Filed 1/26/24 P. v. Ferrell CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMUEL FERRELL,

Defendant and Appellant.

B320625

Los Angeles County

Super. Ct. No. MA081838-01

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Robert G. Chu, Judge. Affirmed.

Katja M. Grosch, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Ryan M. Smith, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

Samuel Ferrell challenges the sufficiency of the evidence to 

support his conviction for assault with a semiautomatic weapon 

(Pen. Code,1 § 245, subd. (b)). He also contends the trial court 

erred by imposing upper term sentences based on factors not 

found true by a jury or admitted by him and erred by failing to 

dismiss the section 12022.5 enhancement. We affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Two shootings took place in the parking lot of the Sahara 

Motel in Lancaster on the evening of August 3, 2021. 

Surveillance video from the first shooting captured a white Kia 

parking in the lot. A Mercedes then entered the parking lot and 

parked two car lengths away from the Kia. Three men emerged 

from the Mercedes and appeared to be looking at a car between 

the Kia and the Mercedes while they talked. A man stepped out 

of the Kia’s passenger seat, in close proximity to the three men, 

and exchanged words with them. The man re-entered the Kia 

and the others walked back toward the Mercedes. As the Kia 

drove away, the video captured three muzzle flashes of a firearm 

being fired from the Kia’s passenger side. The three men ducked 

behind the Mercedes and then fired back.

The video from the second shooting, approximately two 

hours later, showed a white car, a black sport utility vehicle, and 

a white Kia arriving at the motel and backing into parking 

spaces. A man wearing a hoodie sweatshirt walked into the 

parking lot. His right arm or hand was in his sweatshirt, pocket, 

1 Undesignated statutory references are to the Penal Code.
3

or waistband. Two other men approached from the same 

direction.

The Kia began to move, and immediately shots were fired 

out of the Kia through its windshield. The man in the hoodie 

ducked and then shot twice at the Kia as it drove away. The man

fled, and the black sport utility vehicle and the white car left the 

parking lot.

Deputies found shell casings, bullet fragments, and several

vehicles with bullet holes in the parking lot. They recovered 

many shell casings from the parking lot.

A. Lessier Interview

One week later deputies interviewed Ferrell’s girlfriend 

Mikayle Lessier. Lessier confirmed she owned the white Kia and 

she had been present for the shootings. She said she drove 

Ferrell to the Sahara Motel to go to the room of his friend Ricky.

Ferrell argued with a man in the parking lot. Frightened, 

Lessier told Ferrell she was leaving. Ferrell got back into the 

Kia, and as Lessier began to drive away, he leaned out the 

passenger window and fired a gun two or three times. Lessier 

said people fired back.

Lessier told the deputies she was screaming and crying; she 

wanted to drop Ferrell off, and they began to argue. They went 

to Ferrell’s grandmother’s house, where Ferrell argued with his 

grandmother. They drove to a gas station and met up with Ricky 

and his sister. Together they had three cars: the Kia, a Mercedes 

truck belonging to Ricky’s sister, and a white car.

According to Lessier, she wanted to go home, but instead 

she drove Ferrell back to the motel after Ricky’s sister refused to 

give Ferrell a ride. As they sat in the Kia in the parking lot, 

Lessier saw a man walking toward her car; Ferrell, using his 
4

phone, did not notice him. Lessier yelled and began to drive

away. As she drove, Ferrell and the man exchanged gunfire. 

Ferrell shot through the Kia’s windshield. A deputy and Lessier 

discussed Ferrell’s gun:

Q. “What kind of gun was it?”

A. “I think it was black. I don’t know exactly 

[unintelligible].”

Q. “OK. Handgun? OK. Do you know the difference 

between like a semi-automatic or like a cowboy gun? Like the 

revolver? You know [the] type like this?”

