The opinion
Filed 2/3/26 P. v. Brown CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B337987
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA088181)
v.
DERRICK LAMONT BROWN,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Joseph L. Burghardt, Judge. Affirmed in part
and remanded with directions.
Corey J. Robins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan J. Kline and Taylor Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant Derrick Lamont Brown challenges several
aspects of his resentencing. For several robbery convictions, the
superior court originally sentenced Brown, in 2015, to a prison
term of 30 years, four months. That sentence included four, one-
year enhancements for prior prison terms under Penal Code
section 667.5, subdivision (b) (further statutory references are to
the Penal Code unless specified). Years later, the Legislature
enacted section 1172.5, which not only invalidates such
enhancements, but requires a full resentencing of individuals
whose sentences include them – a resentencing at which the
court applies other intervening ameliorative changes to the law.
(§ 1172.5, subds. (a) & (b).) When resentencing Brown, the court
struck the four invalid one-year enhancements without further
reducing Brown’s term of confinement. Brown disputes the
court’s retention of a five-year prior serious felony enhancement,
its reapplication of the “Three Strikes” law, and its reimposition
of an upper term on the principal offense. We affirm the court’s
new sentence of 26 years, four months; however, we order a
limited remand regarding certain fines and assessments.
BACKGROUND
A. Original Trial and Sentencing
Brown attached the record of his original trial and
sentencing to an unopposed motion for judicial notice, dated
August 20, 2025, which we grant.
In 2015, a jury convicted Brown of one count of attempted
second-degree robbery (§§ 664, 211; count 1) and six counts of
second-degree robbery (§ 211; counts 2 through 7). In a separate
trial phase for which Brown waived a jury, the superior court
found Brown had suffered six prior adjudications that could
potentially increase his sentence under the Three Strikes law
2
(see §§ 1170.12, 667) or other anti-recidivism statutes. These
included one juvenile robbery adjudication from a 1982
proceeding, two convictions for robbery (see § 211) and two
convictions for assault with a firearm (see § 245, subd. (a)(2))
from a 1987 prosecution, and one “bank robbery” conviction from
a 1998 federal prosecution (see 18 U.S.C. § 2113(a)).
At sentencing, the superior court first addressed Brown’s
prior adjudications. For purposes of the anti-recidivism statutes,
it struck the juvenile adjudication, because it appeared possible
Brown was only 15 years old at the time. The court also struck
the federal “bank robbery” conviction. It was unsure whether the
conviction was under the prong of the federal bank robbery
statute corresponding with a robbery under California law (which
would make it a strike) or under the prong punishing burglary of
a bank – that is, entering a bank with the intent to commit any
felony affecting the bank (which would not). (See People v. Jones
(1999) 75 Cal.App.4th 616.) As to the remaining four convictions
from the 1987 case, the court chose to treat them as a single
offense. It viewed them as representing “a single period of
aberrant behavior.” Thus, it would use just one of the 1987
robbery convictions as a strike under the Three Strikes law.
And, similarly, it would impose only one five-year enhancement
for the prior commission of a serious felony, staying
enhancements related other priors. (See §§ 654, 667, subd. (a).)
The superior court then chose one of the six robbery counts
in the prosecution before it, count 7, as the principal sentencing
offense. It noted Brown “exploited his own son in committing this
crime” and noted the “prior conduct that is not being treated as
strikes . . . is nevertheless serious.” The court imposed the upper
term for the offense, five years, which it doubled to 10 years
3
under the Three Strikes law because of Brown’s prior strike.
On the subsidiary offenses, the court imposed consecutive terms
of one-third of the applicable middle term for each offense,
doubled under the Three Strikes law. Thus, the court imposed
one year, four months for the attempted robbery charged in count
1 and two years for each of the robberies charged in counts 2
through 7. To these 21 years, four months, the court added the
five-year enhancement for a prior serious felony. And the court
added four, one-year enhancements for prior prison terms. (See
§ 667.5, subd. (b).) Those were based on Brown having served
prior prison terms for an attempted robbery conviction, a
conviction of a cocaine-related offense (see Health & Saf. Code,
§ 11351.5), a conviction for a weapons-related offense (§ 12020),
and the federal bank robbery conviction.
In addition to this aggregate term of 30 years, four months,
the superior court ordered Brown to pay $9,009.66 in restitution
to Chase Bank pursuant to section 1202.4, subdivision (f); a
$9,000 restitution fine pursuant to section 1202.4, subdivision (b);
a $9,000 probation restitution fine pursuant to section 1202.45,
stayed unless parole is revoked; and other items.
