People v. Reynoso CA5 ( 2022 )

Filed 10/17/22 P. v. Reynoso CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083359
Plaintiff and Respondent,
(Super. Ct. No. LF013051A)
v.
RIGO HECTOR REYNOSO, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Smith, J.
Defendant Rigo Hector Reynoso was found guilty of false imprisonment,
inflicting corporal injury on a cohabitant, making a criminal threat, arson of an inhabited
structure, and witness intimidation by use or threat of force. His sentence included upper
terms on the arson and false imprisonment counts. On appeal, defendant contends that
his sentence must be vacated, and the case remanded for resentencing in light of Senate
Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to Penal Code
section 1170, subdivision (b).1 The People disagree, arguing any error was harmless.
We affirm.
PROCEDURAL SUMMARY
On October 20, 2020, the Kern County District Attorney filed an information
charging defendant with kidnapping (§ 207, subd. (a); count 1), inflicting corporal injury
on a cohabitant (§ 273.5, subd. (a); count 2), making a criminal threat (§ 422; count 3),
arson of an inhabited structure (§ 451, subd. (b); count 4), dissuading a witness (§ 136.1,
subd. (c)(1); count 5), and carjacking (§ 215, subd. (a); count 6). As to all counts, the
information further alleged that defendant had suffered a prior “strike” conviction within
the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
As to counts 1 and 3 through 6, the information also alleged that the prior conviction also
qualified as a serious felony conviction (§ 667, subd. (a)).
On August 26, 2021, the jury found defendant not guilty of kidnapping, but guilty
of the lesser included offense of false imprisonment on count 1, guilty as charged on
counts 2 through 5, and not guilty on count 6. The jury further found true that defendant
used or threatened force in the commission of count 5 (§ 136.1, subd. (c)(1)).
On September 24, 2021, the trial court sentenced defendant to an aggregate term
of years as follows: on count 4, eight years (the upper term); on count 1, three years (the
upper term), concurrent with the term on count 4; on count 2, one year (one-third of the
1 All statutory references are to the Penal Code unless otherwise indicated.
2.
middle term), consecutive to the term on count 4; on count 3, eight months (one-third of
the middle term) consecutive to the term on count 2; and on count 5, three years (the
middle term), consecutive to the term on count 3.
On the same date, defendant filed a notice of appeal.
FACTUAL SUMMARY
The People’s Case
In early 2020, M.L. and defendant had been in a dating relationship for
approximately 18 months. The relationship ended prior to her testimony on August 16,
2021.
For two to three months between approximately March 2020 and May 1, 2020,
M.L. lived in Lamont in a trailer home she rented. Before she lived in the trailer home in
Arvin, M.L. lived with defendant in a standalone room behind his parents’ home in
Lamont.
Between April 25, 2020, and April 29, 2020, while M.L. lived in the trailer home,
defendant entered her home without permission. M.L. attempted to end her relationship
with defendant by telling him that they should “go [their] separate ways.” She explained
that the last time they saw each other she had called the police. She described that she
and defendant had established a pattern where she would call the police on defendant, he
would be arrested, he would return in 30 days, and she would call the police again. She
“was already tired” of it. After attempting to end the relationship, she told defendant to
leave. He left her home, but he took her vehicle without her permission. She did not
report the vehicle stolen. After each fight in which M.L. told defendant to leave,
defendant told her that if he “end[ed] up doing some time in [jail he would] kill [her].”
Defendant was verbally aggressive but not physically violent.
On April 30, 2020, M.L. owned a vehicle that she had recently purchased.
Defendant took her vehicle without her permission. She attempted to call defendant
repeatedly but he would not answer her calls. She then walked to defendant’s parents’
3.
house, arriving at night. Defendant was not there so M.L. waited until he returned with
the vehicle. Once defendant returned, M.L. called and told him that she wanted to sleep
in his room and not see him that evening “because he sounded aggressive.” Defendant
sent M.L. text messages that night telling her “to go or he would burn [her] house down”
and calling her names. Defendant then came to his room where M.L. was staying. He
forced the door open, grabbed her by her neck and hair, hit her on the right side of her
face with a closed fist, knocked her to the ground, and kicked her in the waist area when
she was on her knees. During that encounter, defendant took M.L.’s cell phone.
