Filed 10/6/26 P. v. Garcia CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A173733
v.
ROBERT JESUS GARCIA, (City and County of San
Defendant and Appellant. Francisco Super. Ct. No.
SCN234771)
Robert Jesus Garcia appeals from the trial court’s June 27, 2025 order
revoking his probation and ordering execution of a previously imposed prison
sentence. He contends that the court failed to comply with its obligation
under Penal Code1 section 1170, subdivision (b)(6) to apply a presumption in
favor of the lower term based on his childhood trauma and his youth at the
time of the offense. The court originally imposed an eight-year sentence in
May 2023, suspended its execution, and granted probation pursuant to a
negotiated disposition after Garcia pled guilty to two felony charges. In June
2025, after finding that Garcia had violated the terms of his probation, the
court revoked probation, lifted the suspension of the sentence, and ordered
1 All further statutory references are to the Penal Code, unless
otherwise indicated.
the previously imposed sentence of eight years to be executed. We affirm
because the court lacked authority to impose a different sentence.
BACKGROUND
In May 2021, police responded to a report of an armed robbery. The
victim reported that a car had followed him as he drove to a store. After he
parked and exited his vehicle, the other car parked directly behind him and
two occupants followed him on foot. The two men grabbed the victim’s shirt,
pointed a gun at him, and caused him to fall. One of the men pointed his gun
at the victim and demanded his watch. After taking the watch, the two men
returned to their vehicle, which was driven away by a third person who had
remained inside the car.2
Later that month, law enforcement officers monitoring social media
accounts observed an account in which an individual appeared to be wearing
the stolen watch. The account was linked to Garcia, who was known to reside
at an address that police knew to be frequented by members of two criminal
street gangs.
Several months later, officers executed a search warrant at Garcia’s
residence and arrested him. Police seized multiple firearms, including
assault weapons and ammunition, suspected stolen documents, suspected
2 The presentence report and the motion to revoke probation, among
other documents, were placed in the confidential clerk’s transcript, but
Garcia cites and relies on these confidential materials without seeking to file
his brief under seal. We treat this as a waiver of the confidentiality. (People
v. Brinston (2026) 120 Cal.App.5th 972, 976, fn. 2; see Cal. Rules of Court,
rule 8.47(c)(2) [to maintain confidentiality parties can move to file a
document under seal].)
2
narcotics, and gang indicia. Two of the seized firearms were linked to a
separate attempted armed robbery that occurred in November 2021.3
The San Francisco District Attorney filed a felony information charging
Garcia with two counts of attempted second-degree robbery (§§ 211, 664;
counts 1 and 3), two counts of assault with an assault weapon (§ 245,
subd. (a)(3); counts 2 and 4), two counts of second-degree commercial
burglary (§ 459; counts 5 and 8), second-degree robbery (§ 211; count 6),
assault with a semi-automatic firearm (§ 245, subd. (b); count 7), four counts
of possession of an assault weapon (§ 30605, subd. (a); counts 9–12), and a
misdemeanor violation of receiving or buying stolen property (§ 496, subd. (a);
count 13). The information was later amended to add one count of grand
theft from a person (§ 487, subd. (c); count 14).
On May 23, 2023, Garcia pled guilty to counts 2 and 14 (assault with an
assault weapon and grand theft from a person, respectively), and the
remaining counts were dismissed. The pre-plea report reflected that Garcia
was 18 years old at the time of the armed robbery in May 2021 and stated
that Garcia reported having experienced a traumatic childhood. Before
accepting the plea and imposing sentence, the trial court stated that it had
reviewed the pre-plea report and observed that it retained authority to accept
or reject the parties’ negotiated disposition.
Garcia’s counsel then placed the terms of the negotiated plea and
stipulated sentence on the record and stated that he had advised Garcia “of
the law as it relates to the facts of his case.” Before taking Garcia’s plea, the
court warned him: “if you violate any terms and conditions of your probation,
3 During an interrogation, Garcia told police that he was in the getaway
car during the November 2021 incident but “he was asleep with the gun on
his lap” when the attempted robbery took place.
