Filed 8/6/26 P. v. Bravo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090202
Plaintiff and Respondent,
(Super. Ct. No. SC051602A)
v.
JUBENAL PORRAS BRAVO,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Andrew
Kendall, Judge.
John F. Schuck, 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
Anna J. Benham, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
At a resentencing hearing required by Penal Code section 1172.75,1 the trial court
declined to exercise its discretion under section 1385 to strike or reduce the firearm
enhancement imposed under section 12022.5, subdivision (a), and reimposed the upper
term sentences on two counts stayed under section 654. As explained herein, the
People’s argument that the trial court lacked jurisdiction to resentence appellant under
section 1172.75, subdivision (f) (section 1172.75(f)) is foreclosed under this court’s
recent decision in People v. Robinson (2026) 120 Cal.App.5th 516, 521, review granted
July 15, 2026, S297048 (Robinson), and we conclude that appellant forfeited his claims
of sentencing errors, as he neither argued the issues nor objected to the trial court’s
exercise of its sentencing discretion on the ground he now advances on appeal (People v.
Fruits (2016) 247 Cal.App.4th 188, 208 (Fruits)). Finally, appellant has not carried his
burden to show counsel’s failure to make sentencing objections constituted ineffective
assistance of counsel (IAC).
Accordingly, we affirm the judgment.
BACKGROUND
I. Factual Background2
On August 27, 1992, appellant stopped to talk to Sonia, an acquaintance. Sonia
saw that he was driving a white truck. Appellant asked her if she knew of a vehicle he
could borrow because he was having problems with his truck. Sonia called a friend to
borrow a car, and Sonia and appellant took appellant’s truck to pick up the borrowed car.
After fueling the cars, appellant traded vehicles with Sonia; she got back into her own
car, and left.
1 All statutory references are to the Penal Code unless otherwise noted.
2 The facts of the underlying offenses are drawn from this court’s opinion in appellant’s
direct appeal, and they are set out only for the purpose of context. (People v. Bravo
(Mar. 21, 1995, F019992) [nonpub. opn.].)
2.
The next day, Sonia received a call from appellant asking her to meet him. Sonia
agreed and, after meeting, the two returned Sonia’s car to the woman babysitting Sonia’s
son. Upon dropping off the car, Sonia got into the passenger seat of appellant’s truck.
Once in the cab, she heard the victim’s voice (another man she knew) coming from the
tool box in the bed of the pickup truck just behind her. Sonia asked appellant what was
going on, but he said nothing.
Appellant drove to a gas station, took a gun out, and told Sonia to pay for gas and
pump it. While Sonia was pumping gas, she saw appellant in the bed of the truck
kneeling next to the tool box. She again heard the victim’s voice, although she did not
pay attention to the conversation the two men were having. Once she paid for the gas,
appellant told Sonia to drive the truck, and appellant got in on the passenger side. He had
the gun with him the entire time, including when he was talking to the victim in the bed
of the pickup truck. Appellant instructed Sonia where to drive, and eventually they ended
up on a dirt road into some orange groves. Appellant instructed her to stop the truck, and
he ordered her to stay inside while pointing the gun toward her. Appellant got out of the
vehicle.
Sonia felt the back of the truck move when appellant jumped in the back. She did
not look through the rearview mirror; she stayed frozen. She could hear a scratch-like
movement, and she heard the victim and appellant talking to each other, but she could not
hear precisely what they said. She thought the two were arguing. Sonia next heard
gunfire behind her. She opened the door, but appellant yelled at her to get back in the
truck, which she did. Sonia heard an attempt to fire the gun three times: there was a shot
the first time, but the second time the gun apparently misfired, and the third sound she
heard was a second gunshot. In all, Sonia heard two gunshots in a matter of seconds.
A few minutes later, appellant sat in the passenger seat and Sonia again saw the
gun. Appellant was pointing the gun at her and telling her to drive. When Sonia turned
on the headlights, appellant told her to turn them off. She asked him what was going on
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and what appellant had done, but he told her to shut up. He told her to drive, and they got
on a freeway and drove toward Los Angeles.
Appellant kept the gun in his lap as Sonia drove; they stopped at a gas station,
where Sonia went inside to pay for gas. Appellant came into the store and gave her
money to pay. Sonia walked back outside to the truck, and appellant pumped the gas.
Sonia then kept driving south toward Los Angeles. She remembered driving past Magic
Mountain and past San Fernando, but she could not remember which freeway—she
merely followed appellant’s instructions.
They eventually exited the freeway in an area with storage buildings and factories,
but no residences nearby. Appellant exited the truck and told Sonia to stay in the truck.
Sonia heard appellant jump in the back of the truck and she heard the back of the tool box
hit the rear window of the truck. She felt the truck moving up and down as appellant left
the bed of the truck. She did not turn around or look over her shoulder, and she did not
look through the rearview mirror. She held her head down and cried, fearful that
something would happen to her. She did not see the victim again after the shots, and she
and appellant drove back to Bakersfield. They stopped at two different self-service car
washes where appellant washed the truck. He also took some trash out of the back of the
truck and threw it in a trash can. She saw blood next to the tool box.
