P. v. Flores CA2/5 — Fear Not Law

Filed 10/5/26 P. v. Flores CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B348019

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XNWLA080437)
v.
ORDER MODIFYING
BRYAN ARRIAGA FLORES, OPINION AND DENYING
PETITION FOR REHEARING

Defendant and Appellant. [NO CHANGE IN
JUDGMENT]

THE COURT:

It is ordered that the opinion filed on September 16, 2026,
be modified as follows:
On page 2, in the first sentence below the topic
heading “Underlying Crimes,” delete “then 24 years old”
and replace it with “then 23 years old.”
The petition for rehearing is denied. There is no change in
the judgment.

___________________________________________________________
BAKER, Acting P. J. KIM (D.), J. KUMAR, J.*

* Retired Judge of the Superior Court of Los Angeles
County, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

2
Filed 9/16/26 P. v. Flores CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
B348019
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. XNWLA080437)

BRYAN ARRIAGA FLORES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Neetu S. Badhan-Smith, Judge. Affirmed.

Olivia Rose Meme, 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, Steven D. Matthews, and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.

******
Bryan Arriaga Flores (defendant) appeals the trial court’s
order following proceedings conducted pursuant to Penal Code1
section 1172.75, in which the court recalled his sentence, struck
now-invalid prior prison term enhancements, and declined to
reduce the sentence further. Defendant contends the court failed
to afford him the full resentencing to which he was entitled and
erred by leaving in place an upper term on one of his convictions.
The court’s ruling, read in context, reflects it conducted a
resentencing and exercised its discretion not to allow for any
additional reduction to defendant’s sentence. Finding no
statutory violation or abuse of discretion, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Underlying Crimes2
In November 2014, defendant, then 24 years old, resided in
the same apartment complex as 11-year-old Valeria M. On one
occasion, after his girlfriend left for work, defendant invited
Valeria into his apartment. Defendant kissed Valeria, and both
removed their clothing. Defendant then engaged in sexual
intercourse with Valeria for approximately ten minutes. When

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2 Because the disposition of the case resulted from a
negotiated plea, we draw these underlying facts from
the probation report.

2
Valeria returned to her apartment, defendant told her not to
disclose their encounter.
Defendant and Valeria continued to engage in unprotected
sexual intercourse over the ensuing months. In early 2015,
Valeria obtained a positive result on a home pregnancy test,
which was later confirmed at a hospital. Law enforcement
subsequently investigated, and defendant was arrested.
II. Conviction and Sentencing
In May 2017, defendant pleaded no contest to four counts of
lewd act upon a child under 14 years of age (§ 288, subd. (a)) and
one count of continuous sexual abuse of a child (§ 288.5). He also
admitted the allegation that he inflicted great bodily injury on
Valeria (§ 12022.7, subd. (a)) and that he had served two prior
prison terms (§ 667.5, subd. (b)).
In June 2017, the trial court sentenced defendant to an
aggregate term of 29 years in state prison, comprised of the upper
term of 16 years for the continuous sexual abuse conviction, four
consecutive two-year terms (one-third the midterm of six years)
for the lewd act convictions, three years for the great bodily
injury enhancement, and two years for the prior prison term
enhancements.
III. The Resentencing Proceedings
A. Recall of Sentence
In early November 2022, the California Department of
Corrections and Rehabilitation (CDCR) identified defendant as
an individual potentially eligible for resentencing under Senate
Bill No. 483 (2021-2022 Reg. Sess.) (SB 483), which eliminated
the prior prison term enhancement for convictions not involving a

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“sexually violent offense.” (§ 1172.75, subd. (a); Stats. 2021, ch.
728, § 3; Stats. 2022, ch. 58, § 12.)3
On November 29, 2022, the trial court (Judge Martin L.
Herscovitz) convened a hearing, at which it struck the two one-
year prior prison term enhancements imposed under section
667.5, subdivision (b),4 and indicated defendant could request a
further hearing for a full resentencing.5 The striking of those
enhancements reduced defendant’s sentence to 27 years in state
prison.
B. Defendant’s Request for Resentencing
On November 22, 2023, again represented by the public
defender’s office, defendant moved to calendar the matter for a
full resentencing pursuant to SB 483.
On April 30, 2024, defendant filed a resentencing motion
requesting that the court reduce the sentence on the continuous
sexual abuse conviction to the lower term of six years, retain the
previously imposed subordinate terms on the remaining counts
(four consecutive two-year terms), and impose the three-year

