Filed 7/31/26 P. v. Bochicchio CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B343250
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA096142)
v.
BILL BOCHICCHIO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Reversed with
directions.
Aurora Elizabeth Bewicke, 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, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Bill Bochicchio pleaded no contest to first degree burglary
and admitted he had a one-year prior within the meaning of
Penal Code1 section 667.5, subdivision (b), a five-year prior within
the meaning of section 667, subdivision (a), and a prior strike
within the meaning of the “Three Strikes” law. A court sentenced
him to the upper term for the burglary doubled based on the
strike, and imposed one- and five-year terms. Thereafter, at a
resentencing hearing under section 1172.75, the trial court struck
the one-year prior but otherwise declined to reduce Bochicchio’s
sentence. Bochicchio appeals, contending that the trial court did
not apply the correct standard of law and therefore abused its
discretion. We agree and reverse the order.
BACKGROUND
I. Bochicchio’s plea and original sentence
In 2017, an information charged Bochicchio with two
counts of first degree burglary. (§ 459.) The information further
alleged that Bochicchio had two prior convictions for serious
felonies that also constituted strikes (§§ 667, subd. (a)(1), 667,
subds. (b)–(j), 1170.12) and three prior prison terms (§ 667.5,
subd. (b)).
In 2018, Bochicchio entered a negotiated plea under which
he pleaded no contest to one count of burglary and admitted a
one-year prior conviction under section 667.5, subdivision (b), a
five-year prior conviction under section 667, subdivision (a)(1),
and one prior strike within the meaning of the Three Strikes
1 All further undesignated statutory references are to the
Penal Code.
2
law.2 The trial court sentenced Bochicchio to the upper term of
six years for the burglary doubled to 12 years due to the strike,
five years under section 667, subdivision (a)(1), and one year
under section 667.5, subdivision (b). His total prison term was
therefore 18 years.
II. Bochicchio’s postconviction requests for resentencing
After his conviction, Bochicchio, in persona propria, filed
multiple requests to modify his sentence based on then-recent
legislation invalidating one-year prior prison enhancements,
except ones for specified sexual offenses. The trial court denied
those requests.
However, on June 15, 2023, the trial court called the case
for resentencing in Bochicchio’s absence, struck the one-year
prior imposed under section 667.5, subdivision (b), but otherwise
reimposed the original sentence.
Bochicchio then filed another series of requests for
resentencing on February 22, April 25, and May 30, 2024.
A. The February 2024 petition
On February 22, 2024, Bochicchio petitioned for recall of
his sentence and resentencing under Assembly Bill No. 600 and
section 1172.1. In it, Bochicchio said he was permanently
confined to a wheelchair, had never touched or hurt anyone
during the burglaries, and was no longer a threat to anyone. He
submitted medical records to substantiate his medical condition.
2 The court dismissed the second count of first degree
burglary.
3
B. The April 2024 petition
On April 25, 2024, Bochicchio petitioned for a writ of
habeas corpus in which he denied waiving his right to be at the
June 15, 2023 resentencing hearing and asked for a full
resentencing hearing under section 1172.75. Bochicchio attached
as an exhibit to his petition a legal status summary showing that
he had two disciplinary penalties, both in 2024.
C. The May 2024 petition
Now represented by counsel, Bochicchio filed a brief in
support of resentencing under section 1172.75 in which he
repeated that he had not waived his right to appear at the June
15, 2023 hearing.
D. The People’s opposition to resentencing
The People filed an opposition that did not object to the
court striking the one-year prior but objected to any further
adjustment to Bochicchio’s sentence.3 First, the People argued
that the pertinent statute, section 1172.75, subdivision (d)(4),
allowed the trial court to reimpose the upper term. Second, the
People argued that the trial court should not strike Bochicchio’s
prior strike based on the nature of the current offense, that his
prior strike was not remote in time, and his criminal history.
Third, the People argued that the five-year prior should not be
stricken because Bochicchio had a “penchant” for entering
occupied homes, even though he had never been physically
violent. Also, the People asserted that Bochicchio had faced 62
3 In the opposition, the People recited facts underlying the
two burglaries, but did not cite a source for the facts.
