Opinion
H048422
09-28-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVION SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS161898A
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Davion Smith was convicted by jury of involuntary manslaughter (Pen. Code, § 192, subd. (b)), battery with serious bodily injury (§ 243, subd. (d)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and intimidating a witness (§ 136.1, subd. (b)(1)). The jury found true the allegations that defendant personally inflicted great bodily injury during the commission of the assault (§ 12022.7, subd. (a)), had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)), and had served a prior prison term (§ 667.5, former subd. (b)). The trial court found true the allegation that defendant committed the offense of intimidating a witness while he was released on bail (§ 12022.1) (on-bail enhancement). The trial court sentenced defendant to an aggregate term of 18 years.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant appealed contending, among other arguments, that (1) the use of his juvenile adjudication to enhance his sentence under the "Three Strikes" law was unconstitutional, (2) the record lacked substantial evidence that he was age 16 or older when he committed the juvenile offense, as statutorily required for an adjudication to constitute a strike, and (3) the prior prison term enhancement must be stricken based on new legislation. This court found merit in the latter two arguments. (People v. Smith (Apr. 14, 2020, H045505) (nonpub. opn.), at pp. 7-17, 21-22.) The judgment was reversed, and the matter was remanded with directions to strike the allegation that defendant had served a prior prison term (§ 667.5, former subd. (b)) and to strike the true finding on the allegation that defendant had suffered a prior serious or violent felony adjudication (§ 1170.12, subd. (c)(1)). This court further directed that, if the People elected to retry the prior serious or violent felony adjudication allegation, the trial court must resentence defendant following retrial.
This court granted defendant's request for judicial notice of a portion of the record in the prior appeal, People v. Smith, supra, H045505. In the pending appeal, the parties also cite other portions of the record, as well as this court's opinion, from the prior appeal. Consequently, this court takes judicial notice of the entire record in the prior appeal, including this court's prior opinion. (Evid. Code, § 452, subd. (d)(1).)
On remand, a court trial was held, and a juvenile court petition reflecting defendant's age at the time of the juvenile offense was admitted into evidence. The trial court found that defendant was 16 years of age or older when he committed the juvenile offense. The court struck the prior prison term enhancement but otherwise reimposed the same sentence.
On appeal, defendant contends that (1) the trial court erred in denying his motion for a jury trial on remand; (2) the court erred and the prosecutor committed misconduct by purportedly failing to allow him to see the juvenile court petition that indicated his age at the time the juvenile offense was committed; (3) the court erred in denying his request for a trial continuance; (4) the court erred in admitting the juvenile court petition when its authenticity had not been established; (5) a third trial regarding the strike prior should be barred; (6) the use of his juvenile adjudication as a strike prior violated his federal constitutional rights; (7) retrial of the strike allegation violated his state and federal constitutional rights against double jeopardy; (8) the matter should be remanded for resentencing so that the court may exercise its discretion under recently amended section 1170, subdivision (b) (section 1170(b)), which makes the middle term the presumptive sentence unless certain circumstances exist; and (9) the matter should be remanded for resentencing so that the court may exercise its discretion under recently amended section 654 to determine which counts to stay.
For reasons that we will explain, we will remand the matter for resentencing under amended sections 1170 and 654 and to ensure that a corrected abstract of judgment is prepared.
II. FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the factual and procedural background includes some information that we have taken from the prior appeal.
A. Factual Background
On August 25, 2015, defendant confronted Tyler Webb, who allegedly owed him money. Defendant asked Webb," 'Where's my money, man?'" Defendant punched Webb, and Webb fell and hit his head on the cement, causing brain damage.
Someone reported a man lying in the street in the area of a homeless encampment in Salinas. Webb was found nonresponsive inside a tent and was transported to a local hospital where he died.
Defendant was arrested on August 31, 2015. During a police interview, defendant denied being involved in an altercation with Webb or that Webb owed him money.
On February 25, 2016, a witness reported that he had been pressured by defendant's father not to cooperate with the police investigation. After defendant was released from jail, defendant approached the witness several times, encouraging him to change his story. Defendant's brother also contacted associates of the witness to discourage the witness from testifying. The witness became concerned for his safety and worried that defendant might try to kill him.