3
I send you to prison, and I am sending you to prison for eight years.” The
court then accepted Garcia’s guilty plea to counts 2 and 14, after finding that
he had knowingly, intelligently, and voluntarily waived his rights. Before
sentencing Garcia, the court asked: “Because I am in possession of a pre-plea
report, any legal cause why I shouldn’t sentence him right now?” Garcia’s
counsel answered, “No.”
Pursuant to the negotiated disposition, the trial court imposed the
middle term sentence of eight years for count 2 and a concurrent two-year
middle term sentence for count 14, for an aggregate term of eight years. Also
pursuant to the negotiated disposition, the court suspended execution of the
sentence, and Garcia was placed on two years of formal probation with 182
days of custody credit for each count.
Seven months later, Garcia was arrested for possession of a concealed,
loaded firearm with a high-capacity magazine. The next day, the Probation
Department moved to revoke Garcia’s probation.
On June 27, 2025, the trial court found that Garcia violated the terms
and conditions of his probation, revoked his probation, and executed the
suspended sentence.4 The court awarded Garcia a total of 1,905 days of
custody credit.
4 We observe that Garcia’s trial counsel asked the court to exercise its
discretion to resentence Garcia “to a lesser term within 120 days of
commitment . . . under Penal Code section 1170(d),” citing People v. Howard
(1997) 16 Cal.4th 1081 at page 1087 (Howard). Garcia plainly intended to
invoke what is now section 1172.1. In 2022, the recall and resentencing
provisions of former section 1170, subdivision (d), were amended and moved
to section 1170.03 (Stats. 2021, ch. 719, §§ 1–7), which thereafter was
renumbered as section 1172.1. (Stats. 2022, ch. 58, § 9; see People v. Pierce
(2023) 88 Cal.App.5th 1074, 1078.) The trial court understood both the
request and its postcommitment resentencing authority. It stated that it
4
Garcia appealed. His notice of appeal states that his appeal is “after a
contested violation of probation” under section 1237, subdivision (b).
DISCUSSION
Before addressing Garcia’s claim, we first clarify the order under
review. Garcia’s briefing is not entirely clear, and the Attorney General
principally argues that Garcia is attempting to challenge the sentence
imposed on May 23, 2023, from which no timely appeal was taken. “ ‘Our
jurisdiction on appeal is limited in scope to the notice of appeal and the
judgment or order appealed from.’ ” (Chalmers v. Hirschkop (2013) 213
Cal.App.4th 289, 304.) Although a notice of appeal must be liberally
construed, (Cal. Rules of Court,5 rule 8.100(a)(2)), we may not review an
unchallenged order.
Garcia’s notice of appeal expressly states that he appeals the order
entered on June 27, 2025, and that the appeal is taken under section 1237,
subdivision (b).6 We therefore treat the appeal as one from the June 27, 2025
“was not recalling anything now,” while also making clear that it was not
prejudging any future resentencing petition. (See Howard, at p. 1094 [“[T]he
Legislature has directed that in probation revocation situations any reduction
of sentence must occur at the postcommitment stage”].) Garcia does not
challenge that ruling on appeal.
5 All further references to rules are to the California Rules of Court.
6 Section 1237, subdivision (b), authorizes appeals “[f]rom any order
made after judgment, affecting the substantial rights of the party.” (§ 1237,
subd. (b).) “In a criminal case, the sentence is the judgment.” (People v.
McKenzie (2018) 25 Cal.App.5th 1207, 1214 (McKenzie); § 1237, subd. (a) [“A
sentence” and “an order granting probation” are each “deemed to be a final
judgment within the meaning of this section”].) Here, the trial court imposed
Garcia’s sentence in May 2023. Thus, the June 2025 order revoking and
terminating Garcia’s probation and executing his sentence is a post judgment
order. The Attorney General does not dispute that the June 2025 order is
appealable or that Garcia timely appealed from that order.
