Full Opinion

Filed 11/5/26 P. v. Garcia CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, E086198 Plaintiff and Respondent, (Super.Ct.No. BAF2101238) v. OPINION TIZOC GARCIA, Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed. Joseph Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Christine Y. Friedman and Joshua Trinh, Deputy Attorneys General, for Plaintiff and Respondent. 1 A jury convicted Tizoc Garcia of multiple felonies, and the court imposed a sentence under the Three Strikes Law due to two previous convictions which the court found were serious felonies. Garcia appealed, and this court reversed the trial court’s finding that one of the previous convictions was a serious felony. On remand, the prosecution declined to retry that issue, so the trial court struck the prior conviction allegation and resentenced Garcia. Garcia appealed again, arguing the court failed to consider mitigating factors when sentencing him. We affirm. BACKGROUND In 2023, a jury convicted Garcia of assault with a firearm (Pen. Code § 245, subd. (a)(2))1 being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and being a felon in possession of ammunition (§ 30305, subd. (a)). It also found true multiple enhancements. At a bifurcated trial, the court found Garcia had two prior serious felonies (§§ 667, subds. (a)-(i), 1170.12). The court imposed a sentence of 25 years to life for the assault conviction based on the two prior serious felonies, imposed but stayed sentences for every other conviction, and struck the enhancements. Garcia appealed. On appeal, this court held there was not substantial evidence supporting the trial court’s determination that one of Garcia’s prior convictions was a serious felony. (People v. Garcia (Dec. 23, 2024, E081788) [nonpub. opn.].) We remanded to permit the prosecution to retry that issue. (Id. at p. *5.) 1 Unlabeled statutory citations refer to the Penal Code. 2 On remand, the prosecution declined to retry the issue, and the trial court struck the prior serious felony allegation. Garcia’s counsel then requested the court strike all, or all but one, of the enhancements, arguing section 1385 subdivision (c)(2) counseled in favor of that course of action. The court stated it understood the argument, but declined to adopt counsel’s position. Instead, the court noted that there were “several, several aggravating factors,” which it believed justified imposing the upper term for the assault, as well as imposing multiple enhancements. The court said “as I look at [the] fact[s] and circumstances of this case, I can understand why the aggravating factors were found true,” and specifically called out Garcia’s “criminal history . . . his poor performance on either parole or PRCS, and also that his convictions are of ever increasing seriousness and they are innumerous.” The court ultimately imposed an aggregate sentence of 26 years, composed of four years for the assault conviction—doubled due to the remaining prior serious felony conviction—three years for a great bodily injury enhancement (§ 12022.7, subd. (a)), 10 years for a personal use of a firearm enhancement (§ 12022.5, subd. (a)), and five years for the remaining prior serious felony (§ 667, subd. (a)). In explaining its decision to impose the 10 year firearm use enhancement, the court stated that it relied “on the injuries that were suffered by the victim,” as well as the aggravating factors, “but if the court had to choose one . . . it would be the aggravating factors that would support a 10[ ]year upper term enhancement.” The court imposed but stayed sentences for the remaining convictions. Garcia appealed. 3 DISCUSSION Garcia argues the court erred by not considering or properly weighing mitigating factors during resentencing. We disagree. Section 1385, subdivision (c)(2) states that courts “shall consider and afford great weight to evidence offered by the defendant to prove that any . . . mitigating circumstances” described in that subdivision 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.” (§ 1385, subd. (c)(2).) Our Supreme Court has endorsed the notion that affording great weight to a mitigating circumstance means “a court must dismiss an enhancement when an enumerated mitigating circumstance is present ‘in the absence of “substantial evidence of countervailing considerations of sufficient weight to overcome the recommendation.” ’ ” (People v. Walker (2024) 16 Cal.5th 1024, 1035 (Walker).) To overcome this recommendation, “there must be substantial, relevant, and credible evidence of aggravating factors to neutralize the ‘great weight’ of the mitigating circumstances.” (Id. at p. 1036.) “In general, we review for abuse of discretion the trial court’s decision not to strike a sentence enhancement under section 1385, subdivision (a).” (People v. Mendoza (2023) 88 Cal.App.5th 287, 295-296 (Mendoza).) “The abuse of discretion standard is highly deferential. When, ‘ “as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a 4 showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (Ibid.) In addition, “[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) Garcia argued below and argues here that at least three enumerated mitigating factors applied in his case: one, that “[m]ultiple enhancements [were] alleged in a single case” (§ 1385, subd. (c)(2)(B)); two, that at least one “enhancement [was] based on a prior conviction that [was] over five years old,” (§ 1385, subd. (c)(2)(H)); and three, that “[t]he application of an enhancement could result in a sentence of over 20 years.” (§ 1385, subd. (c)(2)(C).)2 The People do not contest that these mitigating factors were present. Instead, they argue the trial court implicitly found the enumerated aggravating circumstances—namely Garcia’s criminal history, his poor performance on supervised release, and the increasing seriousness and quantity of his crimes—outweighed the mitigating ones. 2 The Court of Appeal has rejected a reading of the word “shall” in section 1385 such that the first and third of these mitigating circumstances require dismissal of certain enhancements. Section 1385, subdivision (c)(2)(B) says that if multiple enhancements are alleged, all but one “shall be dismissed.” Similarly, section 1385, subdivision (c)(2)(C) says that if an enhancement would result in a sentence over 20 years, that enhancement also “shall be dismissed.” Courts have concluded that the “shall be dismissed” language does not require dismissal in every case where those mitigating circumstances are present, and the guiding principle in whether to impose or strike an enhancement remains whether doing so would be in furtherance of justice. (See People v. Mazur (2023) 97 Cal.App.5th 438, 445; People v. Anderson (2023) 88 Cal.App.5th 233, 239-240; People v. Cota (2023) 97 Cal.App.5th 318, 337; People v. Renteria (2023) 96 Cal.App.5th 1276, 1289-1290; Mendoza, supra, 88 Cal.App.5th at pp. 295-296; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.) 