People v. Marzetta CA3 ( 2022 )

Filed 7/27/22 P. v. Marzetta CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093766
Plaintiff and Respondent, (Super. Ct. Nos. 19FE018634,
20FE004246 )
v.
MARKUS MARZETTA,
Defendant and Appellant.
At the beginning of the COVID-19 pandemic, defendant Markus Marzetta was
arrested after stabbing a security guard during an altercation in front of a store. Pursuant
to the Governor’s emergency orders, the Chief Justice, acting in her capacity as
Chairperson of the Judicial Council of California (Judicial Council), issued an order
extending the statutory time frame in which to hold a preliminary hearing for defendants
held in custody pending trial. Defendant moved to dismiss the complaint filed against
him when his preliminary hearing was not held within the 10-day statutory deadline. He
argued the Chief Justice lacked authority to extend the deadline and the prosecution’s
1
failure to hold a preliminary hearing within the time provided by the statute constituted a
violation of his speedy trial right. The trial court denied the motion. Instead of filing a
motion to dismiss the information in the trial court or petitioning for a writ of mandate in
this court, defendant decided to proceed to trial. A jury ultimately found defendant guilty
of assault with a deadly weapon and found true an allegation he inflicted serious bodily
injury during the commission of the offense.
Defendant appeals, arguing his case must be dismissed because his preliminary
hearing did not occur within 10 days of his arraignment. We disagree. Because
defendant waited until after trial to seek review of the alleged speedy trial violation in
holding his preliminary hearing, defendant must demonstrate prejudice, which he has
failed to do. We also conclude defendant’s contentions he acted in lawful self-defense
during the commission of the crime and the prosecutor committed prejudicial
prosecutorial error lack merit. Accordingly, we affirm the judgment of conviction.
We requested supplemental briefing regarding whether Senate Bill No. 567 (2021-
2022 Reg. Sess.) retroactively applies to defendant and whether he is entitled to have his
sentence vacated and remanded. After receiving briefing from the parties, we conclude
remand is unnecessary.
FACTUAL AND PROCEDURAL BACKGROUND
In the evening hours of March 2, 2020, defendant was inside a store and sought to
talk to the in-store security guard about getting a job as a security guard at the store.
Defendant banged on the door to the security room and Michael A., the in-store security
guard, answered. Defendant asked Michael about applying for a job and claimed to be a
perfect candidate for a security guard. To Michael, defendant appeared to be under the
influence of drugs, so Michael referred defendant to an online application process before
closing the security room door. Defendant responded by banging on the door one more
time and yelling “ ‘[f]uck you’ ” at Michael.
2
About 15 minutes later, Michael went outside of the store for his break. Once
outside, he stood and talked with the two other security guards, Austin S. and Julio F.
While the three men talked, they saw a woman leave the store with defendant following
her. The woman looked uncomfortable, as if she did not want defendant to follow her.
Michael told defendant repeatedly to leave the store’s property. Defendant walked over
to Michael and started yelling at him. Michael and defendant then began arguing with
one another. Austin stepped between the men to deescalate the situation. He “polite[ly]”
“nudge[d]” defendant away from Michael and told defendant to step away and leave the
store’s property.
Defendant responded by headbutting Austin. Austin then pushed defendant away
from him, and defendant started “bouncing” around and lunging at Austin. Each time
defendant lunged at Austin, Austin pushed defendant away. Defendant soon began
walking away and Austin and Julio followed behind him to ensure he would leave the
property. Michael followed behind Austin and Julio believing the purpose of following
defendant was to detain defendant until police arrived. As defendant walked away, he
yelled, “ ‘Follow me, follow me’ ” and “ ‘I got something for you. Come here. Come
here. I got something for you.’ ” Defendant also reached into his pocket like he was
trying to get something.
Once defendant got in front of the store, he turned toward Austin. Austin again
told defendant to leave the property. Defendant refused, so Austin again pushed
defendant to get him off the store’s property. An unknown person watching the
altercation told defendant to fight Austin. In response to the unknown person’s
suggestion, defendant said “okay” and discarded his grocery bag. Austin put on gloves
anticipating a fight. While doing so, defendant walked to Austin and punched him twice.
Austin responded by crouching down and wrapping his arms around defendant’s
rib cage. He lifted defendant off his feet and took defendant to the ground. Austin then
saw defendant had a knife and told Julio defendant was armed. In response, Julio
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punched and kicked defendant multiple times while defendant was on the ground and
while Austin was on top of defendant holding onto his hand that held the knife.
