Filed 5/27/26 P. v. Downs CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085630
v. (Super.Ct.No. 16CR059155)
JOSEPH FRANKLIN DOWNS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Law Office of Brad Poore and Brad J. Poore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Elizabeth M. Renner and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Following a resentencing hearing pursuant to Penal Code1 section 1172.75, the
trial court resentenced defendant and appellant Joseph Franklin Downs to the upper term
for his armed robbery and gun possession convictions. On appeal, defendant argues the
court erred in reimposing the upper terms because the supporting aggravating factors
were neither proven beyond a reasonable doubt nor admitted by him in accordance with
current, heightened fact-finding requirements under section 1170 and in violation of his
right to a jury trial under the Sixth Amendment.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
Midday on October 25, 2016, San Bernardino County Sheriff’s Deputy Caballero
drove to a motel to investigate a report about an individual carrying a firearm. Deputy
Caballero was undercover; he was armed but was dressed in a T-shirt and jeans. Deputy
Caballero observed two Black men standing in a parking lot; one of the men was later
identified as defendant. Defendant was standing next to a car, pointing a shotgun at the
driver. Because he was undercover, thus not wearing his tactical vest, Deputy Caballero
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background is taken verbatim from this court’s unpublished opinion from defendant’s direct appeal in case No. E068960. (People v. Downs (Nov. 2, 2018, E068960) [nonpub. opn.] (Downs I.).)
2 chose not to engage with defendant at that time and instead drove his vehicle out of the
parking lot and around to the front of the motel. (Downs I, supra, E068960.)
Deputy Caballero watched defendant enter a room at the motel; he lost sight of the
second man. Sometime later, defendant and a Hispanic male exited the room and walked
down the street. Other deputies had arrived by this time, and defendant was detained.
The motel room was searched; two shotguns and a box of live shotgun rounds were
found. One of the shotguns was loaded. Defendant was interviewed, and under
Miranda3 he admitted pointing a shotgun in the face of a man who owed defendant
money for marijuana and retrieving $50 from him. (Downs I, supra, E068960.)
In June 2017, a jury found defendant guilty of second degree robbery (§§ 211,
212.5, subd. (c)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury
also found true the allegations that defendant personally used a shotgun in commission of
the robbery (§§ 12022.5, subd. (a), 12022.53, subd. (b)). In a bifurcated proceeding, the
trial court found true that defendant had suffered a prior strike conviction (§§ 667,
subds. (b)-(i); 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667,
subds. (a)(1)) and four prior prison terms (§ 667.5, subd. (b)). (Downs I, supra,
E068960.)
The trial court sentenced defendant to an aggregate 25-year term in state prison as
follows: the upper term of five years for count 1, doubled to 10 years due to the strike
prior; a consecutive 10-year term for the firearm use enhancement; and a consecutive
3 Miranda v. Arizona (1966) 384 U.S. 436.
3 five-year term for the prior serious felony enhancement. The trial court stayed execution
of the sentence for count 2 under section 654 and struck the punishment for the prison
priors under section 1385.
On direct appeal, we affirmed the judgment but remanded the matter to give the
trial court an opportunity to exercise its newly granted discretion to strike the firearm use
enhancement. (Downs I, supra, E068960.)
On April 25, 2019, on remand for resentencing, the trial court declined to exercise
its discretion to strike both the firearm use enhancement and the prior serious felony
enhancement and reimposed the 25-year prison term. Defendant subsequently appealed,
and we affirmed the judgment. (People v. Downs (May 12, 2020, E072914) [nonpub.
opn.] (Downs II).)
On December 1, 2023, the trial court noted that defendant “is on CDCR report as
to PC1171/PC1171.1 (now PC1172.7/PC1172.75) eligibility.”
On December 12, 2024, defendant filed a resentencing brief. And, on
December 16, 2024, the People filed an opposition to defendant’s request for a full
resentencing hearing.
