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Filed 9/24/24 P. v. Gonsalves CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TODD WILLIAM GONSALVES,

Defendant and Appellant.

A167441

 (Humboldt County

 Super. Ct. No. CR2101527)

Defendant Todd William Gonsalves appeals from a February 2023 

resentencing hearing at which the trial court imposed a four-year prison 

sentence. Gonsalves argues the court was unaware of the limits placed on its 

sentencing discretion by amendments made to Penal Code section 1170 after 

Gonsalves’s initial sentencing hearing in November 2021. We agree. We 

reverse and remand for the trial court to hold a new sentencing hearing.

FACTUAL AND PROCEDURAL BACKGROUND1

In May 2021, Gonsalves confronted his girlfriend K.B. in a post office 

parking lot in Humboldt, flashed a gun in his waistband, and demanded that 

1 All undesignated statutory references are to the Penal Code. We 

incorporate by reference our unpublished opinion in Gonsalves’s prior appeal, 

People v. Gonsalves (Nov. 15, 2022, A164048).
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she give him money or he would shoot her, her ex-sister-in-law, and her 

children. At trial, K.B. significantly altered her account and said Gonsalves 

did not have a gun, did not threaten to kill her, and only threatened to end 

their relationship if she did not stop spending time with her ex-sister-in-law. 

The jury ultimately convicted Gonsalves of attempting to make a 

criminal threat, possessing a firearm as a felon, and violating a protective 

order. Following the verdict, Gonsalves admitted he had suffered two prior 

strikes. Gonsalves was not, however, advised of his constitutional rights

prior to his admission, including his right to a trial by jury as to the prior 

convictions, to confront and cross-examine witnesses, and his privilege 

against self-incrimination; Gonsalves, thus, did not expressly waive those 

rights before making his admission. 

At the original sentencing hearing in November 2021, the trial court 

dismissed one of Gonsalves’s prior strike convictions and found that the 

aggravating factors and mitigating factors were “evenly balanced.” The court 

also stated there were “mitigating circumstances with regards to what 

occurred . . . with regard to the trial,” and referenced K.B.’s testimony and a 

letter she submitted, both of which were to Gonsalves’s benefit and 

“result[ed] in midterms.” The court then sentenced Gonsalves to four years 

in prison, comprised of the middle term of two years for possession of a 

firearm, doubled to four years due to the prior strike; a concurrent upper 

term of 18 months for attempted criminal threats, doubled to three years due 

to the prior strike; and a one-year term for violation of a protective order 

which was deemed served by his presentence credits.

We reversed. (People v. Gonsalves, supra, A164048.) We held that the 

trial court erred when it accepted Gonsalves’s two prior strike convictions 
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without advising Gonsalves of his constitutional rights. We therefore vacated 

the judgment and remanded the matter to the trial court for resentencing.

The case returned to the trial court. At a February 10, 2023 

resentencing hearing, Gonsalves was advised as to his constitutional rights

and admitted the prior strike convictions. The court made no mention of the 

intervening amendments to section 1170 but stated, “for the reasons . . . 

previously put on the record,” it was imposing the same sentence as before—

namely, a four-year middle prison term for possession of a firearm by a felon; 

a concurrent three-year upper term for attempted criminal threats; and a 

one-year jail term for violation of the protective order which was deemed 

served. 

This appeal followed.

DISCUSSION

Gonsalves argues his sentence must be vacated and the matter 

remanded for a full resentencing because the trial court was unaware of the 

limits that had been placed on its sentencing discretion by amendments to

section 1170 that became effective after the initial sentencing hearing. In 

response, the Attorney General preliminarily represents that Gonsalves is no 

longer in custody and asserts Gonsalves’s challenge to his three-year 

concurrent sentence for attempted criminal threats is moot. We address the 

threshold issue of mootness before discussing the merits of Gonsalves’s 

contentions.

I. Mootness

The Attorney General acknowledges that Gonsalves’s challenge to his 

four-year sentence for possessing a firearm as a felon is not moot because “a 

reduction in his sentence could result in excess custody credits, which could 

be applied to fines and fees.” However, the Attorney General then argues
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Gonsalves’s three-year concurrent sentence for attempted criminal threats is 

moot because Gonsalves cannot receive custody credits “for time that he was 

required to serve on the four-year felon in possession conviction.” While we 

agree with the Attorney General that custody credits cannot be doublecounted for concurrent sentences, this argument presumes that after 

resentencing, Gonsalves would again be sentenced to the same terms and in 

the same manner as he was at the 2023 resentencing hearing. This 

reasoning is flawed. 