3 Although the record on appeal does not include any
document from the CDCR, we infer the CDCR’s action from the
undisputed presence of enhancements eligible for dismissal
under section 1172.75 as well as the trial court’s unbidden setting
of the matter for “resentencing” and appointment of counsel.

4 The prior prison terms did not result from convictions for a
sexually violent offense.

5 The November 29, 2022, minute order indicates defendant
was “not present in court” for this hearing, while the reporter’s
transcript for that date indicates defendant “appear[ed] in court
with counsel (public defender).” To the extent the parties
disagree on this point, it is not material to the question before us.

4
great bodily injury enhancement, for a total term of 17 years. In
support, defendant submitted letters from family and friends, as
well as documentation reflecting his rehabilitative efforts while
incarcerated.
C. The People’s opposition
On June 6, 2025, the People, represented by the Los
Angeles County District Attorney’s Office, filed an opposition.
While conceding that the two one-year prior prison term
enhancements were properly stricken, the People opposed any
further reduction in sentence, arguing defendant continued to
pose a danger to public safety and had not demonstrated
meaningful rehabilitation. The People emphasized the
seriousness of the offenses, including repeated sexual abuse of a
minor resulting in pregnancy.
D. Trial court’s ruling
At the August 1, 2025 hearing, the trial court (Judge Neetu
S. Badhan-Smith) indicated that it had reviewed defendant’s
motion and the People’s opposition. The court initially concluded
defendant was not entitled to further resentencing because the
prior prison term enhancements had already been stricken. The
court further stated that, even assuming defendant was eligible
for a full resentencing, it would decline to exercise its discretion
to reduce the sentence. In explaining its decision, the court cited
the nature and circumstances of the offenses, defendant’s
criminal history, his lack of demonstrated remorse or acceptance
of responsibility, and his limited rehabilitative efforts while
incarcerated—particularly with respect to programming to
address sexually violent conduct. The court found defendant
posed an unreasonable risk to public safety and concluded that
further reduction of the sentence would not be in the interest of

5
justice. The court declined to modify the sentence and left the
previously imposed 27-year term undisturbed.
IV. Appeal
Defendant timely appealed Judge Neetu S. Badhan-Smith’s
August 1, 2025, order.6
DISCUSSION
Defendant challenges the resentencing proceedings
conducted pursuant to Penal Code section 1172.75. He argues
the trial court improperly treated the November 2022 proceeding
as the functional equivalent of a resentencing and erred in
declining to conduct a broader resentencing thereafter.
Resolution of this issue turns on the scope of the hearing and the
court’s exercise of its sentencing discretion.
We review a trial court’s sentencing choices for an abuse of
discretion. (People v. Moseley (2024) 105 Cal.App.5th 870, 874.)
To the extent defendant’s claim turns on the interpretation of
section 1172.75 and related sentencing provisions, our review is
de novo. (People v. Terwilligar (2025) 109 Cal.App.5th 585, 595.)
I. The Trial Court Considered and Denied Section
1172.75 Relief
A. Relevant law
Where, as here, a defendant was originally sentenced for a
prior prison term enhancement that arose from a conviction that
was not a “sexually violent offense,” and CDCR has identified

6 On April 30, 2026, this Court denied defendant’s request to
deem the notice of appeal in this case to encompass an appeal
from the trial court’s November 29, 2022, order, stating:
“[Defendant] may nevertheless argue in the briefing on appeal
the significance of the November 29, 2022, order to the August 1,
2025 order that is before us in this appeal.”

