People v. Daniel CA5 ( 2024 )

Filed 1/22/24 P. v. Daniel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F084961
Plaintiff and Respondent,
(Super. Ct. No. BF184018A)
v.
ANTHONY JAKWON DANIEL, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
David W. Beaudreau, 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
Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Anthony Jakwon Daniel was convicted following a jury trial of first
degree murder (Pen. Code,1 § 187, subd. (a); count 1); second degree robbery (§ 212.5,
1 All further undesignated statutory references are to the Penal Code.
subd. (c); count 2); shooting at an occupied vehicle (§ 246; count 3); and assault with a
semiautomatic firearm (§ 245, subd. (b); count 4). As to counts 1, 2, and 3, the jury
found true that appellant personally discharged a firearm that proximately caused a death
(§ 12022.53, subd. (d)), and, as to count 4, that appellant personally used a firearm
(§ 12022.5). The jury also found true several aggravating circumstances as to each count:
(1) the crime involved great violence (Cal. Rules of Court, rule 4.421(a)(1)2); (2) the
victim was particularly vulnerable (rule 4.421(a)(3)); and (3) the crime involved planning
and sophistication (rule 4.421(a)(8)).
Appellant was sentenced to an indeterminate prison term of 25 years to life plus
25 years to life for the firearm enhancement as to count 1; the upper term of five years
plus 25 years to life as to count 2; the upper term of seven years plus 25 years to life for
the firearm enhancement as to count 3; and the upper term of nine years plus 10 years for
the firearm enhancement as to count 4. Punishment was stayed pursuant to section 654 as
to counts 2 and 3, for a total prison term of 50 years to life plus 19 years.
On appeal, appellant, who was 19 years old at the time he committed the offenses,
contends the court erred by excluding expert testimony on adolescent brain development.
Appellant further contends his Sixth Amendment right to a jury trial was violated by the
court’s consideration of two aggravating circumstances not presented to nor found true by
the jury—that he was on juvenile probation at the time of the offenses and that his
performance on juvenile probation was unsatisfactory—in imposing the upper terms of
imprisonment. Finally, appellant contends the sentencing minute order and abstract of
judgment contain an error that conflicts with the oral pronouncement of judgment
regarding the amount of the restitution fine imposed pursuant to section 1202.4.
We remand the matter for resentencing with directions to the trial court to only
consider proper factors in deciding whether to impose the upper term of imprisonment in
2 All further rule references are to the California Rules of Court.
2.
compliance with section 1170, subdivision (b). We decline to reduce appellant’s
restitution fine because the record indicates the minute order and abstract of judgment
reflect the correct amount. In all other respects, the judgment is affirmed.
FACTS
Prosecution Case
On the morning of December 31, 2020, Emmanuel Arechiga and his girlfriend,
Alyssa Mazza, woke up, smoked some marijuana in Arechiga’s car, and went to the bank
to withdraw $500 from Arechiga’s bank account. Arechiga had been planning to buy a
gun, and that morning he told Mazza they were going to meet someone to buy the gun
after withdrawing the money. Arechiga had received directions from someone via
Snapchat as to where the transaction would take place.
When Arechiga and Mazza got near the area where they were supposed to meet
the seller, someone standing in the street directed them to an alleyway. Mazza testified
the person was white, skinny, had a buzzcut, and was wearing a mask. Further evidence
presented at trial supported that this person was 17-year-old Vincent Hines. After
Arechiga pulled into the alleyway, Hines stood next to the driver’s side window, and he
and Arechiga started arguing in a slightly aggressive manner, with Hines saying, “show
me the money,” and Arechiga saying, “show me the gun.” As soon as Hines started
talking, another person appeared to Hines’ left towards the front of the vehicle, who,
according to Mazza, was Black and a little taller than Hines, and was wearing a black
hoodie and dark blue jeans. Further evidence presented at trial supported this person was
appellant.
