People v. Saephan CA5

Filed 1/25/24 P. v. Saephan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F084169
Plaintiff and Respondent,
(Super. Ct. No. 17CR-05757A)
v.

TYLER SENG SAEPHAN, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
During a purported drug deal, Tyler Seng Saephan (appellant) shot and killed
Adrian Ayala in front of his home and robbed him of a large quantity of marijuana. A
jury convicted appellant of first degree murder (Pen. Code, §§ 187, subd. (a), 189,
subd. (a); count 1),1 second degree robbery (§§ 211, 212.5, subd. (c); count 2), grand
theft of a firearm (§ 487, subd. (d)(2); count 3), unlawful firearm possession (§ 29820,
subd. (b); count 4), and unlawful possession of ammunition (§ 30305, subd. (a)(1);
count 5). As to counts 1 and 2, the jury found true the enhancement for the personal and
intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53,
subd. (d).) The trial court sentenced appellant to 50 years to life plus two years in state
prison.
On appeal, appellant contends the trial court should have instructed the jury on
heat of passion voluntary manslaughter as a lesser included offense to murder (count 1),
and theft as a lesser included offense to robbery (count 2). He also claims the trial court
abused its discretion at sentencing by failing to apply the lower term presumption
pursuant to section 1170, subdivision (b)(6)(B), and was unaware of its discretion under
People v. Tirado (2022) 12 Cal.5th 688 (Tirado) to impose a lesser firearm enhancement.
We conclude no error occurred. We affirm.
BACKGROUND
I. Appellant is Found in Possession of Stolen Firearms (counts 3, 4, and 5).
In July 2015, a homeowner allowed his adult daughter to stay at his house in
Merced while he went out of town on vacation. The daughter had several friends over,
including appellant, and a man named Cesar Barrera. When the homeowner returned
home, he discovered that his gun safe had been pried open. Numerous items were

1 All further statutory references are to the Penal Code unless otherwise indicated.

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missing, including a shotgun, several rifles, a nine-millimeter handgun, and several
magazines. The homeowner immediately reported the theft of his weapons to the police.
Later that month, officers pulled over a tan 2001 Honda Accord. Appellant was
driving and Barrera was in the front passenger’s seat. The officers searched the trunk and
found some of the homeowner’s stolen property, including two rifles and a shotgun.
They also found two magazines loaded with nine-millimeter cartridges.
The officers placed appellant and Barrera under arrest and impounded the Honda.
Appellant was subsequently released from custody and retrieved the Honda from the
impound yard on August 6, 2015.
The trial court admitted juvenile court records showing appellant suffered a prior
juvenile adjudication that prohibited him from possessing a firearm or ammunition. (See
§§ 29820, subds. (a)(1)(A), (b), 30305, subd. (a)(1).)
II. Ayala is Shot and Killed in Front of his House.
Ayala lived with his mother at their house in Merced. During the early morning
hours of August 7, 2015, Ayala’s mother walked out to the street to retrieve a tablet from
her car. As she walked back into the house through the garage, she passed by Ayala, who
was walking out to the street. He was carrying a yellow plastic grocery bag, and said,
“I’m just going to go deliver this.” Ayala’s mother knew her son sold marijuana. She
could not see what was inside of the bag, but understood his statement to mean he was on
his way to sell marijuana.
Ayala’s mother continued through the garage and into the house. While she was
closing the door to the garage, she heard several gunshots that sounded very close. She
went outside and found Ayala lying face down in the street. She saw a car at the end of
the street driving away at a high rate of speed. She called 911. She was unable to
provide any details about the car. However, a neighbor testified he looked outside of his
window after hearing gunshots and saw an early 2000’s Honda or Toyota sedan that was

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gold or silver in color. The sedan was speeding away in the same direction described by
Ayala’s mother.
III. Crime Scene Evidence.
By the time police arrived on scene, Ayala was unresponsive and not breathing.
His body was in the street behind his Jeep, which was parked in the driveway. The
Jeep’s engine was running, and a door was open. Ayala’s cell phone was on the front
passenger’s seat connected to a charging cable. The yellow plastic grocery bag and
marijuana were not located.
Ayala had been shot in the center of the chest, lower back, back of the thigh, and
wrist. The gunshot wound to his chest had gunpowder stippling around the wound,
indicating the shot was fired from close range. Law enforcement personnel found three
expended nine-millimeter cartridge casings in the street near his body.
IV. Cell Phone Evidence Connects Appellant to the Murder.
An officer performed a forensic extraction of the data on Ayala’s cell phone. The
extracted data revealed that appellant and Ayala had been communicating on Facebook
Messenger. On the evening of August 6, 2015, hours before Ayala was killed, appellant
expressed interest in purchasing one or more pounds of marijuana. They discussed prices
and other terms of a possible deal, and appellant suggested they meet near a fast food
restaurant in Merced. Around 10:00 p.m., they talked about switching to Snapchat,
which automatically deletes messages, and their communication on Facebook Messenger
ended.
Another officer obtained appellant’s cell phone records via search warrant. The
records included location data showing which cell tower appellant’s cell phone was
connecting to at a given time. The records showed that around the time Ayala was killed,
appellant’s cell phone was connecting to two cell towers in Merced. Ayala’s residence
was located in between the two towers.

