Filed 3/20/24 P. v. Coker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY LEE COKER,

Defendant and Appellant.

F085579

(Super. Ct. No. BF169369A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. 

Schuett, Judge.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and 

Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Franson, J. and Meehan, J.
2.

INTRODUCTION

In 2017, a jury convicted appellant Ricky Lee Coker of four crimes involving the 

same victim: two counts of assault with a deadly weapon (Pen. Code, § 245, subd. 

(a)(1);1 counts 1 & 2); making a criminal threat (§ 422; count 3); and intimidating a 

witness (§ 136.1, subd. (b)(1); count 4). The jury found true that appellant used or 

threatened to use force in intimidating the witness (§ 136.1, subd. (c)(1)). 

After two appeals in this court, which we summarize later in this opinion, the trial 

court resentenced appellant in 2022. In count 1 (assault with a deadly weapon), the court 

imposed an upper term of four years, which was doubled because of a prior strike. This 

sentence was enhanced by five years for a prior serious felony conviction (§ 667, subd. 

(a)). In count 2 (assault with a deadly weapon) and count 3 (making a criminal threat), 

the court imposed upper terms of four years and three years, respectively, which were 

doubled because of a prior strike. The sentences in counts 2 and 3 were stayed. In 

count 4 (intimidating a witness), the court imposed a concurrent middle term of three 

years, which was doubled because of a prior strike. Appellant has an aggregate prison 

term of 13 years. 

Appellant contends that the trial court abused its discretion in imposing the 

aggravated sentences. He argues he established that the middle term is appropriate 

because he suffered childhood trauma that was a contributing factor in the present 

offenses. (See § 1170, subd. (b)(6)(A).) He asks this court to find that error occurred and 

to reduce his sentences to the middle term. We reject his arguments and affirm.

BACKGROUND

I. The Facts Supporting Appellant’s Convictions.

Because the issues on appeal deal with sentencing, we provide only a brief 

summary of the material facts underlying appellant’s convictions in this matter.

1 All future statutory references are to the Penal Code unless otherwise noted.
3.

In 2017, appellant attacked and beat his brother’s girlfriend. On the night in 

question, appellant had been ingesting methamphetamine with his brother and his 

brother’s girlfriend. The brother left around 1:00 a.m. to buy some food. It was then 

when appellant attacked the victim. Appellant struck the victim’s head four or five times 

with a stepstool. He took and kept her cell phone. He threatened her with a knife, saying 

he would “gut” her and cut her throat if she called the police or if the police came around. 

He punched her with the hand holding the knife. (People v. Coker (July 17, 2020, 

F077092) [nonpub. opn.].)

II. The Procedural History.

In 2018, appellant was originally sentenced in this matter. His original aggregate 

prison term was 23 years. This included an aggravated sentence in count 1 (assault with a 

deadly weapon), and four consecutive one-year prior prison enhancements (§ 667.5, 

subd. (b)).

In July 2020, we issued an opinion in which we vacated appellant’s sentence and 

remanded for resentencing. In part, we directed the trial court to strike the enhancements 

that had been imposed under section 667.5, subdivision (b).2 In all other respects, we 

affirmed appellant’s judgment.3 (People v. Coker, supra, F077092.)

In October 2020, the trial court resentenced appellant. Neither appellant nor his 

legal counsel were present. In fact, the prosecution was also absent when the court 

resentenced appellant. In count 1 (assault with a deadly weapon), the court again 

2 Following Senate Bill No. 136 (2019-2020 Reg. Sess.) it was undisputed that none 

of appellant’s four prior prison terms qualified as sentencing enhancements under section 

667.5, subdivision (b), because his prior prison terms were not for a sexually violent 

offense. 

3

In our 2020 opinion, the majority rejected appellant’s claim that he suffered 

constitutional harm based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). 

Justice Meehan concurred with the majority regarding all claims, but she dissented on the 

Dueñas issue. (People v. Coker, supra, F077092 (conc. & dis. opn. of Meehan, J.).)
4.

imposed an upper term of eight years, and the court imposed a consecutive five-year 

enhancement for a prior serious felony (§ 667, subd. (a)(1)). In count 4 (intimidating a 

witness), the court again imposed a consecutive full midterm of six years. The court 

struck the four one-year prior prison enhancements (§ 667.5, subd. (b)). Appellant 

received an aggregate prison term of 19 years.

In June 2022, this court issued an unpublished opinion in which we agreed with 

the parties that resentencing was again required. We vacated appellant’s sentence and 

directed that appellant had the right to be physically present at resentencing with the 

assistance of legal counsel. In relevant part, we directed the court to consider retroactive 

changes brought about by recent enactments.4 We remanded for resentencing but 

otherwise affirmed the judgment. (People v. Coker (June 10, 2022, F083191) [nonpub. 

opn.].)

