Filed 6/30/26 P. v. Washington CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B341337
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA137779-01)
v.
VINCENT WASHINGTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez, Charles Lee, Michael C. Keller
and John Yang, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Vincent Washington appeals from the sentence imposed at
his resentencing hearing conducted pursuant to Penal Code1
section 1172.75, claiming the trial court erred by imposing the
upper term sentence on one count and by failing to dismiss a
firearm enhancement. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Over the course of a few weeks in 2015, Washington
committed numerous nighttime armed robberies in which he
approached victims on his bicycle, pointed a gun at them, and
demanded money and property. (People v. Washington (Apr. 24,
2019, B281901) [nonpub. opn.].) Washington also shot one
robbery victim who asked to keep his empty wallet for
sentimental reasons. (Ibid.)
In 2017, Washington was convicted of six counts of second
degree robbery (§ 211) (counts 1–4, 8, 9) and one count of
attempted willful, premeditated, and deliberate murder (§§ 664,
subd. (a), 187, subd. (a)) (count 7). The jury found Washington
personally used a firearm (§ 12022.53, subd. (b)) for four of the
robbery counts (counts 1–3, 9), and he personally and
intentionally discharged a firearm, proximately causing great
bodily injury (§ 12022.53, subds. (c) & (d)) in the attempted
murder and the associated robbery involving the same victim
(counts 7 and 8).
The court sentenced Washington to seven years to life in
state prison with the possibility of parole on count 7 (attempted
first degree murder), plus a consecutive term for the firearm
enhancement of 25 years to life, for a total of 32 years to life. On
the robberies, the court imposed the upper term of five years on
1 All statutory references are to the Penal Code.
2
count 1, plus a 10-year consecutive term for the firearm
enhancement; consecutive terms of 4 years, 4 months (one-third
the midterm plus one-third the firearm enhancement) on each of
counts 2, 3, and 9; consecutive terms of one year (one-third the
midterm) on counts 4 and 8; and consecutive one-year terms for
each of Washington’s six prison priors pursuant to former section
667.5, subdivision (b). Washington’s total sentence was 68 years
to life in state prison. We affirmed the judgment on appeal.
(People v. Washington, supra, B281901.)
Washington filed a motion for resentencing after the
Legislature enacted section 1172.75, which invalidated all section
667.5, subdivision (b) enhancements imposed prior to January 1,
2020, other than those imposed for prior convictions of sexually
violent offenses. (§ 1172.75, subd. (a).) He argued that multiple
ameliorative changes in the law enacted after his original
sentencing now applied: (1) limitations on enhancements under
section 1385; (2) the discretion to strike firearm enhancements;
(3) a presumptive middle term (§ 1170, subd. (b)(2)); and (4) a
presumptive low term under certain enumerated circumstances
(§ 1170, subd. (b)(6)). Washington asked the court to resentence
him on the lesser included offense of attempted second degree
murder on count 7 and to impose a term of seven years; run all
other counts concurrently; and dismiss all firearm enhancements.
Washington asserted the firearm enhancements should be
dismissed because “the imposition of the enhancements in his
case resulted in an aggregate term of over 20 years, the outcome
resulted in racially disparate application, Mr. Washington has
been in custody in this case . . . almost 9 actual years[], Mr.
Washington has been an exemplary prisoner—with no need to
have discipline imposed during the entire time he’s been in
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custody in this case, there is no proof Mr. Washington would be
danger to public safety, there is ample proof Mr. Washington’s
release will further justice and benefit society, [and] Mr.
Washington has strong family support.”
The trial court recalled Washington’s sentence and
conducted a full resentencing. At resentencing, based on section
1172.75, subdivision (d)(4), the court concluded it was not
required to engage in factfinding before imposing an upper term
sentence on count 1 because it had imposed an upper term when
Washington was originally sentenced. The court acknowledged
its discretion to dismiss any enhancement in the interest of
justice (§ 1385, subd. (c)(1)), and noted that in exercising its
discretion it was required to consider and afford great weight to
evidence offered by Washington to prove mitigating
circumstances listed in section 1385, subdivision (c)(2)(A) through
(I). The court further acknowledged that proof of one of those
mitigating circumstances weighed greatly in favor of dismissing
the enhancement, unless the court found dismissal of the
enhancement would endanger public safety. (Id., subd. (c)(2).)
