People v. Ramirez CA2/2

Filed 3/3/22 P. v. Ramirez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B309519, B311700

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA093863)
v.

JOSE TRINIDAD RAMIREZ,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Richard M. Goul, Judge. Affirmed in part; reversed in
part and remanded.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys
General, for Plaintiff and Respondent.
 Defendant and appellant Jose Trinidad Ramirez
(defendant) appeals from both the denial of his petition filed
pursuant to Penal Code section 1170.95 (B309519) and from the
trial court’s order declining to exercise its discretion under
section 12022.53, subdivision (h) (B311700).1 Finding that the
trial court erred by concluding defendant had not made a prima
facie showing of eligibility under section 1170.95, we reverse and
remand that order with directions. Finding no abuse of
discretion in its ruling under section 12022.53, subdivision (h),
we affirm that order.

BACKGROUND
Defendant was convicted of first degree murder in violation
of section 187, subdivision (a), with true findings that the crime
was gang related (§ 186.22, subd. (b)(1)(C)) and that a principal
(codefendant John Ramirez) personally and intentionally
discharged a firearm causing death to the victim (§ 12022.53,
subds. (d) & (e)(1)).2 Defendant was sentenced to 25 years to life
in prison for murder and a consecutive firearm enhancement of
25 years to life. The court stayed the remaining firearm
enhancements. Defendant appealed, and we affirmed the
judgment in People v. Ramirez (Nov. 9, 2018, B280623) (nonpub.
opn.) (the appellate opinion).
The evidence summarized in the appellate opinion shows
that shortly after midnight on April 20, 2012, defendant, his

1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We will refer to defendant’s brother John Ramirez and his
father Miguel Ramirez by their first names, to avoid confusion.

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father Miguel and others were drinking at a bar they all
frequented. Defendant argued with the victim, Martin
Contreras, mentioning the Westside Longo gang several times
and telling Contreras and his companions that they were in his
neighborhood and they should respect that. When Contreras and
his three friends (Julio V., Orlando M., and Christian L.) left the
bar, defendant followed them out and began to fight with
Contreras. Miguel came outside and saw defendant and
Contreras struggling on the ground. Miguel hit or kicked
Contreras, who then hit Miguel, causing him to fall to the ground
and lose consciousness. A security guard dispersed the group by
spraying the air around them with pepper spray.
Contreras and his friends left and met up a short time later
in front of Contreras’s house just before defendant arrived and
parked his white truck behind the friends’ car. Defendant got out
of the truck holding a steel pipe about the size of a baseball bat.
He told Julio not to move and said such things as, “You mother
fuckers, you’re going to pay; this is not going to end like this.”
Defendant’s brother John arrived in a black Dodge Ram pickup
truck, which he parked behind defendant’s truck. Orlando, who
later identified John as “Johnny,” ran off when he saw John
emerge from his truck. Orlando heard a gunshot when he was
about 40 feet away from the scene. Julio remained in the driver’s
seat of his car while being threatened by defendant when he also
heard a gunshot from close behind him. Julio could no longer see
Contreras and drove away.
Erika, the mother of Contreras’s children, was inside the
house when she woke up at around 1:16 a.m. to the sounds of
people arguing and a gunshot. When Contreras came in bleeding
from his waist, Erika called 911 and was directed to ask

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Contreras who had shot him. Erika told the 911 operator that he
named “Johnny.” Later, as he lay wounded on the couch,
Contreras told a police officer that “Johnny Ramirez,” had shot
him and left in a black Dodge Ram pickup truck. Erika did not
know John but knew defendant. Defendant’s cell phone records
for the night of the shooting showed calls to John’s phone at
12:56 a.m., 12:57 a.m., 12:58 a.m., and 1:14 a.m., and one call
from John at 1:01 a.m., all answered. The location of the cell
tower used for the calls was consistent with both phones being at
the scene of the shooting at the time of the shooting.
When defendant and John’s cousin told John later that
afternoon that Contreras had been so gravely injured that he was
going to die, John replied that the shot was not enough for him to
die. Contreras died about 20 hours after the shooting. An
autopsy determined that a large caliber bullet entered
Contreras’s body from behind, which was consistent with an
attempt by Contreras to turn away upon seeing a gun. The fatal
bullet damaged an artery and two veins.
Sometime after the night of the shooting, Julio, Christian,
and another friend were parked at a liquor store when defendant
drove up, blocked their car, and told them that what had
happened to Contreras was nothing compared to what would
happen to them if they said anything. John then arrived in
another car, said that this was his “hood,” to remain quiet about
what had happened, and all would be fine.
Defendant was arrested and placed in a cell with an
informant and their conversations were recorded. Among other
things, defendant told the informant that his brother was a
“rider,” and that defendant had telephoned his brother “to have
this fool hit” and to tell him that “this fool needs to go down” and

