1

Filed 8/22/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DRAVEN PAUL BRANNON-THOMPSON,

Defendant and Appellant.

C097565

(Super. Ct. Nos. 18CF01183, 

18CF02671, & CM042677)

APPEAL from a judgment of the Superior Court of Butte County, Corie J.

Caraway, Judge. Affirmed.

Francine R. Tone, 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, Kari Ricci Mueller and 

Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
2

In 2018, the trial court sentenced defendant Draven Paul Brannon-Thompson to an 

aggregate term of 12 years in state prison. In 2022, the trial court recalled defendant’s 

sentence pursuant to Penal Code section 1172.75,1struck the prior prison term 

enhancement, and resentenced defendant to 11 years in state prison. On appeal, 

defendant contends the trial court erred in imposing the upper term based on aggravating 

factors not found true beyond a reasonable doubt or based on a certified record of 

conviction. 

Defendant also claims trial counsel was ineffective for failing to object when the 

trial court reimposed the upper term without first finding the applicable aggravating 

factors were true beyond a reasonable doubt. We directed the parties to provide 

supplemental briefs addressing the meaning of section 1172.75, subdivision (d)(4), and 

whether it applies to defendant’s claim on appeal. 

In their supplemental brief, the People contend section 1172.75, subdivision (d)(4) 

allows the trial court to impose the upper term at resentencing if it was previously 

imposed, without requiring the applicable aggravating factors to be found true beyond a 

reasonable doubt. Defendant, on the other hand, argues section 1172.75, subdivision 

(d)(4) does not permit imposition of the upper term at resentencing unless it was 

previously imposed and the applicable aggravating factors are found true beyond a 

reasonable doubt.

We conclude that section 1172.75, subdivision (d)(4) carves out an exception to 

the general rule that all ameliorative changes to the law must be applied at a section 

1172.75 resentencing and does not require aggravating factors to be found true beyond a 

reasonable doubt if the upper term was previously imposed. Because the trial court 

imposed the upper term at defendant’s initial sentencing, counsel had no sound legal 

1 Undesignated statutory references are to the Penal Code.
3

basis to object to the court imposing the upper term at resentencing. As a result, 

defendant failed to support his alternative claim for ineffective assistance of counsel. 

In sum, we shall affirm the October 26, 2022, resentencing order.

BACKGROUND

A. March 2015 – April 2017

In March 2015, in Butte County Superior Court, case No. CM042677 (case 

No. 677), the People charged defendant with burglary (§ 459), receiving a stolen vehicle 

(§ 496d, subd. (a)), vehicle theft (Veh. Code, § 10851, subd. (a)), and possessing 

methamphetamine (Health & Saf. Code, § 11377). Defendant pleaded no contest to 

second degree burglary and felony vehicle theft. In exchange for his plea, the People 

moved to dismiss the remaining charges.

At sentencing, the trial court (the Hon. Tamara Mosbarger) found a factual basis 

for the plea. Consistent with the terms of the plea agreement, the trial court dismissed the 

remaining charges, suspended imposition of sentence, and placed defendant on three 

years’ probation in case No. 677 and reinstated his probation in case Butte County 

Superior Court case No. CM042151 (case No. 151). The court terminated defendant’s 

probation in Butte County Superior Court case No. SCR100383 (case No. 383). The 

court also addressed defendant directly:

“[THE COURT:] Sir, if you come back here on a violation of probation, I’m not 

going to be happy with you. We are not just going to be talking about reinstating 

probation, we’re going to be talking about how long your county prison sentence is; do 

you understand that?

“THE DEFENDANT: Yes, ma’am.

“THE COURT: You’ve tried probation, you’ve tried diversion, you’ve had people 

in the community trying to help you, and you have not taken advantage of any of those 

things. So if I see you back here on a violation of probation, I’m going to be hardpressed to be convinced to keep you on probation.
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“THE DEFENDANT: Yes, ma’am. I understand.”

On May 21, 2015, the Butte County Probation Department (Department) filed a 

petition to revoke defendant’s probation, alleging he violated probation by failing to 

report to his probation officer. Defendant admitted the violation; the court ordered him to 

serve 60 days in county jail and reinstated probation. Over the next several months, the

Department filed three more petitions to revoke defendant’s probation, alleging he 

violated the terms of his probation by failing to report as directed. Each time, defendant 

admitted the violation; twice the court ordered defendant to serve time in county jail and 

reinstated probation. 