Defendant also swore at her, asked her why she came to his parents’ house, and told her
that she had “ ‘better not make any noise once [they] leave’ ” his room or he was going to
hit her. Defendant grabbed M.L. by her arm and led her to her vehicle.
When defendant and M.L. were in her vehicle, defendant continued to shout at and
insult her. He told her that if she would not provoke him, he would not behave in that
way. Defendant drove the vehicle to a reservoir near Arvin. 2 He told M.L. that he was
tired of her so he was going to kill her and “do his time.” M.L. told defendant not to do
anything he would regret. She was afraid. Defendant told her to exit the car and move
toward the reservoir. She did not. He then turned on the vehicle and drove to M.L.’s
trailer home.
When defendant arrived to M.L.’s trailer home, defendant grabbed her arm and
said, “ ‘Look, dumb a[**,] … [b]ecause I am going to hit you again. I am going to hit
you even harder.’ ” M.L. continued to be afraid. She and defendant entered her trailer
2 When M.L. spoke to Rogelio Medina, a deputy sheriff with the Kern County
Sheriff’s Department, on May 1, 2020, she told him that defendant drove her to an
unknown location. On October 13, 2020, she told Veronica Alvarez, an investigator with
the district attorney’s office, that defendant took her to a canal near a field in Lamont.
She explained she did not know where she was because she kept her eyes closed while
defendant drove. She just knew that defendant drove for approximately 30 minutes to a
location at which she heard running water.
4.
home and she laid down because she did not want to talk to or see defendant. She asked
him to return her cell phone. Defendant asked why she wanted her cell phone but M.L.
did not respond. Defendant then used drugs and told M.L. that he wanted to have sex
with her. She refused because defendant had hit her. Defendant accused M.L. of having
been with another man. Defendant told M.L. to take off her pants and underwear so he
could see if she had been with another man. He told her that if she refused, he would
take her pants and underwear off. She took off her pants. She then noticed defendant
grab a telephone and she thought that he wanted to fight again. She then ran from the
trailer home because she thought defendant would kill her. She hid by a nearby two-story
building across the street from her trailer home. She heard what she believed to be
defendant searching for her while driving her vehicle. She heard a neighbor talking to
defendant and telling him “not to do it.”3 She then heard an explosion and what she
believed to be defendant driving away in her vehicle. Minutes later she heard police
arrive. She clothed herself with a towel4 that she found at the two-story building, walked
to the police officers, and told them that defendant had set her trailer home on fire.
On May 1, 2020, M.L. encountered defendant unexpectedly while he was driving
her vehicle. He told her, “ ‘Get in [her vehicle], you already know, get in’ ” or “ ‘get in
the car or you know what’s going to happen to you.’ ” She got in the vehicle because she
was afraid of defendant. Defendant drove. Defendant told M.L. that if the police caught
him, he was going to kill her. Defendant drove her in the vehicle for days. She
attempted to escape in Barstow but defendant “beat [her] up” and told her not to try to
escape again.
3 A video (that contained audio) of the arson was played for the jury. From that
video, no statement by a neighbor could be heard.
4 A photograph was admitted showing M.L. wearing clothing when she spoke to
police officers that night. She testified that a neighbor loaned her some clothing while
she was wrapped in the towel.
5.
At some point after May 1, 2020, defendant and M.L. stayed at a hotel in
Lancaster. Defendant’s sister came to the hotel to give him something. Defendant did
not offer to let M.L. go with his sister to Bakersfield. M.L. testified that she had no
contact with defendant’s sister at that point. During the drive to Solano County,
defendant kept M.L.’s cell phone and there were text messages back and forth between
M.L.’s cell phone and defendant’s sister’s cell phone. M.L. testified that she did not
write those messages.5 After defendant was arrested and M.L.’s cell phone was returned
to her, she received a text message and a phone call from defendant’s sister.
