Filed 8/21/26 P. v. Ochoa CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B345754
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA084621)
v.
JESSE OCHOA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert G. Chu, Judge. Affirmed as modified.
Steven A. Torres, 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,
Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
In 2007, a jury found defendant Jesse Ochoa1 guilty of two counts of
willful, deliberate, and premeditated attempted murder, shooting at an
occupied motor vehicle, and possession of a firearm by a felon. The jury
found true that he used and discharged a firearm in the commission of one of
the attempted murders. Defendant admitted he served a prior prison term
within the meaning of Penal Code section 667.5.2 The trial court sentenced
defendant to two consecutive life terms with seven-year minimum parole
eligibility periods for the attempted murders, which included the upper term
of three years for the possession of a firearm by a felon, a twenty-year firearm
enhancement, and a one-year prior prison term enhancement. In 2025, the
trial court resentenced defendant pursuant to section 1172.75, striking the
now-invalid prior prison term enhancement but otherwise left defendant’s
sentence intact.
On appeal, defendant contends the trial court erred in reimposing the
upper term on the possession of a firearm by a felon count and declining to
dismiss the firearm enhancement. We are not persuaded. Defendant also
argues, and the Attorney General concedes, that the abstract of judgment
must be amended to accurately reflect defendant’s custody credits and his
1 Defendant was charged and tried with his two brothers, Lee and
Marcus Ochoa. For ease of reference and to avoid confusion, we refer to the
brothers by their first name only. We intend no disrespect.
2 All further statutory references are to the Penal Code unless otherwise
stated.
2
restitution fine must be vacated due to recent amendments to section 1465.9.
We agree. Therefore, we affirm the judgment as modified.
FACTUAL BACKGROUND
On our own motion, we take judicial notice of the opinion, written by a
different panel of this court, resolving defendant’s direct appeal. (People v.
Ochoa (Aug. 21, 2008, B202220) [nonpub. opn.].) The following facts are
taken directly from the opinion.
I. Prosecution’s Evidence3
a. Lomeli’s Testimony
Sesar Lomeli testified that at approximately 8:00 p.m. on May 7, 2006,
he and Jonathan Aguilar dropped off a friend on 137th Street in Compton.
As Aguilar stood outside of Lomeli’s truck, Lomeli saw a male carrying a rifle
coming toward the back of his vehicle. Aguilar left the location. Lomeli saw
the male getting closer, causing him to drive away. As he did so, he heard
approximately six or seven gunshots strike his truck. The truck’s back
window was shattered. Bullets struck the radio, the front window, and the
bumper. Another bullet went through the air conditioner and exited through
the hood. Lomeli drove home and contacted the police about a half hour after
the incident.
b. Aguilar’s Testimony
3 Defendant did not call any witnesses.
3
Aguilar testified that on May 7, 2006, he was on 137th Street in
Compton. At about 8:30 p.m., he was sitting in Lomeli’s vehicle. Lomeli had
dropped off a friend and had turned the vehicle around. Lomeli asked
Aguilar to close a window near the back of the truck. Aguilar got out of the
vehicle and saw someone wearing all black and carrying a long rifle run
toward the driver’s side of the vehicle. As Aguilar stood on the passenger
side of the truck, he could hear the man with the rifle and Lomeli screaming,
but Aguilar did not pay attention to what they were saying. Aguilar heard a
female (or females) say, “It's okay[.] [N]o, they are friends, no, Lee, no Jesse.”
Lomeli drove the truck away, and as Aguilar ran toward some apartments, he
heard seven to eight gunshots. Aguilar believed he heard two different guns
firing based on the sound and repetition of the gunshots.
c. Deputy Meraz’s Testimony
Los Angeles County Deputy Sheriff Anthony Meraz spoke to Aguilar
and Lomeli after receiving a call reporting the shooting. Aguilar reported
that he and Lomeli had driven to a party at 137th Street and Wilmington
Avenue in Lomeli’s vehicle. Lomeli parked and Aguilar exited the passenger
side. Two male Hispanics approached on foot and shot at them with either
rifles or shotguns. Aguilar told Deputy Meraz that just prior to the shooting
he heard a female voice say, “No, it’s okay, they’re our friends[.] [N]o, Jesse.
No, Lee.” Deputy Meraz testified that Lomeli gave him the same information
regarding the shooting as Aguilar had.
