People v. Duran CA4/1 ( 2023 )


Menu:
  • Filed 1/18/23 P. v. Duran CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                          D080916
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. FVI20001761)
    ERIC DURAN,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Bernardino
    County, John P. Vander Feer, Judge. Judgment of conviction affirmed;
    sentence vacated and remanded for resentencing.
    Michael Allen, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Charles C. Ragland, A. Natasha Cortina, and Alan L.
    Amann, Deputy Attorneys General, for Plaintiff and Respondent.
    INTRODUCTION
    A jury convicted Eric Duran of attempted murder (Pen. Code,1 §§
    664/187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd.
    (a)(1); count 2). The jury found true an allegation that Duran used a deadly
    weapon during the commission of count 1 (§ 12022, subd. (b)(1)). The jury
    found not true an allegation that count 1 was premeditated (§ 664, subd. (a))
    and an allegation that Duran personally inflicted great bodily injury during
    the commission of counts 1 and 2 (§ 12022.7, subd. (a)). In a bifurcated trial,
    the court found not true an allegation that Duran had a prior serious felony
    conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds.
    (b)-(i), 1170.12). The court sentenced Duran to a total term of 10 years,
    consisting of the upper term of 9 years for count 1, plus one year for the
    deadly weapon allegation.
    On appeal, Duran contends his conviction for attempted murder is not
    supported by substantial evidence. Duran further contends the trial court
    deprived him of his Sixth Amendment rights during a Marsden2 hearing by
    failing to inquire into aspects of defense counsel’s decisions. Finally, Duran
    contends remand for resentencing is warranted pursuant to Senate Bill No.
    567 (2021-2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 518
    (2021-2022 Reg. Sess.) (Assembly Bill 518). We agree Duran is entitled to
    resentencing and remand for that purpose, but otherwise affirm the
    judgment.
    1     All further unspecified statutory references are to the Penal Code.
    2     People v. Marsden (1970) 
    2 Cal.3d 118
    .
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    On February 20, 2020, Mario Villar, his brother, Eddie Ramirez, and
    his sister-in-law, Anastacia Baca, stopped for gas at a gas station in
    Victorville. Villar and Ramirez walked towards the entrance of the gas
    station and discussed Ramirez’s upcoming wedding. Villar told Ramirez
    “we’re going to get this,” in reference to Ramirez’s wedding-related activities.
    Duran walked by Villar and Ramirez during their conversation and
    asked “Get what? What are you going to get?” According to Ramirez, it
    seemed as though Duran believed they were talking about Duran’s girlfriend
    or wife. Neither Villar or Ramirez had previously met Duran or his wife.
    Villar responded to Duran, “I’m having a conversation with my brother” and
    “we’re not talking to you.” Duran stated, “You’re not going to get her. You’re
    not going to take the mother.”
    Duran then approached Villar with a four-to-six-inch knife, reached
    over Villar’s shoulder, and “sliced” Villar’s neck.3 Villar started “freaking
    out” and said, “you really stabbed me.” Duran remained in a fighting stance
    and continued to jab the knife towards Villar’s and Ramirez’s face and
    stomach areas. Villa ran towards Duran, who got into his car and drove
    away with a female passenger. As Duran’s drove away, Villar threw a
    squeegee at the car.
    After Duran left the scene, there was “blood all over, down [Villa’s]
    shirt, down to his neck area.” Villa was in “a lot of pain” and he estimated
    his pain was a seven or eight on a scale of ten. Paramedics arrived and
    treated a 45-millimeter laceration on the right side of Villar’s neck. Villar
    3     At trial, the prosecution admitted into evidence video surveillance of
    the incident as well as photographs of Villar’s injuries. We received these
    exhibits as part of the record on appeal and have reviewed them in deciding
    this appeal.
    3
    then went to the emergency room where he received a shot and a bandage
    that stayed on his neck for around two days. The laceration left a small scar
    on Villar’s neck.
