Filed 7/13/26 P. v. Herrera CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052663
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 22CR006089)
v.
ANGEL ODON HERRERA,
Defendant and Appellant.
A jury convicted Angel Odon Herrera of the first degree murder of
Javier Moises Mora Jr. (Mora) (Pen. Code,1 § 187, subd. (a); count 1) and first
degree burglary (§ 459; count 2), and found true allegations that Herrera
personally discharged a firearm causing great bodily injury in the
commission of the murder (§ 12022.53, subd. (d)) and was armed with a
firearm in the commission of the burglary (§ 12022, subd. (a)(1)).
The trial court sentenced Herrera to an indeterminate term of 25 years
to life in prison on count 1 and a consecutive term of 25 years to life on the
firearm enhancement attached to count 1. Herrera had requested that the
court dismiss the firearm enhancement, but the court declined to do so.
1 All further unspecified statutory references are to the Penal Code.
On appeal, Herrera argues that the trial court erred under section
1385, subdivision (c)(2)(C) (section 1385(c)(2)(C)) in declining to dismiss the
firearm enhancement. For the reasons stated below, we disagree and affirm
the judgment.
I. FACTS AND PROCEDURAL BACKGROUND2
A. Facts
At the time of the offense, Herrera was married to K.P.3 Mora was
Herrera’s and K.P.’s mutual friend. Herrera’s and K.P.’s marriage became
strained due to, among other reasons, Herrera’s extramarital affair and the
time he spent out-of-state for work. K.P. told Herrera that she did not want
their marriage or relationship to continue. Herrera suspected K.P. of having
a romantic relationship with Mora and blamed Mora for exacerbating
Herrera’s and K.P.’s strained relationship.
On the evening of July 11, 2022, Herrera accessed text messages on
K.P.’s phone and discovered K.P. and Mora had sent each other sexually
explicit messages and images. Herrera drove to Mora’s residence (a detached
garage on Mora’s parents’ property), climbed over the security fence, and
confronted Mora over Mora’s relationship with K.P. Herrera had a gun with
him.
After K.P. became aware that Herrera had seen her text messages, she
went to Mora’s residence, woke Mora’s family, and alerted them that Herrera
might be there. Mora’s mother and one of his sisters discovered Herrera in
Mora’s room, sensed something was “ ‘not right,’ ” and called the police. Soon
2 We set forth the relevant facts from the trial evidence in the light
most favorable to the jury’s verdict. (People v. Luo (2017) 16 Cal.App.5th 663,
668, fn. 2; People v. Campbell (2020) 51 Cal.App.5th 463, 469.)
3 We refer to non-law enforcement witnesses by their initials to protect
their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(10).)
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thereafter, they heard gunshots from Mora’s room. Herrera shot Mora seven
times. Mora died at the scene.
B. Procedural Background
In January 2023, the Monterey County District Attorney charged
Herrera by information with murder (§ 187, subd. (a); count 1) and first
degree burglary (§ 459; count 2), with firearm enhancements attached to each
count (§§ 12022.53, subd. (d), 12022, subd. (a)(1)). Herrera pleaded not guilty
to both counts and denied the enhancements.
In September 2024, after an eight-day trial, the jury returned guilty
verdicts on count 1, first degree murder (§§ 187, subd. (a), 189, subd. (a)) and
count 2, first degree burglary (§ 459) and found true both firearm
enhancements (§§ 12022.53, subd. (d), 12022, subd. (a)(1)).
In October 2024, the trial court conducted the sentencing hearing.
Herrera’s counsel asked the court to dismiss the firearm enhancement
attached to count 1 pursuant to section 1385(c)(2)(C), which identifies as a
mitigating factor when application of an enhancement could result in a
sentence of over 20 years.
The trial court “recognize[d] its discretion to dismiss the enhancements
found true by the jury” and that proof of the presence of one or more of the
statutory mitigating circumstances would “weigh[] greatly in favor of
dismissing the enhancements unless the [c]ourt finds that the dismissal of
the enhancement would endanger public safety.” The court defined
“ ‘[e]ndanger public safety’ ” as the presence of “a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.”