Following defendant’s fourth probation violation, the trial court (the Hon. Tamara 

Mosbarger) denied his request to reinstate probation and imposed a split sentence: 

“There are no statutory restrictions on continuing you on probation in this case; 

however, the Court is denying defendant’s application for continuation on probation for 

the following reasons: He’s shown an inability to comply with reasonable terms of 

probation and a lack of willingness to comply with terms of probation.

“Defendant has been tried on probation in this matter and has failed. The Court 

would note that any one of the reasons stated for denying probation would, standing 

alone, be sufficient reason to justify and warrant denial of probation in this case. 

Probation is revoked.

“I have reviewed the circumstances in aggravation and those in mitigation, and I 

find that the circumstances in aggravation outweigh the circumstances in mitigation.

“In aggravation, the Court finds the defendant was on probation and diversion 

when the crime was committed and that his prior performance on probation wasn’t 

satisfactory.

“In mitigation, I find that he acknowledged wrongdoing at an early stage of the 

proceeding, and this is his first felony conviction.” 
5

Accordingly, the court sentenced defendant to the middle term of two years for his 

burglary conviction and a consecutive term of eight months on his conviction for driving 

a stolen vehicle in case No. 677. In case No. 151, the trial court imposed a concurrent 

term of one year in county jail, along with a concurrent term of six months. Defendant 

would serve 365 days in county jail and the remainder of his term, 609 days, on 

mandatory postrelease community supervision (PRCS). 

B. February 2018 – June 2018

On February 21, 2018, defendant and his codefendant flashed gang signs at T.T., 

who waved them off saying something akin to “Fuck off.” Defendant and codefendant 

pursued T.T. in their car; they fired shots at T.T.’s car. T.T. heard the gunshots and his 

rear window shattered. When defendant was later interviewed he said he did not know 

the victim.

On March 2, 2018, the Department filed a petition to revoke defendant’s PRCS, 

alleging defendant violated the terms of his release by failing to report to probation. 

Defendant admitted the violation; the trial court ordered him to serve 90 days in county 

jail and reinstated PRCS.

Days later, in Butte County Superior Court case No. 18CF01183 (case No. 183), 

the People charged defendant with assault with a firearm (§ 245, subd. (a)(2)), shooting at 

an occupied motor vehicle (§ 246), and possession of a firearm by a felon (§ 29800, 

subd. (a)(1)). Related to the assault with a firearm charge, the People alleged that 

defendant personally used a firearm during the commission of the crime. (§ 12022.5, 

subd. (a).) The People also alleged defendant served a prior prison term. (§ 667.5, 

former subd. (b).)

While in custody in the county jail, defendant and another inmate (codefendant) 

planned and executed an assault on a third inmate. Codefendant struck the victim three

times, rendering him unconscious, and another 12 times after the victim fell to the floor. 

As the victim lay unconscious, defendant “viciously struck him approximately nineteen
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times with a closed fist.” The victim was taken to the hospital immediately for a possible 

brain hemorrhage. As a result of the attack, the victim suffered a fractured skull, open 

fractures in his jaw and nasal bone, and a concussion. On May 21, 2018, in Butte County 

Superior Court case No. 18CF02671 (case No. 671), the People charged defendant with 

assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and 

alleged defendant personally inflicted great bodily injury on his victim (§ 12022.7, 

subd. (a)). The People also alleged defendant had served a prior prison term. (§ 667.5, 

former subd. (b).)

In June 2018, defendant negotiated a plea agreement resolving the charges in case 

Nos. 183 and 671. In case No. 183, defendant pleaded no contest to shooting at an 

occupied vehicle and being a felon in possession of a firearm; he also admitted to serving 

a prior prison term. In case No. 671, defendant pleaded no contest to assault by means of 

force likely to produce great bodily injury and admitted to personally inflicting great 

bodily injury on his victim; he also acknowledged the maximum available sentence for 

his crimes. In exchange for his plea, the People agreed they would move to dismiss the 

remaining charges and enhancements. 

In light of defendant’s pleas, the trial court found defendant in violation of his 

PRCS in case No. 677 and set the matter for sentencing.

