Filed 8/29/23 P. v. Simental CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

CARLOS ARMANDO SIMENTAL,

 Defendant and Appellant.

 G061471

 (Super. Ct. No. 11NF2782)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael 

J. Cassidy, Judge. Reversed and remanded.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Warren 

Williams and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Defendant Carlos Armando Simental was convicted of multiple offenses 

based on his participation in an in-home robbery and sentenced to life plus 34 years. In 

Simental’s first appeal, a prior panel of this court reversed one of his convictions and 

remanded for further proceedings on that count. The panel also directed the trial court to 

stay the sentence on another count under Penal Code section 654 and to comply with 

section 1170.91 at Simental’s resentencing hearing.

1

 (People v. Perez et al. (Oct. 20, 

2020, G056047) [nonpub. opn.] (Perez I).) On remand, in June 2022, the trial court 

resentenced Simental, this time imposing a life sentence plus 10 years.

Simental raises two contentions in this appeal from the judgment entered 

following remand and resentencing. First, he contends the trial court erred by not 

applying the amendment to section 1385 that went into effect on January 1, 2022. (Stats. 

2021, ch. 721, § 1.) With this amendment to section 1385, the Legislature sought to 

provide guidance to trial courts on the exercise of their discretion to dismiss sentence 

enhancements. “[S]ection 1385 now provides that the presence of one of nine 

enumerated ‘mitigating circumstances’ ‘weighs greatly in favor of dismissing the 

enhancement . . . unless the court finds that dismissal of the enhancement would 

endanger public safety.’” (People v. Walker (2022) 86 Cal.App.5th 386, 391, review 

granted March 22, 2023, S278309 (Walker).) At Simental’s resentencing, the court and 

the parties were focused on complying with the remittitur issued in Perez I and it appears 

the presence of two mitigating circumstances under section 1385, subdivision (c)(2) were

overlooked. Because the record is ambiguous as to whether the trial court made an 

informed sentencing decision to not dismiss one or more of Simental’s firearm 

enhancements under amended section 1385, we must remand for resentencing again.

Simental’s second contention is the amended abstract of judgment prepared 

after his resentencing must be corrected to reflect the nature of his kidnapping conviction. 

1

 Further statutory references are to the Penal Code unless otherwise stated.
3

We agree and direct the trial court to ensure the amended abstract of judgment prepared 

after this resentencing accurately reflects the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.

FACTUAL BACKGROUND

2

Simental along with Cristian Perez, Ivan Valenzuela Perez, and Oscar 

Valenzuela broke into an Anaheim home in the middle of the night in September 2011, 

believing F.M., who lived in the house with his family, had a stash of drugs and money.

3

 

Simental and the Valenzuela brothers were armed with AR-15 rifles. They forced 

members of F.M.’s family, including his two young daughters and his sister, into the 

master bedroom with F.M. and his wife. They bound the adults with zip ties and 

Simental ushered the children (B.M. and her sister) into the bedroom closet. Ivan 

demanded F.M. give them his money and drugs. After F.M. gave them about four 

pounds of methamphetamine, Ivan demanded F.M. give them the rest of his drugs. When 

he did not immediately do so, he was beaten and stabbed, and his family was threatened. 

Eventually, F.M. told them he had cocaine hidden in a truck parked in his 

driveway. The Valenzuela brothers escorted F.M. outside and pulled the truck into the 

garage, where they forced him to retrieve the hidden cocaine. While the Valenzuela 

2

 Because Simental’s appellate contentions do not require a full recitation of the facts, we 

provide a short summary, which is taken from the unpublished opinion in Perez I, supra, 

G056047 at pages 5–9. We granted Simental’s unopposed request for judicial notice of 

the appellate record in his prior appeal in case No. G056047. (Evid. Code, §§ 452, 

subd. (d)(1), 459.)

3

 Ivan Valenzuela Perez and Oscar Valenzuela are brothers. We refer to them jointly as 

the Valenzuela brothers and individually by their first names to avoid confusion; we 

intend no disrespect.
4

brothers were in the garage with F.M., Simental replaced one of the victim’s zip ties 

because she said it was too tight. He also checked on the children in the closet and

assured the women and children it was going to be okay and no one was going to die. 

