Filed 8/21/26 P. v. Gutierrez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, A172793
v. LUIS ALBERTO GUTIERREZ, JR., (San Mateo County Super. Ct. No. SC078145A)
Defendant and Appellant.
In 2014, defendant Luis Alberto Gutierrez, Jr., pleaded no contest to one count of attempted murder, with a firearm enhancement, as well as one count of first degree burglary. He also admitted suffering a prison prior. Pursuant to a negotiated agreement, the trial court sentenced him to the upper term of nine years for the attempted murder conviction, 10 years for the firearm enhancement, 16 months for the burglary conviction, and one year for the prison prior, totaling 21 years four months. In 2025, the trial court resentenced defendant pursuant to Penal Code section 1172.75,1 to a total term of 20 years four months, by striking the now invalid one-year prison prior but otherwise declining to further modify defendant’s sentence.
Defendant maintains the trial court erred in declining to strike or to reduce the sentence for the firearm enhancement, in assertedly making dual
1 All further statutory references are to the Penal Code.
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use of facts in imposing the upper term and the firearm enhancement, and in reimposing the upper term sentence for the attempted murder conviction based on aggravating factors not stipulated to by defendant or found true beyond a reasonable doubt by a jury.
We affirm but remand with instructions to correct the abstract of judgment to conform to the court’s oral pronouncement striking the prison prior enhancement.
BACKGROUND2
In August 2012, defendant was dating L.A. L.A. described R.E., who was her uncle (and the victim of the attempted murder), as the “family child molester.” R.E. lived with his mother G.E., who was L.A.’s grandmother.
In mid-August, defendant went to the victim’s and G.E.’s apartment.
When the victim asked why defendant had not called first, he stated he needed to use the bathroom. Once defendant came out of the bathroom, he walked into the living room, stood about 10 feet away from the victim and shot him in the face, hitting him in the left, lower jaw. When the victim asked, “ ‘Why are you doing this,’ ” defendant responded, “[H]e was doing it because of what [the victim] had done to [G.L.],” another one of G.E.’s granddaughters. The two of them began to struggle, and defendant fired two more shots, neither of which hit the victim. At one point, defendant stated to the victim, “ ‘I know what you did to the baby.’ ”
The San Mateo County District Attorney filed an amended information alleging one count of attempted murder willfully, deliberately, and with premeditation (§§ 664, 187, subd. (a), 189—count 1) and one count of willfully
2 As defendant pleaded no contest, the background facts are taken from the preliminary hearing transcript, which the parties stipulated provided a factual basis for the plea.
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and unlawfully entering an inhabited dwelling with intent to commit larceny (§ 460, subd. (a)—count 2). As to count 1, the information alleged defendant personally and intentionally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)). As to both counts, the information further alleged defendant personally used a firearm (§ 12022.5, subd. (a)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and the counts were violent and serious felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)). Finally, the information alleged defendant had suffered a prison prior (§ 667.5, former subd. (b)).
Two years later, in 2014, defendant pleaded no contest to counts 1 and 2 and admitted a firearm enhancement (§ 12022.5, subd. (a)) and the prison prior enhancement, as well as other allegations in exchange for an aggregate sentence of 21 years four months. The term consisted of the upper term of nine years for the attempted murder count (count 1), 16 months for the residential burglary count (count 2), 10 years for the firearm enhancement, and one year for the section 667.5 prison prior.
Eight years later, in 2022, the trial court appointed counsel and set a hearing for resentencing pursuant to section 1172.75 (former § 1171.1).
In advance of the hearing, defendant filed a petition requesting that the court strike the now-invalid prison prior enhancement pursuant to section 1172.75 and strike the 10-year firearm enhancement pursuant to section 1385 or alternatively reduce the sentence “to the mitigated term of three years based on his substantial rehabilitation” and several other circumstances, including that he was a “survivor of [the victim’s] sex assault when [he] was a preteen.” Further, he was now “almost 40 years old,” and assertedly “past the age when criminogenic factors play a role in a person’s social behavior,” he had “been clean and sober for more than 10 years—since
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his commitment,” and he had had no prison rule violations since November 2022.
In support of his petition, defendant attached a report by a social worker who had interviewed him and reviewed his records and set forth her opinions to provide the court with “information pertaining to complex childhood trauma and the resulting impact on [defendant’s] life.” Defendant also attached a report from one Richard Subia, a “public safety consultant providing information and consultation on various issues related to in- custody detention, risk assessments, street gangs and prison gangs, and overall operations of prison facilities throughout the nation.”