The trial court asked Washington’s counsel to explain the
basis for her contention that imposing the firearm enhancements
would result in a racially disparate impact pursuant to section
1385, subdivision (c)(2)(A)). Washington’s counsel responded,
“Your Honor, I think that it’s just a general argument that
regarding mass incarceration and how our prisons are
overwhelmingly filled with people of, you know, African American
and Latin American descents.” Counsel acknowledged “the
amount of trauma, the seriousness of all these, you know, counts
that Mr. Washington was convicted of regarding these incidences
that happened back in 2015, but the enhancements, they’re—
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they’re enhancements that you don’t see applied to individuals
the way they were applied back then, back in 2015. [¶] This is a
case that I’m confident would have settled or somehow dispo’d in
today’s day, given . . . [¶] the district attorney, . . . all the case
law, all the greater consideration for mitigation for, you know, I—
I guess people in certain neighborhoods, the—the fact that
they’re arrested at a much greater rate and the sentences seem
disproportionately larger than it would to others. [¶] It’s a
general argument. I don’t have any specifics. But if we look at
the—the makeup of state prison now, what we see are definitely
black and brown people there at a much greater rate.”
The prosecutor pointed out the sheer number of
Washington’s victims, the short time span of the crimes, the use
of a firearm, and Washington’s choice to shoot one victim at point
blank range when he simply asked to keep his wallet. He argued,
“I don’t see . . . how anybody who did the behavior that Mr.
Washington was accused of—whether White, Asian, Black—
would have had a different result or different filings.” The court
observed that in its “15 years as a deputy district attorney, six
years handling just murder cases and then in 10 years . . . on the
bench, [it had] not seen any disparate treatment among the races
when it comes to charging the gun use allegation.”
Asked to address public safety, Washington’s counsel
argued Washington’s exemplary conduct while in custody—he
had no disciplinary incidents in nine years of state prison at
Pelican Bay—indicated he was no longer a danger to society. She
asked the court to reduce his attempted first degree murder
conviction to attempted second degree murder and sentence him
to time served. In the alternative, she requested the court strike
all the firearm enhancements pursuant to section 1385 and
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sentence him concurrently on the robbery counts, for a total term
of 17 years to life in state prison.
The prosecutor opposed sentencing Washington to time
served and urged the court to reimpose Washington’s original
sentence except for the now-invalid one-year prison priors. He
highlighted the violence involved in Washington’s crime spree,
“basically sticking the gun in the face of people at vulnerable
times; when they’re by themselves,” and the “incredible
callousness” Washington showed by shooting the victim who
asked to retain his wallet once it was emptied because it had
belonged to a deceased friend. He argued that while it was
commendable that Washington had done well in prison,
commuting the sentence to time served would be inconsistent
with the facts found by the jury.
The court concluded striking all the firearm enhancements
would endanger public safety, noting that of all the nonhomicide
cases the court had handled, “this is probably one of the worst.”
The court pointed out Washington committed numerous
robberies, most with a gun; all the victims were particularly
vulnerable in that they usually were alone, at night, in
residential driveways or garages; and Washington exploited their
vulnerability to rob them. The crimes involved great violence,
great bodily harm, threats of great bodily harm, and acts
disclosing a high degree of cruelty, viciousness or callousness.
Washington used more force than was necessary to accomplish
the robbery, choosing to violate, terrorize, and injure his victims;
and, most egregiously, he shot and nearly killed the compliant
victim who merely asked to keep a wallet. Moreover, Washington
had engaged in essentially continuous criminal conduct from
1990 to 2015, racking up 11 felony convictions and 13
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misdemeanor convictions, serving six separate prison terms, and
performing poorly on probation and parole.
Although the court concluded dismissing the gun
enhancements in their entirety would endanger public safety, it
dismissed the firearm enhancements attached to the robbery
counts in recognition of Washington’s outstanding conduct in
prison. The court struck the six section 667.5, subdivision (b)
priors. It reimposed the original indeterminate sentence on
count 7, seven years to life plus 25 years to life under section
12022.53, subdivision (d). The court reimposed the upper term
sentence of five years on count 1 and sentenced him to one year,
consecutive, for each of the remaining robbery convictions, for a
total determinate sentence of 10 years. Washington’s total
sentence was 42 years to life in state prison. He appeals.
DISCUSSION
I. Upper Term Sentence on Count 1
Section 1170, subdivision (b)(2) establishes a presumptive
midterm determinate sentence and permits imposition of upper
term sentences only when the facts underlying aggravating
circumstances have been stipulated to by the defendant or found
true beyond a reasonable doubt at trial. At resentencing
hearings triggered by a sentence that includes prior prison term
enhancements that are no longer valid, section 1172.75,
subdivision (d)(4) provides, “Unless the court originally imposed
the upper term, the court may not impose a sentence exceeding
the middle term unless there are circumstances in aggravation
that justify the imposition of a term of imprisonment exceeding
the middle term, and those facts have been stipulated to by the
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defendant, or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.”
