Filed 10/20/21 P. v. Irving CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DANIEL IRVING,

 Defendant and Appellant.

 G060195

 (Super. Ct. No. C1651027)

 ORDER MODIFYING OPINION AND 

 DENYING PETITION FOR 

 REHEARING; NO CHANGE IN 

 JUDGMENT

It is ordered that the opinion filed on September 22, 2021, be modified in 

the following particulars: 

On page 8, second full paragraph, the fourth sentence is deleted and 

replaced with the following: “The prosecutor added Sirmons reviewed the police reports 

and offered his opinion as to the collision’s primary factors.” 

On page 8, third full paragraph, the second sentence is deleted and replaced 

with the following: “Counsel explained the prosecutor asked Sirmons to calculate 

Irving’s speed and the primary collision factor, and he prepared two reports.” 
2

On page 15, first full paragraph, the second sentence is deleted and replaced 

with the following: “As a result of counsel’s failure, Irving argues he received 

ineffective assistance of counsel.”

On page 15, second full paragraph is deleted and replaced with the 

following: “It is true the probation officer stated Irving was presumptively ineligible for 

probation because he willfully inflicted great bodily injury. The prosecutor relied on that 

fact and the fact Irving was on probation for driving under the influence to argue 

probation was inappropriate. It is also true Irving’s trial counsel did not dispute the 

probation officer’s conclusion.”

The petition for rehearing is DENIED. This modification does not effect a 

change in judgment.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.
Filed 9/22/21 P. v. Irving CA4/3 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DANIEL IRVING,

 Defendant and Appellant.

 G060195

 (Super. Ct. No. C1651027)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Santa Clara, Jacqueline 

M. Arroyo, Judge. Affirmed.

Jason Szydlik, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric 

D. Share and Ashley Harlan, Deputy Attorneys General, for Plaintiff and Respondent.
2

Daniel Irving appeals from a judgment after a jury convicted him of two 

counts of driving under the influence of alcohol and causing bodily injury to another 

person. Irving argues insufficient evidence supports his convictions, the trial court erred 

by denying his right to cross-examination, and the court erred by denying probation based 

on the mistaken belief he was ineligible. None of his contentions have merit, and we 

affirm the judgment. 

FACTS

Just before midnight, Antonio Maldonado was walking with his brother-inlaw, Edgar Cantoran, on Market Street in downtown San Jose near the convention center.

Cantoran was on his cell phone but ended the call when they approached the intersection. 

The intersection was well lit and visibility was excellent. 

They pressed the pedestrian crosswalk button and began crossing the street. 

Cantoran initially said they entered the intersection when the red hand signaling do not 

walk was flashing (too early) and then said they were in the crosswalk when the red hand 

signaling do not walk started flashing (too late).

They were in the middle of the crosswalk when Maldonado heard Irving’s 

car approaching “really fast.” Maldonado, who was a couple of steps behind Cantoran, 

retreated toward the sidewalk, but Cantoran ran toward the opposite side of the street. 

Irving’s Jetta hit Cantoran. Maldonado ran to Irving and punched him. Maldonado tried 

to talk to Cantoran, but he was unconscious and seizing.

Emergency response personnel arrived and took Cantoran to the hospital. 

Inside Irving’s vehicle, police officers located an open container of alcohol, cannabis 

substances, and cannabis paraphernalia.

Officer Zachary Preuss arrived at the scene and determined the applicable 

speed limit was 35 miles per hour. Irving told Preuss that he was “120 [percent]

positive” Cantoran was “in the crosswalk on a green light.” Irving claimed he was 
3

driving about 35 miles per hour. Irving initially denied drinking any alcohol or ingesting 

any cannabis. Irving ultimately admitted he drank two or three beers and smoked 

cannabis between two and four hours before the collision. Preuss conducted field 

sobriety and breathalyzer tests. The breathalyzer test measured Irving’s blood alcohol 

content at 0.14 and 0.13 percent. At the police station a few hours later, Irving submitted 

to a blood draw.

Cantoran remained in a coma for two weeks—he suffered a brain injury, 

including brain bleeding, and acute respiratory failure. After waking from his coma, 

Cantoran was unable to speak. As a result of his injuries, Cantoran developed seizures 

and experienced changes to his personality. He was unable to recognize his partner and 

their child.

