Filed 9/2/26 P. v. Lucio CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102603
Plaintiff and Respondent,
(Super. Ct. No. 12F02446)
v.
PHILLIPE BENITO LUCIO,
Defendant and Appellant.
Defendant Phillipe Benito Lucio was resentenced pursuant to Penal Code section
1172.75.1 After striking defendant’s prior prison term enhancement, the trial court
declined to further reduce defendant’s sentence. On appeal, defendant claims the trial
court erred by reimposing an upper term sentence without a jury finding aggravating
factors true and declining to dismiss a firearm use enhancement or otherwise reduce it.
Defendant also contends that his restitution fine must be vacated as more than 10 years
have passed since it was originally imposed.
We agree with defendant that his restitution fine must be vacated. We will also
order the abstract corrected due to certain discrepancies with the trial court’s oral
1 Undesignated statutory references are to the Penal Code.
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pronouncement. In all other respects, we disagree with defendant and affirm the
judgment as modified.
I. BACKGROUND
In March 2012, responding officers found the victim on the ground with a gunshot
wound to his head. The victim died at the scene. Prior to the shooting, the victim,
defendant, and one of defendant’s friends had been at the same party. After the victim
left the party, defendant’s friend confronted the victim, who then punched the friend.
Defendant’s friend fell backward, heard a gunshot, and realized defendant was standing
next to him. Witnesses identified the shooter as someone matching defendant’s overall
description. Others reported that the name of the shooter was “Phil,” “Phillip,” or
“Phillipe,” which were all names used by defendant.
Defendant was subsequently charged with murder (§ 187, subd. (a)—count one),
possession of a firearm by a felon (§ 29800, subd. (a)(1)—count two), and dissuading a
witness (§ 136.1, subd. (a)(1)—count three). A firearm use enhancement as to count one
(§ 12022.53, subd. (b)) and a prior prison term enhancement (§ 667.5, subd. (b)) were
also alleged.
In 2015, defendant pled no contest to the lesser offense of voluntary manslaughter
on count one, the firearm use enhancement, being a felon in possession of a firearm, and
dissuading a witness. Defendant also admitted the prior prison term enhancement. In
exchange, defendant was promised an aggregate state prison sentence of no more than 23
years.
The probation report noted, among other things, defendant’s extensive criminal
history, including multiple prior felonies, his gang membership, and multiple jail rule
violations. There were no mitigating circumstances but there were multiple aggravating
circumstances, including: (1) the crime involved great violence, great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) defendant
had engaged in violent conduct indicating a serious danger to society; (3) defendant’s
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prior convictions as an adult were numerous; (4) defendant was on parole when the crime
was committed; and (5) defendant’s prior performance on probation was unsatisfactory.
(Cal. Rules of Court, rule 4.421.) The department recommended an aggregate sentence
of 22 years eight months, including: the upper term of 11 years for manslaughter; the
upper term of 10 years for the firearm use enhancement; eight months for being a felon in
possession of a firearm; and one year for the prior prison term enhancement. The
department recommended a consecutive but minimum term of incarceration for
dissuading a witness.
In August 2015, defendant appeared for sentencing. The trial court noted the
parties’ negotiated disposition of no more than 23 years in state prison and victim impact
statements. The court also noted the “enormous and ongoing repercussions” from
defendant’s acts. “Consistent with the negotiated disposition, which the Court [found]
acceptable based on the facts,” the court sentenced defendant to the upper term of 11
years on the manslaughter count, the upper term of 10 years on the firearm use
enhancement, eight months on the felon in possession count (one-third the middle term),
one year on the prior prison term enhancement, and four months on the dissuading a
witness count (one-third the maximum), all running consecutively, for an aggregate term
of 23 years. The court also imposed a $4,000 restitution fine, a $4,000 parole revocation
fine, and other fees.
In 2024, the case was set for resentencing under section 1172.75. Defendant
requested that the court: (1) dismiss the one-year prior prison term enhancement;
(2) impose the middle term of six years on the manslaughter count; and (3) either dismiss
or reduce the firearm use enhancement to the middle term of four years. Defendant
highlighted his efforts at rehabilitation, including various prison courses and leaving his
gang. Defendant also claimed he had a reduced risk of future violence and recidivism
due to his age (39), noted that his firearm use enhancement resulted in an aggregate
sentence of over 20 years, and claimed that dismissing the enhancement would not result
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in a physical injury or serious danger to others. Defendant further argued that there were
insufficient aggravating circumstances warranting an upper term sentence. Defendant
also claimed he had a strong family and community support system, good employment
prospects, and his rules violations were due to the higher crime rate in prison.