The appellate courts are split on how to reconcile these two
statutes. (See People v. Brannon-Thompson (2024)
104 Cal.App.5th 455 (Brannon-Thompson); People v. Gonzalez
(2024) 107 Cal.App.5th 312 (Gonzalez).) On the one hand, the
Brannon-Thompson court held that section 1172.75, subdivision
(d)(4) creates an exception to section 1170, subdivision (b)(2)’s
burden of proof requirement for the imposition of an upper term
sentence in those cases in which an upper term was imposed at
the original sentencing, finding it evident from the statute’s plain
language that “the Legislature intended the new burden of proof
amendments to section 1170, subdivision (b) apply only if the
trial court is imposing the upper term for the first time at a
section 1172.75 resentencing.” (Brannon-Thompson, at pp. 466–
467; see also People v. Mathis (2025) 111 Cal.App.5th 359, 373–
374, review granted Aug. 13, 2025, S291628 (Mathis).)
On the other hand, the Gonzalez court held section 1170,
subdivision (b)(2)’s burden of proof requirement applies when
reimposing an upper term at a section 1172.75 resentencing
hearing. (Gonzalez, supra, 107 Cal.App.5th at p. 331.) That
court understood the first clause of section 1172.75, subdivision
(d)(4) to define the class of defendants eligible for an upper term
sentence—only those who were originally sentenced to such a
term—while the second clause incorporates section 1170,
subdivision (b)(2)’s burden of proof requirement, which must be
applied before the court may reimpose an upper term sentence.
(Gonzalez, at pp. 329–331.)
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The California Supreme Court will consider the question in
People v. Eaton, review granted May 14, 2025, S289903. Until we
receive the Supreme Court’s guidance on this topic, we agree with
and follow Brannon-Thompson’s interpretation of section
1172.75, subdivision (d)(4). Section 1172.75, subdivision (d)(4)’s
first clause, “Unless the court originally imposed the upper term,”
expressly excepts a class of defendants—those originally
sentenced to an upper term—from the second clause’s burden of
proof requirement. Thus, if a defendant was originally sentenced
to an upper term, section 1172.75, subdivision (d)(4) allows the
court to reimpose the upper term at resentencing, without
engaging in any factfinding or otherwise complying with section
1170, subdivision (b)’s burden of proof requirements for imposing
an upper term sentence. (Brannon-Thompson, supra,
104 Cal.App.5th at pp. 466–467; Mathis, supra, 111 Cal.App.5th
at p. 374; see also People v. Moss (2026) 120 Cal.App.5th 375, 380
[Legislature intended § 1172.75, subd. (d)(4) “to limit the
otherwise broad, ameliorative scope of a section 1172.75
resentencing, and . . . [it] could so limit the scope of relief for
defendants with already-imposed, proper upper term sentences
without generating new constitutional concerns under
Apprendi” v. New Jersey (2000) 530 U.S. 466].)
Washington contends our construction of section 1172.75,
subdivision (d)(4) violates his constitutional right to equal
protection. Specifically, he argues defendants resentenced under
section 1172.75, and who therefore are subject to the section
1172.75, subdivision (d)(4) exception, are similarly situated to
and treated differently than defendants whose unauthorized
sentences are corrected and defendants who are resentenced
pursuant to section 1170.18 or section 1172.1, to whom the
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section 1172.75, subdivision (d)(4) exception does not apply. He
argues the disparate treatment of resentenced defendants
violates equal protection because “[t]he Legislature has
arbitrarily chosen to make the sentencing procedure for
defendants resentenced under section 1172.75 more difficult than
for other defendants who are resentenced.”
Washington acknowledges, and we agree, that because his
equal protection challenge does not implicate a suspect class or a
fundamental right, rational basis review applies. (See People v.
Hardin (2024) 15 Cal.5th 834, 847 (Hardin).) “Under this
deferential standard, we presume that a given statutory
classification is valid ‘until the challenger shows that no rational
basis for the unequal treatment is reasonably conceivable.’
[Citation.] The underlying rationale for a statutory classification
need not have been ‘ever actually articulated’ by lawmakers, nor
‘be empirically substantiated.’ [Citation.] Evaluating potential
justifications for disparate treatment, a court reviewing a statute
under this standard must ‘treat the statute’s potential logic and
assumptions far more permissively than with other standards of
constitutional or regulatory review.’ [Citation.] ‘If a plausible
basis exists for the disparity, courts may not second-guess its
“ ‘wisdom, fairness, or logic.’ ” ’ ” (Id. at p. 852.)