At the resentencing hearing, the trial court first heard from Mr. Subia, “an expert in the area of state prison corrections with a particular focus on state prison gang validation criteria and the process for how one becomes validated” and “on the subject of whether a person’s prison record demonstrates that they are an unreasonable risk to public safety.” Subia observed that although defendant’s “C-file” indicated he has a gang tattoo, the Department of Corrections had not “validated” him “as a member or associate of any gang.” And while Subia also acknowledged defendant had incurred multiple prison rule violations—11 over the course of his imprisonment—based on the “rehabilitative programming” in which defendant has participated, he was of the opinion defendant “does not pose an unreasonable risk to public safety.”3 The court then heard from counsel. The People requested the court strike the now-invalid one-year prison prior enhancement but otherwise maintain the sentence. The People pointed out defendant had been “on parole for a crime of violence” at the time of the
3 Defendant’s girlfriend also spoke as a character witness.
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attempted murder offense, and the offense had involved trying “to kill someone by going into an apartment and sh[ooting] them.” As for defendant’s in-custody conduct, the prosecutor pointed out defendant had engaged in “multiple fights and managed to get a new conviction for violence.” Counsel further observed the fights “only stopped once [defendant] was housed in isolation. The Court should be concerned because when he gets out, he doesn’t have that luxury. He doesn’t get to choose who he’s around.”
Defense counsel, in turn, read a letter from defendant in which he detailed his rehabilitative efforts. Counsel next went through the mitigating circumstances applicable to defendant. As to “post-conviction factors,” counsel asserted the evidence “reflects that circumstances have changed since the original sentencing,” pointing to defendant’s participation in programming and coursework. Counsel argued “there is substantial evidence before the Court that [defendant] is committed to his sobriety, to maintaining his sobriety, and that he is—he has prepared himself quite well for reentry, and that he will be very successful . . . if he reenters to a rehabilitation program.”
The trial court began by agreeing with Subia’s testimony that defendant is not a gang member and is not affiliated with any gangs. However, the court disagreed with Subia’s “risk assessment and the evaluation of [defendant’s] behavior in prison.”
Although there were “some significant and mitigating circumstance[s]
and factors under Penal Code Section 1385(c)(2),” including “prior victimization and childhood trauma and possibly due to mental illness,” the court concluded dismissing the firearm enhancement or imposing lesser terms for the attempted murder and enhancement would endanger public safety. Defendant’s “record of violence,” stated the court, began in 2006 with
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a misdemeanor assault conviction. In 2011, he was convicted of felony assault, while on parole. He was also on parole during the instant offense. His conduct in prison included 11 rule violations “that go all the way up to 2022.” Moreover, of the 11 violations, 10 “involved serious and violent behavior.” All of the fights in which defendant engaged in were “mutual” except one, and the one that was not, led to another conviction for assault with force likely to cause great bodily injury on an inmate, for which he was given an additional four-year sentence.
The court also pointed to the social history report defendant had submitted in which the social worker opined defendant was only “now beginning to process his trauma.” While the court commended defendant for the two or three years of programming he had done, it concluded “he needs to do a lot more, a lot more counseling and programming and help before he’s no longer a threat to public safety.” The court further pointed out defendant was in a “controlled environment in a single cell” while incarcerated but on release would be “facing a lot more stressors on the street. Nothing can prevent him from walking away, for example, [from] a drug or treatment program if things got too difficult for him there.”
The court additionally ruled that even apart from the issue of public endangerment, dismissal of the firearm enhancement would not be in the “furtherance of justice.” Taking a “holistic approach,” the court concluded the aggravating factors were “too significant” and outweighed the mitigating factors. The court also observed defendant had received a “significant benefit of getting a determinate sentence,” as he had been “facing something like 48 years to life.” And he was now “getting another benefit of striking the one- year prior.”
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The trial court thus declined to strike or reduce the sentence for the firearm enhancement and imposed the original sentence minus the one-year enhancement, resulting in an aggregate sentence of 20 years four months. The court further noted it was imposing the upper term of nine years on count 1 because defendant’s prior convictions as an adult were numerous and of increasing seriousness, and was imposing the upper 10-year term on the firearm enhancement because defendant was on parole at the time the offense was committed.
