Filed 5/23/24 P. v. Percy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALFORD DEJOHN PERCY,

Defendant and Appellant.

F085950

(Super. Ct. No. F20906033)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Heather 

Mardel Jones, Judge.

Solomon Wollack, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

Michael P. Farrell, Assistant Attorney General, Kari Ricci Mueller and Darren K. 

Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Franson, J. and Meehan, J.
2.

Defendant Alford DeJohn Percy sexually abused his stepdaughter for several years 

starting when she was seven years old. Defendant pled no contest to multiple sex 

offenses without a plea bargain. The trial court sentenced defendant to 52 years 

eight months to life consisting of consecutive terms of 25 years to life, the middle term 

on three counts of 10 years, nine years, and eight years, respectively, plus eight months 

on the final count. Defendant contends the trial court erroneously imposed the middle 

terms without making a finding on whether his psychological trauma was a contributing 

factor to the offenses warranting imposition of the low term under Penal Code1

section 1170, subdivision (b)(6).

The People respond that defendant’s appeal must be dismissed because he did not 

obtain a certificate of probable cause. In the alternative, the People argue the trial court 

did not abuse its discretion in selecting defendant’s sentence and any error in the court’s 

sentence was harmless. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Summary of the Offenses2

Defendant and Veronica began dating in 2006. Veronica had a daughter, Susanna, 

from a prior relationship who was born in 2004.3 Defendant and Veronica never legally 

married but had a son together and lived together. Susanna identified defendant as her 

stepfather.

When Susanna was seven years old, defendant was watching pornography on a 

computer in a back room where they lived. Defendant took Susanna into the back room 

1 All statutory references are to the Penal Code unless otherwise indicated.

2 The limited facts are taken from the preliminary hearing transcript and the police 

reports as summarized in the probation officer’s report. The parties stipulated to the 

factual basis for defendant’s plea based on the police reports and preliminary hearing 

transcript.

3 Defendant was born on December 31, 1989.
3.

to watch pornography with him. Defendant watched pornography with Susanna at least 

three times. The third time defendant inserted his fingers into Susanna’s vagina.

This began a pattern of defendant sexually abusing Susanna almost weekly until 

she was 15 years old. Defendant inserted a massager into Susanna’s vagina about 

five times. He also twice inserted a vibrating video game controller into her vagina when 

she was around 8 or 9 years old. Shortly after he inserted the controller into Susanna, 

defendant had vaginal intercourse with Susanna. Defendant would perform oral sex on 

Susanna almost every time he sexually assaulted her and put his mouth on her anus 

multiple times. He did not have Susanna perform oral sex on him but instead would have 

her hold his penis. Defendant would also insert his fingers into Susanna’s vagina and 

anus. Susanna did not report defendant because she did not understand what was 

happening.

Defendant threatened to kill Veronica or Susanna’s younger brother if Susanna 

denied his advances. When Susanna told him no once, he walked away and told Susanna 

her mother would pay for it. If she refused or denied sex to defendant, he would hit her, 

sometimes using a belt. Defendant whipped Susanna with a belt and gave her a black eye 

when she was in fifth or sixth grade. When school officials observed the injury, Susanna 

lied and said she got the black eye when she fell.

One time, Veronica went to Texas and left defendant home with Susanna. 

Defendant made Susanna smoke marijuana with him twice. The marijuana made 

Susanna dizzy. He also made Susanna walk around the house naked and sleep naked.

Defendant and Veronica separated in 2016 after a domestic violence incident.4 

The former couple had shared custody of both children after they separated.

4

In November 2016, defendant and Veronica got into an argument outside their 

residence. After they went inside the residence, defendant pushed Veronica to the 

ground. Defendant put Veronica in a chokehold and threatened to kill her. He began 

kicking her in the face and upper body. Veronica briefly lost consciousness. Defendant 
4.

In 2018, Susanna was asleep on her stomach on her bed when defendant came into 

her room and proceeded to rip off her clothes. Susanna told defendant she wanted to 

sleep. Defendant grabbed her hair, shoved her face into the bed and had anal sex with 

her. Susanna was in pain and crying.

On January 9, 2020, defendant climbed on top of Susanna while she was laying on 

the couch at his home. Susanna’s younger brother was at the home, but he was in a 

separate room playing video games with the door shut. Defendant pulled down 

Susanna’s shorts and inserted his penis into her vagina. He then put his penis into her 

anus. Susanna woke up during the assault and pretended to be asleep. She felt paralyzed. 

The assault took place for approximately 15 to 20 minutes and ended when defendant 

ejaculated on the couch. After defendant finished, Susanna went into the bathroom and 

cried. When she came out of the bathroom she continued to cry on the couch.

Susanna was not sexually active with any other partners during defendant’s abuse 

and suspected she got pregnant because defendant never used protection when he had sex 

with her. Susanna was unaware she had become pregnant as her period is normally very 

light spotting. On January 11, 2020, Susanna went into labor while at defendant’s home. 

Defendant panicked and told Susanna to deliver the baby in the bathtub. He wanted to 

deliver the baby at home and then take the baby to a safe surrender location so no one 

would have to find out Susanna was pregnant. Susanna refused so defendant started to 

drive her to the hospital. On the way to the hospital, defendant pulled over into a parking 

lot and tried to convince Susanna to have the baby there. Susanna refused and said, “ ‘I 

can potentially die.’ ”

Defendant resumed driving them to the hospital. In the car, defendant said, “ ‘I’m 

driving to my doom,’ ” “ ‘I’m done,’ ” “ ‘I’m going to prison,’ ” and “ ‘I’m never going to 

pled no contest to corporal injury on a co-habitant (§ 273.5, subd. (a)) and was placed on 

probation for three years for this incident (Fresno County case No. F17903017).
5.

see you again.’ ” Defendant also told Susanna they had to come up with a story so no one 

would find out he was the father of the baby. He instructed Susanna to say she got 

pregnant by a boy she met during summer school. Susanna told this story to her mother.

Susanna gave birth to a daughter at the hospital. She was told she was 30 to 

39 weeks pregnant when she gave birth. Susanna told Veronica she did not want to keep 

the baby and pushed to place the baby for adoption. Susanna was worried if she kept the 

baby, her daughter would become defendant’s victim as well.

Susanna was laying on the couch at defendant’s home after her daughter’s birth. 

