People v. Owens CA4/2

Opinion

Filed 6/18/26 P. v. Owens CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E084381

v. (Super.Ct.No. RIF1803626)

ROBERT BRIAN OWENS, OPINION

Defendant and Appellant.

APPEAL from postconviction orders of the Superior Court of Riverside County.

O.G. Magno, Judge. Affirmed and remanded with directions.

Ariana D’Agostino, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance W. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley

and Caelle Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Robert Brian Owens challenges various aspects of his

resentencing under Penal Code section 1172.75.1 He contends the resentencing court

erred by reimposing his original, upper term sentence without applying the changes to

section 1170 that limit imposition of an upper term sentence. Defendant further contends

that the trial court abused its discretion by denying his request to dismiss his prior strike

and prior serious felony convictions and by miscalculating his custody credits. The

Attorney General concedes that the trial court failed to calculate actual time credits at

resentencing.

We accept the Attorney General’s concession on the issue of custody credits and

therefore remand the matter with directions for the court to determine the number of days

that defendant has spent in actual custody. In all other respects, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In September 2019, defendant pleaded guilty to one count of residential burglary

(§ 459), and admitted to two prison priors (§ 667.5, subd. (b)), a prior strike conviction

(§ 667, subds. (b)-(i)), and a prior serious felony conviction (§ 667, subd. (a)). Pursuant

to the plea agreement, the trial court imposed a determinate sentence of 19 years in state

prison consisting of the upper term of six years for residential burglary, doubled by

operation of the admitted prior strike to twelve years, two years for the two prison priors,

and five years for the prior serious felony. The remaining charges and allegations were

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

2 dismissed. Defendant was credited with 415 days actual time and 414 days conduct

credit for a total credit of 829 days.

In May 2023, the trial court calendared defendant’s case for resentencing pursuant

to section 1172.75 because his two prison priors were invalidated by a change in law.

There were two substantive section 1172.75 hearings in July 2024. During the first

hearing on July 26, 2024, the court indicated to the parties that it believed “the upper term

with [sic] the admission of a prior strike was appropriate, which is 12 years.” The court

explained that this would take into account (1) removing two one-year prison priors; and

(2) dismissing the five-year prior serious felony based on remoteness “if there was no

other criminal conduct” from 2005 to 2019 other than the 1999 and 2005 prior strikes.

The court then continued the hearing for the prosecution to file an opposition with more

information.

During the second hearing on July 29, 2024, the court indicated it had reviewed

defendant’s resentencing and supplemental resentencing briefs and the prosecution’s

opposition. In requesting a middle or low term sentence for burglary, defendant’s briefs

expounded in detail postconviction factors such as his discipline record, rehabilitation

efforts, and other factors showing that incarceration is unnecessary in the interest of

justice. The briefs also discussed the age of the prior serious felony conviction, discipline

and rehabilitation efforts, and defendant’s nonviolent criminal history for the court to

consider dismissing the prior serious felony. The nature and circumstances of the

offense, remoteness of the prior strike conviction, and defendant’s background, character

3 and prospects were also argued for the court to consider dismissal of a prior strike. The

prosecution’s opposition included detailed information regarding defendant’s criminal

history and multiple violations of community supervision, as well as a victim statement

explaining the deleterious physical and emotional impact the burglary had on the victim

and his family. Both parties noted in describing the nature of the offense that after

defendant fled upon confrontation during the burglary, the victim discovered on the

driveway a chalk drawing of a box with the word “Knock” and a note inside the

refrigerator stating, “Never outshine the master” and “Knock.”

The court reminded the parties that when it gave an indicated sentence of 12 years

imprisonment during the first resentencing hearing, it “did not have the full facts of the

circumstances of the first-degree burglary” and defendant’s “full criminal history.” Based

on the additional information in the briefs, however, the court stated it intended to impose

a 17-year sentence instead:

“Mr. Owens in 2013 was convicted of a felony; served 44 months in prison.

In 2016, a misdemeanor 417(a). And then there was one, two, three, four,

while he was on supervision, for post-release supervision, that he []

violated four times. Post-release supervision from 2018; had a conviction

for what appears to be a felony vandalism, and, again, was given post-

release community supervision, and that was violated wherein he served six

months. So given that information, it appears that Mr. Owens had a

continuing criminal activity, and so my tentative—I would reverse myself,

4 and my tentative is to still impose the five-year prison prior, which would

give Mr. Owens a 17-year sentence . . . .”

