Filed 7/17/26 P. v. Fee CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089693
Plaintiff and Respondent,
(Super. Ct. No. 2066877)
v.
TIMOTHY CHARLES FEE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Kellee C.
Westbrook, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Timothy Charles Fee appeals from resentencing under Penal Code1
section 1172.75. On appeal, defendant contends the trial court abused its discretion by
denying his request to dismiss his five-year serious felony enhancement under
section 1385. We affirm.
FACTUAL SUMMARY2
I. Prosecution’s case-in-chief
On August 8, 2016, at approximately 10:00 or 10:30 p.m., David H. (see Cal.
Rules of Court, rule 8.90(b)) informed his wife that he was “going camping.” At
approximately 11:30 p.m., he texted his adult daughter and arranged to visit her the
following day. David departed in his white 1999 Dodge Durango.
On the morning of August 9, 2016, David’s wife texted David, but she did not
receive a response. Initially, she “figured he was out of the [cell phone coverage] area.”
However, when she did not hear back from him for a few days, she became concerned.
On August 11, 2016, David’s decomposed body was discovered in the Delta-
Mendota Canal. Dr. Sung-Ook Baik, a forensic pathologist, conducted the autopsy. He
observed fractured thyroid cartilage on the right side of David’s neck, which “indicate[d]
there was pressure around the neck.” In addition, the lungs were filled with water. Given
the degree of damage to the thyroid cartilage, Baik opined the cause of death was “more
likely” strangulation than drowning. He did not rule out the possibility that David may
have only been rendered unconscious before he was placed in the canal. A toxicology
report confirmed the presence of methamphetamine, but Baik believed that drug
intoxication was “not directly related to the cause of death.”
1 All further unspecified statutory references are to the Penal Code.
2 The following facts are taken from our opinion in defendant’s previous appeal.
(People v. Fee (July 29, 2022, F078512, F081881) [nonpub. opn.].)
2.
On August 12, 2016, police officers came across David’s Durango in a parking lot
near the intersection of Coolidge Avenue and McHenry Avenue in Modesto. Three
individuals stood next to the sport utility vehicle (SUV): defendant, codefendant Jairo
Ramirez, and a female. When the officers approached the group, defendant headed
toward a nearby fast-food restaurant while Ramirez and the female went in a different
direction. The officers eventually apprehended defendant, who possessed the keys to the
Durango and a money clip that belonged to David.
During a subsequent search of the Durango, officers found a “military-style
hunting knife” on the driver’s seat; various store receipts; a pawn shop slip with
Ramirez’s name; and a camouflage backpack. Inside the backpack were three cylinders,
each of which were wrapped in cellophane. The cylinders contained various substances,
including heroin, marijuana, methamphetamine, and tobacco.
The Stanislaus County Sheriff’s Department obtained surveillance footage from
various businesses. Footage recorded on August 9, 2016, showed: (1) sometime after
3:00 p.m., defendant and Ramirez visited a pawnshop, where the former bought a hunting
knife and the latter pawned a one-ounce piece of gold that belonged to David for $1,000;
(2) at 3:48 p.m., David’s Durango was parked outside a convenience store, where
defendant purchased lottery tickets; (3) at approximately 4:00 p.m., defendant parked the
Durango, entered a department store, and purchased “two bundles of braided rope”;
(4) sometime before 9:00 p.m., defendant and Ramirez entered a different department
store; and (5) at around 9:30 p.m., the Durango was parked outside a retail store, where
defendant—accompanied by Ramirez—made an undisclosed purchase. Footage recorded
on August 10, 2016, showed that defendant visited an automotive parts retailer and
bought a tow hitch. Footage recorded on August 11, 2016, showed that—at
approximately 2:00 a.m.—defendant parked the Durango, carried the camouflage
backpack, and entered a motel.
3.
Detective Rodriguez of the Stanislaus County Sheriff’s Department interviewed
defendant on August 14, 2016. According to defendant, he encountered David—an
acquaintance—“purely by chance” at “the airport.” (Capitalization omitted.) Defendant
then called Ramirez and informed him that he contacted “an old boy” who “bragg[ed]
about shipping large amounts of dope” and “was dumb enough to let him borrow his
truck or ride his truck.” Defendant and David “went to go get [Ramirez]” (capitalization
omitted) and the three traveled to a park to look through the Durango. There, David
indicated that he “didn’t want to be there anymore” and an argument ensued. The dispute
continued inside the Durango. As defendant was driving, the exchange between David
and Ramirez in the rear of the vehicle became more heated. David “was tellin [Ramirez]
that there was no more drugs in the truck and all this other shit,” but Ramirez “didn’t
believe him.” (Capitalization omitted.) “[T]he more [David] talked, the more [Ramirez]
got pissed off” and the Durango “bounced all over the fuckin road.” (Capitalization
omitted.) Defendant “turned the stereo up louder so [he] couldn’t fuckin hear it.”
