Filed 8/28/26 P. v. Herrera CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B347175
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA120705)
v.
ROBERTO HERRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Andrew C. Kim, Judge. Affirmed in part,
vacated in part, and remanded.
Linda L. Gordon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Deepti Vaadyala, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
The trial court resentenced Roberto Herrera under Penal
Code section 1172.75.1 On appeal, Herrera contends the trial
court abused its discretion by failing to consider the length of his
sentence and future dangerousness in determining that the
dismissal of a firearm enhancement would endanger public
safety. We find no abuse of discretion and affirm as to count 1.
We vacate the sentence as to count 2 and remand for further
resentencing to correct an error as to that count only.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Offenses2
On April 28, 2011, Daniel Villanueva drove to a shopping
center with his girlfriend and their son. He turned on his blinker
in the parking lot while he waited for a van to pull out of a
parking space. After the van pulled out, a pick-up truck drove
into the space for which Villanueva was waiting. Herrera got out
of the truck, and Villanueva got out of his car. Villanueva
confronted Herrera about taking the parking space. Herrera was
“ ‘upset [and] [a]ggressive,’ and responded, ‘ “What are you going
to do about it?” ’ ” Villanueva returned home to drop off his
girlfriend and son, then returned to the shopping center.
1 All undesignated statutory references are to the Penal
Code.
2 We briefly summarize the facts of the underlying offenses
from the opinion issued in Herrera’s consolidated direct appeal
and habeas petition. (People v. Herrera (Oct. 27, 2016, B260095
[nonpub. opn.] (Herrera).)
2
An eyewitness saw Villanueva and Herrera both return to
the shopping center separately. The men got out of their vehicles
and walked behind a dumpster. The witness heard them fighting
and then heard someone say, “ ‘ “Estubo” ’ which, according to the
court’s Spanish-language interpreter, could mean ‘To meet,’
‘That’s the end. It’s final. That’s it.’ ” Villanueva and Herrera
walked out of the dumpster enclosure, spoke to each other, and
shook hands.
Villanueva got in his car. Herrera went to his truck,
grabbed a semi-automatic handgun, and walked over to
Villanueva’s car. As Villanueva’s car was reversing, Herrera
fired five shots through the driver’s side window and the
windshield, hitting Villanueva. Herrera got back in his truck and
drove away. Villanueva died from his injuries.
At trial, Herrera testified that he did not shoot Villanueva.
Procedural History
In 2012, the People charged Herrera with the murder of
Villanueva (§ 187, subd. (a); count 1), and with shooting at an
occupied motor vehicle (§ 246; count 2). As to both counts, the
information alleged that Herrera personally and intentionally
discharged a firearm causing great bodily injury and death.
(§ 12022.53, subds. (b)–(d).) The information further alleged that
Herrera had served two prior prison terms within the meaning of
section 667.5, subdivision (b).
In 2013, a jury found Herrera guilty on both counts and
found the firearm allegations under section 12022.53,
subdivisions (b), (c), and (d), true. Herrera admitted suffering
two prior convictions pursuant to section 667.5, subdivision (b),
and the trial court found the prior prison term allegations to be
true.
3
In 2014, the trial court sentenced Herrera to a term of 51
years to life on count 1, as follows: (1) 25 years to life, plus 25
years to life for the firearm enhancement under section 12022.53,
subdivision (d), plus one year for a section 667.5, subdivision (b)
prison prior; (2) a consecutive term of 32 years to life on count 2,
consisting of the upper term of seven years for the section 246
conviction, plus 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d). The trial court stayed
the sentence on count 2 under section 654.
Herrera appealed and also filed a petition for writ of habeas
corpus. In an unpublished opinion, a panel of this court vacated
the jury’s findings as to the section 12022.53, subdivisions (b) and
(c) enhancements alleged as to count 2 and otherwise affirmed
the judgment. (Herrera, supra, B260095.) The court denied the
habeas petition. (Ibid.)
In 2022, after Senate Bill No. 483 (2021–2022 Reg. Sess.)
was passed, the California Department of Corrections and
Rehabilitation identified Herrera as eligible for resentencing
pursuant to section 1172.75.
In February 2025, Herrera filed a petition for recall and
resentencing under section 1172.75, seeking a full resentencing.