B. Resentencing Under Section 1172.75
Because Brown’s sentence included the four, one-year
enhancements based on prior prison terms, he was a candidate
for resentencing under section 1172.75, and his attorney filed, in
December 2023, a resentencing memorandum. The
memorandum attached and summarized a mitigation report
regarding Brown’s difficult childhood, his adult criminal history,
and his current incarceration. The memorandum invited the
court, at resentencing, to consider postconviction factors under
the authority of section 1172.75, subdivision (d)(3), and argued
4
Brown presented a reduced risk of future violence and did not
merit a 30-year, four-month sentence. The memorandum also
cited Assembly Bill No. 124, Senate Bill No. 81, and Senate Bill
No. 620 as intervening, ameliorative laws that should apply and
further reduce Brown’s sentence. In this regard, the
memorandum argued (1) the base sentence on the principal
offense, count 7, for robbery, must be the middle term of three
years, not the upper term, because no jury had found aggravating
factors to support an upper term as would be required under
changes to section 1170, subdivision (b); and (2) the court should
dismiss the five-year prior serious felony enhancement given its
new discretion under section 1385.
In March of 2024, the superior court held a resentencing
hearing. The prosecutor stated he had “looked at the C-file” –
that is, a collection of documents pertaining to an inmate.
(Lunsted v. Superior Court (2024) 100 Cal.App.5th 138, 144,
fn. 1.) The file “was unremarkable.” Noting he “tried to find the
facts of the case[,]” the prosecutor then stated: “I don’t have a
scanned file. I just found a probation report that said these were
pass-a-note bank robberies. I think [Brown] had a prior bank
robbery – I don't know the nature of that one – as well as a prior
serious felony of another kind and some other convictions. So I
think that his current sentence was well earned. The court can
obviously strike the prison priors. But I think that matters of
rehabilitation are better handled by an institution like the parole
board.” Defense counsel argued Brown, then age 59, had a
greatly reduced risk of future violence and a “good recent history
while in custody.” Defense counsel also argued Brown’s original
sentence was out of step with today’s norms and reiterated
5
objections to an upper term sentence and to retaining the five-
year prior serious felony enhancement.
The superior court granted resentencing. Before imposing
a new sentence, the court “guess[ed] the main problem that” it
had “in terms of the defendant’s prior record,” was the collection
of Brown’s adjudications, described already, including those for
robbery and attempted robbery, federal bank robbery, assault
with a firearm, and the drug and weapon offenses. The court also
expressed concern that the charges at issue in the resentencing
involved robberies at four different banks. Following these
remarks, the superior court imposed the same term of
confinement as the 2015 court, only it omitted the four, one-year
prior prison term enhancements.
In reselecting count 7 as the principal offense and
resentencing Brown to the upper term on that count, the superior
court concluded section 1172.75, subdivision (d)(4), permitted it
to re-impose a previous upper term when, as here, the prior court
had done so. “In addition,” it found “aggravating factors far
outweigh the mitigating factors” because of Brown’s prior
criminal history. The court mentioned as “aggravating,” too, that
Brown “got his son to present a robbery note” during one of the
bank robberies. But the court immediately clarified its
intentions: “But in terms of just for upper term, the court uses
the defendant’s prior convictions as an adult which sustained
petitions superseding as [sic] numerous and increasing
seriousness. [¶] The court bases the upper term on that
aggravating factor as well as the aggravating factor that the
defendant has served a prior prison term pursuant to Penal Code
section 1170, . . . [subdivisions (b)(2) and (b)(3)].”
6
The superior court next addressed whether to reimpose a
sentence under the Three Strikes law. The court, referencing
Brown’s resentencing memorandum, recognized and considered
the difficulties Brown faced during his life. That is, the court
noted Brown “had an unstable home life growing up. His mother
was a drug addict. He had no food in his house. He bounced
from home to home. His mother was physically and verbally
abusive. His mother had been beaten herself by boyfriends. His
father was an alcoholic and addicted to crack.” Further, the court
noted Brown “had to provide for his own food and money since
the age of nine. He lived in empty houses since the age of twelve.
He committed burglaries to make money to eat. He ran away
from his placement at least five times. He sold drugs and
committed robberies to survive when not in jail.” And
additionally, the court noted Brown “takes Zoloft for depression,”
has participated in self-improvement courses, has “had a job as a
porter,” is in his late 50s, and “walks with a cane.”
After reciting these circumstances, the superior court
concluded that despite “mitigating circumstances,” Brown was
not “outside the spirit” of the Three Strikes law given his history.
Yet the superior court, in step with the original sentencing court,
imposed only a one-strike sentence – that is, it only used one of
Brown’s prior felonies as a strike offense to double the principal
and subordinate terms.
Finally, the court addressed Brown’s request to dismiss the
five-year prior serious felony enhancement. “The court note[d]
that it [had] discretion to strike this per Penal Code section 1385
and/or strike the punishment” but “decline[d] to exercise its
discretion based on [Brown’s] prior record.” The court found it
was “not in the interest of justice” to do so. The abstract of
7
judgment also included the two, $9,000 restitution fines (see
§ 1202.4, subd. (b); § 1202.45), and other items, but the oral
recitation of sentence included none of these.
Brown timely appealed.