Defendant was rubbing Susanna’s leg and said something like, “ ‘When are we going to 

get back to that place’ ” or “ ‘When are we going back to the time like before?’ ” 

Susanna knew defendant was trying to continue to have sexual relations with her. She 

told defendant she had just had a baby. Susanna hoped this would deter defendant from 

continually sexually assaulting her.

On September 1, 2020, Veronica and Susanna reported defendant’s sexual abuse to 

the Fresno Police Department. Susanna detailed the abuse in interviews with Fresno 

police officers.

Fresno Police Detective Cha Thao interviewed defendant on September 4, 2020. 

When Thao asked defendant if he has kids, defendant identified three: Susanna’s 

younger brother, Susanna, and Susanna’s child. Defendant confirmed he had sex with 

Susanna but said the sex was consensual. He said he possibly blocked the incident. 

Defendant consented to the police’s request to search his cell phone. Defendant’s cell 

phone contained photographs of naked underage females in sexual poses. 

B. Charges and Plea

On September 9, 2021, the Fresno County District Attorney filed an information 

charging defendant with: one count of forcible rape (§ 261, subd. (a)(2); count 1); 

two counts of sexual intercourse or sodomy with a child 10 years of age or younger 

(§ 288.7, subd. (a); counts 2 & 3); two counts of oral copulation or sexual penetration 
6.

with a child 10 years of age or younger (§ 288.7, subd. (b); counts 4 & 5); one count of 

forcible sexual penetration of a child under 14 years of age (§ 289, subd. (a)(1)(B); 

count 6); one count of forcible sexual penetration of a child 14 years of age or older 

(§ 289, subd. (a)(1)(C); count 7); one count of forcible sodomy on a child 14 years of age 

or older (§ 286, subd. (c)(2)(C); count 8); and one count of possession or control of child 

pornography (§ 311.11, subd. (a); count 9). The information further alleged the 

aggravating circumstance that defendant personally inflicted great bodily injury in the 

commission of count 1.

On December 14, 2022, defendant pled no contest to all nine counts charged in the 

information. He also admitted the enhancement allegation. Defendant signed a plea 

form that included a waiver of rights. The trial court discussed the plea form with 

defendant and advised defendant of the rights being waived. Neither the plea form nor 

the court’s discussion of the rights waived included a waiver of defendant’s right to 

appeal any sentencing issue. The court calculated defendant’s maximum sentence 

exposure as 120 years four months to life. The court indicated a sentence of 52 years

eight months to life if defendant pled to all the counts in the information. The following 

exchange took place:

“[DEFENSE COUNSEL]: Your Honor, I advised that this is the 

Court’s indicated. [Defendant] asked me if it’s a possibility that he could 

get less than 52 years. I said that it’s possible, but [the court is] indicating 

it, so it’s what you’re going to get.

“THE COURT: Yes. So this is my indication and, frankly, given the 

conduct and your maximum you’re actually facing, I think this is a fair 

number that addresses your conduct. I understand that you are a veteran 

and that you suffer from disabilities as a result of your service to this 

country and the Court did take that into consideration when arriving at

this sentence, but it’s not going to be less than the indicated. I don’t want 

you to have false hope. I want to be straight with you....”

The court found defendant guilty on all counts and the enhancement allegation to be true 

pursuant to defendant’s no contest plea. The court further found the crimes against 
7.

Susanna were a violation of defendant’s probation for the 2016 domestic violence 

incident. The matter was referred to probation to prepare a presentence report.

On March 8, 2023, defendant filed a motion to withdraw his plea. The trial court 

denied defendant’s motion to withdraw his plea on March 9, 2023.

C. Sentence

Defendant filed a sentencing brief and statement in mitigation asking the trial 

court to impose the low term and concurrent sentences. The brief stated defendant had 

experienced psychological, physical or childhood trauma warranting imposition of the 

low term pursuant to section 1170, subdivision (b)(6)(A). Defendant asserted 

three factors in mitigation: (1) he was raised in the foster care system and suffered 

multiple traumatic experiences in that system; (2) he suffered from mental illness from 

his military service and was found to have a 100 percent service-related disability 

therefrom; and (3) his age at the time of commission of the offenses. The brief argued the 

court is obligated to consider a defendant’s qualifying service-related disabilities as 

mitigating circumstances in making discretionary sentencing choices, and cited 

sections 1170.9 and 1170.91, and People v. Panozo (2021) 59 Cal.App.5th 825. 

Defendant attached exhibits to the brief including: (1) an email from a clinical social 

worker attesting to defendant’s experiences in the foster care system; (2) certificates of 

defendant’s release or discharge from active military duty; and (3) excerpts of defendant’s 

records from the Veteran’s Center detailing his counseling for posttraumatic stress 

disorder (PTSD) and other mental health issues.

The probation officer’s report listed three aggravating factors related to defendant: 

defendant had engaged in violent conduct that indicates a danger to society (Cal. Rules of 

Court, rule 4.421(b)(1));5 defendant’s prior convictions as an adult or sustained petitions 

in juvenile delinquency proceedings were numerous or of increasing seriousness 

5 All further rule references are to the California Rules of Court.
8.

(rule 4.421(b)(2)); and defendant was on probation or parole when the crime was 

committed (rule 4.421(b)(4)). That defendant was under 26 years of age at the time of 

the offenses was the sole mitigating factor identified (rule 4.423(b)(6)). Defendant had 

no juvenile record, but his adult criminal record included: driving under the influence 

(Veh. Code, § 23152, subd. (b)) in 2011; driving while license was suspended or revoked 

(Veh. Code, § 14601.2, subd. (a)) in 2016; and the domestic violence (§ 273.5, subd. (a)) 

against Veronica in 2016. With respect to counts 6 through 8, probation recommended 

the sentences be served consecutively because the crimes were committed against the 

same victim on separate occasions (§ 667.6, subd. (d)). A total sentence of 132 years

eight months to life was recommended.

Appended to the probation officer’s report was a 2018 probation officer’s report 

regarding defendant’s 2016 domestic violence conviction. Defendant self-reported 

diagnoses of PTSD, depression, insomnia, and bipolar disorder. He had attempted 

suicide twice. Defendant was receiving mental health services through the Veterans 

Administration including counseling and group education for PTSD.