As Gonsalves points out, if he succeeds in challenging his sentence, the 

matter would have to be remanded for a full resentencing as to all counts. 

(See People v. Buycks (2018) 5 Cal.5th 857, 893 [“We have held that when 

part of a sentence is stricken on review, on remand for resentencing ‘a full 

resentencing as to all counts is appropriate, so the trial court can exercise its 

sentencing discretion in light of the changed circumstances’ ”].) Thus, on 

remand, the nature and structure of the sentencing is not a foregone 

conclusion. (See People v. Clancey (2013) 56 Cal.4th 562, 579.) As such, the 

challenge to the three-year sentence for attempted criminal threats is not 

moot.

II. Standard of Review

We review a trial court’s choice of sentencing term for an abuse of 

discretion. (People v. Ogg (2013) 219 Cal.App.4th 173, 185.) To prove an 

abuse, the “ ‘burden is on the party attacking the sentence to clearly show 

that the sentencing decision was irrational or arbitrary.’ ” (People v. Superior 

Ct. (Alvarez) (1997) 14 Cal.4th 968, 977.) A defendant can meet this burden 

if he “ ‘affirmatively demonstrate[s] that the trial court misunderstood its 

sentencing discretion.’ ” (People v. Lee (2017) 16 Cal.App.5th 861, 866.) This 

is because a “court which is unaware of the scope of its discretionary powers 
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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.” (People v. Salazar (2023) 15 Cal.5th 416, 424.) In such 

circumstances, courts have held “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.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

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III. Applicable Legal Framework

When Gonsalves was first sentenced in November 2021, section 1170, 

subdivision (b) stated that when a statute specified three possible terms, the 

“choice of the appropriate term shall rest within the sound discretion of the 

court.” (See People v. Renteria (2023) 96 Cal.App.5th 1276, 1283.) On 

January 1, 2022, however, the Legislature significantly amended section 

1170. (People v. Hilburn (2023) 93 Cal.App.5th 189, 199.) As relevant here, 

the amended statute dictates the middle term is the presumptive sentence 

unless there were aggravating circumstances justifying the upper term and 

the facts underlying those circumstances had been stipulated to by defendant 

or found true beyond a reasonable doubt at a jury or court trial. (Ibid.; 

§ 1170, subd. (b)(1)–(2).) The 2022 amendment also provides that a trial 

court “shall order” the imposition of the lower term if “psychological, physical, 

or childhood trauma, including, but not limited to, abuse, neglect, 

exploitation, or sexual violence” was a “contributing factor” in the commission 

of the offense, unless the court found the aggravating circumstances

outweighed the mitigating circumstances. (People v. Fredrickson (2023)

2 This standard was upheld in the Supreme Court’s recent decision in 

People v. Lynch (2024) 16 Cal.5th 730, albeit in the context of sentences 

imposed under the prior version of section 1170.
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90 Cal.App.5th 984, 986−987, fn. 2; § 1170, subd. (b)(6)(A).)

IV. Analysis

Gonsalves argues that at the resentencing hearing, the trial court was 

unaware that the amended section 1170 imposed a presumptive middle term 

under subdivision (b)(1)–(2), and was also unaware that a presumptive lower 

term could be triggered by circumstances such as psychological trauma under

subdivision (b)(6). He also preemptively argues that his challenges under 

section 1170 are not forfeited (citing Fredrickson, supra, 90 Cal.App.5th at 

p. 987, 994, fn. 8 (Fredrickson)), and, if they were, his counsel’s failure to 

raise the issue constituted ineffective assistance of counsel. The Attorney 

General contends Gonsalves forfeited his challenge under section 1170, 

subdivision (b)(6), but does not argue forfeiture relative to subdivision (b)(1)–

(2).

With respect to the issue of forfeiture, the Attorney General’s silence 

serves as a concession that the challenge under subdivision (b)(1)–(2) has not 

been forfeited. (See People v. Bouzas (1991) 53 Cal.3d 467, 480 [treating 

Attorney General’s failure to respond to a point as a concession of its merits]; 

see, e.g., People v. Panozo (2021) 59 Cal.App.5th 825, 840 [forfeiture 

inappropriate where challenge based not on manner in which trial court 

exercised its sentencing discretion but rather its “apparent misapprehension 

of statutory sentencing obligations”]; People v. Downey (2000) 82 Cal.App.4th 

899, 912 [failure to exercise discretion constitutes denial of a fair hearing and

deprivation of fundamental procedural rights].) We agree and therefore turn 

to the merits of Gonsalves’s contention regarding section 1170, subdivision

(b)(1)–(2). 

