Filed 1/26/22 P. v. Triggs CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

Plaintiff and Respondent,

v.

JOYCE TRIGGS,

Defendant and Appellant.

B307637

Los Angeles County

Super. Ct. No. BA468085

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Craig Richman, Judge. Affirmed in part, 

sentence vacated, and remanded with directions.

Pilar M. Escontrias 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, Blythe J. Leszkay and Theresa A. Patterson, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Joyce Triggs pleaded no contest to numerous offenses

related to her theft of more than $182,000 from her employer. 

The trial court sentenced her to three years and eight months 

in prison, which included a one-year enhancement under Penal 

Code section 186.11.1 On appeal, Triggs argues the court erred 

by imposing the enhancement because section 186.11 references 

another statute that was repealed in 2018. She also contends

the court erroneously believed it lacked authority to strike the 

enhancement, grant probation, or decline to impose a restitution 

fine. We agree with Triggs that the court erroneously believed it 

lacked authority to strike the enhancement and grant probation, 

but we reject her other arguments. Accordingly, we remand 

the case for resentencing and affirm the judgment in all other 

respects.

FACTUAL AND PROCEDURAL BACKGROUND

Triggs began working for TadiBrothers in 2012, and 

as part of her job she had access to its payroll system. In 2015, 

TadiBrothers hired Sara Conley to oversee the company’s 

finances. Conley audited the payroll system and discovered 

a little more than $182,000 in fraudulent payments between 

January 2013 and May 2015. The payments were made 

by TadiBrothers and a related company to a bank account 

belonging to Triggs.

Conley contacted the police, and a detective began 

investigating the payments. Triggs later sent an email to 

the detective pretending to be Conley, claiming she discovered 

the payments were actually legitimate.

1 Undesignated statutory references are to the Penal Code. 
3

When Triggs’s employer confronted her about the 

payments, she said another employee was responsible and 

had threatened her. Triggs quit her job in May 2015, and she 

told her employer her husband had died. Triggs later admitted 

her husband was alive and she was responsible for the fraudulent 

payments. She promised to pay back the money she took.

On January 2, 2018, the People filed an information 

charging Triggs with identity theft (§ 530.5, subd. (a); count 1), 

false personation for a written instrument (§ 529, subd. (a)(2); 

count 2), three counts of grand theft (§ 487, subd. (a); counts 3–5), 

and money laundering (§ 186.10, subd. (a); count 6). As to the

grand theft charges, the People further alleged that Triggs 

engaged in a related pattern of felony conduct resulting in the 

loss of more than $100,000, within the meaning of section 186.11, 

subdivision (a)(3).

On January 7, 2020, Triggs pleaded no contest to the 

charges and admitted the section 186.11 allegation. The court 

postponed sentencing because Triggs agreed to make scheduled 

restitution payments to her employer. Specifically, she agreed 

to make a $14,000 payment within a week, an $11,000 payment 

by June, and $2,000 payments each month beginning in 

February. The court noted if Triggs “fall[s] short on restitution, 

this is clearly a [state] prison case” and it would not “hesitate 

to send her to prison . . . .”

Triggs had not made any payments to her employer 

as of early February 2020. On February 13, 2020, the employer 

received an envelope from Triggs, but it was empty. It appears 

Triggs claimed she mailed a check, but someone took it out 

of the envelope before it got to the employer. The prosecutor 

believed Triggs was lying.
4

The court held a sentencing hearing over the course of 

two days in September 2020. By that time, Triggs had paid 

her employer $16,000 in restitution. Triggs also presented 

evidence that she has a compromised immune system due to 

a skin condition. She asked the court to consider placing her 

on house arrest or granting her temporary release because of 

the COVID-19 pandemic.

Triggs’s cousin told the court Triggs was raised by an 

aunt and had a traumatic childhood, but she declined to provide 

details. She also said there was an excuse for Triggs’s behavior 

and she needed help. The cousin suggested she would need 

more time to produce evidence proving Triggs’s problems.