4.
V. During a Law Enforcement Interview, Appellant Admits to Shooting Ayala.
Appellant was arrested and interviewed at the police department. The interview
was audio and video recorded. Portions of the recording were admitted into evidence and
played for the jury.
Officers began by questioning appellant about the theft of the firearms from the
homeowner’s residence. He initially denied involvement, claiming he did not know
about the guns in the trunk of his car, and that it was most likely Barrera who stole the
guns. However, he eventually admitted he helped Barrera take the guns from the
homeowner’s residence.
The officers then began questioning appellant about Ayala’s death. Appellant
stated he knew Ayala from high school, and that they had bought and sold marijuana to
each other in the past. When asked if he met with Ayala on the night he was killed,
appellant claimed he tried to contact Ayala to purchase some marijuana but did not hear
back from him.
After being confronted with his Facebook messages and cell phone records,
appellant admitted he did meet with Ayala that night. He claimed he went to Ayala’s
house with Barrera. Ayala gave him a pound of marijuana as a “sample pack” that he
could pay for later. The marijuana was in a large plastic “regular store bag.” Appellant
left and drove around for an hour with Barrera, then Ayala began messaging him
demanding payment or return of the marijuana. Appellant did not want to give back the
marijuana, so he considered telling Ayala they had been robbed and no longer had it.
When they returned to Ayala’s house, Ayala was angry, particularly at Barrera.
According to appellant, Barrera thought Ayala had a gun, so Barrera shot him.
Following a break in the interview, appellant told the officers he had left out
details and wanted to tell the truth. He characterized his interaction with Ayala as “a
drug deal gone bad.” He stated he went to Ayala’s house without Barrera, and that Ayala
“fronted” him a pound of marijuana. He returned to Ayala’s house to obtain another

5.
pound, but Ayala demanded return of the initial pound. Ayala became upset and began
reaching towards his waist. Appellant thought Ayala was going to pull out a gun, so he
shot him with the pistol he had stolen from the homeowner’s gun safe.
Later in the interview, appellant stated that Ayala initially gave him two pounds of
marijuana, and that he was supposed to return later with either the marijuana or money to
pay for it. When the officers asked appellant if Ayala had a bag of marijuana when he
shot him, appellant stated he did not.
Appellant then stated his memory was “coming back” to him, and clarified that
Ayala initially gave him only one pound of marijuana, and that he returned later to get a
second pound. Ayala brought the second pound in a plastic grocery store bag. Ayala
handed him the second pound, then asked for the money for the first pound. Appellant
did not intend to pay for the marijuana and lied to Ayala that he would have to bring the
second pound to a buyer before he could get money for both. Ayala became upset, and
appellant thought Ayala was going to draw a gun, so appellant shot at him without
looking and drove away.
Appellant stated that after the shooting, he sold the gun and the two pounds of
marijuana in Sacramento.
DISCUSSION
I. The Trial Court’s Failure to Sua Sponte Instruct the Jury on Heat of Passion
Voluntary Manslaughter was Harmless Because the Jury Convicted
Appellant of First Degree Felony Murder.
Appellant claims the trial court erred in failing to instruct the jury on heat of
passion voluntary manslaughter as a lesser included offense to murder. Although the trial
court instructed the jury on imperfect self-defense, appellant contends the court had a sua
sponte obligation to instruct on heat of passion because there was substantial evidence his
judgment was obscured by “fear and panic” induced by his belief Ayala was going to
shoot him.

