People v. Spann CA3 ( 2023 )

Filed 4/28/23 P. v. Spann CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092586
Plaintiff and Respondent, (Super. Ct. No. 17FE012187)
v.
NICORY MARQUIS SPANN,
Defendant and Appellant.
Defendant Nicory Marquis Spann shot Sacramento County Sheriff’s Deputy Alex
Ladwig in the face at a light rail station in Sacramento. Defendant asks us to reverse his
convictions for attempted murder and assault on a peace officer with a semiautomatic
weapon because of prosecutorial misconduct during closing argument. The People
contend defendant forfeited this issue by failing to object and defendant has not
demonstrated his counsel performed ineffectively by not objecting. Defendant also
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argues he should be resentenced because of a retroactive change to the procedures for
selecting upper term sentences. The People respond that the trial court’s failure to follow
the new procedures was harmless. On both issues, we agree with the People.
Accordingly, we will affirm defendant’s convictions and sentence.
BACKGROUND
A. Evidence at Trial
Defendant spent the night in a park after being kicked out of his father’s house.
The next day, he rode the light rail to the Watt Avenue and Interstate 80 station at the end
of the line. Defendant spoke with transit agent Angelah Cannon, who told him he would
have to leave the lower platform where the trains arrived if he did not have a ticket.
Defendant responded: “I don’t trust you. You’re the fucking police.” Cannon led
defendant to the upper platform. Two hours later, she saw him seated on the lower
platform again.
Around the time Cannon saw defendant back on the lower platform, Deputy Alex
Ladwig arrived at the station. Deputy Ladwig worked for the Sacramento County
Sheriff’s Department in the Sacramento Regional Transit Division. His duties included
checking fares at light rail stations, responding to calls from the public or transit agents,
and investigating crimes connected to the light rail system.
While patrolling the light rail station, Deputy Ladwig asked a woman smoking a
cigarette on the lower platform to move to the designated smoking area. Defendant, who
was standing nearby, began moving erratically and yelling profanities at Deputy Ladwig
and calling him a “racist pig” and “cracker cop,” among other things. Deputy Ladwig
asked defendant if he was okay, and defendant began to walk away. Defendant calmed
down once he was farther away, so Deputy Ladwig returned to his patrol car.
At this point, a woman whom defendant had been following and touching walked
over to the deputy’s car and told the officer that defendant had been touching her.
Defendant then turned around and approached the patrol car. Deputy Ladwig got out of
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his car and walked toward defendant to check his fare. At the deputy’s approach,
defendant continued angrily yelling profanities, while clenching his teeth and balling up
his fists.
Deputy Ladwig asked to see defendant’s ticket, which defendant eventually
produced. Finding the ticket expired, the deputy asked defendant to purchase another
ticket or leave the station. Defendant began walking away, but toward the path to the
next station rather than toward a ticket machine or out of the station. Defendant
continued acting erratically and turned back to continue yelling at the deputy. Deputy
Ladwig then told defendant to stop so that he could give defendant a citation. The deputy
asked for defendant’s identification, but defendant said he did not have identification.
Deputy Ladwig then asked defendant for his name. At first, defendant did not respond,
but after repeated requests, defendant began saying his name very loudly and quickly so
that the deputy could not understand. In between shouting his name multiple times,
defendant continued behaving erratically and using profanities.
After several repetitions, defendant again walked away, but Deputy Ladwig
followed him and asked him to take a seat on a bench in the station. Defendant sat down,
but refused to say his name slowly enough for the deputy to understand. A train pulled
into the station, and a transit agent who had just gotten off saw the situation and called for
backup over the radio.
Deputy Ladwig wanted to keep defendant detained until backup arrived, which he
expected to take at least 10 minutes. At some point, defendant stood up, but sat back
down when the deputy told him to. When defendant stood up again, Deputy Ladwig
unholstered his Taser, held it by his side, and said he would tase defendant unless
defendant sat down. Defendant acted like he was going to sit back down, but as soon as
the deputy’s Taser clicked back into the holster, defendant lunged at him.