The probation report showed Triggs has an extensive 

criminal history. Between 1998 and 2016, she was convicted 

of petty theft (§ 484, subd. (a)), grand theft (§ 487, subd. (a)), 

check fraud (§ 476), burglary (§ 459), and embezzlement (§ 503). 

At the time of the sentencing hearing, she was on probation 

for the embezzlement offense.

The trial court found the circumstances in aggravation 

included that the victims were vulnerable, Triggs interfered with 

the judicial process by committing frauds and lying, her crimes 

required planning, sophistication, and professionalism, she 

took advantage of a position of trust, her prior convictions were 

numerous and of increasing seriousness, and she served a prior 

prison term. In mitigation, the court found Triggs voluntarily 

acknowledged wrongdoing at an early stage in the proceedings 

and her prior performance on probation had been satisfactory. 

It noted there were many unanswered questions regarding 

other potential circumstances in mitigation.
5

The court sentenced Triggs to an aggregate term of three 

years and eight months in prison, consisting of the midterm 

of two years on count 3, eight months on count 1 (one-third the 

midterm), and one year for the section 186.11 enhancement. 

The court imposed the midterm of two years on counts 2, 4, 

and 5, which it ran concurrently with the sentence on count 3. 

On count 6, the court imposed the midterm of two years, which 

it stayed under section 654. The court ordered Triggs to pay 

$166,461.84 in victim restitution, and it imposed a $300 

restitution fine (§ 1202.4, subd. (b)).

DISCUSSION

1. The trial court properly imposed the section 186.11 

enhancement

Triggs argues the trial court lacked authority to impose 

a sentencing enhancement under section 186.11, subdivision 

(a)(3) because the statute references section 12022.6, which was 

repealed before her case was complete. The Attorney General 

responds that section 186.11, subdivision (a)(3) continues to 

be effective because the Legislature intended it to refer to the 

specific version of section 12022.6 in effect when it was enacted.

We need not decide whether the repeal of section 12022.6 

implicitly repealed section 186.11, subdivision (a)(3). Triggs 

committed her crimes while section 12022.6 was in effect, and, 

for the reasons discussed below, we conclude its repeal was not 

retroactive. Any implicit repeal of section 186.11, subdivision 

(a)(3), therefore, would also not be retroactive. Accordingly, 

even if section 186.11, subdivision (a)(3) was repealed before 

Triggs’s case was complete, the trial court could nevertheless 

impose the enhancement on her.
6

a. Relevant law

Under section 186.11, “[a]ny person who commits two 

or more related felonies, a material element of which is fraud or 

embezzlement, which involve a pattern of related felony conduct” 

that results in the loss of more than $100,000 is subject to a 

sentencing enhancement. (§ 186.11, subd. (a)(1).) If the loss 

is between $100,000 and $500,000, “the additional term of 

punishment shall be the term specified in paragraph (1) or (2) 

of subdivision (a) of Section 12022.6.” (§ 186.11, subd. (a)(3).) 

The version of section 12022.62 in effect when Triggs 

committed her crimes provided a sentencing enhancement when 

a person intentionally “takes, damages, or destroys any property 

in the commission or attempted commission of a felony . . . .” 

(§ 12022.6, subd. (a).) If the loss exceeded $65,000, the court 

was required to impose an additional one-year term. (Id., subd.

(a)(1).) If the loss exceeded $200,000, the court was required 

to impose an additional two-year term. (Id., subd. (a)(2).)