Mazza said both Hines and appellant were holding small silver guns. At one
point, Hines demanded Arechiga’s phone, wallet, and keys. Arechiga put his hands up
and dropped everything, at which time the car jolted forward about five feet. When the
car moved forward, Arechiga was shot through the back driver side window, and one of
the perpetrators grabbed Arechiga’s wallet off his lap. After Arechiga was shot, Mazza
3.
managed to navigate the car away from the scene and called 911. Mazza eventually
parked at a nearby park. Arechiga died at the scene from the bullet wound.
At trial, Mazza testified she did not see who fired the shot. When the prosecutor
asked Mazza if she remembered telling police that the shooter was the Black perpetrator,
she responded, “Yes.” When the prosecutor again asked her if she remembered at the
time of trial who fired the shot, she replied, “Yes and no.” She explained that she saw the
Black perpetrator “turn as soon as the car had jolted, and I’m pretty sure I had seen him
pull the trigger. But I’m not 100 percent sure exactly.” After reviewing a transcript of
her statement to police, she testified her memory was refreshed and that the “black male”
was the shooter. The prosecution admitted Mazza’s 911 call, where she identified the
Black perpetrator as the shooter.
Police searched appellant’s home and seized a phone and black sweatshirt from
appellant’s room, and a shotgun from the master bedroom.
Appellant was arrested and spoke to the police. He initially denied being involved
with the shooting, but eventually explained he ran into Hines outside of his residence the
morning of the shooting. Hines told appellant he was “tryin’ to get some money early in
the mornin’ … and that he needed [appellant] like by him or whatever—make sure
nothin’ happened.” Appellant told Hines he needed to first meet with his friend Levi
Lopez, but while they were waiting, Arechiga and Mazza pulled up, and Hines “walked
up to the Honda and like he just—he robbed, you—you know had the guy at gun point.”
Appellant said that after Hines robbed Arechiga, Hines “backed up a little bit, like, kind
of a far distance and he pulled the trigger.” Appellant was shocked. He did not know
what to do, so he just ran. He told Hines to get away from his house, and then saw Lopez
coming to his house.
When police asked appellant if he had a gun during the incident, he said he had a
fake gun that he threw away in the dumpster behind his house. Appellant did not get any
of the money Hines took. Appellant said he stole the shotgun found in his house from a
4.
homeless person though earlier in his interview appellant had stated he had never touched
a gun.
Appellant was shown surveillance footage from the area near the scene and
identified Hines as a subject with shorter hair wearing a light colored jacket and dark
colored pants, another subject in black pants as Levi Lopez, and a subject wearing all
black who was taller than the others, as himself.
Instagram records revealed that on the morning of December 31, 2020, prior to the
shooting, Hines’s account sent a message to appellant’s account that said, “Mexican. Me
n you don’t know” and “otw,” which means “on the way.” Appellant subsequently sent
Hines a message that said, “where are you at” and made two short video calls to Hines.
About 40 minutes after the shooting, Hines sent a message to appellant that read “run my
money back or run me my fade, cuh.” Appellant responded by saying, “cuh, don’t talk to
me … rn [right now].” Later appellant told Hines to “go somewhere.” Hines responded
by saying, “don’t spend none of my money.” A little over an hour after the shooting,
appellant’s phone showed three different searches for how to delete messages on
Instagram.
In January 2021, in an Instagram message conversation between appellant’s
account and an account with the username 1uptop.Levi, 1uptop.Levi said, “the N word
was hot. You killed him.” In response, appellant said, “I overkilled his shii” and “he
watched too.” 1uptop.Levi said, “some Vinnie shii?” To which appellant responded,
“cuh was sliding through the block and bounced out on me; so I offed his shii.” He said,
“I was like, what this N word creeping through my alley, cuh?”
The trial court took judicial notice of that fact that Hines had a pending juvenile
petition in which he was also charged with the murder and robbery of Arechiga.
Defense Case
Appellant’s mother testified that on the morning of the shooting, she was woken
up by knocking on appellant’s window. She got up and saw Hines and Lopez. Appellant
5.
went outside, then back inside, then back outside. She later heard a “pop” and saw Hines
and Lopez. She saw Hines give Lopez something that Lopez put into his satchel. She
heard Hines say, “I almost domed that n[****].” She then saw appellant and told them
she did not want anything to do with what was going on, and they left. She further
testified appellant played a lot of video games, including Grand Theft Auto.