5 We agree with the People. Our Supreme Court in Walker endorsed the view “that a trial court must ‘engage[ ] in a holistic balancing with special emphasis on the enumerated mitigating factors,’ in which the mitigating factors weigh ‘strongly in favor of . . . dismissal.’ ” (Walker, supra, 16 Cal.5th at p. 1036.) Under this view, though the existence of mitigating factors counsels in favor of dismissal, “substantial, credible evidence of countervailing factors . . . ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ” (Ibid.) On the record here, we cannot say that the trial court abused its discretion by concluding, both implicitly and explicitly, that the aggravating factors outweighed the mitigating ones. That is, on this record we cannot say the court acted in an arbitrary, capricious, or patently absurd manner when it found Garcia’s criminal history, the number of his crimes, their increasing severity, and his failures under supervised visitation outweighed that there were multiple enhancements, that they pushed the aggregate sentence over 20 years, and that one was based on a conviction from more than five years previous. In our view, even affording the latter great weight, it is within a trial court’s discretion to conclude they do not sufficiently outweigh the concerns raised by Garcia’s recidivism and increasing risk to the public. Nor can we conclude the court mistook its discretion or misunderstood its duty to consider these mitigating circumstances. Garcia’s counsel explained that his argument was “under 1385 . . . only a single enhancement should be used . . . per new case,” that 6 “enhancements[s] should not be used if they render a sentence greater than 20 years,” and that “enhancements based on a prior conviction over five years are not supposed to be used.” Counsel also pointed the court in the correct direction with statutory citations for these propositions. In response, the court stated “I understand the argument now,” before concluding the aggravating circumstances outweighed the mitigating ones. Far from not understanding its sentencing responsibilities, the record suggests the court understood them quite well, and simply disagreed with Garcia and his counsel about what the effect of those mitigating circumstances ought to be. This case is therefore unlike the cases Garcia relies on in arguing the record was too ambiguous to credit the sentencing court with the presumption that it knew what it was doing. Specifically, Garcia cites People v. Panozo (2021) 59 Cal.App.5th 825 (Panozo) and People v. Ochoa (2020) 53 Cal.App.5th 841 for the proposition that where the record is ambiguous about whether the trial court understood its sentencing discretion and obligations, reversal is appropriate. However, in both cases the record was far more ambiguous than the one before us. For instance, in Panozo the record showed the sentencing court was aware of Panozo’s military service-related PTSD, but did not show that the court understood it was obligated to consider that as a mitigating factor. (Panozo at p. 838-839.) In fact, the sentencing court in that case took the affirmative step of listing the mitigating and aggravating factors it considered and left out Panozo’s service- related PTSD. (Ibid.) Meanwhile, in Ochoa, the record showed the court was aware of Ochoa’s youth-related mitigating factors but seemed to believe it was not obligated to 7 consider them at the time of sentencing. (Ochoa at p. 853.) In that case the reviewing court made a point to say “we do not fault the trial court for this misunderstanding— neither the People nor defense counsel suggested otherwise,” implying that this ambiguity could have been cleared up by appropriate argument from counsel. (Id. at p. 853.) The ambiguities present in Panozo and Ochoa are not present here. Garcia’s counsel argued the law correctly and directed the trial court to the statute compelling it to consider the mitigating factors. Indeed, counsel even went so far as to identify the mitigating factors at issue and request the court consider them. More importantly, the court acknowledged that it understood Garcia’s counsel’s argument before rendering its sentencing decision. Thus unlike the cases Garcia cites, the court here was aware of the statute compelling its consideration of the mitigating circumstances and was informed of the exact mitigating circumstances Garcia wanted it to consider. To be sure, it did not mention the mitigating factors when rendering its decision. But it did state that the aggravating factors justified imposing at least one of the enhancements, suggesting that it was conducting the necessary holistic analysis and simply concluding the aggravating circumstances outweighed. Accordingly, given this record, we cannot say there is sufficient evidence to conclude the trial court misunderstood or misapplied the law. Because we conclude that it was not an abuse of discretion to weigh the aggravating circumstances over mitigating ones when sentencing Garcia, and because we 8 do not find the record sufficiently ambiguous to conclude the court misunderstood its discretion when making that determination, we affirm. DISPOSITION We affirm. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAPHAEL J. We concur: RAMIREZ P. J. CODRINGTON J. 9