DISCUSSION
Section 1172.75 “In 2021, the Legislature enacted section 1172.75, which provides that ‘[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to [section 667.5, subdivision (b)], except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.’ (Id., subd. (a).) The statute sets forth a procedure for identifying and resentencing individuals whose sentences include such a ‘legally invalid’ enhancement. First, . . . the Department of Corrections and Rehabilitation (CDCR) ‘shall identify those persons in [its] custody currently serving a term for a judgment that includes an [invalid section 667.5, subdivision (b)] enhancement . . . and shall provide the name of each person, along with the person’s date of birth and relevant case number or docket number, to the sentencing court that imposed the enhancement.’ (Id., subd. (b).) ‘Upon receiving [such information from the CDCR], the court shall review the judgment and verify that the current judgment includes a[n invalid section 667.5, subdivision (b)] enhancement. . . . If the court determines that the current judgment includes an [invalid] enhancement . . . , the court shall
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recall the sentence and resentence the defendant.’ (Id., subd. (c).)” (People v. Washington (2026) 117 Cal.App.5th 1057, 1062, fns. omitted (Washington).)
“Section 1172.75, subdivision (d) explains what happens at resentencing after the CDCR has identified the defendant and the court has verified their eligibility for relief:
“ ‘(1) 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. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.
“ ‘(2) The court shall 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.
“ ‘(3) The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
“ ‘(4) 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
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doubt at trial by the jury or by the judge in a court trial.’ (§ 1172.75, subd. (d)(1)–(4).)” (Washington, supra, 117 Cal.App.5th at pp. 1062–1063, italics added.) Section 1385 Under section 1385, subdivision (c)(1), “the court shall dismiss an enhancement if it is in the furtherance of justice to do so. . . .” Under subdivision (c)(2) of section 1385, in exercising its discretion, “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.[4] 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.” The statute defines “ ‘Endangering public safety’ ” to mean “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).)
4 The mitigating circumstances specified in section 1385, subdivision (c)(2) are: “(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 offense. [¶] (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.” (§ 1385, subd. (c)(2)(A)–(I).)
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Standard of Review In resentencing proceedings under section 1172.75, we review the trial court’s sentencing decision for abuse of discretion, although we review legal issues de novo. (See People v. Mathis (2025) 111 Cal.App.5th 359, 366 (Mathis), review granted Aug. 15, 2025, S291628 [stating standard in prison prior resentencing case].) More specifically, we similarly review for abuse of discretion a trial court’s determination under section 1385, subdivision (c)(2) that dismissal of an enhancement would endanger public safety. (See People v. Gonzalez (2024) 103 Cal.App.5th 215, 225, citing People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza).)
Defendant bears the burden of demonstrating the trial court’s exercise of its discretion was arbitrary, capricious or patently absurd, resulting in a manifest miscarriage of justice. (Mendoza, supra, 88 Cal.App.5th at p. 298; People v. Garcia (2024) 101 Cal.App.5th 848, 857 (Garcia) [a trial court’s “risk finding” that dismissal of an enhancement would endanger public safety will be upheld “ ‘if it falls within “the bounds of reason, all of the circumstances being considered” ’ ”].)
In the trial court, defendant asserted at the first day of the two-day resentencing hearing that the court was required to make findings under section 1385, subdivision (c)(2) on the basis of “clear and convincing” evidence. The trial court questioned defense counsel on this point, observing it did not believe the clear and convincing standard applied under section 1385. The court asked, “Is there something that I’m missing?” Counsel responded, “I was citing to . . . let me find it. Okay. Let’s see. [Section] 1171.1 applies here, but that doesn’t give the standard.” The court told counsel she could e-mail the court and the People once she found the correct citation. In his supplemental resentencing brief—filed before the continued
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hearing—defendant conceded counsel had spoken in error “in citing this burden at the hearing” and stated “[t]here is no requirement that the court find anything by clear and convincing evidence.” (Italics omitted.) Still, in an apparent abundance of caution, the court, in making its ruling, stated “And even though the clear and convincing standard does not appear to be required, I do find by clear and convincing evidence the aggravating factors outweigh the mitigating factor.”
In his opening brief on appeal, defendant again asserts in passing that the clear and convincing evidence standard applies. However, he offers no argument or citation to any authority in support of that assertion and has thus waived the issue on appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [assertions waived by failure to support them with reasoned argument and citations to authority].) He also forfeited the issue on appeal when he expressly abandoned his assertion below that the clear and convincing evidence standard applied. (See People v. Catlin (2001) 26 Cal.4th 81, 168 [claim abandoned at trial level is waived on appeal]; Johanson Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588 [“issues raised and then abandoned in the trial court . . . cannot be considered on appeal”].)