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years to life but was “given the gift of an 18 year prison
sentence.”
E. Bochicchio’s reply
In his reply, Bochicchio argued that his continued
incarceration was not in the interest of justice. He cited both
sections 1172.75 and 1385 and argued that all enhancements
should be dismissed based on his age, diminished physical
condition, and rehabilitation. Bochicchio also submitted various
documents to support his resentencing request.
First, in a “Letter of Remorse and Apology,” Bochicchio
denied physically harming anyone and noted that his prison
write-ups were “for disrespect” because he may have said some
“ ‘not so nice things’ ” and “hurt someone by saying stuff like that,
but that is as far as it will go.” Bochicchio referred to a battery of
a nurse, explaining that he went “man down” for chest pain and
he “brushed” his hand against the nurse’s hand to protect his
painful chest area. Referring to a battery on a peace officer,
Bochicchio said that four officers jumped on him with a plastic
shield, but he explained that officers had a practice of jumping on
disabled prisoners and calling contact with the plastic shield a
battery. Bochicchio also referred to physical and verbal abuse by
his father. If released early, he planned to take care of his frail
mother and to be the son he was supposed to be. He was
permanently confined to a wheelchair due to severe
polyneuropathy.
Second, Bochicchio addressed a letter to the trial court in
which he referred to emotional scars caused by severe beatings
and verbal abuse. He said that his choice to use drugs was “in
direct correlation to my behavior that has caused a great deal of
em[ ]otional pain to the community.” Bochicchio said he
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voluntarily had therapy and attended narcotics anonymous and
programs about mental health and wellness and the effects of
drug use on the mind, body, and others. Also, he took college
courses with a view to getting a degree in social and behavioral
science.
Third, Bochicchio submitted a letter from his mother
stating that Bochicchio had childhood trauma but had never been
physically violent. She said she could use his help, as she was 86
years old and in poor health.
Finally, Bochicchio submitted his relapse prevention plan
for substance abuse should he obtain early release. He planned
to live in a transitional program, to obtain necessary documents
(for example, a driver’s license), and, in one year, to transition to
living on his own, and, in three years, to continue to use his
learned coping skills.
F. The trial court’s ruling
On December 5, 2024, the trial court held a resentencing
hearing. At the hearing, Bochicchio’s counsel asked the court to
find that “continued incarceration” was not in the interest of
justice based on Bochicchio’s age (61), that he was wheelchair
bound, that he had no history of physical violence, and that he
was not a danger or risk to society.
The trial court, however, observed that Bochicchio was
incarcerated for a violent offense, i.e., first degree burglary with a
person present, even though it appeared that Bochicchio ran from
the scene and did not assault anyone. The trial court then said it
had reviewed “papers” Bochicchio had filed over the years, and,
based on them, it appeared he had two serious rules violations
while in prison: one for battery on a nurse and a second for
battery on a peace officer, and the second battery occurred while
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Bochicchio was disabled. Based on documents Bochicchio had
provided in prior filings, it further appeared to the trial court
that he lost credits due to disciplinary actions on January 10 and
February 22, 2024. The trial court thus said that “despite the
defendant’s purported disabilities, . . . he is putting hands on
people. . . . . [¶] So I do not find at this point—obviously I have
considered his disabilities. I’ve considered his health. He’s still a
young man at 61 right now. And the fact that he has rule
violations for battery on a nurse and battery on a peace officer, I
do not find—I cannot find that by clear and convincing evidence
that he would not endanger public safety at this point.”
The trial court struck the one-year prior but otherwise
declined to adjust Bochicchio’s sentence. Accordingly, the trial
court reimposed the upper term of six years doubled to 12 years
for the burglary and the five-year prior under section 667,
subdivision (a).