    Duran was arrested the following day and gave a postarrest statement
    that was admitted into evidence and played for the jury. Duran asserted that
    Villar and Ramirez approached him at the gas station and said “we’re gonna
    take her home to your mother.” Duran believed the two men were talking
    about his girlfriend and that they were going to attack him. Duran
    acknowledged that he put his knife to Villar’s neck, stating, “When I pulled
    my knife out, I put it to his neck and I guess he moved or whatever.” Duran
    stated he did not intend to cut Duran and asserted that he wielded the knife
    in order to protect himself.
    The jury found Duran guilty of counts 1 and 2, and, thereafter, the
    court conducted a bifurcated court trial on the issue of whether Duran
    suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior
    strike conviction (§§ 667, subds. (b)-(i), 1170.12). The People submitted into
    evidence a certified record of conviction that demonstrated Duran was
    convicted of robbery in 1997 in Maricopa County, Arizona. The court
    concluded that the elements of Duran’s robbery conviction from Arizona were
    not equivalent to the elements of robbery in California, and, therefore, found
    the allegations related Duran’s prior conviction to be not true.
    At sentencing, the court imposed the upper term of nine years on count
    1, and a consecutive one-year term for the great bodily injury allegation. The
    court imposed a consecutive one-year term on count 2, but it stayed sentence
    under section 654. The court relied on four aggravating circumstances at
    sentencing, including allegations that (1) the crime involved great violence
    and a threat of great bodily harm, (2) Duran’s conduct posed a serious danger
    4
    to society, (3) Duran sustained prior convictions that appeared to be
    increasing in seriousness, and (4) Duran served a prior prison term. In
    imposing an aggravated term, the court commented, “the factors in
    aggravation so greatly outweigh the factors in mitigation, that the [c]ourt
    finds the appropriate term to be the aggravated term . . . .”
    Duran filed a timely notice of appeal.
    DISCUSSION
    I.      Sufficiency of Evidence of Attempted Murder
    Duran contends his conviction for attempted murder is not supported
    by substantial evidence because there was insufficient evidence of his intent
    to kill. In support of his contention, Duran argues that Villar’s and Ramirez’s
    behavior during the offense demonstrated they did not subjectively believe
    Duran acted with the intent to kill. He further argues the location of Villar’s
    injury—Villar’s neck—does not support a conclusion that Duran acted with
    the intent to kill. Finally, Duran argues the weapon and limited force used
    during the offense do not support a conclusion Duran acted with the intent to
    kill. We disagree with these contentions and conclude there is substantial
    evidence to support the judgment.
    In reviewing the sufficiency of the evidence to support a conviction, we
    must determine “ ‘whether from the evidence, including all reasonable
    inferences to be drawn therefrom, there is any substantial evidence of the
    existence of each element of the offense charged.’ [Citations.]” (People v.
    Crittenden (1994) 
    9 Cal.4th 83
    , 139, fn. 13.) This standard is deferential,
    and, as such, we must “review the whole record in the light most favorable to
    the judgment . . . .” (People v. Rodriguez (1999) 
    20 Cal.4th 1
    , 11.) We
    “ ‘presume in support of the judgment the existence of every fact the trier
    could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept
    5
    logical inferences that the jury might have drawn from the circumstantial
    evidence.’ [Citation.]” (People v. Flores (2020) 
    9 Cal.5th 371
    , 411.)
    “To prove the crime of attempted murder, the prosecution must
    establish ‘the specific intent to kill and the commission of a direct but
    ineffectual act toward accomplishing the intended killing.’ [Citation.]”
    (People v. Canizales (2019) 
    7 Cal.5th 591
    , 602.) Because “[d]irect evidence
    of intent to kill is rare . . . ordinarily the intent must be inferred from the
    statements and actions of the defendant and the circumstances surrounding
    the crime.” (Ibid.) Circumstances relevant to the determination of intent to
    kill include the conduct of the defendant prior to the attack, the nature of the
    weapon used, the manner of the attack, and the seriousness of the injury.