A. “I don’t think it was a cowboy gun.”

Q. “No wheels. OK. So it look like this?”

A. “It was black.”

Q. “It was a handgun, right?”

A. “Yeah.”

Q. “OK.”

A. “It was black.”

Q. “Shell casings come out? The little . . . brass things?”

A. “I wanna say yeah but . . . I was just driving.”

B. Charges and Trial

By amended information, Ferrell was charged in counts 1 

and 2 with attempted murder (§ 664/187, subd. (a)), in count 3 

with assault with a semiautomatic firearm (§ 245, subd. (b)), in 

count 4 with possession of a firearm by a felon (§ 29800, 

subd. (a)(1)), and in counts 5 and 6, with discharging a firearm 

with gross negligence (§ 246.3, subd. (a)). For counts 1, 2, and 3, 

it was alleged that Ferrell personally used a firearm (§ 12022.5, 

subd. (a)). For counts 1 through 4, it was alleged that Ferrell had 

a prior serious and/or violent felony conviction within the 

meaning of the “Three Strikes” law (§§ 667, subds. (b)-(j), 
5

1170.12). The amended information alleged numerous 

aggravating circumstances listed in California Rules of Court, 

rule 4.421.

At trial, Lessier testified she was in a relationship with 

Ferrell and did not want to testify. She testified that on August 

3, 2021, she drove Ferrell to the Sahara Motel, where he was 

supposed to meet a friend and retrieve some possessions. They 

parked the Kia and waited. Ferrell’s friend did not appear, and,

eventually, Lessier needed to leave.

Lessier testified three men she did not recognize

approached the area of her car. On direct examination, she 

testified Ferrell spoke with them briefly and peacefully. On 

cross-examination, Lessier testified it seemed to her the three 

men were behaving confrontationally but she did not see 

anything in their hands. On redirect, she testified she did not 

know whether the tone of the exchange between the three men 

and Ferrell was casual or aggressive because she was on her 

phone at the time.

Lessier testified she drove away, and, as she did, she heard 

bullets hitting her car. She did not see Ferrell fire a gun. Lessier 

was terrified.

Later they returned to the motel because Ferrell still 

wanted to retrieve his possessions. Lessier thought the people 

who shot at them had probably left.

Lessier testified a white car and a black car went with

them to the motel. According to Lessier, they were about to leave

when a man dressed in black and wearing a ski mask, with his 

hands on his belt, started to walk toward the front of Lessier’s 

car. Ferrell did not see the man approaching the car because he 
6

was texting his friend. Two other men approached the car as 

well.

According to Lessier, she panicked and drove away. The 

men shot at her car multiple times. She heard gunshots, but she 

did not know if they came from inside or outside her car. She did 

not see Ferrell pull out a gun. Lessier’s windshield was fine after 

the first shooting, but after the second shooting, she saw a hole in 

the middle of the front windshield.

Lessier testified she spoke with deputies about a week after 

the shootings. She denied telling them that Ferrell had an 

argument with the men who approached the car before the first 

shooting. She denied saying Ferrell shot a gun from the 

passenger side of the car. She denied saying Ferrell shot his gun 

through the windshield of her car during the second incident. 

She did not recall whether she said she saw Ferrell with a gun 

because the deputies were threatening her life and she was 

scared. Lessier said the deputies threatened her with arrest and 

the loss of her child if they did not tell them what they wanted to 

hear, and because she was being threatened, she did not recall 

many things that were said at the police station.

Lessier acknowledged she had previously testified that 

during the first incident she heard gunshots but did not know if 

Ferrell actually shot a gun; she heard shots hitting her car but 

did not hear anything coming from the inside of her car. Lessier 

had also testified she did not know how her windshield was 

damaged.