When they arrived back at Sonia’s home, appellant threatened Sonia and her
family with death if she told anyone. He told her a story to tell if the police ever came to
talk to her. Appellant warned her not to tell anyone else what happened. He also called
her the next day and warned her not to tell anyone what happened. He stopped by her
house once or twice before she eventually talked to the police.
An information filed in October 1992 by the Kern County District Attorney
charged appellant with the willful, deliberate and premeditated murder of Carlos
Ascencio. Attached to the murder charge was a firearm enhancement under
section 12022.5, subdivision (a). A kidnapping special circumstance allegation was also
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attached to the murder charge, as well as an allegation appellant had served a prior prison
term within the meaning of section 667.5, former subdivision (b). Appellant was charged
in count 2 with Carlos Ascencio’s kidnapping (§ 207, subd. (a)), plus a prior prison term
enhancement (§ 667.5, former subd. (b)). Appellant was charged in count 3 with being a
felon illegally in possession of a firearm (repealed § 12021, subd. (a)), plus a prior prison
term enhancement (§ 667.5, former subd. (b)).
The case proceeded to a jury trial in February 1993. The jury found appellant
guilty of all the offenses charged, and found true the special circumstance kidnapping
allegation, and the firearm enhancement allegation. In a bifurcated proceeding, the trial
court found true the allegations that appellant had served a prior prison term as to
counts 1 and 2. In June 1993, appellant was sentenced to life without the possibility of
parole (LWOP) on count 1, plus an additional four years for the firearm enhancement.
The trial court imposed the upper term of eight years on count 2, but stayed execution
under section 654. The trial court also imposed the upper term of three years on count 2,
and likewise stayed execution under section 654. The judgment was affirmed in all
respects on appeal.
II. Petition Proceedings Under Section 1172.75
Section 667.5, subdivision (b), provides for a prison prior enhancement. As
originally enacted, this statute required trial courts to impose a one-year enhancement for
any felony for which a prison sentence was imposed, unless the defendant had remained
free of custody for at least five years after completing that sentence. (Stats. 1976,
ch. 1139, § 268, pp. 5137–5139; Stats. 2011, ch. 15, § 442 [extending § 667.5, former
subd. (b) to include county jail sentences of more than one year].) Effective January 1,
2020, section 667.5 was amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) to limit
the prior prison term enhancement to prior terms imposed only for sexually violent
offenses. Enhancements based on prior prison terms served for other offenses became
legally invalid. In 2021, Senate Bill No. 483 (2021–2022 Reg. Sess.) was enacted, which
5.
made the changes implemented by Senate Bill No. 136 retroactive, and added to the
Penal Code former section 1171.1, which is currently section 1172.75. (Stats. 2021,
ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
In its present form, section 1172.75 charges the Secretary of the Department of
Corrections and Rehabilitation (CDCR) with identifying prisoners serving time under
judgments that included the now-invalid section 667.5, subdivision (b), enhancements,
and notifying the court that pronounced judgment. (§ 1172.75, subd. (b).)
Section 1172.75 requires the sentencing court to review such judgments and, if it includes
a now-invalid enhancement, to recall the sentence and resentence the defendant. (Id.,
subd. (c).) Decisional law recognizes that defendants who are eligible for relief under
section 1172.75 are entitled to a full resentencing. (People v. Monroe (2022) 85
Cal.App.5th 393, 402 [“[b]y its plain terms, section 1172.75 requires a full resentencing,
not merely that the trial court strike the newly ‘invalid’ enhancements”].) The statute
mandates that resentencing pursuant to this section “shall result in a lesser sentence than
the one originally imposed as a result of the elimination of the repealed enhancement,
unless the court finds by clear and convincing evidence that imposing a lesser sentence
would endanger public safety.” (§ 1172.75, subd. (d)(1).) The trial court is required to
“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 disparity of
sentences and to promote uniformity of sentencing.” (Id., subd. (d)(2).)
Pursuant to this resentencing statute, appellant was identified by the CDCR as a
person potentially eligible for resentencing. Appellant was assigned counsel, and the
matter proceeded to a sentencing hearing on July 11, 2025. At the sentencing hearing,
the court admitted several defense exhibits in support of the defense request that the trial
court strike the firearm enhancement: Exhibit No. A was a copy of appellant’s security
level reclassification score sheets; exhibit No. B was appellant’s educational progress
6.
records; and exhibit No. C was confidential mitigation information, which included
mental health records.
The court also admitted two exhibits from the prosecution: (1) a certified copy of
appellant’s rap sheet and (2) prison disciplinary records. The court noted the rap sheet
showed that appellant served two years in prison for a violation of Health and Safety
Code section 11351, and he was then on parole when his current offenses occurred. The
prosecution’s second exhibit included appellant’s prison disciplinary records showing a
battery on a correctional officer in August 2023 where appellant threw a cup of tomato
juice out of his food port onto the leg and foot of a correctional officer. In considering a
loss of privileges at a due process hearing, prison officials found in mitigation that
appellant had serious mental-health challenges, and taking away family visiting
privileges might exacerbate his mental health issues.
