Opinion
A161881
08-31-2022
THE PEOPLE, Plaintiff and Respondent, v. JASON LLOYD BRYSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR7099571)
STEWART, J.
After a jury convicted defendant Jason Lloyd Bryson of second degree robbery, the trial court imposed an upper five-year prison term, doubled to ten years due to a prior strike, and an additional five years each for two prior serious felony convictions. Bryson appeals a prison sentence imposed on remand following an earlier appeal in which we struck the doubling of his original sentence under the Three Strikes law and the two 5-year sentence enhancements. (People v. Bryson (July 29, 2020, A155582) [nonpub. opn.].) When resentencing Bryson, the trial court again imposed the upper term of five years in prison and a five-year enhancement. Bryson contends the trial court abused its sentencing discretion by failing to consider mitigating circumstances. We find no abuse of discretion on that ground, but we remand for resentencing based on a recent amendment to Penal Code section 1170, subdivision (b), that limits the trial court's discretion to impose the upper term.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
I.
Bryson's Charges and the Trial
In 2018, Bryson was charged by amended information with second degree robbery, assault with a deadly weapon, criminal threats, and grand theft of personal property exceeding a value of $950, with sentence enhancements for two prior serious felony convictions and two prior strikes under the Three Strikes law.
The evidence presented at trial is described in detail in our opinion issued in the prior appeal. (People v. Bryson (July 29, 2020, A155582) [nonpub. opn.].) For purposes of this appeal, we need not describe it at length here, but the evidence generally shows that in November 2017, Bryson took property belonging to Chad Empey from Empey's car. Empey testified at trial that when he pursued Bryson to get his belongings back, Bryson said he was going to kill Empey, swung at him, and then got into a nearby car. Empey described how he attempted to get his things from the car while Bryson tried to drive away, causing Empey to fall to the ground twice. Empey testified that after he fell a second time, Bryson turned the car towards him and "lurched" it forward, hitting Empey in his shoulder before driving away.
We granted Bryson's request for judicial notice of the opinion filed in the prior appeal. (Evid. Code, § 452, subd. (d).) On our own motion, we take judicial notice of the record in that appeal after having provided the parties notice and an opportunity to object. (Id., §§ 455, subd. (a), 459, subd. (c).) The People did not object to us taking judicial notice of the record in the prior appeal, but Bryson objected on the ground that the record was not before the trial court at the time of resentencing. However, the trial court considered several documents included in the prior appeal's record at resentencing, including the probation report submitted for the original sentencing hearing, and it had also "review[ed] and refresh[ed] its memory" of the events of the underlying case. The sentencing judge would have been familiar with the trial record included as part of the record in the prior appeal.
II.
Conviction, Sentencing and Appeal
The jury convicted Bryson of second degree robbery and found him not guilty of criminal threats or assault with a deadly weapon. The court declared a mistrial regarding the grand theft count and dismissed it on its own motion. The court conducted a bench trial and found true two prior serious or violent felony convictions, one in Washington state and one in California, and two prior strikes under the Three Strikes law based on those same felony convictions. The court later struck the California prior strike as outside the intent of the Three Strikes law.
The court sentenced Bryson to an upper five-year prison term for the robbery, doubled to ten years due to the Washington prior strike, and to an additional five years each for the prior serious felony convictions, for a total of twenty years in state prison. On appeal, we concluded that the conviction Bryson suffered in Washington did not establish he had a prior strike and a prior serious felony. Accordingly, we struck those findings and remanded for resentencing.
III.
Resentencing Hearing
The People filed a resentencing memorandum asking the court to impose the upper term of five years for the robbery and the five-year enhancement. The People pointed to four aggravating circumstances: Bryson had engaged in violent conduct that indicated a serious danger to society because he had used force and/or fear to complete the robbery, he had numerous criminal convictions since the 1990s, he served four prior prison terms, and his prior performance on probation was unsatisfactory since he was "returned from" parole six times. For those aggravated circumstances related to Bryson's criminal history, the People referred to the probation report filed for the first sentencing hearing. That report sets forth Bryson's prior convictions and the resulting sentences, dating back to 1990.
