People v. Woods CA4/1 ( 2022 )

Filed 4/27/22 P. v. Woods CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078728
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD281690,
SCD277369, SCD280048)
AHERN HAHSHON WOODS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth K. So, Judge. Reversed in part and remanded for resentencing.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin
Urbanski, Acting Assistant Attorney General, A. Natasha Cortina, Annie
Featherman Fraser and Paige Hazard, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted Ahern Hahshon Woods on 28 counts arising from theft
and drug-related activity between February 2017 and May 2019. The trial
court sentenced Woods to a term of 15 years in prison.
Woods challenges only the convictions on the four counts that relate to
the theft of two pickup trucks on different dates in 2019. For both vehicle
thefts, Woods was convicted of unlawfully taking a vehicle in violation of
Vehicle Code section 10851, subdivision (a) (counts 3 and 5). Woods contends
that insufficient evidence supports the jury’s finding that he took the trucks,
as required for the convictions in counts 3 and 5. According to Woods, the
evidence supports no more than a finding that he was later found to be in
possession of the trucks. In addition, for both of the vehicle thefts, the jury
also convicted Woods of receiving a stolen vehicle in violation of Penal Code
section 496d (counts 4 and 6). Woods contends, and the People agree, that
those counts should be reversed because a defendant may not be convicted for
stealing and receiving the same stolen property.
In supplemental briefing, Woods also contends that this case should be
remanded for the trial court to apply the amended sentencing statutes that
took effect on January 1, 2022. Those revised statutes (1) amend Penal Code
section 1170 to narrow the trial court’s discretion to impose an upper-term
sentence (Pen. Code, § 1170, subd. (b)(1)-(3)); and (2) amend Penal Code
section 654 to expand the trial court’s discretion in selecting the count to
punish when multiple counts arise from a single act or omission. (Id., § 654,
subd. (a).)
As to the counts arising from the theft of the pickup trucks, we
conclude that substantial evidence supports the convictions for unlawfully
taking a vehicle (Veh. Code, § 10851, subd. (a)) in counts 3 and 5, and we
concur with the parties that the convictions for receiving those same stolen
2
vehicles in counts 4 and 6 must be reversed. As to the amended sentencing
statutes, we remand to the trial court to resentence Woods in accordance with
the amended provisions. We accordingly reverse the convictions on counts 4
and 6, and we remand for resentencing. In all other respects, we affirm the
judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Woods was tried on 35 counts set forth in a consolidated information
that arose from crimes that occurred between 2017 and 2019.1 Our
discussion of the factual background will focus on the evidence relating to the
four counts at issue in this appeal. However, because the sentencing issues
raised by Woods concern all of the counts, we also briefly describe the other
evidence presented at trial.
A. An Overview of Woods’s 2017 to 2019 Crime Spree
The jury heard evidence that on several dates, different victims
experienced car burglaries, during which valuable items and, in some cases,
personal identifying information or debit/credit cards were taken from their
vehicles. When he was eventually arrested, Woods possessed tools used to
illegally open locked cars. During one of the car burglaries, the victim caught
Woods in the act and climbed into Woods’s truck to try to retrieve some of her
belongings. Woods sped away from the scene with the victim still standing in
the back of his truck. Woods also accelerated toward the victim’s friend as
she stood in front of his truck. Similarly, on several dates, different victims
experienced residential or commercial burglaries, in which valuable items
were taken. Items taken in the burglaries were later found in Woods’s
1 During trial, the People dismissed two of the counts (counts 12 and 22),
so that the jury was presented with 33 counts on which to reach a verdict.
3
possession. During one of the residential burglaries, a vehicle at the
residence was also taken. Woods’s DNA was found on sunglasses left at the
scene of that burglary, and the vehicle appears to have been taken by the use
of keys that the owner had lost prior to the burglary.
On various dates, Woods was also found with drugs, firearms, or
ammunition in his possession, along with the personal identifying
information of numerous persons and items indicating that he was involved
in selling drugs. On one occasion, when police arrived at a location where
they planned to apprehend Woods, he recklessly fled from the officers in a
vehicle and took refuge in a motel, where he damaged the walls in an attempt
to tunnel through them to escape.
