People v. Mora CA2/1 ( 2022 )

Filed 10/6/22 P. v. Mora CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B313078
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA153005)
v.
SERGIO MORA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Olivia Meme, 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 Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Following a jury trial appellant Sergio Mora was convicted
of first degree burglary and of making criminal threats. He was
sentenced to 18 years 4 months in state prison, and was ordered
to pay $440 in fines and court fees. On appeal, Mora contends
that the court erred in (1) not holding an evidentiary hearing to
address alleged misconduct of a juror; (2) not granting the
prosecution’s (unopposed) Romero1 motion to dismiss a prior
strike; (3) ordering him to pay the fines and court fees without
first holding a hearing to determine his ability to pay those sums;
and (4) sentencing him to a prison term so disproportionate to his
offense as to violate the California Constitution’s prohibition of
cruel or unusual punishment. We reject each of these contentions
for the reasons explained below. In a supplemental brief, Mora
raises the additional contention that his sentence to the high
term on his burglary conviction violates Penal Code2 section
1170, subdivision (b)(2) (as amended by Stats. 2021, ch. 731,
§ 1.3), effective January 1, 2022. That amendment requires
sentencing courts to select the middle term unless aggravating
factors existed and were stipulated to by the defendant or proved
beyond a reasonable doubt at trial or proven by a certified record
of conviction. We conclude there was no such error and, even if
the trial court erred in finding aggravating factors that justified
selecting the upper term of sentence, any such error was
harmless. We thus affirm.
1
People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
2Subsequent unspecified statutory references are to the
Penal Code, unless otherwise stated.
2
FACTUAL AND PROCEDURAL BACK GROUND
On the morning of October 27, 2020, Danielle Alvarado3
was getting ready for work when Mora knocked on the front door
and asked for someone who did not live there. Danielle informed
Mora that he was at the wrong address and closed the door.
Mora persisted, repeatedly knocking on and then kicking the
door. Danielle eventually awakened Joseph and asked him to
watch her while she walked to her car because Mora “seemed out
of his right mind.” Joseph also tried to persuade Mora that he
was at the wrong house, but Mora responded that Joseph was the
man who had shot and killed Mora’s brother, and that Mora only
wanted “to do [drugs]” with Danielle and Joseph. Mora followed
Danielle to her parked car, all the while accusing her of
harboring his personal property and telling her that he was not
afraid of the police and that he would not allow her to leave in
her car. Joseph accompanied Danielle when he realized Mora
was following her. Mora spoke to Joseph as well, accusing him of
having killed Mora’s brother. When they reached Danielle’s car
Mora tried to grab her hand or arm, causing Danielle to drop her
phone. Joseph pushed Mora away while Danielle retrieved her
phone and announced she was calling the police. At that point
Mora ran off and Danielle drove away.
Mora turned back to Danielle’s and Joseph’s residence,
followed by Joseph. When Joseph arrived home he found Mora in
the living room, holding a pair of sneakers he had taken from a
nearby closet. Joseph took the shoes away and physically
3 Danielle and her roommate Joseph have the same last
name. For ease of reference, we refer to them by their first
names.
3
removed Mora from the apartment. While Joseph waited for the
police to arrive, Mora stood outside yelling at Joseph, including a
threat to kill Joseph. Mora then left the property, returned,
knocked on the door, and left. Mora returned again, this time
holding a baseball bat, and again tried to get in through the front
door. Mora left and had returned yet again, still carrying the bat,
when the police arrived. Although he had dropped the bat by the
time he was taken into custody, one of the responding officers
found the baseball bat a few houses away.
Mora was charged in an information with one count of first
degree burglary and one count of criminal threats, accompanied
by an enhancement arising from use of a dangerous weapon—the
baseball bat. The information further charged Mora with two
prior serious felonies, murder and robbery. The enhancement for
use of the baseball bat was dismissed at Mora’s preliminary
hearing, but he was convicted at trial on both the burglary and
criminal threat counts. Mora waived a jury trial at his
sentencing. The court disregarded a prior strike for a murder
that occurred in 1992, when Mora was approximately 15 years
old but found as true a prior strike arising from his 2012
conviction for robbery. The court sentenced Mora, who was 44
years old at the time of sentencing, to the upper term of
imprisonment for his burglary conviction, citing Mora’s criminal
record, his recent convictions for increasingly violent crimes, and
the fact that Mora was on probation in three separate matters
when the burglary occurred.4
4 Mora’s sentence, before credits for time served, amounted
to 18 years 4 months in state prison, calculated as follows: for
burglary, six years in state prison, doubled to 12 years pursuant
to sections 667, subdivisions (b) to (i) and 1170.12, subdivisions
4
Finally, the court imposed $440 in fines and court fees,
consisting of a restitution fine of $300, a court operations
assessment of $80, and $30 conviction assessment fees imposed
for each of the two counts on which Mora was convicted. In
response, defense counsel inquired whether the court would
“consider waiving or staying the court fees based on Mr. Mora
being indigent and his sentence.” The court responded in the
negative: “It is premature for me to do that at this time as it cuts
both ways as with the length of the sentence because [Mora] will
have earning capacity within state prison.”
DISCUSSION
We have jurisdiction to review Mora’s challenges to the
judgment. (§ 1237, subd. (a).)