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“be gone.” Defendant indicated that his brother was the shooter,
but then said it was someone else. Defendant said that the gun
used was a revolver, which had been disposed of by his brother.
The gun was never found.
The prosecution gang expert Detective Chris Zamora
testified in response to a hypothetical question mirroring the
facts in evidence that in his opinion the hypothetical crime was
committed for the benefit of and in association with the Westside
Longo criminal street gang. Detective Zamora was familiar with
John and defendant and was of the opinion they were both
members of the Westside Longo gang. He testified that “rider”
meant an active gang member who would put in work for the
gang. The defense presented the testimony of Martin Flores, a
gang expert who opined that rather than showing a gang-related
crime, the facts indicated a family dispute and a shooting to
benefit the family name, not a gang. He also noted that it was
common for jail inmates to lie or exaggerate the reasons for their
arrest and incarceration, but he did not discern bragging in
defendant’s conversations. Flores also testified that “rider” can
have many meanings, including the more benign meaning of
“buddy.”
In June 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. Defendant was represented by
private counsel. After considering argument and briefs from
defendant’s counsel and the prosecution, the trial court took the
matter under submission and denied the petition on
November 20, 2020, without issuing an order to show cause.
In People v. Ramirez, supra, B280623, we affirmed
defendant’s judgment of conviction but remanded the matter to
give the superior court the opportunity to exercise its discretion

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under 12022.53, subdivision (h). On remand, after hearing the
argument of counsel, the trial court exercised its discretion on
March 24, 2021, to reimpose the firearm enhancement.
Defendant filed timely notices of appeal from both orders,
which we have consolidated for appeal.

DISCUSSION
I. Section 1170.95 petition for resentencing
Defendant contends that the trial court erred in finding
that he had not made a prima facie showing under section
1170.95 and in denying his petition. Defendant argues that the
court impliedly found that only one theory of murder liability was
presented by the jury instructions and that the court erroneously
applied a substantial evidence standard to find that the jury
could have convicted him on a still-valid murder theory.
Effective January 1, 2019, the Legislature amended the
laws pertaining to felony murder and murder under the natural
and probable consequences doctrine, “to ensure that murder
liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant
in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) This provision
“bars a conviction for first or second degree murder under a
natural and probable consequences theory.” (People v. Gentile
(2020) 10 Cal.5th 830, 846 (Gentile).) The Legislature also added
section 1170.95, which provides a procedure for convicted
murderers to retroactively seek relief if they could not be
convicted under sections 188 and 189 as amended effective
January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).)

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 As relevant here, former section 1170.95 set forth three
conditions to eligibility for resentencing:3 (1) the petitioner was
charged with murder “under . . . the natural and probable
consequences doctrine”; (2) “petitioner was convicted of first . . .
degree murder . . .”; and (3) “petitioner could not be convicted of
first or second degree murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, former subd.
(a).) When a defendant files a petition alleging the three
conditions for relief the trial court must appoint counsel if
requested, entertain briefing and then conduct a prima facie
analysis before determining a need for an order to show cause
hearing. (§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at
pp. 957, 962.)
Here the trial court received briefs from both sides, held a
hearing and heard the argument of counsel. The documents
considered by the trial court included jury instructions, “available
transcripts” and the appellate opinion.4 The court found that the
jury was instructed with regard to aiding and abetting and to
first degree murder. The court summarized the evidence which it
found relevant, construed defendant’s jailhouse statement to the
informant that he telephoned his brother “to have this fool hit,” to

3 As amended effective January 1, 2022, section 1170.95,
subdivision (a)(2) now extends to those convicted of not only
murder, but also attempted murder, or manslaughter after trial
or accepting a plea offer in lieu of a trial at which the petitioner
could have been convicted of murder or attempted murder.
4 At defendant’s request, we take judicial notice of the
appellate record in People v. Ramirez, supra, B280623. Although
we did not find the printed instructions in the record, they were
transcribed.

