1

Filed 7/27/21 P. v. Franklin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER M. FRANKLIN,

Defendant and Appellant.

C089644

(Super. Ct. No. 15F06717)

A jury found defendant Christopher M. Franklin guilty of the first degree murder 

of Anna, the attempted murder of Dennis, an assault on Douglas by means of force likely 

to produce great bodily injury, and three counts of carrying a concealed firearm on his 

person during the commission of each of these offenses. (People v. Franklin (Sept. 6, 

2018, C083294) [nonpub. opn.].) Defendant previously appealed, challenging the 

sufficiency of the evidence on some counts and claiming instructional error with respect 

to others. (Ibid.) We reversed the first degree murder and attempted murder convictions, 

and associated convictions for carrying a concealed firearm. (Ibid.)
2

On retrial, a jury again found defendant guilty of the first degree murder of Anna 

(count one), the attempted murder of Dennis (count two), and carrying a concealed 

firearm on his person in the commission of the last offense (count three). The jury also 

found true gun enhancements on counts one and two. The trial court sentenced defendant 

to a total determinate term of 10 years eight months, plus an indeterminate term of 75 

years to life. The trial court also ordered defendant to pay various fines and fees. 

Defendant appeals, arguing: (1) the trial court prejudicially erred by failing to 

instruct, sua sponte, on voluntary manslaughter as a lesser included offense to murder; (2) 

the trial court abused its discretion in failing to consider his service-related posttraumatic 

stress disorder (PTSD) as a mitigating factor at sentencing under Penal Code section 

1170.91;

1

(3) the trial court erroneously calculated the court operations assessment 

(§ 1465.8) and court facilities fee (Gov. Code, § 70737); and (4) the abstract of judgment 

bears the wrong conviction date for two offenses that were adjudicated in the first trial, 

but were neither reversed nor retried. We reject defendant’s first contention and accept 

his second. We will remand for resentencing to allow the trial court to fulfill its statutory 

duty under section 1170.91. Because we are remanding, we need not reach defendant’s 

remaining contentions. 

I. BACKGROUND

A. Attempted Murder of Dennis

Dennis was homeless. On July 10, 2015, he went to sleep around 9:00 p.m. inside 

a dimly lit tunnel underneath some railroad tracks in Sacramento County. He awoke to 

someone standing at the opening of the tunnel about 10 feet away. Dennis could not tell 

whether the person was a man or a woman, but he could see that the person was about six 

1 Undesignated statutory references are to the Penal Code.
3

feet tall with an athletic build. Dennis rolled over. He asked, “What do you want?” The 

person shot Dennis several times and then took off. 

B. Murder of Anna

Anna was also homeless. In October 2015, she lived in a tent near some railroad 

tracks in Sacramento. Anna’s brother, Lance, lived nearby, in a campsite he shared with 

his girlfriend and another sister, Chris. On October 11, 2015, Anna brought dinner for 

the group and left the campsite sometime later. Sometime after nightfall, Lance heard an 

argument between a man and a woman that seemed to come from a nearby house. The 

argument went on for a couple of minutes. Lance did not pay close attention, as he was 

dozing off to sleep. Nevertheless, he thought the man and woman were a couple. Lance 

did not recognize either of their voices. Lance then heard a gunshot, followed by a voice 

saying, “oh my God.” He then heard two more shots, followed by silence. He then went 

to sleep. It was not unusual to hear arguing, gunshots, or fireworks near the railroad 

tracks. 

Chris was sleeping in a tent near Lance and his girlfriend. She was awakened by a 

helicopter passing around 9:00 p.m. or 9:30 p.m. Shortly thereafter, she heard a shot, 

followed by a woman saying, “oh, my God. What are you doing?” She then heard two 

more shots. She did not recognize the woman’s voice as that of her sister. The next 

morning Chris went to Anna’s camp and found her on the ground, dead. Anna had been 

shot multiple times. Law enforcement found two spent .40 caliber shell casings near her 

body. 

