People v. Ochoa CA2/4

Opinion

Filed 8/21/26 P. v. Ochoa CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B345754

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA084621)

v.

JESSE OCHOA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert G. Chu, Judge. Affirmed as modified.

Steven A. Torres, 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, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2007, a jury found defendant Jesse Ochoa1 guilty of two counts of willful, deliberate, and premeditated attempted murder, shooting at an occupied motor vehicle, and possession of a firearm by a felon. The jury found true that he used and discharged a firearm in the commission of one of the attempted murders. Defendant admitted he served a prior prison term within the meaning of Penal Code section 667.5.2 The trial court sentenced defendant to two consecutive life terms with seven-year minimum parole eligibility periods for the attempted murders, which included the upper term of three years for the possession of a firearm by a felon, a twenty-year firearm enhancement, and a one-year prior prison term enhancement. In 2025, the trial court resentenced defendant pursuant to section 1172.75, striking the now-invalid prior prison term enhancement but otherwise left defendant’s sentence intact.

On appeal, defendant contends the trial court erred in reimposing the upper term on the possession of a firearm by a felon count and declining to dismiss the firearm enhancement. We are not persuaded. Defendant also argues, and the Attorney General concedes, that the abstract of judgment must be amended to accurately reflect defendant’s custody credits and his

1 Defendant was charged and tried with his two brothers, Lee and Marcus Ochoa. For ease of reference and to avoid confusion, we refer to the brothers by their first name only. We intend no disrespect.

2 All further statutory references are to the Penal Code unless otherwise stated.

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restitution fine must be vacated due to recent amendments to section 1465.9. We agree. Therefore, we affirm the judgment as modified.

FACTUAL BACKGROUND

On our own motion, we take judicial notice of the opinion, written by a different panel of this court, resolving defendant’s direct appeal. (People v. Ochoa (Aug. 21, 2008, B202220) [nonpub. opn.].) The following facts are taken directly from the opinion.

I. Prosecution’s Evidence3

a. Lomeli’s Testimony

Sesar Lomeli testified that at approximately 8:00 p.m. on May 7, 2006, he and Jonathan Aguilar dropped off a friend on 137th Street in Compton. As Aguilar stood outside of Lomeli’s truck, Lomeli saw a male carrying a rifle coming toward the back of his vehicle. Aguilar left the location. Lomeli saw the male getting closer, causing him to drive away. As he did so, he heard approximately six or seven gunshots strike his truck. The truck’s back window was shattered. Bullets struck the radio, the front window, and the bumper. Another bullet went through the air conditioner and exited through the hood. Lomeli drove home and contacted the police about a half hour after the incident.

b. Aguilar’s Testimony

3 Defendant did not call any witnesses.

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Aguilar testified that on May 7, 2006, he was on 137th Street in Compton. At about 8:30 p.m., he was sitting in Lomeli’s vehicle. Lomeli had dropped off a friend and had turned the vehicle around. Lomeli asked Aguilar to close a window near the back of the truck. Aguilar got out of the vehicle and saw someone wearing all black and carrying a long rifle run toward the driver’s side of the vehicle. As Aguilar stood on the passenger side of the truck, he could hear the man with the rifle and Lomeli screaming, but Aguilar did not pay attention to what they were saying. Aguilar heard a female (or females) say, “It's okay[.] [N]o, they are friends, no, Lee, no Jesse.” Lomeli drove the truck away, and as Aguilar ran toward some apartments, he heard seven to eight gunshots. Aguilar believed he heard two different guns firing based on the sound and repetition of the gunshots.

c. Deputy Meraz’s Testimony

Los Angeles County Deputy Sheriff Anthony Meraz spoke to Aguilar and Lomeli after receiving a call reporting the shooting. Aguilar reported that he and Lomeli had driven to a party at 137th Street and Wilmington Avenue in Lomeli’s vehicle. Lomeli parked and Aguilar exited the passenger side. Two male Hispanics approached on foot and shot at them with either rifles or shotguns. Aguilar told Deputy Meraz that just prior to the shooting he heard a female voice say, “No, it’s okay, they’re our friends[.] [N]o, Jesse. No, Lee.” Deputy Meraz testified that Lomeli gave him the same information regarding the shooting as Aguilar had.

