Filed 8/28/26 P. v. Herrera CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B347175
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA120705)
v.
ROBERTO HERRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew C. Kim, Judge. Affirmed in part, vacated in part, and remanded.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Deepti Vaadyala, Deputy Attorneys General, for Plaintiff and Respondent.
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The trial court resentenced Roberto Herrera under Penal Code section 1172.75.1 On appeal, Herrera contends the trial court abused its discretion by failing to consider the length of his sentence and future dangerousness in determining that the dismissal of a firearm enhancement would endanger public safety. We find no abuse of discretion and affirm as to count 1. We vacate the sentence as to count 2 and remand for further resentencing to correct an error as to that count only.
FACTUAL AND PROCEDURAL BACKGROUND Underlying Offenses2 On April 28, 2011, Daniel Villanueva drove to a shopping center with his girlfriend and their son. He turned on his blinker in the parking lot while he waited for a van to pull out of a parking space. After the van pulled out, a pick-up truck drove into the space for which Villanueva was waiting. Herrera got out of the truck, and Villanueva got out of his car. Villanueva confronted Herrera about taking the parking space. Herrera was “ ‘upset [and] [a]ggressive,’ and responded, ‘ “What are you going to do about it?” ’ ” Villanueva returned home to drop off his girlfriend and son, then returned to the shopping center.
1 All undesignated statutory references are to the Penal Code. 2 We briefly summarize the facts of the underlying offenses from the opinion issued in Herrera’s consolidated direct appeal and habeas petition. (People v. Herrera (Oct. 27, 2016, B260095 [nonpub. opn.] (Herrera).)
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An eyewitness saw Villanueva and Herrera both return to the shopping center separately. The men got out of their vehicles and walked behind a dumpster. The witness heard them fighting and then heard someone say, “ ‘ “Estubo” ’ which, according to the court’s Spanish-language interpreter, could mean ‘To meet,’ ‘That’s the end. It’s final. That’s it.’ ” Villanueva and Herrera walked out of the dumpster enclosure, spoke to each other, and shook hands.
Villanueva got in his car. Herrera went to his truck, grabbed a semi-automatic handgun, and walked over to Villanueva’s car. As Villanueva’s car was reversing, Herrera fired five shots through the driver’s side window and the windshield, hitting Villanueva. Herrera got back in his truck and drove away. Villanueva died from his injuries.
At trial, Herrera testified that he did not shoot Villanueva.
Procedural History In 2012, the People charged Herrera with the murder of Villanueva (§ 187, subd. (a); count 1), and with shooting at an occupied motor vehicle (§ 246; count 2). As to both counts, the information alleged that Herrera personally and intentionally discharged a firearm causing great bodily injury and death. (§ 12022.53, subds. (b)–(d).) The information further alleged that Herrera had served two prior prison terms within the meaning of section 667.5, subdivision (b).
In 2013, a jury found Herrera guilty on both counts and found the firearm allegations under section 12022.53, subdivisions (b), (c), and (d), true. Herrera admitted suffering two prior convictions pursuant to section 667.5, subdivision (b), and the trial court found the prior prison term allegations to be true.
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In 2014, the trial court sentenced Herrera to a term of 51 years to life on count 1, as follows: (1) 25 years to life, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), plus one year for a section 667.5, subdivision (b) prison prior; (2) a consecutive term of 32 years to life on count 2, consisting of the upper term of seven years for the section 246 conviction, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The trial court stayed the sentence on count 2 under section 654.
Herrera appealed and also filed a petition for writ of habeas corpus. In an unpublished opinion, a panel of this court vacated the jury’s findings as to the section 12022.53, subdivisions (b) and (c) enhancements alleged as to count 2 and otherwise affirmed the judgment. (Herrera, supra, B260095.) The court denied the habeas petition. (Ibid.)
In 2022, after Senate Bill No. 483 (2021–2022 Reg. Sess.)
was passed, the California Department of Corrections and Rehabilitation identified Herrera as eligible for resentencing pursuant to section 1172.75.
In February 2025, Herrera filed a petition for recall and resentencing under section 1172.75, seeking a full resentencing. Herrera asked that, in addition to striking the now-invalid section 667.5, subdivision (b) prison prior, the court also strike or reduce the section 12022.53, subdivision (d), enhancement imposed on count 1. Herrera primarily relied on his post- conviction record of rehabilitation, asserting that he had no “discernable disciplinary matters in his C file.” He also argued that his age and time served reduced his risk of future violence. He pointed out that he was 26 years old when the offense occurred and would be eligible for parole when he turned 50.
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Herrera further argued two mitigating factors applied under section 1385, subdivision (c): that application of the enhancement would result in a discriminatory racial impact and that application of the firearm enhancement would result in an “excessively long sentence.”3 Herrera supported the petition with certificates of completion from numerous rehabilitative and educational programs, and letters of support.