The four counts specifically at issue in this appeal arise from vehicle
thefts that occurred on March 10, 2019 (counts 3 and 4) and April 28, 2019
(counts 5 and 6).
B. The 2019 Thefts of the Tacoma and the Dodge Ram
On the morning of March 10, 2019, Raymond R. noticed that his white
2017 Toyota Tacoma pickup truck (the Tacoma) was missing from the hotel
parking lot where he left it the previous night. Raymond R. had misplaced
the Tacoma’s keys shortly before the theft. On May 8, 2019, police located
the Tacoma at a storage facility where Woods was on the premises at his
storage unit. A video from the storage facility showed that Woods drove the
Tacoma that day, and employees at the storage facility testified that Woods
had also driven the Tacoma on previous dates. On one occasion, an employee
at the storage facility saw a woman drive the Tacoma to the facility to drop it
off for Woods.
The keys to the Tacoma were located directly outside of Woods’s storage
unit when they arrested him. Woods’s EBT card was found in the Tacoma.
4
When the Tacoma was recovered, Raymond R. described it as being “a little
beat up,” and the lock on the driver’s side door had been tampered with. The
interior was dirty; there was debris in the bed of the truck; and the mileage
had increased by 10,000 to 15,000 miles. The license plate on the back of the
truck had been replaced with a stolen license plate.
Woods used the Tacoma to commit a car burglary on March 24, 2019,
which is 14 days after the Tacoma was stolen on March 10, 2019. When
Woods was arrested on May 8, 2019, Raymond R.’s business cards and
employment access card were found in Woods’s storage unit or in one of
Woods’s vehicles.
A white Dodge Ram pickup truck (the Dodge Ram) was stolen from
Nathan L. on April 28, 2019. A video showed Woods driving the Dodge Ram
at the storage facility on May 8, 2019. Employees at the storage facility saw
Woods driving the Dodge Ram on other dates as well. The keys or key fob to
the Dodge Ram were on Woods’s person when he was arrested on May 8,
2019.
Woods was charged in count 3 with unlawfully taking the Tacoma, with
the further allegation that the Tacoma had a value of over $950 (Veh. Code,
§ 10851), and in count 4 with receiving a stolen vehicle, i.e., the Tacoma (Pen.
Code, § 496d). Woods was charged in count 5 with unlawfully taking the
Dodge Ram (Veh. Code, § 10851), and in count 6 with receiving a stolen
vehicle, i.e., the Dodge Ram (Pen. Code, § 496d).2
2 Before the case was given to the jury, the People elected to proceed with
both count 5 (Veh. Code, § 10851) and count 6 (Pen. Code, § 496d) as
misdemeanors rather than felonies. The People did so because the owner of
the Dodge Ram, Nathan L., did not testify, and therefore the evidence did not
show that the value of the Dodge Ram exceeded $950. (People v. Bullard
(2020) 9 Cal.5th 94, 110 (Bullard) [“Except where a conviction is based on
5
C. Woods’s Conviction and Sentence
The jury convicted Woods on all four counts relating to the two stolen
trucks (counts 3 through 6). As to the remaining counts, the jury convicted
Woods of one count of robbery (Pen. Code, § 211, count 1); five counts of
identity theft (Pen. Code, § 530.5, subd. (c)(1), (2) & (3), counts 10, 11, 30, 31
& 35); five counts of receiving stolen property (Pen. Code, § 496, subd. (a),
counts 13, 14, 15, 16 & 29); three counts of being a person prohibited from
owning or possessing ammunition/firearm (Pen. Code, § 30305, subd. (a)(1),
counts 17, 20 & 28); two counts of being a felon in possession of a firearm
(Pen. Code, § 29800, subd. (a)(1), counts 19 & 27); two counts of possession for
sale of a controlled substance (Health & Saf. Code, § 11378, counts 21 & 34);
one count of possession of burglary tools (Pen. Code, § 466, count 23); one
count of reckless evading (Veh. Code, § 2800.2, subd. (a), count 24); one count
of vandalism (Pen. Code, § 594, subds. (a), (b)(1), count 25); one count of
burglary (Pen. Code, § 459, count 26); one count of grand theft of a firearm
(Pen. Code, § 487, subd. (d)(2), count 32); and one count of transportation of
controlled substances for sale (Health & Saf. Code, § 11379, subd. (a), count
33). 3
posttheft driving (i.e., driving separated from the vehicle’s taking by a
substantial break), a violation of [Vehicle Code] section 10851 must be
punished as a misdemeanor theft offense if the vehicle is worth $950 or less”];
but see People v. Orozco (2020) 9 Cal.5th 111, 123 [“Proposition 47’s
amendments to [Penal Code] section 496[, subdivision ](a) [making the
offense a misdemeanor if value of the stolen item is below $950] do not affect
punishments for receipt of stolen vehicles under [Penal Code] section 496d.”].)
