People v. Tamariz CA2/2 ( 2023 )

Filed 2/28/23 P. v. Tamariz CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315223
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA088067)
v.
URIEL TAMARIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Alan K. Schneider, Judge. Affirmed.
Nicholas Seymour, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
An amended information filed by the Los Angeles County
District Attorney’s Office alleged that defendant and appellant
Uriel Tamariz committed two counts of second degree robbery
(counts 1 & 3; Pen. Code, § 211),1 and possession of a firearm by a
felon (count 2; § 29800, subd. (a)(1)). The information further
alleged as to counts one and three that defendant personally and
intentionally discharged a firearm (§ 12022.53, subds. (b) & (c)),
and, as to count three, that the discharge caused great bodily
injury (§§ 12022.53, subd. (d), 12022.7, subd. (a)). Finally, the
information alleged that defendant had suffered a prior “strike”
conviction and had served a prior prison term (§§ 667, subd. (d),
667.5, subd. (b)). Defendant pled not guilty and denied the
special allegations.
A jury found defendant guilty as charged and found the
special allegations true. On August 4, 2021, the trial court
sentenced defendant to a total of 23 years in state prison. On the
principal term of count three, the trial court imposed the high
term of five years, plus a consecutive 10-year term for the gun
use enhancement (§ 12022.53, subd (b)) and three years for the
infliction of great bodily injury (§ 12022.7, subd. (a)). As to count
one, the trial court imposed a consecutive one-year sentence (one-
third the midterm), plus three years, four months for the firearm
discharge allegation (§ 12022.53, subd. (b). As to count two, the
trial court imposed a consecutive eight-month term (one-third the
midterm). The trial court struck the enhancements pursuant to
section 12022.53, subdivisions (c) and (d). The prosecutor
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
declined to proceed with the alleged prison prior and strike; thus,
trial court also struck those.
Defendant timely appealed.
Approximately one month after defendant filed his notice of
appeal, the Governor signed Senate Bill No. 567 (2021-2022 Reg.
Sess.) (Sen. Bill 567), which became effective January 1, 2022.
Sen. Bill 567 amended section 1170, subdivision (b), which
delineates the trial court’s authority to impose the statutory
terms of imprisonment. On appeal, defendant argues that
Sen. Bill 567 applies retroactively and that pursuant to the newly
amended statute, he is entitled to a new sentencing hearing.
We affirm.
FACTUAL BACKGROUND
On March 16, 2018, defendant robbed Eduardo Zamora.
The following day, he robbed Jose Lopez.
PROCEDURAL BACKGROUND
At the onset of the sentencing hearing, the trial court noted
that it had considered the case, “and while it is a very serious
case, the court has looked at all the circumstances, looked at the
defendant’s record, and it is not a life case in the court’s
estimation. There is going to be a very serious penalty, but the
crimes that you did commit were serious, and you did cause great
bodily injury to an individual.”
“On the other hand, . . . the person who was shot” did not
suffer injuries “beyond recovery, and while they constitute great
bodily injury, are not in the nature of permanent injury and the
type of tragedy that I see all of the time.”
After entertaining oral argument, the trial court imposed
the high term. In so ruling, the trial court noted that it had “read
and considered the probation report.” It further reasoned:
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“There are factors in aggravation, particularly that the crime did
involve multiple victims. There was planning involved with the
incident in which he did go to the . . . victim’s home. He has
engaged in prior violent conduct indicating that he is a serious
danger to society under California Rules of Court[, rule] 4.421(b),
in that he has previously been convicted of a violent and serious
charge, [§] 246.3, in which he did discharge a firearm. He has
served a prior prison sentence on that matter.”
“Looking at the entire nature of the crime,” the trial court
chose “the high term because of factors in aggravation,
particularly his prior serious and violent felony for which he did
serve a prior prison term.”
DISCUSSION
I. Relevant law
At the time defendant was sentenced, when a judgment of
imprisonment was imposed and the statute specified three
possible terms (lower, middle, and upper), the trial court had
broad discretion to select the term that best served the interests
of justice. (Former § 1170, subd. (b); Cal. Rules of Court, rule
4.420(e); People v. Sandoval (2007) 41 Cal.4th 825, 846–847.)
Sen. Bill 567 changed that, making the middle term the
presumptive sentence for a term of imprisonment unless certain
circumstances exist. Specifically, section 1170 now provides, in
relevant part: “(b)(1) When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court
shall, in its sound discretion, order imposition of a sentence not to
exceed the middle term, except as otherwise provided in
paragraph (2).
