People v. Farias CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS249301
- Trial judge
- David J. Danielsen (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- William S. Dato (author), Michele M. Castillo, Julia C. Kelety
Analysis
The trial court resentenced the defendant to upper terms for voluntary manslaughter and a firearm enhancement, relying on the facts of the gun use and the defendant's prior stipulation. The Court of Appeal affirmed the judgment, holding that the defendant forfeited his double-counting claim by failing to object at sentencing and that his ineffective assistance of counsel claim was properly rejected due to an undeveloped record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Forfeiture of the double-counting claim regarding the selection of upper terms“Having failed either to object to this perceived error or to explain on appeal why his upper term sentences were “unauthorized” because they “could not lawfully be imposed under any circumstance,” he has forfeited review of his claim.” | unclear | correct | agree with court agree with court |
Rejection of the ineffective assistance of counsel claim“We must reject this claim because the record “sheds no light on why counsel . . . failed to act in the manner challenged.”” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Scott (1994) 9 Cal.4th 331 — Establishes that an objection at sentencing is required to preserve appellate review of discretionary sentencing choices, including double-counting errors, unless the sentence was unauthorized under any circumstance.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Holds that ineffective assistance of counsel claims are more appropriately decided in habeas corpus proceedings when the record does not explain why counsel failed to act.
- relied: People v. Espino (2024) 104 Cal.App.5th 188 — Explains the legislative changes to Penal Code section 667.5, subdivision (b) and the requirement to resentence defendants whose sentences were enhanced by repealed prison priors.
- relied: People v. Fox (2023) 90 Cal.App.5th 826 — States that a defendant's prior stipulation to upper term sentences cannot be considered an admission that sufficient aggravating factors exist under current law at resentencing.
- relied: People v. Velasquez (2007) 152 Cal.App.4th 1503 — Supports the proposition that the selection of the upper term is a discretionary sentencing choice subject to forfeiture if not objected to.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the forfeiture rule from People v. Scott to the double-counting claim and the habeas corpus guidance from People v. Mendoza Tello to the ineffective assistance claim. It accurately identifies that the record is insufficient to adjudicate the IAC claim on direct appeal.
How this analysis was made · dispute it
unusual dispositionAt a Penal Code section 1172.75 resentencing after striking a now-invalid prison prior, the San Diego Superior Court reimposed upper terms on Farias's voluntary manslaughter conviction and firearm enhancement, citing in part the facts of the gun use and his 2012 stipulation to upper terms. The Court of Appeal affirmed in a memorandum opinion, holding that Farias's dual-use (double-counting) claim was forfeited by failure to object under People v. Scott and that his ineffective assistance claim could not be resolved on a silent record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Selection of upper terms on the manslaughter conviction and the section 12022.5 firearm enhancement at section 1172.75 resentencing, allegedly by double-counting the gun-use facts“Having failed either to object to this perceived error or to explain on appeal why his upper term sentences were “unauthorized” because they “could not lawfully be imposed under any circumstance,” he has forfeited review of his claim.” | unclear | not reached | agree with court Scott squarely holds that a claim the court double-counted a sentencing factor in making discretionary choices is forfeited absent a contemporaneous objection, and the opinion correctly notes Farias did not argue the sentence was unauthorized in the narrow Scott sense (incapable of lawful imposition under any circumstance). Velasquez confirms upper-term selection falls within the forfeiture rule. The court did not reach the merits, and its forfeiture analysis follows binding Supreme Court authority. |
Trial court's suggestion that Farias's 2012 stipulation to upper terms was a factor it could rely on at resentencing“But the mere fact that Farias stipulated to upper term sentences in 2012 cannot be considered an admission that sufficient aggravating factors exist under current law applicable at resentencing.” | unclear | error (law misapplied) | agree with court The appellate court, in a footnote, disagreed with the trial court's statement, citing People v. Fox for the proposition that a pre-SB 567 stipulation to an upper term is not an admission of aggravating facts under the amended section 1170(b). This is consistent with Fox, but the court treated the point as non-dispositive because the only claim raised on appeal (double counting) was forfeited; it did not address whether this separate issue was raised or preserved. |
Ineffective assistance of counsel based on trial counsel's failure to object to the alleged dual use of facts“We must reject this claim because the record “sheds no light on why counsel . . . failed to act in the manner challenged.”” | unclear | not reached | agree with court Under Mendoza Tello, an ineffective assistance claim on direct appeal fails where the record does not reveal counsel's reasons and a satisfactory tactical explanation is conceivable; such claims are properly pursued by habeas corpus. The court applied this rule without analyzing whether there could be no satisfactory explanation, but given the trial court's multiple stated reasons for the upper terms, a tactical choice not to object is conceivable, so the result is defensible. |
Authorities
- relied: People v. Scott (1994) 9 Cal.4th 331 — Claims that the trial court failed to properly make or articulate discretionary sentencing choices, including double-counting a sentencing factor, are forfeited absent objection at sentencing; a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement.
- relied: People v. Velasquez (2007) 152 Cal.App.4th 1503 — A challenge to the selection of the upper term is a discretionary sentencing choice subject to the Scott forfeiture rule.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — An ineffective assistance claim should be rejected on direct appeal, and pursued on habeas corpus, where the record does not show why counsel acted or failed to act unless there could be no satisfactory explanation.
- relied: People v. Espino (2024) 104 Cal.App.5th 188 — Describes the pre-2020 one-year prison prior enhancement under former section 667.5(b) and its limitation to sexually violent offenses after Senate Bill 136.