In June 2025, the trial court held a resentencing hearing, vacated Herrera’s sentence, and resentenced him. The court indicated it had reviewed the resentencing petition, the attached exhibits, Herrera’s C-file, the appellate court opinion from the direct appeal, the abstract of judgment, and the People’s statement of view. The People conceded that the section 667.5, subdivision (b), prison prior enhancement should be stricken, but asked the court to retain the firearm enhancement.
The trial court struck Herrera’s section 667.5, subdivision (b), prison prior enhancement. The court resentenced Herrera to a total prison term of 45 years to life, consisting of 25 years to life on count 1, plus 20 years under section 12022.53, subdivision (c). As to count 2, the court sentenced appellant to the midterm of 5 years, plus 20 years under section 12022.53, subdivision (c), and stayed the sentence pursuant to section 654. The court dismissed the section 12022.53, subdivision (d), firearm enhancement.
3 Section 1385, subdivision (c)(2), lists the following relevant mitigating circumstances: “(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745,” and “(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.”
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In explaining its reasoning, the trial court first remarked that Herrera had “done well in prison,” where he had “received several laudatory chronos” and had been “essentially, disciplinefree .”4 It declined to strike the firearm enhancement, explaining “this was a violent murder” and “dismissal of that enhancement would endanger public safety,” stating it knew that the “meaning of endangering public safety . . . would result in either physical injury or other serious danger to others.” The court then described the facts of the underlying offenses. It also indicated it had “considered all of the circumstances listed under [section] 1385[,] subdivision (c)(2)(A) through (I)” and concluded that the imposition of the enhancement would not “result in a discriminatory impact.” The court stated it was exercising its discretion under People v. Tirado (2022) 12 Cal.5th 688 (Tirado), governing the imposition of uncharged, lesser-included enhancements, to impose a firearm enhancement under section 12022.53, subdivision (c) as to both counts, and to dismiss the subdivision (d) enhancements.
Herrera timely appealed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion by Declining to Strike the Firearm Enhancement A. Governing law and standard of review Effective January 1, 2022, section 1172.75, subdivision (a), invalidated most sentence enhancements imposed prior to January 1, 2020, pursuant to subdivision (b) of section 667.5.
4 The record indicates that Herrera’s C-file was submitted to the trial court, but it is not in the record. The People do not dispute the trial court’s characterization of Herrera’s disciplinary record while in prison.
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With exceptions not relevant here, the statute requires that sentences that include these invalid enhancements be recalled, and the defendant resentenced.
Section 1172.75, subdivision (d), provides in relevant part:
“(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.”
Under section 1172.75, subdivision (d)(2), Herrera asked the trial court to apply changes in the law regarding the dismissal of sentence enhancements. Effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) amended section 1385. (Stats. 2021, ch. 721, § 1.) Section 1385, subdivision (c)(1), now
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provides that “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.” Subdivision (c)(2) provides that in evaluating whether to dismiss an enhancement, “the court shall consider and afford great weight” to evidence of enumerated mitigating circumstances. “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).)
In People v. Walker (2024) 16 Cal.5th 1024, our high court clarified that when courts are considering section 1385, subdivision (c)(2), “absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.” (Walker, at p. 1029.) The court “emphasize[d] . . . 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).” (Id. at p. 1033.) If a trial court finds dismissal of the enhancement would endanger public safety, “consideration of the mitigating factors in section 1385[, subdivision] (c)(2) is not required.” (People v. Mendoza (2023) 88 Cal.App.5th 287, 297 (Mendoza); see Walker, at p. 1033.)
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Under section 12022.53, subdivision (h), a “court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” In Tirado, our high court held that a court that strikes an enhancement under section 12022.53, subdivision (h), may impose a lesser, uncharged enhancement. (Tirado, supra, 12 Cal.5th at pp. 692, 696.)
We review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion, including a court’s determination of dangerousness. (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225 (Gonzalez); Mendoza, supra, 88 Cal.App.5th at p. 298.) “[S]ection 1172.75, subdivision (d), vests the superior court with broad discretion based on an inherently factual inquiry.” (People v. Garcia (2024) 101 Cal.App.5th 848, 856–857.) “Under an abuse of discretion standard, ‘ “we ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.” ’ [Citations.]” (Id. at p. 857.) A court also abuses its discretion if the decision is made without the sentencing court’s informed discretion or if the court is unaware of the scope of its discretionary powers. (People v. Fredrickson (2023) 90 Cal.App.5th 984, 988.) “ ‘ “[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)
B. Analysis Herrera contends the trial court improperly denied his request to dismiss the section 12022.53 firearm enhancement because the court evaluated only his current dangerousness and
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did not consider the length of his sentence or assess his future dangerousness at the time when he would be released. We disagree. The record does not establish that the court failed to consider Herrera’s dangerousness at the time of his potential release or confined its analysis to whether Herrera currently posed a danger to public safety.5 Herrera relies on Gonzalez, supra, 103 Cal.App.5th 215. In that case, the court considered the trial court’s analysis under section 1385, subdivision (c)(2), which directs that proof of enumerated mitigating circumstances “weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” Here, the trial court did not find any mitigating circumstances under section 1385, subdivision (c)(2), and Herrera does not assert any error related to this finding.
