Filed 2/2/23 P. v. Nelson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SERGIO NELSON,

Defendant and Appellant.

 B313825

 (Los Angeles County

 Super. Ct. No. KA019560)

APPEAL from the judgment of the Superior Court of 

Los Angeles County, Mike Camacho, Jr., Judge. Affirmed in part 

and reversed in part. 

Steven Schorr, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Chung L. Mar, Deputy 

Attorneys General for Plaintiff and Respondent.

_________________________________________
2

In 1993, defendant Sergio Nelson shot to death two 

individuals sitting in a parked car. In 2016, the Supreme 

Court reversed the lying in wait special circumstance finding 

and remanded the case to the superior court for a new penalty 

trial. (People v. Nelson (2016) 1 Cal.5th 513, 522 (Nelson).) 

The prosecution thereafter elected not to seek the death penalty 

and defendant agreed to waive his right to a new penalty trial. 

Defendant filed a motion for relief under the California Racial 

Justice Act of 2020 (Stats. 2020, ch. 317, § 1, p. 3706) (the Racial 

Justice Act), which the court summarily denied. The court 

sentenced defendant to life in prison without the possibility of 

parole. 

On appeal, defendant contends that the court erred (1) by 

denying, without an evidentiary hearing, his motion for relief 

under the Racial Justice Act; (2) by imposing the upper terms on 

the firearm enhancements although no jury findings supported

such terms; and (3) by imposing a sentence that violates federal 

and state constitutional bans on cruel and unusual punishment. 

We agree with his contention regarding the imposition of 

the upper term for the firearm enhancements and reject his 

remaining contentions. 

FACTUAL SUMMARY AND PROCEDURAL HISTORY

Our Supreme Court summarized the facts of this case as 

follows: “On September 11, 1993, [defendant] resigned from his 

job at Target after failing to receive a promotion. Shortly before 

4:00 a.m. on October 2, 1993, he shot and killed Robin Shirley, 

the woman who received the promotion [defendant] believed he 

had deserved, and Lee Thompson, a coworker who had defended 

Shirley when [defendant] harassed her about her promotion. 

[Defendant] knew Shirley typically waited in the parking lot for 
3

the store to open. He rode to the Target parking lot on his 

bicycle, armed with a loaded gun. Shirley and Thompson were in 

the front seat of Thompson’s car. [Defendant] parked his bicycle, 

approached the car on foot from behind and fired several shots 

into the car through an open rear window, then started to walk 

away before returning and firing again into the car. After 

shooting Shirley and Thompson, [defendant] fled the scene on 

his bicycle, which he then abandoned when police chased him.” 

(Nelson, supra, 1 Cal.5th at p. 522.) 

In August 1995, a jury convicted defendant of two counts 

of first degree murder (Pen. Code, § 187)1 and found true special 

circumstance allegations that he committed multiple murders 

(§ 190.2, subd. (a)(3)) and committed them while lying in wait 

(§ 190.2, subd. (a)(15)). The jury also found that he personally 

used a firearm in committing each murder. (Former § 12022.5, 

subd. (a).) The court sentenced him to death.

In 2016, the California Supreme Court reversed the 

lying in wait special circumstance finding based on insufficiency 

of the evidence and, accordingly, reversed his death sentence. 

(Nelson, supra, 1 Cal.5th at pp. 549–550, 574.) The court held

that defendant was “entitled to a new penalty trial.” (Id. at 

p. 573.)

Because neither the prosecution nor the defendant 

requested a new penalty trial, the court set only a resentencing 

hearing.

On July 6, 2021, the date set for sentencing, defendant, 

without the assistance of his counsel, filed a motion for relief 

1 Subsequent unspecified statutory references are to the 

Penal Code.
4

under the Racial Justice Act. In support of his Racial Justice

Act motion, defendant wrote that he “is of mixed race”2

(capitalization omitted) and alleged that of the 215 people 

on California’s death row as a result of prosecutions in 

Los Angeles, 85 percent “are people of color.” As support for 

the statistic, defendant cites an amicus curiae brief filed in the 

California Supreme Court by Governor Newsom in People v. 

McDaniel (2021) 12 Cal.5th 97.