Prior to the verdict, Ferrell waived his right to a jury trial 

and elected a court trial on his prior convictions and on 

aggravating and mitigating factors for sentencing.
7

Ferrell was acquitted of both attempted murder counts and 

convicted on the remaining charges. The jury found true the 

allegation that Ferrell personally used a firearm in count 3. The 

court found Ferrell had suffered five prior convictions, one of 

which was a strike offense within the meaning of the Three 

Strikes Law. The trial court denied Ferrell’s motion to strike his 

strike prior. The court sentenced him to the upper term of 9 

years on count 3, doubled pursuant to the Three Strikes Law, and 

it imposed and stayed sentences on the other offenses pursuant to 

section 654. The court also sentenced Ferrell to 10 consecutive 

years for the personal use of a firearm, for a total sentence of 

28 years in state prison. Ferrell appeals.

DISCUSSION

I. Sufficiency of the Evidence on Count 3

Ferrell contends the evidence was insufficient to support 

his conviction on count 3, assault with a semiautomatic weapon. 

“ ‘ “When considering a challenge to the sufficiency of the 

evidence to support a conviction, we review the entire record in 

the light most favorable to the judgment to determine whether it 

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt.” [Citation.] We determine “whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” [Citation.] In so doing, a 

reviewing court “presumes in support of the judgment the 

existence of every fact the trier could reasonably deduce from the 

evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1212–
8

1213.) We conclude the evidence was sufficient to support the 

conviction on count 3.

Ferrell claims “the prosecution did not introduce any 

evidence whatsoever that could support a finding that the 

firearm used by appellant was a semiautomatic,” but this is not 

the case. In the recorded interview of Lessier played for the jury 

at trial, when the deputy asked if she knew the difference 

between a semiautomatic gun and a “cowboy gun,” which he 

indicated was “[l]ike [a] revolver,” Lessier said she did not think 

Ferrell’s gun was a cowboy gun. From this it may be inferred 

Ferrell had the other type of gun the deputy mentioned, a 

semiautomatic gun. To confirm this, the deputy asked if shell 

casings popped out of the gun when it fired, and Lessier gave a

positive, though equivocal, answer. Viewing Lessier’s testimony 

in the light most favorable to the prosecution, as we must, a jury 

could reasonably conclude beyond a reasonable doubt the gun 

Ferrell fired was semiautomatic.

Citing People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 

202, fn. 2, Ferrell asserts that “[e]vidence sufficient to support a 

conviction for use of a semiautomatic firearm includes a 

photograph of the weapon and bullet casings found at the scene.” 

As the appellant in Cruz-Partida did not challenge the sufficiency 

of the evidence that his weapon was semiautomatic (id. at 

p. 206), in no way does that decision establish what evidence is 

necessary or sufficient to establish a weapon was semiautomatic. 

Cases are not authority for propositions not considered. (People 

v. Johnson (2012) 53 Cal.4th 519, 528.)
9

II. Imposition of Upper Term Sentences

Ferrell argues the trial court impermissibly sentenced him 

to the upper term sentences on count 3 and the firearm 

enhancement. We disagree.

A. Sentencing

Before sentencing, Ferrell filed a motion to dismiss his 

prior strike and a sentencing memorandum under a single cover. 

In the sentencing memorandum, Ferrell set forth the law that the 

court may impose an upper term sentence only when 

circumstances in aggravation of the crime justify a term of 

imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the 

defendant or found true beyond a reasonable doubt by a jury or 

the judge. (§ 1170, subd. (b)(2).) Ferrell evaluated the 

applicability of various aggravating and mitigating factors set 

forth in the California Rules of Court, conceding the applicability 

of various aggravating factors and arguing the presence of 

multiple mitigating factors.

On May 25, 2022, the court found true five prior offenses 

alleged in the amended information and concluded one 

constituted a strike. The court proceeded to sentencing and 

Ferrell informed the court that he had been seen in an outpatient 

clinic for mental health issues and had been taking medication 

for depression; documentation of this was provided to the People. 

Ferrell’s mother, in addition to describing Ferrell’s good 

character, his desire to change, and his new child, advised the 

court Ferrell suffered “really bad head trauma” from a fall when 

he was a baby. She reported Ferrell had “problems” as a result: 
10

his head swelled, he had “swelling on his brain,” and he suffered 

nightmares as a child.

