P. v. Perkins

Filed 5/12/26 P. v. Perkins CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

SHAWN PERKINS,

Defendantand Appellant.

B340155

(Los Angeles County
Super. Ct. No. NA095315)

APPEAL from a judgment of the Superior Court of Los Angeles County,Richard M. Goul, Judge.Affirmed.
Stanley Dale Radtke, 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, Wyatt E. Bloomfield,Christopher G.
Sanchez, and Zachary Crvarich, Deputy Attorneys General, for Defendant and Respondent.
________________________

INTRODUCTION

Shawn Perkinsappeals the superior court’s resentencing decision pursuant to Penal Code section 1172.75.The court struck his prior prison term sentencing enhancements. But Perkins argues the court erred by resentencing him to the upper term without a jury trial on aggravating facts and by declining to dismiss certain sentencing enhancements. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Conviction and Sentence
Perkins shot and wounded Amiracle Johnson in March 2013 during an argument. (People v. Perkins (Jan. 21, 2015, B251385) [nonpub. opn.].)
A jury convicted Perkins in 2013 of assault with a firearm (§ 245, subd. (a)(2)), finding true that he personally used a firearm within the meaning of section12022.5, subdivision (a), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
After Perkins admitted allegations that he had suffered a prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds.(a)-(d)) and served three prior prison terms (§ 667.5, subd.(b)), the trial court sentenced Perkins to 29years in prison. The court imposed the upper term of four years on the assault count, doubled to eight years for the prior strike, plus 10 years on the firearm enhancement, three years on the great bodily injury enhancement, five years for the prior serious felony allegation, and three years total for the prior prison term allegations. In support of the upper term, the court explained there were “no mitigating factors” and found “aggravating factors” in that “the victim was especially vulnerable[:] he was standing on the street when he was shot at multiple times;”“[t]he crime was especially heinous in that [Perkins] fired multiple rounds at a victim who was standing four to five feet away from him, which resulted in the named victim getting shot multiple times and actually getting hit;” and Perkins was on probation when the shooting took place.
This court affirmed the judgment. (People v. Perkins, supra,(B251385) [nonpub. opn.].)

Resentencing Proceedings
In 2023, Perkins’s case was identified for resentencing relief under section 1172.75, which invalidated prior prison term enhancements under section 667.5. The People conceded the court should strike Perkins’s three prior prison term enhancements, but opposed “any further reduction in sentencing” due to Perkins’s “criminal history involving crimes of violence including robbery, assault with a firearm and domestic violence,” and his “numerous acts of violence” including rule violations in custody for fighting with other inmates, ignoring direct orders, and interfering with security measures in his cell. The People argued that because of his conduct in custody, Perkins had a current “security score” of 62, which was “too high and is trending in the wrong direction.”
Perkins requested resentencing beyond the striking of his prior prison term enhancements. Perkins asked the court to strike his prior strikeconviction and associated five-year enhancement under section 1385,and to reduce his base term to the middle term,which would result in a 16-year sentence.Perkins argued that the resentencing court must “select no more than the midterm unless one or more specified aggravating factors are found true by a jury or stipulated to by the defense,” but “[i]n this case, no aggravating factors per se were presented to the jury.” Perkins further argued he was entitled to relief because he “has consistently been rated with a low threat assessment” while incarcerated, “had no major incidents while in prison and only a handful of minor incidents,” and “has been participating in Rehabilitative Case Planning since 2020,” including Alcoholics Anonymous and GED programs.
At the resentencing hearing, Perkins submitted a letter reflecting an offer of employment with a shipping company. Perkins also told the court that his prison disciplinary record occurred “after my grandma died, after my mom died, after I lost basically most of my family in prison, [while] incarcerated.”
After hearing arguments, the superior court struck the prior prison term enhancements but denied further resentencing relief, and it sentenced Perkins to 26 years. The court stated it had “fully weighed the mitigating factors cited by [Perkins’s counsel] in his moving papers as well as the aggravating factorscited by the People.” The court also stated it would evaluate Perkins’s “conduct post-sentencing ...and exercise its discretion in determining whether or not a reduced sentence is appropriate.” The court expressed “concern” because Perkins’s conviction was for “a violent offense” involving “personal use of a firearm and personal infliction of great bodily injury.”The court further noted “legitimate and serious concerns about the readiness of Mr.Perkins to go out in general society and be a safe member of that society. [¶] His course has gone in the wrong direction. He has engaged in violent conduct in prison, albeit not against correctional officers, but against other inmates.” For these reasons, the court concluded, “any further reduction in sentence . . . would endanger the public safety.”
Perkins timely appealed.

