People v. DunnPeople v. Dunn
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
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PROCEDURAL SUMMARY
On October 18, 2019, the Madera County District Attorney filed an amended information in case No. MCR063302 charging defendant with assault with a means of force likely to cause great bodily injury (“force-likely assault“) (
That same day, defendant pled guilty to both counts.
On November 18, 2019, the trial court placed defendant on three years of probation in case No. MCR063302.2
On February 11, 2020, a petition was filed to revoke defendant‘s probation in case No. MCR063302. It alleged that defendant had failed to report monthly as directed by her probation officer. Defendant admitted the allegation. Her probation was revoked and reinstated for a period of three years.
On March 17, 2020, a second petition to revoke defendant‘s probation in case No. MCR063302 was filed. The petition alleged that defendant had committed petty theft (
On June 11, 2021, the trial court held a contested hearing regarding the third probation revocation petition in case No. MCR063302. The trial court found that defendant had violated her probation by failing to obey all laws and by not reporting to her probation officer as alleged in the petition. The trial court found there was insufficient evidence supporting the allegation that defendant‘s urine test was positive, but found that she had nonetheless violated the probation term prohibiting controlled substance use or possession because she had been found in possession of methamphetamine and amphetamine paraphernalia. At sentencing, the trial court revoked defendant‘s probation and declined to reinstate it. The trial court imposed four years (the upper term) on count 1 (force-likely assault); and 125 days in county jail, with 125 days’ credit for time served, deemed time served, on count 2 (misdemeanor violation of a protective order).3
On September 29, 2021, defendant filed a notice of appeal in case No. MCR06332.
Count 1—Felony Force-Likely Assault
Defendant was married to B.O and they had children together. B.O.‘s previous wife was J.S. On May 2, 2019, defendant arrived at J.S.‘s residence for reasons unknown to J.S. and J.S. told defendant to leave. After J.S. told defendant to leave a second time, defendant lunged at J.S. and they began struggling and hitting each other. J.S. pushed defendant away and saw a knife in defendant‘s hand. J.S immediately grabbed the knife from defendant and cut her right thumb in doing so.
Count 2—Misdemeanor Violating a Court Order
Defendant had previously been served with a criminal protective order. On June 7, 2019, while it was in effect, B.O. went to defendant‘s father‘s home to pick up their children. Defendant was outside the residence waiting for B.O. When he put their children in his car, defendant demanded the children. B.O. refused and drove away. Defendant closely followed B.O. in her vehicle and told B.O. when they arrived at the children‘s daycare that she would follow them into the daycare. B.O. called the police to report defendant‘s violation of the protective order.
DISCUSSION
Defendant contends the trial court‘s aggravating circumstances findings fail to meet the requirements of amended
The People alternatively contend that any error was harmless under People v. Sandoval (2007) 41 Cal.4th 825, 838–839 (Sandoval) because “the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true [the relied upon] aggravating circumstance had it been submitted to the jury ....” (Sandoval, at p. 839). They further argue that any error was harmless because Senate Bill 567 does not require a minimum number of aggravating circumstances, so as long as a jury could have found a single aggravating circumstance true beyond a reasonable doubt, according to People v. Flores (2022) 75 Cal.App.5th 495, 521 (Flores). However, as we explain below, we disagree with Flores that Sandoval controls in this context. Instead, to find that the error was harmless we would have to conclude: (1)(a) beyond a reasonable doubt that the jury would have found beyond a reasonable doubt that the facts underlying at least one aggravating circumstance was true and (1)(b) that there is no reasonable probability the jury would not have found the remaining aggravating circumstance(s) true beyond a reasonable doubt, or if all circumstances are not found true according to their respective standards, (2) that there is no reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating
A. Background
When selecting the upper term on count 1, the trial court relied on the probation officer‘s recommendation and found three aggravating factors: (1) defendant had numerous prior convictions, (2) defendant was on probation at the time the charged offenses were committed, and (3) her prior performance on probation was unsatisfactory. The trial court stated at sentencing, “with regards to circumstances in aggravation ... the defendant‘s prior convictions are numerous, was on probation when the crime was committed, and her prior performance on probation was unsatisfactory.” The probation officer‘s report indicated that defendant was on probation at the time she committed her offenses and also identified defendant‘s criminal history, which included six prior misdemeanor convictions and 11 prior probation violations.
