Filed 9/9/24 P. v. Hickman CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE DENNIS HICKMAN,

Defendant and Appellant.

B326553

(Los Angeles County

Super. Ct. No. MA054466)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Daviann L. Mitchell, Judge. Affirmed with 

directions.

Richard Lennon and Alice Newman, under appointments

by the Court of Appeal, for Defendant and Appellant.

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

Attorney General, Susan Sullivan Pithey, Assistant Attorney 

General, Idan Ivri and Jonathan J. Kline, Deputy Attorneys

General, for Plaintiff and Respondent. 

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

In 2014, Joe Dennis Hickman pleaded no contest to one 

count of voluntary manslaughter and five counts of felony child 

abuse resulting in great bodily injury. He successfully petitioned 

for resentencing under former Penal Code section 1170.95.

1 

Hickman now appeals from the trial court judgment entered after 

he was resentenced. We conclude Hickman has not established 

the trial court abused its discretion or committed reversible error. 

However, we agree with the parties that the abstract of judgment 

is inconsistent with the court’s oral pronouncement of sentence. 

We therefore affirm with directions to amend the abstract of 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying proceedings

In March 2012, the People filed an information alleging

Hickman and Jennifer Zolorzano murdered Zolorzano’s son 

Deshawn Z., assaulted Deshawn resulting in his death, and 

committed child abuse likely to produce great bodily injury and 

death.

In May 2014, Hickman accepted a plea offer. The People

amended the information to add allegations that Hickman

committed voluntary manslaughter on or about October 29, 2011

(§ 192, subd. (a); count 4) and five counts of felony child abuse 

(§ 273, subd. (a); counts 5–9). The court suggested clarifying

separate date ranges for the five counts of child abuse, and the 

1 All further undesignated statutory references are to the 

Penal Code.

Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)

We refer to the law as section 1172.6 for the remainder of this 

opinion.
3

parties agreed. Hickman pleaded no contest to the six new 

counts, and the People dismissed the three initial charges against 

him. Hickman also admitted allegations that each felony child 

abuse count caused great bodily injury to a child under five 

(§ 12022.7, subd. (d)). 

In August 2014, the trial court sentenced Hickman to an

aggregate term of 26 years, consisting of 11 years for the 

manslaughter conviction and five consecutive sentences of three 

years for each felony child abuse conviction and their respective 

enhancements. 

In February 2021, the court held a Franklin2 hearing, 

allowing Hickman to preserve youth-related evidence for future

parole hearings. According to the testimony of Hickman’s 

relatives, Hickman was neglected, abused, and kicked out of his 

home in his youth. His stepfather punished, beat, and spanked 

him, and destroyed his clothes. Hickman’s mother prioritized his 

stepfather such that Hickman “never really had the love from his 

mother that a normal kid growing up would have.” Hickman’s 

aunt and mother believed he was molested and sexually 

assaulted by his stepsiblings in his youth. However, according to 

his mother’s testimony at the Franklin hearing, despite his 

traumatic childhood and lack of supportive parenting, Hickman

“never smoked [weed], never [drank] beer, whiskey, nothing . . . . 

He never gangbang[ed],” and would not “hurt a fly.” 

2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
4

Hickman’s petition for resentencing 

In March 2022, Hickman filed a pro per petition for 

resentencing under section 1172.6, alleging he could not 

presently be convicted of manslaughter because of changes to 

sections 188 and 189. The trial court concluded Hickman made a

prima facie case that he was eligible to be resentenced. It 

appointed counsel for Hickman, scheduled a hearing on the 

matter, and ordered the People to submit briefing on whether the 

requested relief should be granted.

The People conceded Hickman was eligible for 

resentencing. The court granted Hickman’s petition and vacated 

his manslaughter sentence. It ordered the parties to submit 

sentencing memoranda and scheduled a resentencing hearing. 

In their sentencing memorandum, the People argued count 

5, the first felony child abuse conviction, should be designated as 

the principal term. The People asked the court to impose the 

upper term of six years on that count plus six years for the

associated great bodily injury enhancement. The People also 

asked the court to redesignate the manslaughter charge to its 

target offense, which they argued was a separate uncharged

count of felony child abuse. The People requested that the court 

sentence Hickman to 16 months on the redesignated target 

offense. The People did not seek any change to the remainder of

Hickman’s sentence. 

Hickman’s sentencing memorandum conceded he hit 

Deshawn with his hand, a belt, a flip-flop, and a stick. However, 

he argued Zolorzano was more culpable for Deshawn’s death.

3 

3 The trial court did not agree, finding, “I do think that he 

was equally culpable for the death of this minor child. This baby 
5

Hickman cited evidence that Deshawn was dehydrated, 

malnourished, suffered from intravascular sickling, and was

severely underweight; and that dehydration alone may have 

caused Deshawn’s death.

4 Hickman contended these maladies

were Zolorzano’s fault because she was Deshawn’s legal and 

biological mother, while Hickman was merely Zolorzano’s 

cohabiting boyfriend. Hickman argued it would be unfair for 

Zolorzano, who had been recently released after successfully 

petitioning for resentencing, to be free while he remained 

imprisoned. Hickman therefore asked the court to impose a low 

term sentence for the redesignated target offense under section 

1172.6, subdivision (e). He asked that all other counts and 

allegations be dismissed pursuant to section 1385, served 

concurrently, or stayed; or, alternatively, he requested probation

on the remaining counts.

At the October 2022 resentencing hearing, Hickman’s uncle 

told the court he would have a loving family and support system 

if released. Hickman told the court that he took “full 

responsibility for what [he had] done.” He stated he was taking 

anger management classes and was participating in Alcoholics 

Anonymous and Narcotics Anonymous. Hickman also reported 

he was working toward taking his general equivalency 

development test (an alternative to a high school diploma) but

did not deserve anything that happened to him, and they both 

[sic] equally responsible.”