In response, defense counsel filed a resentencing memorandum advocating imposition of probation or the lower two-year term without the five-year enhancement based on several mitigating circumstances. Those mitigating circumstances included the influence of methamphetamine on Bryson's decision-making, his willingness to seek treatment for his alcohol and drug addiction, the relatively low value of the property taken, and his prior satisfactory performance on probation. Counsel also urged the court to consider Bryson's postconviction performance while incarcerated.
At the resentencing hearing, the court denied probation, finding that Bryson was presumptively ineligible, and that he had not overcome the presumption. The court sentenced Bryson to the upper term of five years "[b]ased on consideration of California Rules of Court 4.421 and 4.423, specifically that there are prior convictions as an adult which are numerous and have increased in seriousness; that defendant has served prior prison terms and that defendant's prior performance on probation or parole was unsatisfactory." The court also imposed the five-year enhancement after considering Bryson's criminal history and his "background, character and prospects" and finding that he "cannot be deemed to follow out the spirit of [the] recidivism enhancement scheme."
This appeal followed.
DISCUSSION
Bryson raised a single claim of sentencing error in his initial appellate briefs, arguing the trial court abused its discretion in imposing the upper term and the enhancement by failing to consider relevant mitigating circumstances. We reject this contention, concluding the trial court properly considered all relevant factors.
After briefing was complete in this case, the Legislature enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) (Stats. 2021, ch. 731), which amends section 1170, subdivision (b), by narrowing the circumstances in which a sentencing court may impose an upper term and providing for a presumptive middle term. We requested supplemental briefing from the parties as to whether Senate Bill No. 567 requires the resentencing of Bryson. Bryson submitted a supplemental brief contending that resentencing is warranted because none of the factors relied on by the trial court to impose the upper term remain valid. The People disagree, contending that the trial court properly relied on Bryson's criminal history. For reasons we explain below, we reject the People's contention that remand for resentencing is unnecessary.
I.
The Trial Court Did Not Abuse Its Discretion by Failing to Consider Mitigating Factors.
In making its sentencing decisions, the trial court must consider relevant factors enumerated in the California Rules of Court (Cal. Rules of Court, rule 4.409), including circumstances in aggravation and mitigation (Id., rules 4.421, 4.423). When a case is remanded for resentencing, the defendant "is entitled to all the normal procedures and rights available at the time judgment is pronounced." (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744.) This includes consideration of the defendant's postconviction conduct. (People v. Bullock (1994) 26 Cal.App.4th 985, 990.)
We review a trial court's sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) The trial court has broad discretion in imposing a sentence within a statutory range. (Id. at p. 844; see also former § 1170, subd. (b)(2), as amended by Stats. 2020, ch. 29, § 14.)" 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in "qualitative as well as quantitative terms" [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.' [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; accord, People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) Bryson has the burden to"' "show that the sentencing decision was irrational or arbitrary." '" (Lai, at p. 1258.)
The record demonstrates that the trial court considered the appropriate circumstances and exercised its discretion in a reasonable manner when it imposed the upper term. In selecting the upper term, the trial court stated it was basing its decision on consideration of California Rules of Court, rules 4.421 and 4.423. The trial court relied on three aggravating factors enumerated in those rules related to Bryson's criminal history and recidivism. (Cal. Rules of Court, rule 4.421(b)(2), (b)(3), (b)(5).) The court also relied on Bryson's criminal history in imposing the five-year enhancement. This was proper. "California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice . . . ." (People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) Recidivism is" 'a traditional, if not the most traditional, basis for . . . increasing an offender's sentence.'" (People v. Towne (2008) 44 Cal.4th 63, 75.)