(Capitalization omitted.) Eventually, Ramirez “climbed up [to the front passenger seat]
through the middle” and defendant heard “moaning and gurgling noises” behind him.
(Capitalization omitted.) Per Ramirez’s directions, defendant stopped near a wooden
bridge traversing the Delta-Mendota Canal. Defendant and Ramirez removed David
from the vehicle. Although David “was unconscious” and “was breathing”
(capitalization omitted), defendant and Ramirez placed him into the canal.
At trial, the parties stipulated that Ramirez pled guilty to the unlawful killing and
felony robbery of David on August 8, 2016.
II. Defense’s case-in-chief
Defendant testified that he first met Ramirez in prison in 2009 and the two became
close friends. In 2015, after defendant was released, he “got back in touch” with
Ramirez.
4.
On August 8, 2016, defendant came across David at a liquor store in Modesto’s
“Airport District.” He knew David “from drug sales in that general area” and learned that
he was making a profit “mailing drugs back east.” Defendant, who was “going back to
prison” for a gun-related offense, wanted to collaborate with David to “make some
money real quick” “to support [him]self the next year or so.” He wanted to include
Ramirez, who was also going back to prison and “had money issues.”
Defendant and David picked up Ramirez in the Durango. Thereafter, defendant
“ended up just driving around.” All three were consuming drugs and alcohol. Initially,
the men got along. Later, however, David and Ramirez started arguing about “a small
quantity [of drugs] that they couldn’t find” in the vehicle. At some point, Ramirez
“jump[ed] from the back of the truck up to the front and told [defendant], ‘Shit went out
bad.’ ” Ramirez stated that David was dead and the body needed to be disposed.
Defendant, who “had no knowledge [of] what went on in the back until [Ramirez]
jumped up in the front,” “freaked out.” The Durango “ended up at the canal” and
defendant “help[ed] [Ramirez] dump David’s body into the canal.”
Defendant admitted that he intended to sneak the cylinders of drugs—also known
as “keister pack[s]”—into jail.
PROCEDURAL SUMMARY
Charges, Jury Verdict, Sentence, and Direct Appeal
Defendant was charged with first degree murder (§ 187, subd. (a)), namely,
murder committed in the perpetration of a robbery and/or kidnapping (§ 189, subd. (a)).
The information further alleged that he (1) had been released on bail prior to a judgment
becoming final on an earlier felony offense (§ 12022.1); (2) was previously convicted of
kidnapping, a serious felony (§ 667, subd. (a)) and a qualifying “strike” under the Three
Strikes law (§ 667, subd. (d)); and (3) served a prior separate prison term (§ 667.5, former
subd. (b)).
5.
In 2018, a jury convicted defendant of murder (§ 187, subd. (a)) and found true
that the murder was committed during a robbery. Defendant admitted that the offense
was committed while released on bail (§ 12022.1). In a bifurcated proceeding, the court
found true defendant had a prior strike conviction (§ 667, subd. (d)), a prior serious
felony conviction (§ 667, subd. (a)), and a prior prison term (§ 667.5, former subd. (b)).
The trial court sentenced defendant to an aggregate sentence of 58 years to life,
consisting of: 25 years to life for murder, which was doubled to 50 years to life under the
Three Strikes law, plus five years for the prior serious felony conviction, two years for
the on-bail enhancement, and one year for the prior prison term enhancement.
On December 12, 2018, defendant filed a notice of appeal (F078512). On
October 24, 2019, we granted defendant’s motion to stay his appeal and remanded the
matter for the trial court to conduct proceedings pursuant to section 1172.6 (formerly
§ 1170.95).
Section 1172.6 Petition
On October 6, 2020, the trial court denied defendant’s section 1172.6 petition
following an evidentiary hearing. Defendant filed a notice of appeal (F081181). We
granted defendant’s motion to consolidate his appeals (F078512/F081181).