The trial court stated that “the only [mitigating] factor that applies is
the application of the enhancement would result in a sentence of over 20
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years.” The court considered in aggravation Herrera’s “cold, calculated, and
deliberate first-degree murder” of Mora, “violat[ion]” of K.P.’s trust “by going
through her personal messages,” the timing of Herrera’s confrontation of
Mora (Herrera “climbed a fence to break into the victim’s bedroom at a time
when [Herrera] knew the victim was going to sleep”), the period of time
Herrera spent with Mora (“at least 20 minutes”) “while expressing his intent
to kill him” (Mora), Herrera bringing with him the means to kill Mora, and
Herrera’s motive for killing Mora (“a desire for revenge, born out of his
jealous[]y due to [Mora’s] relationship with [Herrera]’s estranged wife”). The
court also considered Herrera’s involvement in “two assaults on inmates
while incarcerated,”4 which indicated his “continued . . . willingness to engage
in violent conduct.” On those grounds, the court found “substantial credible
evidence” that dismissal of the firearm enhancement would endanger public
safety and declined to do so.
The trial court sentenced Herrera to 25 years to life in prison on count
1 and a consecutive term of 25 years to life in prison on the associated
firearm enhancement for an aggregate sentence of 50 years to life. The court
also imposed the middle term of four years in prison on count 2 and a
consecutive, one-year term on the firearm enhancement attached to count 2,
both stayed both pursuant to section 654.
II. DISCUSSION
Herrera contends that the mitigating factor set forth in section
1385(c)(2)(C) applies to his sentence “regardless of whether the rest of [his]
sentence is under or over 20 years.” He argues that, because that factor
4 The probation officer’s report stated Herrera assaulted other inmates
in November 2023 and August 2024 while he was incarcerated at the
Monterey County jail. Herrera did not dispute the probation officer’s report
of the incidents.
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applies, the trial court should at sentencing have dismissed the firearm
enhancement attached to count 1. Herrera asserts that the court committed
legal error by basing its finding that dismissing the enhancement would
endanger public safety on his “current dangerousness.”5 Herrera asserts that
the record lacks substantial evidence supporting a conclusion that he would
present a danger to public safety at the time he would be eligible for parole.
The Attorney General challenges Herrera’s interpretation of section
1385(c)(2)(C), arguing that the plain language of the statute states that
mitigating circumstance is present only if there is “a causal relationship
between the enhancement to be dismissed and the fact that the total sentence
exceeds 20 years.” The Attorney General reasons that, because Herrera’s
sentence on count 1 already exceeded 20 years, the consecutive sentence on
the firearm enhancement on count 1 did not cause his sentence to exceed 20
years. In addition, the Attorney General contends that Herrera’s “current
dangerousness” argument misstates the decision in People v. Gonzalez (2024)
103 Cal.App.5th 215 (Gonzalez).
A. Legal Principles and Standard of Review
Section 1385, subdivision (c)(1) provides, “Notwithstanding any other
law, 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.” “In exercising its discretion under [subdivision (c)], the
court shall consider and afford great weight to evidence offered by the
5 In the alternative, Herrera argues that his counsel provided
ineffective assistance by failing to “address specifically the requirement that
the court base a finding of dangerousness on [Herrera]’s dangerousness at the
time of his release or the applicability of the ‘sentence over 20 years’
mitigating factor to him.” Because we consider the merits of Herrera’s
arguments, we do not reach Herrera’s ineffective assistance of counsel claim.
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defendant to prove that any of the mitigating circumstances in [the
subparagraphs to subdivision (c)(2)] are present. 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.” (Id., subd. (c)(2).)
Herrera contends that the following mitigating circumstances applies:
“The application of an enhancement could result in a sentence of over 20
years.” (§ 1385(c)(2)(C).)
We review for abuse of discretion the trial court’s decision not to strike
a sentence enhancement under section 1385. (People v. Mendoza (2023) 88
Cal.App.5th 287, 298 (Mendoza); Gonzalez, supra, 103 Cal.App.5th at p. 225.)
“The abuse of discretion standard is highly deferential. When, ‘ “as
here, a discretionary power is statutorily vested in the trial court, its exercise
of that discretion ‘must not be disturbed on appeal except on a showing that
the 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.) “It is not enough to show that
reasonable people might disagree about whether to strike one or more of [the
defendant’s] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305,
310 (Myers).) Because we examine a trial court’s legal ruling, not its
reasoning, we affirm the ruling if it was correct on any theory or ground
applicable to the case. (People v. Camacho (2022) 14 Cal.5th 77, 124
(Camacho); People v. Zapien (1993) 4 Cal.4th 929, 976.)