A. The Trial Court Committed No Error Regarding
Purported Juror Misconduct
Mora’s first contention on appeal is that a juror committed
misconduct, that the trial court failed to address the misconduct
when it was brought to the court’s attention, and that the
presumption of prejudice from the juror’s misconduct entitles
Mora to a new trial. We review for abuse of discretion the trial
court’s decision not to conduct a hearing or detailed inquiry.
(People v. Ray (1996) 13 Cal.4th 313, 343; People v. Keenan (1988)
46 Cal.3d 478, 539.)
The juror misconduct claim is based on a note sent by the
jury foreman on the morning the jury reached its verdict. The
(a) to (d); for criminal threats, eight months in state prison,
doubled to 16 months pursuant to sections 667, subdivisions (b)
to (i) and 1170.12, subdivisions (a) to (d); plus an additional five
years in state prison pursuant to section 667, subdivision (a)(1).
5
note, received at 9:45 a.m., read in its entirety: “If a member of
the jury is not considering all of the elements of the case to
determine if the defendant is guilty or not guilty.” After
conferring with counsel, and without objection by Mora’s counsel,
the court replied in writing that “[a]ll jurors must weigh and
consider all elements and evidence in making a determination on
whether the defendant is guilty or not guilty.” Approximately
half an hour after the jury resumed deliberating, it informed the
court it had reached a verdict.
Mora now contends that the juror’s note put the court on
notice of misconduct warranting dismissal of the juror in
question, and that it was error not to have held an evidentiary
hearing before determining how to respond. Before addressing
these contentions, however, we consider whether they have been
waived by defense counsel’s failure to make any objection at the
time the court consulted counsel on how to respond to the jury
note. We conclude that Mora waived his challenges based on the
jury note.
Even a constitutional right “ ‘ “may be forfeited in criminal
as well as civil cases by the failure to make timely assertion of
the right before a tribunal having jurisdiction to determine it.” ’ ”
(In re Sheena K (2007) 40 Cal.4th 875, 880-881.) In the absence
of a requirement that a timely objection be made, the prosecutor
would be deprived “ ‘of the opportunity to cure the defect at
trial,’ ” while the defendant could “ ‘ “gamble on an acquittal at
his trial secure in the knowledge that a conviction would be
reversed on appeal.” ’ ” (People v. Partida (2005) 37 Cal.4th 428,
434.) Our cases make it clear that a claim of juror misconduct is
waived in the absence of a timely objection. (People v. Stanley
(2006) 39 Cal.4th 913, 950 [issue of juror misconduct is waived on
6
appeal when defense failed to object at trial or seek a mistrial on
grounds of juror misconduct]; People v. Wisely (1990) 224
Cal.App.3d 939, 948 [waiver when, rather than object, defendant
“fully acquiesced in the proceedings”].)
We also reject Mora’s contention on its merits. “Juror
misconduct” is a broad concept and can include a juror
undertaking “experiments” on his own (Bell v. State of California
(1998) 63 Cal.App.4th 919, 932), a juror being intoxicated (People
v. Burgener (1986) 41 Cal.3d 505, 516-517, disapproved on
another ground in People v. Reyes (1998) 19 Cal.4th 743, 746),
jurors discussing among themselves the defendant’s failure to
testify (People v. Lavender (2014) 60 Cal.4th 679, 687), a juror
sleeping during trial (People v. Bradford (1997) 15 Cal.4th 1229,
1347-1348), or a juror expressing an opinion as to the defendant’s
guilt prior to deliberations (People v. Weatherton (2014) 59
Cal.4th 589, 598).
Just as “juror misconduct” describes a broad range of
circumstances, the trial court has broad discretion to address
reports of potential juror misconduct. That discretion extends to
determining whether misconduct has occurred, as well as how
best to respond to a report of misconduct. “The court does not
abuse its discretion simply because it fails to investigate any and
all new information obtained about a juror during trial.” (People
v. Ray (1996) 13 Cal.4th 313, 343.)
Contrary to Mora’s contention, “ ‘a hearing is required only
where the court possesses information which, if proven to be true,
would constitute “good cause” to doubt a juror’s ability to perform
his duties and would justify his removal from the case.’ ” (People
v. Cleveland (2001) 25 Cal.4th 466, 478; accord, People v. Ray,
supra, 13 Cal.4th at p. 343 [same].) “The trial court’s authority to
7
discharge a juror includes the authority to conduct an
appropriate investigation concerning whether there is good cause
to do so, and the authority to take ‘less drastic steps [than
discharg(ing a juror)] where appropriate to deter any misconduct
or misunderstanding it has reason to suspect.’ ” (People v.
Alexander (2010) 49 Cal.4th 846, 926, quoting People v. Keenan,
supra, 46 Cal.3d at p. 533.)
Far from showing cause to dismiss a juror, the note at issue
in this case can be read as simply revealing that the juror in
question misunderstood the court’s instruction regarding the
elements of one of the offenses for which defendant was tried. On
the facts presented here, the court’s response was correct, “to
reinstruct the jurors regarding their duty to deliberate and to
permit the jury to continue deliberations before making further
inquiries that could intrude upon the sanctity of deliberations.”
(People v. Cleveland, supra, 25 Cal.4th at p. 480.) Only “when
reinstruction does not resolve the problem” need the court
conduct whatever inquiry is reasonably necessary to determine
whether grounds exist to dismiss a juror. (Ibid.) Here, the record
confirms that reinstruction did resolve whatever problem there
was, as the jury returned with a verdict less than half an hour
after the court’s instruction that all jurors must “weigh and
consider all elements and evidence” in reaching a verdict.