The People argued for the maximum sentence. They

argued Ferrell posed a great danger to the community, reviewed

the convictions found true, which featured several crimes 

committed shortly after Ferrell was paroled or released from 

custody, and argued it was “clear that not long after he is 

released he commits additional crimes.” The People argued that 

in the current offenses, Ferrell had shot at multiple people, 

multiple times; he endangered not only his victims but 

bystanders and Lessier; and he attempted to dissuade Lessier

from testifying. They argued Ferrell lacked remorse, endangered 

the community and his loved ones, and believed the law did not 

apply to him. The People acknowledged Ferrell’s youth at the 

time of the offense (31 years old), his young child and his loving 

family, but argued no mitigating factor warranted anything less 

than the maximum sentence.

The court said it had reviewed the court file, the probation 

report,2 Ferrell’s criminal history, and Ferrell’s sentencing 

memorandum, which it praised for its detail. The court then 

spoke at length, frequently without distinguishing between 

factors relevant to the motion to strike Ferrell’s strike prior 

versus aggravators and mitigators.3 The court said it had 

2 The parties stipulated the court could use the probation 

report for sentencing.

3 “Factors in aggravation and mitigation listed in the 

California Rules of Court may be relevant to the court’s inquiry” 

when considering a request to strike a prior strike. (People v. 

Dryden (2021) 60 Cal.App.5th 1007, 1029.)
11

considered the objectives of sentencing and whether Ferrell had a 

record of committing similar crimes or crimes of violence. It 

discussed similarities between the instant case and Ferrell’s prior 

strike case and mentioned his prior convictions for possession of 

firearms. The court said, “It appears [Ferrell] is prone to violent 

behavior making him a threat to the safety and wellbeing of 

others.”

The court said it did not believe Ferrell participated in the 

instant offense due to provocation, coercion, or duress not 

amounting to a defense. The court noted that in the first 

shooting, Ferrell shot first. While the court acknowledged the 

defense view that Ferrell acted in self-defense in the second 

incident, it was not persuaded because Ferrell chose to return to 

the location after the first incident, bringing a firearm and 

friends, and he again chose to fire first.

The court said Ferrell was not young and without a

significant criminal record. Listing Ferrell’s five prior offenses,

the court said, “The defendant has shown no signs of ceasing his 

criminal behavior. Instead it appears that his behavior is 

increasing in severity and seriousness.”

The court said it had “thought about the nature, 

seriousness and the circumstances of this crime in this case.” 

Noting Ferrell had chosen to fire his gun in an area with 

bystanders, voluntarily returned to the location, and again fired

his gun with conscious disregard for the safety of others, the 

court found he would be a danger to others if he were not in 

prison.

The court acknowledged Ferrell’s strike was nine years old 

but observed Ferrell had continued to commit crimes since then. 

It expressly found Ferrell had “a long and continuous criminal 
12

career,” only interrupted by incarceration, and his crimes 

increased in seriousness and severity throughout the years. 

It ruled, “Based on all the information that the court has been 

provided and based on the same reasoning the court has just 

stated, the court is not satisfied on how dismissing the 

defendant’s prior strike allegation would be in the interest of 

justice and; therefore, defense motion to strike his prior strike 

will be denied.”

The court found the circumstances in aggravation “far 

outweigh any mitigation.” Based on “the court’s discretion, based 

on the nature of the case, defendant’s criminal history, and the 

reasonings the court has just cited,” the court imposed upper

term sentences on count 3 and the associated enhancement.

B. Applicable Law

Prior to January 1, 2022, former section 1170, 

subdivision (b) provided that when a defendant was sentenced to 

prison for a crime with a sentencing triad, the choice of the 

appropriate term rested within the sound discretion of the trial 

court. Effective January 1, 2022, Senate Bill No. 567 (2021–2022 

Reg. Sess.) (Senate Bill No. 567) amended former section 1170 to 

provide that a court “shall, in its sound discretion, order 

imposition of a sentence not to exceed the middle term, except as 

otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1); Stats. 

