Filed 10/23/26 P. v. Warsinger CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089986
Plaintiff and Respondent,
(Super. Ct. No. CF03907980)
v.
DONNAL VANCE WARSINGER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. James A.
Kelley, Jr., Judge.
Jeffrey R. Wood, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and
Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and Snauffer, J.
Defendant Donnal Vance Warsinger contends on appeal that his sentence must be
vacated and the matter remanded for resentencing because the trial court abused its
discretion when it denied his request for dismissal of prior serious felony enhancements
pursuant to Penal Code1 section 1385, subdivision (c). Defendant further contends that
the abstract of judgment must be corrected because it is inconsistent with the court’s
order striking the restitution fine. The People agree the abstract of judgment must be
amended to reflect the stricken section 1202.4, subdivision (b) restitution fine but argue
the court did not abuse its discretion in declining to dismiss the prior serious felony
enhancements pursuant to section 1385, subdivision (c). The People further contend as a
threshold issue that defendant forfeited the claim. We direct the court to prepare an
amended abstract of judgment striking the section 1202.4, subdivision (b) restitution fine
and forwarding it to the appropriate entities. In all other respects, the judgment is
affirmed.
PROCEDURAL SUMMARY
On February 9, 2004, a jury convicted defendant of assault with a deadly weapon
(§ 245, subd. (a)(1); count 1) and found that defendant personally inflicted great bodily
injury during the commission of the offense (§ 12022.7, subd. (a)). (People v. Warsinger
(Apr. 21, 2006, F047043) [nonpub. opn.] (Warsinger I).)2 In a bifurcated proceeding,
defendant also admitted two prior strike convictions (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), two prior serious felony convictions (§ 667.5, subd. (b))3 and five prior
1 All further statutory references are to the Penal Code unless otherwise noted.
2 Pursuant to Evidence Code section 452, subdivision (d)(1), a court may take
judicial notice of the records of any court of this state. Accordingly, we take judicial
notice of the nonpublished opinion issued by our court in Warsinger I, supra, F047043.
3 The prior serious felony convictions were for a 1984 conviction for robbery
(§ 211) and a 1987 conviction for assault with a firearm (§ 245, subd. (a)(2)).
2.
prison terms (§ 667.5, subd. (b)). (Warsinger I, supra, F047043.) A third prior strike
allegation was dismissed. (Ibid.)
On December 9, 2004, the trial court held a sentencing hearing. It denied
defendant’s motion to dismiss his prior convictions pursuant to section 1385 and
Romero.4 The court imposed an indeterminate term of 25 years to life, plus a determinate
term of 13 years, consecutive, as follows: on count 1, an indeterminate term of 25 years
to life pursuant to the Three Strikes law; on each of the two prior serious felony
enhancements (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), five years, consecutive;
and on each of three prior prison term enhancements (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), one year, consecutive. Two other prior prison terms were stayed. The
court struck punishment for the great bodily injury enhancement (§ 12022.7, subd. (a)).
The court imposed a $10,000 restitution fine pursuant to section 1202.4, subdivision (b).
Resentencing
On December 11, 2023, the trial court acknowledged defendant was “identified as
a potential candidate pursuant to … 1172.75,” ordered a full resentencing hearing, and
ordered the probation department to prepare a supplemental report.
On June 11, 2025, the trial court vacated defendant’s sentence pursuant to
section 1172.75 and held a resentencing hearing. The People requested the court strike
defendant’s three prior prison term enhancements and reimpose the remainder of the
original sentence. Defendant requested the court dismiss his 1987 strike conviction
pursuant to Romero and section 1385, subdivision (a), the two prior serious felony
enhancements (§ 667, subd. (a)) pursuant to section 1385, subdivision (c), the three prior
prison term enhancements (§ 667, subd. (b)) pursuant to section 1172.75, and the $10,000
restitution fine pursuant to section 1202.4, subdivision (b). The court struck the
three prior prison terms but denied defendant’s request to strike his prior strikes and prior
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3.
serious felony convictions (§ 667, subd. (a)). The court resentenced defendant to an
indeterminate term of 25 years to life, plus a determinate term of 10 years, as follows: on
count 1, the indeterminate term of 25 years to life; and on each of the two prior serious
felony convictions (§ 667, subd. (a)), five years, consecutive. The court struck the
punishment for the section 12022.7 great bodily injury enhancement. The court also
imposed a $10,000 restitution fine pursuant to section 1202.4, subdivision (b).
