Filed 7/22/26 P. v. Cedeno CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F088424
Plaintiff and Respondent,
(Super. Ct. No. F21904240)
v.

DAVID CEDENO, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
Janice M. Lagerlof, 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, Amanda D. Cary and
Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Defendant David Cedeno was convicted of first degree murder and possession of a
firearm by a felon. The jury found the firearm and gang enhancement allegations true.
On appeal, he contends the court erred by: (1) admitting gang evidence in the
prosecution’s case-in-chief; (2) allowing a law enforcement officer to identify defendant
as the shooter based on a review of surveillance footage; and (3) declining to dismiss the
firearm enhancement under Penal Code1 section 1385. Additionally, he requests we
order modification of the trial court’s sentencing minutes to reflect the court’s intent to, at
most, impose the minimum restitution fine ($300) under section 1202.4. He also requests
we order modification of the trial court’s abstract of judgment to strike the imposition of
two ancillary costs, specifically, an $80 court operations fee (§ 1465.8) and a $60
conviction fee (Gov. Code, § 70373).
While this appeal was pending, the California Supreme Court issued People v.
Kopp (2025) 19 Cal.5th 1 (Kopp). We ordered the parties to file supplemental briefing
addressing: whether the trial court’s failure to impose or strike the ancillary costs
resulted in an unauthorized sentence or otherwise constituted error; and what is the
appropriate remedy?
We remand for the limited purpose of allowing the trial court to conduct a hearing
on whether to impose the ancillary costs in light of Kopp. We otherwise affirm the
judgment.
PROCEDURAL SUMMARY
On May 9, 2024, the District Attorney of Fresno County filed a first amended
information charging defendant with the murder of Elizandro Diaz (§ 187, subd. (a);
count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). As to
count 1, it was alleged a principal personally and intentionally discharged a firearm
causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)), and the offense was

1 All further statutory references are to the Penal Code unless otherwise indicated.

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committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). It was further
alleged defendant had suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)).
On June 21, 2024, the jury convicted defendant of both counts. In doing so, it
found the murder was committed in the first degree. In a bifurcated proceeding, the jury
found the enhancements as to count 1 true. The trial court found true defendant’s prior
strike conviction allegation.
On July 25, 2024, the trial court sentenced defendant to 25 years to life for
count 1, which was doubled to 50 years to life under the Three Strikes law. The court
further sentenced defendant to a consecutive 25 years to life for the firearm enhancement.
The gang enhancement was stayed under section 654, and the four-year prison sentence
on count 2 was ordered to run concurrent to count 1. The court’s sentencing minutes
indicate that the court imposed a $10,000 fee each under sections 1202.4 and 1202.45,
which it ordered suspended, as well as the imposition of a court operations fee (§ 1465.8)
in the amount of $80, and a criminal conviction fee (Gov. Code, § 70373) in the amount
of $60.
Defendant filed a timely notice of appeal on July 29, 2024.
FACTUAL SUMMARY
The Market
On April 13, 2021, Diaz and two coworkers, M.M. and M.H., visited a market in
Reedley during a meal break. Diaz went inside the market, and Rodrigo Godinez walked
in soon after. Godinez was wearing a dark charcoal grey shirt. Godinez and Diaz started
saying “some words” to each other. This “verbal interaction” (boldface omitted) was
described as not friendly based on the way Godinez and Diaz were acting and referring to
each other, as well as their movements and tone of voice. M.M. and M.H. tried to
distract Diaz from the interaction, but “the words just kept going.” Defendant, who was

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wearing a white shirt on that day, walked up to the market and looked through the
window while the others were still inside.
Diaz and M.M. Return to Their Workplace
Several minutes after the verbal interaction, Diaz and M.M. left the market and got
into M.M.’s car. Godinez left the store and got into the passenger seat of defendant’s car.
A person nearby observed the driver of this car, defendant, was “hyped up” and yelling in
the parking lot but could not hear what he was saying. Defendant then followed M.M.’s
car back to their place of work.
Shooting
M.M. parked on the street near their workplace. After defendant drove past
M.M.’s car, Diaz got out of M.M.’s car and walked across the street holding a plate of
food. Defendant made a “U-turn” (boldface omitted) and drove directly toward Diaz.
Diaz threw his food at defendant’s car. Someone from inside defendant’s car fired
multiple shots from a firearm, striking Diaz in the back and killing him. Defendant and
Godinez were seen by someone else laughing in their car.
M.M. could not tell whether the passenger or the driver was the shooter, but she
saw that the hand which fired the gun was “in the passenger seat.” Another nearby
worker, N.G., saw the “passenger,” who was “chunky,” with “spiky hair,” and wearing
“the white shirt and … a gold chain,” pull “something” out. N.G. could not tell whether
that person was in the driver’s seat or the passenger seat, but she stated that his face
looked “serious.”2 Reedley Police Detective C. Cardenas, the lead detective in the
investigation, opined that the person in the car wearing the white shirt was the shooter.
Cardenas also stated defendant was heavier set than Godinez.