C. Assault on Douglas

Douglas worked for Sacramento County as a field surveyor. He was wearing an 

orange reflective vest and working near some railroad tracks on the morning of October 

13, 2015. Defendant approached Douglas and asked for some water. Douglas responded 

that there was plenty of ice-cold water in his truck, but his partner had taken the truck to 
4

another location. Douglas told defendant he could have some water as soon as his partner 

returned with the truck. Douglas then went back to his work. 

Douglas entered a nearby telephone yard and saw two men working there. He 

approached the telephone workers to introduce himself. Before Douglas could say 

anything, defendant came up from behind and put him in a choke hold. Douglas began to 

lose consciousness. One of the telephone workers, Jason, saw defendant with his arm 

around Douglas’s neck. Jason yelled, “Stop. Get out of here.” Defendant let go of 

Douglas, who fell to the ground. Defendant said, “[S]orry. I thought you were 

somebody else.” He then walked away, muttering something about Douglas being on 

someone else’s property. 

Jason called 911 and followed defendant in his truck. Douglas’s partner returned 

with their truck, and Douglas followed defendant as well. Police arrived, and Douglas 

pointed defendant out. Defendant was detained and searched. The search uncovered a 

black .40 caliber semiautomatic pistol with a live round in the chamber. 

D. Investigation

Police interviewed defendant. He denied assaulting Douglas or having a gun. He 

said that he ran almost every day, usually around 6:00 p.m. He sometimes ran on a 

greenbelt near the railroad tracks, but he denied running on October 11, 2015, the day 

Anna was killed. 

Police searched defendant’s home, which was approximately 500 yards from the 

spot where Anna was murdered and 600 yards from the spot where Dennis was shot. 

They found an empty handgun case with the same serial number as the gun found in 

defendant’s possession. A records check with the California Department of Justice 

established that the gun was not registered to anyone. A firearms trace through the 

federal Bureau of Alcohol, Tobacco, and Firearms disclosed that the gun had been sold to 

a man in Olympia, Washington. Ballistics tests showed that the casings recovered from 

the crime scenes had been fired from the same gun. 
5

E. First Trial

Defendant was arrested, tried by jury, and convicted of first-degree murder, 

attempted murder, assault by means of force likely to produce great bodily injury, and 

three counts of carrying a concealed firearm. (People v. Franklin, supra, C083294.) The 

jury also found true that defendant personally and intentionally discharged a firearm and 

proximately caused great bodily injury or death in the commission of the murder and 

attempted murder. (Ibid.) We reversed the murder and attempted murder convictions, 

and associated convictions for carrying a concealed firearm, giving the prosecution the 

option to retry defendant on the same counts. (Ibid.) 

F. Second Trial

Defendant was tried a second time over the course of four days in April 2019. The 

prosecution’s witnesses testified substantially as described ante. The prosecution also 

presented the testimony of defendant’s sister. She explained that she lived with 

defendant and their mother at the time of the above-described events. She recalled that 

she had seen defendant asleep on the sofa in August 2015 with what appeared to be a 

black handle sticking out of the blanket that covered him. She thought the object might 

have been the handle of a gun. She also recalled that defendant had been angry and 

aggressive on the evening of October 11, 2015, prompting her to lock herself in her room 

between 7:00 p.m. and 8:00 p.m. She did not see defendant again for the rest of the 

night. 

The prosecution also read defendant’s testimony from the first trial aloud for the 

jury. That testimony is summarized below. 

Defendant denied shooting Dennis. He denied knowing Dennis, denied having a 

gun on July 10, 2015, and denied being near the railroad tracks on the day Dennis was 

shot. He acknowledged, however, that the crime scene was near his home, and he used to 

skateboard there as a teenager. 
6

Defendant also denied shooting Anna. He denied knowing Anna and maintained 

that he had no dealings with her, and no reason to want to do her harm. Defendant also 

denied having a gun on October 11, 2015. He acknowledged, however, that the murder 

scene was near his home, adding that he knew the area well from running every evening. 

Defendant said that he might have gone for a run on the evening of October 11, but he 

insisted that he did not go near the railroad tracks that night. 

