Filed 10/28/26 P. v. Flores 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085025
v. (Super.Ct.No. BAF2301143)
CARL RAY FLORES, JR. et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,
Judge. Affirmed with directions.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant, Carl Ray Flores, Jr.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant, Bryan Inocencio.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
1
I. INTRODUCTION
In August 2021, Paul G. presented to the hospital with multiple gunshot wounds.
As a result of the shooting of Paul G., defendants and appellants Bryan Inocencio and
Carl Ray Flores, Jr., were convicted of (1) attempted murder (count 1; Pen. Code1
§§ 664, 187, subd. (a)); (2) assault with a semiautomatic firearm (count 2, § 245,
subd. (b)); and (3) active participation in a criminal street gang (count 4, § 182.5).
Additionally, Inocencio was convicted of unlawful possession of a firearm by a convicted
felon (count 3; § 29800), and both Flores and Inocencio were each convicted of
attempting to dissuade a witness, arising out of different incidents following the shooting
(counts 5, 6; § 136.1, subd. (b)(2)). A jury also found true special allegations in support
of gang and firearm enhancements (§§ 186.22, subd. (b),12022.5, 12022.7, subd. (a),
12022.53, subds. (d) & (e)); and the trial court found that Flores had suffered two prior
convictions qualifying as serious felonies and strike offenses (§§ 667, subd. (a), 667,
subds. (c) & (e), 1172.12, subd. (c)).
Inocencio appeals from the judgment, arguing that: (1) his conviction on all
counts must be reversed for failure to instruct the jury on the defense of duress; (2) his
conviction for attempted murder must be reversed for failure to instruct the jury on
“imperfect duress” as a basis to find him guilty of the lesser included offense of
attempted voluntary manslaughter; (3) his conviction for attempted murder should be
reversed because the pattern jury instructions on aiding and abetting permitted the jury to
1 Undesignated statutory references are to the Penal Code.
2
convict him on an invalid theory of murder premised upon implied malice; (4) his
conviction for unlawful possession of a firearm should be reversed for failure to instruct
the jury on the defense of temporary lawful possession for self-defense; (5) his conviction
for unlawful possession of a firearm should be reversed because section 29800 is
unconstitutional in violation of the Second Amendment of the United States Constitution
(Second Amendment); (6) his sentence should be reversed because he was entitled to a
jury determination on whether section 654 operates to stay punishment on count 3; (7) his
sentence should be reversed because the trial court improperly relied on the same factors
to impose an enhancement and what Inocencio characterizes as an aggravated sentence;
(8) his sentence must be reversed because the trial court’s purported findings that he had
suffered six prior prison terms as an aggravating circumstance were unsupported by
substantial evidence; and (9) his sentence must be reversed because the trial court abused
its discretion in failing to strike enhancements pursuant to section 1385.
Flores also appeals from the judgment but separately2 argues only that his
sentence should be reversed because the trial court abused its discretion in failing to
strike enhancements pursuant to section 1385.
We find no prejudicial error and affirm the judgments.
II. BACKGROUND
A. Facts and Charges
In August 2021, Paul G. presented to the hospital with multiple gunshot wounds.
2 Flores has also joined in all arguments asserted by Inocencio on appeal.
3
He eventually reported to law enforcement that he owed money to Flores related to the
sale of illicit drugs supplied by the Mexican Mafia; Flores threatened to kill him over the
debt; and Inocencio shot him at the direction of Flores.
As a result of the shooting, Inocencio was charged with (1) willful, deliberate, and
premeditated attempted murder (§§ 187, subd. (a), 664; count 1); (2) assault with a
semiautomatic firearm (§ 245, subd. (b); count 2); (3) unlawful possession of a firearm by
a convicted felon (§ 29800; count 3); (4) active participation in a criminal street gang
(§ 182.5; count 4); and (5) attempt to dissuade a witness (§ 136.1, subd. (a)(2); count 5).
Flores was charged as a co-defendant with respect to counts 1, 2, and 4. He was also
charged with a separate attempt to dissuade a witness (§ 136.1, subd. (b)(2); count 6).
The information also alleged that Inocencio personally discharged a firearm causing great
bodily injury in the commission of counts 1 and 2 (§§ 1192.7, subd. (c)(8), 12022.53,
subds. (d) & (e)) and that the commissions of counts 1, 2, 5, and 6 were all subject to
various gang enhancements under section 186.22, subdivision (b).
B. Relevant Evidence at Trial3
Paul G. testified that he personally knew both Inocencio and Flores. Inocencio
was a member of a local street gang known as Moreno Valley Locos,4 and Flores was a
3 Because defendants do not challenge the sufficiency of the evidence to support
the verdict, we summarize only the evidence necessary to provide context and address the
claims of error actually presented in the opening briefs.
4 The parties stipulated to the fact that Moreno Valley Locos is a criminal street
gang within the meaning of section 186.22.
4
“shot caller”5 for the gang.
Prior to meeting either defendant, Paul G. operated a marijuana and
methamphetamine dispensary. Flores was initially introduced to him as a person that
could provide a larger supply of drugs for sale. Paul G. and Flores developed a business
relationship in which Paul G. would act as an intermediary to deliver drugs and collect
payment on behalf of Flores. Flores was incarcerated, so Paul G. would communicate
with Flores via video call during drug transactions so that Flores could monitor the
amount of drugs delivered and the payment collected during each transaction. Inocencio
was never involved in these transactions, and Paul G. considered Inocencio as just a
friend.
In February 2021, Paul G. was arrested. As a result, illicit drugs and a firearm
were confiscated from his possession. When Paul G. was released from custody, Flores
contacted him to ask for payment for the drugs that had been confiscated. Eventually,
Paul G. told Flores that he wanted to end his participation in drug transactions. Flores
responded that Paul G. still owed Flores thousands of dollars for the confiscated drugs
and that the gang would kill Paul G. if he did not pay the money back. Paul G. paid
Flores a small portion of what he owed but did not have enough money to pay back the
entire debt.
In August 2021, Paul G. invited Incencio to his home to celebrate Paul G.’s
5 Paul G. testified that a “shot caller” was someone who “was in charge of what
[the gang] did” and that the gang answered to the shot caller.
5
birthday. At some point, Inocencio asked to see one of Paul G.’s firearms and, in
response, Paul G. retrieved a firearm and handed it to Inocencio. While holding the
firearm, Inocencio chambered a round and pointed the firearm at Paul G. Paul G. asked
Inocencio what was going on and, in response, Inocencio made a video call to Flores and
handed the phone to Paul G. When Paul G. attempted to speak with Flores, Flores simply
responded with “ ‘You’re dead.’ ” At that point, Inocencio took the phone, turned the
phone so that it could record Paul G., and shot Paul G. multiple times.
Paul G. sustained a shot to the chest, multiple shots to his abdomen, and multiple
shots to his legs. He was later hospitalized, underwent emergency surgery, and spent
months recovering in the hospital.
Inocencio testified in his own defense that Paul G. had given him a firearm days
before the shooting and Inocencio carried it around for self-protection. Inocencio
testified that he went to Paul G.’s home on the night of the shooting and began arguing
with Paul G. over a personal debt Paul G. owed Inocencio. During this argument, Paul
G. pulled out a rifle or shotgun, cocked it and began to turn the gun toward Inocencio. In
response, Inocencio pulled out his own firearm and opened fire, shooting without any
specific target or any intent to kill Paul G. Inocencio denied that Flores had anything to
do with the incident.