B. Charges, Verdicts, and Original Sentence
Defendant was charged with involuntary manslaughter (§ 192, subd. (b); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and dissuading a witness (§ 136.1, subd. (b)(1); count 4). It was also alleged that defendant personally inflicted great bodily injury during the commission of count 3 (§ 12022.7, subd. (a)) and that he was on bail when he committed count 4 (§ 12022.1, subd. (b)). Finally, it was alleged that defendant had suffered a prior serious or violent felony juvenile adjudication (§ 1170.12, subd. (c)(1)) and had served a prior prison term (§ 667.5, former subd. (b)). Relevant to this appeal, the prosecution alleged that defendant suffered a prior strike adjudication for armed robbery (§§ 212.5, 12022.5).
A jury found defendant guilty of all counts and found true the allegation that defendant personally inflicted great bodily injury during the commission of count 3. In a bifurcated trial, the jury found the prior strike and prior prison term allegations true. The trial court found true the allegation that defendant had committed count 4 while on bail. After denying defendant's motion to strike the prior strike finding, the court sentenced defendant to an aggregate term of 18 years, which included upper terms on counts 1, 2, and 3 and, pursuant to former section 654, stayed terms on counts 1 and 2.
C. First Appeal
In defendant's first appeal, this court determined that the record lacked substantial evidence that defendant was 16 years or older when he committed the juvenile offense, and that the prior prison term enhancement must be stricken based on new legislation. In particular, regarding the issue of whether defendant was at least 16 years old when he committed the juvenile offense, as statutorily required for an adjudication to constitute a strike, this court determined that the juvenile court records admitted at the first trial reflected the following: The San Joaquin County Juvenile Court sustained allegations that defendant violated sections 212.5 and 12022.5. (People v. Smith, supra, H045505, at p. 8.) The matter was transferred to Monterey County for disposition. (Id. at pp. 8-9.) The Monterey County Juvenile Court continued defendant as a ward of the court and committed him to the Youth Authority for, among other offenses, the violations of sections 212.5 and 12022.5. (People v. Smith, supra, H045505, at p. 9.)
In defendant's first appeal, this court determined that the juvenile court records admitted into evidence during the first trial did not provide defendant's date of birth or the date of the juvenile offense. (People v. Smith, supra, H045505, at pp. 14-15.) As a result, this court concluded that there was not substantial evidence to support the finding that defendant was 16 years old when he committed the juvenile offense. (Id. at p. 16.) This court reversed and remanded the matter, with directions to strike the true finding on the allegation that defendant suffered a prior serious or violent felony adjudication (§ 1170.12, subd. (c)(1)) and, due to a change in the law, to strike the allegation that he served a prior prison term (§ 667.5, subd. (b)). (People v. Smith, supra, H045505, at pp. 21-22.) This court further directed that, if the People elected to retry the prior serious or violent felony adjudication allegation, the trial court must resentence defendant following retrial. (Id. at p. 22.)
D. Retrial and Resentencing
On remand, the prosecutor sought to retry defendant on the allegation that he suffered a prior serious or violent felony adjudication (§ 1170.12, subd. (c)(1)). The matter was set for a jury trial on August 31, 2020.
1. The Prosecutor's Trial Brief with Exhibits
The prosecutor filed a trial brief on August 24, 2020. First, the prosecutor contended that defendant had no right to a jury trial regarding the prior juvenile adjudication. The prosecutor argued that although a jury might be necessary to make certain factual determinations, the matter had not been remanded by this court with respect to any of the factual determinations that fell within the province of the jury. Rather, the matter had been remanded regarding the trial court's determination that defendant was 16 years old at the time he committed the juvenile offense at issue.
Second, the prosecutor contended that defendant's age at the time of the juvenile offense would be established by a three-page San Joaquin County "Juvenile Court Petition #41909 filed in the defendant's juvenile case," in addition to "all the previous People's exhibit[] [Nos.] 79-88" which the prosecutor would "resubmit." Although the juvenile court petition was not a certified copy, the prosecutor argued that its authenticity could be established by its contents and by circumstantial evidence, and therefore the petition was admissible. The juvenile court petition indicated that defendant's date of birth was March 23, 1973, and alleged that he committed several offenses, including a residential robbery while personally using a firearm (§§ 212.5, 12022.5; count 1), on or about June 15, 1989, when he was 16 years old. Based on the juvenile court petition and the exhibits previously admitted into evidence, the prosecutor contended that there was substantial evidence that defendant was 16 years old at the time of the commission of the prior juvenile offense.
The prosecutor's trial brief contained alterations or unusual characters on the last page. For example, the characters "r MrB" appear in different fonts near the location where a signature line usually appears. Underneath are the characters:"' - -:: \ vi."
