Filed 8/21/26 P. v. Gutierrez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A172793
v.
LUIS ALBERTO GUTIERREZ, JR., (San Mateo County
Super. Ct. No. SC078145A)
Defendant and Appellant.
In 2014, defendant Luis Alberto Gutierrez, Jr., pleaded no contest to
one count of attempted murder, with a firearm enhancement, as well as one
count of first degree burglary. He also admitted suffering a prison prior.
Pursuant to a negotiated agreement, the trial court sentenced him to the
upper term of nine years for the attempted murder conviction, 10 years for
the firearm enhancement, 16 months for the burglary conviction, and one
year for the prison prior, totaling 21 years four months. In 2025, the trial
court resentenced defendant pursuant to Penal Code section 1172.75,1 to a
total term of 20 years four months, by striking the now invalid one-year
prison prior but otherwise declining to further modify defendant’s sentence.
Defendant maintains the trial court erred in declining to strike or to
reduce the sentence for the firearm enhancement, in assertedly making dual
1 All further statutory references are to the Penal Code.
1
use of facts in imposing the upper term and the firearm enhancement, and in
reimposing the upper term sentence for the attempted murder conviction
based on aggravating factors not stipulated to by defendant or found true
beyond a reasonable doubt by a jury.
We affirm but remand with instructions to correct the abstract of
judgment to conform to the court’s oral pronouncement striking the prison
prior enhancement.
BACKGROUND2
In August 2012, defendant was dating L.A. L.A. described R.E., who
was her uncle (and the victim of the attempted murder), as the “family child
molester.” R.E. lived with his mother G.E., who was L.A.’s grandmother.
In mid-August, defendant went to the victim’s and G.E.’s apartment.
When the victim asked why defendant had not called first, he stated he
needed to use the bathroom. Once defendant came out of the bathroom, he
walked into the living room, stood about 10 feet away from the victim and
shot him in the face, hitting him in the left, lower jaw. When the victim
asked, “ ‘Why are you doing this,’ ” defendant responded, “[H]e was doing it
because of what [the victim] had done to [G.L.],” another one of G.E.’s
granddaughters. The two of them began to struggle, and defendant fired two
more shots, neither of which hit the victim. At one point, defendant stated to
the victim, “ ‘I know what you did to the baby.’ ”
The San Mateo County District Attorney filed an amended information
alleging one count of attempted murder willfully, deliberately, and with
premeditation (§§ 664, 187, subd. (a), 189—count 1) and one count of willfully
2 As defendant pleaded no contest, the background facts are taken
from the preliminary hearing transcript, which the parties stipulated
provided a factual basis for the plea.
2
and unlawfully entering an inhabited dwelling with intent to commit larceny
(§ 460, subd. (a)—count 2). As to count 1, the information alleged defendant
personally and intentionally discharged a firearm and proximately caused
great bodily injury (§ 12022.53, subd. (d)). As to both counts, the information
further alleged defendant personally used a firearm (§ 12022.5, subd. (a)),
personally inflicted great bodily injury (§ 12022.7, subd. (a)), and the counts
were violent and serious felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)).
Finally, the information alleged defendant had suffered a prison prior
(§ 667.5, former subd. (b)).
Two years later, in 2014, defendant pleaded no contest to counts 1 and
2 and admitted a firearm enhancement (§ 12022.5, subd. (a)) and the prison
prior enhancement, as well as other allegations in exchange for an aggregate
sentence of 21 years four months. The term consisted of the upper term of
nine years for the attempted murder count (count 1), 16 months for the
residential burglary count (count 2), 10 years for the firearm enhancement,
and one year for the section 667.5 prison prior.
Eight years later, in 2022, the trial court appointed counsel and set a
hearing for resentencing pursuant to section 1172.75 (former § 1171.1).
In advance of the hearing, defendant filed a petition requesting that
the court strike the now-invalid prison prior enhancement pursuant to
section 1172.75 and strike the 10-year firearm enhancement pursuant to
section 1385 or alternatively reduce the sentence “to the mitigated term of
three years based on his substantial rehabilitation” and several other
circumstances, including that he was a “survivor of [the victim’s] sex assault
when [he] was a preteen.” Further, he was now “almost 40 years old,” and
assertedly “past the age when criminogenic factors play a role in a person’s
social behavior,” he had “been clean and sober for more than 10 years—since
3
his commitment,” and he had had no prison rule violations since November
2022.
In support of his petition, defendant attached a report by a social
worker who had interviewed him and reviewed his records and set forth her
opinions to provide the court with “information pertaining to complex
childhood trauma and the resulting impact on [defendant’s] life.” Defendant
also attached a report from one Richard Subia, a “public safety consultant
providing information and consultation on various issues related to in-
custody detention, risk assessments, street gangs and prison gangs, and
overall operations of prison facilities throughout the nation.”
At the resentencing hearing, the trial court first heard from Mr. Subia,
“an expert in the area of state prison corrections with a particular focus on
state prison gang validation criteria and the process for how one becomes
validated” and “on the subject of whether a person’s prison record
demonstrates that they are an unreasonable risk to public safety.” Subia
observed that although defendant’s “C-file” indicated he has a gang tattoo,
the Department of Corrections had not “validated” him “as a member or
associate of any gang.” And while Subia also acknowledged defendant had
incurred multiple prison rule violations—11 over the course of his
imprisonment—based on the “rehabilitative programming” in which
defendant has participated, he was of the opinion defendant “does not pose an
unreasonable risk to public safety.”3
The court then heard from counsel.
