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Filed 4/28/23 P. v. Hempstead CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TYCORY TRAVON HEMPSTEAD,

Defendant and Appellant.

C096992

(Super. Ct. No. 20FE007349)

Appointed counsel for defendant Tycory Travon Hempstead asked this court to 

conduct an independent review of the record to determine whether there are any arguable 

issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We requested supplemental 

briefing from the parties regarding whether defendant is entitled to relief under recent 

changes to sentencing law, including in Senate Bill No. 81 (Stats. 2021, ch. 721, § 1)
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(Senate Bill 81) amending Penal Code section 13851to provide guidance on mitigating 

circumstances affecting the imposition of sentence enhancements.

In supplemental briefing, defendant contends this case should be remanded for the 

trial court to exercise its discretion to dismiss (1) the strike that doubled his sentence for 

robbery under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) as a multiple 

enhancement (§ 1385, subd. (c)(2)(B)), and (2) the five-year enhancement for a prior 

serious felony conviction (§ 667, subd. (a)) because the conviction was over five years 

old (§ 1385, subd. (c)(2)(H)). The People respond that defendant forfeited any claim 

based on section 1385 by failing to raise the issue below. We agree with the People and 

will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This case was the subject of a prior appeal, People v. Hempstead (Mar. 11, 2022, 

C092891) [nonpub. opn.] (Hempstead), from which we take the following background:

“At about 3:00 p.m. on May 6, 2020, motel employee Jonathan Valenti received 

complaints about room 214. Valenti went up to the room to investigate and heard a 

commotion. He could not see into the room and did not know what was going on inside 

the room. As he approached, the first thing he heard was banging against the door that 

sounded like a body falling against a door. Valenti knocked on the door two times and 

defendant opened it a couple [of] seconds later. The room was in disarray and the victim 

was standing behind defendant. Defendant appeared uninjured. The victim was bleeding 

from the back of her head and from her mouth.

“Defendant turned back into the room, walked to the back of the room, and picked 

up what looked like a wallet. Defendant then walked out of the room. The victim said 

defendant was taking her wallet. According to the motel’s surveillance camera, 

1 Undesignated statutory references are to the Penal Code.
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defendant went down the back staircase and jumped the fence towards the houses in the 

neighborhood. According to Valenti, the police arrived about five minutes after he 

reached the room.

“The victim called 911 and asked the dispatcher to send someone to her location. 

She told the dispatcher, ‘My boyfriend put his hands on me, the back of my head is 

busted, he ran off with my money, my wallet . . . my baby is, I don’t know . . . .’ When 

asked what happened, the victim replied, ‘Um, me and my boyfriend, we got into it.’ She 

further elaborated, ‘I’m the sole provider so I had all the money. He wanted to leave. He 

had n–no money to leave. I had already hidden my wallet. So he was getting ready to 

leave. And he was looking for my wallet.’ The victim told the dispatcher defendant ran 

out the door with her wallet. She said all of this happened 15 minutes prior to her call.

“A Sacramento Sheriff’s Deputy went to the motel. He interviewed the victim. The 

victim was upset and in tears.

“The victim told the deputy she had been in a relationship with defendant off and 

on over the past 14 years. The two of them had a child together. The victim informed 

the deputy the dispute between her and defendant started because she found some 

messages defendant sent to other women. The victim learned about these messages the 

day before the incident. She believed defendant would want to leave when confronted 

with this information, so she secreted her money wallet and another wallet in a baby bag 

and hid the baby bag under the bed.

“When the victim confronted defendant about his infidelity, he wanted her money 

and he wanted to leave. The victim told the deputy when she refused to give him the 

money, defendant punched her in the face and head approximately seven times. The 

victim also told the deputy she and defendant had tussled over a baby bag. She grabbed 

the baby bag and held it against her chest and defendant pulled on it to get it away from 

her. Defendant then picked her up and slammed her to the ground causing her head 

injury. She said once defendant got the baby bag from her, he took the wallets and then 
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left the room.