Defendant testified to a strange encounter sometime between 10:00 p.m. on 

October 12, 2015, and 3:00 a.m. the next morning. He was home, asleep on the sofa, 

when he was awakened by the sound of the side gate rattling. He went outside and saw a 

man with a bicycle and trailer digging through his garbage cans. The man appeared to be 

homeless and seemed to be “strung out pretty bad.” 

Defendant explained that there were frequent problems with robberies in the area, 

and he was concerned the man may have been “casing” his house. Defendant began 

going through the man’s things. He saw a case that looked like something that belonged 

to his sister. The case contained a gun. Defendant asked the man where he got the gun. 

The man said he found it. Defendant took the gun inside to get his phone to call the 

police. When he returned, the man was gone. Defendant tried to call the police, but his 

phone was not working. He hid the gun in the garage and went back to sleep. 

Defendant testified that he was awakened the next morning by more noises by the 

side gate. He went outside and found a man wearing a reflective vest. The man ran off. 

Later that morning, defendant set out walking, looking for the man. He took the gun with 

him because he did not want to leave it at home. He saw Douglas, who was wearing a 

reflective vest and resembled the man he had seen earlier. Defendant acknowledged 

grabbing Douglas, but claimed he did not choke him. He explained, “There’s a bunch of 

weird stuff going on, had been going on. I was stressed out, I was tired, it was hot, and I 

just made a bad decision, so I just let him go.” 
7

Defendant acknowledged that he had previously lived in Olympia, Washington, 

and had also been stationed in nearby Fort Lewis while in the military. However, 

defendant denied knowing the man who purchased the gun in Olympia. Defendant also 

denied having a gun in August 2015, theorizing that his sister might have seen him 

sleeping with a BB gun. 

Defendant testified that he does not mind homeless people, but does not like 

“people coming and breaking into my house or breaking into my neighbors’ houses or 

screaming at 2:00 o’clock in the morning at the top of their lungs threatening to kill 

imaginary people.” “It gets pretty annoying,” defendant said, “it’s scary, and it’s 

annoying.” Defendant similarly testified that he was “indifferent” to the encampments of 

homeless people near the railroad tracks, but “the . . . thing that kind of spooked me out 

was the fact that there—it looked like there was always a bunch of—it just looked like 

people were going up and down the whole area just robbing houses. [¶] If you looked 

left and right, you’d see the train tracks, just rob houses, and I would just see tarps full of 

stolen things and broken things, you know, dead animals, all sorts of things.” 

G. Verdict, Judgment, and Sentence

The jury returned verdicts after less than a full day of deliberations. The jury 

found defendant guilty of the first degree murder of Anna (count one), the attempted 

murder of Dennis (count two), and carrying a concealed firearm on his person in the 

commission of the last offense (count three). The jury also found true gun enhancements 

on counts one and two. 

Defendant appeared for judgment and sentencing on May 20, 2019. Before the 

sentencing hearing, defense counsel moved to rerefer the matter to probation for 

consideration of defendant’s military service. Defense counsel noted that neither the 

original probation report nor a resentencing memorandum prepared by the probation 

department made any mention of defendant’s military service, which included combat 

duty in Iraq. The trial court agreed to continue the sentencing hearing to June 4, 2019, so 
8

that an updated probation report could be prepared. Defendant objected, maintaining that 

his military service was irrelevant and adding that he would rather go to prison than 

remain in county jail. The trial court granted defense counsel’s motion and continued 

sentencing over defendant’s objection. 

Defendant returned for judgment and sentencing on June 4, 2019. The trial court 

explained on the record that probation officers had requested defendant’s service records, 

but those records would not be delivered for several weeks, assuming the request were

even granted. The trial court then indicated its understanding, which defendant 

confirmed, that defendant was not willing to waive time. The trial court denied defense 

counsel’s request to waive time over defendant’s objection, stating: “Mr. Franklin has 

made it abundantly clear, and in the [c]ourt’s estimation, it is a knowing and voluntary 

request that he be sentenced today, and the [c]ourt is going to honor Mr. Franklin’s 

request. He has insisted on being sentenced today.” 