When the Valenzuela brothers returned from the garage with F.M., the torment 

continued. Demanding more drugs from F.M., Ivan continued to beat F.M., cut both of 

F.M.’s ears, and threatened his family. Finally convinced F.M. had nothing more to give 

them, they decided to leave. They fled on foot when they saw a police car outside, and 

Simental was apprehended later that day. (Perez I, supra, G056047 at pp. 5–9.) 

II.

SIMENTAL’S CONVICTIONS AND INITIAL SENTENCE

In 2015, Simental was convicted of the following offenses: kidnapping 

F.M. to commit robbery (§ 209, subd. (b)(1) (count 4)); first degree robbery in concert 

(§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A) (count 5)); kidnapping B.M. (§ 207, 

subd. (a) (count 6)); two counts of making criminal threats (§ 422 (counts 7 & 8)); and 

first degree residential burglary (§§ 459, 460, subd. (a) (count 9)).4 The jury found 

Simental personally used a firearm in each offense. (§§ 12022.53, subd. (b) (counts 4–6); 

12022.5, subd. (a) (counts 7–9).)

Simental received a life sentence for his kidnapping to commit robbery 

conviction (count 4) plus 10 years for the firearm enhancement on this count. The trial 

court imposed a consecutive nine-year term for the robbery conviction (count 5) plus 10 

years for its firearm enhancement. The court imposed a consecutive sentence of one year 

and eight months for the kidnapping of B.M. conviction (count 6) plus three years and 

four months for the firearm enhancement on this count. The court ordered the sentences 

4

 Simental was also convicted of three counts of kidnapping for extortion (§ 209, 

subd. (a) (counts 1–3)), but the trial court, in granting Simental’s motion for a new trial, 

set aside the guilty verdicts on these counts and dismissed them and their attending 

firearm enhancements.
5

on the remaining counts to be served concurrently, imposing three-year upper terms for 

the criminal threat convictions (counts 7 & 8), a six-year upper term for the burglary 

conviction, and a 10-year firearm enhancement on each. In total, the trial court imposed 

a life sentence plus an aggregate determinate term of 34 years. 

III.

PRIOR APPEAL

Simental and his codefendants appealed from the judgment. In Perez I, a 

prior panel of this court reversed the kidnapping convictions in count 6 for instructional 

error and remanded for the prosecution to retry the charge if it chose to do so and if not, 

for the court to resentence the defendants. (Perez I, supra, G056047 at pp. 35–40, 55.) 

The panel directed the trial court to stay the defendants’ sentences for robbery (count 5) 

under section 654 and to consider the application of section 1170.91 as to Simental at the 

resentencing hearing. (Perez I, at pp. 47–48, 52–56.) The trial court was also directed to 

correct clerical errors in Perez’s abstract of judgment, including to accurately state the 

nature of his conviction in count 4 as “kidnapping to commit robbery.” (Id. at p. 55.) 

IV.

THE RESENTENCING

Upon remand, the prosecution elected not to retry count 6 and the trial court 

dismissed the charge. Simental filed a sentencing brief, arguing the trial court should 

consider his military service-connected disability of post-traumatic stress disorder 

(PTSD) under section 1170.91 when resentencing him on the counts with determinate 

terms.5 He further asserted application of section 1170.91 to the determinate terms did 

5

 Section 1170.91, subdivision (a), directs a trial court to consider a military veteran’s 

trauma and substance abuse resulting from his or her military service as a mitigating 

factor at sentencing. At the time of Simental’s resentencing hearing, section 1170.91 did 

not apply to indeterminate sentences. (§ 1170.91, former subd. (a); People v. Stewart

(2021) 66 Cal.App.5th 416, 423.)
6

not prohibit the court from considering “other sentencing issues, such as the striking of 

the gun [enhancements].” But he did not specifically refer to section 1385. He attached 

to his motion a decision from the Department of Veterans Affairs, which stated his PTSD 

“and major depressive disorder with alcohol use disorder, cannabis use disorder, cocaine 

use disorder and other stimulant use disorder (in remission)” was “directly related to [his] 

military service. [Citations.]”6 While acknowledging the serious and violent nature of 

his crimes, he asserted the trial court should consider information about his character 

apart from his participation in the offenses; with his motion, he supplied numerous 

documents showing his accomplishments and commendations in prison.