3 The jury was unable to reach a verdict on counts 7, 8, 9 (burglary,
grand theft, and vandalism as to a specific victim) and count 18 (possession
for sale of methamphetamine). The court declared a mistrial on those counts,
and the People dismissed them.
6
Prior to trial, Woods admitted allegations under Penal Code section
666.5, subdivision (a) that he had four prior vehicle theft convictions (Veh.
Code, § 10851), and also admitted that he had two prior convictions for
possessing personal identifying information (Pen. Code, § 530.5). Woods
further admitted that he committed many of the instant offenses while he
was out on bail on one or more cases (id., § 12022.1, subd. (b)).4
Woods was sentenced to an upper term sentence of six years on count
26 (burglary), as the principal count. The trial court imposed a consecutive
one-year sentence (one third the mid-term) on each of counts 1 and 3; a
consecutive sentence of eight months (one third the mid-term) on each of
counts 10, 19, and 24; and a consecutive sentence of two years for the
enhancement on each of counts 21 and 32 (Pen. Code, § 12022.1, subd. (b)). It
imposed concurrent upper term sentences of three years on each of counts 11,
13, 14, 15, 16, 17, 20, 21, 25, 27, 28, 30, 31, and 35. Pursuant to Penal Code
section 654, it stayed upper term sentences of three years each on counts 29,
32, and 34, and an upper term sentence of four years on count 4. The total
prison term was 15 years.
II.
DISCUSSION
A. Substantial Evidence Supports the Convictions for Unlawfully Taking a
Vehicle in Counts 3 and 5
We first consider Woods’s contention that insufficient evidence
supports the convictions for unlawfully taking a vehicle (Veh. Code, § 10851)
in counts 3 and 5.
4 Similarly, at trial, the jury was informed of a stipulation that Woods
was a felon and was convicted under Penal Code section 530.5, subdivision
(c)(1) in 2017.
7
As we have explained, count 3 was based on the taking of the Tacoma,
and count 5 was based on the taking of the Dodge Ram. Specifically, the
consolidated information alleged that Woods violated Vehicle Code section
10851, subdivision (a) in both of those counts. That provision states, “Any
person who drives or takes a vehicle not his or her own, without the consent
of the owner thereof, and with intent either to permanently or temporarily
deprive the owner thereof of his or her title to or possession of the vehicle,
whether with or without intent to steal the vehicle, or any person who is a
party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense . . . .” (Veh. Code, § 10851,
subd. (a).)
Although the statute criminalizes either the taking or the driving of a
vehicle with the intent to either permanently or temporarily deprive the
owner of possession, the jury was instructed only on the theory of unlawful
taking with the intent to permanently deprive.5 In relevant part, as to both
counts 3 and 5, the jury was instructed with CALCRIM No. 1820 as follows:
“To prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant took someone else’s vehicle without the owner’s
consent; [¶] 2. When the defendant took the vehicle, he intended to
permanently deprive the owner of possession or ownership of the vehicle
5 “[Vehicle Code] section 10851, subdivision (a), ‘ “proscribes a wide
range of conduct.” ’ [Citation.] A person can violate [Vehicle Code] section
10851 by ‘[u]nlawfully taking a vehicle with the intent to permanently
deprive the owner of possession.’ [Citation.] [Vehicle Code] [s]ection 10851
can also be violated ‘when the driving occurs or continues after the theft is
complete’ (referred to by the Supreme Court as ‘posttheft driving’) or by
‘ “driving [a vehicle] with the intent only to temporarily deprive its owner of
possession (i.e., joyriding).” ’ ” (People v. Gutierrez (2018) 20 Cal.App.5th 847,
853-854.)
