1

Filed 4/23/21 P. v. Ceballos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.

ANDREW CEBALLOS,

Defendant and Appellant.

 A158314

 (Solano County

 Super. Ct. No. VCR221474)

ORDER MODIFYING OPINION

BY THE COURT:

The opinion filed herein on March 24, 2021, is modified as 

follows.

On page 19, the second sentence in the first full paragraph 

is modified to read:

As to the other arguments, the People assert that at least two of 

them, arguments two (equal protection) and three (denial of 

Romero motion) were waived, as the arguments could have been 

made in the first appeal.

This modification does not effect a change in the judgment.

Date: 4/23/21 ________________

Kline, P.J.
1

Filed 3/24/21 P. v. Ceballos CA1/2 (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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW CEBALLOS,

Defendant and Appellant.

 A158314

 (Solano County

 Super. Ct. No. VCR221474)

Defendant Andrew Ceballos was convicted of second degree murder and 

assault with a semiautomatic firearm after he fired eight shots through the 

closed door of a crowded bedroom, killing one of the five people inside. 

Defendant appealed, and in August 2018, we affirmed the judgment of 

conviction. But, based on a change in the law, we remanded the case “for the 

sole purpose of allowing the trial court to exercise its discretion under 

subdivision (h) of [Penal Code] section 12022.53” whether to strike the 

25-year enhancement imposed for personal use of a firearm.

Prior to resentencing, defendant filed a sentencing memorandum that 

raised additional claims attacking his sentence, claims not even responded to 

in the People’s opposition memorandum. The trial court declined to strike 

the enhancement. And as to defendant’s additional claims, the trial court 
2

noted they had already been decided and rejected on appeal, and, even if it 

were to consider the claims, it would deny them on the merits.

Defendant appeals again, contending the trial court abused its 

discretion in refusing to strike the personal use enhancement. In addition, 

defendant makes five other arguments, two of which are identical to 

arguments rejected in his first appeal. He has also filed a petition for writ of 

habeas corpus, claiming that his trial counsel rendered ineffective assistance 

in various ways. The petition also asserts arguments rejected in his prior 

appeal, and others that are identical to his claims on appeal.

We conclude that only two claims of error are properly before us on 

appeal: (1) the refusal to strike the gun enhancement and (2) the imposition 

of a restitution fine. As to the first, we remand to the trial court once again,

to exercise its discretion in light of all applicable legal principles. As to the 

second, we affirm. And as to the habeas corpus petition, we issue an order to 

show cause returnable in the trial court, in effect transferring the petition

there, a transfer agreed to by both sides.

BACKGROUND

The Facts

The victim, Willie Troy Johnson (Troy, sometimes called T-Roy) was 

killed on July 14, 2014 in the home of defendant’s mother Judith Williams. 

These are the facts leading to the killing.1

Twenty-four-year-old defendant and his three-year-old daughter were 

living with Williams and her boyfriend, Major Carter, in Williams’s small, 

one-bedroom home in Vallejo, having moved in about three months earlier.

1 We granted defendant’s motion to augment the record with the record 

in the first appeal, No. A148521.
3

Williams and Carter slept in the bedroom, and defendant and his daughter in 

the living room, where defendant slept on the couch. The home was a “trap 

house” where people would use or buy heroin. 

A day or so before July 14, defendant had an argument with Carter, 

defendant believing that Carter was cheating on his mother by having an 

affair. Defendant punched Carter numerous times, leaving his face swollen 

and with two black eyes. Defendant claimed that after the beating his 

mother told him he had to move out. 

On the night before July 14, several people besides Williams were at 

her house, including defendant, his daughter, Terrance Woods (a friend of 

Williams and Carter), Troy, and his son Tynez Johnson. Woods heard 

defendant arguing with his mother about having to leave the house, following 

which argument defendant left the house, not to return that night. Shortly

after defendant left, Woods, Troy, and Tynez also left. Troy returned later 

that evening and Tynez even later, joining his father to sleep in the living 

room. 

Sometime the next morning, defendant returned to the house, and then 

left again for a few hours, asking Troy to watch his daughter.2 At that point, 

Williams, Carter, Troy, Woods, Tynez and defendant’s daughter were at the 

house. Sometime that morning, Williams made pancakes for everyone, and 

they ate together in the bedroom. And the five adults spent the next few 

hours together in the bedroom watching movies on television.3

2 It is not clear exactly when defendant left, but Tynez remembered 

that defendant was there when he woke up. 

3 The bedroom was a square, measuring nine feet, ten inches on each 

side. The width of the bedroom door was two feet, eight inches. 
4

Defendant returned to the house after a few hours, estimating he 

arrived around 11:30 or noon. With the others still in the bedroom, 

defendant lay down on the living room couch and went to sleep.

Williams, who had been sitting on the bed with Carter, left the 

bedroom to do dishes and then make a phone call. To remain shut, the 

bedroom door had to be latched from inside, and when Williams left the room, 

Troy, who was closest to the door, latched it shut. 

Sometime between 1:00 and 2:00 p.m., defendant’s former girlfriend, 

Aqua Vincent, came by the house, driven by her friend Kayla Reed. Vincent 

and Reed had come from a doctor’s appointment for Vincent’s newborn baby, 

who was defendant’s son, and had gone to Williams’s house “to pick up money 

from defendant.”4 Reed and the baby stayed in the car in the alley outside 

the house, while Vincent went into the house where she saw defendant asleep 

on the couch. Vincent tried to wake him up, without success, and went back 

outside, where Williams was now sitting in the car with the baby. When 

Vincent told Williams that defendant would not wake up, Williams said she 

would try to wake him up, to which Vincent responded, “Good luck.” 

Defendant became angry after his mother woke him up and they began 

to argue. According to defendant, his mother told him that she and Carter 

had decided that he could not live there but would not tell him why he had to 

leave. 

Around the same time, Jami Schooler was in the house to “get some 

dope.” When she arrived, defendant was asleep on the couch, Williams was 

in the kitchen, and Carter, Woods, Troy, and Tynez were in the bedroom. 

4 Defendant and his daughter had lived with Vincent for nine months 

before they severed their relationship and defendant moved in with his 

mother. 
5

About the time Schooler was going to leave, she saw defendant and his 

mother arguing in the kitchen. She then saw defendant go into the living 

room and return with a gun that he put in the waistband of his pants. 

Schooler decided it was time to leave, went outside, and began to walk away, 

when she heard gunshots. 