On May 24, 2020, defendant went inside a hardware store in Stockton and M.L.
drove away in her vehicle. Defendant called M.L., demanded that she pick him up, and
threatened her. Defendant’s sister sent a text message to M.L.’s cell phone asking her to
pick him up and promising that he would not hurt her. M.L. then returned to the
hardware store to pick defendant up.
On May 25, 2020, M.L. escaped when defendant stopped to refuel the vehicle in
Solano County. She exited the vehicle and went into the convenience store attached to
the gas station. Defendant told her to stay in the vehicle but did not physically try to stop
her. She told the attendant that she needed help. On the same date, a social worker
provided M.L. a hotel room. She was alone in the hotel room and made a call to her
cell phone, which was in defendant’s possession, from the hotel’s telephone. She
explained that she was trying to draw defendant to the hotel room because she knew that
police officers were around and would arrest him.
In response to M.L.’s call, defendant came to the hotel and entered M.L.’s room.
He closed the door to her room, barricaded the door, and took a shower. M.L. could not
escape because the outer door was barricaded, she believed defendant was going to take a
5 At least one of the messages from defendant’s sister suggested that defendant and
M.L. were in separate places—defendant in a hardware store and M.L. in her vehicle.
6.
very quick shower, he left the bathroom door open during his shower, and defendant had
a knife. Police officers began calling the hotel telephone line and told defendant to exit.
Defendant remained in the hotel room with M.L. for approximately five hours before he
was arrested.
On May 1, 2020, at approximately 3:40 a.m., Medina and Kern County Sheriff’s
Deputy Izam Perez were both assigned to a patrol route for the Lamont substation. The
two deputies responded to a call regarding the trailer home fire in this case. They arrived
to the scene approximately five minutes after the call and found the trailer home fully
engulfed in flames.
After the fire department put out the fire, M.L. approached Medina. She appeared
to Medina to be “scared,” “timid,” and “hesitant to speak with” him. As he spoke with
M.L., Medina noticed bruising on M.L., including bruises on her face and one of her
arms. She also had redness on her chest. M.L. told Medina that her injuries were a result
of defendant having punched and kicked her over a three-day period. M.L. identified
defendant to Medina and Perez using a photograph of defendant. She told Medina that
defendant had repeatedly come to her trailer home without permission, she continued to
ask him to leave, and he continued to refuse. She told Medina that defendant threatened
to kill her if she called the police and threatened to burn down her trailer home if she ever
left him. She also detailed to Medina the events over the past days: defendant took her
vehicle without permission the previous day, she walked to defendant’s parents’ home,
defendant hit her face and kicked her abdomen, defendant grabbed her by her arms and
forced her into her vehicle, defendant drove to an unknown location with running water
and threatened to kill her, defendant drove her back to her trailer home, she eventually
escaped from the trailer home, defendant took her vehicle, she believed defendant
returned in her vehicle to set fire to her trailer home, and defendant then left again in her
vehicle. She told Medina that at some point defendant took her cell phone but she did not
specify when that took place.
7.
During Medina’s discussion with M.L., she did not mention that she suffered a
chipped or broken tooth as a result of defendant’s attack on her, that she fled the trailer
home only partially clothed, that defendant had demanded sex from her or that she
disrobe, or that defendant used drugs in her presence on May 1, 2020. Medina
photographed the injuries to M.L.’s face and arm but did not photograph her abdomen or
her legs because there was no female office on scene.
Medina called M.L. on September 11, 2020. They set an appointment for M.L. to
meet Medina at the Lamont Sheriff’s Substation to discuss the case on the same date at
around 8:00 p.m. or 9:00 p.m. M.L. did not go to the Lamont substation for the meeting,
did not answer Medina’s calls, and did not call him back.
Greg Ochoa was a captain with the Kern County Fire Department in the arson
investigation unit. He was a firefighter for approximately 24 years and an arson
investigator for 12 years. His job as a captain includes identifying the cause of every fire.