On February 7, 2025, following a full resentencing hearing pursuant to
section 1172.75, the trial court denied defendant’s motion to strike his prior strike
conviction and imposed a reduced sentence of 20 years. The court reimposed the upper
term of five years on defendant’s robbery conviction, doubled by virtue of his strike, and
an additional 10 years for the attendant gun use enhancement; reimposed and stayed the
4 upper term sentence of three years for the gun possession conviction; and dismissed the
prior prison term enhancements and prior serious felony enhancement. The court
explained, “I have reviewed the case file and the briefs of the parties and considered the
arguments of counsel. As to the resentencing today, I confirm the findings that were
made on the record at the original sentencing hearing and continue to find that the
aggravating factors outweigh the mitigating factors.” Defendant timely appealed.
III.
DISCUSSION
Defendant argues the trial court erred in reimposing the upper terms on his robbery
and gun possession convictions without a jury trial on the aggravating circumstances used
to impose upper term sentences in violation of the Sixth Amendment right to a jury trial.
He relies on recent amendments to section 1170, subdivision (b), and contends the trial
court erred when it reimposed the upper terms, because he neither stipulated to
circumstances in aggravation to justify that term, nor did a jury or court find such
circumstances true beyond a reasonable doubt. (See § 1170, subd. (b)(1), (2).)
Defendant further asserts that section 1172.75, subdivision (d)(4), does not constitute an
exception to section 1170, subdivision (b)(2), and that the error was not harmless and
thus a remand is required for a resentencing hearing.
We review a trial court’s sentencing decisions in a section 1172.75 resentencing
proceeding for abuse of discretion. (People v.
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Filed 5/27/26 P. v. Downs CA4/2
NOT TO BE PUBLISHED IN 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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085630
v. (Super.Ct.No. 16CR059155)
JOSEPH FRANKLIN DOWNS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Law Office of Brad Poore and Brad J. Poore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Elizabeth M. Renner and
A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Following a resentencing hearing pursuant to Penal Code1 section 1172.75, the
trial court resentenced defendant and appellant Joseph Franklin Downs to the upper term
for his armed robbery and gun possession convictions. On appeal, defendant argues the
court erred in reimposing the upper terms because the supporting aggravating factors
were neither proven beyond a reasonable doubt nor admitted by him in accordance with
current, heightened fact-finding requirements under section 1170 and in violation of his
right to a jury trial under the Sixth Amendment.
II.
FACTUAL AND PROCEDURAL BACKGROUND2
Midday on October 25, 2016, San Bernardino County Sheriff’s Deputy Caballero
drove to a motel to investigate a report about an individual carrying a firearm. Deputy
Caballero was undercover; he was armed but was dressed in a T-shirt and jeans. Deputy
Caballero observed two Black men standing in a parking lot; one of the men was later
identified as defendant. Defendant was standing next to a car, pointing a shotgun at the
driver. Because he was undercover, thus not wearing his tactical vest, Deputy Caballero
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background is taken verbatim from this court’s unpublished opinion from defendant’s direct appeal in case No. E068960. (People v. Downs (Nov. 2, 2018, E068960) [nonpub. opn.] (Downs I.).)
2 chose not to engage with defendant at that time and instead drove his vehicle out of the
parking lot and around to the front of the motel. (Downs I, supra, E068960.)
Deputy Caballero watched defendant enter a room at the motel; he lost sight of the
second man. Sometime later, defendant and a Hispanic male exited the room and walked
down the street. Other deputies had arrived by this time, and defendant was detained.
The motel room was searched; two shotguns and a box of live shotgun rounds were
found. One of the shotguns was loaded. Defendant was interviewed, and under
Miranda3 he admitted pointing a shotgun in the face of a man who owed defendant
money for marijuana and retrieving $50 from him. (Downs I, supra, E068960.)
