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Filed 6/29/23 P. v. Hola CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLIE HOLA,

Defendant and Appellant.

C096716

(Super. Ct. No. 15F07862)

In a prior appeal by defendant Charlie Hola, a panel of this court reversed his 

second degree murder conviction but affirmed convictions for other offenses he

committed when he was 19 years old. On remand, the trial court resentenced defendant 

to an aggregate felony sentence of eight years, which included the upper term for 

robbery. In this appeal, defendant argues the trial court (1) abused its discretion by 

imposing the upper term because recent legislation created a presumption for the lower 

term when a defendant was under the age of 26 at the time of his crime, and (2) abused its 
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discretion by denying defense counsel’s request to continue the resentencing hearing, 

because defense counsel was not adequately prepared. We affirm.

BACKGROUND

The underlying facts of the crimes defendant committed when he was 19 years old 

are largely immaterial to the issues raised on appeal. Simply put, in April 2018, a jury 

found defendant guilty of second degree murder (§ 187, subd. (a)); found the crime was 

committed for the benefit of, or in association with, a criminal street gang (§ 186.22, 

subd. (b)(1)); and found that defendant was a principal in an offense in which a principal 

personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). The jury 

also found defendant guilty of two second degree robbery counts (§ 211) with firearm 

enhancements (§ 12022, subd. (a)(1)), possessing a firearm as a felon (§ 29800, subd. 

(a)), and misdemeanor taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). 

(People v. Hola (2022) 77 Cal.App.5th 362, 368-369 (Hola).)

In a prior appeal, a panel of this court reversed defendant’s second degree murder 

conviction and vacated the associated enhancements in light of recent legislation 

prohibiting murder convictions based on the natural and probable consequences doctrine 

and permitting criminal defendants to challenge on direct appeal the infirmity of such 

convictions. (Hola, supra, 77 Cal.App.5th at pp. 368-370, 376-377.) The panel 

remanded the matter to the trial court to permit the People to decide whether to retry 

defendant on the second degree murder charge and associated enhancements, and 

affirmed the judgment in all other respects. (Id. at p. 377.)

On remand in July 2022, the prosecutor declined to retry defendant, and asked the

trial court to impose an upper term sentence on one of the robbery offenses. Defense 

counsel argued “[t]here is a presumption of low term” for offenses committed by “those 

that are under 26 years old, pursuant to [section] 1170[, subdivision] (b)(6)(B).” Defense 

counsel also explained that he had not had a chance to review the probation report and 

previously had asked for another week to prepare for resentencing.
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After giving defendant a chance to be heard, the trial court pronounced the upper 

term of five years as the principal term for one of the robberies explaining: “This is a 

new sentencing hearing pursuant to all of the reforms passed by the California

Legislature which this Court is obligated to follow. [¶] . . . [¶] So in this case as to Count 

3, for violating . . . section 211, [defendant] is going to be sentenced to the upper term of 

five years, plus one year on the [firearm enhancement]. I am selecting the upper term for 

two reasons: Number 1, I am going to take judicial notice of the fact that the defendant 

was on probation at the time these crimes were committed; and secondly, the jury did in 

its finding of guilty on [felon in possession of a firearm] necessarily found that the 

defendant had suffered a prior conviction, which is also an aggravating factor. [¶] I have 

looked at any mitigating factor. I have re-looked at the probation report, and I think that 

the aggravating factors far outweigh the mitigating factors,[1] and so I am selecting the 

upper term of five years.”

Along with the term of five years on count three, plus one year for the firearm 

enhancement, the trial court also imposed (1) a consecutive term of one year for the other 

robbery (count four; one-third the middle term of three years), plus four months for the 

firearm enhancement (again, one-third the middle term); and (2) a consecutive term of 

eight months for the offense of being a felon in possession of a firearm (count six; onethird the middle term). Thus, the trial court imposed an aggregate term of eight years for 

defendant’s felony offenses. The trial court also imposed a consecutive term of 364 days 

for the misdemeanor offense of taking or driving a vehicle charge.2

1 The probation report identified one circumstance in mitigation: defendant’s age. As 

noted above, defendant was 19 years old when he committed the offenses.

2

 Regarding the misdemeanor sentence, on remand, the trial court said it would “not 

impose any additional time as to that count.” A minute order indicates the trial court 

clerk interpreted that statement to mean the trial court was not imposing a sentence for 

the offense. We view the matter differently because we presume the trial court regularly 
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After pronouncing sentence, the trial court said it “want[ed] to make it very clear”

it knew defense counsel wanted to continue sentencing. But, after calculating that 

defendant had already served at least seven years, nine months of the just-pronounced 

eight-year sentence, the trial court explained “it would have been wrong . . . not to hold 

this sentencing hearing today because if I keep a defendant in longer than they should be 

in, I . . . am committing misconduct.” But defendant “is not time served,” defense 

counsel insisted. “He is time served,” the trial court replied.