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 We need not determine whether the trial court was obligated to instruct on heat of
passion because any presumed error was harmless. The jury found appellant guilty of
first degree felony murder, which does not require a finding that the perpetrator acted
with malice aforethought. (§ 189, subds. (a) & (e); People v. Balderas (1985) 41
Cal.3d 144, 197 (Balderas).) Heat of passion does not apply to first degree felony
murder because it negates malice. (People v. Rios (2000) 23 Cal.4th 450, 465.) Thus,
any presumed error was harmless because a heat of passion instruction could not have
affected the verdict.
A. Background
The trial court instructed the jury on murder with malice aforethought.
(CALCRIM No. 520.) The instruction concluded with the following language: “If you
decide that the defendant committed murder, it is murder of the second degree, unless the
People have proved beyond a reasonable doubt that it is murder of the first degree as
defined in CALCRIM No. 540A [Felony Murder: First Degree].”
Next, the trial court gave CALCRIM No. 540A (Felony Murder: First Degree –
Defendant Allegedly Committed Fatal Act (Pen. Code, § 189)), based on the evidence
appellant caused the death of Ayala while committing robbery. The instruction set forth
the elements of first degree felony murder as follows:

“1. The defendant committed Robbery;

“2. The defendant intended to commit Robbery;

“AND

“While committing Robbery, the defendant caused the death of another
person.”
The court did not instruct on any other theories of murder.
The trial court also instructed on self-defense (CALCRIM No. 505) and voluntary
manslaughter based on imperfect self-defense (CALCRIM No. 571). The court did not

7.
give an instruction on heat of passion voluntary manslaughter. There is no indication in
the record appellant requested such an instruction.
The jury convicted appellant in count 1 of first degree felony murder. The verdict
form specifies the jury found appellant unlawfully killed Ayala “with malice
aforethought and while engaged in the commission of the crime of robbery.”
B. Standard of review
In general, failure to instruct on a lesser included offense is an error of state law,
and error is harmless “unless it appears ‘reasonably probable’ the defendant would have
achieved a more favorable result had the error not occurred.” (People v. Breverman
(1998) 19 Cal.4th 142, 149, quoting People v. Watson (1956) 46 Cal.2d 818, 836
(Watson).)
However, in People v. Schuller, the Supreme Court held that the failure to instruct
on voluntary manslaughter, where supported by substantial evidence, is subject to the
more stringent standard for federal constitutional error set forth in Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman). (People v. Schuller (2023) 15 Cal.5th 237, 260 &
fn. 7 (Schuller).) This is because heat of passion and imperfect self-defense operate to
negate the malice element of murder, and thus, the prosecution must disprove those
circumstances beyond a reasonable doubt. (Schuller, supra, 15 Cal.5th at pp. 253–254.)
Accordingly, the failure to instruct on either theory “amounts to an incomplete instruction
on the malice element of murder and is therefore subject to Chapman review for
constitutional error.” (Id. at p. 254.)
In light of Schuller, we apply the Chapman standard to appellant’s claim. Under
Chapman, reversal is required unless the reviewing court can conclude beyond a
reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386
U.S. at p. 24.)

8.
 C. Any presumed error was harmless because heat of passion does not
apply to first degree felony murder.
Even assuming there was substantial evidence of heat of passion, any presumed
error was harmless as a matter of law, because heat of passion is inapplicable to first
degree felony murder. (Balderas, supra, 41 Cal.3d at p. 197.)
Heat of passion “is a state of mind caused by legally sufficient provocation that
causes a person to act, not out of rational thought but out of unconsidered reaction to the
provocation.” (People v. Beltran (2013) 56 Cal.4th 935, 942.) Heat of passion reduces
murder to manslaughter by negating the malice element of murder. (People v. Rios,
supra, 23 Cal.4th at p. 467; People v. Bryant (2013) 56 Cal.4th 959, 968.) In other
words, “[h]eat of passion is a mental state that precludes the formation of malice and
reduces an unlawful killing from murder to manslaughter.” (People v. Beltran, supra,
56 Cal.4th at p. 942.)
However, “malice is not an element of felony murder.” (People v. Dillon (1983)
34 Cal.3d 441, 475.) Rather, “the mental state required is simply the specific intent to
commit the underlying felony; neither intent to kill, deliberation, premeditation, nor
malice aforethought is needed.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1140–
1141.) Thus, in the case of first degree felony murder, “the defendant’s state of mind
with respect to the homicide … is entirely irrelevant and need not be proved at all.”
(People v. Dillon, supra, 34 Cal.3d at p. 477.) Indeed, first degree felony murder liability
may extend to killings committed in the perpetration of the underlying felony that were
unintentional, accidental, or negligent.2 (Ibid.; People v. Farley (2009) 46 Cal.4th 1053,
1121; see CALCRIM No. 540A.)

2 We recognize that section 189, as amended by Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Stats. 2018, ch. 1015, § 3), limits felony murder liability for participants in
the underlying felony who were not the actual killer. (See § 189, subd. (e)(2) & (3).) We
need not consider these limitations because it is undisputed that appellant was the actual
killer.