Deputy Meraz was present when Aguilar and Lomeli participated in a
field show-up. He told them they were under no obligation to identify anyone
and that it was equally important to identify the guilty suspects and to
4
exonerate those who were innocent of any wrongdoing. Each identified
defendant and his brother Lee as a shooter.
d. Jimenez’s Testimony
Ivan Jimenez testified that on May 7, 2006, he drove two friends to
Wilmington Avenue in the City of Compton. After his passengers got out of
the car, Jimenez parked. A Hispanic male wearing what Jimenez called a
“hooded sweater” approached and told Jimenez to move his car because it was
blocking the driveway. Jimenez performed a U-turn and parked on the
opposite side of the street.
As Jimenez sat in the parked car, a female and a male carrying a large
rifle approached on the driver’s side of his vehicle. They walked in front of
his car and toward a truck parked across the street. Jimenez said the male
could have been the same person who told him to move his car, as he was also
Hispanic, seemed to have the same build, and appeared to be wearing the
same black hooded sweater. Jimenez was not sure what kind of rifle the man
had, although he acknowledged he might have told the police the rifle was an
AK-47 with a banana clip.
The man stood behind the truck and began firing at the vehicle. The
female ran back in Jimenez’s direction, stood in front of his car, and called for
somebody to shoot him. He looked in the rear-view mirror and saw two or
three men coming at him with guns. He was unable to describe the men
because they were too far away. As soon as Jimenez heard the first shot, he
ducked and left the scene. He stated that he might have hit the female who
was standing in front of his car. As Jimenez drove away, he was struck in his
lower back. However, nothing penetrated the skin.
5
He testified that with the exception of the front windshield, all of the
windows in his car were broken and bullet holes were “everywhere” in his
vehicle. When Jimenez was about a block from the scene of the shooting, he
stopped and called his friend (one of the people Jimenez had dropped off). He
then picked up his friend, who told him to contact the police. Jimenez did so.
e. Sergeant Gray’s Testimony
Los Angeles County Sheriff’s Sergeant Robert Gray spoke to Jimenez
on the night of the shooting. Jimenez said he was parked in front of the
driveway at 825 137th Street. A male Hispanic wearing a black hooded
sweatshirt came out of the yard at that location and approached him.
Jimenez told Sergeant Gray the male was about 20 to 25 years old and had a
shaved head, goatee, and a tattoo on his neck. The male told Jimenez to
move his vehicle, and he complied by making a U-turn and parking on the
other side of the street. Jimenez said the same male came toward him armed
with an AK-47 type rifle and began firing. Jimenez reported that a female
ran in front of his car, blocked his exit, and began yelling for someone to
bring the guns over. Jimenez saw a person in a wheelchair with a shotgun
and another male with a ponytail exit the yard at the 825 address. He saw
the male with the ponytail grab the rifle from the man in the sweatshirt. The
man with the ponytail and the man in the wheelchair shot at Jimenez, who
stepped on the accelerator and left the location.
Sergeant Gray testified that at the field show-up, Jimenez identified
defendant as the man with the ponytail and Lee as the man with the shaved
head. Sergeant Gray stated that Lee had three tattoos on his neck. Sergeant
Gray said Jimenez later identified Marcus as the man in the wheelchair.
6
f. Garcia’s Testimony
Maria Garcia testified that on May 7, 2006, she was in the back seat of
a car with some friends on 137th Street when she heard gunshots. She
ducked down to avoid being shot. A man in a wheelchair approached the
driver’s side of the vehicle carrying a large pistol. He told her to “[g]et the
hell out of here or I’m going to shoot you.” The man broke out the rear
window of the car. Garcia jumped into the front seat and tried to drive away
but she could not locate the keys. She asked the man how he expected her to
leave if she did not have the keys to the car, and he told her to get out and
leave. Garcia exited the car and walked away. She said the man did not
shoot at her. Garcia spoke to the police about five minutes after the incident.
They took her to a location and conducted a field show-up. She identified
Marcus as the man with the gun who approached her in the wheelchair, told
her to leave, and threatened to shoot her.
g. Deputy Gonzalez’s Testimony
Deputy Alejandro Gonzalez arrived at the scene of the shooting on
137th Street at about 9:35 p.m. He spoke to Maria Garcia, who told him that
three males walked up to the vehicle she was in and began shooting. She
said that one of the three shooters was in a wheelchair. Garcia told the
deputy that the man in the wheelchair told her to get the hell out of there or
they would kill her. She said the man in the wheelchair had a shotgun and
7
the other two had handguns. Garcia was able to get out of her car and take
cover when the shooters noticed two other vehicles parked nearby. She saw
the three men, two running and one rolling in a wheelchair, chase after the
two vehicles and fire at them. The men then went into the residence at 825
137th Street.