Before the shooting, defendant had gone outside to the driver’s side of 

Reed’s car and asked Vincent to take him to the store. Vincent refused,

saying she did not have time for that. Williams had followed him outside and 

stood on the porch, continuing to argue with him about Carter and telling 

him she wanted him and his daughter out of the house. Like Schooler, 

Vincent also decided she did not want to stay, and she told police she heard 

Williams say something like “shoot me or put that thing away.” Vincent and 

Reed began to drive away, and moments later heard gunshots. 

Just before the shooting, Tynez and Woods heard defendant and his 

mother arguing loudly outside the bedroom, being able to hear over the sound 

of the television. Then, after the shouting ended, defendant fired at least 

eight bullets into the bedroom, primarily through the door. After the first 

shot, Tynez, Troy, and Woods dove to the ground, and Carter backed himself 

against the wall. Troy was hit by one of the bullets and within minutes died

of a gunshot wound that entered his left chest, passed through his heart, 

stomach, and liver, and exited his abdomen.5

After the shooting, Tynez and Woods immediately went to provide aid 

to Troy. Soon after, the latched door was “kicked open[],” and Williams ran 

into the bedroom followed by defendant. Tynez heard defendant say “T-Roy,” 

5 Police later recovered four casings from a nine-millimeter

semiautomatic, and identified seven bullet holes in the bedroom door that 

“spanned from the bottom to the top of the door” and an additional bullet hole 

in the frame to the left of the door. 
6

and thought defendant seemed surprised he had shot Troy. Woods said that 

defendant, while still holding the gun, said, “Oh, my God” and “What the fuck 

have I done?” With the gun still in his hand, defendant left the house, went 

to a friend’s house, and called Vincent, telling her he was sorry. 

Defendant was found by police and arrested two weeks later. During 

an interview with police, he denied that he was present at the shooting. 

The Proceedings Below

On December 1, 2014, the district attorney filed an information 

charging defendant with two counts: in count 1, with murder, and alleging 

enhancements for discharge of a firearm resulting in death, discharge of a 

firearm, and personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 

12022.53, subds. (b), (c), (d), 12022.5, subd. (a)(1))6; and in count 2, with 

assault with a semiautomatic firearm, and alleging an enhancement for 

personal use of a firearm (§§ 245, subd. (b), 12022.5, subd. (a)(1)). The 

information also alleged a prior juvenile adjudication for robbery as a strike 

offense. (§ 667, subds.(a)(1), (b), 1170.12, subds. (a)–(d).)

Following a seven-day trial, a jury found defendant guilty of the 

charges and found true the firearm enhancements. Defendant waived jury 

trial of his prior offenses, and on August 21, 2015, the trial court found true a 

prior robbery, which was both a serious felony and a strike offense. 

On May 9, 2016, the trial court denied defendant’s motion for new trial 

and his Romero motion to dismiss his strike offense.7 Doing so, the court was 

aware that defendant committed his strike offense as a juvenile, but

nonetheless found that he did not fall outside the spirit of the Three Strikes 

sentencing scheme. The trial court noted that defendant had a long and 

6 All statutory references are to the Penal Code unless noted.

7 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.
7

continuous history of offenses and that he committed the present offense, 

second degree murder, shortly after his release from California Youth 

Authority (CYA) where he had served 76 months for the strike offense

robbery. 

The trial court sentenced defendant to an aggregate term of 55 years to 

life: a principal term of 30 years to life (15 years to life doubled by the prior 

strike) for second degree murder and a consecutive 25 years to life term on 

the firearm enhancement in count 1; concurrent high terms for the assault 

offense (nine years, doubled to 18 years by the prior strike offense) and the 

firearm enhancement (10 years) in count 2, punishment for which was stayed 

under section 654. 

Defendant appealed.

The First Appeal

In his first appeal, represented by attorney Laura Kelly, the attorney 

who represents him here, defendant filed a 118-page opening brief that had 

five arguments: (1) discriminatory exercise of peremptory challenges in 

violation of Batson/Wheeler8; (2) insufficiency of the evidence for the assault 

conviction; (3) prosecutorial misconduct in closing argument; (4) the sentence 

violated the Eighth Amendment and section 17 of the California 

Constitution; and (5) use of a juvenile adjudication as a strike violated 

defendant’s right to jury trial. On August 2, 2018, we filed our unpublished 

opinion rejecting all five arguments.

During the pendency of the appeal, the Governor signed Senate Bill No. 

620, effective January 1, 2018, which amended section 12022.53 to give the 

trial court the authority to strike in the interests of justice a firearm 

8 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 

22 Cal.3d 258.
8

enhancement allegation found true under that statute. (Stats. 2017, ch. 682, 

§ 2.) In supplemental briefing, defendant asserted that the amendment 

applied to him because his case was not yet final, and that the matter had to 

be remanded to afford the trial court the opportunity to exercise its discretion 

to strike the firearm enhancement that was no longer mandatory under 

section 12022.53.

In the concluding three paragraphs of our opinion, we addressed 

defendant’s claim:

“The Attorney General does not contest most of defendant’s reasoning. 

But he does believe that comments made by the trial court at the time of 

sentencing establish that it would not exercise its new discretion in 

defendant’s favor. The Attorney General’s logic is not sufficiently persuasive.

“As the Attorney General points out, at the time of sentencing the court 

denied defendant’s motion to strike his juvenile prior in accordance with 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, concluding: ‘From 

his juvenile probation, he had an opportunity to rehabilitate himself or seek 

some sort of rehabilitation. His crimes continued, undeterred. Also, he had a 

lengthy 76-month term at CYA. That did not deter him from continued 

criminal conduct as an adult. [¶] So for those reasons, in terms of applying 

the applicable law here, the Romero motion is denied.’

“Still, we cannot agree that remand would be an idle act as a matter of 

law. The court ‘recognize[d] that the defendant did not intend to kill this 

particular victim.’ And it ran the sentence on the assault conviction 

concurrently with the murder sentence. It may not be likely that the court 

will give defendant another break, but it may. At bottom, this court feels a 

deep reluctance to assume that it knows how a trial court would have 
9

exercised a discretion it did not know it possessed. In short, we are loathe to 

put words in the trial court’s mouth.”

And with that, we set forth our disposition: “The cause is remanded for 

the sole purpose of allowing the trial court to exercise its discretion under 

subdivision (h) of section 12022.53. The judgment of conviction is affirmed in 

all other respects.”

Resentencing

The resentencing came on for hearing on August 30, 2019, before the 

Honorable Tim Kam, the same judge who had presided over defendant’s trial 

and sentencing. Defendant was represented by attorney Dustin Gordon, the 

People by Deputy District Attorney Paul Sequeira. 