9.
 In the instant case, the jury convicted appellant of first degree felony murder,
finding appellant caused the death of Ayala during a robbery. In reaching this verdict,
the jury was not required to consider whether appellant acted with malice aforethought.
Heat of passion reduces murder to voluntary manslaughter by negating the element of
malice, but there was no finding of malice by the jury to negate. Therefore, an
instruction on heat of passion voluntary manslaughter would have been legally irrelevant
to the outcome of the trial.
Balderas is instructive. There, the appellant contended he was entitled to a sua
sponte instruction on heat of passion voluntary manslaughter based on evidence he shot
the victim when provoked by the victim’s attack during a robbery. (Balderas, supra, 41
Cal.3d at p. 196.) The Supreme Court rejected the argument, reasoning: “Of course,
neither ‘heat of passion’ nor provocation can ever reduce a murder properly based on the
felony-murder doctrine to voluntary manslaughter …. This is so because ‘malice,’ the
mental state which otherwise distinguishes murder from voluntary manslaughter, is not
an element of felony murder. The only mental state required for felony murder is that
necessary for commission of the underlying felony.”3 (Balderas, supra, 41 Cal.3d at
p. 197.)
Similarly, in People v. Demetrulias, the appellant was convicted of first degree
murder with robbery-murder special circumstances. (People v. Demetrulias (2006) 39
Cal.4th 1, 5, 25.) The appellant admitted to killing the victim, but claimed he did so
during a struggle that the victim initiated when the appellant came to his room to collect
money from him. (Id. at p. 5.)

3 The Supreme Court also noted that recognizing a theory of “ ‘heat of passion
manslaughter’ ” based on the resistance of the victim would produce absurd results:
“[A]n accidental killing in the course of a felony would be murder, while an intentional
homicide in ‘panic or rage’ at the victim’s resistance would constitute a lesser offense.
Such cannot be the law.” (Balderas, supra, 41 Cal.3d at p. 197.)

10.
 The trial court denied the appellant’s request to instruct on heat of passion
voluntary manslaughter, reasoning the appellant’s testimony did not show any
provocation other than the victim’s asserted attack on the appellant. (People v.
Demetrulias, supra, 39 Cal.4th at p. 24.) The Supreme Court concluded any error in
failing to give the instruction was harmless under Chapman, because the jury necessarily
found the appellant committed first degree felony murder based on the instructions given.
(People v. Demetrulias, supra, 39 Cal.4th at pp. 24–25.)
Here, as in Balderas and Demetrulias, an instruction on heat of passion voluntary
manslaughter would have been legally irrelevant to the outcome of the trial. The jury
convicted appellant of first degree felony murder, which does not require malice. A heat
of passion instruction could not have produced a different result. Thus, the guilty verdict
rendered in this trial was surely unattributable to the purported error. (Sullivan v.
Louisiana (1993) 508 U.S. 275, 279.) We therefore conclude beyond a reasonable doubt
that the trial court’s failure to instruct on heat of passion did not contribute to the verdict,
and this claim lacks merit.
II. The Trial Court did not Err in Failing to Instruct the Jury on Theft as a
Lesser Included Offense to Robbery. Any Presumed Error was Harmless.
Appellant claims the trial court should have instructed the jury on theft as a lesser
included offense to robbery. He argues that based on the statements he made in his
interview, there was substantial evidence that he did not take marijuana from Ayala’s
immediate presence, and that the shooting was not committed in furtherance of the
taking. We disagree. We conclude that no reasonable juror could find appellant
committed a theft but not a robbery. Therefore, no error occurred, and any presumed
error was harmless.
A. Background
Appellant was charged in count 2 with second degree robbery, and the jury was
instructed with CALCRIM No. 1600 (Robbery). The trial court did not instruct the jury

11.
with any lesser included offenses as to the robbery count, and nothing in the record
demonstrates appellant requested the court instruct on any such lesser included offense.
B. Standard of review
“A trial court must instruct on all lesser included offenses supported by substantial
evidence. [Citations.] The duty applies whenever there is evidence in the record from
which a reasonable jury could conclude the defendant is guilty of the lesser, but not the
greater, offense.” (People v. Duff (2014) 58 Cal.4th 527, 561.) “Substantial evidence in
this context is that which a reasonable jury could find persuasive.” (People v. Halvorsen
(2007) 42 Cal.4th 379, 414; see People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) In
other words, there must be “ ‘evidence from which a rational trier of fact could find
beyond a reasonable doubt’ ” that the defendant committed only the lesser offense.
(People v. Mendoza (2000) 24 Cal.4th 130, 174.)
We review claims involving the failure to instruct on a lesser included offense de
novo, considering the evidence in the light most favorable to the accused. (People v.
Brothers (2015) 236 Cal.App.4th 24, 30.)
It is undisputed that theft is a lesser included offense of robbery. (See People v.
Webster (1991) 54 Cal.3d 411, 443.)
C. The trial court had no sua sponte duty to instruct on theft because
there was not substantial evidence appellant committed a theft but not
a robbery.
Appellant acknowledges that he gave “inconsistent accounts of the shooting”
during his law enforcement interview. He ultimately told the officers that when he
returned to Ayala’s house a second time, Ayala handed him a second bag of marijuana
before he shot him. Nonetheless, appellant argues a reasonable jury could have instead
believed one of his initial accounts of the shooting—specifically, that when he returned to
Ayala’s house, Ayala did not give him additional marijuana. Based on these initial
accounts, he contends the jury could have found that the shooting occurred because of a