The People requested that the court strike the one-year prior prison term
enhancement but otherwise reimpose defendant’s sentence. The People noted that
defendant’s plea to a lesser offense already had reduced his maximum sentence
significantly and he had admitted all the other counts and enhancements, showing that a
reduction in sentence would not be in the interests of justice. The People also argued that
defendant’s rules violations in prison, including fighting and possession of razor blades
he had concealed in his cell, showed he continued to engage in violent behavior or
behavior that would lead to violence. The People further argued that defendant admitted
multiple aggravating factors through his guilty plea.
The trial court noted the parties’ briefing on resentencing and its discretion to
reduce the sentence. The court stated that while it frequently reduced sentences because
of changes in the law and based on the rehabilitation of defendants, there were several
factors weighing against a reduction here, including: (1) the case started as a murder case,
and the court would not have accepted a plea with an agreed sentence of nine years
without the additional 10 years for the firearm use enhancement; (2) defendant had made
some steps towards rehabilitation such as leaving his gang, but he continued to incur rule
violations, showing that defendant was not ready to be released from prison; (3) the
aggravating terms warranting an upper term were “very much established,” including
defendant’s criminal history, increasing violence, and “a pattern going in the wrong
direction”; and (4) defendant admitted those aggravating factors.
Based on these aggravating factors, the trial court reimposed the upper term of 11
years on the manslaughter count. The court also struck the one-year prior prison term
enhancement and reimposed the 10-year sentence for the firearm enhancement. The
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court reimposed the other terms from the original sentencing, including the $4,000
restitution fine and corresponding $4,000 parole revocation fine, but reduced the fees to
the minimum mandatory level.
Defendant timely appealed.
II. DISCUSSION
A. Upper Term Sentences
Defendant contends section 1172.75, subdivision (d)(2) required the trial court to
comply with the proof requirements in section 1170, subdivision (b)(2) when it
reimposed the upper terms for manslaughter and the firearm enhancement. He argues
that interpreting section 1172.75, subdivision (d)(4) to create an exception to the proof
requirements in section 1170, subdivision (b)(2) violates the Sixth Amendment.
As defendant acknowledges, there is a split among the Courts of Appeal as to
whether a trial court may reimpose a previously imposed upper term sentence under
section 1172.75, subdivision (d)(4) where the facts underlying one or more aggravating
circumstances were neither stipulated to by the defendant nor found true beyond a
reasonable doubt at trial by the jury or by the judge in a court trial. The California
Supreme Court granted review to resolve the question. (See People v. Eaton (Mar. 14,
2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.)
This court has held that the plain language of section 1172.75, subdivision (d)(4)
indicates that 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. (People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466-467
(Brannon-Thompson).) The proof requirements in the current version of section 1170,
subdivision (b)(2) do not apply where a trial court is reimposing an upper term that was
previously imposed. (Brannon-Thompson, supra, at p. 467.)
Defendant urges us not to follow this court’s decision in Brannon-Thompson and
instead to adopt the different conclusion set forth in People v. Gonzalez (2024) 107
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Cal.App.5th 312, 330. We decline to do so. In Brannon-Thompson, guided by “well
established canons of statutory construction,” this court held that the plain language in
section 1172.75, subdivision (d)(4) carves out an exception to the fact-finding proof
requirements of section 1170, subdivision (b)(2) where a court is reimposing an upper
term. (Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466-467.) As the court
explained in People v. Mathis (2025) 111 Cal.App.5th 359, review granted Aug. 13,
2025, S291628 (Mathis), when the Legislature expresses its intent that an ameliorative
change not apply “ ‘to proceedings that occur after a defendant’s conviction or sentence
has been vacated,’ ” as it did with section 1172.75, subdivision (d)(4), we must follow its
intent. (Mathis, supra, at p. 374, quoting People v. Padilla (2022) 13 Cal.5th 152, 162.)
We see no reason to depart from this court’s interpretation of section 1172.75,
subdivision (d)(4) in Brannon-Thompson.
Defendant contends that such an interpretation runs afoul of the Sixth
Amendment. We disagree. There is no dispute that the additional factual determinations
that are used to impose the upper term under the current version of section 1170,
subdivision (b)(2) implicate the Sixth Amendment right to a jury trial. (People v. Lynch
(2024) 16 Cal.5th 730, 759-760.) “It is the requirement of additional factfinding that
brings the Sixth Amendment into play.” (Id. at p. 759.) When defendant was originally
sentenced in 2015, however, his sentence was imposed under a version of section 1170,
subdivision (b) that granted trial courts broad discretion to select any of the three
applicable prison terms. (Stats. 2010, ch. 256, § 5.) The United States Supreme Court in
Cunningham v. California (2007) 549 U.S. 270, 294, held that a sentencing scheme like
the one under which defendant was originally sentenced would not violate the Sixth
Amendment right to a jury trial. As Lynch explained, under that sentencing scheme, a
trial court was not required to find a particular fact to justify imposition of the upper
term. (Lynch, supra, at pp. 747-748.) “Where, as here, the trial court elects to retain an
upper term sentence that complied with the Sixth Amendment when originally imposed,
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the court need not engage in any additional factfinding under section 1172.75,
subdivision (d)(4).” (Mathis, supra, 111 Cal.App.5th at pp. 373-374.) The trial court’s
reimposition of the upper terms here does not implicate the Sixth Amendment. (Id. at p.