After Deputy Gonzalez spoke to Garcia, the house at 825 137th Street
was contained. All of the residents of the home were instructed to come out
to allow the deputies to determine whether the suspects were still inside.
Approximately eight to ten people came out of the house. Deputy Gonzalez
identified Lee and defendant as two of the people who exited the residence.
He did not see Marcus at the location, nor did he see a person in a wheelchair
leaving the residence.4
Deputy Gonzalez saw the vehicle Garcia was in at the time of the
shooting. He observed that the rear window was shattered. The deputy
recovered live bullets and casings from shotgun shells and high-powered rifle
rounds along the street and sidewalks of 137th Street. It was later
established that the rifle rounds and casings were of the caliber commonly
used in assault rifles, such as an AK-47.
PROCEDURAL HISTORY
I. Conviction and Sentence
4 On the evening of the shooting, Deputy Larry Ordinario responded to
137th Street. He had received information that one of the suspects was a
male Hispanic in a wheelchair. When Ordinario arrived, he saw Marcus
traveling in the wheelchair and detained him.
8
In 2007, a jury found defendant guilty of two counts of willful,
deliberate, and premeditated attempted murder. (§§ 664, 187, subd. (a).) As
to one attempted murder, the jury found true the allegation that defendant
personally used and intentionally discharged a firearm. (§ 12022.53, subds.
(b), (c).) The jury further found defendant guilty of two counts of shooting at
an occupied motor vehicle (§ 246) and of one count of possession of a firearm
by a felon (former § 12021, subd. (a)).5 Defendant admitted to serving a prior
prison term within the meaning of section 667.5, subdivision (b).
At sentencing, the trial court designated the possession of a firearm by
a felon count as the principal term and imposed the upper term of three
years, plus one year for the prior prison term enhancement. For the
attempted murder counts, the court imposed consecutive life terms with
seven-year minimum parole eligible periods, plus a consecutive 20 years for
the firearm enhancement under section 12022.53, subdivision (c), but stayed
the 10-year firearm enhancement under section 12022.53, subdivision (b).
Finally, the court imposed and stayed the middle term of five years for each
of the shooting at an occupied motor vehicle counts pursuant to section 654.
The court ordered defendant to pay various fines and fees, including a $5,000
restitution fine (§ 1202.4). The court awarded defendant 472 days of actual
credit plus 70 days conduct credit, for a total of 542 days of presentence
credit.
On appeal, a different panel of this division affirmed the judgment.
II. Resentencing
5 Section 12021, subdivision (a) has since been renumbered without
substantive change to section 29800, subdivision (a).
9
Defendant was identified as an inmate eligible for resentencing
pursuant to section 1172.75. Defendant, through appointed counsel, filed a
petition to recall and resentence. In the petition, defendant asked the trial
court to strike the now-invalid prior prison term enhancement and to exercise
its discretion to dismiss the firearm enhancements under sections (b) and (c)
of section 12022.53. In support, defendant attached two exhibits that
included his programming records and certificates from his prison “C-file.”
The People filed a response to the petition, opposing resentencing defendant
other than dismissing the now-invalid prior prison term enhancement.
On February 25, 2025, the trial court held a resentencing hearing.
After argument, the court struck the one-year prior prison term enhancement
but declined to strike the firearm enhancements. In declining to dismiss the
firearm enhancements, the court considered, in part, defendant’s disciplinary
record, record of rehabilitation while incarcerated, and whether “his age, time
served, and diminished physical condition, if any, . . . reduced defendant’s
risk for future violence.” Moreover, the court looked for evidence reflecting a
change in circumstances since the original sentencing, which would indicate
that continued incarceration was no longer in the interest of justice. The
court also considered defendant’s criminal history, including the types of
crimes committed, the extent of injury to the victims, length of prior prison
commitments, and the remoteness of the crimes.
The court noted that in the current case, defendant was found guilty of
two counts of premeditated attempted murder with a true finding of his
personal use and intentional discharge of a firearm. In addition, he was
found guilty of being a felon in possession of a firearm. The court further
stated that defendant did not remain free from discipline while incarcerated.