4 In support of these contentions, Hickman cited testimony 

from a forensic pathologist at the preliminary hearing. The 

transcript of that hearing is not part of the record on appeal.
6

had not completed the program in the 11 years he had been 

incarcerated.5

In imposing its sentence, the court considered the probation 

report, its own familiarity with the case, evidence presented at

the Franklin hearing, and the support system described by 

Hickman’s uncle who testified during the resentencing hearing. 

The court recognized it was unclear who was responsible for 

Deshawn’s death but it believed Hickman and Zolorzano were 

both culpable, particularly since they both admitted to physically 

abusing Deshawn. The court specifically noted that Hickman 

initially denied abusing Deshawn, but later conceded hitting the 

child on the day he died. It also noted Hickman had admitted to 

punching Deshawn and hitting the child with a stick and other 

objects in the past. The court was particularly concerned that 

Hickman admitted that he encouraged Deshawn’s sister to “sock” 

the child, because “he act[ed] too much like a girl,” and Hickman 

did not want Deshawn “to grow up to be gay.” The court believed 

that Hickman acknowledged punching Deshawn in the face “so 

he won’t be gay.” The court rejected Hickman’s counsel’s 

argument that these statements may have been made in jest or 

5 His lack of progress in this area concerned the court. As to 

Zolorzano, the court found that “she has presented . . . the court a 

tremendous amount of information as to what she’s done to 

improve her life since she has been there.” The court referenced 

Zolorzano’s more impressive self-improvement efforts while in 

custody, in conjunction with her immediate acceptance of 

responsibility, in rebutting Hickman’s claim that it was unfair for 

Zolorzano to have been released after a successful resentencing 

petition, while he remained in custody. 
7

suggested by the interviewing detective. The court also found 

that Hickman “now has a support system that he did not have”6

when he committed the crimes, and specifically referenced his 

age at the time he committed the crimes: “[P]eople at 20 are not 

the same people as they are at 30.”

The court imposed an aggregate sentence of 19 years four 

months. The court selected count 5, the first felony child abuse 

conviction, as the principal term. It imposed a sentence of 12 

years, consisting of the upper term of six years on the base charge

plus the upper term of six years for the section 12022.7, 

subdivision (d) enhancement. This sentence was based on the 

court’s finding that Deshawn “was very vulnerable” because of 

his young age, which the court concluded was an aggravating 

circumstance justifying the upper term.

7

The court redesignated Hickman’s manslaughter conviction

to an additional felony child abuse charge, and imposed a 

consecutive sentence of 16 months, i.e., one-third the middle term 

sentence. On counts 6 and 7, the court imposed consecutive 

sentences of three years each, based on one-third the middle term 

6 The court appeared to be invoking a comparison with

Hickman’s prior traumatic childhood as described in part by 

Hickman’s aunt during the Franklin hearing as follows: “I think 

if he would have had [his mother’s] love and support, he would 

not be sitting here today.” 

7 Hickman and the trial court both asserted Deshawn was 18 

months old when he was killed. However, one page of the record 

on appeal states Deshawn was two and a half years old when he 

died. Regardless of the victim’s precise age, count 5, for which 

the court imposed the upper term, covered the earliest time 

period, when Deshawn would have been at his youngest.
8

sentence for each conviction and great bodily injury 

enhancement. Finally, for counts 8 and 9, the court sentenced 

Hickman to concurrent eight-year terms, based on the four-year

middle term on the charged offense and the four-year lower term 

on each great bodily injury enhancement. The court explained

that it selected the middle term on the base term because the 

convictions were based on multiple incidents over a long time 

period, and the lower term on the great bodily injury 

enhancements were appropriate because “some of the other 

abuses did not, perhaps, rise to the higher level warranting a 

higher term . . . .” Hickman did not object to any aspect of the 

sentence. 

Hickman timely appealed. 

DISCUSSION

I. Senate Bill Nos. 1437 and Section 1172.6

Senate Bill No. 1437 (2017–2018 Reg. Sess.) eliminated the 

natural and probable consequences doctrine as a basis for finding 

a defendant guilty of murder and limited the scope of the felony 

murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707–708 

(Strong); People v. Gentile (2020) 10 Cal.5th 830, 842–843 

(Gentile).) The bill amended section 188 by adding the 

requirement that, except as stated in section 189, subdivision (e), 

“to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person 

based solely on his or her participation in a crime.” (§ 188, subd. 

(a)(3).) 

As relevant here, Senate Bill No. 1437 created a procedure, 

now codified at section 1172.6, in which a defendant who 

accepted a plea deal in lieu of a trial on a murder charge may 

seek resentencing if he or she could not presently be convicted of 
9

murder under amended section 188. (Gentile, supra, 10 Cal.5th 

at p. 847; see also Sen. Bill No. 775 (2021–2022 Reg. Sess.) (Stats. 

2021, ch. 551, § 2) [further amending statutory procedures in 

§ 1172.6].) A defendant commences the procedure by filing a 

petition containing a declaration that, among other things, he or 

she could not presently be convicted of murder under the current 

law. (Strong, supra, 13 Cal.5th at p. 708.) If, after briefing and a 

hearing, the court determines the petitioner made a prima facie 

case for relief, the court must issue an order to show cause. 

(§ 1172.6, subd. (c).)

Within 60 days after issuing an order to show cause, “ ‘the 

court must hold an evidentiary hearing at which the prosecution 

bears the burden of proving, “beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder” under state 

law as amended by Senate Bill No. 1437 . . . . [Citation.]’ ” 

(People v. Njoku (2023) 95 Cal.App.5th 27, 41; § 1172.6, subd. 

(d)(1), (3).) Alternatively, the parties may waive the evidentiary 

hearing and stipulate that the petitioner is eligible for 

resentencing. (§ 1172.6, subd. (d)(2).)

