abuses its sentencing discretion if it is “unaware of
the scope of its discretion” and so fails to exercise informed
discretion, but the challenger bears the burden of affirmatively
showing that unawareness. (People v. Knowles (2024) 105
Cal.App.5th 757, 765 (Knowles).) By the 2024 resentencing,
Tirado and a decision applying it, People v. McDavid (2024) 15
Cal.5th 1015, were settled law, and in the absence of any
contrary indication we presume the court knew and applied these
decisions. (People v. Thomas (2011) 52 Cal.4th 336, 361 [absent
evidence to the contrary, court is presumed to “know[ ] and
appl[y] the correct statutory and case law”]; People v. Ramirez
(2021) 10 Cal.5th 983, 1042.) The record here is silent, not
affirmatively contrary, and “[w]e may not presume error from a
silent record.” (Knowles, at p. 765.) The point is reinforced as to
Reyes, whose own resentencing petition listed the firearm-
enhancement discretion among the ameliorative changes he
asked the court to apply.
The defendants’ reliance on People v. Salazar (2023) 15
Cal.5th 416 and People v. Gutierrez (2014) 58 Cal.4th 1354 is
misplaced. Those decisions require a remand where the record
affirmatively shows the court misunderstood its discretion. They
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do not displace the presumption that the court understood it
where, as here, the record is merely silent.
C. The Age-Based Low-Term Presumption Was Not
Triggered on the Showing Reyes Made
Reyes was twenty-one at the time of the original offense.
He argues that section 1170, subdivision (b)(6)—which directs the
low term where the defendant’s youth or childhood trauma
contributed to the offense—obligated the court to impose the low
term on count 1. We review the sentence for abuse of discretion.
(People v. Williams (1998) 17 Cal.4th 148, 162.)
We do not doubt that the childhood circumstances Reyes
recounts in his letter to the court are real and serious. But the
statute does not make the low term presumptive for every young
defendant or every defendant who has suffered hardship.
The presumption arises only “if” the defendant’s youth or
trauma “was a contributing factor in the commission of the
offense.” (§ 1170, subd. (b)(6).) Youth or trauma standing alone
does not suffice. There must be “some initial showing” that the
circumstance played a causal role in the crime before the low
term becomes presumptive. (People v. Fredrickson (2023) 90
Cal.App.5th 984, 991–992 (Fredrickson); Knowles, supra, 105
Cal.App.5th at p. 765 [“the mere fact a defendant is young or has
suffered past trauma is insufficient”]; see People v. Hilburn
(2023) 93 Cal.App.5th 189, 204–205.) Reyes did not make that
showing. His arguments establish that he was young, that he
had endured childhood hardship, and that youth as a general
matter may diminish culpability. But the statute asks not
whether those circumstances existed, but whether they
“contribut[ed]” to the commission of this offense, and neither his
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resentencing memorandum nor his argument to the sentencing
court drew that connection.
In reply, Reyes contends that his letter explains how his
childhood trauma led him to join a gang, and that the robbery
was gang related. But even a showing that trauma contributed
to gang membership is not a showing that it contributed to the
robbery, and the statute requires the latter. On the showing
made, the presumption was not triggered, and the court was not
required to impose the low term or to make findings explaining
its decision not to. (Fredrickson, supra, 90 Cal.App.5th at
pp. 993–994.) Its imposition of a term above the low term was
not an abuse of discretion.
D. The Record Reflects the Individualized
Consideration Reyes Was Due
A sentencing court must weigh the circumstances of each
defendant individually. (People v. Foster (1988) 201 Cal.App.3d
20, 27.) Reyes contends the court treated him and Berriozabal as
a single unit, importing Berriozabal’s more serious in-custody
conduct into Reyes’s sentence and denying him individualized
consideration. We disagree.
Reyes primarily relies on a single statement of the trial
court. The court noted that “both” defendants had “been
continuing” their criminal conduct in custody. This statement
was made just after the court recited Berriozabal’s more serious
drug-smuggling offense.
We presume the trial court’s judgment is correct unless the
appellant affirmatively shows otherwise. (County of Los Angeles
v. Niblett (2025) 116 Cal.App.5th 454, 462−463.) We also draw
all presumptions in favor of the trial court’s express and implied
findings. (People v. Demolle (2026) 19 Cal.5th 1117, 1140).
13
Based on the record of the resentencing hearing, we conclude that
Reyes has not affirmatively shown the trial court erred.
At the resentencing hearing, Reyes’s counsel acknowledged
Reyes’s record and distinguished it from Berriozabal’s. Reyes
points to nothing in the record showing the trial court failed to
consider this argument.
Moreover, the trial court’s explanation of its reasoning was
generally organized defendant by defendant. At one point, before
reciting Reyes’s in-custody offenses, the court clarified, “this is
Mr. Reyes.” The court then pointed to facts concerning Mr. Reyes
it considered. The court expressly noted Reyes’s in-custody
history includes two narcotics offenses. The first was a conviction
for violating section 4573 arising from a 2014 incident in which
he brought marijuana into the facility hidden in his sock. Reyes
entered a no-contest plea and was sentenced to a four-year term.
The second was a 2017 conviction under section 4573.6 for
narcotics in custody, for which he received a further four-year
consecutive term. The court also noted Reyes was repeatedly
reprimanded for possession of contraband cell phones. From that
record—two drug offenses committed in custody, together with
the unlawful cell phones—the court reasonably concluded that
Reyes’s criminal and unlawful conduct had continued in prison,
based on his individual record.
Contrary to Reyes’s assertion, the court did not import
Berriozabal’s smuggling conviction into Reyes’s sentence. It drew
its conclusion from Reyes’s own offenses, which it recited
separately as his. The trial court’s isolated statement quoted by
Reyes does not affirmatively show otherwise.
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DISPOSITION
The true findings on the gang enhancements under section
186.22 are vacated as to both defendants. The matter is
remanded for the trial court to determine whether the failure to
instruct the jury on the elements Assembly Bill 333 added was
harmless beyond a reasonable doubt. If the court determines the
omission was harmless, it shall reinstate the findings, and the
judgment as modified at the September 25, 2024 resentencing
shall stand. If the court does not so determine, it shall strike the
findings, and the People may elect to retry the enhancements
under the elements section 186.22 now requires.
In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
MORI, J.
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