At the resentencing hearing in June 2022, consistent with our directions in 

Perez I, the trial court considered the application of section 1170.91 to Simental. The 

prosecutor asserted section 1170.91 applied only to the counts with determinate terms, 

and the prosecutor requested the court impose the same sentence as before. The trial 

court found Simental was a member of the United States military and suffers from 

service-related illnesses. The court indicated it would consider these circumstances as 

mitigating factors for the counts with determinate sentences. Neither the trial court nor 

the parties addressed the recent amendments to section 1385 at the resentencing hearing.

The trial court imposed a life sentence for the kidnapping to commit

robbery conviction (count 4) and 10 years for its firearm enhancement. As for the 

robbery conviction (count 5), the court imposed the low term of three years and 10 years 

for its firearm enhancement but stayed the punishment under section 654. On the 

remaining convictions, the court imposed low-term concurrent sentences and a 10-year 

firearm enhancement on each count: 16 months for making criminal threats (counts 7 & 

6

 According to the documentation from the Department of Veterans Affairs, Simental 

joined the Marine Corps less than a month after the terrorist attacks on September 11, 

2001 and served for four years before receiving an honorable discharge.
7

8) and two years for first degree residential burglary (count 9). Simental received a total 

sentence of life plus 10 years. He timely appealed.

DISCUSSION

I.

THE MATTER MUST BE REMANDED FOR THE TRIAL COURT TO CONSIDER WHETHER TO 

EXERCISE ITS DISCRETION UNDER SECTION 1385

Simental contends the matter must be remanded for another resentencing

hearing because the trial court did not apply recently amended section 1385 at his 

previous resentencing hearing. He asserts the trial court was required under the amended 

statute to dismiss all but one of his firearm enhancements and when the court was 

exercising its discretion as to the remaining enhancement, there was a rebuttable

presumption in favor of its dismissal based on his mental illness. (§ 1385, subd. (c)(2)(B) 

& (D).) Simental’s appellate argument is nuanced. He does not assert the trial court 

abused its discretion by making a discretionary sentencing choice and deciding not to 

dismiss the firearm enhancements. Instead, he argues the record shows the trial court did 

not exercise its discretion because the court was either unaware amended section 1385 

applied at his resentencing or the court misunderstood the scope of its discretion under 

the amended statute. 

As we explain, under amended section 1385, a trial court is obligated to 

consider certain factors when exercising its sentencing discretion—the furtherance of 

justice, the presence of mitigating circumstances, and danger to public safety. Neither the 

trial court nor the parties referenced section 1385 or these factors at Simental’s 

resentencing. Based on the record before us, we are unable to presume the trial court 

performed the analysis required by amended section 1385. Therefore, we must vacate 

Simental’s sentence and remand the matter for resentencing. 
8

A. Section 1385

Under section 1385, a trial court may dismiss an action or sentence 

enhancement or strike the enhancement or its punishment “in furtherance of justice.” 

(§ 1385, subds. (a) & (b).) Recognizing the requirement the court’s action be “‘“in 

furtherance of justice”’” is an “‘amorphous concept,’” the California Supreme Court has 

sought to elucidate general principles to guide a trial court in exercising its sentencing 

discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530–531; People 

v. Williams (1998) 17 Cal.4th 148, 160–161.) Recently, the Legislature similarly sought 

to provide the trial courts with “clear guidance on . . . when” to dismiss sentencing 

enhancements or other allegations under section 1385 by specifying circumstances for 

courts to consider in their determinations. (Sen. Rules Com., Off. of Sen. Floor 

Analyses, Sen. Bill No. 81 (2021–2022 Reg. Sess.) as amended Aug. 30, 2021, p. 5.) “In 

October 2021[,] the Legislature passed and the Governor signed Senate Bill No. 81 

(2021–2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721, § 1), which, effective 

January 1, 2022, amended section 1385 . . . .” (People v. Anderson (2023) 88 

Cal.App.5th 233, 238, review granted Apr. 19, 2023, S278786 (Anderson).)