In November 2022, the trial court resentenced appellant, which has already been 

summarized in the introduction of this opinion. In short, appellant’s current aggregate 

prison term is 13 years. The court imposed an aggravated sentence of eight years in 

count 1 (assault with a deadly weapon), which was enhanced by five years (§ 667, subd. 

(a)). Aggravated sentences were imposed in count 2 (assault with a deadly weapon) and 

count 3 (making a criminal threat), which were stayed. In count 4 (intimidating a 

witness), the court imposed a concurrent middle term of six years. 

III. Appellant’s Prior Criminal History.

During the 2017 trial in this matter, a bifurcated proceeding occurred regarding 

appellant’s prior convictions and strikes.5 The prosecution admitted into evidence a 

4 The three recent enactments which the trial court was directed to consider at 

resentencing were: (1) Senate Bill No. 567 (2021-2022 Reg. Sess.); (2) Assembly Bill 

No. 124 (2021-2022 Reg. Sess.); and (3) Assembly Bill No. 518 (2021-2022 Reg. Sess.).

5 On the court’s own motion, we take judicial notice of the records in appellate case 

No. F077092. (Evid. Code, § 452, subd. (d).)
5.

certified record of appellant’s criminal history. The certified record shows, in part, that 

appellant has the following prior convictions:

1. A 1987 conviction for possession of a controlled substance (Health & Saf. 

Code, § 11377);

2. A 1990 conviction for battery (§ 243, subd. (a));

3. A 1992 conviction for false imprisonment (§ 236);

4. A 1992 conviction for assault with a deadly weapon (§ 245, subd. (a)(1));

5. A 1999 conviction for eluding a pursuing peace officer in a willful or 

wanton disregard for safety of persons or property (Veh. Code, § 2800.2);

6. A 1999 conviction for possession of a controlled substance (Health & Saf. 

Code, § 11377); and

7. A 2004 conviction for voluntary manslaughter (§ 192, subd. (a)).

The certified record also shows that appellant has violated parole multiple times. 

IV. Appellant’s Factors In Mitigation.

Prior to the 2022 resentencing in this matter, appellant’s trial counsel filed a 

resentencing brief. In part, the brief asserted that appellant’s criminal history, including 

the present offenses, were generally the result of his addiction to methamphetamine. The 

brief alleged that appellant was suffering from a “mental health episode” when he 

committed the current crimes, and he has been diagnosed “with anxiety, anti-social 

personality disorder, and borderline personality disorder.” It was asserted that appellant 

has serious chronic health issues, including prostate cancer, Parkinson’s disease, a history 

of sepsis and other acute infections, asthma, arthritis, chronic obstructive pulmonary 

disease, and hepatitis C. 

Appellant’s brief summarized his conduct in custody after he was convicted for the 

present charges. According to the brief, appellant had received prison reprimands for 
6.

various incidents, including two separate acts of battery on peace officers, and delaying 

peace officers in the performance of their duties. 

In the resentencing brief, appellant’s trial counsel reminded the court that an 

aggravated sentence cannot be imposed unless the factors in aggravation are proven 

beyond a reasonable doubt. In addition, the defense brief articulated that a court is to 

impose a low term if the defendant’s psychological, physical or childhood trauma was a 

contributing factor in the commission of the offense. 

The brief stated that appellant’s mental health records show he has “disordered 

schemas” relating to “poor social development, early drug use, abuse and maladaptive 

coping skills used as ways to manage conflict or social exchanges.” It was asserted that 

appellant was exposed to drugs at an early age, and his means of coping led to substance 

abuse and other concerns, such as chronic anger and violence. The brief declared that 

appellant was seeking treatment. 

Appellant’s sentencing brief alleged that a clear connection existed between his 

“abusive childhood” and “his legal troubles.” He was raised in an abusive home; his 

stepfather physically and verbally assaulted and beat him. Appellant’s “childhood 

trauma, physical and psychological abuse, coupled with mental illness resulted in 

[appellant’s] maladapted response.” He did not develop normally given the verbal and 

physical abuse he suffered from his stepfather. Appellant attended special education 

classes and he did not graduate from high school. 

In the sentencing brief, appellant’s trial counsel asked the court to take into 

account appellant’s “documented childhood trauma which interfered with his emotional 

development.” The defense asserted that appellant’s sentence should be “appropriately 

reduced.” In relevant part, the defense asked the court to sentence appellant to the middle 

term of six years in count 1, and to strike the five-year enhancement under section 667, 

subdivision (a). It was asked that the remaining sentences in counts 2, 3 and 4 run 

concurrently to the sentence imposed in count 1. 
7.

