People v. Manuel CA2/7

Filed 9/13/23 P. v. Manuel CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B321653
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA089925)
v.
LARRY BERT MANUEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William L. Sadler, Judge. Affirmed.
Andrea S. Bitar, 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, Herbert S. Tetef, and Kristen J.
Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2016 Larry Bert Manuel pleaded no contest to one count
of robbery and three counts of attempted robbery. After striking
seven of eight prior convictions for serious or violent felonies, the
court sentenced Manuel to an aggregate prison term of 19 years,
which included the upper term of five years on the robbery
conviction and a five-year enhancement for a prior serious felony
conviction.
Effective January 1, 2022, the Legislature amended Penal
Code section 1170, subdivision (b),1 to require the trial court to
impose a sentence that does not exceed the middle term unless
the defendant stipulates to the facts supporting circumstances in
aggravation or a jury (or a judge in a court trial) finds those facts
true beyond a reasonable doubt. The amended statute, however,
allows the court to consider the defendant’s prior convictions
based on a certified record of conviction without submitting those
prior convictions to a jury.
In June 2022 following a request from the Department of
Corrections and Rehabilitation that the court dismiss the
five-year, serious-felony enhancement, the court resentenced
Manuel. After striking the five-year enhancement, the court
again imposed the upper term on Manuel’s robbery conviction,
relying on Manuel’s admission in 2016 he had eight prior felony
convictions.
Manuel argues that, because the People did not provide the
trial court with certified copies of his prior felony convictions, the
1 Statutory references are to the Penal Code.
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court violated section 1170, subdivision (b), by imposing the
upper term based on those convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Manuel Pleads No Contest, and the Trial Court
Sentences Him
In 2015 the People charged Manuel with one count of
second degree robbery and three counts of attempted second
degree robbery after Manuel robbed one bank and tried to rob
three others. In September 2016 Manuel pleaded no contest to
the four charges and admitted he had eight prior federal felony
convictions that were serious or violent felonies within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)) and serious felonies within the meaning of
section 667, subdivision (a)(1).
In October 2016 the trial court granted Manuel’s motion
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to
strike seven of the eight prior convictions. The court sentenced
Manuel to an aggregate prison term of 19 years, consisting of the
upper term of five years for the robbery conviction, doubled under
the three strikes law, 16 months for each attempted robbery
conviction (one-third the middle term of two years, doubled under
the three strikes law), plus five years for the prior serious felony
conviction.
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B. The Trial Court Resentences Manuel to the Upper
Term
In 2022 the Department of Corrections and Rehabilitation
asked the trial court to resentence Manuel under former
section 1170.03 (now section 1172.1) and strike the five-year
serious felony enhancement under section 667, subdivision (a)(1).
At resentencing, counsel for Manuel argued the court should
sentence Manuel to the middle term on the robbery conviction
because Manuel did not admit, and the People did not prove
beyond a reasonable doubt to a jury, any aggravating
circumstances, as required by amended section 1170,
subdivision (b). Counsel for Manuel also argued the court could
not impose the upper term under section 1170, subdivision (b)(3),
because the People had not provided certified records of
conviction, as required by the statute. The prosecutor argued the
court could resentence Manuel to the upper term because Manuel
admitted eight prior convictions of robbery, which were
aggravating circumstances.
The court struck the five-year enhancement under
section 667, subdivision (a)(1), stating it had “no problem striking
the five-year prior,” particularly because Manuel was “confined
[to] a wheelchair.” The court, however, again imposed the upper
term of five years on Manuel’s robbery conviction. The court
stated: “I am making my own assessment that . . . the [upper]
term is appropriate based [on] the defendant’s prior convictions.”
The court also reimposed consecutive terms of 16 months on each
of the three convictions for attempted robbery, so that Manuel’s
aggregate prison term was 14 years. Manuel timely appealed.
