THE PEOPLE, Plaintiff and Respondent, v. TUESDEE DEANN DUNN, Defendant and Appellant.
F083390 (Super. Ct. No. MCR063302)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 6/30/22
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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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OPINION
THE COURT*
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. 567s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to
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 defendants 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 Her probation was revoked and reinstated for a period of three years.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 defendants probation in case No. MCR063302 was filed. The petition alleged that defendant had committed petty theft (
On April 27, 2021, a third petition to revoke defendants probation in case No. MCR063302 was filed. The petition alleged that defendant violated the term of her probation requiring her to obey all laws by: (1) committing disorderly conduct (
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 defendants 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 defendants probation and declined to reinstate it. The trial court imposed four years (the
On September 29, 2021, defendant filed a notice of appeal in case No. MCR06332.
FACTS4
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 defendants 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 defendants fathers 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 childrens daycare that she would follow them into the daycare. B.O. called the police to report defendants violation of the protective order.
DISCUSSION
Defendant contends the trial courts aggravating circumstances findings fail to meet the requirements of amended
The People first contend that the trial courts sentence to the upper term on count 1 complies with Senate Bill 567s amendments to
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 circumstances provable from the record as determined in the prior steps.5 Applying this standard, we conclude the trial courts error was harmless. We affirm.
When selecting the upper term on count 1, the trial court relied on the probation officers 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 defendants prior convictions are numerous, was on probation when the crime was committed, and her prior performance on probation was unsatisfactory.” The probation officers report indicated that defendant was on probation at the time she committed her offenses and also identified defendants 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 amendments operative date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308
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
Certified Records of Defendants Prior Convictions
The People contend that remand is not required because defendants 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 defendants probation report is a certified record of conviction. It is not. Here, however, during the contested hearing on defendants third probation violation in this case, the trial court admitted into evidence a certified copy of defendants
error in the trial courts reliance upon the aggravating circumstance of defendants numerous prior convictions.
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 (
Unproved Aggravating Circumstance
Here, the facts underlying the second aggravating circumstance cited by the trial court, that defendant was on probation at the time that the charged
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
beyond a reasonable doubt that the victim was vulnerable or that appellant isolated the victim].) They further contend that although Senate Bill 567 requires that the jury find true the facts underlying the aggravating circumstance, Senate Bill 567 does not require the court to rely on a minimum number of aggravating circumstances. For this proposition they rely on Flores, which applied the harmless-beyond-a-reasonable-doubt standard of harmless error from Chapman v. California (1967) 386 U.S. 18 as adapted to the context of violations of the Sixth Amendment right to a jury trial on aggravating circumstances by Sandoval. (Flores, supra, 75 Cal.App.5th at pp. 500–501.)
Flores articulated the harmless error standard in the Senate Bill 567 error context as follows: ” [I]f a reviewing court concludes, beyond a reasonable
To explain our disagreement with Flores, we consider the origin of the harmless error standard it applied. In Cunningham, the Supreme Court held that Californias 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
sentence beyond the statutory maximum had to be proved to a jury beyond a reasonable doubt. (Id. at p. 281.) Under the California determinate sentencing law, a statutory presumption existed that ” [t]he middle term [would] be selected unless imposition of the upper or lower term [was] justified by circumstances in aggravation or mitigation. ” (Id. at p. 278.) Under the then-existing statutory scheme, those circumstances in aggravation or mitigation—and the underlying facts related to those circumstances—were to be determined by the trial court, not the jury. (Ibid.) The Supreme Court therefore determined that the imposition of an upper term without having the facts underlying the aggravating circumstances proved to a jury beyond a reasonable doubt violated the Sixth Amendment. (Id. at p. 293.)
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 defendants 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
As noted, in Flores, the Court of Appeal for the First District, Division Three extended the standard for harmless error applied in the Sixth Amendment context in Sandoval to
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
Despite our agreement with Lopez on the majority of the standard it articulated, we are unconvinced that the Chapman standard of harmless error—applicable to errors implicating federal constitutional rights—must be applied to all aggravating circumstances in the Lopez courts first step. Lopez does not provide a clear explanation for why the Chapman standard for harmless error applies to all aggravating circumstances. Indeed, the only citation that the Lopez court provides for the proposition that Chapman applies to every factor is citation to
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 where the trial court imposed the upper term based on one aggravating circumstance and that circumstance was not proved to the jury].) A fact that is necessary to impose a sentence above the statutory maximum must be proved to a jury beyond a reasonable doubt. However, as Sandoval has made clear, when multiple aggravating circumstances not proved to the jury are relied upon by a trial court in imposing the upper term, the reviewing court must only conclude beyond a reasonable doubt that one of those circumstances would have been found true by the jury beyond a reasonable doubt to avoid offending the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 839 [so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury].) Accordingly, one aggravating circumstance must be reviewed pursuant to Chapman, but the remaining aggravating circumstances involve only a state-created right to a jury trial that must be reviewed pursuant to Watson.
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
reasonable doubt. If the aggravating circumstances would have been proved to the respective standards, any error was harmless. If not, we move 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, we vacate the sentence and remand for resentencing consistent with
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
at the time the charged offenses were committed. However, the record shows that defendant was on probation in
As the first and third aggravating circumstances met the requirements of
would not have found the second aggravating circumstance true beyond a reasonable doubt, the error was harmless. We affirm defendants sentence.
DISPOSITION
The judgment is affirmed.
Hill, P. J.
Franson, J.
Peña, J.