In short, we will uphold the trial court’s determination, unless it abused its discretion. (Mendoza, supra, 88 Cal.App.5th at p. 298; Garcia, supra, 101 Cal.App.5th at p. 857.) Trial Court Did Not Abuse Its Discretion Defendant first complains the trial court considered only a fraction of the evidence before it, namely his prior convictions, “a singular line in the conclusion of the social study report” that he was only “now beginning to process his [childhood] trauma,” and his string of prison disciplinary
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incidents for fighting. He asserts the court ignored Subia’s testimony explaining “the context” of the disciplinary incidents and ignored the fact he has completed over 172 courses to develop coping and job skills, assist with his mental health, become sober, and develop a parole and release plan.
However, the record is to the contrary. The trial court stated it reviewed all the materials submitted in connection with the resentencing hearing, including the social study and Subia’s report attached to defendant’s resentencing memorandum. Additionally, although the court did not specifically detail all of the rehabilitative efforts defendant had done, the court was well aware of his efforts having read through the materials, and the court made specific reference to the two or three years of programming defendant had done through the prison, since he had been allowed to participate.
We therefore cannot say the trial court exercised its discretion “ ‘ “ ‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (Mendoza, supra, 88 Cal.App.5th at p. 298; Garcia, supra, 101 Cal.App.5th at p. 857 [“ ‘in absence of a clear showing that its sentencing discretion was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives’ ”].) And we are mindful that, under this standard, the trial court’s “ ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Forward-Looking Inquiry Defendant additionally contends the trial court employed the wrong perspective in assessing dangerousness to the public. Specifically, he claims
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the court focused on defendant’s current dangerousness rather than considering “dangerousness at the time of a future release date.” (Boldface & capitalization omitted.)
In support of this argument, defendant cites to People v. Gonzalez, supra, 103 Cal.App.5th 215. In that case, the defendant was originally sentenced to 75 years to life, which included a term of 25 years to life for a firearm enhancement. (Id. at pp. 219–220.) At resentencing, the defendant urged the trial court to conduct a forward-looking evaluation of dangerousness. That is, he maintained the court should consider dangerousness as of the time he would be released from prison if the court dismissed the enhancement—which in his case would be after another 50 years of incarceration. (Id. at pp. 223–224.) The trial court declined to do so, found the defendant “ ‘presently . . . does represent a danger to society’ ” (id. at pp. 224, 227, italics added), and “ ‘for that reason’ ” denied the request to dismiss the enhancement (id. at p. 224).
The Court of Appeal reversed, holding the trial court had erred in its “singular focus on whether the defendant currently poses a danger.” (People v. Gonzalez, supra, 103 Cal.App.5th at p. 228.) “Although the current dangerousness of the defendant is an appropriate factor to consider,” said the court, “as it will have some bearing on whether dismissing the enhancement would 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.” (Ibid.)
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To begin with, defendant also forfeited this issue since he failed to raise it below. He never argued in his resentencing briefs that the public safety analysis must be “forward looking,” let alone argued at the hearing that the trial court was not taking a sufficiently broad perspective on this factor. “[C]omplaints 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.” (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Gonzalez, supra, 103 Cal.App.5th at p. 225.) “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (People v. Scott, at p. 353.)
Furthermore, even assuming the issue was preserved,5 the record does not demonstrate that the trial court singularly focused on whether the defendant currently poses a danger. Indeed, unlike in People v. Gonzalez, not only did defendant never raise the issue, but the trial court never stated, as did the trial court in that case, that it found defendant “currently” posed a danger to the public. (See People v. Gonzalez, supra, 103 Cal.App.5th at pp. 224, 228.) We cannot, of course, presume the trial court made such an error. To the contrary, all presumptions and intendments must be made in favor of the court’s judgment, and the appellant must affirmatively demonstrate error. (See People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7 [“ ‘ “A judgment or order of the lower court is presumed correct. All intendments
5 In his opening and reply briefs, defendant generally contends that to the extent the sentencing issues raised in his appeal were not fully preserved by objection below, he received ineffective assistance of counsel. We therefore exercise our discretion to reach the issue to forestall any ineffective assistance of counsel claim. (People v. Torres (2025) 113 Cal.App.5th 88, 92.)