Herrera asked that, in addition to striking the now-invalid
section 667.5, subdivision (b) prison prior, the court also strike or
reduce the section 12022.53, subdivision (d), enhancement
imposed on count 1. Herrera primarily relied on his post-
conviction record of rehabilitation, asserting that he had no
“discernable disciplinary matters in his C file.” He also argued
that his age and time served reduced his risk of future violence.
He pointed out that he was 26 years old when the offense
occurred and would be eligible for parole when he turned 50.
4
Herrera further argued two mitigating factors applied under
section 1385, subdivision (c): that application of the enhancement
would result in a discriminatory racial impact and that
application of the firearm enhancement would result in an
“excessively long sentence.”3 Herrera supported the petition with
certificates of completion from numerous rehabilitative and
educational programs, and letters of support.
In June 2025, the trial court held a resentencing hearing,
vacated Herrera’s sentence, and resentenced him. The court
indicated it had reviewed the resentencing petition, the attached
exhibits, Herrera’s C-file, the appellate court opinion from the
direct appeal, the abstract of judgment, and the People’s
statement of view. The People conceded that the section 667.5,
subdivision (b), prison prior enhancement should be stricken, but
asked the court to retain the firearm enhancement.
The trial court struck Herrera’s section 667.5,
subdivision (b), prison prior enhancement. The court resentenced
Herrera to a total prison term of 45 years to life, consisting of 25
years to life on count 1, plus 20 years under section 12022.53,
subdivision (c). As to count 2, the court sentenced appellant to
the midterm of 5 years, plus 20 years under section 12022.53,
subdivision (c), and stayed the sentence pursuant to section 654.
The court dismissed the section 12022.53, subdivision (d), firearm
enhancement.
3 Section 1385, subdivision (c)(2), lists the following relevant
mitigating circumstances: “(A) Application of the enhancement
would result in a discriminatory racial impact as described in
paragraph (4) of subdivision (a) of Section 745,” and “(C) The
application of an enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.”
5
In explaining its reasoning, the trial court first remarked
that Herrera had “done well in prison,” where he had “received
several laudatory chronos” and had been “essentially, discipline-
free.”4 It declined to strike the firearm enhancement, explaining
“this was a violent murder” and “dismissal of that enhancement
would endanger public safety,” stating it knew that the “meaning
of endangering public safety . . . would result in either physical
injury or other serious danger to others.” The court then
described the facts of the underlying offenses. It also indicated it
had “considered all of the circumstances listed under
[section] 1385[,] subdivision (c)(2)(A) through (I)” and concluded
that the imposition of the enhancement would not “result in a
discriminatory impact.” The court stated it was exercising its
discretion under People v. Tirado (2022) 12 Cal.5th 688 (Tirado),
governing the imposition of uncharged, lesser-included
enhancements, to impose a firearm enhancement under
section 12022.53, subdivision (c) as to both counts, and to dismiss
the subdivision (d) enhancements.
Herrera timely appealed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion by
Declining to Strike the Firearm Enhancement
A. Governing law and standard of review
Effective January 1, 2022, section 1172.75, subdivision (a),
invalidated most sentence enhancements imposed prior to
January 1, 2020, pursuant to subdivision (b) of section 667.5.
4 The record indicates that Herrera’s C-file was submitted to
the trial court, but it is not in the record. The People do not
dispute the trial court’s characterization of Herrera’s disciplinary
record while in prison.
6
With exceptions not relevant here, the statute requires that
sentences that include these invalid enhancements be recalled,
and the defendant resentenced.
Section 1172.75, subdivision (d), provides in relevant part:
“(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.”
Under section 1172.75, subdivision (d)(2), Herrera asked
the trial court to apply changes in the law regarding the
dismissal of sentence enhancements. Effective January 1, 2022,
Senate Bill No. 81 (2021–2022 Reg. Sess.) amended section 1385.
(Stats. 2021, ch. 721, § 1.) Section 1385, subdivision (c)(1), now
7
provides that “the court shall dismiss an enhancement if it is in
the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.”
Subdivision (c)(2) provides that in evaluating whether to dismiss
an enhancement, “the court shall consider and afford great
weight” to evidence of enumerated mitigating circumstances.
“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. ‘Endanger public safety’ means 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).)