3 Defendant further asserted

that he “was charged and convicted of a more serious offense 

than the defendants of other races, ethnicities, or national origins 

who commit similar offen[s]es and are similarly situated, and the 

evidence establishes that the prosecution more frequently sought 

or obtained conviction for more serious offen[s]es against people 

who share the defendant’s race, ethnicity or national-origin 

in the Los Angeles County.” Defendant sought an evidentiary 

hearing on the motion and an order dismissing the enhancements 

or the special circumstance allegations, and a reduction of “one or 

more of the charges.”

The court denied defendant’s motion. The court briefly 

described the circumstances of the murders, then explained that 

“[t]his was a cold-blooded killing. It doesn’t matter what your 

race, your ethnicity, color of your skin is. You’re going to be 

treated as the law mandates for an individual who has engaged 

in that type of conduct.”

2 A probation report describes Nelson as “Black/Hispanic.”

3 The cited amicus curiae brief is purportedly attached 

as an exhibit to defendant’s motion, but it is not included in our 

record. On appeal, defendant cites to an Internet address for the 

amicus brief, but the address does not appear to work. The cited 

brief can be found here: https://perma.cc/FT4F-DHV2.
5

The court then sentenced defendant on count 1 to prison for 

life without the possibility of parole based on the multiple murder 

special circumstance finding, plus the upper term of five years on 

the firearm enhancement.4 The court struck the multiple murder 

special circumstance allegation as to count 2 and sentenced 

defendant on that count to a consecutive prison term of 25 years 

to life, plus a consecutive five years on the firearm enhancement.5

The court sentenced count 2 consecutive to count 1 because of 

“the brutality and senseless nature of the attack upon these two 

separate victims at the same time.”

The court acknowledged and considered its discretion to 

strike the firearm enhancements (see § 12022.5, subd. (c)), but 

declined to do so, stating: “[S]triking the gun use enhancements 

as to either of these two counts . . . would be tantamount to 

disregarding the means used to violently end the lives of these 

two unsuspecting victims. This was a senseless crime. There 

was no reason for it despite your motivation, and the court[’]s not 

going to give you the benefit of striking a gun use allegation when 

you used the gun to end the lives of these two individuals.”

4 At the time of defendant’s offenses, former 

section 12022.5, subdivision (a), prescribed a sentencing 

range for the firearm enhancement of three, four, or five years. 

(Stats. 1990, ch. 41, § 3, pp. 245−246.) The current version of 

the statute permits a sentence enhancement of up to 10 years. 

(§ 12022.5, subd. (a).) Both versions require the enhancement 

term run consecutive to the base term.

5 As the trial court acknowledged, the court was required to 

strike one of the multiple murder special circumstance findings 

because “the use of two such special circumstance allegations 

artificially inflates the seriousness of the defendant’s conduct.” 

(People v. Jones (1991) 53 Cal.3d 1115, 1148.)
6

Defendant timely appealed.

DISCUSSION

A. The Racial Justice Act

The Legislature enacted the Racial Justice Act in 

2020 with the expressed intent “to eliminate racial bias from 

California’s criminal justice system” and “to ensure that race 

plays no role at all in seeking or obtaining convictions or in

sentencing.” (Stats. 2020, ch. 317, § 2(i), pp. 3707−3708; see 

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 

138, 149−150.) Its goal is “to provide remedies that will 

eliminate racially discriminatory practices in the criminal justice 

system, in addition to intentional discrimination.” (Stats. 2020, 

ch. 317, § 2(j), p. 3708.)

The Racial Justice Act enacted section 745, which provides 

that “[t]he state shall not seek or obtain a criminal conviction or 

seek, obtain, or impose a sentence on the basis of race, ethnicity, 

or national origin.” (§ 745, subd. (a).) A defendant may establish 

a violation of the Racial Justice Act in various ways, two of which 

are relevant here. 

Under subdivision (a)(3) of section 745, which is concerned 

with racial bias in charging decisions and convictions, the 

defendant must prove by a preponderance of the evidence that 

he or she “was charged or convicted of a more serious offense 

than defendants of other races, ethnicities, or national origins 

who have engaged in similar conduct and are similarly situated, 

and the evidence establishes that the prosecution more 

frequently sought or obtained convictions for more serious 

offenses against people who share the defendant’s race, ethnicity, 
7

or national origin in the county where the convictions were 

sought or obtained.” (§ 745, subd. (a)(3).) 

