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March 30, 2026 Get Citation Alerts Download PDF Add Note

People v. Nielsen

California Court of Appeal

• Citations: None known

• Docket Number: A170363

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (74.3K)

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Combined Opinion

Filed 3/30/26 (see dissenting opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A170363
v.
MARK NIELSEN, (Mendocino County
Super. Ct. Nos. 24CR03321,
Defendant and Appellant.
23CR02514, 23CR02511,
23CR01950)

Defendant agreed to a negotiated disposition of several cases, and the
trial court sentenced him to the upper term in the principal case. Defendant
appeals, arguing the trial court did not understand that it had to apply the
low term presumption in Penal Code 1 section 1170, subdivision (b)(6) (section
1170(b)(6)) when sentencing him. Defendant also contends that the trial
court failed to correctly determine and state his custody credits in one case.
We affirm the judgment.
BACKGROUND
In March 2022, in case No. 23CR02511, defendant suffered convictions
for evading an officer with willful or wanton disregard (Veh. Code, § 2800.2,
subd. (a)) and driving or taking a vehicle without the owner’s consent

1 All further statutory references are to the Penal Code unless

otherwise indicated.

1
(Veh. Code, § 10851, subd. (e)). He was sent to prison and was released on
Post Release Community Supervision (PRCS) in May 2023.
In September 2023, in case No. 23CR01950, defendant pleaded no
contest to a misdemeanor violation of willfully inflicting corporal injury
resulting in a traumatic condition upon his spouse (§ 273.5, subd. (a)). The
court placed him on formal probation for three years.
In October 2023, in case No. 23CR02514, defendant was charged by
information with unauthorized taking or driving a vehicle with qualifying
priors (Veh. Code, §§ 10851, subd. (a), 666.5, subd. (a) (count 1));
misdemeanor unlawfully operating a vehicle without an interlock device
while his driving privileges were restricted (Veh. Code, § 23247, subd. (e)
(count 2)); and misdemeanor driving when his license was suspended or
revoked for a driving-under-the-influence offense (Veh. Code, § 14601.2,
subd. (a) (count 3)). The People alleged that defendant suffered two prior
convictions pursuant to Vehicle Code section 14601.2, subdivision (d)(2), and
further alleged several circumstances in aggravation under California Rules
of Court, rule 4.421.
In January 2024, in case No. 24CR03321, defendant was charged by
information with transport or sale of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a) (count 1)). The People alleged an out-on-bail enhancement
(§ 12022.1) and numerous circumstances in aggravation under California
Rules of Court, rule 4.421.
Also in January 2024, defendant was charged by a third amended
second petition for revocation of PRCS in case No. 23CR02511 with several
violations of law and failures to report to probation, committed on various
occasions. And in case No. 23CR01950, the People filed a third amended

2
petition similarly alleging a probation violation based on several violations of
law and failures to report to probation, committed on various occasions.
In case No. 23CR02514 and pursuant to a global disposition, defendant
pleaded no contest to count one (Veh. Code, § 10851, subd. (a)), and he
admitted the section 666.5 priors and four circumstances in aggravation
under California Rules of Court, rule 4.421(b)(2)–(5). In case No. 24CR03321,
pursuant to the global disposition, defendant pleaded no contest to added
count two for possession for sale of methamphetamine (Health & Saf. Code,
§ 11378).
In case No. 23CR02511, the court found a PRCS violation based on the
pleas in case Nos. 23CR02514 and 24CR03321, and the court likewise found a
violation of probation in case No. 23CR01950. 2
Before sentencing, defendant submitted a report from a substance
abuse specialist, several letters, and certificates from courses that he had
completed. The substance abuse specialist’s report detailed defendant’s
history of substance abuse and trauma. The report conveyed, “[Defendant]
states that he was a victim of physical, emotional, mental abuse, and severe
neglect as a child. [Defendant] reports that he has never received counseling
and believes his using is directly related to his childhood trauma.” Defendant
disclosed that his “rite of passage” was using and dealing drugs because his
father and uncles “were heavy users and drug dealers.” (Ibid.)
Defendant’s stepsister wrote a letter describing defendant’s childhood.
She met defendant when he was five and his two brothers were teenagers.
She explained that defendant’s father was an addict and he gave “the teenage

2 A fifth case in which defendant was alleged to have violated a court

order to prevent domestic violence (§ 273.6) was dismissed as a part of the
global disposition.

3
boys,” including defendant’s older brother, drugs when they were young to go
and rob homes and bring the stolen items back to him. Defendant’s father
paid the kids in drugs or money. Defendant’s oldest brother, who was
verbally abusive, raised defendant, and defendant’s mother was an alcoholic
who worked long hours. In her letter, defendant’s stepsister asked that the
court give defendant a chance to get the help and treatment he deserved, and
she stated, “[Defendant’s] child[hood] trauma has led him to live the only way
he knows how!”
In the presentence report for principal case No. 23CR02514, probation
marked five factors in aggravation (Cal. Rules of Court, rule 4.421(b)(1)–(5))
and one factor in mitigation. As the mitigating factor, probation stated
defendant “suffers from poly-substance addiction (mainly
methamphetamine), which could have contributed to the instant offense.”
The probation officer listed defendant’s history of drug use, his father’s abuse,
defendant’s 29 prior criminal convictions, and his state prison sentence for
two felony convictions two years prior. Probation believed that there were no
factors overcoming defendant’s presumptive ineligibility for probation and
that a split sentence with mandatory supervision was not appropriate given
defendant’s poor prior performance on probation and PRCS. Probation
recommended that the court sentence defendant to the upper term of four
years in prison in case No. 23CR02514.
At the sentencing hearing in February 2024, defense counsel requested
that the court commit defendant to a residential substance abuse treatment
program. Defendant also read a letter to the court in which he requested a
chance for drug treatment and stated that his “drug use [was] the reason for
[his] criminal history in full.”