C. August 2018 Sentencing

At sentencing on August 22, 2018, the trial court (the Hon. Kimberly Merrifield)

noted its intended sentence: 

“The Court has read, considered, and signed the original probation report filed 

April 5th, 2017, and the supplemental probation report dated August 16th, 2018. The 

Court’s intended ruling would be to impose the upper term of state prison. The Court 

notes that . . . defendant has four violations of probation in [case No. 677], was then 

placed on mandatory supervision. While on mandatory supervision, he incurred three 

additional felony convictions, two of which involved violence and great bodily injury.”
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After hearing from both parties, the court ruled: 

“[D]efendant is statutorily eligible for probation only in the unusual case pursuant 

to Penal Code Section 1203[, subdivision (e)](4). The Court has reviewed the unusual 

case criteria set forth in California Rule[s] of Court[, rule] 4.413, and I do not find that 

this case meets any of the criteria set forth therein. And as such probation is denied.

“However, even if . . . defendant were not statutorily ineligible for probation, 

probation would be denied for the following reasons: The nature, seriousness, and 

circumstances of this case, the defendant’s prior record of criminal conduct indicates a 

pattern of regular and increasingly serious criminal conduct, the defendant’s prior 

performance on probation and mandatory supervision was unsuccessful.

“The Court has reviewed the circumstances in aggravation set forth in [California] 

Rule[s] of Court[, rule] 4.421 and the circumstantial [sic] in mitigation set forth in 

[California] Rule[s] of Court[, rule] 4.423. After careful consideration, the Court finds 

on balance that the circumstances in aggravation outweigh the circumstances in 

mitigation. Specifically[,] the Court notes the following reasons for its choice of term: 

The crime involves criminal greatly [sic] and great bodily harm, the defendant’s prior 

convictions as an adult are numerous and of increasing seriousness in nature. The 

defendant has served prior prison terms. The defendant was on mandatory supervision 

and the defendant’s prior performance on probation and mandatory supervision was 

unsatisfactory.”

The trial court sentenced defendant to an aggregate term of 12 years in state 

prison: the upper term of seven years for shooting at an occupied vehicle (case No. 183), 

eight months for possession of a firearm by a felon (case No. 183), one year for assault 

(case No. 671), two terms of eight months each for burglary and taking a vehicle without 

consent (case No. 677), one year for the great bodily injury enhancement in case No. 671, 

and another year for the prior prison term enhancement in case No. 183.
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D. Resentencing

On July 26, 2022, the trial court appointed counsel for defendant and calendared 

his case for resentencing pursuant to former sections 1171 and 1171.1.2 Defendant and 

the People filed briefs in support of their respective positions on resentencing. Defendant 

asked the court to dismiss the prior prison term enhancement pursuant to changes brought 

by Senate Bill No. 483 (2021-2022 Reg. Sess.). He also asked the court to dismiss the 

great bodily injury enhancement under newly amended section 1385, subdivision (c), and 

impose the low term in light of defendant’s youth, as described in newly amended section 

1170, subdivision (b)(6)(B).

The People agreed the trial court should strike defendant’s prior prison term 

enhancement. The People nevertheless argued that dismissing the great bodily injury 

enhancement would not be in the interest of justice under section 1385, subdivision (c). 

In support of their argument, the People observed that defendant’s victim sustained 

significant injury as a result of defendant’s criminal conduct and no mitigating 

circumstances were present.

The People further argued the low term was not appropriate because the 

circumstances in aggravation outweighed those in mitigation and imposing the low term 

would be contrary to the interests of justice. In support of their argument, the People 

identified the following aggravating factors: defendant’s prior felony convictions, his 

unsatisfactory performance on probation and mandatory supervision, and his commission 

of the offenses in case Nos. 183 and 671 while on probation or mandatory supervision. 

The People also mentioned that defendant’s crimes involved great violence and resulted 

2 Former sections 1171 and 1171.1 were renumbered to sections 1172.7 and 

1172.75 effective June 30, 2022. (Stats. 2022, ch. 58, § 11.) Subsequent references are 

to the current section.
9

in great bodily harm; defendant was armed with a firearm in one of the cases, and his 

violent conduct indicated he was a serious danger to society.