Defendant had “incidents of battery on an inmate,” he possessed inmate-
10
manufactured weapons and alcohol, and “there was an incident where he was
disciplined for kicking and banging cell doors and not complying with orders.”
The court concluded that resentencing defendant would result in an
unreasonable risk of danger to public safety. Therefore, the court denied
defendant’s request to dismiss the enhancements or further resentencing
beyond striking the now-invalid prior prison term enhancement. The court
did not assess defendant’s custody credits at the time of resentencing.
The amended abstract of judgment reflected defendant’s original
sentence absent the one-year prior prison term enhancement and the various
fines and fees imposed, including the $5,000 restitution fine pursuant to
section 1202.4. However, the amended abstract showed 472 days of actual
credit and 40 days of conduct credit (not 70 days), for a total of 542 days of
credits.
Defendant timely appealed.
DISCUSSION
I. Reimposing the Upper Term
Defendant argues that the trial court violated his Sixth Amendment
rights by reimposing the upper term on the possession of a firearm by a felon
count because any aggravating factors were neither admitted by him nor
found true by a jury beyond a reasonable doubt.6
6 We proceed to the merits of the claim, despite forfeiture, to preclude a
claim of ineffective assistance based on counsel’s failure to object. (People v.
Williams (1998) 61 Cal.App.4th 649, 657, citing, e.g., People v. Marshall
(1996) 13 Cal.4th 799, 831.)
11
We review the court’s resentencing decision for abuse of discretion
(People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13,
2025, S291628 (Mathis)) and questions of statutory interpretation de novo
(People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 856). Previously,
section 667.5, subdivision (b), required the trial courts to impose a one-year
sentence enhancement for each true finding on an allegation that the
defendant served a separate prior prison term and had not remained free of
custody for at least five years. (Former § 667.5, subd. (b); People v. Renteria
(2023) 96 Cal.App.5th 1276, 1282; People v. Jennings (2019) 42 Cal.App.5th
664, 681.) However, with the enactment of Senate Bill No. 136 (effective Jan.
1, 2020), the Legislature amended subdivision (b) of section 667.5 to impose a
one-year enhancement only for each prior term served for a conviction of a
sexually violent offense. (Stats. 2019, ch. 590, § 1.) “Enhancements based on
prior prison terms served for other offenses became legally invalid.” (People
v. Burgess (2022) 86 Cal.App.5th 375, 380 (Burgess).) The Legislature later
enacted Senate Bill No. 483, effective January 1, 2022, to make the changes
implemented by Senate Bill No. 136 retroactive by adding former section
1171.1 (now section 1172.75) to the Penal Code. (See Stats. 2021, ch. 728, §
1; accord, Burgess, supra, at p. 380; accord, People v. Monroe (2022) 85
Cal.App.5th 393, 399.) Section 1172.75, subdivision (c) requires the trial
court to recall an applicable sentence and resentence the defendant.
Section 1172.75, subdivision (d)(1), mandates that the trial court
impose “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.” At resentencing, 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
12
disparity of sentences and to promote uniformity of sentencing.” (Id., subd.
(d)(2).) The court may also consider post-conviction factors, including the
defendant’s disciplinary record, his rehabilitation, and his age and physical
condition affecting any risk for future violence, among other factors. (Id.,
subd. (d)(3).) “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 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.” (Id., subd. (d)(4),
italics added.)
There is currently a split of authority whether section 1172.75,
subdivision (d)(4), permits the reimposition of the upper term at resentencing
without the applicable aggravating factors being found true beyond a
reasonable doubt by a trier of fact or stipulated to by a defendant.7
Defendant urges this court to follow People v. Gonzalez (2024) 107
Cal.App.5th 312 (Gonzalez), which holds that subdivision (d)(4) of section
1172.75 should be read as a restriction and not an exception, meaning that
only those defendants that had previously received the upper term where the
aggravated factors were stipulated to or were proven beyond a reasonable
doubt by the trier of fact could then receive the upper term at resentencing.
Gonzalez is the only published opinion that has endorsed this interpretation
with which we disagree. Rather, we agree with the majority of appellate
courts, including our district, that construe subdivision (d)(4) as an exception
7 The issue is currently before our Supreme Court in People v. Easton
(Mar. 14, 2025, C096853 [nonpub. opn.], review granted May 14, 2025,
S289903.
