People v. Key CA2/3 ( 2022 )

Filed 8/16/22 P. v. Key CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B313426
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA491567)
v.
DAMETRI KEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Garcia, Judge. Sentence vacated
and remanded with directions.
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 Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted Dametri Key of one count of assault by
means of force likely to produce great bodily injury (Pen. Code,
§ 245, subd. (a)(4)).1 The jury found not true a section 12022.7,
subdivision (a) allegation that Key personally inflicted great
bodily injury. The trial court sentenced Key to the upper term of
four years in state prison.
While this appeal was pending, Senate Bill No. 567 (2021–
2022 Reg. Sess.) (Senate Bill 567), amended section 1170 and
became effective on January 1, 2022. (Stats. 2021, ch. 731, § 1.3.)
The parties agree Senate Bill 567 applies retroactively to
nonfinal cases on appeal, such as this one, but they disagree on
whether resentencing is warranted.
We agree that Senate Bill 567 applies retroactively and
conclude that resentencing pursuant to amended section 1170 is
necessary.
BACKGROUND
I. Prosecution evidence
In May 2020, an eyewitness driving through Skid Row
observed Key punching a woman in the head. As the eyewitness
began taking a cell-phone video, the victim rose from the ground
while Key yelled at her to get away from his house. The
eyewitness ceased recording, parked his car, and called 911. The
crying, bleeding, and frantic victim approached him while Key
continued screaming at her. Key returned to an encampment
across the street where he resided.
After police arrived, the victim identified Key by name and
pointed across the street to the encampment. Police found Key
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
and detained him without incident. The victim retrieved her
belongings from Key’s tent. She had swelling and a laceration on
her head. After an EMT recommended hospitalization for
stitches and a head exam, the victim was transported to the
hospital. Hospital records showed she had a scalp laceration and
a fractured jaw. She received a CT scan and sutures or staples
for the laceration.
II. Defense evidence
The victim informed a medical caseworker that she was
renting a room in Pomona, but she could not return there because
her roommate had assaulted her. The victim’s doctor attested
her fractured jaw was acute, meaning it had occurred within the
past week. The injury required further treatment, but the victim
left before such treatment could be provided.
III. Sentencing
In June 2021, the trial court sentenced Key to the upper
term of four years in prison. The court explained the sentence:
“So this is a case that went to trial. The court had the benefit of
hearing the evidence as well as the exhibits that were admitted
into evidence. [¶] The court has also reviewed the probation
report, probation pre-sentence report, and notes the—its findings
set out in [California Rules of Court,] [r]ule 4.421[(a)], with
regard to aggravating factors that the crime involved great bodily
harm. [¶] The court recognizes that the jury did not find true
the enhancement, but recognizes the injuries that were suffered
by the victim. [¶] It also—the court has taken into consideration
that under [r]ule 4.421(b) that Mr. Key has served prior terms in
prison or county jail under 1170[, subdivision] (h), one of them
being the—one of them, although he’s suffered others, but one of
them being the conviction in 2017 for robbery. [¶] So the
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court . . . is going to order that Mr. Key be sentenced to the term
of four years. The court selects the high term under the rules
that I’ve just identified.”2
Key timely appealed.
DISCUSSION
Key contends Senate Bill 567 entitles him to have his upper
term sentence vacated and to resentencing consistent with
amended section 1170. We agree.
I. Senate Bill 567
When Key was originally sentenced in June 2021,
section 1170, former subdivision (b), afforded the trial court
discretion to choose between the lower, middle, and upper term
as “best serves the interests of justice.” While this appeal was
pending, Senate Bill 567 amended section 1170, subdivision (b),
2 The probation report was completed several months
before the trial. It listed five aggravating factors: “1. The crime
involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness. [¶] 2. The manner in which the
crime was carried out indicates planning, sophistication, or
professionalism. [¶] 3. The defendant has engaged in violent
conduct that indicates a serious danger to society. [¶] 4. The
defendant’s prior convictions as an adult or sustained petition
juvenile delinquency proceeding are numerous or of increasing
seriousness. [¶] 5. The defendant has served a prior prison term
or county jail section 1170[, subdivision] (h).” The report also
indicated that over a nearly 30-year period, Key had suffered
approximately six prior felony convictions and 11 prior
misdemeanor convictions. The report stated there were no
mitigating circumstances. Key’s sentencing memorandum
acknowledged the prior convictions were reflected on his rap
sheet.