2 N.G. previously stated to law enforcement in an interview that she believed the
passenger was the shooter.

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 Defendant’s Arrest, Jail Call, and Jail Video
On May 29, 2021, defendant was arrested in Lebanon, Missouri. Defendant had a
gold chain in his possession, which was obtained by law enforcement. Defendant was
about 50 to 75 pounds heavier at the time of his arrest than he was at the time of his trial.
Defendant did not have face tattoos at the time of his arrest.
On September 24, 2022, in a jail call between defendant and an unknown male,
defendant discussed with the unknown male how they used to go “[m]obbing.” He
stated, in part: “We aint [sic] got nothing better to do. Let’s just mob and look for some
scraps.”
On October 22, 2023, defendant was seen in a jail video with tattoos on his face.
About 10 minutes beforehand, defendant was seen in another jail video without the
tattoos on his face.
Bifurcated Gang Evidence
Further evidence was presented to the jury in the bifurcated proceeding after they
had reached their verdict on the substantive offenses. Investigator O. Torres, who was
assigned to the Multi-Agency Gang Enforcement Consortium, testified to gang hand
signs by both the Norteños and the Sureños. One hand sign by the Norteños was “SK,”
which stood for “[s]crap killer.” Torres stated that a “[s]crap” is a derogatory term for a
Sureño. Torres testified that Norteños often avoid using the letter “S” in a word by either
crossing it out or replacing it with the letter “Z.” He further testified the Varrio Eastside
Reedley was a subset of the Norteños criminal street gang, and that the crimes committed
by the subset benefited the Norteños criminal street gang as a whole.
Torres stated defendant and Godinez were members of the Varrio Eastside
Reedley subset of the Norteños criminal street gang on April 13, 2021. Torres testified
that defendant’s face tattoo, of a letter “S” crossed out by two lines, was significant
because it was a way Norteños disrespect Sureños and to identify themselves as well. He

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further testified that defendant’s other face tattoo, of a letter “E,” combines to make “ES”
which was a very common sign for Varrio Eastside Reedley.
Diaz had the letters “VLS” tattooed on his fingers. Torres testified these letters
stood for Vatos Locos Sureños, which was a subset of the Sureños criminal street gang
out of Orange Grove, California. Torres opined a Varrio Eastside Reedley gang member
shooting a Sureños dropout in the back would benefit the Norteños criminal street gang
since it would involve eliminating a member of a rival gang, and would instill fear and
intimidation in the rival gang and the community.
DISCUSSION
I. Admission of Gang Evidence
Defendant contends the trial court prejudicially erred by admitting gang evidence
during the trial of the substantive offenses. The People contend the court’s admission of
evidence was not erroneous, and any assumed error was harmless. We agree with the
People on both contentions.
A. Additional Background
Prior to trial, defendant filed several motions in limine concerning gang evidence.
First, he moved to bifurcate the gang enhancement under section 1109. He also moved
under Evidence Code section 352 to exclude “any and all evidence of [defendant’s] gang
participation” (boldface & capitalization omitted), and to exclude reference to the victim
as a dropout gang member.
In its trial brief, the prosecutor moved to admit two jail video recordings to show
defendant altered his appearance since the shooting by having tattoos engraved on his
face. In doing so, the prosecutor sought to admit testimony of Torres to explain the gang
significance of defendant’s facial tattoos. The prosecutor also moved to admit a phone
call made in jail, during which defendant mentioned previously “ ‘mobbing’ ” and
looking for “ ‘scraps,’ ” as well as testimony from Torres explaining that these terms
meant hunting for rival gang members, and specifically, Sureños. The prosecutor further

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moved to admit certain gang evidence during the first phase of the trial, including expert
testimony on: the Norteños and Sureños criminal street gangs; defendant’s and
Godinez’s membership in the Norteños criminal street gang; Diaz’s membership in the
Sureños criminal street gang; the expectation by gang members within the Norteños
criminal street gang to “act on sight” of a perceived and/or actual rival; and an
explanation of the potential reluctance of witnesses to testify.
At a hearing, the prosecutor argued that limited gang evidence should be admitted
in the first phase of trial to prove motive. Defendant opposed, noting there was no
evidence of gang-related words or derogatory terms uttered during the series of events.
The prosecutor highlighted that Diaz had a blue lanyard displayed out of his pocket and
had Sureños tattoos visible on his hand.
The court stated its belief that the applicable law did not exclude “otherwise
relevant evidence.” The court indicated it would admit “very limited evidence from a
qualified gang expert” that defendant “was a gang member of one gang and that Mr. Diaz
was a member of an opposing gang, and that it is within gang culture that when those two
gang members are in an area, that they confront each other.” In doing so, the court stated
its concern with excluding the gang evidence was it would “essentially put[] the shooting
itself in a sterile vacuum,” since “it would not allow the People in any way to explain a
potential motive, which is relevant.”
Defense counsel highlighted the lack of evidence demonstrating the shooting was
gang related, and argued introducing gang evidence would “make it gang motivated.”
The court noted it understood defense counsel’s position, including the argument that
admitting gang evidence would “essentially emasculate[]” the bifurcation requirement
under the applicable law. After considering both the probative value and prejudicial
impact of the contested evidence, the court found the prejudicial impact did not
substantially outweigh the probative value.

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 During the first phase of the trial, the parties stipulated that Norteños and Sureños
were criminal street gangs, defendant and Godinez were active members of the Norteños,
and Diaz was a dropout of the Sureños. Torres testified that Norteños was the dominant
gang in Reedley. Norteños, who identify with the color red, were rivals with the Sureños,
who identify with the color blue. Sureños dropouts also display the color blue.
According to Torres, when a Norteño encounters a Sureño, the Norteño is supposed to
“act on sight,” meaning, to “immediately attack” and, if the opportunity presents itself, to
kill that rival gang member. Norteños treat a Sureños dropout the same as “active”
Sureños. Torres further testified that in a small town such as Reedley, it was very
common for gang members to have grown up with people who later joined a rival gang,
and so it was “not hard to know who is who in town and it benefit[ed] them to know
who’s who.”
The trial court instructed the jury on how it may consider the gang evidence
(CALCRIM No. 303 [limited purpose evidence in general]). The court stated:

“For Count 1, you’ve heard evidence regarding gangs. This
evidence may only be considered -- may only be used to consider a
potential motive and for no other purpose.”
B. Applicable Law and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if
it has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210.) The court may
exclude relevant evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.)