The trial court struck the two prior prison term enhancements, but reimposed
LWOP on count 1, declined to strike the attached firearm enhancement under
section 1385, and reimposed the upper term sentences on counts 2 and 3, which remained
stayed under section 654. This appeal followed.
DISCUSSION
Appellant claims the trial court abused its discretion in declining to strike the
section 12022.5, subdivision (a), firearm enhancement pursuant to section 1385,
subdivision (c), and appellant also claims the court erred in reimposing the upper term
sentences on counts 2 and 3.
In response to appellant’s claims of resentencing error under section 1172.75, the
People argue the appeal must be dismissed because section 1172.75(f) (added to
§ 1172.75 under Sen. Bill No. 285 (2023–2024 Reg. Sess.) (Stats. 2024, ch. 979, § 2))
precludes from resentencing relief those defendants who are sentenced to death or
LWOP. The People maintain this subdivision, along with the other provisions of the
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statute and the legislative history underlying subdivision (f), confirm the Legislature’s
intent to exclude LWOP defendants from resentencing under section 1172.75.
I. The Trial Court Did Not Lack Jurisdiction to Resentence
Section 1172.75(f) provides as follows: “Commencing on January 1, 2025, an
individual who has been convicted of a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to
death or a life term without the possibility of parole, who, as of January 1, 2025, has not
had their judgment reviewed and verified by the sentencing court as provided in
subdivision (c), is not eligible for recall and resentencing under this section. This
subdivision does not apply retroactively.” (Added by Sen. Bill No. 285 (2023–2024 Reg.
Sess.), eff. Jan. 1, 2025.)
The People contend section 1172.75(f)’s use of the conjunction and in describing
the group of defendants who are to be excluded from resentencing should be understood
disjunctively to mean or. Specifically, the People interpret the phrase an individual who
has been convicted of a sexually violent offense in subdivision (b) of section 6600 of the
Welfare and Institutions Code and sentenced to death or a life term without the
possibility of parole to mean an individual who has been convicted of a sexually violent
offense in subdivision (b) of section 6600 of the Welfare and Institutions Code or
sentenced to death or to LWOP. In other words, the People understand
section 1172.75(f) to exclude from resentencing, under the time parameters given, any
defendant with a qualifying sexual offense or sentenced to death or LWOP. Although
appellant has not been convicted of a qualifying sexual offense, the People claim he is
nonetheless ineligible for resentencing under section 1172.75(f) because he is sentenced
to LWOP.
In Robinson, this court addressed the same statutory arguments that the People
advance here with respect to jurisdiction. After interpreting section 1172.75, Robinson
held, “[S]ubdivision (f) of section 1172.75 must be construed conjunctively to exclude
8.
from resentencing only those individuals who have been convicted of a qualifying
sexually violent offense and sentenced to death or [LWOP].” (Robinson, supra, 120
Cal.App.5th at p. 529, review granted.) There is no dispute that although appellant was
sentenced to LWOP in this case, he did not commit a qualifying sexually violent offense.
Therefore, the trial court had jurisdiction under section 1172.75. (Robinson, supra, at
p. 529, review granted.)
II. Appellant’s Sentencing Claims Were Forfeited
It is undisputed appellant made no objection at the sentencing hearing to the
aspects of the sentence he now challenges on appeal. For the reasons that follow, we
conclude each of his sentencing claims were forfeited.
A. Forfeiture Doctrine
“‘A party in a criminal case may not, on appeal, raise “claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing choices” if the
party did not object to the sentence at trial. [Citation.] The rule applies to “cases in
which the stated reasons allegedly do not apply to the particular case, and cases in which
the court purportedly erred because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or give a sufficient number
of valid reasons .…”’” (People v. Scott (2015) 61 Cal.4th 363, 406.) “Strong policy
reasons support this rule: ‘It is both unfair and inefficient to permit a claim of error on
appeal that, if timely brought to the attention of the trial court, could have been easily
corrected or avoided. [Citations.]’ [Citation.] ‘“‘“The law casts upon the party the duty
of looking after his legal rights and of calling the judge’s attention to any infringement of
them. If any other rule were to obtain, the party would in most cases be careful to be
silent as to his objections until it would be too late to obviate them, and the result would
be that few judgments would stand the test of an appeal.”’”’” (People v. Stowell (2003)
31 Cal.4th 1107, 1114 (Stowell); accord, People v. Salazar (2016) 63 Cal.4th 214, 239–
240; People v. French (2008) 43 Cal.4th 36, 46.)
9.
“‘[D]iscretion to excuse forfeiture should be exercised rarely and only in cases
presenting an important legal issue.’” (In re Sheena K. (2007) 40 Cal.4th 875, 887–888,
fn. 7 (Sheena K.).) Absent a substantive change in the law that applies retroactively (e.g.,
People v. Salazar (2023) 15 Cal.5th 416, 431–432; People v. Stamps (2020) 9 Cal.5th
685, 698–699), or an extenuating circumstance such as the futility of objecting under the
then-governing substantive law (e.g., People v. Perez (2020) 9 Cal.5th 1, 7–8; People v.