Deputy Meraz was present when Aguilar and Lomeli participated in a field show-up. He told them they were under no obligation to identify anyone and that it was equally important to identify the guilty suspects and to

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exonerate those who were innocent of any wrongdoing. Each identified defendant and his brother Lee as a shooter.

d. Jimenez’s Testimony

Ivan Jimenez testified that on May 7, 2006, he drove two friends to Wilmington Avenue in the City of Compton. After his passengers got out of the car, Jimenez parked. A Hispanic male wearing what Jimenez called a “hooded sweater” approached and told Jimenez to move his car because it was blocking the driveway. Jimenez performed a U-turn and parked on the opposite side of the street.

As Jimenez sat in the parked car, a female and a male carrying a large rifle approached on the driver’s side of his vehicle. They walked in front of his car and toward a truck parked across the street. Jimenez said the male could have been the same person who told him to move his car, as he was also Hispanic, seemed to have the same build, and appeared to be wearing the same black hooded sweater. Jimenez was not sure what kind of rifle the man had, although he acknowledged he might have told the police the rifle was an AK-47 with a banana clip.

The man stood behind the truck and began firing at the vehicle. The female ran back in Jimenez’s direction, stood in front of his car, and called for somebody to shoot him. He looked in the rear-view mirror and saw two or three men coming at him with guns. He was unable to describe the men because they were too far away. As soon as Jimenez heard the first shot, he ducked and left the scene. He stated that he might have hit the female who was standing in front of his car. As Jimenez drove away, he was struck in his lower back. However, nothing penetrated the skin.

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He testified that with the exception of the front windshield, all of the windows in his car were broken and bullet holes were “everywhere” in his vehicle. When Jimenez was about a block from the scene of the shooting, he stopped and called his friend (one of the people Jimenez had dropped off). He then picked up his friend, who told him to contact the police. Jimenez did so.

e. Sergeant Gray’s Testimony

Los Angeles County Sheriff’s Sergeant Robert Gray spoke to Jimenez on the night of the shooting. Jimenez said he was parked in front of the driveway at 825 137th Street. A male Hispanic wearing a black hooded sweatshirt came out of the yard at that location and approached him. Jimenez told Sergeant Gray the male was about 20 to 25 years old and had a shaved head, goatee, and a tattoo on his neck. The male told Jimenez to move his vehicle, and he complied by making a U-turn and parking on the other side of the street. Jimenez said the same male came toward him armed with an AK-47 type rifle and began firing. Jimenez reported that a female ran in front of his car, blocked his exit, and began yelling for someone to bring the guns over. Jimenez saw a person in a wheelchair with a shotgun and another male with a ponytail exit the yard at the 825 address. He saw the male with the ponytail grab the rifle from the man in the sweatshirt. The man with the ponytail and the man in the wheelchair shot at Jimenez, who stepped on the accelerator and left the location.

Sergeant Gray testified that at the field show-up, Jimenez identified defendant as the man with the ponytail and Lee as the man with the shaved head. Sergeant Gray stated that Lee had three tattoos on his neck. Sergeant Gray said Jimenez later identified Marcus as the man in the wheelchair.

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f. Garcia’s Testimony

Maria Garcia testified that on May 7, 2006, she was in the back seat of a car with some friends on 137th Street when she heard gunshots. She ducked down to avoid being shot. A man in a wheelchair approached the driver’s side of the vehicle carrying a large pistol. He told her to “[g]et the hell out of here or I’m going to shoot you.” The man broke out the rear window of the car. Garcia jumped into the front seat and tried to drive away but she could not locate the keys. She asked the man how he expected her to leave if she did not have the keys to the car, and he told her to get out and leave. Garcia exited the car and walked away. She said the man did not shoot at her. Garcia spoke to the police about five minutes after the incident. They took her to a location and conducted a field show-up. She identified Marcus as the man with the gun who approached her in the wheelchair, told her to leave, and threatened to shoot her.