The court then turned to defense counsel for any comments regarding the new

indicated sentence. Defense counsel replied by reiterating the legal and factual

arguments contained in his briefs, including the various mitigating factors and

circumstances he sought the court to consider in support of his requests.. In response, the

court further discussed its sentencing rationale:

“[O]ne of the things that I also have considered but I did not state was the

fact that I know new law has indicated that the Court has the ability or must

consider the defendant’s performance while he is in prison. I did not hear

anything prior to that, until you had mentioned it . . . [s]o my assumption

was that Mr. Owens had rather performed well while he’s in custody. But

you indicated he actually has some rules violations, nonviolent,

nonetheless, but it’s a matter that I have considered in giving an indicated

essentially for 15 years. As in terms to why the upper term, I look at the

circumstances of the offense, the conduct that Mr. Owens did in committing

the first-degree burglary. And, again, the currency of such conduct after he

was just recently sentenced to, [sic], a prison term, although he was given

parole supervision or . . . community supervision. But, anyhow, after

hearing from you, my indicated will remain the same.”

5 The prosecution thereafter summarized defendant’s criminal history as discussed

in its opposition, emphasizing that crimes in which defendant suffered convictions were

“all crimes that involve a victim, whether it was a vandalism, an animal cruelty, and

brandishing the weapon.” As for the facts underlying the burglary charge, the

prosecution acknowledged that “it was not the most egregious fact pattern, but from the

victim impact statement, . . . the whole family has uplifted and moved to another house

since this incident.” Finally, the prosecution summarized, “[defendant’s] criminal history

between his most recent strike from 2005 to the case at issue shows that the defendant

had no intentions to obey the law and the orders before it.”

After considering all arguments presented in the briefs and during the resentencing

hearings, the court dismissed the two prison prior terms as legally invalid pursuant to

section 1172.75, subdivision (a). The court then resentenced defendant to a total

determinate sentence of 17 years in state prison, composed of the upper term of six years

for the residential burglary conviction, doubled to 12 years pursuant the prior strike

conviction, plus five years for the prior serious felony conviction.

II. DISCUSSION

A. Resentencing under Section 1172.75

Section 1172.75 retroactively invalidates prison prior enhancements (former

§ 667.5, subd. (b)) for non-sexually violent offenses imposed prior to January 1, 2020,

and requires the recall and resentencing of defendants whose judgments include those

invalidated prison priors. (§ 1172.75, subds. (a), (c).) Section 1172.75 also directs the

6 resentencing court to “apply any other changes in law that reduce sentences” (id.,

subd. (d)(2)), consider various postconviction factors and evidence affecting the need for

continued incarceration (id., subd. (d)(3)), and impose a sentence no greater than

originally imposed “unless there is clear and convincing evidence that imposing a lesser

sentence would endanger public safety” (id., subd. (d)(1)).

In a resentencing proceeding under section 1172.75, we review the court’s

sentencing decisions for abuse of discretion. (People v. Mathis (2025) 111 Cal.App.5th

359, 366, review granted Aug. 13, 2025, S291628 (Mathis); People v. Dozier (2025)

116 Cal.App.5th 700,709, review granted Feb. 11, 2026, S294597 (Dozier); People v.

Garcia (2024) 101 Cal.App.5th 848, 855-856; People v. Moseley (2024) 105 Cal.App.5th

870, 874.) However, questions of law involving statutory interpretation are reviewed de

novo. (People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 856; Mathis, supra, at

p. 366; People v. Braden (2023) 14 Cal.5th 791, 804.)

B. No Error in Reimposing Original Upper Term Sentence

Defendant contends the court imposed his upper term sentence without a

stipulation or a jury verdict to support the aggravating factors as required under the recent

amendments to section 1170. As we explain, the factfinding requirement does not apply

to section 1172.75 resentencing proceedings because defendant was originally sentenced

to the upper term and the court reimposed that upper term sentence at his resentencing.

Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision

(b), to make the middle term the presumptive determinate sentence. (People v. Lynch

7 (2024) 16 Cal.5th 730, 742 (Lynch).) Section 1170, subdivision (b)(2), permits imposing

the upper term “only when there are circumstances in aggravation of the crime that justify

the imposition of a term . . . exceeding the middle term and the facts underlying those

circumstances have been stipulated to by the defendant or have been found true beyond a

reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd.