    (See People v. Lashley (1991) 
    1 Cal.App.4th 938
    , 945–946.) In evaluating this
    evidence, “our sole function is to determine if any rational trier of fact could
    have found the essential elements of the crime [of attempted murder] beyond
    a reasonable doubt.” (Id. at p. 946.)
    Although this was a close case, viewing the evidence in a light most
    favorable to the judgment, as we must, we conclude there was sufficient
    evidence to support Duran’s conviction for attempted murder. Duran’s
    conduct prior to and during the attack support an inference he harbored the
    intent to kill. The evidence showed that Duran engaged with Villa and
    Ramirez for the purpose of confrontation. In his postarrest statement, Duran
    admitted he spoke to Villa and Ramirez because he believed they were
    talking about his girlfriend. Ramirez and Villa also testified Duran
    mistakenly believed they were discussing Duran’s girlfriend or wife, which
    prompted the confrontation.
    The nature of the weapon and the manner with which it was used also
    support an inference that Duran acted with the intent to kill. The jury found
    6
    true an allegation that Duran’s weapon—a four-to-six-inch knife—was a
    dangerous or deadly weapon. This allegation necessarily included a finding
    that the knife was inherently deadly or dangerous, or used in such a way that
    it was capable of causing and likely to cause death or great bodily injury.
    (§ 12022, subd. (b)(1); CALCRIM No. 3145.) Duran admitted he intentionally
    put this dangerous weapon to Villa’s neck, a particularly vulnerable part of
    Villa’s body. After Duran sliced Villa’s neck, he continued his attack by
    swinging the knife towards Villar’s and Ramirez’s face and stomach areas.
    Thus, contrary to his argument, Duran’s use of this dangerous weapon in a
    manner that injured Villa’s neck is indicative of his deadly intent.
    That Villa’s injury was ultimately not life-threatening does not prove
    that Duran did not harbor the intent to kill. (See People v. Gonzalez (2005)
    
    126 Cal.App.4th 1539
    , 1552 [“[t]he fact that [appellant’s attack] missed [the
    victim’s] heart and lungs was fortuitous rather than indicative of the absence
    of an intent to kill.”].) Following the slice to Villa’s neck, Villa bled onto his
    neck, hands, and shirt, and went to the hospital to receive treatment. While
    Duran claimed he did not intend to cut Villa, his use of a dangerous weapon
    in a manner that caused such substantial bleeding supports an inference that
    Duran acted with the intent to kill. The trier of fact was free to reject
    Duran’s claim that he did not intend to cut Villa, and the totality of the
    evidence supports the conviction for attempted murder.
    II.    Denial of Marsden Motion
    A. Background
    On October 14, 2020, seven months prior to the start of his trial, Duran
    made a Marsden motion to substitute his court-appointed attorney. The
    court conducted a formal Marsden hearing and sought input from Duran and
    his attorney. Duran complained about a lack of communication, telling the
    7
    court he had not been able to get ahold of his attorneys in the nine months
    since his arrest. Duran further claimed that when he asked his attorney for a
    drug treatment program, his attorney would not talk to him about a program
    and told Duran, “we’re just going to go to trial.” Duran mentioned his strike
    prior conviction and asserted that his attorney had not mentioned “striking
    [the] strike” even though the prior offense was 26 years old.
    In response, defense counsel explained that although he had taken over
    Duran’s case from another attorney and therefore was newer to the case, he
    had met with Duran multiple times. Defense counsel also explained that
    Duran’s trial had been continued in order to accommodate requests by
    Duran. Defense counsel proffered that Duran’s request for drug court and
    the defense’s “counteroffer” had been presented to and rejected by the
    prosecution.
    After hearing from Duran and his attorney, the trial court found there
    was no irreconcilable difference between Duran and his counsel, or ineffective
    assistance of counsel, and denied Duran’s motion. The court confirmed that
    Duran had previously requested drug court directly from the court and
    informed Duran he was ineligible for the program due to the nature of his
    charges. The court further explained to Duran that delays in his trial were
    due, in part, to issues related to the Covid-19 pandemic.