After Inocencio testified, the prosecution presented a recorded video of a prior
interview between Inocencio and law enforcement. At the time, Inocencio denied ever
shooting anyone and did not indicate Paul G. was armed. Inocencio denied calling Flores
while at Paul G.’s home, denied that Flores made him do anything, and denied any
6
knowledge of how Flores or Paul G. knew each other. However, Inocencio mentioned
that he would be in trouble if Flores became associated with Inocencio’s personal
disputes.
C. Verdict and Sentence
In closing argument, the prosecution’s theory of the case was that Flores, as a gang
“shot caller,” ordered Inocencio, a fellow gang member, to kill Paul G. Pursuant to this
theory, the trial court instructed the jury with the pattern instructions on aiding and
abetting (CALCRIM Nos. 400, 401) as well as compelling another to commit a crime
(CALCRIM No. 443). Upon Inocencio’s request, the trial court also instructed the jury
on self-defense (CALCRIM No. 505), as well as the lesser included offense of attempted
voluntary manslaughter due to heat of passion or imperfect self-defense (CALCRIM Nos.
603, 604).
The jury convicted Inocencio and Flores on all counts. The jury also found true
special allegations that (1) in the commission of attempted murder, Inocencio acted
willfully, with deliberation and premeditation; (2) Inocencio’s commission of attempted
murder and assault involved the personal use of a firearm causing great bodily injury; and
(3) the offenses were committed for the benefit of a criminal street gang. In a bifurcated
proceeding, the trial court found true allegations that Flores had suffered two prior
serious felony convictions (§ 667, subd. (a)) and three prior convictions qualifying as
strike offenses (§§ 667, subds. (c), (e); 1170.12, subd. (c).) The trial court also found true
various circumstances in aggravation as to both defendants.
The trial court sentenced Inocencio to (1) an indeterminate term of 15 years to life
7
in state prison for the attempted murder (count 1; §§ 664, 187, subd. (a)) pursuant to the
alternate sentencing scheme for gang related offenses (§ 186.2, subd. (b)(5)); (2) a
concurrent determinate middle term of two years for the prohibited possession of a
firearm (count 3; § 29800); and (3) a consecutive determinate term of seven years to life
for the attempt to dissuade a witness (count 5; § 136.1, subd. (b)(2)) pursuant to the
alternate sentencing scheme for gang related offenses (§ 186.22, subd. (b)(4)(C)).6 As to
count 1, the trial court imposed but struck the punishment for the firearm enhancement
pursuant to section 12022.53, subdivisions (d) and (e).
The trial court sentenced Flores to (1) an indeterminate term of 50 years to life in
state prison for the attempted murder (count 1; §§ 664, 187, subd. (a)), representing 25
years to life pursuant to the alternate sentencing scheme of the three strikes law (§§ 667,
subds. (c) & (e), 1170.12, subd. (c)) enhanced by an additional 25 years to life for an
associated firearm enhancement (§ 12022.53, subds. (d), (e)); and (2) a consecutive
determinate term of 10 years plus an indeterminate term of 25 years to life for the attempt
to dissuade a witness (count 6; § 136.1, subd. (b)(2)), representing 25 years to life
pursuant to the alternate sentencing scheme for gang related offenses (§ 186.22,
6 The trial court also sentenced Inocencio to (1) 23 years in state prison for assault
with a firearm (count 2; § 245, subd. (b)), representing the middle term of six years,
enhanced with an additional three for causing great bodily injury (§ 12022.7), 10 years
for committing the offense for the benefit of a criminal street gang (§186.22, subd.
(b)(1)(C)) and four years for the personal use of a firearm (§ 12022.5, subd. (a)); and
(2) two years and four months for active participation in a criminal street gang (count 4;
§ 182.5), representing one-third the middle term for that offense. However, the trial court
stayed imposition of punishment for counts 2 and 4 pursuant to section 654.
8
subd. (b)(4)(C)), enhanced by a determinate term of 10 years as a result of suffering two
prior serious felony convictions (§ 667, subd. (a)).7
III. DISCUSSION
A. Instructional Error Claims
On appeal, Inocencio asserts the trial court committed instructional error by:
(1) failing to instruct the jury on duress as a defense to each of the charges; (2) failing to
instruct the jury on the purported lesser included offense of attempted voluntary
manslaughter as a result of “imperfect duress”; (3) failing to modify the pattern jury
instructions on aiding and abetting liability to prevent alternative theory error; and
(4) failing to instruct the jury on temporary lawful possession for self-defense as a
defense to a violation of section 29800.
Generally, “[a] claim of instructional error is reviewed de novo…. In reviewing a
claim of instructional error, the court must consider whether there is a reasonable
likelihood that the trial court’s instructions caused the jury to misapply the law …. The
challenged instruction is viewed ‘in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the jury applied the
7 The trial court also sentenced Flores to (1) 10 years plus 25 years to life for the
assault conviction (count 2; § 245, subd. (b)), representing 25 years to life pursuant to the
alternate sentencing scheme of the three strikes law (§§ 667, subds. (c) & (e), 1170.12,
subd. (c)) enhanced by 10 years for committing the offense for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)); and (2) 25 years to life for active participation in
a criminal street gang (count 4; § 182.5) pursuant to the alternate sentencing scheme of
the three strikes law (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). However, the trial
court stayed imposition of punishment for counts 2 and 4 pursuant to section 654.
9
instruction in an impermissible manner.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
As we explain, we find no prejudicial error warranting reversal on any of the claims of
instructional error asserted by Inocencio.
1. The Trial Court Was Not Required To Instruct on Duress
On appeal, Inocencio contends that the trial court should have instructed on duress
as a defense to counts 1 through 5 or, alternatively, as a basis to find Inocencio guilty of
the lesser included offense of voluntary manslaughter instead of attempted murder on
count 1. Generally, “a trial court must, sua sponte, or on its own initiative, instruct the
jury on lesser included offenses ‘when the evidence raises a question as to whether all of
the elements of the charged offense were present [present], but not when there is no
evidence that the offense was less than that charged.’ [Citation.] ‘The obligation to
instruct on lesser included offenses exists even when as a matter of trial tactics a
defendant not only fails to request the instruction but expressly objects to it being given.”
(People v. Barton (1995) 12 Cal.4th 186, 194-195 (Barton).) “In contrast to lesser
included offenses, a trial court’s duty to instruct, sua sponte, or on its own initiative, on
particular defenses is more limited, arising ‘only if it appears that the defendant is relying
on such a defense, or if there is substantial evidence supportive of such a defense and the
defense is not inconsistent with the defendant’s theory of the case.’ ” (Barton, at p. 195;
People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks).) Here, even assuming this issue has
10
been preserved for appeal,8 and assuming, without deciding, that duress is an available
defense to attempted murder or an available basis to find a defendant guilty of the lesser
included offense of attempted voluntary manslaughter,9 the record in this case does not
show any substantial evidence to support giving a duress instruction.
“The defense of duress is available to defendants who commit crimes, except
murder, ‘under threats or menaces sufficient to show that they had reasonable cause to
and did believe their lives would be endangered if they refused.’ ” (People v. Wilson
(2005) 36 Cal.4th 309, 331; § 26.) However, it has long been recognized that “[d]uress is
an effective defense only when the actor responds to an immediate and imminent danger.