“Sheriff’s deputies arrested defendant nearby shortly after the call. He had the 

victim’s wallet with her identification and credit card and a large wad of cash. They also 

found the victim’s other wallet in a nearby backyard in which defendant had been 

spotted.” (Hempstead, supra, C092891.)

A jury found defendant guilty of felony robbery and misdemeanor intimate partner 

battery. (§§ 211, 243 subd. (e)(1).). (Hempstead, supra, C092891.) The trial court then 

found that defendant had been convicted of a prior serious felony (§ 667, subds. (a) and 

(b)-(i)). (Hempstead, C092891.) The trial court sentenced defendant to 11 years,

composed of the middle term of three years for robbery, doubled by the prior strike

conviction, and five years for a prior serious felony conviction. (Ibid.) The court 

sentenced defendant to a consecutive term of one year in county jail for intimate partner 

battery and applied defendant’s presentence credits to this term. (Ibid.)

We held the trial court erred in failing to stay defendant’s sentence for intimate 

partner battery under section 654, given defendant’s single objective to obtain the 

victim’s money. (Hempstead, supra, C092891.) The parties also agreed, as did we, that 

the case should also be remanded for resentencing under Assembly Bill No. 518 (Stats. 

2021, ch. 441, § 1), effective January 1, 2022, which amended section 654 to give the 

trial court discretion to impose sentence on any offense subject to the bar on multiple 

punishments, rather than the current requirement that the court selects the offense with 

the longest potential prison term. (Hempstead, C092891.) We vacated the sentence and 

remanded it for resentencing. (Ibid.)

Defense counsel filed a resentencing memorandum requesting the trial court 

sentence defendant to the four-year term recommended in the probation report in 

defendant’s original sentencing. The memorandum described defendant’s progress while 

imprisoned, including his training to fight forest fires, and attached letters of support 

from defendant’s family members and the community.
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The trial court resentenced defendant to the same term as before. The court 

declined to impose a sentence based on misdemeanor intimate partner battery as the 

primary offense under the amendment to section 654, but rather stayed the sentence on 

that offense. The court also declined to strike the five-year prior conviction enhancement 

under section 1385.

The trial court noted defendant had 143 days of custody credit and 21 days of 

good time/work time credit for a total of 164 days as of the date of his original sentence. 

The court stated that the Department of Corrections and Rehabilitation (CDCR) would 

recalculate defendant’s further credits up to the date of resentencing.

The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), and a 

corresponding $300 parole revocation fine (suspended unless parole is revoked) 

(§ 1202.45).

Defendant timely appealed this judgment.

In a letter to the superior court, defendant’s appointed appellate counsel, citing

People v. Buckhalter (2001) 26 Cal.4th 20, stated that the court erred in directing the 

CDCR to recalculate defendant’s presentence credits, which the court itself was required 

to do. (Sangeeta Sinha, letter to Hon. Ernest W. Sawtelle, Nov. 17, 2022.)

In response to the letter, the trial court issued a minute order that recalculated 

defendant’s presentence custody credits, adding 707 days for the period from the original 

sentencing to the date of resentencing, and directed the CDCR to recalculate defendant’s 

additional good time/work time credits. The court issued an amended abstract of 

judgment.

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2 We sua sponte take judicial notice of the defendant’s counsel’s letter, the trial 

court’s minute order in response to defense counsel’s letter, and the amended abstract of 

judgment. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
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Thereafter, defendant’s appointed counsel asked this court to conduct an 

independent review of the record under People v. Wende to determine whether there are 

any other arguable issues on appeal. Upon review of the record, we requested the parties 

to provide supplemental briefing on whether defendant was entitled to relief under the 

amendments to section 1385 made by Senate Bill 81 or other recent changes to 

sentencing laws. Defendant and the People filed letter briefs contesting whether remand 

was warranted.