B. The Trial Court Did Not Err in Failing to Hold a
Hearing on Mora’s Ability to Pay
Mora’s second contention on appeal is that the trial court
erred by imposing the restitution fine and court fees without
regard to his ability to pay those sums. Citing People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas), Mora contends that he was
8
entitled to a hearing as to his ability to pay before the court could
impose the fine and fees.5
In Dueñas, Division Seven of this court held that it was
error to impose certain fees and assessments as part of a criminal
conviction without holding a hearing at which the defendant
could attempt to prove her inability to pay. We begin our review
of this contention by determining whether counsel preserved it
for appeal by making a timely and complete objection at trial.
We note that, while defense counsel in Dueñas specifically
requested a hearing to address the defendant’s inability to pay,
and offered proof of her indigence, counsel here did neither. We
also note that the opinion in Dueñas was published in January
2019, approximately two and one-half years before Mora was
sentenced. Mora’s sentencing memorandum did not address the
issue of fines and assessments, and did not contend that Mora
lacks the ability to pay fines that may be imposed.
We conclude Mora has waived his contention, first made on
appeal, that the trial court erred in failing to hold a hearing on
his inability to pay fines and fees. However, we treat counsel’s
request below that the court “consider waiving or staying the
court fees” as a timely objection to the court’s order imposing the
restitution fine and court fees, and therefore address whether the
court erred by refusing to waive those fees. We conclude that it
did not.
5 The California Supreme Court has granted review to
consider the requirement to hold a hearing as to the defendant’s
ability to pay before ordering payment of restitution fines or court
fees as part of the sentence in a criminal case. (People v. Kopp
(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844.)
9
Mora’s circumstances are very different from those of the
defendant in Dueñas. The defendant in that case was a young,
homeless woman who suffered from cerebral palsy and who relied
on public assistance to support herself and her two children. Her
driving privilege was repeatedly suspended for inability to pay
fines and court fees, and each successive offense left her deeper in
court-ordered debt that she had no ability to escape. Yet another
traffic stop in 2015 resulted in the defendant pleading no contest
to driving with a suspended license, after which she was
sentenced to probation and ordered to pay a $150 restitution fine
and $70 in court fees. Her counsel requested a hearing to
determine her ability to pay these fees, but the court declined on
the ground that it had no discretion to waive the fine or court
fees. The Court of Appeal remanded for a hearing, holding that
“due process of law requires the trial court to conduct an ability
to pay hearing and ascertain a defendant’s present ability to pay
before” imposing court and administrative fees, and that it was
“fundamentally unfair” to impose a restitution fine on those
lacking the ability to pay it. (Dueñas, supra, 30 Cal.App.5th at
p. 1164.)
In People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres),
we limited Dueñas to its “extreme facts” and to the unique
circumstances of the defendant in that case. (Caceres, supra, at
pp. 923, 926-927.) The defendant in Caceres contended that he
was deprived of due process when the trial court assessed $370 in
fines and court fees following his conviction for making criminal
threats. Our opinion in Caceres addressed at length the factual
differences between the defendants in Dueñas and in Caceres.
Specifically, we concluded that while Ms. Dueñas’s crime was
inseparable from her poverty, in that she was trapped by “the
10
cascading consequences of . . . fines and assessments” (Dueñas,
supra, 30 Cal.App.5th at p. 1163) that she could not afford to pay,
and fell farther behind each time she was stopped for driving on
the suspended license that she could not afford to reinstate, the
defendant in Caceres had no such excuse. As we observed,
“Caceres’s offense, criminal threats, on its face is not a crime
either ‘driven by’ poverty or likely to ‘contribut[e] to’ that poverty
such that an offender is trapped in a ‘cycle of repeated violations
and escalating debt.’ ” (Caceres, supra, at p. 928, quoting Dueñas,
supra, at p. 1164 & fn. 1.) To the contrary, “[a] person may avoid
making criminal threats regardless of his or her financial
circumstances, and the imposition of $370 in fees and fines will
not impede Caceres’s ability to avoid making criminal threats in
the future.” (Caceres, supra, at pp. 928-929.)
We believe the same distinction applies to Mora: any
inability to pay the $440 in fines and assessments is not the
result of Mora having committed the burglary at issue, and his
obligation to pay those fees will not impede his ability to avoid
committing future burglaries.
Based on Caceres, we conclude that the trial court did not
err by refusing Mora’s request to waive the restitution fine and
court costs in question. We review the record to determine
whether there is “evidence supporting an implied determination
of ability to pay.” (People v. Hennessey (1995) 37 Cal.App.4th
1830, 1837.) The trial court’s conclusion that the waiver request
was premature, due to Mora’s earning capacity while
incarcerated, finds approval in a number of cases. (See, e.g.,
People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [the defendant
sentenced to six years; $370 in fees and costs assessed; potential
earnings during sentence “forecloses a meritorious inability to
11
pay argument”]; People v. Johnson (2019) 35 Cal.App.5th 134,
139 [“[t]he idea that [the defendant] cannot afford to pay $370
while serving an eight-year prison sentence is unsustainable”];
People v. Hennessey, supra, at p. 1837 [“ability to pay” includes
potential earnings from prison job during sentence]; People v.
