Filed 12/13/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

FRANK RUIZ,

 Defendant and Appellant.

2d Crim. No. B324477

(Super. Ct. No. 2014011115)

(Ventura County)

This is our third, and hopefully our last, opinion in this 

sentencing matter. In our original opinion (People v. Ruiz (Feb. 

10, 2020, B291732) [nonpub. opn.] (Ruiz I)), we vacated the trial 

court’s unauthorized Penal Code section 654 stay of execution of a 

10-year consecutive sentence for a firearm-use enhancement.1 

(§ 12022.5, subd. (a).) As a result, appellant’s unstayed aggregate 

sentence was increased from 18 years to 28 years. Out of fairness 

to appellant, we directed the trial court to exercise its discretion 

whether to strike the firearm-use enhancement as well as a fiveyear enhancement for a prior serious felony conviction. (§ 667, 

subd. (a)(1).) The trial court refused to strike either 

1 All statutory references are to the Penal Code.
2

enhancement. It resentenced appellant to prison for an 

aggregate term of 28 years. 

A second appeal followed. In People v. Ruiz (March 29, 

2022, B307717) [nonpub. opn.] (Ruiz II), we rejected appellant’s 

claims that (1) the trial court abused its discretion in refusing to 

strike the prior serious felony conviction and firearm-use 

enhancements, and (2) the cause must be remanded to the trial 

court for resentencing in light of Assembly Bill No. 518, which 

amended section 654 (Stats. 2021, ch. 441). Again out of fairness 

to appellant, we vacated the sentence and remanded the cause for 

resentencing in light of Senate Bill No. 567 (S.B. 567), which 

amended section 1170 (Stats. 2021, ch. 731). (See pp. 5-6, post.) 

On remand the trial court resentenced appellant to an 

aggregate term of 23 years, calculated as follows: assault with a 

firearm (§ 245, subd. (a)(2)) – the upper term of four years, 

doubled to eight years because of a prior strike; plus the upper 

term of 10 years for the firearm-use enhancement; plus five years 

for the strike/serious felony conviction. The court stayed the 

sentence imposed for a gang enhancement (§ 186.22, subd. (b)(1)). 

Appellant now contends: (1) the true finding on the gang 

enhancement allegation must be vacated, (2) in selecting the 

upper term for both the conviction of assault with a firearm and 

the firearm-use enhancement, the trial court relied on 

aggravating factors that are inapplicable pursuant to S.B. 567; 

(3) appellant is entitled to additional days of custody credit, (4) 

the aggregate sentence imposed on remand could not have 

exceeded the 18-year aggregate sentence originally imposed; and 

(5) the matter must again be remanded for resentencing because 

of a recent amendment of section 1385.
3

We accept the People's concession that the true finding on 

the gang enhancement allegation must be vacated. We remand 

the matter to the trial court to afford the People an opportunity 

to retry the allegation. We modify the judgment to award 

appellant additional days of custody credit. In all other respects, 

we affirm.

Facts

The facts are taken from our first unpublished opinion. 

(Ruiz I, supra, slip opn. at pp. 3-4.) 

“One night in October 2013, [R.M. (victim)] and his 

girlfriend, [J.M], drove to Vons to buy baby supplies. [J.M.] 

entered the store while [victim] remained by the vehicle in the 

parking lot. A young, skinny man approached [victim] and 

asked, ‘[W]here you from?’ [Victim] replied, ‘I ain’t from nowhere, 

where you from?’ The man said he was from ‘Southside’ or ‘Sur 

Town.’ The man ‘tried to sucker punch’ [victim] and ‘barely 

misse[d]’ him. 

“[Victim] chased the man, who was not armed. He heard 

[his girlfriend] call out that someone had a gun. [Victim] 

suddenly saw a bigger, older man about 15 feet away and ‘could 

hear him try to cock [the gun], but he couldn’t.’ [Victim] ‘started 

running.’ ‘He was zig-zagging in an attempt not to get shot.’ He 

heard one shot fired. The bullet did not strike him.

“[Witness E.W. testified that he had seen] the bigger, older 

man chase [victim]. The man shot once at [victim]. He ‘was 

definitely trying to hit [him].’ ‘He was aiming directly at [him].’ 