The Legislature originally enacted section 12022.6 in 1977, 

and over the years it amended the statute several times to 

increase the threshold loss requirements. (See People v. Nasalga

(1996) 12 Cal.4th 784, 794 (Nasalga); People v. Medeiros (2020) 

46 Cal.App.5th 1142, 1153 (Medeiros).) The Legislature also 

added a sunset provision to the statute in 1990, which it extended 

in 2007. (Medeiros, at p. 1153.) The amended sunset provision 

stated “[i]t is the intent of the Legislature that the provisions 

of this section be reviewed within 10 years to consider the effects 

of inflation on the additional terms imposed. For that reason 

2 For the sake of simplicity, we refer to this version of the 

statute as section 12022.6.
7

this section shall remain in effect only until January 1, 2018, and

as of that date is repealed unless a later enacted statute, which 

is enacted before January 1, 2018, deletes or extends that date.” 

(§ 12022.6, subd. (f).) 

The Legislature did not enact a replacement statute before 

January 1, 2018. As a result, section 12022.6 was repealed on 

January 1, 2018, one day before the People filed the information 

against Triggs. 

b. Analysis

Under the Estrada rule, there is a presumption the 

Legislature intends a statutory amendment that reduces 

criminal punishment to apply retroactively to any case in which 

the judgment is not yet final on the date the amendment takes 

effect. (In re Estrada (1965) 63 Cal.2d 740, 744.) However, 

in the case of In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.), 

the Supreme Court held there is no such presumption when 

a statute is repealed under a sunset clause. 

Pedro T. involved an amendment that increased the 

maximum punishment for vehicle theft. (Pedro T., supra, 

8 Cal.4th at p. 1043.) The amended statute included a sunset 

provision stating the enhanced penalties would be effective for 

three years unless the Legislature directed otherwise, which it 

did not do. (Ibid.) The minor committed a vehicle theft while 

the enhanced penalties were in effect, but his case was not final 

when the lesser penalties were restored. (Id. at pp. 1043–1044.) 

The Supreme Court held the Estrada rule did not apply 

and the minor should be sentenced using the enhanced penalties 

in effect when he committed the crime. (Pedro T., supra, 8

Cal.4th at p. 1043.) The court reasoned that the Legislature’s

intent was paramount, and “in temporarily increasing the
8

penalties for vehicle-taking, the Legislature determined 

the public safety required a three-year test of stricter 

punishments. . . . Far from determining that a lesser 

punishment for vehicle theft would serve the public interest, 

the Legislature expressly declared that increased penalties 

were necessary. Estrada is not implicated on these facts.” 

(Id. at p. 1046.)

The high court further explained that “the very nature 

of a sunset clause, as an experiment in enhanced penalties, 

establishes—in the absence of evidence of a contrary legislative 

purpose—a legislative intent the enhanced punishment apply 

to offenses committed throughout its effective period.” (Pedro T., 

supra, 8 Cal.4th at p. 1049.) Moreover, “a rule that retroactively 

lessened the sentence imposed on an offender pursuant to a 

sunset clause would provide a motive for delay and manipulation 

in criminal proceedings. When the Legislature signals, years 

in advance, its intention to reduce the punishment for an offense, 

defendant and counsel have a strong incentive to delay the 

finality of a judgment in the hope of eventually receiving 

the lessened, postsunset term.” (Id. at pp. 1046–1047.)

Relying on Pedro T., courts have held the repeal of 

section 12022.6 does not apply retroactively. (See Medeiros, 

supra, 46 Cal.App.5th at pp. 1154–1157; People v. Abrahamian

(2020) 45 Cal.App.5th 314, 337–338 (Abrahamian); see also 

People v. Shiga (2019) 34 Cal.App.5th 466, 471.) In Abrahamian, 

for example, the court upheld the imposition of a section 12022.6 

enhancement on a defendant who was sentenced in March 2018 

for crimes she committed several years earlier. (Abrahamian, at 

pp. 336–337.) The court explained that Pedro T. was “controlling 

authority” and the defendant “failed to show that, when the 
9

sunset provision of section 12022.6 was enacted, the Legislature 

did not intend to apply the provision’s enhanced punishment 

to offenses committed throughout its effective period.” 

(Abrahamian, at p. 337.) 