The trial court then heard argument. Defense counsel renewed his request to 

continue the matter in hopes of receiving a supplemental probation report with additional 

information concerning defendant’s military service. The prosecutor acknowledged that 

defendant had served in the U.S. Army, stationed in Washington state. However, the 

prosecutor argued that “even if [defendant] were a war hero, which we do not know, it 

does not negate or mitigate the evil fashion in which the defendant hunted out vulnerable, 

sleeping, homeless people and shot them for no reason other than his own desire to hurt 

them.” The trial court agreed with the prosecutor, stating: “[T]he defendant’s military 

service does not mitigate the gravity or seriousness of the crimes committed or the harm 

inflicted on the victims or the victims’ family.” The trial court continued: “So while I 

appreciate and respect Mr. Franklin’s [m]ilitary service; nonetheless, the [c]ourt does not 

find that his [m]ilitary service is a circumstance in mitigation.” 

The trial court then sentenced defendant to a total determinate term of 10 years 

eight months, plus an indeterminate term of 75 years to life. The sentence included an 
9

indeterminate term of 25 years to life for the first degree murder of Anna (count one), 

plus an additional indeterminate term of 25 years to life for the gun enhancement 

(§ 12022.53, subd. (d)). The trial court declined to exercise its discretion to strike the 

enhancement (§ 12022.53, subd. (h)), stating, “[T]his was a brutal crime for which the 

defendant has not expressed any remorse.” 

The trial court sentenced defendant to an upper term of nine years for the 

attempted murder of Dennis (count two), plus an additional 25 years to life for the gun 

enhancement. As before, the trial court declined to exercise its discretion to strike the 

gun enhancement (§ 1385) or impose a lesser enhancement (§ 12022.53, subds. (b) or 

(c)), stating, “Once again, this was a brutal crime in which the defendant shot [Dennis]

while he was sleeping and defenseless.” The trial court imposed a consecutive eight 

month-term (one third the middle term) for carrying a concealed weapon in the 

commission of the attempted murder. 

The trial court imposed a sentence of one year (one third the middle term) for the 

assault on Douglas by means of force likely to produce great bodily injury and eight 

months (one third the middle term) for the associated count of carrying a concealed 

weapon, both consecutive to the sentence on count two. The trial court also imposed a 

three year sentence on count three, which it stayed pursuant to section 654. 

The trial court also ordered defendant to pay various fines and fees, including a 

court operations assessment of $240 (§ 1465.8) and a court facilities fee of $180 (Gov. 

Code, § 70737). 

This appeal timely followed. 

II. DISCUSSION

A. Instructional Error

Defendant argues the trial court erred in failing to instruct the jury sua sponte on

voluntary manslaughter as a lesser included offense of murder. Specifically, he argues 

the trial court should have instructed the jury on the theories of imperfect self-defense 
10

(CALCRIM No. 571) and heat of passion (CALCRIM No. 570). We conclude the trial 

court had no duty to instruct on either theory as there was no evidence from which a 

reasonable jury could have concluded that defendant actually acted in the belief that he 

was in imminent danger or in the heat of passion. 

“California law requires a trial court, sua sponte, to instruct fully on all lesser 

necessarily included offenses supported by the evidence,” which, in a murder 

prosecution, includes “the obligation to instruct on every supportable theory of the lesser 

included offense of voluntary manslaughter, not merely the theory or theories which have 

the strongest evidentiary support, or on which the defendant has openly relied.” (People 

v. Breverman (1998) 19 Cal.4th 142, 148-149.) “[T]he existence of ‘any evidence, no 

matter how weak, will not justify instructions on a lesser included offense, but such 

instructions are required whenever evidence that the defendant is guilty only of the lesser 

offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] 

‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of 

reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, 

was committed.” (Id. at p. 162.) We review de novo a trial court’s decision not to give a

particular instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584.) 

1. Heat of Passion

“ ‘Murder is the unlawful killing of a human being . . . with malice aforethought.’ 