In June 2017, a jury found defendant guilty of second degree robbery (§§ 211,
212.5, subd. (c)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury
also found true the allegations that defendant personally used a shotgun in commission of
the robbery (§§ 12022.5, subd. (a), 12022.53, subd. (b)). In a bifurcated proceeding, the
trial court found true that defendant had suffered a prior strike conviction (§§ 667,
subds. (b)-(i); 1170.12, subds. (a)-(d)), a prior serious felony conviction (§ 667,
subds. (a)(1)) and four prior prison terms (§ 667.5, subd. (b)). (Downs I, supra,
E068960.)
The trial court sentenced defendant to an aggregate 25-year term in state prison as
follows: the upper term of five years for count 1, doubled to 10 years due to the strike
prior; a consecutive 10-year term for the firearm use enhancement; and a consecutive
3 Miranda v. Arizona (1966) 384 U.S. 436.
3 five-year term for the prior serious felony enhancement. The trial court stayed execution
of the sentence for count 2 under section 654 and struck the punishment for the prison
priors under section 1385.
On direct appeal, we affirmed the judgment but remanded the matter to give the
trial court an opportunity to exercise its newly granted discretion to strike the firearm use
enhancement. (Downs I, supra, E068960.)
On April 25, 2019, on remand for resentencing, the trial court declined to exercise
its discretion to strike both the firearm use enhancement and the prior serious felony
enhancement and reimposed the 25-year prison term. Defendant subsequently appealed,
and we affirmed the judgment. (People v. Downs (May 12, 2020, E072914) [nonpub.
opn.] (Downs II).)
On December 1, 2023, the trial court noted that defendant “is on CDCR report as
to PC1171/PC1171.1 (now PC1172.7/PC1172.75) eligibility.”
On December 12, 2024, defendant filed a resentencing brief. And, on
December 16, 2024, the People filed an opposition to defendant’s request for a full
resentencing hearing.
On February 7, 2025, following a full resentencing hearing pursuant to
section 1172.75, the trial court denied defendant’s motion to strike his prior strike
conviction and imposed a reduced sentence of 20 years. The court reimposed the upper
term of five years on defendant’s robbery conviction, doubled by virtue of his strike, and
an additional 10 years for the attendant gun use enhancement; reimposed and stayed the
4 upper term sentence of three years for the gun possession conviction; and dismissed the
prior prison term enhancements and prior serious felony enhancement. The court
explained, “I have reviewed the case file and the briefs of the parties and considered the
arguments of counsel. As to the resentencing today, I confirm the findings that were
made on the record at the original sentencing hearing and continue to find that the
aggravating factors outweigh the mitigating factors.” Defendant timely appealed.
III.
DISCUSSION
Defendant argues the trial court erred in reimposing the upper terms on his robbery
and gun possession convictions without a jury trial on the aggravating circumstances used
to impose upper term sentences in violation of the Sixth Amendment right to a jury trial.
He relies on recent amendments to section 1170, subdivision (b), and contends the trial
court erred when it reimposed the upper terms, because he neither stipulated to
circumstances in aggravation to justify that term, nor did a jury or court find such
circumstances true beyond a reasonable doubt. (See § 1170, subd. (b)(1), (2).)
Defendant further asserts that section 1172.75, subdivision (d)(4), does not constitute an
exception to section 1170, subdivision (b)(2), and that the error was not harmless and
thus a remand is required for a resentencing hearing.
We review a trial court’s sentencing decisions in a section 1172.75 resentencing
proceeding for abuse of discretion. (People v. Mathis (2025) 111 Cal.App.5th 359, 366,
review granted Aug. 13, 2025, S291628 (Mathis); People v. Garcia (2024) 101
5 Cal.App.5th 848, 855-856.) However, where the appeal from a resentencing order “raises
questions of law, our review is de novo.” (Mathis, at p. 366; see People v. Braden (2023)
14 Cal.5th 791, 804 [“ ‘The interpretation of a statute presents a question of law that this
court reviews de novo.’ ”].)
Effective January 1, 2022, the Legislature made the middle term the presumptive
determinate sentence when a “statute specifies three possible terms.” (§ 1170,
subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.) “The 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.” (§ 1170, subd. (b)(2).)