Bryson contends the trial court's focus on the aggravating factors was "at the expense of" its consideration of the mitigating factors, including the effect on his behavior of using methamphetamine, his willingness to seek treatment, and the relatively low value of the property taken. As support for his contention, he points to the trial court's failure to mention those specific factors and its statements that it had reviewed the circumstances of his offense and documents related to its prior sentencing decisions.
On appeal, however, relevant factors are "deemed to have been considered unless the record affirmatively reflects otherwise." (Cal. Rules of Court, rule 4.409.) Nothing in the record affirmatively shows the trial court failed to consider any relevant factors. To the contrary, the court expressly stated that it had considered Bryson's resentencing brief, which set forth the relevant mitigating factors. The court was free to" 'minimize or even entirely disregard [those] mitigating factors without stating its reasons.'" (People v. Lai, supra, 138 Cal.App.4th at p. 1258; see also Sandoval, supra, 41 Cal.4th at pp. 846-847 ["The trial court will be required to specify reasons for its sentencing decision, but will not be required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances"].)
Bryson further contends that under People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), the trial court abused its discretion because there was "no clear indication" that the court understood it could consider his postconviction conduct. His reliance on Gutierrez is misplaced. That case abrogated prior appellate authority that held section 190.5, subdivision (b), created a presumption in favor of life without parole for juvenile offenders who committed special circumstances murder, even though that subdivision permitted trial courts to sentence such offenders to prison for life without parole or for 25 years to life. (Gutierrez, at p. 1360.) After the Court found that section 190.5, subdivision (b) conferred discretion on trial courts to impose either sentence, the Court considered whether it should remand for resentencing in two cases consolidated on appeal based on the trial courts' presumed error in applying the presumption in favor of life without parole to two juvenile offenders. (Gutierrez, at pp. 1360, 1391.) The Court concluded remand was required because the records did "not clearly indicate that [the trial courts] would have imposed the same sentence had they been aware of the full scope of their discretion." (Id. at p. 1391.)
We agree with the People that Gutierrez's "clearly indicates" language refers to the prejudice analysis that applies once the reviewing court determines the trial court did not make a sentencing decision in its"' "informed discretion." '" (See Gutierrez, supra, 58 Cal.4th at p. 1391.) Because the trial court is presumed to have considered Bryson's postconviction conduct (Cal. Rules of Court, rule 4.409), and Bryson has not made a contrary showing, he has not shown that the trial court was unaware of its ability to consider that mitigating factor.
Accordingly, remand for resentencing is not warranted on the ground the trial court abused its discretion in failing to consider mitigating factors.
II.
Remand Is Required Based on a Recent Amendment to Section 1170.
At the time of Bryson's resentencing, section 1170, subdivision (b) provided that, "[w]hen a judgment of imprisonment [was] to be imposed and the statute specifie[d] three possible terms, the choice of the appropriate term . . . rest[ed] within the sound discretion of the court." (Former § 1170, subd. (b)(2), as amended by Stats. 2020, ch. 29, § 14.) Accordingly, the trial court exercised its discretion and imposed on Bryson the upper term out of three possible statutory terms for second degree robbery. (§ 213, subd. (a)(2).)
However, effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b), to prohibit a trial court from imposing a sentence exceeding the middle term unless "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 either been stipulated to by the defendant or been "found true beyond a reasonable doubt" by the jury or judge at trial. (§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. (§ 1170, subd. (b)(3).)
We agree with the People that the amendment applies retroactively to this case because judgment was not final at the time the amendment became effective on January 1, 2022. (In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when the statute takes effect]; see also People v. Valenzuela (2018) 23 Cal.App.5th 82, 87-88 [amendments granting court the discretion to strike formerly mandatory firearm enhancements apply retroactively to non-final cases].) We thus consider whether the trial court, in selecting the upper term, relied on aggravating circumstances that were established according to the standards set forth in Senate Bill No. 567.