If the petitioner is eligible for relief, the prior conviction 

must be vacated and the defendant resentenced on all remaining 

charges. (§ 1172.6, subd. (d)(3).) If the target offense underlying 

the vacated conviction was not charged, the conviction “shall be 

redesignated as the target offense or underlying felony for 

resentencing purposes . . . .” (Id., subd. (e).) 

II. Standard of Review

We review a trial court’s sentencing decision for abuse of 

discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847

(Sandoval), superseded by statute on another ground as stated in

People v. Lynch (2024) 16 Cal.5th 730, 756 (Lynch).) “The trial 
10

court’s sentencing discretion must be exercised 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.’ ” (Sandoval, at p. 847.) “A court abuses its discretion 

when it makes an arbitrary or capricious decision by applying the 

wrong legal standard [citations], or bases its decision on express 

or implied factual findings that are not supported by substantial 

evidence.” (People v. Moine (2021) 62 Cal.App.5th 440, 449.) 

However, “in light of the presumption on a silent record that the 

trial court is aware of the applicable law, including statutory 

discretion at sentencing, we cannot presume error where the 

record does not establish on its face that the trial court 

misunderstood the scope of that discretion. [Citations.]” (People 

v. Gutierrez (2009) 174 Cal.App.4th 515, 527 (Gutierrez).)

III. The Trial Court Did Not Abuse Its Discretion in 

Redesignating Hickman’s Manslaughter Conviction

Hickman argues the trial court abused its discretion8 by 

redesignating his manslaughter conviction as an additional count 

of felony child abuse. We find no abuse of discretion.

9

8 Hickman contends the appropriate standard of review for 

the “construction and interpretation of a statute” is de novo. 

However, Hickman does not argue the court misconstrued section 

1170, subdivision (e). Rather, he contends this subdivision did 

not apply under the facts of this case.

9 The People argue Hickman forfeited this claim by failing to 

raise it below. Hickman also appeared to invite any error by 

asking the court to impose the lower term on the target offense 

and citing section 1172.6, subdivision (e). (People v. Coffman and

Marlow (2004) 34 Cal.4th 1, 49.) Hickman contends a claim 
11

After the trial court vacates a conviction under section 

1172.6, if the target offense underlying the conviction was not 

charged, the court must redesignate that conviction as the target 

offense. (§ 1172.6, subd. (e).) Although the statute does not 

define “target offense,” that term refers to whatever underlying 

offense “the natural and probable consequence of which was 

murder.” (People v. Arellano (2024) 16 Cal.5th 457, 470.) This 

subdivision “invest[s] the superior court with considerable 

discretion” in redesignating a vacated conviction as a target 

offense. (People v. Silva (2021) 72 Cal.App.5th 505, 532.)

Here, after vacating Hickman’s manslaughter conviction, 

the trial court redesignated that offense as an additional count of 

felony child abuse. Although the trial court did not expressly cite 

section 1172.6, subdivision (e) in rendering its decision, no other 

subdivision requires or permits a court to redesignate a vacated 

conviction. “Absent evidence to the contrary, we presume that 

the trial court knew the law and followed it.” (People v. Ramirez

(2021) 10 Cal.5th 983, 1042 (Ramirez).) We therefore presume

the trial court redesignated Hickman’s manslaughter conviction 

pursuant to and in compliance with section 1172.6, subdivision 

(e). (Ramirez, at p. 1042.) 

Hickman argues that the target offense for his 

manslaughter conviction was separately charged. However, 

Hickman fails to cite any part of the appellate record to support 

could not be forfeited because the sentence was unauthorized, 

citing People v. Scott (1994) 9 Cal.4th 331, 354, but he fails to 

explain how this aspect of his sentence was unauthorized rather 

than merely an abuse of discretion. In any case, to the extent 

Hickman arguably forfeited this argument, we exercise our 

discretion to consider his claim.
12

this claim. Indeed, nothing in the record suggests the court or 

any party determined or even considered whether one of 

Hickman’s remaining child abuse convictions was intended to be 

the target offense. Hickman contends the target offense was 

charged as count 9 because the timeframe specified for that 

count—March 3, 2011 through November 29, 2011—encompassed 

October 29, 2011, the date of his now vacated manslaughter 

conviction. Yet, the overlapping time frame does not establish 

count 9 was based on the specific conduct that led to Deshawn’s 

death. To the contrary: if count 9 was intended to serve as the 

target offense, it would have been characterized as having 

occurred on precisely the same date as count 4—October 29, 

2011. That the two convictions were described as occurring over 

different timeframes indicates count 9 was not the target offense 

underlying Hickman’s manslaughter conviction.

10 

Hickman’s reliance on People v. Fouse (2024) 98 

Cal.App.5th 1131 is misplaced. In Fouse, the defendant was 

convicted of “two counts of attempted murder of a peace officer, 

three counts of first degree robbery, one count of assault likely to 

cause great bodily injury, and one count of conspiracy to commit 

first degree robbery.” (Id. at p. 1133.) After the defendant

successfully petitioned for resentencing under section 1172.6, the

court vacated the attempted murder convictions and redesignated 

them as assault. (Fouse, at p. 1133.) On appeal, the court found

10 Some criminal statutes proscribe “continuous” conduct and 

therefore preclude convictions for both the continuous conduct 

and any individual act thereof occurring within the same time 

period. (People v. Johnson (2002) 28 Cal.4th 240, 244–245; § 

288.5, subd. (c).) However, section 273a, subdivision (a) includes 

no such restriction.
13

it was “undisputed” that the target offenses for the defendant’s 

attempted murder convictions were robbery, which occurred on 

the same day and during the same occurrence as the attempted 

murder and for which the defendant was separately charged and 

convicted. (Id. at pp. 1133–1139.) The court therefore concluded 

the trial court was not permitted to redesignate the attempted 

murder charges. (Id. at p. 1145.) In contrast, here, the People 

dispute, and Hickman has not established, that the target offense 

was separately charged. Fouse is therefore inapplicable.