Moreover, Gonzalez is distinguishable. In Gonzalez, the defendant contended the trial court should have considered his release date in determining whether he posed a danger to public safety. (Gonzalez, supra, 103 Cal.App.5th at pp. 221, 223–224.) The record affirmatively established that the trial court only
5 The People argue that Herrera forfeited this argument. We disagree. In his petition for resentencing, he argued that his age, time served, and diminished physical condition reduced his risk of “future violence,” asserting he would be eligible for elder parole when he turned 50 in March 2035. At the hearing, the trial court asked defense counsel if there was anything she wanted to add that was “not already contained in your moving papers with respect to resentencing,” and defense counsel submitted on her petition. Defense counsel did not need to raise the issue at the hearing to preserve it because it was already in her petition, which the trial court indicated it had read.
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focused on the defendant’s current dangerousness. (Id. at p. 231.) The appellate court found “the trial court erred because it considered only whether Gonzalez currently posed a danger to the public when assessing if a dismissal of the firearm enhancement would ‘endanger public safety.’ (§ 1385, subd. (c)(2).) In light of Gonzalez’s sentence of 50 years to life for the murder conviction, the trial court also should have considered the date on which Gonzalez 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.)
In contrast, here, the record does not indicate that the trial court only considered Herrera’s current or past dangerousness. The trial court stated that Herrera committed a violent murder and that dismissal of the enhancement “would endanger public safety.” The court also cited the definition of public safety and recited the specific facts of the crime. At no point did it confine its analysis to any specific time period. (People v. Coleman (2024) 98 Cal.App.5th 709, 725 [“Defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.”].) We therefore presume it considered the length of Herrera’s sentence in making its determination, as nothing indicates the court did not. “We assume the trial court was aware of and followed applicable law.” (Id. at p. 724; see also People v. Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s sentencing decision implies requisite subsidiary findings].)6
6 Gonzalez was decided in 2024, well before the resentencing hearing in this case in 2025. (Gonzalez, supra, 103 Cal.App.5th 215.) We must presume the trial court was aware of it.
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The trial court was not required to indicate what time period it was relying on in considering whether to dismiss the enhancement. If a trial court declines to dismiss an enhancement, it need not use any “particular language” in doing so. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.) Although “[s]ection 1385, subdivision (a), requires a trial court to state its ‘reasons for [a] dismissal . . . orally on the record,’ ” there is no such statutory requirement when a court declines to dismiss an enhancement. (Ibid.) Thus, the trial court did not need to make any express findings on the record for us to find a proper exercise of discretion in denying a motion under section 1385. (Carmony, supra, 33 Cal.4th at p. 378 [“[w]here the record is silent” we affirm].)
There is also no indication that the trial court misunderstood the scope of its discretion. The trial court expressly considered the post-conviction factors set forth in section 1172.75, subdivision (d)(3), which include the defendant’s disciplinary record and “evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence.” It also recognized that under Tirado it could retain the firearm enhancement but impose the lesser included offense of section 12022.53, subdivision (c), when it dismissed the subdivision (d) enhancement. The court further stated it considered the factors enumerated under section 1385, subdivision (c)(2), and made a specific ruling as to racial impact. Thus, the trial court clearly understood the applicable law and the factors it was to consider.
Indeed, on appeal, Herrera does not argue that the trial court misunderstood or misapplied any of these factors. Herrera does not make any argument under Walker, for example, that the
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trial court misunderstood its task in determining dangerousness; he specifically asserts it is not relevant to his argument, which he confines to his contention that the trial court failed to consider his future dangerousness. As discussed, the record does not support reversal on this basis.
Accordingly, Herrera has not established that the trial court abused its discretion in declining to strike the firearm enhancement as to count 1.7 However, we must vacate the sentence as to count 2, the conviction for shooting at an occupied motor vehicle in violation of section 246. Section 12022.53, subdivision (c), imposes additional punishment for a person who commits a felony specified in section 12022.53, subdivision (a). Section 246 is not an offense identified in subdivision (a). While the trial court could dismiss the section 12022.53, subdivision (d), firearm enhancement as to count 2, it could not impose a lesser enhancement under section 12022.53, subdivision (c). (Tirado, supra, 12 Cal.5th at p. 699, fn. 12.) We vacate the sentence as to count 2 and remand for resentencing as to that count only.8
7 Because we find no abuse of discretion, we do not address Herrera’s arguments regarding remand and prejudice. 8 We invited the parties to file supplemental briefs regarding potential error in sentencing as to count 2. The People conceded trial court error in imposing the section 12022.53, subdivision (c) enhancement as to count 2 and asked this court to vacate the sentence as to count 2 and remand the matter.
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DISPOSITION
The sentence as to count 2 is vacated and the matter is remanded for resentencing as to that count only. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ADAMS, P. J.
We concur:
HANASONO, J.
ASHWORTH, J.*
* Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.