    B. Discussion
    On appeal, Duran does not contend that he made a sufficient showing
    in the trial court that he was entitled to substitute counsel. Rather, he
    contends the trial court failed to inquire into the adequacy of defense
    counsel’s representation. Specifically, Duran contends the trial court erred
    by not making an inquiry into defense counsel’s reasons for failing to: (1)
    8
    move for pretrial diversion under section 1001.36; and (2) challenge Duran’s
    strike prior.
    Duran argues the court’s failure to inquire into these matters
    constitutes an abuse of discretion because “[t]he court could not exercise
    informed discretion without making these basic inquiries.” Duran contends
    “it is impossible to determine that Duran was not prejudiced” by the court’s
    purported errors because, had counsel investigated and “eliminat[ed]”
    Duran’s strike prior, the prosecution would have likely offered Duran a more
    “attractive plea offer.” These contentions are not supported by the record and
    we find no error in the scope and sufficiency of the Marsden hearing.
    A defendant may request a change in appointed counsel under Marsden
    on the grounds the attorney is not providing adequate representation or the
    “ ‘defendant and counsel have become embroiled in such an irreconcilable
    conflict that ineffective representation is likely to result.’ [Citation.]” (People
    v. Memro (1995) 
    11 Cal.4th 786
    , 857.) “ ‘[A]t any time during criminal
    proceedings, if a defendant requests substitute counsel, the trial court is
    obligated, pursuant to [the] holding in Marsden, to give the defendant an
    opportunity to state any grounds for dissatisfaction with the current
    appointed attorney. [Citations.]’ ” (In re M.P. (2013) 
    217 Cal.App.4th 441
    ,
    456.) “[S]ubstitute counsel should be appointed when, and only when . . . the
    court finds that the defendant has shown that a failure to replace the
    appointed attorney would substantially impair the right to assistance of
    counsel . . . .” (People v. Smith (1993) 
    6 Cal.4th 684
    , 696.) We review a trial
    court's decision not to discharge appointed counsel for abuse of discretion.
    (People v. Cole (2004) 
    33 Cal.4th 1158
    , 1190.)
    Duran cites to People v. Groce (1971) 
    18 Cal.App.3d 292
     (Groce), in
    support of his contention that the trial court had an obligation to conduct a
    9
    further inquiry into Duran’s complaints against his attorney. In Groce, the
    victim testified she received stitches at a hospital after she was assaulted by
    the defendant. (Groce, at p. 296.) During the trial, the defendant asserted
    that the victim was never assaulted and complained to the court that his
    defense counsel didn’t “want to bring up the doctor's report” that would have
    called into question the victim’s testimony. (Id. at p. 295.) The trial court
    denied the defendant’s motion for substitute counsel without making any
    inquiry of defense counsel, relying solely on its observations of defense
    counsel's performance during the trial. (Id. at pp. 295–296.)
    The Groce court reversed on the ground that the defendant had made
    allegations of “specific important instances of alleged inadequacy of his
    representation, i.e., the existence or nonexistence of stab wounds and other
    pertinent evidence that could have been established by hospital records,” and
    that the trial court erred by failing to inquire “into counsel's reason for not
    producing the physician or his hospital records.” (Groce, supra, 18
    Cal.App.3d at pp. 296–297.) The court further explained that the purpose of
    trial court’s inquiry should not be to ascertain defense counsel’s reasons for
    not following the defendant’s requests, but, rather, to determine whether the
    attorney made a “knowledgeable election on the subject.” (Id. at p. 296.)
    As a preliminary matter, we note it is unclear whether our Supreme
    Court agrees that the duty to inquire described in Groce exists. (See People v.