Brooks (2017) 3 Cal.5th 1, 92), neither of which is at issue here, the policy reasons
underlying the forfeiture doctrine fully support its application where a defendant remains
silent in the trial court when sentenced and then seeks to obtain appellate relief based on
an asserted sentencing error that could have been raised at the time of sentencing.
(People v. Scott (1994) 9 Cal.4th 331, 356 [“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”).
B. Firearm Enhancement
Appellant argues the trial court abused its discretion in finding that dismissal of
the firearm enhancement would endanger public safety pursuant to section 1385,
subdivision (c), because the court failed to consider his LWOP sentence.
1. Section 1385
Section 1385 permits the trial court to dismiss an enhancement in furtherance of
justice. (Id., subd. (a).) As amended by Senate Bill No. 81 (2021–2022 Reg. Sess.),
effective January 1, 2022, section 1385, subdivision (c)(1), provides, “Notwithstanding
any other law, the court shall dismiss an enhancement if it is in the furtherance of justice
to do so, except if dismissal of that enhancement is prohibited by any initiative statute,”
and “[i]n exercising its discretion under this subdivision, the court shall consider and
afford great weight to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of
one or more of these circumstances weighs greatly in favor of dismissing the
10.
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of
the enhancement would result in physical injury or other serious danger to others” (id.,
subd. (c)(2), italics added).
Section 1385, subdivision (c)(2), provides the following mitigating circumstances:
“(A) Application of the enhancement would result in a discriminatory racial
impact as described in paragraph (4) of subdivision (a) of Section 745.
“(B) Multiple enhancements are alleged in a single case. In this instance, all
enhancements beyond a single enhancement shall be dismissed.
“(C) The application of an enhancement could result in a sentence of over 20
years. In this instance, the enhancement shall be dismissed.
“(D) The current offense is connected to mental illness.
“(E) The current offense is connected to prior victimization or childhood trauma.
“(F) The current offense is not a violent felony as defined in subdivision (c) of
Section 667.5.
“(G) The defendant was a juvenile when they committed the current offense or
any prior offenses, including criminal convictions and juvenile adjudications, that trigger
the enhancement or enhancements applied in the current case.
“(H) The enhancement is based on a prior conviction that is over five years old.
“(I) Though a firearm was used in the current offense, it was inoperable or
unloaded.”
Pursuant to section 1385, subdivision (c)(5), “A court may conclude that a
defendant’s mental illness was connected to the offense” for purposes of
subdivision (c)(2)(D) if, after reviewing all relevant materials, “the court concludes that
the defendant’s mental illness substantially contributed to the defendant’s involvement in
the commission of the offense.”
11.
2. Analysis
In declining to strike the firearm enhancement, the court found “by clear and
convincing evidence that [appellant] remains a danger to public safety. Even while
medicated, complying with his medications, in a controlled environment, he still engaged
in a battery. Combined with the fact the extraordinary seriousness of the underlying
offense, even with 30-some years with treatment—even if you believe maybe his
treatment really only became successful in 2018, [when] the involuntary medication order
was lifted and he’s complied with his medications. Even just taking that into account
over the past seven years—just five years into that, 2023, he engaged in a battery.
“So whether it was volitional or not—and certainly I don’t fault the due-process
hearing for finding items in mitigation, but I think it shows that he has an inability to
control his dangerous behavior. Court[] finds him to be a danger to public safety to lift
the [section] 12022.5 enhancement. The request to do so is denied.”
As noted, it is undisputed appellant did not object to the trial court’s public safety
finding in declining to dismiss the firearm enhancement under section 1385,
subdivision (c).
On appeal, relying on People v. Gonzalez (2024) 103 Cal.App.5th 215, appellant
contends the court focused on past events in assessing appellant’s risk to public safety,
and it failed to consider whether dismissing the enhancements would endanger future
public safety given his LWOP term. (Id. at pp. 230–231.) In People v. Gonzalez, which
was decided approximately a year before the resentencing hearing in this case, the
defendant claimed several mitigating circumstances applied, and the Court of Appeal
found “the trial court erred because it considered only whether [the defendant] currently
posed a danger to the public when assessing if a dismissal of the firearm enhancement
would ‘endanger public safety.’” (Id. at p. 230, quoting § 1385, subd. (c)(2).) The court
explained, “Although the current dangerousness of the defendant is an appropriate factor
to consider, as it will have some bearing on whether dismissing the enhancement would
12.
endanger the public, a crucial part of the inquiry is how the dismissal of the enhancement
will impact the length of the defendant’s sentence. A currently dangerous defendant who
will be released from prison within a short timeframe might be found by the trial court to
pose a greater danger to the public than a defendant who is currently dangerous but who
has no prospect of release from prison until he is elderly.” (People v. Gonzalez, supra, at
p. 228.)