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 “Prior to the enactment of section 1109, trial courts were authorized, in their
discretion, to bifurcate trials so that a gang enhancement allegation would be tried
separately from a charged offense, when appropriate to avoid undue prejudice to the
defense.” (People v. Burgos (2024) 16 Cal.5th 1, 10.) In 2021, the Legislature passed
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333), which became
effective on January 1, 2022 (see Stats. 2021, ch. 699). (See People v. Tran (2022) 13
Cal.5th 1169, 1206.) As relevant here, Assembly Bill No. 333 “ ‘added section 1109,
which requires, if requested by the defendant, a gang enhancement charge to be tried
separately from all other counts that do not otherwise require gang evidence as an
element of the crime.’ ” (People v. Burgos, at p. 9; see § 1109.) Section 1109 provides:

“(a) If requested by the defense, a case in which a gang enhancement
is charged under subdivision (b) or (d) of Section 186.22 shall be tried in
separate phases as follows:

“(1) The question of the defendant’s guilt of the underlying
offense shall be first determined.

“(2) If the defendant is found guilty of the underlying offense
and there is an allegation of an enhancement under subdivision (b) or
(d) of Section 186.22, there shall be further proceedings to the trier
of fact on the question of the truth of the enhancement. Allegations
that the underlying offense was committed for the benefit of, at the
direction of, or in association with, a criminal street gang and that
the underlying offense was committed with the specific intent to
promote, further, or assist in criminal conduct by gang members
shall be proved by direct or circumstantial evidence.

“(b) If a defendant is charged with a violation of subdivision (a) of
Section 186.22, this count shall be tried separately from all other counts
that do not otherwise require gang evidence as an element of the crime.
This charge may be tried in the same proceeding with an allegation of an
enhancement under subdivision (b) or (d) of Section 186.22.”
“[S]ection 1109 does not disturb existing case law holding that gang evidence may
be admitted to prove substantive crimes.” (People v. Garcia (2024) 107 Cal.App.5th
1040, 1049 (Garcia).) “ ‘Evidence of the defendant’s gang affiliation—including

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evidence of the gang’s territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove identity, motive, modus
operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt
of the charged crime.’ ” (People v. Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun).) “Even
when it is relevant, however, ‘courts should carefully scrutinize evidence of a defendant’s
gang membership because such evidence “creates a risk the jury will improperly infer the
defendant has a criminal disposition and is therefore guilty of the offense charged.” ’ ”
(Ibid.)
We review the trial court’s ruling for abuse of discretion. (Chhoun, supra,
11 Cal.5th at p. 31; People v. Albarran (2007) 149 Cal.App.4th 214, 224–225 [“[T]he
decision on whether evidence, including gang evidence, is relevant, not unduly
prejudicial and thus admissible, rests within the discretion of the trial court.”].) “ ‘Where,
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, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.” ’ ” (People v. Williams (2013) 58 Cal.4th 197, 270–
271.)
C. Analysis
The trial court did not abuse its discretion when it admitted expert testimony
evidence on Norteños and Sureños criminal street gangs, as well as the past or current
membership of defendant, Godinez, and Diaz in those gangs. The evidence was relevant
to prove motive. (See People v. Tran, supra, 13 Cal.5th at p. 1208 [“gang evidence, even
if not admitted to prove a gang enhancement, may still be relevant and admissible to
prove other facts related to a crime”]; see also People v. Wallace (2008) 44 Cal.4th 1032,
1058 [“ ‘ “The test of relevance is whether the evidence tends ‘ “logically, naturally, and
by reasonable inference” to establish material facts such as identity, intent, or
motive.’ ” ’ ”].) As the court indicated, gang culture includes intimidating or injuring a

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member of an opposing gang upon confrontation. It is reasonable to infer that Diaz’s
affiliation with the Sureños may have served as an explanation for the shooting. And,
though the court recognized the potential prejudice from the evidence, the court correctly
concluded the potential prejudice did not substantially outweigh its probative value.
(Chhoun, supra, 11 Cal.5th at p. 29 [noting “prejudicial” is not synonymous with
“damaging” and all evidence tending to prove guilt is prejudicial or damaging to the
defendant’s case]; People v. Cage (2015) 62 Cal.4th 256, 275 [“The ‘prejudice’ which
[Evidence Code] section 352 seeks to avoid is that which ‘ “ ‘uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues.’ ” ’ ”].)
Garcia, relied upon by defendant, does not compel a different result. In Garcia,
the defendants were members of a criminal street gang and faced several charges
following a robbery of two victims which resulted in one victim’s death. (Garcia, supra,
107 Cal.App.5th at pp. 1044–1045.) One of the defendants was recorded in an
undercover operation admitting to being a member of the criminal street gang, and stating
that the incident was not gang related and did not involve the gang’s enemies and “ ‘was
supposed to be just a robbery.’ ” (Id. at p. 1047.) The trial court admitted gang-related
evidence of the gang’s violent nature and its engagement in illegal activities under
Evidence Code section 352, noting the court found the evidence was relevant to prove the
defendants’ intent, motive, conspiracy and aiding and abetting. (Garcia, at p. 1048.)
The Court of Appeal held the admission of the gang evidence resulted in a
manifest miscarriage of justice. (Garcia, supra, 107 Cal.App.5th at p. 1051.) Important
to its conclusion was that “no admissible evidence existed showing the crimes had any
connection” to the defendants’ gang. (Ibid.) Specifically, “there [was] no evidence in the
record indicating gang signs were thrown, gang threats were made, or that the crime
occurred on gang territory.” (Ibid.) The Garcia court determined that even assuming the
gang-related evidence was relevant, its probative value was “minimal at best.” (Id. at