8
. . . . ” The jury was also instructed that “[a] taking requires that the vehicle
be moved for any distance, no matter how small.”6
Woods contends that insufficient evidence supports the convictions in
count 3 and count 5 for unlawfully taking the Tacoma and the Dodge Ram.
Specifically, he argues that “the evidence does not support the taking
convictions as no one saw Woods take either truck, only that he was later
found in possession of them.” According to Woods, insufficient evidence
supports the convictions because, among other things, “[n]o witness testified
that he was seen at either of the places the trucks were stolen, and no video
surveillance or any other evidence puts him even in vicinities of the thefts.”
He points out that it was two weeks after the Tacoma was taken on March
10, 2019, that he was seen driving the Tacoma during a car burglary on
March 24, 2019. Further, it was several days after the Dodge Ram was taken
on April 28, 2019, that he was found with it during his May 8, 2019 arrest at
the storage facility. According to Woods, these time gaps “support[ ] the
notion that Woods received [the trucks] after another person stole the[m].”
Wood states that he “does not dispute he was caught in the possession of two
stolen trucks. But he believes the evidence does not support the convictions
for the taking of those trucks.”
“ ‘ “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
6 The instruction for count 3 also included the element that the vehicle
was worth more than $950.
9
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.” [Citation.]’ . . . ‘ “ ‘The standard of review is the same in cases
in which the prosecution relies mainly on circumstantial evidence.
[Citation.]’ ” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104, citation
omitted.)
The question before us is whether the evidence was sufficient to
support a finding that Woods was the person who took the Tacoma and the
Dodge Ram. As our Supreme Court has explained, “possession of recently
stolen property, if uncorroborated, is . . . insufficient to establish the accused’s
guilt of a theft-related offense.” (People v. Najera (2008) 43 Cal.4th 1132,
1138, italics added.) This principle “does not derive from an extrinsic legal
rule but, rather, is apparent from the general rule governing the jury’s
consideration of circumstantial evidence. As we long ago observed, there may
be an innocent explanation for the circumstance of possession.” (Ibid.) Thus,
“[w]hile the mere possession of stolen property is not alone sufficient to
sustain a conviction of grand theft . . . such possession plus ‘slight
corroborative evidence of other inculpatory circumstances’ will suffice.”
(People v. Wissenfeld (1951) 36 Cal.2d 758, 763 (Wissenfeld), citation omitted,
italics added.) “Possession of recently stolen property is so incriminating that
to warrant conviction there need only be, in addition to possession, slight
corroboration in the form of statements or conduct of the defendant tending
to show his guilt.” (People v. McFarland (1962) 58 Cal.2d 748, 754, italics
added.) For example, “the attributes of the possession—time, place, and
10
manner—may furnish the additional quantum of evidence needed” to support
a conviction for theft. (People v. Hallman (1973) 35 Cal.App.3d 638, 641.)
Here, as Woods points out, there is no evidence directly proving that he
committed the acts of taking the Tacoma from Raymond R. and the Dodge
Ram from Nathan L. However, as we will explain, there is at least “ ‘slight
corroborative evidence of other inculpatory circumstances’ ” (Wissenfeld,
supra, 36 Cal.2d at p. 763) to support a finding that Woods was the person
who stole both of those vehicles from their owners.
Significantly, the evidence showed that Woods was in possession of
both stolen vehicles within two weeks of when they were taken. The Dodge
Ram was recovered from Woods at the storage facility 10 days after it was
stolen, but he had possession of it even before that date. Specifically, an
employee at the storage facility testified that “[t]he majority of the time,”
Woods came to the facility in the Dodge Ram. As for the Tacoma, the
evidence supports a finding that Woods used that vehicle to carry away loot
from a car burglary on March 24, 2019, which was 14 days after the Tacoma
was stolen.
Woods contends that the time gaps between the vehicle thefts and his
possession of the vehicles are long enough that the timeline provides no
corroboration that he was the thief of either the Dodge Ram or the Tacoma.
We are not persuaded. A reasonable juror could reach the opposite
conclusion. A reasonable person could conclude that a gap of less than 10
days and of 14 days, respectively, are relatively short time gaps, and that
they thus provide the “slight” corroboration needed that Woods was the
person who took the trucks. (Wissenfeld, supra, 36 Cal.2d at p. 763.)