Defendant wound up to punch Deputy Ladwig. The deputy took a defensive
stance, and defendant backed off. The deputy then tried to grab defendant and control his
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arms. After several seconds of struggling, Deputy Ladwig felt defendant tugging at his
gun. The two men tripped and fell. As he was falling, the deputy felt the mechanism
securing his gun in its holster release. Deputy Ladwig landed on his back. Defendant
landed on his knees above the deputy with the deputy’s gun in his hand. Defendant then
shot the deputy in the face from only a few inches away.
Deputy Ladwig pushed defendant off him, and defendant’s second shot narrowly
missed the deputy’s face. The deputy ran to his car to try to grab another gun, but could
not find one. Deputy Ladwig then ran to seek cover behind some bike lockers, with
defendant following and waving the gun above his head in a celebratory manner. A
bystander who had been recording the fight with a cell phone told defendant he had better
get out of there before the police came to get him, at which point defendant stopped and
looked around. Defendant then walked over to a storm drain, dropped the gun in, and
walked off.
The gunshot shattered the left side of Deputy Ladwig’s jaw and fractured the right
side. A 13-centimeter laceration ran from the deputy’s tongue back to his tonsil and over
to his cheek, and part of his fractured jawbone was protruding into his mouth. He spent
11 days in the trauma intensive care unit and spent six weeks with his jaw wired shut and
titanium plates holding his right jawbone together. After approximately 20 surgeries,
including reconstruction of his left jawbone using a bone from his lower leg, Deputy
Ladwig still has no feeling or function in 90 percent of his tongue and requires a hearing
aid. He spent almost a year learning to speak again and required significant rehabilitation
for the leg from which the bone was removed.
Police officers later arrested defendant at a nearby hotel. When an officer
searched defendant’s suitcase, they found his identification inside.
Defendant testified at trial and admitted shooting Deputy Ladwig. Defendant did
not like police officers and thought that the deputy was harassing him. Deputy Ladwig
ordered him to get on the ground, but defendant refused because police officers had
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previously slapped him in the face after making him get on the ground. When shown a
video of him lunging at the deputy, defendant explained that he had thought about
assaulting the deputy but decided not to and stepped back. When Deputy Ladwig then
approached defendant to arrest him, defendant decided that he needed to use the deputy’s
gun before the deputy did. Defendant denied intending to kill the deputy when he pulled
the trigger, claiming both gunshots were just reactions and the second shot was “just like
normal.”
While watching the video of his confrontation with Deputy Ladwig during cross-
examination, defendant stated, “He said get on the ground right there. I’m not getting on
the ground.” The prosecutor responded, “Okay. Wait until I have a question. We
already heard what you believe.” Defendant then stated, “I don’t really give a fuck. I
don’t really give a fuck. He can do whatever, doesn’t matter. He got shot in his face, and
I’m fucking happy about that shit. He got popped, POP, POP, all in his mother fucking
face. I did that shit.”
B. Verdict and Sentencing
The jury found defendant guilty of attempted murder of a peace officer (Pen.
Code, §§ 664, 187, subd. (a))1 and assault with a semiautomatic firearm on a peace
officer (§ 245, subd. (d)(2)) and found true all three firearm use allegations for each
offense (§ 12022.5, subds. (b)-(d)).