A third amended information charged Irving with the following: driving 

under the influence of alcohol and causing bodily injury to another person (Veh. Code, 

§ 23153, subd. (a)) (count 1); driving under the influence of alcohol with a blood alcohol 

level of 0.08 percent and causing bodily injury to another person (Veh. Code, § 23153, 

subd. (b)) (count 2); and driving under the combined influence of any alcoholic beverage 

and drug and causing injury to another person (Veh. Code, § 23153, subd. (g))1(count 3). 

The information charged him with concurrently committing the following acts forbidden 

by law or neglecting to perform a legal duty on each count: basic speed law (Veh. Code, 

§ 22350); prima facie speed law (Veh. Code, §§ 22351-22352); unsafe lane change (Veh. 

Code, § 22107); and failure to yield the right of way at a crosswalk (Veh. Code,

§ 21950). It also alleged he personally inflicted great bodily injury as to each count. 

(Pen. Code, §§ 12022.7, subd. (b), 1203, subd. (e)(3).) Finally, it alleged he suffered a 

prior driving under the influence conviction. (Veh. Code, § 23152.) 

1

The information erroneously cited to subdivision (f). 
4

At trial, Husband and Wife testified they were driving in downtown San 

Jose about 20 to 30 miles per hour. Husband did not recall seeing any pedestrians as he 

drove. They testified a green Volkswagen Jetta passed them, swerved into their lane, and 

swerved around the car in front of them. They estimated the Jetta was traveling 40 to 60 

miles per hour. They both testified the light was green as the Jetta entered the 

intersection. Neither Husband nor Wife saw anyone in the crosswalk. Husband heard a 

loud sound no more than 10 seconds later. As they drove through the intersection, they 

saw a man lying underneath a car. Husband said, “[A]ll of a sudden I [saw] people on the 

sidewalk just stop . . . .” Husband estimated there were more than 10 people standing

nearby. Wife estimated there were more than five or six people. Husband stopped the 

car, and Wife called 911. They walked to the intersection and saw a bunch of 

pedestrians.

Preuss testified concerning his patrol area. When the prosecutor asked 

Preuss what was “the foot traffic like[]” on a Friday night on the street in question, he 

answered the following: “It varies. If it’s a nice night it can be pretty busy with traffic.”

Detective Troy Sirmons testified as an expert in accident reconstruction, 

i.e., speed and measurements. Sirmons analyzed the data supplied to him by the 

investigating officers and conducted his own measurements. Sirmons determined Irving 

was travelling between 38.19 to 46.61 miles per hour. He added that depending on 

Cantoran’s location within the crosswalk, Irving could have been travelling between 

37.49 and 48.43 miles per hour. He also stated the calculation could vary depending on 

whether Cantoran’s body stopped naturally or was stopped by the parked car. Sirmons 

opined Irving’s minimum speed could have been 45.49 miles per hour.

Mark Burry, a supervising criminalist, testified as an expert in the effects of 

alcohol and cannabis on the human body as related to driving a motor vehicle. Burry 

testified Irving’s blood was analyzed at 3:11 a.m. and he had 0.097 blood alcohol content 
5

and 9.050 nanograms per milliliter of THC and 120.356 nanograms per milliliter of THCCOOH.2

 Burry opined that at 11:45 p.m., that individual’s blood alcohol content would 

be between 0.13 and 0.16 percent. Burry explained a person driving a vehicle in this 

condition would be experiencing cognitive function impairments, including increased 

impulsiveness, overconfidence, and risk-taking behavior and decreased sensory function, 

including visual acuity, fine motor control, balance, and depth perception. Burry 

admitted THC’s effects were less studied than alcohol and there was not a legal limit for 

THC. He stated though a combination of alcohol and THC, both central nervous system 

depressants, would increase effects and impairment. Based on a hypothetical mirroring 

the facts of the case, Burry opined that based on the alcohol alone, the individual was too 

impaired to safely operate a vehicle. 

Irving offered the testimony of Brad Wong, an expert in speed and 

automobile/pedestrian collisions and human factors of drivers. Wong determined Irving 

was travelling between 35.25 and 36.6 miles per hour. Based on his analysis, Wong 

could not say within reasonable engineering certainty that the vehicle was travelling 

faster than 35 or 36 miles per hour. On cross-examination, Wong clarified the 35 to 36 

miles per hour was a minimum speed calculation. He also calculated Irving was 

travelling at a maximum speed of 51 miles per hour, but he did not include that 

calculation in his report. He admitted it was “possibl[e]” Irving was travelling 51 miles 

per hour but did not find that rate to be “within reasonable engineering certainty.”