‘[A] fear of future harm to one’s life does not relieve one of responsibility for the crimes
he commits.’ ” (People v. Heath (1989) 207 Cal.App.3d 892, 900; People v. Lo Cicero
(1969) 71 Cal.2d 1186, 1190, 1191 (Lo Cicero) [“[A] threat of imminent violence” is
“essential to a defense of duress.”].)
In this case, there was no evidence of any imminent threat of violence made by a
third party against Inocencio to support a duress instruction. It was undisputed that
Inocencio and Paul G. were the only persons present in the room at the time the shooting
8 The parties dispute whether this claim of instructional error was forfeited by
Inocencio’s failure to request a duress instruction in the trial court.
9 The parties also dispute whether duress is a recognized defense to attempted
murder or a recognized means of finding a defendant guilty of attempted voluntary
manslaughter as a lesser included offense. Neither Inocencio nor the People have cited to
any published authority that has directly addressed this specific issue. However, we
conclude that it is unnecessary for us to resolve this issue in this appeal.
11
occurred. More importantly, Inocencio never testified that he was induced to shoot Paul
G. as the result of a threat of violence from anyone. Nor did any other witness testify to
observing or hearing a threat of violence made to Inocencio. Thus, there was no direct or
circumstantial evidence to support a finding that Inocencio may have committed any of
the alleged offenses as a response to an immediate threat of violence.
The only evidence upon which Inocencio relies to show any threat of violence is
the testimony of an expert, who generally testified that Inocencio would immediately
become a gang target if he refused an order from Flores. However, the threat of being
labeled a target for future violence is not the same as a threat of imminent violence for
purposes of duress. Indeed, the California Supreme Court has repeatedly rejected similar
facts as a basis for duress. (Lo Cicero, supra, 71 Cal.2d at pp. 1189, 1191 [fear that
defiance of order to sell illicit drugs “would lead to defendant’s murder by the [drug]
syndicate” insufficient to support defense of duress where “no member of the syndicate
was present” at the time of the crime]; People v. Perez (1973) 9 Cal.3d 651, 657-658
[threat that the defendant’s “protection from future attacks by other inmates would be
removed” is not sufficient to constitute duress]; People v. Powell (2018) 6 Cal.5th 136,
164-165 [fact that defendant felt “ ‘pressured’ ” by accomplices to shoot the victim
during a robbery did not support giving instruction on duress where there was no
evidence accomplices “threatened him in any way” and no evidence accomplices were
armed at the time], overruled in part by People v. Bankston (2026) 19 Cal.5th 786, 867.)
Thus, even fully crediting the evidence identified by Inocencio in this appeal, this
evidence did not constitute substantial evidence in support of giving a duress instruction.
12
In the absence of any substantial evidence to support a finding of duress, the trial
court was not required to instruct the jury on duress, even assuming, arguendo, that
duress is an available defense to attempted murder or that it is an available basis to find
Inocencio guilty of a lesser included offense of attempted voluntary manslaughter. In
either scenario, the trial court is not required to give an instruction where there was no
substantial evidence upon which a jury could rely to find duress in the first instance.
(Barton, supra, 12 Cal.4th at p. 195; Brooks, supra, 3 Cal.5th at p. 73.) Additionally,
because there was no evidence to support a duress instruction for any purpose, we need
not address Inocencio’s alternative contentions that his counsel was ineffective for failing
to request duress instructions.10
2. The Pattern Instructions on Aiding and Abetting Were Not Erroneous
Inocencio also argues that his conviction for attempted murder should be reversed
because the pattern jury instructions on aiding and abetting resulted in alternative theory
error. Specifically, Inocencio contends that the pattern instructions permitted the jury to
convict him on an improper theory of murder because a conviction for murder can no
longer be premised upon theories of imputed malice, and the pattern instructions
purportedly permitted the jury to (1) find Flores guilty as the direct perpetrator of the
10 We also observe that there is at least one explanation for why counsel may
have decided not to request duress instructions as a matter of trial strategy. At the time of
trial, Inocencio testified that he shot at the victim out of self-defense after observing the
victim wield a firearm. An instruction on duress would have been entirely inconsistent
with Inocencio’s claim of self-defense and would have risked undermining Inocencio’s
primary defense in the case.
13
attempted murder and thereby impute malice to Inocencio under an aiding and abetting
theory; (2) find Flores guilty as the direct perpetrator of the attempted murder and convict
Inocencio on an aiding and abetting theory alone thereby relieving the prosecutor of the
burden to disprove Inocencio’s self-defense, imperfect self-defense, and heat-of-passion
defenses; and (3) find Flores guilty as the direct perpetrator of the attempted murder and
impute malice to Inocencio for purposes of finding Inocencio acted willfully, with
deliberation and premeditation. We disagree.
Generally, “[w]here a jury is instructed on alternate theories of liability, one
legally valid and one legally invalid, a federal constitutional error has occurred.” (In re
Lopez (2023) 14 Cal.5th 562, 580.) In assessing such a claim, “ ‘[a]n appellate court
reviews the wording of a jury instruction de novo and assesses whether the instruction
accurately states the law.… [T]he court must consider whether there is a reasonable
likelihood that the trial court’s instructions caused the jury to misapply the law in
violation of the Constitution…. The challenged instruction is viewed “in the context of
the instructions as a whole and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible manner.” ’ ” (People v.
Lewis (2023) 14 Cal.5th 876, 900.) If alternative-theory error is found, such error
“requires reversal unless we determine the error was harmless beyond a reasonable
doubt.” (In re Lopez, at p. 580; Lewis, at p. 900.)
Here, all of Inocencio’s arguments on this point rest on the premise that the jury
first might have found Flores guilty of attempted murder and then found Inocencio guilty
based upon the “aiding and abetting” instructions, thereby imputing Flores’s malice to
14
Inocencio for purposes of the attempted murder charge. In our view, no reasonable juror
would have interpreted the pattern instructions in this manner.
As relevant to this claim, CALCRIM No. 400 unambiguously instructed the jury
that a person can either be guilty of a crime as the perpetrator who directly commits the
crime or as a person who aids and abets the perpetrator.11 CALCRIM 401 then
instructed the jury that to find a defendant guilty of a crime based on aiding and abetting
that crime, the People were required to first prove “the perpetrator committed the
crime.”12 Thus, as instructed, the jury was required to find that a perpetrator directly
committed a crime before it could find Inocencio guilty of aiding and abetting that crime.
However, with respect to the attempted murder charge, no reasonable juror could
have found Flores guilty as the perpetrator who directly committed the crime based upon
the instructions given. The jury was specifically instructed that a defendant could only be
found guilty of attempted murder if he “took at least one direct but ineffective step
toward killing another person”(CALCRIM No. 600), and it was further explained that the
11 Specifically, CALCRIM No. 400 states: “A person may be guilty of a crime in
two ways. One, he or she may have directly committed the crime. I will call that person
the perpetrator. Two, he or she may have aided and abetted the perpetrator, who directly
committed the crime.”(CALCRIM No. 400)
12 In full, CALCRIM No. 401 instructed the jury: “To prove that the defendant is
guilty of a crime based on aiding and abetting that crime, the People must prove that:
(1) The perpetrator committed the crime; (2) The defendant knew that the perpetrator
intended to commit the crime; (3) Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing the crime; and (4) The
defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the
crime.”