DISCUSSION

Governing Law and Standard of Review
“In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, ‘[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to’ Penal Code section 667.5, subdivision (b) ‘is legally invalid.’ [Citation.] In the same provision, the Legislature established a mechanism for resentencing individuals ‘currently serving a term for a judgment that includes’ such an enhancement.” (People v. Rhodius (2025) 17 Cal.5th 1050, 1054 (Rhodius).)
Section 1172.75 “requires courts to recall and resentence defendants with invalid enhancements” but also “direct[s] resentencing courts to apply ‘the sentencing rules of the Judicial Council and . . . 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.’ ” (People v. Superior Court (Guevara)(2025) 18 Cal.5th 838, 849.)The statute also permits the resentencing court to “ ‘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 that continued incarceration is no longer in the interest of justice.’ ” (Rhodius, supra, 17 Cal.5th at p. 1055.) In this way, “section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402; accord, People v. Washington (2026) 117 Cal.App.5th 1057, 1069.)
At the time of Perkins’s original sentencing in 2013, section 1170, subdivision (b),“provide[d] that the choice between the lower, middle, and upper terms ‘shall rest within the sound discretion of the court,’ with the court ‘select[ing] the term which, in the court’s discretion, best serves the interests of justice’ and stating reasons for its decision.” (People v. Lynch (2024) 16Cal.5th 730, 747.)In 2022, “the Legislature again amended section 1170 to provide that the trial court ‘shall,’ in its discretion impose a sentence ‘not to exceed the middle term’ [citation] except in the following circumstance: ‘The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of’ an upper term sentence, 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.’ ” (Id. at p. 748.) Despite this change in the law, however, section 1172.75specifically 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).)
Also followingPerkins’s original sentencing, in 2022 the Legislature “amended section 1385 to specify mitigating circumstances that courts must consider when deciding whether to strike a sentence enhancement in the furtherance of justice.” (People v. Dowdy (2024) 107 Cal.App.5th 1, 9; accord, People v. Hernandez (2024) 103 Cal.App.5th 981, 991.) Section 1385 now provides, “In exercising its discretion [to dismiss enhancements] under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the [enumerated] 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).)As relevant here, a mitigating circumstance applies where “[t]he application of an enhancement could result in a sentence of over 20 years” (id., subd. (c)(2)(C)) and where “[m]ultiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed” (id., subd. (c)(2)(B)). Additional mitigating circumstances supporting dismissal include: “Application of the enhancement would result in a discriminatory racial impact” and “[t]he enhancement is based on a prior conviction that is over five years old.” (Id., subd. (c)(2)(A), (H).)
We review a court’s section 1172.75 resentencing decision for an abuse of discretion (People v. Moseley (2024) 105Cal.App.5th 870, 874; People v. Garcia (2024) 101Cal.App.5th 848, 855-856), including the court’s decision not to dismiss sentencing enhancements in the interest of justice under section 1385 (People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza); Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490; see People v. Gonzalez (2024) 103 Cal.App.5th 215, 225 (Gonzalez I) [reviewing determination that dismissal would endanger public safety for an abuse of discretion]). We interpret de novo the provisions of sections 1170 and 1172.75 pertaining to upper term sentencing. (See People v. Mathis (2025) 111Cal.App.5th 359, 366, 370 (Mathis), review granted Aug.13, 2025, S291628;People v. Gonzalez (2024) 107Cal.App.5th 312, 323 (Gonzalez II).)