A. The Trial Court Did Not Rely on Proper Aggravating Circumstances under Senate Bill No. 567.
As mentioned, Senate Bill No. 567 requires trial courts, in imposing the upper term, to rely only on aggravating circumstances found true beyond a reasonable doubt by the trier of fact or stipulated to by the defendant. (§ 1170, subd. (b)(2).) An exception to those requirements is that a sentencing court may rely on prior convictions when supported by certified records of conviction. (§ 1170, subd. (b)(3).)
Here, in selecting the upper term, the trial court relied on three aggravating factors related to Bryson's criminal history: his "numerous" prior convictions that have increased in seriousness, his prior prison terms, and his "unsatisfactory" probation performance. At the resentencing hearing, the trial court stated it had considered the parties' resentencing memorandums and the probation report submitted for the original sentencing hearing, and that it had also "review[ed] and refresh[ed] its memory" of the events of this case. The probation report lists Bryson's convictions from 1990 to 2012, the resulting sentences and whether he completed probation or parole, based on information pulled from government records. The record also demonstrates that at a bifurcated hearing, the court previously found true beyond a reasonable doubt two of Bryson's prior convictions from the 1990s, and certified records were produced for those convictions. For that hearing, the People had also submitted a certified prison packet showing the dates of Bryson's incarceration and parole revocations from 1993 to 2000.
The court's reliance on Bryson's prior convictions (except for the two found true beyond a reasonable doubt by the court), his prior prison terms, and his probation performance was improper under Senate Bill No. 567. There is no evidence in the record showing that those facts were stipulated to by Bryson or found true beyond a reasonable doubt by the court or the jury, or that his other prior convictions were established by certified records, as required by the amendment.
In its supplemental brief, the People contend that the trial court's reliance on those factors was proper based on the certified prison packet, which shows his dates of incarceration and parole revocations but not his prior convictions. We disagree that section 1170, subdivision (b)(3) allows the trial court to find any underlying facts other than the prior convictions themselves based on a certified record of conviction. That subdivision creates an exception to the requirements of section 1170 specifically for prior convictions: "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." (§ 1170, subd. (b)(3).) People v. Black (2007) 41 Cal.4th 799 and People v. Towne, supra, 44 Cal.4th 63, the cases relied on by the People, are inapposite. Both cases addressed the issue of whether the federal constitutional right to jury trial and proof beyond a reasonable doubt on aggravating circumstances extended to the circumstances that a defendant was on probation at the time of the offense, or had served a prior prison term, holding that it did not under certain circumstances. (Towne, at pp. 79-80; Black, at pp. 808, 819.) Section 1170 does not codify this broader exception.
Moreover, the certified records show only Bryson's earlier criminal history, while the probation report considered by the trial court in resentencing Bryson provides his complete criminal history. The probation report does not fall under the exception in subdivision (b)(3) of section 1170. (See People v. Dunn (2022) 81 Cal.App.5th 394, 518 [probation report is not a certified record of conviction].) Thus, to the extent the trial court relied on Bryson's later criminal history, this was clearly improper under section 1170, subdivision (b). The trial court therefore erred in sentencing Bryson to the upper term under Senate Bill No. 567 because it relied on aggravating circumstances not found by a jury or judge or that were stipulated to by the defendant.
Our inquiry does not end here, though. We must decide whether the error was prejudicial, thus requiring remand for resentencing. (See People v. Lopez (2022) 78 Cal.App.5th 459, 466-467 (Lopez).)
B. The Error Was Prejudicial.
Error in relying on facts not found by the jury to impose an aggravated term is subject to review under the harmless error standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). Sandoval considered the appropriate application of Chapman for the denial of the right to a jury trial on aggravating circumstances that exposed the defendant to an elevated sentence. (Sandoval, supra, 41 Cal.4th at p. 838.) In that context, the relevant harmless error analysis requires the reviewing court to "determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury's verdict would have authorized the upper term sentence." (Ibid.) "[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. (Id. at p. 839.)