    Barnett (1998) 
    17 Cal.4th 1044
    , 1095 [observing that the duty to inquire
    articulated in Groce has been called into question by at least one court].) But,
    assuming such a duty does exist, it was not violated in this case. In Groce,
    the trial court made “absolutely no effort to inquire into defense counsel's
    alleged inadequacy” after the defendant made specific allegations relating to
    hospital records. (Id. at p. 1095.) By contrast, here, the trial court conducted
    10
    a thorough inquiry during a formal Marsden hearing and appropriately
    sought input from both Duran and his attorney.
    Duran contends that his comments during the Marsden hearing
    regarding drug treatment, which were general in nature, required the trial
    court to specifically inquire from defense counsel whether they had sought
    pretrial mental health diversion under section 1001.36.4 Duran argues the
    trial court could not determine whether defense counsel was constitutionally
    effective without this inquiry. We disagree.
    In response to Duran’s comments expressing a desire for drug
    treatment, defense counsel proffered they had sought alternative resolutions
    in the case, including drug court, but these requests had been denied by the
    prosecution. Duran’s comments about his drug use and desire for treatment,
    and defense counsel’s response, did not suggest that Duran met the six
    requirements for section 1001.36 diversion. Nor did his comments impose
    upon the trial court a duty to inquire whether defense counsel considered
    pursuing this program. The trial court was under no obligation to inquire
    from defense counsel what speculatively available programs were being
    sought simply because Duran stated he desired drug treatment.
    4     To be eligible for mental health diversion under section 1001.36, “[t]he
    defendant must make a prima facie showing on the following six eligibility
    requirements for diversion: (1) defendant suffers from a mental disorder
    identified in the most recent edition of the Diagnostic and Statistical Manual
    of Mental Disorders (DSM); (2) defendant's mental disorder was a significant
    factor in committing the charged offense; (3) an opinion from a qualified
    mental health expert that defendant's symptoms would respond to mental
    health treatment; (4) defendant consents to diversion and waives the right to
    a speedy trial; (5) defendant agrees to comply with treatment as a condition
    of diversion; and (6) defendant will not pose an unreasonable risk of danger
    to public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)–(F).)”
    (People v. Qualkinbush (2022) 
    79 Cal.App.5th 879
    , 886, fn. 3.)
    11
    Nor is there evidence in the record to support Duran’s contention that
    defense counsel failed to “challenge” his strike prior in such a way that
    required inquiry by the court. Duran argues that, had defense counsel
    investigated and discovered favorable case law pertaining to his out-of-state
    prior strike conviction, “the serious felony prior and prior strike would have
    been dismissed.” However, Duran does not explain what pretrial mechanism
    defense counsel could have pursued to seek a dismissal of the prior strike
    conviction before the Marsden hearing. The trial court accurately explained
    that there were limited motions available to be filed at that stage of the
    criminal proceeding, which was, at that point, seven months prior to the start
    of trial. Notably, defense counsel did successfully challenge the strike prior,
    as evidenced by the contested trial in which the court found the allegation to
    be not true.
    Duran’s comments regarding his strike prior were related to a
    purported lack of communication with his attorney, and the trial court
    adequately addressed this issue during the Marsden hearing. Duran submits
    pure speculation as to the offer the prosecution would have made had defense
    counsel presented favorable case law related to his strike prior conviction to
    the prosecution. There is no evidence in the record regarding what offers had
    been made by the prosecution and whether the prior conviction factored in
    such an offer.
    In sum, the trial court did not err by failing to make specific inquiries
    of defense counsel’s tactical decisions relating to the pursuit of a particular
    diversion program, or the legal sufficiency of the strike prior. The trial court
    acquired adequate information from Duran and his counsel to exercise
    informed discretion, and the court did not abuse its discretion in denying
    12
    Duran’s motion. Having found no error, we need not reach the question of
    prejudice.
    III.   Remand For Resentencing is Appropriate
    A. Senate Bill 567
    At the time of Duran’s sentencing, section 1170, former subdivision (b),
    left it to the sentencing court’s “sound discretion” to select the appropriate
    term within a sentencing triad that “best serves the interests of justice.”