DISCUSSION
I. General principles of law
Senate Bill No. 136 (2019–2020 Reg. Sess.) (Stats. 2019,
ch. 590, § 1) amended section 667.5, subdivision (b) to allow
courts to impose one-year prior prison term enhancements only
for specified sexually violent offenses. Thereafter, Senate Bill
No. 483 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) made
the amendment retroactive to final cases and added what is now
section 1172.75.
Section 1172.75 sets forth the process for recalling
sentences and resentencing. If a judgment includes a qualifying
enhancement, the trial court shall recall the sentence and
resentence the defendant. (§ 1172.75, subd. (c).) Resentencing
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shall result in a lesser sentence than the one originally imposed
inclusive of the enhancements “unless the court finds by clear
and convincing evidence that imposing a lesser sentence would
endanger public safety.” (§ 1172.75, subd. (d)(1).) At
resentencing, the “court may consider postconviction factors,
including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that
reflects whether age, time served, and diminished physical
condition, if any, have reduced the defendant’s risk for future
violence, and evidence that reflects that circumstances have
changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.” (§ 1172.75,
subd. (d)(3).)
Further, subdivision (d)(4) of section 1172.75 provides,
“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.”
At a hearing under section 1172.75, the resentencing court
shall “apply any other changes in law that reduce sentences or
provide for judicial discretion so as to eliminate disparity of
sentences and to promote uniformity of sentencing.” (§ 1172.75,
subd. (d)(2).)
As relevant here, Senate Bill No. 81 (2021–2022) effected a
change in law by adding subdivision (c) to section 1385. That
subdivision provides, “Notwithstanding any other law, the court
shall dismiss an enhancement if it is in the furtherance of justice
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to do so, except if dismissal of that enhancement is prohibited by
any initiative statute.” (§ 1385, subd. (c).) “In exercising its
discretion under this subdivision, the court shall consider and
afford great weight to evidence offered by the defendant to prove
that any of the mitigating circumstances in subparagraphs (A) to
(I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety. ‘Endanger public
safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.” (§ 1385, subd. (c)(2).)
Two mitigating circumstances are relevant here. The first
relevant mitigating circumstance is when the current offense is
connected to prior victimization or childhood trauma. (§ 1385,
subd. (c)(2)(E).) A connection exists when the trauma or
victimization substantially contributed to the defendant’s
involvement in the commission of the offense. (§ 1385, subd.
(c)(6)(A).) The second relevant mitigating circumstance is when
the enhancement is based on a prior conviction that is over five
years old. (§ 1385, subd. (c)(2)(H).)
Under section 1385, subdivision (c), “absent a finding that
dismissal would endanger public safety, a court retains the
discretion to impose or dismiss enhancements provided that it
assigns significant value to the enumerated mitigating
circumstances when they are present.” (People v. Walker (2024)
16 Cal.5th 1024, 1029, 1038.) “Stated simply, if the court does
not conclude that dismissal would endanger public safety, then
mitigating circumstances strongly favor dismissing the
enhancement. But ultimately, the court must determine whether
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dismissal is in furtherance of justice. This means that, absent a
danger to public safety, the presence of an enumerated mitigating
circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial,
credible evidence of countervailing factors that ‘may nonetheless
neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance of
justice.’ ” (Id. at p. 1036; see also id. at p. 1038.)
We review a trial court’s sentencing decision under section
1172.75 for abuse of discretion and “ ‘ “ask whether the trial
court’s findings of fact are supported by substantial evidence,
whether its rulings of law are correct, and whether its application
of the law to the facts was neither arbitrary nor capricious.” ’ ”
(People v. Garcia (2024) 101 Cal.App.5th 848, 857.) We similarly
review a trial court’s decision not to dismiss a sentencing
enhancement for an abuse of discretion. (Nazir v. Superior Court
(2022) 79 Cal.App.5th 478, 490.) A court “abuses its discretion
when it makes an arbitrary or capricious decision by applying the
wrong legal standard” “or bases its decision on express or implied
factual findings that are not supported by substantial evidence.
(People v. Moine (2021) 62 Cal.App.5th 440, 449.)