The jury convicted Irving of counts 1 and 2 and found true he personally 

inflicted great bodily injury. The jury acquitted him of count 3. At a bifurcated bench 

trial, the trial court found true Irving suffered the prior conviction. The trial court 

sentenced Irving to prison for six years and four months.

2

The parties stipulated Irving’s blood alcohol content was .097 percent and 

contained 9.050 nanograms per milliliter of THC and 120.356 nanograms per millileter of 

THC-COOH.
6

DISCUSSION

I. Sufficiency of the Evidence

Citing to and disputing the prosecutor’s statement during closing argument 

that it “‘was a foot trafficked area[,]’” Irving argues insufficient evidence supports his 

convictions because he did not proximately cause Cantoran’s injuries.3 We disagree. 

“‘[W]e “examine the whole record in the light most favorable to the 

judgment to determine whether it discloses substantial evidence—evidence that is 

reasonable, credible and of solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the evidence. 

[Citation.] [¶] . . . [Citation.] “[I]f the circumstances reasonably justify the jury’s 

findings, the judgment may not be reversed simply because the circumstances might also 

reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh 

evidence or reevaluate a witness’s credibility.’ [Citations.] ‘Resolution of conflicts and 

inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” 

(People v. Brown (2014) 59 Cal.4th 86, 105-106.) 

“‘The criminal law . . . is clear that for liability to be found, the cause of the 

harm not only must be direct, but also not so remote as to fail to constitute the natural and 

probable consequence of the defendant’s act.’ (People v. Roberts (1992) 2 Cal.4th 271, 

319 . . . .) In determining whether a defendant’s acts were the proximate cause of the 

death of a human being, we ask whether the evidence sufficed to permit the jury to 

conclude that the death was the natural and probable consequence of defendant’s act. 

[Citation.]” (People v. Taylor (2004) 119 Cal.App.4th 628, 639-640.)

3

Irving does not contend there was insufficient evidence supporting any 

other elements of the offenses. He only challenges the causation element. We limit our 

discussion accordingly. 
7

“[A]n ‘independent’ intervening cause will absolve a defendant of criminal 

liability. [Citation.] However, in order to be ‘independent’ the intervening cause must be 

‘unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of 

an exonerating, superseding cause.’ [Citation.] On the other hand, a ‘dependent’ 

intervening cause will not relieve the defendant of criminal liability. ‘A defendant may

be criminally liable for a result directly caused by his act even if there is another 

contributing cause. If an intervening cause is a normal and reasonably foreseeable result 

of defendant’s original act the intervening act is “dependent” and not a superseding 

cause, and will not relieve defendant of liability. [Citation.] “[] The consequence need 

not have been a strong probability; a possible consequence which might reasonably have 

been contemplated is enough. [] The precise consequence need not have been foreseen; it 

is enough that the defendant should have foreseen the possibility of some harm of the 

kind which might result from his act.” [Citation.]’ [Citation.]” (People v. Funes (1994) 

23 Cal.App.4th 1506, 1523.)

Here, in asserting there was no evidence of pedestrian foot traffic in the 

area, we discern Irving’s argument to be there was an independent intervening cause 

relieving him of criminal liability: it was unforeseeable there would be pedestrians 

walking in the crosswalk against the do not walk signal. Irving suggests the bystanders 

were motorists who, like Husband and Wife, parked and walked to the scene instead of 

pedestrians. His claims are belied by the record. 

The evidence demonstrated the incident took place in downtown San Jose 

near the convention center. Preuss testified the street in question could be pretty busy 

with foot traffic. Both Husband and Wife testified that as they drove past Cantoran, there 

were already people gathering around the scene. Husband estimated this was no more 

than 10 seconds after Irving hit Cantoran. From this evidence the jury could reasonably 

conclude it was foreseeable there was pedestrian foot traffic in the area. This evidence 
8

supported the conclusion Irving should have foreseen the possibility of pedestrians

walking in the crosswalk, even against the do not walk signal. (See Veh. Code, § 21950, 

subd. (d) [vehicle driver “duty of exercising due care for the safety of any pedestrian 

within any marked crosswalk or within any unmarked crosswalk at an intersection”].) 

Cantoran and Maldonado walking in the crosswalk against the do not walk signal was a 

reasonably foreseeable intervening dependent cause that did not relieve Irving of criminal 

liability for his speeding while under the influence of alcohol. There was sufficient 

evidence Irving proximately caused Cantoran’s injuries, and, thus, substantial evidence 

supported his convictions.

