1

Filed 6/13/23 P. v. Carrillo CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO CARRILLO,

Defendant and Appellant.

 A165296

 (Napa County

 Super. Ct. No. 20CR002737)

Defendant Francisco Carrillo appeals from a trial court order denying 

his motion to treat as a misdemeanor an offense of possession of ammunition 

by a prohibited person (ammunition offense) to which he pleaded guilty under 

a plea agreement.

1 He claims the court abused its discretion in denying his 

motion. We disagree and accordingly affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

On October 27, 2020, Carrillo, who was 26-years old, was approached 

by a police officer who knew him from prior interactions.2 Carrillo had an 

1 The ammunition offense was brought under Penal Code section 

30305, subdivision (a). All statutory references are to the Penal Code unless 

otherwise specified.

2 The parties stipulated to the factual basis of the plea, and the recited 

facts are taken from a probation report. 
2

extensive criminal history, and the officer knew he was on probation. The 

officer asked to conduct a body search, and Carrillo consented. The search 

produced a plastic bag, which contained a glass pipe, and a single 12-gauge 

shotgun shell. Carrillo was prohibited from possessing ammunition as the 

result of prior felony convictions. He was charged with the ammunition 

offense and with possessing an injection or ingestion device.

3 The charges 

also sought to revoke his probation and his post-release community 

supervision (PRCS) which he was also serving as a result of an earlier 

offense.

A preliminary hearing was held in early 2021, and Carrillo asked the 

trial court to exercise its discretion under section 17, subdivision (b) (section 

17(b)), and treat the ammunition offense as a misdemeanor. The court 

denied the motion. Carrillo subsequently pleaded no contest to the 

ammunition offense as a felony. 

Before being sentenced, Carrillo was arrested and charged with 

misdemeanor theft (§ 488, subd. (a)) and misdemeanor resisting a peace 

officer (§ 148, subd. (a)(1)). The charges also sought to revoke his probation 

and his PRCS. Carrillo was returned to custody, but our record is unclear on 

how these charges were resolved.

The first sentencing on the ammunition offense occurred in September 

2021. The trial court suspended imposition of the sentence, released Carrillo 

from custody for time served, and placed him on probation for two years.

About two weeks after he was released on probation, Carrillo was 

charged with felony battery with a serious bodily injury (§ 243, subd. (d)). 

The charges also sought to revoke his probation and his PRCS. The petition 

3 The latter charge was brought under Health & Safety Code, section 

11364, subdivision (a).
3

to revoke probation alleged that Carrillo had engaged in an unlawful battery 

(§ 242) and had failed to submit to chemical testing. The trial court 

summarily revoked Carrillo’s probation, but it shortly thereafter reinstated 

probation with additional terms. 

In January 2022, Carrillo was again arrested. This time he was 

charged with resisting a peace officer (§ 148, subd. (a)). The charges once 

again sought to revoke his probation and his PRCS. After a hearing, the trial 

court sustained the probation violation and set the matter for another 

sentencing hearing. 

Before the sentencing hearing, Carrillo filed another motion under 

section 17(b) asking the trial court to treat the ammunition offense as a 

misdemeanor and, “[i]f [n]ecessary,” to reconsider its prior determination at 

the preliminary hearing that the offense was a felony. The court denied the 

motion, and proceeded with sentencing. 

The trial court terminated Carrillo’s probation, imposed the midterm 

authorized for the ammunition offense (two years in state prison), and 

ordered Carrillo to receive substance-abuse counseling or education. The 

court explained that the middle term was the presumptive term, and it 

understood that section 1170 mandates the imposition of the lower term 

when certain factors apply, such as if the defendant “was a youth . . . during 

the commission of the offense.” The court found that none of these factors 

applied to the ammunition offense, although it found that the discovery of 

only a single shotgun shell was a mitigating circumstance. 
4

II.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Declining to 

Treat the Ammunition offense as a Misdemeanor.

A charge of possession of ammunition by a prohibited person is a 

“wobbler,” meaning it is punishable as either a felony or misdemeanor. 

(§ 30305, subd. (a).) Under section 17(b), courts have discretion to treat a 

wobbler as either a felony or misdemeanor. Factors relevant in exercising 

such discretion include the circumstances of the offense, the defendant’s 

appreciation of and attitude toward the offense, the defendant’s character as 

evidenced by his or her behavior and demeanor at the trial, and the 

defendant’s criminal history. (People v. Mullins (2018) 19 Cal.App.5th 594, 

611; People v. Alvarez (1997) 14 Cal.4th 968, 979.) “Section 17(b) allows the 

trial court to determine the nature of such an offense at the time of 

sentencing or later, namely ‘on application of the defendant or probation 

officer’ after the trial court has granted probation ‘without imposition of 

sentence.’ (§ 17(b)(3).) ‘[B]ecause each case is different, and should be 

treated accordingly, . . . we repose confidence in the discretion of the court to 

impose a sentence that is appropriate in light of all relevant circumstances.’ ” 

(People v. Tran (2015) 242 Cal.App.4th 877, 887.)

