People v. Bristow CA3
C101275M
Cal. Ct. App.
Apr 23, 2025
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THE PEOPLE, Plaintiff and Respondent, v. DAVID EARL BRISTOW, Defendant and Appellant.

C101275

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)

April 23, 2025

NOT TO BE PUBLISHED. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR201322792)

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed in this case on April 9, 2025, be modified as follows:

On page 2, first full paragraph, delete the second sentence and replace with: “Applying the presumption of correctness to this case, we discern no error. To the extent defendant contends the trial court might have misunderstood the standard to be applied, it was his duty to object or raise this assertion in the trial court. Having failed to do so, we conclude his appellate contention is forfeited.” The full paragraph shall now read:

Defendant now contends that in declining to further reduce his sentence, the trial court abused its discretion in focusing on defendant‘s current dangerousness but not his future dangerousness. Applying the presumption of correctness to this case, we discern no error. To the extent defendant contends the trial court might have misunderstood the standard to be applied, it was his duty to object or raise this assertion in the trial court. Having failed to do so, we conclude his appellate contention is forfeited. We will affirm the judgment.

On page 4, after the first paragraph of the Discussion, insert the following paragraphs:

We review the trial court‘s decision to strike the great bodily injury enhancement, but not the firearm enhancement, for an abuse of its sentencing discretion. (.) ” ’ “[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.” ’ ” ( (Carmony).) A trial court‘s use of ” ‘an incorrect legal standard’ ” demonstrates an abuse of discretion. (, citing .) However, ” ’ “[i]n the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ ” (Carmony, at pp. 376-377.)

Here, defendant contends the trial court‘s failure to expressly rule upon his future dangerousness demonstrates that the court misunderstood its obligation to consider it. However, the record does not affirmatively show that the trial court misunderstood its resentencing obligations. (, 33 Cal.4th at pp. 376-377.) If defendant believed the trial court failed to consider his future dangerousness, it was incumbent upon him to raise the issue in the trial court.

On page 4, delete last full paragraph of the Discussion beginning with “But Defendant did not preserve,” and replace with the following paragraph:

Defendant‘s failure to object to the trial court‘s sentence or assert this contention in the trial court has forfeited this assertion on appeal. (See [“complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal“]; [defendant‘s failure to seek rulings specific to amendments made by Senate Bill No. 567 (2021-2022 Reg. Sess.) forfeited complaints that the trial court did not consider those amendments].) It has also deprived defendant of the record necessary to overcome the presumption of correctness. (, 33 Cal.4th at pp. 376-377.)

This modification does not change the judgment.

The petition for rehearing is denied.

FOR THE COURT:

/S/

ROBIE, Acting P. J.

/S/

MAURO, J.

/S/

FEINBERG, J.

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