People v. Minick CA3 ( 2022 )

Filed 8/23/22 P. v. Minick 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C095111
Plaintiff and Respondent, (Super. Ct. No. CRF20-2485)
v.
TRAVIS RAY MINICK,
Defendant and Appellant.
Defendant Travis Ray Minick pleaded no contest to one count of possession of
methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a prior strike
conviction for burglary. (Pen. Code, § 459.)1 The plea agreement called for defendant to
complete a residential treatment program, after which the trial court would strike the
strike and grant probation. Defendant failed to complete the program. The trial court
imposed the upper term, doubled by the strike.
1 Undesignated statutory references are to the Penal Code.
1
Defendant contends that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 731) (Senate Bill 567), which took effect while this appeal was pending, applies
retroactively to his case and requires reversal of his sentence and remand for
resentencing. The People agree that Senate Bill 567 applies but argue the trial court
sufficiently complied with the new law in selecting an upper term sentence and any error
was harmless. We agree with the parties that Senate Bill 567 applies retroactively. We
conclude that the trial court complied with amended section 1170, subdivision (b)
regarding one aggravating circumstance the court relied on in sentencing defendant to the
upper term. We further conclude the court’s consideration of additional aggravating
circumstances that are inconsistent with the new statutory standard was harmless error.
Lastly, the parties agree, as do we, that the abstract of judgment incorrectly stated
that defendant was obligated to pay a $705 drug program fee which, under Health and
Safety Code section 11372.7, subdivision (a), may not exceed $150 for each offense. We
will order the abstract of judgment corrected.
The judgment is otherwise affirmed.
BACKGROUND
The People charged defendant with one count of possession of methamphetamine
for sale (Health & Saf. Code, § 11378—count 1) and one count of receiving a stolen
vehicle. (§ 496, subd. (a)—count 2.) As to the drug possession count, the information
also alleged that defendant had previously been convicted of a serious felony, first degree
burglary (§ 459), which constitutes a strike under California’s Three Strikes law.
Defendant entered a no contest plea to count 1 and admitted the prior strike
conviction. Under the plea agreement, defendant was given the opportunity to complete
a minimum six-month residential treatment program. If defendant successfully
completed the program, the strike would be stricken and defendant would be given an
unusual case finding and granted probation. If defendant did not complete the program,
he could be sentenced to a minimum of 16 months to maximum of three years, doubled
2
by the strike. Defendant was given 30 days to find a treatment program and return to
court for a review hearing. Other charges against defendant were dismissed.
Defense counsel stated that the parties stipulated to the factual basis of the plea to
count 1 being the report of the Yuba County Sheriff’s Office, and that witnesses would
testify that defendant was found to be in possession of 46 grams of methamphetamine, a
scale, a pipe and other stolen property. Also, an expert witness would testify that
possession of the methamphetamine was for purposes of sale based on the amount and
other paraphernalia in defendant’s possession. Defendant admitted that, as alleged in the
information, he had a prior conviction for first degree residential burglary.
Defendant failed to complete a residential treatment program and the trial court set
a sentencing hearing. The matter was referred to the probation department to prepare a
presentence report. The probation report noted that defendant’s criminal record included
five misdemeanor convictions, three probation violations, a parole violation, and seven
felony convictions for first degree burglary, receiving stolen property, second degree
burglary, three counts of transportation of a controlled substance (Health & Saf. Code,
§ 11379, subd. (a)), and possession of a firearm by a felon (§§ 29800, 29805), as well as
that defendant had served multiple prior prison terms. As circumstances in aggravation,
the probation report stated that defendant’s prior convictions as an adult are numerous
(Cal. Rules of Court, rule 4.421(b)(2));2 defendant had served prior prison terms (rule
4.421(b)(3)); and defendant’s prior performance on probation was unsatisfactory. (Rule
4.421(b)(5).) No mitigating factors were noted. The report recommended that defendant
be sentenced to the upper term of three years, doubled to six years by the strike.
2 Undesignated rule references to the California Rules of Court.
3
At the sentencing hearing, defense counsel requested the doubled midterm of four
years, noting that defendant had not been convicted of a felony since 2014. The
prosecutor agreed with the probation report’s recommendation of the upper term.