It was not ‘a warning shot.’ The shooter and his companions ran 

to a car, entered it, and drove away ‘at a high rate of speed.’ 

“The shooter was identified as appellant. He was a longtime member of the Sur Town Chiques (Sur Town) criminal 
4

street gang. His gang moniker was ‘Villain.’ The trial court took 

judicial notice before the jury that in 2002 appellant had been 

convicted ‘of a violent felony for the benefit of the Sur Town 

criminal street gang against a victim who [was] a documented 

member of the Colonia Chiques criminal street gang.’ [Footnote 

omitted.] A gang expert opined that appellant was still a 

member of Sur Town at the time of the October 2013 Vons 

parking-lot shooting. 

“The skinny, younger man who threw the punch at [victim] 

was identified as [J.H.]. A gang expert opined that [J.H.] ‘was a 

Sur Town gang member . . . .’ 

“A police officer found a spent shell casing in the Vons 

parking lot. The shell casing had been ejected from the same 9-

millimeter pistol that had been used in four other gang shootings. 

“In response to the prosecutor’s hypothetical question 

incorporating the facts of the Vons parking-lot shooting, a gang 

expert opined that it had been committed for the benefit of a 

criminal street gang.” 

Gang Enhancement

The jury found true an allegation that appellant had 

committed the assault with a firearm for the benefit of a criminal 

street gang (§ 186.22, subd. (b)(1)). Assembly Bill No. 333 (Stats. 

2021, ch. 699) (A.B. 333) “amended section 186.22 to, in various 

respects, increase the evidentiary burden necessary to prove a 

gang-related crime enhancement.” (People v. Rodriguez (2022) 75 

Cal.App.5th 816, 822.) The amendment applies retroactively to 

cases not yet final on appeal. (People v. Tran (2022) 13 Cal.5th 

1169, 1206-1207.)

We accept the People’s concession, which is as follows:

“[T]he elements of the newly amended gang enhancement under 
5

section 186.22 are not satisfied. Namely, the current record does 

not establish that the predicate offenses benefitted appellant’s 

gang in a manner that was more than reputational.” We vacate 

the true finding on the gang enhancement and remand the

matter “‘to give the People the opportunity to prove the 

applicability of the enhancements under the amendments to 

section 186.22.’” (People v. Vasquez (2022) 74 Cal.App.5th 1021, 

1033.)

S.B. 567: Selection of the Base Term

S.B. 567 became effective on January 1, 2022. It amended 

the standards for imposing an upper-term sentence. As

amended, section 1170, subdivision (b)(1) provides that, where a 

person is convicted of a public offense, “the court shall, in its 

sound discretion, order imposition of a sentence not to exceed the 

middle term, except as otherwise provided in paragraph (2).” 

Paragraph (2) provides, “The court may impose a sentence 

exceeding the middle term only when there are circumstances in 

aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at 

trial by the jury or by the judge in a court trial.” There is an 

exception to this rule for prior convictions: “[T]he court may 

consider the defendant’s prior convictions in determining 

sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” (Id., subd. (b)(3).) 

S.B. 567 similarly amended section 1170.1, subdivision (d) 

to mandate a presumptive middle term for enhancements. 

Unlike sentencing for conviction of a public offense, there is no

prior conviction exception [based on a certified record of 
6

conviction] . . . for imposing an upper term on applicable 

enhancements.” (People v. Falcon (2023) 92 Cal.App.5th 911, 

956, review granted Sept. 13, 2023, S281242.)

The People Concede that the Trial Court

Considered Inapplicable Aggravating Factors 

The trial court said it was imposing the 4-year upper term 

for the assault with a firearm charge and the 10-year upper term 

for the firearm-use enhancement because appellant “poses a 

serious danger to society.” 

In concluding that appellant “poses a serious danger to 

society,” the trial court relied on seven factual findings. The 

People submit that four of the findings “were not found true 

beyond a reasonable doubt by the jury, and . . . it cannot be said 

with certainty that a jury would . . . conclude [they were true] 

beyond a reasonable doubt.” The four findings are: (1) 

“[appellant] has a predilection for unprovoked, unpredictable 

violent behavior and a disregard for human life”; (2) “[t]his 

offense is almost identical in many significant respects to his 

prior 2002 violent offense, demonstrating a failure to rehabilitate 

or change his violent behavior”; (3) “[t]he present offense was 

committed in concert with another person, thereby increasing the 

danger to the victims and the public”; and (4) “[appellant] has a 

substantial criminal record dating back to the age of 13.” 

