California Court of Appeal Oct 23, 2025 No. E084161Unpublished
Filed 10/23/25 P. v. Cullens CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E084161
v. (Super.Ct.No. FVA019991)
BRIAN GARY CULLENS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Jay Moller, 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, Eric A. Swenson and Heather M. Clark,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Brian Gary Cullens appeals from the trial court’s
resentencing decision after it conducted a full resentencing hearing under Penal Code
section 1172.75.1 Defendant contends remand for a new sentencing hearing is necessary
There is no merit to defendant’s claim that the trial court misunderstood the scope
of its sentencing discretion. Defendant insists that the record “lacks any indication” the
trial court was aware of its discretion to impose a lesser firearm enhancement and
“nowhere is there an indication” the court acknowledged such discretion and expressly
rejected it. This approach, however, turns on its head the silent record presumption
governing our appellate review. (Czirban, supra, 67 Cal.App.5th at pp. 1096-1097.)
Absent affirmative evidence in the record that the trial court misunderstood its discretion,
we presume the court correctly understood and applied the law (Evid. Code, § 664),
including the full panoply of its sentencing discretion. (See, e.g., Czirban, at pp. 1096-
7
1097; see also generally People v. Ramirez (2021) 10 Cal.App.5th 983, 1042; People v.
Stowell (2003) 31 Cal.4th 1107, 1114.)
Contrary to defendant’s claim, moreover, the record includes multiple references
positively indicating the court understood its discretion. The hearing commenced with
the prosecutor stating for the record that the court had authority to reduce the firearm
enhancements, even getting “rid of the gun stuff” entirely, and the hearing proceeded with
that outcome as at least a theoretical possibility. The parties and the court contemplated,
for instance, reductions in defendant’s sentence to life terms of just 15 years (by
eliminating all but defendant’s base sentence for his murder conviction) and 25 years
(achievable by adding to a base 15-year life sentence only the 10-year firearm
enhancement that defendant now requests). The court rejected these options. The court
also expressly told defendant that, while it was “normally . . . very, very reluctant to do
anything but what the original trial court did” under the present circumstances, it would
nevertheless “take everything in[to] consideration” and “look at everything,” including
“the enhancements.” Defendant’s enhancements were all solely related to firearms,
belying defendant’s argument the court did not understand its sentencing authority to
reduce them.
For the same reasons, we find no merit in defendant’s alternative argument that he
received ineffective assistance of counsel. Establishing ineffective assistance of counsel
requires two predicate showings. First, the defendant must establish that counsel’s
representation fell below an objective standard of reasonableness, and second, that the
deficient representation was prejudicial, i.e., there is a reasonable probability that but for
8
counsel’s failings, the result would have been more favorable. (In re Neely (1993) 6
Cal.4th 901, 908; Strickland v. Washington (1984) 466 U.S. 668, 687, 694–695.) In this
context, that means a better resentencing outcome for defendant had counsel expressly
sought the 10-year firearm enhancement under section 12022.53, subdivision (b), in lieu
of the 25-year subdivision (d) term that the court reimposed.
In considering an ineffective assistance of counsel claim (IAC), a reviewing court
“need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” (Strickland, supra, 466 U.S. at p. 697; People v.
Fairbanks (1997) 16 Cal.4th 1223, 1241.) That is the case here, where the record reflects
no reasonable probability of success for defendant on his new appellate argument. As
noted, the record indicates the trial court understood its sentencing discretion, including
its authority to reduce defendant’s sentence for his gun enhancements. The court simply
declined to do so. Defendant’s IAC claim therefore fails.2
2 For the sake of completeness, we address a further resentencing claim made by defendant in his opening brief, but left undeveloped. Defendant invokes section 1172.75, subdivision (d)(1), which provides: “Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” As the People point out, defendant did in fact receive a reduced sentence. Accordingly, we do not see how this subdivision is unmet by the court’s resentencing decision or otherwise relevant on appeal. Neither defendant’s opening brief nor his reply illuminate the matter. Defendant’s inchoate claim furnishes no basis to question the trial court’s ruling.
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DISPOSITION
The trial court’s resentencing decision is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly exercised its sentencing discretion during a resentencing hearing under Penal Code section 1172.75 and that the defendant failed to establish ineffective assistance of counsel.
Issues
Whether the trial court misunderstood its discretion to impose a lesser firearm enhancement under Penal Code section 12022.53.
Whether defense counsel rendered ineffective assistance by failing to request a specific firearm enhancement reduction.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“There is no merit to defendant’s claim that the trial court misunderstood the scope of its sentencing discretion.”
“Absent affirmative evidence in the record that the trial court misunderstood its discretion, we presume the court correctly understood and applied the law”
“The record indicates the trial court understood its sentencing discretion, including its authority to reduce defendant’s sentence for his gun enhancements. The court simply declined to do so.”