On March 9, 2023, the trial court held a sentencing hearing. The court had 

received and reviewed the probation officer’s report, defendant’s sentencing brief and 

statement in mitigation, and a letter from the victim. Defense counsel reported the 

probation officer had failed to note defendant was in Veteran’s Treatment Court and had 

completed a batterer’s intervention program. Defense counsel asked the court to consider 

defendant’s time in the military, service-related disabilities, his age, and his upbringing in 

the foster care system. Defense counsel further noted defendant’s remorse and interest in 

keeping the victim’s family from a prolonged proceeding.

The prosecutor argued defendant failed to mention he continued to sexually abuse 

his stepdaughter while he was in the Veteran’s Treatment Court. The prosecutor also 

contested defendant’s representation he was raised in the foster care system and asserted 

this was untrue according to Veronica.
9.

The trial court heard victim impact statements from Susanna and Veronica. The 

court then discussed the rationale for its sentence:

“I don’t believe any aggravating factors were admitted, but I can 

and do find that defendant was on probation at the time the crime 

was committed because he did admit his probation violation and that 

based on this Court’s review, he did not have any juvenile 

delinquency proceeding, but he did have prior convictions as an 

adult and those include the case in which he was on probation for. 

While they weren’t numerous, adding these crimes together they 

have become numerous and of course increase in seriousness. There 

was no aggravated factor admitted and the Court, on [its] own, can’t 

find that the defendant engaged in violent conduct, so I am going to 

strike that aggravating factor on the sentencing report. Although, the 

conduct in this case would qualify certainly.

“The Court considered California Rule of Court 4.423,

circumstances in mitigation and I will note a few factors in 

mitigation. The sentencing report notes that defendant was under 

26 years of age at the time he began his crimes. He’s now 33. Yeah, 

33.

“I’ll also note that the Court, after reading the sentencing brief—

and I already knew this because this was part of the discussion at the 

time the Court made it’s indicated, but that defendant did have prior 

military service. So the Court took those into consideration. Let’s 

be clear, defendant’s maximum that he was facing pleading to the 

sheet as he did was 136 years and, I think, 8 months. Let me get

back to my count over here. I’m sorry, 132 years, 8 months was his 

maximum and that is in fact what probation is recommending. So 

the Court did take into account those circumstances in mitigation in 

making it’s indicated.”

The trial court sentenced defendant to 52 years eight months to life as follows: an 

indeterminate term of 25 years to life on count 1; a determinate term consisting of the 

middle term of 10 years on count 6; the middle term of eight years on count 7; the middle 

term of nine years on count 8; and eight months (one-third of the middle term) on 

count 9, all to be served consecutively to count 1. The court imposed concurrent terms 

on the remaining counts: 25 years to life each on counts 2 and 3, and 15 years to life 

each on counts 4 and 5.

Defendant filed a timely notice of appeal without a certificate of probable cause.
10.

DISCUSSION

I. Certificate of Probable Cause

The People argue defendant’s appeal must be dismissed because he did not obtain 

a certificate of probable cause in accordance with section 1237.5. Defendant responds no 

certificate of probable cause is required because he is not attacking his plea bargain since 

he never entered any plea bargain. Defendant further argues he is not attacking the trial 

court’s authority to impose the middle term on counts 6, 7 and 8, but is instead 

challenging the court’s purported lack of adequate findings and its failure to exercise the 

discretion vested in it.

A. Governing Legal Principles

Section 1237.5 specifically provides: “No appeal shall be taken by the defendant 

from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation 

of probation following an admission of violation, except where both of the following are 

met: [¶] (a) The defendant has filed with the trial court a written statement, executed 

under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or 

other grounds going to the legality of the proceedings. [¶] (b) The trial court has 

executed and filed a certificate of probable cause for such appeal with the clerk of the

court.”

“Notwithstanding the broad language of section 1237.5, it is settled that two types 

of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a 

certificate: (1) search and seizure issues for which an appeal is provided under 

section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to 

the plea for the purpose of determining the degree of the crime and the penalty to be 

imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).)6 “The purpose for 

6 Defendant indicated in his opening brief and notice of appeal he was appealing

pursuant to rule 8.304(b). Rule 8.304(b)(2) provides that a defendant appealing from a 

judgment of conviction after a plea of guilty or nolo contendere need not file a written 
11.

requiring a certificate of probable cause is to discourage and weed out frivolous or 

vexatious appeals challenging convictions following guilty and nolo contendere pleas. 

[Citations.] The objective is to promote judicial economy ‘by screening out wholly 

frivolous guilty [and nolo contendere] plea appeals before time and money is spent 

preparing the record and the briefs for consideration by the reviewing court.’ ” (Id. at 

pp. 75–76.)

In People v. Ward (1967) 66 Cal.2d 571, after the defendant pled guilty to murder

the trial court held proceedings to determine the degree of the crime and the penalty to be 

imposed. The trial court found the murder to be in the first degree and sentenced the 

defendant to life imprisonment. (Id. at p. 572.) The defendant filed a notice of appeal but 

did not obtain a certificate of probable cause. (Id. at p. 573.) Our Supreme Court denied 

the prosecution’s motion to dismiss the appeal for failing to comply with section 1237.5. 

(Id. at p. 577.) The court concluded “defendant was not required to comply with the 

provisions of section 1237.5 where, as here, he is not attempting to challenge the validity 

of his plea of guilty but is asserting only that errors occurred in the subsequent adversary 

hearings conducted by the trial court for the purpose of determining the degree of the 

crime and the penalty to be imposed.” (Id. at p. 574.)

In Panizzon, the defendant pled no contest to various felony counts and agreed to a 

sentence of life without the possibility of parole plus 12 years pursuant to a plea bargain. 