The People requested the court strike the now-invalid one-year prison
prior enhancement but otherwise maintain the sentence. The People pointed
out defendant had been “on parole for a crime of violence” at the time of the
3 Defendant’s girlfriend also spoke as a character witness.
4
attempted murder offense, and the offense had involved trying “to kill
someone by going into an apartment and sh[ooting] them.” As for defendant’s
in-custody conduct, the prosecutor pointed out defendant had engaged in
“multiple fights and managed to get a new conviction for violence.” Counsel
further observed the fights “only stopped once [defendant] was housed in
isolation. The Court should be concerned because when he gets out, he
doesn’t have that luxury. He doesn’t get to choose who he’s around.”
Defense counsel, in turn, read a letter from defendant in which he
detailed his rehabilitative efforts. Counsel next went through the mitigating
circumstances applicable to defendant. As to “post-conviction factors,”
counsel asserted the evidence “reflects that circumstances have changed since
the original sentencing,” pointing to defendant’s participation in
programming and coursework. Counsel argued “there is substantial evidence
before the Court that [defendant] is committed to his sobriety, to maintaining
his sobriety, and that he is—he has prepared himself quite well for reentry,
and that he will be very successful . . . if he reenters to a rehabilitation
program.”
The trial court began by agreeing with Subia’s testimony that
defendant is not a gang member and is not affiliated with any gangs.
However, the court disagreed with Subia’s “risk assessment and the
evaluation of [defendant’s] behavior in prison.”
Although there were “some significant and mitigating circumstance[s]
and factors under Penal Code Section 1385(c)(2),” including “prior
victimization and childhood trauma and possibly due to mental illness,” the
court concluded dismissing the firearm enhancement or imposing lesser
terms for the attempted murder and enhancement would endanger public
safety. Defendant’s “record of violence,” stated the court, began in 2006 with
5
a misdemeanor assault conviction. In 2011, he was convicted of felony
assault, while on parole. He was also on parole during the instant offense.
His conduct in prison included 11 rule violations “that go all the way up to
2022.” Moreover, of the 11 violations, 10 “involved serious and violent
behavior.” All of the fights in which defendant engaged in were “mutual”
except one, and the one that was not, led to another conviction for assault
with force likely to cause great bodily injury on an inmate, for which he was
given an additional four-year sentence.
The court also pointed to the social history report defendant had
submitted in which the social worker opined defendant was only “now
beginning to process his trauma.” While the court commended defendant for
the two or three years of programming he had done, it concluded “he needs to
do a lot more, a lot more counseling and programming and help before he’s no
longer a threat to public safety.” The court further pointed out defendant
was in a “controlled environment in a single cell” while incarcerated but on
release would be “facing a lot more stressors on the street. Nothing can
prevent him from walking away, for example, [from] a drug or treatment
program if things got too difficult for him there.”
The court additionally ruled that even apart from the issue of public
endangerment, dismissal of the firearm enhancement would not be in the
“furtherance of justice.” Taking a “holistic approach,” the court concluded the
aggravating factors were “too significant” and outweighed the mitigating
factors. The court also observed defendant had received a “significant benefit
of getting a determinate sentence,” as he had been “facing something like 48
years to life.” And he was now “getting another benefit of striking the one-
year prior.”
6
The trial court thus declined to strike or reduce the sentence for the
firearm enhancement and imposed the original sentence minus the one-year
enhancement, resulting in an aggregate sentence of 20 years four months.
The court further noted it was imposing the upper term of nine years on
count 1 because defendant’s prior convictions as an adult were numerous and
of increasing seriousness, and was imposing the upper 10-year term on the
firearm enhancement because defendant was on parole at the time the
offense was committed.
DISCUSSION
Section 1172.75
“In 2021, the Legislature enacted section 1172.75, which provides that
‘[a]ny sentence enhancement that was imposed prior to January 1, 2020,
pursuant to [section 667.5, subdivision (b)], except for any enhancement
imposed for a prior conviction for a sexually violent offense . . . is legally
invalid.’ (Id., subd. (a).) The statute sets forth a procedure for identifying
and resentencing individuals whose sentences include such a ‘legally invalid’
enhancement. First, . . . the Department of Corrections and Rehabilitation
(CDCR) ‘shall identify those persons in [its] custody currently serving a term
for a judgment that includes an [invalid section 667.5, subdivision (b)]
enhancement . . . and shall provide the name of each person, along with the
person’s date of birth and relevant case number or docket number, to the
sentencing court that imposed the enhancement.’ (Id., subd. (b).) ‘Upon
receiving [such information from the CDCR], the court shall review the
judgment and verify that the current judgment includes a[n invalid
section 667.5, subdivision (b)] enhancement. . . . If the court determines that
the current judgment includes an [invalid] enhancement . . . , the court shall
7
recall the sentence and resentence the defendant.’ (Id., subd. (c).)” (People v.
Washington (2026) 117 Cal.App.5th 1057, 1062, fns. omitted (Washington).)