DISCUSSION
No one disputes Brown’s entitlement to resentencing under
section 1172.75. (See generally People v. Superior Court
(Guevara) (2025) 18 Cal.5th 838, 849 [recounting the
resentencing statute’s background and procedural mechanisms].)
We proceed directly, then, to consider each of Brown’s arguments
for why the superior court’s resentencing choices were in error.
A. Retention of the Five-Year Enhancement
Brown first argues the superior court abused its discretion
under sections 1172.75 and 1385 when retaining the five-year
prior serious felony enhancement. The People urge us to find this
argument entirely forfeited based on Brown’s presentations to the
trial court. But Brown invoked sections 1172.75 and 1385 in his
resentencing memorandum. Brown cited section 1385 as the
primary basis for dismissing the five-year enhancement and the
superior court cited section 1385 in weighing and rejecting
dismissal. Brown’s lead argument here is that the superior court,
despite citing section 1385, did not actually follow the correct
statutory standards when considering the enhancement, and
Brown argues cases decided after his resentencing make this
clear. We will consider this argument on its merits.
Section 1385, subdivision (c)(1), provides that
“[n]otwithstanding 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.” Senate Bill No. 81 (Stats. 2021, ch. 721, § 1), effective
8
January 1, 2022, provides courts with new guidelines for
exercising this discretion to dismiss enhancements. “In
exercising [this] discretion . . . , the court shall consider and
afford great weight to evidence offered by the defendant to prove
that any of [certain] mitigating circumstances . . . 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.” (§ 1385, subd.
(c)(2).) The enumerated mitigating circumstances that Brown
invokes as potentially relevant here include: “(D) The current
offense is connected to mental illness,” “(E) The current offense
is connected to prior victimization or childhood trauma,” and
“(H) The enhancement is based on a prior conviction that is over
five years old.” (§ 1385, subd. (c)(2)(D), (E), (H).)
According to Brown, the superior court failed to apply
Senate Bill No. 81’s guidelines, enshrined in section 1385,
subdivision (c)(2), including its “great weight” imperatives.
Brown is correct that the superior court’s remarks addressing the
five-year prior serious felony enhancement were brief. The court
noted its “discretion to strike [the enhancement] per Penal Code
section 1385,” but “decline[d] to exercise its discretion based on
[Brown’s] prior record,” finding it was “not in the interests of
justice” to do so. The court did not state it was giving any
mitigating factors “great weight,” nor did it expressly address
endangerment of public safety. But the brevity of these remarks,
and the court’s silence on Brown’s stated issues of concern, do not
show an abuse of discretion warranting reversal.
9
Under well-established rules of appellate review, we
presume the court, on a silent record, applied sentencing laws
correctly. And these rules apply in the wake of Senate Bill No.
81’s amendments to section 1385. (People v. Bravo (2025) 107
Cal.App.5th 1144, 1157 [no error on section 1172.75 resentencing
despite court not using “ ‘great weight’ ” language or analysis on
the record]; People v. Coleman (2024) 98 Cal.App.5th 709, 724–
725 [appellate court presumed the superior court applied Senate
Bill No. 81’s new standards even when that court did not mention
section 1385]; People v. Knowles (2024) 105 Cal.App.5th 757,
764–765, 768–769 [no abuse of discretion in refusing to dismiss
an enhancement under section 1385, subdivision (c), when the
superior court “did not mention all of the mitigating evidence,”
for “ ‘[u]nless the record affirmatively demonstrates otherwise,
the trial court is deemed to have considered all the relevant
sentencing factors set forth in the rules’ ”]; see also People v.
Myers (1999) 69 Cal.App.4th 305, 310 [“The court is presumed to
have considered all . . . relevant factors” and “the fact that the
court focused its explanatory comments on [one factor] does not
mean that it considered only that factor”]; accord People v. Allen
(2019) 41 Cal.App.5th 312, 330.)
Here, Brown’s section 1172.75 resentencing memorandum
mentions both Senate Bill No. 81 and section 1385. The superior
court referenced section 1385 in discussing Brown’s enhancement
and gave no indication it was unaware of or misapplying section
1385, subdivision (c)’s test. That test had been in effect for over
two years at the time of Brown’s March 2024 resentencing.
At points during the hearing, the court also demonstrated
awareness of Brown’s mitigating circumstances and the age of his
prior crimes, as would be relevant to an analysis under revised
10
subdivision (c). There is, furthermore, no contention that the
court’s brief statement of reasons related to the five-year
enhancement was otherwise improper.
Brown acknowledges the silent record rule. He argues,
however, we cannot presume the superior court followed the law
governing section 1385, subdivision (c), in this instance because
that law was “new, unclear, and still being fleshed out, and
[was] . . . subsequently explained in [two cases] Walker, and
Gonzalez, months after the resentencing hearing.” Yet section
1385, at the time of resentencing, was not new and plainly
specified the “great weight” test and the role of public safety.
(Stats. 2021, ch. 721, § 1.) Moreover, neither People v. Walker
(2024) 16 Cal.5th 1024 (Walker) nor People v. Gonzalez (2024)
103 Cal.App.5th 215 (Gonzalez) altered a sentencing court’s
discretion in a way that would have benefited Brown.