(b)(2).)

Critically, section 1172.75, subdivision (d)(4) (§ 1172.75(d)(4)) 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.” (§ 1172.75(d)(4),

italics added.)

Our appellate courts have addressed the meaning of this provision in connection

with the new factfinding requirement in section 1170. Parties urge this Court to follow

their respective positions based on the presently divided interpretations by the appellate

courts. Our Supreme Court is currently reviewing these divided interpretations in People

v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025,

S289903.

8 Defendant urges this Court to follow People v. Gonzalez (2024) 107 Cal.App.5th

312 (Gonzalez) for the proposition that § 1172.75(d)(4) should be read as a restriction

and not an exemption, such that only those who previously received the upper term where

the aggravated factors were stipulated to or were proven beyond a reasonable doubt to the

trier of fact can receive the upper term at resentencing. Gonzalez is the only published

opinion thus far endorsing this interpretation with which we disagree.

We agree with the majority of the cases that construe § 1172.75(d)(4) as an

exemption or exception permitting resentencing courts to reimpose the original upper

term sentences without a stipulation or a jury finding of aggravated circumstances.

(Dozier, supra, 116 Cal.App.5th at p. 713; Mathis, supra, 111 Cal.App.5th at pp. 373-

374; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 458 (Brannon-

Thompson).) As such, the factfinding requirements in § 1172.75(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.)

A fundamental task in interpreting statutes “ ‘ “ ‘is to determine the Legislature’s

intent so as to effectuate the law’s purpose.’ ” ’ ” (People v. Gonzalez (2017) 2 Cal.5th

1138, 1141.) If the words in the statute are unambiguous, “ ‘we presume the Legislature

meant what it said, and the statute’s plain meaning governs.’ ” (Even Zohar Construction

& Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837–838; People

v. Cody (2023) 92 Cal.App.5th 87, 101.)

9 The first clause of § 1172.75(d)(4)—“Unless the court originally imposed the

upper term”—provides a clear and unambiguous exception to the second clause

requirement that aggravated facts be stipulated or proven for imposition of upper term

sentences at resentencing. (Mathis, supra, 111 Cal.App.5th at p. 374; Brannon-

Thompson, supra, 104 Cal.App.5th at pp. 466–467.) The Gonzalez court

“acknowledge[d] that 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 sentence,” yet concluded otherwise. (Gonzalez, supra, 107 Cal.App.5th at

pp. 328-329.) We join the cases in line with Dozier, Mathis, and Brannon-Thompson and

conclude that § 1172.75(d)(4) clearly and unambiguously expresses “the Legislature’s

intent that the new, heightened factfinding requirements for aggravating factors do not

apply where the defendant was originally, lawfully sentenced to an upper term.” (Mathis,

at p. 374.)

Moreover, we agree with the Mathis court that the Sixth Amendment is not

implicated here. Defendant was originally sentenced to an upper term in 2019 when

former section 1170 eliminated the middle term as the presumptive term and gave courts

“broad discretion” to impose any term within the triad based on interests of justice.

(Lynch, supra, 16 Cal.5th at p. 747; Mathis, supra, 111 Cal.App.5th at p. 371.) This

statutory scheme was one that “ ‘everyone agrees,’ encounters no Sixth Amendment

shoal” because imposition of upper term sentences was authorized without any additional

10 factfinding. (See Cunningham v. California (2007) 549 U.S. 270, 293-294; Lynch, at pp.

747-748; Mathis, at pp. 371, 373-374.)

Defendant argues in his reply that the court nevertheless violated the Sixth

Amendment because it relied on additional factors at resentencing to support the upper

term such as his criminal history and nature of the offense. This argument is unavailing

as it is based on an unsupported and strained interpretation of Brannon-Thompson as

requiring resentencing courts to find that either the upper term was previously imposed

or the aggravating factors must be established beyond a reasonable doubt.

C. No Error in Declining to Dismiss Prior Serious Felony and Strike Convictions

Defendant asserts that “the trial court’s failure to strike the serious felony prior or

the strike prior constitutes error because the court misunderstood the section 1385 inquiry

and failed to give due weight to relevant, credible evidence that showed dismissal would

not endanger public safety and would be in the furtherance of justice.”