On July 29, 2022, we struck the prior prison term enhancement and ordered the
trial court to prepare an amended abstract of judgment, but we otherwise affirmed.
Following our opinion, the trial court issued an amended abstract of judgment that no
longer reflected the prior prison term enhancement.
Resentencing Pursuant to Section 1172.75
Defendant was identified by the Department of Corrections and Rehabilitation as
having a sentence that included a prior prison term enhancement. Defendant filed his
sentencing memorandum on November 25, 2024, in which he requested the court
consider dismissing his prior strike conviction (§ 1385, subd. (a)), and his on-bail and
prior serious felony conviction enhancements (§ 1385, subd. (c)). As to the
6.
enhancements, defendant noted the factors weighing in favor of dismissal under
section 1385 included that “multiple enhancements were imposed” (§ 1385,
subd. (c)(2)(B)), and that “the offense was connected to mental illness or childhood
trauma” (§ 1385, subd. (c)(2)(D), (E).) The People filed a sentencing memorandum in
opposition. The trial court held a resentencing hearing on March 13, 2025, and took the
matter under submission.
On April 14, 2025, the trial court issued a written ruling denying defendant’s
request for recall and resentencing. The ruling noted the applicable law and stated:
“Here, [defendant] was convicted of murder, a violation of Penal Code
section 187. The victim in the case had been robbed/kidnapped, strangled,
and his body had been dumped in a canal. The physical evidence indicated
that the victim most likely died prior to his body being placed in the canal.
At a minimum, he was unconscious at the time of the transport to the water.
At trial, [defendant] claimed that the victim was still alive when he put the
victim’s body into the canal. He heard moaning and gurgling during the
strangulation by his co-responsible and did nothing to stop it. The appellate
court confirmed the trial court’s finding that [defendant] ‘was clearly an
aider and abettor in the case’ and a ‘major participant’ in the robbery.
“At the time of the commission of the offense in 2016, [defendant] was on
bail pending firearm charges. In 2005, he suffered a ‘strike’ prior for
kidnapping, a violation of section 207. He had not remained free of
incarceration for any substantial period of time.
“In 2019 and 2022, [defendant] completed various college and technical
classes. He has worked with canines that aid those with post-traumatic
stress disorder. Additionally, he received a certificate for completing an
alternative to violence course. However, after completing the course, he
engaged in a physical altercation with another inmate.
“This court declines to exercise its discretion to grant the requested relief
due to the callousness exhibited during the perpetration of the offense,
[defendant]’s record at the time of conviction and his continued violence
(although not substantial). The court commends [defendant] for beginning
the process to turn his life around by educating himself and engaging in
prison programs. While mitigating, at this time, it is not compelling
enough to overcome the overwhelming aggravating factors in this case.
Because the court declines to exercise its discretion, the court need not
7.
determine whether imposing a lesser [sentence] would endanger public
safety.”
Defendant filed a timely notice of appeal of the April 14, 2025 order.
DISCUSSION
Defendant contends the trial court abused its discretion by denying his request to
dismiss his prior serious felony enhancement and on-bail enhancement pursuant to
section 1385, subdivision (c).
I. Section 1172.75
The Legislature passed Senate Bill No. 136 (2019–2020 Reg. Sess.), effective
January 1, 2020, which amended section 667.5, subdivision (b) to limit prior prison term
enhancements to sexually violent offenses as defined in Welfare and Institutions Code
section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1; § 667.5, subd. (b); People v.
Lopez (2019) 42 Cal.App.5th 337, 340–341.) The Legislature subsequently passed
Senate Bill No. 483 (2021–2022 Reg. Sess.), which made this change retroactive by
adding section 1171.1 (Stats. 2021, ch. 728, §§ 1, 3), which was later renumbered as
section 1172.75 (Stats. 2022, ch. 58, § 12).
Under section 1172.75, “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”
(Id., subd. (a).) Once a trial court has confirmed that a defendant’s current judgment
includes a prior prison term enhancement that is now legally invalid, it “shall recall the
sentence and resentence the defendant.” (Id., subd. (c).) When resentencing the
defendant, the court “may consider postconviction factors” (id., subd. (d)(3)), and “shall
apply the sentencing rules of the Judicial Council and 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” (id., subd. (d)(2)).
8.