12.
dispute over his already completed theft of Ayala’s marijuana. Therefore, according to
appellant, no robbery occurred because the marijuana was not taken from Ayala’s
“immediate presence.” (§ 211; see People v. Webster, supra, 54 Cal.3d at p. 440.)
We disagree. During the interview, appellant’s version of events evolved as he
was questioned by detectives and confronted with the evidence against him. As his story
changed, he either admitted he had been untruthful, or claimed that he had taken drugs to
try to block out his memory of the shooting, which was slowly coming back to him. In
the process, he acknowledged that his prior descriptions of the shooting were inaccurate.
Thus, even appellant rejected his own prior accounts as false. Given this, we reject
appellant’s assertion that a reasonable jury could find these initial accounts persuasive
and conclude that only a theft occurred.
We also observe that all the other evidence at trial amply supported the conclusion
that appellant committed a robbery rather than a theft. Ayala’s mother testified that
moments before the shooting, she saw Ayala walking out of their house to the street
carrying a plastic grocery bag. Circumstantial evidence, including Ayala’s statement that
he was going to “deliver this,” strongly supported the inference the bag contained
marijuana. Just after Ayala’s mother stepped inside the house, she heard gunshots and
saw a car speeding away. Ayala was shot in the center of his chest, and his wound had
stippling, indicating he was shot at close range. Following the shooting, the plastic
grocery bag of marijuana was never located.4 Given that Ayala was shot in the chest
from close range moments after he walked out to the street with the bag of marijuana, the
perpetrator fled immediately after the shooting, and the bag of marijuana was no longer at

4 Appellant argues that the evidence did not establish that the plastic grocery bag of
marijuana was missing because no law enforcement witness testified that he or she
searched the entirety of Ayala’s car. This is not supported by the record. A “Crime
Scene Response Team” processed the scene for evidence, and multiple witnesses,
including Ayala’s mother, testified they did not see a plastic grocery bag in the area.

13.
the scene, the independent evidence conclusively established Ayala was murdered during
the course of a robbery.
Appellant also claims that even if the jury accepted his final account of the
shooting in the interview—that Ayala gave him a pound of marijuana the second time he
went to his house—the jury could still have concluded no robbery occurred because he
did not shoot Ayala in furtherance of the taking. (See, e.g., People v. Estes (1983) 147
Cal.App.3d 23, 28; People v. Bradford (1997) 14 Cal.4th 1005, 1055–1056.) He
contends the jury could have found that he shot Ayala only out of fear or panic, not to
retain the second pound of marijuana that Ayala had just handed to him.
This contention is not supported by the record. Appellant told the officers he
intended to steal the marijuana from Ayala. When Ayala became upset, appellant made
no effort to return the marijuana he did not pay for. Instead, he shot Ayala multiple
times, including once in the chest from close range, and left with the marijuana.
Appellant’s statement that he thought Ayala was reaching for a gun does not assist him.
(See People v. Costa (1963) 218 Cal.App.2d 310, 316 [self-defense is not a recognized
defense to robbery].) Rather, it demonstrates that appellant completed the robbery by
using force to take the marijuana “or to prevent [Ayala] from resisting.” (People v. Scott
(2009) 45 Cal.4th 743, 749.)
Based on this record, appellant has not demonstrated there was substantial
evidence that he committed a theft but not a robbery. Therefore, our de novo review
reveals the trial court did not err in failing to instruct the jury with the lesser included
offense of theft as to count 2.
D. Any presumed error was harmless.
Even assuming the trial court committed instructional error, any presumed error
was harmless. Appellant agrees the failure to instruct on a lesser included offense in a
noncapital case is an error of state law and appellate review for prejudice occurs under