Senate Bill 81 amended section 1385 by adding subdivision (c). (Stats. 

2021, ch. 721; People v. Mendoza (2023) 88 Cal.App.5th 287, 295.) Section 1385, 

subdivision (c) states in part: “(1) Notwithstanding any other law, the court shall dismiss 

an enhancement if it is in the furtherance of justice to do so, except if dismissal of that 

enhancement is prohibited by any initiative statute. [¶] (2) In exercising its discretion 

under this subdivision, the court shall consider and afford great weight to evidence 

offered by the defendant to prove that any of the mitigating circumstances in 

subparagraphs (A) to (I) are present. Proof of the presence of one or more of these 

circumstances weighs greatly in favor of dismissing the enhancement, unless the court 

finds that dismissal of the enhancement would endanger public safety. ‘Endanger public 
9

safety’ means there is a likelihood that the dismissal of the enhancement would result in 

physical injury or other serious danger to others.”7 

Simental argues two mitigating circumstances in the subparagraphs of 

section 1385, subdivision (c)(2), are present in his case. They are: 1) multiple 

enhancements were alleged (id., subd. (c)(2)(B)); and 2) the offense was connected to 

mental illness (id., subd. (c)(2)(D)). 

The multiple enhancements mitigating circumstance, section 1385, 

subdivision (c)(2)(B) states: “Multiple enhancements are alleged in a single case. In this 

instance, all enhancements beyond a single enhancement shall be dismissed.” Simental 

asserts because multiple firearm enhancements were alleged, the trial court was required 

under section 1385, subdivision (c)(2)(B) to dismiss all but one enhancement if the court 

found dismissal would not endanger public safety or was in the interest of justice.

Simental contends after dismissing all but one firearm enhancement, the 

trial court was then required to consider his PTSD in deciding whether to dismiss the 

remaining enhancement. Under section 1385, subdivision (c)(2)(D), proof “[t]he current 

offense is connected to mental illness” is a mitigating circumstance. The statute defines 

mental illness as a mental disorder “identified in the most recent edition of the Diagnostic 

and Statistical Manual of Mental Disorders, including . . . post-traumatic stress 

disorder . . . .” (Id., subd. (c)(5).) At his resentencing, Simental presented undisputed 

evidence he has PTSD and he argued his offenses were connected to his mental disorder. 

He asserts the court erred by failing to take his PTSD into account in deciding whether to 

strike or dismiss the firearm enhancements under amended section 1385.

7

Originally, when subdivision (c) was added to section 1385 (and at the time of 

Simental’s resentencing), the mitigating circumstances in subparagraphs (A) through (I) 

were within subdivision (c)(3). (Stats. 2021, ch. 721, § 1.) This appeared to be a 

typographical error (see People v. Sek (2022) 74 Cal.App.5th 657, 674, fn. 7), and the 

mitigating circumstances were moved to subdivision (c)(2) effective June 30, 2022.

(Stats. 2022, ch. 58, § 15.) We refer to the statute’s current version. 
10

B. Cases Interpreting Amended Section 1385

Several recent cases have interpreted the amendment to section 1385 under 

Senate Bill 81. One of the first to do so was Walker, supra, 86 Cal.App.5th 386, review 

granted, a case upon which Simental relies.8 In Walker, the Court of Appeal concluded

when there are multiple enhancements in a single case, a trial court is not required to 

dismiss all but one enhancement under section 1385, subdivision (c)(2)(B) if dismissal 

would endanger public safety. (Walker, at pp. 391, 396–398.) Other courts have reached 

the same or similar conclusion that a trial court is not required to dismiss an enhancement 

based on the mitigating circumstances in section 1385, subdivision (c)(2) if such 

dismissal would endanger public safety. (See People v. Mendoza, supra, 88 

Cal.App.5th at pp. 295–297 [interpreting § 1385, subd. (c)(2)(C) and holding 

consideration of mitigating factors is not required if court finds dismissal would endanger 

public safety]; Anderson, supra, 88 Cal.App.5th at pp. 238–240, rev. granted [addressing 

§ 1385, subd. (c)(2)(B) & (C) and concluding “a finding of danger to public safety can 

overcome the circumstances in favor of dismissal”]; People v. Lipscomb (2022) 87 

Cal.App.5th 9, 17–19 [where court finds striking the enhancement would endanger public 

safety, court need not consider mitigating circumstance in § 1385, subd. (c)(2)(C)].)