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p. 1054.) Moreover, considering the inflammatory nature and prejudicial impact of gang
evidence, Garcia concluded the de minimis probative value of the evidence was
substantially outweighed by a probability of undue prejudice. (Id. at p. 1058.)
The circumstances of the instant record are very different from Garcia. The gang
evidence here was relevant to the prosecution’s theory of motive. First, the victim in this
case, Diaz, had an affiliation with a rival gang. According to the gang expert, in a small
town like Reedley, it was very common for a member of a gang to have previously went
to school with others who later joined a rival gang, and as a result, it was “not hard” to
know of members in the opposing gang. The gang expert testified defendant’s statement
in his prison phone call, in which he discussed the time he “mobb[ed]” for “scraps”
meant “to go out and proactively look” for Sureños. It cannot be said the probative value
of the gang evidence at issue here was “minimal at best.” (Garcia, supra,
107 Cal.App.5th at p. 1054.) Nor can it be said that the admission of the evidence was an
abuse of discretion.
In any event, we further conclude any assumed error was harmless because, on
this record, there is no reasonable probability defendant would have received a better
result had the gang evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818,
836 [state law error is harmless unless it is reasonably probable that a result more
favorable to the defendant would have been reached absent the error].) There was
sufficient evidence of defendant’s motive other than the gang evidence. Defendant was
captured looking through the market’s window around the time of the verbal interaction
between Diaz and Godinez. Defendant was then seen “hyped up” and yelling in the
market’s parking lot prior to getting in the driver seat of his car and following the car
Diaz was in. Defendant was captured driving past Diaz, turning around, and driving right
at him. Moreover, Cardenas opined defendant was the shooter since the surveillance

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footage did not show a hand or arm extend out of the window when the shots were fired.3
Additionally, the jury was instructed it could only consider the gang evidence for the
purpose of motive. (See People v. Silveria and Travis (2020) 10 Cal.5th 195, 245 [we
presume the jury understood and followed the court’s instructions].)
II. Lay Witness Opinion
Defendant contends the trial court abused its discretion by allowing Cardenas to
opine that defendant was the shooter based on his review of the surveillance footage. The
People contend the court properly exercised its discretion. We agree with the People.
A. Additional Background
At defendant’s trial, the surveillance video from the market was played for the
jury. Cardenas testified that the surveillance video of the parking lot showed Godinez
walking in the parking lot and getting into the passenger seat of defendant’s car.
Cardenas testified Godinez was wearing a grey shirt and khaki shorts. He further
testified defendant was wearing a white shirt and black shorts.
After the prosecutor asked Cardenas if he had “an opinion as to who was the
shooter between the person in the white shirt and the person in the … grey shirt”
(boldface omitted), defense counsel objected on the grounds of foundation and “ultimate
issue.” The court overruled the objection, noting it would allow Cardenas “to testify only
referring to the colors of the … shirts, not the identification of the individuals wearing the
[shirt].” Cardenas testified he believed the person wearing the white shirt was the
shooter. He testified this opinion was “[b]ased on the totality of the investigation,
through my careful review of each video from the beginning to the end, also frame by
frame, slow motion videos, and the entire investigation.” When asked if there was
anything “significant” (boldface omitted) about what was seen in the surveillance videos,

3 For reasons we explain post, Cardenas’s opinion testimony was not improperly
admitted into evidence.

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Cardenas stated he observed that “there [was] not a hand or arm that crosses the threshold
of [the] passenger window that is clearly opened,” and “there [was] no object and/or
firearm that passes the threshold of the window.”
B. Applicable Law and Standard of Review
“ ‘ “A lay witness may express opinion based on his or her perception, but only
where helpful to a clear understanding of the witness’s testimony [citation], ‘i.e., where
the concrete observations on which the opinion is based cannot otherwise be
conveyed.’ ” ’ ” (People v. Sánchez (2016) 63 Cal.4th 411, 456 (Sánchez); see Evid.
Code, § 800.) “ ‘Such a situation may arise when a witness’s impression of what he or
she observes regarding the appearance and demeanor of another rests on “subtle or
complex interactions” between them [citation] or when it is impossible to otherwise
adequately convey to the jury the witness’s concrete observations.’ ” (Sánchez, at
p. 456.) The identity of a person is a proper subject of nonexpert opinion. (People v.
Leon (2015) 61 Cal.4th 569, 601 (Leon).)
We review this claim for abuse of discretion. (Sánchez, supra, 63 Cal.4th at
p. 456; Leon, supra, 61 Cal.4th at p. 600.) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
C. Analysis
Defendant argues the admission of Cardenas’s opinion testimony on the identity of
the shooter directly contravened well-settled principles of law protecting defendant’s
constitutional right to have the jury decide the ultimate issues in the case.
The admission of this type of testimony is not categorically impermissible. (See
Sánchez, supra, 63 Cal.4th at pp. 456–457; Leon, supra, 61 Cal.4th at p. 601 [“Court of
Appeal decisions have long upheld admission of testimony identifying defendants in
surveillance footage or photographs.”].) Opinion testimony is not impermissible simply
because it goes to the ultimate issue of a case. (See People v. Prince (2007) 40 Cal.4th