“Section 1172.75, subdivision (d) explains what happens at
resentencing after the CDCR has identified the defendant and the court has
verified their eligibility for relief:
“ ‘(1) Resentencing pursuant to this section shall result in a lesser
sentence than the one originally imposed as a result of the elimination of the
repealed enhancement, unless the court finds by clear and convincing
evidence that imposing a lesser sentence would endanger public safety.
Resentencing pursuant to this section shall not result in a longer sentence
than the one originally imposed.
“ ‘(2) The court shall apply the sentencing rules of the Judicial Council
and apply any other changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to promote
uniformity of sentencing.
“ ‘(3) The court may consider postconviction factors, including, but not
limited to, the disciplinary record and record of rehabilitation of the
defendant while incarcerated, evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced the
defendant’s risk for future violence, and evidence that reflects that
circumstances have changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.
“ ‘(4) 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
8
doubt at trial by the jury or by the judge in a court trial.’ (§ 1172.75,
subd. (d)(1)–(4).)” (Washington, supra, 117 Cal.App.5th at pp. 1062–1063,
italics added.)
Section 1385
Under section 1385, subdivision (c)(1), “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so. . . .” Under
subdivision (c)(2) of section 1385, in exercising its discretion, “the court shall
consider and afford great weight to evidence offered by the defendant to prove
that any of the mitigating circumstances in subparagraphs (A) to (I) are
present.[4] Proof of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.” The statute
defines “ ‘Endangering public safety’ ” to mean “there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.” (§ 1385, subd. (c)(2).)
4 The mitigating circumstances specified in section 1385,
subdivision (c)(2) are: “(A) Application of the enhancement would result in a
discriminatory racial impact as described in paragraph (4) of subdivision (a)
of Section 745. [¶] (B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single enhancement shall be
dismissed. [¶] (C) The application of an enhancement could result in a
sentence of over 20 years. In this instance, the enhancement shall be
dismissed. [¶] (D) The current offense is connected to mental illness.
[¶] (E) The current offense is connected to prior victimization or childhood
trauma. [¶] (F) The current offense is not a violent felony as defined in
subdivision (c) of Section 667.5. [¶] (G) The defendant was a juvenile when
they committed the current offense or any prior offenses, including criminal
convictions and juvenile adjudications, that trigger the enhancement or
enhancements applied in the current offense. [¶] (H) The enhancement is
based on a prior conviction that is over five years old. [¶] (I) Though a firearm
was used in the current offense, it was inoperable or unloaded.” (§ 1385,
subd. (c)(2)(A)–(I).)
9
Standard of Review
In resentencing proceedings under section 1172.75, we review the trial
court’s sentencing decision for abuse of discretion, although we review legal
issues de novo. (See People v. Mathis (2025) 111 Cal.App.5th 359, 366
(Mathis), review granted Aug. 15, 2025, S291628 [stating standard in prison
prior resentencing case].) More specifically, we similarly review for abuse of
discretion a trial court’s determination under section 1385, subdivision (c)(2)
that dismissal of an enhancement would endanger public safety. (See People
v. Gonzalez (2024) 103 Cal.App.5th 215, 225, citing People v. Mendoza (2023)
88 Cal.App.5th 287, 298 (Mendoza).)
Defendant bears the burden of demonstrating the trial court’s exercise
of its discretion was arbitrary, capricious or patently absurd, resulting in a
manifest miscarriage of justice. (Mendoza, supra, 88 Cal.App.5th at p. 298;
People v. Garcia (2024) 101 Cal.App.5th 848, 857 (Garcia) [a trial court’s “risk
finding” that dismissal of an enhancement would endanger public safety will
be upheld “ ‘if it falls within “the bounds of reason, all of the circumstances
being considered” ’ ”].)
In the trial court, defendant asserted at the first day of the two-day
resentencing hearing that the court was required to make findings under
section 1385, subdivision (c)(2) on the basis of “clear and convincing”
evidence. The trial court questioned defense counsel on this point, observing
it did not believe the clear and convincing standard applied under section
1385. The court asked, “Is there something that I’m missing?” Counsel
responded, “I was citing to . . . let me find it. Okay. Let’s see. [Section]
1171.1 applies here, but that doesn’t give the standard.” The court told
counsel she could e-mail the court and the People once she found the correct
citation. In his supplemental resentencing brief—filed before the continued
10
hearing—defendant conceded counsel had spoken in error “in citing this
burden at the hearing” and stated “[t]here is no requirement that the court
find anything by clear and convincing evidence.” (Italics omitted.) Still, in
an apparent abundance of caution, the court, in making its ruling, stated
“And even though the clear and convincing standard does not appear to be
required, I do find by clear and convincing evidence the aggravating factors
outweigh the mitigating factor.”
In his opening brief on appeal, defendant again asserts in passing that
the clear and convincing evidence standard applies. However, he offers no
argument or citation to any authority in support of that assertion and has
thus waived the issue on appeal. (See People v. Stanley (1995) 10 Cal.4th
764, 793 [assertions waived by failure to support them with reasoned
argument and citations to authority].) He also forfeited the issue on appeal
when he expressly abandoned his assertion below that the clear and
convincing evidence standard applied. (See People v. Catlin (2001) 26 Cal.4th
81, 168 [claim abandoned at trial level is waived on appeal]; Johanson
Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588
[“issues raised and then abandoned in the trial court . . . cannot be considered
on appeal”].)
