Plaintiff and Respondent, v. TONY KENDRICK, (B341255)

B341255

California Superior Local Rules

Filed 7/13/26 P. v. Kendrick CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. TONY KENDRICK, Defendant and Appellant. B341255 (Los Angeles County Super. Ct. No.

MA073204) APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

2 A jury convicted Tony Kendrick of various crimes arising from his assault of his ex-girlfriend. The trial court sentenced him to a prison term based upon the upper term of three possible options. At a resentencing hearing under Penal Code1

section 1172.75, the trial court struck three 1-year priors but declined to reduce the upper term sentences any further. Kendrick appeals, contending that the trial court abused its discretion by not deviating downward from the upper term sentence in light of his rehabilitative efforts. We disagree and affirm the judgment. BACKGROUND I. Verdict and sentencing The facts of Kendrick’s offenses that are the basis for his challenged sentence are recounted in this court’s prior opinion affirming in part and reversing in part the judgment on direct appeal, People v.

Kendrick (Feb. 17, 2021, B296061, B305593) [nonpub. opn.]. What is relevant for the purposes of this appeal is that on January 22, 2019, a jury convicted Kendrick of first degree burglary with a person present (§ 459; count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and dissuading a witness (§ 136.1, subd. (b); count 3).

The trial court sentenced Kendrick on count 1 to the upper term of six years doubled under the “Three Strikes” law to 12 years; on count 2, to the upper term of four years doubled to eight years under the Three Strikes law; and, on count 3, to the mid-term of two years doubled to four years under the Three Strikes law. The trial court also imposed five years for a prior conviction (§ 667, subd. (a)(1)) and three 1-year term 1 All further undesignated statutory references are to the Penal Code.

3 enhancements under the then-applicable provisions of 667.5, subdivision (b), which provided an enhancement on each count based upon Kendrick’s prior convictions. The trial court ran the sentence on count 2 concurrent to count 1. Kendrick’s total term therefore was 24 years in prison. II. Postjudgment proceedings Kendrick appealed from the judgment. A different panel of this division affirmed the judgment in part and reversed it in part. A change in the law that took effect January 1, 2020, pursuant to Senate Bill No. 136, invalidated the three 1-year enhancements under

section 667.5, subdivision (b), that Kendrick received for his prior convictions. This panel’s prior decision struck those three 1-year terms and remanded for resentencing. On remand, the trial court struck the three 1-year terms but otherwise imposed the same sentence on each of the three counts, resulting in a 21-year sentence. However, when the trial court resentenced Kendrick, neither he nor his counsel was present. Kendrick therefore appealed the judgment again.

This division vacated the sentence and remanded for a full resentencing hearing at which Kendrick was entitled to appear and advocate for a more lenient sentence. (People v. Kendrick (June 16, 2023, B317126) [nonpub. opn.].) The opinion also directed the trial court to reconsider Kendrick’s sentence in light of Senate Bill No. 567, which went into effect on January 1, 2022, and amended

section 1170 by making the middle term the presumptive term where a statute specifies three possible terms, and specifying the permissible bases and procedure required for a court to impose an upper term sentence. (Kendrick, supra, B317126.)

4 III. Resentencing hearing On remand, the parties submitted briefing regarding resentencing. Kendrick argued that his upper term sentences violated the statutory requirements under

section 1170, subdivision (b), which permits imposition of an upper term sentence only if the “facts underlying the circumstances [in aggravation] have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial,” or upon consideration of the defendant’s prior convictions “based on a certified record of conviction.” (§ 1170, subd. (b)(2)–(3).) Kendrick argued that both were absent from the record and thus could not support an adoption of an upper term sentence.

He further argued that the trial court should consider circumstances since the imposition of the prior sentence—notably his lack of writeups for misconduct, and his participation in “leadership, positive attitudes, substance abuse and anger management, parenting, and . . . workforce readiness” classes. In support, Kendrick submitted certificates showing that, in 2020, he completed a 15-week cycle of education courses to develop positive decision making and leadership, which consisted of both group and individual-study components.