Other evidence provides additional “slight” corroboration that Woods
was the car thief of the Tacoma and the Dodge Ram. (Wissenfeld, supra, 36
11
Cal.2d at p. 763.) First, the jury heard evidence that Woods stole a third
vehicle under similar circumstances. Specifically, in August 2018, a vehicle
was stolen during a residential burglary where Woods’s DNA was found on
sunglasses left behind by the burglar. The vehicle in that burglary was
stolen by using car keys that had gone missing prior to the theft. The jury
could reasonably conclude that the same method (keys obtained prior to the
vehicle theft) was used to steal both the Tacoma and the Dodge Ram, as
Raymond R. testified that his keys went missing before the Tacoma was
stolen, and the keys to both the Tacoma and the Dodge Ram were in Woods’s
possession when those trucks were recovered.7
Next, property belonging to the owner of the Tacoma (Raymond R.) was
found in Woods’s possession when he was arrested at the storage facility.
That fact supports an inference that Woods was the person who initially took
the Tacoma and therefore had the opportunity to take whatever personal
property was inside of it.
In addition, the license plate on the Tacoma had been switched out
with a stolen license plate—a fact that supports an inference that Woods
knew he was driving a stolen vehicle and was trying to hide that fact.
Finally, the evidence at trial was overwhelming that Woods was
involved in a lengthy criminal enterprise that involved multiple car
burglaries, and that he had tools used for breaking into cars in his
possession.
7 Woods contends that the fact he had the keys to the Tacoma and the
Dodge Ram tends to disprove he was the car thief. We disagree. In the
circumstances of this case, Woods’s possession of the keys does not disprove
that he was the car thief, as Raymond R. stated that his car keys went
missing before the theft of the Tacoma, and the evidence supports a finding
that Woods stole a third vehicle using keys taken from the owner.
12
All of these facts, taken together, provide the necessary “ ‘slight
corroborative evidence of other inculpatory circumstances’ ” to support a
finding by a reasonable juror that Woods was the person who stole the
Tacoma and the Dodge Ram. (Wissenfeld, supra, 36 Cal.2d at p. 763.)8
B. The Convictions for Unlawfully Receiving a Stolen Vehicle in Counts 4
and 6 Must Be Reversed in Light of the Convictions for Unlawfully
Taking the Same Vehicles in Counts 3 and 5
We next consider Woods’s contention that he was improperly convicted
in counts 4 and 6 for receiving the same stolen vehicles that he was convicted
of unlawfully taking in counts 3 and 5.
As we have explained, in counts 4 and 6, Woods was convicted of
receiving the stolen Tacoma and the stolen Dodge Ram. (Pen. Code, § 496d.)
In counts 3 and 5, he was convicted of unlawfully taking those same vehicles.
(Veh. Code, § 10851, subd. (a).)
The law is clear that “ ‘[a] person who violates [Vehicle Code] section
10851[, subdivision](a) by taking a car with the intent to permanently
deprive the owner of possession, and who is convicted of that offense on that
basis, cannot also be convicted of receiving the same vehicle as stolen
property.’ ” (Bullard, supra, 9 Cal.5th at p. 103.) In the case of improper
dual convictions, the proper practice is to “revers[e] a receiving stolen
8 Woods cites a series of cases in which the evidence was determined to
be sufficient to support a finding that the defendant was the person who
unlawfully took a vehicle. (People v. O’Dell (2007) 153 Cal.App.4th 1569,
1577; People v. Green (1995) 34 Cal.App.4th 165, 180; People v. Windham
(1987) 194 Cal.App.3d 1580, 1590; In re Robert V. (1982) 132 Cal.App.3d 815,
821.) Based on those authorities, Woods argues that his case does not
present the type of facts that typically support a vehicle theft conviction.
Woods’s argument lacks merit because the sufficiency of the evidence to
support a conviction for theft must necessarily be based on the unique facts of
each case. As we have explained, the evidence presented at trial supports a
finding that Woods was the person who took the Tacoma and the Dodge Ram.