2021, ch. 731, § 1.3.) In turn, subdivision (b)(2) of the statute 

provides that “[t]he court may impose a sentence exceeding the 

middle term only when there are circumstances in aggravation of 

the crime that justify the imposition of a term of imprisonment 

exceeding the middle term, and the facts underlying those 

circumstances have been stipulated to by the defendant, or have 

been found true beyond a reasonable doubt at trial.” (§ 1170, 
13

subd. (b)(2).) Thus, the legislation makes the middle term the 

presumptive sentence unless aggravating circumstances 

admitted or proven beyond a reasonable doubt justify the upper 

term. (People v. Fox (2023) 90 Cal.App.5th 826, 830–831.)

C. Briefing History

Ferrell’s opening brief includes an argument entitled, “The 

Trial Court Erred in Imposing the High Term Based on Factors 

Neither Found True by the Jury Nor Admitted by Appellant.” 

The parties’ briefing on this issue can only be described as

deficient. First, neither Ferrell nor the People disclosed that 

Ferrell had waived the right to a jury trial and selected a court 

trial on aggravating and mitigating factors. Second, the People 

appeared unaware Ferrell had been sentenced after the effective 

date of Senate Bill No. 567; their arguments were founded on the

inaccurate premise that Ferrell had been sentenced under an 

earlier sentencing scheme.

We therefore requested supplemental briefing on the 

following question: “Recognizing that appellant was sentenced in 

May 2022, after the effective date of the amendments to Penal 

Code section 1170 made by Senate Bill No. 567 (Stats. 2021, 

ch. 731, § 1.3), what is the effect of appellant’s express waiver of a 

jury trial on aggravating factors (Reporter’s transcript, p. 204) on 

his argument that the imposition of the upper term sentence 

violated Penal Code section 1170, subdivision (b)(2) because the 

factors relied upon by the trial court to justify the upper term 

were neither admitted by appellant nor found true by a jury?”

The People did not respond. In supplemental briefing, 

Ferrell argued that although he waived a jury trial on 

aggravating factors, the trial court relied on impermissible 
14

factors in imposing the upper term because he had the right to a 

court trial with findings made beyond a reasonable doubt.

D. Ferrell’s Contentions

1. Initial Briefing

It is difficult to discern arguments from the opening brief 

because Ferrell’s assertions are general and conclusory, he does 

not acknowledge his waiver of a jury trial, and although there are 

occasional references to proving aggravating factors to the jury or 

the court, he generally appears to argue that the absence of a 

jury trial requires the sentence to be vacated, as in his contention 

that the purported error was not harmless because “it cannot be 

concluded with sufficient certainty that some of the aggravating 

factors on which the trial court relied would have been found true 

if submitted to the jury.” Ferrell then admitted in his 

supplemental brief that he waived his right to a jury trial on 

aggravating circumstances. Therefore, we do not address 

contentions that the aggravators should have been tried to a jury.

To the extent we can identify other coherent arguments from 

Ferrell’s briefing, we address them below.

Ferrell contends the trial court relied on impermissible 

factors in imposing the upper term. He asserts the court relied 

on four factors to impose the upper term: (1) five priors, including 

one strike, and the true finding on the firearm enhancement; 

(2) Ferrell was not acting in self-defense or in response to 

provocation in either incident; (3) Ferrell had a lengthy and 

continuous criminal career and his criminal behavior appeared to 

be increasing in seriousness; and (4) Ferrell was a danger to 

others. Ferrell acknowledges that pursuant to section 1170, 

subdivision (b)(3), the court could properly rely on his prior 
15

convictions as a basis for imposing the upper terms. He then lists

in a brief, conclusory manner what appear to be four alleged 

errors.

