P. v. Kendrick CA2/3 filed 7/13/26

Filed 7/13/26 P. v. Kendrick 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

TONY KENDRICK,

Defendant and Appellant.

B341255

(Los Angeles County
Super. Ct. No.MA073204)

APPEAL from ajudgment of the Superior Court of Los Angeles County,Daviann L. Mitchell, Judge. Affirmed.
Justin Behravesh, 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, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Tony Kendrick of various crimes arising from his assault of his ex-girlfriend. The trial court sentenced him to a prison term based upon the upper term of three possible options.At a resentencing hearing under Penal Codesection 1172.75, the trial court struck three 1-year priors but declined to reduce the upper term sentences any further. Kendrick appeals, contending that the trial court abused its discretionby not deviating downward from the upper term sentence in light of his rehabilitative efforts. We disagree and affirm the judgment.
BACKGROUND
I. Verdict and sentencing
The facts of Kendrick’s offensesthat are the basis for his challenged sentence are recounted in this court’s prior opinionaffirming in part and reversing in part the judgment on direct appeal, People v. Kendrick (Feb. 17, 2021, B296061, B305593) [nonpub. opn.]. What is relevant for the purposes of this appeal is that on January 22, 2019, a jury convicted Kendrick of first degree burglary with a person present (§ 459; count 1), assault by means of force likely to produce great bodily injury (§245, subd. (a)(4); count 2), and dissuading a witness (§ 136.1, subd. (b); count 3). The trial court sentenced Kendrick on count 1to the upper term of six years doubled under the “Three Strikes” law to 12 years; on count 2, to the upper term of four years doubled to eight years under the Three Strikes law; and, on count 3, to the mid-term of two years doubled to four years under the Three Strikes law.The trial court also imposed five years for a prior conviction (§ 667, subd. (a)(1)) and three 1-year term enhancements under the then-applicableprovisions of 667.5, subdivision (b), which provided an enhancement on each count based upon Kendrick’s prior convictions. The trial court ran the sentence on count 2 concurrent to count 1. Kendrick’s total term therefore was 24 years in prison.
II. Postjudgment proceedings
Kendrick appealed from the judgment. A different panel of this division affirmed the judgment in part and reversed it in part. A change in the law that took effect January 1, 2020, pursuant to Senate Bill No. 136, invalidated the three 1-year enhancements under section 667.5, subdivision (b), that Kendrick received for his prior convictions. This panel’s prior decision struck those three 1-year terms and remanded for resentencing. On remand, the trial court struck the three 1-year terms but otherwise imposed the same sentence on each of the three counts, resulting in a 21-year sentence.
However, when the trial court resentenced Kendrick,neither he nor his counsel was present. Kendrick therefore appealed the judgment again. This division vacated the sentence and remanded for a full resentencing hearing at which Kendrick was entitled to appear and advocate for a more lenient sentence. (People v. Kendrick (June 16, 2023, B317126) [nonpub. opn.].) The opinion also directed the trial court to reconsider Kendrick’s sentence in light of Senate Bill No. 567, which went into effect on January 1, 2022, and amended section 1170 by making the middle term the presumptive term where a statute specifies three possible terms, and specifying the permissible bases and procedure required for a court to impose an upper term sentence. (Kendrick, supra, B317126.)
III.Resentencing hearing
On remand, the parties submitted briefing regarding resentencing. Kendrick argued that his upper term sentences violated the statutory requirements under section 1170, subdivision (b), which permits imposition of an upper term sentence only if the “facts underlying the circumstances [in aggravation] have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial,” or upon consideration of the defendant’s prior convictions “based on a certified record of conviction.” (§ 1170, subd. (b)(2)–(3).) Kendrick argued that both were absent from the record and thus could not support an adoption of an upper term sentence. He further argued that the trial court should consider circumstances since the imposition of the prior sentence—notably his lack ofwriteups for misconduct, and his participation in“leadership, positive attitudes, substance abuse and anger management, parenting, and . . . workforce readiness” classes. In support, Kendrick submitted certificates showing that, in 2020, he completeda 15-week cycle of education coursesto develop positive decision making and leadership, which consisted of both group and individual-study components.He also provided documentation showing that in 2024, he participated in an eight-week substance treatment and re-entry transition program while in county jail.
In opposition, the People argued that the trial court should continue to impose an upper term sentence because of the “egregious” facts of the underlying offense as well as Kendrick’songoing involvement with the criminal justice system since 2000. The People cited his record, showing convictions for, among other offenses, burglary, vandalism, and assault. The People also cited Kendrick’s two minor rules violation reports during his current prison term, one for obstructing his cell window view and a second for improperly disposingof prescribed medications.
At the resentencing hearing, the trial court struck the three 1-year enhancements for Kendrick’s priors but otherwise declined to adjust the sentence. The trial court acknowledged that Kendrick “comported himself better than the average prisoner” and had “improved [himself] in prison.” However, when reviewing the extent of Kendrick’s rehabilitative efforts, the trial court described them as not “a lot” given that he had been in prison since 2019. The trial court also observed that Kendrick was not “a young man” when he committed his crimes and that thecircumstances of the current offenses were “very egregious,” involving intimate partner violence.The trial court also considered Kendrick’s criminal history, which it found had been properly introduced in the original trial, and recounted Kendrick’s series of violations from 2000 through 2018. It further stated its belief that Kendrick had already received a “huge consideration” in sentencing because the People at the original sentencing hearing agreed to strike the Three Strikes allegationsso that he would not be sentenced to 25 years to life.