13
property conviction when the defendant is also convicted of stealing the
property.” (People v. Ceja (2010) 49 Cal.4th 1, 10.)
Based on this authority, Woods argues, and the People concede, that
Woods’s convictions in counts 4 and 6 for receiving the stolen Tacoma and the
stolen Dodge Ram must be reversed.
We concur with the parties’ position, and we accordingly reverse
Woods’s convictions for violation of Penal Code section 496d in counts 4 and
6.
C. Remand for Resentencing is Required Due to Recent Statutory
Amendments to the Laws Governing Sentencing
Effective January 1, 2022, two amended sentencing provisions that are
relevant in this case went into effect.
First, effective January 1, 2022, Penal Code section 1170 was amended.
(See Sen. Bill No. 567 (2021-2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3;
Assem. Bill No. 124 (2021-2022 Reg. Sess.); Stats. 2021, ch. 695, § 5.) As
relevant here, under the amended statute, a court must “order imposition of a
sentence not to exceed the middle term,” except under narrow circumstances.
(Pen. Code, § 1170, subd. (b)(1).) An upper term may be imposed “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.” (Id., subd. (b)(2).) Nevertheless, “the
court may consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without submitting the
prior convictions to a jury.” (Id., subd. (b)(3).)
Here, the trial court selected the upper term for many of the counts.
Specifically, it selected the upper term on the principal count of burglary
14
(count 26). It also imposed concurrent upper term sentences of three years
each on counts 11, 13, 14, 15, 16, 17, 20, 21, 25, 27, 28, 30, 31, and 35. The
counts that the trial court stayed pursuant to Penal Code section 654 were
also upper term sentences (counts 4, 29, 32 & 34).
Second, when Woods was sentenced, former Penal Code section 654
provided that an “act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision.” (Former
Pen. Code, § 654, subd. (a).) Assembly Bill No. 518 (2021-2022 Reg. Sess.),
effective January 1, 2022, amended Penal Code section 654 to provide that
where an act or omission is punishable by different provisions, the defendant
“may be punished under either of such provisions.” (Pen. Code, § 654, subd.
(a).) Thus, where Penal Code section 654 applies, a trial court now has
discretion to determine which counts will be stayed, regardless of which
count provides for the longest term of imprisonment.
Here, as required by the former version of Penal Code section 654,
subdivision (a), the trial court stayed three-year sentences on each of counts
29, 32, and 34.9 Count 29 (receiving stolen property) and count 32 (grand
theft firearm), which arose from the same residential burglary as count 26,
were apparently stayed in favor of the imposition of the longer six-year
sentence on the burglary count. Count 34 (possession for sale of
methamphetamine) was apparently stayed in favor of the potential higher
sentence for transportation for sale of methamphetamine.
9 The trial court also stayed the sentence on count 4 pursuant to Penal
Code section 654. However, as we have explained, the conviction on count 4
must be reversed.
15
The parties are in agreement that the amended sentencing provisions
in Penal Code sections 1170, subdivision (b), and 654, subdivision (a), apply
retroactively to Woods because his case is not yet final on appeal. We agree
with the parties that the amended provisions apply retroactively to Woods.
(People v. Mani (2022) 74 Cal.App.5th 343, 379 [the amendment to Pen. Code,
§ 654 is an ameliorative statute that applies retroactively to cases not yet
final on appeal]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [“The
People correctly concede the amended version of [Penal Code] section 1170,
subdivision (b) that became effective on January 1, 2022, applies retroactively
in this case as an ameliorative change in the law applicable to all nonfinal
convictions on appeal.”].)
However, the People contend that we need not remand for the trial
court to apply the amended sentencing provisions because the trial court’s
application of the former sentencing provisions was not prejudicial.
Specifically, the People contend that were we to remand to the trial court,
that court would undoubtedly impose the same upper term sentences under
the amended provisions.
1. Sentencing Under the Amended Version of Penal Code Section
1170, Subdivision (b)
We first examine whether the trial court’s imposition of upper term
sentences under the prior version of Penal Code section 1170, subdivision (b)
was prejudicial. The trial court explained its selection of the upper term
sentences as follows: “In many of these, the upper term is chosen[,] and the
upper term is chosen as the probation officer has indicated, because the
circumstances in aggravation, in my view and in the view of the probation
officer, clearly outweigh the circumstances in mitigation including the
following: [¶] As to count 1, the crime involved the threat of great bodily
harm. As to counts 1 through 10, the crimes indicated planning and some
16
sophistication. In counts 1 and 26, the crime involved an actual taking of
great monetary value. Count 21, there was a large amount of contraband.