Frye (1994) 21 Cal.App.4th 1483, 1487 [“[i]n the absence of
objection by [the] defendant, the trial court could presume the
fine would be paid out of [the] defendant’s prison wages”].) Our
holding that the trial court correctly took into account Mora’s
potential earnings while serving his sentence establishes that
any error in failing to hold a hearing regarding his ability to
pay—even though Mora neither requested a hearing nor made an
offer of proof of inability to pay—was harmless.6
C. The Trial Court Did Not Err In Denying the
Prosecution’s Romero Motion
Mora’s third contention on appeal is that the trial court
erred when it denied the prosecution’s Romero motion to dismiss
a prior strike for Mora’s conviction for robbery in 2012. Mora and
the People agree that we review this decision for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The
trial court denied the motion, citing Mora’s lengthy criminal
record and the fact that he was on probation for three separate
matters at the time he committed the burglary: “I can take into
consideration the fact that the strike prior was from 2012, but the
story doesn’t end there because there was no significant break—
6Mora did not assert an Eighth Amendment claim in
connection with the restitution fine and court costs. Accordingly,
we deem the issue waived and do not address it. (Caceres, supra,
39 Cal.App.5th at p. 923.)
12
there was no break period in lawlessness from that date up until
the date of this crime. [Mora] was constantly getting arrested
and he was put on probation various times and then he violated
the probation. So based upon that, I cannot see how it would be
in the interest of justice to strike the strike prior and I will not
strike the strike prior.”7
A trial court abuses its discretion in refusing to dismiss a
prior strike only in limited circumstances, such as when it was
not aware of its discretion to dismiss, where it considered
impermissible factors in refusing to dismiss, or where the
resulting sentence leads to “ ‘an “arbitrary, capricious or patently
absurd” result.’ ” (People v. Carmony, supra, 33 Cal.4th at
p. 375.) None of these factors appears on this record. The trial
court was fully aware of its discretion to dismiss a strike. In fact,
the court did disregard Mora’s conviction for murder dating back
to 1992. The factors that the court did emphasize; namely,
Mora’s lengthy criminal history and the fact that he was on
probation for three offenses when he was arrested, comport with
factors cases have recognized to be relevant to inform that
discretion. (See, e.g., People v. Brugman (2021) 62 Cal.App.5th
608, 640 [no abuse of discretion, citing the defendant’s
“continuous history of criminal conduct”]; People v. Bernal (2019)
42 Cal.App.5th 1160, 1170 [no abuse of discretion although
refusal to strike two prior convictions resulted in sentence of 85
years to life]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813
7 This was the prosecution’s second Romero motion directed
to Mora’s earlier strike from 2011. Prior to trial, before a
different judge, the prosecutor’s oral Romero motion was denied
as well.
13
[reversing dismissal of prior strike where the defendant “led a
continuous life of crime after the prior”].) Thus, the decision not
to strike the 2012 conviction was not “so irrational or arbitrary
that no reasonable person could agree with it.” (People v.
Carmony, supra, 33 Cal. 4th at p. 377.)
With respect to Mora’s contention that the trial court
should have found, as a mitigating factor in support of the
Romero motion, that Mora was suffering from mental illness at
the time of his crimes,8 we have reviewed the record, find such a
condition was not established by competent evidence, and find no
abuse of discretion by the trial court.
The existence of a mitigating factor must be determined by
examining the facts and circumstances of the case. (People v.
Regalado (1980) 108 Cal.App.3d 531, 538.) Here, the trial court
had no admissible evidence supporting Mora’s counsel’s
contention that his mental condition amounted to a mitigating
factor requiring the court to strike the prior. Both at trial and at
his sentencing, Mora’s counsel did not adduce any evidence at
trial of mental illness or disease. Similarly, in her sentencing
memorandum, Mora’s trial counsel did not contend that evidence
showed that mental illness caused Mora to commit the crimes he
was convicted of, although counsel did suggest that Mora’s
“borderline intellectual functioning . . . could have played a role”
8 We assume this contention is based on rule 4.423(b)(2) of
the California Rules of Court, which includes among
“Circumstances in mitigation” whether “the defendant was
suffering from a mental or physical condition that significantly
reduced culpability for the crime.”
14
in his crimes, and requested that the trial court order mental
health screening.9
Mora’s opening brief on appeal summarizes the “evidence”
of mental illness as including all of the following: the victim’s
testimony that Mora “[j]ust seemed out of his right mind” while
committing the offense, defense counsel’s request that Mora be
referred for mental health screening, and what counsel argue are
the jurors’ perceptions of Mora as expressed in two notes to the
trial judge, which we discuss below. This “evidence” does not
justify setting aside the trial court’s exercise of his discretion to
deny the Romero motion. It falls far short of demonstrating that
the trial judge’s conclusion was “irrational or arbitrary” (People v.
Myers (1999) 69 Cal.App.4th 305, 310) or one “that no reasonable
person could agree with.” (People v. Carmony, supra, 33 Cal.4th
at p. 377.)
Statements made by Mora’s counsel, whether in written
briefs (Muskan Food & Fuel, Inc. v. City of Fresno (2021) 69
Cal.App.5th 372, 389-390) or oral argument (People v. Superior
Court (Crook) (1978) 83 Cal.App.3d 335, 341) are not evidence.
The testimony of the complaining witnesses is as consistent with
Mora being under the influence of alcohol or drugs as with him
being mentally ill.10 In fact, at the sentencing hearing defense
9 The trial court denied the request, stating that Mora was
not “a good candidate.”