“[T]o the extent the trial court’s imposition of the upper 

term was based on” the above four findings, conceded by the 

People to be inapplicable, “it committed error under Senate Bill 

567. That is because, contrary to the dictates of the new law, 

[appellant] had not stipulated to the facts underlying these 

factors, nor were the facts found true beyond a reasonable doubt 

by a jury or by a judge in a court trial.” (People v. Ross (2022) 86 
7

Cal.App.5th 1346, 1353, review granted Mar. 15, 2023, S278266 

(Ross).) Moreover, the fourth finding concerning appellant’s 

criminal record “dating back to the age of 13” was not “based on a 

certified record of conviction.” (§ 1170, subd. (b)(3).)

The People maintain that the trial court properly relied on 

three of the trial court’s seven factual findings because they 

“were found true beyond a reasonable doubt by a trier of fact or 

were supported by a certified record of conviction.” The three 

findings are: (1) “[appellant] has engaged in unprovoked violent 

conduct under circumstances that indicate that he is a serious 

danger to society”; (2) “[l]ess than 5 years [had] elapsed between 

[appellant’s] release from prison for his prior violent offense and 

less than one month [had] elapsed from his discharge from parole 

. . . [when he] committed the present offense[, thus] 

demonstrating that a longer period of incarceration is necessary 

to protect the public and potentially aid in rehabilitation”; and (3) 

“[appellant] served a prior prison term.” 

Appellant contends “[t]he only . . . facts supported by the 

certified record of conviction are that the charged offense 

occurred less than five years from his release from prison, less 

than a month after being discharged from parole, and [that he] 

served a prior prison term.” Appellant asserts, “No other factor 

was proven beyond a reasonable doubt or stipulated to by 

appellant.” 

People’s Contention that Appellant 

Forfeited Claim of Resentencing Error 

Appellant’s counsel did not object to the trial court’s 

reliance on inapplicable aggravating factors. The People contend 

that, by not objecting, appellant forfeited his claim of 

resentencing error. (See, e.g., People v. Tilley (2023) 92 
8

Cal.App.5th 772, 778.) We need not decide whether a forfeiture 

occurred. Even if appellant’s failure to object constituted a 

forfeiture, we would again extend fairness to appellant and

exercise our discretion to reach the merits of his claim of 

sentencing error. (See People v. Williams (1998) 17 Cal.4th 148, 

161-162, fn. 6.) 

Harmless Error 

“Courts . . . have concluded this type of [sentencing] error is 

subject to harmless error review.” (Ross, supra, 86 Cal.App.5th 

at p. 1353.) The appellate courts are divided on the standard for 

assessing prejudice. (See, e.g., People v. Flores (2022) 75 

Cal.App.5th 495, 500; Ross, supra, at p. 1353.) The issue is 

pending before our Supreme Court in People v. Lynch (May 27, 

2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, 

S274942. 

Our Supreme Court recently considered the standard for 

assessing prejudice where, before the effective date of S.B 567, 

the trial court did not impose the lower term for an offense as 

provided by new subdivision (b)(6) of section 1170.2 (People v. 

Salazar (Nov. 20, 2023, S275788) __ Cal.5th __ [2023 Cal. LEXIS

6529] (Salazar).) The Supreme Court did not consider the

standard for assessing prejudice where, as here, after the 

effective date of S.B. 567 the trial court imposed the upper term 

instead of the middle term under section 1170, new subdivisions

2 Section 1170, subdivision (b)(6) provides, “[U]nless the 

court finds that the aggravating circumstances outweigh the 

mitigating circumstances that imposition of the lower term would 

be contrary to the interests of justice, the court shall order 

imposition of the lower term if any of the following was a 

contributing factor in the commission of the offense: . . . .”
9

(b)(1) and (b)(2). (See Salazar, supra, 2023 Cal. LEXIS at *19, fn.