At the resentencing in October 2022, the trial court (the Hon. Corie J. Caraway) 

said it reviewed all the briefing and intended to strike only the prior prison term 

enhancement, leaving the remaining sentence intact. The parties submitted the matter on 

their briefs and the record.

The trial court ruled as follows:

“The Court does continue to find that this is not an unusual case, and the upper 

term was previously imposed based upon the aggravating factors outweighing the 

mitigating factors.

“Moving on to the discretion that the Court now has under [section] 1385, 

sub[division] (c), relating to the striking of enhancements. I do find that to strike the 

great bodily injury enhancement would endanger public safety; so, therefore, I’m 

declining to strike the 12022.7, sub[division] (a), enhancement.

“All previous sentences will remain but for the Court striking the one-year prior 

prison term pursuant to Penal Code section 667.5, sub[division] (b), for a total aggregate 

term of 11 years in the state prison. The original sentence was 12 years in state prison.

“And I’m declining to modify any previous, previously ordered fines and fees.

“I will order a Minute Abstract to be prepared to reflect the one-year prior prison 

term that is now stricken.

“Anything else?

“[Defense Counsel]: No, Your Honor.”

Defendant appealed.

DISCUSSION

A. Forfeiture

Defendant contends the trial court erred in failing to consider recent amendments 

to section 1170, subdivision (b) in reimposing the upper term on his conviction for 
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shooting at an occupied vehicle. We conclude defendant forfeited this claim by failing to 

challenge the upper term sentence in the trial court.

Parties are required to raise certain issues at the time of sentencing; the lack of a 

timely and meaningful objection results in forfeiture of the claim. (See People v. Scott

(1994) 9 Cal.4th 331, 352; see also People v. Flowers (2022) 81 Cal.App.5th 680, 683-

684, review granted Oct. 12, 2022, S276237 [§ 1170 issue was forfeited because 

appellant did not object to the upper term when the sentence was imposed].)

Defendant was resentenced several months after Senate Bill No. 567 (2021-2022 

Reg. Sess.) passed and the amendments to section 1170, subdivision (b) went into effect 

on January 1, 2022. Defendant filed a sentencing memorandum raising numerous other 

changes in sentencing laws but made no argument relative to the aggravating 

circumstances found in support of the upper term. At resentencing, the trial court 

indicated its intention to impose the same sentence, less the one-year prior prison term 

enhancement. Defendant did not object to the intended sentence, nor did he object when 

the court imposed the upper term, despite being invited to raise any concerns.

Defendant acknowledges trial counsel “did not seek to obtain relief under [Senate 

Bill No.] 567.” He nevertheless contends the claim cannot be forfeited because the trial 

court had “an affirmative duty under Penal Code [section] 1172.75 to address ‘any other 

changes in law’ that could reduce sentencing.” He cites no authority to support this 

claim. Moreover, whether the trial court is required to consider changes in the law does 

not excuse defendant’s obligation to raise his objection in the trial court in order to 

preserve the issue for appeal.

In short, defendant failed to preserve this claim for appeal.

B. Ineffective Assistance of Counsel

Anticipating that he may have forfeited his claim by failing to object, defendant 

alternatively contends he received ineffective assistance of counsel. We disagree. 
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A defendant may not “automatically transform a forfeited claim into a cognizable 

one merely by asserting ineffective assistance of counsel.” (People v. Thompson (2010) 

49 Cal.4th 79, 121, fn. 14; see People v. Riel (2000) 22 Cal.4th 1153, 1202-1203.) 

Rather, “To establish constitutionally inadequate representation, a defendant must 

demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective 

standard of reasonableness under prevailing professional norms; and (2) counsel’s 

representation subjected the defendant to prejudice, i.e., there is a reasonable probability 

that, but for counsel’s failings, the result would have been more favorable to the 

defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845; see Strickland v. 

Washington (1984) 466 U.S. 668, 687-696.)

“[R]arely will an appellate record establish ineffective assistance of counsel.” 