The Attorney General argues defendant forfeited this argument by failing to raise it

in the trial court. We need not decide the issue, because even if defendant did forfeit the

argument, we would exercise our discretion to reach its merits.2 (People v. Smith (2003)

31 Cal.4th 1207, 1215 [appellate court has discretion to reach forfeited claims].)

1. Prior Serious Felony Conviction

Defendant contends that the trial court abused its discretion because it did not

“engage in the holistic balancing test considering both mitigating and aggravating

2 Because we reject defendant’s claim of error, his claim of ineffective assistance of counsel necessarily fails.

11 factors” as required under section 1385, subdivision (a). Specifically, he asserts that his

“prior criminal history was given disproportionate and undue weight considering the

overwhelming evidence that dismissal of the serious felony prior would further justice

and not endanger public safety.” He further asserts that he “produced credible evidence

directly probative on his rehabilitation and establishing he would not endanger public

safety when released[,]” but that the trial court “gave no rationale as to why it declined to

strike . . . the serious felony enhancement” and only provided “scant analysis ignor[ing]

highly relevant evidence.”

Effective January 1, 2022, section 1385, subdivision (c)(1) provides that a trial

court “shall dismiss an enhancement if it is in the furtherance of justice to do so, except if

dismissal of that enhancement is prohibited by any initiative statute.” (§ 1385, subd.

(c)(1).) “In exercising its discretion under this subdivision, the court shall consider and

afford great weight to evidence offered by the defendant” to prove one of nine

enumerated mitigating circumstances. (§ 1385, subd. (c)(2).) “Proof of the presence of

one or more of these [mitigating] circumstances weighs greatly in favor of dismissing the

enhancement, unless the court finds that dismissal of the enhancement would endanger

public safety.” (Ibid.) The term “ ‘[e]ndanger public safety’ ” is defined as “a likelihood

that the dismissal of the enhancement would result in physical injury or other serious

danger to others.” (Ibid.)

“Stated simply, if the court does not conclude that dismissal would endanger

public safety, then mitigating circumstances strongly favor dismissing the enhancement.

12 But ultimately, the court must determine whether dismissal is in furtherance of justice.

This means that, absent a danger to public safety, the presence of an enumerated

mitigating circumstance will generally result in the dismissal of an enhancement unless

the sentencing court finds substantial, credible evidence of countervailing factors that

‘may nonetheless neutralize even the great weight of the mitigating circumstance, such

that dismissal of the enhancement is not in furtherance of justice.’ ” (People v. Walker

(2024) 16 Cal.5th 1024, 1036 (Walker), citing People v. Ortiz (2023) 87 Cal.App.5th

1087, 1098 (Ortiz).) A trial court must “engage[ ] in a holistic balancing with special

emphasis on the enumerated mitigating factors” which weigh “strongly in favor of . . .

dismissal.” (Ortiz, supra, at p. 1096.)

“[T]he specification of mandatory factors did not displace the trial court's

obligation to exercise discretion in assessing whether dismissal is ‘in furtherance of

justice.’ ” (Ortiz, supra, 87 Cal.App.5th at p. 1093, citing § 1385, subd. (c)(1)-(2).) “The

plain language of section 1385(c)(2) contemplates the trial court’s exercise of sentencing

discretion, even as it mandates that the court give ‘great weight’ to evidence of

enumerated factors.” (Ortiz, at p. 1096.) “[T]he ultimate question before the trial court

remains whether it is in the furtherance of justice to dismiss an enhancement.” (Id. at

p. 1098.)

“ ‘[G]enerally applicable sentencing principles’ relevant to a court’s determination

of whether dismissal is in furtherance of justice ‘relat[e] to matters such as the

defendant’s background, character, and prospects.’ [Citation.] Those principles require

13 consideration of circumstances in mitigation (and aggravation) in the broader context of

the recognized objectives of sentencing, which are not limited to public safety.”

(Ortiz, supra, 87 Cal.App.5th at p. 1097.)

Here, the record supports that the trial court balanced the mitigating and

aggravating factors and ultimately found that dismissing the prior serious felony would

be contrary to furthering justice. Defendant’s resentencing briefs detail the mitigating

circumstances—age of the prior serious felony conviction, nature of the offenses and rule

violations and their impact on public safety, and rehabilitation and reentry efforts—all of

which were reiterated during the resentencing hearing. Although the trial court did not

expressly discuss each of the mitigating factors, it indicated that it reviewed defendant’s

resentencing briefs filed a month prior and issued a tentative sentence dismissing the

prior serious felony, noting that it had limited knowledge of defendant’s criminal history

at the time.

