Background
Steven Berriozabal and Jorge Reyes were convicted in 2008 of two counts of second degree robbery and one count of unlawfully taking or driving a vehicle after stealing a car and robbing three elderly women at gunpoint as they walked to church. The jury found true firearm and gang enhancements on each robbery count, and a bifurcated bench trial sustained a prior-prison-term allegation for each defendant. Each man received an aggregate sentence of 33 years and 8 months, built from an upper term of five years on the first robbery count plus ten-year firearm and gang enhancements and a one-year prior-prison enhancement, with a consecutive subordinate term on the second robbery and a concurrent term on the vehicle count.
Years later, both defendants sought resentencing under Penal Code section 1172.75, which invalidates the prior-prison-term enhancement and authorizes recall of sentences that included it. On September 25, 2024, the superior court recalled the 2008 sentence, struck the prior-prison enhancement for both defendants, and otherwise left the sentence intact, reimposing the upper term, the firearm enhancement, and the gang enhancement without analyzing the elements Assembly Bill 333 had added to the gang statute. The result was an aggregate term of 32 years and 8 months for each defendant. Notably, no reporter's transcript of the 2008 trial had been prepared; the reporter's stenographic notes remained archived but no note reader could be secured to transcribe them.
The Court’s Holding
The court held that the gang enhancement findings must be vacated and reconsidered under AB 333, which narrowed the definition of a criminal street gang, required that members collectively engage in a pattern of criminal activity, and required that the offense commonly benefited the gang in more than a reputational way. Because a section 1172.75 recall and resentencing reopens the judgment, the case is not final under In re Estrada, and the ameliorative amendments apply. The court rejected the defendants' request to vacate outright and remand only for retrial, concluding instead that the trial court should determine harmlessness in the first instance because the 2008 trial evidence is unavailable on the appellate record, unlike the developed record in People v. Cooper. The burden of proving the instructional omission harmless beyond a reasonable doubt remains with the People on remand.
The court held that the superior court was authorized to reimpose the upper term on count 1 without new jury findings on aggravating circumstances, reading section 1172.75, subdivision (d)(4), as an exception where the upper term was originally imposed. It sided with People v. Brannon-Thompson over People v. Gonzalez, while noting the California Supreme Court has granted review in People v. Eaton. Because the 2008 upper term complied with the Sixth Amendment when imposed, no additional factfinding was required. The court also rejected the remaining challenges: no abuse of discretion in declining to dismiss enhancements under section 1385, no duty to consider substituting a lesser firearm enhancement on a merely silent record, no triggered age-based low-term presumption absent a showing that Reyes's youth or trauma contributed to the offense, and adequate individualized consideration based on Reyes's own in-custody record.
Key Takeaways
- A section 1172.75 resentencing reopens the judgment, so ameliorative laws like AB 333 apply to nonfinal cases under the Estrada rule.
- When the appellate record lacks the trial transcript, the trial court is better positioned to determine whether the omission of newly added gang enhancement elements was harmless beyond a reasonable doubt.
- Under section 1172.75, subdivision (d)(4), a court may reimpose a previously imposed upper term without new findings on aggravating circumstances, though the California Supreme Court has granted review on this question.
- A sentencing court need not recite the words 'great weight' or name each mitigating circumstance under section 1385; the statute requires weighing, not recitation, and consideration is presumed absent an affirmative showing to the contrary.
- The age-based low-term presumption of section 1170, subdivision (b)(6), is triggered only by an initial showing that youth or trauma actually contributed to the commission of the offense, not merely that the defendant was young or suffered hardship.
Why It Matters
The decision illustrates how California courts are handling section 1172.75 resentencings, confirming that such proceedings reopen judgments and expose long-final enhancements to challenge under intervening ameliorative statutes like AB 333. It also charts a practical course for harmlessness review when the original trial record is unavailable, placing that task with the trial court while keeping the burden of proof on the prosecution.
The ruling also takes a position in a live appellate split over whether section 1172.75, subdivision (d)(4), permits reimposition of an upper term without new jury findings, aligning with the Brannon-Thompson line of cases. Because the California Supreme Court has granted review in People v. Eaton on precisely this question, the issue remains unsettled and the court's resolution may be revisited.
Read the full opinion (PDF) · Court docket