Given the purpose and operation of section 1172.75, we can
easily conceive of a rational basis for its disparate treatment of
defendants resentenced under that law whose original sentence
imposed upper terms. The Legislature’s “primary concern” in
enacting section 1172.75 was “not merely with sentencing
uniformity in the abstract” but to align the treatment of
defendants with section 667.5, subdivision (b) prior prison term
enhancements (other than for sexually violent offenses) imposed
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before 2020—when those enhancements were still valid—with
the treatment of those sentenced after 2020, when such
enhancements were eliminated prospectively. (People v. Rhodius
(2025) 17 Cal.5th 1050, 1066 (Rhodius).) The Legislature
rationally could have concluded section 1172.75 advanced its goal
to retroactively eliminate prior prison term enhancements while
providing defendants the benefit of ameliorative changes to the
law, therefore including the factfinding requirements for
imposition of a new upper term while conserving judicial
resources by exempting existing upper term sentences from the
new factfinding requirements. (See People v. Chatman (2018)
4 Cal.5th 277, 290 [preserving governmental resources is a
legitimate state interest], modified on other grounds in Hardin,
supra, 15 Cal.5th at pp. 850–851.) The law’s disparate treatment
of certain classes of defendants serves the legitimate goal of
judicial economy by avoiding retrials on aggravating factors
already found true under a constitutionally valid sentencing
scheme.
The fact that the law fails to achieve uniformity of
sentencing across all classes of defendants does not reflect
arbitrary treatment for purposes of an equal protection claim.
“[A]ny retroactive sentencing remedy confined to a particular
group of defendants will inevitably undermine uniformity in
some ways—even as it promotes it in others.” (Rhodius, supra,
17 Cal.5th at p. 1066.) Because the challenged classification
bears a reasonable relationship to a legitimate state purpose,
Washington’s equal protection claim fails.
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II. Failure to Dismiss Section 12022.53, Subdivision (d)
Enhancement
When the Legislature amended section 1385 in 2021 to give
trial courts the authority to dismiss sentence enhancements in
the furtherance of justice, it also established a series of
mitigating circumstances, which, if proven, “weigh[] greatly in
favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.”
(§ 1385, subd. (c)(2); Stats. 2021, ch. 721, § 1.) First in the list of
mitigating circumstances is that “[a]pplication of the
enhancement would result in a discriminatory racial impact as
described in paragraph (4) of subdivision (a) of Section 745,” the
California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1)
(RJA). (§ 1385, subd. (c)(2)(A).)
The RJA, enacted to eliminate racial bias from California’s
criminal justice system and to ensure race plays no role in
seeking or obtaining convictions or in sentencing, prohibits the
state from seeking or obtaining a criminal conviction, or seeking,
obtaining, or imposing a sentence, on the basis of race, ethnicity,
or national origin. (People v. Wilson (2024) 16 Cal.5th 874, 944–
945 (Wilson).) Section 745, subdivision (a)(4), the portion of the
RJA to which section 1385, subdivision (c)(2)(A) refers, provides
that the RJA is violated when a “longer or more severe sentence
was imposed on the defendant than was imposed on other
similarly situated individuals convicted of the same offense, and
longer or more severe sentences were more frequently imposed
for that offense” either “on people that share the defendant’s race,
ethnicity, or national origin than on defendants of other races,
ethnicities, or national origins” (§ 745, subd. (a)(4)(A)), or “on
defendants in cases with victims of one race, ethnicity, or
12
national origin than in cases with victims of other races,
ethnicities, or national origins” (id., subd. (a)(4)(B)), in the county
where the sentence was imposed.
While the trial court must “consider and afford great
weight to evidence offered by the defendant to prove” a mitigating
circumstance applies, it is the defendant’s duty to present such
evidence. (§ 1385, subd. (c)(2).) Washington offered no evidence
tending to prove the imposition of the firearm enhancements
would result in a discriminatory racial impact as described in
section 745, subdivision (a)(4). The RJA was a mere conclusory
phrase in the motion for resentencing: Washington did not devote
even a single sentence to it, much less identify which racially
disparate impact was being asserted—section 745, subdivision
(a)(4)(A) or (B), or both—and none of the evidence submitted with
the resentencing motion pertained to the racial impact of any
charges or enhancements. Consistent with this cursory claim, at
the resentencing hearing Washington’s counsel acknowledged she
did not “have any specifics,” just a “general argument” that
California “prisons are overwhelmingly filled with people of, you
know, African American and Latin American descents,” and then
she offered her personal beliefs that “you don’t see” the firearms
enhancements for these armed robberies and attempted murder
imposed in the present day like they were in 2015 and that this
case would have “settled or somehow dispo’d in today’s day.”