(Panizzon, supra, 13 Cal.4th at p. 73.) In exchange for the defendant’s plea, the 

prosecution agreed to dismiss several additional counts. (Ibid.) Defendant’s plea 

agreement included a waiver of the right to appeal his sentence. (Id. at p. 82.) After the 

trial court sentenced the defendant in accordance with the plea bargain, the defendant 

statement under section 1237.5 for a certificate of probable cause where the appeal is 

“based on or from: [¶] (A) The denial of a motion to suppress evidence under Penal

Code section 1538.5; or [¶] (B) The sentence or other matters occurring after the plea or

admission that do not affect the validity of the plea or admission; or [¶] (C) An

appealable order for which, by law, no certificate of probable cause is required.”
12.

sought to appeal his sentence as disproportionate to his codefendants’ sentences in 

violation of the federal and state constitutional prohibitions against cruel and unusual 

punishment. (Id. at pp. 73–74.) The People requested dismissal of the defendant’s appeal 

for failure to obtain a certificate of probable cause. (Id. at p. 74.) Our Supreme Court 

applied the following principles to its analysis: “In determining whether section 1237.5 

applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts 

must look to the substance of the appeal: ‘the crucial issue is what the defendant is 

challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, 

the critical inquiry is whether a challenge to the sentence is in substance a challenge to 

the validity of the plea, thus rendering the appeal subject to the requirements of 

section 1237.5.” (Panizzon, at p. 76.) In rejecting the defendant’s argument his appeal 

was based on postplea errors, the court held that “[w]hile a trial court’s error in making 

certain decisions after a plea may give rise to challenges that do not require compliance 

with section 1237.5, all the trial court did here was to sentence defendant in accordance 

with the previously entered plea.... ‘[T]he crucial issue is what the defendant is 

challenging.’ [Citation.] Here, by contesting the constitutionality of the very sentence he 

negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of 

the plea,” and was therefore subject to the certificate requirement of section 1237.5. 

(Panizzon, at p. 78.)

Two years after Panizzon, the Supreme Court considered whether a certificate of 

probable cause is required where the defendant pleads no contest but not pursuant to a 

plea bargain. In People v. Lloyd (1998) 17 Cal.4th 658, the defendant pled no contest to 

robbery without a plea bargain. (Id. at p. 661.) The defendant reserved the right to 

appeal whether the trial court had the authority to vacate his prior strike convictions, 

which our Supreme Court concluded it does in People v. Superior Court (Romero) (1996) 

13 Cal.4th 497 while the defendant’s appeal was pending. (Lloyd, at p. 662.) The 

Supreme Court held the defendant in Lloyd was not required to obtain a certificate of 
13.

probable cause because he was not challenging the validity of the plea itself but instead 

challenged the trial court’s postplea error in concluding it did not have the authority to 

vacate his prior strikes. (Id. at p. 665.) The court explained its rationale: “In Panizzon,

we recognized that, even if it purportedly challenges the sentence only, a defendant’s 

appeal from a judgment of conviction entered on a plea of guilty or nolo contendere must 

be dismissed in the absence of a statement of grounds by the defendant and a certificate 

of probable cause by the trial court if, in substance, it challenges the validity of the plea. 

[Citation.] It does so if the sentence was part of a plea bargain. [Citation.] It does not if 

it was not [citation]—especially so if the claim or claims in question were ‘reserved as 

part of the plea agreement[.]’ ” (Ibid.) Because there was no plea bargain, the reasoning 

of Panizzon did not apply. (Lloyd, at pp. 665–666.)

From this case law, appellate courts gleaned that to determine if a certificate of 

probable cause is necessary, “the court must scrutinize the substance of the appeal. That 

scrutiny requires an examination of the specific bargain entered as well as the specific 

claim raised on appeal. Regardless of how manifested or phrased, if a challenge to the 

sentence imposed is in substance a challenge to an integral part of the plea itself, a 

certificate of probable cause is required.” (People v. Cole (2001) 88 Cal.App.4th 850, 

867–868 (Cole).) The Cole court held “that when, as part of the plea agreement, the 

question of whether to impose the negotiated maximum sentence is left to the trial court’s 

discretion at an adversary hearing, section 1237.5 does not apply to an appellate claim 

that the trial court abused its discretion under ... section 1385 in not striking prior 

convictions.” (Id. at pp. 869–870.) The court explained that “while Panizzon adopted the 

substance-of-the-appeal test, it did not abandon the notion in Ward that when the plea 

arrangement leaves the issue of punishment to the determination of the court at an 

adversary hearing, alleged errors at that hearing may be raised without obtaining a 

certificate of probable cause.” (Id. at pp. 870–871.)
14.

In People v. Buttram (2003) 30 Cal.4th 773, our Supreme Court found the 

reasoning of Cole persuasive in determining whether the defendant could attack the trial 

court’s sentencing decision as an abuse of discretion without obtaining a certificate of 

probable cause after the defendant pled guilty in exchange for an agreed maximum 

sentence. The court distinguished cases like Panizzon where the defendant agreed to a 

specific sentence from cases where the defendant only agreed to a maximum sentence: 

“When the parties negotiate a maximum sentence, they obviously mean something 

different than if they had bargained for a specific or recommended sentence. By agreeing 

only to a maximum sentence, the parties leave unresolved between themselves the 

appropriate sentence within the maximum.” (Buttram, at p. 785.) In Buttram, the record 

showed “the bargain contemplated separate sentencing proceedings in which the 

appropriate sentencing choice, within the agreed maximum term, would stem from 

adversarial debate between the parties and the exercise of sentencing discretion by the 

trial court.” (Id. at p. 787.) While the trial court in Buttram indicated at the time of the 

plea that it would consider a sentence below the maximum, the court ultimately imposed 

the maximum agreed sentence but only after considering a presentence report and holding 

a sentencing hearing where both sides argued for a particular disposition. (Ibid.) In 

determining the defendant could still challenge the trial court’s exercise of discretion in 

selecting his sentence without a certificate of probable cause, the Supreme Court 

concluded that “when the claim on appeal is merely that the trial court abused the 

discretion the parties intended it to exercise, there is, in substance, no attack on a sentence 

that was ‘part of [the] plea bargain.’ ” (Id. at p. 786.) The Supreme Court agreed with 

the Cole court’s reasoning that “ ‘[b]y implication from Panizzon, and by express holding 

in Ward, where adversary proceedings are held on the question of punishment, the 

rationale for limiting the right to appeal under section 1237.5 does not apply.’ ” 

(Buttram, at p. 787.) Accordingly, the Supreme Court held that “absent contrary 

provisions in the plea agreement itself, a certificate of probable cause is not required to 
15.

challenge the exercise of individualized sentencing discretion within an agreed maximum 

sentence.” (Id. at p. 790.)

After Buttram, courts continued to grapple with the “nuanced question” of whether 

a defendant’s appeal attacks the validity of the plea itself requiring a certificate of 

probable cause or challenges postplea errors not subject to section 1237.5. (People v. 