Walker rejected a presumption favoring defendants,
previously advanced by some Courts of Appeal, that
enhancements be dismissed under section 1385, subdivision (c)
whenever a mitigating factor is present. Instead, Walker
approved Court of Appeal decisions that viewed section 1385 as
calling for “ ‘holistic balancing with special emphasis on the
enumerated mitigating factors.’ ” (Walker, supra, 16 Cal.5th at
p. 1036, italics omitted.) In turn, Gonzalez did not create a new
rule of law, but rather corrected a superior court’s
misunderstanding regarding the term “endanger[ment] to public
safety” in section 1385, subdivision (c)(2). The statute defines the
term as “a likelihood that the dismissal of the enhancement
would result in physical injury or other serious danger to others,”
(§ 1385, subd. (c)(2)), which does not contemplate a laser-like
focus on dangerousness at the time of sentencing. (Gonzalez,
11
supra, 103 Cal.App.5th at p. 228.) The superior court in Gonzalez
had expressly limited its consideration to the defendant’s
“current” dangerousness despite the call of the statute, a mistake
not present here. (Id. at pp. 228–230.)
Having determined that Brown cannot show the superior
court applied an erroneous legal standard in considering his five-
year enhancement, we turn to arguments Brown offers regarding
how the superior court ultimately exercised its discretion
regarding the enhancement. Brown argues the court mistakenly
relied on his federal conviction being one for “bank robbery,”
should not have weighed his juvenile adjudication in favor of
retaining the enhancement, and failed to sufficiently weigh his
asserted lack of future dangerousness and positive postconviction
conduct.
With respect to these arguments, the People’s forfeiture
argument, mentioned at the outset of this section, has purchase.
Indeed, while Brown’s resentencing memorandum plainly asked
the superior court to consider striking the prior serious felony
enhancement under sections 1172.75 and 1385, it did not alert
the superior court to any assertedly invalid considerations and
did not anticipate any of the court’s remarks or choices in
weighing the enhancement at the ensuing hearing. (See People v.
Sperling (2017) 12 Cal.App.5th 1094, 1101.) At that hearing,
Brown’s counsel made no objections to the superior court’s stated
reasons for retaining the five-year prior serious felony
enhancement.
Brown thus alternatively asserts a violation of his
constitutional right to effective counsel with respect to any
forfeiture of these arguments he now raises for the first time on
appeal. An ineffective assistance of counsel claim requires
12
objectively unreasonable representation coupled with prejudice,
meaning a reasonable probability that competent performance
would have yielded a more favorable result. (Strickland v.
Washington (1984) 466 U.S. 668, 687, 694.) We decline to find
ineffectiveness of the sort Brown asserts.
First, we address the lack of an objection to the superior
court’s supposedly mistaken reliance on Brown’s federal
conviction being one for “bank robbery” when that conviction may
not have been considered a robbery under California law.
(See People v. Jones, supra, 75 Cal.App.4th 616.) Whatever the
correct classification under California law, Brown’s conviction
was, as stated in the federal judgment, one for “Bank Robbery, in
violation of Title 18 United States Code, Section 2113(a).”
The original sentencing court agreed with Brown’s understanding
of the offense on the record. Neither the original sentencing court
nor the resentencing court considered the offense as a strike.
And Brown does not show the resentencing court – in using the
conviction’s proper name – newly and improperly weighed its
import in connection with any sentencing issues before that
court. We conclude trial counsel may have had tactical reasons to
not object. (See People v. Aguirre (2025) 18 Cal.5th 629, 679
[“ ‘When the record on direct appeal sheds no light on why
counsel failed to act in the manner challenged, defendant must
show that there was “ ‘ “no conceivable tactical purpose” ’ for
counsel’s act or omission” ’ ”].) The nature of the conviction may
have been already known to the court, the conviction might have
had facts trial counsel did not want to disclose, and there were
many other actual robbery convictions on defendants’ record.
Regardless, we see no reasonable likelihood of another result had
trial counsel objected.
13
We next address the lack of an objection to the superior
court’s assertedly improper reliance on Brown’s juvenile
adjudication. Brown argues the court’s reliance was inconsistent
with its finding – which it made in evaluating the propriety of a
Three Strikes Sentence – that Brown had an “unstable home life”
and suffered abusive behavior as a child. To Brown, the court
could not consider the juvenile adjudication against him, in
weighing the five-year enhancement, if it was also to give great
weight to the mitigating factor that his most recent crimes were
“connected to prior victimization or childhood trauma.” (See
§ 1385, subd. (c)(2)(E).) But the superior court, though
mentioning the juvenile adjudication at some points during the
sentencing hearing, did not call out the adjudication to support
retaining the five-year enhancement. There would have been no
reason for counsel, then, to object, especially given the numerous
serious adult convictions in the “prior record” that the court did
reference. In any event, considering the juvenile adjudication in
the full context of Brown’s prior record and his childhood
experiences would have been proper, and the record does not
show the superior court did otherwise. Nor does it appear the
court would have been reasonably likely to have altered its
analysis had this matter been expressly flagged for its attention.