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probation revocation order and disregard the opening brief’s citation to
section 1237, subdivision (a).
Garcia argues that, at the June 2025 hearing, the trial court abused its
discretion by failing to apply the low-term presumption under section 1170,
subdivision (b)(6), despite evidence that his childhood trauma and
youthfulness contributed to the commission of his crimes. This argument
fails because once the court revoked probation and lifted the suspension of
execution of sentence, it was statutorily required to bring the judgment into
“full force and effect,” and lacked the ability to impose a different sentence.
(§ 1203.2, subd. (c); rule 4.435(b)(2); see Howard, supra, 16 Cal.4th at
p. 1094.)
The consequences of revoking probation depend on whether the court
originally suspended imposition or execution of sentence. When a court
suspends imposition of sentence, no judgment has yet been pronounced, and
the court retains sentencing discretion if probation is later revoked. By
contrast, when the court imposes sentence but suspends its execution, a
judgment has been rendered.7 In that circumstance, section 1203.2,
subdivision (c), and rule 4.435(b)(2) require the court, upon revoking
probation and ordering imprisonment, to execute the previously imposed
judgment. (Howard, supra, 16 Cal.4th at p. 1088.) “These provisions, ‘by
their terms, limit the court’s power in situations in which the court chose to
impose sentence but suspended its execution pending a term of probation.’
[Citation].” (People v. Kelly (2013) 215 Cal.App.4th 297, 302–303.) Thus,
once the court revokes probation and determines that the defendant will be
7 That judgment becomes final if the defendant does not appeal within
60 days. Thus, to the extent Garcia is challenging the 2023 sentencing order,
we agree with the Attorney General that any such appeal is untimely. (Rule
8.308(a).)
6
committed to prison, it lacks authority to modify the previously imposed
sentence. (McKenzie, supra, 25 Cal.App.5th at p. 1214.)
Here, the court suspended execution—not imposition—of Garcia’s
sentence. On May 23, 2023, the court imposed an eight-year prison sentence,
suspended its execution, and granted Garcia probation. When the court
revoked probation in June 2025 and ordered Garcia committed to prison, it
was required to execute that previously imposed judgment. It had no
authority at that point to select a different term under section 1170,
subdivision (b)(6).
Garcia does not address section 1203.2 or rule 4.435(b)(2) even though
the Attorney General’s appellate briefing raised the issue. And while Garcia
acknowledges the Attorney General’s reliance on McKenzie, he does not
address its analysis. The cases on which Garcia relies do not assist him
because none involved a challenge to the execution of a sentence that had
already been imposed but suspended. (E.g., People v. Lopez-Tapia (2026) 120
Cal.App.5th 690, 693–695 [defendant challenged sentence imposed after
conviction by jury]; People v. Panozo (2021) 59 Cal.App.5th 825, 828 [same];
People v. Fredrickson (2023) 90 Cal.App.5th 984, 987–988 [trial court
suspended imposition of sentence when it granted probation; defendant
challenged the sentence imposed after probation was revoked].)
This does not mean that a trial court lacks any discretion at the
probation revocation stage. The court may “decline to revoke the suspension
[of the sentence’s execution] or to order confinement.” (Howard, supra, 16
Cal.4th at p. 1094; § 1203.2, subd. (c).) But once it revoked probation and
ordered Garcia imprisoned, the court was required to execute the previously
imposed judgment and lacked discretion to impose a lesser sentence.
(Howard, pp. 1094–1095.) Accordingly, the court could not have abused
7
sentencing discretion that it no longer possessed. (McKenzie, supra, 25
Cal.App.5th at p. 1214.)
DISPOSITION
The June 27, 2025 probation revocation order is affirmed.
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_________________________
Gordon, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Goldman, J.
People v. Garcia/A173733
* Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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