On June 12, 2025, defendant filed a timely notice of appeal.
FACTUAL SUMMARY
Underlying Case5
“On the night of September 7, 2003, the security guard at Motel 6 in
Fresno saw [defendant] hanging around motel property and asked
[defendant] if he was a registered guest. [Defendant] ignored the guard and
walked away. The guard knew [defendant] by name and by sight. The
guard had asked [defendant] to leave the property on a number of prior
occasions when [defendant] was at the motel and not a registered guest. In
fact, … the desk clerk at the motel[] stated in his declaration filed in
support of the motion for new trial that [defendant] was on the motel’s ‘Do
Not Rent’ list. He also recalled that [defendant] had been on the property
before and had to be escorted off the premises by security guards.
“Several hours after he observed [defendant], the guard again saw
him looking into the windows of some of the rooms. He then saw
[defendant] enter a guest’s room where the door was standing open. The
guard called police, but they did not initially respond.
“Approximately one hour later, the guard was told by motel guests
that [defendant] was wandering the hallways. The guard went to find
[defendant] and ask him to leave. He believed [defendant] was in the back
parking area and headed in that direction. He walked through a dimly lit
hallway where [defendant] was standing with his back against the wall. As
the guard approached [defendant], the guard did not immediately see him.
As the guard passed [defendant] however, he saw him and turned to face
[defendant]. As he did, [defendant] hit the guard across the face with a
5 The facts underlying defendant’s prior strike offenses in case No. F047043 are
taken from our opinion in that case. (Warsinger I, supra, F047043.)
4.
stick. [Defendant] hit the guard a second time, also across the face, causing
serious injury.” (Warsinger I, supra, F047043.)
DISCUSSION
I. Prior Serious Felony Convictions (§ 667, subd. (a))
Defendant contends the sentence must be vacated and the matter remanded for
resentencing because the trial court abused its discretion when it denied his request at the
resentencing hearing to dismiss the two prior serious felony enhancements (§ 667,
subd. (a)) pursuant to section 1385, subdivision (c). The People disagree, and as a
threshold issue, argue defendant forfeited the issue by failing to raise the issue below.
We agree with the People that the court did not abuse its discretion.
Background
After defendant requested a full resentencing, the trial court ordered the probation
department to prepare a supplemental report.
On May 20, 2025, the prosecution filed a resentencing brief, conceding the trial
court must dismiss the three prior prison term enhancements because they were legally
invalid pursuant to section 1172.75, subdivision (c), but argued that the prior strike
convictions should not be dismissed pursuant to Romero. The People’s resentencing
brief outlined defendant’s criminal history from 1981 to 2020, including convictions
before the underlying offense and postconviction misconduct for which he was
disciplined and a felony conviction while he was incarcerated.
On June 5, 2025, defendant submitted his resentencing brief to the trial court.
Defendant requested that the three prior prison term enhancements (§ 667.5, subd. (b)) be
dismissed pursuant to section 1172.75, that one of his prior strike convictions be
dismissed pursuant to Romero and section 1385, subdivision (a), and that his two prior
serious felony enhancements (§ 667, subd. (a)) be dismissed pursuant to section 1385,
subdivision (c). Defendant argued that pursuant to section 1385, subdivision (c), it was
in the interest of justice to dismiss defendant’s prior serious felony enhancements (§ 667,
5.
subd. (a)), outlining the court’s discretion under section 1385, subdivision (c), including
the great weight afforded mitigating factors, and identified the mitigating factors present
in this case, including that there were multiple enhancements alleged in a single case
(§ 1385, subd. (c)(2)(B)), that the application of an enhancement could result in a
sentence of over 20 years (§ 1385, subd. (c)(2)(C)), that the enhancements were based on
prior convictions that were over five years old (§ 1385, subd. (c)(2)(H)), and that other
factors that are circumstances in mitigation relate to defendant (Cal. Rules of Court,
rule 4.423(c)), namely that the prior strikes and prior serious felony enhancements were
based on the same convictions from 1984 and 1987. The resentencing brief included
multiple certificates of completion, laudatory chronos, participation in Alcoholics
Anonymous, positive letters of support from 2012 to 2024, and documents showing
defendant participated in and became a facilitator for, the Anti-Recidivism Coalition,
starting in 2013 and was a member of its graduating class in 2024.