In short, we will uphold the trial court’s determination, unless it
abused its discretion. (Mendoza, supra, 88 Cal.App.5th at p. 298; Garcia,
supra, 101 Cal.App.5th at p. 857.)
Trial Court Did Not Abuse Its Discretion
Defendant first complains the trial court considered only a fraction of
the evidence before it, namely his prior convictions, “a singular line in the
conclusion of the social study report” that he was only “now beginning to
process his [childhood] trauma,” and his string of prison disciplinary
11
incidents for fighting. He asserts the court ignored Subia’s testimony
explaining “the context” of the disciplinary incidents and ignored the fact he
has completed over 172 courses to develop coping and job skills, assist with
his mental health, become sober, and develop a parole and release plan.
However, the record is to the contrary. The trial court stated it
reviewed all the materials submitted in connection with the resentencing
hearing, including the social study and Subia’s report attached to defendant’s
resentencing memorandum. Additionally, although the court did not
specifically detail all of the rehabilitative efforts defendant had done, the
court was well aware of his efforts having read through the materials, and
the court made specific reference to the two or three years of programming
defendant had done through the prison, since he had been allowed to
participate.
We therefore cannot say the trial court exercised its discretion “ ‘ “ ‘in
an arbitrary, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” ’ ” (Mendoza, supra, 88 Cal.App.5th at
p. 298; Garcia, supra, 101 Cal.App.5th at p. 857 [“ ‘in absence of a clear
showing that its sentencing discretion was arbitrary or irrational, a trial
court should be presumed to have acted to achieve legitimate sentencing
objectives’ ”].) And we are mindful that, under this standard, the trial court’s
“ ‘ “decision will not be reversed merely because reasonable people might
disagree. ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 377.)
Forward-Looking Inquiry
Defendant additionally contends the trial court employed the wrong
perspective in assessing dangerousness to the public. Specifically, he claims
12
the court focused on defendant’s current dangerousness rather than
considering “dangerousness at the time of a future release date.” (Boldface &
capitalization omitted.)
In support of this argument, defendant cites to People v. Gonzalez,
supra, 103 Cal.App.5th 215. In that case, the defendant was originally
sentenced to 75 years to life, which included a term of 25 years to life for a
firearm enhancement. (Id. at pp. 219–220.) At resentencing, the defendant
urged the trial court to conduct a forward-looking evaluation of
dangerousness. That is, he maintained the court should consider
dangerousness as of the time he would be released from prison if the court
dismissed the enhancement—which in his case would be after another 50
years of incarceration. (Id. at pp. 223–224.) The trial court declined to do so,
found the defendant “ ‘presently . . . does represent a danger to society’ ” (id.
at pp. 224, 227, italics added), and “ ‘for that reason’ ” denied the request to
dismiss the enhancement (id. at p. 224).
The Court of Appeal reversed, holding the trial court had erred in its
“singular focus on whether the defendant currently poses a danger.” (People
v. Gonzalez, supra, 103 Cal.App.5th at p. 228.) “Although the current
dangerousness of the defendant is an appropriate factor to consider,” said the
court, “as it will have some bearing on whether dismissing the enhancement
would endanger the public, a crucial part of the inquiry is how the dismissal
of the enhancement will impact the length of the defendant’s sentence. A
currently dangerous defendant who will be released from prison within a
short timeframe might be found by the trial court to pose a greater danger to
the public than a defendant who is currently dangerous but who has no
prospect of release from prison until he is elderly.” (Ibid.)
13
To begin with, defendant also forfeited this issue since he failed to raise
it below. He never argued in his resentencing briefs that the public safety
analysis must be “forward looking,” let alone argued at the hearing that the
trial court was not taking a sufficiently broad perspective on this factor.
“[C]omplaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons cannot be raised
for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356; People
v. Gonzalez, supra, 103 Cal.App.5th at p. 225.) “Although the court is
required to impose sentence in a lawful manner, counsel is charged with
understanding, advocating, and clarifying permissible sentencing choices at
the hearing.” (People v. Scott, at p. 353.)
Furthermore, even assuming the issue was preserved,5 the record does
not demonstrate that the trial court singularly focused on whether the
defendant currently poses a danger. Indeed, unlike in People v. Gonzalez, not
only did defendant never raise the issue, but the trial court never stated, as
did the trial court in that case, that it found defendant “currently” posed a
danger to the public. (See People v. Gonzalez, supra, 103 Cal.App.5th at
pp. 224, 228.) We cannot, of course, presume the trial court made such an
error. To the contrary, all presumptions and intendments must be made in
favor of the court’s judgment, and the appellant must affirmatively
demonstrate error. (See People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7 [“ ‘ “A
judgment or order of the lower court is presumed correct. All intendments
5 In his opening and reply briefs, defendant generally contends that to
the extent the sentencing issues raised in his appeal were not fully preserved
by objection below, he received ineffective assistance of counsel. We therefore
exercise our discretion to reach the issue to forestall any ineffective
assistance of counsel claim. (People v. Torres (2025) 113 Cal.App.5th 88, 92.)