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tell him that “this fool needs to go down” and to “be gone” as an
admission that he ordered the killing, and found that defendant
“clearly acted with the intent to kill.” The trial court concluded
that defendant had failed to “demonstrate[] that the jury could
not have convicted him of murder under the current law.”
Defendant contends that the court erred by applying a
substantial evidence standard and engaging in factfinding. We
agree that the trial court erred by engaging in factfinding or
weighing evidence at the prima facie stage of the proceedings.
(See Lewis, supra, 11 Cal.5th at p. 972.)
The trial court may not engage in such factfinding,
weighing of the evidence, or exercise its discretion in determining
whether the defendant has made a prima facie showing at the
prima facie stage. However the court may consider the record of
conviction, including the court’s own documents and appellate
opinion, in order to distinguish petitions with potential merit
from those that are clearly lacking merit. (Lewis, supra, 11
Cal.5th at pp. 970-972.) The court must accept the petitioner’s
factual allegations as true, make a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved; and only where the record
of conviction contains established facts showing that the
petitioner is ineligible for resentencing as a matter of law may
the court find that no prima facie showing has been made and
deny the petition without issuing an order to show cause. (Id. at
p. 971.) The “‘prima facie bar was intentionally and correctly set
very low.’” (Id. at p. 972.)
Finding a fact is established as a matter of law at the
prima facie stage means that it is conclusively established. (See
People v. Duchine (2021) 60 Cal.App.5th 798, 815.) Thus, error in

8
denying a petition at prima facie stage is harmless if the record of
conviction conclusively demonstrates ineligibility for relief.
(People v. Daniel (2020) 57 Cal.App.5th 666, 675.)5
Here the record of conviction reflects the three conditions
for eligibility stated in section 1170.95, former subdivision (a):
(1) defendant was convicted of murder; (2) one of the
prosecution’s theories of murder liability was the natural and
probable consequences doctrine; and (3) the jury was instructed
regarding that now-invalid theory of murder under the natural
and probable consequences doctrine. The jury was also
instructed with regard to conspiracy to commit an uncharged
offense other than murder. It thus cannot be said that the jury
was instructed only on still-valid theories of liability.
Defendant notes that there was no express finding that
would show defendant’s ineligibility as a matter of law, such as a
true finding as to premeditation expressly stated on the verdict.
He also argues that there was no clear instruction requiring a
finding that he, as distinguished from his codefendant, personally
premeditated the murder, and that considering ambiguities in
the instructions as well as the sequence in which they were given,
a reasonable juror could have interpreted the instructions as a

5 For example, a petitioner is ineligible for resentencing as a
matter of law where the record of conviction shows that his
conviction was for a crime not listed in subdivision (a) of section
1170.95 as eligible for resentencing (People v. Aleo (2021) 64
Cal.App.5th 865, 871), where no jury instructions were given at
his trial regarding felony murder or the natural and probable
consequences doctrine (People v. Soto (2020) 51 Cal.App.5th 1043,
1058-1059), or where the jury found true a felony-murder special
circumstance under section 190.2. (People v. Nunez (2020) 57
Cal.App.5th 78, 90-91, review granted Jan. 13, 2021, S265918.)