The supplemental probation report outlined the trial court’s discretion to dismiss
enhancements pursuant to section 1385, subdivision (c), the statutory requirements
including the requirement that the court give great weight to mitigating factors, and the
relevant mitigating factors, including that there were multiple enhancements alleged and
that the prior convictions were over five years old. However, the report recommended
the prior serious felony enhancements not be dismissed due to the presence of several
aggravating factors pursuant to California Rules of Court, rule 4.421(b), including that
defendant engaged in violent conduct which indicates a serious danger to society, that his
prior convictions as an adult or sustained petitions as a juvenile are numerous or of
increasing seriousness, and that he has served a prior prison term.
On June 11, 2025, the trial court held a resentencing hearing. Both parties
stipulated defendant was eligible for resentencing. The court stated that it read and
considered the parties’ resentencing briefs and the supplemental probation report and
6.
noted that defendant’s resentencing brief included “many laudatory chronos, among other
things helpful for the defendant.”
The trial court also heard argument from both parties and a statement from
defendant. The prosecution argued that defendant’s criminal history “began in 1981 with
a robbery with the use of a firearm for which he was committed to the youth authority,
followed by another robbery in 1984 where he went to prison, while he was still on
parole, followed by a [section] 245 in 1987, and on and on and on. [¶] In looking at that,
it’s apparent to [the prosecution] that [defendant] cannot obey the law. He can’t obey the
rules of society when he’s out. He also cannot follow the rules of CDCR while he’s in
custody, as evidenced by his serious rules violations,” one of which was a 2020 felony
conviction (§ 69) that occurred in CDCR. The prosecution argued that although
defendant had “taken a lot of classes,” received “a lot of positive chronos [and] taken
advantage of some of the programming” while in prison, his continued rules violations
and subsequent criminal conviction in 2020 showed he had not “been able to use what
he’s learned, if he’s learned anything.” Accordingly, they argued defendant fell within
the spirit of the Three Strikes law.
Defense counsel argued that, as submitted in defendant’s resentencing brief,
although defendant had “some struggles” in prison, he put forth effort to rehabilitate
himself while in custody, and had been in custody for approximately 21 years since the
underlying offense.
Defendant also addressed the trial court, stating he had been abused as a child, and
“did do everything the [prosecution] said and I was lost” but that he had put effort into
rehabilitating himself, and if paroled, would want to live in a group home and work.
The trial court clarified that it was the prosecution’s position that the five-year
prior serious felony enhancements should not be stricken, which the prosecution
confirmed.
7.
The trial court struck the three one-year prior prison term enhancements.
However, it declined to strike defendant’s two prior strikes and prior serious felony
enhancements (§ 667, subd. (a)), stating:
“All right. The [c]ourt does find that … defendant is eligible for
resentencing. The three one-year priors that were imposed will be stricken.
The [c]ourt will not strike the strikes.
“The strikes are old, but the defendant had a steady reoffending
history until his commitment that he is serving now, and it started when he
was 16 and he was rarely out of custody for any length of time before he
was reincarcerated. He’s got parole violations as well. His convictions run
the gamut from assaultive behavior, robberies, drug sales, pimping, other
types of assaultive behavior against peace officers as well, and there were
arrests that didn’t result in convictions for things like domestic violence.
“So he was a multifaceted offender and a continual offender. I count
[10] felony priors and four strike priors, if I include the 211’s from his
youthful days, and at least three parole violations. So I believe that the
Three Strikes [l]aw was put into place for situations like this and I’m not
going to upset what the voters and the [L]egislature did in this case.
“So the resentencing will be as to the [section] 245[,
subdivision] (a)(1) with the strike priors, it will be a base term of 25 to life.
The [c]ourt will impose the two [section] 667[, subdivision] (a) priors
consecutive to each other. So that’s 10 years determinate, plus 25 years to
life.
“[Punishment for t]he [section] 12022.7 [enhancement] was stricken
by the sentencing court and I will strike that as well. [¶] … [¶]
“So the [c]ourt will strike the punishment as well, leaving the
[section] 12022.7[, subdivision] (a) finding on the defendant’s record. So
it’s 10 years, followed by 25 to life. [¶] … [¶]
“I will recall any unpaid restitution fines and fees, but not any victim
restitution orders that were imposed.”
Defense counsel did not object to the trial court’s ruling at the resentencing
hearing.
8.