4
The prosecutor argued for the upper term sentence. The prosecutor
noted that defendant had admitted several circumstances in aggravation and
had a lengthy criminal history. He observed that the probation report only
mentioned one circumstance in mitigation and “the aggravating
circumstances outweigh that both in numbers as well as significance.”
Additionally, the prosecutor argued that the court should not impose a split
sentence with mandatory supervision (§ 1170, subd. (h)(5)) because of
defendant’s criminal history and numerous PRCS and probation violations.
The court announced that it had reviewed the probation report and
defendant’s submissions. Addressing defendant, the court acknowledged the
“drug addiction cycle,” and continued, “I understand your history. I
understand you have had a pretty traumatic childhood based on the letters I
have reviewed.” The court said that when defendant was released on bail in
case No. 23CR02514, it had hoped he would show behaviors consistent with
trying to get his life on track, but he instead committed another crime. The
court found that defendant’s criminal history with six prior felonies was “very
lengthy” and did “not appear to have any break, really, in criminality from
the time [defendant was] a juvenile until [that day].” Given defendant’s
numerous prior felonies and his history of “nothing but failure to report,
failure to follow through and getting sent to local prison commitments,” the
court stated that it would not grant probation, it denied mandatory
supervision, and it sentenced defendant to the upper term of four years in
Mendocino county jail (local prison) in the principal case No. 23CR02514.
In case no. 24CR03321, the court denied a split sentence with
mandatory supervision and imposed a two-year middle term jail sentence
concurrent to the principal term.

5
In case no. 23CR02511, the court terminated defendant’s PRCS as
unsuccessful and imposed a 180-day sentence in Mendocino county jail with
credit for 59 days, concurrent to any other sentence. The court also
terminated defendant’s probation in case no. 23CR01950 as unsuccessful and
ordered him to serve 60 days in Mendocino county jail with 30 days of credit,
concurrent to any other sentence.
Defendant timely appealed the court’s sentencing order.
DISCUSSION
I. Section 1170(b)(6)
Defendant argues that remand is required because it is at best
ambiguous whether the court understood section 1170(b)(6)’s statutory
obligation to consider the presumptive lower term where defendant’s
childhood trauma contributed to the offense. The People disagree, arguing
that nothing in the record affirmatively shows the court misunderstood its
sentencing discretion. The parties also debate whether the record contains
an initial showing that defendant’s childhood trauma was a contributing
factor to the principal offense. (People v. Fredrickson (2023) 90 Cal.App.5th
984, 992 (Fredrickson) [some initial showing must be made to section
1170(b)(6) presumption].) We conclude that defendant made a sufficient
initial showing to trigger section’s 1170(b)(6) presumption, but the record
does not raise serious doubts or show that the court was unaware of, or failed
to apply, section 1170(b)(6). (People v. Caparrotta (2024) 103 Cal.App.5th
874, 905 (Caparrotta).) 3

3 Given our conclusion, we do not address defendant’s additional claims

that his sentencing challenge is not subject to forfeiture or that his trial
counsel rendered ineffective assistance by not objecting to the court’s alleged
failure to apply the low term presumption under section 1170(b)(6).

6
We review a court’s sentencing choices for abuse of discretion. (See
Fredrickson, supra, 90 Cal.App.5th at p. 988.) A defendant is entitled to a
sentencing decision made in the exercise of informed discretion, and a court
that is unaware of the scope of its discretion cannot exercise informed
discretion. (People v. Salazar (2023) 15 Cal.5th 416, 424.) We presume the
court knows and applies the applicable law, absent evidence to the contrary.
(People v. Ramirez (2021) 10 Cal.5th 983, 1042; see also People v. Ochoa
(2020) 53 Cal.App.5th 841, 852 [appellate court assumes trial court
understood and properly exercised its sentencing discretion, and error will
not be presumed from a silent record]; Cal. Rules of Court, rule 4.409
[“[U]nless the record affirmatively reflects otherwise,” appellate court
presumes sentencing court considered all relevant factors in California Rules
of Court].) The burden is on the party attacking the sentence to show the
court misunderstood its sentencing authority. (Fredrickson, supra,
90 Cal.App.5th at p. 988.)
Effective January 1, 2022, section 1170(b)(1) makes the middle term
the presumptive sentence for a determinate term of imprisonment. (People v.
Flores (2022) 73 Cal.App.5th 1032, 1038.) Section 1170(b)(2) authorizes an
upper term sentence “only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment 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.” And section
1170(b)(6) provides that, notwithstanding section 1170(b)(1), “unless the
court finds that the aggravating circumstances outweigh the mitigating
circumstances [so] 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

