81 Cal.App.5th 680
Cal. Ct. App.2022Background
- In Nov. 2019 Flowers and a codefendant robbed a check-cashing store; the manager was bound with duct tape and ~$2,122 taken. Photo IDs and cellphone records linked Flowers to the scene and to communications with the codefendant.
- Flowers was convicted by jury of robbery; court found true two serious-felony priors and two strike convictions based on certified records. The court struck one strike prior at sentencing.
- Probation report listed five aggravating factors (planning/professionalism, violent conduct, numerous/prior convictions, prior prison terms, unsatisfactory probation/parole); no mitigating factors were found.
- Court imposed the upper term (5 years) for robbery, doubled for a strike, plus two consecutive 5-year serious-felony enhancements, for a total of 20 years; fines/assessments included $30 (court operations), $40 (court facilities), and a $5,000 restitution fine.
- On appeal Flowers challenged (1) imposition of the upper term under former §1170, (2) need for resentencing under SB 567 (amending §1170), (3) resentencing/dismissal of enhancements under SB 81 (§1385), and (4) imposition of fines/fees without an ability-to-pay finding.
- The Court of Appeal affirmed: issues forfeited where not objected to, aggravating factors supported by certified records, SB 567 remand unnecessary, SB 81 inapplicable to this sentencing, and Dueñas challenge forfeited (ineffective-assistance avenue left to habeas).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Flowers) | Held |
|---|---|---|---|
| Imposition of upper term under former §1170 | Forfeited by Flowers' failure to object; alternatively, trial court properly exercised discretion based on probation report and criminal history | Upper term was improperly imposed and/or based on impermissible factors | Forfeited; even on merits, upper term justified by multiple aggravating factors and not an abuse of discretion |
| Dual use of strike priors as aggravation | No dual-use error—other felony convictions and records provided independent support | Court impermissibly relied on strike priors as aggravating factors | No dual-use violation; other priors and records independently supported aggravation |
| SB 567 (middle-term presumption) — remand request | Even if SB 567 applies retroactively, remand unnecessary because aggravating circumstances are supported by certified conviction records; clear indication sentence would not change | SB 567 requires jury finding or stipulation for aggravating facts beyond prior-conviction exception; remand/vacatur required | Remand unnecessary; several aggravating factors proven by certified records fall within the §1170(b)(3) exception; any error harmless |
| SB 81 (§1385) — dismissal of enhancements | SB 81 does not apply because sentencing occurred before its effective date; no mitigating evidence to warrant dismissal | SB 81 requires courts to consider and give great weight to mitigating evidence to dismiss enhancements | SB 81 inapplicable to this sentencing date; no mitigating circumstances justified dismissal |
| Fines/fees without ability-to-pay finding (Dueñas) | Flowers forfeited claim by not objecting at sentencing; trial counsel's failure to object cannot be resolved on direct appeal from the silent record | Dueñas requires ability-to-pay finding for fines/fees; resentencing or remand required | Forfeited; ineffective-assistance claim unsuitable on direct appeal and better raised in habeas corpus |
Key Cases Cited
- People v. Scott, 9 Cal.4th 331 (1994) (defendant cannot challenge sentencing choice for first time on appeal)
- People v. Osband, 13 Cal.4th 622 (1996) (single aggravating factor can support imposition of upper term)
- People v. Towne, 44 Cal.4th 63 (2008) (prior convictions and related facts may be established by certified records)
- People v. Black, 41 Cal.4th 799 (2007) (number/dates/offenses of priors can establish aggravating criminal-history factors without jury finding)
- In re Estrada, 63 Cal.2d 740 (1965) (retroactivity presumption for ameliorative statutes)
- People v. Frahs, 9 Cal.5th 618 (2020) (retroactivity of sentencing amendments to nonfinal cases)
- People v. Gutierrez, 58 Cal.4th 1354 (2014) (clear-indication rule for harmlessness on resentencing remand)
- People v. Flores, 75 Cal.App.5th 495 (2022) (application of harmless-beyond-reasonable-doubt standard in resentencing context)
- People v. Dueñas, 30 Cal.App.5th 1157 (2019) (ability-to-pay requirement for certain fines/fees)
- People v. Mendoza Tello, 15 Cal.4th 264 (1997) (ineffective-assistance claims not resolvable on direct appeal when record is silent)
- Cunningham v. California, 549 U.S. 270 (2007) (limitations on judge-found facts increasing sentencing exposure)