Finally, we address the lack of an objection to the superior
court’s weighing of Brown’s future dangerousness and post-
conviction conduct. The record contained information regarding
Brown’s crimes at issue, his prior offenses, his overall life
situation, and his performance in prison. The resentencing
memorandum addressed these matters at length, and, over the
course of the resentencing hearing, the court cited facts from that
memorandum bearing on dangerousness. Counsel was not
14
ineffective for declining to further highlight, reargue, or further
refine the argument regarding these facts, which were plainly on
the court’s mind. (People v. Ledesma (2006) 39 Cal.4th 641, 748
(Ledesma) [“The mere circumstance that a different, or better,
argument could have been made is not a sufficient basis for
finding deficient performance by defense counsel”].) Nor is it
reasonably probable the superior court would have altered its
analysis had counsel done so. As to postconviction factors that
might have been applicable to weighing the enhancement (see
§ 1172.75, subd. (d)(3)), the resentencing memorandum called the
court’s attention to the relevant subdivision, and the superior
court’s resentencing remarks demonstrate it was aware of the
postconviction factors that might benefit Brown. Moreover,
subdivision (d)(3) only states that a court “may” consider
postconviction factors; consideration is not mandatory.
(§ 1172.75, subd. (d)(3).) Counsel’s reliance on the resentencing
memorandum, especially given the court’s obvious familiarity
with it, was not deficient performance. (Ledesma, at p. 748.) And
again, counsel’s reliance on the resentencing memorandum did
not prejudice Brown.
Even were we to address the merits of Brown’s various
arguments challenging the way the superior exercised its
discretion regarding the five-year enhancement, our task
would not be simply to state agreement or disagreement with
the superior court’s decision to retain that enhancement.
“A ‘ “decision will not be reversed merely because reasonable
people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’ ” ’ . . . . [A] trial court does not abuse
its discretion unless its decision is so irrational or arbitrary that
15
no reasonable person could agree with it.” (People v. Carmony
(2004) 33 Cal.4th 367, 377.) Given Brown’s criminal history, and
given the nature of the offenses charged in the current case, we
cannot say it was irrational or arbitrary for the superior court,
evaluating Brown’s situation holistically and in furtherance of
justice, to view it as appropriate to retain the five-year
enhancement, even if great weight were to be given to qualifying
mitigating factors. Even after the changes to section 1385,
subdivision (c), the “ultimate question before the trial court
remains whether it is in the furtherance of justice to dismiss an
enhancement.” (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098;
People v. Knowles, supra, 105 Cal.App.5th at p. 770.)
B. The Three Strikes Sentence
Brown next argues the superior court abused its discretion
in sentencing him under the Three Strikes law instead of striking
his prior strike conviction. He asserts the superior court had to
apply, but did not apply, the same “great weight” test under
section 1385, subdivision (c)(2), that we just discussed in
connection with the five-year prior serious felony enhancement.
This argument falters for two reasons.
First, Brown forfeited this claim. Although Brown, in his
resentencing memorandum, requested a sentence outside the
Three Strikes law, he did so solely based on the incorrect
assertion that the original sentencing court had found no strikes
at all. When the resentencing court, at the hearing, undertook
the ordinary analysis regarding retaining or dismissing strikes –
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497
and section 1385, subdivision (a) – Brown did not object. He, in
particular, did not argue the superior court should have instead
applied the “great weight” rubric of section 1385, subdivision
16
(c)(2). “[C]omplaints about the manner in which the trial court
exercises its sentencing discretion and articulates its supporting
reasons cannot be raised for the first time on appeal.” (People v.
Scott (1994) 9 Cal.4th 331, 356.)
Second, forfeiture aside, we reject Brown’s alternative
contention that his counsel rendered ineffective assistance by
failing to raise section 1385, subdivision (c)’s applicability to
Three Strikes law sentencing. Failure to raise a meritless
argument is not ineffective assistance of counsel. (People v. Kipp
(1998) 18 Cal.4th 349, 377.) And Brown’s argument lacks merit.
The Courts of Appeal have unanimously concluded “that section
1385, subdivision (c) applies by its terms to a sentence
‘enhancement,’ but not to a sentence derived from the alternative
sentencing scheme of the Three Strikes law. (§ 1385, subd. (c);
People v. Dain (2024) 99 Cal.App.5th 399, 410–422 (Dain), review
granted May 29, 2024, S283924 [‘Courts of Appeal have
uniformly concluded that section 1385(c) does not apply to the
decision whether to dismiss a prior strike conviction because the
Three Strikes law is an alternative sentencing scheme, not an
enhancement’]; People v. Olay (2023) 98 Cal.App.5th 60, 66–67
(Olay) [if the Legislature had wanted § 1385, subd. (c) to apply to
prior strikes as well as to enhancements as legally defined, it
would have said so]; People v. Burke (2023) 89 Cal.App.5th 237,
244 (Burke) [‘The plain language of subdivision (c) of section 1385
applies only to an “enhancement,” and the Three Strikes law is
not an enhancement’]; see Dain, supra, 99 Cal.App.5th at pp.