In Medeiros, the court concluded that “despite the lack 

of an express saving clause in section 12022.6, the text of the 

statute and its legislative history demonstrate with sufficient 

clarity that the Legislature intended its provisions to apply to 

defendants who committed their crimes before January 1, 2018.” 

(Medeiros, supra, 46 Cal.App.5th at p. 1157.) The court noted 

“[t]he express language of the sunset provision itself states 

its purpose is to allow the Legislature to review the threshold 

amounts of the enhancement for inflation, not to allow the 

Legislature to consider whether the enhancements should 

continue to apply or whether the statute should be repealed. 

There is no indication that in passing the 2007 amendments the 

Legislature contemplated the statute might lapse, particularly 

in light of the consistent history of extensions of the sunset date. 

Thus, it is not ‘an inevitable inference’ here, as it was in Estrada, 

that the Legislature intended to impose a lesser punishment 

on defendants” who committed crimes while the statute was 

in effect. (Id. at p. 1154.) 

We agree with the reasoning in Medeiros and Abrahamian, 

and similarly conclude the Legislature intended section 12022.6 

to apply to all defendants who committed crimes before its 

repeal in 2018. Triggs, moreover, does not point to any statutory 

language or legislative history suggesting the Legislature 

intended to treat an implicit repeal of section 186.11, subdivision 

(a)(3) differently from a repeal of section 12022.6. Nor is there 

any apparent reason why it would want to do so. Accordingly, 
10

even assuming section 186.11, subdivision (a)(3) was repealed 

on January 1, 2018, the trial court had the authority to impose 

the enhancement on Triggs, who committed her crimes between 

2013 and 2015. 

Triggs contends Medeiros and Abrahamian were wrongly 

decided because the courts failed to recognize the inclusion 

of the sunset provision in section 12022.6 reflected an intent to 

ameliorate punishment as time and inflation necessitated, rather

than an experiment in enhanced punishment as in Pedro T. 

Triggs does not explain why this distinction is meaningful, nor 

is it self-evident. In both instances, the Legislature necessarily 

contemplated the possibility of reduced punishment in the future. 

The Supreme Court in Pedro T., however, held that fact alone 

does not warrant an inference that the Legislature intended 

a repeal under a sunset provision to operate retroactively.

(Pedro T., supra, 8 Cal.4th at pp. 1046–1047.) Moreover, as the 

court explained in Medeiros, “the fact that the 2007 amendment 

in this case was not a temporary experiment but a continuation 

of a long-standing policy of imposing harsher penalties for 

excessive taking reflects even stronger legislative intent that the 

enhancements apply throughout the effective period of the law. 

There is no hint in the legislative history that the Legislature in 

2007 thought ‘imposition of a lesser punishment’ by eliminating

the enhancements in 2018 might sufficiently serve the public 

interest.” (Medeiros, supra, 46 Cal.App.5th at p. 1156.) 

Triggs also seems to suggest the Medeiros and Abrahamian

courts improperly focused on the Legislature’s intent when it 

enacted section 12022.6’s sunset provision, rather than its intent 

when it allowed the statute to lapse in 2018. According to Triggs, 

the Legislature’s decision not to enact a replacement statute 
11

reflects a determination that the enhancements were no longer 

necessary. Therefore, she argues, we must presume it intended 

the repeal to benefit all defendants whose cases were not yet final 

as of January 1, 2018.