13
allowing resentencing courts to reimpose the original upper term sentences
without a stipulation or a jury finding of aggravated circumstances. (People
v. Lua (2026) 121 Cal.App.5th 472; People v. Moss (2026) 120 Cal.App.5th
375, 380, review granted July 22, 2026, S296595; People v. Salstrom (2025)
117 Cal.App.5th 596, 599, review granted Mar. 11, 2026, S295038; People v.
Dozier (2025) 116 Cal.App.5th 700, 713, review granted Feb. 11, 2026,
S294597; Mathis, supra, 111 Cal.App.5th at pp. 373–374; People v. Brannon-
Thompson (2024) 104 Cal.App.5th 455, 458 (Brannon-Thompson).) Thus, the
factfinding requirements in section 1172.75, subdivision (d)(4) “apply only if
the trial court is imposing the upper term for the first time at a section
1172.75 resentencing.” (Brannon-Thompson, supra, at pp. 466–467.) Here,
the trial court imposed the upper term at the original sentencing, and by the
plain language of section 1172.75, subdivision (d)(4), could do so again
without a reasonable doubt finding or defendant’s stipulation.8
II. Firearm Enhancement
Defendant contends the trial court abused its discretion in declining to
dismiss the firearm enhancement under section 12022.53, subdivision (c).
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.)
amended section 1385 to guide trial courts in deciding whether and when to
dismiss sentencing enhancements. (Stats. 2021, ch. 721, § 1.) As amended,
section 1385 grants trial courts “the authority” and a simultaneous duty “to
strike or dismiss a [sentencing] enhancement” if doing so is “in the
furtherance of justice.” (§ 1385, subds. (b) & (c)(1).) This provision makes
8 We do not address whether the trial court’s decision to impose the high
term was an abuse of discretion as defendant does not raise this issue on
appeal.
14
clear that whether dismissal of an enhancement is “in the furtherance of
justice” is a “discretion[ary]” call for the trial court to make (id., subd. (c)(1),
(2) & (3)). However, the provision also directs that the existence of any of
nine enumerated “mitigating circumstances” “weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (Id., subd. (c)(2).) The statute
further states that the circumstances listed “are not exclusive” and the trial
“court maintains authority to dismiss or strike an enhancement” in
furtherance of justice. (§ 1385, subd. (c)(4).)
We review the trial court’s determination not to dismiss the firearm
enhancement for abuse of discretion. (People v. Mendoza (2023) 88
Cal.App.5th 287, 298.) This means we will affirm as long as the court
exercised its sentencing discretion “in a manner that is not arbitrary and
capricious, that is consistent with the letter and spirit of the law, and that is
based upon an ‘individualized consideration of the offense, the offender, and
the public interest.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “‘“The
burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to
impose a particular sentence will not be set aside on review.”’” (People v.
Carmony (2004) 33 Cal.4th 367, 376–377.) The trial court’s “‘“decision will
not be reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’”’” (Id. at p. 377.)
Here, the trial court considered all the relevant information and made
a reasonable decision not to dismiss the firearm enhancement. The court
15
considered, among other things, whether defendant’s age, time served, and
diminished physical condition, if any, reduced his risk of future violence. The
court noted defendant’s commitment offenses were for premeditated
attempted murder with personal use and intentional discharge of a firearm
as well as possession of a firearm by a felon. The court cited to defendant’s
disciplinary record while incarcerated, which included “incidents of battery
on an inmate,” possession of inmate-manufactured weapons and alcohol, and
“an incident where he was disciplined for kicking and banging cell doors and
not complying with orders.” The court ultimately found that dismissal of the
firearm enhancements (and further resentencing) would result in an
unreasonable risk of danger to public safety. Given the court’s careful
consideration, we conclude the court exercised its discretion “in a manner
that is not arbitrary and capricious, that is consistent with the letter and
spirit of the law, and that is based upon an ‘individualized consideration of
the offense, the offender, and the public interest.’” (People v. Sandoval,
supra, 41 Cal.4th at p. 847.)9
9 Defendant claims that one enumerated mitigating circumstance
applies: “application of an enhancement could result in a sentence over 20
years.” (§ 1385, subd. (c)(2)(C).) Recently, the Third District Court of Appeal
interpreted section 1385, subdivision (c)(2)(C), and concluded, “A sentence
exceeding 20 years could result from an enhancement where a sentence of
that length arises as a consequence of the enhancement. [Citation.] Thus,
the effect of applying the enhancement itself leads to a sentence exceeding 20
years. The word result denotes a causal relationship between the
enhancement and a sentence exceeding 20 years. Accordingly, this
subdivision concerns ‘enhancements increasing [a] sentence above 20 years.’ ”
(People v. Torres (2025) 113 Cal.App.5th 88, 93.) The court concluded that
because the defendant’s sentence was 25 years to life, it exceeded 20 years
without the enhancement and that mitigating circumstance did not apply.