On June 13, 2025, an abstract of judgment was filed, reflecting the sentence
imposed by the trial court, but reimposing the $10,000 restitution fine.
Law
Pursuant to section 1172.75, subdivision (a), the trial court shall recall judgments
that include invalidated prior prison term enhancements and resentence the defendant.
(§ 1172.75, subd. (c).) After recalling the judgment, the court shall hold a full
resentencing hearing. (People v. Rogers (2025) 108 Cal.App.5th 340, 361; People v.
Monroe (2022) 85 Cal.App.5th 393, 402.) The court must apply any other changes in
law that reduce sentences or provide for judicial discretion and “revisit all prior
sentencing decisions.” (§ 1172.75, subd. (d)(2); People v. Valenzuela (2019) 7 Cal.5th
415, 424–425.) The court “ ‘ “has jurisdiction to modify every aspect of the sentence,
and not just the portion subjected to the recall.” ’ ” (Rogers, at p. 358.)
Section 1385, subdivision (c) is a change in law to which section 1172.75,
subdivision (a) applies. Section 1385, subdivision (a) authorizes a trial court to dismiss
an action “in furtherance of justice.” (§ 1385, subd. (a).) Section 1385,
subdivision (b)(1) states: “If the court has the authority pursuant to subdivision (a) to
strike or dismiss an enhancement, the court may instead strike the additional punishment
for that enhancement in the furtherance of justice in compliance with subdivision (a).”
(§ 1385, subd. (b)(1).)
However, effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.)
added subdivision (c) to section 1385. (Stats. 2021, ch. 721, § 1.) This subdivision
states: “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.” (§ 1385, subd. (c)(1).) It further states that in exercising this
discretion, “the court shall consider and afford great weight to evidence offered by the
defendant to prove that any of the mitigating circumstances” listed in the statute are
present, and that “[p]roof of the presence of one or more of these circumstances weighs
9.
greatly in favor of dismissing the enhancement, unless the court finds that dismissal of
the enhancement would endanger public safety.” (§ 1385, subd. (c)(2).) The mitigating
circumstances listed in section 1385, subdivision (c)(2) include, in pertinent part,
“(B) Multiple enhancements are alleged in a single case. In this instance, all
enhancements beyond a single enhancement shall be dismissed[;] [¶] … [¶] (F) The
current offense is not a violent felony as defined in subdivision (c) of [s]ection 667.5[;]
[¶] … [¶] (H) The enhancement is based on a prior conviction that is over five years
old.” (§ 1385, subd. (c)(2).)
However, the statute does not presume the enhancement shall be dismissed.
(People v. Walker (2024) 16 Cal.5th 1024, 1029–1030.) Section 1385, subdivision (c)
“does not erect a rebuttable presumption in favor of dismissal that can only be overcome
by a finding that dismissal endangers public safety.” (Walker, at p. 1033.) Instead,
“absent a finding that dismissal would endanger public safety, a court retains the
discretion to impose or dismiss enhancements provided that it assigns significant value to
the enumerated mitigating circumstances when they are present.” (Id. at p. 1029.)
However, “if the court does not find that dismissal would endanger public safety, the
presence of an enumerated mitigating circumstance will generally result in the dismissal
of an enhancement unless the sentencing court finds substantial, credible evidence of
countervailing factors that ‘may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement is not in furtherance of
justice.’ ” (Ibid.)
A trial court’s decision not to strike a sentence enhancement under section 1385 is
reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371;
People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) “The abuse of discretion standard
is highly deferential.” (Mendoza, at p. 298.) “When, ‘ “as here, a discretionary power is
statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on
appeal except on a showing that the court exercised its discretion in an arbitrary,
10.
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.’ ” ’ ” (Ibid.) Defendant bears the burden to affirmatively demonstrate the court
abused its sentencing discretion. (People v. Sanghera (2006) 139 Cal.App.4th 1567,
1573; People v. Sandoval (2007) 41 Cal.4th 825, 847.)
“Absent evidence to the contrary, [appellate courts] presume that the trial court
knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042; see
People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Martinez (2017) 10
Cal.App.5th 686, 728.) Moreover, appellate courts “presume that a judgment or order of
the trial court is correct,” and “ ‘ “[a]ll intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown.” ’ ” (People v. Giordano (2007) 42 Cal.4th 644, 666; see Martinez, at p. 728.)
“Thus, where a statement of reasons is not required and the record is silent, a reviewing
court will presume the trial court had a proper basis for a particular finding or order.”
