Filed 7/13/26 P. v. Kendrick CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B341255
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA073204)
v.
TONY KENDRICK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
Justin Behravesh, 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, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Tony Kendrick of various crimes arising
from his assault of his ex-girlfriend. The trial court sentenced
him to a prison term based upon the upper term of three possible
options. At a resentencing hearing under Penal Code1 section
1172.75, the trial court struck three 1-year priors but declined to
reduce the upper term sentences any further. Kendrick appeals,
contending that the trial court abused its discretion by not
deviating downward from the upper term sentence in light of his
rehabilitative efforts. We disagree and affirm the judgment.
BACKGROUND
I. Verdict and sentencing
The facts of Kendrick’s offenses that are the basis for his
challenged sentence are recounted in this court’s prior opinion
affirming in part and reversing in part the judgment on direct
appeal, People v. Kendrick (Feb. 17, 2021, B296061, B305593)
[nonpub. opn.]. What is relevant for the purposes of this appeal
is that on January 22, 2019, a jury convicted Kendrick of first
degree burglary with a person present (§ 459; count 1), assault by
means of force likely to produce great bodily injury (§ 245, subd.
(a)(4); count 2), and dissuading a witness (§ 136.1, subd. (b);
count 3). The trial court sentenced Kendrick on count 1 to the
upper term of six years doubled under the “Three Strikes” law to
12 years; on count 2, to the upper term of four years doubled to
eight years under the Three Strikes law; and, on count 3, to the
mid-term of two years doubled to four years under the Three
Strikes law. The trial court also imposed five years for a prior
conviction (§ 667, subd. (a)(1)) and three 1-year term
1
All further undesignated statutory references are to the
Penal Code.
2
enhancements under the then-applicable provisions of 667.5,
subdivision (b), which provided an enhancement on each count
based upon Kendrick’s prior convictions. The trial court ran the
sentence on count 2 concurrent to count 1. Kendrick’s total term
therefore was 24 years in prison.
II. Postjudgment proceedings
Kendrick appealed from the judgment. A different panel of
this division affirmed the judgment in part and reversed it in
part. A change in the law that took effect January 1, 2020,
pursuant to Senate Bill No. 136, invalidated the three 1-year
enhancements under section 667.5, subdivision (b), that Kendrick
received for his prior convictions. This panel’s prior decision
struck those three 1-year terms and remanded for resentencing.
On remand, the trial court struck the three 1-year terms but
otherwise imposed the same sentence on each of the three counts,
resulting in a 21-year sentence.
However, when the trial court resentenced Kendrick,
neither he nor his counsel was present. Kendrick therefore
appealed the judgment again. This division vacated the sentence
and remanded for a full resentencing hearing at which Kendrick
was entitled to appear and advocate for a more lenient sentence.
(People v. Kendrick (June 16, 2023, B317126) [nonpub. opn.].)
The opinion also directed the trial court to reconsider Kendrick’s
sentence in light of Senate Bill No. 567, which went into effect on
January 1, 2022, and amended section 1170 by making the
middle term the presumptive term where a statute specifies three
possible terms, and specifying the permissible bases and
procedure required for a court to impose an upper term sentence.
(Kendrick, supra, B317126.)
3
III. Resentencing hearing
On remand, the parties submitted briefing regarding
resentencing. Kendrick argued that his upper term sentences
violated the statutory requirements under section 1170,
subdivision (b), which permits imposition of an upper term
sentence only if the “facts underlying the circumstances [in
aggravation] have been stipulated to by the defendant or have
been found true beyond a reasonable doubt at trial,” or upon
consideration of the defendant’s prior convictions “based on a
certified record of conviction.” (§ 1170, subd. (b)(2)–(3).)
Kendrick argued that both were absent from the record and thus
could not support an adoption of an upper term sentence. He
further argued that the trial court should consider circumstances
since the imposition of the prior sentence—notably his lack of
writeups for misconduct, and his participation in “leadership,
positive attitudes, substance abuse and anger management,
parenting, and . . . workforce readiness” classes. In support,
Kendrick submitted certificates showing that, in 2020, he
completed a 15-week cycle of education courses to develop
positive decision making and leadership, which consisted of both
group and individual-study components. He also provided
documentation showing that in 2024, he participated in an eight-
week substance treatment and re-entry transition program while
in county jail.
In opposition, the People argued that the trial court should
continue to impose an upper term sentence because of the
“egregious” facts of the underlying offense as well as Kendrick’s
ongoing involvement with the criminal justice system since 2000.