Hines’s grandmother testified that she had seen a photograph of Hines standing
next to a semiautomatic handgun on his bed.
Mitchell Eisen, Ph.D., testified that traumatic stress may overwhelm a person and
affect their ability to pay attention to details of an event and remember them. The
presence of a weapon may cause people to only focus on the weapon and may detract
from their ability to adequately process and consolidate other details, and marijuana
impairs a person’s ability to encode and organize memories.
DISCUSSION
I. Exclusion of Expert Testimony on Adolescent Brain Development
A. Relevant Background
The information alleged appellant committed felony murder under three theories:
(1) he was the actual killer; (2) he aided and abetted the crime with intent to kill; and
(3) he aided and abetted the crime as a major participant who acted with reckless
indifference to human life.
The defense sought to introduce testimony from expert witness Dr. Elizabeth
Cauffman “relevant to felony murder and specifically about youthful offenders (which
[appellant] is), adolescent brain development and related topics as they pertain to reckless
indifference to human life.”
The People objected, contending whether appellant acted with “reckless
indifference to human life” was a factual determination to be made solely by the jury.
The People further contended “any generic testimony on the subject is irrelevant,
6.
prejudicial, and likely to confuse the jury” and therefore should be excluded under
Evidence Code section 352.
At the hearing, the prosecutor further argued the general idea that someone who is
younger is less mature than someone who is older did not require expert testimony, and
any more specific testimony that appellant could not have formed reckless intent because
of adolescent brain development was infringing on the jury’s role to decide that issue.
Defense counsel clarified that Dr. Cauffman would not purport to say what
appellant’s mental state was at the time of the crime but would talk about “the hallmark
features of youth,” from which the jury could consider in determining whether appellant
acted with reckless indifference to human life. Defense counsel further explained he
“would want to ask [Dr. Cauffman] generally is there a difference in maturity,
appreciation of risk and consequence, a difference in, generally speaking, a process of
decision making between, say, a late teen, a late teenager, and someone 10 or 20 years
older.” Defense counsel went on to say the jury may agree that was true, “[b]ut the
question is why. And … the why has to do with brain development.”
After hearing arguments from the parties, the trial court indicated its tentative was
“maybe.” The court indicated its intention was to have an Evidence Code section 402
hearing.
Later during trial, the court indicated that it looked into the issue and “was only
able to find one published case” from New York, where the court “did not allow that type
of testimony under the particular facts” of that case. The court further explained that it
thought the type of testimony Dr. Cauffman was purported to give would be more
appropriate at the sentencing stage. The court went on to say, “I know that [defense
counsel] felt that that went directly to prove reckless indifference, but I’m not sure that
the testimony at this particular point from the expert will aid the jury in deciding a verdict
or reaching a verdict.” The court excluded the testimony.
7.
The court allowed defense counsel to make a final record of his position. He
explained that since the changes in the law on felony murder, where a prosecution or
defense theory is that the defendant is an “aider and abetter nonshooter,” the testimony of
Dr. Cauffman was relevant on the elements of the substantive crimes charged.
The trial court admitted a PowerPoint presentation prepared by Dr. Cauffman as a
court exhibit.
B. Analysis
Appellant contends the court erred by excluding Dr. Cauffman’s testimony, and
that the exclusion had the effect of violating his federal constitutional rights to a fair trial
and to present a complete defense. We need not address the merits of appellant’s claims
because the testimony’s exclusion was clearly harmless under any standard.
The expert testimony was proffered as relevant to the jury’s determination of
whether appellant acted with reckless indifference to human life, which was only a factor
relevant to the People’s theory that appellant was guilty of felony murder as a
nonshooter/major participant who acted with reckless indifference. Because the jury
found appellant guilty of the firearm enhancements, however, they clearly found
appellant was the shooter, and thus the actual killer, meaning they did not need to make a
determination as to whether he acted with reckless indifference to human life. Given the
jury’s verdict, the exclusion of the expert testimony was clearly harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Appellant accepts the jury convicted him on the theory that he was the actual killer
but says the error was not harmless nonetheless because the evidence could have given
the jury reasonable doubt as to the identity of the killer. We reject this contention.