(Stowell, at p. 1114; see In re Julian R. (2009) 47 Cal.4th 487, 499.)
Forfeiture
The People contend as a threshold issue that, to the extent defendant argues that
the trial court was required to expressly raise section 1385, subdivision (c) at sentencing
or place its reasons for declining to dismiss an enhancement on the record, his claim is
forfeited because, while he raised the issue of dismissing the prior serious felony
enhancements under section 1385, subdivision (c) in his resentencing brief, he failed to
provide further argument on the issue at the resentencing hearing and made no effort to
clarify the court’s reasons for denying his request to strike the enhancements. Defendant
disagrees. We agree with defendant.
Here, defendant requested the trial court dismiss the prior serious felony
enhancements pursuant to section 1385, subdivision (c) in his resentencing brief and
included applicable law regarding the court’s discretion and the mitigating circumstances
applicable to defendant’s case. Accordingly, he did not waive the issue of dismissing the
11.
prior serious felony enhancements pursuant to section 1385, subdivision (c). (People v.
Carmony, supra, 33 Cal.4th at pp. 375–376 [“Any failure on the part of a defendant to
invite the court to dismiss under section 1385 … waives or forfeits his or her right to
raise the issue on appeal.”]; see also People v. Coleman (2024) 98 Cal.App.5th 709, 724
[when a defendant does not ask the court to strike enhancements, either in court or by
way of a sentencing brief, they forfeit the claim].)
However, the People argue that, while defendant raised the issue of dismissing the
enhancements pursuant to section 1385, subdivision (c) in his resentencing brief, he
nonetheless forfeited the issue of the trial court’s reasons for declining to strike his
enhancements on the record, because defendant provided no further argument on the
issue at the resentencing hearing and made no effort to clarify the court’s reasons in
denying his request to strike the enhancements. The People contend that, according to
People v. Gonzalez (2024) 103 Cal.App.5th 215, “ ‘complaints about the manner in
which the trial court exercises its sentencing discretion and articulates its supporting
reasons cannot be raised for the first time on appeal.’ [Citation.] ‘Although the court is
required to impose sentence in a lawful manner, counsel is charged with understanding,
advocating, and clarifying permissible sentencing choices at the hearing.’ ” (Id. at
p. 225.)
Defendant disagrees, and argues that, while an appeal from an issue with the
articulation of the trial court’s reasoning in a sentencing decision, as was the case in
Gonzalez, cannot be raised for the first time on appeal, here, he is permitted to appeal
because the court simply failed to articulate any reasoning for the denial of his request to
dismiss the prior strike convictions pursuant to section 1385, subdivision (c). He
contends that he preserved the claim on appeal by requesting the prior serious felony
enhancements be dismissed pursuant to section 1385, subdivision (c) in his resentencing
brief, and that he was not required at the resentencing hearing to further advocate or seek
clarification as to the court’s reasons once it made its ruling denying his request.
12.
In Gonzalez, the issue was whether defense counsel intended to agree with the trial
court during the sentencing hearing when the court stated its reasons for denying the
defendant’s request to dismiss an enhancement by stating “Yes, I agree” at one point in
the colloquy between the court and defense counsel. (People v. Gonzalez, supra, 103
Cal.App.5th at pp. 224, 226.) The Gonzalez court determined that, based on the context
of the entire discussion between the court and defense counsel, defense counsel’s
statement was not a concession as to the court’s reasons for denying the defendant’s
request, but rather showed a misunderstanding between defense counsel and the court
about the court’s statement of reasons, and accordingly did not result in forfeiture on
appeal of the issue that he raised in the defendant’s sentencing brief. (Id. at p. 226.)
No similar misunderstanding or discussion between defense counsel and the trial
court occurred here. As this case is distinguishable from Gonzalez, we conclude
defendant did not forfeit the issue on appeal by failing to request clarification from the
court at the resentencing hearing as to its reasons for denying defendant’s request to
dismiss the prior serious felony enhancements, and that defendant properly raised the
issue below by arguing in his resentencing brief that was read and considered by the court
that the prior serious felony convictions should be dismissed pursuant to section 1385,
subdivision (c).