II. Denial of Cross-Examination

Irving contends the trial court erred by denying his right to cross-examine 

Sirmons concerning his two reports detailing the primary and associated collision factors. 

Not so. 

A. Background

Before the prosecutor offered Sirmons’s testimony, the prosecutor moved 

to exclude any cross-examination of Sirmons as to who was at fault. During a hearing on 

the motion, the prosecutor stated Sirmons prepared a report that estimated Irving’s speed.

The prosecutor explained Sirmons’s calculations were incorrect and his revised estimates 

showed Irving’s speeds were lower. The prosecutor added Sirmons reviewed the police 

reports and offered his opinion as to the collision’s primary factors of the collision. The 

prosecutor intended to question him only as an expert in accident reconstruction 

concerning speed and measurements. He did not intend to question Sirmons regarding 

the collision’s cause because that was for the jury to decide.

Irving’s trial counsel stated he agreed with much of the prosecutor’s legal 

authority and he did not intend to question Sirmons about fault. Counsel explained 

though Sirmons prepared two reports. Counsel said that in his first report, Sirmons 
9

miscalculated Irving’s speed and opined the primary collision factor was his speeding, 

and the associated collision factors were his failure to yield to a pedestrian and driving 

under the influence. Counsel stated that in his second report, Sirmons calculated his 

speed to be lower and opined the primary collision factor was Cantoran violating the 

pedestrian walk/don’t walk statute and the associated factors were Cantoran entering the 

intersection against the light and Irving driving under the influence. Counsel asserted he 

should be allowed to question him about those factors “without using the word ‘fault’ or 

‘substantial factor.’”

The trial court ruled it would permit the prosecutor to examine Sirmons 

about Irving’s speed and measurements. The court ruled Irving’s trial counsel could not 

question him about the primary or associated factors. The court concluded trial counsel 

could question him “very carefully” about his initial calculations and his revised 

calculations and the errors he made.

B. Law

“‘California law allows expert testimony that is related “to a subject that is 

sufficiently beyond common experience that the opinion of an expert would assist the 

trier of fact.”’ [Citations.] Evidence Code section 805 permits such testimony to 

embrace an ultimate issue in the case, but experts may not offer their legal conclusions to 

the jury. [Citation.]” (People v. Spence (2012) 212 Cal.App.4th 478, 507.) “‘There is no 

hard and fast rule that the expert cannot be asked a question that coincides with the 

ultimate issue in the case. . . . ‘[T]he true rule is that admissibility depends on the nature 

of the issue and the circumstances of the case, there being a large element of judicial 

discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate 

issue, even when it is the sole one, as for example where the issue is the value of an 

article, or the sanity of a person; because it cannot be further simplified and cannot be 
10

fully tried without hearing opinions from those in better position to form them than the 

jury can be placed in.” [Citations.]’ [Citations.]” (Id. at p. 509.) We review a trial 

court’s ruling on the admissibility of expert testimony for an abuse of discretion. (Ibid.) 

C. Analysis 

Here, the trial court did not abuse its discretion by precluding Irving’s trial 

counsel from cross-examining Sirmons about the primary and associated factors. The 

sole issue in this case was causation. The jury heard evidence Irving was speeding, under 

the influence of alcohol and marijuana, and driving erratically, and drove through a 

crosswalk. The jury also heard evidence Cantoran was in the crosswalk while the do not 

walk signal was illuminated. Based on the evidence presented at trial, the jury had to 

determine whether Irving’s conduct was a substantial factor in causing Cantoran’s 

injuries. (People v. Sanchez (2001) 26 Cal.4th 834, 848-849; CALCRIM No. 240.) 

Sirmons’s opinions concerning the collision’s primary and associated 

factors were an impermissible legal conclusion that coincided with the ultimate issue in 

the case. (Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432 

[police officer’s opinion driver was “‘most responsible’” for accident was a legal 

conclusion and not proper subject for expert opinion].) Although Irving’s trial counsel 

assured the trial court it would not use the words fault or substantial factor, that is 

precisely what counsel sought to elicit from Sirmons. In his second report, Sirmons 

opined the primary factor of the collision was Cantoran violating the pedestrian 

walk/don’t walk statute. The jury could rely on that expert opinion testimony to conclude 

Irving’s conduct was not a substantial factor in causing Cantoran’s injuries. That was an 

ultimate issue in the case, and thus Sirmons’s testimony was impermissibly too helpful to 

the jury in performing its duty. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 

1155, 1183 [trial court excludes expert opinions that invade jury’s province because in 

some cases they are “too helpful”].) 
11

Additionally, Sirmons’s opinion testimony concerning the collision’s 

primary and associated factors were impermissible because they could be further 

simplified. The parties presented expert testimony about Irving’s speed and intoxication. 