The trial court explained the aggravating circumstances it considered in deciding
whether to select an upper term sentence: (1) “46 grams” of methamphetamine that
defendant possessed for sale was “[n]ot an insignificant amount”; (2) defendant had a
“history of DUIs”; (3) defendant was convicted of first degree burglary and served a
prison term; (4) defendant was convicted of receiving stolen property and served a
second prison term; (5) defendant violated parole; (6) defendant had a second burglary
conviction and served another prison term; (7) defendant had three drug transportation
convictions involving “very significant” quantities; (8) defendant was convicted of two
felonies for possession of a firearm by a felon; and (9) defendant had recently been
charged with misdemeanor drug violations that were dismissed in the current case.
The court said, “So he’s not exactly a stranger to the criminal justice system. We
have what? At least seven prior felonies in this matter. He was given an opportunity to
address a drug issue. Evidence is clear. Possession for sale in this case. With the
number of prior convictions, violations of parole and probation that he has [in]curred
previously, certainly is not a low-term type individual. [¶] And look at this request for
the mid term. It’s true that since 2014 we really haven’t seen so much contact with him.
Perhaps that’s why he was given the opportunity that he was given in this matter. [¶]
Looking at the big picture of defendant’s convictions, also considering the facts of this
case, it’s not ten grams. We have a very significant quantity possessed for nothing other
than selling it to other people. [¶] Aggravating circumstances in this case are very
significant. And I place great weight on them.”
The trial court sentenced defendant to the upper term of three years, doubled by
the strike, for an aggregate term of six years.
4
Approximately one month after the sentencing hearing, the Legislature enacted
Senate Bill 567, which took effect on January 1, 2022. Among other things, the bill
amended section 1170, subdivision (b) to prohibit trial courts from considering
aggravating circumstances when selecting an upper term sentence unless the facts
underlying each aggravating factor have been established by one of three prescribed
methods. (See Stats. 2021, ch. 731, § 1.3.)
DISCUSSION
I
Defendant’s Upper Term Sentence
Defendant contends that Senate Bill 567 applies retroactively to require reversal of
his sentence and remand for resentencing because, with the exception of a 2001 burglary
conviction that defendant admitted, none of the facts supporting the aggravating
circumstances the trial court relied on when it selected an upper term sentence was
stipulated to by defendant, found true beyond a reasonable doubt at trial by a jury or
judge in a court trial, or proven by certified records. The People argue we should affirm
defendant’s sentence because the trial court relied on defendant’s criminal history in
imposing the upper term, which the new law permits, and because any errors under that
law were harmless.
We conclude that while defendant stipulated to only one prior conviction, which
was insufficient to support a “numerous” prior convictions aggravating circumstance
(rule 4.421(b)(2)), he stipulated to facts supporting a significant quantity of contraband
aggravating circumstance. (Rule 4.421(a)(10).) One aggravating circumstance
established as required by section 1170, subdivision (b)(2) is sufficient to support
selection of the upper term under the amended statute. Further, the trial court’s
consideration of defendant’s criminal history as an aggravating circumstance that did not
meet the requirements of the amended statute was harmless error.
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A. Retroactive application of Senate Bill 567
Senate Bill 567 amended section 1170, subdivision (b) so that, among other
things, aggravating circumstances now only justify the imposition of an upper term
sentence if “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.” (§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731,
§ 1.3.) The amended statute also adds a third acceptable method of factfinding,
permitting courts 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.” (§ 1170, subd. (b)(3).)
The People correctly concede that the amended version of section 1170,
subdivision (b) applies retroactively in this case as an ameliorative change in the law
applicable to all nonfinal convictions on appeal. (See In re Estrada (1965) 63 Cal.2d
740,745; People v. Conley (2016) 63 Cal.4th 646, 657 [“in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the criminal
law to extend as broadly as possible”]; People v. Flores (2022) 73 Cal.App.5th 1032,
1039 [holding Senate Bill 567 applies retroactively to nonfinal convictions on appeal];
People v. Flores (2022) 75 Cal.App.5th 495, 500 [same].)
B. Prior convictions
The trial court’s statement of aggravating circumstances based on defendant’s
criminal history fell into several of the categories set forth in rule 4.421: (1) the
numerosity of defendant’s prior convictions (rule 4.421(b)(2)); (2) defendant had served
prior prison terms (rule 4.421(b)(3)); and (3) defendant’s prior performance on probation
and parole was unsatisfactory. (Rule 4.421(b)(5).)