15
“direct step” “requires more than merely planning or preparing to commit murder or
obtaining or arranging for something needed to commit murder” and must be “an
immediate step that puts the plan in motion so that the plan would have been completed if
some circumstance outside the plan had not interrupted the attempt.” It was undisputed
that Flores was incarcerated at the time of the shooting. Thus, even if the jury determined
that Flores planned or arranged for the commission of the attempted murder, the
instructions clearly precluded a finding that Flores was a perpetrator who directly
committed the crime of attempted murder based upon these acts.
Nor do we agree with Inocencio’s contention that CALCRIM No. 443 permitted
the jury to conclude “Flores’ act of commanding a murder was, itself, an act of attempted
murder, which [Inocencio] aided.” That instruction provides: “If the defendant forced
another person to commit a crime … , then the defendant is guilty of the crime that the
defendant forced the other person to commit.” By its plain words, before a defendant can
be considered guilty of a crime under this instruction, there must be another person who
first commits the crime.
Thus, in our view, no reasonable jury would have applied the instructions in the
manner asserted by Inocencio on appeal to find Flores guilty as the direct perpetrator of
the attempted murder and Inocencio guilty solely under an aiding and abetting theory. As
instructed, the jury could not apply the aiding and abetting instructions to Inocencio
unless it first found that another person directly committed the crime of attempted
murder. And, as instructed, the jury could not have found Flores, who was incarcerated
at the time that Paul G. was shot, guilty as the direct perpetrator of the crime of attempted
16
murder. As such, Inocencio has not shown alternative theory error warranting reversal on
appeal.
Finally, we are unpersuaded by Inocencio’s argument that the aiding and abetting
instructions somehow confused the jury and permitted the jury to impute Flores’ malice
to Inocencio for purposes of its finding that Inocencio acted willfully with deliberation
and premeditation. The precise nature of Inocencio’s argument on this point is not
entirely clear. However, we observe that the jury was instructed with CALCRIM No.
601 with respect to this finding, and the jury was specifically asked to make separate
findings on this issue as to each defendant. Nothing in this instruction references or
suggests that the jury is permitted to impute the mental state of one defendant to another
for purposes of determining whether a defendant acted willfully, with deliberation and
premeditation.13 “ ‘It is fundamental that jurors are presumed to be intelligent and
capable of understanding and applying the court’s instructions.’ [Citation.] ‘ “A
defendant challenging an instruction as being subject to erroneous interpretation by the
jury must demonstrate a reasonable likelihood that the jury understood the instruction in
13 CALCRIM No. 601 reads: “If you find the defendant guilty of attempted
murder under Count 1, you must then decide whether the People have proved the
additional allegation that the attempted murder was done willfully, and with deliberation
and premeditation. [¶] The defendant acted willfully if he intended to kill when he acted.
The defendant deliberated if he carefully weighed the considerations for and against his
choice and, knowing the consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before completing the acts of attempted murder. [¶]
… [¶] The People have the burden of proving this allegation beyond a reasonable doubt.
If the People have not met this burden, you must find this allegation has not been
proved.”
17
the way asserted by the defendant.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 433.) Given the unambiguous wording of CALCRIM No. 601, we conclude
that Inocencio has not met his burden on appeal to show that a reasonable jury would
have interpreted the instructions in the manner he suggests on appeal.
3. Any Failure To Give an Instruction on Temporary Lawful Possession of a
Firearm Was Harmless
Inocencio also asserts the trial court erred by failing to instruct the jury with
CALCRIM No. 2514 as a defense to the charge of unlawful possession of a firearm
(count 3; § 29800). CALCRIM No. 2514 provides for the temporary lawful possession
of a firearm by a person previously convicted of a felony for purposes of self-defense.
(CALCRIM No. 2514.) Even assuming that Inocencio was entitled to such an
instruction, we conclude that any failure to instruct on this defense was harmless.
Section 29800 provides in pertinent part: “Any person who has been convicted of
a felony … and who owns, purchases, receives, or has in possession or under custody or
control any firearm is guilty of a felony.” (§ 29800, subd. (a)(1).) However, California
authorities recognize a “limited exception to the general rule prohibiting firearm
possession by persons convicted of certain crimes” when “ ‘a member of one of the
affected classes is in imminent peril of great bodily harm or reasonably believes himself
or others to be in such danger, and without preconceived design on his part a firearm is
made available to him.’ ” (People v. Delacy (2011) 192 Cal.App.4th 1481, 1493
(Delacy); People v. King (1978) 22 Cal.3d 12, 24 (King).) In such a case, “his temporary
possession of that weapon for a period no longer than that in which the necessity or
18
apparent necessity to use it in self-defense continues” does not violate the prohibition.
(King, at p. 24.)
Regardless of whether Inocencio was entitled to an instruction outlining this
defense,14 “ ‘[e]rror in failing to instruct the jury … is harmless when the jury necessarily
decides the factual questions posed by the omitted instructions adversely to defendant
under other properly given instructions.’ ” (People v. Horning (2004) 34 Cal.4th 871,
906.) And the record in this case shows the jury clearly made findings adverse to
Inocencio that would have precluded an acquittal on count 3 based upon the doctrine of
lawful possession for self-defense.
Here, the jury found that Inocencio personally used a firearm in the commission of
the attempted murder. Thus, the jury necessarily found that Inocencio had possession of
a firearm at the time of the attempted murder. With respect to the attempted murder
charge, the jury was also instructed with the pattern jury instructions on self-defense.
Under these instructions, the jury was required to consider: (1) whether defendant
reasonably believed that he was in imminent danger of being killed or suffering great
bodily injury under circumstances in which he reasonably believed that he would suffer
great bodily injury or death; (2) the defendant reasonably believed that the immediate use
of deadly force was necessary to defend against that danger; and (3) the defendant used
14 We observe that Inocencio testified at trial that he took possession of the
firearm days prior to the incident for general self-defense purposes. And “the King rule
does not permit such a disqualified person to possess a firearm in anticipation of using it
one day in self-defense.” (Delacy, supra, 192 Cal.App.4th at p. 1493.)
19
no more force than was reasonably necessary to defend against that danger. (CALCRIM
No. 505) All three of these elements of self-defense are incorporated as part of the six
elements necessary to establish temporary lawful possession of a firearm for self-
defense.15(CALCRIM No. 2514.) Thus, in rejecting self-defense generally, the jury
necessarily determined at least one of the elements necessary to establish a defense under
CALCRIM No. 2514 adversely to Inocencio.
Thus, the record shows that the jury necessarily found that Inocencio had
possession of a firearm at a time when Inocencio would not be entitled to assert the
defense of lawful possession for self-defense. Because the jury necessarily determined
the factual question posed by CALCRIM No. 2514 adversely to Inocencio under other
properly given instructions, any failure to give CALCRIM No. 2514 was harmless and is
not grounds for reversal of Inocencio’s conviction on count 3.
