Filed 8/27/25 P. v. Robles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT¹

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Laura Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted defendant Antonio Gonzales Robles, Jr., of attempted murder and related charges in 1999. The trial court’s sentence included a now-invalid enhancement pursuant to Penal Code former section 667.5,² and the trial court resentenced defendant pursuant to section 1172.75. Defendant argues that the trial court erred when it failed to consider his postconviction rehabilitation efforts when deciding whether to strike his enhancements during resentencing and failed to properly calculate his actual custody credits. The People concede that the trial court erred in failing to calculate defendant’s actual custody credits as of the resentencing date but argue that the trial court properly considered defendant’s postconviction rehabilitation efforts before ultimately deciding that the interest of justice did not support striking any enhancements. We accept the People’s concession and remand the matter with instructions to the trial court as to defendant’s custody credits but otherwise affirm the judgment.

PROCEDURAL BACKGROUND³

The District Attorney of Kern County filed an information on August 6, 1999, charging defendant with attempted premeditated murder (§§ 664, 189, 187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and robbery, (§ 212.5, subd. (c); counts 3, 4). The information also alleged that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) as to counts 1, 3, and 4; personally inflicted great bodily injury (§ 12022.7) as to counts 1 and 2; had one prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12); had one prior serious felony conviction (§ 667, subd. (a)); and served a prior prison term (former § 667.5, subd. (b)) for a violation of Health and Safety Code section 11350.

On November 24, 1999, a jury convicted defendant of all counts and found true that defendant committed the attempted murder with premeditation, used a deadly weapon, and inflicted great bodily injury. Defendant waived his right to a jury trial, and the trial court found true the prior conviction allegations on December 2, 1999. On January 25, 2000, the trial court sentenced defendant to a total determinate term of 19 years as to counts 2 through 4 and a term of life with the possibility of parole after 14 years, plus four years (§§ 12022.7, 12022, subd. (b)(1)) as to count 1.

On November 1, 2023, the trial court ordered a hearing on defendant’s petition for resentencing pursuant to section 1172.75 and for an updated presentence report. Defendant filed a sentencing statement and attached documentation of his employment as a porter, dining room worker, and yard worker, as well as his participation in rehabilitation classes while in custody, which included self-help groups, health and wellness classes, outpatient programs, drug treatment programs, adult basic education classes, and a “[l]ifer/long termer program.” Defendant requested that the trial court dismiss the section 667, subdivision (a) enhancements, the former section 667.5, subdivision (b) enhancements, and all but one of his section 12022, subdivision (b)(1) weapons enhancements pursuant to sections 1385 and 1170.1, subdivision (f).

During the resentencing hearing on May 24, 2024, the trial court dismissed defendant’s former section 667.5, subdivision (b) enhancements. The trial court advised that it had received, read, and considered the updated presentence report dated November 30, 2023, the original presentence report dated January 11, 2000, and defendant’s sentencing statement with attachments reflecting defendant’s progress and achievements while in custody.⁴ The court further noted that defendant’s prior convictions had been pled and proven, and the prosecution introduced a certified copy of defendant’s criminal history into evidence. The court found that defendant’s criminal history established that his prior convictions were numerous and his prior performance on felony probation and parole was unsatisfactory in light of several failures to comply with their terms and his continued criminal offending.⁵ The court further found that multiple enhancements had been found in a single case as a circumstance in mitigation.

The trial court noted defendant was requesting it exercise its discretion to dismiss the section 667, subdivision (a) five-year enhancements based upon defendant’s progress while in custody. Defense counsel later clarified that defendant was also requesting that the court strike his prior conviction for purposes of the Three Strikes law. Defense counsel pointed out that, despite his lengthy criminal history, defendant had only two prior felony convictions and successfully completed parole as to one. The second felony, two years later in 1991, was an attempted robbery, but it was more than five years old when defendant committed the instant offenses. Defense counsel also argued that defendant had suffered substantial physical injuries while in prison, including a bashed head and blindness in one eye as the result of an untreated detached retina. Defense counsel pointed out that defendant had made “strong efforts to rehabilitate himself”; he took medication to avoid substance abuse, received mental health treatment, and participated in counseling regarding his childhood sexual abuse.

The trial court pointed out that defendant had suffered four additional criminal convictions while in custody for unauthorized possession of a controlled substance (§ 4573.6) in 2000, possession of a weapon (§ 4502, subd. (a)) in 2002 and again in 2021, and bringing a controlled substance into prison (§ 4573.9) in 2021.⁶ Addressing resentencing, defense counsel argued that defendant had been conviction-free for almost 20 years and attributed the 2021 convictions to the prison’s failure to protect him from other inmates, which forced him to protect himself.

In ruling on defendant’s motion to strike his prior conviction, the trial court recited the numerous factors required to be considered and concluded that defendant had a substantial criminal history and had not been law-abiding for any substantial period of time since 1989. The instant crimes were serious, violent, and had the potential to cause death or serious injury, and defendant committed his two most recent crimes while in custody, which indicated an ongoing pattern of criminality. The trial court denied the motion.