Counsel’s general observation concerning population
percentages in the California prison system as a whole and her
anecdotal belief that attitudes toward firearm enhancements
have changed fall far short of evidence that failing to dismiss the
firearm enhancements would result in a longer or more severe
sentence being imposed on Washington than was imposed on
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other similarly situated individuals convicted of the same
offenses, and longer or more severe sentences were more
frequently imposed for those offenses either on Black defendants
as opposed to defendants of other races, ethnicities, or national
origin (§ 745, subd. (a)(4)(A)), or on defendants in cases with
victims of one race, ethnicity, or national origin than in cases
with victims of other races, ethnicities, or national origins (id.,
subd. (a)(4)(B)) in Los Angeles County. Simply put, Washington
did not give the court any evidence for it to “consider and afford
great weight to” (§ 1385, subd. (c)(2)) when determining whether
he had proven the existence of this mitigating factor. The trial
court, therefore, did not err when it declined to dismiss the
firearm enhancements on this ground.2
Apparently recognizing this evidentiary void, Washington
requests we take judicial notice of a 2023 report entitled,
“Sentence Enhancements in California,” by the Committee on
Revision of the Penal Code. He asserts this court may judicially
notice this document because it is a report by a government
agency (Evid. Code, § 452, subd. (c); People v. Fuentes (2023)
87 Cal.App.5th 1286, 1298, fn. 10), and he claims its contents are
sufficient to make a prima facie showing of a violation of the RJA.
We deny the request to take judicial notice of this
document, which was not part of the record at the time the
judgment was entered. “ ‘[A]n appellate court generally is not the
forum in which to develop an additional factual record.’ ” (People
2 The trial court ultimately dismissed all but one of the
firearm enhancements in recognition of Washington’s flawless
disciplinary record in state prison, leaving only the 25-year-to-life
enhancement imposed under section 12022.53, subdivision (d) to
be considered on appeal.
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v. Castillo (2010) 49 Cal.4th 145, 157.) “ ‘[A]n appeal reviews the
correctness of a judgment as of the time of its rendition, upon a
record of matters which were before the trial court for its
consideration.’ [Citation.] This rule reflects an ‘essential
distinction between the trial and the appellate court . . . that it is
the province of the trial court to decide questions of fact and of
the appellate court to decide questions of law.’ ” (In re Zeth S.
(2003) 31 Cal.4th 396, 405.) Therefore, “ ‘[r]eviewing courts
generally do not take judicial notice of evidence not presented to
the trial court’ absent exceptional circumstances.” (Haworth v.
Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) Washington
does not contend any exceptional circumstances apply, and we do
not perceive any justification to deviate from this general rule.
Moreover, even if we were to take judicial notice of this report,
doing so would not establish the truth of its contents. (Castillo,
at p. 157 [“although ‘courts may notice official acts and public
records, “we do not take judicial notice of the truth of all matters
stated therein” ’ ”].)
Finally, we note that Washington inaccurately treats this
appeal as though it were an appeal from the denial of a petition
made under section 745, subdivision (b), as he requests remedies
under section 745 and suggests this court remand the matter to
the trial court with directions to order a remedy for the violation
of the RJA or for an evidentiary hearing. Washington, however,
did not file a motion pursuant to section 745, subdivision (b)—he
filed a motion for resentencing pursuant to section 1172.75 that
briefly referenced “racially disparate application” under section
1385, subdivision (c)(2)(A) as a mitigating factor in support of his
request that enhancements be dismissed at resentencing. RJA
claims may be raised on direct appeal only if they are based on
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the trial record (§ 745, subd. (b); Wilson, supra, 16 Cal.5th at
p. 948 [defendant “may raise an RJA claim on direct appeal from
the conviction or sentence, provided the claim is based on the
trial record”]), and here, Washington has attempted to present
evidence outside the trial record by means of judicial notice.
Under section 745, subdivision (b), the proper method for raising
“extrarecord RJA claims” is a petition for habeas corpus, the
“standard vehicle for developing and presenting claims of error in
the judgment based on evidence outside the appellate record.”
(Wilson, at pp. 948, 960; see id. at p. 955 [RJA’s habeas provision
allows “defendants whose RJA claims are independent of the
claims on appeal a timely opportunity to raise extrarecord RJA
claims without regard to the status of proceedings on appeal”].)
Without prejudice to Washington raising RJA claims by petition
of habeas corpus, we decline his request on direct appeal that we
grant relief for an RJA violation or remand for further
proceedings under the RJA.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J. SCHERB, J.
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