(§ 187, subd. (a).) When a person kills while acting ‘upon a sudden quarrel or heat of 

passion’ [citation] even if exercising a sufficient ‘measure of thought . . . to form . . . an 

intent to kill’—he or she acts with ‘a mental state that precludes the formation of malice.’ 

[citations]. Thus, the offense of murder is reduced to the lesser included offense of 

voluntary manslaughter when the defendant acted upon a sudden quarrel or in the heat of 

passion. [Citation.] A person acts upon a sudden quarrel or in the heat of passion if he or 

she ‘acts without reflection in response to adequate provocation.’ [Citation.] 

Provocation is legally adequate if it ‘ “ ‘would cause the ordinarily reasonable person of 
11

average disposition to act rashly and . . . from . . . passion rather than from 

judgment.’ ” ’ ” (People v. Peau (2015) 236 Cal.App.4th 823, 829-830.) 

Defendant points to evidence that an argument took place immediately before the 

shooting. From this evidence, defendant argues, the jury could have reasonably 

concluded that he shot Anna in the heat of passion, “his judgment clouded by his anger 

due to the quarrel.” We perceive several problems with defendant’s argument. At the 

outset, we observe that any connection between the argument and the shooting was 

tenuous at best. Lance testified that the argument seemed to come from a nearby home 

and seemed to involve a couple. Lance also testified that he did not recognize Anna’s 

voice as one of the people involved in the argument. Given Lance’s testimony, which 

was undisputed, we question whether substantial evidence supports a conclusion that the 

argument was connected to the shooting at all.2 But even assuming that Anna argued 

with defendant, there was no evidence that she said or did anything to provoke an 

ordinarily reasonable person to deadly violence, or that defendant acted under the heat of 

passion. To the contrary, the evidence showed that Anna ate dinner with her siblings and 

then retired to her campsite. The evidence also showed that defendant appeared in the 

dark with a gun and fired several shots, leaving Anna dead on the ground. No evidence 

suggests that Anna instigated an argument or provoked defendant in any way. Likewise, 

no evidence suggests that defendant’s reason was actually obscured as a result of a strong 

passion. Although defendant may have had strong feelings about homeless people, and 

justifiable concerns about crime in the area, we cannot say that such feelings or concerns 

“ ‘ “ ‘would cause the ordinarily reasonable person of average disposition to act rashly 

and . . . from . . . passion rather than from judgment.’ ” ’ ” (People v. Peau, supra, 236 

Cal.App.4th at pp. 829-830.) 

2 We note that Lance also testified that arguments were common in the area. 
12

Moreover, even assuming the evidence was sufficient to warrant a heat of passion 

instruction, any error in failing to give the instruction was harmless under any standard of 

prejudice. (People v. Peau, supra, 236 Cal.App.4th at p. 830 [“For our purposes, it is not 

necessary to decide which standard of prejudice applies because any error was harmless 

even under the more stringent Chapman [v. California (1967) 386 U.S. 18, 24] 

standard”]; accord, People v. Franklin (2018) 21 Cal.App.5th 881, 891.) “ ‘Error in 

failing to instruct the jury on a lesser included offense is harmless when the jury 

necessarily decides the factual questions posed by the omitted instructions adversely to 

[the] defendant under other properly given instructions.’ ” (People v. Peau, supra, at p. 

830.) 

Jurors here were instructed pursuant to CALCRIM No. 521 that, “[a] decision to 

kill made rashly, impulsively, or without careful consideration is not deliberate and 

premeditated.” “By finding defendant was guilty of first degree murder, the jury 

necessarily found defendant premeditated and deliberated the killing. This state of mind, 

involving planning and deliberate action, is manifestly inconsistent with having acted 

under the heat of passion . . . and clearly demonstrates that defendant was not prejudiced 

by the failure to [instruct on voluntary manslaughter based on heat of passion].” (People 

v. Wharton (1991) 53 Cal.3d 522, 572; accord People v. Peau, supra, 236 Cal.App.4th at 

pp. 830-831 [following the reasoning of People v. Wharton, supra, and concluding that, 

because the jury had been instructed on first degree murder under a theory of 

premeditation and deliberation pursuant to CALCRIM No. 521, the defendant’s 

“conviction of first degree murder render[ed] any failure to give a heat-of-passion 

instruction harmless because the jury necessarily found that the murder was willful, 

deliberate, and premeditated”]; see also People v. Franklin, supra, 21 Cal.App.5th at p. 