Addressing defendant’s request to strike his other enhancements, the trial court acknowledged its discretion to strike the sections 667, subdivision (a), 12022.7, and 12022, subdivision (b)(1) enhancements but denied the motion. The court concluded that defendant failed to have any significant period of time in which he avoided criminality and viewed defendant’s limited criminal history as a factor of being incarcerated because when in custody, “you really can’t tell if someone’s going to be able to be a law-abiding person, free of the supervision and the strict rules of a jail or prison.”

The trial court resentenced defendant to a total term of life with a 14-year minimum parole eligibility, plus 22 years as follows: 14 years to life in prison as to count 1, plus three years (§ 12022.7), plus one year (§ 12022, subd. (b)(1)); 10 years as to count 3, plus five years (§ 667, subd.(a)), plus one year (§ 12022, subd. (b)(1)); two years consecutive as to count 4;⁷ and eight years stayed, plus three-years (§ 12022.7) stayed as to count 2. The court further ordered defendant to pay $9,880.58 in victim restitution (§ 1202.4, subd. (f)) and waived the restitution fines (§§ 1202.4, subd. (b), 1202.45).

The updated presentence report recommended defendant receive 198 days actual custody credit, 29 days good time custody credit for time served prior to sentencing, and 8,716 days actual custody credit for time served after sentencing as of December 6, 2023 (the date originally set for resentencing). The court awarded the time credits as recommended and directed the Department of Corrections and Rehabilitation (CDCR) to calculate the additional credits subsequent to December 6, 2023, as of the time of resentencing.

DISCUSSION

The record does not establish that the trial court ignored defendant’s postconviction rehabilitation efforts during resentencing.

Applicable Law and Standard of Review

“We review the trial court’s exercise of discretion at sentencing for abuse.” (People v. Shenouda (2015) 240 Cal.App.4th 358, 368; accord, People v. Carmony (2004) 33 Cal.4th 367, 375.) Defendant is entitled to the court’s informed discretion on any sentencing decision. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) A court unaware of the scope of its discretionary powers “ ‘can no more exercise that “informed discretion” than one whose [decision] is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ ” (Ibid.) Under these circumstances, the proper remedy is to remand “unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (Ibid.)

“Absent evidence to the contrary, [appellate courts] presume that the trial court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042; accord, People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Martinez (2017) 10 Cal.App.5th 686, 728.) Moreover, appellate courts “presume that a judgment or order of the trial court is correct,” and “ ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ ” (People v. Giordano (2007) 42 Cal.4th 644, 666; accord, Martinez, at p. 728.) “Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.” (Stowell, at p. 1114; accord, In re Julian R. (2009) 47 Cal.4th 487, 499.)

Analysis

Defendant argues that the trial court abused its discretion in giving no weight to defendant’s favorable postconviction conduct and makes an additional argument that section 1171, subdivision (c)(2), enacted after his resentencing and addressing postconviction resentencing proceedings, changed the law to require the trial court to consider “any pertinent circumstances that have arisen since the prior sentence was imposed.” We presume the trial court followed the law and considered the relevant factors and find no evidence to the contrary.

In this case, defendant’s sentencing statement contained a discussion of defendant’s rehabilitation efforts while in prison and had attached supporting documentation. The updated presentence report also included references to section 1172.75, subdivision (d), which gave the court discretion to consider defendant’s postconviction conduct when resentencing. The trial court stated that it had read and considered these documents. Additionally, the court expressly referenced defendant’s postconviction criminal conduct, indicating awareness of its discretion to consider postconviction conduct. Though the court did not specifically address defendant’s rehabilitation efforts, we presume the court was aware that it could consider this information since a statement of reasons is not required. (See In re Julian R., supra, 47 Cal.4th at p. 499.)

Defendant argues that the trial court did not consider defendant’s postconviction rehabilitation efforts as evidenced by its statement: “[H]e’s in custody, and I don’t view the time in custody as somehow tolling or making it too remote to consider. If you’re out of custody, out in society, that’s where we really see if people are able to be law abiding. When you’re in custody, you really can’t tell if someone’s going to be able to be a law-abiding person, free of the supervision and the strict rules of a jail or prison.” According to defendant, the court’s statement indicates that a defendant can never demonstrate that they are no longer a danger to society and deems all favorable postconviction conduct irrelevant. We disagree.