The People contend that defendant’s prior convictions and poor performance on
probation and parole were properly established and may be considered under the
amended law because the trial court relied upon defendant’s stipulation and certified
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records under section 1170, subdivision (b)(3). As an initial matter, we disagree that
section 1170, subdivision (b)(3) allows the trial court to find any underlying facts other
than the prior convictions themselves. Subdivision (b)(3) specifies repeatedly that the
only exception created is for prior convictions: “[T]he 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.” (§ 1170, subd. (b)(3).)
The statute clearly does not codify the much broader exception described in People v.
Towne (2008) 44 Cal.4th 63, which allows judicial consideration of facts related to a
defendant’s recidivism without violating the Sixth Amendment. (Id. at pp. 79-83; see
also People v. Gallardo (2017) 4 Cal.5th 120, 124-125 [disapproving Sixth Amendment
precedent and limiting judicial factfinding about the facts underlying a defendant’s prior
conviction].)
Here, there were no certified records of prior convictions presented to the trial
court, leaving only one prior conviction admitted by defendant properly established under
amended section 1170, subdivision (b). One prior conviction is insufficient to establish
the aggravating circumstance of “numerous” prior convictions under rule 4.421(b)(2).
(See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions deemed
“ ‘numerous’ ”]; see also People v. Black (2007) 41 Cal.4th 799, 818 [citing approvingly
this conclusion in Searle].)
C. Large quantity of contraband
In stating the circumstances in aggravation considered, the trial court referred to
“46 grams” of methamphetamine as a “very significant amount possessed for nothing
other than selling it to other people.” Rule 4.421(a)(10) states as an aggravating
circumstance that “[t]he crime involved a large quantity of contraband.” Defendant
stipulated as the factual basis for the plea, the report that the Yuba County Sheriff’s
Office, and that witnesses would testify that defendant was found with “46 grams of
methamphetamine,” and an expert witness would testify that defendant possessed the
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methamphetamine for sale in part based on the amount. Defendant’s stipulation to this
fact specifying the exact amount of methamphetamine he possessed and the court’s
reliance on the stipulated fact to support its finding of circumstances in aggravation
sufficiently complies with the retroactive requirements of section 1170, subdivision
(b)(2). (Cf. People v. Maldonado (2009) 172 Cal.App.4th 89, 92-93 [police officers
testified as experts that 19.92 grams of methamphetamine found in the defendant’s jacket
was possessed for sale, “[b]ased on the large quantity of methamphetamine”].)
In reply, defendant argues that the trial court did not rely on his stipulation that he
possessed 46 grams for sale as involving a large quantity of contraband, but made a
finding that it was “ ‘not an insignificant amount’ ” and “ ‘a very significant quantity.’ ”
As reflected in Maldonado, the amount of methamphetamine establishes that it
constitutes a “large quantity” and, in this instance, the amount was more than twice that
in Maldonado. We conclude that defendant stipulated that he was in possession of a
large quantity of methamphetamine for sale.
One aggravating circumstance is sufficient to impose the upper term. (People v.
Burbine (2003) 106 Cal.App.4th 1250, 1263 [“Only a single aggravating factor is
required to impose the upper term”], citing People v. Osband (1996) 13 Cal.4th 622, 728;
see also People v. Sandoval (2007) 41 Cal.4th 825, 839; People v. Flores, supra, 75
Cal.App.5th at pp. 500-501; People v. Salazar (2022) 80 Cal.App.5th 453, 465.)
D. Aggravating circumstances not properly established
Three additional aggravating factors considered by the trial court were not based
on facts found in compliance with Senate Bill 567. Specifically, that defendant had
served prior prison terms (rule 4.421(b)(3)) and had performed poorly on parole (rule
4.421(b)(5)), as well as that defendant’s prior convictions were “numerous.” (Rule
4.421(b)(2).) These aggravating circumstances were not established based on underlying
facts found true beyond a reasonable doubt or stipulated to by the defendant.
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Accordingly, applying Senate Bill 567 retroactively, it was error to consider those factors
as supporting the imposition of an upper term sentence.
E. Prejudice
Because the error is purely one of state law, the harmless error test in People v.
Watson (1956) 46 Cal.2d 818, 836 applies. (People v. Epps (2001) 25 Cal.4th 19, 29.)
The test is whether, “ ‘after an examination of the entire cause, including the evidence,’
[the reviewing court] is of the ‘opinion’ that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.”
