Filed 8/13/26 P. v. Luc CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064862
v. (Super. Ct. No. 08WF0057)
CUONG PHAT LUC, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and Arlene A.
Sevidal, Assistant Attorneys General, Collette C. Cavalier and Nora S. Weyl,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Cuong Phat Luc appeals from the judgment entered
after the court resentenced him under Penal Code section 1172.75.1 He raises
two contentions on appeal. First, he argues the court did not exercise
informed discretion when it declined to strike a five-year enhancement for his
prior serious felony conviction. Second, he contends the court reimposed the
upper term for his attempted voluntary manslaughter conviction in violation
of the requirements of section 1170, subdivision (b) and his Sixth Amendment
rights.
For the reasons post, we disagree with defendant’s contentions
and affirm the judgment.
STATEMENT OF FACTS
In 2010, defendant pleaded guilty to three counts of attempted
voluntary manslaughter (§§ 664, 192, subd. (a)(1); counts 1, 2, 3) and one
count of misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 8).
As to counts 1, 2, and 3, defendant admitted he personally used a firearm (§
12022.5, subd. (a)). He further admitted he had a prior strike conviction (§§
667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony
conviction (§ 667, subd. (a)(1)), and three prior prison terms (former § 667.5,
subd. (b)).
Consistent with the guilty plea, the court sentenced defendant to
34 years and eight months in state prison as follows: (1) the upper term of 11
years on count 1; (2) two years each on counts 2 and 3; (3) 10 years for the
firearm enhancement on count 1 (§ 12022.5, subd. (a)); (4) 16 months each for
the firearm enhancements on counts 2 and 3 (§ 12022.5, subd. (a)); (5) five
years for the prior serious felony conviction (§ 667, subd. (a)(1)); and (6) one
1
All further statutory references are to the Penal Code.
2
year each for two prior prison terms (former § 667.5, subd. (b)). The court also
imposed but stayed sentence on the third prior prison term and suspended
imposition of sentence on count 8.
In 2023, defendant filed a petition for the court to recall his
sentence and resentence him pursuant to section 1172.75. The parties
stipulated defendant was eligible for resentencing.
In 2024, the court recalled defendant’s sentence and resentenced
him to 30 years in state prison as follows: (1) the upper term of 11 years on
count 1; (2) two years each on counts 2 and 3; (3) 10 years for the firearm
enhancement on count 1 (§ 12022.5, subd. (a)); and (4) five years for the prior
serious felony conviction (§ 667, subd. (a)(1)). The court struck the firearm
enhancements on counts 2 and 3 (§ 12022.5, subd. (a)) and the prior prison
term enhancements (former § 667.5, subd. (b)).
Defendant timely appealed.
DISCUSSION
I.
THE COURT DID NOT ABUSE ITS DISCRETION BY DECLINING TO STRIKE THE
SECTION 667, SUBDIVISION (A)(1) ENHANCEMENT
Defendant contends the court applied the wrong legal standard
when it declined to strike the five-year enhancement for his prior serious
felony conviction (§ 667, subd. (a)(1)). He argues the court focused on his past
and prior arson conviction, but it did not conduct a “forward-looking or
prospective risk analysis” to account for his “future danger . . . based on the
date on which he might or could be released under a revised sentence.”
Defendant concludes the court did not exercise informed discretion. We
discern nothing in the record to suggest the court applied an improper
standard when assessing defendant’s danger to public safety.
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A. Relevant Background
In his resentencing petition, defendant argued he was entitled to
a full resentencing where the court had to apply any change in law that
reduced his punishment. As relevant here, he requested the court strike the
five-year enhancement for his prior serious felony conviction (§ 667, subd.
(a)(1)). Defendant generally requested a 25-year sentence while the
prosecutor requested a sentence of 32 years and eight months.
After a hearing, the court denied defendant’s request to strike the
enhancement for his prior serious felony conviction (§ 667, subd. (a)(1)). In
reaching this decision, the court explained it had considered section 1385, the
facts and circumstances of defendant’s crime as well as his prior arson
conviction, defendant’s criminal history, the fact that defendant was on
probation, and “the fact that he was out in society when he committed the
crime that caused the conviction here.” The court concluded “public safety . . .
would be endangered by the dismissal of the [section 667, subdivision (a)(1)]
prior.” According to the court, there was “a substantial likelihood that a
dismissal of that enhancement would result in physical injury or other
serious danger to others.” The court elaborated: “I’m looking at this through
the lens of 14 years ago, what the [c]ourt would do. I’m also looking at the
lens now that I have the benefit of the prison record of the defendant. I
balance those two things.”