10 Danielle initially described Mora as acting “like he was
obviously on drugs.” Only after the court sustained counsel’s
objection to that testimony did Danielle describe Mora as “out of
his right mind,” a statement that drew no objection. Both
Danielle and Joseph testified that Mora insisted they had drugs
15
counsel argued that the victims’ testimony suggested that Mora
was “under the influence or having something to that effect being
present on the day of the incident,” while acknowledging that the
testimony was not sufficient to raise a defense of voluntary
intoxication. The prosecutor’s comments at the hearing on the
issue of whether Mora’s mental state supported striking his prior
are also ambiguous at best, although he was clear that he was
not aware of “any evidence of mental health issues.”
We also find no merit in Mora’s contention that the trial
court should have considered the juror’s notes as evidence of
mental illness. The notes in question were sent together on the
morning of the last day of deliberations. The first note read,
“And if your mental state of mind has any bearing on intent as
according to the courts opinion.” After consulting with counsel,
and without objection, the court responded in writing: “There are
no instructions given as to mental state. Please refer to
instruction 3.31 page 22.”11 The second note read, “If a clinical
diagnosis is needed to deem someone’s mental state as rational or
irrational in order for the jury to consider it.” With the
concurrence of counsel, the court responded: “This evidence is
not before you.” Certainly, a fair reading of these notes is that at
in the apartment and that they should all consume drugs
together.
11 Instruction 3.31 reads as follows: “In the crimes charged
in [c]ounts 1, and 2, there must exist a union or joint operation of
act or conduct and a certain specific intent in the mind of the
perpetrator. Unless this specific intent exists the crime to which
it relates is not committed. [¶] The specific intent required is
included in the definitions of the crimes set forth elsewhere in
these instructions.” (CALJIC No. 3.31.)
16
least one juror questioned whether Mora’s mental state was a
factor in his guilt, but that does not mean the trial court had to
consider the notes as evidence of mental illness in deciding the
Romero motion. Jurors are neither witnesses nor expert
evaluators of mental health, and the two notes from the jury
foreperson are not evidence (see Evid. Code, § 140). Moreover,
Mora’s counsel did not object to the trial court’s resolution of the
juror notes by advising them that “[t]his evidence is not before
you,” which is consistent with our perception of the record—there
was no evidence of mental impairment. This further supports
our conclusion that the trial court did not abuse its discretion.
D. Mora’s Sentence Was Not Cruel or Unusual
Punishment
Mora next contends that his sentence violates the
California Constitution’s prohibition against cruel or unusual
punishments in article I, section 17. We conclude that Mora’s
sentence does not violate the Constitution. We first address the
People’s contention that Mora waived this ground for appeal by
failing to raise an objection at the sentencing hearing. While the
People are correct that a constitutional challenge to the length of
sentence may be waived if not addressed to the court at the time
sentence is imposed, even under the People’s authorities, we may,
and will, address the constitutional issue, if for no other reason
than to “forestall a subsequent claim of ineffectiveness of
counsel.” (People v. Martin (1995) 32 Cal.App.4th 656, 661,
disapproved on other grounds in People v. Deloza (1998) 18
Cal.4th 485, 600, fn. 10; see People v. Norman (2003) 109
Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568,
583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27, citing People
v. Martin, supra.)
17
The constitutionality of a sentence in an individual case is
an issue that we review independently for legal error, deferring to
the underlying factual findings made by the trial court in
determining Mora’s sentence. (People v. Wilson (2020) 56
Cal.App.5th 128, 166-167; People v. Palafox (2014) 231
Cal.App.4th 68, 82.) We also defer to the Legislature’s power to
determine what punishment is appropriate for crimes.
“Reviewing courts . . . should grant substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as
well as to the discretion that trial courts possess in sentencing
convicted criminals.” (Solem v. Helm (1983) 463 U.S. 277, 290,
fn. omitted.) As our Supreme Court observed in People v.
Carmony, supra, 33 Cal.4th at page 378, “the three strikes law
not only establishes a sentencing norm, it carefully circumscribes
the trial court’s power to depart from this norm . . . . In doing so,
the law creates a strong presumption that any sentence that
conforms to these sentencing norms is both rational and proper.”
Reflecting that deference to the Legislature’s power to define
crimes and punishments, our cases hold that reducing a sentence
“is a solemn power to be exercised sparingly only when, as a
matter of law, the Constitution forbids what the sentencing law
compels.” (People v. Mora (1995) 39 Cal.App.4th 607, 616.)
In deciding whether a sentence is cruel or unusual, a
reviewing court must determine whether the punishment “is so
disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human
dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)
Lynch established a three-prong test to determine
constitutionality, but Mora expressly limits his challenge to the
18
first of the three prongs:12 “the nature of the offense and/or the
offender, with particular regard to the degree of danger both
present to society.”
Turning first to the nature of the offense, we are unable to
minimize “the degree of danger” posed to society by first-degree
burglary. Our Legislature has classified this crime as a “violent
felony” (§ 667.5, subd. (c)(21)). Inherent in burglary is an
invasion of the victim’s dwelling, a crime that strikes at the heart
of society’s sense of personal safety and the right to quiet
enjoyment of one’s home. Mora also followed Danielle as she
tried to enter her car, where Mora physically assaulted her, an
assault that potentially would have caused more serious injury to
Danielle had Joseph not accompanied her to the car after Mora’s
knocking and kicking at the door scared her. Mora also
threatened to kill Joseph. Mora then returned to the residence
with a baseball bat. This collective conduct is more than
sufficient to deem Mora a danger to society.