Defense counsel acknowledged that defendant had suffered two weapons convictions and two drug convictions while in prison but argued that he had not committed additional offenses since 2018 (the year of the conduct related to the 2021 convictions). Defense counsel also argued that the 2018 conduct was related to the need for defendant to defend himself in custody. The trial court’s statements were part of a discussion addressing defense counsel’s asserted reasons for discounting defendant’s criminal convictions while in custody and responded to the argument that defendant committed the weapons offenses to protect himself in prison and that five years had passed since the last violation. Consideration of defendant’s incarceration is relevant to the analysis of whether defendant’s criminal conduct is remote when evaluating a defendant’s criminal history because incarceration decreases a defendant’s opportunity to commit additional crimes. (See People v. Steele (2002) 27 Cal.4th 1230, 1245 [the defendant’s prior crime was not “remote” under an Evid. Code, § 352 analysis where the defendant spent many years in prison during the intervening period]; see also People v. Loy (2011) 52 Cal.4th 46, 62–63 [the defendant’s prior crime was not “remote” under an Evid. Code, § 1108 analysis where the defendant had spent many years in prison during the intervening period and therefore had little opportunity to commit similar crimes].) Therefore, the trial court’s comments reflected consideration of the weight to be given to a lack of criminal offense during the last five years as opposed to a refusal to provide any weight to defendant’s postconviction rehabilitation efforts.

Defendant also argues that remand is required because enactment of section 1171 since his resentencing altered the trial court’s discretion to consider postconviction rehabilitation during a resentencing hearing. While it is true that enactment of section 1171 has altered the trial court’s resentencing discretion in some respects, the trial court’s discretion to consider postconviction factors existed in section 1172.75 at the time defendant was resentenced. We agree with the People that section 1171, subdivision (c)(2) does not provide the trial court discretion regarding postconviction rehabilitation factors not already provided by section 1172.75.

At the time of defendant’s resentencing, section 1172.75, subdivision (d)(3) provided: “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.” (Stats. 2022, ch. 58, § 12.) Effective January 1, 2025, section 1171 controls postconviction proceedings to modify a sentence or conviction, including a resentencing proceeding under section 1172.75. (§ 1171, subd. (a); see also Assem. Bill No. 2483 (2023–2024 Reg. Sess.); Stats. 2024, ch. 964, § 2.) Section 1171 provides that the sentencing court is now required to “consider any pertinent circumstances that have arisen since the prior sentence was imposed” (§ 1171, subd. (c)(2)), a sentencing court now “has jurisdiction to modify every aspect” of a sentence, even if “it was imposed after a guilty plea” (ibid.), and “[a]ny changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement” (id., subd. (c)(3)).

Section 1171, subdivision (c)(3) has resolved a split of authority. Prior to the enactment of section 1171, there was a dispute among the appellate courts regarding the scope of section 1172.75. (Compare People v. Coddington (2023) 96 Cal.App.5th 562, 565 [resentencing court is not permitted to fully resentence the defendant and go beyond merely striking a now-invalid enhancement under former § 667.5, subd. (b) where convicted pursuant to plea agreement] with People v. Hernandez (2024) 103 Cal.App.5th 981, 986 [a resentencing court may reduce a sentence further without the consent of the prosecution even when the defendant was originally sentenced via a plea agreement].) A resentencing court now “has jurisdiction to modify every aspect” of a sentence, even if “it was imposed after a guilty plea.” (§ 1171, subd. (c)(2).) “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” (Id., subd. (c)(3).) However, because defendant did not plead guilty pursuant to a plea agreement, this change in the law does not affect defendant’s resentencing.

As defendant’s claim of error relates to the court’s consideration of postconviction factors, section 1171 has not altered the trial court’s ability to consider such factors pursuant to section 1172.75, subdivision (d), which already provided the court discretion to consider postconviction factors, including defendant’s record of rehabilitation and disciplinary record, to the extent they reduced defendant’s risk for future violence and that continued incarceration is no longer required in the interest of justice. (§ 1172.75, subd. (d)(2), (3).) Therefore, we conclude that enactment of section 1171, subdivision (c)(2) does not afford the trial court any additional discretion that was not available during defendant’s resentencing. There is no basis for remand. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391 [remand for resentencing based on failure to exercise “informed discretion” unnecessary when record shows court would have imposed the same sentence had it been aware of its discretion].)

The trial court erred in failing to calculate defendant’s actual custody credits.

Defendant contends, and the People concede, the case must be remanded for the trial court to recalculate his custody credits. We accept the People’s concession.

Section 2900.1 provides that when a defendant has served a portion of a sentence imposed based upon a judgment that is subsequently modified during the term of imprisonment, the time served “shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” As a result, when a defendant is resentenced, all actual time spent in custody, whether in jail or prison, should be credited against the modified sentence, and this credit should be reflected in the amended abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 37, 41.)⁸

During the May 24, 2024 resentencing hearing, the trial court said it did not have the number of days that defendant had been in custody since the December 6, 2023 original resentencing date and directed CDCR to calculate this number. The court incorrectly directed CDCR to make this determination because the court was required to recalculate defendant’s custody credits. (§ 2900.1.) The abstract of judgment reflects actual days in custody of 8,914, which does not include defendant’s days in custody between December 7, 2023, and May 24, 2024, the date of defendant’s resentencing. To correct this error, we will remand.

DISPOSITION

The matter is remanded, and the trial court is directed to recalculate defendant’s custody credits, prepare an amended abstract of judgment accordingly, and forward the amended abstract of judgment to CDCR. In all other respects, the judgment is affirmed.