People v. Muro CA2/7

Filed 8/10/23 P. v. Muro CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B324449
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA155531)
v.
RICHARD MURO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Sentence vacated
with directions.
Richard B. Lennon, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
Richard Muro appeals from a judgment of conviction after
pleading no contest to possessing a firearm after conviction of a
specified violent offense, in violation of Penal Code section 29900,
subdivision (a)(1).1 Muro pleaded no contest pursuant to a plea
agreement that called for the trial court to impose the middle
term of two years. The trial court, however, sentenced him to the
upper term of three years.
Here’s how that happened: When Muro pleaded no contest
and agreed to serve a two-year prison term, the trial court, at
Muro’s request, continued sentencing for 60 days to allow Muro
to settle his personal affairs before beginning to serve his
sentence. The prosecutor and the court warned Muro that, if he
did not return in 60 days for sentencing, his plea would be an
“open plea”2 and that the court could sentence him to the upper
term of three years. Muro did not appear at the sentencing
hearing. He eventually appeared in court two months later, but
only after he had been arrested in connection with a different
criminal investigation. At that time, the trial court sentenced
Muro to prison for three years. The court stated it was imposing
the upper term because violating section 29900,
subdivision (a)(1), was a “serious” offense; the court had warned
Muro it would impose the upper term if he did not appear for
sentencing; and the only reason Muro appeared for sentencing
1 Statutory references are to the Penal Code.
2 “An open plea is ‘a plea unconditioned upon receipt of a
particular sentence or other exercise of the court’s powers.’”
(People v. Conerly (2009) 176 Cal.App.4th 240, 245.)
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was that the police had arrested him while investigating another
crime.
Muro argues that the trial court, in imposing the upper
term, violated section 1170, subdivision (b), because the People
did not prove beyond a reasonable doubt, and Muro did not
stipulate to, any aggravating circumstances. We vacate his
sentence and direct the trial court to resentence Muro in
accordance with section 1170, subdivision (b).
FACTUAL AND PROCEDURAL BACKGROUND
A. Muro Pleads No Contest to Possessing a Firearm After
Conviction of a Specified Violent Offense
The People charged Muro with possessing a firearm after
conviction of a specified violent offense, in violation of section
29900, subdivision (a)(1). The People alleged that Muro had
three prior serious or violent felony convictions within the
meaning of the three strikes law (§§ 667, subds. (i)-(j), 1170.12)
and that Muro committed the offense while on parole after
serving a prison term for residential burglary.
On March 24, 2022 Muro pleaded no contest (but did not
admit the allegations). The court accepted Muro’s plea and,
pursuant to a plea agreement with the People, the court indicated
it would sentence Muro to a prison term of two years, the middle
term. On the People’s motion, the court struck the allegations
under the three strikes law.
At Muro’s request, the court gave him 60 days to arrange
his affairs before serving his sentence. The court warned Muro
that, if he did not return to court in two months to begin serving
his sentence, he “could be looking at three years.” The
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prosecutor, at the court’s direction, advised Muro that, if he did
not appear for sentencing in 60 days, his plea “would be treated
as an open plea, and the court could sentence [him] up to the full
three years that’s available for this conviction.” The court set the
sentencing hearing for May 24, 2022.
B. The Trial Court Sentences Muro to the Upper Term of
Three Years
Muro did not appear in court on May 24, 2022, and the trial
court issued a bench warrant for his arrest. Nearly three months
later, on August 18, 2022, Muro appeared in court involuntarily,
after he had been arrested in connection with the investigation of
another crime. The court observed that Muro only had appeared
in court because police officers had arrested him and discovered
there was a bench warrant for his arrest.