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1179, 1227 [“Despite the circumstance that it is the jury’s duty to determine whether the
prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony
may encompass ‘ultimate issues’ within a case.”]; People v. Coffman and Marlow (2004)
34 Cal.4th 1, 77 [“opinion testimony often goes to the ultimate issue”]; see also Evid.
Code, § 805 [“Testimony in the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be decided by the trier of fact.”].)
Cardenas’s opinion, which was based on his “frame by frame” review of each
surveillance video in its entirety, was rationally based on his own perception.
Specifically, Cardenas stated he thought the person wearing the white shirt, defendant,
was the shooter because he did not see a limb extend out of the passenger side window of
defendant’s car. This testimony was based on his personal review of the evidence, and
moreover, was helpful to the jury. (See Leon, supra, 61 Cal.4th at p. 601.) The court’s
ruling to admit Cardenas’s testimony was not an abuse of discretion. (See Carmony,
supra, 33 Cal.4th at p. 377.)4 Having concluded the trial court did not err, we need not
consider his further claim of prejudice.
III. Motion To Strike Firearm Enhancement
Defendant contends the trial court erred under section 1385 by declining to strike
his firearm enhancement. The People disagree.
A. Additional Background
The prosecutor filed a sentencing memorandum on July 22, 2024. In pertinent
part, the sentencing memorandum opposed the dismissal of defendant’s firearm
enhancement, arguing doing so would endanger public safety. The memorandum
detailed defendant’s prior criminal history, including three prior felony convictions and

4 This conclusion is not altered by the court’s comments stating Cardenas was not
allowed to identify the shooter by name. We review the court’s ruling rather than its
reasoning. (People v. Brooks (2017) 3 Cal.5th 1, 39.)

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one prior strike conviction, and argued his current offense for murder showed an increase
in the danger defendant posed and showed “a significant risk of continued violent
conduct” by defendant. The memorandum further argued there was a likelihood that the
enhancement’s dismissal “would result in physical injury or danger to others in the
future.”
Defendant’s sentencing memorandum was filed on July 23, 2024. As relevant
here, the memorandum requested the trial court to dismiss his firearm enhancement.5
The memorandum detailed defendant’s background, including his childhood and
upbringing, and noted that his prior strike conviction occurred over six years prior to the
current offense. In requesting the enhancement’s dismissal under section 1385, the
memorandum referenced three of the mitigating circumstances listed in subdivision (c)(2)
of that section: “The application of an enhancement could result in a sentence of over 20
years. In this instance, the enhancement shall be dismissed” (§ 1385, subd. (c)(2)(C));
“The current offense is connected to prior victimization or childhood trauma” (§ 1385,
subd. (c)(2)(E)); and “The enhancement is based on a prior conviction that is over five
years old” (§ 1385, subd. (c)(2)(H)).
The probation department filed its report, in which it detailed defendant’s
background and criminal history and summarized the facts of the instant offense. The
report listed several aggravating circumstances, including: defendant engaged in violent
conduct which indicated a serious danger to society; defendant’s prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness; defendant served a prior prison term; and defendant’s prior
performance on probation or parole was unsatisfactory. The report further listed the
following mitigating circumstances: application of an enhancement could result in a

5 In the same portion of his sentencing memorandum, defendant also requested the
court dismiss his strike prior. Defendant does not challenge on appeal the court’s
decision not to dismiss his strike prior.

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sentence over 20 years; and multiple enhancements are alleged in a single case. As
relevant here, the report recommended the indeterminate term of 25 years to life for his
firearm enhancement (§ 12022.53, subds. (d), (e)(1)) followed by the term of life without
the possibility of parole on count 1.
The trial court held a sentencing hearing on July 25, 2024. The court stated it had
read and considered the parties’ sentencing memorandums and the probation report.
Regarding the firearm enhancement, the court recognized it was required to consider
exercising its discretion to strike the enhancement under section 1385. The court also
considered if defendant “would continue to be a danger” to society at the time of his
release if the enhancement was dismissed. The court determined defendant would
continue to be a danger, stating:

“Even though the [L]egislature to a degree requires judges to use a crystal
ball and predict 50 years from what [defendant]’s behavior may be, his
behavior today tells me that his behavior then would create a danger to the
community if released given the facts and circumstances of this case and
his prior criminal history.”
The court found dismissal of defendant’s firearm enhancement would endanger
public safety, and declined to strike the enhancement.
B. Applicable Law and Standard of Review
Effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) amended
section 1385 to specify factors the trial court must consider when deciding whether to
strike enhancements from a defendant’s sentence in the interest of justice. (§ 1385, subd.
(c); People v. Mendoza (2023) 88 Cal.App.5th 287, 295 (Mendoza).) “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).) “In 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.” (§ 1385,