9
whole as allowing first degree murder under the natural and
probable consequences doctrine, or a conspiracy theory based
upon his codefendant’s premeditation.
Respondent argues that despite erroneous factfinding,
remand is unnecessary because the jury instructions and verdict
show that defendant is ineligible for resentencing under section
1170.95 as a matter of law in that the jury returned a verdict of
first degree murder, a still-valid theory of murder under section
188, subdivision (a)(1). (See Gentile, supra, 10 Cal.5th at p. 848.)
Claiming that the only theory of liability for first degree murder
presented was that defendant personally premeditated the
murder, and that the instruction regarding the natural and
probable consequences theory made clear that a murder
conviction based on that theory must be for second degree
murder, respondent argues that “[a]ny reasonable juror would
have understood that the natural and probable consequences
doctrine could only support a conviction for second degree
murder, and that a finding of intent to kill was necessary for a
first degree murder conviction.” Respondent concludes that the
first degree murder verdict meant that the jury necessarily found
that defendant personally premeditated an intent to kill.
Defendant’s jury was instructed as to several theories of homicide
and aiding and abetting: premeditated murder, natural and
probable consequences, conspiracy, direct aiding and abetting
and voluntary manslaughter. The court read CALCRIM Nos. 520
and 521, defining murder, express malice and implied malice,
instructing murder is “murder of the second degree unless the

10
People have proved beyond a reasonable doubt that it is murder
of the first degree as defined in CALCRIM number 521 . . . .”6
The court also instructed the jury that, if the People proved
murder but did not prove premeditation beyond a reasonable
doubt, it was second degree murder. The court then defined
aiding and abetting, explaining that the aider and abettor must
know of the perpetrator’s unlawful purpose and specifically
intend to and does aid, facilitate, promote, encourage or instigate
the perpetrator’s commission of that crime.
Instructions regarding the natural and probable
consequences doctrine were given. Under this (now invalid)
theory an accomplice was guilty not only of the “target offense”
(the offense directly aided or abetted) but also of any “nontarget
offense” (any other offense committed by the direct perpetrator
that was the natural and probable consequence of the target
offense). (Gentile, supra, 10 Cal.5th at p. 843.) “A nontarget
offense is the natural and probable consequence of a target
offense ‘if, judged objectively, the [nontarget] offense was
reasonably foreseeable.’” (Id. at p. 843.) “‘[F]or example, if a
person aids and abets only an intended assault, but a murder

6 The court read CALCRIM No. 521 in relevant part as
follows:
“The defendant is guilty of first degree murder if the
People have proved that he acted willfully,
deliberately and with premeditation. The defendant
acted willfully if he intended to kill. The defendant
acted deliberately if he carefully weighed the
consideration for and against his choice and, knowing
the consequences, decided to kill. The defendant
acted with premeditation if he decided to kill before
completing the act that caused death.”

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results, that person may be guilty of that murder, even if
unintended, if it is a natural and probable consequence of the
intended assault.’” (Id. at p. 844.) The trial court read
CALCRIM No. 403, explaining these elements of aiding and
abetting under the natural and probable consequences doctrine,
and told the jury that the target offense was assault, assault with
a deadly weapon, or assault with a firearm.
However the court then added its own language,
presumably with the intent of conforming the instruction to the
holding in People v. Chiu (2014) 59 Cal.4th 155, 165, “that
natural and probable consequences liability cannot extend to first
degree premeditated murder because punishing someone for first
degree premeditated murder when that person did not actually
perpetrate or intend the killing is inconsistent with ‘reasonable
concepts of culpability.’” Senate Bill No. 1437 (2017-2018 Reg.
Sess.) amended section 188, to provide that “‘[e]xcept as stated in
subdivision (e) of . . . Section 189 [governing felony murder], in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.’”
(Gentile, supra, 10 Cal.5th at p. 839, italics added.) The trial
court did not instruct that malice could not be imputed based
upon mere participation in a crime, and the court’s added
language comported with Chiu to the extent that the court
instructed, “Murder committed under these circumstances is
murder of the second degree.” The court’s second sentence then
qualified that instruction, as follows: “You cannot find a
defendant guilty of first degree murder based solely on a
conclusion that the murder was a natural and probable
consequence of another crime.” (Italics added.) The trial court’s

12
language arguably implies that the jury’s conclusion that the
murder was a natural and probable consequences of another
crime, along with other factors, can lead to an aider and abettor’s
conviction of first degree murder.
The jury was also instructed with CALCRIM No. 416,
defining conspiracy, and then No. 417,7 explaining murder
liability based upon an uncharged conspiracy. These instructions

