California Court of Appeal Jun 4, 2025 No. E083532Unpublished
Filed 6/4/25 P. v. McPherson CA4/2
See attached concurrence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083532
v. (Super.Ct.No. SWF1400428)
DAVID RONALD MCPHERSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Britton B. Lacy and Kristen Kinnaird
Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant David Ronald McPherson appeals from the trial court’s
decision affording him some resentencing relief under Penal Code section 1172.1,1
subdivision (a)(1), but declining to strike his 5-year “nickel prior” serious felony
enhancement (§ 667, subd. (a)). At resentencing, the court reduced by eight months
defendant’s original sentence of 16 years eight months, despite noting “a list of prior
parole violations . . . more numerous than I can count” and an absence of “remorse or
misgivings for the extensive criminal behavior that led him to this prison commitment.”
As we explain post, defendant fails to establish the court abused its discretion in
declining to strike his nickel prior. Nor did the court err in not ordering a probation
report for the hearing. We therefore affirm the trial court’s resentencing order.
BACKGROUND
In October 2017, to resolve charges on 15 felony counts and two misdemeanors,
with six prior prison terms alleged, plus a prior serious felony, and a prior strike for
assaulting a peace officer with a weapon, defendant agreed to plead guilty to all counts
and admit the priors in exchange for a sentence of 16 years eight months. Defendant’s
exposure before reaching the agreement had been 49 years eight months in prison.2
1 All further statutory references are to the Penal Code, unless specified otherwise.
2 Specifically, defendant pled guilty to: seven counts of taking a vehicle without the owner’s consent as a repeat offender (counts 1, 2, 4, 5, 9, 10, 11; Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a)); burglary (count 3; Pen. Code, § 459); two counts of evading arrest (counts 6, 8; Veh. Code, 2800.2); robbery with the personal use of a dangerous or deadly weapon (count 7; Pen. Code, §§ 211, 12022, subd. (b)(1), 1192.7, subd. (c)(23)); two counts of being a convicted felon and narcotics addict in [footnote continued on next page]
2
At sentencing, the trial court explained that the math for the plea terms it and the
parties had discussed was off by eight months, which, unmodified, would result in a
sentence of 16 years. In order to “get to” a total term of 16 years eight months, the court
offered to also resolve in that aggregate sentencing figure defendant’s pending probation
violation case—in essence sentencing defendant to an “additional eight months [for] his
probation case” (case No. SWF1201190). In that case, the underlying conviction was for
purchase/receipt of stolen property, apparently a trailer (§ 496d, subd. (a)). The court’s
comments indicate it believed defendant had entered a plea agreement for a term of six
years for that offense, which was suspended in favor of granting defendant probation.
Defendant agreed with the court’s proposal to include his probation case in the indicated
sentence.
The trial court then sentenced defendant to the agreed, aggregate term of 16 years
eight months on both cases. The court’s calculation and imposition of the total sentence
included, from defendant’s original case (case No. SWF1400428), defendant’s prior
strike to double the terms imposed, plus five years for his nickel prior, and all six of the
possession of a firearm (counts 12, 14; Pen. Code, § 29800, subd. (a)(1)); possession of methamphetamine in jail (count 13; Pen. Code § 4573); possession of methamphetamine while armed with a loaded gun while released on bail (count 15; Health & Saf. Code, § 11370.1; Pen. Code, § 12022.1); misdemeanor obstructing an officer (count 16; Pen. Code, § 148, subd. (a)(1)); and misdemeanor possession of methamphetamine (count 17; Health & Saf. Code, § 11377, subd. (a)).
Defendant’s admitted priors consisted of six previous prison commitments (§ 667.5, subd. (b)), a prior serious felony conviction (§ 667, subd. (a)), and a strike prior for assaulting a peace officer with a weapon (§§ 245, subd. (c), 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
3
prison priors remained stricken. Also in defendant’s favor at sentencing, the court
dismissed charges in three pending misdemeanor cases.
In October 2023, the Office of the Secretary of the California Department of
Corrections and Rehabilitation (CDCR) recommended in a letter to the superior court that
the court consider recalling defendant’s sentence under section 1172.1, subdivision (a)(1),
and resentencing him. Defendant’s “earliest possible release date” under his current
sentence was January 16, 2026. The letter also highlighted that while courts previously
had been barred from striking prior serious felony conviction enhancements (§ 667,
subd. (a)), they were now permitted to do so (§ 1385).
The Secretary’s letter included a summary of defendant’s commitment offenses in
both case numbers under which he was sentenced, his lengthy prior criminal history and
repeated parole violations, plus numerous certificates for training defendant received in
prison, positive work supervisory reports, and milestones reached. The letter noted two
positive “General Chrono[s]” during defendant’s six years of incarceration, one for
participating in “Criminal and Gang Members Anonymous” (CGA) for 12 weeks, and the
other for completing 15 sessions of parenting classes. Defendant had “remained
disciplinary free during this term of incarceration” and had “no active or potential holds,
warrants, or detainers.”