7
the following was a contributing factor in the commission of the offense: ¶ The person has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
As applicable here, to trigger section 1170(b)(6)’s presumption,
defendant must point to some initial showing in the record that his childhood
trauma was a “ ‘contributing factor’ ” in the commission of the offense.
(Fredrickson, supra, 90 Cal.App.5th at p. 991.) Fredrickson suggested a
sufficient initial showing is made when the “record and/or arguments are
sufficient to put a trial court on notice,” or where the record contains a “clear
indication” that a defendant’s childhood trauma may have been a
contributing factor in his or her commission of the underlying offense. (Id. at
p. 994.)
The requisite initial showing was made here. The presentence report
did not check the box under mitigating circumstances to indicate that “[t]he
defendant experienced . . . childhood trauma . . . and it was a factor in the
commission of the crime.” However, defendant’s sentencing submissions
showed that he suffered abuse and trauma in childhood, including because
his father and uncles “were heavy users and drug dealers” and using and
dealing of drugs was a “rite of passage.” Defendant stated that “his [drug
use] is directly related to his childhood trauma,” his “drug use [was] the
reason for [his] criminal history in full,” and probation acknowledged that
defendant’s drug addiction could have contributed to the crime. Defendant’s
stepsister submitted details about his traumatic childhood, including that
defendant’s father gave the “teenage boys” drugs to rob homes and bring
stolen items back to him. She wrote, “Please let my brother get the help he
deserves as his child[hood] trauma has led him to live the only way he knows
how!” The record thus contains a sufficient initial showing to establish that

8
defendant’s childhood trauma contributed to his drug addiction and to his
convictions in this case.
We nonetheless reject defendant’s claim that remand is required
because it “is ambiguous, at best” whether the court was aware of its
statutory obligations under section 1170(b)(6). Defendant relies on
authorities addressing different sentencing laws that conclude remand is
appropriate where the record affirmatively, but perhaps not conclusively,
suggests the trial court misunderstood the scope of its sentencing discretion—
i.e., where the record is ambiguous and raises “serious doubts” about the
court’s understanding of its sentencing discretion. (People v. Ochoa, supra,
53 Cal.App.5th at pp. 852–854 [statutory obligation to consider “youth-
related mitigating factors” in sentencing minor defendant who committed
first degree murder]; People v. Panozo (2021) 59 Cal.App.5th 825, 839
(Panozo) [statutory obligation to consider defendant’s service-related
posttraumatic stress disorder as mitigating factor for probation and
sentencing].) For the reasons set forth below, the record here fails to raise
“serious doubts” (People v. Ochoa, at p. 854) about the court’s understanding
of its sentencing discretion.
First, although the court did not make an express finding that
childhood trauma was a factor in the commission of the principal offense at
the sentencing hearing, the record strongly supports an inference that the
court considered it as a mitigating factor. It is true that defense counsel did
not specifically mention section 1170(b)(6), and that probation stated
defendant’s drug addiction could have contributed to the offense but did not
check the box listing childhood trauma as a mitigating factor. However,
defendant’s sentencing submissions clearly conveyed that his childhood
trauma led to his drug addiction and crimes. And indeed, defendant concedes

9
that probation’s opinion that defendant’s “poly-substance addiction could
have contributed to the offense[s] . . . is tantamount to an express finding
that [defendant’s] childhood trauma played a role in his offense.” The trial
court stated that it understood “the drug addiction cycle,” defendant’s history,
and that he had a traumatic childhood based on the letters submitted. It also
stated, “I read the letters, I understand and listen to the arguments and your
letter, I am empathetic to your situation,” and the court’s sentencing minute
order provides: “Factors in mitigation vs. aggravation stated.” On this
record, defendant appropriately concedes that the court understood his
childhood trauma was a mitigating factor. 4
Next, defendant claims that it is ambiguous whether the court
understood that section 1170(b)(6) made the low term presumptive because
the court expressly mentioned his childhood trauma but did not cite section
1170(b)(6) or make express findings thereunder. We disagree. After
discussing defendant’s drug addiction and childhood trauma, the court
detailed defendant’s extensive criminal history, which had no “break, really,
in criminality from the time [defendant was] a juvenile until today.” Nothing
in the court’s acknowledgement of defendant’s childhood trauma suggests
that it misunderstood its obligation to apply section 1170(b)(6), particularly
when this acknowledgement was followed by a recitation of factors such as
defendant’s commission of yet another offense (case No. 24CR03321),
defendant’s “very lengthy[,]” uninterrupted criminal history, and his history

4 After the enactment of the 2022 amendments to section 1170(b), the

following is a mitigating factor under the California Rules of Court: “The
defendant experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence
and it was a factor in the commission of the crime[.]” (Cal. Rules of Court,
rule 4.423(b)(3).)

10
consisting of “nothing but failure to report, failure to follow through,” and
custodial sentences. 5 (See Caparrotta, supra, 103 Cal.App.5th at p. 905.)
Instead, the record supports the inference that the court considered
defendant’s childhood trauma as a mitigating factor and weighed it against
aggravating factors in the balancing that section 1170(b)(6) requires. In
these circumstances, defendant has not pointed to anything that raises
“serious doubts” or affirmatively indicates that the court misunderstood its
sentencing discretion. (People v. Ochoa, supra, 53 Cal.App.5th at p. 854.)
Furthermore, defendant’s sentencing took place more than two years
after section 1170(b)(6) and the amended requirements for imposing an upper
term sentence under section 1170(b)(2) became effective as part of the same
statute. (See Stats. 2021, chs. 695, § 5, 731, § 1.3.) The trial court here
undisputedly followed section 1170(b)(2) by accepting defendant’s admissions
to the aggravating factors that the People had alleged against him during the
plea hearing and subsequently considering those factors to impose the upper
term. The 2022 amendments to section 1170(b) constituted significant
changes to determinate sentencing procedures (People v. Falcon (2023)
92 Cal.App.5th 911, 918, 925 [2022 amendments “significantly altered”
section 1170(b) and the Determinate Sentencing Law], disapproved on other
grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769); the fact that
the court followed the amendments to section 1170(b)(2) suggests that it
understood the law and did not overlook section 1170(b)(6), a provision that
plainly appears within amended section 1170(b). Defendant has not
persuaded us that the court understood its obligations under