14
and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. . . .” ’ ”].)
Defendant points to the trial court’s statements regarding his “prior
convictions, with the most recent being the in-custody assault conviction in
2015,” his “incidents for ‘fighting’ . . . while in custody, which took place
between 2014 and 2022,” and his “ ‘very impressive’ but ‘baby steps’ to ‘turn
his life around’ in the preceding two to three years” which, while laudable,
were “not sufficient to support a lesser term.” He construes these statements
as collectively demonstrating “that the court did not adequately consider it
had discretion to impose a lesser term that did not require an immediate
release from prison and assess his dangerousness at the time of eventual
release. . . .”
To begin with, People v. Gonzalez, itself, holds that a defendant’s
current dangerousness is an appropriate factor to consider, and defendant
points to no case law which states a trial court may not consider current
dangerousness or a petitioner’s in-custody disciplinary record. (Cf. People v.
Gonzalez, supra, 103 Cal.App.5th at p. 228 [“the current dangerousness of the
defendant is an appropriate factor to consider, as it will have some bearing on
whether dismissing the enhancement would endanger the public”].)
Furthermore, the trial court was well aware of the option to impose a
lesser sentence for the enhancement, which would result in further
incarceration and a later release. Defense counsel repeatedly reminded the
court of that option and suggested several reduced-sentence options the court
could impose. Indeed, just before the court pronounced sentence, counsel
inquired “would the Court consider the midterm because . . . striking the
enhancement is not the only option.” The court indicated it understood the
option to reduce the sentence but declined to do so.
15
In sum, it could not have been lost on the trial court, and we certainly
would make no assumption of such, that a lesser sentence, rather than a
dismissal, would extend defendant’s incarceration, allowing for further
rehabilitative efforts. The implication, in the absence of anything to the
contrary in the record, is that the court understood that this called for some
additional consideration of the danger to the public at that time. (See People
v. Brugman (2021) 62 Cal.App.5th 608, 637 [“ ‘The trial court is not required
to state reasons for declining to exercise its discretion under section 1385’
[citations], and ‘is presumed to have considered all of the relevant factors in
the absence of an affirmative record to the contrary.’ ”].)
We further observe that even had the trial court imposed a lesser term
for the firearm enhancement, defendant’s situation would have differed very
significantly from that of the defendant in People v. Gonzalez, who faced a 50-
year to life sentence even if the trial court dismissed the enhancement.
(People v. Gonzalez, supra, 103 Cal.App.5th at pp. 230–231.) By comparison,
a defendant “who would obtain immediate release if the petition is granted
poses a different potential danger to society than a defendant who could be
released only in his or her 70s.” (People v. Williams (2018) 19 Cal.App.5th
1057, 1063.) Here, defendant was 39 years old at the time of resentencing,
and he had served approximately 13 years of his 20-year, four-month
sentence. Thus, even considering the consecutive four-year term defendant
received for his in-custody conviction, defendant’s incarceration status was a
far cry from the 50 years the defendant faced in People v. Gonzalez; nor would
defendant be in his 70’s upon release. Furthermore, the time span
differential in defendant’s release would have been much shorter than that in
People v. Gonzalez, had the trial court, as defendant had urged, imposed the
midterm of four years or the low term of three years. In other words,
16
defendant was not looking at a release date decades down the road, calling
for a dangerousness assessment as of that time.
We therefore conclude defendant has not established an abuse of
discretion in denying defendant’s request to dismiss or reduce the sentence
imposed for the firearm enhancement.
Given our determination, we need not address defendant’s claim that
“in light of [the trial court’s] erroneous conclusion regarding ‘danger to public
safety,’ ” the trial court “failed to give adequate weight to [his] mitigation to
reduce his originally imposed aggravated term.” (Boldface & capitalization
omitted.) (People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038 [courts “must
assign significant value” to section 1385 mitigating circumstances only in
cases where the trial court “does not find that dismissal would endanger
public safety”].)6
Dual Use of Facts
Defendant next contends the trial court erroneously relied on the same
fact—that he was armed with or used a firearm at the time of the commission
of the crime—for imposing upper terms for both the attempted murder
conviction and the firearm enhancement.
Again, defendant made no objection to any asserted “dual use” of facts
at the time of sentencing and thus has forfeited the issue. (People v. Scott,
supra, 9 Cal.4th at p. 356 [“[C]omplaints about the manner in which the trial
court exercises its sentencing discretion and articulates its supporting
6 Defendant also cites in passing to section 1170, subdivision (b)(6),
which creates a low term presumption if certain mitigating circumstances are
found to have been contributing factors to the offense. But he makes no
argument and cites to no authority that that section is applicable, and has
therefore waived any such argument on appeal. Nor did he ever argue in the
trial court that he was entitled to the low term pursuant to that statute and
therefore has forfeited the issue as well.
17
reasons cannot be raised for the first time on appeal.”]; People v. Erdelen
(1996) 46 Cal.App.4th 86, 90–91 [defendant’s failure to object forfeited dual
use argument].)