Section 1172.75, subdivision (d), sets forth the procedure for resentencing a
defendant when his or her sentence has been recalled. As relevant here, similar to the
language in subdivision (b)(2) of section 1170, subdivision (d)(4) of section 1172.75
provides: “Unless the court originally imposed the upper term, the court may not impose
a sentence exceeding the middle term unless there are circumstances in aggravation that
justify the imposition of a term of imprisonment exceeding the middle term, and those
facts have been stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court trial.” (Italics added.)
6 There currently is a split in the Courts of Appeal whether the new burden of proof
in subdivision (b) of section 1170 applies in resentencing a defendant under
section 1172.75, subdivision (d)(4), when the court “originally imposed” the upper term
on the defendant. (Compare People v. Brannon-Thompson (2024) 104 Cal.App.5th 455,
467 (Brannon-Thompson) [“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”]; with People v. Gonzalez
(2024) 107 Cal.App.5th 312, 329 [the new language in subdivision (d)(4) of
section 1172.75 “simply restrict[s] 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”].)
This issue is currently pending before our Supreme Court. (See People v. Eaton
(Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.)4
Until we receive further guidance, we shall follow the Brannon-Thompson court’s
interpretation of section 1172.75, subdivision (d)(4).
We agree with Brannon-Thompson that the statute’s plain language creates an
exception to the new burden of proof required by section 1170, subdivision (b), when
sentencing a defendant to an upper term. (See Brannon-Thompson, supra, 104
4 The Supreme Court granted review in People v. Eaton, supra, review granted May 14, 2025, S289903, to decide whether section 1172.75, subdivision (d)(4), allows the superior court to reimpose the upper term where the defendant did not stipulate to, and a factfinder did not find true beyond a reasonable doubt, the facts underlying one or more aggravating circumstances.
7 Cal.App.5th at p. 467 [the language—“[u]nless the court originally imposed the upper
term”—in section 1172.75, subdivision (d)(4) is “unambiguous”]; accord, People v.
Dozier (2025) 116 Cal.App.5th 700, 713 [“the plain language of section 1172.75,
subdivision (b)(4), creates an exception to the heightened factfinding requirements where
the upper term was originally imposed”]; Mathis, supra, 111 Cal.App.5th at p. 372 [“the
heightened factfinding requirement” in section 1172.75, subdivision (d)(2), “does not
apply where the defendant originally received an upper term sentence”], review granted
Aug. 13, 2025, S291628.)
The Legislature is “free to ‘write statutes that provide for a different or more
limited form of retroactivity, or for no retroactivity at all,’ and it may ‘disclaim the
application of a new ameliorative law to proceedings that occur after a defendant’s
conviction or sentence has been vacated.’ ” (Mathis, supra, 111 Cal.App.5th 359, 374.)
“Section 1172.75, subdivision (d)(4), does exactly that. It expresses the Legislature’s
intent that the new, heightened factfinding requirements for aggravating factors do not
apply where the defendant was originally, lawfully sentenced to an upper term.” (Mathis,
at p. 374, citing Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466-467
[section 1172.75, subdivision (d)(4), unambiguously “carves out an exception to the
general rule that all ameliorative changes to the law must be applied at a section 1172.75
resentencing,” so that “the new burden of proof amendments . . . apply only if the trial
court is imposing the upper term for the first time at a section 1172.75 resentencing”];
accord People v. Lynch (2024) 16 Cal.5th 730, 747 [under the previous statutory scheme,
8 there was no requirement for a trial court to find a particular fact as a condition to
imposing the upper term].)
Defendant relies on People v. Gonzalez, supra, 107 Cal.App.5th 312, which
disagreed with Brannon-Thompson. (See Gonzalez, at p. 330.) As stated previously,
until the Supreme Court decides the issue, we agree with Brannon-Thompson and Mathis,
not Gonzalez.
Based on the foregoing reasons, we find the trial court did not err in imposing
upper terms on defendant’s robbery and gun possession convictions.
IV.
DISPOSITION
The post-judgment order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
MILLER Acting P. J.
FIELDS J.