Filed 10/19/26 P. v. Simmons CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A173986
v.
PAUL VICTOR SIMMONS, (Contra Costa County
Super. Ct. No. 05002002863)
Defendant and Appellant.
MEMORANDUM OPINION1
Paul Victor Simmons was convicted of first degree residential robbery
(Penal Code, § 211),2 with an enhancement for personal use of a firearm; and
first degree burglary (§ 459). The trial court also found true that Simmons
had a prior strike conviction (§ 667, subds. (d), (e)) and a prior serious felony
conviction (§ 667, subd. (a)(1)). The trial court originally imposed the
maximum sentence of 27 years, but when our court affirmed Simmons’
convictions it remanded for resentencing because of intervening changes to
the law. (People v. Simmons (Jan. 8, 2024, A163574) [nonpub. opn.].) On
remand, the trial court resentenced Simmons to 23 years. Simmons timely
1 We resolve this case by a memorandum opinion pursuant to
California Standards of Judicial Administration, section 8.1.
2 All undesignated statutory references are to the Penal Code.
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appealed, contending that mitigating circumstances entitled him to a low
term sentence and to having at least one of the enhancements struck.
Disagreeing, we affirm.
The following background is drawn from our prior opinion: Simmons
was convicted of assaulting M.R. with a firearm in 2013. (§ 245, subd. (a)(2).)
Approximately five years later, M.R. and his wife, T.R., were living together
with their two young daughters.
In the early morning of September 17, 2018, while T.R. was in bed, she
heard a sound “like footsteps” from the bathroom, which was separated from
the bedroom by a closed curtain, and saw two feet underneath the curtain.
Her daughters were asleep next to her. She thought it was M.R., so she
called out to him. When she did not hear a response, she walked up to the
curtain and opened it, revealing a man holding “two bigger guns, rifle style”
and a handgun, all of which she recognized as her husband’s guns. The man
was wearing a black mask that “pretty much covered” his face, and he was
“[f]ully covered pretty much head to toe, all black.”
After T.R. opened the curtain, the man pointed the handgun at her.
She put her hands up and started backing up out of the room and into the
hallway. When T.R. got to the hallway, her oldest daughter called out for
her. The man then motioned with the gun towards the stairs, so T.R. turned
around and walked downstairs. The man followed. As T.R. reached the
bottom of the stairs, she ran to the sliding glass door and opened it. At that
point, the man walked out the garage entrance. T.R. ran upstairs, put her
daughters in her closet, and called 911.
After police arrived, M.R. returned home from work. He and T.R.
discovered that several of their possessions were missing, including guns,
jewelry, and headphones.
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About a week later, a Livermore police officer went to a local pharmacy
after receiving a report of a suspicious man inside the store. He saw the
man, later identified as Simmons, at the back of the store and arrested him.
Police officers searched Simmons’ backpack and found, among other items,
handguns, jewelry, and a shaved car key. The arresting officer photographed
the items recovered from Simmons, and the Livermore Police Department
posted the photographs on Facebook. T.R. recognized some of her missing
items in the Facebook post.
The following day, a police detective executed search warrants for two
residences in Livermore connected to Simmons. At one of the houses, the
detective found firearms belonging to M.R. A subsequent search of data
retrieved from Simmons’ cell phone, conducted pursuant to a search warrant,
revealed searches for floor plans of T.R. and M.R.’s house.
The jury found Simmons guilty as charged and found true the firearm
enhancement allegation for the robbery count. In a bifurcated proceeding,
the trial court found true the allegations regarding his prior convictions and
sentenced Simmons to 27 years in state prison, consisting of the upper term
of six years on the robbery count, doubled by the prior strike, plus consecutive
terms of ten years for the firearm enhancement and five years for the prior
serious felony enhancement. The court imposed one-third the midterm on
the burglary count, but stayed the term pursuant to section 654.
Our court affirmed the convictions but remanded for resentencing due
to post-sentencing amendments to section 1170. Specifically, Senate Bill
No. 567 (2021–2022 Reg. Sess.; Stats. 2021, ch. 731, §§ 1.3, 3(c)) amended
section 1170 in two significant ways. First, the middle term is now the
presumptive term (§ 1170, subd. (b)(1)), and the trial court is authorized to
impose the upper term only if the facts underlying an aggravating
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circumstance “have been stipulated to by the defendant or . . . found true
beyond a reasonable doubt at trial by the jury or by the judge in a court trial”
(§ 1170, subd. (b)(2)). However, under section 1170, subdivision (b)(3), “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.” Second, unless contrary to the interests of
justice, trial courts must impose the lower term if certain circumstances—
including the defendant’s childhood trauma—were contributing factors to the
commission of the offense. (§ 1170, subd. (b)(6)(A).)