5 The dissent views the court’s statements as providing only reasons for

rejecting probation, but we do not think this is a fair reading of the record.
The court’s minute order indicates “[f]actors in mitigation vs. aggravation
stated,”

11
subdivision (b)(2), but inexplicably declined to read further down the page (or
screen) to take in (b)(6).
Although not factually on all fours, we find Caparrotta, supra,
103 Cal.App.5th 874, a case relied on by defendant, to be analogous.
Caparrotta expressly argued section 1170(b)(6)’s presumption applied
because of his childhood abuse in his sentencing memorandum, and the trial
court imposed the middle term after stating that it had considered the
aggravating and mitigating factors. (Id. at pp. 904–905.) He argued the trial
court erred because it failed to specifically reference the section 1170(b)(6)
presumption or make express findings thereunder. (Ibid.) The appellate
court disagreed, concluding that “nothing in the record establishes that the
trial court was unaware of its obligations under . . . section [1170(b)(6)] or
that it failed to apply that provision. ‘In the absence of evidence to the
contrary, we presume that the court “knows and applies the correct statutory
and case law.” ’ [Citation.] Thus, although the trial court did not specifically
mention . . . section [1170(b)(6)], it is presumed to have known of the
provision. Moreover, because Caparrotta highlighted . . . section [1170(b)(6)]
in his sentencing memorandum, we presume that the trial court was aware
Caparrotta was seeking to benefit from that provision.” (Id. at p. 905.)
Caparrotta rejected the argument that a trial court must expressly state that,
weighing the applicable factors, the “ ‘imposition of the lower term would be
contrary to the interests of justice.’ ” (Id. at p. 906 & fn. 14.)
We acknowledge that, unlike in Caparrotta, defendant did not submit a
sentencing memorandum expressly arguing that section 1170(b)(6) applied.
Unlike the dissent (Dissent, pp. 4–5), however, we do not find this difference
dispositive. This is because defendant’s sentencing materials discussed his
childhood trauma and set forth how his childhood trauma led to his crimes

12
such that the trial court was “on notice” (Fredrickson, supra, 90 Cal.App.5th
at p. 994) that defendant’s childhood trauma may have been a contributing
factor to the crimes in this case. Faced with circumstances that were
sufficient to put the court on notice (as set forth in defendant’s submissions,
which the court stated it had considered), the record supports the inference
that the court recognized and treated defendant’s childhood trauma as a
mitigating factor, and nothing in the record suggests the court was unaware
of section 1170(b)(6). 6
Finally, relying on Fredrickson, defendant seems to suggest that we
should remand this case for a new sentencing hearing because the court did
not make express findings on the record under section 1170(b)(6). The
dissent seems to agree, critiquing the court’s failure to expressly state that
“childhood trauma was a contributing factor to the commission of the felony
offenses” and the aggravating circumstances outweigh the mitigating
circumstances so that imposition of the lower term would be contrary to the
interests of justice. Per Fredrickson, the record must “affirmatively show
compliance” with section 1170(b)(6) after a defendant makes an initial

6 The dissent concludes this record is akin to the record deemed
ambiguous in Panozo. There, sections 1170.9 and 1170.91 obligated the trial
court to consider qualifying service-related PTSD as a mitigating
circumstance in making discretionary sentencing choices. (Panozo, supra,
59 Cal.App.5th at pp. 834–836.) The defendant argued his crimes were the
byproduct of his service-related PTSD, but the sentencing briefs and
arguments did not reference sections 1170.9 or 1170.91 or suggest that the
court was obligated to consider service-related PTSD as a mitigating factor.
(Panozo, at pp. 837–838.) Importantly—and in stark contrast to this case —
the trial court in Panozo listed the mitigating and aggravating factors it
considered on the record, but the defendant’s service-related PTSD was not
among them. (Id. at pp. 838–839.) The record before us does not “strongly
suggest[] the trial court was unaware of its mandatory sentencing
obligations” (id. at p. 832) as did the record in Panozo.

13
showing triggering the statutory presumption (Fredrickson, supra,
90 Cal.App.5th at p. 992), and Fredrickson suggests that trial courts are
obligated to make express findings under section 1170(b)(6). (E.g.,
Fredrickson, at p. 993 [“Prior caselaw does not clarify what initial showing
would be sufficient to obligate a trial court to make an express finding
regarding the [s]ection 1170(b)(6)(B) lower term presumption”].) Fredrickson
held that a defendant must make an initial showing of section 1170(b)(6)’s
applicability to trigger the low term presumption and the requirement of an
affirmative showing of compliance with the statute, and concluded that
Fredrickson had failed to meet her initial burden. (Id. at pp. 992, 994.)
Fredrickson’s reference to a trial court making “express finding[s]” after a
defendant’s initial showing was therefore dictum, which the dissent does not
dispute.
We decline to hold that a trial court’s failure to make express findings
under section 1170(b)(6) requires remand regardless of whether the record
affirmatively demonstrates that the trial court misunderstood the scope of its
sentencing discretion, because defendant has not squarely asked us to do so.
The argument defendant pursues is that “the record is at least ambiguous
that the court understood section [1170(b)(6)]’s statutory obligation to
consider the presumptive low term where a super mitigant contributed to the
offense.” The answer to the question of whether a trial court must make
specific express findings under section 1170(b)(6) is not so obvious that we
deem it prudent to resolve the issue in the absence of reasoned briefing
squarely addressing the issue. Section 1170 requires a statement of “facts
and reasons” or “reasons” supporting a court’s sentencing choice (id. at
subds. (b)(5), (c)), and defendant does not maintain that the trial court
violated this provision. Where a statute requires a statement of reasons,