IV. The Trial Court Did Not Err in Sentencing Hickman 

on Count 5

Hickman next contends the trial court erred and abused its 

discretion in imposing the upper term on count 5 and the

associated great bodily harm enhancement. We disagree.

a. Any error in finding true the aggravating 

circumstance was harmless beyond a reasonable 

doubt

Hickman argues the trial court erred by imposing the 

upper term sentence on count 5, violating section 1170, 

subdivision (b)(2). However, Hickman forfeited this claim by 

failing to object during the resentencing hearing. (People v. 

Anderson (2023) 88 Cal.App.5th 233, 242 [defendant’s failure to 

object to upper term forfeited argument based on § 1170, subd.

(b)]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511

[defendant’s failure to object forfeited claim that upper term was 

improper].) Moreover, any error was harmless.

Effective January 1, 2022, Senate Bill No. 567 (2021–2022 

Reg. Sess.) (Stats. 2021, ch. 731) amended section 1170, 

subdivision (b). The amendments to subdivisions (b)(1) and (2)

“make the middle term the presumptive sentence for a term of 
14

imprisonment; a court now must impose the middle term for any 

offense that provides for a sentencing triad unless ‘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.’ ” (People v. Lopez (2022) 78 Cal.App.5th 459, 464, 

disapproved on another ground in Lynch, supra, 16 Cal.5th at p. 

769.) Circumstances in aggravation include that “[t]he victim 

was particularly vulnerable.” (Cal. Rules of Court, rule 

4.421(a)(3).)

The trial court resentenced Hickman in October 2022, 

nearly a year after section 1170, subdivision (b) took effect. In 

imposing its sentence, the court found Deshawn was “very 

vulnerable” on account of “his very young age.” Based on this 

single aggravating circumstance, the court sentenced Hickman to 

the upper term for both the principal charge and the section 

12022.7 enhancement. The facts underlying the aggravating 

circumstances were not found true by a jury nor stipulated to by 

Hickman. Yet, even assuming this aspect of the sentence 

violated section 1170, subdivision (b)(2), any error was harmless

if we can conclude, beyond a reasonable doubt, that a jury would 

have found true, beyond a reasonable doubt, that Deshawn was 

particularly vulnerable. (Lynch, supra, 16 Cal.5th at pp. 768–

769.) We are satisfied that a jury would have done so here.

“ ‘ “Vulnerability means defenseless, unguarded, 

unprotected, accessible, assailable, one who is susceptible to the 

defendant’s criminal act.” [Citation.]’ [Citation.]” (People v. 

DeHoyos (2013) 57 Cal.4th 79, 154.) A victim is particularly 
15

vulnerable “where the age or physical characteristics of the 

victim, or the circumstances under which the crime is committed, 

make the defendant’s act especially contemptible.” (People v. 

Bloom (1983) 142 Cal.App.3d 310, 321–322.) A “very young” 

victim may qualify as “indisputably vulnerable” in the context of 

aggravating circumstances. (Sandoval, supra, 41 Cal.4th at p. 

842.) 

Here, Deshawn was either 18 months or two and a half 

years old when he died.

11 Based on his extremely young age, 

coupled with his small size and weakened physical condition due 

to dehydration and malnourishment, we find beyond a reasonable 

doubt that a jury would find, beyond a reasonable doubt, that 

Deshawn was particularly vulnerable. (Cf. Sandoval, supra, 41 

Cal.4th at p. 842 [“very young” victim may qualify as 

“indisputably vulnerable”]; People v. Garcia (1985) 166 

Cal.App.3d 1056, 1070 [two-and-a-half-year-old victim’s “extreme 

youth coupled with her close relationship to the defendant clearly 

supports the court’s finding” that the victim was particularly 

vulnerable].) Any error was therefore harmless beyond a 

reasonable doubt, and remand for resentencing is unnecessary.

12

11 See ante footnote 7.

12 The People argue that a defendant’s Sixth Amendment 

right to a jury trial does not apply during the section 1172.6 

petition process. (People v. Howard (2020) 50 Cal.App.5th 727, 

740.) Therefore, the People argue that the requirement that an 

aggravating circumstance be based on facts found true by a jury 

(§ 1170, subd. (b)(2)) does not apply during resentencing. 

Because we conclude any error was harmless, we need not reach 

this issue.
16

b. Hickman failed to establish the trial court abused 

its discretion by failing to impose the lower term 

on count 5

Hickman contends the trial court also abused its discretion 

by failing to impose the lower term on count 5 and the 

accompanying enhancement, in violation of section 1170, 

subdivision (b)(6)(A) and (B). We disagree.13

Senate Bill No. 567 also amended section 1170, subdivision 

(b)(6). This subdivision of the new statute “creates a presumption 

that the sentencing court ‘shall’ enter a lower term sentence” 

when one or more mitigating circumstances contributed to the 

offense. (People v. Salazar (2023) 15 Cal.5th 416, 419, citing 

§ 1170, subd. (b)(6).) Mitigating circumstances include if the 

13 Hickman did not cite section 1170, subdivision (b)(6) below, 

nor did he object to the trial court’s sentence. Some courts have 

concluded a defendant forfeits any claim based on the statute 

under such circumstances. (People v. Tilley (2023) 92 

Cal.App.5th 772, 778 (Tilley).) Others have reasoned that the 

statute creates a presumption that “does not apply if not 

triggered by an initial showing, but it is not subject to forfeiture.” 

(People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8.) 