On remand, Simmons argued the court should impose the low term on
the robbery and burglary counts (staying one of them) and strike both
enhancements. He described a significant history of childhood trauma,
including neglect and physical abuse at the hands of his parents, both of
whom were long-term crack cocaine users. Simmons was listed as victim in
at least seven Child Protective Services referrals before the age of 15. At one
point he was placed with foster parents who sexually abused him. He also
was placed with his maternal grandmother, who was emotionally abusive.
He left his grandmother’s home at the age of 11, when she locked him out of
the house and left a bag of his clothing on the front porch. He then stayed
with various family members and friends, suffered physical and sexual abuse
from still other family members, began experimenting with drugs, and did
not finish high school. When he was 15 years old, Simmons returned to his
grandmother’s house to find that she and his older brother had become
methamphetamine addicts. They introduced him to the drug and initiated
long-term addiction Simmons would struggle with for the next several years.
Simmons also presented letters of support from his children, other
family members, and friends, as well as evidence of positive strides during
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his incarceration, including steps toward earning his GED, a positive work
history, and certificates from several programs focused on substance abuse
and rehabilitation.
The People urged the trial court to reimpose the maximum term of 27
years as necessary to protect public safety based on Simmons’ extensive
history of convictions, parole and probation violations, and unsuccessful
substance abuse treatment.
At the resentencing hearing, the trial court heard argument and then
imposed the following sentence: the middle term of four years on the robbery
count, doubled by the strike prior, plus consecutive terms of ten years for the
firearm enhancement and five years prior serious felony enhancement. It
also imposed the middle term for the burglary count but again stayed it
pursuant to section 654.
The trial court stated the reasons for the sentence as follows:
As to the term for the robbery conviction, the trial court first considered
whether Simmons’ childhood trauma was “a contributing factor in the
commission of the offense” under section 1170, subdivision (b)(6)(A). If it
were a contributing factor, the statute would require imposition of the low
term “unless the court finds that the aggravating circumstances outweigh the
mitigating circumstances [such] that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6).) The trial court
found Simmons’ childhood trauma was too far removed to be considered a
contributing factor. Instead, it observed that “[w]hat appears to be a
contributing factor is that he had a deep-se[at]ed hatred and anger towards
the victim and the victim’s family and victimized them repeatedly.”
The court then went on to find that even if Simmons’ childhood trauma
were a contributing factor, it “and all mitigating factors are greatly
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outweighed” by the aggravating factor of his criminal history, which it
characterized as “just terrible.” “And he’s had multiple opportunities to
correct his life, to learn about the effects of his childhood trauma, to modify
his behavior, to take actions to—he has been given programs and help and
probations and supervision and parole and things like that. And they have
not been taken advantage of.” It thus imposed the middle term of four years.
Turning to whether to strike the strike prior, the trial court declined to
do so because the strike prior was for an assault with a firearm against the
same victim that occurred relatively recently, and so Simmons was not
outside the Three Strikes scheme’s spirit, in whole or in part.
As to the enhancements, the trial court considered whether to strike
them under section 1385, subdivision (c)(2), which states the court must
“afford great weight” to evidence that any specified mitigating circumstance
exists, and “[p]roof 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.” (§ 1385,
subd. (c)(2).) Among the specified mitigating circumstances are “[t]he
application of an enhancement could result in a sentence of over 20 years,”
and “[t]he current offense is connected to prior . . . childhood trauma.”
(§ 1385, subds. (c)(2)(C) & (E).)
As to the enhancements resulting in a sentence of over 20 years, the
trial court was “not sure that that paragraph applie[d],” because the
enhancements alone totaled 15 years and only caused a sentence of
potentially more than 20 years when combined with the doubled term for the
robbery. As to childhood trauma, the court found the mitigating
circumstance did not apply, again finding the crime too far removed from
Simmons’ childhood: “I think after you’ve had multiple opportunities to
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address your trauma and you continue to victimize people, then you have to
at some point say, it’s no longer connected to the trauma.” Still, recognizing
that there may be disagreement over its interpretation of both subdivisions,
the trial court found that even if either applied, “it is not in the interest of
justice, and it is dangerous to society for [the court] to strike these
enhancements.” The trial court based this finding on Simmons’ criminal
history and his repeated targeting of M.R. and M.R.’s family with violent
crimes.