g. Deputy Gonzalez’s Testimony

Deputy Alejandro Gonzalez arrived at the scene of the shooting on 137th Street at about 9:35 p.m. He spoke to Maria Garcia, who told him that three males walked up to the vehicle she was in and began shooting. She said that one of the three shooters was in a wheelchair. Garcia told the deputy that the man in the wheelchair told her to get the hell out of there or they would kill her. She said the man in the wheelchair had a shotgun and

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the other two had handguns. Garcia was able to get out of her car and take cover when the shooters noticed two other vehicles parked nearby. She saw the three men, two running and one rolling in a wheelchair, chase after the two vehicles and fire at them. The men then went into the residence at 825 137th Street.

After Deputy Gonzalez spoke to Garcia, the house at 825 137th Street was contained. All of the residents of the home were instructed to come out to allow the deputies to determine whether the suspects were still inside. Approximately eight to ten people came out of the house. Deputy Gonzalez identified Lee and defendant as two of the people who exited the residence. He did not see Marcus at the location, nor did he see a person in a wheelchair leaving the residence.4 Deputy Gonzalez saw the vehicle Garcia was in at the time of the shooting. He observed that the rear window was shattered. The deputy recovered live bullets and casings from shotgun shells and high-powered rifle rounds along the street and sidewalks of 137th Street. It was later established that the rifle rounds and casings were of the caliber commonly used in assault rifles, such as an AK-47.

PROCEDURAL HISTORY

I. Conviction and Sentence

4 On the evening of the shooting, Deputy Larry Ordinario responded to 137th Street. He had received information that one of the suspects was a male Hispanic in a wheelchair. When Ordinario arrived, he saw Marcus traveling in the wheelchair and detained him.

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In 2007, a jury found defendant guilty of two counts of willful, deliberate, and premeditated attempted murder. (§§ 664, 187, subd. (a).) As to one attempted murder, the jury found true the allegation that defendant personally used and intentionally discharged a firearm. (§ 12022.53, subds. (b), (c).) The jury further found defendant guilty of two counts of shooting at an occupied motor vehicle (§ 246) and of one count of possession of a firearm by a felon (former § 12021, subd. (a)).5 Defendant admitted to serving a prior prison term within the meaning of section 667.5, subdivision (b).

At sentencing, the trial court designated the possession of a firearm by a felon count as the principal term and imposed the upper term of three years, plus one year for the prior prison term enhancement. For the attempted murder counts, the court imposed consecutive life terms with seven-year minimum parole eligible periods, plus a consecutive 20 years for the firearm enhancement under section 12022.53, subdivision (c), but stayed the 10-year firearm enhancement under section 12022.53, subdivision (b). Finally, the court imposed and stayed the middle term of five years for each of the shooting at an occupied motor vehicle counts pursuant to section 654. The court ordered defendant to pay various fines and fees, including a $5,000 restitution fine (§ 1202.4). The court awarded defendant 472 days of actual credit plus 70 days conduct credit, for a total of 542 days of presentence credit.

On appeal, a different panel of this division affirmed the judgment.

II. Resentencing

5 Section 12021, subdivision (a) has since been renumbered without substantive change to section 29800, subdivision (a).

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Defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Defendant, through appointed counsel, filed a petition to recall and resentence. In the petition, defendant asked the trial court to strike the now-invalid prior prison term enhancement and to exercise its discretion to dismiss the firearm enhancements under sections (b) and (c) of section 12022.53. In support, defendant attached two exhibits that included his programming records and certificates from his prison “C-file.” The People filed a response to the petition, opposing resentencing defendant other than dismissing the now-invalid prior prison term enhancement.

On February 25, 2025, the trial court held a resentencing hearing.

After argument, the court struck the one-year prior prison term enhancement but declined to strike the firearm enhancements. In declining to dismiss the firearm enhancements, the court considered, in part, defendant’s disciplinary record, record of rehabilitation while incarcerated, and whether “his age, time served, and diminished physical condition, if any, . . . reduced defendant’s risk for future violence.” Moreover, the court looked for evidence reflecting a change in circumstances since the original sentencing, which would indicate that continued incarceration was no longer in the interest of justice. The court also considered defendant’s criminal history, including the types of crimes committed, the extent of injury to the victims, length of prior prison commitments, and the remoteness of the crimes.