Although Hickman’s counsel asked the court to consider 

“during the [subsequent] sentencing” mitigating evidence which 

had been presented at the Franklin hearing and though during 

the sentencing Hickman referenced his youth at the time of the 

crimes, his counsel neglected to draw a causal connection 

between any mitigating factors and Hickman’s crimes. 

Regardless of whether counsel’s failure to connect the dots 

constitutes a forfeiture, as discussed post, the record does not 

reflect the lack of a satisfactory rationale for such omission nor 

has Hickman demonstrated a reasonable probability of a 

different sentence had his counsel affirmatively made such a 

connection. 
17

defendant “has experienced psychological, physical, or childhood 

trauma,” or was under 26 years old when the offense was 

committed. (§§ 1170, subd. (b)(6)(A), (B), 1016.7, subd. (b).) 

Hickman has not established the trial court abused its 

discretion in declining to impose the lower term. Section 1170, 

subdivision (b)(6) does not apply unless the defendant establishes 

one or more mitigating circumstances “was a contributing factor 

in the commission of the offense.” (§ 1170, subd. (b)(6).) 

Even if such a causal link is established, the presumption can be 

overcome if “the court finds that the aggravating circumstances 

outweigh the mitigating circumstances [such] that imposition of 

the lower term would be contrary to the interests of justice.”

(Ibid.) 

Although the court did not discuss section 1170, 

subdivision (b)(6), Hickman has not identified any evidence in the 

record suggesting the court misunderstood the law or its 

discretion. We presume the trial court knew and correctly 

applied the law. (Gutierrez, supra, 174 Cal.App.4th at p. 527.)

“ ‘ “In the absence of . . . a showing [that the court misunderstood 

the law or its discretion], the trial court is presumed to have 

acted to achieve legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will 

not be set aside on review.” ’ [Citation.]” (People v. Carmony

(2004) 33 Cal.4th 367, 376–377 (Carmony).) The record reveals 

that the court engaged in the balancing contemplated by section 

1170, subdivision (b)(6). 

In seeking resentencing, Hickman’s defense counsel

presented evidence of the mitigating circumstances which 

Hickman now argues should have compelled the court to impose 

the lower term on count 5. During a presentencing hearing, 

Hickman’s counsel asked the court to consider the Franklin
18

hearing evidence—which centered on Hickman’s childhood 

trauma—“as evidence as far as mitigation.” Moreover, during the 

sentencing hearing, Hickman’s counsel reminded the court that 

Hickman was “young at the time . . . .” At his counsel’s 

invitation, Hickman addressed the court about his age and lack of 

proper parenting skills. Hickman told the court he “didn’t have 

the proper parenting skills that [he] needed to raise a child” at 

the time of the offense, and “the kid, the child, the boy so to speak 

that I was in 2011 is [sic] I am not today.” 

The trial court acknowledged having considered the 

Franklin hearing evidence; and it also knew how old Hickman 

was when he committed the offenses. The record 

reveals that these factors were considered by the court before 

pronouncing sentence, when it recognized that Hickman was not 

the same young person, with the same inadequate familial 

support system, who committed the crimes years earlier. Despite 

this acknowledgement, the court chose to impose the upper term.

Nothing in the record suggests the court found that 

Hickman’s youth or traumatic childhood, on balance, compelled 

the imposition of the lower term. Indeed, on the other side of the 

scale, the court found Deshawn was particularly vulnerable on 

account of his youth and cited this as an aggravating 

circumstance supporting the upper term.14 The court also found 

it “horrifying” that Hickman beat Deshawn, an 18-month-old 

child, and/or directed Deshawn’s young sister to “sock” him, so he 

14 The parties agree that the court relied on its conclusion 

that the victim was particularly vulnerable as an aggravating 

factor in imposing the upper term. They disagree as to whether 

that conclusion, in the absence of a finding by a jury or a 

stipulation by Hickman, constituted harmless error. As 

discussed ante, we believe that it did.
19

would not “grow up to be gay.”15 The court’s emphasis on what it 

concluded was the homophobic impetus behind Hickman’s crimes

was one of the “facts and circumstances”16 to which the court 

devoted considerable time in determining the appropriate term 

on count 5—the redesignated principal term. In short, the record 

indicates the court found that the aggravating circumstances, 

including the court’s “big concern” regarding the “horrifying” 

evidence that Hickman abused “an 18-month-old child [who] 

barely knows his name and already has health issues as it is” 

“because [he] [didn’t] want him to grow up to be gay,” outweighed 

those in mitigation. To the extent Hickman asks us to reweigh 

the circumstances in aggravation and mitigation, we have no 

authority to do so under the abuse of discretion standard. 

(Carmony, supra, 33 Cal.4th at p. 379.)

In the alternative, Hickman claims his counsel was 

ineffective for failing to argue for the lower term presumption 

under 1170, subdivision (b)(6). To establish this claim, Hickman 

15 Hickman’s counsel disputed that his client admitted any 

such homophobic motivation, arguing either that Hickman was 

“joking” or, alternatively, that the detective who interviewed him 

put words in his mouth. However, in contrast to section 1170, 

subdivision (b)(2), the court may rely on additional aggravating 

circumstances not found true by a jury beyond a reasonable doubt 

in determining whether section 1170, subdivision (b)(6) applies. 

(People v. Hilburn (2023) 93 Cal.App.5th 189, 204; People v. 

Bautista-Castanon (2023) 89 Cal.App.5th 922, 929.) 

16 According to the California Rules of Court, such “bigotry,” 

as the court labeled it, could qualify as an additional aggravating 

circumstance weighing against imposition of the lower term: that 

the crime involved “a high degree of cruelty, viciousness, or 

callousness.” (Cal. Rules of Court, rule 4.421(a)(1).)
20

must show (1) his counsel’s representation fell below the 

standard of reasonableness “under prevailing professional

norms,” and (2) that deficient performance caused him prejudice. 

(Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); 

Tilley, supra, 92 Cal.App.5th at p. 778.) Moreover, “[i]f the record

‘sheds no light on why counsel acted or failed to act in the

manner challenged,’ an appellate claim of ineffective assistance of

counsel must be rejected ‘unless counsel was asked for an

explanation and failed to provide one, or unless there

simply could be no satisfactory explanation.’ ” (People v. Ledesma

(2006) 39 Cal.4th 641, 746 (Ledesma), quoting People v.

Pope (1979) 23 Cal.3d 412, 426; see In re Avena (1996) 12 Cal.4th

694, 721.) 

Hickman has not met his burden of either: 1) establishing 

that his counsel’s performance was deficient; or 2) that any such 

deficient performance was prejudicial. Both parties acknowledge 

that the court had been provided mitigating evidence prior to 

pronouncing sentence. They also agree that Hickman’s counsel17

failed to draw a causal connection for the court between 

Hickman’s age/traumatic childhood and the commission of his 

crimes.

Hickman has not demonstrated the absence of any 

“ ‘satisfactory explanation’ ” for counsel’s failure to make these 

connections. (Ledesma, supra, 39 Cal.4th at p. 746.) And the 

17 In his Reply Brief, Hickman argues that, despite his 

counsel’s failure to affirmatively link Hickman’s youth/childhood 

trauma to his crimes, the court, by virtue of having considered 

Hickman’s probation report and the evidence presented at the 

Franklin hearing, was put “on notice” that these mitigating 

factors contributed to Hickman’s crime.
21

record fails to “ ‘ “affirmatively disclose the lack of a rational 

tactical purpose for the challenged act or omission.” [Citation.]’ 

[Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 403

(Majors).) Instead, the record reveals that Hickman’s counsel

may have had strategic reasons for not highlighting the section 

1170, subdivision (b)(6) presumption in seeking the lower term on 

the base count. 

During the Franklin hearing, Hickman’s mother testified 

that he did not “smoke” or “gangbang,” and would “not hurt a fly.”

Such testimony may have caused counsel to question the wisdom 

of attempting to establish a causal link to his age or childhood 

trauma in an effort to mitigate his culpability, especially given 

that Hickman was seeking a similar sentence to that imposed 

upon Zolorzano during her earlier resentencing. 

In his brief in support of Hickman’s resentencing, defense 

counsel sought a sentence which would result in Hickman’s 

immediate release, just as Zolorzano had been released earlier by 

the same court. Anything else, counsel implored, would be a 

“miscarriage of justice” as counsel argued Hickman was less 

culpable than Zolorzano. 

However, at the start of Hickman’s resentencing hearing, 

the court did not agree that Hickman was less culpable than 

Zolorzano. The court reiterated Zolorzano had immediately

accepted responsibility. The court’s reference to Zolorzano’s 

acceptance of responsibility might explain why Hickman opted 

not to rely on mitigating factors in an effort to “excuse” his earlier

behavior, instead telling the court that he “[took] full 

responsibility for my part . . . . I don’t point the finger or the 

blame on anybody.” In short, Hickman’s counsel may have 

determined the best tactical course of action was for Hickman to 
22

accept responsibility, rather than blaming the crimes on his 

youth or childhood trauma.

Even if an alternative conclusion could be drawn from the 

record—that counsel’s approach in the resentencing fell below 

applicable professional standards—Hickman has nonetheless 

failed to establish prejudice. “It is not enough to establish 

prejudice for defendant to propose that counsel’s performance had 

some ‘conceivable effect’ on the outcome; rather, defendant must 

show a reasonable probability of a different result but for 

counsel’s errors. ([Strickland, supra, 466 U.S.] at pp. 693–694.)

Prejudice must be a demonstrable reality established based on 

facts in the record, not simply speculation as to the effect of the 

errors or omissions of counsel. [Citations.]” (Tilley, supra, 92 

Cal.App.5th at p. 778.) Hickman argues only that the court 

would have “likely” found his youth and childhood trauma 

contributed to his offenses, and, in turn, “the court could decide if 

the low term was in the interest of justice.” That the court 

“could” change its decision is entirely speculative—Hickman does 

not assert the court would have changed its decision, or even that 

there was a reasonable probability of such a result. (Ibid.

[assertion that trial court “would have ‘reconsidered its 

sentencing decision’ ” insufficient to establish prejudice].)

In any case, based on the totality of the record, there is no 

reasonable probability the court would have concluded section 

1170, subdivision (b)(6) required it to impose the lower term 

sentence. As we have discussed, the record reveals the court was 

aware of the mitigating circumstances on which Hickman relies

but found the aggravating circumstances far more compelling. 

This indicates the court found the latter circumstances 

outweighed the former. Thus, even if defense counsel had more 
23

effectively argued that the presumption under section 1170, 

subdivision (b) applied, we conclude there is no reasonable 

probability that the court would have determined it was required 

to impose the lower term.

The record does not “ ‘ “affirmatively disclose the lack of a 

rational tactical purpose for the challenged act or omission,”

[Citation.]’ [Citation.]” (Majors, supra, 18 Cal.4th at p. 403) and, 

even it had, Hickman cannot establish prejudice. We therefore

reject Hickman’s claim of ineffective assistance of counsel.

c. The trial court did not abuse its discretion by 

concluding mitigating evidence was insufficient to 

warrant dismissal of the enhancement on count 5 

Hickman next argues the trial court abused its discretion 

in declining to dismiss the great bodily injury enhancement 

attached to count 5 based on section 1385, subdivision (c). We 

find no abuse of discretion.