17.
subd. (c)(2).) “Proof of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court finds that dismissal of
the enhancement would endanger public safety. ‘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.” (§ 1385, subd. (c)(2).)
The three mitigating circumstances relied upon by defendant included that “[t]he
application of an enhancement could result in a sentence of over 20 years. In this
instance, the enhancement shall be dismissed” (§ 1385, subd. (c)(2)(C)); “[t]he current
offense is connected to prior victimization or childhood trauma” (§ 1385,
subd. (c)(2)(E)); and “[t]he enhancement is based on a prior conviction that is over five
years old” (§ 1385, subd. (c)(2)(H)).
“[T]he plain language of section 1385, subdivision (c)(2) does not erect a
rebuttable presumption in favor of dismissal that can only be overcome by a finding that
dismissal endangers public safety.” (People v. Walker (2024) 16 Cal.5th 1024, 1033.)
“We emphasize, however, that, in most cases, ‘if the trial court finds that dismissal of an
enhancement would endanger public safety, then it is hard to see how dismissal would
further the interests of justice,’ notwithstanding the applicability of any mitigating factors
identified in subdivision (c)(2).” (Ibid.) “[I]f the court finds that dismissal of an
enhancement ‘would endanger public safety,’ then the court need not consider the listed
mitigating circumstances.” (Mendoza, supra, 88 Cal.App.5th at p. 296, fn. omitted.)
A trial court’s decision whether to dismiss an enhancement pursuant to
section 1385, subdivision (c) is reviewed for an abuse of discretion. (People v. Gonzalez
(2024) 103 Cal.App.5th 215, 225 (Gonzalez); Mendoza, supra, 88 Cal.App.5th at p. 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, capricious or patently absurd manner that resulted in a

18.
manifest miscarriage of justice.’ ” ’ ” (Ibid.; see Carmony, supra, 33 Cal.4th at p. 377 [“a
trial court does not abuse its discretion unless its decision is so irrational or arbitrary that
no reasonable person could agree with it”].) An abuse of discretion also occurs “if the
trial court based its decision on impermissible factors [citation] or on an incorrect legal
standard.” (People v. Knoller (2007) 41 Cal.4th 139, 156.)
C. Analysis
Defendant argues the trial court abused its discretion under section 1385,
subdivision (c) by declining to dismiss his firearm enhancement. Defendant asserts the
court “did not address any of the [section] 1385 factors cited by the defense, nor did the
court conduct on the record a balancing of the mitigating factors set forth by the defense
against any aggravating factors that may have been present.” (Fn. omitted.) Defendant
further asserts the court did not indicate whether it conducted a “balancing test” of
aggravating and mitigating factors.
The court was not required to address the section 1385, subdivision (c)(2)
mitigating factors because the court explicitly found that striking his enhancement would
endanger public safety. (People v. Walker, supra, 16 Cal.5th at p. 1033; Mendoza, supra,
88 Cal.App.5th at p. 296.) As the Mendoza court aptly noted, “it is difficult to imagine
the circumstances under which dismissal [of an enhancement] would be ‘in the
furtherance of justice,’ ” if the court already determined doing so would endanger public
safety. (Mendoza, at p. 296, fn. 4; see § 1385, subd. (c)(2).) The court did not have an
obligation to consider, let alone balance, any of the mitigating circumstances listed in
section 1385, subdivision (c)(2).
Defendant also takes issue with the court’s determination that defendant would
pose a danger to public safety if his firearm enhancement was stricken. He highlights the
court’s comment suggesting that it had to “use a crystal ball and predict 50 years from
[today] what [defendant’s] behavior may be.” Relying in part on Gonzalez, supra,
103 Cal.App.5th 215, he appears to argue the court failed to consider the parole board

19.
and Governor’s involvement in the assessment of whether he posed a risk to society at a
future time, namely, when he would become eligible for parole. According to defendant,
this consideration “should weigh greatly in the determination of what an appropriate
sentence would be,” and “[i]t would have allayed the court’s concern that it was being
asked to use a crystal ball to see 50 years into the future.”
In Gonzalez, the trial court considered dismissing the defendant’s firearm
enhancement, which subjected defendant to an indeterminate term of 25 years to life in
addition to his indeterminate term of 50 years to life for murder. (Gonzalez, supra, 103
Cal.App.5th at p. 220.) The trial court determined the defendant represented a danger to
society “ ‘at the time of [his] sentencing’ ” and declined to dismiss his enhancement
“ ‘for that reason.’ ” (Id. at pp. 223–224.) The Court of Appeal determined the trial court
applied an incorrect legal standard by only considering whether the defendant posed a
danger to public safety at the time of his sentencing since “ ‘[d]etermining whether
resentencing a defendant poses an unreasonable risk of danger to society is necessarily a
forward-looking inquiry.’ ” (Id. at p. 229; see id. at p. 230.) The appellate court
additionally noted the inquiry “for a defendant serving a lengthy indeterminate sentence
should also take into account that the defendant’s release from prison is contingent on
review by the Board of Parole Hearings (and for murder convictions, by the Governor),
who will have the opportunity to assess the defendant’s dangerousness at that time.” (Id.
at p. 228.) According to the Gonzalez court, this “future review will act as a safety valve
against a release that would endanger the public ….” (Ibid.) As such, the appellate court
opined the trial court “also should have considered the date on which [the defendant]
could be released if the firearm enhancement was dismissed and the fact that the release
would be subject to a review by the Board of Parole Hearings and the Governor.” (Id. at
pp. 230–231.)