Around this time, Lamont S. saw the altercation and approached Michael
complaining about the conduct of the other security guards. When Michael did nothing
to break up the fight, Lamont attempted to break up the fight by removing the security
guards, which allowed defendant to get out from under Austin. Michael then grabbed
defendant and threw him to the side and defendant got away. During the altercation, two
of defendant’s dreadlocks were torn from his scalp and left on the ground.1 Defendant
also had “abrasions and/or lacerations” around his left eye, bruising on his eyelid, and a
bloodied ear.
Once defendant was gone, Austin discovered he had been stabbed near his left rib
cage and sliced on his arm. Austin also had three slice marks on his jacket around the
stomach area. Austin was taken to the hospital, where it was discovered the knife had
punctured his lung. The lung injury required surgery and Austin remained in the hospital
for four days. Soon after the stabbing, defendant was arrested and a knife was found in
his waistband.
On March 4, 2020, defendant was arraigned and remanded into custody. That
same day, Governor Gavin Newsom issued Executive Order N-28-20 declaring
California in a state of emergency as a result of the COVID-19 pandemic. On March 17,
2020, the Chief Justice of California, acting in her role as Chair of the Judicial Council,
issued an order pursuant to Government Code section 68115 authorizing the presiding
judge of Sacramento County Superior Court to extend preliminary hearing deadlines to
15 court days for cases where the normal 10-court-day deadline would have fallen
between March 17, 2020, and April 16, 2020. Per that order, the presiding judge of
1 The jury viewed surveillance footage of the events that took place in the parking
lot and in front of the store.
4
Sacramento County Superior Court extended the deadline for preliminary hearings to 15
court days for cases where the normal 10-court-day deadline would have fallen between
March 18, 2020, and April 16, 2020. On March 18, 2020, defendant was formally
arraigned. On March 19, 2020, preliminary hearings were removed from the list of
judicial proceedings allowed to take place in Sacramento County Superior Court.
On March 27, 2020, Governor Newsom issued Executive Order N-38-20
suspending the limitations articulated in Government Code section 68115. The next day,
the Judicial Council held an emergency meeting and authorized the Chief Justice in her
role as Chair of the Judicial Council to take necessary action to protect public health,
including to extend the statutory deadline for preliminary hearings. On March 30, 2020,
the Chief Justice, as Chair of the Judicial Council, issued a statewide order finding good
cause to “ ‘[a]uthorize superior courts to issue implementation orders that: Extend the
time period provided in section 859b of the Penal Code[2] for the holding of a preliminary
hearing examination and the defendant’s right to release from 10 court days to no more
than 30 court days.’ ” That same day, the presiding judge of the Sacramento County
Superior Court issued an order providing all preliminary hearings would be conducted
through interactive video technology and impliedly permitted preliminary hearings to
again occur. On April 1, 2020, the presiding judge of the Sacramento County Superior
Court issued an order pursuant to the Chief Justice’s March 30, 2020, emergency order
extending the time period provided in section 859b for the holding of a preliminary
hearing from 10 court days to 30 court days.
On April 10, 2020, 16 days after defendant’s formal arraignment, his preliminary
hearing was held. Prior to the examination of witnesses through interactive video
technology, defendant made a variety of motions related to pandemic-related procedures,
2 Further section references are to the Penal Code unless otherwise indicated.
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including a motion to dismiss his complaint or release him from custody. Defendant
argued “the Governor does not have the authority to suspend the speedy preliminary
hearing or speedy trial right statutes to allow the Judicial Council or the [Chief Justice of
California] to change that law absent legislation.”
The trial court disagreed, reasoning “the Chief Justice in this state does have the
authority to issue emergency orders and extend deadlines for matters like criminal
preliminary hearings. Based on the current state of the virus epidemic, on March 30th of
2020 the Chief Justice issued a statewide order finding good cause to extend the
provisions, the period provided in Penal Code section 859(b) [sic] to up to 30 days.
Following that[,] the presiding Judge of the Sacramento [County] Superior Court issued a
similar order on April 1st.” Because defendant’s preliminary hearing was being held
within 30 days of his arraignment, the hearing was “within the lawful period as extended
by both the Chief Justice and the presiding Judge of this Court.”
Defendant was ultimately held to answer and an information was filed charging
him with assault with a deadly weapon based on his stabbing of Austin and assault by
means of force likely to cause great bodily injury based solely on defendant’s headbutting
of Austin. It was further alleged defendant inflicted great bodily injury during the
commission of the assault with a deadly weapon charge and that he had previously been
convicted of a prior serious felony offense that also qualified as a strike offense.