18

Effective January 1, 2022, almost 10 months before 

Hickman’s resentencing, our Legislature amended section 1385 to 

provide trial courts guidance in exercising their discretion to 

18 Hickman’s sentencing memorandum asked the court to 

dismiss all counts and enhancements other than the principal 

term, citing section 1385. However, his briefing failed to identify 

any specific mitigating circumstances that could support such 

dismissal. Hickman also failed to raise the issue during the 

resentencing hearing. (Carmony, supra, 33 Cal.4th at pp. 375–

376 [defendant’s failure to invite the court to dismiss under §

1385 forfeits the issue on appeal].) Even if Hickman arguably 

forfeited this claim by failing to present argument based on 

section 1385 during the hearing, we exercise our discretion to 

consider his arguments. 
24

dismiss sentencing enhancements. (People v. Coleman (2024) 98 

Cal.App.5th 709, 723–724 (Coleman); see also (2021–2022 

Reg. Sess.) (Stats. 2021, ch. 721, § 1).) Section 1385, subdivision 

(c) now instructs the trial court to “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.” It further 

requires the court to “consider and afford great weight” to 

evidence that the crime “is connected to prior victimization or 

childhood trauma” or that the defendant committed the offense 

triggering the enhancement when he or she was a juvenile. 

(§ 1385, subd. (c)(1), (2)(E) & (G).) Hickman argues the court 

failed to “afford great weight” to evidence of his childhood trauma 

and that he was a juvenile when he committed the offense, and 

also failed to consider whether these circumstances in mitigation 

justified dismissing the enhancement.

In contrast to section 1170, subdivision (b)(6), only one 

mitigating factor—evidence of childhood trauma—could have 

triggered the court to consider exercising its discretion to dismiss 

the enhancement under section 1385, subdivision (c). As to age, 

it is notable that the two statutes use different standards when 

considering age as a mitigating factor. Section 1170, subdivision 

(b)(6) establishes a presumption for the lower term if the 

defendant was “a youth as defined under subdivision (b) of 

Section 1016.7 at the time of the commission of the offense.”

Section 1016.7, in turn, defines youth as “any person under 26 

years of age on the date the offense was committed.” In contrast, 

section 1385, subdivision (c)(2)(G) compels the court, when 

exercising its discretion to dismiss an enhancement, to consider 

whether “the defendant was a juvenile when they committed the 

current offense,” which other relevant statutes define as a person 
25

under 18 years of age. (See, e.g., Welf. & Inst. Code, § 101, subd. 

(a).) There is no dispute that Hickman was at least 20 years of 

age when the offenses to which he pled no contest occurred, 

including the voluntary manslaughter charge for which he was 

resentenced. 

Again, Hickman has failed to establish the trial court 

abused its discretion. (Coleman, supra, 98 Cal.App.5th at p. 724

[appellant’s burden is to “affirmatively demonstrate[]” trial court 

misunderstood its sentencing discretion under § 1385].) As we 

have discussed, during the resentencing hearing, the court stated 

it considered evidence of Hickman’s childhood trauma (as well as 

his age) when he committed the offenses. The court did not 

indicate it afforded this factor “great weight,” but “we presume 

that the trial court knew the law and followed it.” (Ramirez, 

supra, 10 Cal.5th at p. 1042.) 

Moreover, assuming the court afforded this factor great 

weight, if the court also found “substantial, credible evidence of 

countervailing factors,” such factors “ ‘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 (Aug. 15, 2024, S278309) ___ Cal.5th ___ [2024 

WL 3819098, p. *4], citing People v. Ortiz (2023) 87 Cal.App.5th 

1087, 1098.) Although the court never expressly found dismissal 

was not in the furtherance of justice, we presume the court was 

aware of and complied with section 1385, subdivision (c), 

particularly since defense counsel cited section 1385 in his 

sentencing memorandum. For example, the court may have 

determined the potential aggravating factors described above—

the cruelty of Hickman’s abuse and Deshawn’s particular 

vulnerability—neutralized any mitigating factors. Hickman’s 
26

“citation to a silent record is insufficient to meet his burden to 

demonstrate an abuse of discretion. [Citation.]” (Coleman, 

supra, 98 Cal.App.5th at p. 725.) 

Hickman also contends we should remand so that the trial 

court can reconsider whether to exercise its discretion to impose 

the lower term sentence on the great bodily harm enhancement 

to count 5. However, he fails to identify any legal authority that 

would allow or compel such a result, and we therefore reject this 

argument.

V. The Trial Court Did Not Abuse Its Discretion by 

Imposing Consecutive Sentences for Counts 4, 6, & 7

Hickman next argues the trial court abused its discretion 

by imposing consecutive sentences for three of his convictions, 

rather than concurrent sentences as Hickman requested in his 

sentencing memorandum. We find no abuse of discretion.

When the defendant committed “separate acts of violence” 

or the offenses “were committed at different times,” the court is 

justified in imposing multiple sentences consecutively. (Cal. 

Rules of Court, rule 4.425(a)(2).) Here, the court found Hickman 

committed multiple acts of child abuse over “a long period of 

time.” Although the trial court did not expressly connect this 

finding to its decision to impose consecutive sentences on counts 

4, 6, and 7, we presume the court understood and complied with 

the law. (Ramirez, supra, 10 Cal.5th at p. 1042.) 

Hickman initially contends there was “no evidence” that he 

“committed multiple acts of violence resulting in great bodily 

injury.” This argument ignores evidence, cited by the court 

during sentencing, that Hickman hit Deshawn on the day of his 

death, admitted he hit Deshawn with a stick and other objects in 

the past, and punched Deshawn “with closed fists” in the past so 
27

he would not “grow up gay.” According to the probation report

which the court acknowledged reviewing prior to pronouncing the 

revised sentence, “detectives discovered several bruises to the 

victim’s skull, face and chin. He also had burn marks and 

pattern marks on his stomach and a possible rope mark on his 

ankle.” Deshawn appeared to be an “apparent victim of continual 

physical abuse.” Moreover, Hickman pleaded no contest to five 

counts of felony child abuse. A no contest plea, like a guilty plea, 

“admits every element of the charged crime.” (People v. Miller

(2022) 78 Cal.App.5th 1051, 1058; § 1016, subd. (3) [“a plea of 

nolo contendere shall be considered the same as a plea of 

guilty”].) He also admitted allegations that the five child abuse 

counts caused great bodily injury. Hickman therefore cannot 

dispute that he committed multiple acts of violence.