As an initial matter, a general request for relief under section 1385 does not serve
to preserve appellant’s present claim that the court abused its sentencing discretion as to a
finding on public safety because it failed to assess future dangerousness in light of
appellant’s LWOP sentence. Had appellant objected to his sentence on the ground he
raises on appeal, the very error he now asserts entitles him to remand could have been
corrected or the record otherwise developed as to the issue. “[A] party cannot argue on
appeal that the trial court erred in failing to conduct an analysis it was not asked to
conduct” (Fruits, supra, 247 Cal.App.4th at p. 208, fn. omitted; accord, People v. Fuiava
(2012) 53 Cal.4th 622, 655), and strong policy reasons support application of the rule in
the situation presented in this case (Stowell, supra, 31 Cal.4th at p. 1114). Here, the
relevant amendment to section 1385 had been in effect for more than three years, and the
decision in People v. Gonzalez, supra, 103 Cal.App.5th 215 was issued approximately a
year before the resentencing hearing. Appellant neither made the argument nor objected
on the ground now advanced on appeal as supporting remand for resentencing.
Appellant argues he was entitled to dismissal of the firearm enhancement as a
matter of law because, due to his LWOP sentence, its dismissal will never endanger
public safety. Because appellant was entitled as a matter of law to dismissal of the
enhancement, the trial court’s failure to dismiss the enhancement violated appellant’s due
process rights. Appellant maintains his challenge presents a constitutional issue that may
be addressed for the first time on appeal.
13.
We disagree that appellant has a statutory entitlement to dismissal of the firearm
enhancement. Even if appellant were correct and dismissal of the firearm enhancement
could never endanger public safety due to appellant’s LWOP term, “a court retains
discretion to impose or dismiss enhancements” if it determines that countervailing factors
neutralize the great weight of any mitigating circumstances “‘such that dismissal of the
enhancement is not in furtherance of justice.’” (People v. Walker (2024) 16 Cal.5th
1024, 1029.) The trial court expressly considered countervailing factors, including the
extreme seriousness of the underlying offenses (special circumstances murder and
kidnapping), and the fact that appellant was still having difficulty controlling his behavior
despite medication in the very structured environment of prison. The trial court could
properly decline to dismiss the enhancement in the interests of justice, and thus any error
with respect to the public safety finding did not entitle appellant to dismissal of the
enhancement or implicate his due process rights. Moreover, even constitutional claims
may be forfeited if the issue is not raised below. (Sheena K., supra, 40 Cal.4th at
pp. 880–881 [“‘“a constitutional right,” or a right of any other sort, “may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it”’”].)
For these reasons, we find appellant forfeited review of his claim that the court
erred by failing to consider appellant’s LWOP sentence in assessing the danger appellant
posed to public safety.
C. Upper Term Sentences on Counts 2 and 3
Without discussing any relevant sentencing factors, the trial court reimposed the
upper term sentences on counts 2 and 3 that were originally imposed; appellant did not
object.
On appeal, appellant claims the trial court was obligated not to impose any upper
term sentences because it had concluded, with respect to the firearm enhancement, that
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the relevant mitigating and aggravating circumstances were in equipoise. The People
contend this claim is forfeited for lack of any objection.
We agree with the People. Appellant’s claim is predicated on the fact the trial
court found the sentencing factors with respect to the firearm enhancement to be in
equipoise, which appellant contends militates imposition of a middle term sentence under
section 1170, subdivision (b)(2), on all counts. This is so, appellant argues, because
implicit in its equipoise conclusion, the trial court found no aggravating circumstances
that justified an upper term sentence.3 An objection based on this reasoning could have
been interposed during the resentencing hearing where it could have been addressed.
With limited exceptions, “‘an appellate court will not consider claims of error that could
have been—but were not—raised in the trial court.’” (Stowell, supra, 31 Cal.4th at
p. 1114.) This claim of error was forfeited due to lack of an objection.
III. No IAC
Appellant argues that if the forfeiture doctrine applies due to his counsel’s failure
to object at the resentencing hearing regarding these purported errors, his counsel
rendered constitutionally IAC.
A. Legal Standard
To establish IAC on direct appeal, appellant “‘must satisfy a two-pronged
showing: that counsel’s performance was deficient, and that [he] was prejudiced, that is,
there is a reasonable probability the outcome would have been different were it not for
the deficient performance.’” (People v. Woodruff (2018) 5 Cal.5th 697, 736, quoting
People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984)
466 U.S. 668, 687 (Strickland).)
3 Appellant does not frame his claim as Sixth Amendment violation, and we decline to
extrapolate a Sixth Amendment argument where none has been made. (Paterno v. State of
California (1999) 74 Cal.App.4th 68, 106 [“An appellate court is not required to examine
undeveloped claims, nor to make arguments for parties.”], citing People v. Gidney (1937) 10
Cal.2d 138, 142–143.)
15.
“‘[T]he standard for judging counsel’s representation is a most deferential one.’
(Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter).) We ‘must indulge a “strong
presumption” that counsel’s conduct falls within the wide range of reasonable
professional assistance because it is all too easy to conclude that a particular act or
omission was unreasonable in the harsh light of hindsight.’ (Bell v. Cone (2002) 535
U.S. 685, 702.) ‘Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the client, with
opposing counsel, and with the judge.’ (Richter, at p. 105.)” (In re Long (2020) 10
Cal.5th 764, 773.)
Due to this, a “defendant’s burden [is] ‘difficult to carry on direct appeal,’ as a
reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is
affirmative evidence that counsel had ‘“‘no rational tactical purpose’”’ for an action or
omission.” (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel), quoting People v.