Nothing in the offer of proof by defense counsel or Dr. Cauffman’s Powerpoint
presentation directly stated that a 17-year-old is more likely to be a shooter or engage in
violent behavior than a 19-year-old. The general focus of the proffered testimony
appeared to be adolescent brain development and youths’ failure to appreciate
8.
consequences of risky behavior generally. Much of the Powerpoint presentation suggests
that general risk taking behavior peaks around the age of 19—appellant’s age.3
Appellant acknowledges this but focuses on one of the slides entitled “Adolescents and
Young Adults Take More Risks in the Presence of Peers” that suggested adolescents
around age 14 engaged in more risks in the presence of peers than youths around age 20.
Appellant contends this would support an inference that Hines was more likely to shoot
Arechiga than appellant because they were together at the time of the offense. It is not
reasonable to conclude that this slide would have affected the jury’s verdict given the
posture of the present case.
While appellant’s view of the record was that there was competing evidence about
who the shooter was, the jury clearly found that, based on the state of the evidence, he
was the shooter beyond a reasonable doubt. This means the jury likely found Mazza’s
testimony that appellant was the shooter credible and appellant’s statement to police he
was not the shooter not credible, and they likely did not accept defense counsel’s
suggestion that appellant’s messages on Instagram about killing someone in an alley was
about a video game. We are satisfied beyond a reasonable doubt that general testimony
that adolescents are more likely to take risks in the presence of peers than youths would
not place reasonable doubt in the mind of any of the jurors, in light of the entirety of
Dr. Cauffman’s presentation, as well as the credibility determinations, inferences, and
findings they made based on the totality of the evidence presented at trial that led them to
find that appellant was the shooter.
3 One of the slides entitled “Adolescents Take More Risks” shows a chart depicting
vehicle fatalities by age, with males ages 18 and 19 making up significantly more than
drivers ages 16, 17, and over 19. The next slide, also entitled “Adolescents Take More
Risks” shows that the age groups most likely to binge drink are ages 18-24 and 25-34,
more than high school aged and other age groups. Another slide, entitled “Adolescents
Take More Risks: Criminal Behavior Peaks During Late Adolescence” shows that the
most arrests are among ages 18, 19, and 20, significantly more than age 17.
9.
For the reasons we have stated, we find any error in excluding Dr. Cauffman’s
testimony was harmless beyond a reasonable doubt.
II. Alleged Sixth Amendment Violation By Relying on Two Aggravating Factors
Not Submitted to the Jury
A. Relevant Background
Following the guilty verdict, the jury was asked to determine whether the
following aggravating circumstances were present as to each count: (1) the crime
involved great violence, great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness (rule 4.421(a)(1)); (2) the victim was particularly
vulnerable (rule 4.421(a)(3)); and (3) the manner in which the crime was carried out
indicates planning, sophistication, or professionalism (rule 4.421(a)(8)). The jury found
true each alleged aggravating circumstance.
The probation report listed two circumstances in mitigation—the defendant had a
minimal record of criminal conduct and the defendant was under 26 years of age. As to
aggravating circumstances, in addition to the three found true by the jury set forth above,
it listed: “The defendant armed with or used a weapon at the time of the commission of
the crime. (Pled and proven)”;4 and, most relevant here, “The defendant was on juvenile
probation when the crime was committed”; and “The defendant’s prior performance on
juvenile probation was unsatisfactory in that he failed to comply with terms and/or re-
offended.”
At sentencing, the court made note of all mitigating and aggravating circumstances
listed in the probation report. The court stated it would not be considering two of them:
that the crime involved great violence and that the defendant was armed with or used a
4 The minute order reflecting the verdict indicates the jury’s finding that appellant
personally discharged a firearm under section 12022.53, subdivision (d) “encompasses
California Rules of Court 4.421(A)(2) that defendant was armed with or used a weapon at
the time of the crime.” (Unnecessary capitalization omitted.)
10.
weapon at the time of the commission of the crime because consideration of those factors
would be inappropriate dual use given that appellant was convicted of murder and would
be sentenced for the firearm enhancements.