14
court rules require a judge to “state in simple language the primary factor or
factors that support the exercise of discretion,” and provide “[t]he statement
need not be in the language of the statute or these rules.” (Cal. Rules of
Court, rule 4.406.) Relevant factors enumerated in the California Rules of
Court will be deemed to have been considered by the court unless the record
affirmatively reflects otherwise (id. at rule 4.409), and Caparotta rejected the
argument that section 1170(b)(6) requires a court to make an express finding
that “ ‘imposition of the lower term would be contrary to the interests of
justice.’ ” (Caparotta, supra, 103 Cal.App.5th at p. 906 & fn. 14.) Defendant
acknowledges Caparotta’s rejection of an express finding requirement, and
discusses neither of the applicable Rules of Court. While Fredrickson can be
read to suggest that express findings tracking the statutory language are
required after the initial showing is made, the holding of Fredrickson did not
go so far because the court ultimately held that Fredrickson failed to make
the requisite initial showing. (Fredrickson, supra, 90 Cal.App.5th at p. 994.)
Formal incantation of the statutory language is unnecessary where the
record shows, in substance, that the court followed the dictates of the statute.
In sum, we do not agree with defendant’s claim that the record raises
serious doubts that the court understood the scope of its sentencing
discretion. “Absent evidence to the contrary, we presume that the trial court
knew the law and followed it.” (People v. Ramirez, supra, 10 Cal.5th at
p. 1042.)
II. Custody Credits
Defendant next contends that the court failed to state his actual and
conduct credits in case No. 23CR01950 when it terminated his probation and
ordered him to serve 60 days in county jail concurrent to “any other
sentence.” The People believe this issue is moot because the court terminated

15
defendant’s probation and this court cannot grant any effective relief.
Defendant responds that he was sentenced in multiple cases and he is still
serving time, so “it is possible” a correction of credits could affect his release
date, although he makes no effort to explain how this would occur. Because
the concurrent 60-day jail sentence at issue would have been completed by
the date of this appeal even without any custody credits, we agree with the
People that the issue of custody credits for case No. 23CR01950 is moot. 7
DISPOSITION
The judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.

People v. Nielsen (A170363)

7 Defendant made additional arguments regarding alleged deficiencies

in the court’s calculation of actual and conduct credits in case No. 24CR03321
and in case No. 23CR02511 in his opening brief. In his reply brief, defendant
conceded that the augmented record in this case shows a “partial correction”
of his credits, and he pursued only the argument that the court failed to state
his actual and conduct credits on the record in case No. 23CR01950.
Defendant also conceded arguments that challenged the validity of his plea
after the People pointed out that he had not obtained a certificate of probable
cause. We do not address the claims defendant has conceded.

16
GOLDMAN, J., Dissenting.
I disagree with the majority’s repudiation of the standard our
Division Five colleagues set forth in People v. Fredrickson (2023)
90 Cal.App.5th 984, 991 (Fredrickson); namely, that the record “must
‘affirmatively’ show compliance with [the] statutory sentencing mandate”
when it has been triggered “by an ‘initial showing’ of the applicability of the
statute.” On the record before us, I find the odds that the trial court silently
applied the lower term sentencing presumption under section 1170(b)(6)
before imposing the upper term sentence recommended by the probation
department vanishingly small. No one mentioned it. The probation report
did not identify childhood trauma as a mitigating circumstance, and defense
counsel did not object or argue that it was. On appeal, the Attorney General
maintains the trial court properly “made no finding” that childhood trauma
was a contributing factor to the offense because there was insufficient
evidence of a connection. While I agree with the majority that, contrary to
the Attorney General’s argument, there was enough evidence to trigger the
presumption, I cannot join its supposition that the trial court must have
reached the same conclusion when no one even raised the issue. I would
remand so the trial court can afford Nielsen the sentencing consideration
that the Legislature has prescribed in this circumstance.
I.
A.
In articulating the standard of review applicable to a claim that the
trial court failed to apply the lower term presumption under
section 1170(b)(6), Fredrickson followed two cases applying a like standard
under sections 1170.9 and (later also) 1170.91, which require a court to
consider a defendant’s service-related post-traumatic stress disorder (PTSD)

1
as a mitigating factor in evaluating whether to grant probation and in
selecting the appropriate determinate term. (See People v. Bruhn (1989)
210 Cal.App.3d 1195, 1199–1200 (Bruhn); People v. Panozo (2021)
59 Cal.App.5th 825, 836–837 (Panozo).) What those statutes have in common
with section 1170(b)(6) is that they are instances in which the Legislature
determined that courts must consider specific factors that may reduce a
defendant’s culpability or otherwise warrant a reduced sentence. (See Bruhn,
at p. 1199 [noting the Legislature’s “ ‘strong concern [that] emotionally
affected Vietnam veterans be afforded every opportunity to get meaningful
rehabilitative treatment in a facility specifically designed to deal with their
unique and complex disorder’ ”].) Under section 1170(b)(6)(A)–(C), the court
is required to apply a lower term presumption if “any of the following was a
contributing factor in the commission of the offense”: the defendant
experienced psychological, physical, or childhood trauma; the defendant was
a youth at the time the offense was committed; or the defendant is or was a
victim of intimate partner violence or human trafficking. The enactment of
this provision is a legislative declaration that the normal application of the
sentencing triad in those circumstances is inadequate to the Legislature’s
purposes and must be modified by special rules.
Bruhn explained that its requirement that the record affirmatively
show compliance with the statutory mandate respects the strong concern that
the Legislature has expressed for defendants in the specified circumstance.
(Bruhn, supra, 210 Cal.App.3d at pp. 1199–1200.) The record in Bruhn fell
short even though section 1170.9 was “obliquely mentioned” at the sentencing
hearing when the prosecutor referred to it and stated that in a previous case
there had been no program available to receive the defendant. (Bruhn,
supra, 210 Cal.App.3d at p. 1200 & fn. 3.) Noting that “[a]n intelligent