But even if defendant had preserved his dual use argument for appeal,
it is meritless. The trial court stated on the record it imposed the upper term
for count 1 because defendant’s prior convictions as an adult are numerous
and of increasing seriousness, and imposed the upper term on the firearm
enhancement because defendant was on parole at the time the offense was
committed.
Imposing Upper Term Sentence on Count 1
Defendant lastly contends the trial court improperly imposed an upper
term sentence for the attempted murder conviction based on aggravating
factors not found true by a court or jury or stipulated to by him, in
contravention of section 1170, subdivision (b).
To begin with, this is another issue defendant failed to raise in the trial
court and has thus forfeited on appeal. (See People v. Brannon-Thompson
(2024) 104 Cal.App.5th 455, 464–465 (Brannon-Thompson) [the defendant
forfeited claim that resentencing court failed to consider § 1170, subd. (b) in
again imposing upper term].) But even had defendant not done so, we would
conclude his argument lacks merit.
Section 1172.75, subdivision (d)(4) uniquely provides: “Unless the court
originally imposed the upper term, the court may not impose a sentence
exceeding the middle term unless there are circumstances in aggravation
that justify the imposition of a term of imprisonment exceeding the middle
term, and those facts have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Italics added.)
18
As the parties acknowledge, the Courts of Appeal differ on the
significance of this language. (Compare People v. Lua (2026) 121 Cal.App.5th
472, 477–479 [holding § 1172.75, subd. (d)(4) creates an exception to the
heightened factfinding requirement of § 1170]; People v. Dozier (2025)
116 Cal.App.5th 700, 711–716, review granted Feb. 11, 2016, S294597
[same]; Mathis, supra, 111 Cal.App.5th 359, 369–374 [narrower holding that
heightened factfinding is not required when trial court elects to reimpose an
upper term sentence that complied with Sixth Amendment when originally
imposed]; Brannon-Thompson, supra 104 Cal.App.5th at pp. 466–467
[holding plain language of § 1172.75, subd. (d)(4) confirms “Legislature
intended the new burden of proof amendments to section 1170, subdivision
(b) apply only if the trial court is imposing the upper term for the first time at
a section 1172.75 resentencing,” and not in reimposing the upper term]; with
People v. Gonzalez (2024) 107 Cal.App.5th 312, 327–330 (Gonzalez)
[acknowledging “the plain language of section 1172.75, subdivision (d)(4), on
its face, could be interpreted as not requiring proof of aggravating factors
before reimposing an upper term,” but holding “another reasonable
interpretation of . . . subdivision (d)(4) would simply restrict the scope of
defendants eligible to receive the upper term at resentencing to those who
previously received the upper term, instead of creating a condition or
exception independently justifying the imposition of the upper term”].)
The issue is currently pending before our Supreme Court in People v.
Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025,
S289903, in which the Court of Appeal followed the reasoning of Brannon-
Thompson. (People v. Eaton (Cal.Ct.App. 2025) 2025 WL 814818, at p. *1.)
Defendant urges us to follow Gonzalez, while the Attorney General
urges us to follow the growing Brannon-Thompson line of cases. We agree
19
with the latter cases that the section 1172.75, subdivision (d)(4) exception
plainly allows resentencing courts to reimpose an original upper term
sentence without a stipulation by defendant or a jury finding of the
underlying facts of the aggravating circumstances. We find Mathis’s analysis
particularly apropos, and rather than reinvent the wheel, quote the case at
length:
“Our Supreme Court recently reviewed the history of the relevant
legislation. (See People v. Lynch (2024) 16 Cal.5th 730 . . . (Lynch).) Until
2007, section 1170, former subdivision (b), provided that, when a penal
statute specifies three possible prison terms, ‘the court shall order imposition
of the middle term, unless there are circumstances in aggravation or
mitigation of the crime.’ (See § 1170, former subd. (b); Stats. 1977, ch. 165,
§ 15, p. 647; Stats. 1998, ch. 926, § 1.5, p. 6206; see also Lynch, at p. 746.)
“In 2007, however, the United States Supreme Court held that
California’s upper term sentencing scheme violated the Sixth Amendment
right to a jury trial because it allowed a defendant’s prison sentence to be
increased beyond the statutory maximum based on facts that had not been
found true beyond a reasonable doubt by a jury or admitted by the defendant.
(See Cunningham v. California (2007) 549 U.S. 270, 274–275 . . .
(Cunningham); see also Lynch, supra, 16 Cal.5th at pp. 746–747.) The
statutory maximum, for Sixth Amendment purposes, is the maximum
sentence the court may impose without finding any additional facts beyond
those necessary to support the verdict. (Lynch, at p. 747.) Cunningham
explained that, except for prior conviction allegations, the Sixth Amendment
requires ‘any fact that exposes a defendant to a greater potential sentence’ to
be found by a jury beyond a reasonable doubt. (Cunningham, at p. 281.)
Cunningham noted that California could comply with the Sixth Amendment
20
either by requiring jury findings for any facts necessary to impose an
aggravated sentence, or by authorizing sentencing courts ‘ “to exercise broad
discretion . . . within a statutory range.” ’ (Cunningham, at p. 294; see Lynch,
at p. 747.)
“That same year, our Legislature chose Cunningham’s second option.