Prior to the resentencing hearing, Mr. Gordon filed on behalf of 

defendant a sentencing memorandum that inclusive of exhibits was 25 pages 

long. Despite the limited nature of our remand, the sentencing memorandum 

contained four arguments: (1) the court should strike defendant’s prior 

juvenile robbery adjudication pursuant to section 1385 because his prior 

juvenile strike does not warrant him being denied eligibility for relief 

pursuant to section 3051; (2) the limitation contained in section 3051, 

subdivision (h) prohibiting youthful offenders who have a prior juvenile strike 

from receiving relief violates the equal protection clause of the United States 

and California Constitutions; (3) the court should strike the gun 

enhancements “due to [defendant’s] age and the fact that he did not intend to 

kill anyone”; and (4) defendant’s sentence amounts to cruel and unusual 

punishment. The fourth argument had been specifically rejected in our 

opinion, although the argument, which we described as “pro forma,” had not 

been fashioned in light of section 3051.
10

Defendant’s sentencing memorandum also referred to the 2008 offense, 

for which defendant was adjudicated. And it also acknowledged this other 

activity: “Other than the juvenile robbery conviction [defendant] had two 

residential burglary adjudications that were sustained, both when he was 13 

years old. It appeared he also had a juvenile petition when he was 16 years 

old for violations of Penal Code sections 459, 496, and 243[, subdivision]

(d)(1). [¶] The only adult conviction was a felony hit and run, which 

[defendant] was pending sentencing at the time of his instant offense.” 

Then, after quoting the Penal Code section that caused our remand, the 

sentencing memorandum asserted this:

“In the instant action the interests of justice favor striking the personal 

use enhancements which will allow the court to fashion a more appropriate 

sentence. In the instant action it is undisputed that [defendant] did not 

intend to kill anyone. Yet the sentence that was previously imposed, 55 years 

to life is tantamount to a sentence of life in prison without parole considering 

that [defendant] will not be eligible for parole until he is 79-years-old. A 

sentence of life in prison without parole is not warranted in a case where the 

defendant did not have the intent to kill anyone.

“[Defendant]’s criminal history does not indicate that he is beyond 

rehabilitation. His only other adult conviction is for a hit and run. His father 

has turned his life around and has reconnected to [defendant]. [Citation.] He 

has family that supports him and he has two kids that he hopes to see one 

day when he is not in custody. Moreover, [defendant] recognizes that his own 

choices and poor decisions have put him in this situation. [Citation.]” 

Defendant’s sentencing memorandum also cited to Miller v. Alabama 

(2012) 567 U.S. 460 (Miller), Graham v. Florida (2010) 560 U.S. 48 (Graham),

and People v. Caballero (2012) 55 Cal.4th 262 (Caballero.)
11

The district attorney filed a very brief opposition, responding only to 

the third argument, seeking to strike the gun enhancement. The opposition 

focused on defendant’s criminal history as a juvenile, and in its concluding 

five-line argument—entitled “The Defendant’s Character and Prospects 

Dictate The Gun Enhancement Not Be Stricken”—asserted that “defendant is 

a reckless, violent killer. . . . [I]t appears likely that defendant will kill again. 

The defendant presents an extreme danger to society. The imposition of the 

gun enhancement . . . is just and appropriate.” Nothing was said about 

defendant’s age, or any factors relating to it, nor was anything said about 

section 3051. And the district attorney did not address, much less dispute, 

the fact that the firearm enhancement meant that defendant would not be 

eligible for parole until he was 79 years old.

Defendant filed a reply to the opposition, responding to the gun 

enhancement argument, and also reiterating arguments that the use of the 

prior juvenile adjudication to enhance his sentence violates defendant’s rights 

“under the Fifth, Sixth and Fourteenth Amendments.” And as particularly 

apt here, defendant’s reply said this: “In contrast the stated purpose of 

Senate Bill 620 is to allow courts to strike the gun enhancements when it 

would serve the ‘interests of justice.’ (See Penal Code section 12022.53 (g).) 

Senate Bill 620 has given the courts discretion that they did not have prior to 

the passage of the law. Thus, unlike the three strikes law which was passed 

to enhance punishments for repeat offenders, Senate Bill 620 was passed to

give courts discretion to impose a lesser sentence when it satisfied the 

interests of justice. Additionally, the passage of Senate Bill 620 cannot be 

viewed in a vacuum. Over the past eight years several laws have been 

passed which have lessened punishment, i.e., the realignment act (allowing 

‘prison’ sentences for some crimes to be served at county jail and on 
12

supervised release), Proposition 47 (which reclassified certain crimes from 

felonies to misdemeanors and allowed courts to resentence some people given 

a third strike sentence), Senate Bill 180 (otherwise known as the ‘RISE Act’ 

repealing three-year drug priors), and Senate Bill 1437 (abolishing the 

felony-murder rule in certain circumstances). It is against this backdrop that 

the court should take into consideration the practical impact of not striking 

the gun enhancement.

“As stated in defendant’s sentencing memorandum a sentence of 55 

years to life is tantamount to a sentence of life without parole for [defendant]. 

For someone as young as [defendant], where there was no intent to kill, there 

should be a chance at redemption.” 

The hearing on August 30 began with the court noting its “new 

discretion under the law,” and also advising counsel that it had read both 

parties’ resentencing materials, including the letters submitted on behalf of 

defendant. The court then asked Mr. Gordon if he had any additional 

comments, who then spent the next several pages in the reporter’s transcript

on issues unrelated to our remand, first noting that the “People’s brief didn’t 

address my Romero argument for the constitutional argument” and then 

proceeding to the equal protection claim. Mr. Gordon then turned to the 

argument about striking the enhancement, which he argued for three more 

pages, in the course of which he said this:

“Senate Bill 620 expanded or enhanced the court’s discretion, so I think

when the court is looking at whether it should exercise that discretion under 

the newly passed law, I don’t think the mere fact the court chose not to strike

the strike previously, I don’t think that carries the day with the analysis here 

because it’s different. I mean the standard is the further justice or interest of 

justice, which is the underlying standard for [Penal Code section] 1385, it’s 
13

somewhat informed by the discretion the court is granting. So in the Romero

situation when the court is choosing whether to exercise discretion under 

[Penal Code section] 1385, kind of guiding the court’s discretion is does 

[defendant] fall outside the spirit of the three strikes law. That same 

analysis does not apply here when the court is considering whether to strike 

the gun enhancement.