B. Law
On October 8, 2021, Senate Bill 567 was signed into law. It amends the determinate sentencing law,
C. Analysis
Senate Bill 567 went into effect on January 1, 2022. Absent evidence to the contrary, the Legislature intends amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgments are not yet final on the amendment‘s operative date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308 [discussing In re Estrada (1965) 63 Cal.2d 740]; People v. Brown (2012) 54 Cal.4th 314, 323.) The “consideration of paramount importance” is whether the amendment lessens punishment. (Estrada, at p. 744.) If so, the “inevitable inference [is] that the Legislature must have intended that the new statute” apply retroactively. (Estrada, at p. 745.) As Senate Bill 567‘s amendments to
As defendant contends, her case was not final on January 1, 2022, and she was sentenced to the upper term on count 1 under former section 1170. We agree. Defendant is entitled to the benefit of Senate Bill 567. Here, defendant‘s sentence to the upper term on count 1 is not consistent with the requirements of Senate Bill 567‘s amendment to
Certified Records of Defendant‘s Prior Convictions
The People contend that remand is not required because defendant‘s sentence to the upper term on count 1 in case No. MCR063302 meets the requirements of amended
First, the People are mistaken in their assertion that defendant‘s probation report is a certified record of conviction. It is not. Here, however, during the contested hearing on defendant‘s third probation violation in this case, the trial court admitted into evidence a certified copy of defendant‘s criminal history report.6 As the trial 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,” the first aggravating circumstance that the trial court relied upon, that defendant had numerous convictions, meets the requirements of
Stipulations by Defendant
The People also argue that under
Here, defendant stipulated to the violations as pled in the February 11, 2020, and March 17, 2020, probation revocation petitions in this case. On February 14, 2020, defendant admitted violating the terms of her probation. On March 19, 2020, defendant pled guilty to shoplifting (
Here, the facts underlying the second aggravating circumstance cited by the trial court, that defendant was on probation at the time that the charged offenses were committed, were not admitted by defendant or presented to or found true by the jury as required by
Harmless Error
The People contend that any error by the trial court was harmless, relying on Sandoval9 for the proposition that Cunningham harmless error applies to amended section 1170. They argue that an appellate court properly finds Cunningham harmless error in this situation if it “concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true [the relied upon] aggravating circumstance had it been submitted to the jury ....” (Sandoval, supra, 41 Cal.4th at p. 839; accord People v. Wilson (2008) 44 Cal.4th 758, 812–813 [where the trial judge mentioned the victim‘s vulnerability in sentencing a defendant to an upper term, any Cunningham error was harmless because the jury would have found
Flores articulated the harmless error standard in the Senate Bill 567 error context as follows: ” ‘[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,’ the error is harmless.” (Flores, supra, 75 Cal.App.5th at p. 500, italics added.) We respectfully disagree with the People and Flores that Sandoval applies in this context. A reviewing court concluding beyond a reasonable doubt that the jury would have found the facts underlying a single circumstance in aggravation true beyond a reasonable doubt is insufficient to conclude that any error under
To explain our disagreement with Flores, we consider the origin of the harmless error standard it applied. In Cunningham, the Supreme Court held that California‘s determinate sentencing law (as it existed from 1977 to 2007) violated the Sixth Amendment right to a jury trial because it permitted a trial judge to determine facts (other than a prior conviction) that would allow imposition of a sentence in excess of the statutory maximum.10 (Cunningham, supra, 549 U.S. at pp. 275–276.) As Cunningham explained, the Supreme Court had long held that any fact that permitted imposition of a
In Sandoval, our Supreme Court considered whether an upper-term sentence imposed pursuant to the pre-Cunningham determinate sentencing law—i.e., imposed based on judicial findings of fact on circumstances in aggravation—was harmless error under the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 837.) It explained that the trial court had relied upon multiple aggravating circumstances, none of which had been proved to a jury, admitted by the defendant, or based on the fact of a prior conviction. (Id. at pp. 837–838.) The upper-term sentence therefore violated the defendant‘s Sixth Amendment rights under Cunningham. The Sandoval court then considered whether the violation was harmless. To that end, it articulated the following standard: “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, at p. 839.) In the Sixth Amendment context, the issue was whether the “defendant [was] eligible for the upper term“; the trial court‘s consideration of additional factors not proved to a jury was not a federal constitutional question. (Sandoval, at p. 839.)