7 [“We do not address” the issue of “what prejudice standard 

applies on appeal when determining whether a case with an 

upper term sentence should be remanded for resentencing under 

Senate Bill 567”].)

We assess prejudice through a two-step process. The first 

step is whether the jury would have found true beyond a 

reasonable doubt the aggravating factor that appellant “has 

engaged in unprovoked violent conduct under circumstances that 

indicate that he is a serious danger to society.” Section 1170, 

subdivision (b)(2) provides that the court “may impose a sentence 

exceeding the middle term” when “the facts underlying [the 

aggravating circumstances justifying imposition of the upper 

term] have been . . . found true beyond a reasonable doubt at trial 

by the jury . . . .” 

We are convinced that the jury would have found true 

beyond a reasonable doubt the aggravating factor that appellant 

“has engaged in unprovoked violent conduct under circumstances 

that indicate that he is a serious danger to society.” Appellant’s 

assault with a firearm was “unprovoked violent conduct.” The 

victim was unarmed and had not attacked or threatened 

appellant. When appellant committed the assault, the victim 

was running away from him. “‘[The victim] was zig-zagging in an 

attempt not to get shot.’” A witness testified that appellant “‘was 

definitely trying to hit [the victim].’ ‘He was aiming directly at 

[the victim].’” 

The evidence presented to the jury, together with 

appellant’s criminal record based on a certified record of 

conviction, makes clear that “he is a serious danger to society.” 

The pistol used in the shooting “had been used in four other gang
10

shootings.” (Ruiz I, supra, slip opn. at p. 4.) “The trial court took 

judicial notice before the jury that in 2002 appellant had been 

convicted ‘of a violent felony for the benefit of the Sur Town 

criminal street gang against a victim who [was] a documented 

member of the Colonia Chiques criminal street gang.’” (Id. at pp. 

3-4.) Appellant’s prison sentence for the prior conviction and 

parole supervision had been ineffectual in rehabilitating him. He 

committed the present offense less than a month after his 

discharge from parole. Whether the error is harmless or not, is 

addressed to the appellate court’s discretion and we are, 

according to Bernard Witkin, allowed to “weigh the evidence to 

some extent.” (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 

439, p. 475; see also People v. Cahill (1993) 5 Cal.4th 478, 490, 

493.) If we had any doubt about our conclusion, we would rule in 

appellant’s favor.

The second step in assessing prejudice is whether the trial 

court would have selected the upper term had it known that it 

could rely solely on the following four applicable aggravating 

factors: appellant’s (1) 2002 strike conviction, (2) service of a prior 

prison term for that conviction, (3) commission of the new offense 

less than five years after his release from prison and less than 

one month after his discharge from parole, and (4) commission of 

“unprovoked violent conduct under circumstances that indicate 

that he is a serious danger to society.” 

In Salazar, supra, 2023 Cal. LEXIS 6529, at *12-13, our 

Supreme Court concluded that, where a court “‘“is unaware of the 

scope of its discretionary [sentencing] powers,”’” the “‘appropriate 

remedy is to remand for resentencing 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 
11

discretion.”’” We see no reason why we should apply a stricter 

standard of prejudice than the one selected by our Supreme Court 

in Salazar. Accordingly, the matter should not be remanded for 

resentencing if the record clearly indicates that the trial court 

would have imposed the upper term had it known that it could 

rely solely on the four applicable aggravating factors listed above.

The record clearly so indicates. This is the third time that 

the same trial court judge sentenced appellant to the upper 

terms. In its ruling the court mentioned only aggravating 

factors. It did not refer to a single mitigating factor. Appellant 

contends that “any formal objection” to the trial court’s reliance 

on inapplicable aggravating circumstances “would have been 

futile” because “the court’s comments indicate that it would not 

consider reimposing a different sentence,” i.e., a sentence other 

than the upper term on the firearm-use enhancement and the 

conviction of assault with a firearm. 

In Salazar the trial court sentenced the defendant before 

the effective date of S.B. 567. Our Supreme Court noted, “When 

the applicable law governing the defendant’s sentence has 

substantively changed after sentencing, it is almost always 

speculative for a reviewing court to say what the sentencing court 

would have done if it had known the scope of its discretionary 

powers at the time of sentencing.” (Salazar, supra, 2023 Cal. 