“I think the court’s discretion is much broader, and the court’s 

consideration of the factors is much broader. What I mean by that, it 

dovetails what I would say is the theme of my brief. The current sentence for 

[defendant] does not provide a meaningful opportunity to be released, and I 

think when you consider the state of the law how things have changed over 

the past seven to eight years, I would say you consider the youthful offender 

statute the reason why that law was passed and this law was passed, it 

would be well within the court’s discretion to strike the gun enhancement. 

Even if the court only made that decision, not getting into my other 

argument, [defendant] has a sentence of 30 to life. Again, that means he just 

has the opportunity to be paroled.” 

Deputy District Attorney Sequeira responded briefly, followed by brief 

reply by Mr. Gordon, who reiterated he thought his other arguments were 

properly before the court. Following that, defendant apologized to the 

victim’s family and told the court he regretted his actions. 

The court announced that it appreciated and considered the arguments 

from both sides, and then said this: “I recognize where I have discretion. The 

court has given me new discretion, and the arguments you make, Mr. 

Gordon, are, one, to strike the juvenile strike. I conducted the Romero motion 

previously, but you’re asking me to reconsider Romero in light of the youthful 

offender act. You’re asking me to look at the equal protection side of 3051 PC 
14

in the context you stated it, and you’re asking me to look at the issue of 

whether juvenile strike is a valid strike. That issue is on review to the U.S.

Supreme Court.” 

Mr. Gordon briefly acknowledged that “The Nguyen decision is 2009.

[9]

 

It’s ten years ago. I don’t disagree with Mr. Sequeira at all. It’s settled law.” 

And then the court announced its decision: “Those are the issues you’re 

asking me to look at in this context. At this point applying the law to this 

case and understanding I have discretion I am going to deny that request. I 

think Mr. Sequeira raises a very good point. We often do forget about those 

who have been left behind, but you know my Romero factors. I listed those 

previously in terms of his prior conviction as a juvenile. There [were] other 

incidents if I recall. I did re-read the Court of Appeal opinion and saw the 

comments that I made, so I’ll stand by those. Considering the facts of this 

case, I’ll be pointing those out a little later here as well. They do not warrant 

striking the strike, and my analysis under Romero has not changed in light of 

PC 3051 referencing now someone under 25 their brains are not fully 

developed. Looking at that picture to the extent I can consider this issue 

given it was not remanded for this issue, I would still deny it. I’m not sure 

this issue is properly before the court as it was not sent back on remand. If it 

is, I still decline to strike the strike here in light of the previous history, just 

the underlying facts of this case.

“I recognize [defendant] had a very tragic childhood as laid out in the 

paperwork here. In my view it would not warrant striking the juvenile 

strike. In terms of the equal protection argument and addressing the Nguyen 

issues, again, those are not remanded to the trial court for those issues. 

Technically I don’t think they are before me. It they are, I’m denying it as 

9 People v. Nguyen (2009) 46 Cal.4th 1007.
15

well. The Legislature set forth the preference in [section] 3055 to further 

punish individuals with a strike and could be rationally based on desire to 

punish repeat offenders. I’m not sure that issue is before me, but that is my 

thought on that. Similarly, Nguyen is settled law. If that law changes, you 

make your record and seek review to the extent the law allows you to at that 

point. On the 12022.53 (d) gun enhancement and 12022.5 (a) enhancement, 

that is before the court.

“I heard your arguments. I don’t think it’s appropriate to strike that 

allegation even in light of the defendant’s life as listed or described in the 

papers. This was what strikes me and what stands out is this was over a 

discussion or order, whatever you call it, to move out of the house, get out of 

the house, whatever it might be. And that to me when I was thinking about 

this falls within the normal range of things we just have to deal with in life. 

It’s not particularly egregious or outlandish to be asked to move out, but 

when you respond in this fashion firing shots behind a closed door ultimately 

killing someone, that is very, very dangerous. And it’s what I think the 

statute is designed to punish, this sort of conduct. Where is the 

mitigation . . . ? You got someone who is killed in some fashion over 

something that never should have led to that.

“So I just don’t see where there would be valid legal grounds or grounds 

in the interest of justice to strike this enhancement. This is what the 

Legislature contemplated for this very type of offense, and as to [the] cruel 

and unusual punishment argument, again, this was not remanded to the 

court for this issue. So I’m not conceding—or you raised it in the context of 

new changes in the law, [section] 3051, so I’ll address it. Again, I’m not sure 

if it’s in front of me to the extent whether I would have to consider whether 

this is disproportionate sentence to all other similar type crime or are there 
16

more serious crimes that are punished less severe than this one, some 

unfairness in that regard, shock the conscious or offend human dignity. This 

is what the Legislature imposed. I don’t find it disproportionate nor cruel 

and unusual under the law. I mean, it is sad. There is a sad situation on 

both sides here, but this is in my view proper under the law, this sentence. 

So for those reasons I am denying the motion. His sentence will remain as 

previously imposed.” 

At no point during the hearing did the trial court even mention Miller, 

Graham, or Caballero.

Immediately following the court’s ruling above, Mr. Gordon raised 

another argument, one he had not made before. This is what occurred: 

“MR. GORDON: There is one issue I forgot to mention because it’s not 

as weighty as the other issues. There is a new case regarding fines and fees, 

People v. Dueñas (2019) 30 Cal.App.5th 1157. When I looked at the judgment 

from the sentencing it looked like the only fee the court imposed was $300, 

the restitution fund fine. If I read Dueñas correctly, the court can impose 

that. But it has to be stayed until it’s demonstrated he has ability to pay. I 

apologize for not putting this in the brief. With the other issues this slipped 

my mind, so I would ask the court in regards to the restitution fund fine stay 

it pending hearing about his ability to pay.”

This colloquy followed: 

“THE COURT: I have not read Dueñas. I heard it. It does instruct 

the court to stay this fine at this point?

“MR. GORDON: That’s how I read it. You can put it over for that sole 

issue.

“THE COURT: Why don’t you approach, and I’ll take a look at that. 

So the operative language here, and again I know we’re talking about a 
17

minimum fine, but it says we also hold that although Penal Code section 

1202.4 bars consideration of the defendant’s ability to pay unless the judge is 

considering increasing the fee over the statutory minimum, the execution of 

any restitution fine imposed under this statute must be stayed unless I hold 

inability to pay. $300 is the statutory minimum.

“MR. GORDON: It is.

“THE COURT: So that scenario I don’t have to stay it.

“MR. GORDON: Maybe I misread it. I was under the impression the 

court had to impose it but stay pending ability to pay.