In his Reply, Hickman claims he “does not seek to raise the 

issue of sufficiency of the evidence of the child abuse, as 

respondent contends, but instead attempts to appeal to 

fundamental issues of fairness” because the court did not 

consider that his sentence is now greater than that of Zolorzano, 

who he argues was more culpable for Deshawn’s death. However, 

“[s]o long as appellant’s sentence was justified by appellant’s 

crimes, individual culpability, and record, the sentence received 

by an accomplice is not relevant.” (People v. Foster (1988) 201 

Cal.App.3d 20, 27.) Moreover, the trial court did consider this 

point. At the start of the resentencing hearing, the court 

recognized that Hickman’s sentencing brief argued it was “not 

fair” that he should receive a greater sentence than Zolorzano, 

though the court disagreed with Hickman’s claim that he was 

less culpable than Zolorzano. Moreover, the court later explained 

it sentenced both Zolorzano and Hickman based on their 
28

respective particular facts and circumstances, including what the 

court believed to be Zolorzano’s early acceptance of responsibility. 

Finally, Hickman contends the trial court erred because it 

failed to state reasons for its decision to impose consecutive 

sentences. (People v. Edwards (1981) 117 Cal.App.3d 436, 449

[“The reasons for imposing consecutive terms must be expressly 

stated”].) However, in Edwards, the appellate court remanded 

because there was “nothing in the record to indicate that the 

sentencing judge was cognizant” of any circumstances that could 

justify imposing consecutive sentences. (Id. at p. 450.) In 

contrast, as we have discussed, the court cited evidence that 

Hickman committed multiple violent acts at different times, and 

these circumstances would justify consecutive sentences. 

Hickman has not identified any evidence suggesting the court 

relied on any impermissible factor or evidence in rendering its 

sentence. Because the record does not “affirmatively show[] 

otherwise,” we presume the trial court properly exercised its 

sentencing discretion. (People v. Weaver (2007) 149 Cal.App.4th 

1301, 1313, disapproved of on other grounds by People v. Cook

(2015) 60 Cal.4th 922, 939.)

VI. The Abstract of Judgment Must Be Amended

Finally, the parties agree the abstract of judgment is 

inconsistent with the trial court’s oral pronouncement of 

sentence. In such cases, the oral pronouncement controls, and we 

may order the court to correct the abstract of judgment 

accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 188; 

People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We direct the 

trial court to amend the abstract of judgment as follows.

First, the abstract of judgment identifies count 4 as a 

voluntary manslaughter conviction under section 192, 
29

subdivision (a). In its oral pronouncement, the court vacated that

manslaughter conviction and redesignated it as an additional 

count of felony child abuse resulting in great bodily injury or 

death to a child, under section 273a, subdivision (a). We 

therefore direct the trial court to amend the abstract of judgment 

so that count 4 lists “273a(a)” and “GBI/Death to a child” under 

the columns labeled “Section No.” and “Crime”, respectively.

Second, the abstract of judgment describes the 

enhancement attached to count 5 as “PC 12022.7(a).” According 

to the court’s oral pronouncement, the enhancement attached to

count 5 fell under subdivision (d) of that section. We direct the 

trial court to amend the abstract of judgment to describe the 

enhancement attached to count 5 as “PC 12022.7(d).” 

Third, on counts 6 and 7, the trial court’s oral 

pronouncement imposed identical sentences of one-third the 

middle term sentence as the base term, or one year four months. 

The abstract of judgment describes both sentences as three-year 

lower term sentences. For counts 6 and 7, we direct the trial 

court to amend the abstract of judgment to list “M” under the 

“Term” column, add an “X” under the “1/3 Consecutive” column, 

remove the existing “X” under the “Consecutive Full Term” 

column, and change the entries under the “Principal or 

Consecutive Time Imposed” column from three years zero 

months, to one year four months. 

Fourth, the abstract of judgment indicates, with 

parentheses, that the trial court imposed concurrent sentences on 

the enhancements attached to counts 6 and 7. However, the trial 

court’s oral pronouncement imposed consecutive sentences on 

those enhancements. We direct the trial court to remove the 

parentheses surrounding the sentences for the enhancements 
30

attached to counts 6 and 7 so those sentences are properly 

reflected as running consecutively. 

DISPOSITION

The judgment is affirmed. The trial court is directed to 

amend the November 7, 2022, abstract of judgment to (1) amend 

count 4 to list “273a(a)” and “GBI/Death to a child” under the 

columns labeled “Section No.” and “Crime”, respectively; (2) 

describe the enhancement attached to count 5 as “PC 12022.7(d)”; 

(3) in counts 6 and 7, list “M” under the “Term” column, add an 

“X” under the “1/3 Consecutive” column, remove the existing “X” 

under the “Consecutive Full Term” column, and change the 

entries under the “Principal or Consecutive Time Imposed” 

column from three years zero months, to one year four months; 

and (4) remove the parentheses surrounding the sentences for the 

enhancements to counts 6 and 7 so those sentences are properly 

indicated to run consecutively. We further direct the trial court 

to send certified copies of the amended abstract of judgment to 

the Department of Corrections and Rehabilitation and to 

appellate counsel.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BERSHON, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California 

Constitution.
31

We concur:

EGERTON, Acting P. J.

ADAMS, J.