V. The Sentencing Record.

At the 2022 resentencing in this matter, the trial court noted that the probation 

department had been unable to obtain information regarding appellant’s postsentencing 

conduct in custody. The court stated it would rely on the “extensive summary” in the 

defense brief. 

The court had read and considered an updated report from the probation officer, 

including the evaluation of circumstances in mitigation and aggravation. The court had 

also read and considered appellant’s resentencing brief. 

A. The arguments from defense counsel.

During the 2022 resentencing hearing, defense counsel asserted to the court that, 

as noted in its moving papers, appellant had been “extremely ill” in prison, and he had 

been released from Salinas Valley State Hospital only a few days prior to the hearing.

Defense counsel asked the court to take into account that appellant “has successfully 

engaged in mental health treatment in light of the severe medical conditions that he has 

suffered.” Appellant completed mental health classes, and he “acknowledges underlying 

mental health issues” and he has been “performing very well.” 

Defense counsel reminded the court that it had a duty “to consider trauma” and 

whether “it played a substantial role in the commission of the offense.” According to the 

defense, the psychologist who was treating appellant had noted that trauma “was 

something that impacted [appellant’s] development and it played a significant part in how 

[appellant] responded to fearful situations, situations where he felt threatened.” Defense 

counsel argued that, based on the moving papers, the notes and the doctor’s records, 

childhood trauma played a role in how appellant “processes interactions with persons and 

[his] willingness to engage in mental health treatment and [his] severe medical issues.” 

The defense asked the court to consider “striking” appellant’s sentence as mentioned in 

his moving papers. 
8.

B. The court’s findings during the 2022 resentencing.

At the 2022 resentencing, the court noted that appellant’s “extensive criminal 

record and prior performance record on probation and parole does not support the 

granting of probation.” The court stated it had considered the circumstances in 

aggravation and mitigation. According to the court, appellant’s prior convictions were 

“numerous” and appellant had served a prior commitment in the California Youth 

Authority. The court noted that appellant’s prior history on probation and parole “was 

unsatisfactory.” The court also found that appellant had engaged in violent conduct, 

which indicated he was “a serious danger to society, as evidenced by his current 

conviction and behavior,” along with prior convictions, including (1) battery (§ 243, 

subd. (a)); (2) assault with a deadly weapon (§ 245, subd. (a)(1)); (3) false imprisonment 

(§ 236); and (4) manslaughter “with a weapon” (§ 192, subd. (a)). The court noted that, 

based on his original statements to the probation officer, appellant had refused to accept 

culpability for the present offenses. 

In mitigation, the court noted that appellant had successfully completed a one-year 

term of parole. The court found that the aggravating circumstances outweighed the 

mitigating circumstances, so that “imposition of the lower term would be contrary to the 

interest of justice.” 

The court stated it had also considered appellant’s postsentencing conduct while in 

custody. According to the court, appellant had “not remained free from law violations 

while in custody. Rather the record reflects a continuing pattern of violations, including 

two instances of battery on a peace officer, one incident involving striking a prison guard 

and resisting another officer who attempted to help the first officer.” 

Finally, the court acknowledged that appellant had asked the court to strike the 

five-year enhancement due to his mental health illness, his prior victimization, and the 

age of his prior conviction. The court stated it believed the dismissal of the enhancement 

“would endanger public safety given the ongoing serious violent conduct exhibited by 
9.

[appellant] both prior to and subsequent to the conviction.” The court commented it had 

chosen to impose the five-year enhancement under section 667, subdivision (a). The 

court believed the prison sentence was “appropriate.” 

DISCUSSION

I. The Trial Court Did Not Abuse Its Sentencing Discretion.

When a criminal statute specifies three possible terms, a sentencing court is to 

exercise “its sound discretion” and order imposition of the middle term, unless certain 

exceptions exist. (§ 1170, subd. (b)(1).) Section 1170 directs a sentencing court to 

impose the low term if the defendant’s psychological, physical, or childhood trauma “was 

a contributing factor in the commission of the offense.”6 (§ 1170, subd. (b)(6)(A).) 