We review for abuse of discretion a trial court’s discretionary
sentencing decisions, including whether to impose the middle or low term in
light of mitigating evidence and whether to strike enhancements. (People v.
Salazar (2023) 15 Cal.5th 416, 428, fn.8; People v. Ramirez (2022) 13 Cal.5th
997, 1162–1163.) We will reverse only if “ ‘the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44
Cal.4th 983, 1004.) We also “view the evidence in the light most favorable to
the trial court’s ruling.” (People v. Edwards (2013) 57 Cal.4th 658, 711.)
Simmons first argues the trial court “failed to recognize” that he was
entitled to the lower term for the robbery count based on his childhood
trauma under section 1170, subdivision (b)(6)(A). But the transcript shows
the court considered this issue and found that Simmons’ childhood trauma
was too remote to be a “contributing factor” to the offense. Simmons cites no
authority showing this conclusion was an abuse of discretion—indeed, he
does not engage with the standard of review at all.
He next attacks the court’s conclusion that Simmons’ criminal record
and history of failed interventions outweighed the mitigating factors that
might otherwise justify a low term. But this is a decision committed to the
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sound discretion of the trial court, and we cannot say the court’s decision was
arbitrary, capricious, or patently absurd, nor has Simmons cited any
authority that would support such a holding. (See People v. Sarmiento-
Zuniga (2025) 108 Cal.App.5th 1216, 1226; see also People v. Bravo (2025)
107 Cal.App.5th 1144, 1158 [affirming imposition of middle term where court
found some evidence of childhood trauma but determined low term would not
be in interest of justice]; People v. Hilburn (2023) 93 Cal.App.5th 189, 206
[court appropriately exercised discretion in determining aggravating factors,
including circumstances of armed robbery of inhabited dwelling and criminal
history, outweighed mitigating factors].)
Simmons’ challenge to the reimposition of both enhancements fares no
better. His argument for striking the enhancements based on Simmons’
childhood trauma fails for the same reasons discussed above, and also
because it was within the trial court’s discretion to find striking the
enhancements would endanger public safety, given the nature of the crime
and Simmons’ previous targeting of the same victim. (See People v. Mendoza
(2023) 88 Cal.App.5th 287, 298–299 (Mendoza) [affirming dangerousness
finding where defendant used firearm in a home invasion robbery with
victims present].)
Simmons contends section 1385, subdivisions (c)(2)(B) (multiple
enhancements) and (c)(2)(C) (sentence over 20 years) require the dismissal of
at least one of the enhancements based on language in these subparagraphs
stating enhancement(s) “ ‘shall be dismissed’ ” when the mitigating factor is
present. The Attorney General counters that argument is foreclosed by
People v. Walker (2024) 16 Cal.5th 1024, 1032–1034 (Walker). There, the
Supreme Court rejected a contention that the “ ‘great weight’ ” language in
section 1385, subdivision (c)(2) created a rebuttable presumption requiring
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the court to dismiss an enhancement unless the court found dismissing the
enhancement would endanger public safety. (Walker, at p. 1029.) Instead,
the Walker Court read this subdivision as leaving intact a sentencing court’s
“discretion to impose or dismiss enhancements provided that it assigns
significant value to the enumerated mitigating circumstances when they are
present.” (Walker, at p. 1029.)
Walker did not specifically interpret the language Simmons invokes
here (Walker, supra, 16 Cal.5th at p. 1035, fn. 5), but other decisions have.
They conclude that, although “the term ‘shall’ in a statute is generally
mandatory, not permissive,” we must read the term in the “ ‘ “ ‘ “context of
the statute as a whole.” ’ ” ’ ” (People v. Anderson (2023) 88 Cal.App.5th 233,
239.) In section 1385, subdivisions (c)(2)(B) and (C), the statement that an
enhancement “ ‘shall’ ” be dismissed “appears as a subpart to the general
provision that a ‘court shall dismiss an enhancement if it is in the
furtherance of justice to do so.’ [Citation.] In other words, the dismissal of
the enhancement is conditioned on the court’s finding dismissal is in the
interest of justice.” (Ibid.; see Mendoza, supra, 88 Cal.App.5th at pp. 295–
297 [similar]; People v. Cota (2023) 97 Cal.App.5th 318, 335 [collecting cases
reaching similar result].) Here, because the trial court found dismissal of the
enhancements would not be in the interest of justice—it would endanger
public safety—the mandatory language Simmons invokes does not come into
play. Simmons also appears to concede this point by failing to defend the
argument in his reply brief.
DISPOSITION
The judgment is affirmed.
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TUCHER, P. J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
People v. Simmons (A173986)
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