At the continued resentencing hearing, after reviewing the prosecution’s

opposition, the trial court relayed that contrary to its initial assessment, defendant’s

convictions were not remote in time. Rather, defendant’s criminal history showed a

“continuing criminal activity” as evidenced by two additional convictions in 2013 and

2016. The court noted multiple violations of post-release supervision resulting in

additional jail time almost immediately after a long 44-month prison term. It also noted

defendant’s postconviction conduct, namely, his “performance while he is in prison” and

14 stated that it had “assum[ed] . . . [defendant] performed well while he’s in custody” until

it learned of “some rules violations,” albeit nonviolent in nature.

The court recognized the circumstances of the current burglary offense when it

referred to the victim statement submitted by the prosecution with its opposition. While

the prosecution described the current offense as “not the most egregious fact pattern,” it

highlighted a portion of the victim statement explaining that “the whole family has

uplifted and moved to another house since this incident.” Briefs by both parties also

described an unusual set of circumstances that implicated public safety concerns; after

being confronted by the victim during the burglary, defendant fled leaving eerie and

potentially threatening notes on the driveway and in the refrigerator stating “Knock” and

“Never outshine the master.” The court also noted, as the prosecution argued, that

defendant’s convictions were “all crimes that involve a victim, whether it was vandalism,

an animal cruelty, and brandishing the weapon.”

Ultimately, the court explained that defendant’s “continuing criminal activity,”

including his postconviction conduct, led to its decision not to dismiss the prior serious

felony. Although the trial court did not explicitly make a finding that dismissal would

endanger public safety, we can reasonably infer such a finding based on its rationale to

not dismiss. Even if there was no public safety concern, the record supports that the trial

court considered the “continuing criminal activity,” the nature of the underlying offense,

and postconviction conduct including multiple rule violations as “substantial, credible

evidence of countervailing factors” that “neutralized” or outweighed the “great weight of

15 the mitigating circumstance, such that dismissal of the enhancement is not in furtherance

of justice.” (Walker, supra, 16 Cal.5th at p. 1036, citing Ortiz, supra, 87 Cal.App.5th at

In claiming the trial court failed to give due weight to the mitigating factors on

appeal, defendant fundamentally asks us to reweigh them. We decline to do so as

defendant has failed to make a showing that the trial court’s statutorily vested

discretionary sentencing decision was made in “ ‘ “ ‘an arbitrary, capricious or patently

absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v.

Mendoza (2023) 88 Cal.App.5th 287, 298, citing People v. Jefferson (2016)

1 Cal.App.5th 235, 242-243, People v. Carmony (2004) 33 Cal.4th 367, 376-377

(Carmony).) The trial court is therefore “ ‘ “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.” [Citations.]’ ” (Carmony, supra, at pp. 376-377.)

Accordingly, we find no abuse of discretion here.

2. Prior Strike Conviction

Defendant likewise argues that the court abused its discretion by “merely

considering [defendant’s] criminal history . . . [and not] the particulars of [his]

background, character, and prospects” when it denied his Romero motion.

A trial court may consider a new Romero motion to dismiss prior strikes “ ‘in

furtherance of justice’ ” pursuant to section 1385, subdivision (a), during a “full

resentencing” under section 1172.75. (People v. Rogers (2025) 108 Cal.App.5th 340,

16 361-364; People v. Dain (2025) 18 Cal.5th 246, 252.) In so doing, the trial court must

consider “whether, in light of the nature and circumstances of his present felonies and

[prior strikes], and the particulars of his background, character, and prospects, the

defendant may be deemed outside” the spirit of the three strikes law “in whole or in part.”

(People v. Williams (1998) 17 Cal.4th 148, 161.) Circumstances must be

“ ‘extraordinary’ ” for a defendant to fall outside the spirit of the three strikes law.

(Carmony, supra, 33 Cal.4th at p. 378.)

A trial court’s failure to dismiss a strike allegation pursuant to a Romero motion

under section 1385, subdivision (a), is reviewed for abuse of discretion.