The Court Did Not Err By Reimposing the Upper Term
Perkins argues that section 1170 applies in section 1172.75 resentencing proceedings and precludes the court from imposing an upper term sentence unless aggravating circumstances have been found by a jury or stipulated to by the defendant. Perkins further contends that reimposing the upper term without a jury finding or stipulation violated his federal constitutional rights to a jury trial and due process. (See Cunningham v. California (2007) 549 U.S. 270, 281 (Cunningham) [“under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence”].)
Perkins concedes that the courts of appeal are split on whether reimposing the upper term at section 1172.75 resentencing violates section 1170 or the Sixth Amendment. (ComparePeople v. Brannon-Thompson (2024) 104Cal.App.5th 455, 466-467 [holdingsection 1170 requirements for imposing upper term sentencedo not apply at section 1172.75 resentencing because “[s]ection 1172.75, subdivision (d)(4) is... an exception to the general rule that the trial court must apply ameliorative changes in the law at a section 1172.75 resentencing”] withGonzalez II, supra,107 Cal.App.5th at pp. 330-331 [concluding the Sixth Amendment requires section 1170 to apply at section 1172.75 resentencing]; see also Mathis, supra, 111 Cal.App.5th at p. 373 [agreeing with Brannon-Thompson and further holding section 1172.75, subd.(d)(4) does not violate the Sixth Amendment because the court merely “elects to retain an upper term sentence that complied with the Sixth Amendment when originally imposed”].) Our Supreme Court has granted review of the issue.(See People v. Eaton, 2025 WL 814818 (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.)
Perkins urges this court to follow Gonzalez II. But inPeople v. Dozier (2025) 116 Cal.App.5th 700, review granted February 11, 2026, S294597, this divisionpreviously held that, consistent with section 1170 and the Sixth Amendment,“[s]ection1172.75, subdivision (d)(4), allows a court to reimpose an upper term, without heightened factfinding” during section 1172.75 resentencing proceedings. (Id. at p. 715; id.at p. 716 [disagreeing with Gonzalez II].)Perkins argues that Dozier is not on point because it applied “to a narrow subset of cases that only involve pre-Cunningham cases that were final before 2007,” whereas Perkins was sentenced in 2013, post-Cunningham.But Dozier squarely concluded that “[s]ection 1172.75, subdivision (d)(4), allows a court to reimpose an upper term, without heightened factfinding, both on defendants originally sentenced between 2007 and 2022 under a statute that gave the trial court discretion to select the lower, middle, or upper term without any judicial factfinding . . . and on defendants originally sentenced before 2007, under the statute the United States Supreme Court found unconstitutional in Cunningham.” (Dozier, at p. 715.)
We agree with Dozier’s reasoning.(See People v. Garcia (2025) 114 Cal.App.5th 139, 145 (Garcia)[“ ‘Absent a compelling reason, the Courts of Appeal are normally loath to overrule prior decisions from another panel of the same undivided district or from the same division.’ ”]; accord, People v. Bolden (1990) 217Cal.App.3d 1591, 1598.) Until the Supreme Court issues further guidance, we follow Dozier and decline to adoptGonzalez II’s reasoning. We therefore reject Perkins’s claims of error regarding his upper term sentence, including that the court failed to comply with section 1170’s factfinding requirements, that the prosecution was required by the Sixth Amendment to plead and prove the aggravating circumstances, and that the court should have obtained the waiver of Perkins’s Sixth Amendment right to a jury trial on the aggravating circumstances. (See Dozier, supra, 116Cal.App.5th at pp. 714-715 [“the benefit of the new heightened factfinding requirements in section[] 1170” does not extend to “defendants . . . who previously received the upper term” and the amended statute does not otherwise “apply retroactively”]; id. at p. 714 [Sixth Amendment jury trial right is not violated by reimposing upper term at section 1172.75 resentencing]; see alsoMathis, supra, 111 Cal.App.5th at p. 373 [Sixth Amendment is not “implicated” where the resentencing court “elects to retain an upper term sentence that complied with the Sixth Amendment when originally imposed”].)
Section 1385, Subdivision (c), Did Not Require the Court To Dismiss Perkins’s Sentencing Enhancements
Perkins next argues that the resentencing court misapplied section 1385, subdivision (c), by failing to dismiss all but one of his remaining sentencing enhancements. Specifically, Perkins argues that section 1385, subdivision (c)(2)(B) and (C) mandate the dismissal of enhancements beyond a single enhancement and which would result in a sentence over 20 years. Perkins acknowledges that “every appellate court to consider” his argument, including this division, has rejected it. (See People v. Anderson (2023) 88 Cal.App.5th 233, 241 (Anderson) [“a trial court is not required to dismiss all but one enhancement or an enhancement that could result in a sentence of more than 20years, but rather . . .the trial court has discretion in deciding whether to do so”]; accord, People v. Mazur (2023) 97 Cal.App.5th 438, 444-447; People v. Cota (2023) 97 Cal.App.5th 318, 335-340; People v. Renteria (2023) 96 Cal.App.5th 1276, 1289-1290; Mendoza, supra, 88 Cal.App.5th at p. 297; People v. Lipscomb (2022) 87Cal.App.5th 9, 18-21; People v. Walker (2022) 86Cal.App.5th 386, 396.)