At sentencing, defense counsel acknowledged that he had reviewed the probation
report and discussed it with defendant. Defendant did not object to or dispute any of the
evidence presented by the probation officer. The court found seven aggravating
circumstances: the crime involved great violence, great bodily injury, and acts disclosing
a high degree of cruelty, viciousness, and callousness (Cal. Rules of Court, rule
1 Undesignated statutory references are to the Penal Code.
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4.421(a)(1))2 ; defendant used a firearm to commit the crime (rule 4.421(a)(2)); defendant
“engaged in violent conduct that indicates a serious danger to society” (rule 4.421(b)(1));
defendant had numerous prior convictions (rule 4.421(b)(2)); defendant served a prior
prison term (rule 4.421(b)(3)); defendant was on probation when he shot Deputy Ladwig
(rule 4.421(b)(4)); and defendant’s prior performance on probation had been
unsatisfactory (rule 4.421(b)(5)). The trial court found no mitigating circumstances
because defendant had demonstrated that his actions and lack of remorse were not the
result of mental illness, but instead were a result of “a deep hatred.” Considering these
circumstances, the trial court refused to strike the firearm enhancements or impose a
lesser firearm enhancement. Accordingly, the court sentenced defendant to life in prison
with the possibility of parole for attempted murder of a peace officer (§ 664, subd. (e)),
plus 25 years to life for the firearm enhancement (§ 12022.5, subd. (d)), and the upper
term of nine years in prison for assault with a semiautomatic firearm on a peace officer (§
245, subd. (d)(2)), plus 25 years to life for the firearm enhancement (§ 12022.5, subd.
(d)) The court then stayed the sentence for assault with a firearm and the associated
enhancement pursuant to section 654.
Defendant timely appealed in September 2020. After several extensions of time
for the trial court to supplement the record and for the parties to prepare briefs, defendant
filed his opening brief on July 25, 2022. This case became fully briefed in December
2022, and was assigned to this panel shortly thereafter.
2 Undesignated rule references are to the California Rules of Court.
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DISCUSSION
I
Prosecutorial Misconduct
Defendant contends we must reverse his convictions because of prosecutorial
misconduct during closing argument. We disagree.
A. Closing Arguments
In the first portion of her closing argument, the prosecutor focused extensively on
how defendant’s actions and his testimony at trial belied his claim that he acted in self -
defense. The prosecutor then told the jury:
“And this case has had similar effects on me since I watched the video. That
video was chilling to watch. Slow it down. Watch him pull back and shoot that officer in
the face and have no regard for what he did. Watch him celebrate afterward. I thought
about, you know, I’m raising two girls. I thought about is this the world that I want my
children to be raised in. And it affected me just like yesterday affected me, and it should
affect all of you.
“I watched [the bystander recording the video of the fight] in disgust. I’ve
watched that video over and over again with the same sinking feeling, what is this world
we have come to live in? And I thought I just want to keep my kids in that bubble
forever. We should really all feel that way about people we love, children, significant
others, whoever they may be and protect them.
“And it wasn’t til I saw what Mr. Hollaway did that my faith was restored.
Because he got off that train. He was already on the train. He could have turned his head
like everyone else did that day. He got off the train when he saw that the Deputy, a
human being, had been shot in the face and was bleeding profusely, as he described. And
he ran over, and he took the shirt off his back to help save that officer. And who knows,
maybe he did. But for Mr. Hollaway and the pressure put on his face, it was five minutes
before help arrived. That restored my faith in humanity. Because not everybody is good,
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and not everyone will look out for our loved ones. But he didn’t care what color skin the
officer had. He didn’t care who the officer was. He didn’t help him because he was an
officer and put on a uniform. He went to help him because he was a human being who
had been shot in the face and could die.
“Deputy Ladwig, yes, he’s a police officer. Yes, he swore to protect the public
imperfect or perfect as that system may be. But he’s a human being. He’s somebody’s
grandson. He’s somebody’s child. He’s somebody’s husband. Hopefully one day
despite the Defendant’s best efforts, he will be somebody’s father. He is a human being.
And this case is not about like or dislike of police officers or injustices that have
happened in the past. It’s about this case, this officer, this human being, and what the
Defendant did.
“Despite his very best efforts Alex Ladwig will live another day. Whether he ever
goes back out on the streets or not, I don’t know. It’s chilling to live through something
like this. And every time he would meet with me and ask me, you know, how’s it going
to go? The family would ask me, What’s going to happen? And I always told them, I
can’t predict what 12 people of the community will do. I can have faith in it, but I can’t
predict it.