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and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .” ’ ”].)
Defendant points to the trial court’s statements regarding his “prior convictions, with the most recent being the in-custody assault conviction in 2015,” his “incidents for ‘fighting’ . . . while in custody, which took place between 2014 and 2022,” and his “ ‘very impressive’ but ‘baby steps’ to ‘turn his life around’ in the preceding two to three years” which, while laudable, were “not sufficient to support a lesser term.” He construes these statements as collectively demonstrating “that the court did not adequately consider it had discretion to impose a lesser term that did not require an immediate release from prison and assess his dangerousness at the time of eventual release. . . .”
To begin with, People v. Gonzalez, itself, holds that a defendant’s current dangerousness is an appropriate factor to consider, and defendant points to no case law which states a trial court may not consider current dangerousness or a petitioner’s in-custody disciplinary record. (Cf. People v. Gonzalez, supra, 103 Cal.App.5th at p. 228 [“the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public”].)
Furthermore, the trial court was well aware of the option to impose a lesser sentence for the enhancement, which would result in further incarceration and a later release. Defense counsel repeatedly reminded the court of that option and suggested several reduced-sentence options the court could impose. Indeed, just before the court pronounced sentence, counsel inquired “would the Court consider the midterm because . . . striking the enhancement is not the only option.” The court indicated it understood the option to reduce the sentence but declined to do so.
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In sum, it could not have been lost on the trial court, and we certainly would make no assumption of such, that a lesser sentence, rather than a dismissal, would extend defendant’s incarceration, allowing for further rehabilitative efforts. The implication, in the absence of anything to the contrary in the record, is that the court understood that this called for some additional consideration of the danger to the public at that time. (See People v. Brugman (2021) 62 Cal.App.5th 608, 637 [“ ‘The trial court is not required to state reasons for declining to exercise its discretion under section 1385’ [citations], and ‘is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.’ ”].)
We further observe that even had the trial court imposed a lesser term for the firearm enhancement, defendant’s situation would have differed very significantly from that of the defendant in People v. Gonzalez, who faced a 50- year to life sentence even if the trial court dismissed the enhancement. (People v. Gonzalez, supra, 103 Cal.App.5th at pp. 230–231.) By comparison, a defendant “who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s.” (People v. Williams (2018) 19 Cal.App.5th 1057, 1063.) Here, defendant was 39 years old at the time of resentencing, and he had served approximately 13 years of his 20-year, four-month sentence. Thus, even considering the consecutive four-year term defendant received for his in-custody conviction, defendant’s incarceration status was a far cry from the 50 years the defendant faced in People v. Gonzalez; nor would defendant be in his 70’s upon release. Furthermore, the time span differential in defendant’s release would have been much shorter than that in People v. Gonzalez, had the trial court, as defendant had urged, imposed the midterm of four years or the low term of three years. In other words,
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defendant was not looking at a release date decades down the road, calling for a dangerousness assessment as of that time.
We therefore conclude defendant has not established an abuse of discretion in denying defendant’s request to dismiss or reduce the sentence imposed for the firearm enhancement.
Given our determination, we need not address defendant’s claim that “in light of [the trial court’s] erroneous conclusion regarding ‘danger to public safety,’ ” the trial court “failed to give adequate weight to [his] mitigation to reduce his originally imposed aggravated term.” (Boldface & capitalization omitted.) (People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038 [courts “must assign significant value” to section 1385 mitigating circumstances only in cases where the trial court “does not find that dismissal would endanger public safety”].)6 Dual Use of Facts Defendant next contends the trial court erroneously relied on the same fact—that he was armed with or used a firearm at the time of the commission of the crime—for imposing upper terms for both the attempted murder conviction and the firearm enhancement.
Again, defendant made no objection to any asserted “dual use” of facts at the time of sentencing and thus has forfeited the issue. (People v. Scott, supra, 9 Cal.4th at p. 356 [“[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting
6 Defendant also cites in passing to section 1170, subdivision (b)(6), which creates a low term presumption if certain mitigating circumstances are found to have been contributing factors to the offense. But he makes no argument and cites to no authority that that section is applicable, and has therefore waived any such argument on appeal. Nor did he ever argue in the trial court that he was entitled to the low term pursuant to that statute and therefore has forfeited the issue as well.
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reasons cannot be raised for the first time on appeal.”]; People v. Erdelen (1996) 46 Cal.App.4th 86, 90–91 [defendant’s failure to object forfeited dual use argument].)