The court noted that in the current case, defendant was found guilty of two counts of premeditated attempted murder with a true finding of his personal use and intentional discharge of a firearm. In addition, he was found guilty of being a felon in possession of a firearm. The court further stated that defendant did not remain free from discipline while incarcerated. Defendant had “incidents of battery on an inmate,” he possessed inmate-

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manufactured weapons and alcohol, and “there was an incident where he was disciplined for kicking and banging cell doors and not complying with orders.” The court concluded that resentencing defendant would result in an unreasonable risk of danger to public safety. Therefore, the court denied defendant’s request to dismiss the enhancements or further resentencing beyond striking the now-invalid prior prison term enhancement. The court did not assess defendant’s custody credits at the time of resentencing.

The amended abstract of judgment reflected defendant’s original sentence absent the one-year prior prison term enhancement and the various fines and fees imposed, including the $5,000 restitution fine pursuant to section 1202.4. However, the amended abstract showed 472 days of actual credit and 40 days of conduct credit (not 70 days), for a total of 542 days of credits.

Defendant timely appealed.

DISCUSSION

I. Reimposing the Upper Term

Defendant argues that the trial court violated his Sixth Amendment rights by reimposing the upper term on the possession of a firearm by a felon count because any aggravating factors were neither admitted by him nor found true by a jury beyond a reasonable doubt.6

6 We proceed to the merits of the claim, despite forfeiture, to preclude a claim of ineffective assistance based on counsel’s failure to object. (People v. Williams (1998) 61 Cal.App.4th 649, 657, citing, e.g., People v. Marshall (1996) 13 Cal.4th 799, 831.)

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We review the court’s resentencing decision for abuse of discretion (People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628 (Mathis)) and questions of statutory interpretation de novo (People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 856). Previously, section 667.5, subdivision (b), required the trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant served a separate prior prison term and had not remained free of custody for at least five years. (Former § 667.5, subd. (b); People v. Renteria (2023) 96 Cal.App.5th 1276, 1282; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) However, with the enactment of Senate Bill No. 136 (effective Jan. 1, 2020), the Legislature amended subdivision (b) of section 667.5 to impose a one-year enhancement only for each prior term served for a conviction of a sexually violent offense. (Stats. 2019, ch. 590, § 1.) “Enhancements based on prior prison terms served for other offenses became legally invalid.” (People v. Burgess (2022) 86 Cal.App.5th 375, 380 (Burgess).) The Legislature later enacted Senate Bill No. 483, effective January 1, 2022, to make the changes implemented by Senate Bill No. 136 retroactive by adding former section 1171.1 (now section 1172.75) to the Penal Code. (See Stats. 2021, ch. 728, § 1; accord, Burgess, supra, at p. 380; accord, People v. Monroe (2022) 85 Cal.App.5th 393, 399.) Section 1172.75, subdivision (c) requires the trial court to recall an applicable sentence and resentence the defendant.

Section 1172.75, subdivision (d)(1), mandates that the trial court impose “a lesser sentence than the one originally imposed . . . unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” At resentencing, 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

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disparity of sentences and to promote uniformity of sentencing.” (Id., subd. (d)(2).) The court may also consider post-conviction factors, including the defendant’s disciplinary record, his rehabilitation, and his age and physical condition affecting any risk for future violence, among other factors. (Id., subd. (d)(3).) “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.” (Id., subd. (d)(4), italics added.)

There is currently a split of authority whether section 1172.75, subdivision (d)(4), permits the reimposition of the upper term at resentencing without the applicable aggravating factors being found true beyond a reasonable doubt by a trier of fact or stipulated to by a defendant.7 Defendant urges this court to follow People v. Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez), which holds that subdivision (d)(4) of section 1172.75 should be read as a restriction and not an exception, meaning that only those defendants that had previously received the upper term where the aggravated factors were stipulated to or were proven beyond a reasonable doubt by the trier of fact could then receive the upper term at resentencing. Gonzalez is the only published opinion that has endorsed this interpretation with which we disagree. Rather, we agree with the majority of appellate courts, including our district, that construe subdivision (d)(4) as an exception

7 The issue is currently before our Supreme Court in People v. Easton (Mar. 14, 2025, C096853 [nonpub. opn.], review granted May 14, 2025, S289903.