We find that the aggravating circumstances relied on by the trial court survive Chapman harmless error review. The probation report recited Bryson's criminal history, including four prior prison terms and over a dozen prior convictions. A defendant's prior convictions may be "numerous" when he or she has as few as three prior convictions. (People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior driving while intoxicated convictions are" 'numerous' "]; People v. Stuart (2008) 159 Cal.App.4th 312, 314 [six prior misdemeanor convictions were" 'numerous' "].) The report also shows that Bryson's recent convictions consist of felonies and gross misdemeanors, and that Bryson was returned from parole six times. Bryson's parole revocations, two of his prior prison terms, and two of his convictions were also documented by certified prison records. On this record, we can conclude, beyond a reasonable doubt, the jury would have found true the aggravating circumstances relied on by the trial court in selecting the upper term. (See People v. Flores (2022) 75 Cal.App.5th 495, 729 [probation report showing the defendant's numerous prior convictions and his unsatisfactory probation performance satisfied Chapman harmless error standard because it was based on readily available information].)
Some courts have held that the reviewing court must also apply the harmless error review standard set forth in People v. Watson (1956) 46 Cal.2d 818 for state law errors. (See People v. Zabelle (2022) 80 Cal.App.5th 1098, 1112; Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) The question under Watson in this context would be whether it is reasonably probable that the jury would not have found true the aggravating circumstances, and if the answer is yes, whether the trial court would have chosen a lesser sentence had it relied on only those factors that complied with section 1170's requirements. (Zabelle, at p. 1113.) Even assuming this is the correct approach, there is no Watson error where, as here, the reviewing court concludes beyond a reasonable doubt that a jury would have found true the aggravating circumstances relied on by the trial court in selecting the upper term. (Zabelle, at p. 1113; Lopez, at p. 467, fn. 11.)
However, the issue here implicates not only Chapman review, but also the trial court's inability to act with "informed discretion" of the statutory presumption favoring the middle term at the time of Bryson's resentencing. A court that is not aware of the scope of its discretionary powers cannot exercise that "informed discretion" any more than a court whose sentence may have been based on misinformation regarding a material aspect of the defendant's record. (Gutierrez, supra, 58 Cal.4th at p. 1391.) In such cases, remand for resentencing is required "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.'" (Ibid.) Here, Senate Bill No. 567 has changed the framework within which the trial court exercises its discretion by specifying a presumptive middle sentence. "This means we must ask both whether we can be certain the jury would have found beyond a reasonable doubt the aggravating circumstances relied on by the court and whether the trial court would have exercised its discretion in the same way if it had been aware of the statutory presumption in favor of the middle term." (People v. Wandrey (2022) 80 Cal.App.5th 962, 982.)
The record does not clearly indicate that the trial court would have exercised its discretion in the same way if it had been aware of Senate Bill No. 567's policy change creating a presumption favoring the middle term. It is not clear from the record whether the trial court found any mitigating factors, the weight it assigned the aggravating and mitigating circumstances and whether it was a close call. The court's comments on its decision to select the upper term was limited to its recitation of three aggravating circumstances. Some "degree of speculation" would therefore be required for us to conclude that the trial court would have exercised its sentencing discretion in the same way if it had taken the statutory presumption in favor of the middle term into account. (People v. Wandrey, supra, 80 Cal.App.5th at p. 983.) Accordingly, we will remand the matter for resentencing.
Although the sentencing court must state the reasons for imposing the term selected, it is not required to state the ultimate facts it deemed to constitute circumstances in aggravation or mitigation. (Sandoval, supra, 41 Cal.4th at p. 847.) In this case, the record is silent on whether the trial court found any mitigating circumstances.
DISPOSITION
This matter is remanded for resentencing under Senate Bill No. 567. In all other respects, the judgment is affirmed.
WE CONCUR. RICHMAN, ACTING P.J., MAYFIELD, J. [*]
[*] Judge of the Mendocino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.