(Ibid.) In this case, defendant’s sentence for two counts of attempted murder
is two life terms with the possibility of parole after serving at least seven
years. (§§ 664, subd. (a), 189, subd. (a), 3046, subd. (a)(1).)
16
We discern nothing from the trial court’s ruling that supports
defendant’s assertion that the court applied an improper standard for
assessing the danger to public safety. Specifically, defendant cites to
Gonzales to argue the court did not consider future dangerousness, i.e., “how
the dismissal of the enhancement will impact the length of the defendant’s
sentence.” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 228 (Gonzalez).)
In Gonzalez, the defendant was sentenced to 50 years to life for first degree
murder, plus 25 years to life for a section 12022.53, subdivision (d)
enhancement. (Gonzalez, supra, at p. 220.) The trial court denied the
defendant’s request to dismiss the enhancement based on its finding the
defendant “‘presently . . . does represent a danger to society.’” (Id. at p. 224.)
The Court of Appeal reversed, holding the trial court applied an incorrect
legal standard. (Id. at p. 228.) It explained that in addition to the current
dangerousness of the defendant, a sentencing court should also consider how
dismissal of enhancements would impact the length of the defendant’s
sentence or parole eligibility, because a defendant “who has no prospect of
release from prison until he is elderly” may pose less of a risk to public safety.
(Ibid.)
Gonzalez is distinguishable. Nothing in this case indicates the trial
court expressly limited its assessment to solely whether defendant is
currently dangerous. In fact, there is evidence to the contrary. As previously
discussed, the court considered whether defendant’s age, time served, and
diminished physical condition, if any, reduced “defendant’s risk for future
violence.” Thus, the court properly considered defendant’s age and “how the
dismissal of the enhancement will impact the length of [his] sentence” as
mandated by Gonzalez. (103 Cal.App.5th at p. 228.) We note that the trial
court was not required to expressly state what time period it was relying on
17
in considering whether to dismiss the enhancement. Indeed, if a trial court
declines to dismiss an enhancement, it is not mandated to use any “particular
language” in doing so. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.)
While “[s]ection 1385, subdivision (a), requires a trial court to state its
‘reasons for [a] dismissal . . . orally on the record,’ ” there is no similar
statutory requirement when a court declines to dismiss an enhancement.
(Ibid.) Therefore, a trial court need not 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].)
Accordingly, the trial court’s refusal to dismiss the firearm
enhancement was within the bounds of reason and does not reflect any abuse
of discretion.
III. Custody Credits
Defendant contends, and the Attorney General agrees, that the trial
court erred by failing to recalculate his custody credits and the amended
abstract of judgment reflects the incorrect amount of conduct credit. We
agree.
We first note that, when the trial court initially sentenced defendant on
August 24, 2007, it awarded him 472 days of actual credit based on defense
counsel’s representation. We also recognize that, at the resentencing hearing
on February 25, 2025, the court did not recalculate the number of days
defendant had spent in custody from the date of his arrest (May 8, 2006) to
the date of his resentencing. “[T]he trial court, having modified defendant’s
sentence on remand, was obliged, in its new abstract of judgment, to credit
18
him with all actual days he had spent in custody, whether in jail or prison, up
to that time.” (People v. Buckhalter (2001) 26 Cal.4th 20, 37 (Buckhalter);
§§ 2900.1, 2900.5.) Therefore, the trial court was obligated to recalculate
defendant’s actual time credits between the date of his original sentencing
hearing and his resentencing hearing. (Buckhalter, supra, 26 Cal.4th at p.
37.)
Here, the trial court failed to recalculate defendant’s custody credits at
the time of his resentencing hearing on February 25, 2025. While there is no
dispute defendant was entitled to a recalculation of his custody credits, the
Attorney General takes issue with defendant’s attempt to correct his custody
credits from the time of his arrest (May 8, 2006) to his original resentencing
(August 24, 2007). The Attorney General argues defendant waived his
entitlement to the additional custody credit during this timeframe because
his trial counsel offered an erroneous figure to the trial court at the original
sentencing hearing. We disagree. In cases where there is no factual dispute
as to the dates of custody and the calculation is merely arithmetical, the
defendant should not be deprived of credit to which he or she is entitled
merely because trial counsel made a mistake. (People v. Fares (1993) 16
Cal.App.4th 954, 959; People v. Jones (2000) 82 Cal.App.4th 485, 493.)