Lucas (1995) 12 Cal.4th 415, 437.) “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” (Strickland, supra, 466 U.S. at p. 690.) “‘[D]eciding whether to
object is inherently tactical, and the failure to object will rarely establish [IAC].’”
(People v. Carrasco (2014) 59 Cal.4th 924, 985.)
B. Firearm Enhancement: No IAC
With respect to the firearm enhancement, appellant’s counsel could have
reasonably determined that seeking a more detailed ruling on the issue of public safety or
objecting on the ground now raised on appeal would not have benefited appellant, which
forecloses any claim of IAC. Even if the court had concluded, based on an objection, the
public safety finding was not warranted, dismissal of the firearm enhancement was not
mandated. As explained by our high court in People v. Walker, “[I]f the court does not
conclude that dismissal would endanger public safety, then mitigating circumstances
strongly favor dismissing the enhancement. But ultimately, the court must determine
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whether dismissal is in furtherance of justice.” (People v. Walker, supra, 16 Cal.5th at
p. 1036, italics added.)
The trial court expressly considered countervailing factors that would weigh
against dismissal in the interests of justice (§ 1385, subd. (c)(2)), including the extreme
seriousness of the underlying offenses (special circumstances murder and kidnapping),
and the fact that appellant was still having difficulty controlling his behavior despite
medication in the very structured environment of prison. Based on the court’s discussion
of these countervailing factors, defense counsel may have reasonably concluded that any
objection to the public safety finding would not have resulted in dismissal of the
enhancement. (People v. Thompson (2010) 49 Cal.4th 79, 122 [“[c]ounsel is not
ineffective for failing to make frivolous or futile motions”].)
For these same reasons, there is no substantial likelihood of a different result had
an objection been made. (Harrington v. Richter (2011) 562 U.S. 86, 104, 112 [“[t]he
likelihood of a different result must be substantial, not just conceivable”].)
C. Upper Term Sentences on Counts 2 and 3: No IAC
1. Parties’ Arguments
As we understand appellant’s argument, when the trial court evaluated the
mitigating and aggravating sentencing factors with respect to the firearm enhancement
and concluded the respective weight of those factors was in equipoise, appellant contends
there were no aggravating factors that could justify an upper term sentence under
section 1170, subdivision (b)(2); anticipating application of the forfeiture doctrine for his
counsel’s failure to object, appellant maintains any competent attorney would have
objected to the upper term sentences on counts 2 and 3 under these circumstances, as
unsupported under section 1170, subdivision (b)(2).
Relying on People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon-
Thompson), the People argue the trial court’s reimposition of upper term sentences was
proper under section 1172.75, subdivision (d)(4). Thus, any objection to the upper term
17.
sentences on counts 2 and 3 was meritless, and defense counsel’s failure to object could
not be prejudicial under Strickland.
Appellant responds that section 1172.75, subdivision (d)(4), is not relevant
because by evaluating the mitigating and aggravating circumstances, the trial court
implicitly indicated it was not reimposing upper terms based on the original sentencing
court’s evaluation of the sentencing factors, but was instead sentencing appellant anew on
all determinate counts under section 1170, subdivision (b).
2. Additional Background
At the resentencing hearing, the trial court invited defense counsel to indicate what
resentencing relief appellant was seeking. Defense counsel explained “we’re really
talking about … setting aside the [section] 667.5[, subdivision ](b)” prior prison term
enhancement and the firearm enhancement under section 12022.5, subdivision (a) for
which a middle term of four years had been originally imposed. Defense counsel did not
mention, nor did she seek any relief from, the upper term sentences originally imposed on
counts 2 and 3.
The trial court considered the additional evidence appellant submitted at the
resentencing hearing, and the court indicated it was conducting a full resentencing. The
court struck the prior prison term enhancement, but it declined to strike the firearm
enhancement. Turning to select the term for the firearm enhancement, the court found in
mitigation that appellant had a minimal criminal history with only one conviction for
drug sales, and he completed his grant of parole as to that conviction. However,
appellant’s performance on misdemeanor probation was unsatisfactory because he
reoffended. The court concluded “the circumstances in aggravation and mitigation are
equal” and determined it would “impose the mid-term.” The court then imposed LWOP
on count 1, plus the middle term of four years for the firearm enhancement; on count 2,
for kidnapping, the court imposed an upper term sentence of eight years (§§ 207,
subd. (a), 208); and on count 3, for unlawful possession of a firearm, the court imposed
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an upper term of three years (§§ 1170, subd. (h)(1), 12022; see former § 12021). The
sentences on counts 2 and 3 were stayed under section 654.
3. Analysis
In resentencing a defendant under section 1172.75, courts have grappled with the
intersection of amended section 1170, subdivision (b)(2), and section 1172.75,
subdivision (d)(4), as it pertains to reimposing an upper term sentence. (See, e.g., People
v. Mathis (2025) 111 Cal.App.5th 359, 373, review granted Aug. 13, 2025, S291628
(Mathis).) Whether a court may reimpose a previously imposed upper term sentence
under section 1172.75, subdivision (d)(4), where the facts underlying one or more
aggravating circumstances were neither stipulated to by the defendant nor found true
beyond a reasonable doubt at trial by a jury or by the judge in a court trial is an issue now
pending resolution before the California Supreme Court. (See People v. Eaton (Mar. 14,
2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.)