“(2) The court may impose a sentence exceeding the middle
term only when there are circumstances in aggravation of the
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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. Except where evidence supporting
an aggravating circumstance is admissible to prove or defend
against the charged offense or enhancement at trial, or it is
otherwise authorized by law, upon request of a defendant, trial
on the circumstances in aggravation alleged in the indictment or
information shall be bifurcated from the trial of charges and
enhancements. The jury shall not be informed of the bifurcated
allegations until there has been a conviction of a felony offense.
“(3) Notwithstanding paragraphs (1) and (2), the court may
consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury. This paragraph does
not apply to enhancements imposed on prior convictions.”
(§ 1170, subd. (b)(1)-(3).)
II. Analysis
A. Defendant is not entitled to a new sentencing hearing
The parties agree that the changes made to section 1170
are retroactive. Thus, the only issue left for us to determine is
whether defendant is entitled to a new sentencing hearing. We
conclude that he is not.
Under newly amended section 1170, subdivisions (b)(2) and
(b)(3), the sentencing court may rely upon stipulated
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
as well as certified records of a defendant’s prior conviction in
selecting the sentence to impose without submitting the prior
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conviction to a jury. In imposing an upper term sentence in count
three, the trial court did just that. It properly relied upon
defendant’s stipulated criminal history, finding that he had
suffered a prior conviction.
Urging us to remand the matter, defendant claims he did
not stipulate to suffering a prior conviction. He is mistaken. The
appellate record shows that defendant initially waived his right
to a jury trial on the prior conviction allegation, agreeing instead
to let the finding be made by the court. He then stipulated to his
prior conviction. At the sentencing hearing, when the trial court
gave its indicated sentence, specifically stating that “it is not a
life case,” the prosecution declined to proceed with the trial on
the prior conviction allegation, noting that no such trial was
necessary. At no point did defendant seek to withdraw his prior
stipulation. Nor did he ever dispute the trial court’s description
of his criminal history. His failure to do so is entirely
understandable, given that the probation report, which the trial
court considered, in this case reflects that defendant had
precisely such a prior conviction. (People v. Towne (2008)
44 Cal.4th 63, 81, fns. omitted [“the circumstance of a prior
prison term or of probation or parole status ordinarily is well
documented in the same type of official records used to establish
the fact and nature of a prior conviction—court records, prison
records, or criminal history records maintained by law
enforcement agencies”].) Furthermore, the prosecution alleged
that defendant had suffered a prior conviction for violating
section 246.3, subdivision (a). Defendant directs us to no
evidence in the appellate record that a different felony might
have been admitted.
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The trial court’s reliance on defendant’s criminal history
rendered him eligible for the upper term sentence in count three.
Nothing in the amended version of section 1170 would result in a
lower sentence.
B. Harmless error
Even if the trial court had erred, which it did not, any such
error was harmless.
Since the amendments wrought by Sen. Bill 567 went into
effect, a handful of published decisions have addressed the
framework for evaluating harmless error arguments in
retroactively applying the statute, and as pointed out by
defendant in his reply brief, the issue is pending before our state
Supreme Court. (People v. Lynch (May 27, 2022, C094174)
[nonpub. opn.], review granted Aug. 10, 2022, S274942.) The
primary disagreement is between People v. Flores (2022)
75 Cal.App.5th 495 (Flores) and People v. Lopez (2022)
78 Cal.App.5th 459 (Lopez).
In Flores, supra, 75 Cal.App.5th at page 500, the court held
that “‘[i]f a reviewing court concludes, beyond a reasonable doubt,
that the jury, applying the beyond-a-reasonable doubt standard,
unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury,’ the
error is harmless.” (See also People v. Flowers (2022)
81 Cal.App.5th 680, 686, review granted Oct. 12, 2022, S276237
[error under Sen. Bill 567 is harmless where there is a “‘clear
indication’” that the trial court would “not impose a more
favorable sentence upon theoretical reversal for resentencing”].)
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In Lopez, supra, 78 Cal.App.5th 459, however, the court
adopted a two-step approach to evaluating prejudice. At the first
step, the court applied a broader inquiry than was prescribed in
Flores, by considering whether “beyond a reasonable doubt . . . a
jury would have found true beyond a reasonable doubt all of the
aggravating factors on which the trial court relied in exercising
its discretion to select the upper term.” (Lopez, supra, at p. 467,
fn. 11.) If so, then the error is not prejudicial. (Ibid.) If not, then
the analysis proceeds to the second step. At the second step, the
question of “possible prejudice to a defendant . . . is not whether
the trial court could have relied on the single aggravating factor
of [the defendant’s] recidivism to impose the upper term
sentence; unquestionably the trial court may still rely on any
single permissible aggravating factor to select an upper term
sentence under the newly revised triad system. Rather, the
second relevant prejudice question is whether we can be assured
that the trial court would have exercised its discretion to impose
the upper term based on a single permissible aggravating factor,
or even two or three permissible aggravating factors, related to
the defendant’s prior convictions.” (Id. at p. 467.) If not, “then it
is clear that remand to the trial court for resentencing is
necessary.” (Ibid., fn. 11; see also People v. Zabelle (2022)
80 Cal.App.5th 1098, 1113 [agreeing “in principle” with Lopez,
but taking a different approach].)