14.
the standard set forth in Watson. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
Under this standard, we review the entire record to determine if it is reasonably probable
a more favorable outcome would have occurred. (Ibid.) “Such posttrial review focuses
not on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration.” (Id. at p. 177.)
As we explained above, the evidence that appellant committed a robbery was
overwhelming, and there was no reasonable basis to conclude that only a theft occurred.
Accordingly, appellant fails to demonstrate a reasonable probability of a different
outcome had the trial court given the requested instruction. Any presumed error was
harmless.
III. The Trial Court was not Required to Apply the Section 1170, Subdivision
(b)(6)(B) Lower Term Presumption at Sentencing Because Nothing in the
Record Suggested Appellant’s Youth was a “Contributing Factor” in the
Commission of the Offenses.
The trial court sentenced appellant to the middle term on counts 2 and 3.
Appellant contends that because he was 20 years old at the time of the offense, the trial
court abused its discretion in failing to treat the lower term as the presumptive sentence in
accordance with section 1170, subdivision (b)(6)(B). We conclude appellant was
properly sentenced, because nothing in the record shows appellant’s youth was a
“contributing factor” in the commission of the underlying offenses. (§ 1170, subd.
(b)(6).)
A. Assembly Bill No. 124 and section 1170, subdivision (b)(6)(B).
Effective January 1, 2022, Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 695, § 5) amended section 1170 by adding paragraph 6 to subdivision (b),
which provides, in pertinent part: “[U]nless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition of the lower
term if any of the following was a contributing factor in the commission of the offense:

15.
[¶] … [¶] (B) The person is a youth or was a youth as defined under subdivision (b) of
Section 1016.7 at the time of the commission of the offense.” Section 1016.7 defines
“youth” as “any person under 26 years of age on the date the offense was committed.”
B. Background
At sentencing, the trial court sentenced appellant on count 2, second degree
robbery, to the middle term of three years, plus 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)), but stayed the sentence pursuant to section 654,
subdivision (a). On count 3, grand theft of a firearm, the trial court sentenced appellant
to the middle term of two years.5
Defense counsel declined to make any comments at sentencing and did not submit
a sentencing memorandum or other materials. Neither the trial court nor counsel for
either party made any reference to appellant’s age or the applicability of section 1170,
subdivision (b)(6)(B).
The trial court noted it had read and considered the probation report. In the
“Evaluation” section of the report, the probation officer noted: “The [appellant] is young
and when the present offense occurred, he was twenty (20) years old. He had no prior
adult convictions, but had a lengthy juvenile record that contained violent offenses.”
The probation report listed eight factors in aggravation, including: “The crime
involved great violence, great bodily harm … or other acts disclosing a high degree of
cruelty, viciousness, or callousness” (Cal. Rules of Court, rule 4.421(a)(1)); “The
manner in which the crime was carried out indicates planning, sophistication, or
professionalism” (Cal. Rules of Court, rule 4.421(a)(8)); and, “The defendant’s prior
convictions as an adult or sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)). As to

5 The trial court stayed sentence on counts 4 and 5 pursuant to section 654,
subdivision (a), but did not specify the term imposed.

16.
factors in mitigation, the report only listed the following: “The victim was an initiator of,
willing participant in, or aggressor or provoker of the incident.”
C. Standard of review
Sentencing decisions are subject to the abuse of discretion standard. (People v.
Sandoval (2007) 41 Cal.4th 825, 847; People v. Hicks (2017) 17 Cal.App.5th 496, 512.)
“[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, 377.)
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court.’ ” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.) Thus, “[a]n abuse of discretion occurs when the trial court ... is unaware of
its discretion.” (In re White (2020) 9 Cal.5th 455, 470.) However, “[a]bsent evidence to
the contrary, we presume that the trial court knew and applied the governing law.”
(People v. Gutierrez, supra, 58 Cal.4th at p. 1390; see People v. Myers (1999) 69
Cal.App.4th 305, 310 [“The court is presumed to have considered all of the relevant
factors.”].) The burden is on the party attacking the sentence to demonstrate an abuse of
discretion occurred. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
“To meet this burden, the [appellant] must ‘affirmatively demonstrate that the trial court
misunderstood its sentencing discretion.’ ” (People v. Lee (2017) 16 Cal.App.5th 861,
866.)
D. The lower term presumption was inapplicable because nothing in the
record suggested appellant’s youth was a “contributing factor” in the
commission of the offenses.
In People v. Fredrickson, the court held an appellant who was under the age of 26
was not entitled to the section 1170, subdivision (b)(6)(B) lower term presumption,
because nothing in the record showed the appellant’s youth was a “ ‘contributing factor’ ”
in the commission of the underlying offense. (People v. Fredrickson (2023) 90