B. Constitutional Claims
Inocencio contends his conviction for unlawful possession of a firearm by a
convicted felon (count 3; § 29800) must be reversed because section 29800 violates the
Second Amendment, both facially and as-applied to him. Generally, “ ‘ “ [t]he
15 Specifically, the jury would have been required to find “(1) the defendant
reasonably believed that [he] was in imminent danger of suffering great bodily injury;
(2) the defendant reasonably believed that the immediate use of force was necessary to
defend against that danger; (3) a firearm became available to the defendant without
planning or preparation on [his] part; (4) the defendant possessed the firearm temporarily
… for a period no longer than was necessary … for self-defense; (5) no other means of
avoiding the danger of injury was available; and (6) the defendant’s use of the firearm
was reasonable under the circumstances.” (CALCRIM No. 2514.)
20
interpretation of a statute and the determination of its constitutionality are questions of
law. In such cases, appellate courts apply a de novo standard of review.” ’ ” (People v.
Roberts (2025) 114 Cal.App.5th 187, 193.) “ ‘Typically, a litigant may challenge the
constitutionality of a statute in two ways: on its face or as applied.’ [Citation.] [¶] ‘A
facial challenge seeks to void the statute as a whole by showing that “ ‘no set of
circumstances exists under which the [statute] would be valid,’ ” ’ …. In contrast, a
defendant making an ‘as applied’ challenge to a statute ‘seek[s] “relief from a specific
application of a facially valid statute … to an individual or class of individuals … as a
result of the manner or circumstances in which the statute … has been applied.” ’ ” (Id.
at pp. 193-194.) As we explain, we conclude that section 29800 is facially valid and
further conclude that any as-applied challenge Inocencio intended to raise has been
forfeited.
1. Section 29800 Is Not Facially Unconstitutional
We turn first to Inocencio’s claim that section 29800 is facially unconstitutional
because it violates the Second Amendment. In N.Y. State Rifle & Pistol Ass’n v. Bruen
(2022) 597 U.S. 1 (Bruen), the United States Supreme Court set forth a two-part test for
analyzing Second Amendment challenges. (In re E.J. (2026) 119 Cal.App.5th 727, 733;
People v. McCowan (2026) 117 Cal.App.5th 1071, 108.) “ ‘At Bruen “[s]tep one,” courts
must determine whether “the Second Amendment’s plain text covers an individual’s
conduct.” … If Bruen step one is satisfied, “[t]he government must then justify its
regulation by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation.” ’ ” (E.J., at p. 733.) “ ‘At the second Bruen step, the challenged law
21
need not “precisely match its historical precursors” so long as it is “ ‘analogous enough to
pass constitutional muster.” ’ ” (E.J., at p. 733.; see United States v. Rahimi (2024) 602
U.S. 680, 692.)
Here, Inocencio argues that section 29800 is not consistent with this nation’s
historical tradition of firearm regulation because “one way to read this history is to
conclude that the Second Amendment’s framers did not share a common agreement that
any sort of perceived dangerousness was, on its own, sufficient grounds to restrict gun
ownership.” We are unpersuaded by this argument. Published California decisions have
uniformly upheld the facial constitutionality of section 29800 reasoning that only law-
abiding citizens are included among the people whose right to bear arms is protected by
the Second Amendment (Alexander (2023) 91 Cal.App.5th 469, 473-474; People v. Ceja
(2023) 94 Cal.App.5th 1296, 1301; People v. Odell (2023) 92 Cal.App.5th 307, 316-317;
People v. Richardson (2025) 108 Cal.App.5th 1203, 1212 (Richardson)) or, alternatively,
that regulating firearm possession by convicted felons is consistent with our nation’s
historical tradition of firearm regulation (People v. Anderson (2024) 104 Cal.App.5th
577, 589-600; People v. Gomez (2025) 110 Cal.App.5th 419, 439; People v. Bey (2025)
108 Cal.App.5th 144, 162; In re E.J., supra, 119 Cal.App.5th at pp. 734-735.) We
observe that the interpretation of our nation’s historical tradition of firearm regulation
advanced by Inocencio in this appeal would contradict both lines of authority finding
section 29800 facially constitutional. We decline to depart from the weight of authority
on this issue and decline to reverse Inocencio’s conviction on count 3 on this basis.
22
2. Inocencio Has Forfeited any As-Applied Challenge
With respect to Inocencio’s purported as-applied challenge to section 29800, we
conclude that any such challenge has been forfeited for two, independent reasons. First,
as the People correctly point out, Inocencio did not raise any constitutional challenge to
the application of section 29800 in the trial court, and it is well settled that an as-applied
constitutional challenge may not be raised for the first time on appeal. (Richardson,
supra, 108 Cal.App.5th at p. 1209; Zachary H. v. Teri A. (2023) 96 Cal.App.5th 1136,
1144 [“Because an as-applied challenge asserts a ‘constitutional defense [that] may be
correctable only by examining factual findings in the record or remanding to the trial
court for further findings’ [citations], it is not appropriately raised for the first time on
appeal.”].)
Second, the opening brief does not advance or develop any argument that could
properly be characterized as an as-applied challenge. An as-applied challenge
“contemplates analysis of the facts of a particular case or cases to determine the
circumstances in which the statute … has been applied and to consider whether in those
particular circumstances the application deprived the individual to whom it was applied
of a protected right.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) Yet
Inocencio’s opening brief has not developed any argument directed toward the
application of section 29800 in factual circumstances specific to Inocencio or explained
why the application of section 29800 to Inocencio differs from the general application of
the statute as a whole. And the “failure to present a developed argument on this point, as
opposed to a general assertion, forfeits any such claim of error.” (People v. Ashford
23
University, LLC (2024) 100 Cal.App.5th 485, 522.)
Finally, to the extent Inocencio argues his trial counsel was ineffective for failing
to raise a constitutional challenge to section 29800 in the trial court, we conclude that
Inocencio has failed to establish ineffective assistance on direct appeal. “To establish
ineffective assistance of counsel, [a defendant] must show that her counsel’s performance
was deficient and that she suffered prejudice from the deficient performance.” (People v.
Caro (2019) 7 Cal.5th 463, 488 (Caro).) Because Inocencio has not explained on appeal
what as-applied challenge he believes should have been brought in the trial court, this
court cannot assess whether the failure to bring such a claim constituted deficient
performance or whether he suffered prejudice from the failure to bring such a claim.
Thus, we conclude that Inocencio has not met his burden to show ineffective assistance
and decline to reverse his conviction on count 3 on this basis.
C. Request To Strike Enhancements Pursuant to Section 1385
Both Flores and Inocencio argue the trial court erred when it declined to strike
enhancements pursuant to section 1385. We conclude that Flores has failed to show the
trial court abused its discretion in denying his request to strike enhancements and that
Inocencio has forfeited this claim.
1. General Legal Principles and Standard of Review
“The judge or magistrate, may either on motion of the court or upon the
application of the prosecuting attorney, and in furtherance of justice, order an action to be
dismissed.” (§ 1385, subd. (a).) The trial court’s authority under section 1385 includes
the discretion to dismiss enhancements (People v. Tirado (2022) 12 Cal.5th 688, 696),
24
and “allegations of prior serious or violent convictions (i.e., prior strikes)” (People v.
Ortiz (2023) 87 Cal.App.5th 1087, 1093 (Ortiz); People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 530). Effective January 2022, the Legislature amended section
1385 “ ‘ “to specify factors that a trial court must consider when deciding whether to
strike enhancements from a defendant’s sentence in the interests of justice.” ’ ” (Ortiz, at
p. 1093; § 1385, subd. (c).)