- relied: People v. Fox (2023) 90 Cal.App.5th 826 — A defendant's earlier stipulation to an upper term sentence is not an admission that aggravating factors exist for purposes of amended section 1170(b) at resentencing.
- relied: People v. Garcia (2002) 97 Cal.App.4th 847 — Appellate courts may resolve cases raising no substantial issues of law or fact by memorandum opinion.
The appellate opinion: sound — The opinion answers the only two arguments raised—dual use of the gun facts and ineffective assistance—with controlling Supreme Court authority (Scott and Mendoza Tello) and reaches a result that follows directly from those cases. It is brief and does not discuss whether Farias had a meaningful opportunity to object or whether the upper terms complied with amended section 1170(b)(2), but it does flag in a footnote that the trial court's reliance on the 2012 stipulation was improper, and those issues were not presented as grounds for reversal.
Opinion
Filed 8/4/25 P. v. Farias CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083966
Plaintiff and Respondent, v. (Super. Ct. No. SCS249301)
JESUS FARIAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. (Retired Judge of the S.D. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Gerald J. Miller, under the appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Charles C. Ragland, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION1 In 2012, Jesus Farias pleaded guilty to one count of voluntary manslaughter (Pen. Code § 192, subd. (a)).2 He also admitted allegations that he used a handgun in connection with the offense (§ 12022.5, subd. (a)) and had one prison prior for car theft (§ 667.5, former subd. (b) [as amended to limit prison priors by Stats. 2019, ch. 590, § 1].) Farias stipulated to a 22- year sentence comprised of the 11-year upper term for his manslaughter conviction (§ 193, subd. (a)), a consecutive 10-year upper term for the firearm allegation (§ 12022.5, subd. (a)), and a consecutive one-year enhancement for the prison prior (former § 667.5, subd. (b)). This sentence was imposed on August 2012. Farias remains in custody. When Farias was sentenced, section 667.5, former subdivision (b) required the imposition of “a one-year enhancement for any nonviolent felony for which a prison sentence was imposed, unless the defendant remained free of custody for at least five years after completing that sentence.” (People v. Espino (2024) 104 Cal.App.5th 188, 194.) But since January 1, 2020, only prison priors involving “sexually violent offense[s]” may be used to enhance a sentence. (Id. at p. 195; Stats. 2019, ch. 590, § 1.) The Legislature has also deemed “legally invalid[]” any sentence imposed before January 2020 that— like Farias’s—was enhanced by a prison prior for other than a sexually violent offense. (§ 1172.75, subd. (a).) A court must recall such a sentence and resentence the defendant under current laws. (Id., subds. (b)–(d).) This resentencing “shall result in a lesser sentence than the one originally 1 This case is appropriate for resolution by memorandum opinion because it raises “no substantial issues of law or fact.” (Cal. Stds. Jud. Admin., § 8.1; see People v. Garcia (2002) 97 Cal.App.4th 847.) 2 Subsequent undesignated statutory references are to the Penal Code. 2 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).) This appeal concerns the court’s decision to resentence Farias to the upper terms on the manslaughter conviction and gun allegation. Among the court’s explanations for imposing these upper term sentences is this statement to which Farias did not object but with which he now takes issue: “And the stipulation to an upper term, I think, based upon the facts and circumstances of the use of the gun in this case warrant an upper term on the enhancement as well.” The “facts and circumstances” the court appeared to be referring to were “the placement of the gun, close to the skin, near the heart, shot in a downward direction.” Citing this rationale, Farias contends that a second resentencing is necessary. Although he does not challenge the propriety of the firearm enhancement, Farias complains that the trial court impermissibly used the admitted gun allegation as the basis for two additional sentencing choices— selecting the upper term sentences for both the voluntary manslaughter conviction and the enhancement.3 (See People v. Scott (1994) 9 Cal.4th 331, 350 (Scott) [“the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement”]; § 1170, subd. (b)(5) [“The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed”].)
3 The trial court suggested that Farias’s stipulation to the upper term was “a factor the Court can rely upon in the imposition of sentence.” But the mere fact that Farias stipulated to upper term sentences in 2012 cannot be considered an admission that sufficient aggravating factors exist under current law applicable at resentencing. (See People v. Fox (2023) 90 Cal.App.5th 826, 835.) 3 An objection at the time of sentencing is required to preserve appellate review of a “claim[] involving the trial court’s failure to properly make . . . its discretionary sentencing choices[]” (Scott, supra, 9 Cal.4th at p. 353), such as the selection of the upper term (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511). This category of forfeitable claims includes the allegation of error raised here—“the court purportedly erred because it double-counted a particular sentencing factor.” (Scott, at p. 353.) Having failed either to object to this perceived error or to explain on appeal why his upper term sentences were “unauthorized” because they “could not lawfully be imposed under any circumstance,” he has forfeited review of his claim. (Id., pp. 353–354.) In an attempt to avoid forfeiture, Farias asserts that his trial counsel’s failure to object constituted ineffective assistance of counsel. We must reject this claim because the record “sheds no light on why counsel . . . failed to act in the manner challenged.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267 [unless defense counsel was asked to explain their conduct, or there simply could be no satisfactory explanation, ineffective assistance claim “is more appropriately decided in a habeas corpus proceeding”].)
DISPOSITION
The judgment is affirmed.
DATO, Acting P. J. WE CONCUR:
KELETY, J.
CASTILLO, J.
Cites, in this corpus
- People v. Velasquez B171476 · 2007-07-06
- People v. Garcia F034831 · 2002-04-17
- People v. Mendoza Tello S055184 · 1997-04-17
- People v. Scott No. S037757 · 1994-12-30