373.)
B. Firearm Use Enhancement
Defendant also argues section 1385, subdivision (c)(2)(C) required the trial court
to strike the section 12022.53, subdivision (d) firearm use enhancement. We disagree.
“In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) … ,
which amended section 1385 to specify factors that the trial court must consider when
deciding whether to strike enhancements from a defendant’s sentence in the interest of
justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674.)
Subdivision (c)(1) of section 1385 as amended 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.”
Subdivision (c)(2) of section 1385 provides in relevant part: “In exercising its discretion
under this subdivision, 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. 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.” The pertinent factor here is contained
in subdivision (c)(2)(C) of section 1385, which states: “The application of an
enhancement could result in a sentence of over 20 years. In this instance, the
enhancement shall be dismissed.”
Taken together, these provisions provide the trial court with the discretion to
decide not to dismiss the enhancement due to the mitigation factors in section 1385,
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subdivision (c)(2), if the trial court finds the dismissal of the enhancement would
endanger public safety or is not in the interest of justice. (People v. Ponder (2023) 96
Cal.App.5th 1042, 1052-1053.)
We review a trial court’s order denying a motion to dismiss a sentence
enhancement under section 1385 for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 373-374.) An abuse of discretion may occur where the trial court is not
aware of its discretion, considers impermissible factors, fails to consider relevant factors;
or where the decision is so irrational or arbitrary, no reasonable person could agree with
it. (Id. at pp. 377, 378.) “The court is presumed to have considered all of the relevant
factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999)
69 Cal.App.4th 305, 310.)
Here, the trial court considered defendant’s briefing and oral argument asking the
court to reduce or strike the enhancement, including defendant’s arguments that the
enhancement must be dismissed because it resulted in a sentence longer than 20 years and
that dismissal of the enhancement would not endanger public safety and was in the
interests of justice. The court also noted defendant’s steps towards rehabilitation but
found defendant’s prison rules violations, criminal history, and pattern of increasing
violence weighed against reducing his sentence.2 There is no indication that the court
misunderstood its authority to strike defendant’s enhancement. Moreover, the trial
court’s implicit finding that dismissing the enhancement would either endanger public
safety or was not in the interests of justice is not so irrational or arbitrary that no
reasonable person could agree with it.
2 While the trial court made these findings more directly on the issue of whether an upper
term sentence was appropriate, they applied equally to the question of whether the
firearm use enhancement should be stricken.
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C. Restitution Fine
Defendant further contends the portion of the trial court’s judgment imposing the
restitution fine must be vacated because the balance of the fine is unenforceable and
uncollectible. The People agree, and so do we.
The trial court originally imposed the restitution fine in August 2015. Since then,
the Legislature amended section 1465.9 to provide that restitution fines under section
1202.4 are uncollectible and unenforceable after 10 years and that the part of the
judgment imposing the fine must be vacated. (People v. Kopp (2025) 19 Cal.5th 1, 17,
quoting § 1465.9, subd. (d); Stats. 2024, ch. 805, § 1; see also People v. Salstrom (2025)
117 Cal.App.5th 596, 600-601, review granted Mar. 11, 2026, S295038.) While the court
reimposed the $4,000 restitution fine less than 10 years after the original sentencing, 10
years have passed since the court originally imposed the $4,000 restitution fine, and thus
the balance is now unenforceable and uncollectible. (Salstrom, supra, at pp. 600-601.)
We will therefore strike the restitution fine.
D. Abstract of Judgment
The People correctly identify certain errors in the abstract of judgment. The
abstract lists the prior prison term enhancement as stayed, when in fact that enhancement
was stricken by the trial court. In addition, the four-month sentence on count three is
listed as concurrent when it should be listed as consecutive. We will therefore order
amendment of the abstract to correct these errors. (See People v. Mitchell (2001)
26 Cal.4th 181, 185 [oral pronouncement of judgment ordinarily controls].)
III. DISPOSITION
The judgment is modified to strike the restitution fine. (§ 1202.4, subd. (b).) The
judgment is affirmed as modified. The trial court is directed to prepare an amended
abstract of judgment reflecting that the prior prison term enhancement and the restitution
fines were stricken and the four-month sentence on count 3 is consecutive. The trial
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court shall forward a certified copy of the amended abstract to the Department of
Corrections and Rehabilitation.
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
FEINBERG, J.
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