Under subdivision (a)(4)(A) of section 745, which is 

concerned with racial bias in sentencing, the defendant must 

prove by a preponderance of the evidence that “[a] longer or 

more severe sentence was imposed on the defendant than was 

imposed on other similarly situated individuals convicted of the 

same offense, and longer or more severe sentences were more 

frequently imposed for that offense on people that share the 

defendant’s race, ethnicity, or national origin than on defendants 

of other races, ethnicities, or national origins in the county where 

the sentence was imposed.” (§ 745, subd. (a)(4)(A).) 

The phrases, “ ‘more frequently sought or obtained’ ” 

and “ ‘more frequently imposed’ ” are statutorily defined to 

permit “statistical evidence, aggregate data, or nonstatistical 

evidence” that “demonstrates a significant difference in seeking 

or obtaining convictions or in imposing sentences comparing 

individuals who have committed similar offenses and are 

similarly situated, and the prosecution cannot establish raceneutral reasons for the disparity.” (§ 745, subd. (h)(1).)

6

6 At the time Nelson made his motion and the court ruled 

on it, section 745 did not include a definition of “similarly 

situated.” The Legislature subsequently amended section 745 

to define that phrase. The statute now provides: “ ‘Similarly 

situated’ means that factors that are relevant in charging and 

sentencing are similar and do not require that all individuals 

in the comparison group are identical. A defendant’s conviction 

history may be a relevant factor to the severity of the charges, 

convictions, or sentences. If it is a relevant factor and the defense 

produces evidence that the conviction history may have been 
8

Relief under the Racial Justice Act may be sought by 

motion prior to the entry of judgment or, if judgment has been 

entered, by petition for writ of habeas corpus. (§§ 745, subd. (b); 

1473, subd. (f).) If the defendant proceeds by motion and 

“makes a prima facie showing of a violation of subdivision (a)” 

of section 745, the court must hold a hearing on the defendant’s 

motion. (§ 745, subd. (c).) 

The defendant makes a prima facie showing if he or she 

“produces facts that, if true, establish that there is a substantial 

likelihood that a violation of subdivision (a) occurred.” (§ 745, 

subd. (h)(2).) A “ ‘substantial likelihood’ requires more than a 

mere possibility, but less than a standard of more likely than 

not.” (Ibid.)

Here, we agree with the trial court that defendant failed 

to make a prima facie showing of relief under the Racial Justice 

Act. The only fact defendant produced in support of his claim 

that the District Attorney charged him, or that the jury convicted 

him, in violation of subdivision (a)(3) of section 745 is a statistic 

that 85 percent of the 215 people on California’s death row 

as a result of prosecutions in Los Angeles County “are people 

of color.” Regardless of whether that allegation is true, the 

statistic provides no information with which to compare the 

race, ethnicity, or national origin of persons who, like defendant, 

engaged in multiple murders and the race, ethnicity, or national 

origin of persons who, having engaged in multiple murders, were 

charged with crimes or special circumstances less serious than 

impacted by racial profiling or historical patterns of racially 

biased policing, the court shall consider the evidence.” (§ 745, 

subd. (h)(6); Stats. 2022, ch. 739, § 2.)
9

the charges and special circumstances alleged against defendant. 

Defendant did not, therefore, establish a substantial likelihood 

that the District Attorney charged offenses less serious than 

special circumstance murder against persons who engaged in 

multiple murders and whose race, ethnicity, or national origin 

is different than defendant’s. Similarly, the proffered statistic 

fails to show a substantial likelihood that juries convicted such 

other persons of charges less serious than defendant’s special 

circumstance murder conviction. 

Defendant asserts that the death row statistic shows 

that persons of color are charged with and convicted of special 

circumstance murders in Los Angeles County at a rate that is 

significantly disproportionate to their share of the population. 

A relevant comparison, however, is not of the racial makeup 

of death row inmates and the racial makeup of the general 

population, but rather the racial makeup of those charged with 

or convicted of multiple murders and the racial makeup of those 

who engaged in multiple murders. Defendant offered no facts to 

support such comparison. 