    (§ 1170, former subd. (b).) During the pendency of this appeal, the
    Legislature enacted Senate Bill 567 (Stats. 2021, ch. 731, § 1.3), which
    mandates that a sentencing court “may impose a sentence exceeding the
    middle term only when there are circumstances in aggravation of the crime
    that justify the imposition of a term of imprisonment exceeding the middle
    term . . . .” and such circumstances have either been stipulated to by the
    defendant or found true beyond a reasonable doubt by a jury or the judge in a
    court trial. (§ 1170, subds. (b)(1)-(2).)
    The parties correctly agree that amendments to section 1170 made by
    Senate Bill 567 apply retroactively to Duran’s case because the case was not
    final on appeal before the enactments became effective on January 1, 2022.
    (In re Estrada (1965) 
    63 Cal.2d 740
    , 742 [when the Legislature lessens the
    penalty for a crime, an inference arises that it intended the lighter penalty to
    apply provided the judgment is not final]; People v. Flores (2022) 
    73 Cal.App.5th 1032
    , 1039 [Senate Bill 567 applies retroactively to nonfinal
    13
    cases on direct appeal].) The parties disagree, however, as to whether
    remand is required in Duran’s case.5
    The Attorney General contends remand is not required because the
    evidence established, beyond a reasonable doubt, that Duran sustained a
    prior criminal conviction.6 Because the trial court may consider prior
    convictions under section 1170, subdivision (b)(3), without submitting the
    matter to a jury, they contend the court did not err when it relied on this
    factor. The Attorney General further argues there is no reasonable
    probability that Duran’s jury would have failed to find the remaining
    aggravating factors true, and, thus, Duran cannot demonstrate prejudice
    relating to his aggravated sentence. Finally, the Attorney General argues
    that, assuming a sentencing error did occur, any such error was harmless
    because the trial court expressed its intent to impose the maximum sentence
    and would not have sentenced Duran to anything less than the term it
    imposed.
    Duran acknowledges his prior conviction for robbery was proved by a
    certified record of conviction in accordance with section 1170, subdivision
    5      We requested that the parties submit supplemental briefing addressing
    the effect, if any, of People v. Lopez (2022) 
    78 Cal.App.5th 459
     (Lopez), People
    v. Dunn (2022) 
    81 Cal.App.5th 394
    , review granted Oct. 12, 2022, S275655,
    and People v. Zabelle (2022) 
    80 Cal.App.5th 1098
    , to the resentencing issue
    presented in this matter. We received letter briefs from the parties and have
    reviewed their arguments in deciding this appeal.
    6     In the respondent’s brief, the Attorney General relies on People v.
    Flores (2022) 
    75 Cal.App.5th 495
     (Flores), in support of their argument.
    However, this court disagreed with Flores in Lopez (2022) 78 Cal.App.5th at
    p. 466, fn. 11, and articulated a two-part standard in determining
    harmlessness. Accordingly, we decline to apply the standard of harmlessness
    articulated in Flores and analyze the resentencing issue under the standards
    of harmlessness discussed further in this opinion.
    14
    (b)(3). Thus, he does not dispute that the court permissibly relied on this
    factor in imposing his sentence. However, he contends that the remaining
    factors relied upon by the court were not proven to the requisite degree of
    certainty articulated in People v. Watson (1956) 
    46 Cal.2d 818
    . He further
    argues the record does not establish that the court would have imposed the
    same aggravated sentence had it relied solely on Duran’s prior conviction.
    We agree and conclude remand is required for resentencing in conformity
    with recent amendments made to section 1170.
    In Lopez, supra, 78 Cal.App.5th at p. 466, fn. 10, this court concluded
    “the presence of a single valid aggravating factor is insufficient to permit a
    reviewing court to affirm a sentence imposed in violation of the revised
    version of section 1170, subdivision (b).” Rather, sentencing errors under
    newly amended section 1170 are subject to a harmless error analysis. (Lopez,
    at p. 465.) “[W]here a sentencing factor must be found true by a jury beyond
    a reasonable doubt and the court fails to submit that factor to the jury, the
    error in the court's reliance on that fact may be subject to harmless error
    review as to whether the lack of a finding by the jury was prejudicial . . . .”
