Filed 9/10/24 P. v. Fabrigas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

EMILSON ALVARO FABRIGAS,

Defendant and Appellant.

 D083335

 (Super. Ct. No. SCS321761)

APPEAL from a judgment of the Superior Court of San Diego County, 

Louis R. Hanoian, Judge. (Retired judge of the San Diego Super. Ct. assigned 

by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Lara Gressley, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

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

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for 

Plaintiff and Respondent.
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MEMORANDUM OPINION

A jury found Emilson Alvaro Fabrigas guilty of felony assault by force 

likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) The

jury also found true a corresponding great bodily injury enhancement.

(§ 12022.7, subd. (a).) The trial court sentenced Fabrigas to the low term of 

two years and imposed an additional three years for the enhancement. 

On appeal, Fabrigas seeks a resentencing remand because he contends 

the trial court did not know it had discretion to strike the enhancement. We 

disagree and affirm, resolving this case by memorandum opinion. (Cal. Stds. 

Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851-855.) 

I.

Although a finding that a defendant inflicted great bodily injury 

triggers a three-year sentencing enhancement (§ 12022.7(a)), under 

section 1385 the trial court retains discretion to strike or dismiss the 

enhancement or the corresponding punishment if doing so furthers justice. 

(People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156.) 

“Defendants are entitled to sentencing decisions made in the exercise of 

the ‘informed discretion’ of the sentencing court.” (People v. Belmontes (1983) 

34 Cal.3d 335, 348, fn. 8.) A court “unaware of the scope of its discretionary 

powers” cannot exercise informed discretion. (Ibid.) To prove an abuse of 

discretion on this basis, a defendant must “affirmatively demonstrate that 

the trial court misunderstood its sentencing discretion.” (People v. 

Davis (1996) 50 Cal.App.4th 168, 172 (Davis).) “[A] silent record is 

insufficient to meet [t]his burden.” (People v. Coleman (2024) 98 Cal.App.5th 

709, 725.) 
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Here, Fabrigas advances two arguments for why the record is allegedly

ambiguous about whether the trial court understood its discretion to strike or 

dismiss the enhancement. 

First, because the trial court did not expressly acknowledge his 

section 1385 request, Fabrigas claims it is “unclear” if the court “even made a 

choice” to keep or drop the enhancement. This argument relies on silence 

and the inference Fabrigas chooses to draw from it rather than any

affirmative showing of misunderstanding, as is his burden. (Davis,

50 Cal.App.4th at p. 172.) Besides, we are not convinced because the trial 

court stated at sentencing that it read Fabrigas’ statement in mitigation, so it 

would have seen the request to strike the enhancement based on the 

discretion given by section 1385. We agree with the People that the court’s 

comment “reinforces the court’s knowledge of its discretion.” If Fabrigas was 

dissatisfied with the way the court responded to his request, by still imposing 

the three-year enhancement, his counsel could have objected to give the court 

an opportunity to expressly deny the request on the record. (People v. 

McCullough (2013) 56 Cal.4th 589, 593.) 

Second, Fabrigas tries to inject ambiguity into what little the court said 

about the enhancement. After selecting the low term of two years for the 

relevant count, the trial court turned to the enhancement, stating: “There is 

an allegation under [section] 12022.7 that was found to be true. That adds 

three years consecutive for a total of five years.” Relying on People v. 

Lua (2017) 10 Cal.App.5th 1004 (Lua), Fabrigas contends the “passive voice 

makes it unclear” if the court knew of its discretion or instead believed the 

three-year enhancement “was mandatory under the law.” Lua, however, is 

distinguishable. There, the trial court referred to the total sentence as the 

“‘minimum’” and “‘lowest sentence possible,’” which “tend[ed] to suggest that 
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the trial court did not understand it had the authority” to lower the sentence 

by striking one or more enhancements. (Lua, at p. 1021.) Those affirmative 

statements about the mandatory minimum length of imprisonment created 

an ambiguity as to the court’s understanding, and thus required remand. 

(Ibid.) Here, in contrast, the trial court “add[ed] three years” for the 

enhancement without saying, as the trial court in Lua did, that those years 

were in any way mandatory or the lowest possible sentence. It thus does not 

give rise to the same ambiguity. 

In sum, we regard the record as silent, not ambiguous, about the trial 

court’s understanding its discretion under section 1385. As a result, we 

perceive no error, as we presume “on a silent record that the trial court is 

aware of the applicable law, including statutory discretion at sentencing.” 

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

II.

We affirm. 

CASTILLO, J.

WE CONCUR:

DO, Acting P. J.

KELETY, J.