20.
 We are not persuaded that the court’s comment evidenced an abuse of discretion.
First, unlike in Gonzalez, the court here correctly recognized it was required to consider
whether defendant would be a danger to public safety “at the time of [his] release.” (See
Gonzalez, supra, 103 Cal.App.5th at pp. 228, 230–231 [noting trial court was required to
assess whether public safety would be endangered in the future if the defendant was
released from prison sooner due to an enhancement being dismissed].) Moreover, the
record’s absence of reference to the roles played by the Governor and parole board does
not demonstrate that the court applied an incorrect legal standard. (See id. at p. 227
[“section 1385, subdivision (c)(2) ‘does not require the trial court to consider any
particular factors in determining whether “there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious danger to others” ’ ”].) The
record is silent as to whether the court understood the Governor or parole board may play
a role in defendant’s future release. (See People v. Knowles (2024) 105 Cal.App.5th 757,
765 [“We may not presume error from a silent record.”].) We must assume the court
understood and applied the correct law. (People v. Parra Martinez (2022) 78
Cal.App.5th 317, 322 [“Unless the record affirmatively demonstrates otherwise, the trial
court is deemed to have considered all the relevant sentencing factors set forth in the
rules.”]; People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [“[R]emand is unnecessary
if the record is silent concerning whether the trial court misunderstood its sentencing
discretion.”].) On this record, we do not conclude that the court applied an incorrect legal
standard.
IV. Restitution Fine and Ancillary Costs
At the sentencing hearing, the court did not mention, much less impose, fees under
either section 1465.8 or Government Code section 70373. As for restitution fines,
defense counsel requested the court “consider staying any fines.” The court stated:

21.
 “… I’m going to do that. I’m going to order that the defendant
receive time credits statutorily allowed of 1154 days, that is 1154 days
actual, pursuant to [section] 2933.2. I’m also ordering that I’m staying the
restitution fine under -- striking the restitution fine under [sections] 1202.4
and 1202.45.

“If a Court of review finds that is error to strike the restitution fine, I
would find alternatively and impose the minimum restitution of $300
pursuant to [sections] 1202.4 and 1202.45.”
The sentencing minutes, on the other hand, state, in pertinent part:

“Court orders Defendant to pay fee pursuant to [section ]1202.4. Amount:
$10,000.00 [¶] Restitution Fund Fine purs [sic] to [section] 1202.45
suspended. Court orders fine imposed if Parole is revoked. [¶] Amount:
$10,000.00 [¶] All [f]ees [s]uspended. Fee(s) amount suspended:
$10,000.00 for the [section] 1202.4 and 1202.45 fees. [¶] Court
Operations Fee purs. [sic] to [section] 1465.8 to the Court. Amount:
$80.00 [¶] Criminal Conviction Fee purs. [sic] to [Government Code
section ]70373 to the Court. Amount: $60.00.”
The abstract of judgment included, in relevant part, the $80 court security fee
pursuant to section 1465.8, and the $60 criminal conviction fee pursuant to Government
Code section 70373. The abstract of judgment did not include a restitution fine under
section 1202.4, subdivision (b) or a parole revocation fine under section 1202.45.
Defendant requests we order modifications to the court’s sentencing minutes and
to the abstract of judgment. First, he requests we order the minutes modified to reflect
the court’s pronouncement that it would impose at most the minimum restitution fine
under section 1202.4. Second, he requests we order the abstract of judgment modified to
strike the court operations fee (§ 1465.8) and criminal conviction fee (Gov. Code,
§ 70373).
The People request we modify the abstract of judgment to reflect the minimum
restitution fine and a suspended parole revocation fine of $300.
While this appeal was pending, the California Supreme Court issued its decision in
Kopp, supra, 19 Cal.5th 1. We ordered supplemental briefing on: (1) whether the trial
court’s failure to impose or strike the mandatory ancillary costs under section 1465.8 and

22.
Government Code section 70373 resulted in an unauthorized sentence or otherwise
constituted error; and (2) the appropriate remedy.
The People responded with supplemental briefing. They argue the abstract of
judgment controls defendant’s judgment, and we should affirm the judgment on this issue
since the abstract of judgment already includes the two mandatory ancillary costs.
A. The Kopp Decision
In Kopp, the California Supreme Court recently considered issues involving court-
ordered financial obligations imposed on criminal defendants, including the restitution
fine (§ 1202.4, subd. (b)) and “ancillary costs.” (Kopp, supra, 19 Cal.5th at p. 9.)
Ancillary costs, including the court operations assessment (§ 1465.8, subd. (a)) and court
facilities assessment (Gov. Code, § 70373), are “funding mechanisms, created by the
Legislature, to reimburse governmental agencies for expenditures or to otherwise fund a
broad assortment of services. (Kopp, at p. 11.)
Kopp, supra, 19 Cal.5th 1 distinguished ancillary costs from the restitution fine,
noting “[a] restitution fine under section 1202.4 constitutes punishment” (id. at p. 13),
while “ancillary costs are generally not intended to punish the commission of a crime”
(id. at p. 11). A restitution fine is “required in ‘every case where a person is convicted of
a crime’ unless the court ‘finds compelling and extraordinary reasons for not doing so
and states those reasons on the record.’ ” (Id. at p. 13.) “For felony convictions, the
required fine is not less than $300 and not more than $10,000.” (Ibid.) The court also
noted the restitution fine (§ 1202.4, subd. (b)) and ancillary costs are separate from a
victim restitution order (§ 1202.4, subd. (f)). (Kopp, at p. 16.)
Regarding ancillary costs, Kopp noted that “[b]oth the court operations and
facilities assessments must be imposed for every criminal conviction except parking
offenses.” (Kopp, supra, 19 Cal.5th at pp. 25–26.) The Kopp court observed that a
“robust fee waiver system” was made available by the Legislature to qualified applicants
in civil cases. (Id. at p. 26.) The court determined “there appears no rational basis to