But even if defendant had preserved his dual use argument for appeal, it is meritless. The trial court stated on the record it imposed the upper term for count 1 because defendant’s prior convictions as an adult are numerous and of increasing seriousness, and imposed the upper term on the firearm enhancement because defendant was on parole at the time the offense was committed. Imposing Upper Term Sentence on Count 1 Defendant lastly contends the trial court improperly imposed an upper term sentence for the attempted murder conviction based on aggravating factors not found true by a court or jury or stipulated to by him, in contravention of section 1170, subdivision (b).
To begin with, this is another issue defendant failed to raise in the trial court and has thus forfeited on appeal. (See People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 464–465 (Brannon-Thompson) [the defendant forfeited claim that resentencing court failed to consider § 1170, subd. (b) in again imposing upper term].) But even had defendant not done so, we would conclude his argument lacks merit.
Section 1172.75, subdivision (d)(4) uniquely 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.)
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As the parties acknowledge, the Courts of Appeal differ on the significance of this language. (Compare People v. Lua (2026) 121 Cal.App.5th 472, 477–479 [holding § 1172.75, subd. (d)(4) creates an exception to the heightened factfinding requirement of § 1170]; People v. Dozier (2025) 116 Cal.App.5th 700, 711–716, review granted Feb. 11, 2016, S294597 [same]; Mathis, supra, 111 Cal.App.5th 359, 369–374 [narrower holding that heightened factfinding is not required when trial court elects to reimpose an upper term sentence that complied with Sixth Amendment when originally imposed]; Brannon-Thompson, supra 104 Cal.App.5th at pp. 466–467 [holding plain language of § 1172.75, subd. (d)(4) confirms “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,” and not in reimposing the upper term]; with People v. Gonzalez (2024) 107 Cal.App.5th 312, 327–330 (Gonzalez) [acknowledging “the plain language of section 1172.75, subdivision (d)(4), on its face, could be interpreted as not requiring proof of aggravating factors before reimposing an upper term,” but holding “another reasonable interpretation of . . . subdivision (d)(4) 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”].)
The issue is currently pending before our Supreme Court in People v.
Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903, in which the Court of Appeal followed the reasoning of Brannon- Thompson. (People v. Eaton (Cal.Ct.App. 2025) 2025 WL 814818, at p. *1.)
Defendant urges us to follow Gonzalez, while the Attorney General urges us to follow the growing Brannon-Thompson line of cases. We agree
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with the latter cases that the section 1172.75, subdivision (d)(4) exception plainly allows resentencing courts to reimpose an original upper term sentence without a stipulation by defendant or a jury finding of the underlying facts of the aggravating circumstances. We find Mathis’s analysis particularly apropos, and rather than reinvent the wheel, quote the case at length:
“Our Supreme Court recently reviewed the history of the relevant legislation. (See People v. Lynch (2024) 16 Cal.5th 730 . . . (Lynch).) Until 2007, section 1170, former subdivision (b), provided that, when a penal statute specifies three possible prison terms, ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.’ (See § 1170, former subd. (b); Stats. 1977, ch. 165, § 15, p. 647; Stats. 1998, ch. 926, § 1.5, p. 6206; see also Lynch, at p. 746.)
“In 2007, however, the United States Supreme Court held that California’s upper term sentencing scheme violated the Sixth Amendment right to a jury trial because it allowed a defendant’s prison sentence to be increased beyond the statutory maximum based on facts that had not been found true beyond a reasonable doubt by a jury or admitted by the defendant. (See Cunningham v. California (2007) 549 U.S. 270, 274–275 . . . (Cunningham); see also Lynch, supra, 16 Cal.5th at pp. 746–747.) The statutory maximum, for Sixth Amendment purposes, is the maximum sentence the court may impose without finding any additional facts beyond those necessary to support the verdict. (Lynch, at p. 747.) Cunningham explained that, except for prior conviction allegations, the Sixth Amendment requires ‘any fact that exposes a defendant to a greater potential sentence’ to be found by a jury beyond a reasonable doubt. (Cunningham, at p. 281.) Cunningham noted that California could comply with the Sixth Amendment
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either by requiring jury findings for any facts necessary to impose an aggravated sentence, or by authorizing sentencing courts ‘ “to exercise broad discretion . . . within a statutory range.” ’ (Cunningham, at p. 294; see Lynch, at p. 747.)