4
to preclude a sentence above the middle term unless “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).) Notwithstanding subdivision (b)(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.” 3 (§ 1170,
subd. (b)(3).)
We accept the People’s concession that the amended
version of section 1170, subdivision (b) applies retroactively in
this case as an ameliorative change in the law applicable to all
nonfinal convictions on appeal. (People v. Conley (2016)
63 Cal.4th 646, 657 [“in the absence of contrary indications, a
legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible”]; In re Estrada
(1965) 63 Cal.2d 740, 745; People v. Flores (2022) 73 Cal.App.5th
1032, 1039 [Senate Bill 567 applies retroactively to nonfinal
convictions on appeal].)
3 Senate Bill 567 also added subdivision (b)(6)(A) to
section 1170, which provides that unless aggravating
circumstances outweigh mitigating circumstances such that the
lower term would be contrary to the interests of justice, a trial
court is required to impose the low term if the defendant has
“experienced psychological, physical, or childhood trauma,” and
that was a contributing factor in the commission of the offense.
5
II. The original sentencing was inconsistent with the
amended law
Despite their concession as to retroactivity, the People
argue resentencing is unnecessary because the original
sentencing did not violate the amended statute. We disagree.
The trial court considered two aggravating factors in
imposing the upper term: (1) that the “crime involved . . . great
bodily harm” (Cal. Rules of Court, rule 4.421(a)(1)); and (2) that
Key had suffered prior convictions and served prior terms in
prison or county jail under section 1170, subdivision (h) (Cal.
Rules of Court, rule 4.421(b)(3)). The People concede that the
first factor—that the crime involved great bodily harm—was not
found by a jury or stipulated to by the defendant, and therefore it
could not be a basis for an upper term sentence under amended
section 1170, subdivision (b).
The People contend, however, that the trial court’s reliance
on Key’s criminal history was consistent with amended
section 1170, subdivision (b). Although the prosecution presented
no certified records relating to Key’s prior convictions, the People
argue imposition of the upper term was still proper because Key
admitted the fact of his convictions in his sentencing
memorandum. We cannot agree. An admission of a prior
conviction in an unsworn sentencing memorandum is not
equivalent to a stipulation. (People v. Mendias (1993)
17 Cal.App.4th 195, 206, fn. 8; People v. Cross (2015) 61 Cal.4th
164, 174 [unwarned stipulation to prior conviction resulting in
enhanced sentence invalid].) This is particularly true here, since
the defense filing occurred before the statute was amended to
incorporate a specific required means of proof for prior
convictions. (People v. Jackson (2005) 129 Cal.App.4th 129, 161
6
[counsel’s statements are admissions only if so intended, provided
they are not “ ‘improvidently or unguardedly made’ ”].) The prior
convictions were not established by a certified record of
conviction, jury finding, or stipulation, as required by amended
section 1170, subdivision (b), for the trial court to properly
consider them in imposing the upper term sentence.4
The People further summarily contend the trial court
permissibly relied on another aggravating factor: that Key’s
crime involved a finding of a “threat of great bodily harm.” The
People assert this factor was sufficiently established by the jury’s
finding that Key was guilty of assault by means of force likely to
produce great bodily injury. (Cal. Rules of Court, rule 4.421(a)(1);
§ 245, subd. (a)(4)). Yet, the record does not support the
contention that the trial court actually considered or relied on
this factor. Because the statute requires that—excepting the fact
of prior convictions—every factor upon which the court intends to
rely in imposing an upper term be admitted by the defendant or
proven to a jury, the only aggravating factors relevant to
assessing statutory error are those the court actually considers.