Defendant did not move to dismiss the information pursuant to section 995 or seek a writ
of mandate in this court.
Following a jury trial, defendant was found guilty of assault with a deadly weapon
and the allegation he had inflicted great bodily injury during the commission of that
offense was found true. Defendant was found not guilty of assault by means of force
likely to cause great bodily injury and a mistrial was declared as to the lesser included
offense on that count. In a bifurcated proceeding, the trial court found the allegation true
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that defendant had previously been convicted of a serious felony that also qualified as a
strike offense.
The trial court sentenced defendant to the upper term of four years for the assault
with a deadly weapon conviction, doubled to eight years pursuant to the three strikes law.
The court imposed three years for the great bodily injury enhancement attached to that
count and an additional five years for the prior serious felony conviction enhancement for
a total of 16 years in prison. Defendant was also sentenced on a violation of probation
case, for which the court imposed a concurrent term of three years.
When sentencing defendant, the trial court cited multiple aggravating factors:
1) the crime “was very violent”; 2) “defendant has engaged in violent conduct indicating
a serious danger to society”; 3) “defendant’s prior convictions as an adult are numerous”;
4) “he has served a prior prison term”; 5) defendant was on formal probation and
[postrelease community supervision]; and 6) “defendant’s prior performance on
probation and [postrelease community] supervision has been unsatisfactory.” When
justifying the upper term for the assault on a deadly weapon conviction, the trial court
stated “[t]he upper term is chosen because of the fact the defendant has served a prior
prison term, and his prior convictions as an adult are numerous . . . .”
Defendant appeals.
DISCUSSION
I
Defendant Has Not Shown He Was Prejudiced By
The Delay In Holding His Preliminary Hearing
Defendant contends he is entitled to reversal of his conviction and dismissal of the
charges against him because his preliminary hearing was held six days after the deadline
contained in section 859b, despite the fact the Chief Justice extended the time to hold a
preliminary hearing by 30 court days. In his reply brief, defendant acknowledges that,
because he waited until this direct appeal to challenge the alleged unlawful delay in
7
holding his preliminary hearing, he must show he was prejudiced by the delay. (See
People v. Clark (2016) 63 Cal.4th 522, 552 [“nonjurisdictional irregularities in
preliminary examination procedures do not require reversal unless the defendant
establishes that he or she was deprived of a fair trial or otherwise suffered prejudice as a
result. [Citation.] A denial of a defendant’s right to trial within a prescribed statutory
time period falls within this class of irregularities that are not jurisdictional in the
fundamental sense and which, therefore, require a showing of prejudice”].)
Indeed, under the California Constitution, a defendant is not entitled to have
judgment set aside absent a showing “that the error complained of has resulted in a
miscarriage of justice.” (Cal. Const., art. VI, § 13.) Our Supreme Court has explained
that “[a]lthough a defendant seeking pretrial relief for a speedy trial violation is not
required to make an affirmative showing of prejudice [citation], the situation is different
after judgment. [Citations.] ‘Upon appellate review following conviction, . . . a
defendant who seeks to predicate reversal of a conviction upon denial of his right to
speedy trial must show that the delay caused prejudice: this court, in reviewing the
judgment of conviction, must “weigh the effect of the delay in bringing defendant to trial
or the fairness of the subsequent trial itself.” ’ ” (People v. Lomax (2010) 49 Cal.4th 530,
557, quoting People v. Johnson (1980) 26 Cal.3d 557, 574.)
This was the point made by the California Supreme Court in Clark in the context
of section 859b. (People v. Clark, supra, 63 Cal.4th at p. 552.) While here, in contrast
with the defendant in Clark, defendant objected in the trial court and sought dismissal,
although not pursuant to section 995, he did not pursue mandamus relief and the issue is
before this court on appeal following conviction rather than on a pretrial writ. (Clark, at
p. 552; see People v. Wilson (1963) 60 Cal.2d 139, 149 [proper remedy for enforcing
speedy trial rights is petition for writ of mandate prior to trial].) For the same reason,
defendant’s reliance on Bullock is misplaced. (Bullock v. Superior Court of Contra Costa
County (2020) 51 Cal.App.5th 134, 149-150 [dismissal was an appropriate remedy
8
despite the fact a preliminary hearing was held during the pendency of mandamus review
because the defendant sought mandamus relief as opposed to waiting until after trial].)
Thus, defendant must demonstrate he was prejudiced by his pretrial delay.