In Walker, the Court of Appeal also addressed the interplay of the language 

in subdivisions (c)(1) and (c)(2) of section 1385. (Walker, supra, 86 Cal.App.5th at 

pp. 398–399, rev. granted.) Specifically, the court considered “what does it mean to 

‘greatly weigh’ a mitigating circumstance in deciding whether to dismiss an 

enhancement[.]” (Id. at p. 391.) The Walker court concluded “section 1385’s mandate to 

8

 After Simental filed his appellate briefs, the California Supreme Court granted review 

in Walker on the following issue: “Does the amendment to Penal Code section 1385, 

subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating 

circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of 

dismissing an enhancement unless the trial court finds dismissal would endanger public 

safety?” (Walker, S278309, Supreme Ct. Mins., Mar. 22, 2023, p. 338.)
11

‘afford great weight’ to mitigating circumstances erects a rebuttable presumption that 

obligates a court to dismiss the enhancement unless the court finds that dismissal of that 

enhancement—with the resultingly shorter sentence—would endanger public safety.” 

(Ibid., italics added.) 

At least one appellate court has disagreed with Walker’s conclusion the 

mitigating circumstances in section 1385, subdivision (c)(2) create a rebuttable 

presumption in favor of dismissal of a sentencing enhancement unless the court finds 

dismissal would endanger public safety. In People v. Ortiz (2023) 87 Cal.App.5th 1087, 

review granted April 12, 2023, S278894 (Ortiz), the Court of Appeal declined to follow 

Walker’s reading of section 1385. (Ortiz, at p. 1098.) The Ortiz court explained “the 

ultimate question before the trial court remains whether it is in the furtherance of justice 

to dismiss an enhancement.” (Ibid.) “Interpreting the statute, as the Walker court does 

[citation], to require the trial court to dismiss an enhancement absent a finding that 

dismissal would endanger public safety would divest the trial court of its ultimate 

discretion under the statute to determine what is in furtherance of justice, considering all 

relevant factors.” (Ibid.) After reviewing the legislative history of Senate Bill 81, the 

Ortiz court concluded, “[t]he language of section 1385[, subdivision] (c)(2) as ultimately 

enacted also reflects a legislative recognition that a trial court’s exercise of sentencing 

discretion involves more than a strictly binary weighing of mitigation against public 

safety.” (Ortiz, at p. 1097.) Similarly, after reviewing the language in section 1385, 

subdivision (c)(1) and (c)(2), the Court of Appeal in Anderson, supra, 

88 Cal.App.5th 233, concluded these subdivisions, when read together, establish 

“dismissal shall occur but only if, in exercising its discretion and giving great weight to 

certain factors, the court finds dismissal is in the interests of justice or would not 

endanger public safety.” (Anderson, at p. 240.) 

The California Supreme Court will ultimately decide the breadth of a trial 

court’s discretion under amended section 1385, and it is not necessary for us to resolve 
12

the issue here. But what we can take away from the plain language of section 1385 and 

the cases interpreting it is when one or more mitigating circumstances are present, the 

record should reflect the sentencing court was aware of its discretionary powers under the 

amended statute. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [“court which is 

unaware of the scope of its discretionary powers” cannot exercise “‘informed 

discretion’”].) 

C. The Appellate Record is Ambiguous as to Whether the Trial Court Considered 

Dismissal of any Enhancements Under Amended Section 1385

Here, despite the presence of two mitigating circumstances under 

section 1385, subdivision (c)(2), the trial court did not indicate it had analyzed whether 

dismissal of one or more of Simental’s firearm enhancements would danger public safety

or whether dismissal was in the furtherance of justice. On appeal, both parties agree 

amended section 1385 applied at the resentencing hearing, but they disagree as to 

whether the trial court considered the amended statute. Simental argues the trial court’s 

imposition of the firearm enhancements in the absence of a finding their dismissal would 

endanger public safety evidences the court either did not understand the amended version 

of section 1385 applied at the resentencing hearing or did not understand the scope of its 

discretion under the amended statute. He requests we remand the matter to the trial court 

so it can exercise its discretion under the amended statute. 