In People v. Walker (2024) 16 Cal.5th 1024, our high court
clarified that when courts are considering section 1385,
subdivision (c)(2), “absent a finding that dismissal would
endanger public safety, a court retains the discretion to impose or
dismiss enhancements provided that it assigns significant value
to the enumerated mitigating circumstances when they are
present.” (Walker, at p. 1029.) The court “emphasize[d] . . . that,
in most cases, ‘if the trial court finds that dismissal of an
enhancement would endanger public safety, then it is hard to see
how dismissal would further the interests of justice,’
notwithstanding the applicability of any mitigating factors
identified in subdivision (c)(2).” (Id. at p. 1033.) If a trial court
finds dismissal of the enhancement would endanger public safety,
“consideration of the mitigating factors in section 1385[,
subdivision] (c)(2) is not required.” (People v. Mendoza (2023) 88
Cal.App.5th 287, 297 (Mendoza); see Walker, at p. 1033.)
8
Under section 12022.53, subdivision (h), a “court may, in
the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section.” In Tirado, our high court held
that a court that strikes an enhancement under section 12022.53,
subdivision (h), may impose a lesser, uncharged enhancement.
(Tirado, supra, 12 Cal.5th at pp. 692, 696.)
We review the trial court’s sentencing decision at a
section 1172.75 resentencing for an abuse of discretion, including
a court’s determination of dangerousness. (People v. Gonzalez
(2024) 103 Cal.App.5th 215, 225 (Gonzalez); Mendoza, supra, 88
Cal.App.5th at p. 298.) “[S]ection 1172.75, subdivision (d), vests
the superior court with broad discretion based on an inherently
factual inquiry.” (People v. Garcia (2024) 101 Cal.App.5th 848,
856–857.) “Under an abuse of discretion standard, ‘ “we ask
whether the trial court’s findings of fact are supported by
substantial evidence, whether its rulings of law are correct, and
whether its application of the law to the facts was neither
arbitrary nor capricious.” ’ [Citations.]” (Id. at p. 857.) A court
also abuses its discretion if the decision is made without the
sentencing court’s informed discretion or if the court is unaware
of the scope of its discretionary powers. (People v. Fredrickson
(2023) 90 Cal.App.5th 984, 988.) “ ‘ “[T]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary.” ’ ” (People v. Carmony
(2004) 33 Cal.4th 367, 376 (Carmony).)
B. Analysis
Herrera contends the trial court improperly denied his
request to dismiss the section 12022.53 firearm enhancement
because the court evaluated only his current dangerousness and
9
did not consider the length of his sentence or assess his future
dangerousness at the time when he would be released. We
disagree. The record does not establish that the court failed to
consider Herrera’s dangerousness at the time of his potential
release or confined its analysis to whether Herrera currently
posed a danger to public safety.5
Herrera relies on Gonzalez, supra, 103 Cal.App.5th 215. In
that case, the court considered the trial court’s analysis under
section 1385, subdivision (c)(2), which directs that proof of
enumerated mitigating circumstances “weighs greatly in favor of
dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.”
Here, the trial court did not find any mitigating circumstances
under section 1385, subdivision (c)(2), and Herrera does not
assert any error related to this finding.
Moreover, Gonzalez is distinguishable. In Gonzalez, the
defendant contended the trial court should have considered his
release date in determining whether he posed a danger to public
safety. (Gonzalez, supra, 103 Cal.App.5th at pp. 221, 223–224.)
The record affirmatively established that the trial court only
5 The People argue that Herrera forfeited this argument. We
disagree. In his petition for resentencing, he argued that his age,
time served, and diminished physical condition reduced his risk
of “future violence,” asserting he would be eligible for elder parole
when he turned 50 in March 2035. At the hearing, the trial court
asked defense counsel if there was anything she wanted to add
that was “not already contained in your moving papers with
respect to resentencing,” and defense counsel submitted on her
petition. Defense counsel did not need to raise the issue at the
hearing to preserve it because it was already in her petition,
which the trial court indicated it had read.
10
focused on the defendant’s current dangerousness. (Id. at p. 231.)