The People cited his record, showing convictions for, among other
offenses, burglary, vandalism, and assault. The People also cited
4
Kendrick’s two minor rules violation reports during his current
prison term, one for obstructing his cell window view and a
second for improperly disposing of prescribed medications.
At the resentencing hearing, the trial court struck the three
1-year enhancements for Kendrick’s priors but otherwise declined
to adjust the sentence. The trial court acknowledged that
Kendrick “comported himself better than the average prisoner”
and had “improved [himself] in prison.” However, when
reviewing the extent of Kendrick’s rehabilitative efforts, the trial
court described them as not “a lot” given that he had been in
prison since 2019. The trial court also observed that Kendrick
was not “a young man” when he committed his crimes and that
the circumstances of the current offenses were “very egregious,”
involving intimate partner violence. The trial court also
considered Kendrick’s criminal history, which it found had been
properly introduced in the original trial, and recounted
Kendrick’s series of violations from 2000 through 2018.2 It
further stated its belief that Kendrick had already received a
“huge consideration” in sentencing because the People at the
original sentencing hearing agreed to strike the Three Strikes
allegations so that he would not be sentenced to 25 years to life.
Ultimately, the trial court found that the upper term
sentence was “commensurate with [Kendrick’s] conduct, . . .
history, and . . . pattern . . . [and] [¶] . . . [t]he facts in the case
support the conclusion in this court’s mind that a dismissal of
additional enhancements or adjustment of the sentence would, in
2
A certified record of conviction—a 969B packet—had been
admitted into evidence at an earlier trial on Kendrick’s prior
convictions. Appellant does not argue that this does not satisfy
the requirements of section 1170, subdivision (b)(3).
5
fact, endanger public safety because you haven’t been there long
enough.”
Kendrick’s resulting sentence was 21 years.
DISCUSSION
In 2021, our California Legislature passed Senate Bill
No. 483, which added section 1171.1, renumbered to 1172.75.
(Stats. 2021, ch. 728, § 3.) Section 1172.75 declared legally
invalid one-year sentencing enhancements for a prior prison
term, except when the prior prison term was for a sexually
violent offense. If a judgment includes a qualifying
enhancement, the trial court shall recall the sentence and
resentence the defendant. (§ 1172.75, subd. (c).) Resentencing
shall result in a lesser sentence than the one originally imposed
inclusive of the enhancements “unless the court finds by clear
and convincing evidence that imposing a lesser sentence would
endanger public safety.” (§ 1172.75, subd. (d)(1).)
At resentencing, 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 circumstances have
changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.” (§ 1172.75,
subd. (d)(3).) Further, the resentencing court shall “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.” (§ 1172.75, subd. (d)(2).)
As relevant here, Senate Bill No. 567, effective January 1,
2022, made such a change in the law. (Stats. 2021, ch. 731,
6
§ 1.3.) Senate Bill No. 567 amended section 1170, subdivision (b),
to make the middle term the presumptive term when a statute
specifies three possible terms. A court may impose the upper
term “only when there are circumstances in aggravation of the
crime that justify the imposition of a term . . . 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)(2).) However, a court “may
consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
We review a trial court’s sentencing decision under section
1172.75 for abuse of discretion and “ ‘ “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.” ’ ”
(People v. Garcia (2024) 101 Cal.App.5th 848, 857.)
Here, the trial court dismissed the three now-invalid 1-year
enhancements at the resentencing hearing under section 1172.75.
Kendrick does not dispute that this has resulted in a sentence of
21 years in prison, less than the originally imposed 24-year
sentence, as is mandated by section 1172.75, absent clear and
convincing evidence that the lesser sentence would endanger
public safety. There is therefore no dispute that Kendrick has
received the benefit of resentencing required under section
1172.75 as directed by this court’s prior order.
Kendrick additionally does not argue that the trial court
erred in its application of section 1170, subdivision (b) by
adopting an upper term sentence. Although Senate Bill No. 567
7
now makes the middle term the presumptive term, it still
authorizes the trial court to impose an upper term sentence based
on certain evidentiary considerations. (§ 1170, subd. (b)(1).) It
explicitly allows that the court “may consider the defendant’s
prior convictions in determining sentencing based on a certified
record of conviction without submitting the prior convictions to a
jury.” (§ 1170, subd. (b)(3).) In this case, Kendrick acknowledged
that the “trial court indicated that it would resentence [him] to
the high term on counts 1 and 2 based on him being unsuccessful
on probation or parole in the past, his prior prison commitments,
and that he has crimes of increasing seriousness and numerous
crimes.” He also does not argue that the trial court lacked the
appropriate record to make that determination. Indeed,
Kendrick concedes that the trial court’s “decision appears to be
legally correct.” (See People v. Garcia, supra, 101 Cal.App.5th at
p. 857 [trial court could base its risk determination on
seriousness of charged offense and on conviction record].)3
3
Kendrick filed a supplemental brief modifying his
argument to now assert that the trial court’s reliance on his
criminal history beyond the mere fact of his prior convictions,
including its conclusion that his crimes were of “increasing
seriousness” was in error. Kendrick argues that such findings
must be stipulated or found by the jury under both section 1170,
subdivision (b) and the Sixth Amendment. (See also People v.