He was involved in the investigation of the fire in this case. He arrived at approximately
4:45 a.m. and saw that the fire had been extinguished. A single-wide trailer burnt down
to its frame was all that remained. On scene, he learned that there may have been an
incident of domestic violence that prompted arson of the trailer home and that defendant
made threats regarding burning M.L.’s home. He further learned that a video
surveillance camera captured a portion of the arson. He obtained the video, which was
played for the jury. The video depicted a person walking toward the trailer home with
some unlit material in his hand; the person walked out of the view of the camera near the
trailer; a “glow” appeared in the video that Ochoa opined was fire; and the person walked
away. Based on the witnesses and the video of the incident, Ochoa determined that the
cause of the fire was arson.
Defendant’s Case
On May 1, 2020, at 3:50 a.m., Kern County Fire Captain Jason Knaggs responded
to the fire at the trailer home. When he arrived, the trailer was “fully involved” in the fire
8.
and could not be saved. His objectives were to protect the surrounding people and
property. He was not able to determine the possible cause of the fire, or the item first
ignited. He could not determine whether the fire started inside or outside of the trailer
home. Many things can cause fires: for instance, overheated cooking equipment,
portable heaters, lit cigarettes, or faulty electrical appliances. Any of those sources could
have caused the fire in this case. Knaggs did not make that determination because he
turned the investigation over to the investigators. Knaggs did conclude that the
circumstances of the fire were suspicious, so he contacted the battalion chief on scene to
conduct a more thorough investigation. He found suspicious the complete involvement
of the trailer home by the time the report came in and the comments by witnesses
regarding the cause of the fire.
Knaggs watched the surveillance video of the trailer home that Ochoa obtained.
He opined that the cause of the fire appeared to be incendiary but he could not determine
the exact cause of the fire or who caused the fire.
On November 13, 2019, Kern County Sheriff’s Deputy Benjamin Morales
responded to a call regarding a vehicle theft. M.L. told Morales that defendant had taken
her vehicle without permission. She represented that she was the registered owner of the
vehicle but that she had also gone to the Department of Motor Vehicles to initiate a
transfer to defendant. Morales conducted a registration check on the vehicle and
determined that there was a registration in progress for defendant, so he did not report the
vehicle stolen.
On October 13, 2020, Alvarez was assigned to conduct a “meet-and-greet” with
M.L. During the conversation, M.L. told Alvarez that defendant punched her on the eye
and took her cell phone while they were at defendant’s parents’ house on April 30, 2020.
After leaving defendant’s parents’ home, on the evening of April 30, 2020, or early
morning of May 1, 2020, defendant took her to a canal near a field in Lamont. M.L. did
not mention whether her eyes were open or closed when defendant transported her. M.L.
9.
told Alvarez that, after defendant transported M.L. back to her trailer home, he injected
himself with some “black substance” and then demanded sex from her. She took her
pants off and then ran from the trailer home, half-clothed. She did not mention that she
found a towel or borrowed clothing from a neighbor.
Nicole M. is defendant’s sister. Prior to May 1, 2020, she and defendant both
lived at their parents’ property in Lamont. M.L. also lived with defendant in a standalone
room behind defendant’s parents’ house. M.L. and defendant were dating. She
remembered that defendant was incarcerated in 2020 at some point before May 1, 2020.
After he was released from custody, M.L. continued to date him. Nicole heard M.L. tell
defendant’s mother that she loved defendant after he was released from jail but before
May 1, 2020. M.L. appeared to Nicole to be comfortable in defendant’s presence and
affectionate to him at that time.
Nicole never saw defendant attack M.L. or verbally insult her. She never saw
M.L. with any injuries. She was never made aware that defendant was being violent with
M.L. or threatening her. Nicole saw M.L. crying at defendant’s parents’ house when
defendant told her to leave but M.L. yelled that she did not want to leave.
After May 1, 2020, M.L. came to defendant’s parents’ house a couple times and
“act[ed] crazy.” Specifically, M.L. repeatedly drove her car “up and down the road [in
front of defendant’s parents’ house] really fast” while honking her vehicle’s horn for
about seven minutes and eventually hit the neighbor’s car. Nicole told M.L. to “stop
acting crazy.” She did not understand M.L.’s response because it was in Spanish.