“That same year, our Legislature chose Cunningham’s second option.
(Lynch, supra, 16 Cal.5th at p. 748.) The Legislature amended section 1170, subdivision (b), to grant trial courts ‘broad discretion’ to choose between the lower, middle, and upper terms. (See § 1170, former subd. (b), enacted by Sen. Bill No. 40 (2007–2008 Reg. Sess.); Stats. 2007, ch. 3, § 2, p. 5, eff. Mar. 30, 2007; Lynch, at pp. 747–748.) That sentencing scheme, in effect when Mathis was originally sentenced, was one that ‘ “everyone agrees” ’ raised no Sixth Amendment concerns. (Lynch, at p. 747.)
“Subsequently, our Legislature revisited the question and amended section 1170, subdivision (b), to adopt the first option Cunningham outlined. (Lynch, supra, 16 Cal.5th at p. 748.) Effective January 1, 2022, section 1170, subdivision (b), now states that, when a ‘statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term’ unless ‘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)(1)–(2); see Sen. Bill No. 567 (2021–2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.)
“In the same session, our Legislature also established the resentencing procedures for defendants like Mathis who were serving terms that included a prior prison term enhancement. (See § 1172.75, subd. (a), as enacted by
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Sen. Bill No. 483 (2021–2022 Reg. Sess.); Stats. 2021, ch. 728, §§ 1, 3, eff. Jan. 1, 2022; renumbered from § 1171.1 by Assem. Bill No. 200 (2021–2022 Reg. Sess.); Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)
“[¶] . . . [¶] Section 1172.75, subdivision (d)(4), provides that, before any aggravating facts may be used to justify the imposition of an upper term sentence, the defendant must have admitted them or they must have been found true beyond a reasonable doubt by a judge or jury, ‘[u]nless the court originally imposed the upper term.’ (Italics added.) Based on this ‘unambiguous’ language, People v. Brannon-Thompson[, supra,] 104 Cal.App.5th 455, 466–467 . . . held that the heightened factfinding requirement does not apply where the defendant originally received an upper term sentence.
“But Mathis argues that the italicized language above creates an ambiguity in the statutory scheme, rather than an exception to the factfinding requirement. Specifically, section 1172.75, subdivision (d)(2), mandates that, during the resentencing proceeding, ‘[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion.’ And the heightened factfinding requirement of section 1170, subdivision (b)(2), Mathis says, is one of the ‘changes in law’ that must be applied. According to Mathis, Brannon-Thompson’s construction of section 1172.75, subdivision (d)(4), conflicts with the duty to apply changes in law in subdivision (d)(2) of the same statute, making the statute ambiguous.
“Further, citing Lynch, Mathis contends that section 1172.75, subdivision (d)(4), would violate the Sixth Amendment unless it were interpreted to make the heightened factfinding requirement applicable to cases in which the defendant was originally sentenced to the upper term.
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Mathis draws support from People v. Gonzalez[, supra,] 107 Cal.App.5th 312, 327–330 . . . , which rejected Brannon-Thompson’s construction of section 1172.75, subdivision (d)(4). (See Gonzalez, at p. 330.)
“Gonzalez held that interpreting section 1172.75, subdivision (d)(4), to except defendants originally sentenced to upper terms from the heightened factfinding requirement would potentially violate the Sixth Amendment by allowing for the imposition of a sentence based on facts not found by a jury. (Gonzalez, supra, 107 Cal.App.5th at pp. 329–330.) In so holding, the court relied in part on Lynch’s point that, ‘[u]nder the current statute [section 1170, subdivision (b),] the middle term is the maximum term that can be imposed unless additional factual determinations are made. It is the requirement of additional factfinding that brings the Sixth Amendment into play.’ (Lynch, supra, 16 Cal.5th at p. 759; see Gonzalez, at p. 330.) In light of these constitutional concerns, Gonzalez construed section 1172.75, subdivision (d)(4), to ‘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.’ (Gonzalez, at p. 329.) According to Gonzalez, ‘a defendant would be eligible for the upper term but could not receive it’ unless the heightened factfinding requirement is met. (Ibid.) Gonzalez distinguished Brannon-Thompson because it did not grapple with Sixth Amendment concerns. (See Gonzalez, at p. 330; Brannon-Thompson, supra, 104 Cal.App.5th at p. 467 [declining to address the defendant’s constitutional argument due to forfeiture].)