Later, defense counsel explained he “needed a week to get this motion together 

and get prepared for this,” maintaining defendant was “months short” of being time 

served. Counsel asked: So “[w]hy are we doing this today when I haven’t had a chance 

to do this and properly prepare?” “My request is to continue this so I can put the motion 

that -- he obviously isn’t getting out for a week, and, you know, I feel like I am getting 

shoved into these things.” “I believe I am IAC [(ineffective assistance of counsel)] right 

now.”

The trial court replied: “This remittitur was issued many, many months ago, and 

we’ve had status conferences on it. We’ve had plenty of time to deal with this, and I am 

not going to keep a person in prison one day longer than they should be placed in prison.” 

“And I want to say one thing about [defense counsel]. He is far from being IAC. . . . He 

properly represented” defendant.

performed its duty to pronounce a sentence for each offense. (Evid. Code, § 664; People 

v. Sullivan (2007) 151 Cal.App.4th 524, 549-550 [presumption the trial court regularly 

performed its lawful duty]; People v. Alford (2010) 180 Cal.App.4th 1463, 1469 

[sentence must be imposed on each count].) We interpret the trial court’s statement to 

mean it was not imposing “additional time” beyond the custodial term the trial court 

originally imposed — 364 days, consecutive, credit time served. (Hola, supra, 

77 Cal.App.5th at p. 369.) Accordingly, we will direct the clerk of the trial court to 

prepare a corrected minute order so reflecting.
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DISCUSSION

I

The Upper Term on Count Three

Defendant contends the trial court abused its discretion by imposing the upper 

term on count three in light of recent legislation “creat[ing] a presumption for the lower 

term . . . when the defendant is under the age of 26.” The error was two-fold, according 

to defendant. First, the trial court erred by failing to “directly address the statutory 

presumption in favor of the lower term” when it pronounced sentence. Second, “the 

single factor of prior conviction/on probation was not sufficiently overwhelming to turn a 

presumptive low-term sentence into an aggravated upper term.” We are not persuaded.

A. Legislative Background

Pursuant to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731), 

effective January 1, 2022, “section 1170, subdivision (b) has been amended to make the 

middle term the presumptive sentence for a term of imprisonment,” absent circumstances 

not at issue here. (People v. Lopez (2022) 78 Cal.App.5th 459, 464.) Senate Bill No. 567 

also added section 1170, subdivision (b)(6)(B), which provides that “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: [¶] . . . [¶] 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.”

“A ‘youth’ . . . includes any person under 26 years of age on the date the offense was 

committed.” (§ 1016.7, subd. (b).)
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B. Analysis

1. Failure to “Directly Address” Section 1170, Subdivision (b)(6)(B)

Defendant argues the trial court erred in failing to “directly address” at sentencing 

the statutory presumption in favor of the lower term. We disagree.

“[I]n light of the presumption on a silent record that the trial court is aware of the 

applicable law, including statutory discretion at sentencing, we cannot presume error 

where the record does not establish on its face that the trial court misunderstood the scope 

of that discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) Nothing in 

the record indicates the trial court was unaware of section 1170, subdivision (b)(6)(B) 

when it resentenced defendant in July 2022, six months after the statute became effective, 

or was not paying attention when defense counsel referenced the statute in oral argument 

before the trial court pronounced sentence. Accordingly, we presume the trial court 

properly exercised its duties and applied the applicable law. (People v. Stowell (2003) 31 

Cal.4th 1107, 1114 [absent an affirmative showing to the contrary, we presume the trial 

court was aware of and followed the applicable law].) We find no error in connection 

with the absence of an explicit reference to the statute when pronouncing the sentence.

2. Imposition of the Upper Term

Defendant also argues the trial court abused its discretion in selecting the upper 

term because he was 19 years old when he committed the crimes at issue, and “[t]he 

single factor of prior conviction/on probation was not sufficiently overwhelming to turn a 

presumptive low-term sentence into an aggravated upper term.” The trial court did not 

abuse its discretion.

We review a trial court’s sentencing decisions for an abuse of discretion, 

determining whether the trial court exercised its discretion “in a manner that is not 

arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is 

based upon an ‘individualized consideration of the offense, the offender, and the public 

interest.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) It is an abuse of discretion 
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if the trial court “relies upon circumstances that are not relevant to the decision or that 

otherwise constitute an improper basis for decision.” (Ibid.)