II. The Trial Court Did Not Abuse Its Discretion
A. Applicable Law
Effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) amended
section 1385 to add subdivision (c), which requires a trial court to dismiss an
enhancement “if it is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1);
Stats. 2021, ch. 721, § 1.) Section 1385, subdivision (c)(2), provides that the court, in
exercising its discretion, must consider and “afford great weight to evidence offered by
the defendant to prove” any of nine listed mitigating factors (see § 1385, subd. (c)(2)(A)–
(I)), “unless the court finds that dismissal of the enhancement would endanger public
safety” (§ 1385, subd. (c)(2)). The listed mitigating factors include where multiple
enhancements were alleged in a single case, and the enhancement was based on a prior
conviction that was over five years old. (§ 1385, subd. (c)(2)(B), (H).)
“[A]bsent 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.) “In other words, if the court does not find that dismissal
would endanger 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.’ ” (Ibid.)
B. Standard of Review
We review a trial court’s denial of a motion to dismiss a sentence enhancement
under section 1385 for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th
287, 298.) “[A] trial court does not abuse its discretion unless its decision is so irrational
or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004)
33 Cal.4th 367, 377; People v. Knowles (2024) 105 Cal.App.5th 757, 765 [“A court
9.
abuses its sentencing discretion when it acts arbitrarily and capriciously, relies on
improper matter in reaching its decision, or is unaware of the scope of its discretion so
that it does not exercise informed discretion at all.”].)
C. Analysis
Defendant contends the trial court abused its discretion by not dismissing the
enhancements. According to defendant, the court should have determined it was in the
interest of justice to dismiss the enhancements because of the presence of multiple
mitigating factors. Even assuming his claim was not forfeited in any respect, it fails on
the merits.
The trial court’s written ruling shows the court was aware it had the discretion to
dismiss the five-year serious felony conviction and on-bail enhancements. The court
considered the circumstances of the offense, including that defendant was on bail pending
other charges at the time of the commission of the offense. The court noted defendant
completed various college and technical classes as well as programs while in prison, and
recognized its mitigating effect. Nevertheless, the court determined it was not
compelling enough to overcome the overwhelming aggravating factors, namely, “the
callousness exhibited during the perpetration of the offense, [defendant]’s record at the
time of conviction and his continued violence (although not substantial).” The record
does not affirmatively demonstrate that the court misunderstood the law or applied the
relevant factors incorrectly. (See People v. Brugman (2021) 62 Cal.App.5th 608, 638
[“In the absence of evidence to the contrary, we presume that the trial court considered all
of the relevant factors and properly applied the law.”].)
Relying on People v. Gonzalez (2024) 103 Cal.App.5th 215 (Gonzalez), defendant
argues the trial court erred by declining to resentence him without considering whether
defendant would be a danger to public safety when released decades in the future.
10.
In Gonzalez, the defendant was sentenced to an indeterminate term of 50 years to
life for first degree murder, plus 25 years to life for a section 12022.53, subdivision (d)
enhancement. (Gonzalez, supra, 103 Cal.App.5th at p. 220.) The trial court interpreted
section 1385, subdivision (c)(2) as “requir[ing] [it] to decide whether the defendant
‘currently at the time of sentencing represent[s] a danger to society.’ ” (Gonzalez, at
p. 227.) The court denied the defendant’s request to dismiss the enhancement because it
found the defendant “ ‘presently’ ” represented a danger to society. (Id. at p. 224.) The
Court of Appeal reversed, holding the trial court erred by considering only “whether the
defendant currently poses a danger.” (Id. at p. 228.) The Gonzalez court explained that
the trial court should have considered 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. (Ibid.)
We find Gonzalez unpersuasive on the record before us. In denying defendant’s
request, the trial court here did not consider whether defendant posed a danger to public
safety. Instead, the court first determined dismissal of the enhancements would not be in
furtherance of justice and declined to exercise its discretion. Thus, unlike in Gonzalez,
the trial court’s ruling here did not rest on an incorrect understanding of the law regarding
whether defendant posed a danger to public safety. Moreover, even without a finding
that dismissal would endanger public safety, the court was not precluded from denying
defendant’s request to dismiss the enhancements. (People v. Walker, supra, 16 Cal.5th at
p. 1029.) On this record, defendant fails to persuade us that the court’s ruling was so
irrational or arbitrary that no reasonable person could agree with it.
11.
DISPOSITION
The trial court’s April 14, 2025 order is affirmed.
DETJEN, J.
WE CONCUR:
LEVY, Acting P. J.
SNAUFFER, J.
12.