410–422, review granted [agreeing with Burke and Olay and
recognizing that § 1385, subd. (c)(2)(H), which provides that a
prior strike conviction over five years old is a mitigating
circumstance, would directly conflict with the Three Strikes
17
law].)” (People v. Dowdy (2024) 107 Cal.App.5th 1, 9–10, review
denied Feb. 11, 2025, S288676.) We adhere to this view.
In his reply brief, Brown argues the superior court also
abused its discretion in declining to dismiss his lone strike, even
under the traditional rubric of People v. Superior Court (Romero)
and section 1385, subdivision (a). “ ‘We need not, and typically do
not, address arguments raised for the first time in a reply brief.’ ”
(People v. Dunn (2025) 18 Cal.5th 129, 183, fn. 13; accord People
v. Adir Internat., LLC (2025) 114 Cal.App.5th 275, 298 [“We
generally do not consider arguments made for the first time in a
reply brief”].) Even so, we find no abuse of discretion. The
superior court weighed factors for and against retaining the lone
strike and we cannot say it was irrational for that court to locate
Brown, with his persistent robbery convictions, within the spirit
of the Three Strikes law. (See People v. Carmony, supra, 33
Cal.4th at pp. 377–379.)
C. Reimposition of the Upper Term
Pivoting from section 1385, Brown next argues the superior
court’s reimposition of the five-year upper term, rather than the
middle term, on count 7 – the principal robbery offense in both
sentencings – violated section 1170, subdivision (b)(2). Brown
contends, as he did in his resentencing memorandum, that
revisions to this subdivision now require a defendant to admit, or
a competent factfinder to find beyond a reasonable doubt, any
aggravating facts a sentencing court cites in selecting an upper
term, making the middle term the otherwise appropriate
punishment. When the superior court here selected the upper
term, it cited its distinct authority under section 1172.75,
subdivision (d)(4) to reimpose that term. It additionally justified
the upper term by citing aggravating factors, including the
18
increasing seriousness of Brown’s crimes – a circumstance that
had not been found at a trial beyond a reasonable doubt.
In current prosecutions, where section 1170, subdivision
(b)(2)’s new rule undisputedly governs without regard to any
provision of section 1172.75, increasing seriousness of crimes is
an aggravating fact that increases punishment, and a sentencing
court cannot simply intuit it. (People v. Wiley (2025) 17 Cal.5th
1069, 1078, 1082.) The issue for us, however, is whether the
superior court erred in reimposing, at this statutorily-created
resentencing procedure, the upper term – a term the original
sentencing court properly imposed under version of section 1170
effective then. (See People v. Lynch (2024) 16 Cal.5th 730, 748
[discussing both versions of section 1170].) We see no error.
The Legislature enacted section 1172.75’s resentencing
process and made the relevant revisions to section 1170,
subdivision (b), in the same year, 2021. (People v. Mathis (2025)
111 Cal.App.5th 359, 371 (Mathis).) Section 1170, subdivision
(b)(2), now states a court “may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment
exceeding the middle term and the facts underlying those
circumstances have been stipulated to by the defendant or have
been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” This reflected a change from the
previous practice, applicable when Brown was first sentenced, of
setting the statutory maximum punishment at the upper term
but allowing trial courts discretion to select among the upper,
middle, or lower terms. (People v. Lynch, supra, 16 Cal.5th at pp.
747–748.) Both versions of section 1170, we emphasize, complied
with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and
19
its requirement, based on the Sixth Amendment, of beyond-a-
reasonable-doubt factfinding of any fact that would expose a
defendant to a punishment beyond the maximum otherwise
authorized by statute. (Lynch, at pp. 747–748.)
Meanwhile, section 1172.75, subdivision (d)(2), instructs a
resentencing court to “apply the sentencing rules of the Judicial
Council and apply any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.”
But subdivision (d)(4), which the resentencing court invoked,
addresses upper terms specifically. (§ 1172.75, subd. (d)(4).)
It uses language hearkening to the contemporaneous changes in
section 1170. That is, the subdivision provides: “Unless the court
originally imposed the upper term, the court may not impose a
sentence exceeding the middle term unless there are
circumstances in aggravation that justify the imposition of a term
of imprisonment exceeding the middle term, and those facts have
been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1172.75, subd. (d)(4).)
The Courts of Appeal have addressed the interplay between
section 1170, subdivision (b)(2), and section 1172.75, subdivisions
(b)(2) and (b)(4). People v. Brannon-Thompson (2024) 104
Cal.App.5th 455, 466–467, holds that section 1172.75, subdivision
(d)(4), carves out an exception to section 1170, subdivision (b)(2),
and allows a resentencing court to reimpose an upper term
without additional factfinding beyond a reasonable doubt.