(Lynch, supra, 16 Cal.5th at p. 748.) The Legislature amended section 1170,
subdivision (b), to grant trial courts ‘broad discretion’ to choose between the
lower, middle, and upper terms. (See § 1170, former subd. (b), enacted by
Sen. Bill No. 40 (2007–2008 Reg. Sess.); Stats. 2007, ch. 3, § 2, p. 5, eff.
Mar. 30, 2007; Lynch, at pp. 747–748.) That sentencing scheme, in effect
when Mathis was originally sentenced, was one that ‘ “everyone agrees” ’
raised no Sixth Amendment concerns. (Lynch, at p. 747.)
“Subsequently, our Legislature revisited the question and amended
section 1170, subdivision (b), to adopt the first option Cunningham outlined.
(Lynch, supra, 16 Cal.5th at p. 748.) Effective January 1, 2022, section 1170,
subdivision (b), now states that, when a ‘statute specifies three possible
terms, the court shall, in its sound discretion, order imposition of a sentence
not to exceed the middle term’ unless ‘there are circumstances in aggravation
of the crime that justify the imposition of a term of imprisonment exceeding
the middle term and the facts underlying those circumstances 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.’ (§ 1170,
subd. (b)(1)–(2); see Sen. Bill No. 567 (2021–2022 Reg. Sess.); Stats. 2021,
ch. 731, § 1.3, eff. Jan. 1, 2022.)
“In the same session, our Legislature also established the resentencing
procedures for defendants like Mathis who were serving terms that included
a prior prison term enhancement. (See § 1172.75, subd. (a), as enacted by
21
Sen. Bill No. 483 (2021–2022 Reg. Sess.); Stats. 2021, ch. 728, §§ 1, 3, eff.
Jan. 1, 2022; renumbered from § 1171.1 by Assem. Bill No. 200 (2021–2022
Reg. Sess.); Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)
“[¶] . . . [¶] Section 1172.75, subdivision (d)(4), provides that, before any
aggravating facts may be used to justify the imposition of an upper term
sentence, the defendant must have admitted them or they must have been
found true beyond a reasonable doubt by a judge or jury, ‘[u]nless the court
originally imposed the upper term.’ (Italics added.) Based on this
‘unambiguous’ language, People v. Brannon-Thompson[, supra,]
104 Cal.App.5th 455, 466–467 . . . held that the heightened factfinding
requirement does not apply where the defendant originally received an upper
term sentence.
“But Mathis argues that the italicized language above creates an
ambiguity in the statutory scheme, rather than an exception to the
factfinding requirement. Specifically, section 1172.75, subdivision (d)(2),
mandates that, during the resentencing proceeding, ‘[t]he court shall apply
the sentencing rules of the Judicial Council and apply any other changes in
law that reduce sentences or provide for judicial discretion.’ And the
heightened factfinding requirement of section 1170, subdivision (b)(2), Mathis
says, is one of the ‘changes in law’ that must be applied. According to Mathis,
Brannon-Thompson’s construction of section 1172.75, subdivision (d)(4),
conflicts with the duty to apply changes in law in subdivision (d)(2) of the
same statute, making the statute ambiguous.
“Further, citing Lynch, Mathis contends that section 1172.75,
subdivision (d)(4), would violate the Sixth Amendment unless it were
interpreted to make the heightened factfinding requirement applicable to
cases in which the defendant was originally sentenced to the upper term.
22
Mathis draws support from People v. Gonzalez[, supra,] 107 Cal.App.5th 312,
327–330 . . . , which rejected Brannon-Thompson’s construction of
section 1172.75, subdivision (d)(4). (See Gonzalez, at p. 330.)
“Gonzalez held that interpreting section 1172.75, subdivision (d)(4), to
except defendants originally sentenced to upper terms from the heightened
factfinding requirement would potentially violate the Sixth Amendment by
allowing for the imposition of a sentence based on facts not found by a jury.
(Gonzalez, supra, 107 Cal.App.5th at pp. 329–330.) In so holding, the court
relied in part on Lynch’s point that, ‘[u]nder the current statute
[section 1170, subdivision (b),] the middle term is the maximum term that
can be imposed unless additional factual determinations are made. It is the
requirement of additional factfinding that brings the Sixth Amendment into
play.’ (Lynch, supra, 16 Cal.5th at p. 759; see Gonzalez, at p. 330.) In light of
these constitutional concerns, Gonzalez construed section 1172.75,
subdivision (d)(4), to ‘restrict the scope of defendants eligible to receive the
upper term at resentencing to those who previously received the upper term,
instead of creating a condition or exception independently justifying the
imposition of the upper term.’ (Gonzalez, at p. 329.) According to Gonzalez,
‘a defendant would be eligible for the upper term but could not receive it’
unless the heightened factfinding requirement is met. (Ibid.) Gonzalez
distinguished Brannon-Thompson because it did not grapple with Sixth
Amendment concerns. (See Gonzalez, at p. 330; Brannon-Thompson, supra,
104 Cal.App.5th at p. 467 [declining to address the defendant’s constitutional
argument due to forfeiture].)