Stamps (2020) 9 Cal.5th 685, 696.) It has been held that a certificate is required where 

the plea bargain contains a sentence “lid” that the parties agree is the maximum sentence 

the trial court may impose, and the defendant challenges the lid sentence as violative of 

the prohibition against multiple punishment under section 654. (People v. Shelton (2006) 

37 Cal.4th 759, 763.) The “inclusion of a sentence lid implies a mutual understanding 

and agreement that the trial court has authority to impose the specified maximum 

sentence and preserves only the defendant’s right to urge that the trial court should or 

must exercise its discretion in favor of a shorter term.” (Ibid.) On the other hand, no 

certificate was required where the defendant was sentenced on the charges remaining 

after a plea agreement and the defendant challenged the trial court’s imposition of the 

upper term based on aggravating factors not found true by a jury in violation of 

Cunningham v. California (2007) 549 U.S. 270. (People v. French (2008) 43 Cal.4th 36, 

45–46.)

In summary, the “law draws a line between pleas in which the parties agree that 

the court will impose a specific, agreed-upon sentence, and pleas in which the parties 

agree that the court may impose any sentence at or below an agreed-upon maximum. A 

certificate of probable cause is required for the former [citations], but not the latter 

(except where the defendant challenges the legal validity of the maximum sentence 

itself).” (People v. Hurlic (2018) 25 Cal.App.5th 50, 55–56.) While “a challenge to the 

court’s authority to impose an agreed upon maximum sentence is a challenge to the 

validity of the plea requiring a certificate of probable cause, ... a challenge to the trial 

court’s exercise of individualized sentencing discretion within an agreed maximum 
16.

sentence does not require a certificate of probable cause because it does not challenge the 

trial court’s authority to impose the upper term, i.e., it does not attack the validity of the 

plea agreement but instead attacks the court’s exercise of discretion permitted by the 

agreement.” (People v. Rushing (2008) 168 Cal.App.4th 354, 359–360; see also People v. 

Jones (2013) 217 Cal.App.4th 735, 745 [after a guilty or no contest plea, a defendant may

not challenge the court’s jurisdiction to impose sentence but may still challenge the 

court’s discretionary sentencing decision without a certificate of probable cause].)

B. Analysis

The People argue that when a defendant enters an open plea based on an indicated 

sentence, the defendant essentially agrees to the indicated sentence and a challenge to the 

sentence is an attack on the validity of the plea itself. Relying on Shelton, the People 

argue defendant’s challenge to the trial court’s exercise of its sentencing discretion “at its 

core” attacks the trial court’s authority to impose the indicated sentence necessitating a 

certificate of probable cause. The People misapprehend the difference between a plea 

bargain and an indicated sentence, the relevant case law regarding section 1237.5, and the 

substance of defendant’s appeal.

Only the prosecutor may negotiate a plea bargain on the state’s behalf. (People v. 

Segura (2008) 44 Cal.4th 921, 930 (Segura).) The trial court thus may not engage in 

unlawful judicial plea bargaining. (People v. Clancey (2013) 56 Cal.4th 562, 572–574.) 

The trial court may, however, provide an indicated sentence that “represents the court’s 

best judgment as to the appropriate punishment for this defendant and this offense, 

regardless of whether guilt is established by plea or at trial.” (Id. at p. 576.) When a 

court gives an indicated sentence, “the court has merely disclosed to the parties at an 

early stage—and to the extent possible—what the court views, on the record then 

available, as the appropriate sentence so that each party may make an informed decision.” 

(Id. at p. 575.) An “indicated sentence is not a promise that a particular sentence will

ultimately be imposed at sentencing. Nor does it divest a trial court of its ability to 
17.

exercise its discretion at the sentencing hearing, whether based on the evidence and 

argument presented by the parties or on a more careful and refined judgment as to the 

appropriate sentence.” (Id. at p. 576.)

Here, the trial court’s indicated sentence was not a promise to impose that sentence 

and defendant did not expressly or impliedly promise to accept any sentence within the 

court’s indicated sentence. On the contrary, defendant’s subsequent arguments for a 

lesser sentence evinced an understanding the court may impose a sentence different than 

indicated and would still exercise its sentencing discretion after considering further 

evidence and argument.

The facts in this case are like what occurred in Cole. In Cole, the defendant did 

not have a plea bargain with the prosecution but instead entered a plea of no contest 

under a “negotiated disposition.” (Cole, supra, 88 Cal.App.4th at p. 858.) Specifically, 

the defendant pled no contest to the charges and the trial court, with the prosecutor’s 

implicit concurrence, promised to impose concurrent sentences and thereby reduce his 

sentence exposure to 25 years to life. (Ibid.) At a subsequent sentencing hearing, the 

trial court considered the defendant’s sentencing motion, the probation report, and heard 

victim impact statements and arguments from both sides. (Id. at p. 856.) The defendant 

challenged his resulting sentence of 25 years to life on four grounds, including that the 

sentence constituted cruel and unusual punishment, and the trial court abused its 

discretion by declining to strike one of his prior strike convictions. (Id. at p. 854.) The 

Cole court concluded the defendant could not argue his sentence was unconstitutional 

because this constituted a challenge to the validity of his plea to a negotiated maximum 

sentence. (Id. at pp. 867–868.) However, “when the plea agreement contemplates an 

adversary hearing on the discretionary question of whether to impose the maximum 

permissible sentence,” the defendant retains the right to challenge how the court exercises 

its discretion in selecting a sentence. (Id. at p. 871.) Section 1237.5 thus did not apply to 
18.

defendant’s claim the trial court abused its discretion in declining to strike his prior 

convictions. (Cole, at p. 872.)

Here, as in Cole, there was no plea bargain between defendant and the 

prosecution. Defendant pled no contest to all charges in the information and admitted the 

enhancement allegation and received no promised benefit for doing so from the 

prosecution. (See Segura, supra, 44 Cal.4th at p. 930 [in a plea bargain, a defendant 

pleads guilty or no contest “in order to obtain a reciprocal benefit” from the 

prosecution].) Defendant’s maximum sentence exposure was calculated to be 120 years 

four months to life, but the trial court gave an indicated sentence of 52 years eight months 

to life and the prosecution made no objection or argument against this sentence on the 

record. Although the court stated the unlikeliness of a lesser sentence, the record reflects 

both sides understood further adversary proceedings would be held regarding how the 

court should exercise its sentencing discretion. Specifically, the matter was referred for 

preparation of a presentence investigation report and continued to a sentencing hearing. 