As relevant to this appeal, the newly specified mitigating factors include:
(1) application of the enhancement would result in discriminatory racial impact; (2)
multiple enhancements are alleged in a single case; and (3) the application of an
enhancement could result in a sentence over 20 years. (§ 1385, subd. (c)(2)(A)-(C).) The
statute provides that when one of these specified mitigating factors exist, the trial court
“shall dismiss an enhancement if it is in the furtherance of justice to do so.” (§ 1385,
subd. (c)(1).) Further, the statute provides that in determining whether dismissal is in the
interests of justice, “[p]roof 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.” (§ 1385, subd. (c)(2).)
“In general, we review for abuse of discretion the trial court’s decision not to
strike a sentence enhancement under section 1385, subdivision (a).” (People v. Mendoza
(2023) 88 Cal.App.5th 287, 298; People v. Carmony (2004) 33 Cal.4th 367, 371
(Carmony); Ortiz, supra, 87 Cal.App.5th at p. 1093.) “Absent a showing that the trial
court’s refusal to dismiss … was arbitrary or irrational, we presume that the court
‘ “ ‘acted to achieve [the] legitimate sentencing objectives, and its discretionary
25
determination to impose a particular sentence will not be set aside on review.’ ” ’ ”
(Ortiz, at p. 1093.)
2. Flores Has Not Established an Abuse of Discretion
On appeal, Flores argues that the trial court abused its discretion in failing to strike
a firearm enhancement (§ 12022.53, subds. (d), (e)) from his sentence for attempted
murder (count 1; §§ 187, subd. (a), 664) and failing to strike one prior serious felony
enhancement (§ 667, subd. (a)) from his sentence for attempting to dissuade a witness
(count 6; § 136.1, subd. (b)(2)). Specifically, Flores contends that the trial court abused
its discretion because at least two mitigating factors that weighed greatly in favor of
dismissal were present in this case: (1) multiple enhancements were alleged (§ 1385,
subd. (c)(2)(B)), and (2) application of an enhancement could result in a sentence of over
20 years (§ 1385, subd. (c)(2)(C)). We find no abuse of discretion on this record.
Initially, we conclude that section 1385, subdivision (c)(2)(C), clearly did not
apply in this case. As recently explained in People v. Torres (2025) 113 Cal.App.5th 88
(Torres), section 1385, subdivision (c)(2)(C), applies only when “the effect of applying
the enhancement itself leads to a sentence exceeding 20 years” and cannot be said to
apply when the defendant’s “sentence already exceeded that by virtue of his
indeterminate sentence” on the underlying offense (Torres, at pp. 92-93). As applicable
here, the underlying sentence for each of Flores’s convictions was 25 years to life
pursuant to the alternate sentencing provisions of the three strikes law (§§ 667, subds. (c)
& (e), 1170.12, subd. (c)). Thus, none of the enhancements imposed on Flores could
properly be considered to have caused Flores’s sentence to exceed 20 years. Because this
26
factor did not apply to Flores, the trial court did not abuse its discretion in purportedly
failing to consider this factor in determining whether to strike or dismiss an enhancement.
Having clarified that section 1385, subdivision (c)(2)(C), does not apply, the only
mitigating factor that “weighed greatly” in favor of dismissing an enhancement was the
fact that multiple prior serious felony enhancements were imposed on count 6. However,
we cannot say that the trial court’s decision not to strike one of these enhancements
constituted an abuse of discretion based on the record before us. As recently clarified by
our Supreme Court, section 1385, subdivision (c)(2), does not create any presumptions in
favor of dismissal, but merely provides guidance to the trial court in how to conduct a
“ ‘holistic balancing’ ” with “ ‘special emphasis on the enumerated mitigating factors.’ ”
(People v. Walker (2024) 16 Cal.5th 1024, 1034-1035.) The mitigating circumstances
identified in section 1385, subdivision (c), are to be weighed alongside the circumstances
“ ‘long deemed essential to the “furtherance of justice” inquiry’ ” set forth in California
Rules of Court, rule 4.421. (Walker, at p. 1033.) Thus, even where a mitigating
circumstance is afforded “ ‘great weight’ ” under section 1385, subdivision (c), “this does
not preclude a trial court from determining that countervailing factors … may nonetheless
neutralize even the great weight of the mitigating circumstance, such that dismissal of the
enhancement is not in furtherance of justice.” (Ortiz, supra, 87 Cal.App.5th at p. 1098.)
As relevant here, the trial court expressly found at least two circumstances in
aggravation when addressing the traditional sentencing factors: (1) the crimes involved
great violence, great bodily injury, threat of great bodily harm or other acts exposing a
high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a));
27
and (2) defendant has served a prior prison term (rule 4.421(b)). The trial court found no
traditional circumstances in mitigation as to Flores. These were the factors against which
the trial court was required to weigh the mitigating factor of multiple enhancements
specified in section 1385, subdivision (c)(2)(B). In our view, reasonable minds could
differ over whether two aggravating factors might overcome the single mitigating factor
present in this case, even when that mitigating factor is afforded great weight in the trial
court’s evaluation. And “[o]nly in ‘an extraordinary case—where the relevant factors …
manifestly support the striking of a prior conviction and no reasonable minds could
differ’ would ‘the failure to strike … constitute an abuse of discretion.’ ” (People v.
Brugman (2021) 62 Cal.App.5th 608, 637.) Thus, we conclude Flores has not met his
burden to show an abuse of discretion in the trial court’s decision not to strike
enhancements.16
3. Inocencio Has Forfeited His Claim
Inocencio also argues that the trial court abused its discretion in failing to “strike
the 25-year-to-life enhancement or, at a minimum, strike the enhancements imposed on
the stayed count.” Specifically, Inocencio contends that the trial court abused its
discretion because at least three mitigating factors that weighed greatly in favor of
dismissal were present in this case: (1) application of the enhancement would have a
discriminatory racial impact (§ 1385, subd. (c)(2)(A)); (2) multiple enhancements were
16 Additionally, because we have reached the merits of Flores’s claim, we need
not address his alternative contention that trial counsel was ineffective for forfeiting the
issue by failing to properly raise it in the trial court.
28
alleged (§ 1385, subd. (c)(2)(B)); and (3) application of an enhancement could result in a
sentence of over 20 years (§ 1385, subd. (c)(2)(C)). We conclude Inocencio has forfeited
this claim of error on appeal. We further conclude that Inocencio has not established
ineffective assistance of trial counsel for failing to preserve the issue.
“A defendant has no right to make a motion, and the trial court has no obligation
to make a ruling, under section 1385.” (Carmony, supra, 33 Cal.4th at p. 375.) Thus,
“ ‘[a]ny failure on the part of a defendant to invite the court to dismiss under section 1385
… waives or forfeits his right to raise the issue on appeal.’ ” (People v. Coleman (2024)
98 Cal.App.5th 709, 724; People v. Nguyen (2025) 109 Cal.App.5th 1133, 1141-1143;
Carmony, at pp. 375-376.) The People correctly point out and Inocencio concedes that
his trial counsel never invited the trial court to exercise its discretion to strike or dismiss
enhancements pursuant to its authority under section 1385. Thus, Inocencio’s claim has
been forfeited.