More recently, the Fifth District applied a different test to
find harmless error in People v. Dunn (2022) 81 Cal.App.5th 394(Dunn), review granted Oct. 12, 2022, S275655. Dunn reviewed
Flores and Lopez and concluded that “Flores sets too low a
standard for harmlessness and Lopez too high.” (Dunn, supra, at
p. 409.) Thus, the Dunn court adopted a test it described as a
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modification of Lopez: “The reviewing court determines (1)(a)
beyond a reasonable doubt whether the jury would have found
one aggravating circumstance true beyond a reasonable doubt
and (1)(b) whether there is a reasonable probability that the jury
would have found any remaining aggravating circumstance(s)
true beyond a reasonable doubt. If all aggravating circumstances
relied upon by the trial court would have been proved to the
respective standards, any error was harmless. If not, the
reviewing court moves to the second step of Lopez, (2) whether
there is a reasonable probability that the trial court would have
imposed a sentence other than the upper term in light of the
aggravating circumstances provable from the record as
determined in the prior steps. If the answer is no, the error was
harmless. If the answer is yes, the reviewing court vacates the
sentence and remand for resentencing consistent with section
1170, subdivision (b).” (Dunn, supra, at pp. 409–410,
fn. omitted.)
On this record, we need not stake out a position because we
conclude that the trial court’s inability to anticipate Sen. Bill 567
and its application here was harmless beyond a reasonable doubt,
even under the more exigent standard of Lopez.
First, the trial court based its upper term sentence
primarily on defendant’s criminal history,2 and that factor will
not change. As set forth above, defendant stipulated to his prior
2 While the trial court did comment that there was planning
and that were multiple victims, as discussed herein, defendant’s
undisputed criminal history supports the trial court’s imposition
of the upper term.
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conviction, a conviction confirmed by the probation report.3 It
does not appear that any other factors weighed significantly in
the trial court’s decision, or that ordering the trial court to
disregard any other factors (i.e., alleged planning and multiple
victims) would have reduced the sentence. (People v. Black
(2007) 41 Cal.4th 799, 817 [a single aggravating factor can
support the trial court’s exercise of discretion to impose a
sentence longer than the middle term].) Had the jury been called
upon to decide beyond a reasonable doubt whether this
aggravating factor was true, the appellate record supplies no
reason to doubt this conclusion.
In his reply brief, defendant argues that his “criminal
history could not form the basis for the aggravated term because
his stipulation regarding a prior offense was made for a different
purpose.” Assuming without deciding that defendant is correct,
we conduct a harmless error analysis: “If we conclude, beyond a
reasonable doubt, that a ‘jury, applying the beyond-a-reasonable-
doubt standard, unquestionably would have found true [the]
single aggravating circumstance had it been submitted to the
jury,’” the error is harmless. (People v. French (2008) 43 Cal.4th
36, 53.)
Any error in relying upon defendant’s stipulation was
harmless as “there is no ‘evidence that could rationally lead to a
contrary finding.’” (People v. French, supra, 43 Cal.4th at p. 53.)
3 We are satisfied that, even if the “certified” criminal
records admitted at defendant’s sentencing hearing are not those
contemplated by section 1170, subdivision (b)(3), they are
nonetheless sufficiently reliable for the trial court to reach the
conclusion it did, and that a jury would have reached the same
conclusion.
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As set forth above, defendant’s criminal history is confirmed by
the probation report. Notably, defendant does not contend
otherwise.
Second, and perhaps most significantly, the trial court’s
indicated sentence reflected that it was exercising leniency. The
trial court acknowledged it was imposing a “long sentence,” but
was “not imposing a life sentence,” and that while defendant was
“going to have to pay for [his] crimes,” he would still have a
chance to live his life once he was released.
In light of the trial court’s reliance upon defendant’s
criminal history and its explicit exercise of leniency, it
undoubtedly would impose the upper term on remand. It follows
that any alleged error was harmless and no remand is required.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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