Attached to the prosecutor's trial brief were (1) a purported copy of the jury's verdict form from the first trial regarding the alleged prior juvenile adjudication (exhibit 1), and (2) a purported noncertified, faxed copy of the juvenile court petition alleging the prior juvenile offense (exhibit 2). Both the verdict form and the petition appeared irregular. For example, each document contained multiple font types, spelling errors, and, in some portions, an unintelligible mix of letters, punctuation, and/or symbols. As an example, on the verdict form, on the line for the jury to indicate the date of its verdict, the following appears: "/0 /YJlir{/1 7,o 1J." In the space for the jury to indicate whether it found defendant did, or did not, suffer a prior juvenile adjudication for armed robbery, the following appears: "DfJ)."
The proof of service attached to the prosecutor's trial brief indicated that it had been served by "ediscovery." (Bold and capitalization omitted.) Specifically, a legal secretary in the prosecutor's office served the trial brief "by 'ediscovery by Karpel site'" to defendant's trial counsel at his e-mail address. (Bold omitted.)
2. Defendant's Trial Brief and Declaration from Counsel
Defendant filed a trial brief on August 25, 2020. First, he contended that he was entitled to a jury trial regarding the authenticity of the juvenile court petition, which had not been introduced at the first trial. Second, defendant argued that there was insufficient evidence to authenticate the noncertified, faxed juvenile court petition. Third, he contended that a retrial on the issue of his prior juvenile adjudication, which would increase the maximum punishment for a current offense, was prohibited by the double jeopardy and due process clauses of the federal Constitution. Fourth, defendant argued that, in view of the constitutional rights to a jury trial and due process, a juvenile adjudication may not be used to increase the statutory maximum for an adult conviction where there was no right to a jury trial in the juvenile proceeding.
Defendant also filed a declaration from his appellate counsel on August 25, 2020. Appellate counsel described her unsuccessful efforts to locate defendant's juvenile court petition. The case had originated in San Joaquin County Juvenile Court in 1989, and was later transferred to Monterey County Juvenile Court. Appellate counsel contacted, among other entities, San Joaquin County Juvenile Court and the public defender's office in Monterey County. She was told that San Joaquin County Juvenile Court did not retain any documents in the case, and that Monterey County Superior Court could not find any "fiche" of the juvenile file.
3. The Prosecutor's Declaration
The prosecutor filed a declaration on August 27, 2020, addressing the authenticity of the juvenile court petition. The prosecutor stated that he had requested a copy of defendant's juvenile court petition from San Joaquin County Superior Court in early August 2020. He received a noncertified copy from the court. The prosecutor talked by phone with a clerk from the court who indicated that "they believed they could not provide a certified copy of the petition . . . because [defendant's] case had been transferred to Monterey County Superior Court."
4. Pretrial Hearing
The record reflects that a hearing was held on August 28, 2020, and that the trial court denied defendant's request for a jury trial. The original date set for the jury trial was vacated, and the matter was rescheduled for a bench trial on September 2, 2020.
5. Trial
At the court trial, the prosecutor, who appeared in person, sought to admit into evidence the three-page, noncertified juvenile court petition (exhibit No. 91). Defendant's trial counsel, who appeared by video, objected to its admission. Counsel indicated that the copy of the juvenile court petition that he had received, and which was attached to the prosecutor's trial brief, was not certified and had been "altered," as reflected by the different fonts and other irregularities in the document.
The trial court clarified that exhibit No. 91 before the court was not the prosecutor's trial brief. The court then asked the prosecutor about apparent differences between the juvenile court petition in exhibit No. 91 and the version attached to the prosecutor's trial brief. The prosecutor responded, "I talked to my clerk about that today, and she has no explanation why when it's transmitted to the court these extra characters are added to the document."
The trial court indicated that there were "all kinds of weird characters" on the juvenile court petition that was attached to the prosecutor's trial brief, and that there were also "some weird characters throughout" the verdict form that was attached to the prosecutor's trial brief. The court told defense counsel that the juvenile court petition in exhibit No. 91, however, was "not altered" and "doesn't have any of the" irregularities that had been identified by defense counsel.
Defense counsel reiterated that the copy of the juvenile court petition attached to the prosecutor's trial brief was "clearly altered" and that the prosecutor needed to obtain "a valid certified copy" in order to have the petition admitted into evidence.
The trial court explained to defense counsel that the copy of the juvenile court petition that was attached to the trial brief would not be admitted into evidence. The court stated that defense counsel should "direct [his] comments to the document the court has in front of it marked People's [exhibit No.] 91." Counsel responded, "Well, I can't because I don't have that document. [The prosecutor] didn't provide it to me. He provided to me what is referred to as Exhibit 2 in his trial brief."