However, a sentencing court may find that “the aggravating circumstances outweigh the 

mitigating circumstances [so] that imposition of the lower term would be contrary to the 

interests of justice.” (§ 1170, subd. (b)(6).) In determining the “interests of justice,” a 

sentencing court is permitted to consider the defendant’s “background and prospects, 

including the presence or absence of a record,” as well as the mitigating factors of 

subdivision (b)(6). (Advisory Com. com., Cal. Rules of Court, rule 4.420.) A trial court 

is required to state on the record “the facts and reasons for choosing the sentence 

imposed,” and to “state the reasons for its sentencing choice.” (§ 1170, subds. (b)(5) & 

(c).) 

At least four days prior to the time set for sentencing, the parties (and other 

enumerated individuals) may submit a statement in aggravation or mitigation to the trial 

court “to dispute facts in the record or the probation officer’s report or to present 

6 Psychological, physical or childhood trauma may include, but is not limited to, 

“abuse, neglect, exploitation, or sexual violence.” (§ 1170, subd. (b)(6)(A).) In March 

2022, California Rules of Court, rule 4.420, which sets forth the criteria for selecting the 

appropriate term of imprisonment in felony sentencing, was revised to incorporate this 

provision. (Cal. Rules of Court, rule 4.420(e)(1).)
10.

additional facts.” (§ 1170, subd. (b)(4).) In part, the court may consider the record in the 

case, the probation officer’s report, statements in aggravation or mitigation submitted by 

the parties (and other enumerated individuals), and any further evidence introduced at the 

sentencing hearing. (Ibid.)

A. We decline to reduce appellant’s sentence.

Appellant argues that the trial court abused its sentencing discretion in imposing 

aggravated sentences in counts 1, 2 and 3. According to appellant, he produced 

“sufficient facts” that showed a low term was required under section 1170, subdivision 

(b)(6)(A), because he suffered from childhood trauma and mental illness. He contends 

that the trial court failed to state reasons why it imposed a sentence in excess of the 

middle term. According to appellant, the trial court misunderstood the recent changes in 

sentencing laws. Appellant asserts that, instead of remanding this matter for 

resentencing, this court should reduce his sentences in counts 1, 2 and 3 to the middle 

terms. 

We decline to reduce appellant’s sentences. He bears the burden to show that the 

court’s sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 

Cal.4th 367, 376.) In the absence of such a showing, we presume that the trial court 

acted to achieve legitimate sentencing objectives, and its discretionary determination to 

impose a particular sentence will not be set aside. (Id. at pp. 376–377.) 

Appellant fails to show an abuse of discretion. This record demonstrates that the 

trial court read and considered the materials which appellant submitted. Nothing in the 

record affirmatively shows the court was unaware of section 1170, subdivision (b)(6)(A). 

To the contrary, appellant’s trial counsel thoroughly briefed this issue, and defense 

counsel orally argued that the court should consider appellant’s trauma and mental health, 

and whether that played a role in the commission of the offenses. The record amply 

establishes that the court was aware of its discretionary sentencing authority.
11.

Moreover, section 1170, subdivision (b)(6), by its plain language, does not 

mandate a presumption in favor of the lower term in every case in which the defendant 

experienced some form of trauma prior to or at the time the crime was committed. 

Rather, the presumption applies only if that was “ ‘a contributing factor’ ” in the 

commission of the offense. (People v. Fredrickson (2023) 90 Cal.App.5th 984, 991.) 

Thus, “in order to trigger the presumption, there must be some initial showing that the 

defendant’s [trauma] was a contributing factor, and only then must the record 

affirmatively show compliance with the statute.” (Fredrickson, supra, at p. 992.)

Here, the trial court never expressed its belief that appellant’s alleged childhood 

trauma had played a contributing factor in the commission of the present offenses. 

Although the materials provided by defense counsel alleged that appellant had suffered 

an abusive childhood, appellant did not explain or demonstrate how his alleged childhood 

trauma contributed to his unprovoked attack of the victim in this matter. In fact, during

his original interview with the probation officer, appellant denied culpability for the 

present offenses. Appellant claimed the victim had lied. This record does not establish 

that a presumption was triggered requiring imposition of the low term. 

Even if appellant did demonstrate that his childhood trauma was a contributing 

factor in the commission of the present offenses, this record does not show that the trial 

court abused its discretion. The court stated it had considered the circumstances in 

aggravation and mitigation. The court found that appellant’s prior convictions were 

numerous, and his prior performance on probation and parole was unsatisfactory. The 

court concluded that appellant posed “a serious danger to society” as evidenced by his 

current convictions and certain prior convictions, including (1) battery (§ 243, subd. (a)); 

(2) assault with a deadly weapon (§ 245, subd. (a)(1)); (3) false imprisonment (§ 236); 

and (4) manslaughter “with a weapon” (§ 192, subd. (a)). The court noted that appellant 

had refused to accept culpability for the present offenses. The court expressly found the 

aggravating circumstances outweighed the factors in mitigation so “the imposition of the 
12.

lower term would be contrary to the interest of justice.”7 Thus, the sentencing record 

demonstrates that the court expressly rejected appellant’s position that the low term was 

required. The court’s comments also show its compliance with the statute.

