People v. Chaney CA1/1 ( 2023 )

Filed 7/27/23 P. v. Chaney CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A165204
v.
AJ CHANEY, (Humboldt County
Super. Ct. No. CR2101569)
Defendant and Appellant.
Following defendant’s plea of guilty to several felonies involving the
infliction of corporal injury on his spouse and the spouse’s two sons, the trial
court sentenced him to state prison. Because the trial court sentenced
defendant to the aggravated term for corporal injury on a child, without first
obtaining a stipulation from defendant as to the circumstances in
aggravation relied upon by the court to impose the upper term, we reverse
and remand for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND1
Jane Doe and defendant were married and homeless, living out of a
travel trailer. Jane Doe told a deputy sheriff she and defendant had no
children in common, but her two sons, John Doe One and John Doe Two,
1 Because this matter was resolved by plea, we briefly summarize the
facts from the probation report.
lived with them in the trailer. For the past month, defendant had physically
beaten her and John Doe One. Additionally, defendant recently had some
teeth pulled and was in severe pain. Defendant was told, according to Jane
Doe, that he had four months to live, due to emphysema, and had been
diagnosed with several mental health disorders. She described how
defendant had been taking out his frustration and pain on her and John Doe
One. While speaking with Jane Doe, the deputy sheriff observed a bruise on
her chin, a small bruise above her left eye, and a red and swollen right cheek,
in addition to bruises on her stomach, shins, and knees. All the bruises were
recent.
After speaking with Jane Doe, the deputy spoke with her son, John Doe
One. The deputy observed the child was very scared, had a cauliflower ear,
and bruises on his chin, forehead, and right bicep. When asked about his ear,
John Doe One responded defendant had hit him because he “got in trouble for
not listening and lying.” As to the bruise on his chin, the minor stated
defendant had punched him.
A complaint charged defendant with one count of corporal injury on a
child with a special allegation of great bodily injury (Pen. Code,2 §§ 273d,
subd. (a), 12022.7, subd. (a); count 1), three counts of infliction of corporal
injury on a spouse/cohabitant (§ 273.5, subd. (a); counts 2, 3, & 4), and one
count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 5).
At the hearing to resolve defendant’s case, the prosecutor orally
amended the complaint to add a great bodily injury allegation to count 2,
infliction of corporal injury on a spouse/cohabitant; struck the great bodily
injury allegation on count 1, corporal injury on a child, as to John Doe One;
and added count 6, corporal injury on a child, as to John Doe Two (§ 273d,
2 All statutory references are to the Penal Code.
2
subd. (a)), and count 7, misdemeanor sexual battery, as to Jane Doe (§ 243.4,
subd. (a)).
During that same hearing, defendant pled guilty to two counts of
inflicting corporal injury on a child (counts 1 & 6), one count of inflicting
corporal injury on a spouse/cohabitant with personal infliction of great bodily
injury (count 2), and misdemeanor sexual battery (count 7). Counts 3, 4, and
5 and the great bodily injury allegation as to count 1 were dismissed.
Less than a month later, the public defender conflicted out of the case,
and new counsel was appointed. New counsel calendared a motion for mental
health diversion pursuant to section 1001.36,3 asserting defendant suffered
from mental disorders. The court rejected the motion as untimely, finding
that postplea defendant could not be considered for diversion. This ruling
proved to be correct, because subsequently our Supreme Court in People v.
Braden (2023) 14 Cal.5th 791, 799–800, held a request for mental health
diversion under section 1001.36 must be made “before attachment of jeopardy
at trial or the entry of a guilty or no contest plea, whichever occurs first.” As
the request for mental health diversion here was not presented until after
defendant’s conviction by guilty plea, it was untimely.
The court sentenced defendant to 11 years 4 months in state prison,
consisting of the aggravated term of 6 years for count 1, infliction of corporal
injury on a child; a consecutive term of 1 year 4 months (one-third the
midterm) for count 2, corporal injury on a spouse, with an additional
3 Under section 1001.36, a defendant is eligible for pretrial diversion if
he or she has been diagnosed with “a mental disorder as identified in the
most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders” and “the defendant’s mental disorder was a significant factor in
the commission of the charged offense.” (Id., subd. (b)(1) & (2).)
3
three years for personal infliction of great bodily; and a consecutive term of
one year (one-third the midterm) for count 6, corporal injury on a child.
Defendant filed a timely appeal based on the sentence and other
matters occurring after the plea.
II. DISCUSSION
Defendant’s counsel originally filed a brief raising no issues and
requesting that this court conduct an independent review of the record to
identify any issues that could result in reversal or modification of the
judgment if resolved in defendant’s favor. (People v. Kelly (2006) 40 Cal.4th
106; People v. Wende (1979) 25 Cal.3d 436.) Following our review of the
record, we requested supplemental briefing regarding whether this matter
must be remanded for resentencing to comply with section 1170,
subdivision (b), because the trial court sentenced defendant to the aggravated
term on count 1 without obtaining a stipulation from defendant as to the
circumstances in aggravation relied upon by the court to impose the upper
term.4
As discussed further, we conclude remand for resentencing is
warranted in this case.