(Carmony, supra, 33 Cal.4th at p. 374.) The three strikes law establishes sentencing

norms and limits the court’s ability to depart from this norm by requiring explicit

justification for any departure. (Id. at p. 378.) This “creates a strong presumption that

any sentence that conforms to these sentencing norms is both rational and proper.” (Ibid.)

Given this presumption, abuse of discretion will occur in only limited

circumstances, such as when the trial court was unaware of its discretion to dismiss or

considered impermissible factors in declining to dismiss. (Carmony, supra, 33 Cal.4th at

p. 378 [citations omitted].) A trial court abuses its discretion if it fails to dismiss a prior

strike based on reasons that are “so irrational or arbitrary that no reasonable person could

agree with it.” (Id. at p. 377.) “ ‘In the absence of such a showing, the trial court is

presumed to have acted to achieve legitimate sentencing objectives, and its discretionary

17 determination to impose a particular sentence will not be set aside on review.’ ” (Id. at

pp. 376-377 [citations omitted].)

In declining to dismiss the prior strike, the court here considered the same factors

as it did for determining whether to dismiss the prior serious felony as discussed above.

The court does not explicitly state as such, but the record reasonably indicates that the

same factors were considered in determining whether to dismiss the prior serious felony

and/or the prior strike. Both parties make their respective arguments on appeal under

such premise. Again, the court considered defendant’s criminal history reflecting his

“continuing criminal activity” which belied remoteness. In considering defendant’s

postconviction conduct, the trial court noted his multiple release term violations. It

considered the nature of the offense and the seriousness of the underlying crime in

conjunction with the victim statements as reiterated by the prosecution. The court also

indicated it considered the parties’ briefings and heard their arguments during the

resentencing hearings where defendant details the mitigating circumstances including the

nature and age of his convictions, rule violations characterized as nonviolent and minor,

and his rehabilitative and reentry efforts.

The court did not explicitly discuss all factors and circumstances raised by the

parties, but the record is absent any affirmative showing that the court failed to consider

“the particulars of [his] background, character, and prospects” as defendant claims or that

it was unaware of its discretion. “In the absence of evidence to the contrary, we presume

18 that the trial court considered all of the relevant factors and properly applied the law.”

(People v. Brugman (2021) 62 Cal.App.5th 608, 638.)

While asserting that the trial court “merely” considered his criminal history,

defendant fails to explain how any of the other factors present an “extraordinary”

circumstance such that the trial court would be obliged to dismiss his prior strike in

furtherance of justice. There is no showing that the trial court’s decision to uphold the

prior strike was “so irrational or arbitrary that no reasonable person could agree with it.”

(Carmony, supra, 33 Cal.4th at p. 377.) Thus, the trial court did not abuse its discretion

by declining to dismiss the prior strike.

C. Custody Credits

We agree with the parties that defendant’s actual custody credits should have been

calculated and updated at the resentencing hearing.

Upon resentencing that results in a “modification of a felony sentence during the

term of imprisonment, the trial court must calculate the actual time the defendant has

already served and credit that time against the ‘subsequent sentence.’ ” (People v.

Buckhalter (2001) 26 Cal.4th 20, 23 (italics omitted); § 2900.1.) “It is the duty of the

court imposing the sentence to determine the date or dates of any admission to, and

release from, custody prior to sentencing and the total number of days to be credited

pursuant to this section. The total number of days to be credited shall be contained in the

abstract of judgment.” (§ 2900.5, subd. (d).)

19 At the conclusion of the resentencing hearing, the court awarded a total credit of

829 days consisting of 415 actual credits and 414 conduct credits—the same actual and

conduct credits calculated at defendant’s original sentencing five years ago. The court

then deferred calculation of credits to the probation department for “the full amount of

credits that he has owed today . . . . [W]e’re just asking help from probation to calculate

the credits in county time, state prison time, and then with the credits he gets because I’m

at a loss as to what that is and I don’t want to shortchange Mr. Owens.” The record,

however, is absent any information on whether a probation report with updated

calculations was submitted and whether the court ultimately issued the correct credits.

We therefore remand for the court to determine the required recalculation.

20 DISPOSITION

The matter is remanded to the trial court to recalculate defendant’s custody credits

for actual time served as of the July 29, 2024, resentencing date and to prepare an

amended abstract of judgment and forward it to the California Department of Corrections

and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

LEE J.

We concur:

RAMIREZ P. J. RAPHAEL J.