Aggravating circumstances are facts that make the offense distinctively worse than 

the ordinary, including those relating to the crime and relating to the defendant. (Cal. 

Rules of Court, rule 4.421; People v. Black (2007) 41 Cal.4th 799, 817.) The trial court 

may consider “[a]ny” factor that “reasonably relate[s] to the defendant or the

circumstances under which the crime was committed,” including the fact that a defendant 

has suffered a prior conviction. (Cal. Rules of Court, rule 4.421(c); Advisory Com. com., 

Cal. Rules of Court, rule 4.421(c).)

Here, the trial court — after “look[ing] at any mitigating factor” and “re-look[ing]

at the probation report,” which identified defendant’s youth as a mitigating factor,

concluded the “aggravating factors far outweigh[ed] the mitigating factors,” when it 

selected the upper term of five years for count three. The aggravating factors the trial 

court identified were that defendant (1) was on probation when he committed the instant 

crimes (Cal. Rules of Court, rule 4.421(b)(4)) and (2) had a prior conviction. The trial 

court did not abuse its discretion under section 1170, subdivision (b)(6)(B) in ruling that 

two aggravating factors it identified outweighed the single mitigating circumstance

identified in the probation report. (§ 1170, subd. (b)(6)(B); cf. People v. Lamb (1988) 

206 Cal.App.3d 397, 401 [“ ‘Sentencing courts have wide discretion in weighing 

aggravating and mitigating factors [citations], and may balance them against each other

in qualitative as well as quantitative terms’ ”].)

Insisting his prior conviction “was the source of [his] probation status,” defendant 

contends the single aggravating “factor of prior conviction/on probation” “was not 

sufficiently overwhelming” to justify the upper term. Section 1170, subdivision (b)(6)(B) 

does not require aggravating factors “overwhelm” mitigating factors; it requires they 

“outweigh” them. Further, to the extent defendant’s contention is that the trial court 

double-counted a single sentencing factor, that contention is forfeited on appeal because 
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defendant did not raise it below. (People v. Scott (1994) 9 Cal.4th 331, 353 [“claims 

involving the trial court’s failure to properly make or articulate its discretionary 

sentencing choices,” including “cases in which the court purportedly erred because it 

double-counted a particular sentencing factor,” are forfeited on appeal if not raised in the 

trial court].) Accordingly, this claim is unpersuasive.3

II

Denial of Defense Counsel’s Request to Continue Sentencing

Defendant contends the trial court abused its discretion by denying defense 

counsel’s request to continue sentencing. We agree with the People this claim is 

unpersuasive because, even if the trial court erred, defendant has not demonstrated how 

he was prejudiced by the asserted error.

Not every error by a trial court requires reversal. Rather, the California 

Constitution “ ‘imposes upon th[e] court[s] an obligation to conduct “an examination of 

the entire cause” and reverse a judgment below for error only upon determining that a 

“miscarriage of justice” has occurred.’ ” (People v. Hendrix (2022) 13 Cal.5th 933, 941.) 

Under the standard set out in People v. Watson (1956) 46 Cal.2d 818, an error is harmless 

unless a defendant carries the burden of showing it is “reasonably probable” the outcome 

would have been more favorable in the absence of the asserted error. (People v. Hendrix,

supra, 13 Cal.5th at p. 942; People v. Hurtado (2002) 28 Cal.4th 1179, 1190-1191.)

Defendant has not carried that burden here. He argues the matter should be 

remanded to “allow defense counsel to research all aspects of presentence credit and [a] 

3

 Defendant references a split in authority regarding harmless error analysis where a trial 

court imposed an upper term sentence by relying on aggravating circumstances whose 

underlying facts were not stipulated to by the defendant or found true beyond a 

reasonable doubt by the fact finder, contrary to section 1170, subdivision (b)(2). 

Defendant does not present a discrete argument the sentence on review is inconsistent 

with that provision.
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consecutive sentence from another jurisdiction,” and that “[j]ustice would be better 

served . . . by acknowledging . . . that . . . there was no necessity for a credit-for-timeserved sentencing.” Those assertions do not demonstrate a reasonable probability of a 

more favorable outcome at sentencing had the trial court granted the continuance. 

Accordingly, this claim is unpersuasive.

DISPOSITION

The judgment is affirmed. The clerk of the trial court is directed to prepare a 

corrected minute order reflecting that the trial court imposed a consecutive sentence of 

364 days, with credit for time served, for defendant’s misdemeanor conviction.

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

RENNER, Acting P. J.

 /s/

HORST, J.



 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.