“THE COURT: I will rely on that and I read the law as requiring that 

only if I impose above the minimum statutory fine under 1202.4, which $300 

is the minimum. So deny your request at this point on that. Those are the 

orders. So [defendant] will be remanded for delivery back to [the] 

Department of Corrections to serve his sentence. Thank you.

“MR. SEQUEIRA: Thank you.” 

The Second Appeal

On April 2, 2020, again represented by Ms. Kelly, defendant filed his 

opening brief on this appeal. This brief has six arguments: (1) the trial court 

abused its discretion in refusing to strike the enhancement; (2) section 3051 

lacks a rational basis to the extent it denies youth offender parole hearings to 

inmates with a juvenile strike, and violates equal protection; (3) the trial 

court abused its discretion in refusing to strike the juvenile strike; 

(4) defendant’s sentence violates the Eighth Amendment and Article 1, 

section 17 of the California Constitution; (5) the use of defendant’s juvenile 

adjudication as a strike prior violated his right to a jury trial under the Sixth 

Amendment; and (6) the trial court erred in refusing to stay the section 

1202.4 fine absent a determination that defendant is able to pay the fine. 
18

On April 2, the same day defendant’s opening brief was filed, Ms. Kelly

filed on his behalf a petition for writ of habeas corpus (petition). The petition 

is 79 pages, included within which are five declarations, of: (1) Robin 

Keeney, defendant’s trial counsel; (2) defendant; (3) defendant’s father; (4) 

Mr. Gordon, defendant’s attorney following remand; and (5) Ms. Kelly, 

defendant’s attorney on the first appeal, this appeal, and the petition. On 

August 28, Ms. Kelly filed a subsequent declaration concerning Mr. Keeney. 

The petition has four arguments, numbered IV through VII in the table 

of contents, which arguments we quote verbatim:

“IV. Trial counsel was ineffective in failing to inform Mr. Ceballos of a 

potential plea agreement with a sentence of 17 or 18 years and in failing to 

advise him to pursue such a plea bargain. [¶] . . . [¶]

“V. Penal Code section 3051, subdivision (h), violates Equal Protection 

to the extent it denies youth offender parole hearings to inmates with 

juvenile strikes. [¶] . . . [¶]

“VI. The trial court abused its discretion in refusing to strike Mr. 

Ceballos’s juvenile strike. [¶] . . . [¶]

“VII. Mr. Ceballos’s sentence, which does not afford a meaningful 

opportunity for release in his lifetime, violates the Eighth Amendment and 

Article I, section 17 of the California Constitution.” 

DISCUSSION

Introduction to the Analysis

Referring to the arguments in defendant’s opening brief on appeal and 

in his petition, it is immediately apparent that two of the arguments in his 

appeal and in his petition are identical to arguments defendant made in his 

first appeal, which arguments we rejected. As to these arguments, defendant 
19

acknowledges that they are set forth for purposes of exhaustion, and nothing 

more will be said about them here.

The result is that what remains on the appeal are four arguments, only 

one of which, the first, deals with the issue that caused our limited remand. 

As to the other arguments, the People assert that at least two of them, 

arguments numbered two (equal protection) and five (violation of right to jury 

trial) were waived, as the arguments could have been made in the first 

appeal. Defendant vigorously disagrees, the result of which is that the 

parties devote significant portions of their briefs to the issue of waiver.

We will not weigh in on the issue here, for several reasons.

First, until the outcome of defendant’s petition for writ of habeas 

corpus is known, defendant’s sentence situation may be different than it 

currently is.

Second, and as noted, the arguments were not fully briefed below, and 

the trial court did not have the benefit of the applicable law.

Third, defendant suggests the issues are cognizable in his petition for 

writ of habeas corpus. 

We thus turn to the two issues that are properly before us, beginning 

with the trial court’s refusal to strike the arming enhancement.

The Refusal to Strike the Arming Enhancement Did Not Take 

Into Account All Applicable Principles

The amended section 12022.53 provides that “(h) The court may, in the

interest of justice pursuant to Section 1385 and at the time of sentencing,

strike or dismiss an enhancement otherwise required to be imposed by this

section. The authority provided by this subdivision applies to any

resentencing that may occur pursuant to any other law.” As quoted, our

remand was for the court to “exercise its discretion under subdivision (h),”

and as defendant acknowledges we review the ruling for abuse of discretion.
20

The Law of Discretion

Defendant’s brief sets forth some boilerplate principles of discretion,

and what is involved in its exercise. But the brief does not set forth the

applicable principles governing what is its abuse, which has been described

in terms of a decision that “exceeds the bounds of reason” (People v. Beames

(2007) 40 Cal.4th 907, 920), or one that is arbitrary, capricious, patently

absurd, or even whimsical. (See, e.g., People v. Bryant, Smith and Wheeler

(2014) 60 Cal.4th 335, 390 [“ ‘ “arbitrary, capricious, or patently absurd” ’ ”];

People v. Benavides (2005) 35 Cal.4th 69, 88 [ruling “falls ‘outside the bounds

of reason’ ”]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614

[“arbitrary, whimsical, or capricious”].) In its most recent observation on the

subject, our Supreme Court said that “A ruling that constitutes an abuse of

discretion has been described as one that is ‘so irrational or arbitrary that no

reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v.

University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon).)

If we were to apply those principles here, we could not conclude the

trial court abused its discretion.

But there is more to abuse of discretion than arbitrary, whimsical, or

capricious, as we discussed in People v. Jacobs (2007) 156 Cal.App.4th 728,

736–738: 

“[T]here is other language which guides us here, illustrated by that in

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 (Drew), where

the Third Appellate District rejected the contention that the sole test of abuse

of discretion was whether the trial court’s action was ‘whimsical, arbitrary, or

capricious,’ stating as follows: ‘This pejorative boilerplate is misleading since

it implies that in every case in which a trial court is reversed for an abuse of
21

discretion its action was utterly irrational. Although irrationality is beyond

the legal pale it does not mark the legal boundaries which fence in discretion.’

“Elaborating, the Court of Appeal further explained: ‘Very little of

general significance can be said about discretion. “ ‘The discretion of a trial

judge is not a whimsical, uncontrolled power, but a legal discretion, which is

subject to the limitations of legal principles governing the subject of its

action, and to reversal on appeal where no reasonable basis for the action is

shown. [Citation.]’ ” (Westside Community for Independent Living, Inc. v.

Obledo (198[3]) 33 Cal.3d 348, 355, citing to 6 Witkin, Cal Procedure (2d ed.