Nicole testified that M.L. appeared to be under the influence of some intoxicating
substance based on her behavior and her dilated eyes. Another time after May 1, 2020,
Nicole heard M.L. outside of defendant’s room, screaming for him to let her in. Nicole
testified that she did not think M.L. was under the influence of any intoxicating substance
on that date.
10.
Jessica M. is also defendant’s sister. She lived at her parents’ house with
defendant and M.L. from 2018 to 2019. M.L. twice asked Jessica to post bail for
defendant; once in 2019 and once in 2020. After Jessica bailed defendant out the
second time, defendant and M.L. appeared to continue to be in a dating relationship. At
no point did Jessica think that defendant had hurt M.L. or that M.L. was afraid of
defendant. She never saw any injuries to M.L. She thought M.L. stayed with defendant
voluntarily but her opinion might change if she knew that defendant had threatened to kill
M.L. if she left him or threatened to burn down her home.
On May 6, 2020, M.L. sent Jessica a text message, asking defendant’s location.
M.L. told Jessica that defendant had been gone for an hour and a half and had left the
keys to the vehicle with her at the motel room they rented together in Bakersfield.
Sometime after May 1, 2020, Jessica drove to a motel in Lancaster to give defendant
money. M.L. was also present at the motel. Defendant offered to have M.L. return with
Jessica but M.L. declined, saying that she wanted to stay with him. At another time in
May 2020, M.L. and defendant drove to Jessica’s home and left a vehicle in her front
yard. At that time, M.L. and defendant appeared to still be in a dating relationship. On
May 24, 2020, Jessica received a call from defendant, informing her that M.L. had left
him at a store and asking her to contact M.L. Jessica sent M.L. a text message, asking
her to pick defendant up. On May 25, 2020, M.L. sent Jessica a text message asking if
she could come pick up the vehicle that she left in Jessica’s yard.
After defendant was arrested, Jessica, defendant, and M.L. had a three-way phone
call. Jessica asked M.L. “why … she [was] press[ing] these charges.” M.L. “just started
going crazy, saying she didn’t know why.” After defendant exited the call, M.L. told
Jessica that she would “call the D.A. and she was going to drop the charges.”
Two of M.L.’s neighbors from her trailer home testified that they did not witness
anyone starting the trailer fire and did not hear any signs of domestic violence from the
trailer home before it was burned.
11.
Samantha Bone was an investigator for the public defender’s office. On April 28,
2021, she went to the one canal that she found in Lamont, approximately 1.3 miles from
defendant’s parents’ house. The water was mostly still, and she did not hear any running
water from about 10 feet. She then drove to the Kern River, about 20 miles from
defendant’s parents’ house. She heard running water from approximately 30 to 50 feet.
DISCUSSION
I. Senate Bill 567
Defendant contends that we must vacate the sentence and remand the matter
because he did not admit, and the jury did not find true, the facts underlying the
circumstances in aggravation that the trial court relied upon in imposing the upper term.
The People agree that Senate Bill 567 is retroactive to defendant but argue any error in
imposition of the upper term is harmless beyond a reasonable doubt. We agree that any
error in imposing the upper term was harmless because a jury would have found true the
aggravating circumstances beyond a reasonable doubt.
As we explain below, to find that any error was harmless we would have to
conclude (1)(a) beyond a reasonable doubt that the jury would have found beyond a
reasonable doubt that the facts underlying at least one aggravating circumstance was
true,6 and (1)(b) that there is no reasonable probability the jury would not have found the
remaining circumstances true beyond a reasonable doubt, or if fewer than all
circumstances are provable pursuant to part (1)(b) of this analysis, (2) that there is no
reasonable probability the trial court would have imposed a lesser term based on the
6 Alternatively, this step is satisfied if, in imposing the upper term, the trial court
relied upon an aggravating circumstance the underlying facts of which defendant
admitted, or the trial court relied on defendant’s prior convictions as an aggravating
circumstance in consideration of a certified record of defendant’s convictions.
This first step of the harmless error inquiry is demanded by the Sixth Amendment.