He also provided documentation showing that in 2024, he participated in an eight- week substance treatment and re-entry transition program while in county jail. In opposition, the People argued that the trial court should continue to impose an upper term sentence because of the “egregious” facts of the underlying offense as well as Kendrick’s ongoing involvement with the criminal justice system since 2000. The People cited his record, showing convictions for, among other offenses, burglary, vandalism, and assault. The People also cited

5 Kendrick’s two minor rules violation reports during his current prison term, one for obstructing his cell window view and a second for improperly disposing of prescribed medications. At the resentencing hearing, the trial court struck the three 1-year enhancements for Kendrick’s priors but otherwise declined to adjust the sentence.

The trial court acknowledged that Kendrick “comported himself better than the average prisoner” and had “improved [himself] in prison.” However, when reviewing the extent of Kendrick’s rehabilitative efforts, the trial court described them as not “a lot” given that he had been in prison since 2019. The trial court also observed that Kendrick was not “a young man” when he committed his crimes and that the circumstances of the current offenses were “very egregious,” involving intimate partner violence.

The trial court also considered Kendrick’s criminal history, which it found had been properly introduced in the original trial, and recounted Kendrick’s series of violations from 2000 through 2018.2 It further stated its belief that Kendrick had already received a “huge consideration” in sentencing because the People at the original sentencing hearing agreed to strike the Three Strikes allegations so that he would not be sentenced to 25 years to life.

Ultimately, the trial court found that the upper term sentence was “commensurate with [Kendrick’s] conduct, . . . history, and . . . pattern . . . [and] [¶] . . . [t]he facts in the case support the conclusion in this court’s mind that a dismissal of additional enhancements or adjustment of the sentence would, in 2 A certified record of conviction—a 969B packet—had been admitted into evidence at an earlier trial on Kendrick’s prior convictions. Appellant does not argue that this does not satisfy the requirements of

section 1170, subdivision (b)(3).

6 fact, endanger public safety because you haven’t been there long enough.” Kendrick’s resulting sentence was 21 years. DISCUSSION In 2021, our California Legislature passed Senate Bill No. 483, which added

section 1171.1, renumbered to 1172.75. (Stats. 2021, ch. 728, § 3.)

Section 1172.75 declared legally invalid one-year sentencing enhancements for a prior prison term, except when the prior prison term was for a sexually violent offense.

If a judgment includes a qualifying enhancement, the trial court shall recall the sentence and resentence the defendant. (§ 1172.75, subd. (c).) Resentencing shall result in a lesser sentence than the one originally imposed inclusive of the enhancements “unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” (§ 1172.75, subd. (d)(1).) At resentencing, the “court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).) Further, the resentencing court shall “apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).) As relevant here, Senate Bill No. 567, effective January 1, 2022, made such a change in the law. (Stats. 2021, ch. 731,

7 § 1.3.) Senate Bill No. 567 amended

section 1170, subdivision (b), to make the middle term the presumptive term when a statute specifies three possible terms.

A court may impose the upper term “only when there are circumstances in aggravation of the crime that justify the imposition of a term . . . exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) However, a court “may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) We review a trial court’s sentencing decision under

section 1172.75 for abuse of discretion and “ ‘ “ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.” ’ ” (People v. Garcia (2024) 101 Cal.App.5th 848, 857.) Here, the trial court dismissed the three now-invalid 1-year enhancements at the resentencing hearing under

section 1172.75. Kendrick does not dispute that this has resulted in a sentence of 21 years in prison, less than the originally imposed 24-year sentence, as is mandated by

section 1172.75, absent clear and convincing evidence that the lesser sentence would endanger public safety. There is therefore no dispute that Kendrick has received the benefit of resentencing required under

section 1172.75 as directed by this court’s prior order. Kendrick additionally does not argue that the trial court erred in its application of

section 1170, subdivision (

b) by adopting an upper term sentence. Although Senate Bill No. 567

8 now makes the middle term the presumptive term, it still authorizes the trial court to impose an upper term sentence based on certain evidentiary considerations. (§ 1170, subd. (b)(1).) It explicitly allows that the court “may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) In this case, Kendrick acknowledged that the “trial court indicated that it would resentence [him] to the high term on counts 1 and 2 based on him being unsuccessful on probation or parole in the past, his prior prison commitments, and that he has crimes of increasing seriousness and numerous crimes.” He also does not argue that the trial court lacked the appropriate record to make that determination.