1971) Appeal, § 244.) The scope of discretion always resides in the particular

law being applied, i.e., in the “legal principles governing the subject of [the]

action . . . .” Action that transgresses the confines of the applicable principles

of law is outside the scope of discretion and we call such action an “abuse” of

discretion. [Citation.]’ (Drew, supra, 207 Cal.App.3d at p. 1297.) Finally, as

Drew noted, the ‘legal principles that govern the subject of discretionary

action vary greatly with context. [Citation.] They are derived from the

common law or statutes under which discretion is conferred.’ (Id. at p. 1298.) 

[¶] . . . [¶]

“In Concord Communities v. City of Concord (2001) 91 Cal.App.4th

1407, 1417 our colleagues in Division Four of this court observed that ‘Abuse

of discretion has at least two components: a factual component . . . and a

legal component. [Citation.] This legal component of discretion was best

explained long ago in Bailey v. Taaffe (1866) 29 Cal. 422, 424: “The discretion

intended, however, is not a capricious or arbitrary discretion, but an

impartial discretion, guided and controlled in its exercise by fixed legal

principles. It is not a mental discretion, to be exercised ex gratia, but a legal

discretion, to be exercised in conformity with the spirit of the law and in a
22

manner to subserve and not to impede or defeat the ends of substantial

justice. . . .” ’

“All this is well described in Witkin where, likewise citing the still vital

Bailey v. Taaffe, supra, 29 Cal. 422, 424, the author distills the principle as

follows: ‘Limits of Legal Discretion. [¶] The discretion of a trial judge is not

a whimsical, uncontrolled power, but a legal discretion, which is subject to

the limitations of legal principles governing the subject of its action, and to

reversal on appeal where no reasonable basis for the action is shown. (See

5 Am.Jur.2d, Appellate Review § 695.) . . .’ (9 Witkin, Cal. Procedure (4th ed.

1997) Appeal, § 358, pp. 406–407.”10

Some Guiding Legal Principles

As quoted, amended section 12022.53 gives the trial court authority to

strike a firearm enhancement “in the interests of justice,” a term, we

conclude, that in the circumstances here must include some consideration of

defendant’s age and the factors attendant to it, as reflected in the spirit of

various developments in the law, including, by way of example, section 3051.

Section 3051 was enacted in recognition that “[e]xisting sentencing

laws do not distinguish youth from adults.” (Assem. Com. on Public Safety,

Analysis of Sen. Bill No. 260 (2013–2014 Reg. Sess.) July 2, 2013, p. 4.) The

purpose of the act was “to establish a parole eligibility mechanism that

provides a person serving a sentence for crimes that he or she committed as a

juvenile the opportunity to obtain release when he or she has shown that he

10 In Sargon, quoted above, the Supreme Court went on to endorse this

expression of the standard: “ ‘The discretion of a trial judge is not a

whimsical, uncontrolled power, but a legal discretion, which is subject to the

limitations of legal principles governing the subject of its action, and to

reversal on appeal where no reasonable basis for the action is shown.’ ” 

(Sargon, supra, 55 Cal.4th at p. 773, quoting 9 Witkin, Cal. Procedure (5th

ed. 2008) Appeal, § 364, p. 420.)
23

or she has been rehabilitated and gained maturity.” (Stats. 2013, ch. 312,

§ 1.)

“Despite the fact that the line between youth and adulthood has

traditionally been drawn at 18 years of age, recent amendments to

section 3051 recognize that the maturity process does not end at 18 and in

many cases extends to at least 25 years of age. In 2015, relying on the

evolving understanding of brain development, the Legislature amended

section 3051 to provide relief for most offenders who committed their offenses

before reaching the age of 23. (Stats. 2015, ch. 471, § 1.) According to the

author of the amendment, ‘Recent scientific evidence on adolescent and young

adult development and neuroscience shows that certain areas of the brain—

particularly those affecting judgment and decision-making—do not fully

develop until the early-to-mid-20s. Various studies by researchers from

Stanford University (2009), University of Alberta (2011), and the National

Institute of Mental Health (2011) all confirm that the process of brain

development continues well beyond age 18.’ (Sen. Com. on Public Safety,

Analysis of Sen. Bill No. 261 (2015–2016 Reg. Sess.) Apr. 28, 2015, p. 3.)” 

(In re Jones (2019) 42 Cal.App.5th 477, 484–485, conc. opn. of Pollak, J.)

And Assembly Bill No. 1308, which became law on January 1, 2018, 

raised the age limit for eligibility for relief under the Youth Offender Statute 

to age 25, doing so, in the words of the legislative history, because: 

“ ‘AB 1308 would align public policy with scientific research. This measure 

would expand eligibility of the youth parole hearing process to certain 

individuals who were 25 or under when they committed a crime for which 

they received a lengthy or life sentence for a youth offender parole hearing. 

Scientific evidence on adolescence and young adult development and 

neuroscience shows that certain areas of the brain, particularly those 
24

affecting judgment and decision-making, do not develop until the early-tomid-20s. Research has shown that the prefrontal cortex doesn’t have nearly 

the functional capacity at age 18 as it does at 25. The prefrontal cortex is 

responsible for a variety of important functions of the brain including: 

attention, complex planning, decision making, impulse control, logical 

thinking, organized thinking, personality development, risk management, 

and short-term memory. These functions are highly relevant to criminal 

behavior and culpability. [¶] Since the passage of [Senate Bill No.] 260 and 

[Senate Bill No.] 261 motivation to focus on rehabilitation has increased. An 

offender is more likely to enroll in school, drop out of a gang, or participate in 

positive programs if they can sit before a parole board sooner, if at all, and 

have a chance of being released.’ ” (Assem. Com. on Public Safety, Analysis of 

Assem. Bill No. 1308, as amended March 30, 2017 (2017–2018 Reg. Sess.)

Apr. 25, 2017, pp. 2–3.)

It is apparent from the lengthy quotation of the trial court’s ruling set 

forth above that the court made no analysis whether the “interests of justice”

included any analysis of defendant’s age, or any factors relating to it. More 

specifically, other than a passing reference to defendant’s age in connection 

with the court’s prior Romero ruling over two years before—“my analysis 

under Romero has not changed in light of Penal Code section 3051 

referencing now someone under 25 their brains are not fully developed”—the 

trial court never mentioned, let alone analyzed, the numerous factors Miller, 

supra, 567 U.S. 460 identified as bearing on the “ ‘distinctive attributes of 

youth’ and how these attributes ‘diminish[ed] the penological justifications 

for imposing the harshest sentences . . . .’ ” (In re Kirchner (2017) 2 Cal.5th 

1040, 1042.) This would include, for example, evaluation of the 

circumstances pertaining to defendant’s “immaturity, impetuosity, and 
25

failure to appreciate risks and consequences” at the time of his offense and to 

“the family and home environment that surround[ed] [him]—and from which 

he [may not have been able to] usually extricate himself—no matter how 

brutal and or dysfunctional.” (Miller, supra, 567 U.S. at p. 477.)