Prior to the hearing, defendant filed a sentencing brief and statement in mitigation asking 

the court to exercise its discretion to impose the low term and concurrent sentences. At 

the sentencing hearing, the court reviewed the presentence report and heard victim impact 

statements. Both sides also made arguments regarding the mitigating factors with 

defense counsel asking the court to exercise its discretion in deciding “how to craft a 

sentence in this case.” As in Cole, “where adversary proceedings are held on the 

question of punishment, the rationale for limiting the right to appeal under section 1237.5 

does not apply.” (Cole, supra, 88 Cal.App.4th at p. 871.)

Citing Panizzon, the People argue defendant in entering the plea based on the 

indicated sentence essentially agreed to the sentence and was required to obtain a 

certificate of probable cause to challenge the sentence as unlawful. The circumstances in 

Panizzon are inapposite. As previously discussed, “all the trial court did” in Panizzon

was sentence the defendant “in accordance with the previously entered plea.” (Panizzon, 
19.

supra, 13 Cal.4th at p. 78; see also Segura, supra, 44 Cal.4th at p. 930 [the court’s 

acceptance of a plea agreement binds the court and the parties to the agreement]; 

§ 1192.5, subd. (b).) The Panizzon court found that where a defendant agrees to a 

specific sentence as part of a plea bargain and a separate adversary hearing is 

unnecessary, the right of appeal is subject to the requirements of section 1237.5 under the 

“implied” reasoning of Ward. (Panizzon, at p. 79.) In a footnote, the court recognized 

“that Ward was decided in the context of the former indeterminate sentencing laws. 

Under the present determinate sentencing scheme, a plea of guilty to a particular degree 

of a crime, entered without an agreement as to the specific penalty to be imposed, may 

require a separate adversary hearing to determine the appropriate sentence.” (Panizzon, 

at p. 79, fn. 9, italics added.) As in French, defendant in this case did not agree to a 

specified sentence, and his plea “contemplated that the trial court would have discretion 

to impose any appropriate sentence up to the maximum” indicated sentence. (People v.

French, supra, 43 Cal.4th at p. 49.) Because there was no agreed specific sentence and a 

separate adversary hearing was required to determine defendant’s sentence, Panizzon

does not compel defendant’s compliance with section 1237.5. Furthermore, unlike the 

defendant in Panizzon, defendant did not waive the right to appeal his sentence as part of 

his plea.

Significantly, defendant does not challenge the trial court’s authority to impose the 

selected sentence, but instead argues the court erred by imposing the middle term on 

three counts without making certain findings under section 1170. Contrary to the 

People’s assertion, the substance of defendant’s appeal is unlike the challenge in Shelton

because he does not argue the court could not lawfully impose the indicated sentence. 

Pursuant to Ward, Buttram and Panizzon, defendant may challenge whether the court 

erred in selecting his sentence in postplea proceedings without obtaining a certificate of 

probable cause.
20.

II. Challenge to Imposition of the Middle Terms

Defendant argues the trial court erroneously imposed the middle term on counts 6, 

7 and 8 without expressly making a finding on whether his psychological trauma was a 

contributing factor to the offenses warranting imposition of the low term under 

section 1170, subdivision (b)(6)(A). Defendant claims the matter must be remanded for 

resentencing for the trial court to comply with section 1170, subdivision (b)(6).

A. Standard of Review

While the trial court has broad discretion in selecting a sentence, the court’s

“sentencing discretion must be exercised in a manner that is not arbitrary and capricious, 

that is consistent with the letter and spirit of the law, and that is based upon an 

‘individualized consideration of the offense, the offender, and the public interest.’ ” 

(People v. Sandoval (2007) 41 Cal.4th 825, 847.) “To prove an abuse of discretion,

‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing 

decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial 

court is presumed to have acted to achieve legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will not be set aside on 

review.” ’ [Citation.] To meet this burden, the defendant must ‘affirmatively demonstrate 

that the trial court misunderstood its sentencing discretion.’ [Citation.] When ‘the record 

shows that the trial court proceeded with sentencing on the erroneous 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.] If the record is silent, however, the 

defendant has failed to sustain his burden of proving error, and we affirm.” (People v. 

Lee (2017) 16 Cal.App.5th 861, 866–867; see also People v. Gutierrez (2014) 58 Cal.4th 

1354, 1391; People v. Brown (2007) 147 Cal.App.4th 1213, 1229.)
21.

B. Amendments to Section 1170

Effective January 1, 2022, more than a year before defendant’s sentence, Senate 

Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) made the middle term of 

imprisonment the presumptive sentence. (§ 1170, subd. (b)(1), as amended by Stats.

2021, ch. 731, § 1.3.) Prior to Senate Bill 567, the trial court had the discretion to choose 

which of the three terms specified for an offense best served the interests of justice. 

(§ 1170, former subd. (b).) Section 1170, subdivision (b)(1) now states “the court shall, 

in its sound discretion, order imposition of a sentence not to exceed the middle term.”

Also effective January 1, 2022, Assembly Bill No. 124 (2021–2022 Reg. Sess.)

(Assembly Bill 124) amended section 1170, subdivision (b)(6) to create a presumption in 

favor of the low term where one or more specified circumstances were “a contributing 

factor in the commission of the offense” unless “the court finds that the aggravating 

circumstances outweigh the mitigating circumstances that imposition of the lower term 

would be contrary to the interests of justice.” (§ 1170, subd. (b)(6); People v. Banner

(2022) 77 Cal.App.5th 226, 241 (Banner).)7 As relevant here, section 1170, 

subdivision (b)(6) identifies the following specified circumstances: the defendant “has 

experienced psychological, physical, or childhood trauma, including, but not limited to, 

7 Defendant refers only to Senate Bill 567. “During the 2021–2022 legislative term, 

three bills proposing changes to section 1170 in a variety of ways were introduced. They 

were Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5), Assembly Bill No. 1540 (2021–

2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2), and Senate Bill No. 567 ... (Stats. 2021, 

ch. 731, § 1.3). All three bills were passed by the Legislature in September 2021, and 

approved by the Governor and filed with the Secretary of State on October 8, 2021. 