The court in Lopez agreed with Flores that
Lopez reasoned it is not enough that the reviewing court conclude that a trial court was permitted to impose the upper term because the jury would have found true a single aggravating circumstance beyond a reasonable doubt; whether the trial court could have imposed the upper term did not completely resolve the issue. (Lopez, supra, 78 Cal.App.5th at p. 467.) Instead, when a reviewing court concludes beyond a reasonable doubt that a jury would have found true fewer than all the aggravating circumstances beyond a reasonable doubt, it must still ask whether it is reasonably probable the trial court “would have exercised its discretion” to impose a sentence less than the upper term in the absence of the unproved aggravating circumstance(s). (Ibid.)
We agree with the Lopez court that a reviewing court finding beyond a reasonable doubt that the jury would have found a single aggravating factor true beyond a reasonable doubt is insufficient to conclude that the error was harmless. In other words, we disagree with Flores that Sandoval is applicable in this context. We further agree that the second step of the Lopez analysis—considering whether the trial court would have imposed a lesser term in absence of the aggravating circumstances not provable on the record before the reviewing court—is necessary. To find that
We note that the Chapman standard of harmless error is compelled when an element of an offense or a sentencing factor necessary to impose a sentence above the statutory maximum is not presented to the jury. (Washington v. Recuenco (2006) 548 U.S. 212, 220 [firearm enhancement sentencing factor harmless error is decided pursuant to Chapman]; People v. French (2008) 43 Cal.4th 36, 52–53 [applying only Chapman
In sum, we think the correct standard for harmless error lies between the standards articulated in Flores and Lopez; Flores sets too low a standard for harmlessness and Lopez too high. We instead apply a version of the standard articulated in Lopez, modified to incorporate Watson in the first step: The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt13 and (1)(b) whether there is a reasonable probability that the jury would have found any remaining aggravating circumstance(s) true beyond a
With that standard in mind, we revisit the aggravating circumstances relied upon by the trial court. Here, as discussed above, there was no error as to the first aggravating circumstance, that defendant had numerous convictions, because it met the requirements of
We must next determine whether there is a reasonable probability that the jury would not have found the remaining aggravating circumstance true beyond a reasonable doubt. Here, the jury did not make a specific finding as to the facts underlying the second aggravating circumstance cited by the trial court, that defendant was on probation
As the first and third aggravating circumstances met the requirements of
DISPOSITION
The judgment is affirmed.
ORDER MODIFYING OPINION AND GRANTING REQUEST FOR PUBLICATION [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 30, 2022, be modified as follows:
1. On page 2, the first paragraph beginning “Defendant Tuesdee Deann Dunn” is deleted and replaced with the following paragraphs:
Defendant Tuesdee Deann Dunn contends on appeal that her sentence on count 1 must be vacated and her case remanded for resentencing in light of Senate Bill No. 567‘s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to
Penal Code section 1170, subdivision (b) .16 We conclude that the sentence on count 1 was not imposed in compliance with section 1170, subdivision (b), but that the error was harmless. We therefore affirm.This matter turns on the appropriate standard for harmless error review in the Senate Bill 567 context. Two other published opinions have reached this question, People v. Flores (2022) 75 Cal.App.5th 495 (Flores) and People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez), each offering a different answer. We offer a third answer which falls between the other two.
2. On page 2, in the first paragraph of the procedural summary, the text “Pen. Code,” and footnote 1 are deleted.
4. On page 4, in the first sentence of the first paragraph, the text “B.O and they had children together” is modified to read “B.O. and they had children together.”