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B. Analysis
Herrera asserts that the section 1385(c)(2)(C) mitigating factor applies
because “[w]here the total sentence following application of an enhancement
would be over 20 years, the enhancement ‘could result in a sentence of over
20 years,’ regardless of whether the rest of the defendant’s sentence is under
or over 20 years.” He maintains that the Court of Appeal’s contrary
interpretation of the provision in People v. Torres (2025) 113 Cal.App.5th 88
(Torres) is incorrect.
We are not persuaded. In Torres, the trial court sentenced the
defendant to 25 years to life for first degree murder and 25 years to life for a
firearm enhancement attached to the first degree murder count, to be served
consecutively. (Torres, supra, 113 Cal.App.5th at p. 91.) Torres made an
argument similar to that advanced by Herrera here: “ ‘The use of the word
“result” indicates that courts look to the aggregate term once the sentence on
the substantive offense and the sentence on the enhancement are accounted
for.’ In other words, [Torres] interpret[ed] [section 1385(c)(2)(C)] to apply
whenever an enhancement is a component of a sentence that exceeds 20
years.” (Id. at p. 92.)
The Court of Appeal disagreed, concluding that Torres’s “interpretation
is at odds with the clear text of the statute.” (Torres, supra, 113 Cal.App.5th
at p. 93.) The court reasoned that “[a] sentence exceeding 20 years could
result from an enhancement where a sentence of that length arises as a
consequence of the enhancement.” (Ibid.) In other words, the application of
the enhancement must “itself lead[] to a sentence exceeding 20 years.” (Ibid.,
italics added; ibid. [“The word result denotes a causal relationship between
the enhancement and a sentence exceeding 20 years.”].) We agree with the
Torres court’s interpretation of the statutory language.
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Here, as in Torres, Herrera’s sentence on count 1 already exceeded 20
years without the application of the sentence on the firearm enhancement
attached to count 1. The application of the firearm enhancement did not
result in a sentence of over 20 years. (Torres, supra, 113 Cal.App.5th at
p. 93.) Thus, the mitigating circumstance set forth in section 1385(c)(2)(C)
does not apply to Herrera as a matter of law. (Torres, at p. 93.)
Herrera does not identify any other mitigating circumstances present
in his case. Because we have concluded section 1385, subdivision (c)(2) does
not apply, we affirm the court’s judgment on this basis (Camacho, supra, 14
Cal.5th at p. 124) without considering the trial court’s public safety finding.
Even if we were to disregard the plain language of section 1385(c)(2)(C)
and assume arguendo the provision applies, we would decide the trial court
did not abuse its discretion in declining to dismiss the enhancement.
The trial court’s comments at the sentencing hearing do not
demonstrate it interpreted section 1385, subdivision (c) in the manner
rejected by the appellate court in Gonzalez. The court considered Herrera’s
current offense, his character, and his incarceration history. Unlike in
Gonzalez, there is no affirmative indication in the record that the court either
expressly limited its analysis to Herrera’s current dangerousness or failed to
consider Herrera’s dangerousness at the time of possible release. (Cf.
Gonzalez, supra, 103 Cal.App.5th at p. 224.) Without such an affirmative
showing, Herrera’s claim of error fails. (See People v. Brugman (2021) 62
Cal.App.5th 608, 637 (Brugman); Myers, supra, 69 Cal.App.4th at p. 310.)
Although the trial court did not explicitly say that it had considered
“the safety valve that exists due to the review by the Board of Parole
Hearings” (Gonzalez, supra, 103 Cal.App.5th at p. 229), because the record is
silent as to whether the court considered this factor, we presume the court
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correctly applied the law. (See Brugman, supra, 62 Cal.App.5th at p. 637.)
Moreover, while consideration of the Board of Parole Hearings’ review
process is relevant, it is not dispositive. (See Gonzalez, at p. 228, fn. 10 [“We
do not suggest that a trial court is permitted to delegate its judgment
regarding a defendant’s future threat to public safety to the Board of Parole
Hearings.”].)
We discern no abuse of discretion in the trial court’s decision declining
to dismiss the firearm enhancement attached to count 1.
III. DISPOSITION
The judgment is affirmed.
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______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P. J.
____________________________________
Bromberg, J.
H052663
People v. Herrera