Once again, the Legislature’s amendments to Section 1170, 

subdivision (b) changed the framework by which the trial court exercises its 
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discretion by specifying a presumptive middle term sentence unless there are 

aggravating circumstances justifying the upper term and the facts underlying 

those circumstances have been stipulated to by defendant or found true 

beyond a reasonable doubt at a jury or court trial. (People v. Wandrey (2022)

80 Cal.App.5th 962, 981, 982.) In determining if an upper term sentence can 

stand under this new framework, “we must ask both whether we can be 

certain the jury would have found beyond a reasonable doubt the aggravating 

circumstances relied on by the court and whether the trial court would have 

exercised its discretion in the same way if it had been aware of the statutory 

presumption in favor of the middle term.” (Ibid.)

Here, we answer both of these questions in the negative. At the outset, 

we observe that neither party directs us to nor can we ourselves discern what 

aggravating circumstances the trial court relied on in its upward departure 

from the presumptive middle term sentence for Gonsalves’s criminal threats 

conviction. At his February 2023 resentencing hearing, the trial court did not 

specify any aggravating circumstances; rather, it indicated that “for the 

reasons . . . previously put on the record,” the sentencing would be identical 

to what the court originally imposed. But the reasons the court provided in 

support of Gonsalves’s initial sentence were also sparse; there was no 

mention of specific aggravating circumstances; in fact, the court found the 

aggravating and mitigating circumstances were “evenly balanced.” Beyond 

this, the court twice mentioned mitigating factors, such as K.B.’s testimony 

and a letter she sent to the court, which led the court to impose the middle 

term for the possession of firearm conviction.

On this record, we cannot divine what aggravating circumstances the 

trial court relied on much less say that the jury would have found beyond a 

reasonable doubt that these circumstances were true. (See People v.
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Wandrey, supra, 80 Cal.App.5th at p. 982.) Additionally, we cannot say with 

certainty the court would have exercised its discretion in the same way if it 

had been aware of section 1170, subdivision (b)(1)–(2)’s presumption in favor 

of the middle term. (Ibid.) This is especially true in light of the court’s 

references to mitigating factors that justified “dropping” the aggravated term 

to the middle term for the possession of firearm conviction, which suggests 

the court may not have departed from the presumptive middle term had it 

been aware of section 1170’s amendments. Notably, the Attorney General 

makes no argument to the contrary. (See People v. Bouzas, supra, 53 Cal.3d 

at p. 480.)

Accordingly, remand is appropriate to enable the trial court to 

resentence Gonsalves taking into account section 1170, subdivision (b)(1)–(2).

Gonsalves additionally asserts the lower term presumption under 

section 1170, subdivision (b)(6) was triggered by evidence in the record that 

psychological trauma—purportedly stemming from his isolation during the 

COVID-19 pandemic and his ongoing drug addiction—was a contributing 

factor in his commission of the offenses. Thus, Gonsalves argues the trial 

court abused its discretion when it sentenced him to the upper and middle 

terms without affirmatively showing that the aggravating circumstances 

outweighed the mitigating ones and that imposition of the lower term would 

be contrary to the interests of justice. 

So far as we can tell at this point, other than Gonsalves’s statement to 

probation, “If COVID hadn’t hit, I would not be in jail right now,” and his 

representation that he has struggled with methamphetamine use, the record 

is silent as to whether and how these circumstances constituted trauma that 

contributed to Gonsalves’s commission of the offenses. (See, e.g., People v. 

Banner (2022) 77 Cal.App.5th 226, 241 [mental illness can only trigger 
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section 1170’s lower term presumption if psychological trauma attended the 

illness and “that trauma” contributed to the commission of the crime].) 

However, we need not reach this issue because our holding concerning section 

1170, subdivision (b)(1)–(2) requires complete resentencing that takes into 

account all of the amendments to section 1170, including subdivision (b)(6), 

and any further record that Gonsalves may develop.

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DISPOSITION

The judgment is reversed. The matter is remanded for the trial court 

to hold a new sentencing hearing consistent with the provisions of the 

amended section 1170.

3 In light of our disposition, we need not address the Attorney General’s 

argument the challenge under section 1170, subdivision (b)(6) is forfeited or 

Gonsalves’s alternative claims of ineffective assistance of counsel.
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_________________________

DESAUTELS, J.

We concur:

_________________________

STEWART, P.J.

_________________________

MILLER, J.

People v. Gonsalves (A167441)