First, Ferrell argues the court’s comment that he was not 

acting in self-defense or in response to provocation was “baseless” 

because the jury had been given a self-defense instruction and 

found him not guilty of two counts of attempted murder. We 

reject this argument. The acquittals for attempted murder 

related to the first shooting, but the court imposed the upper 

term sentences on a count and enhancement that arose from the 

second shooting. We therefore discern no way in which the selfdefense instruction and acquittals on attempted murder charges 

has any bearing on the conviction and enhancement upon which 

Ferrell was sentenced, and his single-sentence argument neither 

acknowledges that the acquittals pertained to a different incident 

nor provides reasoned argument as to the relevance of the 

acquittals to the upper term sentences.4

Next, Ferrell argues that his “arrests and other convictions, 

not found true, categorically cannot be used to impose a high 

term.” This argument, presented in a single sentence and 

supported by neither reasoned argument nor citation to legal 

authority, fails to demonstrate error. The court found true five 

4 The court did mention both shootings in its remarks, but it 

clearly stated that it was considering whether Ferrell 

participated in “this crime”—that is, count 3, upon which he was 

sentenced—in self-defense, and the court’s reference to the first 

shooting was very brief, in contrast to its more detailed 

discussion of whether Ferrell acted in self-defense in the second 

shooting.
16

prior convictions. In addressing altogether the factors relevant to 

its decision not to strike a prior strike under People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497 (Romero) and the factors in 

aggravation and mitigation, the court discussed Ferrell’s “lengthy 

criminal history,” including his history of arrests and convictions

and the fact that his prior strike was for the same offense as that 

committed here. The court concluded Ferrell was “prone to 

violent behavior[,] making him a threat to the safety and 

wellbeing of others.” The court also found (1) Ferrell had “a long 

and continuous criminal career” that paused only when he was 

incarcerated, and (2) his crimes increased in seriousness and 

severity throughout the years. As Ferrell acknowledges, these 

findings correspond to California Rules of Court, rules 4.421(b)(1) 

(“The defendant has engaged in violent conduct that indicates a 

serious danger to society”) and 4.421(b)(2) [“The defendant’s prior 

convictions as an adult or sustained petitions in juvenile 

delinquency proceedings are numerous or of increasing 

seriousness”]).

Ferrell asserts, without explanation, argument, or citation 

to authority, that the “court’s finding that appellant’s criminal 

history was lengthy, continuous, and increasing in severity are no 

longer permissible factors to support imposition of the high 

term.” However, as noted above, California Rules of Court, rule 

4.421(b)(2) lists as a factor in aggravation that “[t]he defendant’s 

prior convictions as an adult or sustained petitions in juvenile 

delinquency proceedings are numerous or of increasing 

seriousness.”

Finally, Ferrell states, “Contrary to the trial court’s 

pronouncement, self-defense is a factor in mitigation and lack 

thereof is not a factor in aggravation.” The court said it did not 
17

believe Ferrell had participated in the crime due to provocation, 

coercion, or duress not amounting to a defense, but we find no

indication the court considered the absence of self-defense an 

aggravating factor. To the contrary, it appears the court was at 

that point in its remarks addressing possible mitigators, as it 

next considered whether Ferrell had no significant record of prior 

criminal conduct, another mitigating factor listed in California 

Rule of Court, rule 4.423.

2. Supplemental Briefing

In his supplemental briefing, Ferrell argues he was entitled 

to a court trial on each aggravating factor, “with a finding that 

they were true beyond a reasonable doubt,” and the court was 

required to “rely on factors found true beyond a reasonable doubt 

pursuant to Penal Code section 1170(b)(2).” To the extent Ferrell 

is arguing his sentence is invalid because the trial court did not 

expressly state it was employing a reasonable doubt standard, he 

has failed to present argument and legal authority to support this 

claim, and we find it to be without merit.

First, at the sentencing hearing Ferrell did not challenge 

the imposition of the upper terms on this basis or ask the trial 

court to clarify whether it was finding any or all of the 

aggravating factors it relied on true beyond a reasonable doubt. 