“But I always told him and the family that the truth you know it here. The truth
always comes out whether it’s in the court or later. The truth is something that rings true,
you know it. And we saw it from the witnesses in this courtroom in this case with this
officer, with this human being. And the Defendant spoke his truth loud and clear for us
to hear yesterday. And his truth, as he screamed it, was not, I shot this officer in self -
defense. His truth loud and clear and he can never take it back, there is just no coming
back from that. Mr. Spangler is a fantastic attorney, and you can’t take that back. You
can’t fix that. His truth was that he pulled that gun out, shot the officer in the face, and
he was happy he did it.
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“So when you go back and you deliberate and you think about this case and this
case, not out there, this courtroom, this evidence, this police officer, this human being,
you let justice be served by your verdicts. I can’t tell you what that justice is. That’s
why there are 12 of you. But you let that reflect the truth.
“And when you sign those verdict forms, you know that justice will be served.
That’s all I ask three years later for this officer, this family, let it be served by your
verdicts.”
Defendant did not object to any of this argument. Instead, defense counsel
addressed the prosecutor’s argument at the end of his closing argument:
“Ms. Anderson is a very accomplished prosecutor. In her closing argument, she
was appealing to your sympathy, to your passions. This isn’t about your sympathy or
your passions. This is about what you, as jurors, can arrive at logically and reasonably in
drawing inferences from the evidence that you were presented.
“Again, it was a terrible thing that Deputy Ladwig was shot, and he has suffered
greatly. There’s no question. This isn’t a question about how badly he suffered. This is
a question of how did Mr. Spann act in this particular situation and is it justified. I do
agree with Ms. Anderson that the truth go [sic] out.
“Deputy Ladwig used unreasonable force while acting outside the scope of his
duties. Mr. Spann was put in unreasonable fear for his -- or reasonable fear for his life
and safety, and he reacted in the only manner that seemed appropriate to him at that
moment to preserve his life. He’s not guilty of the crimes that are charged, and we look
forward to you returning a not guilty verdict.”
B. Forfeiture
As an initial matter, the People contend defendant forfeited this claim of
prosecutorial misconduct by failing to object. We agree.
“In order to preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition; only if an admonition would not have cured the
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harm is the claim of misconduct preserved for review.” (People v. Alfaro (2007) 41
Cal.4th 1277, 1328.) Defendant did not object at all during the prosecutor’s closing
argument.
Defendant argues an exception to the forfeiture rule should apply because
objection and admonition would not have cured the harm from the prosecutor’s improper
argument. Defendant quotes People v. Kirkes (1952) 39 Cal.2d 719, 726, suggesting that
an objection “might well have served to impress upon the jury the damaging force of the
challenged assertions.” Our Supreme Court has limited this language in Kirkes, noting:
“This exception, of course, would swallow the rule requiring a timely objection and
request for admonition, for one always runs the risk of drawing the jury’s attention to an
improper line of argument by registering an objection. The mere concern of highlighting
alleged misconduct by objecting, without more, cannot serve as an exception to the
general rule requiring an objection and request for an admonition.” (People v. Boyette
(2002) 29 Cal.4th 381, 432.) The prosecutor’s argument in this case is not comparable to
the misconduct in Kirkes, wherein the prosecutor asserted personal knowledge from an
unidentified source not in evidence of the defendant’s guilt, implied he would not have
prosecuted had he not believed in the defendant’s guilt, and suggested the defendant
would kill again to cover his crime and prevent witnesses from testifying, with “no
evidence whatever upon which to base that statement.” (Kirkes, at pp. 723-725; see
People v. Visciotti (1992) 2 Cal.4th 1, 80.) The Kirkes court also noted that the improper
remarks “were interspersed throughout the closing argument in such manner that their
cumulative effect was devastating.” (Kirkes, at p. 726.) Here, by contrast, the remarks to
which defendant failed to object occurred all at once and take up a small fraction of the
entirety of the prosecutor’s closing argument.