Denial of Defendant’s Request to Dismiss Prior Serious Felony Enhancements
Pursuant to Section 1385, subdivision (c)
However, regardless of whether defendant forfeited the issue of the trial court not
placing its reasons for denying his request to dismiss the prior serious felony
enhancements pursuant to section 1385, subdivision (c) on the record by failing to request
clarification of the court’s ruling below, we conclude that the court did not abuse its
discretion when it denied defendant’s request to dismiss the prior serious felony
enhancements pursuant to section 1385, subdivision (c) at the resentencing hearing.
13.
Defendant contends that the trial court abused its discretion when it denied his
request for the court to dismiss the prior serious felony enhancements under section 1385,
subdivision (c) because the court failed to afford great weight or consideration to the
applicable mitigating factors of having multiple enhancements (§ 1385, subd. (c)(2)(B)),
and that the enhancements were based upon prior convictions that were over five years
old (§ 1385, subd. (c)(2)(H)).6
“[T]here must be substantial, relevant, and credible evidence of aggravating
factors to neutralize the ‘great weight’ of the mitigating circumstances.” (People v.
Walker, supra, 16 Cal.5th at p. 1036.) Without this, a judge could disregard the
mitigating factors without a proper basis for doing so, which would be incompatible with
the “great weight” attached to the enumerated mitigating circumstances. (Ibid.)
However, as stated above, the trial court is not required to use any particular
language or state its reasons for denying a request to dismiss an enhancement under
section 1385, subdivision (c). (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.)
Section 1385, subdivision (a), requires a court to state its “ ‘reasons for the dismissal …
orally on the record,’ but there is no similar statutory requirement when a court denies a
request to dismiss an enhancement.” (Bravo, at p. 1157.) Further, “ ‘[a]bsent evidence to
the contrary, we presume that the trial court knew the law and followed it.’ ” (Ibid.) The
court is presumed to have followed the law, acted to achieve legitimate sentencing
objectives, and to have considered all relevant sentencing factors unless the record
affirmatively indicates otherwise. (See People v. Bryant, Smith and Wheeler (2014) 60
6 Defendant also argued in his resentencing brief that a third mitigating factor was
present, that the enhancements could result in a sentence of over 20 years (§ 1385,
subd. (c)(2)(C)), but does not raise this argument on appeal based on People v. Torres
(2025) 113 Cal.App.5th 88, 93 [statute outlining mitigating circumstance supporting
dismissal of sentencing enhancement in furtherance of justice applicable when
application of enhancement could result in sentence of over 20 years does not apply
where enhancement itself does not “result” in a sentence exceeding 20 years].)
14.
Cal.4th 335, 398; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978;
Cal. Rules of Court, rule 4.409.) “Thus, where a statement of reasons is not required and
the record is silent, a reviewing court will presume the trial court had a proper basis for a
particular finding or order.” (People v. Stowell, supra, 31 Cal.4th at p. 1114; see People
v. Kelly (2018) 28 Cal.App.5th 886, 904 [“When there is no ‘explicit ruling by the trial
court at sentencing, we infer that the court made the finding appropriate to the sentence it
imposed .…’ ”].)
Here, the two prior serious felony enhancements (§ 667, subd. (a)) that defendant
requested be dismissed were based on his 1984 conviction for robbery (§ 211), and his
1987 conviction for assault with a firearm (§ 245, subdivision (a)(2)).
At the resentencing hearing, conducted more than three years after section 1385,
subdivision (c) took effect, the trial court stated it had read and considered the
supplemental probation report, defendant’s resentencing brief, and the prosecution’s
resentencing brief. The court stated it would deny defendant’s Romero motion to strike
his prior strikes because, despite the strike offenses being remote in time, defendant had a
continuous criminal history that began when he was 16 years old, continued until his
commitment for the underlying offense in 2004, and further continued while he was
incarcerated for the underlying offense, for offenses including “assaultive behavior,
robberies, drug sales, pimping, other types of assaultive behavior against peace officers
as well, and there were arrests that didn’t result in convictions for things like domestic
violence,” stating he was a “multifaceted offender and a continual offender,” with “[10]
felony priors and four strike priors, if I include the [section] 211’s from his youthful days,
and at least three parole violations,” and accordingly found that he fell within the spirit of
the Three Strikes law.
The trial court also confirmed before making its statement about the Romero
motion that the prosecution’s position was that the prior serious felony enhancements
(§ 667, subd. (a)) should not be dismissed. After the court discussed its reasons for
15.
denying defendant’s Romero motion, it then stated regarding the prior serious felony
enhancements, “So the resentencing will be as to the [section] 245[, subdivision] (a)(1)
with the strike priors, it will be a base term of 25 [years] to life. The [c]ourt will impose
the two [section] 667[,] sub[division] (a) priors consecutive to each other. So that’s
10 years determinate, plus 25 years to life.”