Brannon-Thompson additionally views section 1172.75,
subdivision (d)(4), as an exception to the more general rule of
section 1172.75, subdivision (d)(2) that new, ameliorative
20
sentencing rules should apply. (Brannon-Thompson, at pp. 466-
467.) People v. Gonzalez (2024) 107 Cal.App.5th 312, 328–330,
acknowledged the reasonableness of Brannon-Thompson’s textual
analysis but adopted a different interpretation. It viewed section
1172.75, subdivision (d)(4) as “simply restrict[ing] the scope of
defendants eligible to receive the upper term at resentencing to
those who previously received the upper term, instead of creating
a condition or exception independently justifying the imposition
of the upper term.” (Gonzalez, at p. 329, italics omitted.)
Gonzalez preferred this interpretation because it was concerned
that allowing reimposition of upper terms without meeting the
new factfinding requirements could run afoul of Apprendi.
(Gonzalez, at pp. 329–330.)
Appellate decisions after People v. Gonzalez have rejected
its reasoning, especially with respect to defendants, like Brown,
who were originally sentenced to upper terms in compliance with
Apprendi. (Mathis, supra, 111 Cal.App.5th at pp. 373–374 [an
original upper-term sentencing complied with Apprendi, and the
Legislature, in enacting the section 1172.75 procedure, did not
have to give defendants relief from that upper term, and the
language of subdivision (d)(4) made clear it did not do so]; cf.
People v. Dozier (2025) 116 Cal.App.5th 700, 715 [holding that
even a defendant sentenced to an upper term before California
amended section 1170 to comply with Apprendi could be
resentenced to that term under section 1172.75 without
additional factfinding].)
21
Our Supreme Court will consider these matters in People v.
Eaton, review granted May 14, 2025, S289903. (See Mathis,
supra, 111 Cal.App.5th at p. 373, fn. 6.) Meanwhile, we follow
the many appellate courts disagreeing with People v. Gonzalez for
the reasons stated by those courts. We thus agree the
Legislature intended subdivision (d)(4) to limit the otherwise
broad, ameliorative scope of a section 1172.75 resentencing, and
that the Legislature could so limit the scope of relief for
defendants with already-imposed, proper upper-term sentences
without generating new constitutional concerns under Apprendi.
(Mathis, at p. 374, citing People v. Padilla (2022) 13 Cal.5th 152,
162 [“The Legislature may write statutes that provide for a
different or more limited form of retroactivity, or for no
retroactivity at all”].) Section 1172.75, subdivision (d)(4), by
starting with the proviso that “[u]nless the court originally
imposed the upper term,” signals that there are two rules for
imposing an upper term on resentencing – one rule for those with
prior upper term sentences and another rule, involving
heightened factfinding, for those without. Subdivision (d)(4)
plainly permits a defendant with a prior middle term to receive,
upon resentencing and proper factfinding, an upper term.
Gonzalez’s proffered interpretation of subdivision (d)(4) as
“simply restrict[ing] the scope of defendants eligible to receive the
upper term at resentencing to those who previously received the
upper term” (People v. Gonzalez, supra, 107 Cal.App.5th at
p. 329, italics omitted) thus seems counter textual.
22
The superior court’s imposition of the upper term on
count 7 did not violate Brown’s constitutional rights. Nor, for
reasons discussed in connection with the five-year prior serious
felony enhancement, was it an abuse of discretion given Brown’s
criminal past and the nature of the charged crimes.
Brown’s opening brief argues the superior court should
actually have imposed the lower term on count 7 under section
1170, subdivision (b)(6), which instructs that notwithstanding the
now-default middle term, “unless the court finds that the
aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be
contrary to the interests of justice, the court shall order
imposition of the lower term if” defendant “has experienced
psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence.”
(§ 1170, subd. (b)(6)(A).) Counsel below, however, argued for a
reduction to the middle term, not the lower term. Brown has
forfeited a lower-term argument. Further, we decline to find
ineffective assistance of counsel on the appellate record before us.
Counsel may have had a tactical purpose in advocating, as he did,
for the middle term, which could have been viewed as a more
realistic approach given the circumstances. And the ultimate
reimposition of the upper term, along with the distance between
Brown’s childhood at the instant offenses, suggests no reasonable
probability of a low-term sentence had counsel sought one. (See
People v. Aguirre, supra, 18 Cal.5th at p. 679.)
23
D. Mandatory Fines and Assessments Mentioned Only
in Written Record of Sentence
Brown also challenges several of the fines and assessments
imposed at resentencing. The abstract of judgment notes these
items:
(1) a $9,000 restitution fine pursuant to section 1202.4,
subdivision (b);
(2) a matching $9,000 parole restitution fine pursuant to
section 1202.45, which would be stayed unless parole is revoked;
(3) victim restitution to Chase Bank of $9.009.66, pursuant
to section 1202.4, subdivision (f);
(4) a $280 court operations assessment ($40 per count)
pursuant to section 1465.8, subdivision (a)(1);
(5) a $210 criminal conviction assessment ($30 per count)
pursuant to Government Code section 70373; and
(6) a $39 crime prevention fine pursuant to section 1202.5.