We conclude defendant has failed to demonstrate either that an objection would
not have stopped this line of argument or that an admonition would not have cured any
harm. Accordingly, defendant has forfeited this issue on appeal.
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C. Ineffective Assistance of Counsel
Anticipating this conclusion, defendant also argues his counsel performed
ineffectively by failing to object to the prosecutor’s argument. We are not persuaded.
While we agree with the parties that the prosecutor committed misconduct by
invoking the safety of her own children, suggesting the jurors should protect their own
loved ones from defendant, and referring to conversations she had with the deputy and
his family, a defendant may not “automatically transform a forfeited claim into a
cognizable one merely by asserting ineffective assistance of counsel.” (People v.
Thompson (2010) 49 Cal.4th 79, 121, fn. 14; see People v. Riel (2000) 22 Cal.4th 1153,
1202-1203.) Rather, “[t]o establish constitutionally inadequate representation, a
defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell
below an objective standard of reasonableness under prevailing professional norms; and
(2) counsel’s representation subjected the defendant to prejudice, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845; see
Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
“[R]arely will an appellate record establish ineffective assistance of counsel.”
(People v. Thompson, supra, 49 Cal.4th at p. 122.) “ ‘When a defendant on appeal makes
a claim that his counsel was ineffective, the appellate court must consider whether the
record contains any explanation for the challenged aspects of representation provided by
counsel. “If the record sheds no light on why counsel acted or failed to act in the manner
challenged, ‘unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ [citation], the contention must
be rejected.” ’ ” (People v. Samayoa, supra, 15 Cal.4th at pp. 845-846.) “ ‘Reviewing
courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective
assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct
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falls within the wide range of reasonable professional assistance.” ’ ” (People v. Weaver
(2001) 26 Cal.4th 876, 925.)
Here, rather than objecting, defense counsel addressed the prosecutor’s remarks in
his own argument, pointing out to the jury that the prosecutor was improperly appealing
to their “sympathy” and “passions.” Defense counsel urged the jurors instead to rely on
logic and reason to determine whether Deputy Ladwig used unreasonable force and
whether defendant reasonably feared for his life and safety. This indicates defense
counsel made a tactical decision, which we may not second-guess. Defense counsel may
also have been happy to let the prosecutor talk about personal matters because it meant
she stopped discussing defendant’s disastrous testimony on cross-examination: “I don’t
really give a fuck. He can do whatever, doesn’t matter. He got shot in his face, and I’m
fucking happy about that shit. He got popped, POP, POP, all in his mother fucking face.
I did that shit.” Defense counsel could reasonably have considered that testimony, the
last piece of evidence the jury heard in the case, so damaging that any other argument
was a welcome distraction.
We conclude defendant has failed to overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
II
Defendant’s Upper Term Sentence
Defendant contends we must remand for resentencing because amendments made
to section 1170 while his appeal was pending apply retroactively and the trial court relied
on aggravating circumstances that were not proven according to the new procedures. The
People agree that the amended law applies retroactively but contend that any error was
harmless. We agree with the People.
Effective January 1, 2022, the Legislature amended section 1170, subdivision (b)
so that, among other things, a sentencing court “may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of the crime that justify
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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.”
(§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) We agree with the
parties that the amended version of section 1170, subdivision (b) applies retroactively in
this case as an ameliorative change in the law applicable to all nonfinal convictions on
appeal. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109 (Zabelle).)
We first note that the trial court did not violate defendant’s Sixth Amendment
right to a jury trial by imposing an upper term sentence in this case. In general,
“imposition of the upper term does not infringe upon the defendant’s constitutional right
to jury trial so long as one legally sufficient aggravating circumstance has been found to
exist by the jury, has been admitted by the defendant, or is justified based upon the
defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816.)