II. The trial court abused its discretion
Bochicchio contends that the trial court abused its
discretion because it applied the incorrect standard in
determining whether to strike the five-year prior or to otherwise
reduce his sentence. We agree.
As an initial matter, we reject the Attorney General’s
argument that Bochicchio forfeited this contention because he
failed to raise it below. Bochicchio did not have to ask the trial
court to apply the correct standard of law to preserve a claim on
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appeal that the trial court applied an incorrect one. Rather, a
defendant is entitled to sentencing decisions based on the
sentencing court’s informed discretion, including one informed by
the correct law. (People v. Salazar (2023) 15 Cal.5th 416, 424.)
In any event, we may review any question of law involved in any
ruling or order that affects the defendant’s substantial rights,
even if the defendant did not object below. (§ 1259.)
Turning to the merits, the trial court stated it would not
further reduce Bochicchio’s sentence other than to strike the one-
year prior because “I cannot find that by clear and convincing
evidence that he would not endanger public safety at this point.”
However, the clear and convincing standard is in section 1172.75,
subdivision (d)(1), which requires a resentencing court to impose
a lesser sentence (i.e., strike the one-year prior) “unless the court
finds by clear and convincing evidence that imposing a lesser
sentence would endanger public safety.” The trial court here did
impose a lesser sentence by striking the one-year prior.
Therefore, the trial court did not make or have to make a clear
and convincing finding, and the standard in subdivision (d)(1) did
not apply to any further consideration of whether to reduce
Bochicchio’s sentence.
The Attorney General concedes section 1172.75, subdivision
(d)(1), did not apply and that the trial court should have
proceeded under section 1385, subdivision (c), which concerns
dismissing enhancements. Notwithstanding the concession, the
Attorney General argues that remand for the trial court to apply
section 1385, subdivision (c), would be an idle act because the
trial court here found that a further reduction of Bochicchio’s
sentence would endanger public safety as required by that
section. That is, section 1385, subdivision (c)(2), requires a trial
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court to “consider and afford great weight” to evidence that the
defendant has a mitigating circumstance and to dismiss an
enhancement, “unless the court finds that dismissal of the
enhancement would endanger public safety.” (Ibid.) Bochicchio
arguably had two mitigating circumstances. First, Bochicchio
said his father had abused him, and Bochicchio connected his
childhood trauma to drug abuse and his criminal choices.
(§ 1385, subd. (c)(2)(E).) Second, Bochicchio’s five year prior was
for a burglary conviction dated 2002. Therefore, the
enhancement was based on a prior conviction that was over five
years old.4 (§ 1385, subd. (c)(2)(H).)
However, by referencing the clear and convincing standard
in section 1172.75, it is unclear if the trial court considered
section 1385, subdivision (c). Section 1385, subdivision (c),
contains no burden to prove by clear and convincing evidence, i.e.,
by a high probability, that Bochicchio was not a danger to society
to obtain a further reduction of his sentence. (See generally
Conservatorship of O.B. (2020) 9 Cal.5th 989, 998 [clear and
convincing evidence standard requires party with burden of proof
to convince trier of fact it is highly probable the facts the party
asserts are true].) It is thus unclear whether the trial court
imposed a burden on Bochicchio that did not exist; that is, the
burden to prove by clear and convincing evidence that he did not
pose a danger to public safety. We therefore do not agree that
remand would be an idle act.
4 It is undisputed that Bochicchio had a mitigating
circumstance within the meaning of section 1385, subdivision
(c)(2)(H), but it is disputed whether he had one under subdivision
(c)(2)(E) of that section. Any dispute is for the trial court to
resolve.
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Because we accordingly conclude that remand is necessary
for the trial court to reconsider Bochicchio’s motion for
resentencing, we need not address whether the trial court made
any findings based on insufficient evidence or improperly
reimposed the upper term.
DISPOSITION
The order is reversed with the direction to the trial court to
reconsider the petition for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ASHWORTH, J.*
We concur:
ADAMS, Acting P. J.
HANASONO, J.
*
Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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