Lexis 6529 at *28.) Unlike Salazar, here S.B. 567 became 

operative months before the trial court resentenced appellant. In 

the second appeal (Ruiz II) we vacated the sentence and 

remanded the cause for resentencing in light of S.B. 567. 

Appellant asserts, “There was no indication here that the [trial] 

court did not understand its discretion or the law, and SB 567 

was the only issue at resentencing.” 
12

The trial judge is a seasoned veteran, well versed in 

criminal law and procedure. He was well aware that S.B. 567

had “amended section 1170, subdivision (b) ‘to make the middle

term the presumptive sentence for a term of imprisonment . . . .’” 

(People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057.) He 

reasonably concluded that appellant is a “serious danger to 

society.” 

Thus, reversal for a fourth sentencing hearing would be an 

unwarranted exaltation of form over substance. (See People v. 

Blessing (1979) 94 Cal.App.3d 835, 839; United States v.

DiFrancesco (1980) 449 U.S. 117, 142 [“The exaltation of form 

over substance is to be avoided”].) It would be a waste of judicial 

resources to afford the trial court a fourth opportunity to impose 

the middle term. 

Appellant’s Custody Credits

Appellant contends he should have received credit for his 

actual days of presentence custody plus the time he had actually 

served in prison for a total of 1,693 days. We agree.

Appellant’s Sentence on Remand Could 

Lawfully Exceed the Sentence Originally Imposed

The trial court originally imposed an aggregate sentence of 

28 years, but erroneously stayed a consecutive 10-year upper 

term for the firearm-use enhancement pursuant to section 654. 

Therefore, appellant’s unstayed aggregate sentence was reduced 

to 18 years. (Ruiz I, supra, slip opn. at pp. 16-20.) In Ruiz I we 

corrected the error “under the unauthorized sentence concept.” 

(Id. at p. 18.) We increased appellant’s unstayed aggregate 

sentence from 18 years to 28 years.

Appellant contends that “because [at the original 

sentencing] the court could have reached the same total [an 
13

unstayed aggregate sentence of 18 years] in an authorized 

manner” by striking the firearm-use enhancement, “the 

resentencing court was limited to the total of the original [18-

year unstayed aggregate] sentence on remand.” Thus, “remand is 

required with instructions for the trial court to impose a term 

totaling 18 years or less.” 

We disagree. “Under the general rule of state 

constitutional law that the California Supreme Court has 

referred to as the Henderson rule, ‘[w]hen a defendant

successfully appeals a criminal conviction, California’s 

constitutional prohibition against double jeopardy precludes the 

imposition of more severe punishment on resentencing.’” (People

v. Vizcarra (2015) 236 Cal.App.4th 422, 431.) “However, in 

People v. Serrato (1973) 9 Cal.3d 753, 764 . . . , disapproved on 

another point in People v. Fosselman (1983) 33 Cal.3d 572, 

583 . . . , the California Supreme Court ‘set out an exception to 

this general [Henderson] rule.’ [Citation.] In Serrato . . . the 

Supreme Court explained that ‘[t]he rule is otherwise when a 

trial court pronounces an unauthorized sentence. Such a sentence 

is subject to being set aside judicially and is no bar to the 

imposition of a proper judgment thereafter, even though it is more

severe than the original unauthorized pronouncement.’” (Id. at 

pp. 431-432.) “[T]he fact that the trial court at the original 

sentencing theoretically could have imposed an [authorized 

sentence that was the same length as the unauthorized sentence] 

does not mean that the . . . sentence the court actually imposed at 

the original sentencing was an authorized sentence.” (Id. at 

p. 438.)3

3 After this appeal had been taken under submission, we 

received a letter from appellant informing us of a newly filed 
14

The Trial Court Did Not Abuse Its Discretion

Under the Recent Amendment to Section 1385

In his supplemental brief, appellant contends that the

matter must again be remanded for resentencing so the trial 

court can consider new mitigating factors in determining whether 

the enhancements should be dismissed pursuant to section 1385. 