7 “A member of a conspiracy is criminally responsible for the
crime he conspires to commit, no matter which member of the
conspiracy commits the crime. [¶] A member of a conspiracy is
also criminally responsible for any act of any member of the
conspiracy if act is done to further the conspiracy and that act is
a natural and probable consequence of the common plan or
design of the conspiracy. This rule applies even if the act was not
intended as part of the original plan. Under this rule, a
defendant who is a member of the conspiracy does not need to be
present at the time of the act. [¶] A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the
circumstances established by the evidence. [¶] A member of a
conspiracy is not criminally responsible for the act of another
member if that act does not further the common plan or is not a
natural and probable consequence of the common plan. [¶] To
prove that the defendant is guilty of the crime charged in count 1
under a conspiracy theory, the People must prove that: [¶] 1, the
defendant conspired to commit one of the following crimes:
assault, assault with a deadly weapon or assault with a firearm;
[¶] 2, a member of the conspiracy committed murder to further
the conspiracy; and [¶] and 3, murder was a natural and
probable consequence of the common plan or design of the crime
that the defendant conspired to commit.” (CALCRIM No. 417.)

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did not include language specifically limiting murder liability to
second degree murder.
Respondent argues that it must be presumed that the
jurors followed the instruction that first degree murder required
a finding that the defendant premeditated an intent to kill.
However the jury here may have followed the instruction by
finding that the actual perpetrator in the conspiracy to commit
an assault premeditated an intent to kill. And because the trial
court did not instruct that vicarious murder liability as a
consequence of the conspiracy could not be first degree murder,
the jury could have convicted defendant of first degree murder as
a coconspirator without personally harboring an intent to kill.8
The conspiracy instruction told the jury that the defendant could
be liable for the act of another member committed in furtherance
the common plan of assault, and in this case the act of the
codefendant was found to be first degree murder.
Thus, the presumption that the jury followed the
premeditation instruction, which applied to “the defendant,”
meaning defendant and codefendant, may demonstrate a
probability that the jury found this defendant premeditated an
intent to kill; however we cannot conclude that it conclusively
shows such a finding as a matter of law. (Cf. People v. Offley
(2020) 48 Cal.App.5th 588, 599 [where jury could have convicted
the defendant of murder as a consequence of conspiracy without

8 Indeed, the prosecutor apparently thought the jury did so.
In the hearing on defendant’s postjudgment motion to strike the
firearm enhancement, the same prosecutor who tried the case
argued that defendant was convicted of first degree murder as a
participant in a conspiracy to kill the victim. (See discussion in
part II, below.)

14
finding malice, it cannot be said he “‘is ineligible for relief as a
matter of law’”].)
We also must reject respondent’s suggestion that our
analysis amounts to relitigating a claim of instructional error or a
“‘do-over on factual disputes that have already been resolved.’
(People v. Allison (2020) 55 Cal.App.5th 449, 461.)” Whether a
fact has been established “as a matter of law is, tautologically, a
question of law, not a finding of fact.” (People v. Dove (2004) 124
Cal.App.4th 1, 11.) Conversely where the basis for the jury’s first
degree verdict is not conclusively shown by the record, it does not
refute the allegations of the petition as a matter of law (see
People v. Duchine, supra, 60 Cal.App.5th at p. 815), and the trial
court’s error cannot be deemed harmless (see People v. Daniel,
supra, 57 Cal.App.5th at p. 675).
As the allegations of the petition were not refuted as a
matter of law, defendant has made a prima facie showing of
entitlement to relief requiring the issuance of an order to show
cause. (Lewis, supra, 11 Cal.5th at p. 971; see § 1170.95, subd.
(c).) We remand for that purpose.
II. Firearm enhancement
Section 12022.53, subdivision (h) was amended effective
January 1, 2018, to provide: “The court may, in the interest of
justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be
imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” At the hearing defense counsel argued that
defendant was not the shooter, there was no evidence at trial of a
conspiracy to shoot the victim, and no evidence that defendant