This is true because, under current California law, like under prior law in place until
2007, a jury’s finding of a single aggravating circumstance is sufficient to make a
defendant eligible for an upper term sentence. (Id. at pp. 812-816; Zabelle, supra, 80
Cal.App.5th at pp. 1111-1112; see People v. Osband (1996) 13 Cal.4th 622, 730 [holding
that, when sentencing court must impose middle term “unless there are circumstances in
aggravation or mitigation of the crime,” a single factor in aggravation suffices to support
an upper term]; People v. Blakeley (2000) 23 Cal.4th 82, 89 [“when the Legislature
amends a statute without changing those portions of the statute that have previously been
construed by the courts, the Legislature is presumed to have known of and to have
acquiesced in the previous judicial construction”].)
Here, three of the seven aggravating circumstances relied upon by the trial court
were found in compliance with the Sixth Amendment. First, defendant testified that he
had been previously convicted of three felonies. Either as admissions or as findings of
prior convictions, the trial court established these facts in compliance with the Sixth
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Amendment. Similarly, the trial court established that defendant had served a prior
prison term and was on probation at the time he shot Deputy Ladwig. Our Supreme
Court has held that these findings do not infringe the right to a jury trial. (People v.
Towne (2008) 44 Cal.4th 63, 81-82.) Because any one of these three aggravating
circumstances rendered defendant eligible for an upper term sentence under current law,
the trial court’s reliance on other factors did not violate defendant’s constitutional rights.
(See id. at p. 86; Harris v. United States (2002) 536 U.S. 545, 558 [“Judicial factfinding
in the course of selecting a sentence within the authorized range does not implicate the
indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth
Amendments”].)
Though the trial court’s selection of the upper term did not violate the Sixth
Amendment, it did violate the new provisions of section 1170, subdivision (b) because
none of the underlying facts for the seven aggravating circumstances the trial court relied
upon were found true beyond a reasonable doubt by a jury and defendant did not stipulate
to the truth of any. But the California Constitution forbids us from vacating defendant’s
sentence based on this error alone. Rather, we must determine, “after an examination of
the entire cause, including the evidence,” whether the error has resulted in a miscarriage
of justice. (Cal. Const., art. VI, § 13.) In other words, we must affirm a judgment unless
“it is reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
In this context, we first determine whether a jury would have found any of the underlying
facts not true and “then, with the aggravating facts that survive this review, consider
whether it is reasonably probable that the trial court would have chosen a lesser sentence
had it considered only these aggravating facts.” (Zabelle, supra, 80 Cal.App.5th at p.
1112; see People v. Epps (2001) 25 Cal.4th 19, 29-30 [no reasonable probability of a
result more favorable to the defendant had the jury, instead of the court, determined that
the defendant suffered disputed prior convictions]; People v. Price (1991) 1 Cal.4th 324,
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492 [“When a trial court has given both proper and improper reasons for a sentence
choice, a reviewing court will set aside the sentence only if it is reasonably probable that
the trial court would have chosen a lesser sentence had it known that some of its reasons
were improper”].)
Here, we are confident the jury would have found true the facts underlying five of
the seven aggravating circumstances the trial court specified: the crime involved great
violence, great bodily injury, and acts disclosing a high degree of cruelty, viciousness,
and callousness (rule 4.421(a)(1)); numerous prior convictions (rule 4.421(b)(2)); a prior
prison term (rule 4.421(b)(3)); defendant being on probation when he shot Deputy
Ladwig (rule 4.421(b)(4)); and unsatisfactory prior performance on probation (rule
4.421(b)(5)). First, the evidence is overwhelming and undisputed that the crime involved
great violence and acts disclosing a high degree of cruelty, viciousness, and callousness.
The act of holding a gun inches from another person’s face and pulling the trigger
arguably meets this standard by itself. But defendant’s own testimony, which the judge
quoted at the sentencing hearing, makes the determination much easier: “I don’t really
give a fuck. He can do whatever, doesn’t matter. He got shot in his face, and I’m
fucking happy about that shit. He got popped, POP, POP, all in his mother fucking face.