6
him or her as eligible for relief, that defendant is entitled to a
“full resentencing” wherein (1) the enhancement is to be stricken
and (2) the trial court is to “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, subds. (a), (c), (d)(1)-(2), 667.5, subd.
(b); People v. Superior Court (Guevara) (2025) 18 Cal.5th 838,
875 [“section 1172.75 by its express terms . . . provide[s] for a full
resentencing”].)
“Nothing in section 1172.75 indicates that sentences
resulting from a plea agreement are exempt from its provisions.”
(People v. Carter (2023) 97 Cal.App.5th 960, 968; see also People
v. Hernandez (2024) 103 Cal.App.5th 981, 986 [“the trial court
was required to conduct a resentencing under the express
provisions of section 1172.75, even in plea bargain cases”].)
B. Analysis
We begin with the People’s threshold contention that
defendant’s motion to calendar the matter was untimely and that
we therefore lack jurisdiction because defendant did not appeal
from the November 29, 2022, order. The premise is flawed. The
November 29, 2022 proceeding was not the operative
resentencing. At that hearing, the trial court (Judge Herscovitz)
struck the invalid section 667.5, subdivision (b) enhancements
but did not otherwise exercise its sentencing discretion; instead,
it contemplated a later proceeding at which defendant could seek
further relief. The operative resentencing occurred on August 1,
2025, when the trial court (Judge Badhan-Smith) considered
whether to modify the remaining terms and declined to do so.
Defendant’s appeal from that order properly brings before us the
court’s exercise of resentencing discretion.

7
On the merits, the record does not support defendant’s
claim that he was denied a full resentencing. The August 1, 2025
hearing was the resentencing hearing in substance. The court
stated it had read and considered the parties’ submissions,
invited further argument, and then addressed whether any
additional reduction in sentence was warranted. It
acknowledged the prior striking of the invalid enhancements,
evaluated defendant’s request to reduce the term, made an
express public-safety determination, and declined to modify the
remaining terms. That is the exercise of discretion section
1172.75 contemplates.
Defendant focuses on the court’s initial remark suggesting
he was “ineligible” for resentencing7 because the enhancements
had already been stricken, and characterizes what followed as a
hypothetical or perfunctory exercise. But we review the ruling,
not isolated statements. (Diaz v. Grill Concepts Services, Inc.
(2018) 23 Cal.App.5th 859, 874 [“Because we review the
trial court's ruling and not its reasoning [citation], any missteps
in its reasoning are irrelevant.”].) Read in context, the record
reflects the trial court denied defendant’s motion on two
independent grounds: (1) defendant was ineligible for relief
based on the trial court’s erroneous assessment of the effect
Judge Herscovitz’s order striking the prior prison term
enhancements had on defendant’s motion; and (2) he posed a

7 Admittedly, the resentencing record is not free from
ambiguity, as the court stated: “I am going to review for the
benefit of the appellate court at this time why I would [not]
resentence him” and “I do believe [defendant] . . . . is not eligible .
. . however, for the benefit of appellate review, even if the
defendant was eligible, this court would not use its discretion to
resentence” (emphasis added).

8
substantial risk to public safety given the severity of the offenses,
his criminal history, the absence of remorse, and his conduct in
prison. In explaining its second reason, we see no meaningful
distinction between the court’s language (“this court would not
use its discretion to resentence [defendant to a lower term]”) and
defendant’s proffered criteria that the trial court officially
“reimpose the upper term”; the result is the same—defendant’s
motion is denied and he is required to serve the upper term
sentence that was originally imposed. Defendant has not carried
his burden to affirmatively demonstrate the trial court’s decision
was based exclusively on Judge Herscovitz’s order. (People v.
Alvarez (1996) 49 Cal.App.4th 679, 694 [defendant bears the
burden of affirmatively demonstrating error].)
Nor does Judge Herscovitz’s earlier statement that the
matter could be recalendared, which defendant characterizes as a
“promise,” alter that conclusion. At most, it preserved
defendant’s ability to seek further relief; it did not bind the later
court to grant any particular reduction or otherwise constrain its
discretion. Defendant availed himself of that opportunity: he
filed a motion, the matter was calendared, he was represented by
counsel at the hearing, and the court made findings and stated
its reasons. The asserted “promise” neither stripped the court of
its discretion nor created any right to a particular outcome, as
resentencing courts are bound by statute, rules of court, and the
record before them—not by informal expectations arising from
earlier proceedings. That defendant did not get the relief he
sought does not mean he was not effectively resentenced to the
upper term.