(See § 1170, subd. (b); People v. Lopez (2022) 78 Cal.App.5th 459,
467 & fn. 11; see also People v. Black (2007) 41 Cal.4th 799, 818
4 The only document listing Key’s prior convictions was a
probation report. We need not decide whether a probation report
generally may meet the requirements of section 1170,
subdivision (b)(3), noting only that in this case the probation
report was not certified, a probation officer did not certify the
accuracy of Key’s criminal record as contained in the probation
report, and the report itself appeared to contain inaccuracies; for
example, the report described the 2017 robbery conviction as a
misdemeanor.
7
[trial court stated it considered aggravating circumstances set
out in district attorney’s sentencing brief].)
Accordingly, applying Senate Bill 567 retroactively, it was
error to consider these two factors as the basis for an upper term
sentence.
III. Remand for resentencing is necessary
The People argue that even if the trial court’s imposition of
the upper term did not comply with the amended version of
section 1170, subdivision (b), remand is still unnecessary because
any error was harmless. They advance only two arguments to
support their assertion of harmless error, both of which we find
unavailing.
First, the People argue “there was evidence of the sole
planning aggravating circumstance (outside of the threat of great
bodily harm and prior conviction aggravating circumstances) that
the trial court relied upon such that a jury would have found the
circumstance to be true beyond a reasonable doubt.” (See People
v. French (2008) 43 Cal.4th 36, 53 [“The failure to submit a
sentencing factor to a jury may be found harmless if the evidence
supporting that factor is overwhelming and uncontested, and
there is no ‘evidence that could rationally lead to a contrary
finding’ ”].)
However, as explained above, the trial court relied on only
two aggravating factors: prior convictions and prison or county
jail terms served, and that the crime involved great bodily harm.
The court did not rely on a planning factor.5 (People v. Avalos
5 We note that even if the trial court had relied on this
factor, we could not conclude, beyond a reasonable doubt, that the
jury would have found the relevant circumstances true, beyond a
8
(1984) 37 Cal.3d 216, 233 [inquiry concerns what was
“determinative for the sentencing court”]; People v. Osband
(1996) 13 Cal.4th 622, 730 [aggravating factors court listed
relevant to harmless error].)
Second, the People contend Key “acknowledged the injuries
to the victim,” thus any error in failing to require a jury finding
as to that aggravating factor was harmless. Not so. The defense
memorandum’s recitation of the victim’s injuries was background
information, and the same memorandum referenced evidence
admitted at trial that called into question the cause of the
victim’s injuries. Key cannot be said to have conceded or
otherwise stipulated to the truth, fact, or extent of the victim’s
injuries based on his discussion of those injuries in a sentencing
memorandum. The evidence of the extent and cause of the
victim’s injuries was contested. And, as noted above, the jury
found not true the allegation that Key personally inflicted great
bodily injury. (People v. Sandoval, supra, 41 Cal.4th at p. 841
[verdict partially rejecting prosecution’s view of evidence
reasonable doubt. The evidence at trial focused on the in-
progress violent altercation the eyewitness observed, and the
aftermath of the altercation. Little to no evidence was offered to
provide any context for the incident that would clearly suggest
planning, sophistication, or professionalism. Certain details
included in the probation report and the prosecution sentencing
memorandum—such as that the incident began after the victim
refused Key’s demand for sex—did not come in at trial. Nor can
we be certain what evidence Key would have offered had a
“planning” aggravating circumstance been charged and tried to
the jury. (See People v. Sandoval (2007) 41 Cal.4th 825, 839–840
[defendant’s incentives to litigate aggravating circumstances
before jury differ from sentencing].)
9
gravitated against harmless-error finding].) We cannot conclude
the jury necessarily would have found true an aggravating
circumstance related to the victim’s injuries or great bodily harm.