The prosecutor indicated that if defense counsel was in court that day, defense counsel could get a copy of the document, but that if defense counsel was not there, he would not be getting a copy. Defense counsel responded that the hearing could be "set for another date" so that he "could get the same document" that the prosecutor sought to introduce into evidence.
The trial court stated that it was "here to rule on this," but that it would be "fine" for defense counsel "to come to court today and see [the document]." The court indicated that the document would be admitted under Evidence Code section 1280. Defense counsel "demand[ed] to see the document that's actually being offered in court," contended that "it should have been provided to [him] in advance," and argued that the document was "the most critical piece of evidence in this hearing." The court stated to defense counsel, "I'll give you as much time [as] you need in the next few hours to get to court if you'd like to see this. If not, the court will be ruling on this." Defense counsel responded, "No, I'm not in a position to do that for health reasons. I'm not in a position to come to court, that's why I'm appearing remotely."
The trial court proceeded to admit exhibit No. 91 into evidence. The court found that defendant was 16 years of age or older at the time of the commission of the residential robbery while personally using a firearm (§§ 212.5, 12022.5; count 1). The court indicated that the sentence would remain the same.
6. Defendant's Posttrial Motion and Resentencing
On September 8, 2020, defendant filed a posttrial motion (1) seeking to have the trial court rule on the objections that defendant had raised in his trial brief, which were not addressed at trial, regarding the unconstitutionality of using his juvenile adjudication as a strike prior, (2) renewing his objection to the admission of exhibit No. 91 on the grounds that a copy had not been provided to the defense prior to trial and defendant was denied a continuance to review the document, (3) seeking to have the allegation that he had served a prior prison term (§ 667.5, subd. (b)) stricken pursuant to this court's prior opinion, and (4) seeking a resentencing hearing.
In a written response to defendant's motion, the prosecutor argued that this court had previously rejected defendant's constitutional objections regarding the use of his prior juvenile adjudication, and that the doctrine of the law of the case applied in this case. The prosecutor conceded that the prior prison term allegation must be stricken but argued that no new sentencing hearing was required.
Regarding the issue of exhibit No. 91, the prosecutor contended that defense counsel had been provided a copy of the exhibit prior to trial. In a supporting declaration, the prosecutor explained that he had received a noncertified copy of the juvenile court petition from San Joaquin County Superior Court on August 19, 2020. Thereafter, on August 21, 2020, he "forwarded a courtesy copy of the [p]etition to [d]efense [c]ounsel by way of [e]mail addressed to his email address." In the declaration, the prosecutor set forth the e-mail address to which he sent the e-mail. The prosecutor stated that he "did not receive any indication that the [e]mail was not delivered to the [d]efense [c]ounsel's address." Attached to the prosecutor's declaration was a copy of the e-mail that he sent to defense counsel. The e-mail stated, "Please find the attached Petition from the San Joaquin Superior Court regarding [defendant]. I am awaiting additional documents from the Monterey Superior Court Juvenile Division which address the issue presented by Appellate Court." The e-mail included an attachment entitled "San Joaquin County Petition-Smith.pdf," but that attachment was not included with the prosecutor's declaration.
The trial court held a hearing on defendant's motion on September 9, 2020. The court struck the prison prior allegation (§ 667.5, subd. (b)) and stated that an amended abstract of judgment would be filed with defendant's sentence "reduc[ed] . . . by one year," for a total prison term of 17 years. The court stated that it was "not going to entertain any other objections" by defendant.
Defendant states that an amended abstract of judgment was filed on September 29, 2020. On our own motion, we augment the record to include the September 29, 2020 amended abstract of judgment. We observe that the amended abstract of judgment incorrectly refers to the on-bail enhancement to count 4 as "PC 12022.7(b)." The correct citation for the on-bail enhancement is section 12022.1, subdivision (b). As we are remanding the matter for resentencing, the trial court will have the opportunity to prepare an abstract of judgment that cites the correct section for the on-bail enhancement.
III. DISCUSSION
A. Jury Trial
Defendant contends that the trial court erred in denying his motion for a jury trial. He argues that he was entitled to a jury trial on the issue of whether the juvenile court petition was authentic. The Attorney General contends that defendant was not entitled to a jury trial regarding the authenticity of the petition.