Defendant also failed to make a prima facie showing 

of unlawful racial bias in sentencing. Under section 745, 

subdivision (a)(4), defendant was required to produce facts that, 

if true, establish a substantial likelihood that the court imposed 

on him a “longer or more severe sentence” than the sentence 

“imposed on other similarly situated individuals convicted of the 

same offense.” (§ 743, subd. (a)(4)(A).) Defendant relied on the 

same statistic cited above: 85 percent of persons on death row

as a result from prosecutions in Los Angeles County are persons 

“of color.” The cited statistic, however, provides no information 

as to whether defendant’s life without the possibility of parole 
10

sentence is a longer or more severe sentence than the sentence 

imposed on persons of other races, ethnicities, or national origin 

who were convicted of special circumstance murder. Indeed, 

the statistic is particularly unhelpful to defendant’s sentencing 

bias claim because the statistic relates to people sentenced to 

death, whereas the prosecution elected in this case to seek, and 

the court imposed, the less severe sentence of life without the 

possibility of parole. Moreover, as the Attorney General points 

out, defendant’s sentence is by statute the least severe sentence 

a court may impose on a defendant convicted of special 

circumstance murder. (§ 190.2, subd. (a).) 

Defendant also challenges certain statements the court 

made in connection with its ruling on defendant’s Racial Justice 

Act motion. The court told defendant, for example, that his 

motion was “racked with baseless allegations and boldface 

conclusions that you are the victim of systematic, racial injustice 

within the criminal justice system” and that “[y]ou feel that 

your race, ethnicity, color of your skin has impacted how the 

prosecution has treated your case.” The court also referred 

to “the victim impact comments” the court had received and 

how persons affected by the murders have expressed their

“disappointment with how the criminal justice system has 

showed you leniency throughout the years and continues to do 

so.” The court concluded: “You certainly aren’t treated differently 

than any other who would be in your situation.” Defendant 

contends that such comments and considerations “should have 

no bearing on a determination of the sufficiency of a prima facie 

showing made in a [C]RJA motion.”

We need not determine whether the challenged comments 

were improper. We review the court’s ruling, not its rationale, 
11

and we will not reverse the court’s decision where, as here, 

the facts the defendant produced in support of his motion 

are insufficient as a matter of law to establish a substantial 

likelihood that a violation of section 745, subdivision (a) occurred. 

(§ 745, subd. (h)(2).) 

B. Senate Bill No. 567

In July 2021, when the court resentenced Nelson, 

section 1170.1, subdivision (d) provided that when an 

enhancement statute provides for a triad of possible prison 

terms, “the court shall, in its discretion, impose the term that 

best serves the interest of justice.” (Former section 1170.1, 

subd. (d); Stats. 2020, ch. 887, § 7, p. 6010.)

Effective January 1, 2022, the Legislature amended 

section 1170.1, separating subdivision (d) into two paragraphs. 

(Sen. Bill No. 567 (2021−2022 Reg. Sess.); Stats. 2021, ch. 731, 

§ 2, pp. 9110−9111.) As amended, subdivision (d)(1), provides: 

“If an enhancement is punishable by one of three terms, the court 

shall, in its sound discretion, order imposition of a sentence not

to exceed the middle term, except as otherwise provided in 

[subdivision] (2).” (§ 1170.1, subd. (d)(1).)

Under new subdivision (d)(2) of section 1170.1, “[t]he 

court may impose a sentence exceeding the middle term only 

when there are circumstances in aggravation 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.”

The parties agree, as do we, that the amendment applies 

retroactively to defendants, like Nelson, whose judgments are not 
12

yet final. (See People v. Dunn (2022) 81 Cal.App.5th 394, 403, 

review granted Oct. 12, 2022, S275655; People v. Zabelle (2022) 

80 Cal.App.5th 1098, 1109 (Zabelle).) 

Here, the court imposed the upper term of five years 

on the firearm enhancement. The court did not explicitly state 

its reasons for the upper term, or even identify the five-year 

term as the upper term. And, as the Attorney General 

concedes, defendant did not stipulate to facts underlying any 

aggravating circumstances and the jury did not find such facts, 

as section 1170.1, subdivision (d) now requires before the court 

can impose an upper term. 