The minor in Pedro T. made a similar argument, insisting

the Legislature’s decision not to extend the enhanced penalties 

in that case showed it believed they were unnecessary to the 

goal of deterrence. In rejecting this argument, the Supreme 

Court explained “[i]t is axiomatic that in assessing the import 

of a statute, we must concern ourselves with the Legislature’s 

purpose at the time of the enactment. . . . [T]o seek a 

hypothetical legislative intent at some time after enactment 

of the statute would seem necessarily to disregard the probable 

legislative intent at the time of the enactment. We are directed 

to no authority sanctioning such an approach.” (Pedro T., supra,

8 Cal.4th at pp. 1047–1048.) The same is true here.

Triggs’s reliance on Nasalga, supra, 12 Cal.4th 784, is 

misplaced for similar reasons. In that case, the defendant stole 

$124,000, and the trial court imposed a two-year enhancement 

under a former version of section 12022.6. While the defendant’s 

case was pending, the Legislature amended section 12022.6 

to increase the threshold for the two-year enhancement from 

$100,000 to $150,000. (Nasalga, at pp. 788–789.) The Supreme 

Court determined the “inferred legislative intent in raising the 

amount necessary for a two-year enhancement . . . is an intent 

to mitigate punishment for offenders, such as defendant, to 

reflect the dollar’s decline in value.” (Id. at p. 795.) Accordingly, 

it held the defendant was entitled to the benefit of the lesser 

punishment under the Estrada rule. (Nasalga, at pp. 795, 797–

798.)
12

Nasalga is of no help to Triggs, as that case involved 

an ameliorative amendment to section 12022.6, rather than 

its repeal under the sunset provision. The focus in Nasalga, 

therefore, was on the Legislature’s intent in enacting the 

amendment, whereas here, it is on the Legislature’s intent when 

it enacted the sunset provision. (Nasalga, supra, 12 Cal.4th at 

p. 795; Pedro T., supra, 8 Cal.4th at p. 1048.) As discussed above, 

the statutory text and legislative history of the sunset provision 

show the Legislature did not intend a repeal to operate 

retroactively.

Triggs alternatively argues section 186.11 is 

unconstitutionally vague because it references a now-repealed 

statute. As a result, she argues, a defendant would not 

reasonably know with clarity what, if any, penalty would apply 

to a cumulative theft between $100,000 and $500,000. (See 

In re Newbern (1960) 53 Cal.2d 786, 792 [“The requirement of 

a reasonable degree of certainty in legislation, especially in the 

criminal law, is a well established element of the guarantee of 

due process of law.”].) Relatedly, she argues the repeal of section 

12022.6 created an ambiguity in section 186.11, which requires 

the statute be interpreted in her favor. (See People v. Soria

(2010) 48 Cal.4th 58, 65 [“ambiguity in a criminal statute should 

be resolved in favor of lenity, giving the defendant the benefit 

of every reasonable doubt on questions of interpretation”].)

We need not consider these arguments because section 

12022.6 was still in effect when Triggs committed her offenses. 

Triggs, therefore, could easily discern the possible punishment 

for her crimes. For the same reason, there was no ambiguity that 

would require an interpretation in her favor.
13

2. The trial court erroneously believed it lacked 

authority to strike the section 186.11 enhancement

Triggs contends the trial court erroneously believed it 

lacked authority to strike the section 186.11 enhancement. The 

Attorney General concedes the error, but argues it was harmless.

Under section 1385, a trial court has discretion to dismiss 

or strike a sentencing enhancement allegation, or alternatively, 

strike the additional punishment for the enhancement. (People v. 

Fuentes (2016) 1 Cal.5th 218, 224–225.) “The judicial authority 

to dismiss a criminal action or allegation in furtherance of 

justice is statutory and may be withdrawn by the Legislature. 

[Citation.] A court may exercise such authority unless, in a 

given context, the Legislature has clearly evidenced a contrary 

intent. [Citations.] Courts will not interpret another statute as 

eliminating the power to dismiss under section 1385 unless there 

is clear legislative direction to that effect. [Citation.]” (People v. 

Chavez (2016) 5 Cal.App.5th 110, 117.)

At sentencing, the trial court noted several times that it did 

not have the authority to strike the section 186.11 enhancement. 

Although not entirely clear, it appears the court believed it

was required to impose the enhancement under section 1170.