Turning to the second factor, the nature of the offender, we
find nothing in Mora’s personal history supporting his contention
that his sentence was cruel and unusual. Mora has a lengthy
history of offenses going back three decades. In fact, the only
significant breaks in Mora’s criminal history occurred when he
was incarcerated. At the time he committed the crimes before us,
12 The other two prongs are “to compare the challenged
penalty with the punishments prescribed in the same jurisdiction
for different offenses which, by the same test, must be deemed
more serious” and “a comparison of the challenged penalty with
the punishments prescribed for the same offense in other
jurisdictions having an identical or similar constitutional
provision.” (In re Lynch, supra, 8 Cal.3d at pp. 426, 427).)
19
Mora was on probation for three separate offenses. This supports
the trial court’s expressed finding that continued leniency would
serve no purpose other than to make it possible for Mora to
commit more crimes.
Mora’s constitutional challenge to his sentence relies
heavily on People v. Avila (2020) 57 Cal.App.5th 1134 (Avila).
Given the fact-specific nature of a constitutional challenge to the
length of a sentence (People v. Dillon (1983) 34 Cal.3d 441, 479
[court must consider “the totality of the circumstances
surrounding the commission of the offense”]), Avila is only
apposite to the extent the crime at issue, and the offender’s
personal characteristics and criminal background, resemble those
of Mora. Those similarities are almost entirely absent.
The offender in Avila was convicted of attempted robbery
and attempted extortion after he tried to collect “rent” from
roadside fruit vendors. He neither committed violence nor
threatened his victims and, as the court observed, the only
damage was that oranges worth $20 were crushed. (Avila, supra,
57 Cal.App.5th at p. 1147.) Nonetheless, the trial court sentenced
him to life in prison based upon two prior strike offenses
committed 26 and 28 years previously, when he was a juvenile.
(Id. at p. 1142.) The Court of Appeal reversed, finding that the
trial court had abused its discretion: “[A]n abuse of discretion
may be found where a trial court considers impermissible factors,
and, conversely, does not consider relevant ones. [Citation.] [¶]
That is precisely what occurred here. The trial court did not
consider factors relevant to the nature and circumstances of
Avila’s prior strikes.” (Id. at p. 1141.) The Court of Appeal
found, inter alia, that the trial court had not afforded due weight
to the fact that Avila’s prior strikes were both decades old and
20
committed when he was a juvenile, and had inaccurately
sentenced Avila as a violent offender. It had also erred by
treating Avila as a habitual criminal, finding that “Avila is not
comparable to the defendant who has led a continuous life of
crime so as to counteract the extreme remoteness of his priors.”
(Id. at p. 1143.) Finally, the trial court’s life sentence improperly
focused on the potential for violence, not supported by the
evidence at trial. “Sentencing is not the proper venue for the
trial court’s imagination.” (Id. at p. 1142.)
From the foregoing, it is obvious that there are significant
factual differences underlying Mora’s sentencing that were
absent in Avila’s case. Foremost among them is the different
exercise of the trial court’s discretion: here, for example, the trial
court did strike Mora’s prior strike for a murder committed when
he was a juvenile. Nor did the trial judge engage in speculation
about the potential for violence in arriving at Mora’s sentence.
He indicated that he would give no weight to the fact that Mora
had at one point returned with a baseball bat, but properly
considered other factors, including Mora’s threat to kill Joseph
and the assault on Danielle. The two offenders’ criminal histories
are sharply different as well: unlike Avila, Mora can accurately
be described as a career criminal. Finally, there is the difference
between the sentence struck down in Avila and the one that Mora
received. Mora’s 18-year sentence is simply not comparable to
the life sentence at issue in Avila.
We have already discussed—and rejected—the argument
that the trial court should have given more weight in mitigation
to the possibility that Mora’s conduct was caused in some part by
mental illness or incapacity. We cannot ignore the many factors
in aggravation, particularly the verbal threat to kill Joseph. No
21
fair analysis of Mora’s culpability allows us to ignore the
significance of his real and threatened actions on the day in
question. Just as the lack of a criminal record is not
determinative in a cruel and unusual punishment analysis
(People v. Martinez (1999) 76 Cal.App.4th 489, 497), it is not an
abuse of discretion to consider a criminal record as extensive as
Mora’s record. Put another way, “[t]he facts of the crime as
committed in this case and the particular nature of the offender
who committed that crime [citation] prevent us from taking a
benign or sympathetic view of [Mora’s] culpability.” (People v.
Munoz (1984) 157 Cal.App.3d 999, 1015.)
E. Mora is Not Entitled to be Resentenced
The final issue we address is Mora’s contention, raised in a
supplemental brief, that his sentence must be set aside and the
matter remanded for resentencing consistent with the
amendments to section 1170 that became effective on January 1,
2022, and applicable to all judgments not yet final on that date.
At the time Mora was sentenced, former section 1170,
subdivision (b) afforded trial courts wide discretion to sentence
convicted offenders to the low, middle or high term of sentence
prescribed by law. (See former § 1170, subd. (b); Stats. 2018,
ch. 1001, § 2.) Effective January 1, 2022, Senate Bill No. 567
(2021-2022 Reg. Sess.) amended section 1170, subdivision (b), in
a number of respects, including making the middle term of
imprisonment the presumptive sentence. (§ 1170, subd. (b)(2).)