The forfeiture doctrine “appl[ies] to claims involving the trial 

court’s failure to properly make or articulate its discretionary 

sentencing choices.” (People v. Scott (1994) 9 Cal.4th 331, 353.) 

The court’s failure to state on the record that it was finding true 

beyond a reasonable doubt each aggravating factor it relied on in 

imposing upper terms is precisely the type of sentencing error 

that is forfeited unless raised in the trial court. (Id. at pp. 351–

353.) “Routine defects in the court’s statement of reasons are 
18

easily prevented and corrected if called to the court’s attention.”

(Id. at p. 353.)

Second, Ferrell has not identified any authority requiring 

the court to state on the record that it was finding the 

aggravating circumstances true beyond a reasonable doubt. 

Section 1170, subdivision (b)(5) requires the court only to “set 

forth on the record the facts and reasons for choosing the 

sentence imposed.” (§ 1170, subd. (b)(5).) The California Rules of 

Court provide that when, as here, “the sentencing judge is 

required to give reasons for a sentence choice, the judge must 

state in simple language the primary factor or factors that 

support the exercise of discretion. The statement need not be in 

the language of the statute or these rules.” (Cal. Rules of Court, 

rule 4.406(a).) Here, the trial court complied with these 

authorities by stating on the record the factors it relied on in 

imposing the upper terms.

Finally, “[i]n the absence of evidence to the contrary, we 

presume that the court ‘knows and applies the correct statutory 

and case law.’ ” (People v. Thomas (2011) 52 Cal.4th 336, 361.) 

The record contains no indication the trial court was unaware of 

the requirements of section 1170, subdivision (b), as amended by 

Senate Bill No. 567, effective January 1, 2022, at the sentencing 

hearing in May 2022. In fact, the record affirmatively 

demonstrates the court knew of the changes in the law, because it 

expressly advised Ferrell he had a right to a jury trial on 

aggravating factors. Thus, there is no basis for departing from 

the presumption that the court knew of and correctly applied 

section 1170, subdivision (b).
19

At the close of his supplemental briefing, Ferrell argues, 

“When the trial court imposed the high term after denying the 

appellant’s Romero motion, it added the high term was ‘based on 

the court’s discretion, based on the nature of the case, defendant’s 

criminal record and the reasoning the court has just cited.’ . . . 

However, the trial court no longer had that discretion, as it can 

only rely on factors found true beyond a reasonable doubt 

pursuant to Penal Code section 1170(b)(2). The ‘nature of the 

case’ is too vague to be an aggravating factor [under California 

Rules of Court, rule] 4.421 even if it was found beyond a 

reasonable doubt, which it was not. The only valid basis for 

imposing the high term were the priors, which were indeed found 

true.” Taking the court’s statement in isolation, Ferrell presents

it as though the court purported to have unfettered discretion to 

impose upper terms based purely on its assessment of the case. 

But when the court made this statement, immediately before 

pronouncing sentence, it had already found true Ferrell’s prior 

convictions and multiple aggravating factors, rejected several 

mitigating factors, and concluded the factors in aggravation “far 

outweigh[ed]” any factors in mitigation. Reading the sentence in 

context, we understand the court to say it had the discretion to 

select upper terms based on Ferrell’s criminal record, the 

aggravating factors it had found true pursuant to section 1170, 

subdivision (b)(2), and its conclusion that the aggravators 

outweighed any mitigators; and that, on the totality of the 

circumstances, it chose to exercise that discretion to impose

upper term sentences. (§ 1170, subd. (b)(2).) Ferrell has not 

demonstrated error.
20

III. Failure to Dismiss the Section 12022.5 Enhancement

Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021, 

ch. 721, § 1) amended section 1385 to require courts to consider 

certain enumerated factors when exercising their discretion to 

strike sentence enhancements and to afford great weight to the 

presence of mitigating circumstances listed in the statute, unless 

the court finds dismissal of the enhancement would endanger 

public safety. (§ 1385, subd. (c)(2).) One of these mitigating 

factors is, “The application of an enhancement could result in a 

sentence of over 20 years. In this instance, the enhancement 

shall be dismissed.” (Former § 1385, subd. (c)(3)(C)

5.)