Defendant argues he was prejudiced by the delay in holding his preliminary
hearing because his “trial was postponed for several months during the pandemic
[citation], which imposed many further restrictions on [his] ability to assist his counsel in
his defense, as well as putting him at a high risk of contracting Covid.” (Fn. omitted.)
With this argument, defendant does not argue with particularity how the fairness of his
trial was hindered by the six-day delay. He also does not argue how the six-day delay, as
opposed to the subsequent delay caused by the COVID-19 pandemic, led to a material
delay in holding his trial. Because defendant has not shown he was prejudiced by the
alleged speedy trial violation in holding his preliminary hearing, dismissal based on that
alleged violation is unwarranted.
II
Sufficient Evidence Demonstrated Defendant Acted With A Lack Of Self-Defense
Defendant contends the evidence was insufficient to demonstrate he acted with a
lack of self-defense, as was required for the jury to find him guilty of assault with a
deadly weapon. We disagree.
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence -- that is, evidence that is reasonable,
credible, and of solid value -- from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v.
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Edwards (2013) 57 Cal.4th 658, 715.) “Even when there is a significant amount of
countervailing evidence, the testimony of a single witness that satisfies the standard is
sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
“ ‘To justify an act of self-defense . . . , the defendant must have an honest and
reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’
[Citation.] The threat of bodily injury must be imminent [citation], and ‘. . . any right of
self-defense is limited to the use of such force as is reasonable under the
circumstances.’ ” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, italics omitted.)
The defendant’s belief in the need to act in self-defense must be objectively reasonable as
determined from the point of view of a reasonable person. (Id. at p. 1065; People v.
Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) “It is well established that the ordinary
self-defense doctrine -- applicable when a defendant reasonably believes that his safety is
endangered -- may not be invoked by a defendant who, through his own wrongful
conduct (e.g., the initiation of a physical assault or the commission of a felony), has
created circumstances under which his adversary’s attack or pursuit is legally justified.”
(In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1, italics omitted; People v. Valencia
(2008) 43 Cal.4th 268, 288.)
Defendant argues he acted in lawful self-defense when he stabbed Austin because
he was outnumbered during a fight, in which Austin was on top of him and Julio was
punching and kicking him, and even stomping on his head, while Michael stood by.
Under these circumstances, defendant argues, it was reasonable for him to resort to
stabbing Austin to protect himself. Defendant relates the facts in the light most favorable
to himself instead of in the light most favorable to the judgment. We neither reweigh the
evidence nor reevaluate the credibility of witnesses. (People v. Lindberg (2008) 45
Cal.4th 1, 27.)
Indeed, defendant ignores Austin’s and Julio’s testimony that they were ushering
defendant off the store’s property after defendant had already harassed a female store
10
patron and initiated a physical altercation with Austin. The second phase of the
altercation did not occur because Austin and Julio attacked defendant, it occurred because
defendant refused to leave the property, pulled out a knife, and ran toward Austin
punching him twice. Austin took defendant to the ground and Julio kicked and punched
defendant in response to defendant wielding a knife at Austin. Taking this testimony into
account, as we must, it is clear the jury found defendant to be the aggressor and not
Austin or Julio. As stated, it is well established the self-defense doctrine may not be
invoked by a defendant who, through his own wrongful conduct, has created
circumstances under which his adversary’s attack is justified. (In re Christian S., supra,
7 Cal.4th at p. 773, fn. 1.) Thus, there was evidence from which the jury could have
concluded defendant stabbed Austin without justification. Accordingly, the evidence was
sufficient to support the jury’s determination defendant did not act in self-defense.
III
The Prosecutor Did Not Commit Prejudicial Error
Defendant contends the prosecutor committed prejudicial error by eliciting
evidence pertaining to Lamont’s prior act of spousal battery that had been excluded
during motions in limine. We disagree.
A
Background
Before trial, defendant objected to the prosecutor’s intended use of four of
Lamont’s prior convictions and the underlying conduct of those convictions as
impeachment evidence. These convictions included a 2004 misdemeanor conviction for
spousal battery, a 2006 felony conviction for corporal injury on a spouse, a 2007
misdemeanor conviction for corporal injury on a spouse, and 2015 felony conviction for
assault with a deadly weapon. Defendant argued the convictions and their underlying
conduct were inadmissible under Evidence Code section 352.