As amended, the statute provides that “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).” (§ 1170, subd. (b)(1).)
22
Paragraph (2) of subdivision (b) provides the exceptions that
allow a judge to select the upper term of imprisonment “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.” (Id., subd. (b)(2).) Finally, paragraph (3) of subdivision (b)
provides that the sentencing judge “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.” (Id., subd. (b)(3).)
Before imposing sentence, the trial court held a court trial
on Mora’s prior convictions, and admitted into evidence two
exhibits offered by the prosecution: a 17-page certified “CLETS
printout” of Mora’s criminal record and a 17-page certified copy of
the Department of Corrections file on Mora pursuant to section
969b. After reviewing these exhibits and hearing argument, the
trial court sentenced Mora to the high term—six years in state
prison—upon his conviction for first degree burglary. As the
court explained, “This is based upon the fact that [Mora] was on
probation in three different matters when this crime occurred as
well as his record and the fact that [his] priors were of an
increasing violent nature.”
Mora now argues that the trial court had no basis on which
to impose a sentence higher than the middle term of
imprisonment for burglary. Specifically, Mora argues none of the
factors the trial court relied on to impose the upper term “[was]
stipulated to by [Mora] or found true beyond a reasonable doubt
by the court or jury.” In addition, Mora argues that a prior
23
conviction can only be proved by a “certified record,” and no such
record was before the trial court.
We agree that Mora is entitled to the benefit of the recent
amendments to section 1170, subdivision (b) added by Senate Bill
No. 567. Those amendments apply to all sentences not final as of
January 1, 2022. On that date Mora’s sentence was not final
because this appeal was pending, and thus his request that we
review the applicability of Senate Bill No. 567 to his sentence is a
proper one. We thus address whether the trial court had
evidence of aggravating factors that satisfies the requirements of
subdivision (b)(2) or (3) of section 1170, and if it did not, whether
the resulting error is harmless such that no remand for
resentencing is necessary. For the reasons set out below, we find
the record before the trial court qualified under section 1170,
subdivision (b)(3) and alternatively that there was no prejudicial
error if it did not. Therefore, we decline to remand for
resentencing.
We have independently reviewed the two exhibits admitted
into evidence at Mora’s sentencing hearing, and we conclude that
the trial court had, at the time of sentencing, “a certified record of
conviction” within the meaning of section 1170, subdivision (b)(3).
The CLETS report and the Department of Corrections records
were both “certified records” showing Mora’s criminal history,
and were a sufficient evidentiary basis for the court to find two of
the aggravating factors it relied on to sentence Mora to the upper
term: Mora’s “record,” which we take to mean his prior criminal
history, as well as the fact that he was on probation for three
separate offenses at the time he committed his current offense.
(See People v. Dunn (2022) 81 Cal.App.5th 394, 403-404
[“certified copy of [the] defendant’s criminal history report”
24
admitted into evidence at sentencing hearing “meets the
requirements of [§] 1170, [subd.] (b)(3)”].)
Even assuming, arguendo, that the certified records
introduced at Mora’s sentencing hearing would not qualify as “a
certified record of conviction” within the meaning of section 1170,
subdivision (b)(3), we conclude any error in relying on them
would have been harmless.
The question of whether it is harmless error to sentence a
defendant to the upper term based on aggravating factors not
proved beyond a reasonable doubt by a jury or a court trial,
stipulated to by the defendant, or proved with “a certified record
of conviction,” is one that has been addressed by a number of
courts following the effective date of Senate Bill No. 567.
Frequently cited on this issue are People v. Flores (2022) 75
Cal.App.5th 495 and People v. Lopez (2022) 78 Cal.App.5th 459.
The trial court in Flores imposed the upper term based on
aggravating factors similar to Mora’s: Flores had numerous prior
convictions dating back to when he was a juvenile, he was on
probation when the crime was committed, and his prior
performance on probation was unsatisfactory. Although the
aggravating factors were not proved beyond a reasonable doubt,
the Court of Appeal found the error was harmless. “ ‘[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.” (People v. Flores, supra, at p. 500, quoting
People v. Sandoval (2007) 41 Cal.4th 825, 839.)
People v. Lopez, supra, 78 Cal.App.5th 459 reached the
opposite conclusion to Flores, holding that it was not harmless
25
error for the trial court to find the existence of aggravating
factors other than as provided in section 1170, subdivision (b).
Lopez held that the relevant inquiry was not whether the trial
court could have found at least one aggravating factor beyond a
reasonable doubt. Instead, the relevant inquiry was whether 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, when the court originally relied on
both permissible and impermissible factors in selecting the upper
term.” (People v. Lopez, supra, at p. 467.) The court held that
Lopez was entitled to be resentenced because “[t]he trial court
offered no indication that it would have selected an upper term
sentence even if only a single aggravating factor or some subset
of permissible factors were present.” (Id. at p. 468.)
More recently, the Fifth District applied a different test to
find harmless error in People v. Dunn, supra, 81 Cal.App.5th 394.
Dunn reviewed the Flores and Lopez cases and concluded that
“Flores sets too low a standard for harmlessness and Lopez too
high.” (People v. Dunn, supra, at p. 409.) Dunn adopted a test it
described as a 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
26
the trial court would have imposed a sentence other then 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).” (People v. Dunn,
supra, at pp. 409-410, fn. omitted.)