The transcript of the resentencing hearing, however, reflects
imposition only of the $9,009.66 in victim restitution.
Brown contends that any fines or assessments not imposed
orally at resentencing – all but the victim restitution to Chase –
should be stricken. Brown alternatively seeks remand for an
ability-to-pay hearing for any of these mandatory fines or
assessments that could have been orally imposed but were not.
The People respond that a superior court’s failure to orally
impose mandatory fines or assessments results in an
unauthorized sentence that we may correct on appeal. (See
People v. Talibdeen (2002) 27 Cal.4th 1151, 1153–1157.) And the
People further ask us to impose the amounts stated in the
abstract of judgment without regard to Brown’s ability to pay,
asserting “remand is not necessary since the trial court
24
necessarily found [he] had the ability to pay the mandatory
assessments and fines when it determined that he had the ability
to pay $9,009.66 in victim restitution.”
Although we agree with the People that, under People v.
Talibdeen, an appellate court can order imposition of an
undisputed mandatory fee when appropriate, we do not agree the
superior court sufficiently addressed ability to pay. After Brown
protested he could not afford victim restitution, the court replied:
“Sir, you were originally ordered to pay $9,009.66, and that’s to
Chase Bank. The court is going to reimpose that. But, sir, you
can only pay what you have. And if you don’t have the ability to
pay, then you’re not gonna be able to pay it. But I am going to
reimpose that.” The court, then, sidestepped the issue of ability
to pay, treating it as irrelevant to the issue of direct victim
restitution. (See People v. Pack-Ramirez (2020) 56 Cal.App.5th
851, 859 [ability-to-pay principles “have not been extended to a
victim restitution payment under section 1202.4, subdivision (f)”];
accord People v. Abrahamian (2020) 45 Cal.App.5th 314, 338;
People v. Evans (2019) 39 Cal.App.5th 771, 777.) As the court did
not orally impose any additional fines or fees, Brown had no
meaningful opportunity to raise his ability to pay with respect to
them.
Recently, our Supreme Court has explained how courts
must address ability to pay when considering most of the
mandatory fines and assessments at issue in this case. (People v.
Kopp (2025) 19 Cal.5th 1 (Kopp).) By statute, restitution fines
and probation restitution fines under section 1202.4, subdivision
(b), and section 1202.45 that exceed the $300 minimum shall
account for ability to pay. (Kopp, at p. 30.) And because of equal
protection principles, a court must consider ability to pay before
25
imposing ancillary assessments under section 1465.8, subdivision
(a)(1) and Government Code section 70373. (Kopp, at p. 30.) As
to the remaining fine in Brown’s case, under section 1202.5, the
parties do not dispute the fine must be set with ability to pay in
mind, but is mandatory if affordable. (§ 1202.5, subd. (a).)
Given this, we will order a limited remand for the superior
court to consider the mandatory fines and assessments omitted
from its oral sentencing pronouncements in connection with
defendant’s ability to pay. (See, e.g., People v. Montes (2021)
59 Cal.App.5th 1107, 1124; People v. Santos (2019) 38
Cal.App.5th 923, 934.)
Before concluding, we flag one other matter Kopp
discussed. Regarding restitution fines, the Supreme Court noted
“section 1465.9 has [recently] been amended to provide that,
‘[u]pon the expiration of 10 years after the date of imposition of a
restitution fine pursuant to Section 1202.4, the balance, including
any collection fees, shall be unenforceable and uncollectible and
any portion of a judgment imposing those fines shall be vacated.’
(Pen. Code, § 1465.9, subd. (d); Stats. 2024, ch. 805, § 1.)” (Kopp,
supra, 19 Cal.5th at p. 17.) At least one Court of Appeal has held
a court conducting a section 1172.75 resentencing cannot
reimpose a restitution fine that is more than 10 years old and has
held, instead, the fine should be stricken. (People v. Salstrom
(2025) 117 Cal.App.5th 596, 601.) As no restitution fine has been
properly imposed, we are in no position to consider striking it,
and the superior court can consider these developments on
remand.
26
DISPOSITION
We order a limited remand for the superior court to
consider the mandatory fines and assessments omitted from its
oral sentencing pronouncements in connection with defendant’s
ability to pay. Those omitted fines and assessments include: the
restitution fine under section 1202.4, subdivision (b), the parole
restitution fine under section 1202.45, the court operations
assessment under section 1465.8, subdivision (a)(1), the criminal
conviction assessment under Government Code section 70373,
and the fine under section 1202.5. We otherwise affirm.
SCHERB, J.
We concur:
STRATTON, P. J.
WILEY, J.
27