The jury also heard evidence Cantoran was on his cell phone as he approached the 

intersection, and he walked in the crosswalk in violation of the pedestrian do no walk 

signal. It was from this further simplified evidence that the jury could determine who 

caused the collision. The jury was as competent as Sirmons to weigh all the evidence and 

draw a conclusion on the issue of Irving’s guilt. (People v. Coffman and Marlow (2004) 

34 Cal.4th 1, 77.) 

Irving cites to People v. Glass (1968) 266 Cal.App.2d 222 (Glass).4 In that 

case, defendant, who was intoxicated, was driving between 60 and 65 miles per hour on a 

road with a posted speed limit of 45 miles an hour. (Id. at pp. 223-224.) Repair crews 

worked at an intersection and the road was significantly narrowed. (Id. at p. 224.) 

Defendant collided with a repair truck and killed two workmen. (Ibid.) There was 

evidence there was no flagman present to warn motorists of the repair crews, no speed 

reduction signs, and no barricades nearby to direct traffic out of the danger zone. (Ibid.) 

The trial court excluded a traffic engineer’s expert witness testimony concerning the 

safety measures because it concerned the ultimate issue at trial. (Id. at pp. 224-225.) The 

Court of Appeal concluded this was error because the evidence could have shown that the 

unsafe condition of the road was the accident’s sole cause. (Id. at p. 227.)

Unlike Glass, here Irving’s trial counsel sought to question Sirmons about 

the primary and associated factors of the collision. In other words, counsel wanted to 

elicit testimony Cantoran caused the collision by violating the pedestrian do not walk 

signal and walking in the crosswalk against a red flashing hand. What the Glass court 

4

Disapproved on other grounds in People v. Superior Court (1972) 6 Cal.3d 

757, 765-766, footnote 7. 
12

held was that the trial court erred by excluding evidence of the underlying conditions of 

the collision. The trial court here admitted evidence of the underlying conditions of the 

collision—Irving’s intoxication, speeding, reckless driving, and Cantoran’s violating the 

pedestrian do not walk signal—and left it to the jury to decide the ultimate issue of who 

caused the collision. Glass does not hold an expert can offer an opinion on the ultimate 

issue of guilt. Thus, the trial court did not abuse its discretion by denying Irving the right 

to cross-examine Sirmons concerning the collision’s primary and associated factors. 

Because the court did not err, Irving suffered no prejudice. 

III. Probation Ineligibility 

Irving asserts the trial court erred by denying him probation based on the 

mistaken belief he was presumptively ineligible. Alternatively, Irving asserts he received 

ineffective assistance of counsel. We discuss these contentions below. 

A. Background

In the probation report, the probation officer stated Irving had “[l]imited 

eligibility pursuant to” Penal Code section 1203, subdivision (e)(3)—a trial court must 

not grant probation to any person who “willfully inflicted great bodily injury” except in 

unusual cases in which it serves the interests of justice. She indicated that although he 

had suffered no felony convictions, he had suffered two alcohol related misdemeanor 

convictions, one of which was for driving under the influence of alcohol, and he was on 

probation when he committed the current offense. The probation officer stated there 

were no mitigating circumstances and four aggravating circumstances, which were the 

following: the manner in which Irving conducted the crime indicates planning; the crime 

involved the actual taking of great monetary value; Irving’s convictions were of 

increasing seriousness; and Irving’s probation performance was poor. The probation 

officer stated she considered the mitigated term but Cantoran’s severe injuries 
13

outweighed such a sentence. She recommended the trial court impose the middle term of 

two years on count 1 plus five years for the great bodily injury enhancement for a total of 

seven years in prison.

Irving’s trial counsel submitted a sentencing brief that requested the trial 

court impose probation on 26-year-old Irving. Counsel explained Irving was exposed to 

alcohol and methamphetamine in utero and he has suffered from developmental, 

psychological, and behavioral problems his entire life. However, counsel did not address 

whether Irving was eligible for probation.