11
The trial court agreed the 2004 misdemeanor conviction for spousal battery and
associated conduct was inadmissible under Evidence Code section 352 because the
conviction was “just too remote.” The trial court further prohibited the prosecutor from
asking whether Lamont was convicted of a misdemeanor related to the 2007 corporal
injury on a spouse, but permitted the prosecutor to ask Lamont whether he had inflicted a
corporal injury on his spouse in 2007. In the event Lamont denied having inflicted a
corporal injury in 2007, the prosecutor would be permitted to impeach Lamont with a
certified record of the misdemeanor conviction.
During the prosecutor’s cross-examination of Lamont, he testified to having a
criminal record. In particular, he admitted to having been convicted of assault with a
deadly weapon and, to his recollection, a single conviction of domestic violence when he
was 18 years old. When asked whether he got in fights with women, Lamont answered
“[n]o. Not fights. Arguments. I got in a few arguments.” On redirect, Lamont also
admitted to having been convicted of domestic violence in 2007, when he was 26 years
old. Then, on recross, the prosecutor asked Lamont whether he had been convicted of
felony domestic violence in 2006. He responded, “If that’s what’s on the record. I don’t
recall that. I suffered from a bad motor-vehicle accident in 2016, so I lost a lot of my
memory then of my past. [¶] It comes to me, what my criminal history is. I am
definitely not going to know everything about my criminal history from 16 years ago.”
The prosecutor then asked Lamont, “So then you also wouldn’t remember committing
spousal battery in 2004 then?” Lamont responded, “Yes. I’m starting to recall[] the
incident now.”
Defense counsel objected and asked to be heard outside the presence of the jury.
The trial court overruled the objection. The prosecutor requested for Lamont’s answer to
be read back by the court reporter and the trial court denied the request. Lamont was then
excused as a witness.
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Following the close of evidence, defense counsel objected again to the
prosecutor’s questions pertaining to Lamont’s 2004 commission of spousal battery. The
trial court agreed the prosecutor violated the court’s in limine order not to reference
Lamont’s 2004 spousal battery conviction. It stated, however, that if the prosecutor had
asked to impeach Lamont’s insinuation that he did not get in fights with women with his
2004 prior act of spousal battery, the request would have been granted. The problem, as
the court saw it, was that the prosecutor went about it the wrong way. The trial court
decided to leave the evidence as it was and not instruct the jury to disregard Lamont’s
2004 prior act of spousal battery because the evidence was clearly impeachment
evidence.
B
The Prosecutor’s Questions Constituted Admissible Impeachment Evidence
Defendant does not take issue with the trial court’s finding that the prosecutor’s
questions about Lamont’s 2004 spousal battery, although elicited in an improper manner,
were nonprejudicial because the resulting evidence would have been admissible
impeachment evidence. Instead, defendant argues the evidence was inadmissible because
the prosecutor’s questions, which were elicited on recross-examination of Lamont, were
outside the scope set by defense counsel’s redirect examination.
Defendant did not object on this basis in the trial court. “ ‘It is well settled that
making a timely and specific objection at trial . . . , is a necessary prerequisite to preserve
a claim of prosecutorial misconduct for appeal.’ ” (People v. Johnsen (2021) 10 Cal.5th
1116, 1164.)
In any event, “[t]rial courts have broad discretion in deciding whether to reopen
the evidence.” (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208.) With the trial
court’s ruling that it would have permitted the prosecutor to impeach Lamont, it
impliedly stated it would have allowed the prosecutor to reopen her cross-examination for
that purpose. That decision was not an abuse of discretion. The prosecutor’s questions
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on recross regarding Lamont’s 2004 prior act of spousal battery did not appear to be
asked as the result of trial tactics. (See Rosenfeld, Meyer & Susman v. Cohen (1987) 191
Cal.App.3d 1035, 1052-1053 [a court can properly deny a motion to reopen evidence if
the failure to introduce evidence earlier is a product of trial tactics].) Another of
Lamont’s prior convictions was discussed during defendant’s redirect examination.
Thus, while the impeachment value of the prosecutor’s questions was outside the scope
set by defendant’s redirect examination, the topic of Lamont’s prior acts was not
unrelated to the topics defendant addressed during his examination.
For these same reasons, it does not appear the prosecutor intended to mislead
defendant, nor did the prosecutor fail to ask Lamont about his 2004 prior spousal battery
through a lack of diligence. (See Guardianship of Phillip B. (1983) 139 Cal.App.3d 407,
428 [“denial of a motion to reopen will be upheld if the moving party fails to show
diligence or that he [or she] had been misled by the other party”].) Indeed, the prosecutor
believed, as did the trial court, that Lamont’s prior act of spousal battery was admissible
as impeachment evidence, the prosecutor went about admitting the evidence in the wrong
way given the trial court’s earlier in limine ruling. Thus, to the extent the prosecutor
erred by questioning Lamont about his 2004 act of spousal battery, the error was not
prejudicial because the questions constituted admissible impeachment evidence.