Notified that CDCR recommended him for resentencing consideration, defendant
filed a brief requesting a sentence reduction to an aggregate term of 11 years eight
months, to be achieved by striking his nickel prior. Defendant added to CDCR’s letter for
the court’s consideration only a photograph of himself in an embrace with a person with
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whom he had found “stability in a relationship,” who could “facilitate housing” if he
were released from custody.
The court agreed to recall defendant’s sentence and to reduce defendant’s
sentence, but not by as much as he sought. The court made several observations in
reaching its conclusion, including the following in defendant’s favor: “He has completed
numerous college courses. He has completed numerous trainings. He has also remained
discipline free during his term of incarceration. [A]nd there are no pending disciplinary
actions.”
The court commented, however: “What does not appear anywhere, which
disappoints me, is any attestation as to whether or not Mr. McPherson has ever expressed
remorse or misgivings for the extensive criminal behavior that led him to this prison
commitment. [T]here’s nothing in here from any counselors or therapists or anybody else
to indicate the defendant has done anything to address the particular genesis or
motivating factors that led to the extensive number of criminal convictions.”
The court noted further: “The documentation . . . includes a list of prior parole
violations which were more numerous than I can count. What that tells me is that in the
past, after previous incarcerations, the defendant has repeatedly violated parole and been
returned to state prison on at least ten occasions, as I count, in this particular case. The
Department of Corrections provides no information to the Court whatsoever to give the
Court confidence that that won't reoccur if he were released early.” Also concerning to
the court in “regards to the prior convictions, there [is] violence. There is a violent
5
conviction involving the robbery in which the defendant used a hammer to physically
assault the victim of that robbery.”
In a colloquy with the court, defendant’s attorney conceded “a lack of remorse in
the documents submitted by the prison,” but offered, “I think he does have remorse.”
Counsel shared that “[w]hen I spoke with him on the phone, his words were, I quote, ‘I’m
63. I’m done with this shit,’ . . . and I believe him.” The court responded, “Taking that at
face value, that doesn’t necessarily show remorse. That just shows fatigue.”
The court concluded it “d[id] not find cause to strike the five-year prior” given
“the seriousness of the prior conduct and the lack of—again, stated remorse or change
that I see within the Department of Corrections filing.” The court, however, did modify
defendant’s eight-month sentence component from the probation violation case to be
served concurrently instead of consecutively, “for a total prison commitment of sixteen
years.”
DISCUSSION
Defendant contends the trial court erred by not striking his nickel prior. As
defendant concedes, our review is under the deferential abuse of discretion standard.
(People v. Carmony (2004) 33 Cal.4th 367, 375; see People v. Brooks (2020)
53 Cal.App.5th 919, 926-927 [trial court does not abuse its discretion when it focuses on
“a valid sentencing objective as having more import than another”].) Under that
standard, the appellant must show the trial court ruled in an “ ‘arbitrary, capricious or
patently absurd’ ” manner” and “no reasonable person could agree with it.” (Carmony, at
pp. 376-377.) Defendant does not meet his burden; we find no abuse of discretion.
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Defendant contends the trial court’s decision “was ‘arbitrary’ because it [was] . . .
based on the lack of an ‘attestation of remorse’ in the CDCR’s recommendation—
something that was not asked for, investigated or evaluated by the CDCR.”
As the People point out, however, defendant was not limited by CDCR’s
documentation, but could, and did, submit his own—but chose only to submit a
photograph. Section 1172.1, subdivision (a)(5), provides that on resentencing, the court
must consider postconviction factors, and those include “evidence that reflects that
circumstances have changed since the original sentencing so that continued incarceration
is no longer in the interest of justice.” Whether the defendant is remorseful is an
appropriate sentencing consideration. (See, e.g., People v. Key (1984) 153 Cal.App.3d
888, 900 [“Where a defendant acknowledges guilt, but shows no remorse, he may be
expected to repeat the criminal conduct under similar circumstances”]; cf. Cal. Rules of
Court, rule 4.414(b)(7) [remorse is an express consideration for probation grant].)
In light of defendant’s extensive criminal history, and in particular that defendant
“returned to state prison on at least ten occasions,” including for parole violations, the
trial court did not abuse its discretion in giving weight to the fact that it did “not appear
anywhere” that defendant “has ever expressed remorse or misgivings for the extensive
criminal behavior” marked again by “this prison commitment.” The court properly
observed “there’s nothing . . . to indicate [he has] done anything to address the particular
genesis or motivating factors” leading to his “extensive number of criminal convictions.”