In sum, it is clear the trial court did not analyze the situation “in

conformity with the spirit of the law and in a manner to subserve and not to

impede or defeat the ends of substantial justice. . . .” (Bailey v.

Taaffe, supra, 29 Cal. at p. 424.)11 And we remand again, so it can do so, 

11 For example, in refusing to strike the enhancement, the trial court 

stated it considered defendant’s “life as listed or described in the papers.”

The trial court observed that the event that preceded the shooting—

defendant being told to move out of the house—was not particularly 

provocative but rather was “within the normal range of things we just have to 

deal with in life,” and defendant’s response was “very, very dangerous.” As to 

this “dangerous” comment, we note that all cases involving the possible 

imposition of a firearm enhancement necessarily involve “dangerous” actions. 

But the amendment to section 12022.53, subdivision (h)—permitting a trial 

court to exercise its discretion in the imposition of a 25-year enhancement—is 

a clear message to trial courts that the punishment is not appropriate in 

every case, including an implied malice second degree murder conviction.

The court further noted that the firearm enhancement was designed to 

punish this sort of behavior and was not disproportionate to the crime, but 

did not consider its application to a person of defendant’s age and in 

defendant’s circumstances, for whom the firearm enhancement, in light of the 

rest of the sentence, would result in the denial of parole until age 79—

resulting in a sentence commonly called a “de facto LWOP.”

Moreover, although the trial court adverted to defendant’s “life as . . . 

described in the papers,” and was aware that defendant had a history of 

juvenile offenses, beginning when he was 13, the trial court did not consider 

the implications of defendant’s age or the facts of his juvenile strike: a 

robbery committed with other teenagers; no weapon was used; there was only 

minimal injury; and defendant was neither the instigator nor the main 

aggressor.
26

especially in light of the court’s comment that defendant was “not a lost 

cause.”12

The Refusal to Stay the Minimum Restitution Fine was Not 

Error

At defendant’s original sentencing in May 2016, the trial court imposed 

the minimum restitution fine of $300. As noted, at the resentencing hearing 

defendant belatedly contended he was entitled to have that restitution fine 

stayed or, in the alternative, stricken, pending a hearing on his ability to pay. 

The trial court rejected the argument, a rejection defendant appeals here.

As indicated above, the issue of ability was raised orally at the end of 

the sentencing hearing was there, as it is here, based on People v. Dueñas, 

supra, 30 Cal.App.5th 1157 (Dueñas). Dueñas involved the now familiar case 

of Velia Dueñas, a homeless, indigent person who was on her fourth 

12 At the time of defendant’s original sentencing—before it had the 

legal discretion to not impose the 25-year firearm enhancement—the trial 

court stated, “I do want to take note of the defendant’s letter, something that 

is striking and worthy of note, where he writes, ‘since that is not the case’—

regarding he could have taken some time to reflect and none of this would 

have happened—‘since that is not the case, I pray that my punishment gives 

my victims’ family some type of closure for their loss. Also, in deciding my 

punishment, I ask humbly that you are able to recognize and believe that I 

am in no way a lost cause.’ ”

The trial court continued, “That’s worthy to note, and that’s certainly—

I recognize the sentence is what it is, but that is worth noting. I don’t think 

anyone here, at this point, thinks you are a lost cause Mr. Ceballos. You 

have other opportunities. I recognized the pain of this sentence, as well. But 

you are not a lost cause, and, at least, I want you to know that before leaving 

here today.” 

At the time the trial court made these remarks about defendant not 

being a “lost cause” at the age of 24, it was required to impose the firearm 

enhancement. Our remand gives the trial court the opportunity to consider 

this issue anew in light of all of the factors discussed in this opinion.
27

conviction for driving with a suspended license, placed on probation and, yet 

again, ordered to pay mandatory assessments and fines, including a $150 

restitution fine under section 1202.4, subdivision (c).

13 The court held that 

“although the trial court is required by Penal Code section 1202.4 to impose a 

restitution fine, the court must stay the execution of the fine until and unless 

the People demonstrate that the defendant has the ability to pay the fine.” 

(Dueñas, supra, 30 Cal.App.5th at p. 1172.)

Dueñas has spawned a plethora of cases, many of which have 

distinguished it on the facts before them, with many others holding that 

Dueñas was wrongly decided, several of which cases are pending before the 

Supreme Court. A relatively early case illustrating all this is the 2-1 opinion 

in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, 

S257844 (Kopp), where the majority opinion analyzed the issue based on the 

distinction between fines and charges that are punitive in nature and those 

that are not. And as to the former, the majority held they should be 

challenged under the excessive fines clauses in the United States and 

California Constitutions. (Id. at pp. 96–97.)

A recent case along those lines is People v. Cowan (2020) 

47 Cal.App.5th 32, review granted June 17, 2020, S261952, where our 

colleagues in Division Four have a lengthy discussion of Dueñas and its 

progeny, including a collection of “the Dueñas critics” (Cowan, supra, 

13 Section 1202.4 provides that “[t]he court shall impose the restitution 

fine unless it finds compelling and extraordinary reasons for not doing so and 

states those reasons on the record. A defendant’s inability to pay shall not be 

considered a compelling and extraordinary reason not to impose a restitution 

fine. Inability to pay may be considered only in increasing the amount of the 

restitution fine in excess of the minimum fine pursuant to paragraph (1) of

subdivision (b).”
28

47 Cal.App.5th at p. 39), and adopts the excessive fines approach. (Id. at p. 

42.) We adopt this view, concluding that the approach taken in Kopp is 

correct, where the court explained this distinction: “[W]e do not follow the 

court’s approach to restitution fines in Dueñas. There, the court 

acknowledged that the restitution fine under section 1202.4 is ‘additional 

punishment for a crime.’ (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Yet, 

the court still focused solely on a defendant’s ability to pay in determining 

whether such a punitive fine is constitutional. To this end, the court held: 

‘[A]lthough Penal Code section 1202.4 bars consideration of a defendant’s 

ability to pay unless the judge is considering increasing the fee over the 

statutory minimum, the execution of any restitution fine imposed under this 

statute must be stayed unless and until the trial court holds an ability to pay 

hearing and concludes that the defendant has the present ability to pay the 

restitution fine.’ (Dueñas, supra, 30 Cal.App.5th at p. 1164.) We disagree 

that this approach should apply to all punitive fines in the first instance. 