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allowing resentencing courts to reimpose the original upper term sentences without a stipulation or a jury finding of aggravated circumstances. (People v. Lua (2026) 121 Cal.App.5th 472; People v. Moss (2026) 120 Cal.App.5th 375, 380, review granted July 22, 2026, S296595; People v. Salstrom (2025) 117 Cal.App.5th 596, 599, review granted Mar. 11, 2026, S295038; People v. Dozier (2025) 116 Cal.App.5th 700, 713, review granted Feb. 11, 2026, S294597; Mathis, supra, 111 Cal.App.5th at pp. 373–374; People v. Brannon- Thompson (2024) 104 Cal.App.5th 455, 458 (Brannon-Thompson).) Thus, the factfinding requirements in section 1172.75, subdivision (d)(4) “apply only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing.” (Brannon-Thompson, supra, at pp. 466–467.) Here, the trial court imposed the upper term at the original sentencing, and by the plain language of section 1172.75, subdivision (d)(4), could do so again without a reasonable doubt finding or defendant’s stipulation.8

II. Firearm Enhancement

Defendant contends the trial court abused its discretion in declining to dismiss the firearm enhancement under section 12022.53, subdivision (c).

Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.)

amended section 1385 to guide trial courts in deciding whether and when to dismiss sentencing enhancements. (Stats. 2021, ch. 721, § 1.) As amended, section 1385 grants trial courts “the authority” and a simultaneous duty “to strike or dismiss a [sentencing] enhancement” if doing so is “in the furtherance of justice.” (§ 1385, subds. (b) & (c)(1).) This provision makes

8 We do not address whether the trial court’s decision to impose the high term was an abuse of discretion as defendant does not raise this issue on appeal.

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clear that whether dismissal of an enhancement is “in the furtherance of justice” is a “discretion[ary]” call for the trial court to make (id., subd. (c)(1), (2) & (3)). However, the provision also directs that the existence of any of nine enumerated “mitigating circumstances” “weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (Id., subd. (c)(2).) The statute further states that the circumstances listed “are not exclusive” and the trial “court maintains authority to dismiss or strike an enhancement” in furtherance of justice. (§ 1385, subd. (c)(4).)

We review the trial court’s determination not to dismiss the firearm enhancement for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) This means we will affirm as long as the court exercised its sentencing discretion “in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “‘“The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” (People v. Carmony (2004) 33 Cal.4th 367, 376–377.) 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.’”’” (Id. at p. 377.)

Here, the trial court considered all the relevant information and made a reasonable decision not to dismiss the firearm enhancement. The court

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considered, among other things, whether defendant’s age, time served, and diminished physical condition, if any, reduced his risk of future violence. The court noted defendant’s commitment offenses were for premeditated attempted murder with personal use and intentional discharge of a firearm as well as possession of a firearm by a felon. The court cited to defendant’s disciplinary record while incarcerated, which included “incidents of battery on an inmate,” possession of inmate-manufactured weapons and alcohol, and “an incident where he was disciplined for kicking and banging cell doors and not complying with orders.” The court ultimately found that dismissal of the firearm enhancements (and further resentencing) would result in an unreasonable risk of danger to public safety. Given the court’s careful consideration, we conclude the court exercised its discretion “in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’” (People v. Sandoval, supra, 41 Cal.4th at p. 847.)9