The court and the prosecutor discussed whether, to impose
the upper term of three years, the People and the court had to
comply with section 1170, subdivision (b). The prosecutor stated
that he thought the court could sentence Muro to three years, but
that he did not recall whether at the prior hearing he had “proved
aggravating factors” or “took [Muro’s] admission of aggravating
factors.” Referring to the requirements of section 1170,
subdivision (b), for imposing the upper term, the trial court
stated, “I don’t think that process was being done.” Nevertheless,
the court, referring to its ability to impose the upper term, stated
it had “thoroughly explained not only to Mr. Muro, but on every
single case, those are the potential consequences.” Counsel for
Muro argued the court could not impose the upper term because
Muro did not admit, and the People did not prove beyond a
reasonable doubt to a jury, any aggravating circumstances, as
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required by section 1170, subdivision (b). The court stated it
could impose the upper term, despite section 1170, subdivision
(b), because a violation of section 29900, subdivision (a)(1), was a
“serious” offense; the court had warned Muro that the court could
impose the upper term if he did not appear for sentencing on May
24, 2022; and the only reason Muro had appeared in court was
that he had been arrested.
The trial court proceeded to sentence Muro to the upper
term sentence of three years for possessing a firearm after
conviction of a specified violent offense. Muro timely appealed.
DISCUSSION
A. Section 1170, Subdivision (b)
Effective January 1, 2022, Senate Bill No. 567 amended
section 1170, subdivision (b), to state: “(1) When a judgment of
imprisonment is to be imposed and the statute specifies three
possible terms, the court shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2). (2) The 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), allows the court to
“consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (See People v. Flowers
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(2022) 81 Cal.App.5th 680, 685, review granted Oct. 12, 2022,
S276237.)
B. The Trial Court’s Sentence Did Not Comply with
Section 1170, Subdivision (b)
As Muro correctly points out, the People did not prove to a
jury or the court beyond a reasonable doubt, and Muro did not
stipulate to, any aggravating circumstances, as required by
section 1170, subdivision (b). The only way the court could have
imposed the upper term under section 1170, subdivision (b), was
to rely on Muro’s prior convictions. (See § 1170, subd. (b)(3).)
The People argue that’s what the court did by stating, “The fact
[is] that [Muro] was charged with what I would consider a serious
case, a felon with a gun with a prior violent felony conviction . . . .
The court is going to sentence him to the [upper] term of three
years.” The People’s argument, however, is based on a
misreading of the record.
The trial court did not rely on a prior conviction to impose
the upper term. The trial court gave three reasons for imposing
the upper term: (1) how Muro “got to court” (i.e., involuntarily),
(2) Muro “knew the consequences” if he did not appear for
sentencing, and (3) the seriousness of the case. When the court
described the offense Muro had committed as “a felon with a gun
with a prior violent felony conviction,” the court was referring to
the definition of the crime Muro admitted he had committed:
a violation of section 29900. The court was not relying on a prior
felony conviction to impose the upper term.
Moreover, the court essentially admitted it was not
complying with section 1170, subdivision (b). When counsel for
Muro argued the court could not impose the upper term without
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complying with section 1170, subdivision (b), the trial court
stated: “I believe in this circumstance, though, my justification is
outside that specific statute, and there are circumstances such as
his failure to appear, and the reason why he is in court almost
three months later is because he not on his own but [because] he
was brought in based on another investigation, . . . and the
seriousness of the case.” The court did not impose the upper term
based on Muro’s prior conviction or for any reason authorized by
section 1170, subdivision (b); the court imposed the upper term
for reasons it believed were “outside” the statute.
Citing People v. Mitchell (2022) 83 Cal.App.5th 1051,
review granted December 14, 2022, S277314, the People argue
section 1170, subdivision (b), did not apply because Muro agreed
the court could impose the upper term if he did not appear for
sentencing on May 24, 2022. (See Mitchell, at p. 1059 [where the
defendant stipulates the court may impose the upper term, the
People do not need to prove aggravating circumstances pursuant
to section 1170, subdivision (b), because the trial court does not
exercise any discretion in imposing the sentence].) Mitchell is
distinguishable. Unlike the plea agreement in Mitchell, which
“included” the upper term on one of the defendant’s convictions
(Mitchell, at p. 1055), the plea agreement here called only for the
middle term. At the March 24, 2022 hearing the prosecutor
explained that, if Muro did not return for sentencing, his plea
“would be treated as an open plea,” and the court explained that,
if he failed to appear, he could be “looking at” or “subject to” a
sentence of three years. By failing to appear for sentencing on
May 24, 2022, the plea agreement was no longer in effect because
Muro had violated a material term of the deal. Once Muro’s plea
became an open plea, the trial court had to decide whether to
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sentence Muro to the upper, middle, or lower term on his plea.