An appellate court reviews a trial court’s decision on how to treat a 

wobbler under an “extremely deferential and restrained” abuse of discretion 

standard. (People v. Alvarez, supra, 14 Cal.4th at p. 981.) The trial court “is 

presumed to have considered all of the relevant factors in the absence of an 

affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 

305, 310.) An appellate court will not disturb the trial court’s decision unless 

it is clearly shown to be irrational or arbitrary. (People v. Tran, supra,

242 Cal.App.4th at p. 887.)
5

Carrillo advances two main arguments in challenging the trial court’s 

denial of his request to have the possession charge treated as a misdemeanor. 

First, he points out that many of his prior offenses occurred before he was 26 

years old, and he claims that the court disregarded recent legislation 

directing courts to be lenient when imposing sentences for crimes committed 

during a defendant’s youth. Second, he contends that the court wrongly 

treated his recidivism as being singularly dispositive. We are not persuaded.

At the last sentencing hearing, the trial court stated it had reviewed 

the felony revocation report and had considered Carrillo’s record. It noted 

that Carrillo had been convicted of four prior felonies in addition to various 

misdemeanors.

4 In its view, Carrillo’s “four felony convictions alone with the 

misdemeanor convictions [were] enough to deny the 17(b) based on the 

record.” Still, it found other and more specific factors to be relevant:

“[I]t’s pretty clear that Mr. Carrillo doesn’t do very well on 

supervision by the Probation Department, or . . . Parole Department, as 

well. And has been sentenced to prison numerous times. Had [PRCS]

violations, a number of them, a number of felony offenses. Continually.

“And including, you know, violent offenses. I see a battery from 

2021, which is just last year. And the court takes that into 

consideration. Under [California Rules of Court,] Rule 4.414 the court 

takes into consideration the criteria affecting probation, as well as

looks at the record of violations in this case, and the frequency, and 

how close in time those violations occur from Mr. Carrillo getting 

released from custody or being placed into a program.

4 Because Carrillo was a minor at the time of many of these offenses, 

we refrain from describing them in detail. Suffice it to say, and as the parties 

discuss in their briefs, the felonies included a 2013 conviction for carrying a 

loaded firearm in public, where the person is an active participant in a

criminal street gang (§ 25850, subd. (c)(3)); a 2016 conviction for failure to 

stop at the scene of an injury accident (Veh. Code, § 20001, subd. (a)); and a 

2016 conviction for assault with a deadly weapon or with force likely to 

produce great bodily injury by a prisoner (§ 4501, subd. (b)).
6

“It just doesn’t fit well with Mr. Carrillo, in terms of having any 

kind of supervision. He’s currently on [PRCS] in another case with this 

probation case. The court looks at the circumstances in aggravation, 

including that Mr. Carrillo has served a prior prison term, that he was 

on mandatory supervision and PRCS. And the number of petitions, I’ve 

already talked about those, including the conduct or the performance 

on probation and supervision.

“The court also looks at Rule 4.423, which the Probation 

Department didn’t include. But the underlying offense itself, I do 

believe that those factors apply. In the sense that it talks about 

whether the defendant was [a] passive participant or played a minor 

role. I mean this was one shotgun shell, if I recall. One item of 

ammunition. That this type of offense can be committed in a much 

more significant manner.”

Carrillo maintains that the trial court gave insufficient weight to the 

fact that his prior felonies were committed before he was 26. He argues that

“section 17 cannot be considered in a vacuum” and its application should be 

guided by a 2022 amendment to section 1170, which added 

subdivision (b)(6)(B). (Senate Bill No. 567 (2021–2022 Reg. Sess. (Stats. 

2021, ch. 731, § 1.3).) This provision states, “Notwithstanding paragraph (1), 

and unless the court finds that the aggravating circumstances outweigh the 

mitigating circumstances that imposition of the lower term would be contrary 

to the interests of justice, the court shall order imposition of the lower term if 

any of the following was a contributing factor in the commission of the offense

. . . (B) The person is a youth, or was a youth as defined under subdivision (b) 

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

As we have discussed, the trial court expressly considered and applied

this subdivision when it sentenced Carrillo to the two-year mid-term sentence 

for the ammunition offense. Nonetheless, Carrillo argues that the law more 

broadly requires courts to consider whether a defendant was a youth at the 

time of a prior offense if that offense is considered in relation to imposing a 
7

sentence for a subsequent offense. According to him, “[i]f youth crimes are 

legally mitigated, such crimes cannot aggravate de minimus adult crimes.” 