    (Ibid.)
    Lopez established a two-part standard in determining harmlessness:
    First, “[i]n order to conclude that the trial court's reliance on improper factors
    that were not found true by a jury[,] ... admitted by [the defendant, or based
    on certified records of conviction] was not prejudicial, [the reviewing court]
    would have to conclude beyond a reasonable doubt that a jury would have
    found true beyond a reasonable doubt every factor on which the court relied,
    because the amended statute requires that every factor on which a court
    intends to rely in imposing an upper term, with the exception of factors
    related to a defendant's prior conviction(s), have been admitted by the
    15
    defendant or proven to a jury . . . .” (Lopez, supra, at pp. 465–466.) If every
    factor on which the trial court relied was proven beyond a reasonable doubt,
    the defendant has not suffered prejudice. (Ibid.)
    If every factor on which the trial court relied was not proven beyond a
    reasonable doubt, the reviewing court “then consider[s] the second question,
    which is whether [it] can be certain, to the degree required by People v.
    Watson (1956) 
    46 Cal.2d 818
    , 836 [(Watson)], 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.” (Lopez, supra, at
    p. 467, fn. 11.)
    Our sister courts in People v. Dunn (2022) 
    81 Cal.App.5th 394
    , review
    granted Oct. 12, 2022, S275655 (Dunn), and People v. Zabelle (2022) 
    80 Cal.App.5th 1098
     (Zabelle), articulated similar, but slightly different,
    standards in determining harmlessness. In Dunn, the court established the
    following two-part test: “The reviewing court determines (1)(a) beyond a
    reasonable doubt whether the jury would have found one aggravating
    circumstance true beyond a reasonable doubt and (1)(b) whether there is a
    reasonable probability that the jury would have found any remaining
    aggravating circumstance(s) true beyond a reasonable doubt. If all
    aggravating circumstances relied upon by the trial court would have been
    proved to the respective standards, any error was harmless. If not, the
    reviewing court moves to the second step of Lopez, (2) whether there is a
    reasonable probability that the trial court would have imposed a sentence
    16
    other than the upper term in light of the aggravating circumstances provable
    from the record as determined in the prior steps. If the answer is no, the
    error was harmless. If the answer is yes, the reviewing court vacates the
    sentence and remands for resentencing consistent with section 1170,
    subdivision (b).”7 (Dunn, at pp. 409–410.)
    In Zabelle, the court established a similar two-part standard of
    harmlessness. (Zabelle, supra, 80 Cal.App.5th at pp. 1110–1113.) Under the
    first part of the test, the reviewing court must: (1) identify one aggravating
    factor relied upon by the trial court that would have been found true by the
    jury beyond a reasonable doubt; and (2) for the remaining factors, determine
    whether it is reasonably probable that a jury would have found the remaining
    aggravating factors true. (Ibid.) The reviewing court “must then, with the
    aggravating facts that survive this review, consider whether it is reasonably
    probable that the trial court would have chosen a lesser sentence had it
    considered only these aggravating facts.” (Id. at p. 1112.)
    Here, the Attorney General acknowledges the trial court did not rely
    solely on Duran’s prior criminal conviction in imposing an aggravated term.
    Specifically, they note that the trial court considered the following
    aggravating factors: (1) Duran’s crime involved great violence and threat of
    great bodily harm; (2) Duran’s conduct indicated he was a serious danger to
    society; (3) Duran’s prior conviction as an adult, and the fact his crimes were
    7      The Dunn court further clarified that step (1)(a) is satisfied if the trial
    court, “relied upon an aggravating circumstance that relied only upon the fact
    of defendant's prior convictions and a certified record of defendant's
    convictions was admitted, or defendant admitted the facts underlying an
    aggravating circumstance.” (Dunn, at p. 410, fn. 13.) In this case, the
    prosecution introduced a certified record of Duran’s prior conviction during
    the court trial on Duran’s prior strike and prior serious felony conviction,
    which would satisfy step (1)(a) in the test articulated in Dunn.