I did that shit.” The jury also saw video of defendant celebrating after shooting the
deputy and heard testimony that defendant, while in jail the morning after the shooting,
yelled, “I shot that cracker cop. I’m not going to stay. I am going to sue you.” Given
this evidence, we are confident a jury would have found the facts underlying this
aggravating circumstance true beyond a reasonable doubt.
We are likewise confident a jury would have found true beyond a reasonable
doubt each of the four aggravating circumstances that relate to defendant’s criminal
history. Defendant testified repeatedly that he had three prior felony convictions; a jury
would have no reason to doubt him. The probation officer also reported that defendant
had four prior misdemeanor convictions, was on probation at the time of the shooting for
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assault against a custodial officer in San Joaquin County case No. CR-2016-0006533, and
had served 16 months in prison for being an accessory to receiving stolen property in
Santa Clara County case No. CC815665. We presume the probation officer performed
his statutory duty properly. (Evid. Code, § 664; Pen. Code, § 1203, subds. (b), (g).)
Importantly, defendant did not object to or dispute this evidence, despite having the
opportunity to do so (§ 1170, subd. (b)(4)) and despite the relative ease with which
defendant could have obtained records from these cases if the probation officer was
mistaken (see, e.g., §§ 11120-11127; Gov. Code, § 68152, subd. (c)). Lastly, it is more
than likely that the jury would consider committing the current offenses while on
probation to be unsatisfactory performance. Based on this evidence, we conclude a jury
would have found the facts underlying these four aggravating circumstances true beyond
a reasonable doubt.
On the other hand, we are not confident a jury would have found true the facts
underlying the remaining two aggravating circumstances relied on by the trial court.
First, whether defendant “engaged in violent conduct that indicates a serious danger to
society” (rule 4.421(b)(1)) rests on a somewhat vague and subjective standard, which
makes it difficult “to conclude with confidence that, had the issue been submitted to the
jury, the jury would have assessed the facts in the same manner as did the trial court.”
(People v. Sandoval (2007) 41 Cal.4th 825, 840.) We are also mindful that we “cannot
necessarily assume that the record reflects all of the evidence that would have been
presented had aggravating circumstances been submitted to the jury.” (Id. at p. 839.)
Accordingly, we cannot say with confidence that the jury would have found the facts
underlying this circumstance true beyond a reasonable doubt. Second, using defendant’s
use of a firearm as an aggravating circumstance (rule 4.421(a)(2)) constituted improper
dual use of facts, since the trial court also sentenced defendant to 25 years to life in prison
for personally and intentionally discharging a firearm and proximately causing great
bodily injury. (§ 12022.53, subd. (d); see § 1170, subd. (b)(5) [“The court may not
16
impose an upper term by using the fact of any enhancement upon which sentence is
imposed under any provision of law”].) Though defendant did not object to this improper
dual use at sentencing, we are here considering hypothetically what would happen were
the underlying facts found by a jury, and we cannot say with confidence that defendant
would have failed to object in that situation.
Having determined that five of the seven aggravating circumstances would survive
retroactive application of the amendments to section 1170, subdivision (b), we next
determine whether there is a reasonable probability the trial court would have imposed a
lesser sentence had the court known it could not rely on the two improper aggravating
circumstances. (Zabelle, supra, 80 Cal.App.5th at p. 1112.) A reasonable probability
“does not mean more likely than not, but merely a reasonable chance, more than an
abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
715.) In this context, a reasonable probability of a more favorable result exists where the
improper factor was determinative for the sentencing court or where the reviewing court
cannot determine whether the improper factor was determinative. (People v. Avalos
(1984) 37 Cal.3d 216, 233.)
Here, we see no reasonable probability the trial court would impose a lesser
sentence relying on only five aggravating circumstances. The trial court found no
mitigating circumstances to weigh against the aggravating circumstances. (Cf. People v.