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II. The Trial Court Did Not Abuse Its Discretion in
Declining to Reduce Defendant’s Sentence
Defendant also contends the trial court erred by declining
to reduce the upper term on his continuous sexual abuse
conviction to the lower term, which was the sole sentencing
modification he requested in his motion.
As discussed above, section 1172.75 entitles an eligible
defendant to a full resentencing at which the trial court may
reconsider its prior sentencing decisions and must apply
ameliorative changes in the law. (§ 1172.75, subd. (d)(2).)
Subdivision (d)(4) limits when a court must make new factual
findings to impose an upper term: “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.) By its terms, that
requirement applies only when the upper term is being imposed
for the first time at resentencing.
Courts interpreting this provision have accordingly held
that where, as here, the defendant was originally sentenced to
the upper term, the trial court may reimpose that term at
resentencing without making new findings or obtaining jury
determinations of aggravating factors. (See, e.g., People v.
Brannon-Thompson (2024) 104 Cal.App.5th 455, 466–467; People
v. Mathis (2025) 111 Cal.App.5th 359, 371–374.)8

8 The California Supreme Court has granted review in a
nonpublished case to resolve the split regarding “whether section

10
That principle resolves defendant’s claim. Defendant was
originally sentenced to the upper term on the continuous sexual
abuse conviction. At resentencing, the trial court therefore acted
within its statutory authority in leaving that term in place
without revisiting or re-proving aggravating circumstances. The
court’s task was to decide whether to reduce the term; it was not
required to do so, and nothing in the record suggests its decision
to decline a reduction was arbitrary or irrational. (People v.
Carmony (2004) 33 Cal.4th 367, 377.) It is of no moment that the
trial court did not expressly invoke section 1172.75, subdivision
(d)(4) or referenced aggravating factors; we review the
correctness of the ruling, not the court’s reasoning. Accordingly,
defendant has not established any prejudicial error in the trial
court’s decision that the sentence remain unchanged.
III. No Basis for Remand
Even assuming some ambiguity in the trial court’s remarks
or accepting defendant’s characterization that the court declined
to resentence him, a remand for further proceedings would serve
no useful purpose. A remand is not required where the record
clearly indicates the trial court would not reduce defendant’s
sentence. (See, e.g., People v. McDaniels (2018) 22 Cal.App.5th
420, 425.) That is the case here. After addressing eligibility, the
trial court expressly stated that “for the benefit of appellate

1172.75, subdivision (d)(4), allows a trial court to reimpose an
upper term sentence where the facts underlying one or more
aggravating circumstances were neither stipulated to by the
defendant nor found true beyond a reasonable doubt by the
factfinder. (See People v. Eaton (Mar. 14, 2025, C096853)
[nonpub. opn.], review granted May 14, 2025, S289903.)”
(Mathis, at p. 373, fn. 6.)

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review, even if defendant was eligible, this court would not use
its discretion to resentence,” and it proceeded to explain its
reasoning, including its determination that defendant posed an
unreasonable risk to public safety. The court reiterated that
conclusion and ordered that defendant’s sentence remain
unchanged apart from the previously stricken enhancements.
On this record, there is no reasonable probability the court
would impose a lesser sentence if the matter were remanded for
another hearing. Section 1172.75 does not require repeated
resentencing proceedings once the court has considered the
relevant factors, exercised its discretion, and made clear it would
reach the same result. Accordingly, remand is unwarranted.
DISPOSITION
The trial court’s order of August 1, 2025, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KUMAR, J.

I concur:

KIM (D.), J.

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

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The People v. Bryan Arriaga-Flores
B348019

BAKER, Acting P. J., Concurring

I join the opinion for the court, except Part III of the
Discussion section.

BAKER, Acting P. J.