(People v. Thompson, supra, 49 Cal.4th at p. 122.) “ ‘When a defendant on appeal makes 

a claim that . . . counsel was ineffective, the appellate court must consider whether the 

record contains any explanation for the challenged aspects of representation provided by 

counsel. “If the record sheds no light on why counsel acted or failed to act in the manner 

challenged, ‘unless counsel was asked for an explanation and failed to provide one, or 

unless there simply could be no satisfactory explanation,’ [citation], the contention must 

be rejected.” ’ ” (People v. Samayoa, supra, 15 Cal.4th at p. 845.) “ ‘Reviewing courts 

defer to counsel’s reasonable tactical decisions in examining a claim of ineffective 

assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.” ’ ” (People v. Weaver

(2001) 26 Cal.4th 876, 925.) “Counsel is not ineffective for failing to make frivolous or 

futile motions” (Thompson, at p. 122), or for failing to object when “there was no sound 

legal basis for objection.” (People v. Cudjo (1993) 6 Cal.4th 585, 616; accord People v. 

Bell (2019) 7 Cal.5th 70, 127.) 

As explained below, based on the plain language of section 1172.75, we conclude 

there was no sound legal basis for trial counsel to raise an objection to the trial court 
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reimposing the upper term. Accordingly, defendant fails to support his claim that trial 

counsel was ineffective.

Our goal in reviewing statutory language is to determine the legislative intent of 

the statute. (People v. Johnson (2022) 79 Cal.App.5th 1093, 1108.) “Because the 

statutory language is generally the most reliable indicator of that intent, we look first at 

the words themselves, giving them their usual and ordinary meaning.” (Alford v. 

Superior Court (2003) 29 Cal.4th 1033, 1040, overruled on other grounds in Facebook, 

Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.) When the 

statutory language is unambiguous, its plain meaning controls. (Lungren v. Deukmejian

(1988) 45 Cal.3d 727, 735.) We also “generally must ‘accord[ ] significance, if possible, 

to every word, phrase and sentence in pursuance of the legislative purpose,’ and [the 

Supreme Court] ha[s] warned that ‘[a] construction making some words surplusage is to 

be avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 357.) 

Guided by these well-established canons of statutory construction, we look first to 

the language of section 1172.75, which states generally that a trial court must apply 

ameliorative changes in the law when resentencing pursuant to its terms. (§ 1172.75, 

subd. (d)(2).) The parties do not dispute that such changes include the 2022 amendments

to section 1170, subdivision (b) that require aggravating factors be proven beyond a 

reasonable doubt before the upper term can be imposed. (See § 1170, subd. (b).)

Section 1172.75, subdivision (d)(4), however, states that “[u]nless the court 

originally imposed the upper term, the court may not impose a sentence exceeding the 

middle term unless there are circumstances in aggravation that justify the imposition of a 

term of imprisonment exceeding the middle term, and those facts 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.” (§ 1172.75, subd. (d)(4).) 

Giving this language its plain meaning, it is evident the Legislature intended the 

new burden of proof amendments to section 1170, subdivision (b) apply only if the trial 
13

court is imposing the upper term for the first time at a section 1172.75 resentencing. 

Section 1172.75, subdivision (d)(4) is, therefore, an exception to the general rule that the 

trial court must apply ameliorative changes in the law at a section 1172.75 resentencing.

Counsel was not ineffective in failing to object, as the trial court did not err in reimposing 

the upper term.

Despite the plain meaning of the words used by the Legislature, defendant argues 

that we should read section 1172.75, subdivision (d)(4) as creating two requirements for 

imposing the upper term at resentencing: (1) the upper term must have been previously 

imposed and (2) the aggravating factors must be established beyond a reasonable doubt. 

The unambiguous language of the statute does not support this interpretation.3 Defendant 

nevertheless asserts that reading the statute according to its unambiguous language would

“trigger constitutional issues such as equal protection.” But, defendant fails to support 

that assertion with any argument. We treat this undeveloped argument as forfeited.4 

(People v. Stanley (1995) 10 Cal.4th 764, 793.)

3

If the Legislature intended section 1172.75, subdivision (d)(4) to create these two 

prerequisites to imposing the upper term at resentencing, it is up to the Legislature to 

correct the statute to reflect that is what it intended—not the courts.

4 Because we find no error, we need not address the parties’ arguments related to 

harmless error.
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DISPOSITION

The judgment is affirmed.

 /s/

WISEMAN, J.*

We concur:

 /s/

DUARTE, Acting P. J.

 /s/

MESIWALA, J.

*

 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.