“We disagree that the Sixth Amendment is implicated here. When
Mathis was sentenced, in 2017, his sentence was imposed pursuant to the
version of section 1170, subdivision (b), that granted the trial court broad
23
discretion to select any of the three applicable prison terms. As Lynch
explained, under that sentencing scheme, there was no requirement for the
judge to find a particular fact to justify imposition of the upper term. (See
Lynch, supra, 16 Cal.5th at p. 747.) As a result, the court’s selection of an
upper term at Mathis’s 2017 sentencing did not run afoul of the Sixth
Amendment. (See Lynch, at pp. 747–748; Cunningham, supra, 549 U.S. at
p. 294.)
“The same statutory scheme under which Mathis was sentenced had
long been in effect at the time that the Legislature established the
resentencing procedures applicable here. As a result, it was not necessary for
the Legislature to impose the heightened factfinding requirements for
defendants like Mathis who originally received upper term sentences under
the prior version of section 1170, subdivision (b). That sentencing scheme
fully complied with the Sixth Amendment. As discussed, the prior scheme
authorized the imposition of upper term sentences without any additional
fact-finding. But for defendants who did not receive an upper term in their
original sentencing, to ensure that any newly imposed upper term sentence is
consistent with the Sixth Amendment, the Legislature mandated that any
such aggravating fact be found pursuant to the heightened factfinding
requirements specified in Cunningham. (See § 1172.75, subd. (d)(4).)
“We therefore reject Mathis’s contention that the exception in
section 1172.75, subdivision (d)(4), for cases in which the trial ‘court
originally imposed the upper term’ must be construed, as a matter of
constitutional avoidance, to nonetheless require aggravating factors to be
found by the factfinder or admitted by the defendant. Where, as here, the
trial court elects to retain an upper term sentence that complied with the
Sixth Amendment when originally imposed, the court need not engage in any
24
additional factfinding under section 1172.75, subdivision (d)(4). (See
Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.)
“Further, contrary to Mathis’s argument, section 1172.75 is not
ambiguous because more specific legislative enactments control over general
ones. (See City of Los Angeles v. PricewaterhouseCoopers, LLP (2024)
17 Cal.5th 46, 68–69. . . .) And here, section 1172.75, subdivision (d)(2),
addresses the general topic of changes in law, whereas subdivision (d)(4) of
that statute more specifically deals with the new factfinding requirement,
making clear that it does not apply where ‘the court originally imposed the
upper term.’ (See Brannon-Thompson, supra, 104 Cal.App.5th at p. 467
[‘Section 1172.75, subdivision (d)(4) is . . . an exception to the general rule
that the trial court must apply ameliorative changes in the law at a
section 1172.75 resentencing.’].)
“To be sure, absent language to the contrary in section 1172.75,
section 1170, subdivision (b)’s amended sentencing scheme would apply to
Mathis’s resentencing because we presume that the Legislature intends
ameliorative changes in sentencing law to apply in all cases that are nonfinal,
including cases which became nonfinal due to resentencing. (See People v.
Padilla (2022) 13 Cal.5th 152, 162–163. . . .) But the Legislature is also free
to ‘write statutes that provide for a different or more limited form of
retroactivity, or for no retroactivity at all,’ and it may ‘disclaim the
application of a new ameliorative law to proceedings that occur after a
defendant’s conviction or sentence has been vacated.’ (Id., at p. 162; see also
[People v.] Terwilligar [(2025)] 109 Cal.App.5th [585,] 602.) Section 1172.75,
subdivision (d)(4), does exactly that. It expresses the Legislature’s intent
that the new, heightened factfinding requirements for aggravating factors do
not apply where the defendant was originally, lawfully sentenced to an upper
25
term. (See Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.)
During Mathis’s resentencing proceeding, the trial court permissibly elected
to retain the upper term sentence previously imposed under a sentencing
scheme that was fully consistent with his Sixth Amendment right to a jury
trial. (Cf. Terwilligar, at p. 602 [explaining that ‘section 1172.75 allows for
the possibility that a sentence of the original length will be reimposed’].)”
(Mathis, supra, 111 Cal.App.5th at pp. 370–374, italics & fns. omitted.)
Like the defendant in Mathis, defendant here was originally sentenced
in 2014 under the determinate sentencing law, which was in effect between
2007 and 2021. (See generally Lynch, supra, 16 Cal.5th at pp. 746–748
[overview of the history of the state’s determinate sentencing law].) Thus, as
the Court of Appeal held in Mathis, the trial court here could permissibly
reimpose the upper term sentence that had been previously imposed under a
sentencing scheme that was fully consistent with the Sixth Amendment right
to a jury trial.
Correction of Abstract of Judgment
Lastly, the parties agree, as do we, that the abstract of judgment must
be corrected to conform to the trial court’s oral pronouncement striking the
section 667.5, subdivision (b) prior, rather than stating, as it currently does,
that the enhancement was stayed. (See People v. Leon (2020) 8 Cal.5th 831,
855 [“Any discrepancy between the judgment as orally pronounced and as
recorded in the clerk’s minutes or abstract of judgment is presumed to be the
result of clerical error.”]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [an
appellate court may order “correction of abstracts of judgment that [do] not
accurately reflect the oral judgments of sentencing courts”].)
26
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an
amended abstract of judgment consistent with the court’s oral
pronouncement. The clerk of the superior court is ordered to forward a copy
of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
27
_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Langhorne Wilson, J.
A172793, People v. Gutierrez
28