The court then discussed the mitigating circumstances under
section 1385. First, the court held there was no evidence that “[a]pplication of
the enhancement would result in a discriminatory racial impact.” (§ 1385,
subd. (c)(2)(A).) Second, the court “put weight on the fact that there were
multiple enhancements that were alleged in a single case.” (See id., subd.
(c)(2)(B).) Third, the court considered that “application of an enhancement
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could result in a sentence of over 20 years.” (Id., subd. (c)(2)(C).) Fourth, the
court considered defendant’s substance abuse. (Id., subd. (c)(2)(D).) Fifth, the
court found no evidence the offense was connected to prior victimization or
childhood trauma. (Id., subd. (c)(2)(E).) Sixth, the court noted the current
offense was a violent felony pursuant to section 667.5. (Id., subd. (c)(2)(F).)
Seventh, the court found no evidence defendant was a juvenile when he
committed the current or prior offenses. (Id., subd. (c)(2)(G).) Finally, the
court held it did not believe the prior arson conviction was over five years old.
(Id., subd. (c)(2)(H).)
Defendant’s counsel argued the court’s analysis was wrong
because the court “need[ed] to look to today’s resentencing and not at the
time of the original sentencing in making its analysis under [section 1385,
subdivision (c)].”
The court responded: “I said I put myself at the lens of what
occurred back at the original sentencing . . . faced with the facts and
circumstances of the underlying crime and the facts and circumstances of the
arson and the defendant’s prior record and the defendant being on
probation.” The court added: “I then went through the factors under [section
1385, subdivision (c)] . . . I based my decision on what were the facts of the
underlying arson, what were the facts of the underlying crime that caused
the conviction, what was the defendant’s criminal history, what was the
defendant’s performance on parole in terms of the public safety, and then I
went to the factors.” The court further noted it did not believe it had to
consider the section 1385, subdivision (c) mitigating circumstances because it
had found public safety would be endangered by dismissal of the section 667,
subdivision (a)(1) prior. Regardless, the court still considered the mitigating
circumstances.
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The prosecutor then explained that case law required a finding of
endangerment to public safety to be “perspective [sic], moving forward from
today’s perspective and not essentially what was fair back when [defendant]
was sentenced.” In response, the court stated: “I made that finding from
today’s perspective. What I did is after I made that finding, we got out of the
arena of [section 1385, subdivision (c)] and went into the appropriate factors
to consider in terms of whether the [c]ourt should strike the [firearm]
enhancement[s] on the two individuals who were not injured. I based that
upon, in part, the defendant’s performance in prison as well as the facts and
circumstances of the crime. I mean, I balanced those two things.”
B. Applicable Law and Standard of Review
Section 1172.75 requires resentencing of defendants whose
sentences include certain prior prison term enhancements that are no longer
valid. (§ 1172.75, subds. (a), (c).) Resentencing “shall result in a lesser
sentence than the one originally imposed . . . unless the court finds by clear
and convincing evidence that imposing a lesser sentence would endanger
public safety.” (Id., subd. (d)(1).) As relevant here, the court must “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.” (Id., subd. (d)(2).)
Section 1385, subdivision (c)(1), which is central to this appeal,
provides, “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, “the court shall consider
and afford great weight to evidence offered by the defendant to prove
[certain] mitigating circumstances.” (§ 1385, subd. (c)(2).) “Proof of the
presence of one or more of these circumstances weighs greatly in favor of
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dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (Ibid., italics added.) “‘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.” (Ibid.)
We review a lower court’s decision not to strike a sentencing
enhancement under section 1385 for an abuse of discretion. (People v.
Mendoza (2023) 88 Cal.App.5th 287, 298.) A trial court abuses its discretion
“if it relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.” (People v. Sandoval
(2007) 41 Cal.4th 825, 847, superseded by statute on another ground as
stated in People v. Lynch (2024) 16 Cal.5th 730.) It also abuses its discretion
if it reaches a decision without exercising informed discretion or 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.’”’”
(Ibid.)