The Attorney General’s reliance on People v. Myers (1999) 69
Cal.App.4th 305, 312 (Myers) is misplaced. In Myers, a previous appeal had
resulted in a remand to the trial court for a determination, under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, whether to strike a prior
conviction. The trial court on remand denied the Romero motion, and the
defendant appealed again. The defendant argued among other points that on
a Romero remand, the trial court must recalculate credits and must award
conduct credits for the time spent in local custody awaiting resentencing.
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The appellate court rejected that contention on its merits, holding that “[a]
sentenced defendant remains in the constructive custody of the Department
of Corrections [and Rehabilitation], serving his or her sentence, while in local
custody for the sole purpose of hearing on a motion to strike prior convictions.
[Citation.] If the court denies the motion, resentencing is not necessary.
Requiring a trial court to recalculate presentence custody credits and issue
an amended abstract of judgment under these circumstances is to invite
confusion and waste of resources.” (Myers, supra, 69 Cal.App.4th at pp. 311–
312.) The court then added that the defendant had not raised “the issue” in
the trial court but “by and through his counsel, stipulated to the amount of
presentence custody credits to be awarded. Accordingly, any alleged error
has been waived.” (Id, at p. 312.) In context this meant only that the
defendant had waived the issues whether the trial court on remand must (1)
recalculate credits and (2) add conduct credits for the time spent awaiting the
Romero hearing. Myers does not support the Attorney General’s broader
argument that if defendant’s trial counsel erroneously added up the number
of days in custody then defendant is bound by counsel’s mistake.
That said, between defendant’s arrest (May 8, 2006) and the date of his
resentencing (February 25, 2025), defendant accrued a total of 6,869 days of
custody credit. (Buckhalter, supra, 26 Cal.4th at p. 29 [defendant entitled to
all actual custody days since arrest, including date of resentencing]; §§
2900.1, 2900.5, subd. (d).) Defendant contends, and the Attorney General
concedes, that the amended abstract of judgment erroneously reflects 40 days
of conduct credits, rather than 70 days. We agree, as the 40 days of conduct
credit appears to be a clerical error. Both the reporter’s transcript and
minute order of the original sentencing hearing stated that the trial court
awarded defendant 70 days of conduct credit, not 40. Therefore, the amended
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abstract of judgment must be corrected to reflect defendant’s actual custody
credits of 6,869 days and 70 days of conduct credit. (People v. Hernandez
(2024) 103 Cal.App.5th 981, 993; People v. Boyd (2024) 103 Cal.App.5th 56,
74–75.)
IV. Restitution Fine
Defendant argues, and the Attorney General agrees, that the $5,000
restitution fine imposed under section 1202.4 at his original sentencing
hearing and that is currently reflected in the amended abstract of judgment
must be vacated pursuant to a recent amendment to section 1465.9. We
agree. Effective January 1, 2025, Assembly Bill No. 1186 (Stats. 2024, ch.
805, § 1) amended section 1465.9 to add subdivision (d), providing that any
portion of a restitution fine under section 1465.9 that is not paid within 10
years must be vacated. (§ 1465.9, subd. (d) [“‘Upon the expiration of 10 years
after the date of imposition of a restitution fine pursuant to [s]ection 1202.4,
the balance, including any collection fees, shall be unenforceable and
uncollectible and any portion of a judgment imposing those fines shall be
vacated’”]; In re Mattison (2025) 115 Cal.App.5th 1062, 1066.) The
restitution fine was originally imposed in 2007, and defendant was
resentenced over 18 years later. We therefore vacate the fine.
DISPOSITION
The $5,000 restitution fine imposed pursuant to section 1202.4,
subdivision (b) is vacated. The trial court shall prepare an amended abstract
of judgment reflecting the foregoing restitution fine has been vacated and
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defendant is entitled to 6,869 days of actual custody credit and 70 days of
conduct credit. The trial court shall transmit certified copies of the amended
abstract of judgment to the California Department of Corrections and
Rehabilitation. As so modified and in all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
MORI, J.
DAUM, J.
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