Price, supra, 1 Cal.4th at pp. 491-492 [considering four improper aggravating
circumstances was harmless where three aggravating circumstances remained, and court
found no mitigating circumstances].) And the court focused especially on defendant’s
violence and callousness in how he reacted after shooting the deputy, citing “the horrific
nature of this offense” and particularly quoting defendant’s outburst at trial. (Cf. People
v. Avalos, supra, 37 Cal.3d at p. 233 [sentencing court’s remarks emphasizing two
particular factors that were not improper makes clear that improper factors were not
determinative].)
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We look also to the broader context at the sentencing hearing. (Cal. Const., art.
VI, § 13.) The trial court declined to strike the maximum enhancement and impose only
lesser enhancements for using a gun to commit the offenses, explaining that, because of
the “deep hatred” demonstrated by defendant, there was no basis to strike the
enhancement and it could not “imagine any basis or any judge doing it.” Even after
sentencing defendant to 32 years to life in prison for attempted murder and knowing that
it would stay the sentence for assault pursuant to section 654, the trial court still imposed
the nine-year upper term, plus another 25 years to life for using a firearm. We conclude
there is no reasonable probability the trial court would impose a lesser sentence, even
without relying on two of the seven aggravating circumstances, so the court’s improper
reliance on those two factors was harmless error.
In his reply brief, defendant makes several arguments based on misunderstandings
of the new legislative scheme. First, section 1170, subdivision (b) does not require
defendant’s prior convictions to be proven by certified records. Rather, subdivision
(b)(3) permits a trial court to review certified records in lieu of submitting the factual
determination of the existence of prior convictions to a jury. (§ 1170, subd. (b)(2)-(3).)
This optional method of proof does not affect our analysis above, where we determine
what a jury would have found based on the evidence offered —and not disputed—at the
sentencing hearing. We do not consider certified records at all because “we will not
presume the existence of extrarecord materials.” (Zabelle, supra, 80 Cal.App.5th 1098,
1115, fn. 6.)
Second, the trial court did not “impose a greater penalty than that fixed by the
statute violated.” The statute defining assault with a semiautomatic weapon on a peace
officer establishes a maximum sentence of nine years in prison, which defendant
received. (§ 245, subd. (d)(2).) The cases defendant cites are inapt. Porter v. Superior
Court (2009) 47 Cal.4th 125, 138 dealt with double jeopardy and held that the Sixth
Amendment did not convert allegations that attempted murder was willful, deliberate,
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and premeditated and committed for the benefit of a criminal street gang “into actual
elements of greater offenses for purposes of the statutory double jeopardy protection of
section 1023.” People v. Betts (2005) 34 Cal.4th 1039, 1054 held that “a jury trial on the
factual questions that establish jurisdiction is not required by the federal Constitution.”
(Fn. omitted.) In re Howard (1945) 69 Cal.App.2d 164, 165 found, after the defendant
petitioned for a writ of habeas corpus, that the trial court had incorrectly found the
defendant had a prior felony conviction qualifying him for a longer sentence, rendering
the excessive portion of the defendant’s sentence void. None of these cases bear on the
issues in this case.
Finally, defendant claims harmless error analysis is inapplicable because his upper
term sentence is “unauthorized.” As defendant notes, an unauthorized sentence “could
not lawfully be imposed under any circumstance in the particular case.” (People v. Scott
(1994) 9 Cal.4th 331, 354.) Where a “defendant argues only that the court abused its
discretion in aggravating his sentence . . . [because] factors cited in support of such
choices were inapplicable, duplicative, and improperly weighed,” the sentence is not
unauthorized. (Id. at p. 355.) Here, an upper term sentence can lawfully be imposed
pursuant to section 1170, subdivision (b), so the rule governing unauthorized sentences
does not apply and we must determine whether any errors are prejudicial. (Scott, at
p. 355.)
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DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
I concur:
/s/
ROBIE, Acting P. J.
I concur in the result:
/s/
MAURO, J.
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