Full Opinion

Filed 11/3/26 P. v. Rincon CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B349255 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. XWEA740234) v. HUGO RINCON, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed. Hugo Rincon, in pro. per.; and Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ________________________ Hugo Rincon appeals from a judgment entered after his resentencing pursuant to Penal Code section 1172.75.1 His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Rincon filed a supplemental brief. We consider Rincon’s contentions and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In 1992, a jury convicted Rincon of second degree robbery (§ 211; count 1) and kidnapping to commit robbery (§ 209, subd. (b); count 2).2 As to each count, the jury found true that Rincon had personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 1203.06, subdivision (a)(1), and was armed with a firearm within the meaning of section 12022, subdivision (a). Rincon admitted a section 667.5, subdivision (b) allegation for a prison prior. The trial court sentenced Rincon to an indeterminate term of life in prison, with the possibility of parole, plus three years on count 2, consisting of one year for the section 667.5, subdivision (b) enhancement, and two years for the firearm enhancement under section 12022.5, subdivision (a). On count 1, the court imposed the middle term of three years, plus two years for the section 12022.5, subdivision (a) enhancement. The court stayed the sentence on count 1 pursuant to section 654. In July 2022, Rincon filed a motion, in propria persona, to modify his sentence pursuant to Senate Bill No. 483 (2021–2022 1 All further undesignated statutory references are to the Penal Code. 2 At a prior trial, Rincon was convicted of two section 211 offenses. These convictions were reversed on appeal, and Rincon was retried. The relevant 1992 convictions are from Rincon’s retrial. 2 Reg. Sess.), which eliminated the prior prison term enhancement for convictions not involving a “sexually violent offense.” (§ 1172.75, subd. (a); Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.) He argued that his section 667.5, subdivision (b) enhancement was now invalid. The trial court appointed counsel. The court also confirmed that the California Department of Corrections and Rehabilitation (CDCR) had identified Rincon as serving a term for a judgment that included a section 667.5, subdivision (b) enhancement, and verified that Rincon’s judgment contained the enhancement. At an August 2025 hearing, the trial court recalled the sentence and resentenced Rincon pursuant to section 1172.75.3 The court struck the section 667.5, subdivision (b) enhancement. It also struck the section 12022.5, subdivision (a) firearm enhancements for both counts. Rincon asked the trial court to additionally stay the indeterminate life term imposed for the section 209, subdivision (b) conviction, and to impose the stayed determinate sentence on the section 211 conviction, citing section 654, as amended by 3 The trial court resentenced Rincon pursuant to section 1172.75. Rincon filed his motion under former sections 1171 and 1171.1. Effective January 1, 2020, Senate Bill No. 136 (2019– 2020 Reg. Sess.) amended section 667.5 by limiting the prior prison term enhancement to only terms for sexually violent offenses. (Stats. 2019, ch. 590, § 1.) Effective January 1, 2022, Senate Bill No. 483 (2021–2022 Reg. Sess.) made the changes by Senate Bill No. 136 retroactive and added former section 1171.1, now section 1172.75, which provided a mechanism for resentencing defendants sentenced on the legally invalid enhancements. (Stats. 2021, ch. 728, §§ 1, 3; Stats. 2022, ch. 58, § 12; see also People v. Burgess (2022) 86 Cal.App.5th 375, 379– 380.) 3 Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 441).4 The court declined Rincon’s request, which would have allowed a further reduction in Rincon’s sentence for time served, after argument and discussion of Rincon’s CDCR records, parole board hearings, and the facts of the underlying crime. At the hearing, the prosecution informed the court that the underlying crime involved a kidnapping for robbery that unfolded over the course of 45 minutes. Rincon and a codefendant hit the victim, demanded money and the victim’s bank card information at gunpoint, drove the victim to two locations, threatened to shoot him in the leg, took his watch and sunglasses, and stole his money. Defense counsel did not object to the prosecution’s rendition of the underlying facts, but asserted that Rincon was in the passenger’s seat, the codefendant forced the victim into the car, and Rincon’s “only real involvement” was threatening to shoot the victim in the leg. 4 Assembly Bill No. 518 was “effective January 1, 2022. Assembly Bill 518 amended Penal Code section 654, subdivision (a) to provide, in pertinent part: ‘An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.’ (Italics added.) Previously, where Penal Code section 654 applied, the sentencing court was required to impose the sentence that ‘provides for the longest potential term of imprisonment’ and stay execution of the other term. (Pen. Code, § 654, former subd. (a).) As amended by Assembly Bill 518, Penal Code section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.) 