17.
Cal.App.5th 984, 987 (Fredrickson).) Fredrickson observed that section 1170,
subdivision (b)(6)(B) “does not mandate a presumption in favor of the lower term in
every case in which the defendant was under age 26 at the time the crime was committed.
Instead, the presumption applies only if the defendant’s youth was ‘a contributing factor’
in his or her commission of the offense.” (Fredrickson, supra, 90 Cal.App.5th at p. 991.)
“[I]n order to trigger the presumption, there must be some initial showing that the
defendant’s youth was a contributing factor, and only then must the record affirmatively
show compliance with the statute.” (Id. at p. 992.)
Fredrickson declined to decide the “precise nature of the showing required”
because the appellant conceded there was nothing in the record showing the appellant’s
youth contributed to the commission of the offense. (Fredrickson, supra, 90 Cal.App.5th
at p. 994.) The court also reviewed the record, including the probation reports,
sentencing memorandum, and arguments at the sentencing hearing, and found no
indication the appellant’s youth was a contributing factor. (Ibid.) It noted, however, that
the initial showing does not need to be made by the defendant, but instead can be made
by the prosecution or the probation report. (Id. at p. 994, fn. 8.)
Appellant contends that here, unlike in Fredrickson, the probation report provided
the initial showing that his youth was a contributing factor to the commission of his
offenses. He points to the probation officer’s statements that “[t]he [appellant] is young
and when the present offense occurred, he was twenty (20) years old.” We are not
persuaded. The probation officer’s statement only conveyed that appellant was under the
age of 26 at the time of his offenses. It did not suggest appellant’s youth was a
contributing factor in their commission.
Appellant also relies on the probation officer’s statement that while appellant had
no adult criminal history, he had an extensive juvenile record involving violent offenses.
He contends the purpose of this observation was to “undercut the mitigating circumstance
of youth,” impliedly recognizing that his youth could have been a contributing factor.

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We do not read the probation report this way. The probation officer’s statement merely
highlighted that appellant had a lengthy and violent criminal history even though he had
no adult criminal record. Nothing about this observation suggests appellant’s youth was
a contributing factor to his offenses.
Appellant also claims the trial court was unaware of its sentencing obligations
under section 1170, subdivision (b)(6)(B), based on the following statement it made at
the outset of the sentencing hearing: “I would note that with the new sentencing laws, we
did not have any findings as to factors in aggravation and mitigation.” He suggests this
shows the trial court erroneously believed that factors in mitigation would have to be
found true by the jury for it to impose the lower term, and thus, the record is ambiguous
as to whether the trial court properly understood its discretion under section 1170,
subdivision (b)(6)(B).
Appellant’s interpretation of the record is inaccurate. The trial court’s comment
was clearly a reference to Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch.
731, § 1.3), which became effective the same day as Assembly Bill No. 124. Senate Bill
No. 567 amended section 1170 such that a sentencing court may only impose the upper
term where factors in aggravation have been found true beyond a reasonable doubt by the
jury or the court or stipulated to by the defendant. (§ 1170, subd. (b)(1) & (2).) Nothing
in the record leads us to conclude the trial court was referring to its ability to impose the
lower term.
Here, as in Fredrickson, the record contains no initial showing that appellant’s
youth was “a contributing factor in the commission of the offense.” (§ 1170,
subd. (b)(6).) Therefore, the trial court did not abuse its discretion in failing to apply the
section 1170, subdivision (b)(6)(B) lower term presumption, and this claim lacks merit.

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 E. Appellant fails to demonstrate ineffective assistance of counsel.
Appellant raises the alternative argument that his defense counsel was ineffective
for failing to argue for the application of the section 1170, subdivision (b)(6)(B) lower
term presumption.
To prevail on an ineffective assistance of counsel claim, the claimant must
establish counsel’s performance fell below an objective standard of reasonableness, and
that prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
On direct appeal, an ineffective assistance of counsel claim will be sustained “only if the
record on appeal affirmatively discloses that counsel had no rational tactical purpose for
his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
In Fredrickson, the appellant raised an ineffective assistance of counsel claim on
the same basis. (Fredrickson, supra, 90 Cal.App.5th at p. 994.) The court rejected the
claim, reasoning there was nothing in the record on direct appeal establishing defense
counsel’s performance was deficient, because there was no indication in the record the
appellant’s youth was a contributing factor in the commission of the underlying offense.
(Id. at p. 995.) Fredrickson therefore reasoned, “we cannot conclude counsel was
deficient in failing to present information that may or may not exist.” (Ibid.)
Here, similarly, there is nothing in the record to suggest appellant’s youth was a
contributing factor. Thus, on this record there is no basis to conclude defense counsel
was ineffective for failing to raise the lower term presumption, or that it is reasonably
probable appellant would have received a more favorable outcome. Accordingly,
appellant fails to establish ineffective assistance of counsel.
IV. The Record does not Demonstrate the Trial Court was Unaware of its
Discretion to Impose a Lesser Firearm Enhancement Under Tirado.
Two months before appellant was sentenced, the Supreme Court decided Tirado,
holding that a trial court may strike a section 12022.53, subdivision (d), firearm
enhancement and impose a lesser uncharged statutory enhancement. (Tirado, supra,