In Anderson, this division considered the text and legislative history of section 1385 and concluded dismissal of sentencing enhancements pursuant to subdivision (c)(2)(B) and(C) “shall occur but only if, in exercising its discretion and giving great weight to [the mitigating] factors, the court finds dismissal is in the interests of justice or would not endanger public safety.” (Anderson, supra, 88 Cal.App.5th at p. 240.) We agree with Anderson’s analysis. While Perkins offersan opposing interpretation of the statutory language, he provides no persuasive reason to depart from our holding in Anderson or the uniform appellate decisions on this issue. (See Garcia, supra, 114Cal.App.5th at p. 145.)
The Court Did Not Abuse Its Discretion By Declining To Dismiss Additional Sentencing Enhancements
Perkins also contends the court abused its discretion by finding that further reductions in his sentence would endanger public safety and that the mitigating circumstances were outweighed by countervailing factors.
“ ‘[A]n abuse of discretion arises if the trial court based its decision on impermissible factors . . . or on an incorrect legal standard.’ ” (Gonzalez I, supra, 103 Cal.App.5th at p. 225.) “‘“[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.”’... [And] a ‘ “decision will not be reversed merely because reasonable people might disagree.” ’ . . . Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Perkins asserts that while his “behavior in prison left much to be desired, . . . his fights in prison were group attacks—he did not go pick fights, let alone inflict serious violence, alone.” Perkins also argues the court failed to consider what his “risk would be at the time of his release, when he is older—and so at [a] lower risk of violence.” (See Gonzalez I, supra, 103Cal.App.5th at p. 227 [finding an abuse of discretion where the resentencing court “believed that it was required to decide whether the defendant ‘currently at the time of sentencing represent[s] a danger to society,’ ” instead of assessing his future risk after serving 50 years to life on the base offense].)
The superior court did not abuse its discretion by finding that further reducing Perkins’s sentence would endanger public safety. At resentencing, the court considered Perkins’s underlying offense, which involved shooting a man “multiple times” in the chest and back during an argument. (See Mendoza, supra, 88 Cal.App.5th at p. 299 [court did not abuse its discretion concluding dismissal of enhancement would endanger public safety, based on the circumstances of the crime where defendant “discharged a gun with victims present . . . during a home invasion robbery”].) The court also considered Perkins’s criminal history, which spanned a 10-year period and included “crimes of violence including robbery, assault with a firearm and domestic violence.” Finally, the court considered Perkins’s disciplinary record over the past 10 years of his current prison term, including his overall “security score,” which was trending upward due to rule violations for fighting and other infractions.
Given Perkins’s criminal history, the violent nature of the underlying offense, and a disciplinary record trending to more serious infractions over time, the superior court could reasonably conclude that reducing Perkins’s sentence to 16 years as Perkins requestedwould pose a risk to public safety at the time of his release because “[h]is course has gone in the wrong direction,” and he may not have “the readiness . . . to go out in general society and be a safe member of that society.” Perkins argues the court only considered his “current” risk to public safety, not his risk upon future release,but the court stated that it was evaluating whether “any further reduction [in Perkins’s sentence] would endanger the public safety” in light ofhis “conduct post-sentencing.”Pursuant to this standard, the court considered the trend in Perkins’s behavior over time as a predictor of his future risk. And even accepting Perkins’s assertion that his prison disciplinary record merely reflected “group attacks,”the court could reasonably view such a record as evidence of Perkins’s participation in violent interactions, whichdemonstratesa risk to public safety.Perkins has not demonstratedthe court’s decision was irrational or arbitrary.
Finally, the court did not fail to afford great weight to the mitigating circumstancesrelevant to Perkins’s caseunder section1385, subdivision (c).Perkins argues that he established four statutory mitigating factors, including enhancements resulting in a sentence over 20 years, multiple enhancements alleged, discriminatory racial impact, and enhancement based on a conviction older than five years. (§ 1385, subd. (c)(2)(A), (B), (C), (H).)Perkins further asserts the court abused its discretion and violated due process by failing to “analyze” these mitigating circumstances and to weigh his youthful age at the time of his prior strike offense.
Perkins’s resentencing brief comprehensively arguedthese mitigating factors. At the hearing, the court stated it “fully weighed the mitigating factors cited by [Perkins’s] moving papers as well as the aggravating factors” and that it would “exercise its discretion in determining whether or not a reduced sentence is appropriate.”(See People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [no abuse of discretion where “[n]othing in the record demonstrates the trial court failed to assign significant value” to the mitigating factors];People v. Ponder (2023) 96 Cal.App.5th 1042, 1052-1053 [no abuse of discretion in declining to dismiss enhancement under section 1385 where “the trial court considered all the mitigating circumstances related to defendant” and relevant aggravating factors, and “gave great thought to whether to dismiss”].) And importantly, “in most cases, ‘if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice,’ notwithstanding the applicability of any mitigating factors.” (People v. Walker (2024) 16 Cal.5th 1024, 1033.)

DISPOSITION

The judgment is affirmed.

MARTINEZ, P. J.
We concur:

STONE, J.GIZA, J.*