Indeed, Kendrick concedes that the trial court’s “decision appears to be legally correct.” (See People v. Garcia, supra, 101 Cal.App.5th at p. 857 [trial court could base its risk determination on seriousness of charged offense and on conviction record].)3 3 Kendrick filed a supplemental brief modifying his argument to now assert that the trial court’s reliance on his criminal history beyond the mere fact of his prior convictions, including its conclusion that his crimes were of “increasing seriousness” was in error. Kendrick argues that such findings must be stipulated or found by the jury under both

section 1170, subdivision (

b) and the Sixth Amendment. (See also People v. Wiley (2025) 17 Cal.5th 1069, 1089–1090.) There is a split of authority in the Courts of Appeal as to whether this requirement applies to individuals such as Kendrick who previously received an upper term sentence, as the plain text of

section 1172.75, subdivision (d)(4) appears to exempt them from this additional factfinding upon resentencing. (Compare People v. Brannon- Thompson (2024) 104 Cal.App.5th 455 [holding that § 1172.75

9 Kendrick’s sole argument on this appeal is that the trial court abused its discretion by not reducing his sentence due to his good conduct and record of rehabilitation while incarcerated after the court decided to adopt the upper term. There is no statute that mandates further consideration of postconviction conduct—or other potentially mitigating factors—to reduce a sentence after the court has elected to adopt a specific term level. While

section 1172.75, subdivision (

d) does identify “postconviction factors, including . . . the disciplinary record and record of rehabilitation” as possible considerations in resentencing after striking the now-invalid enhancement for priors, this consideration is not mandatory, nor is it specifically germane to the application of

section 1170, subdivision (

b) as imposes a fact finding requirement only for individuals who are resentenced to an upper term for the first time upon resentencing]) with People v. Gonzalez (2024) 107 Cal.App.5th 312, 329–330 [holding that § 1172.75 should be read to require additional fact finding for any individual who receives an upper term sentence].) The California Supreme Court has granted review in People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903, to resolve this conflict. The Second District has already endorsed the Sixth District’s

interpretation in Brannon-Thompson in several published decisions. (See, e.g., People v. Moss (2026) 120 Cal.App.5th 375, 380 [disagreeing with Gonzalez and acknowledging split of authority and Supreme Court review]; People v. Dozier (2025) 116 Cal.App.5th 700, 716 [disagreeing with Gonzalez and exempting individuals who previously received an upper term from the additional factfinding requirement].) While the Supreme Court may yet resolve this issue in Kendrick’s favor, we have already rejected this alternative argument, and Kendrick’s supplemental briefing does not alter this court’s analysis of the trial court’s resentencing.

10 proposed by Kendrick. The trial court could have considered Kendrick’s postconviction conduct when determining which of the three possible terms to impose. (See § 1170, subd. (b)(4).) Indeed, the record reflects that the trial court did so. However, in the trial court’s estimation, Kendrick’s rehabilitative efforts over the past five and a half years did not reflect “a lot of self- improvement,” and were not sufficient for the court to find that his postconviction conduct outweighed his criminal history when landing on an appropriate sentence. (See People v.

Buford (2016) 4 Cal.App.5th 886, 914 [“We also agree a trial court may properly deny resentencing . . . based solely on immutable facts such as a petitioner’s criminal history . . . ‘if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Italics omitted.]’ ”].) Therefore, notwithstanding Kendrick’s positive postconviction record, we cannot find that the trial court’s decision not to weigh this conduct more heavily in its sentencing decision was arbitrary or capricious, as an abuse of discretion requires. (See, e.g., People v.

Garcia, supra, 101 Cal.App.5th at p. 857 [trial court could base its risk determination on seriousness of charged offense and on conviction record].) While every jurist may weigh these factors differently, such “weighing of evidence showing dangerousness versus evidence showing rehabilitation[ ] lie within the court’s discretion,” and it is not for an appellate court to reweigh. (People v. Buford, supra, 4 Cal.App.5th at p. 899.) We therefore hold that the trial court did not abuse its discretion in its sentencing decision.

11 DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS OCHOA, J.* We concur: EGERTON, Acting P. J. HANASONO, J. * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to

article VI,

section 6 of the California Constitution.

Document details

Collection	California Superior Local Rules
Citation	B341255
Type	court_rule
Language	en
Format	pdf
Source	CA_LOCAL
Identifier	6d03bf7250069b1b536053f5966544d1286d4479

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