Appellant does not affirmatively demonstrate that the court misunderstood its 

sentencing discretion. To the contrary, the record amply shows that the court responded 

to appellant’s arguments, but it concluded that imposition of a lower term “would be 

contrary to the interest of justice.” Based on the numerous factors in aggravation, we 

cannot state that the court’s sentencing decision was so irrational or arbitrary that no 

reasonable person could agree with it. As such, this record does not establish that the trial 

court abused its sentencing discretion in declining to sentence appellant to the low term 

under section 1170, subdivision (b)(6)(A).

As we explain below, the record also amply shows that the court did not abuse its 

discretion in imposing the aggravated sentences.

B. The court did not abuse its discretion in imposing the aggravated 

sentences.

A sentencing court may not impose a prison sentence exceeding the middle term 

unless the facts supporting the aggravating circumstances are (1) established by the 

defendant’s stipulation to them, (2) proven to a jury (or to a court, if jury is waived) 

beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified 

record of conviction. (§ 1170, subd. (b)(1)–(3).)

Appellant’s prior convictions were established by a certified copy of his criminal 

record, which the prosecution moved into evidence in 2017. Appellant has numerous 

7

In selecting between the middle and lower terms of imprisonment, the trial court 

was permitted to consider any factor reasonably related to the sentencing decision, 

including circumstances from the case record, the probation officer’s report, and 

circumstances in aggravation or mitigation, whether or not appellant had stipulated to 

those factors or they were found true beyond a reasonable doubt at trial by a jury or the 

judge. (See Cal. Rules of Court, rule 4.420(d).)
13.

prior convictions. His prior performance on parole is unsatisfactory. Finally, the certified 

record establishes beyond a reasonable doubt that appellant has engaged in violent 

conduct that indicates he is a serious danger to society. Appellant has prior convictions 

for voluntary manslaughter (§ 192, subd. (a)), assault with a deadly weapon (§ 245, subd. 

(a)(1)), and battery (§ 243, subd. (a)). The certified record of conviction establishes 

beyond a reasonable doubt three separate factors in aggravation. (See Cal. Rules of 

Court, rule 4.421(b)(1), (2) & (5).)

Only a single valid aggravating factor is needed to justify imposition of an upper 

term. (People v. Myles (2012) 53 Cal.4th 1181, 1221; People v. Black (2007) 41 Cal.4th 

799, 815.) The trial court articulated the factors in aggravation, and this record amply 

demonstrates why the court elected to impose an aggravated sentence. Thus, we reject 

appellant’s assertion that the court failed to state why it was exceeding the middle term. 

It cannot be stated that the court’s decision to impose upper terms in this matter was 

arbitrary or capricious. Accordingly, an abuse of discretion is not present.

At sentencing, however, the trial court found other factors in aggravation which 

are outside the record of conviction, and which were neither established by appellant’s 

stipulation nor found true by a trier of fact beyond a reasonable doubt. For instance, the 

court stated that appellant did not accept culpability for the present offenses, which was 

derived from appellant’s alleged comments to the probation officer. In addition, the court 

relied on the information in the defense brief to find that appellant had suffered violations 

in prison. Those violations, however, appear to have been sustained by prison officials 

based on a mere preponderance standard. 

In his briefing before this court, appellant does not directly challenge the 

imposition of the aggravated sentence based on concerns that the trial court failed to 

comply with section 1170, subdivision (b)(2). However, appellant concedes in his 

briefing that a court’s failure to comply with these requirements is reviewable for 

harmless error. To the extent appellant’s briefing has raised this particular issue, we hold 
14.

that appellant did not suffer prejudice. In light of the court’s comments at sentencing, a 

“ ‘miscarriage of justice’ ” has not occurred because it is not reasonably probable 

appellant would have obtained a more favorable result in the absence of the error. 

Consequently, the error is harmless under state law.8 (See People v. Watson (1956) 46 

Cal.2d 818, 836 [setting forth standard to review prejudice for error under state law].) 

This claim is without merit and resentencing is not required.

DISPOSITION

The judgment is affirmed.

8

Imposition of an aggravated sentence does not violate a defendant’s constitutional 

right to a jury trial so long as one legally sufficient aggravating circumstance is justified 

based upon the defendant’s record of prior convictions. (People v. Black, supra, 41 

Cal.4th at p. 816.)