DISCUSSION

In his supplemental brief, defendant asserts that the trial court did not recognize 

that it possessed discretion under section 1385, subdivision (c)(2)(B) to dismiss 

defendant’s strike as a multiple enhancement. Defendant further maintains that, while the 

trial court did recognize it had the authority to strike defendant’s five-year prior 

conviction enhancement and declined to do so, the court did not give great weight to the 

age of the conviction — for carjacking in 2015 (§ 215, subd. (a)) — as a factor mitigating 

in favor of dismissal of this enhancement (unless dismissal would endanger public 

safety), as required by section 1385, subdivision (c). The People respond that defendant

forfeited any claim based on the amended version of section 1385 by failing to raise it at 

defendant’s resentencing on September 2, 2022, more than nine months after the 

amendments went into effect on January 1, 2022. We agree with the People, and 

therefore do not reach the other arguments raised in the parties’ supplemental briefs.

Senate Bill 81 amended section 1385 to include subdivision (c)(1)-(2),3 which 

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

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

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

3 Effective June 30, 2022, the Legislature enacted Assembly Bill No. 200, which 

made technical, nonsubstantive changes to these provisions. (Stats. 2022, ch. 58, § 15.)
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under this subdivision, the court shall consider and afford great weight to evidence 

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

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

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

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

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

physical injury or other serious danger to others. [¶] (B) Multiple enhancements are 

alleged in a single case. In this instance, all enhancements beyond a single enhancement 

shall be dismissed. [¶] . . . . (H) The enhancement is based on a prior conviction that is 

over five years old.”

At the resentencing hearing on September 2, 2022, the trial court stated, “I do 

understand that I have the right to – to strike under [section] 1385 the five-year prior and 

I decline to do that as well.” Defendant maintains we should vacate his sentence and 

remand for resentencing, because the record is devoid of any indication that the trial court

considered and gave great weight to dismissing the five-year prior or the strike under 

section 1385, subdivision (c)(2)(B) and (H).

We conclude defendant has forfeited this issue by not raising it in defendant’s 

sentencing memorandum or at the resentencing hearing. A “defendant cannot challenge 

the trial court’s sentencing choice for the first time on appeal because ‘defects in the 

court’s statement of reasons are easily prevented and corrected if called to the court’s 

attention’ at the time of sentencing.’ ” (People v. Flowers (2022) 81 Cal.App.5th 680, 

683-684, quoting People v. Scott (1994) 9 Cal.4th 331, 353 (Scott); see also People v. 

Anderson (2023) 88 Cal.App.5th 233, 241-242.)

Defendant argues that he did not forfeit his claims based on amended section 

1385, because by requesting that the trial court impose a four-year term as recommended 

by the probation report, defense counsel impliedly asked the trial court to dismiss the 

five-year enhancement under section 1385, subdivision (c)(2) and (H). Defendant points 
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out that the probation report calculated the four-year term without reference to the fiveyear enhancement. However, at the sentencing hearing, defense counsel asked the court 

to impose a four-year term based on defendant’s “progress in custody and then also the 

support that he has in the community,” which was the same argument defendant raised in 

his sentencing memorandum. Even if it was counsel’s intent to raise section 1385, 

subdivision (c), these statements were not sufficient to notify the trial court that defendant 

was invoking a statute requiring the court to exercise its discretion to dismiss an 

enhancement based on the age of the prior conviction. When the trial court added five 

years to defendant’s sentence under section 667, subdivision (a), defendant was obligated 

to object or otherwise inform the court that section 1385, subdivision (c) identified this 

enhancement as subject to dismissal. He did not, and therefore, forfeited the issue on 

appeal.