15
knew that his brother was going to shoot the victim or even that
he was going to bring a gun or pull out a gun.
The prosecutor argued that defendant was convicted of first
degree murder as a coconspirator in a conspiracy to kill the
victim. He asserted that this was demonstrated by defendant’s
jailhouse conversations with an informant in which defendant
said he called his brother to tell him to have “this fool hit,” and to
tell him that “this fool needs to go down” and “be gone.” The
prosecutor also pointed to the evidence that defendant had
threatened others with a metal pipe just before his brother
arrived on the scene.
The trial court denied the motion referring to its findings
with regard to defendant’s habeas corpus and section 1170.95
petitions.9 The court cited the following trial evidence: “The
evidence presented at trial, . . . through at least one witness, was
that at one point petitioner went to his wife’s pickup truck and
received a steel pipe the size of a baseball bat, approaching Julio
told him not to move and said, ‘You mother-fucker, you are going
to pay. This is not going to end like this.’ . . . [¶] And then the
co-defendant, John Ramirez, arrived . . . in a separate black truck
and then shots rang out and Contreras was killed. [¶] The court
finds that . . . as . . . previously ruled in the context of the habeas
1170.95 [sic] that the defendant did act with willful and reckless
disregard for human life, that he shared criminal intent as
evidenced by those statements to kill the victim. [¶] For this
reason the court exercises its discretion to impose the P.C.

9 Defendant’s petition for writ of habeas corpus, also filed in
June 2019 and denied by the trial court, sought relief from his
sentence and conviction based upon a claim of ineffective
assistance of counsel.

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12022.53 enhancement as previously imposed by the sentencing
judge of 25 to life.”
After defendant filed a timely notice of appeal from the
court’s judgment, his appointed counsel filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436, raising no issues.
Defendant filed his own brief, asserting that the trial court
abused its discretion in denying the motion. He argues that the
trial court failed to consider factors in mitigation, such as his
heat of passion defense; the involvement of alcohol; a criminal
history with no prior felony convictions; the fact that he was not a
gang member and too old to be an active gang member;10 and the
fact that the court stayed the firearm enhancement, which had
been found true as to his codefendant, the actual shooter.
Defendant is mistaken regarding enhancements. He cites
page 3 of our opinion in the appeal taken by codefendant John
Ramirez. (People v. Ramirez (Oct. 4, 2017, B267429) [nonpub.
opn.].) There, the summary of procedural facts indicate that
John’s sentence was enhanced by a term 25 years to life under
section 12022.53, subdivision (d). Additional firearm
enhancements that had been found true were stayed, as were
additional firearm enhancements found true by defendant’s jury.
Defendant argues that the trial court should have
considered the evidence as a whole. It is unknown what parts of
the trial record the court reviewed. The trial judge was not the
judge who heard and denied the motion after reviewing
“available transcripts.”

10 Defendant was in his late 40’s at the time his petition was
denied. The probation department provided no records indicating
gang involvement.

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 It is unknown what factors in mitigation the court relied
on, if any, as only factors in aggravation were cited by the court.
A sentencing court must consider “[c]ircumstances in mitigation,
includ[ing] factors relating to the crime and factors relating to
the defendant.” (Cal. Rules of Court, rule 4.423.) However,
California Rules of Court, rule 4.409 provides: “Relevant factors
enumerated in these rules must be considered by the sentencing
judge, and will be deemed to have been considered unless the
record affirmatively reflects otherwise.” Thus, we do not presume
that the court failed to consider mitigating factors, including
those cited in defendant’s supplemental brief.
With no error having been shown, we affirm the order
reimposing the firearm enhancement.

DISPOSITION
The order denying the section 1170.95 petition is reversed,
and the matter is remanded to the superior court with directions
to issue an order to show cause pursuant to section 1170.95,
subdivision (c) and to proceed in the manner described in section
1170.95, subdivisions (d) through (g).
The order reimposing the firearm enhancement pursuant to
section 12022.53, subdivision (d) is affirmed.

________________________
CHAVEZ, J.
We concur:

________________________ ________________________
LUI, P. J. HOFFSTADT, J.

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