To the extent Inocencio asserts that his trial counsel was ineffective for failing to
raise this claim in the trial court, we conclude Inocencio has not shown ineffective
assistance warranting reversal. As we have already noted in reference to other claims
raised by Inocencio in this appeal, “[t]o establish ineffective assistance of counsel, [a
defendant] must show that her counsel’s performance was deficient and that she suffered
prejudice from the deficient performance.” (Caro, supra, 7 Cal.5th at p. 488.) “On direct
appeal, if the record ‘ “sheds no light on why counsel acted or failed to act in the manner
challenged,” ’ we must reject the claim ‘ “unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ”
29
(Ibid.) “ ‘[C]ounsel is not ineffective for failing to make frivolous or futile motions’ ”
and where a defendant claims ineffective assistance based on the failure to litigate an
issue, the defendant must “show that it was objectively unreasonable—‘that is, contrary
to prevailing professional norms’—to forgo the motion.” (Ibid.) In our view, the
appellate record is simply not adequate to meet Inocencio’s burden.
First, Inocencio suggests that the trial court could have relied on section 1385 to
strike the sentences imposed pursuant to section 186.22, subdivision (b)(5) and (b)(4)(C).
However, section 186.22, subdivision (b)(4) and (b)(5), represents alternate penalty
provisions and not enhancements. (People v. Lopez (2022) 12 Cal.5th 957, 970 [Section
186.22(b)(4) “create[s] an alternate penalty provision.”]; People v. Briceno (2004) 34
Cal.4th 451, 460, fn. 7 [Section 186.22(b)(5) “is an alternate penalty provision.”].) And
numerous published decisions have concluded that the provisions of section 1385,
subdivision (c), do not apply to sentences imposed pursuant to alternative penalty
statutes. (People v. Burke (2023) 89 Cal.App.5th 237, 243-244 [under plain wording of
statute, section 1385(c) applies only to enhancements and not “an alternative sentencing
scheme for the current offense”]; People v. McDowell (2024) 99 Cal.App.5th 1147, 1154
[same]; People v. Serrano (2024) 100 Cal.App.5th 1324, 1337-1338; People v. Flores
(2021) 63 Cal.App.5th 368, 384 [Enhancements and alternate penalty provisions “are
distinct concepts with different sentencing consequences.”].) Given this authority, it
would have been reasonable for trial counsel to conclude that any such request would
have been futile. Further, Inocencio has not shown prejudice, since it is not reasonably
probable the trial court would have ignored the weight of authority on this point, even if
30
Inocencio’s trial counsel had raised the issue.
Second, the record shows that the trial court ultimately exercised its discretion to
strike the punishment for the firearm enhancement imposed pursuant to section 12022.53,
subdivision (d). The trial court’s authority to do so is derived from section 1385. (§
1385, subd. (b)(1); People v. Fuentes (2016) 1 Cal.5th 218, 228.) Thus, at least with
respect to the firearm enhancement, the record shows that the trial court was aware of
and, in fact, did exercise discretion pursuant to section 1385. Thus, trial counsel could
not have been ineffective for failing to invite the trial court to consider an issue, which
the trial court, on its own motion, had already decided to consider.
Finally, we observe that all of the remaining enhancements actually imposed were
stayed pursuant to section 654.17 It is true that an unstricken, but stayed, enhancement
may have future implications for a defendant. (See Fuentes, supra, 1 Cal.5th at pp. 225-
226.) However, as explained in People v. Ortega (2000) 84 Cal.App.4th 659, once
execution of punishment on a conviction has been stayed, the defendant no longer risks
facing any punishment as a result of that conviction in the present case. (Id. at p. 667.)
At that point, a request to strike the stayed conviction under section 1385 amounts to a
request that the trial court strike the current conviction “to avoid possible future
application of that conviction as a strike in the event [the defendant] should reoffend.”
(Ibid.) But under section 1385, the defendant is permitted to invite a future court to
17 The only portions of Inocencio’s sentence actually imposed and executed were
count 1, count 3, and count 5, none of which included any enhancements except the
firearm enhancement.
31
dismiss the allegation related to the prior conviction or determine whether to strike the
prior conviction for purposes of sentencing if doing so is in the interest of justice. (Ibid.)
Thus, a reasonable attorney could conclude that a request to strike otherwise stayed
enhancements was unwarranted at the time of sentencing. Inocencio faced no present
risk of punishment from the stayed enhancements, and Inocencio retained his ability to
request the trial court strike or dismiss an enhancement in the future if such enhancement
risked prejudicing him in an unjust manner. On this record, we cannot conclude that trial
counsel’s decision clearly fell below prevailing norms and, as a result, Inocencio has not
met his burden to show his trial counsel was ineffective for failing to request the trial
court exercise discretion to strike otherwise stayed enhancements.
D. Miscellaneous Sentencing Issues
1. Jury Findings Are Not Required under Section 654
Inocencio argues his sentence for unlawful possession of a firearm by a convicted
felon (count 3; § 29800) should be reversed because the Sixth Amendment to the United
States Constitution entitled him to a jury determination regarding whether section 654
operates to stay punishment on this count. We disagree.
On this point, we need not address Inocencio’s arguments at length. We observe
simply that the California Supreme Court has held that “it is well settled that the Sixth
Amendment right to a jury trial does not apply to trial court findings under section 654.”
(People v. Carter (2019) 34 Cal.App.5th 831, 845.) In doing so, our Supreme Court
explained that “ ‘ “[t]he question of whether section 654 operates to ‘stay’ a particular
sentence does not involve the determination of any fact that could increase the penalty for
32
a crime beyond the prescribed statutory maximum for the underlying crime….” “Section
654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided
by the Legislature to apply in those limited situations where one’s culpability is less than
the statutory penalty for one’s crimes. Thus, when section 654 is found to apply, it
effectively ‘reduces’ the total sentence otherwise authorized by the jury’s verdict.” ’
‘ “[J]udges in this country have long exercised discretion of this nature in imposing
sentence within [established] limits in the individual case,” and the exercise of such
discretion does not contravene the Sixth Amendment even if it is informed by judge-
found facts.’ ” (Id. at p. 846.)
“As an intermediate court of appeal, we are bound by the decisions of the
California Supreme Court.” (People v. Barooshian (2024) 101 Cal.App.5th 461, 471;
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, until the
California Supreme Court holds otherwise, we decline Inocencio’s invitation to reassess
the merits of the claim that a defendant is entitled to a jury trial on the question of
whether section 654 operates to stay any punishment in this case.
2. The Record Does Not Show an Abuse of Discretion in the Trial Court’s
Selection of Middle Terms When Sentencing Inocencio
Inocencio also argues that “[t]he trial court erred by relying on the great bodily
injury [Paul G.] suffered and the fact that [Inocencio] used a gun as aggravating factors
on the counts that were already accompanied by great bodily injury and personal use of a
firearm enhancement[s], for purposes of imposing the middle term instead of the
presumptive low term.” Generally, “[a] trial court’s decision to impose a particular
33
sentence is reviewed for abuse of discretion and will not be disturbed on appeal ‘unless
its decision is so irrational or arbitrary that no reasonable person could agree with it.’ ”
(People v. Jones (2009) 178 Cal.App.4th 853, 860; People v. Nielsen (2026)
119 Cal.App.5th 816, 823.) And, as a general matter, we agree with Inocencio that the
trial court may not rely on the same fact to select an aggravated term and impose an
enhancement. (§ 1170, subd. (b)(5); People v. Moberly (2009) 176 Cal.App.4th 1191,
1197-1198; People v. Scott (1994) 9 Cal.4th 331, 350.) However, we find no basis in the
record for reversal on this ground.