IV
Remand Under Senate Bill No. 567 Is Unnecessary3
The parties agree Senate Bill No. 567 applies retroactively to this case. Defendant
further argues this matter should be remanded for resentencing under the amended statute
because some aggravating factors relied on by the trial court were not stipulated to or
3 Defendant’s request for judicial notice of legislative history pertaining to Senate
Bill No. 567, specifically the Senate Committee on Public Safety Analysis of Senate Bill
No. 567 (2021-2022 Reg. Sess.), as introduced on March 9, 2021, is granted.
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proven beyond a reasonable doubt. The People, on the other hand, contend remand is
unnecessary because the trial court imposed the upper term based on defendant’s criminal
history. We agree Senate Bill No. 567 applies retroactively and with the People that
remand is unnecessary.
While this appeal was pending, Senate Bill No. 567 came into effect. It amends
section 1170, subdivision (b), to make the middle term of imprisonment the longest term
of available imprisonment, unless the prosecution proves or the defendant admits the
facts underlying a justifying aggravated circumstance beyond a reasonable doubt.
(§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) This change aims to
protect a defendant’s right to a jury trial by ensuring the trial court does not impose an
upper term “without granting defendants the opportunity to have a jury review and
determine the truthfulness of alleged aggravating facts.” (Sen. Rules Com., Off. of Sen.
Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 567 (2021-2022 Reg.
Sess.) as amended Sept. 3, 2021, p. 4.)
According to the principle established in In re Estrada (1965) 63 Cal.2d 740, an
ameliorative change in law applies retroactively to nonfinal judgments in the absence of
an express statement to the contrary by the Legislature. (People v. Francis (1969) 71
Cal.2d 66, 75-76.) A judgment becomes final when it has reached final disposition in the
highest court authorized to review it. (People v. Rossi (1976) 18 Cal.3d 295, 304.) Here,
defendant’s judgment is not yet final and may be reduced by operation of Senate Bill No.
567. The Legislature also did not expressly prohibit the retroactive application of the bill.
Senate Bill No. 567 therefore applies retroactively to this case.
When speaking of the trial court’s discretion to impose the upper term,
section 1170, subdivision (b)(1) through (3), as amended by Senate Bill No. 567,
provides the court may impose the upper term “only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term . . . .” By its plain meaning, the provision does not provide for a
15
presumption that a trial court must exercise its discretion in a certain way. Instead, the
Legislature created a rule limiting a trial court’s discretion to impose the upper term in
cases where no aggravating factor has been proven beyond a reasonable doubt or
otherwise stipulated to by the defendant.
Given that subdivision (b)(1) through (3) of section 1170 is silent regarding the
court’s discretion, the newly enacted provision leaves unchanged a trial court’s discretion
to impose the upper term of imprisonment based on a single aggravating factor (see
People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182; People v. Osband (1996) 13 Cal.4th
622, 728 [“[o]nly a single aggravating factor is required to impose the upper term”]) and
the sentence it believes to be appropriate to the case and the defendant being sentenced
before it (see People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [“A judge’s
subjective determination of the value of a case and the appropriate aggregate sentence,
based on the judge’s experiences with prior cases and the record in the defendant’s case,
cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be
imposed is not improper as long as it is channeled by the guided discretion outlined in the
myriad of statutory sentencing criteria”]).
Reading section 1170, subdivision (b)(1) through (3) in the context of the law
existing at the time of its enactment, as we are required to do (see Leslie Salt Co. v. San
Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 618-619 [“Where, as
here, such legislation does not expressly purport to depart from or alter the common law,
it will be construed in light of common law principles bearing upon the same subject”]),
the prosecution needs to prove only one aggravating circumstance to justify imposition of
the upper term (§ 1170, subd. (b)(1)-(3)). A justifying factor is any factor that is listed in
the California Rules of Court even before the amendment. (§ 1170, subd. (a)(3) [“In
sentencing the convicted person, the court shall apply the sentencing rules of the Judicial
Council”].)