Ultimately, the trial courtfound that the upper term sentence was “commensurate with [Kendrick’s] conduct, . . . history, and . . . pattern. . . [and] [¶] . . . [t]he facts in the case support the conclusion in this court’s mind that a dismissal of additional enhancements or adjustment of the sentence would, in fact, endanger public safety because you haven’t been there long enough.”
Kendrick’s resulting sentence was 21 years.
DISCUSSION
In 2021, our California Legislature passed Senate Bill No.483, which added section 1171.1, renumbered to 1172.75. (Stats. 2021, ch. 728, § 3.) Section 1172.75 declared legally invalid one-year sentencing enhancements for a prior prison term, except when the prior prison term was for a sexually violent offense. If a judgment includes a qualifying enhancement, the trial court shall recall the sentence and resentence the defendant. (§ 1172.75, subd. (c).) Resentencing shall result in a lesser sentence than the one originally imposed inclusive of the enhancements “unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (§ 1172.75, subd.(d)(1).)
At resentencing, 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 circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).) Further, the resentencing court shall “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).)
As relevant here, Senate Bill No. 567, effective January 1, 2022, made such a change in the law. (Stats. 2021, ch. 731, §1.3.) Senate Bill No. 567 amended section 1170, subdivision (b), to make the middle term the presumptive term when a statute specifies three possible terms. A court may impose the upper term “only when there are circumstances in aggravation of the crime that justify the imposition of a term . . . 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.” (§ 1170, subd. (b)(2).) However, a court “may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
We review a trial court’s sentencing decision under section 1172.75 for abuse of discretion and “ ‘ “ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.”’” (People v. Garcia (2024) 101 Cal.App.5th 848, 857.)
Here, the trial court dismissed the three now-invalid 1-year enhancements at the resentencing hearing under section 1172.75. Kendrick does not dispute that this has resulted in a sentence of 21 years in prison, less than the originally imposed 24-year sentence, as is mandated by section 1172.75, absent clear and convincing evidence that the lesser sentence would endanger public safety. There is therefore no dispute that Kendrick has received the benefit of resentencing required under section 1172.75 as directed by this court’s prior order.
Kendrick additionally does not argue that the trial court erred in its application of section 1170, subdivision (b) by adopting an upper term sentence. Although Senate Bill No. 567 now makes the middle term the presumptive term, it still authorizes the trial court to impose an upper term sentence based on certain evidentiary considerations.(§ 1170, subd. (b)(1).) It explicitly allows thatthe court “may considerthe defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) In this case, Kendrick acknowledged that the “trial court indicated that it would resentence [him] to the high term on counts 1 and 2 based on him being unsuccessful on probation or parole in the past, his prior prison commitments, and that he has crimes of increasing seriousness and numerous crimes.” He also does not argue that the trial court lacked the appropriate record to make that determination.Indeed, Kendrick concedes that the trial court’s “decision appears to be legally correct.” (See People v. Garcia, supra, 101 Cal.App.5th at p. 857 [trial court could base its risk determination on seriousness of charged offense and on conviction record].)
Kendrick’s sole argument on this appeal is that the trial court abused its discretion by not reducing his sentence due to his good conduct and record of rehabilitation while incarceratedafter the court decided to adopt the upper term. There is no statute that mandates further consideration of postconviction conduct—or other potentially mitigating factors—to reduce a sentence after the court has elected to adopt a specific term level. While section 1172.75, subdivision (d) does identify “postconviction factors, including . . . the disciplinary record and record of rehabilitation” as possible considerations in resentencing after striking the now-invalid enhancement for priors, this consideration is not mandatory, nor is it specifically germane to the application of section 1170, subdivision (b) as proposed by Kendrick. The trial court could have considered Kendrick’s postconviction conduct when determining which of the three possible terms to impose. (See § 1170, subd. (b)(4).) Indeed, the record reflects that the trial court did so. However, in the trial court’s estimation, Kendrick’s rehabilitative efforts over the past five and a half years did not reflect “a lot of self-improvement,” andwere not sufficient for the court to find that his postconviction conduct outweighed his criminal history when landing on an appropriate sentence. (See People v. Buford (2016) 4 Cal.App.5th 886, 914 [“We also agree a trial court may properly deny resentencing . . . based solely on immutable facts such as a petitioner’s criminal history . . . ‘if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety.[Italicsomitted.]’ ”].)
Therefore, notwithstanding Kendrick’s positive postconviction record, we cannot find that the trial court’s decision not to weigh this conduct more heavily in its sentencing decision was arbitrary or capricious, as an abuse of discretion requires. (See, e.g., People v. Garcia, supra, 101 Cal.App.5th at p.857 [trial court could base its risk determination on seriousness of charged offense and on conviction record].) While every jurist may weigh these factors differently, such “weighing of evidence showing dangerousness versus evidence showing rehabilitation[ ] lie within the court’s discretion,” and it is not for an appellate court to reweigh. (People v. Buford, supra, 4Cal.App.5th at p. 899.)
We therefore hold that the trial court did not abuse its discretion in its sentencing decision.
DISPOSITION
Thejudgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OCHOA, J.*

We concur:

EGERTON, Acting P. J.

HANASONO, J.