    17
    increasing in seriousness; and (4) Duran had served a prior prison term.
    None of these factors were submitted to the jury or admitted by Duran, and,
    aside from the existence of the prior criminal conviction, these factors were
    not proven beyond a reasonable doubt.
    Nor does the record reflect there is a reasonable probability that a jury
    would have found the remaining aggravating factors, aside from the prior
    criminal conviction, to be true. The jury found not true the allegations that
    count 1 was premeditated and that Duran personally inflicted great bodily
    injury during the commission of his offenses. While substantial evidence may
    support Duran’s intent to kill, the record also demonstrates that the
    altercation between Duran and Villa involved a single cut to Villa’s neck and
    lasted only seconds. These facts, along with the jury’s not true findings on the
    allegations, limit the probability the jury would have found true the
    aggravating factors relied upon by the trial court, including that Duran used
    great violence and a threat of great bodily injury, or posed a serious danger to
    society. Accordingly, since at least some of the factors relied upon by the trial
    court were not proven as required by section 1170, subdivision (b), under the
    standards articulated in Lopez, Dunn, or Zabelle, Duran’s sentence must be
    vacated unless the record reflects the trial would have imposed the same
    sentence had it relied solely on permissible aggravating factors.
    We cannot conclude to the degree of certainty required under Watson
    that the trial court would have selected the upper term had it relied on the
    permissible aggravating factors available to the court. The trial court
    acknowledged the presence of mitigating factors, including Duran’s
    demonstration of remorse and a recognition of the wrongfulness of his
    actions. While the trial court found the circumstances in aggravation greatly
    outweighed the circumstances in mitigation, the trial court could not
    18
    permissibly rely on most of the aggravating factors it considered—namely the
    degree of violence and threat of great bodily harm inflicted upon the victim,
    as well as Duran’s dangerousness to society. Consequently, we cannot
    conclude the error in this case was harmless and we remand for resentencing.
    B. Assembly Bill 518
    At the time of Duran’s sentencing, former section 654, subdivision (a)
    required that a defendant who committed an act punishable by two or more
    provisions of law be punished under the provision that provided for the
    longest possible term. (§ 654, former subd. (a).) Effective January 1, 2022,
    Assembly Bill 518 (Stats. 2021, ch. 441, § 1) amended section 654 to permit
    an act or omission punishable under two or more provisions of law to “be
    punished under either of such provisions.” (§ 654, subd. (a).) Accordingly,
    under amended section 654, a trial court has the discretion to punish a
    defendant under any of the offenses for which they were convicted.
    Assembly Bill 518 applies retroactively to Duran’s case because the
    case was not final on appeal before the enactment became effective on
    January 1, 2022. (People v. Sek (2022) 
    74 Cal.App.5th 657
    , 673 [Assembly
    Bill 518 applies retroactively to nonfinal cases on direct appeal].) We
    disagree with the Attorney General’s contention that the record clearly
    establishes remand would be futile because the trial court would have
    imposed the maximum sentence had it been aware of the full scope of its
    sentencing discretion. And, having already concluded we must vacate
    Duran’s sentence and remand for resentencing pursuant to Senate Bill 567,
    the trial court may revisit all of its prior sentencing decisions, including
    amendments to section 654 made by Assembly Bill 518. Accordingly, remand
    is also appropriate so the trial court may consider the ameliorative
    sentencing changes made pursuant to Assembly Bill 518.
    19
    DISPOSITION
    The sentence is vacated and the matter is remanded to the trial court
    for resentencing. In all other respects, the judgment is affirmed.
    O'ROURKE, Acting P. J.
    WE CONCUR:
    DATO, J.
    DO, J.
    20