16
Here, defendant’s prior conviction was found true based on a certified record of
conviction, justifying the court’s imposition of the upper term. (Cal. Rules of Court, rule
4.421(b)(2); see People v. Flores (2022) 75 Cal.App.5th 495, 500-501 [an upper term
may be affirmed without remanding for resentencing as long as the reviewing court is
satisfied, beyond a reasonable doubt, that “the jury would have found true at least one
aggravating circumstance”], citing People v. Sandoval (2007) 41 Cal.4th 825.)
Moreover, any error is harmless under the standard announced in Lopez. (People
v. Lopez (2022) 78 Cal.App.5th 459.) There, the court concluded: “The question of
prejudice under retroactive application of the revised triad system involves a two-step
process, neither of which includes a determination as to whether the trial court relied on a
single, or even a few, permissible factors in selecting an upper term. Rather, under the
new version of the triad system set forth in section 1170, 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 in exercising its discretion to select the upper term.
If the answer to this question is ‘yes,’ then the defendant has not suffered prejudice from
the court’s reliance on factors not found true by a jury in selecting the upper term.
However, if the answer to the question is ‘no,’ we then consider the second question,
which is whether a reviewing court can be certain, to the degree required by People v.
Watson (1956) 46 Cal.2d 818, 836 . . . , that the trial court would nevertheless have
exercised its discretion to select the upper term if it had recognized that it could
permissibly rely on only a single one of the aggravating factors, a few of the aggravating
factors, or none of the aggravating factors, rather than all of the factors on which it
previously relied. If the answer to both of these questions is ‘no,’ then it is clear that
remand to the trial court for resentencing is necessary.” (People v. Lopez, supra, 78
Cal.App.5th at p. 467, fn. 11.)
17
The trial court cited defendant’s prior prison term and prior conviction as the
reason it was imposing the upper term. One of defendant’s prior convictions was
established by a certified record and found true by the trial court, and defendant’s other
prior convictions, as well as his prior prison term, were established by the probation
report, and presented to the court in defendant’s presence at sentencing -- a time when
defendant had every incentive to object if incorrect. We are convinced beyond a
reasonable doubt these factors would be found true beyond a reasonable doubt if
submitted to a jury. It is reasonably probable the trial court, relying on those findings,
will exercise the same discretion it already exercised to impose the upper term. For this
reason, remand is unnecessary.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
I concur:
/s/
Krause, J.
18
DUARTE, J. dissenting:
I disagree with the majority’s conclusion that remand is unnecessary in this case.
In my view, we cannot properly conclude that the error in failing to comply with the
requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) was
harmless.
Defendant was sentenced to the upper term for his crime without the benefit of
Senate Bill No. 567, which amended Penal Code section 1170, subdivision (b)1 and
provides that a trial court may impose an upper term sentence only where there are
aggravating circumstances that justify the imposition of a term exceeding the middle term
and the defendant has either stipulated to the facts underlying those circumstances or
those facts have been found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2);
Stats. 2021, ch. 731, § 1, eff. Jan. 1, 2022.)
The trial court cited multiple aggravating factors: (1) the crime “was very
violent”; (2) “defendant has engaged in violent conduct indicating a serious danger to
society”; (3) “defendant’s prior convictions as an adult are numerous”; (4) “he has served
a prior prison term”; (5) defendant was on formal probation and [postrelease community
supervision]; and (6) “defendant’s prior performance on probation and [postrelease
community] supervision has been unsatisfactory.” Immediately after citing these six
factors, the court stated “[t]he upper term is chosen because of the fact the defendant has
served a prior prison term, and his prior convictions as an adult are numerous . . . .” The
trial court provided no other insight as to the respective weight it was according any of
the multiple factors. None of the prior convictions other than the prior prison term were
proven by certified records and none of the aggravating factors were proven beyond a
reasonable doubt.
1 Undesignated statutory references are to the Penal Code.
1
The majority concludes remand is unnecessary because one of the aggravating
factors relied upon by the trial court--defendant’s prior conviction--was found true based
on a certified record of conviction. (Maj. opn., ante, at p. 17, citing People v. Flores
(2022) 75 Cal.App.5th 495, 500-501 (Flores.) While I agree that a trial court has
discretion to impose the upper term of imprisonment based on a single (properly proven)
aggravating factor (see maj. opn., ante, at p. 16, citing People v. Nicolas (2017) 8
Cal.App.5th 1165, 1182 and People v. Osband (1996) 13 Cal.4th 622, 728), that is not
what happened here.