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12 Cal.5th at p. 692.) Appellant contends the trial court only understood its discretion to
strike the enhancement outright but was not aware of its discretion to impose a lesser
included enhancement under Tirado. We conclude the record demonstrates the trial court
was aware of its discretion, and appellant was properly sentenced.
A. Background
At the beginning of the sentencing hearing, the trial court noted it “has the
discretion under recent case law changes for the firearms enhancement.” Later, while
sentencing appellant on the section 12022.53, subdivision (d), firearm enhancement as to
count 1, the trial court stated, “And the Court acknowledges that it has discretion to stay
that punishment. However, the Court declines to stay the punishment as this crime
resulted in the loss of life of a very young man and, therefore, the Court feels that a 15 to
life sentence is appropriate.”6 The court then sentenced appellant on count 1 to 25 years
to life for first degree murder, and 25 years to life on the section 12022.53, subdivision
(d), firearm enhancement.
Defense counsel did not request the trial court strike the section 12022.53,
subdivision (d) enhancement, or impose a lesser included enhancement.
B. Senate Bill No. 620 and Tirado.
Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats.
2017, ch. 682, § 2) amended section 12022.53, subdivision (h) to give trial courts
discretion to “strike or dismiss” enhancements imposed under this section “in the interest
of justice pursuant to Section 1385.”
In January 2022, the Supreme Court decided Tirado, holding that section
12022.53, as amended by Senate Bill No. 620, “permits a court to strike [a] section

6 Based on the context of this statement, it appears the trial court misspoke when it
referred to a “15 to life” sentence, as the section 12022.53, subdivision (d) enhancement
requires “an additional and consecutive term of imprisonment in the state prison for 25
years to life.”

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12022.53[, subdivision] (d) enhancement found true by the jury and to impose a lesser
uncharged statutory enhancement instead.” (Tirado, supra, 12 Cal.5th at p. 692.) Thus,
under Tirado, a trial court may either strike a section 12022.53, subdivision (d)
enhancement outright, or impose a lesser uncharged enhancement under section
12022.53, subdivision (c) or section 12022.53, subdivision (b).7
C. Appellant fails to show the trial court was unaware of the scope of its
sentencing discretion.
Appellant contends the record suggests the trial court was unaware of its discretion
under Tirado because it only stated on the record it was declining to strike the section
12022.53, subdivision (d), firearm enhancement outright. According to appellant, the
trial court’s failure to expressly state that it had discretion under Tirado to impose a lesser
enhancement shows it was unaware of that discretion.
Appellant’s argument is premised on an incorrect standard of review. As we
explained above, the burden is on appellant to “ ‘affirmatively demonstrate that the trial
court misunderstood its sentencing discretion.’ ” (People v. Lee, supra, 16 Cal.App.5th
at p. 866.) Moreover, “[a]bsent evidence to the contrary, we presume that the trial court
knew and applied the governing law.” (People v. Gutierrez, supra, 58 Cal.4th at
p. 1390.) Here, nothing in the record suggests the trial court was unaware of its
discretion under Tirado. The trial court’s statement that it was declining to strike the
firearm enhancement outright does not affirmatively demonstrate it was unaware of its
discretion to impose a lesser enhancement.
We are also persuaded by the trial court’s statement it was aware of its “discretion
under recent case law changes for the firearms enhancement.” Considering the context in

7 Whether the trial court may also impose a lesser uncharged enhancement under
section 12022.5 is currently pending before the California Supreme Court. (See People v.
McDavid (July 14, 2022, D078919) [nonpub. opn.], review granted Sept. 28, 2022,
S275940.)

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which this statement was made, it is apparent the trial court was referring to Tirado,
which was decided only months before the sentencing hearing. We have no reason to
believe the trial court was only referring to Senate Bill No. 620, which had been in effect
for over four years at the time of sentencing, and was a statutory amendment, rather than
new caselaw. Thus, the record affirmatively demonstrates the trial court was aware of its
discretion under Tirado, and the trial court did not abuse its discretion in sentencing
appellant.
DISPOSITION
The judgment is affirmed.

LEVY, Acting P. J.
WE CONCUR:

PEÑA, J.

SNAUFFER, J.

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