The Attorney General argues remand is unnecessary because we must 

presume the trial court knew and correctly applied statutory and case law at Simental’s 

resentencing and error cannot be assumed from a “silent record.” (People v. Gutierrez 

(2009) 174 Cal.App.4th 515, 527.) In response to the Attorney General’s argument, 

Simental contends the record is not silent but instead affirmatively shows the trial court 

failed to apply section 1385 as amended. 
13

The record of the resentencing hearing shows the trial court and the parties 

were focused on application of section 1170.91, based on the Perez I remittitur. The 

parties did not address section 1385, despite the presence of two mitigating circumstances 

listed in section 1385, subdivision (c)(2). In his sentencing brief, Simental presented 

evidence and argument his current offenses were connected to his PTSD. While he 

argued this evidence was a mitigating factor under section 1170.91, he made no reference 

to section 1385. At the resentencing hearing, the prosecutor focused on how 

section 1170.91 applied to the court’s sentencing discretion on the substantive counts 

with determinate terms. The prosecutor did not refer to section 1385 and did not argue 

dismissal of one or more of the firearm enhancements would endanger public safety. The 

trial court found Simental suffered from PTSD but only took it into account as a 

mitigating factor under section 1170.91, specifically limiting its application to the 

determinate counts. The trial court made no reference to section 1385. 

Nothing in our record supports an inference the trial court realized the

relevance of Simental’s PTSD to its sentencing discretion under the newly amended 

section 1385 or that the court undertook any analysis section 1385 now requires. Thus, 

“the record is at the very least ambiguous as to whether the court understood its 

obligation to consider” the mitigating circumstances identified in section 1385, 

subdivision (c)(2), before making the discretionary sentencing decision as to whether to 

dismiss or strike one or more of Simental’s firearm enhancements. (People v. Ochoa

(2020) 53 Cal.App.5th 841 [addressing § 190.5, subd. (b)].) 

We find People v. Panozo (2021) 59 Cal.App.5th 825 (Panozo) instructive. 

In Panozo, the defendant filed a sentencing memorandum requesting the court grant him 

probation and claiming his military service-related PTSD “‘partially led him to where he 

[was.]’” (Id. at p. 829.) At sentencing, defendant’s counsel argued his crimes were 

connected to his military service and warranted probation or imposition of a low-term 

sentence. (Id. at pp. 837–838.) However, defense counsel did not reference section 
14

1170.9 or 1170.91 and did not suggest the court was obligated to consider the defendant’s 

service-related PTSD as a mitigating factor under these statutes. (Id. at p. 838.) Nor did 

the prosecutor reference these statutes in the prosecution’s sentencing brief. Instead, the 

prosecutor argued the defendant was presumptively ineligible for probation. (Id. at 

pp. 830, 838.) The trial court denied probation and imposed the middle term after finding 

the aggravating circumstances outweighed the mitigating ones. (Id. at p. 831.) The 

court’s comments at sentencing did not reveal an awareness of its obligations under 

sections 1170.9 and 1170.91. (Id. at p. 838.) 

In Panozo, the Court of Appeal found the record was, at a minimum,

ambiguous as to whether the trial court was aware of its obligations under these statutes 

in exercising its sentencing discretion and therefore remand was required. (Panozo, 

supra, 59 Cal.App.5th at pp. 837, 840.) The trial court had been presented with

uncontested evidence of the defendant’s service-related PTSD, but the record did not 

show “the court appreciated it was required to consider his service-related PTSD as a 

mitigating factor” at sentencing. (Id. at p. 838.) Given the record before it, the Court of 

Appeal was unable to rely on the presumption the sentencing court had “acted in 

accordance with legitimate sentencing objectives [citations].” (Id. at p. 839.)

We are similarly constrained by our appellate record here. We recognize as 

an appellate court, “we presume that the trial court followed established law and thus 

properly exercised its discretion in sentencing a criminal defendant.” (People v. 