2
exercise of discretion cannot be inferred from a silent record,” it found this
lone reference by the prosecutor insufficient to indicate that the trial court
complied with the statute. (Id. at p. 1200.)
The Panozo court remarked that Bruhn “did not explain what it meant
by a ‘silent’ record,” but observed that the record in the case before it “lacks
even an oblique reference to the relevant statutes and provides no basis to
believe the sentencing court was aware of its mandatory obligations, strongly
suggesting the opposite conclusion.” (Panozo, supra, 59 Cal.App.5th at
p. 837, fn. 13.) The defendant’s sentencing memorandum did not mention
sections 1170.9 and 1170.91, although it did argue that the defendant’s
“PTSD from serving as a Marine in Iraq ‘partially led him to where he is
now,’ ” and asked the court to grant probation and permit him to enroll in
Veteran’s Court. (Panozo, at p. 829.) The probation report mentioned his
military service and PTSD diagnosis, but did not identify them as mitigating
factors. (Id. at p. 830.) The trial court quoted the aggravating and mitigating
circumstances listed in the probation report, found that the aggravating
circumstances outweighed the mitigating circumstances, denied probation
with a referral to Veteran’s Court, and concluded by thanking the defendant
for his service. (Id. at p. 831.) In the Panozo court’s view, the record was
“ambiguous” about whether the trial court was aware of its obligations. (Id.
at p. 840.) On the one hand, the court was “plainly aware that Panozo served
in Iraq, struggled with PTSD and alcohol use, and requested probation and
treatment through Veterans Court.” (Id. at p. 838.) On the other hand,
defense counsel neither cited the applicable statutes nor explained that the
court was required to consider the service-related issues as mitigating
circumstances, and neither the prosecution nor the probation department
acknowledged them as mitigating circumstances. (Id. at p. 839.)

3
B.
Panozo’s conclusion that the record was ambiguous similarly applies to
the record here. Nielsen’s trial counsel did not mention section 1170(b)(6), let
alone offer any argument based on it. The probation report did not include a
check in the box under mitigating circumstances to indicate that “[t]he
defendant experienced . . . childhood trauma . . . and it was a factor in the
commission of the crime.” The prosecutor argued that Nielsen’s substance
abuse, which the probation report identified as the sole mitigating factor, did
not reduce his culpability for vehicle theft, and that “even if the Court were to
find that mitigating circumstance, the—the aggravating circumstances
outweigh that both in numbers as well as significance.” Like Nielsen’s own
counsel, the prosecutor did not mention section 1170(b)(6).
The majority notes that the court referred to Nielsen’s “pretty
traumatic childhood” and expressed empathy for his situation. But as the
Attorney General argues, “this was not a finding that appellant’s childhood
trauma was a contributing factor to the commission of the felony offenses for
which he was convicted.” (See Fredrickson, supra, 90 Cal.App.5th at p. 992
[presumption is not triggered unless the court makes such a finding].) Even
if the court did consider it a mitigating factor, notwithstanding the probation
report’s failure to identify it and defense counsel’s failure to argue it,
weighing that factor without applying the lower term presumption is not
compliance with section 1170(b)(6). It is precisely what the Legislature did
not want trial courts to do when such a mitigating circumstance exists.
Context also matters. At the hearing, Nielsen’s trial counsel addressed
only the probation department’s conclusion that “a straight local prison
sentence seems more appropriate [than probation] given the defendant’s
history.” She argued that a residential rehabilitation program would better

4
serve Nielsen’s needs, and Nielsen himself then read a letter asking the court
to sentence him to an inpatient program. In response, the court explained its
decision to deny probation, referring to an unbroken pattern of “criminality
from the time you were a juvenile until today,” a history of “failure to report,
failure to follow through and getting sent to local prison commitments,” and
“[w]hat is really telling is if you are out of custody . . . and seeking that
treatment and you didn’t do that.” The court concluded: “Again, I am
empathetic to your situation. But based on your criminal history the Court
cannot extend a grant of probation again. There’s just no way. It’s just not
realistic. . . . Drug addiction is a terrible, terrible waste of life. So it brings
me no joy to do this, but I would not grant you probation. I would deny
probation.” At no point did the court explain its reasoning with respect to its
selection of the aggravated term. Without further discussion, it simply
imposed the four-year upper term recommended in the probation report.
That report likewise expressly discussed only why a “straight local prison
sentence” was more appropriate than probation, never purporting to explain
why the upper term was more suitable than the middle or lower term.
The only other thing the majority says about the record is that the trial
court likely “did not overlook section 1170(b)(6)” because the court complied
with subdivision (b)(2) of section 1170, which was added to the statute at the
same time and requires aggravating factors to be proved beyond a reasonable
doubt at trial unless admitted by the defendant. I do not think one can
logically infer from the fact that the trial court did not violate subdivision
(b)(2)—because it accepted Nielsen’s admission of the aggravating factors—
that it applied subdivision (b)(6)’s presumption in favor of the lower term
based on his childhood trauma. As discussed above, the record strongly
suggests otherwise.