As the trial court was not required to expressly state its reasons under
section 1385, subdivision (c), we conclude the court did not abuse its discretion when it
denied defendant’s request to dismiss his prior serious felony enhancements pursuant to
section 1385, subdivision (c) without expressly discussing the mitigating factors. As
stated above, the court is not required to use any particular language or state its reasons
for denying a request to dismiss an enhancement under section 1385, subdivision (c).
(People v. Bravo, supra, 107 Cal.App.5th at p. 1157.) “ ‘ “[A] trial court is presumed to
have been aware of and followed the applicable law.” ’ ” (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 398.) Here, while the court did not expressly address the
mitigating factors, the court read and considered the parties’ resentencing briefs and the
supplemental probation report, as required, which included evidence relevant to the
mitigating and aggravating factors to support the court’s implied finding that the
aggravating factors outweighed the mitigating factors.
Here, the supplemental probation report discussed the trial court’s discretion to
strike enhancements pursuant to section 1385, outlined the statutory standard under
section 1385, subdivision (c), including the requirement that the court give great weight
to mitigating factors, and noted the specific mitigating factors in defendant’s case,
including that there were multiple enhancements alleged and that the prior convictions
were over five years old. However, the supplemental probation report also recommended
the prior serious felony enhancements not be dismissed due to the presence of several
aggravating factors pursuant to California Rules of Court, rule 4.421(b), including that
defendant engaged in violent conduct which indicates a serious danger to society, that his
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prior convictions as an adult or sustained petitions as a juvenile are numerous or of
increasing seriousness, and that he has served a prior prison term.
Defendant’s resentencing brief requested the trial court strike the prior serious
felony enhancements and outlined the court’s discretion pursuant to section 1385,
subdivision (c) and the statutory requirements. It also discussed the specific mitigating
factors applicable to defendant’s case and argued that the mitigating factors outweighed
the aggravating factors, including defendant’s criminal history and violent offenses and
included numerous supporting documents regarding defendant’s rehabilitation efforts.
Further, the prosecution’s resentencing brief extensively discussed defendant’s
criminal history from 1981 to 2020, including convictions before the underlying offense
and postconviction misconduct for which he was disciplined and a felony conviction
while incarcerated.
Here, the trial court was not required to state its reasons for denying defendant’s
request to dismiss enhancements pursuant to section 1385, subdivision (c) and we
presume the court knew the law and followed it. Accordingly, we conclude the court did
not abuse its discretion when it denied defendant’s request to dismiss the prior serious
felony enhancements pursuant to section 1385, subdivision (c), as there is sufficient
evidence relating to the mitigating and countervailing aggravating factors to support the
court’s implied finding that the aggravating factors outweighed the mitigating factors
pursuant to section 1395, subdivision (c).
II. Abstract of Judgment
Defendant contends the abstract of judgment must be amended to reflect the trial
court’s oral pronouncement that the restitution fine was stricken. The People agree, as do
we.
In defendant’s resentencing brief, he requested the trial court strike the
$10,000 restitution fine.
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At the resentencing hearing, the trial court stated that it would grant defendant’s
request, stating, “I will recall any unpaid restitution fines and fees, but not any victim
restitution orders that were imposed.” (See § 1465.9 [balance of restitution fine to be
vacated after 10 years].)
However, the June 13, 2025 abstract of judgment from the resentencing hearing
reflects the reimposition of a $10,000 restitution fine pursuant to section 1202.4,
subdivision (b).
“Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.) “As with other clerical errors,
discrepancies between [a written order] and the actual judgment as orally pronounced are
subject to correction at any time, and should be corrected by a reviewing court when
detected on appeal.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
Accordingly, we agree with the parties that the abstract of judgment from the
resentencing hearing must be amended to reflect the trial court’s oral pronouncement that
the $10,000 restitution fine pursuant to section 1202.4, subdivision (b) is stricken.
DISPOSITION
The trial court’s judgment is affirmed. We direct the court to prepare an amended
abstract of judgment striking the $10,000 restitution fine pursuant to section 1202.4,
subdivision (b) and forward a copy of the same to the appropriate entities.
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