Senate Bill No. 567 ... bears the highest chapter number and is presumed to be the last of 

the three approved by the Governor. (Gov. Code, § 9510.) As such, Senate Bill No. 567

... prevails over Assembly Bill No. 124. (Gov. Code, § 9605, subd. (b).) To the extent 

there are conflicts between the three bills, Senate Bill No. 567 ... takes precedence. (In 

re Thierry S. (1977) 19 Cal.3d 727, 738–739.) As to subdivision (b)(6)(A) of section 

1170, however, the substantive language in Assembly Bill No. 124, Senate Bill No. 1540

..., and Senate Bill No. 567... are not in conflict.” (Banner, supra, 77 Cal.App.5th at 

p. 243, fn. 2 (conc. & dis. opn. of Detjen, A.P.J.).)
22.

abuse, neglect, exploitation, or sexual violence,” or the defendant “is a youth or was a 

youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of 

the offense.” A person is defined as a “youth” if he or she was under 26 years of age on 

the date the offense was committed. (§ 1016.7, subd. (b).) The trial court retains the 

discretion to impose the low term “even if there is no evidence” of the specified 

circumstances in subdivision (b)(6). (§ 1170, subd. (b)(7).) The court must set forth on 

the record the facts and reasons for the sentence imposed. (§ 1170, subd. (b)(5).)

C. Analysis

Defendant contends his “burden was simply to produce sufficient evidence to 

place the court on notice of: (1) his desire for a mitigated sentence under section 1170, 

subdivision (b)(6); and (2) his claim that mental health issues contributed to his offense 

conduct.”8 Defendant asserts once he met this burden, “the onus was on the trial court to 

determine whether [his] psychological trauma was indeed a contributing factor to his 

crime.”

The low term is not the presumptive sentence in every case where the defendant 

asserts one of the specified circumstances applies. (People v. Flores (2022) 73 

Cal.App.5th 1032, 1039.) Imposition of the low term “becomes presumptive only after 

the sentencing court makes findings in addition to those supporting the jury’s verdict [or 

the defendant’s plea]. Under the amended statute, the low term is presumed only if the 

sentencing court first finds the defendant falls into one of the three special categories set 

forth in section 1170, subdivision (b)(6) and, second, finds that circumstance was a 

contributing factor in the commission of the offense. Thus, unlike the middle term, the 

lower term is presumed only after the court makes additional findings ....” (People v. 

8 While defendant argued below that both his psychological trauma and youth were 

mitigating factors, defendant focuses on appeal on whether his psychological trauma

warranted the low term presumption. We discuss youth as a mitigating factor as relevant

to the discussion.
23.

Hilburn (2023) 93 Cal.App.5th 189, 204–205 (Hilburn).) The “sentencing court is tasked 

with assessing mitigating and aggravating factors to impose the middle term only if it 

first determines that the defendant qualifies for treatment under the provision ....” (Id. at 

p. 205.)

“The statute is clear that youth (or one of the other two categories in [§ 1170,

subd.] (b)(6)) must be a contributing factor to the offense in order to qualify for a 

presumption low term.” (Hilburn, supra, 93 Cal.App.5th at p. 204, fn. 6.) Mental illness 

alone does not qualify a defendant for the lower term presumption. (Banner, supra, 77 

Cal.App.5th at p. 241.) “Psychological trauma must attend the illness, and that trauma 

must contribute to the crime under section 1170, subdivision (b)(6).” (Ibid.)

In People v. Frederickson (2023) 90 Cal.App.5th 984 (Frederickson), the 

defendant argued for the first time on appeal the trial court abused its discretion in failing 

to treat the low term as the presumptive sentence when she was 23 years old at the time 

of her offense. The defendant argued nothing in the record showed the trial court made 

the “interests of justice” finding under section 1170, subdivision (b)(6) prior to imposing 

the middle term. (Frederickson, at pp. 988–989.) The Court of Appeal rejected the 

defendant’s argument and held that “in order to trigger the presumption [of the low term], 

there must be some initial showing that the defendant’s youth was a contributing factor, 

and only then must the record affirmatively show compliance with the statute.” (Id. at 

p. 992, italics added.)

The Frederickson court looked at People v. Bruhn (1989) 210 Cal.App.3d 1195 to 

consider what initial showing would be sufficient to trigger the low term presumption. 

(Frederickson, supra, 90 Cal.App.5th at p. 990.) In Bruhn, the Court of Appeal found the 

trial court failed to adequately consider the defendant’s eligibility for federal custody 

commitment for treatment of convicted felons who suffer from problems related to 
24.

combat service in Vietnam under a prior version of section 1170.9.9 (Bruhn, at p. 1197.) 

To trigger section 1170.9, “the defendant must make an initial showing that he served in 

combat while a member of the United States Armed Forces and that he suffers from 

substance abuse or other psychological problems resulting from that service.” (Bruhn, at 

p. 1199.) The record showed the defendant had used heroin and other drugs while 

serving in Vietnam, had difficulty functioning in society upon his return home, and had 

perpetrated the charged theft to secure basic necessities. (Id. at p. 1200.) Once the 

defendant made “a prima facie showing of eligibility” under section 1170.9, the trial 

court “should affirmatively indicate an exercise of discretion” under that statute. (Bruhn, 

at p. 1200.) Because the defendant did make an initial showing of eligibility, the Court of 

Appeal vacated his sentence and remanded for the trial court to resentence the defendant 

“in a manner demonstrating an informed exercise of discretion under section 1170.9.” 

(Id. at pp. 1200–1201.)

The Frederickson court noted the contrast of Bruhn with People v. Young (1991) 

228 Cal.App.3d 171. (Frederickson, supra, 90 Cal.App.5th at p. 991.) In Young, this 

court held the trial court was not obligated to consider the defendant for civil 

commitment under former Welfare and Institutions Code section 3051 where the record 

was insufficient to put the court on notice the defendant may be addicted or in danger of 

becoming addicted to drugs. Although the defendant in Young had used drugs in the past, 

the defendant made no mention of any current or past substance abuse problems, nor was 

there mention of the possibility of civil commitment at the sentencing hearing. (Young, at 

p. 184.) We found Bruhn “clearly distinguishable on its facts” because the defendant in 

9 Under the current version of section 1170.9, the trial court “shall consider ... as a 

factor in favor of granting probation” that the defendant is a veteran who “may be 

suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, 

substance abuse, or mental health problems as a result of the person’s service.” 

(§ 1170.9, subds. (a)–(b)(1).)
25.