The new factors were established by Senate Bill No. 81 (S.B. 81). 

(2021-2022 Reg. Sess., Stats. 2021, ch. 721, § 1.) Effective 

January 1, 2022, S.B. 81 “amended section 1385 to specify 

mitigating circumstances that the trial court should consider 

when deciding whether to strike enhancements from a 

defendant's sentence in the interest of justice.” (People v.

Lipscomb (2022) 87 Cal.App.5th 9, 16.)

Appellant asserts that “[t]hree mitigating circumstances 

from the newly amended section 1385 apply to [him].” The 

opinion, People v. Trammel (Nov. 21, 2023, A166756) __ 

Cal.App.5th __ [2023 Cal.App. Lexis 903] (Trammel). Appellant 

contends Trammel “is relevant to whether [his] sentence on 

appeal can exceed his original sentence.” We grant permission to 

file the letter.

Trammel is contrary to appellant’s position. In Trammel 

the question was “whether an erroneous sentence under section 

654 which improperly inflated Trammel's aggregate sentence 

falls within the Serrato exception, thus allowing a harsher 

sentence on remand.” (Trammel, supra, 2023 Cal.App. Lexis at 

*36.) The Court of Appeal held that such a sentence does not fall 

within the exception. (Id., at *36-37.) “[T]he Serrato exception 

only applies to unauthorized sentences which were unlawfully 

lenient to the detriment of the People.” (Id., at *37.) Here, the 

trial court’s erroneous original sentence under section 654 was 

unlawfully lenient. It reduced appellant’s aggregate unstayed 

sentence by 10 years. Therefore, the Serrato exception applies.
15

circumstances are: (1) “[m]ultiple enhancements are alleged in a 

single case” (§ 1385, subd. (c)(2)(B)); (2) “[t]he application of an 

enhancement could result in a sentence of over 20 years” (id.,

subd. (c)(2)(C); and (3) “[t]he enhancement is based on a prior 

conviction that is over five years old” (id., subd. (c)(2)(H)). “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.” (Id., subd. (c)(2).)

Appellant claims: “Because the record makes no mention of 

the specific [mitigating] factors enumerated in section 1385, the 

case must be remanded for consideration of whether the trial 

court shall dismiss the enhancements in the furtherance of 

justice.” “The trial court abused its discretion by not considering 

whether to dismiss all but one of appellant’s enhancements based 

on these mitigating factors pursuant to section 1385.” 

The amendment to section 1385 was in effect when the trial 

court resentenced appellant on October 19, 2022. “‘The general 

rule is that a trial court is presumed to have been aware of and 

followed the applicable law. [Citations.] These general rules 

concerning the presumption of regularity of judicial exercises of 

discretion apply to sentencing issues. [Citations.]’” (People v.

Martinez (1998) 65 Cal.App.4th 1511, 1517.) Moreover, “it is 

settled that: ‘A judgment or order of the lower court is presumed

correct. All intendments and presumptions are indulged to 

support it on matters as to which the record is silent, and error 

must be affirmatively shown. . . .” (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.)
16

Accordingly, we presume the trial court was aware of the 

section 1385 amendment and properly applied it in resentencing 

appellant. It is reasonable to infer that the court found “that 

dismissal of the enhancement would endanger public safety.” 

(§ 1385, subd. (c)(2).) In justifying its imposition of the 10-year 

upper term for the firearm-use enhancement, the trial court 

found that appellant “has engaged in unprovoked violent conduct 

under circumstances that indicate that he is a serious danger to 

society.” 

We cannot presume the trial court “failed” to properly 

consider the three claimed relevant mitigating factors merely 

because it did not expressly mention them. Nothing in amended 

section 1385 requires the sentencing court to state on the record 

the relevant mitigating factors set forth in subdivision (c)(2).

We have given the trial court two opportunities to extend 

leniency. It has declined to do so. This is a clear indication that 

the trial court would not now extend leniency to appellant. 

(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Disposition

The true finding on the gang enhancement (§ 186.22, subd. 