At the sentencing hearing, the trial court indicated it had read the written 

submissions. The prosecutor requested the trial court not impose a sentence less than six 

years and four months. The prosecutor added probation was inappropriate based on the 

fact Irving was on probation for driving under the influence of alcohol when he drove 

intoxicated and hit Cantoran leaving him with “the brain capacity of a five-year-old.” 

Irving’s counsel requested the trial court sentence Irving to probation. 

Counsel stated Irving “disagree[d] with the probation officer’s report in many respects, 

and recommendation.” Counsel disagreed Irving’s prior convictions establish a pattern or 

that he lacked remorse. However, counsel did not dispute Irving was presumptively 

ineligible for probation. 

The trial court explained it was very familiar with the facts and spent 

considerable time reflecting on the case. The court said, “it is very difficult because I 

understand how young . . . Irving is and how he didn’t have fly [sic] malicious intent to 

hurt anyone.” The court added though it had to consider Cantoran’s and his family’s 

damage, trauma, and loss. After stating it had to consider the facts, law, and aggravating 

and mitigating factors, the court said, “With respect to sentencing, probation is denied.” 

The court sentenced Irving to the low term of 16 months on count 1 and a consecutive 

term of five years on the great bodily injury enhancement for a total of six years and four 

months in prison. 
14

B. Law

“The decision whether to grant or deny probation is reviewed under the 

abuse of discretion standard. [Citations.] ‘An order denying probation will not be 

reversed in the absence of a clear abuse of discretion. [Citation.] In reviewing the matter 

on appeal, a trial court is presumed to have acted to achieve legitimate sentencing 

objectives in the absence of a clear showing the sentencing decision was irrational or 

arbitrary. [Citations.]’ [Citation.]” (People v. Ferguson (2011) 194 Cal.App.4th 1070, 

1091.)

“‘Defendants are entitled to sentencing decisions made in the exercise of 

the “informed discretion” of the sentencing court. [Citations.] A court which is unaware 

of the scope of its discretionary powers can no more exercise that “informed discretion” 

than one whose sentence is or may have been based on misinformation regarding a 

material aspect of a defendant’s record.’ [Citation.] In such circumstances, . . . the 

appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ 

that the trial court would have reached the same conclusion ‘even if it had been aware 

that it had such discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 

1391 (Gutierrez).) “Where . . . a sentence choice is based on an erroneous understanding 

of the law, the matter must be remanded for an informed determination. [Citations.]” 

(People v. Downey (2000) 82 Cal.App.4th 899, 912.)

“Remand for resentencing is not required, however, if the record 

demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, 

remand is unnecessary if the record is silent concerning whether the trial court 

misunderstood its sentencing discretion. Error may not be presumed from a silent record. 

[Citation.] ‘“[A] trial court is presumed to have been aware of and followed the 

applicable law.” [Citations.]’ [Citation.]” (People v. Brown (2007) 147 Cal.App.4th 

1213, 1228-1229; Gutierrez, supra, 58 Cal.4th at p. 1390.)
15

C. Analysis

Irving asserts the trial court mistakenly believed he was presumptively 

ineligible for probation and he forfeited appellate review of this issue because his trial 

counsel failed to dispute that proposition in his sentencing brief or at the hearing. As a 

result of counsel’s failure, Irving argues he received effective assistance of counsel.

It is true the probation officer stated Irving was presumptively ineligible for 

probation because he willfully inflicted great bodily injury. It is also true his trial counsel 

did not dispute the probation officer’s conclusion. 

But we cannot conclude the trial court mistakenly believed Irving was 

presumptively ineligible for probation based on the record before us. During the 

sentencing hearing, the trial court stated, “[Irving] didn’t have [any] malicious intent to 

hurt anyone.” Based on the court’s statement, we can reasonably conclude it did not 

proceed based on the conclusion Irving “willfully inflicted great bodily injury.” Because 

we presume the trial court was aware of and followed the applicable law, we cannot 

conclude the court denied Irving probation based on the mistaken belief he was 

presumptively ineligible for probation. Moreover, the fact the court weighed the 

circumstances for and against probation indicates it was aware it had a choice. 

Additionally, we cannot presume from a silent record the court erred. This 

was not a situation where the court made any comments demonstrating it believed Irving 

was presumptively ineligible for probation. In fact, the court made a factual finding that 

removed him from presumptive ineligibility. Based on this record, we conclude the trial 

court did not deny Irving probation under the mistaken belief he was presumptively 

ineligible. 
16

DISPOSITION

The judgment is affirmed. 

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.