If it is not met, the analysis stops, and we conclude that the error was not harmless
because the sentence violates the Sixth Amendment.
12.
aggravating circumstances that would have been provable to the jury beyond a reasonable
doubt.
For the following reasons, we conclude the sentence does not comply with the
requirements of section 1170, subdivision (b), but any error was harmless.
A. Additional Background
The trial court adopted the probation officer’s recommendation regarding the
following five circumstances in aggravation and no circumstances in mitigation. In
aggravation, the court found:
“One, the defendant’s prior convictions as an adult are numerous and
increasing in seriousness, as evidenced by the instant offense and prior
convictions for … [s]ection 245(a)(1), [s]ection 148.9(a), Vehicle
Code 2800.2, 23152(a), … [s]ection 245(a)(4), and … [s]ection 460(b).
That’s the first circumstance. Two, the defendant has served three prior
prison terms and two … [s]ection 1170 [s]ubdivision (h) commitments.
Three, the defendant was on three grants of misdemeanor probation when
the crime was committed. Four, the defendant’s prior performance on
misdemeanor and felony probation, parole, and/or post-release community
supervision was unsatisfactory in that he violated terms and/or reoffended.
Five, at the time the offense was committed the defendant had an active
warrant for his arrest in Tulare County Superior Court Case No. 1377375
and Kern County Superior Court Case No. MM096383A. Citing Rule
4.408.”
In light of those aggravating circumstances, the trial court concluded, “that the
circumstances in aggravation justify imposition of the upper term.” The trial court then
imposed the upper term on counts 4 and 1.
Defendant did not admit, and the jury did not find true—with the exception of
finding defendant guilty of the charged offenses, which the trial court considered with
respect to the first aggravating circumstance—any of the aggravating circumstances
relied upon by the trial court in imposing the upper term. The record does not reflect that
the trial court relied upon any certified record of defendant’s convictions in making
findings regarding his prior criminality.
13.
B. Analysis
From March 30, 2007, to January 1, 2022, California’s determinate sentencing law
specified that “[w]hen a judgment of imprisonment [wa]s to be imposed and the statute
specifie[d] three possible terms, the choice of the appropriate term … rest[ed] within the
sound discretion of the court.” (§ 1170, former subd. (b).)
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b).
(Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he court
may impose a sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated to by
the defendant, or have been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” (§ 1170, subd. (b)(2).) As an exception to the general rule,
a trial court is permitted to rely upon a certified record of conviction to determine prior
criminality for purposes of sentencing without submitting the prior conviction to a jury.
(§ 1170, subd. (b)(3).)
As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to
cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People
v. Dunn (2022) 81 Cal.App.5th 394, 402–403 (Dunn); People v. Flores (2022) 73
Cal.App.5th 1032, 1038–1039) and defendant’s sentence is not yet final on appeal.
In this case, as to the first circumstance in aggravation found true by the trial
court, that “defendant’s prior convictions as an adult are numerous and increasing in
seriousness,” the jury made no finding (except that defendant committed the offenses of
conviction) and the record does not indicate that the trial court relied upon a certified
record of conviction. As to the second through fifth circumstances—defendant’s prior
prison and section 1170, subdivision (h) commitments, defendant’s probation status when
he committed the offenses at issue in the case, defendant’s unsatisfactory performance on
probation, parole, and postrelease community supervision, and defendant’s active
14.
warrants in other cases at the time of the offenses—the jury made no findings and
defendant entered no stipulations.
Despite none of the aggravating circumstances having been proved in compliance
with section 1170, subdivision (b)(2) and (3), the upper term was imposed on counts 1
and 4. Imposition of the upper term on counts 1 and 4 is not in compliance with
section 1170, subdivision (b).7 Therefore, unless imposition of the upper term on
counts 1 and 4 was harmless, the sentence must be vacated and the matter remanded to
the trial court for resentencing in compliance with section 1170, subdivision (b).