First, we agree with the People that the trial court was not required to find any
aggravating circumstances true in order to select the middle term of imprisonment in this
case. Under section 1170, a trial court is vested with wide discretion to order imposition
of any term of imprisonment that does not exceed the middle term. (§ 1170, subd.
(b)(1).) It is required to find aggravating circumstances only when imposing the upper
term (§ 1170, subd. (b)(1); People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 928-
929 [The requirement that aggravating circumstances be found true applies only to the
selection of the upper term.]) or if a statutory low-term presumption applies (§ 1170,
subd. (b)(6); People v. Hilburn (2023) 93 Cal.App.5th 189, 204-205 [“[T]he sentencing
court is tasked with assessing mitigating and aggravating factors to impose the middle
term only if it first determines that the defendant qualifies for [a presumptive low
term].”). The trial court did not select the upper term for any count when sentencing
Inocencio and it was never asked to determine whether a low-term presumption
34
applied.18
Second, to the extent Inocencio implies that selection of the middle term required
weighing aggravating and mitigating circumstances because he was entitled to a
presumptive low term, we conclude he has not met his burden to show an abuse of
discretion on this ground. Section 1170, subdivision (b)(6), lists several circumstances
that may create a presumption that the court should impose a low term. (§ 1170,
subd. (b)(6).) However, a defendant is normally required to make a prima facie showing
in order to trigger this statutory presumption. (People v. Frederickson (2023)
90 Cal.App.5th 984, 991-992; People v. Knowles (2024) 105 Cal.App.5th757, 765.) And
the record does not show Inocencio attempted to make any such showing in the trial
court. More importantly, Inocencio’s opening brief does include any argument
explaining the reasons why he was entitled to any presumptive low term. “[A]n appellate
court is ‘not required to search the record to ascertain whether it contains evidence that
will sustain [the appellant’s] contentions.’ ” (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1574.) Thus, because Inocencio has not identified the basis upon which he claims
entitlement to a presumptive low term, either in the trial court or in his opening brief, we
conclude he has failed to meet his burden to show the trial court abused its discretion in
selecting a middle term over a purported presumptive low term.
18 To the extent Inocencio suggests that he was entitled to the low term
presumption under section 1170, subdivision (b)(6), we conclude that this argument has
been forfeited. And his opening brief does not explain what he contends is the basis for
applying a low term presumption.
35
Third, we observe that at the time of sentencing, the trial court listed three
circumstances in aggravation that it found true but did not specifically state whether it
was relying on any specific circumstance to select the middle term for any specific count.
And where the record is silent, “[w]e presume the court knows and applies the applicable
law, absent evidence to the contrary.” (Nielsen, supra, 119 Cal.App.5th at p. 823; People
v. Bravo (2025) 107 Cal.App.5th 1144, 1157; People v. Carmony, supra, 33 Cal.4th at p.
378.) Because the record is silent regarding the facts upon which the trial court relied to
select the middle term on any specific count, we presume the trial court correctly applied
the law and did not rely on any fact that was also used to impose an enhancement.19
For the above reasons, we conclude that Inocencio has not shown an abuse of
discretion in the trial court’s selection of middle terms when sentencing him and decline
to reverse his sentence on this basis.
3. Inocencio Has Not Shown Prejudice from the Trial Court’s True Findings
Related to Prior Prison Terms
Inocencio also argues “[t]he trial court’s findings that the prosecution had proven
[he] had served six specific prior terms in prison and/or county jail, as an aggravating
factors [sic], must be reversed for a lack of substantial evidence.” We disagree.
On this point, we agree with the People that the record does not support
19 At least one of those circumstances in aggravation was the fact that Inocencio
had served a prior term in prison, and thus did not involve the infliction of great bodily
injury or the use of a firearm in the commission of the current offenses. (Cal. Rules of
Court, rule 4.421(b)(3).)
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Inocencio’s characterization of the trial court’s findings. In making its findings at the
time of Inocencio’s bifurcated court trial on the truth of aggravating circumstances, the
trial court expressly stated: “the Court finds true that the defendant served a prior term in
prison or county jail under Penal Code section 1170(h).” While the trial court proceeded
to list six criminal case numbers after making this finding, it made clear that the
circumstance in aggravation found true was pursuant to “rule 4.421(b)(3).” At the time
of sentencing, the trial court reiterated that the aggravating circumstance found true was
that: “under [r]ule 4.421(b)(3), the defendant has served a prior term in prison or county
jail under section 1170(h).”
Thus, the trial court’s finding was that Inocencio had served a prior term in prison.
Nothing in the record suggests the trial court specifically found Inocencio had served six
prior prison terms and nothing in the record suggests the trial court relied on the number
of prior prison terms as a basis for any of its sentencing choices.20 With respect to the
finding actually made by the trial court, Inocencio concedes that substantial evidence in
the record supports a finding that he served at least one prior custodial term. Thus, we
conclude that Inocencio has failed to show that the trial court’s actual finding is
unsupported by substantial evidence and decline to reverse the trial court’s true finding.
20 We observe that California Rules of Court, rule 4.421(b)(2) separately provides
for “numerous” prior convictions as an aggravating circumstance. (Ibid.) However, the
trial court never mentioned this provision either at the time of the bifurcated trial on
aggravating circumstances or at the time of sentencing.
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4. Inocencio’s Abstract of Judgment Should Be Corrected
“Courts may correct clerical errors at any time, and appellate courts … that have
properly assumed jurisdiction of cases have ordered correction of abstracts of judgment
that did not accurately reflect the oral judgments of sentencing courts.” (People v.
Mitchell (2001) 26 Cal.4th 181, 185.) Where there is “an evident discrepancy between
the abstract of judgment and the judgment that the reporter’s transcript … reflect, the
appellate court itself should order the trial court to correct the abstract of judgment.” (Id.
at p. 188.)
As we have already noted, after initially stating that it would impose a firearm
enhancement pursuant to section 12022.53, subdivision (d), on Inocencio’s sentence on
count 1, the trial court later struck the punishment on that enhancement. The abstract of
judgment in this case fails to accurately reflect this aspect of Inocencio’s sentence, listing
the enhancement and time imposed of “25 years” without any indication that punishment
was stricken.21 As a result, we will order the abstract of judgment corrected to reflect the
trial court’s actual pronouncement of sentence in this case.
IV. DISPOSITION
The judgments are affirmed. Upon remand, the trial court is directed to
(1) prepare an amended abstract of judgment to reflect that Inocencio’s firearm
21 We acknowledge that the abstract of judgement was prepared on a version of
the Judicial Council Form that did not provide a clear method for indicating when an
enhancement was imposed, but punishment stricken. However, the Judicial Council
Form has since been updated to allow for this aspect of Inocencio’s sentence to be clearly
indicated. (CR-290.)
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enhancement pursuant to section 12022.53, subdivision (d), on count 1 was imposed but
punishment on the enhancement was stricken, and (2) forward a copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
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