Defendant’s record, including “parole violations . . . more numerous than [the court
could] count” called out to be addressed, and when defendant did not do so, the court
7
could reasonably find in these circumstances that an absence of evidence of defendant’s
remorse was evidence it was absent. Defendant on appeal goes outside the record to
suggest that “[t]hree of the twelve steps practiced by CGA members are relevant to
remorse.” But even assuming arguendo the trial court was familiar generally with 12-
step programming, including remorse and amends-making, the court could reasonably
find defendant’s brief participation in one self-help course over several weeks was slight
when measured against his record devoid of remorse. We must view the record in light
most favorable to the trial court’s ruling. (People v. Alvarez (2014) 229 Cal.App.4th 761,
774.) As such, we find no abuse of discretion.
Next, defendant argues the trial court erred in failing to require that the probation
department prepare a presentencing report for his resentencing hearing. The court did not
err.
Defendant was ineligible for probation because of his prior strike conviction.
(§§ 667, subd. (c)(2), 1170.12, subd. (a)(2).) A presentence report was therefore
discretionary rather than mandatory. (Cal. Rules of Court, rule 4.411(a); People v.
Campbell (2023) 98 Cal.App.5th 350, 385; see People v. Dobbins (2005)
127 Cal.App.4th 176, 180 [“case law has recognized that a probation report is not
necessarily required if [the] defendant is statutorily ineligible for probation, for example,
because of a prior strike”]; see also § 1203, subd. (g) [where defendant “is not eligible for
probation,” the trial court, “in [its] discretion, may direct the probation officer to
investigate all facts relevant to the sentencing of the person”].)
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Defendant argues a presentence report was still necessary based on the rule that
one may be required where the person “[i]s not eligible for probation but a report is
needed to assist the court with other sentencing issues, including the determination of the
proper amount of [a] restitution fine.” (Cal. Rules of Court, rule 4.411(a)(1)(b), italics
added.)
Here, however, restitution was not at issue nor was a report needed for other
sentencing issues. Resisting this conclusion, defendant argues that the “gap in time from
the first sentencing, and dearth of evidence of [his] actual remorse are circumstances that
indicate the report was ‘needed to assist the court.’ ” The court, however, had for its
consideration the information CDCR and defendant submitted. Just six years had elapsed
since defendant’s original sentencing, and he had completed only about a third of his
original sentence. Defendant had done little or nothing to show remorse during this
period and expressed none in his petition supplementing CDCR’s letter. Evidence of
regret for his actions, including the harm he caused his victims or, as the trial court
phrased it, “misgivings” about his decades of criminal conduct, was uniquely within
defendant’s ability to provide. In these circumstances, we see no reason why defendant
could not do so. (Cf. People v. Mower (2002) 28 Cal.4th 457 [burden may properly rest
on defendant to show evidence “ ‘ “peculiarly” within his personal knowledge’ ”].)
Similarly, at least “a timely objection to the absence of a supplemental report would have
permitted the court to consider the issue and order a report or explain why none was
does not meet his burden to establish an abuse of discretion in the trial court’s
resentencing decision.
DISPOSITION
The trial court’s resentencing order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.
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[McPherson, E083532]
FIELDS, J., Concurring.
I fully concur in the majority’s determination as to all issues in this case. I write
separately only to indicate that I believe that the trial court’s imposition of the
subordinate term of eight months concurrent on defendant’s probation violation case is an
unauthorized sentence. In the majority opinion, we note that, upon resentencing, the
court modified “defendant’s eight-month sentence component from the probation
violation case to be served concurrently instead of consecutively.” (Maj. Opn., p.6)
Our penal code explains how we proceed when a person is convicted of more than
one felony. It provides that “[w]hen any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings or courts, and
whether by judgment rendered by the same or by a different court, and a consecutive term
of imprisonment is imposed under Sections 669 and 1170, the aggregate term of
imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and Section 12022.1. The principal term shall consist of
the greatest term of imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The subordinate term for each
consecutive offense shall consist of one-third of the middle term of imprisonment
prescribed for each other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any specific
1
enhancements applicable to those subordinate offenses.” (Pen. Code, § 1170.1, subd.
(a).).1
In People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, the court
explained that “[b]ecause concurrent terms are not part of the principal and subordinate
term computation under section 1170.1, subdivision (a), they are imposed at the full base
term, not according to the one-third middle term formula, even though they are served at
the same time.” Therefore, the trial court’s modification of defendant’s subordinate term
of eight months for the probation violation case, which constituted one-third of the mid-
term of the offense of receiving a stolen vehicle (§ 496d), from consecutive to concurrent,
was unauthorized.
FIELDS J.
1 All further statutory references are to the Penal Code, unless specified otherwise.
2
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in declining to strike the defendant's five-year serious felony enhancement or in failing to order a supplemental probation report during resentencing.
Issues
Did the trial court abuse its discretion by declining to strike the defendant's five-year serious felony enhancement?
Did the trial court err by failing to order a supplemental probation report for the resentencing hearing?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“defendant fails to establish the court abused its discretion in declining to strike his nickel prior. Nor did the court err in not ordering a probation report for the hearing.”
“Whether the defendant is remorseful is an appropriate sentencing consideration.”
“A presentence report was therefore discretionary rather than mandatory.”