The People contend that any error is harmless because all factors were provable
beyond a reasonable doubt. They appear to also suggest that even if not all aggravating
circumstances were provable beyond a reasonable doubt, the trial court would
nevertheless have imposed the upper term because “the law does not require the trial
court to rely on a minimum number of aggravating circumstances” and “as long as a jury
could have found a single aggravating circumstance true beyond a reasonable doubt, any
error was harmless.” For the proposition that error was harmless if the jury would have
found a single aggravating circumstance true beyond a reasonable doubt, the People rely
on People v. Flores (2022) 75 Cal.App.5th 495, which applied the harmless-beyond-a-
reasonable-doubt standard of harmless error from Chapman v. California (1967) 386
U.S. 18 as adapted to the context of violations of the Sixth Amendment right to a jury
trial on aggravating circumstances by People v. Sandoval (2007) 41 Cal.4th 825, 838–
839.8 (Flores, at pp. 500–501.)
7 Again, we note that the law has changed since the trial court imposed the sentence
in this case. At the time the court imposed the sentence, it complied with the applicable
law.
8 Sandoval, as we explain in more detail below, considered the standard for
harmless error in the context of Cunningham v. California (2007) 549 U.S. 270(Cunningham) error—where a sentence in excess of the statutory maximum sentence was
15.
This court rejected the approach taken by Flores in Dunn, supra, 81 Cal.App.5th
at pages 409–410. We conclude the trial court’s imposition of the upper term did not
meet the requirements of section 1170, subdivision (b), but the error was harmless based
on the standard this court articulated in Dunn:
“The reviewing court determines (1)(a) beyond a reasonable doubt
whether the jury would have found one aggravating circumstance true
beyond a reasonable doubt [9 ] 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
remands for resentencing consistent with section 1170, subdivision (b).”
(Dunn, supra, 81 Cal.App.5th at pp. 409–410.)
With that standard in mind, we revisit the aggravating circumstances relied upon
by the trial court.
We begin by noting that all the aggravating circumstances relied upon by the trial
court were historical considerations rather than considerations related to the nature of the
present offense. Further, defendant and his counsel were provided a copy of the
probation officer’s report detailing defendant’s extensive criminal history, incarceration
imposed under California’s former determinate sentencing law without submitting the
facts authorizing such a sentence to a jury.
9 “Alternatively, this step is satisfied if the trial court relied upon an aggravating
circumstance that relied only upon the fact of defendant’s prior convictions and a
certified record of defendant’s convictions was admitted, or defendant admitted the facts
underlying an aggravating circumstance. [¶] … [S]tep (1)(a) or one of its
two alternatives must be satisfied to avoid offending the Sixth Amendment .… If not, the
error is not harmless; the sentence must be vacated and the matter remanded to the trial
court for resentencing consistent with section 1170, subdivision (b).” (Dunn, supra, 81
Cal.App.5th at p. 410.)
16.
record, probation, parole, and postrelease community supervision history, pending
charges and bench warrant from Tulare County, and active grants of probation. (See
§ 1203d.) Specifically, defendant was convicted of: reckless exhibition of speed (Veh.
Code, § 23109, subd. (c)) in 1996, and violated probation in 1997; forgery (§ 470,
subd. (a)) in 1997, and violated probation in 1998; possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a)) in 1998, violated probation in 1999, and was
committed to custody in 2000; assault with a deadly weapon (§ 245, subd. (a)(1)) in
1998, violated probation in 1999, was committed to custody for three years, then violated
parole twice; driving without a license (Veh. Code, § 12500, subd. (a)) in 1999, and
violated probation that year and the following year; possession of a controlled substance
(Health & Saf. Code, § 11357, subd. (b)) and falsely identifying himself to a police
officer (§ 148.9 subd. (a)) in 1999, and violated probation in 2000; public intoxication
(§ 647, subd. (f))10 in 2001; being under the influence of a controlled substance (Health
& Saf. Code, § 11550, subd. (a)) and being present in a place where controlled substances
are being used (Health & Saf. Code, § 11365) in 2002; petty theft (§ 488) in 2003;
two counts of driving on a suspended license (Veh. Code, § 14601.1, subd. (a)) and petty
theft (§ 666) in 2006, violated probation less than one month later, and was sentenced to
jail; receiving stolen property (§ 496, subd. (a)) in 2006 for which he was sentenced to
prison, and upon release he violated parole; petty theft (§ 666) in 2010 for which he was
sentenced to prison; being under the influence of a controlled substance (Health & Saf.