Here, the trial court cited multiple factors in support of the upper term sentence
and only one was properly proven under the new statute. Although I agree that a prior
conviction may be proved by a certified record of conviction (§ 1170, subd. (b)(3)), I
disagree with the conclusion that remand is not required in circumstances where the trial
court relied upon multiple aggravating circumstances when imposing the upper term and
the reviewing court is satisfied, beyond a reasonable doubt, that “the jury would have
found true at least one aggravating circumstance.” (Flores, supra, 75 Cal.App.5th at p.
501.)
Rather, I agree with People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez) and
People v. Zabelle (Jul. 11, 2022, C093173) 2022 Cal.App.Lexis 599 that the law requires
a two-step analysis, the second of which is “whether a reviewing court can be certain, to
the degree required by People v. Watson (1956) 46 Cal.2d 818, 836, that the trial court
would nevertheless have exercised its discretion to select the upper term if it had
recognized that it could permissibly rely on only a single one of the aggravating factors, a
few of the aggravating factors, or none of the aggravating factors, rather than all of the
factors on which it previously relied.” (Lopez, at p. 467, fn. 11; Zabelle, at p. *8.) Here,
the trial court relied on at least two aggravating factors, and cited six, to support its
decision to impose the upper term; only defendant’s prior prison term was properly
proven. The remainder of the factors were neither stipulated nor proven as required by
2
section 1170, subdivision (b) as amended. Defendant’s purported numerous convictions
were supported only by the probation report, which is not a certified copy of the record of
conviction (see Evid. Code, §§ 452.5, subd. (b)(1); id., 1530, subd. (a)(2)), and
defendant’s CLETS record, also not a certified record of conviction. Nor were any of the
remaining factors recited by the trial court proven beyond a reasonable doubt as required.
The majority purports to also apply the harmless error standard set forth in Lopez,
supra, 78 Cal.App.5th 459 (maj. opn, ante, at pp. 17-18), although Lopez rejected the
conclusion reached by Flores, supra, 75 Cal.App.5th 495, on which the majority first
relies. The majority concludes beyond a reasonable doubt that defendant’s prior
convictions would have been found true by a jury because the prior convictions were
listed in the probation report, and defendant failed to object when the prior convictions
were presented to the court in defendant’s presence, despite having “every incentive to
object [to the probation report’s statement of his prior convictions] if incorrect.” (Maj.
opn., ante, at p. 18.)
Application of Lopez’s first step requires us to examine whether the “ ‘evidence
supporting that [aggravating] factor is overwhelming and uncontested, and there is no
“evidence that could rationally lead to a contrary finding.” ’ ” (Lopez, supra, 78
Cal.App.5th 459 at p. 465, quoting People v. French (2008) 43 Cal.4th 36, 52-53.) The
majority does not explain how the mere presumption of the existence of extra-record
evidence satisfies this standard, and I do not agree that such presumed evidence
constitutes evidence that is “overwhelming and uncontested.” I agree with People v.
Zabelle, supra, 2022 Cal.App.Lexis 599 at page *9, footnote 6, that “if the record is
insufficient to support a trial court’s findings about a defendant’s criminal history,” the
reviewing court should not “presume the existence of extra-record materials, however
likely they are to exist, to address this insufficiency.” Indeed, presuming the existence of
extra-record evidence undermines the specific language of Senate Bill No. 567 and
3
amended sections 1170 and 1170.1, and signals that this type of noncompliance will
always be harmless error.
Further, I disagree that defendant’s failure to explicitly dispute the probation
report’s accuracy excused the error. Defendant did not stipulate to the accuracy of the
report or the information therein, as would be required to satisfy the requirements of
Senate Bill No. 567. Additionally, “although defendant did have an incentive and
opportunity at the sentencing hearing to contest any aggravating circumstances
mentioned in the probation report or in the prosecutor’s statement in aggravation, that
incentive and opportunity were not necessarily the same as they would have been had the
aggravating circumstances been tried to a jury” because the standard of proof was lower
and because defense counsel may have adopted a different strategy with a jury
factfinding than with a judge who is both factfinding and sentencing. (People v.
Sandoval (2007) 41 Cal.4th 825, 839.) Moreover, we “cannot necessarily assume that the
record reflects all of the evidence that would have been presented had aggravating
circumstances been submitted to the jury.” (Ibid.) I disagree with the majority’s
apparent conclusion that defendant’s failure to object to the material contained in the
probation report establishes the report’s accuracy beyond a reasonable doubt where
counsel’s strategy in failing to object is unknown, and the standard of proof was lower
than it is following enactment of Senate Bill No. 567.
I would remand for resentencing under the new statute. Accordingly, I dissent
from the majority’s decision not to do so.
/s/
Duarte, J.
4