23.
deny only indigent criminal defendants the ability to avoid” the same costs imposed in
both types of proceedings. (Id. at p. 29.) Thus, the court held: “equal protection
principles require a court, upon request, to consider a defendant’s inability to pay before
imposing a court operations assessment under … section 1465.8, subdivision (a)(1) or a
court facilities assessment under Government Code section 70373, subdivision (a)(1).”
(Id. at p. 30.) Kopp remanded, in part, for further proceedings as to the imposition of the
ancillary costs. (Id. at p. 31.)
B. The Oral Pronouncement of Sentence Controls
In their supplemental brief, the People assert that “[s]ince the abstract of judgment
already reflects the fine, there is no need to order the trial court to issue an amended
abstract of judgment.” This assertion relies on the premise that the abstract of judgment
should control or announce the actual judgment under the circumstances. It does not.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) The judgment is controlled by the
court’s oral pronouncements. (See ibid. [“An abstract of judgment is not the judgment of
conviction; it does not control if different from the trial court’s oral judgment and may
not add to or modify the judgment it purports to digest or summarize.”]; People v.
Zackery (2007) 147 Cal.App.4th 380, 387–388 [“The clerk cannot supplement the
judgment the court actually pronounced by adding a provision to the minute order and the
abstract of judgment.”].)
C. Ancillary Costs
Section 1465.8, subdivision (a)(1), provides, in part: “To assist in funding court
operations, an assessment of forty dollars ($40) shall be imposed on every conviction for
a criminal offense.”
Government Code section 70373, subdivision (a)(1), provides, in part: “To ensure
and maintain adequate funding for court facilities, an assessment shall be imposed on
every conviction for a criminal offense…. The assessment shall be imposed in the
amount of thirty dollars ($30) for each misdemeanor or felony.”

24.
 The trial court was required to impose these ancillary costs unless it granted
defendant fee waivers. (Kopp, supra, 19 Cal.5th at pp. 25–26, 29–30.) The court took
neither action at the sentencing hearing. This was error.
The sentencing minutes and the abstract of judgment, however, both reflect the
imposition of the two fees at issue here. We will not, as requested by defendant, strike
the two fees from the abstract of judgment. Pursuant to Kopp, these fees, absent waivers,
are mandatory. (Kopp, supra, 19 Cal.5th at pp. 25–26, 29–30.) The record does not
show that these fees were waived. Nor will we, as requested by the People, modify the
court’s judgment to include these fees. Although the omission of mandatory assessments
“may be corrected for the first time on appeal” (People v. Castellanos (2009)
175 Cal.App.4th 1524, 1530), if we were to do that, the fees would be imposed without
defendant having had the opportunity to request they be waived. Instead, we will remand
the matter for the trial court to correct the minutes from the July 25, 2024 sentencing
hearing and to determine whether to impose the court operations fee (§ 1465.8, subd. (a))
and the criminal conviction fee (Gov. Code, § 70373) consistent with Kopp.
D. Restitution Fine
Defendant requests we order the trial court modify its sentencing minutes to
conform to its oral pronouncements. Specifically, he requests the minutes be “modified
to indicate that the court orally indicated that at most it would impose [a] $300 [fine]
under section 1202.4.”
The People also request that we order a modification, but to the abstract of
judgment. The People request: “[S]ince the trial court clearly evidenced an intent to
impose the minimum fine to the extent imposing a fine was mandatory, respondent
respectfully requests that the abstract of judgment reflect a $300 restitution fine under
section 1202.4 and a suspended parole revocation fine of $300.”

25.
 The restitution fine was discussed at the sentencing hearing. After defense
counsel requested the court “stay[] any fees,” the court stated it was “going to do that.”
The court then struck the restitution fine (§ 1202.4, subd. (b)) and added, “If a Court of
review finds that is error to strike the restitution fine, I would find alternatively and
impose the minimum restitution of $300 pursuant to [sections] 1202.4 and 1202.45.”
The People request we modify the abstract to add the $300 minimum restitution
fine, which the court stated was an alternative finding. Implicit in this request is the
argument that the court’s original action, striking the restitution fine, was erroneous.
However, the People did not object to the restitution fine being stricken. When a party
fails to object, at the time of sentencing, to a trial court’s decision regarding the
imposition of restitution fines, the “waiver doctrine” precludes appellate relief. (See
People v. Tillman (2000) 22 Cal.4th 300, 302–303.)
The court struck the restitution fine at the sentencing hearing. Thus, to the extent
the court’s minutes reflect otherwise, the minutes should be modified to strike the
restitution fines. (People v. Frederickson (2020) 8 Cal.5th 963, 1027.)
DISPOSITION
The minutes from the July 25, 2024 sentencing are ordered to be corrected to
reflect that the trial court did not impose ancillary costs pursuant to either section 1465.8
or Government Code section 70373, and that the court struck the section 1202.4,
subdivision (b) restitution fine.
The matter is remanded to the trial court to determine whether to impose the court
operations fee pursuant to section 1465.8 and the criminal conviction fee pursuant to
Government Code section 70373. The abstract of judgment is ordered to be corrected to
reflect the trial court’s determination.

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 In all other respects, the judgment is affirmed.

DETJEN, Acting P. J.
WE CONCUR:

FRANSON, J.

DE SANTOS, J.

27.