Section 1172.75, subdivision (d)(2), requires a resentencing court to “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 disparity of sentences and to
promote uniformity of sentencing.” The determinate sentencing law applicable to
counts 2 and 3 has been amended since appellant was originally sentenced. Under
amended section 1170, subdivision (b)(2), a court “may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle term and the facts
underlying those circumstances 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.…”
However, section 1172.75 also provides that “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
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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).)
In Brannon-Thompson, the defendant was resentenced under section 1172.75, and
the court reimposed an upper term sentence, which the defendant argued was based on
sentencing factors not found true beyond a reasonable doubt under section 1170,
subdivision (b), as amended by Senate Bill No. 567 (2021–2022 Reg. Sess.). (Brannon-
Thompson, supra, 104 Cal.App.5th at p. 458.) On appeal, the defendant’s claim was
deemed forfeited for failure to object, and the failure to object was not IAC because,
based on the plain language of section 1172.75, subdivision (d)(4), “it is evident 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. Section 1172.75, subdivision (d)(4), is, therefore, an
exception to the general rule that the trial court must apply ameliorative changes in the
law at a section 1172.75 resentencing.” (Brannon-Thompson, supra, at pp. 466–467.)
The Court of Appeal in People v. Gonzalez (2024) 107 Cal.App.5th 312
(Gonzalez) disagreed with Brannon-Thompson. (Gonzalez, supra, at p. 330.) Gonzalez
acknowledged that Brannon-Thompson’s interpretation of section 1172.75,
subdivision (d)(4), was reasonable, but determined another reasonable interpretation
“would simply restrict the scope of defendants eligible to receive the upper term at
resentencing to those who previously received the upper term, instead of creating a
condition or exception independently justifying the imposition of the upper term. Under
such an interpretation, a defendant would be eligible for the upper term but could not
receive it in the absence of aggravating factors stipulated to by the defendant or proven
beyond a reasonable doubt to the trier of fact.” (Gonzalez, supra, at p. 329.)
Gonzalez reasoned that “reading an exemption into section 1172.75,
subdivision (d)(4), … and thereby allowing a court to resentence a defendant to an upper
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term sentence without proof beyond a reasonable doubt of aggravating factors, would run
afoul of the Sixth Amendment implications identified in Lynch.” (Gonzalez, supra, 107
Cal.App.5th at p. 330, citing People v. Lynch (2024) 16 Cal.5th 730, 768 (Lynch).)
Gonzalez explained that “[u]nder the doctrine of constitutional avoidance, a statute
should not be construed to violate the Constitution if any other construction is viable.
(People v. Garcia (2017) 2 Cal.5th 792, 804.) With that in mind, the statutory
interpretation for section 1172.75, subdivision (d)(4), which simply restricts the scope of
defendants eligible to receive the upper term, allows us to read the statute in a manner
that is internally consistent and avoids running afoul of the Sixth Amendment. Under
such an interpretation, a defendant would be eligible for the upper term but could not
receive it in the absence of aggravating factors stipulated to by the defendant or proven
beyond a reasonable doubt to the trier of fact. In other words, the same requirements for
imposing an upper term under section 1170, subdivision (b)(2) would apply, thus
eliminating any potential conflict between the statutes. As a result, section 1172.75,
subdivision (d)(2) and (4) would also not conflict, and the statutory scheme would not be
construed to violate the Sixth Amendment.” (Gonzalez, supra, at p. 330.)
Subsequently, the Court of Appeal in Mathis disagreed with Gonzalez and
followed Brannon-Thompson. (Mathis, supra, 111 Cal.App.5th at pp. 372–374, review
granted.) Mathis concluded Brannon-Thompson’s interpretation of section 1172.75,
subdivision (d)(4), did not implicate the Sixth Amendment because the defendant’s upper
term sentence comported with the law then in effect. Specifically, the court reasoned,
“[w]hen Mathis was sentenced, in 2017, his sentence was imposed pursuant to the
version of section 1170, subdivision (b), that granted the trial court broad discretion to
select any of the three applicable prison terms.” (Mathis, supra, at p. 373, review
granted.) At that time, “there was no requirement for the judge to find a particular fact to
justify imposition of the upper term” (ibid., citing Lynch, supra, 16 Cal.5th at p. 747), and
“selection of an upper term … did not run afoul of the Sixth Amendment” (Mathis,
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supra, at p. 373, review granted, citing Lynch, supra, at pp. 747–748 & Cunningham v.
California (2007) 549 U.S. 270, 294 (Cunningham)). “Where, as here, the trial court
elects to retain an upper term sentence that complied with the Sixth Amendment when
originally imposed, the court need not engage in any additional factfinding under section
1172.75, subdivision (d)(4).” (Mathis, supra, at pp. 373–374, review granted, citing
Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.)