Next, defendant argues he did not have a meaningful opportunity to object because 

the trial court did not state its intended sentence before pronouncing the sentence. The 

court did tell the parties the sentence to be imposed and its reasoning for the sentence at 

some length. But the court did so after counsel for the parties had argued their 

positions. In Scott, supra, 9 Cal.4th at page 356, the court said: “Of course, there must 

be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by 

today’s decision. This opportunity can occur only if, during the course of the sentencing 

hearing itself and before objections are made, the parties are clearly apprised of the 

sentence the court intends to impose and the reasons that support any discretionary 

choices.” In People v. Gonzalez (2003) 31 Cal.4th 745 (Gonzalez), the court clarified that

the Scott rule does not require that the trial court issue a tentative ruling on the sentence it 

intends to impose, “if, at any time during the sentencing hearing, the trial court describes 

the sentence it intends to impose and the reasons for the sentence, and the court thereafter 

considers the objections of the parties before the actual sentencing.” (Id. at p. 752.)
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People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216 (Dorsey) 

illustrates what constitutes a failure by a trial court to provide a “meaningful opportunity 

to object” at sentencing. In Dorsey, the trial court placed the defendant on probation in 

the “ ‘interests of justice,’ ” even though he was presumptively ineligible. (Id. at 

pp. 1221-1222) After inquiring whether defendant accepted the probation terms, the trial 

court declared a recess without hearing from either party. (Id. at pp. 1223–1224; 

Gonzalez, supra, 31 Cal.4th at p. 752.) Due to the immediate recess, the Dorsey court 

held that “the prosecutor had no opportunity, meaningful or otherwise, to object.” 

(Dorsey, at p. 1224; Gonzalez, at p. 752.)

Here, unlike Dorsey, the record shows that the trial court, after pronouncing the 

sentence and stating its reasons, therefore, did not immediately declare a recess without 

hearing from the parties. Instead, the court discussed various matters with the prosecutor 

and defense counsel, during which time defense counsel could have raised section 1385, 

subdivision (c). Nothing in the record indicates that the trial court would not have 

permitted counsel to present section 1385, subdivision (c), as authority for the trial court 

to dismiss the enhancements after the court pronounced the sentence. To the contrary, 

after pronouncing the sentence and having a discussion about credits with defense 

counsel, the court asked counsel, “do you want to put anything else on the record to 

preserve your client’s rights in that area?” The court thus signaled its openness to 

entertain any issue the defense might wish to raise, even if only to preserve the issue for 

appeal.

Lastly, defendant contends that the Scott rule does not apply because defendant 

did not argue the trial court imposed the sentence in a “procedurally or factually flawed 

manner” (Scott, supra, 9 Cal.4th at p. 354), but rather that the court did not exercise its 

discretion under section 1385, subdivision (c). However, other courts have applied the

forfeiture rule to claims that the trial court did not exercise its discretion in conformance 
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with a sentencing statute. (See, e.g., People v. Anderson, supra, 88 Cal.App.5th at 

p. 241; People v. Flowers, supra, 81 Cal.App.5th at pp. 683-684.)

Defendant has also waived any claim that the trial court should have dismissed his 

prior strike conviction under the Three Strikes law as a multiple enhancement under 

section 1385, subdivision (c)(2)(B) by failing to raise the issue at the resentencing 

hearing. We note in addition that it is well established that the Three Strikes law is an 

alternative sentencing scheme, not an enhancement. (People v. Superior Court (Romero) 

(1996) 13 Cal.4th 497, 527; People v. Jenkins (1995) 10 Cal.4th 234, 254; People v. 

Cressy (1996) 47 Cal.App.4th 981, 991; People v. Williams (2014) 227 Cal.App.4th 733, 

744; People v. Frutuoz (2017) 8 Cal.App.5th 171, 174, fn. 3; People v. Burke (2023) 

89 Cal.App.5th 237.)

However, we modify the trial court’s oral pronouncement of judgment to impose 

an $80 court operations assessment (§ 1465.8) and a $60 criminal conviction assessment 

(Gov. Code, § 70373), which may not be waived and are correctly reflected in the 

amended abstract of judgment.
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DISPOSITION

The oral pronouncement of judgment is modified to impose an $80 court 

operations assessment (§ 1465.8) and a $60 criminal conviction assessment (Gov. Code, 

§ 70373). As modified, the judgment is affirmed.

 \s\ ,

McADAM, J.*

We concur:

 \s\ ,

ROBIE, Acting P. J.

 \s\ ,

MAURO, J.

*

Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.