Weddington (2016) 246 Cal.App.4th 468, 492.) But based on our record, we cannot rely 

on this presumption. Our appellate record is devoid of evidence the trial court considered 

public safety or furtherance of justice under recently amended section 1385. On this 

record, we cannot say it is clear the trial court recognized the new parameters on its 

discretion under subdivision (c) of section 1385 and declined to exercise its discretion to 

dismiss one or more of the firearm enhancements. “In the face of such an ambiguous 

record, it is appropriate to remand the matter to the trial court to consider the matter 
15

under the correct standard, to the extent it has not already done so.” (People v. Lua

(2017) 10 Cal.App.5th 1004, 1021.)9 

II.

THE AMENDED ABSTRACT OF JUDGMENT MUST BE CORRECTED

Simental contends the amended abstract of judgment for his indeterminate 

prison commitment erroneously states he was convicted in count 4 of “Kidnapping to 

commit robbery, rape, oral copulation” and must be corrected to reflect he was convicted 

of “kidnapping to commit robbery.” The Attorney General does not object to correction 

of the amended abstract of judgment. We agree the amended abstract of judgment must 

be corrected to conform to the judgment. 

We note this has been a reoccurring issue in this case. In Perez I, we 

directed the trial court to correct the same error in a codefendant’s abstract of judgment. 

(Perez I, supra, G056047 at p. 56.) At resentencing, the trial court stated the abstracts of 

judgment for Simental and his co-defendants should reflect convictions for kidnapping to 

commit robbery and should not include the “‘rape or oral copulation’” language. Despite 

the trial court’s clear directives, the amended abstract of judgment still misstates the 

nature of Simental’s conviction in count 4. We direct the trial court to correct the 

amended abstract of judgment for Simental’s indeterminate prison commitment to 

describe his conviction in count 4 as “kidnapping to commit robbery.” (See People v. 

Mitchell (2001) 26 Cal.4th 181, 185 [appellate court has inherent authority to order 

correction of abstract of judgment that does not accurately reflect the judgment]; People 

v. Phung (2018) 25 Cal.App.5th 741, 761 [ordering correction of defendant’s abstract of 

judgment to accurately reflect his conviction].)

9 We express no opinion as to how the trial court should exercise its discretion under 

amended section 1385.
16

In reviewing Simental’s amended abstracts of judgment, we noted 

additional clerical errors that must be corrected. First, the trial court imposed the low 

term of three years on Simental’s robbery conviction in count 5 and stayed this 

punishment under section 654. The amended abstract of judgment for Simental’s 

determinate prison commitment inaccurately states the court imposed the upper term on 

this count. Thus, the amended abstract of judgment for Simental’s determinate prison 

commitment must be corrected to reflect imposition of the low term on count 5.

Second, the record shows the trial court waived the $40 court operations 

assessment (§ 1465.8) and the $30 criminal conviction assessment (Gov. Code, § 70373)

per convicted count. However, both the indeterminate and determinate abstracts of 

judgment state the court imposed these assessments. Therefore, the amended abstracts of 

judgment must be corrected to accurately reflect the court waived these assessments. 

Thus, the trial court is directed to prepare amended abstracts of judgment 

reflecting: (1) Simental was convicted of kidnapping to commit robbery in count 4; 

(2) the low term was imposed on count 5; and (3) the court waived the $40 court 

operations assessment (§ 1465.8) and the $30 criminal conviction assessment (Gov. 

Code, § 70373). Given the several errors in the preparation of the abstracts of judgment, 

we request the trial court personally ensure the abstracts of judgment are amended to 

accurately reflect the judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.) 

 

DISPOSITION

The matter is remanded for resentencing to allow the trial court to exercise 

its discretion under all relevant sentencing statutes, including amended section 1385. 

Upon resentencing Simental, the trial court is directed to prepare amended abstracts of 

judgment accurately reflecting the court’s judgment. The trial court is further directed to 
17

forward certified copies of the amended abstracts of judgment to the Department of 

Corrections and Rehabilitation. In all other respects, the judgment is affirmed. 

MOTOIKE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.