Section 1170, subdivision (h)(3) mandates certain 

defendants serve their sentences in prison, rather than county 

jail. This includes defendants with a prior or current conviction 

for a serious or violent felony, defendants required to register 

as sex offenders, and defendants subject to a section 186.11 

enhancement. (§ 1170, subd. (h)(3).) Section 1170, subdivision (f) 

states that “for purposes of [subdivision (h)(3)], any allegation 

that a defendant is eligible for state prison due to a prior or 

current conviction, sentence enhancement, or because the 
14

defendant is required to register as a sex offender shall not 

be subject to dismissal pursuant to Section 1385.” 

To the extent the court believed these provisions precluded 

it from striking the enhancement, it was mistaken. Section 1170, 

subdivision (f) specifies that its prohibition is “for purposes 

of [section 1170, subdivision (h)(3)]” and applies only to an 

“allegation that a defendant is eligible for state prison due to 

a . . . sentence enhancement . . . .” (§ 1170, subd. (f).) It does 

not expressly prohibit the court from striking the enhancement 

allegation or punishment for the enhancement for other purposes, 

such as determining the defendant’s term of imprisonment. If 

it did, trial courts would lack the authority to strike or dismiss 

allegations that a defendant suffered a prior serious or violent 

felony within the meaning of the Three Strikes law, authority the 

Supreme Court has repeatedly affirmed. (See People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497, 504; People v. Vargas

(2014) 59 Cal.4th 635, 645.) Had the Legislature intended this

result, we suspect it would have said so more clearly and directly.

Generally, “ ‘when the record shows that the trial court 

proceeded with sentencing on the . . . assumption it lacked 

discretion, remand is necessary so that the trial court may have 

the opportunity to exercise its sentencing discretion at a new 

sentencing hearing. [Citations.] Defendants are entitled to 

“sentencing decisions made in the exercise of the ‘informed 

discretion’ of the sentencing court,” and a court that is unaware 

of its discretionary authority cannot exercise its informed 

discretion.’ [Citation.] But if ‘ “the record shows that the 

trial court would not have exercised its discretion even if 

it believed it could do so, then remand would be an idle act 
15

and is not required.” ’ [Citation.]” (People v. McDaniels (2018) 

22 Cal.App.5th 420, 425.)

The Attorney General argues remand is not necessary 

because the trial court emphasized numerous aggravating 

circumstances, which shows it would not have struck the 

enhancement had it recognized its authority to do so. The court, 

however, also found several mitigating circumstances, and it 

declined to impose the greatest possible sentence. Moreover, 

unlike other cases in which courts have found remand was 

unnecessary, the trial court here did not explicitly state that 

it would decline to strike the enhancement if it had authority 

to do so. (See, e.g., People v. Gutierrez (1996) 48 Cal.App.4th 

1894, 1896.) On this record, it is not sufficiently clear how the 

trial court would have acted had it recognized its authority under 

section 1385. (See People v. Johnson (2019) 32 Cal.App.5th 26, 

69 [remanding so the trial court could consider whether to strike 

a firearm enhancement, even though the court made statements 

showing it was not sympathetic to the defendants].) 

The Attorney General alternatively argues remand is

not necessary because it would have been an abuse of discretion 

to strike the enhancement. (See People v. DeGuzman (1996) 

49 Cal.App.4th 1049, 1055 [“Whether the trial court believed it 

had discretion to strike the alleged prior felony convictions or not, 

appellant has suffered no prejudice since it would have been a 

manifest abuse of that discretion to exercise it on this record.”].)

When deciding whether to exercise its authority under 

section 1385, a trial court must consider any mitigating and 

aggravating circumstances, as well as the general objectives 

of sentencing as set forth in the California Rules of Court. 