Here, however, we need not reach the question of whether any objection to the
upper term sentences would have been meritless under section 1172.75,
subdivision (d)(4), because appellant has not carried his burden of establishing there was
no reasonable basis for counsel to forgo objection to the upper term sentences. (In re
Tellez (2024) 17 Cal.5th 77, 88 [reviewing court need not address both elements of IAC
claim if one is not satisfied].) This burden is heavy on direct appeal because “[t]he
record on appeal may not explain why counsel chose to act as he or she did. Under those
circumstances, a reviewing court has no basis on which to determine whether counsel had
a legitimate reason for making a particular decision, or whether counsel’s actions or
failure to take certain actions were objectively unreasonable.” (Mickel, supra, 2 Cal.5th
at p. 198.) In addition to this, a reviewing court must presume that counsel “‘rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment .…’” (Burt v. Titlow (2013) 571 U.S. 12, 22–23.)
Appellant has argued only summarily that no reasonably effective defense counsel
would have failed to object to the imposition of upper term sentences on counts 2 and 3.
We find that conclusory statement insufficient to establish counsel could have no
reasonable basis for foregoing objection to the upper term sentences imposed on counts 2
and 3. (Mickel, supra, 2 Cal.5th at p. 198 [the defendant bears burden of showing
counsel’s performance “‘“‘“fell below an objective standard of reasonableness … under
prevailing professional norms”’”’”].)
22.
Under the circumstances presented, defense counsel could have reasonably
concluded that objecting to the upper term sentences on counts 2 and 3 would yield no
practical benefit to appellant. It is not clear the trial court’s consideration of sentencing
factors relevant to the firearm enhancement was intended to apply to any other
determinate-term sentences. Indeed, the trial court’s failure to mention any sentencing
factors in aggravation or mitigation on counts 2 and 3 signals the trial court was
reimposing the upper terms on those counts under section 1172.75, subdivision (d)(4).
Further, even if defense counsel believed section 1172.75, subdivision (d)(4), would not
permit reimposition of upper term sentences on counts 2 and 3 without aggravating
circumstances found true by a jury either because (1) Gonzalez, supra, 107 Cal.App.5th
at pages 330–332 provided the correct interpretation of section 1172.75,
subdivision (d)(4); or (2) appellant’s original upper term sentences were imposed in 1993
under a version of section 1170 that was deemed constitutionally infirm under the Sixth
Amendment in Cunningham, supra, 549 U.S. at pages 274–275 (see Mathis, supra, 111
Cal.App.5th at p. 373, fn. 7, review granted), counsel still could have reasonably
concluded objecting would not yield a beneficial result.
Although appellant argues the aggravating and mitigating factors for counts 2 and
3 would have been the same as those considered for the firearm enhancement, the
prosecution could have asserted additional aggravating circumstances with respect to
counts 2 and 3 had appellant sought a reduction of those terms. As noted in the probation
report prior to the original sentencing, one additional aggravating factor with respect to
the kidnapping in count 2 included that appellant had threatened a witness (Cal. Rules of
Court, rule 4.421(a)(6)). Moreover, as to count 3 for unlawful possession of a firearm, it
could have been alleged that, under the circumstances here, appellant’s unlawful
possession of a firearm resulted in violent conduct that indicated a serious danger to
society (id., rule 4.421(b)(1)). Defense counsel could have reasoned that, given the
nature of the underlying crimes, there was no reasonable doubt a jury would find true any
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potential additional aggravating factors. (See People v. Price (1991) 1 Cal.4th 324, 387
[“[c]ounsel does not render [IAC] by failing to make motions or objections that counsel
reasonably determines would be futile”].)
Moreover, even if defense counsel were successful in obtaining a middle term
sentence on counts 2 and 3—an unlikely prospect—counsel could have reasonably
concluded it would result in no appreciable benefit to her client. Execution of the
sentences imposed on counts 2 and 3 was stayed under section 654. As appellant had
already served 32 years of the LWOP sentence at the time of resentencing, even if the
LWOP term were invalidated at some future time, any stayed terms that became
operative would long have been fully served, regardless of whether they were upper or
middle terms.
In sum, the record shows defense counsel was focused solely on dismissal of the
firearm enhancement, which was not a stayed sentence—counsel did not seek midterm
sentences on counts 2 and 3. Counsel may have concluded that focusing on the firearm
enhancement would be of the most benefit to appellant, which was inherently tactical and
rational. (Mickel, supra, 2 Cal.5th at p. 198.) After the trial court weighed the sentencing
factors as to the firearm enhancement, counsel could have reasonably determined there
were additional potential aggravating factors relevant to counts 2 and 3 that likely would
have been pursued by the prosecution and ultimately found true by a jury. Counsel also
could have reasonably concluded that pursuing a middle term sentence on counts 2 and 3
could not result in any appreciable benefit to appellant, either in terms of the length of
sentence or terms of confinement, and thus pursuing an objection to the upper term
sentences would have been futile. For these reasons, we are unable to conclude appellant
has carried his burden to show counsel could have had no rational tactical basis to forgo
an objection, which is fatal to appellant’s IAC claim. (Id. at p. 200.)
24.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
DETJEN, Acting P. J.
SNAUFFER, J.
25.