Wiley (2025) 17 Cal.5th 1069, 1089–1090.) There is a split of
authority in the Courts of Appeal as to whether this requirement
applies to individuals such as Kendrick who previously received
an upper term sentence, as the plain text of section 1172.75,
subdivision (d)(4) appears to exempt them from this additional
factfinding upon resentencing. (Compare People v. Brannon-
Thompson (2024) 104 Cal.App.5th 455 [holding that § 1172.75
8
Kendrick’s sole argument on this appeal is that the trial
court abused its discretion by not reducing his sentence due to his
good conduct and record of rehabilitation while incarcerated
after the court decided to adopt the upper term. There is no
statute that mandates further consideration of postconviction
conduct—or other potentially mitigating factors—to reduce a
sentence after the court has elected to adopt a specific term level.
While section 1172.75, subdivision (d) does identify
“postconviction factors, including . . . the disciplinary record and
record of rehabilitation” as possible considerations in
resentencing after striking the now-invalid enhancement for
priors, this consideration is not mandatory, nor is it specifically
germane to the application of section 1170, subdivision (b) as
imposes a fact finding requirement only for individuals who are
resentenced to an upper term for the first time upon
resentencing]) with People v. Gonzalez (2024) 107 Cal.App.5th
312, 329–330 [holding that § 1172.75 should be read to require
additional fact finding for any individual who receives an upper
term sentence].) The California Supreme Court has granted
review in People v. Eaton (Mar. 14, 2025, C096853) [nonpub.
opn.], review granted May 14, 2025, S289903, to resolve this
conflict. The Second District has already endorsed the Sixth
District’s interpretation in Brannon-Thompson in several
published decisions. (See, e.g., People v. Moss (2026) 120
Cal.App.5th 375, 380 [disagreeing with Gonzalez and
acknowledging split of authority and Supreme Court review];
People v. Dozier (2025) 116 Cal.App.5th 700, 716 [disagreeing
with Gonzalez and exempting individuals who previously
received an upper term from the additional factfinding
requirement].) While the Supreme Court may yet resolve this
issue in Kendrick’s favor, we have already rejected this
alternative argument, and Kendrick’s supplemental briefing does
not alter this court’s analysis of the trial court’s resentencing.
9
proposed by Kendrick. The trial court could have considered
Kendrick’s postconviction conduct when determining which of the
three possible terms to impose. (See § 1170, subd. (b)(4).)
Indeed, the record reflects that the trial court did so. However, in
the trial court’s estimation, Kendrick’s rehabilitative efforts over
the past five and a half years did not reflect “a lot of self-
improvement,” and were not sufficient for the court to find that
his postconviction conduct outweighed his criminal history when
landing on an appropriate sentence. (See People v. Buford (2016)
4 Cal.App.5th 886, 914 [“We also agree a trial court may properly
deny resentencing . . . based solely on immutable facts such as a
petitioner’s criminal history . . . ‘if those facts support the
ultimate conclusion that an inmate continues to pose an
unreasonable risk to public safety. [Italics omitted.]’ ”].)
Therefore, notwithstanding Kendrick’s positive
postconviction record, we cannot find that the trial court’s
decision not to weigh this conduct more heavily in its sentencing
decision was arbitrary or capricious, as an abuse of discretion
requires. (See, e.g., People v. Garcia, supra, 101 Cal.App.5th at
p. 857 [trial court could base its risk determination on
seriousness of charged offense and on conviction record].) While
every jurist may weigh these factors differently, such “weighing
of evidence showing dangerousness versus evidence showing
rehabilitation[ ] lie within the court’s discretion,” and it is not for
an appellate court to reweigh. (People v. Buford, supra,
4 Cal.App.5th at p. 899.)
We therefore hold that the trial court did not abuse its
discretion in its sentencing decision.
10
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
OCHOA, J.*
We concur:
EGERTON, Acting P. J.
HANASONO, J.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11