(People v. Pearson (2019) 38 Cal.App.5th 112, 117.) The court
16

“must consider both ‘ “the constitutional rights of the defendant, 

and the interests of society represented by the People.” ’ 

[Citation.] Section 1385 allows courts to ensure ‘that persons 

are sentenced based on the particular facts of the offense and 

all the circumstances. It enables the punishment to fit the crime 

as well as the perpetrator.’ [Citation.] Where a court chooses 

to dismiss or strike under section 1385, ‘the reason for dismissal 

must be “that which would motivate a reasonable judge.” ’ 

[Citation.]” (People v. Shaw (2020) 56 Cal.App.5th 582, 587.) 

The Attorney General insists there were no facts that 

would motivate a reasonable judge to strike the section 186.11 

enhancement in this case. Not so. As noted above, the trial 

court found circumstances in mitigation, including Triggs’s 

early acceptance of responsibility and her prior satisfactory 

performance on probation. The record also shows Triggs 

made some restitution to the victim, and her cousin suggested

her conduct was the result of past trauma and mental illness, 

which are also potential circumstances in mitigation. (Cal. 

Rules of Court, rule 4.423(b)(2), (5).) 

On this record, and out of an abundance of caution, 

the proper disposition is to remand the case so the trial court 

may exercise its discretion in the first instance. We express

no opinion on how the court should exercise that discretion. 

3. The trial court erroneously believed it lacked 

authority to grant probation

Triggs argues the trial court erroneously believed it 

lacked authority to grant probation. The Attorney General 

again concedes the error, but argues remand is not necessary 

because the error was harmless.
17

At sentencing, the court stated Triggs was “absolutely 

not eligible for probation” in light of her admission of the section 

186.11 allegation. The court apparently relied on section 1170, 

subdivision (h)(3), which states that where a defendant “is 

convicted of a crime and as part of the sentence an enhancement 

pursuant to Section 186.11 is imposed, an executed sentence for 

a felony punishable pursuant to this subdivision shall be served 

in the state prison.”

Section 1170, subdivision (h)(3) mandates the defendant 

serve her sentence in prison only if the court executes the 

sentence. It does not preclude the court from suspending 

execution of the sentence and placing the defendant on probation. 

This is confirmed by section 1170, subdivision (h)(4), which states 

“[n]othing in this subdivision shall be construed to prevent other 

dispositions authorized by law, including . . . an order granting 

probation pursuant to Section 1203.1.” 

The trial court’s mistaken belief that it lacked authority

to grant probation constitutes an abuse of discretion. (People v. 

Orabuena (2004) 116 Cal.App.4th 84, 99.) We need not decide

whether the error was harmless since we are already remanding 

the case for resentencing. On remand, the court may exercise 

its discretion in the first instance.

4. Triggs has not shown the trial court erroneously 

believed it was required to impose the restitution fine

Triggs contends the trial court erred at sentencing when 

it remarked that it “must” impose a restitution fine under 

section 1202.4, subdivision (b). Triggs insists this was error 

because section 1202.4 states the court must impose the fine 

“unless it finds compelling and extraordinary reasons for not 

doing so and states those reasons on the record.” (§ 1202.4, 
18

subd. (b).) She also points out that under People v. Dueñas

(2019) 30 Cal.App.5th 1157, 1171–1172, a court must stay 

the execution of a restitution fine until and unless the People 

demonstrate the defendant has the ability to pay it.

We agree with the Attorney General that the court’s 

statements do not show it failed to recognize its discretion. 

Triggs does not point to anything in the record showing 

compelling and extraordinary reasons not to impose the fine; 

nor did she raise the Dueñas issue below. The court’s brief

remark that it “must” impose the fine, therefore, was fully 

consistent with the record before it. In any event, the court 

will have an opportunity to reconsider these issues on remand 

when it resentences Triggs.3

3 In a footnote, the Attorney General contends the trial court 

erroneously failed to impose a mandatory fine under section 

186.11, subdivision (c), and failed to consider imposing a fine 

under section 1202.5. The trial court should consider these 

issues on remand.
19

DISPOSITION

We vacate Joyce Triggs’s sentence and remand the case 

for resentencing consistent with this opinion. We affirm the 

judgment in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.