9 Defendant claims that one enumerated mitigating circumstance applies: “application of an enhancement could result in a sentence over 20 years.” (§ 1385, subd. (c)(2)(C).) Recently, the Third District Court of Appeal interpreted section 1385, subdivision (c)(2)(C), and concluded, “A sentence exceeding 20 years could result from an enhancement where a sentence of that length arises as a consequence of the enhancement. [Citation.] Thus, the effect of applying the enhancement itself leads to a sentence exceeding 20 years. The word result denotes a causal relationship between the enhancement and a sentence exceeding 20 years. Accordingly, this subdivision concerns ‘enhancements increasing [a] sentence above 20 years.’ ” (People v. Torres (2025) 113 Cal.App.5th 88, 93.) The court concluded that because the defendant’s sentence was 25 years to life, it exceeded 20 years without the enhancement and that mitigating circumstance did not apply. (Ibid.) In this case, defendant’s sentence for two counts of attempted murder is two life terms with the possibility of parole after serving at least seven years. (§§ 664, subd. (a), 189, subd. (a), 3046, subd. (a)(1).)

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We discern nothing from the trial court’s ruling that supports defendant’s assertion that the court applied an improper standard for assessing the danger to public safety. Specifically, defendant cites to Gonzales to argue the court did not consider future dangerousness, i.e., “how the dismissal of the enhancement will impact the length of the defendant’s sentence.” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 228 (Gonzalez).) In Gonzalez, the defendant was sentenced to 50 years to life for first degree murder, plus 25 years to life for a section 12022.53, subdivision (d) enhancement. (Gonzalez, supra, at p. 220.) The trial court denied the defendant’s request to dismiss the enhancement based on its finding the defendant “‘presently . . . does represent a danger to society.’” (Id. at p. 224.) The Court of Appeal reversed, holding the trial court applied an incorrect legal standard. (Id. at p. 228.) It explained that in addition to the current dangerousness of the defendant, a sentencing court should also consider how dismissal of enhancements would impact the length of the defendant’s sentence or parole eligibility, because a defendant “who has no prospect of release from prison until he is elderly” may pose less of a risk to public safety. (Ibid.)

Gonzalez is distinguishable. Nothing in this case indicates the trial court expressly limited its assessment to solely whether defendant is currently dangerous. In fact, there is evidence to the contrary. As previously discussed, the court considered whether defendant’s age, time served, and diminished physical condition, if any, reduced “defendant’s risk for future violence.” Thus, the court properly considered defendant’s age and “how the dismissal of the enhancement will impact the length of [his] sentence” as mandated by Gonzalez. (103 Cal.App.5th at p. 228.) We note that the trial court was not required to expressly state what time period it was relying on

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in considering whether to dismiss the enhancement. Indeed, if a trial court declines to dismiss an enhancement, it is not mandated to use any “particular language” in doing so. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157.) While “[s]ection 1385, subdivision (a), requires a trial court to state its ‘reasons for [a] dismissal . . . orally on the record,’ ” there is no similar statutory requirement when a court declines to dismiss an enhancement. (Ibid.) Therefore, a trial court need not 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].)

Accordingly, the trial court’s refusal to dismiss the firearm enhancement was within the bounds of reason and does not reflect any abuse of discretion.

III. Custody Credits

Defendant contends, and the Attorney General agrees, that the trial court erred by failing to recalculate his custody credits and the amended abstract of judgment reflects the incorrect amount of conduct credit. We agree.

We first note that, when the trial court initially sentenced defendant on August 24, 2007, it awarded him 472 days of actual credit based on defense counsel’s representation. We also recognize that, at the resentencing hearing on February 25, 2025, the court did not recalculate the number of days defendant had spent in custody from the date of his arrest (May 8, 2006) to the date of his resentencing. “[T]he trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit

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him with all actual days he had spent in custody, whether in jail or prison, up to that time.” (People v. Buckhalter (2001) 26 Cal.4th 20, 37 (Buckhalter); §§ 2900.1, 2900.5.) Therefore, the trial court was obligated to recalculate defendant’s actual time credits between the date of his original sentencing hearing and his resentencing hearing. (Buckhalter, supra, 26 Cal.4th at p. 37.)