As far as counts 33 and 35 are concerned, you were already being supervised
when the crime was committed. As to all [counts], your convictions as an
adult are numerous and you have an arrest record dating back to 1993. You
have been previously committed to prison and your performance on
probation, parole, and community supervision have not been satisfactory.”
In making this determination, the trial court plainly relied on
numerous factors that, absent a finding by the trier of fact, a stipulation, or a
certified record of conviction, are no longer permitted to be considered under
the current version of Penal Code section 1170, subdivision (b). First, the
trial court relied on the factual determinations that certain counts either
“involved the threat of great bodily harm,” “indicated planning and some
sophistication,” “involved an actual taking of great monetary value,” or
involved “a large amount of contraband.” None of those factual
determinations were made by the jury, and we cannot conclude that the jury
would unquestionably have found those facts to be true. (Cf. People v.
Sandoval (2007) 41 Cal.4th 825, 839 [in deciding whether Sixth Amendment
error properly may be found harmless, the court reviews whether “beyond a
reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt
standard, unquestionably would have found true” an aggravating
circumstance].) Second, the trial court relied on a finding that Woods’s
“convictions as an adult are numerous” and that he had “an arrest record
dating back to 1993.” Although the current version of Penal Code section
1170, subdivision (b) allows the trial 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” (Pen. Code, § 1170, subd.
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(b)(3), italics added), there is no indication that the trial court was presented
with certified records of conviction. Further, although Woods did admit to
some of his prior convictions because they were alleged in connection with
certain of the counts (i.e., four prior convictions under Veh. Code, § 10851 and
two prior convictions under Pen. Code, § 530.5), the probation officer’s report
set forth numerous additional prior convictions, which Woods did not admit.
Finally, the trial court also noted that Woods had “been previously committed
to prison,” Woods’s “performance on probation, parole, and community
supervision ha[d] not been satisfactory,” and that, as to counts 33 and 35,
Woods was “already being supervised when the crime was committed.” None
of those facts were found true by the jury, based on certified records of
conviction, or stipulated to by the parties.
The trial court stated that it decided to impose upper term sentences
because “the circumstances in aggravation, in my view and in the view of the
probation officer, clearly outweigh the circumstances in mitigation.” As it is
not clear which factors will be able to be established under the new version of
the statute, we are unable to conclude that the trial court would reach the
same conclusion regarding the imposition of upper term sentences on
remand. Accordingly, we reject the People’s contention that if we were to
remand to allow the trial court to apply the amended version of Penal Code
section 1170, subdivision (b), the trial court would once again impose upper
term sentences, and that, accordingly, remand is not warranted.
2. Sentencing Under the Amended Version of Penal Code Section 654
The People contend that we need not remand for resentencing under
the amended version of Penal Code section 654 because “[a]s the trial court
imposed consecutive, upper term sentences, it is clear it would not have
imposed a shorter term on the stayed counts.”
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We reject the argument. Where a change in the law confers previously
unavailable discretion on a trial court, a remand is appropriate 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.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) At the time the trial court sentenced
Woods, it had no discretion to choose which counts to stay under Penal Code
section 654, and it accordingly gave no indication of how it would exercise any
such discretion. Although the trial court’s choice of upper term sentences
provides some indication that the trial court might choose to exercise its
newly conferred discretion under Penal Code section 654 by electing to stay
the counts with the shorter terms of imprisonment, the record does not
clearly indicate that the trial court would take that approach on remand.
In sum, remand is required so that the trial court may apply the
amended versions of Penal Code sections 1170 and 654 in sentencing Woods.
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DISPOSITION
The convictions in counts 4 and 6 for receiving a stolen vehicle (Pen.
Code, § 496d) are reversed. Further, Woods’s sentence is vacated, and this
matter is remanded for the trial court to apply the amended sentencing
provisions currently set forth in Penal Code sections 1170 and 654. In all
other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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