We agree with Dunn that the harmless error test does not
require us to conclude that a jury would have found, beyond a
reasonable doubt, every aggravating factor that the trial court
cited in sentencing Mora. We also believe that a hypothetical
jury would have found true, beyond a reasonable doubt, the
following aggravating factors, that Mora “was on probation in
three different matters when this crime occurred,” and had a
lengthy history of criminal behavior. In reaching this conclusion
we note that the record supporting the aggravating factors of
Mora being on probation in three separate matters at the time of
his current crime and the dates and substance of his prior arrests
and convictions, is contained in documents our courts have
recognized as accurate and reliable. “[T]he 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.” (People v. Towne (2008) 44 Cal.4th 63, 81,
fns. omitted.) The records before the trial court when it
sentenced Mora—in particular, the certified copy of his criminal
record—are the types of records referred to in Towne as accurate
and reliable for sentencing purposes.
27
As to the final aggravating factor relied on by the trial
court, while we may question whether the record supports a
finding that Mora’s numerous crimes were of an “increasingly
violent” nature, there is no reasonable probability that the trial
court would have sentenced Mora differently, based solely on
considering the other two aggravating factors that we have
concluded are supported by the record.13 Therefore, under the
harmless error test as applied in either Flores or Dunn, we are
satisfied that, even if the “certified criminal records” admitted at
Mora’s sentencing are not those contemplated in section 1170,
subdivision (b)(3), they are nonetheless sufficiently reliable for
the trial court to reach the conclusions it did, and that a jury
would have reached the same conclusions had it considered that
evidence.
A single aggravating factor can support the trial court’s
exercise of discretion to impose a sentence longer than the middle
term. (People v. Black (2007) 41 Cal.4th 799, 817; People v. Hicks
13 In 2012, Mora was convicted of robbery, a violent felony,
and sentenced to a term in state prison. Following his release
from state prison, and not including his present crimes, Mora was
arrested on six occasions. Following those arrests Mora was
charged with offenses including attempted burglary (once),
battery (once), domestic battery (once) and elder/dependent abuse
(twice). However, he was convicted only of misdemeanors in the
following order: domestic battery, vandalism, possession of a
controlled substance, shoplifting, battery, and elder/dependent
abuse. Mora’s longest sentence for any of these crimes was 90
days in county jail. Mora’s crimes are numerous, which is itself
an aggravating factor, but the characterization of his
misdemeanor convictions between 2012 and his current offense
as “increasingly violent” is questionable.
28
(2017) 17 Cal.App.5th 496, 512-513.) Mora’s history includes all
of the aggravating factors enumerated in rule 4.421(b) of the
California Rules of Court: “(1) The defendant has engaged in
violent conduct that indicates a serious danger to society; [¶]
(2) The defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness[14]; [¶] (3) The defendant has served a
prior term in prison or county jail under section 1170[,
subdivision] (h); [¶] (4) The defendant was on probation,
mandatory supervision, postrelease community supervision, or
parole when the crime was committed; and [¶] (5) The
defendant’s prior performance on probation, mandatory
supervision, postrelease community supervision, or parole was
unsatisfactory.” The findings pertaining to Mora—his history of
violence, his numerous prior offenses, his prior state prison
sentence, and his probationary status at the time of the current
crimes—are not subjective and they are demonstrable in records
on which courts rely for the facts underlying these factors in
aggravation of a sentence. Thus, the trial court would have
reached the same conclusion on sentencing as long as at least one
of the aggravating factors under California Rules of Court, rule
4.421(b) were found by a jury. Any error thus was harmless.
Our conclusion is consistent with the holding of Division
Six of this court in People v. Salazar (2022) 80 Cal.App.5th 453.
14 While, as noted, ante (see fn. 13), it may be arguable
whether Mora’s crimes between 2012 and the present can be
characterized as demonstrating “increase[ed] seriousness,” they
certainly meet the alternative standard of “numerous[ness]”
within the meaning of rule 4.124(b)(2) of the California Rules of
Court.
29
The appellant in Salazar sought resentencing under Senate Bill
No. 567 on the ground that, inter alia, the trial court lacked a
certified record of convictions at the time of sentencing.
Affirming, the court held that any error was harmless because
the record “clearly indicated” that the trial court would not have
imposed a lower term even if it had been aware of its discretion to
do so under Senate Bill No. 567. The court pointed to many of
the factors we have already discussed. For example, the trial
judge in Salazar, like the judge who sentenced Mora, denied a
Romero motion. The appellate court found that “[i]n denying the
Romero motion, the trial court necessarily found that [Mora] was
not outside the spirit of the Three Strikes law and continued to
pose a danger to the public.” (People v. Salazar, supra, at p. 463.)
The trial judge in Salazar, like the judge here, ordered sentences
to run consecutively rather than concurrently, which the
appellate court found “shows the court’s reluctance to impose the
lower term.” (Ibid.) There are other similarities as well,
particularly an emphasis by the trial courts in both cases on the
respective defendants’ continuing criminal histories and
continuing to commit crimes even while on probation or
community supervision. Like our colleagues in Salazar, we
conclude the trial judge would not have imposed a lower sentence
on Mora even if he had been aware of his discretion to do so
under Senate Bill No. 567 and had concluded that the records
upon which he had relied did not qualify as “certified records of
conviction.”
30
DISPOSITION
Mora’s conviction and sentence, including the term of
imprisonment and the fees and costs imposed, are affirmed.
NOT TO BE PUBLISHED
KELLEY, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31