(Watson, supra, at p. 836; see also Cal. Const., art. VI, § 13; People v. Price (1991)
1 Cal.4th 324, 492 [“When a trial court has given both proper and improper reasons for a
sentence choice, a reviewing court will set aside the sentence only if it is reasonably
probable that the trial court would have chosen a lesser sentence had it known that some
of its reasons were improper”].) A reasonable probability of a more favorable result
exists where the improper factor was determinative for the sentencing court or where the
reviewing court cannot determine whether the improper factor was determinative.
(People v. Avalos (1984) 37 Cal.3d 216, 233; cf. People v. Gutierrez (2014) 58 Cal.4th
1354, 1391 [when sentencing court is unaware of the scope of its discretionary powers,
“the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion’ ”].)
Applying these standards, we must ask two questions to determine whether the
trial court’s errors were harmless. First, would any of the facts underlying the three
improperly found aggravating circumstances have been found true beyond a reasonable
doubt if submitted to the trier of fact? (See People v. Lopez (2022) 78 Cal.App.5th 459,
467, fn. 11; cf. People v. Epps, supra, 25 Cal.4th at pp. 29-30 [no reasonable probability
of a result more favorable to the defendant had the jury, instead of the court, determined
that defendant suffered disputed prior convictions].) Second: excluding any factors we
9
cannot conclude would have been found true in a permissible manner, is there a
reasonable probability the trial court would have imposed a more lenient sentence?
(People v. Price, supra, 1 Cal.4th at p. 492; People v. Avalos, supra, 37 Cal.3d at p. 233.)
In response to the first question, we conclude a trier of fact would have found true
beyond a reasonable doubt the facts underlying the three factors related to defendant’s
criminal history. In making this determination, we are mindful that 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.” (People v.
Sandoval, supra, 41 Cal.4th at p. 839.) “[A]lthough defendant did have an incentive and
opportunity at the sentencing hearing to contest any aggravating circumstances
mentioned in the probation report . . . , 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. (Ibid.)
With the exception of the burglary conviction that defendant admitted, defendant’s
prior convictions, prior prison terms, and poor performance on parole were established in
the probation report, based on official records. (See Evid. Code, § 664 [official duty
presumed regularly performed].) Defendant did not challenge these facts, despite having
the opportunity to mitigate his sentence by doing so. Had the official records been
wrong, there would have been no strategic reason for defendant not to point out the error.
We conclude that a trier of fact would have concluded that defendant suffered numerous
prior convictions, served prior prison terms, and performed poorly on probation and
parole beyond a reasonable doubt.
Thus, all of the aggravating circumstances originally considered by the trial court
survive retroactive application of Senate Bill 567. And, we note that the trial court found
10
no mitigating circumstances at the sentencing hearing and the probation report noted
none. Accordingly, remand for resentencing is unnecessary.
II
Drug Program Fee
At the sentencing hearing, the trial court said, “There’s a lab analysis fine of $50,
[Health and Safety Code section] 11372.7 program fee, $150, plus penalty assessments,
totals 705.” On the abstract of judgment, this part of the sentence was recorded as “$705
Drug Program Fee per HS 11372.7(a) for each qualifying offense.” Health and Safety
Code section 11372.7, subdivision (a) provides for “a drug program fee in an amount not
to exceed one hundred and fifty dollars ($150) for each separate offense.”
“The trial court is generally required to include all aspects of a judgment in its oral
pronouncement of judgment. [Citation.]” (People v. Leon (2020) 8 Cal.5th 831, 855.)
“Any discrepancy between the judgment as orally pronounced and as recorded in the
clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.
[Citation.] The abstract of judgment ‘does not control if different from the trial court’s
oral judgment and may not add to or modify the judgment it purports to digest or
summarize.’ ” (Ibid., quoting People v. Mitchell (2001) 26 Cal.4th 181, 185.)
“Courts may correct clerical errors at any time, and appellate courts . . . have
ordered correction of abstracts of judgment that did not accurately reflect the oral
judgments of sentencing courts.” (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
Under these authorities, defendant is entitled to have the abstract corrected to
reflect a drug program fee of $150.
DISPOSITION
The clerk of the superior court is ordered to prepare a corrected abstract of
judgment to reflect a drug program fee of $150 under Health and Safety Code section
11
11372.7, subdivision (a), and to forward a certified copy to the Department of
Corrections and Rehabilitation. The judgment is otherwise affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HULL , J.
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