The court concluded, “Based on the weight of the aggravating factors versus those
in mitigation, the upper term and sentencing is justified as to the determina[te] counts and
enhancements with their triad range of sentencing options.” The court sentenced
appellant as set forth above.
B. Analysis
Appellant contends his Sixth Amendment right to a jury trial was violated by the
court’s consideration of the two aggravating factors not decided by the jury: that he was
on juvenile probation when the crime was committed, and that his prior performance on
juvenile probation was unsatisfactory. We agree the trial court erred by considering the
two unproven aggravating circumstances and that, under the circumstances of this case,
the error was not harmless. Accordingly, remand for resentencing is required.
1. Legal Background
“ ‘The Sixth Amendment protects the right of a criminal defendant to a trial by
jury, and under the Fourteenth Amendment, this protection applies to state criminal
proceedings. (Ramos v. Louisiana (2020) 590 U.S. ___ [140 S.Ct. 1390, 1395-1397].)
Among the specific protections included in the jury trial guarantee are the right to have
every element of the crime found by a jury (United States v. Gaudin (1995) 515 U.S. 506,
511) and the right to have the jury make those findings beyond a reasonable doubt (In re
Winship (1970) 397 U.S. 358, 364).’ (People v. Catarino (2023) 14 Cal.5th 748, 754.)
“The United States Supreme Court explained in Apprendi [v. New Jersey (2000)
530 U.S. 466] the existence of these rights is not predicated on a distinction between
elements of a crime and sentencing factors [citation], but on whether a required finding
exposes the defendant to a greater punishment than that authorized by the jury’s verdict
[citation].” (People v. Falcon (2023) 92 Cal.App.5th 911, 928 (Falcon), review granted
11.
September 13, 2023, S281242.) “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey,
supra, 530 U.S. at p. 490.)
In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme
Court found California’s pre-2007 determinate sentencing law (DSL) violated the Sixth
Amendment because it allowed a sentencing judge to impose a term beyond the statutory
maximum (deemed to be the middle term) based on facts not proven to a jury beyond a
reasonable doubt or admitted by the defendant. (Cunningham, at p. 293.)
In response, the Legislature amended the DSL, doing away “with a presumptive
middle term and le[aving] ‘the choice of the appropriate term’ to the ‘sound discretion of
the court.’ ” (Falcon, supra, 92 Cal.App.5th at p. 932.)
The Legislature once again amended the DSL, and “[a]s of January 1, 2022, under
the changes effected by Senate Bill 567, a trial court imposing a sentence [could] no
longer select any of the three terms that best serves the interests of justice, but must
impose a sentence that does not exceed the middle term, except as provided in section
1170(b)(2).” (Falcon, supra, 92 Cal.App.5th at p. 932.) “[T]he middle term is once
again the statutory maximum sentence for Sixth Amendment purposes.” (Id. at p. 933.)
Section 1170, subdivision (b)(2) provides that “[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.” Section 1170, subdivision (b)(3) adds that “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.”
12.
2. The Court Erred by Considering Aggravating Circumstances
the Underlying Facts of Which Were Not Found True by the
Jury
As a threshold matter, respondent contends appellant has forfeited his claim by
failing to raise it before the trial court, citing People v. Scott (1994) 9 Cal.4th 331, 356
and People v. Flowers (2022) 81 Cal.App.5th 680, 683‒684. Appellant contends his
claim has not been forfeited because he did not enter a waiver of his federal constitutional
right to a jury trial. We decline to find forfeiture. Assuming respondent’s argument is
correct, we choose to exercise our discretion and address the merits of appellant’s
argument. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Gutierrez
(2009) 174 Cal.App.4th 515, 520; People v. Bradford (2007) 154 Cal.App.4th 1390,
1411.)
Here, the trial court relied on four aggravating circumstances to impose the upper
term of imprisonment: two that were found true by a jury beyond a reasonable doubt, and
two that were not. As to the two not found true by the jury, appellant did not stipulate to
their truth, and, assuming juvenile adjudications fall within the prior conviction
exception, which appellant contests, they were not proven by certified records, as the
only indication they applied was in the probation report and a probation report is not a
certified record. (People v. Dunn (2022) 81 Cal.App.5th 394, 401 (Dunn), review
granted October 12, 2022, S275655; § 1170, subd. (b)(2) & (b)(3).) Thus, the trial
court’s consideration of appellant’s juvenile probation status and prior performance on
juvenile probation was error under section 1170, as amended.