894 [“the jury’s finding of premeditation and deliberation is ‘manifestly inconsistent with 

having acted under the heat of passion’ and nullifies any potential for prejudice here”]; 

but see People v. Berry (1976) 18 Cal.3d 509, 518 [holding that the trial court’s failure to 
13

give a heat of passion instruction was not rendered harmless despite the fact that the 

defendant was convicted of first degree murder]; and see People v. Ramirez (2010) 189 

Cal.App.4th 1483, 1488 [rejecting argument that conviction of first degree murder 

rendered the failure to give a heat of passion instruction harmless in light of Berry].) 

On the record before us, we have little difficulty concluding that jurors would have 

returned the same verdict of first degree murder even if the trial court had instructed them 

on heat of passion voluntary manslaughter. We therefore conclude that any error was 

harmless. (People v. Manriquez, supra, 37 Cal.4th at p. 586.)

2. Imperfect Self-Defense

“ ‘ “Under the doctrine of imperfect self-defense, when the trier of fact finds that a 

defendant killed another person because the defendant actually, but unreasonably, 

believed he was in imminent danger of death or great bodily injury, the defendant is 

deemed to have acted without malice and thus can be convicted of no crime greater than 

voluntary manslaughter.” . . . [I]mperfect self-defense is not an affirmative defense, but a 

description of one type of voluntary manslaughter. Thus the court must instruct on this 

doctrine, whether or not instructions are requested by counsel, whenever there is evidence 

substantial enough to merit consideration by the jury that under this doctrine the 

defendant is guilty of voluntary manslaughter.’ ” (People v. Manriquez, supra, 37 

Cal.4th at p. 581.) 

The doctrine of imperfect self-defense “ ‘is narrow. It requires without exception 

that the defendant must have had an actual belief in the need for self-defense. . . . Fear of 

future harm—no matter how great the fear and no matter how great the likelihood of the 

harm—will not suffice. The defendant’s fear must be of imminent danger to life or great 

bodily injury. “ ‘[T]he peril must appear to the defendant as immediate and present and 

not prospective or even in the near future. An imminent peril is one that, from 

appearances, must be instantly dealt with.’ ” ’ ” (People v. Manriquez, supra, 37 Cal.4th 

at p. 581.) 
14

In this case, the evidence showed that Anna ate dinner and retired to her campsite. 

There was no evidence that Anna accosted or threatened defendant. Nor was there any 

evidence that Anna possessed a weapon. And, though defendant evidently feared that 

homeless people might break into his home, there was no evidence that Anna attempted 

any such thing. Indeed, there was no evidence, of any kind, that defendant feared 

imminent peril when he shot Anna, or that Anna said or did anything that would lead to 

such fear. The record thus contains no substantial evidence to support a finding that 

defendant actually feared that Anna posed an “ ‘imminent danger to life or great bodily 

injury’ ” that “ ‘ “ ‘must be instantly dealt with.’ ” ’ ” (People v. Manriquez, supra, 37 

Cal.4th at p. 581; see also People v. Sakarias (2000) 22 Cal.4th 596, 621 [no state or 

federal constitutional error occurs, requiring reversal for failure to instruct the jury 

regarding a lesser included offense, when the evidence in support of that offense “was, at 

best, extremely weak”].) The trial court, therefore, did not have a duty to instruct sua 

sponte on imperfect self-defense.

B. Sentencing

Defendant next contends the trial court erred in failing to consider his servicerelated PTSD as a mitigating factor at sentencing. We agree.