“We disagree that the Sixth Amendment is implicated here. When Mathis was sentenced, in 2017, his sentence was imposed pursuant to the version of section 1170, subdivision (b), that granted the trial court broad
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discretion to select any of the three applicable prison terms. As Lynch explained, under that sentencing scheme, there was no requirement for the judge to find a particular fact to justify imposition of the upper term. (See Lynch, supra, 16 Cal.5th at p. 747.) As a result, the court’s selection of an upper term at Mathis’s 2017 sentencing did not run afoul of the Sixth Amendment. (See Lynch, at pp. 747–748; Cunningham, supra, 549 U.S. at p. 294.)
“The same statutory scheme under which Mathis was sentenced had long been in effect at the time that the Legislature established the resentencing procedures applicable here. As a result, it was not necessary for the Legislature to impose the heightened factfinding requirements for defendants like Mathis who originally received upper term sentences under the prior version of section 1170, subdivision (b). That sentencing scheme fully complied with the Sixth Amendment. As discussed, the prior scheme authorized the imposition of upper term sentences without any additional fact-finding. But for defendants who did not receive an upper term in their original sentencing, to ensure that any newly imposed upper term sentence is consistent with the Sixth Amendment, the Legislature mandated that any such aggravating fact be found pursuant to the heightened factfinding requirements specified in Cunningham. (See § 1172.75, subd. (d)(4).)
“We therefore reject Mathis’s contention that the exception in section 1172.75, subdivision (d)(4), for cases in which the trial ‘court originally imposed the upper term’ must be construed, as a matter of constitutional avoidance, to nonetheless require aggravating factors to be found by the factfinder or admitted by the defendant. 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
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additional factfinding under section 1172.75, subdivision (d)(4). (See Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.)
“Further, contrary to Mathis’s argument, section 1172.75 is not ambiguous because more specific legislative enactments control over general ones. (See City of Los Angeles v. PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46, 68–69. . . .) And here, section 1172.75, subdivision (d)(2), addresses the general topic of changes in law, whereas subdivision (d)(4) of that statute more specifically deals with the new factfinding requirement, making clear that it does not apply where ‘the court originally imposed the upper term.’ (See Brannon-Thompson, supra, 104 Cal.App.5th at p. 467 [‘Section 1172.75, subdivision (d)(4) is . . . an exception to the general rule that the trial court must apply ameliorative changes in the law at a section 1172.75 resentencing.’].)
“To be sure, absent language to the contrary in section 1172.75, section 1170, subdivision (b)’s amended sentencing scheme would apply to Mathis’s resentencing because we presume that the Legislature intends ameliorative changes in sentencing law to apply in all cases that are nonfinal, including cases which became nonfinal due to resentencing. (See People v. Padilla (2022) 13 Cal.5th 152, 162–163. . . .) But the Legislature is also 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.’ (Id., at p. 162; see also [People v.] Terwilligar [(2025)] 109 Cal.App.5th [585,] 602.) 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
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term. (See Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.) During Mathis’s resentencing proceeding, the trial court permissibly elected to retain the upper term sentence previously imposed under a sentencing scheme that was fully consistent with his Sixth Amendment right to a jury trial. (Cf. Terwilligar, at p. 602 [explaining that ‘section 1172.75 allows for the possibility that a sentence of the original length will be reimposed’].)” (Mathis, supra, 111 Cal.App.5th at pp. 370–374, italics & fns. omitted.)
Like the defendant in Mathis, defendant here was originally sentenced in 2014 under the determinate sentencing law, which was in effect between 2007 and 2021. (See generally Lynch, supra, 16 Cal.5th at pp. 746–748 [overview of the history of the state’s determinate sentencing law].) Thus, as the Court of Appeal held in Mathis, the trial court here could permissibly reimpose the upper term sentence that had been previously imposed under a sentencing scheme that was fully consistent with the Sixth Amendment right to a jury trial. Correction of Abstract of Judgment Lastly, the parties agree, as do we, that the abstract of judgment must be corrected to conform to the trial court’s oral pronouncement striking the section 667.5, subdivision (b) prior, rather than stating, as it currently does, that the enhancement was stayed. (See People v. Leon (2020) 8 Cal.5th 831, 855 [“Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.”]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [an appellate court may order “correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts”].)
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DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment consistent with the court’s oral pronouncement. The clerk of the superior court is ordered to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
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Banke, J.
We concur:
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Humes, P. J.
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Langhorne Wilson, J.
A172793, People v. Gutierrez