The appellate court found “the trial court erred because it
considered only whether Gonzalez currently posed a danger to the
public when assessing if a dismissal of the firearm enhancement
would ‘endanger public safety.’ (§ 1385, subd. (c)(2).) In light of
Gonzalez’s sentence of 50 years to life for the murder conviction,
the trial court also should have considered the date on which
Gonzalez could be released if the firearm enhancement was
dismissed and the fact that the release would be subject to a
review by the Board of Parole Hearings and the Governor.” (Id.
at pp. 230–231.)
In contrast, here, the record does not indicate that the trial
court only considered Herrera’s current or past dangerousness.
The trial court stated that Herrera committed a violent murder
and that dismissal of the enhancement “would endanger public
safety.” The court also cited the definition of public safety and
recited the specific facts of the crime. At no point did it confine
its analysis to any specific time period. (People v. Coleman (2024)
98 Cal.App.5th 709, 725 [“Defendant’s citation to a silent record
is insufficient to meet his burden to demonstrate an abuse of
discretion.”].) We therefore presume it considered the length of
Herrera’s sentence in making its determination, as nothing
indicates the court did not. “We assume the trial court was
aware of and followed applicable law.” (Id. at p. 724; see also
People v. Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s
sentencing decision implies requisite subsidiary findings].)6
6 Gonzalez was decided in 2024, well before the resentencing
hearing in this case in 2025. (Gonzalez, supra, 103 Cal.App.5th
215.) We must presume the trial court was aware of it.
11
The trial court was not required to indicate what time
period it was relying on in considering whether to dismiss the
enhancement. If a trial court declines to dismiss an
enhancement, it need not use any “particular language” in doing
so. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.)
Although “[s]ection 1385, subdivision (a), requires a trial court to
state its ‘reasons for [a] dismissal . . . orally on the record,’ ” there
is no such statutory requirement when a court declines to dismiss
an enhancement. (Ibid.) Thus, the trial court did not need to
make any express findings on the record for us to find a proper
exercise of discretion in denying a motion under section 1385.
(Carmony, supra, 33 Cal.4th at p. 378 [“[w]here the record is
silent” we affirm].)
There is also no indication that the trial court
misunderstood the scope of its discretion. The trial court
expressly considered the post-conviction factors set forth in
section 1172.75, subdivision (d)(3), which include the defendant’s
disciplinary record and “evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced
the defendant’s risk for future violence.” It also recognized that
under Tirado it could retain the firearm enhancement but impose
the lesser included offense of section 12022.53, subdivision (c),
when it dismissed the subdivision (d) enhancement. The court
further stated it considered the factors enumerated under
section 1385, subdivision (c)(2), and made a specific ruling as to
racial impact. Thus, the trial court clearly understood the
applicable law and the factors it was to consider.
Indeed, on appeal, Herrera does not argue that the trial
court misunderstood or misapplied any of these factors. Herrera
does not make any argument under Walker, for example, that the
12
trial court misunderstood its task in determining dangerousness;
he specifically asserts it is not relevant to his argument, which he
confines to his contention that the trial court failed to consider
his future dangerousness. As discussed, the record does not
support reversal on this basis.
Accordingly, Herrera has not established that the trial
court abused its discretion in declining to strike the firearm
enhancement as to count 1.7
However, we must vacate the sentence as to count 2, the
conviction for shooting at an occupied motor vehicle in violation of
section 246. Section 12022.53, subdivision (c), imposes additional
punishment for a person who commits a felony specified in
section 12022.53, subdivision (a). Section 246 is not an offense
identified in subdivision (a). While the trial court could dismiss
the section 12022.53, subdivision (d), firearm enhancement as to
count 2, it could not impose a lesser enhancement under
section 12022.53, subdivision (c). (Tirado, supra, 12 Cal.5th at
p. 699, fn. 12.) We vacate the sentence as to count 2 and remand
for resentencing as to that count only.8
7 Because we find no abuse of discretion, we do not address
Herrera’s arguments regarding remand and prejudice.
8 We invited the parties to file supplemental briefs regarding
potential error in sentencing as to count 2. The People conceded
trial court error in imposing the section 12022.53, subdivision (c)
enhancement as to count 2 and asked this court to vacate the
sentence as to count 2 and remand the matter.
13
DISPOSITION
The sentence as to count 2 is vacated and the matter is
remanded for resentencing as to that count only. In all other
respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, P. J.
We concur:
HANASONO, J.
ASHWORTH, J.*
* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
14