Section 1170.91, subdivision (a), which became effective on January 1, 2019, 

provides, in pertinent part: “If the court concludes that a defendant convicted of a felony 

offense is, or was, a member of the United States military who may be suffering from

sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or 

mental health problems as a result of his or her military service, the court shall consider 

the circumstance as a factor in mitigation when imposing a term under subdivision (b) of 

Section 1170.” Under section 1170, subdivision (b), “When a judgment of imprisonment 

is to be imposed and the statute specifies three possible terms, the choice of the 

appropriate term shall rest within the sound discretion of the court.” Together, sections

1170.91, subdivision (a) and 1170, subdivision (b) require that the trial court consider a 
15

defendant’s service-related PTSD as a circumstance in mitigation when selecting a term 

of imprisonment. (People v. Panozo (2021) 59 Cal.App.5th 825, 836 [Section 1170.91, 

subdivision (a) “unambiguously obligate[s] a sentencing court to consider a defendant’s 

service-related PTSD, substance abuse, or other qualifying conditions in making 

discretionary sentencing choices”].) Nothing in the record indicates the trial court was 

aware of its duty to consider defendant’s service-related PTSD as a mitigating factor in 

selecting the terms comprising defendant’s determinate sentence. 

“We review a trial court’s sentencing decisions for an abuse of discretion, 

evaluating whether 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.” ’ 

[Citation.] An abuse of discretion is found where the court ‘relies upon circumstances 

that are not relevant to the decision or that otherwise constitute an improper basis for 

decision.’ [Citation.] ‘A failure to exercise discretion may also constitute an abuse of 

discretion.’ [Citation.] ‘ “A court which is unaware of the scope of its discretionary 

powers can no more exercise that ‘informed discretion’ than one whose sentence is or 

may have been based on misinformation regarding a material aspect of a defendant’s 

record.” ’ ” (People v. Panozo, supra, 59 Cal.App.5th at p. 837.) 

The People observe that the trial court was aware of defendant’s military service 

and mental health condition. We do not disagree. There were several discussions on the 

record about the possibility that defendant might suffer from PTSD as a result of his

military service in Iraq. By the time of sentencing, the trial court had heard repeated 

mention of defendant’s military service and mental health condition. But there was no 

mention of defendant’s military service or service-related PTSD in the original probation 
16

report or subsequent resentencing memorandum.

3

 Likewise, there was no mention of 

section 1170.91 in defendant’s written motion to rerefer the matter to the probation 

department, or the probation department’s written response. And there was no mention 

of section 1170.91 at any sentencing hearing. Indeed, there was no discussion, anywhere 

in the record, of the trial court’s obligation to consider defendant’s service-related PTSD 

as a circumstance in mitigation in selecting a term of imprisonment. To the contrary, the 

record indicates the trial court refused to consider defendant’s military service as a 

circumstance in mitigation and did not consider his service-related PTSD at all. The 

record thus provides us with no basis for supposing the trial court appreciated its

mandatory statutory duty to consider defendant’s service-related PTSD as a mitigating 

factor at sentencing. Under the circumstances, we conclude remand is necessary for the 

trial court to make a sentencing determination in light of the new statutory obligation 

imposed by section 1170.91. (People v. Panozo, supra, 59 Cal.App.5th at p. 840 [“In 

short, our record necessitates remand because it is, at the very least, ambiguous as to 

whether the trial court was aware of its statutory obligations under sections 1170.9 and 

1170.91”].)4 

3 We have not been provided with a copy of the original probation report; however, the 

parties and trial court all seemed to agree that defendant’s military service was not 

covered there. 

4 Because we are remanding for resentencing, we need not consider defendant’s other 

challenges to the trial court’s conduct of the sentencing hearing. It is also unnecessary 

for us to consider defendant’s challenge to the trial court’s calculation of court operations 

assessments (§ 1465.8) and court facilities fees (Gov. Code, § 70737), or defendant’s 

contention that the dates on the abstract of judgment are incorrect, all of which the People 

concede. These issues can be raised with the trial court on remand. 
17

III. DISPOSITION

The matter is remanded for a new sentencing hearing at which the trial court shall 

discharge its statutory duty under section 1170.91. In all other respects, the judgment is 

affirmed. 

/S/

 

RENNER, J.

We concur:

/S/

 

ROBIE, Acting P. J.

/S/

 

MURRAY, J.