Instead, because these fines are intended to punish defendants, we agree 

with the People that a defendant should challenge such fines under the 

excessive fines clause of the Eighth Amendment of the federal Constitution 

and Article I, section 17 of the California Constitution. Put differently, there 

is no due process requirement that the court hold an ability to pay hearing 

before imposing a punitive fine and only impose the fine if it determines the 

defendant can afford to pay it.” (Kopp, supra, 38 Cal.App.5th at pp. 96–97.)

And so analyzed, the $300 minimum restitution fine imposed here is 

not excessive. A fine is excessive under the Eighth Amendment “if it is 

grossly disproportional to the gravity of a defendant’s offense” (United

States v. Bajakajian (1998) 524 U.S. 321, 334), an analysis made by 

considering four factors: “ ‘(1) the defendant’s culpability; (2) the relationship 
29

between the harm and the penalty; (3) the penalties imposed in similar 

statutes; and (4) the defendant’s ability to pay.’ ” (People v. Aviles (2019) 

39 Cal.App.5th 1055, 1070, citing People ex. rel. Lockyer v. R.J. Reynolds 

Tobacco Co. (2005) 37 Cal.4th 707, 728.)

Here, defendant was convicted of second degree murder after he fired 

eight shots through a closed door of a bedroom occupied by five people, killing 

Troy in the presence of his son, for which defendant was sentenced to 55 

years to life. In light of this, the $300 restitution fine—the minimum fine 

provided for by statute—was minor when compared to his sentence and the 

gravity of the offenses. 

Finally, we note that even if the decision were error, it would have been 

harmless error, because defendant will be in custody long enough to pay the 

$300 in issue here. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) 

Defendant was sentenced to a lengthy prison term of 55 years to life; at the 

time of sentencing, he was 29 years old; and nothing in the record points to 

any circumstance casting a doubt on his ability to obtain the funds for 

payment in the future, future earnings, including prison wages, that are 

relevant as a constitutional matter. (See People v. Aviles, supra, 

39 Cal.App.5th at p. 1076; § 1202.4, subd. (d) [in considering a defendant’s 

inability to pay as a factor in setting the amount of the fine in excess of the 

minimum fine, “[c]onsideration of a defendant’s inability to pay may include 

his or her future earning capacity”].)

The Petition Will Be Heard in the Superior Court

In response to defendant’s appeal and his petition for writ of habeas 

corpus, the Attorney General has filed a combined respondent’s brief and 

informal opposition to the petition. The opposition portion of the brief, which 

is 25-pages long, argues that the petition should be summarily denied on the 
30

basis it fails to allege a prima facie showing of ineffective assistance of 

counsel. It also asserts “as a threshold matter” that it would be “appropriate 

to deny the petition without prejudice to allow the lower court to weigh in on 

the issues raised.” 

In support, respondent cites the recent case of Robinson v. Lewis (2020) 

9 Cal.5th 883, 895 (Robinson), where a unanimous Supreme Court observed 

as follows: “All courts in California have original habeas corpus jurisdiction, 

but that does not mean all courts must exercise it in all circumstances. A 

higher court ‘has discretion to deny without prejudice a habeas corpus 

petition that was not filed first in a proper lower court.’ [Citations.] For this 

reason, the United States Supreme Court has observed that ‘California’s 

habeas rules lead a prisoner ordinarily to file a petition in a lower court first.’ 

(Carey v. Saffold [(2002)] 536 U.S. [214,] 221.) We agree. Petitioners should 

first file a petition for a writ of habeas corpus challenging a judgment in the 

superior court that rendered the judgment. If the superior court denies the 

petition, the petitioner may then file a new petition in the Court of Appeal. 

[Fn. omitted.]”

14

After citing Robinson, respondent’s brief goes on: “As the Court of 

Appeal observed in Ex parte Elias, ‘particularly where the taking of evidence 

is involved, the local court is often better able to render timely and effective 

relief than a court of appeal, and it is for this reason that appellate courts 

frequently refuse to issue the writ unless application has first been made 

therefor to the superior court or unless a good reason is shown in the petition 

for failure to have made such application.’ (Ex parte Elias (1962) 

14 The footnote noted an exception that a “petition for a writ of habeas 

corpus may be filed in the Court of Appeal in the first instance if it is related 

to a pending direct appeal.” (Robinson, supra, 9 Cal.5th at p. 895, fn. 5.)
31

209 Cal.App.2d 262, 264; see Rose v. Superior Court (2000) 81 Cal.App.4th 

564, 574 [‘in the few petitions that require an evidentiary hearing, appellate 

courts often transfer the petitions to the trial court’].) [Defendant’s] petition 

relies on multiple factual allegations involving local practices pertaining to 

negotiation of pleas that a trial court is better equipped to hear and 

evaluate.” 

In his reply brief and informal reply to respondent’s opposition, 

defendant states he does not object to the petition being transferred to the 

superior court, acknowledging respondent’s position that an “evidentiary 

hearing will be necessary to resolve [defendant’s] claim.” Indeed it will, 

certainly on his primary claim of ineffective assistance of counsel.

By way of illustration, defendant’s claim includes that prior to trial his 

counsel failed to inform him that the prosecutor had stated his office would 

consider a plea offer of guilt in exchange for a sentence of 17 or 18 years, if 

the defense initiated the request. Defendant also contends that counsel 

failed to advise him that even if his defense of involuntary manslaughter 

were successful, he would face a sentence of 18 years based on his prior strike 

offense and the gun enhancement. Moreover, defendant attaches a 

declaration from trial counsel Robin Keeney, who among other things 

testifies that he has “a vague memory” of his conversation with defendant,

and at another point testifies that his doctor told him his “cognition and 

memory are impaired.” This, of course, raises fact-intensive questions as to 

Mr. Keeney’s cognitive function in 2015 when defendant’s trial was held. 

Defendant’s claim would also include evidence as to the process and 

procedures of the district attorney’s office in 2014 and 2015, as well as the 

particular position of the office in his case. Indeed, Ms. Kelly acknowledges 
32

as much, testifying as to her attempt to contact the particular deputy district 

attorney involved in defendant’s case, and receiving no response.15

DISPOSITION

The matter is remanded to the superior court to exercise its discretion 

in light of all applicable principles. The restitution fine is affirmed. And as 

to the petition for writ of habeas corpus, as set forth in a separate order filed 

today, an order to show cause will issue returnable in the superior court.

15 The deputy district attorney is now a superior court judge. 
33

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

People v. Ceballos (A158314)