(b)(1)) is vacated. The matter is remanded to the trial court with 

directions to afford the People an opportunity to retry the 

enhancement and meet its burden of proof pursuant to A.B. 333’s 

new requirements. The judgment is modified to award appellant 

1,693 days of actual custody credits, consisting of 101 days in jail 

and 1,592 days in prison through the resentencing date of 

October 19, 2022. In all other respects, the judgment is affirmed. 

The trial court shall prepare a corrected abstract of judgment and 

shall transmit a certified copy to the Department of Corrections 

and Rehabilitation.
17

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

BALTODANO, J.

CODY, J.
1

YEGAN, Acting P. J., Concurring:

There is a price to be paid in the quest for perfect justice. 

Here, by reason of the Legislature’s constant tinkering with 

sentencing rules, we are asked to reverse/remand for a fourth 

sentencing hearing. And, of course, if appellant is not satisfied, 

he will appeal for the fourth time. This is an undue burden upon 

the criminal justice system, the Superior Court and the Court of 

Appeal. It also adversely impacts the civil justice system. And, 

perfect justice, while an admirable goal, is unattainable despite 

our best efforts. 

This appeal is not an outlier. Resentencing issues now 

dominate our appellate calendars. There are, undoubtedly, 

jurists who believe that there should be no limitation on how 

many resentencing hearings and appeals should transpire. This 

is a purely academic view of criminal procedure. It ignores 

practical and “workable” sentencing procedures, as well as the 

California constitutional harmless error rule. It also erodes the 

concept of “Finality of Judgment.”

 Appellant is lucky to be serving a 23-year determinate 

term. He could have easily been charged with and convicted of 

willful, deliberate, and premeditated attempted murder with a 

firearm. Such a conviction would have been punishable by life 

imprisonment with the possibility of parole. (§ 664, subd. (a).) 

Could any objective reader reasonably believe that appellant did 

not intend to kill the fleeing victim? Was he trying only to wound 

the victim? Was he intending only to scare the victim? A witness 

testified that appellant “‘was aiming directly at [the victim]’” and 

“‘was definitely trying to hit [him].’” But for the grace of God, 

appellant’s faulty marksmanship, and the victim’s serpentine 
2

running, the victim would have suffered a gunshot wound to his 

back that could have been fatal.

 Ah!, those dear dead days of the indeterminate sentence 

law. Then, sentencing was pretty easy upon denial of probation. 

The only significant “choice” was whether to impose consecutive 

or concurrent terms. There were few sentencing disputes on 

appeal and I recall no instance where the superior court was 

called upon to resentence a defendant three times. The 

sentencing court would say: “You are sentenced to state prison 

for the term prescribed by law.” That was it. Sentencing was 

simple and the Adult Authority would either keep the defendant 

in prison “for the term prescribed by law,” or grant parole after a 

suitable period of confinement. The indeterminate sentence law 

was repealed by the enactment of the Uniform Determinate 

Sentencing Act of 1976, which became operative on July 1, 1977.

Because of the Legislature’s constant tinkering with the 

already complex sentencing rules, the law has become an 

unsettled minefield.

1 The goal of the Determinate Sentence Law 

1 See this court’s opinion in People v. Neely (2009) 176 

Cal.App.4th 787, 791: “For over 30 years, opinions of the 

California Courts of Appeal have commented on the frustrating 

and needless complexity of the Determinate Sentencing Law 

(DSL). Reversals and remands for resentencing resulting from 

the misapplication of the DSL litter the pages of appellate 

decisions, both published and unpublished. This is yet another 

such case to fall victim to the ‘labyrinthine procedures,’ of the 

‘legislative monstrosity’ whose ‘mind-numbingly complicated’ 

statutes are ‘capable of ensnaring even its most erudite 

afficionados.’” (Fns. omitted.)
3

is to impose “terms that are proportionate to the seriousness of 

the offense with provisions for uniformity in the sentences of 

people incarcerated for committing the same offense under 

similar circumstances.” (§ 1170, subd. (a)(1).). Does anyone 

think that this goal is now being achieved? 

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.
David R. Worley, Judge

Superior Court County of Ventura

______________________________

Richard Lennon, Executive Director, Cheryl Lutz and 

Sydney Banach, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Julie A. Harris, Stephanie C. 

Santoro, Deputy Attorneys General, for Plaintiff and Respondent.