Because the imposition of the upper term on the 

enhancement resulted in a total sentence in excess of 20 years, 

Ferrell argues former section 1385, subdivision (c)(3)(C) “results 

in mandatory relief: the statute says that in such an instance, 

‘the enhancement shall be dismissed.’ ” This argument has been 

rejected by numerous courts. (People v. Lipscomb (2022) 87 

Cal.App.5th 9, 17–21; People v. Renteria (2023) 96 Cal.App.5th 

1276, 1284–1291; People v. Mendoza (2023) 88 Cal.App.5th 287, 

295–297; People v. Anderson (2023) 88 Cal.App.5th 233, 239–241, 

review granted Apr. 19, 2023, S278786.) We agree with these 

decisions and reject Ferrell’s argument that dismissal was 

mandatory pursuant to section 1385 because the enhancement 

resulted in a sentence exceeding 20 years.

5 This provision was later redesignated subdivision (c)(2)(C). 

(Stats. 2022, ch. 58, § 15.)
21

In his reply brief, Ferrell acknowledges these authorities 

but claims he argued in his opening brief that “the fact that the 

enhancement made appellant’s sentence over 20 years greatly

favors dismissal.” To any extent the highly conclusory, sixsentence analysis contained in this section of the opening brief

can be construed as raising any legal argument beyond the claim 

that he is entitled to mandatory relief, it appears to be based on 

appellant’s assertion that his “Romero motion included a request 

that the [s]ection 12022.5 enhancement be stricken pursuant to 

[s]ection 1385,” but the trial court only considered dismissing the 

prior strike when ruling on the Romero motion.

In the trial court, Ferrell’s Romero motion sought only the 

dismissal of his prior strike. Even when Ferrell discussed the 

recent amendments to section 1385, he argued only that the 

mitigating factors meant “the [c]ourt should dismiss the strike 

prior.” Ferrell did not ask the court to dismiss the section 

12022.5 enhancement in the Romero motion. It was appropriate 

for the court, then, to have “only considered dismissing the strike 

prior, saying nothing about the enhancement,” as Ferrell alleges.

Ferrell did mention the enhancement in the portion of his 

post-trial pleading that constituted the sentencing memorandum. 

The record demonstrates only that the court did not explain its

reasons for not dismissing the enhancement. Section 1385, 

however, does not require the court to state its reasons when it 

does not dismiss an enhancement. (See In re Coley (2012) 

55 Cal.4th 524, 560 [“[A]lthough a trial court is required to state 

on the record its reasons for striking a prior conviction (§ 1385, 

subd. (a)), there is no similar statutory requirement of an on-therecord statement of reasons when a court declines to strike a 

prior”].)
22

Finally, Ferrell’s contention that the enhancement caused 

his sentence to exceed 20 years greatly favors its dismissal

focuses on one isolated phrase to the exclusion of the rest of the 

statutory language: section 1385 states the proof of mitigating 

circumstances “weighs greatly in favor of dismissing the 

enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety. ‘Endanger public 

safety’ means there is a likelihood that the dismissal of the 

enhancement would result in physical injury or other serious 

danger to others.” (§ 1385, subd. (c)(2), italics added.) Ferrell 

also does not consider in this context the trial court’s statements 

at sentencing that he was “a threat to the safety and wellbeing of 

others” and he would be a danger to others if he were not in 

prison. As Ferrell has not fully stated the applicable law, 

acknowledged the court’s findings, or offered an argument that 

accounts for the law in full and these facts, Ferrell has failed to 

present reasoned argument in support of his perfunctory claim. 

(People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [“We discuss 

those arguments that are sufficiently developed to be cognizable. 

To the extent defendant perfunctorily asserts other claims, 

without development . . . they are not properly made, and are 

rejected on that basis”], abrogated on other grounds by People v. 

Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
23

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.