C. Analysis
At the outset, we address the Attorney General’s contention that
defendant forfeited his arguments by not raising them below. The Attorney
General correctly notes defendant never requested the trial court conduct a
forward-looking analysis. Instead, defendant’s counsel urged the court to
consider defendant’s behavior at the time of resentencing. She specifically
stated: “[T]he [c]ourt needs to look to today’s resentencing and not at the time
of the original sentencing in making its analysis under [section 1385,
subdivision (c)]. I believe that is a wrong timeframe reference to take that
into account because all of the factors . . . are a current law application. And
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therefore, all of those factors that are present and mitigating should have to
do with what is happening now in the case and not then.” Assuming,
arguendo, defendant did not forfeit his contentions, he has not established
the court abused its discretion.
Relying on People v. Gonzalez (2024) 103 Cal.App.5th 215
(Gonzalez), defendant argues the court applied the wrong legal standard in
declining to strike the enhancement for his prior serious felony conviction
because it did not consider whether he posed a future danger to society.
Defendant adds the court never considered how dismissal of the enhancement
would impact the length of his sentence.
Gonzalez, supra, 103 Cal.App.5th 215 is inapposite. In Gonzalez,
the court held the trial court applied the wrong legal standard in declining to
dismiss a firearm enhancement pursuant to section 1385, subdivision (c).
(Gonzalez, at pp. 227–231.) The trial court refused to dismiss the
enhancement because it found the defendant “‘presently . . . does present a
danger to society.’” (Id. at p. 227.) In other words, the trial court “believed
that it was required to decide whether the defendant ‘currently at the time of
sentencing represent[ed] a danger to society.’” (Ibid.) Given the trial court’s
“singular focus on whether the defendant currently pose[d] a danger,” the
Gonzalez court concluded the trial court applied an erroneous legal standard.
(Id. at pp. 228, 231.) The court explained: “Although 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, 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
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public than a defendant who is currently dangerous but who has no prospect
of release from prison until he is elderly.” (Id. at p. 228.) The court also
acknowledged “section 1385, subdivision (c)(2) ‘does not require the trial court
to consider any particular factors in determining whether “there is a
likelihood that the dismissal of the enhancement would result in physical
injury or other serious danger to others.”’” (Id. at p. 227.)
Here, there is nothing in the record suggesting the court limited
its assessment in a manner rejected by Gonzalez. The court considered
defendant’s current offenses, probation, criminal history, and prior arson
conviction. But the court’s remarks do not reflect that it expressly limited its
analysis to defendant’s current dangerousness or his past. Indeed, the
prosecutor informed the court that it had to make a finding of endangerment
to public safety “moving forward from today’s perspective and not essentially
what was fair back when [defendant] was sentenced.” In response, the court
stated: “I made that finding from today’s perspective.” In other words, the
court appears to have confirmed it made a prospective finding “moving
forward from today’s perspective.” Defendant’s counsel also urged the court to
consider defendant’s older age which, “reduce[d] his risk for future violence
just by the nature of growing up, growing older.” In asking if there was a risk
assessment for defendant, the court likewise commented: “[I]t’s pretty
common knowledge [that as individuals] get older, they may get less violent.”
The court further questioned how old defendant would be if the court imposed
a 25-year sentence.2
2
The resentencing hearing took place in July, August, and
October 2024. Some of the comments made by defendant’s counsel and the
court were from the initial hearing in July 2024.
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Given the court’s comments and the parties’ arguments,
defendant has not shown the court applied an incorrect legal standard. We
also presume the court considered how striking the five-year enhancement
would impact the length of defendant’s sentence because there is nothing in
the record that establishes it did not. (People v. Coleman (2024) 98
Cal.App.5th 709, 724 [“We assume the trial court was aware of and followed
applicable law”].)
II.
THE COURT DID NOT ERR BY REIMPOSING THE UPPER TERM ON COUNT 1
Defendant contends the court erred by reselecting the upper term
on count 1 when resentencing him under section 1172.75. According to
defendant, the court erred because a jury had not found, and he had not
stipulated to, aggravating factors as required by section 1170, subdivision (b).
He also claims no certified record of conviction was admitted into evidence.
He accordingly argues the court violated his Sixth Amendment rights. For
the reasons below, the court did not err.
A. Forfeiture
The Attorney General insists defendant forfeited his arguments
because he requested the trial court reimpose the upper term on count 1.
We disagree.