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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 as an aggravating
factor based on a certified record of conviction” without
submitting the prior convictions to a jury. (People v. Hilburn
(2023) 93 Cal.App.5th 189, 199; see People v. Achane (2023)
92 Cal.App.5th 1037, 1041; People v. Flowers (2022) 81
Cal.App.5th 680, 685, review granted Oct. 12, 2022, S276237.)
B. The Trial Court’s Sentence Complied with
Section 1170, Subdivision (b)(2)
Manuel argues that, because the People did not submit
certified copies of his prior felony convictions, the trial court erred
“when it departed upward from” the middle term and imposed
the upper term on his robbery conviction based on the prior
felony convictions. The People argue the trial court properly
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“based the upper term on [Manuel’s] 2016 admission that he had
eight prior federal convictions for bank robbery.”
As Manuel correctly points out, the trial court could not
have imposed the upper term under section 1170,
subdivision (b)(3), because the People did not provide certified
records of conviction. The trial court, however, did not impose
the upper term under section 1170, subdivision (b)(3); the trial
court imposed the upper term under section 1170,
subdivision (b)(2), because Manuel admitted he had eight prior
convictions. As discussed, section 1170, subdivision (b)(2),
authorizes the court to impose the upper term where the
defendant has stipulated to the aggravating circumstances, such
as numerous prior convictions. (See Cal. Rules of Court, rule
4.421(b)(2) [a court can consider as an aggravating circumstance
that the “defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness”].) Here, Manuel admitted he had eight
prior felony convictions (and serious or violent felony convictions
at that). And eight is a lot. (See People v. Stuart (2008)
159 Cal.App.4th 312, 314 [six prior convictions are “plainly
‘numerous’” and “qualified as an aggravating circumstance under
rule 4.421(b)(2)”]; People v. Searle (1989) 213 Cal.App.3d 1091,
1098 [three prior convictions are numerous].) Manuel’s
stipulation was more than sufficient to support the trial court’s
decision to impose the upper term. (See People v. Dunn (2022)
81 Cal.App.5th 394, 404 [“[s]tipulations by the defendant are
permitted to prove aggravating circumstances” under
section 1170, subdivision (b)(2)], review granted Oct. 12, 2022,
S275655.)
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Manuel argues “he should not be deemed to have admitted
his prior convictions because seven of the eight prior convictions
were struck pursuant to Romero in 2016.” Although the trial
court, for sentencing purposes, did exercise its discretion to strike
seven of Manuel’s eight prior serious or violent felony convictions,
that did not affect his admission. The trial court, in imposing the
upper term in 2022, properly considered Manuel’s 2016
admission he had eight prior convictions, even though in 2016 the
court granted his motion under Romero to strike seven of them
for sentencing. “‘[W]hen a court has struck a prior conviction
allegation it has not “wipe[d] out” that conviction as though the
defendant had never suffered it; rather, the conviction remains a
part of the defendant’s personal history’ and available for other
sentencing purposes.” (People v. Lara (2012) 54 Cal.4th 896, 906;
see People v. Garcia (1999) 20 Cal.4th 490, 499.)
Citing People v. Todd (2023) 88 Cal.App.5th 373, review
granted Apr. 26, 2023, S279154, Manuel argues his admission he
had eight prior convictions “does not constitute a knowing and
intelligent waiver with respect to the changes in sentencing laws”
under section 1170, subdivision (b). Todd, however, concerned
whether the amendments to section 1170, subdivision (b), apply
to a defendant who stipulates to a sentence that includes an
upper term as part of a negotiated plea agreement. Manuel did
not plead no contest pursuant to a negotiated agreement; he
pleaded open to the court on all charges and admitted all
allegations. In 2016, when the court originally sentenced
Manuel, and in 2022, when the court resentenced him, the court
exercised its discretion and imposed the upper term based on
Manuel’s admission he had eight prior felony convictions. There
was no plea agreement.
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DISPOSITION
Manuel’s sentence is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
MARTINEZ, J.
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