5. On page 4, in the sixth sentence of the first paragraph, the text “J.S immediately grabbed” is modified to read “J.S. immediately grabbed ....”
6. On page 5, in the second sentence of the first paragraph, the text “and section 1170, subdivision (b)(3) does not permit stipulations by the defendant” is modified to read, “and
7. On page 5, after the first sentence of the second paragraph, the citation ”(Sandoval, at p. 839).” is modified to read, ”(Sandoval, at p. 839.)”
8. On page 5, in the second sentence of the second paragraph, the text ”People v. Flores (2022) 75 Cal.App.5th 495, 521 (Flores)” is modified to ”Flores, supra, 75 Cal.App.5th at p. 521.”
9. On page 5, in the fourth sentence of the second paragraph, the text “or if all circumstances are not found true according to their respective standards,” is modified to read, “or if at least one aggravating circumstance would have been found true pursuant to the standard set out in part (1)(a), but all aggravating circumstances would not have been found true to the standard set out in part (1)(b) ....”
10. On page 6, the second full sentence of the first partial paragraph, reading “We affirm” is deleted.
11. On page 6, in the second sentence of the first paragraph of the section “A. Background,” the text ” ‘with regards to circumstances in aggravation ... the defendant‘s prior convictions are numerous, was on probation when the crime was committed, and her prior performance on probation was unsatisfactory’ ” is modified to read ” ‘with regards to circumstances in aggravation ... defendant‘s prior convictions are
12. On page 6, in the second sentence of the first paragraph of the section “B. Law,” the word “amends” is modified to read “amended.”
13. On page 6, in the third sentence of the first paragraph of the section “B. Law,” the text “the trial court may impose an upper term sentence only where there are circumstances in aggravation,” is modified to read “the trial court may impose an upper term sentence only where there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term.”
14. On page 8, in the first partial sentence of the page in the paragraph beginning on page 7, the text, “proven by certified records of defendant‘s prior conviction, admitted by defendant, or proved beyond a reasonable doubt,” is modified to read “proved to a jury beyond a reasonable doubt, admitted by defendant, or were circumstances relating to defendant‘s prior convictions based on a certified record of convictions.”
15. On page 12, in the last sentence on the page, the text “the trial court‘s consideration of additional factors not proved to a jury was not a federal constitutional question” is modified to read “whether the trial court would have imposed the upper term without consideration of additional aggravating circumstances not proved to a jury was not relevant to a federal constitutional question before the court.”
16. On page 13, the citation following the second sentence of the first paragraph, reading ”People v. Lopez (2022) 78 Cal.App.5th 459, 465–468 (Lopez)” is modified to ”Lopez, supra, 78 Cal.App.5th at pp. 465–468.”
17. On page 14, in the second sentence of the second full paragraph, the text ”Sandoval is applicable in this context” is modified to read ”Sandoval provides a complete standard for harmless error in this context.”
18. On page 16, footnote 13 is deleted and replaced as follows:
13 Alternatively, this step 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. Again, as noted in footnote 5, step (1)(a) or one of its two alternatives must be satisfied to avoid offending the Sixth Amendment as described in Cunningham and Sandoval. If not, the error is not harmless; the sentence must be vacated and the matter remanded to the trial court for resentencing consistent with
section 1170, subdivision (b) .
19. On page 17, the paragraph beginning on page 16, delete the sentence that begins with “If the aggravating circumstances would have been proved to the respective standards ...” and the remainder of that paragraph, and replace it with the following:
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 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) .
20. On page 18, in the eighth sentence of the first partial paragraph, beginning “It then sentenced defendant ...,” the text “MCR0603302” is modified to read “MCR063302.”
There is no change in the judgment.
As the nonpublished opinion filed on June 30, 2022, in this matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c)(1) and (c)(5), it is ordered that the opinion be certified for publication in the Official Reports.
HILL, P. J.
WE CONCUR:
FRANSON, J.
PEÑA, J.