A. Imposition of the Aggravated Term on Count 1
Before the court imposed the aggravated term of six years on count 1, it
considered aggravating and mitigating factors. The court first reviewed
defendant’s criminal history, noting “there is a 2009 disturbing the peace,
and there is a 2009 simple battery. There is a 2012 disturbing the peace
although it indicates ‘disposition unknown.’ ” The court also noted defendant
suffered convictions for domestic violence in 2017 and 2019, and a “2020
conviction for felony third degree assaults and misdemeanor menacing.”
4 We found no other issues requiring additional briefing.
4
Moving to the probation report, the court stated, “[T]he facts that have
been identified in the probation report are horrific.” With regard to the
Static-99R, the court observed the report indicated defendant was “an above-
average risk to reoffend.” As to its reasons for imposing the aggravated term,
the court explained: “[Defendant] has entered pleas of guilty to offenses that
not only are felony serious [sic] and violent offense[s], he will also be required
to register as a sex offender. Given that he was on probation at the time of
committing a violent strike offense, that in and of itself would make him
statutorily ineligible aside from his prior felony conviction. He has one prior
felony conviction. [¶] I would consider Dr. Kelly’s report. That will be held
confidentially in the Court file. Although not a formal statement of
mitigation, I would consider that as the defense position as to why a
mitigated term or midterm might be appropriate; however, the Court does
not agree. I do believe given the nature of the level of violence endured by
this family at the hands of [defendant], the Court would be remiss in doing
anything other than imposing the aggravated term. [¶] So as to Count One, I
am imposing six years in the department of corrections. That is the
aggravated term of six years.”
B. Senate Bill 567 Amended the Aggravated Term Sentencing
Requirements
Effective January 1, 2022, and prior to the imposition of defendant’s
sentence on April 25, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.)
(Senate Bill 567) amended section 1170, subdivision (b) to require that when
a statute specifies three potential terms of imprisonment, a court must
presumptively impose the middle term. (§ 1170, subd. (b)(1), as amended by
Stats. 2021, ch. 731, § 1.3.) Moreover, a court may not impose the upper term
unless aggravating circumstances “justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those
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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).) Under section 1170, subdivision (b)(3), however,
“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.”
C. Remand and Resentencing Is Appropriate
Defendant argues, the People concede, and we agree the matter must
be remanded for resentencing in compliance with section 1170,
subdivision (b) because the circumstances in aggravation relied upon by the
trial court were not stipulated to by defendant, proven to a jury beyond a
reasonable doubt, or proven through certified records of prior convictions.
Following defendant’s guilty plea, the court asked the prosecutor to
state the factual basis for the plea.5 The prosecutor stated that “[d]uring the
months of April 2021 as well as throughout the month of May of 2021,
leading up to May 24th,” defendant physically assaulted his wife, Jane Doe,
on “multiple occasions,” causing “traumatic brain injury.” Jane Doe also
suffered a broken nose. While in Mendocino County, defendant forced her
into having sexual intercourse, the basis for the sexual battery offense. Jane
Doe had two children, John Doe One and John Doe Two. According to the
prosecutor, defendant struck John Doe One repeatedly on the ear, and even
after it had become swollen, continued to strike the child’s ear as a form of
punishment. In addition, defendant struck John Doe One in the groin while
defendant was wearing cowboy boots. As to the youngest son, John Doe Two,
defendant, on one occasion, strangled him as a form of punishment.
5 No preliminary hearing was held before defendant entered his plea.
6
Although defendant’s counsel stipulated, based on the prosecutor’s
description of the offenses, to a factual basis for defendant’s plea,
significantly, defendant never admitted any factors in aggravation. That is,
he did not personally stipulate to a factual basis for the plea or at any time
admit to his prior criminal record. Nor is there any indication in the record,
as required under section 1170, subdivision (b)(3), that the sentencing court
was presented with a certified record of defendant’s prior criminal record.
While there may be aggravating circumstances supporting the court’s
choice of the aggravated term, the record fails to demonstrate they were
proved by defendant’s admission, a jury’s finding beyond a reasonable doubt,
or a certified record of defendant’s prior criminal history. Accordingly, the
matter must be remanded for resentencing in compliance with the
requirements of section 1170, subdivision (b), or the aggravated term on
count 1 may not be imposed.6
III. DISPOSITION
The matter is remanded for resentencing in light of section 1170,
subdivision (b), as amended by Senate Bill 567. On remand, the trial court
should allow the prosecutor to elect (1) to meet the requirements of the
amended version of section 1170, subdivision (b); or (2) accept resentencing
on the existing record. In all other respects the judgment is affirmed.
6 The Attorney General has forfeited any harmless error claim by
failing to brief it.
7
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A165204
People v. Chaney
8