3. The Error Was Not Harmless
Appellant contends since the error here is a Sixth Amendment violation, we are
required to find structural error, or, in the alternative, apply the Chapman harmless error
standard. Appellant’s contention is premised on his argument that he has a Sixth
Amendment right to a jury trial as to each aggravating circumstance considered by the
trial court. Respondent, on the other hand, contends that, as applied to the circumstances
13.
of this case, the Sixth Amendment only requires that one aggravating circumstance be
proven beyond a reasonable doubt because only one aggravating circumstance is required
to exceed the statutory maximum of the middle term citing, among other cases, People v.
Sandoval (2007) 41 Cal.4th 825. We need not resolve this dispute. Assuming for the
purpose of this analysis, appellant’s Sixth Amendment right to a jury trial only attached
to one aggravating circumstance, we conclude we still must remand for resentencing.
First, because the jury found at least one aggravating circumstance true beyond a
reasonable doubt, there is no Sixth Amendment violation; that is because a sentencing
court can impose a sentence higher than the statutory maximum based on one aggravating
circumstance found true by the jury. (See Dunn, supra, 81 Cal.App.5th at p. 409 [“A fact
that is necessary to impose a sentence above the statutory maximum must be proved to a
jury beyond a reasonable doubt. However, as Sandoval has made clear, when multiple
aggravating circumstances not proved to the jury are relied upon by a trial court in
imposing the upper term, the reviewing court must only conclude beyond a reasonable
doubt that one of those circumstances would have been found true by the jury beyond a
reasonable doubt to avoid offending the Sixth Amendment”].)5
Thus, the error here is that the trial court relied on improper sentencing factors.
Accordingly, we apply the state law harmless error standard set forth in Watson: “[T]he
question posed is whether, in the absence of the improperly considered sentencing
factor(s), there is a reasonable probability of a more favorable outcome for the appealing
party—i.e., the imposition of a lesser sentence.” (Falcon, supra, 92 Cal.App.5th at
p. 941; see People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Price (1991) 1 Cal.4th
324, 492.) We conclude that on the record of this case, there is a reasonable probability
of a more favorable outcome for appellant.
5 Appellant contends Sandoval was decided before the DSL was amended in 2022
and no longer applies. We decline to address appellant’s contention because it would not
have a bearing on the outcome of the present case.
14.
Here, the court considered two mitigating circumstances, two proper aggravating
circumstances, and two improper aggravating circumstances. The court’s only reasoning
for imposing the upper term was that it was “based on the weight” of the competing
factors. Because the sentencing court did not suggest that it considered any of the
aggravating circumstances more heavily than any other, it appears reasonably likely the
improper aggravating circumstances influenced the court to impose the upper term. We
note our decision is also impacted by the court’s comments, which reflect a simple
weighing of aggravating against mitigating circumstances that would have been proper
under the former version of section 1170, but does not acknowledge that under the new
DSL, “any weighing of aggravating circumstances must occur under the weight of the
new rule favoring the middle term as the maximum sentence.” (Falcon, supra,
92 Cal.App.5th at p. 948.) For these reasons, we conclude resentencing is required.
Respondent urges us to apply the harmless error analysis articulated by this court
in Dunn, supra, 81 Cal.App.5th 394, a case which examined retroactive application of
Senate Bill No. 567. Under the Dunn harmless standard: “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 …, (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
15.
with section 1170, subdivision (b).” (Dunn, at pp. 409‒410.)6 Respondent urges us to
make a finding under step (1)(b) in the present case—that the error was harmless because
there is a reasonable probability the jury would have found the juvenile probation-related
aggravating circumstances true beyond a reasonable doubt or that certified records would
have proven them because the probation report is an official document that the defense
would have objected to had it not been correct.