Finally, to the extent the People’s arguments on appeal can
be understood as asserting any error was harmless because the
trial court could permissibly rely on Key’s prior convictions alone,
we disagree.
Under the amended version of section 1170, subdivision (b),
a trial court may impose an upper term sentence only if there are
circumstances in aggravation of the crime that justify the
imposition of an upper term sentence, and the facts underlying
those circumstances have been established consistent with the
statute. Our high court explained in People v. Sandoval, supra,41 Cal.4th at page 839, that Sixth Amendment error in the
context of aggravating factors is harmless when the reviewing
court finds beyond a reasonable doubt that a jury would have
found at least one aggravating circumstance true, beyond a
reasonable doubt. Moreover, trial courts may rely on prior
convictions as a basis for imposing an upper term sentence
without running afoul of the Sixth Amendment right to a jury
trial. (Id. at pp. 836–837 [The “right to a jury trial and the
requirement of proof beyond a reasonable doubt do not apply to
the aggravating fact of a prior conviction”].)
However, this case presents a different question, which is
what remedy is proper when a change in law results in the trial
court having been unaware of the scope of its discretionary
authority when imposing the original sentence. In such cases,
our high court has held “that the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even
10
if it had been aware that it had such discretion.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) Similarly, “[w]hen a
trial court has given both proper and improper reasons for a
sentence choice, a reviewing court will set aside the sentence only
if it is reasonably probable that the trial court would have chosen
a lesser sentence had it known that some of its reasons were
improper.” (People v. Price (1991) 1 Cal.4th 324, 492.)
In this case, the trial court relied on only two factors in its
selection of the upper term, one of which was impermissible
following the enactment of Senate Bill 567. As explained above,
we cannot conclude the jury necessarily would have found true
the circumstances underlying that factor. Although the other
factor—Key’s prior convictions and prison terms—likely could
have been established consistent with the amended statute, it is
not clear the trial court would have selected the upper term
based on that factor alone. Key’s most recent conviction was
approximately two and a half years prior to the commission of the
instant offense. The defense sentencing memorandum noted that
following the enactment of Propositions 47 and 64, three of Key’s
felony convictions are now classified as misdemeanors; another of
the felony convictions is no longer a crime.
The trial court did not indicate how it was weighing the two
factors upon which it relied. Indeed, contrary to the People’s
assertion on appeal, the trial court offered no statements
suggesting it was relying primarily on Key’s criminal history in
selecting the upper term sentence. The record does not clearly
11
indicate that the trial court would have selected the upper term
based on Key’s prior convictions or prison terms alone.6
We conclude remand is necessary to allow the trial court to
exercise its sentencing discretion consistent with amended
section 1170, subdivision (b). On remand, the parties may argue
for the term they believe is appropriate under the amended law.
6 This case is thus distinguishable from People v. Flores
(2022) 75 Cal.App.5th 495, in which the trial court relied only on
aggravating factors related to the defendant’s criminal history:
prior convictions and sustained juvenile delinquency petitions, as
well as unsatisfactory performance on probation as evidenced by
the defendant’s conviction on the underlying offense in the case.
The reviewing court in Flores did not consider the proper
standard for assessing prejudice following the enactment of
Senate Bill 567 where, as in this case, the trial court relied on
one factor that could have been properly established, but the trial
court also relied on factors not meeting that same standard. (See
People v. Lopez, supra, 78 Cal.App.5th at pp. 466–467 [if
reviewing court cannot conclude beyond a reasonable doubt that
all aggravating factors on which trial court relied would have
been found true by jury beyond a reasonable doubt, court must
then determine whether it is certain that trial court would still
have selected upper term if it could permissibly rely only on some
portion of those factors].)
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DISPOSITION
The sentence is vacated, and the matter is remanded to the
trial court for resentencing consistent with Senate Bill No. 567
and the amendments to Penal Code section 1170. We express no
opinion as to how the trial court should exercise its discretion
within the confines of the statutory amendments.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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