(See People v. Henderson (2021) 67 Cal.App.5th 785, 788 [“An
open plea is one under which there is no promise about the
nature or duration of the defendant’s sentence.”]; Polanski v.
Superior Court (2009) 180 Cal.App.4th 507, 553, fn. 31 [an open
plea is one “taken without any negotiations or promises as to
punishment”].)
C. The Trial Court’s Error Was Not Harmless
The Supreme Court has granted review in People v. Lynch
(May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10,
2022, S274942, to decide what standard of prejudice a reviewing
court should apply when determining whether to remand a case
for resentencing under amended section 1170, subdivision (b).
Until the Supreme Court resolves the issue, we apply the two-
step harmless error analysis in People v. Zabelle (2022)
80 Cal.App.5th 1098, 1111-1112, and People v. Lopez (2022)
78 Cal.App.5th 459, 465-467. First, we evaluate whether the
Sixth Amendment error is harmless under the standard of
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824], as
formulated by the Supreme Court in People v. Sandoval (2007)
41 Cal.4th 825: ‘“[I]f a reviewing court concludes, beyond a
reasonable doubt, that the jury, applying the beyond-a-
reasonable-doubt standard, unquestionably would have found
true at least a single aggravating circumstance had it been
submitted to the jury, the Sixth Amendment error properly may
be found harmless.’” (Id. at p. 839.) Second, we apply the
harmless-error standard of People v. Watson (1956) 46 Cal.2d 818to evaluate state law error by considering “whether it is
reasonably probable that the trial court would have chosen a
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lesser sentence in the absence of the error.” (Zabelle, at p. 1112.)
As the court in Zabelle explained, “[r]esolving this issue entails
two layers of review. We must first, for each aggravating fact,
consider whether it is reasonably probable that the jury would
have found the fact not true. We must then, with the
aggravating facts that survive this review, consider whether it is
reasonably probable that the trial court would have chosen a
lesser sentence had it considered only these aggravating facts.”
(Ibid.)
The People argue the trial court’s failure to comply with
section 1170, subdivision (b), was harmless because the jury
would have found true beyond a reasonable doubt several
aggravating circumstances, such as the facts (indicated in the
probation report) that Muro was on parole when he committed
the crime and that he had not performed satisfactorily on parole.
(See Cal. Rules of Court, rule 4.421(b)(4), (5).) We cannot
conclude the trial court’s failure to comply with section 1170,
subdivision (b), is harmless because the trial court did not rely on
or even mention either of these circumstances in imposing the
upper term. (See People v. Zabelle, supra, 80 Cal.App.5th at p.
1112 [in evaluating the first step of the harmless error analysis,
the reviewing court asks whether “the jury would have found true
at least one of the aggravating circumstances that the trial court
relied on”]; People v. Lopez, supra, 78 Cal.App.5th at p. 467,
fn. 11 [“the initial relevant question for purposes of determining
whether prejudice resulted from failure to apply the new version
of the sentencing law is whether the reviewing court can conclude
beyond reasonable doubt that a jury would have found true
beyond a reasonable doubt all of the aggravating factors on which
the trial court relied” (italics omitted)].) The trial court gave
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reasons for imposing the upper term, but they were not that
Muro was on parole or that he had not done well on parole, and
the People cite no cases holding a violation of section 1170,
subdivision (b), can be harmless based on findings the trial court
did not make. As discussed, the court stated it was imposing the
upper term because Muro did not appear for sentencing after he
was warned of the “potential consequences” of doing so, Muro
came to court involuntarily after his arrest, and the charge
against him was “serious.” None of these circumstances is a
factor in aggravation under California Rules of Court, rule 4.421.3
3 California Rule of Court, rule 4.421(c) provides the trial
court may also consider “[a]ny other factors statutorily declared
to be circumstances in aggravation or that reasonably relate to
the defendant or the circumstances under which the crime was
committed.” The trial court did not cite this rule, and the People
do not argue it applies.
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DISPOSITION
Muro’s sentence is vacated. The trial court is directed to
resentence Muro in accordance with section 1170, subdivision (b).
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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