In his resentencing brief, defendant stated his good behavior in
prison and childhood trauma “establishe[d] a compelling reason to impose the
low term or mid-term on [c]ount 1.” But in the conclusion section of his
resentencing brief, defendant identified a proposed sentence that included
the upper term on count 1. At the resentencing hearing, defendant’s counsel
stated: “My recommended [sic] on that principal count is still upper term
times two.” She later stated: “I think the [c]ourt is guided by [section 1170,
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subdivision (b)] when the [c]ourt goes through it. Normally, under new law,
the [c]ourt would be limited not to exceed the middle term unless there has
been a factor in aggravation that was proven by a jury or admitted to, and in
this case, there was one admitted to by [defendant]. That’s what he pled to,
an upper term. The [c]ourt is not limited by the middle term under [section
1170, subdivision (b)] at this time, although the [c]ourt is correct in having to
go through the process.”
Given defendant’s conflicting statements, we find no forfeiture
and exercise our discretion to consider the merits of his claims. (See People v.
Dozier (2025) 116 Cal.App.5th 700, 710, fn. 8 [no forfeiture for failure to
object to reimposed upper term where the issue was whether the sentence
was unauthorized]; People v. French (2008) 43 Cal.4th 36, 48 [no forfeiture of
jury right claims premised on the Sixth Amendment].)
B. Applicable Law
Effective January 1, 2022, section 1170, subdivision (b)(2)
provides that courts “may impose a sentence exceeding the middle term only
when 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.” But “courts 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).)
Section 1172.75, subdivision (d)(4) 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
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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.)
C. Analysis
As defendant notes, there is a split of authority on the issue of
whether section 1172.75, subdivision (d)(4) provides an exception to the fact-
finding requirements under section 1170, subdivision (b)(2). In People v.
Brannon-Thompson (2024) 104 Cal.App.5th 455, the Third Appellate District
held “section 1172.75, subdivision (d)(4) carves out an exception to the
general rule that all ameliorative changes to the law must be applied at a
section 1172.75 resentencing and does not require aggravating factors to be
found true beyond a reasonable doubt if the upper term was previously
imposed.” (Brannon-Thompson, at p. 458.) Relying on the plain language of
section 1172.75, subdivision (d)(4), the court explained: “[T]he 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.” (Id. at pp. 466–467, italics added.)
In People v. Gonzalez (2024) 107 Cal.App.5th 312, which
defendant urges us to follow, the Sixth Appellate District held section
1172.75, subdivision (d)(4) “simply restricts the scope of defendants eligible to
receive the upper term.” (Gonzalez, at p. 330.) The court explained: “Under
such an interpretation, a defendant would be eligible for the upper term but
could not receive it in the absence of aggravating factors stipulated to by the
defendant or proven beyond a reasonable doubt to the trier of fact. In other
words, the same requirements for imposing an upper term under section
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1170, subdivision (b)(2) would apply, thus eliminating any potential conflict
between the statutes.” (Ibid.)
Several courts have disagreed with People v. Gonzalez, supra, 107
Cal.App.5th 312 and interpreted section 1172.75, subdivision (d)(4) as an
exception allowing courts to reimpose the original upper term sentences
without a stipulation or jury finding of aggravated circumstances. (People v.
Lua (2026) 121 Cal.App.5th 472; People v. Moss (2026) 120 Cal.App.5th 375;
People v. Dozier, supra, 116 Cal.App.5th 700; People v. Mathis (2025) 111
Cal.App.5th 359.)
Our Supreme Court will have the final word as it has granted
review on the issue of whether section 1172.75, subdivision (d)(4) permits a
court to reimpose an upper term sentence without satisfying the fact-finding
requirements of section 1170, subdivision (b). (People v. Eaton (Mar. 14, 2025,
C096853) [nonpub. opn.], review granted May 14, 2025, S289903; People v.
Dozier, supra, 116 Cal.App.5th 700, review granted Feb. 11, 2026, S294597.)
Until then, we agree with the majority view and decline to follow People v.
Gonzalez, supra, 107 Cal.App.5th 312.
Because defendant’s original sentence, which included the upper
term on count 1, occurred under a sentencing scheme that fully complied with
the Sixth Amendment, the court did not err by retaining the upper term
sentence on count 1. (People v. Mathis, supra, 111 Cal.App.5th at pp. 373–374
[“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 additional factfinding under section 1172.75, subdivision
(d)(4)”].)
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DISPOSITION
The judgment is affirmed.
SANCHEZ, ACTING P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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