5
In addition, Fredrickson observed that “[p]rior caselaw does not clarify
what initial showing would be sufficient” to trigger the presumption under
section 1170(b)(6), and held for the first time that “an initial showing has
been made when the record and/or arguments are sufficient to put a trial
court on notice that a defendant’s [qualifying condition] may have been a
contributing factor in commission of the underlying offense.” (Fredrickson,
supra, 90 Cal.App.5th 984, 993–994, italics added.) If we are to assume the
trial court was aware of and applied that standard in evaluating whether
there was sufficient evidence of a connection between Nielsen’s childhood
trauma and the auto theft for which it imposed the aggravated term, then we
ought also to assume it was aware of Fredrickson’s statement, in the same
paragraph, that the trial court should “make an express finding regarding
the Section 1170(b)(6)(B) lower term presumption.” (Frederickson, at p. 993.)
And yet it did not. While the majority may decide today to reject this aspect
of Fredrickson, in my view it makes little sense to presume the trial court
silently decided to do the same.
Finally, imagine the trial court’s inner monologue implied by the
majority’s reading of the record: “I have noticed an omission in the probation
report that the parties haven’t raised. It doesn’t identify Mr. Nielsen’s
childhood trauma as a mitigating circumstance, and under section 1170(b)(6),
which the parties also haven’t raised, I’m required to apply a presumption in
favor of the lower term if childhood trauma may have been a contributing
factor to the offense. Of course, the prosecutor would probably argue that,
even assuming there was sufficient evidence of childhood trauma, there isn’t
enough evidence that it was a contributing factor to the auto theft, because
that’s what he said about the substance abuse, and perhaps the connection is
even more attenuated with this factor. Defense counsel, who should know

6
the record and the law and has a duty to advocate for her client, hasn’t asked
me to find childhood trauma as a mitigating factor and hasn’t argued that I
need to apply any presumption based on it. But I don’t need to ask the
parties for their views, because it’s clear to me that under the Fredrickson
standard there’s enough evidence here to require the presumption in favor of
the lower term based on childhood trauma. So I’m applying it, and I’m
finding nonetheless that the aggravating circumstances outweigh the
mitigating circumstances such that imposition of the lower term would be
contrary to the interests of justice. And yes, Fredrickson said I should
indicate on the record that I’ve made this finding, but I’m not persuaded
that’s a correct statement of the law, so I won’t.”
I do not think that happened.
C.
The majority relies on People v. Caparrotta (2024) 103 Cal.App.5th 874,
but that case is not on point. There, the defendant’s sentencing
memorandum argued that the lower term presumption under
section 1170(b)(6) applied, and—so far as the opinion discloses—there was no
contention that the evidence was insufficient to trigger it. (Caparrotta, at
p. 905.) That the defendant raised the presumption was an express part of
the court’s holding: “[B]ecause Caparrotta highlighted Penal Code
section 1170, subdivision (b)(6) in his sentencing memorandum, we presume
that the trial court was aware Caparrotta was seeking to benefit from that
provision.” (Caparrotta, at p. 905.) Caparrotta, like Bruhn and Panozo, was
therefore sensitive to the record in a way the majority opinion is not.
Given the contextual reasons in the record to doubt the trial court did
what the majority supposes, I do not agree that the silent record presumption
applies here. It has a proper role to play, but if deployed as a legal fiction

7
that sweeps away relevant context, the only thing it accomplishes is the
evisceration of appellate review. The majority quotes the Supreme Court’s
statement that “[a]bsent evidence to the contrary, we presume that the trial
court knew the law and followed it.” (People v. Ramirez (2021) 10 Cal.5th
983, 1042.) But in Ramirez, which concerned the trial court’s alleged failure
to consider the defendant’s ability to pay before imposing a fine above the
minimum amount, the court noted that the trial court had “considered and
referred to the probation report,” which “stated he had the ability to pay a
$250 probation investigation fee, and recommended that he pay a
$10,000 restitution fee, . . . at least implicitly convey[ing] that defendant’s
ability to pay was a relevant consideration,” and had also “heard the defense
argument, which was that defendant should not have to pay ‘any fine’ ‘in
view of [his] inability to work or have any money from this point onward.’ ”
(Ibid.) Here, unlike in Ramirez or Caparrotta, there was nothing in the
probation report or the defense argument to signal the applicability of the
court’s mandatory duty.
Moreover, it is important to recall that the record here suggests the
prosecutor would have contested the applicability of section 1170(b)(6) had it
been raised, just as the Attorney General does on appeal. Only after we have
adjudicated that disputed legal issue in Nielsen’s favor does it become
relevant for us to consider what, if anything, the record shows about the trial
court’s compliance with the lower term presumption. Even if we assume the
trial court considered section 1170(b)(6) notwithstanding the failure of any
party to call it to its attention, the difficulty for the purposes of our review is
that if the court, in a revised version of the inner monologue above, had
silently resolved the unraised issue of the statute’s applicability against
Nielsen, the record would look exactly the same.