Code, § 11550, subd. (a)) in 2011; evading a peace officer with wanton disregard for
persons or property (Veh. Code, § 2800.2) and driving under the influence of alcohol
(Veh. Code, § 23152, subd. (a)) in 2011, violated probation three times in 2012, was
committed to prison, and violated postrelease community supervision twice in 2014;
10 The probation report reflects that defendant violated Vehicle Code section 647,
subdivision (f), but no such section exists.
17.
possession of paraphernalia (Health & Saf. Code, former § 11364.1, now § 11364) in
2012; second degree burglary (§ 460, subd. (b)) in 2012 for which he was sentenced to
prison; possession of paraphernalia (Health & Saf. Code, former § 11364.1, now
§ 11364) in 2013; assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(4)) and forgery (§ 470, subd. (d)) in 2014 for which he was sentenced to prison;
forgery (§ 470, subd. (d)) in 2016, violated probation three times in 2017, was sentenced
to a split sentence the same year, violated mandatory supervision twice in 2019, and was
again returned to custody in 2020; trespassing (§ 602.5, subd. (a)) and possession of
burglary tools (§ 466) in 2017, violated probation in 2018, and had his probation
extended to 2022; second degree burglary (§ 460, subd. (b)) in 2017 for which he was
sentenced to a split sentence, and violated mandatory supervision in 2019; two counts (in
separate cases) of petty theft (§ 488) in 2019, for which he was sentenced to two separate
three-year terms of probation; theft (§ 484, subd. (a)) in 2019; and forgery of automotive
documents (Veh. Code, § 4463, subd. (a)(1)) in 2019. The probation officer’s report
reflects that the information regarding defendant’s criminal history was obtained from the
Federal Bureau of Investigation’s Criminal Justice Information Services, the Department
of Justice’s Criminal Identification and Information database, the Department of Motor
Vehicles’ database, and defendant’s juvenile records, among others. The probation report
also noted that “[a]ccording to the defendant, he [had] pending charges for a new case in
Tulare County” and the officer confirmed that “defendant ha[d] a bench warrant hold
from Tulare County” for burglary (§ 459) and grand theft (§ 487, subd. (a)) offenses.
At the sentencing hearing, defendant’s counsel was invited to present “any
evidence or argument.” Defendant’s counsel argued that the sentences on counts 2, 3,
and 5 should run concurrently to the sentence on count 4. Neither defendant nor his
attorney contested the accuracy of any of the facts underlying the aggravating
circumstances as outlined by the probation officer. There is no logical reason that
defendant and his counsel would not have challenged the accuracy of his offense,
18.
probation, parole, postrelease community supervision, and prison records, as well as his
pending charges and warrant if not true. If any of that information was incorrect,
defendant could have proved that it was untrue with relative ease.
On the record before us, we conclude beyond a reasonable doubt 11 that the jury
would have found true beyond a reasonable doubt that (1) defendant’s prior convictions
as an adult were numerous and increasing in seriousness, (2) defendant served three prior
prison terms and two section 1170 subdivision (h) commitments, (3) defendant was on
three grants of misdemeanor probation when the crime was committed, (4) defendant’s
prior performance on misdemeanor and felony probation, parole, and/or postrelease
community supervision was unsatisfactory in that he violated terms and/or reoffended,
and (5) at the time the offense was committed, defendant had an active warrant for his
arrest. The noncompliance with section 1170, subdivision (b) was harmless.
DISPOSITION
The judgment is affirmed.
11 We note that under Dunn, we are only required to find beyond a reasonable
doubt that the jury would have found true beyond a reasonable doubt
one aggravating circumstance. As to the other aggravating circumstances, we
need only conclude that there is no reasonable probability the jury would not have
found those factors true. (Dunn, supra, 81 Cal.App.5th at pp. 409–410.)
19.