We are unconvinced. Even assuming that section 1170, 

subdivision (b)(6)(B) bears on a court’s consideration of whether to treat a 

wobbler—committed when the defendant was as an adult—as a felony due to

prior youth offenses, the record here shows that the trial court was fully 

aware of and considered Carrillo’s age when he committed his crimes. 

Carrillo has pointed to nothing in the record to suggest that the court ignored 

that his prior felonies occurred when he was a youth. Moreover, many of 

Carrillo’s offenses, including the ammunition and subsequent offenses, 

occurred after Carrillo was 26 years old. We reject Carrillo’s characterization 

of the repeated adult offenses as “de minimus.”

We also reject Carrillo’s argument that in denying his section 17(b) 

motion the trial court impermissibly relied on the 2013 conviction for being a 

gang member in possession of a firearm (§ 25850, subd. (c)(3)) because the 

law has “changed in [Carrillo]’s favor since his conviction in 2013.” As 

Carrillo recognizes in his briefing, the trial court did not rely on the 2013 

conviction, at least not to any consequential extent. As he concedes, the 

“court focused on [Carrillo]’s recidivism and inability to stay on probation” 

and “did not mention [the] 2013 conviction . . . specifically, let alone 

emphasize it as the main reason the trial court was denying the 17(b) 

motion.” 

Carrillo next contends that the trial court erred by relying on his 

recidivist status as “singularly dispositive.” Again, we are unconvinced. 

Even assuming the questionable premise that courts cannot rely solely on a 

defendant’s recidivism when considering a section 17(b) motion, the trial 
8

court here plainly did not so rely in denying Carrillo’s motion.

5 The record 

shows the court took into account the seriousness and frequency of Carrillo’s 

crimes, Carrillo’s continued and repeated unlawful behavior as an adult, and 

Carrillo’s failure to succeed while under non-custodial supervision. 

In his reply brief, Carrillo argues for the first time that the trial court’s 

denial of his request to treat the possession charge as a misdemeanor 

violated newly enacted section 17.2. (Assem. Bill No. 2167 (2022–2023 Reg. 

Sess.) § 2, added September 29, 2022.) This provision codifies a legislative 

intent for sentencing courts to “consider alternatives to incarceration and use 

least restrictive means available.” It states, “(a) It is the intent of the 

Legislature that the disposition of any criminal case use the least restrictive 

means available. [¶] (b) The court presiding over a criminal matter shall 

consider alternatives to incarceration, including, without limitation, 

collaborative justice court programs, diversion, restorative justice, and 

probation. [¶] (c) The court shall have the discretion to determine the 

appropriate sentence according to relevant statutes and the sentencing rules 

of the Judicial Council.”

Carrillo’s argument fails even if we assume both that he did not forfeit 

it and that section 17.2 is retroactive to nonfinal criminal cases under In re

Estrada (1965) 63 Cal.2d 740. For starters, the record clearly shows that the 

trial court did “consider alternatives to incarceration” by repeatedly placing 

Carrillo on probation and giving him opportunities to succeed under non5 At oral argument Carrillo’s counsel insisted that People v. Alvarez,

supra, 14 Cal.4th 968, held that a trial court cannot rely exclusively on a 

defendant’s recidivism as “singularly dispositive” (id. at p. 973) in deciding 

how to treat a wobbler under section 17(b). We do not read Alvarez to have 

reached such a holding since in the same passage it also stressed courts’ 

continuing “broad authority” under the statute (ibid.), although we need not 

and do not decide the question here.
9

custodial supervision. Furthermore, Carrillo himself acknowledged that he 

had “been struggling on probation” and that “probation ha[d] never helped” 

him. Recognizing this, he specifically asked to “get off probation and PRCS” 

and to “do extra time.” We reject Carrillo’s appellate counsel’s 

characterization of these comments as reflecting an inconsequential “lack of 

impulse control” on Carrillo’s part. 

Lastly, a remand under a newly enacted law giving trial courts new 

sentencing discretion is unnecessary when “the record ‘clearly indicate[s]’ 

that the trial court would have reached the same conclusion ‘even if it had 

been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391.) Here, the record shows that the court would not have 

sentenced Carrillo any differently had section 17.2 been in effect at the time 

of sentencing. The court carefully considered Carrillo’s request to treat the 

ammunition offense as a misdemeanor, and Carrillo presents no reason for us 

to believe that the court abused its discretion or might reassess its decision in 

light of section 17.2.

III.

DISPOSITION

The trial court’s order denying the section 17(b) motion is affirmed.
10

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

People v. Carrillo A165296