Bruhn put forth evidence of his eligibility for federal custody commitment and the 

applicable statute, section 1170.9, was specifically mentioned at the defendant’s 

sentencing. (Young, at p. 186.)

The Frederickson court found this prior case law “does not clarify what initial 

showing would be sufficient to obligate a trial court to make an express finding regarding 

the Section 1170[, subdivision ](b)(6)(B) lower term presumption,” but “suggests that an 

initial showing has been made when the record and/or arguments are sufficient to put a 

trial court on notice that a defendant’s youth may have been a contributing factor in 

commission of the underlying offense.” (Frederickson, supra, 90 Cal.App.5th at

pp. 993–994.) In the case before it, the Frederickson court had “no occasion to decide 

the precise nature of the showing required” because the defendant had not argued for the 

low term presumption below and she conceded the record did not explicitly indicate her 

age was a contributing factor to commission of the offense. (Id. at p. 994.) 

Consequently, the trial court “was not required to make an express finding regarding the 

Section 1170[, subdivision ](b)(6)(B) presumption because nothing in the record shows 

[the defendant’s] youth was a ‘contributing factor’ in the commission of the underlying 

offense.” (Frederickson, at p. 987.)

Defendant argues the Frederickson court gleaned from Bruhn and Young that a 

defendant satisfies his burden under section 1170, subdivision (b)(6) “by presenting 

evidence or argument ‘sufficient to put a trial court on notice’ ” his psychological trauma 

“ ‘may have been a contributing factor’ ” to commission of the offense. This 

misconstrues Frederickson. The Frederickson court found the case law suggests this may 

constitute an initial showing, but expressly declined to determine the precise nature of the 

showing required. We likewise need not determine the precise nature of the showing 

required because defendant in this case similarly failed to present evidence his 

psychological trauma was a contributing factor to commission of his offenses.
26.

The record shows, and the People do not dispute, defendant has suffered 

psychological trauma. Defendant served in the military and deployed to Afghanistan 

from March 2009 to March 2010. While he was in a combat zone, defendant was near a 

blast that killed four people. After defendant was discharged, he was mugged, and pistol 

whipped causing him to lose consciousness. The social worker attested that defendant 

was exposed to multiple traumatic experiences while being raised in the foster care 

system, deployed to Afghanistan and upon discharge from active duty. The social worker 

further reported defendant has difficulty with decision-making processes especially under 

stress or duress after his traumatic experiences in the military and head injury from the 

assault. The record reflected defendant suffered from PTSD and other mental health 

issues, and he had engaged in counseling and educational groups to address his PTSD.

Conspicuously absent from the record though are facts or evidence defendant’s 

psychological trauma was a contributing factor to commission of his offenses. 

Defendant’s sentencing brief cited section 1170, subdivision (b)(6)(A), discussed his 

childhood trauma, military service, and mental health issues, but included only a bare 

assertion his trauma played a “substantial” role in commission of the current offenses. At 

the sentencing hearing, defense counsel asked the trial court to consider defendant’s time 

in the military, service-related disabilities, age, and time in the foster care system, but 

counsel did not discuss how the trauma was a contributing factor to commission of the 

offenses. This omission was presumably because nothing supported such a finding. 

Furthermore, nothing in the probation officer’s report showed a connection between 

defendant’s psychological trauma and his offenses.

Defendant concedes he “made no direct showing that his psychological trauma 

contributed to his offense conduct,” but argues he made this showing “inferentially.” 

Defendant notes he had no juvenile record or adult convictions prior to his March 2009 

deployment and his problems with the law began only after he returned in 2010. 

Defendant essentially claims the trial court should have inferred his psychological trauma 
27.

was a contributing factor to his offenses based on the offenses’ timing. The record 

reflects defendant was only 19 years old when he was deployed to Afghanistan and thus 

his lack of a criminal record before then may simply be attributable to insufficient time to 

realize his criminal potential. Defendant’s argument bears little difference to the 

argument rejected in Frederickson that the defendant only had to show she was a youth at 

the time of her offenses to meet her burden of making an initial showing. Merely because 

defendant’s criminal conduct was chronologically after his traumatic experiences does 

not mean his psychological trauma was a contributing factor to commission of his 

offenses without evidence of a connection between them.

Defendant also argues the evidence shows a causal relationship between his 

trauma and crimes because the social worker reported defendant had difficulty with 

decisionmaking resulting from his traumatic experiences and defendant self-reported his 

PTSD had led to aggressive behavior. Defendant does not adequately explain how this 

shows his trauma was a contributing factor to his prolonged sexual abuse of Susanna. We 

do not discern how this evinces a causal relationship between his psychological trauma 

and the sex offenses he committed.

While defendant presented evidence showing he experienced psychological

trauma, defendant failed to make an initial showing that trauma was a contributing factor 

to commission of his offenses. In the absence of that showing, the trial court was not 

required to affirmatively show compliance with section 1170, subdivision (b)(6) or make 

express findings regarding the low term presumption. (Frederickson, supra, 90 

Cal.App.5th at p. 987; Hilburn, supra, 93 Cal.App.5th at pp. 204–205.)

Defendant argues the record affirmatively shows the trial court did not consider 

his psychological trauma and the court’s actions showed a misunderstanding of the 

relevant legal principles. We disagree. Section 1170, subdivision (b)(6) had been 

effective for more than a year before defendant’s sentence. Defendant cited this statutory 

subdivision in his sentencing brief and specifically asked the court to consider his 
28.

psychological trauma in selecting his sentence in the brief and at the sentencing hearing. 

The court acknowledged and considered defendant is a veteran and suffers from 

service-related disabilities in determining its indicated sentence. At sentencing, the court 

confirmed it considered the circumstances in mitigation including defendant’s age and 

military service. The court reviewed and considered defendant’s sentencing brief and the 

probation officer’s report prior to pronouncing sentence. Nothing in the record shows the 

court was unaware of or misunderstood its statutory sentencing obligations. We presume 

the court knew and applied the correct law in the absence of evidence to the contrary. 

(People v. Thomas (2011) 52 Cal.4th 336, 361.)

We find no abuse of discretion in the trial court’s imposition of the middle term on 

counts 6, 7 and 8 without evidence defendant’s psychological trauma was a contributing 

factor to commission of his offenses.

DISPOSITION

The judgment is affirmed.