Here, the trial court failed to recalculate defendant’s custody credits at the time of his resentencing hearing on February 25, 2025. While there is no dispute defendant was entitled to a recalculation of his custody credits, the Attorney General takes issue with defendant’s attempt to correct his custody credits from the time of his arrest (May 8, 2006) to his original resentencing (August 24, 2007). The Attorney General argues defendant waived his entitlement to the additional custody credit during this timeframe because his trial counsel offered an erroneous figure to the trial court at the original sentencing hearing. We disagree. In cases where there is no factual dispute as to the dates of custody and the calculation is merely arithmetical, the defendant should not be deprived of credit to which he or she is entitled merely because trial counsel made a mistake. (People v. Fares (1993) 16 Cal.App.4th 954, 959; People v. Jones (2000) 82 Cal.App.4th 485, 493.)

The Attorney General’s reliance on People v. Myers (1999) 69 Cal.App.4th 305, 312 (Myers) is misplaced. In Myers, a previous appeal had resulted in a remand to the trial court for a determination, under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, whether to strike a prior conviction. The trial court on remand denied the Romero motion, and the defendant appealed again. The defendant argued among other points that on a Romero remand, the trial court must recalculate credits and must award conduct credits for the time spent in local custody awaiting resentencing.

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The appellate court rejected that contention on its merits, holding that “[a] sentenced defendant remains in the constructive custody of the Department of Corrections [and Rehabilitation], serving his or her sentence, while in local custody for the sole purpose of hearing on a motion to strike prior convictions. [Citation.] If the court denies the motion, resentencing is not necessary. Requiring a trial court to recalculate presentence custody credits and issue an amended abstract of judgment under these circumstances is to invite confusion and waste of resources.” (Myers, supra, 69 Cal.App.4th at pp. 311– 312.) The court then added that the defendant had not raised “the issue” in the trial court but “by and through his counsel, stipulated to the amount of presentence custody credits to be awarded. Accordingly, any alleged error has been waived.” (Id, at p. 312.) In context this meant only that the defendant had waived the issues whether the trial court on remand must (1) recalculate credits and (2) add conduct credits for the time spent awaiting the Romero hearing. Myers does not support the Attorney General’s broader argument that if defendant’s trial counsel erroneously added up the number of days in custody then defendant is bound by counsel’s mistake.

That said, between defendant’s arrest (May 8, 2006) and the date of his resentencing (February 25, 2025), defendant accrued a total of 6,869 days of custody credit. (Buckhalter, supra, 26 Cal.4th at p. 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]; §§ 2900.1, 2900.5, subd. (d).) Defendant contends, and the Attorney General concedes, that the amended abstract of judgment erroneously reflects 40 days of conduct credits, rather than 70 days. We agree, as the 40 days of conduct credit appears to be a clerical error. Both the reporter’s transcript and minute order of the original sentencing hearing stated that the trial court awarded defendant 70 days of conduct credit, not 40. Therefore, the amended

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abstract of judgment must be corrected to reflect defendant’s actual custody credits of 6,869 days and 70 days of conduct credit. (People v. Hernandez (2024) 103 Cal.App.5th 981, 993; People v. Boyd (2024) 103 Cal.App.5th 56, 74–75.)

IV. Restitution Fine

Defendant argues, and the Attorney General agrees, that the $5,000 restitution fine imposed under section 1202.4 at his original sentencing hearing and that is currently reflected in the amended abstract of judgment must be vacated pursuant to a recent amendment to section 1465.9. We agree. Effective January 1, 2025, Assembly Bill No. 1186 (Stats. 2024, ch. 805, § 1) amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years must be vacated. (§ 1465.9, subd. (d) [“‘Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to [s]ection 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated’”]; In re Mattison (2025) 115 Cal.App.5th 1062, 1066.) The restitution fine was originally imposed in 2007, and defendant was resentenced over 18 years later. We therefore vacate the fine.

DISPOSITION

The $5,000 restitution fine imposed pursuant to section 1202.4, subdivision (b) is vacated. The trial court shall prepare an amended abstract of judgment reflecting the foregoing restitution fine has been vacated and

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defendant is entitled to 6,869 days of actual custody credit and 70 days of conduct credit. The trial court shall transmit certified copies of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. As so modified and in all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, P. J.

We concur:

MORI, J.

DAUM, J.