8
The majority cites rule 4.409 of the California Rules of Court , which
provides that “[r]elevant factors enumerated in these rules must be
considered by the sentencing judge, and will be deemed to have been
considered unless the record affirmatively reflects otherwise.” That rule is a
poor fit for this kind of problem. In its paradigmatic application, it simply
means that a trial court’s failure to mention a specific mitigating or
aggravating factor does not establish that the court rejected or failed to
consider it. (See, e.g., People v. Pearson (2019) 38 Cal.App.5th 112, 117;
People v. Nevill (1985) 167 Cal.App.3d 198, 202.) The Advisory Committee
Comment to rule 4.409 states that the rule “applies the presumption of
Evidence Code section 664 that [an] official duty has been regularly
performed.” As applied to judicial officers, Evidence Code section 664
operates as a presumption about what the court did, not how it adjudicated a
non-obvious legal question before it. (See, e.g., People v. Visciotti (1992)
2 Cal.4th 1, 49 [because a defendant’s written waiver of the right to be
present must be obtained in open court, court would presume the trial court
did so]; People v. Sullivan (2007) 151 Cal.App.4th 524, 550 [court presumes
that the trial court “regularly performed the lawful duty of informing
defendant of the dangers and disadvantages of self-representation, and the
consequences of his decision, before accepting his express waiver of his right
to counsel”]; cf. People v. Jeffers (1987) 43 Cal.3d 984, 1000 [presumption does
not apply to uncertain questions of law]; In re Marriage of Jovel (1996)
49 Cal.App.4th 575, 590 [same].) Thus, I do not think rule 4.409 converts
this court’s resolution of the question of the statute’s applicability into a
presumption that the trial court decided the question the same way and then
determined that the upper term should be imposed regardless. That is a

9
reason why the standard of review the court adopted in Fredrickson is better
than the one the majority advances here.
In any event, given the ambiguous record before us, at a minimum I
would find that any presumption under rule 4.409 that Nielsen’s sentence
reflects the trial court’s application of the statute has been overcome, as
Panozo found in the case before it. (Panozo, supra, 59 Cal.App.5th at p. 839.)
II.
To be entitled to relief based on the foregoing discussion, Nielsen would
have to prevail either on his argument that his claim was not forfeited by his
counsel’s failure to raise section 1170(b)(6) in the trial court, or on his
alternative argument that the failure to raise it constituted ineffective
assistance of counsel. Because the majority does not reach these arguments,
I will touch on them only briefly.
A.
In Panozo, the court concluded that the defendant did not forfeit his
claim by failing to object when the court did not list his PTSD as a mitigating
factor. It reasoned that the defendant was not challenging “the manner in
which the trial court exercised its sentencing discretion but rather its
apparent misapprehension of statutory sentencing obligations,” noting that a
court’s failure to comply with mandatory obligations—in that case, the
obligation to consider the defendant’s service-related PTSD—is not subject to
forfeiture. (Panozo, supra, 59 Cal.App.5th at p. 840.) Fredrickson followed
Panozo on this point, concluding that a claim that the trial court failed to
apply the lower term presumption under section 1170(b)(6) is not subject to
forfeiture because the trial court has a mandatory duty to apply the
presumption once it has been triggered by evidence in the record.
(Fredrickson, supra, 90 Cal.App.5th at p. 994, fn. 8.)

10
Without mentioning Fredrickson, the court in People v. Tilley (2023)
92 Cal.App.5th 772, 778 held that the defendant forfeited his claim by failing
to seek the lower term based on section 1170(b)(6), characterizing it as a
claim that the trial court “failed to properly make or articulate its
discretionary sentencing choices.” While forfeiture may well apply to a claim
that the trial court abused its discretion by finding under section 1170(b)(6)
that imposition of the lower term was not in the interests of justice, that was
not the claim the defendant made in Fredrickson, and it is not the claim that
Nielsen makes here. Rather, he claims the trial court failed to comply with a
mandatory duty by neglecting to apply the presumption at all.
Also without mentioning Fredrickson, in People v. Achane (2023)
92 Cal.App.5th 1037, 1044, the court held that the unauthorized sentence
exception to the forfeiture doctrine does not apply to a claim that the trial
court failed to apply the presumption under section 1170(b)(6). Fredrickson,
however, did not rely on the unauthorized sentence exception to conclude that
the claim was not forfeited, and neither does Nielsen here.
Because the contrary authorities are not on point, I would follow
Fredrickson and find that Nielsen’s claim is not forfeited.
B.
Even if the claim were forfeited, I would find it cognizable on appeal
because Nielsen received ineffective assistance of counsel. Because the
evidence warranted the application of section 1170(b)(6), no reasonable
tactical purpose appears for failing to raise the statute, especially given the
recommendation in the probation report that the court impose the upper
term. And there is at least a reasonable probability that the outcome would
have been more favorable to Nielsen had his counsel done so. (People v.
Hardy (2021) 65 Cal.App.5th 312, 329–330 [“A ‘reasonable probability’ ‘does

11
not mean more likely than not, but merely a reasonable chance, more than an
abstract possibility’ ”].) As noted above, the trial court discussed at length its
decision not to extend a grant of probation, but did not explain its reasoning
with respect to the length of the custodial sentence. It imposed the four-year
upper term recommended in the probation report, which had failed even to
identify childhood trauma as a mitigating factor, let alone refer to the lower
term presumption required by section 1170(b)(6). And while the court
mentioned Nielsen’s childhood trauma, consistently with the probation report
it did not connect that trauma to his commission of the offense. Had the
court done so and added the statutory presumption to the balance, there is a
reasonable chance that it would have imposed a different sentence.
For these reasons, I respectfully dissent insofar as the majority denies
Nielsen relief on his claim that the trial court erred by failing to apply the
lower term presumption under section 1170(b)(6).

12
Trial Court: Mendocino County Superior Court

Trial Judge: Hon. Victoria Shanahan

Counsel: Heather L. Monasky, under appointment by the Court of
Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters and Jeffrey
M. Laurence, Assistant Attorneys General, Eric D. Share
and Stephanie F. Richardson, Deputy Attorneys General
for Plaintiff and Respondent.