We decline to apply Dunn to the present case. Unlike Dunn, this case involves a
direct application of section 1170. The Supreme Court, through Avalos and Price, has
established how to determine harm in the situation presented here—where the court has
considered improper sentencing factors—and we are required to follow Avalos and Price.
In this situation, “[c]ourts do not first calculate the reasonable probabilities that what
made the factor impermissible would not be cured under alternative circumstances, such
as a more fully developed record or hypothetical evidence that might be presented to a
jury.” (Falcon, supra, 92 Cal.App.5th at p. 941.)7 As we have explained, application of
Avalos and Price shows the trial court’s error was not harmless.
In sum, for the reasons set forth, we conclude the matter must be remanded for
resentencing consistent with section 1170, subdivision (b).
6 The issue of what standard of assessing prejudice applies in the context of
retroactive application of Senate Bill No. 567 in a case with an upper term sentence is
pending before our Supreme Court in People v. Lynch (May 27, 2022, C094174)
(nonpub. opn.) review granted August 10, 2022, S274942.
7 There is also a policy reason for not applying the (1)(b) step articulated in Dunn to
cases of direct application of section 1170. Applying such a standard “support[s]
speculation and broad assumptions about what extra-record evidence might show, [and]
indicates the trial court’s improper reliance solely on a probation report to determine
prior convictions or related facts will always be harmless and nullifies the statutory
requirements.” (Falcon, supra, 92 Cal.App.5th at pp. 941‒942.)
16.
III. Restitution Fine
The reporter’s transcript indicates the trial court stated, while pronouncing the
judgment, that appellant was ordered to pay “a restitution fine in the amount of $30 [sic],
pursuant to Penal Code Section 1202.4(b)” and “[t]here will be a restitution fine in the
amount of $300, pursuant to Penal Code Section 1202.45. Payment of that fine is
suspended subject to parole or Post Release Supervision revocation proceedings.” The
sentencing minute order and the abstract of judgment both reflect the imposition of $300
fines under both sections 1202.4, subdivision (b) and 1202.45.
Appellant contends the minute order and the abstract of judgment must be
amended to reflect the oral pronouncement of judgment of a $30 restitution fine. He
further contends the imposition of a $300 parole revocation fine is an “unauthorized
sentence” and must be reduced to $30 to match the restitution fine. Respondent concedes
on both points.
The parties are correct that as a general rule, “[w]hen there is a discrepancy
between the minute order and the oral pronouncement of judgment, the oral
pronouncement controls.” (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.)
Because entering judgment in the minutes is a clerical function, a discrepancy between
the judgment as orally pronounced by the court and as entered in the clerk’s minutes is
presumed to be the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
However, the Supreme Court directs us to harmonize written and oral pronouncements if
possible. (People v. Smith (1983) 33 Cal.3d 596, 599; see People v. Cleveland (2004)
32 Cal.4th 704, 768 [finding that an erroneous statement in the reporter’s transcript
purporting to impose a one-year sentence enhancement was “of no effect” because the
minute order and abstract of judgment correctly omitted the enhancement].)
Here, we decline to accept respondent’s concessions. It is patently clear from the
record that the trial court misspoke when it imposed a $30 restitution fine and meant to
impose a $300 restitution fine, and thus we can harmonize the erroneous oral
17.
pronouncement of judgment with the correct minute order and abstract of judgment. As
both parties point out, the parole revocation fine must match the restitution fine, and the
trial court imposed a $300 parole revocation fine.8 (§ 1202.45.) In addition, $300 is the
statutory minimum restitution fine under section 1202.4, subdivision (b)(1). These two
facts together indicate to us the trial court intended to impose a $300 restitution fine and
find no error with regard to the sentencing minute order or abstract of judgment.
As the matter is being remanded for resentencing, the trial court will be able to,
and is encouraged to, make a record as to the error.
DISPOSITION
The matter is remanded for resentencing with directions to comply with
section 1170. In all other respects, the judgment is affirmed.
DE SANTOS, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
SMITH, J.
8 Interestingly, when imposing the parole revocation fine, the court referred to it as
a “restitution fine,” which further supports an inference the trial court simply misspoke
when it ordered the $30 restitution fine.
18.