4 The prosecution also detailed Rincon’s disciplinary history while in prison, which included a conviction for a “stabbing assault” in 1992. Defense counsel did not object to the prosecution’s description of Rincon’s CDCR record. The trial court cited these facts, along with the parole board having denied Rincon’s request for parole eight times, as reasons for denying Rincon’s request to stay his life term under section 654 and impose the determinate term. Rincon responded by pointing to evidence of his self-help classes and rehabilitation programs in prison.5 The court replied that it would still deny the request, citing the facts of the underlying offense. The court resentenced Rincon to life with the possibility of parole on the section 209, subdivision (b) conviction, and to the middle term of three years on the section 211 conviction, stayed pursuant to section 654. Rincon timely appealed. Court-appointed appellate counsel filed an opening brief that raised no issues and asked this court to independently review the record under Delgadillo, supra, 14 Cal.5th 216. Counsel filed a declaration stating she sent Rincon a copy of the record and informed him of her intention to file her brief. She also informed Rincon that he could submit a supplemental brief. We additionally advised that within 30 days of the date of the notice, Rincon could submit a supplemental brief or letter stating any grounds for an appeal, contentions, or arguments he wished this court to consider. In Delgadillo, our high court held that the “procedures set out in Anders [v. California (1967) 386 U.S. 738] and [People v.] 5 Rincon’s CDCR records and evidence regarding his classes, rehabilitation programs, and parole board hearings are not in the record. 5 Wende [(1979) 25 Cal.3d 436] do not apply to an appeal from the denial of postconviction relief, even if the defendant has a state- created right to the appointment of counsel for that appeal.” (Delgadillo, supra, 14 Cal.5th at p. 226.) However, if the defendant files a supplemental brief, we are “required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.) Rincon timely submitted a supplemental brief. DISCUSSION Under section 1172.75, subdivision (a), “[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” Section 1172.75 also sets forth procedures for the identification of persons serving sentences that include section 667.5, subdivision (b) enhancements, and for the recall of those sentences and resentencing. At resentencing, the trial court “shall 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.” (§ 1172.75, subd. (d)(2).) “The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so 6 that continued incarceration is no longer in the interest of justice.” (Id., subd. (d)(3).) Resentencing must “result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (Id., subd. (d)(1).) In his supplemental brief, Rincon contends the trial court should have further reduced his sentence in “consideration of Mr. Rincon’s positive programming, rehabilitative efforts and educational opportunities” while incarcerated, and his “prison record and the academic accomplishments . . . .” We find no error in the trial court declining to further reduce Rincon’s sentence. The trial court was aware of its discretion to stay the life sentence for the section 209, subdivision (b) conviction and to select the section 211 conviction as the base term. It declined to do so, but reduced Rincon’s sentence by striking the invalid section 667.5, subdivision (b) enhancement and two section 12022.5, subdivision (a) enhancements. A resentencing court satisfies the requirement that resentencing “ ‘results in a lesser sentence’ ” simply by eliminating the repealed enhancement. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1156, italics omitted.) Here, the court additionally reduced the sentence by striking the two firearm enhancements. The court found this warranted based on Rincon’s conduct in prison, explaining there was a “significant time” when Rincon was “discipline and allegation free.” The statute permitted, but did not require, the court to consider Rincon’s “record of rehabilitation of the defendant while incarcerated . . . .” (§ 1172.75, subd. (d)(3).) Nothing in section 1172.75 mandated that the court further reduce Rincon’s sentence. 7 Rincon also requests that we grant “a discovery motion for the statistical data for Los Angeles County on data for Hispanic v. White sentence disparities and time served for similar crimes and the length of those sentences compared to the time the petitioner has already served.” For this proposition, he cites the Racial Justice Act of 2020 (Racial Justice Act) (Stats. 2020, ch. 317), at section 745, subdivisions (a)(3) and (a)(4)(A).6 He also cites Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 824, 825–826 (Bonds), in which a defendant who contended he had been subjected to a racially discriminatory traffic stop filed a motion in the trial court under the Racial Justice Act, citing statistical evidence regarding racial disparities in traffic stops. Rincon did not raise any argument under the Racial Justice Act in his written motion for resentencing in the trial court or orally at his hearing. In general, the failure to raise a sentencing issue in the trial court forfeits the issue on appeal. (People v. 6 Section 745, subdivision (a)(3) provides: “The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.” Section 745, subdivision (a)(4)(A) provides: “A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed.” 8 Scott (1994) 9 Cal.4th 331, 352.) Courts have also held that a defendant must first raise a Racial Justice Act claim in the trial court before doing so on direct appeal. (People v. Singh (2024) 103 Cal.App.5th 76, 114 [defendant who could have raised Racial Justice Act claim in trial court but failed to do so forfeited claim], accord, People v. Gomez (2026) 118 Cal.App.5th 384, 391–392.) Even if in certain circumstances a Racial Justice Act violation might be cognizable for the first time on appeal (People v. Lashon (2024) 98 Cal.App.5th 804, 813–815 [contemplating possibility of section 745 claim for first time on direct appeal where it could not have been raised in the trial court]), we find nothing in the Racial Justice Act, Bonds, or otherwise that would allow us to order discovery on statistical data based on a request made for the first time in a supplemental brief filed in response to counsel’s Delgadillo review request. Accordingly, we find no trial court error based on Rincon’s contentions in his supplemental brief and affirm. 9 DISPOSITION The trial court judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ASHWORTH, J.* We concur: ADAMS, P. J. HANASONO, J. * Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10