The Attorney General, citing People v. Sandoval (2007) 

41 Cal.4th 825, argues that the error is harmless because 

this court can determine, “beyond a reasonable doubt, that 

the jury, applying the beyond-a-reasonable-doubt standard, 

unquestionably would have found true at least a single 

aggravating circumstance had it been submitted to the jury.” 

(Id. at p. 839; see People v. Flores (2022) 75 Cal.App.5th 495, 

499 [applying Sandoval test where jury did not find aggravating 

factors in Senate Bill No. 567 context].) Defendant contends that 

the Sandoval harmless error standard is not applicable after the 

enactment of Senate Bill No. 567; rather, he relies on People v. 

Lopez (2022) 78 Cal.App.5th 459, which holds that the reviewing 

court “must ask both whether we can be certain the jury 

would have found beyond a reasonable doubt the aggravating 

circumstances relied on by the court and whether the trial 

court would have exercised its discretion in the same way if 

it had been aware of the statutory presumption in favor of the 

middle term.” (People v. Wandrey (2022) 80 Cal.App.5th 962, 

982, review granted Sept. 28, 2022, S275942; accord, People v. 
13

Ross (2022) 86 Cal.App.5th 1346, 1354, petn. for review pending,

petn. filed Jan. 30, 2023, S278266); see also Zabelle, supra, 

80 Cal.App.5th at p. 1113.) 

We need not determine which test for harmless error 

applies. Our record does not reveal the aggravating factors 

the court relied on to impose the upper term on the firearm 

enhancement. Although the Attorney General points to the 

court’s statements that defendant used a firearm to “violently 

end the lives of these two unsuspecting victims,” that “[t]his 

was a senseless crime,” and “[t]here was no reason for it 

despite [defendant’s] motivation,” these statements were made 

in connection with the court’s decision not to strike the gun 

enhancement, not as reasons to impose the upper term. Even 

if we infer that the court had the same reasons for imposing 

the upper term, we cannot say beyond a reasonable doubt that

“the jury, applying the beyond-a-reasonable-doubt standard, 

unquestionably would have found true” the facts underlying 

these reasons (if Sandoval applies) or, if we could make that 

determination as to some, but less than all of these reasons 

(and Lopez applies), further determine that the court would 

have exercised its discretion to impose the upper term if it could 

rely on only the reason or reasons that satisfy the Sandoval test. 

In the absence of the jury finding or admission required 

under section 1170.1, subdivision (d)(1), as amended by Senate 

Bill No. 567, we therefore reverse the court’s imposition of the 

upper term on the firearm enhancements. 

C. Cruel or Unusual Punishment

Nelson contends that his life without the possibility of 

parole sentence violates the federal and state constitutional 

bans on cruel or unusual punishment. He points to his youth—
14

he was 19 years old when he murdered Robin Shirley and 

Lee Thompson—and to his “minimal criminal record”—he

had been placed on probation as a juvenile for burglary.

Courts have consistently rejected challenges to the 

constitutionality of sentences of life without the possibility 

of parole (or their functional equivalents) for persons who 

committed their crimes when they were over 18 years of age. 

(See, e.g., People v. Montano (2022) 80 Cal.App.5th 82, 114; 

People v. Montelongo (2020) 55 Cal.App.5th 1016, 1032; People v. 

Edwards (2019) 34 Cal.App.5th 183, 190; People v. Perez (2016) 3

Cal.App.5th 612, 617; People v. Abundio (2013) 221 Cal.App.4th

1211, 1220−1221; People v. Argeta (2012) 210 Cal.App.4th 1478, 

1482.) We agree with these authorities and reject defendant’s 

contention. 
15

DISPOSITION

Defendant’s convictions are affirmed. The imposition 

of the upper term of five years on the firearm enhancements 

is reversed. The People may elect to proceed by meeting 

the requirement of section 1170.1, subdivision (d)(1) that true 

findings on facts underlying aggravating circumstances be 

found by a jury or admitted by the defendant, or alternatively, 

to have the court resentence defendant on the record as it 

stands. After the People make this election, and after the 

court conducts any further proceedings that may be necessary, 

the trial court is directed to resentence defendant consistent 

with applicable sentencing laws. The judgment is otherwise 

affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.