A prior juvenile adjudication may constitute a prior serious felony conviction and ultimately qualify as a strike if "[t]he juvenile was 16 years of age or older at the time the juvenile committed the prior offense." (§§ 667, subd. (d)(3)(A), 1170.12, subd. (b)(3)(A).) Regarding prior conviction allegations and the right to a jury trial, the California Supreme Court has stated that "[t]he right, if any, to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps (2001) 25 Cal.4th 19, 23 (Epps).) The court has further observed that "sections 1025 and 1158 'are limited in nature.' [Citation.]" (Ibid.) Specifically, sections 1025 and 1158 provide a right to a jury trial only on the issue of whether the defendant has "suffered" the prior conviction. (§§ 1025, subd. (b), 1158; see Epps, supra, at p. 23.)
As relevant here, section 1025 states: "(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." (Italics added.) As relevant here, section 1158 provides: "Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction." (Italics added.)
In this case, defendant cites People v. Kelii (1999) 21 Cal.4th 452 (Kelii) and Epps, supra, 25 Cal.4th 19, among other cases, for the proposition that he was entitled to a jury trial regarding whether the juvenile court petition was authentic. We are not persuaded by defendant's reliance on these cases.
In Kelii, the California Supreme Court concluded that "the court, not the jury" determines "if a prior felony conviction qualifies as a 'serious felony' for purposes of the 'Three Strikes' law. [Citations.]" (Kelii, supra, 21 Cal.4th at p. 454, fn. omitted.) The court explained that "[s]ections 1025 and 1158 require the jury to determine whether the defendant 'has suffered' the prior convictions." (Id. at p. 455.) Additional determinations beyond whether the defendant has suffered the prior conviction, however, such as whether the prior conviction qualifies as a strike under the Three Strikes law, are for the court. (See Kelii, supra, at pp. 454, 455-457.)
Relevant to the portion of Kelii that defendant relies on in this case, the California Supreme Court sought to address "exactly what role the jury . . . play[s]" with respect to prior conviction allegations in view of an amendment to section 1025. (Kelii, supra, 21 Cal.4th at p. 458.) The court explained that the jury's role is to determine whether the defendant "suffered the prior . . . convictions. The court would, however, instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction. This procedure would appear to leave the jury little to do except to determine whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged." (Id. at pp. 458-459, italics added.) The court acknowledged that "[w]hether this role makes sense is not for us to say. If the Legislature wants to provide a greater, or more precisely defined, role for the jury, or chooses to eliminate the jury altogether as many states have done, it may still do so. In the meantime, we must interpret the amendment to section 1025 as we find it--narrowing but not entirely eliminating the jury's role." (Id. at p. 459.)
It is apparent that the italicized language quoted above from Kelii refers to the jury's determination of the authenticity of documents only with respect to the question of whether the defendant "suffered" the alleged prior convictions. (Kelii, supra, 21 Cal.4th at p. 459; see §§ 1025, subd. (b), 1158.) Neither section 1025, section 1158, nor Kelii is authority for the proposition that all authenticity questions concerning prior conviction records are to be determined by the jury.
In Epps, the California Supreme Court quoted the same portions of Kelii as we have cited above and stated further: "We see no reason to retreat from our conclusion in Kelii. It might be a rare case in which the question of authenticity, accuracy, or sufficiency of prior conviction records is seriously at issue, and depending on the circumstances, the question might well be for the court under the reasoning of . . . Kelii. Nevertheless, in an appropriate case, the defendant has a right under Penal Code sections 1025 and 1158 to a jury trial of those issues." (Epps, supra, 25 Cal.4th at p. 27, italics added.)
Relying on this passage from Epps, defendant contends that he was entitled to a jury trial on the issue of authenticity of the juvenile court petition. However, as is apparent from this passage in Epps, the California Supreme Court did not broaden the right to a jury trial to all authenticity questions implicated by a prior conviction allegation. Instead, the court made clear that the issue of authenticity may be for determination by the court "depending on the circumstances," or by the jury "in an appropriate case" as dictated by sections 1025 and 1158. (Epps, supra, 25 Cal.4th at p. 27; see, e.g., id. at p. 25 [in the "rare case" where "the records of the prior conviction may have been fabricated," the "question whether the alleged prior conviction ever occurred . . . remains for jury determination" under § 1025, subd. (b)].) As we have set forth above, sections 1025 and 1158 generally provide for a jury trial only on the issue of whether the defendant has "suffered" a prior conviction. (§§ 1025, subd. (b), 1158.)
In this case, a jury already determined in defendant's first trial that he suffered a prior juvenile adjudication based on court records that were admitted into evidence. (See People v. Smith, supra, H045505, at pp. 1, 14-15.) The only issue on retrial was whether defendant was at least 16 years old at the time of the juvenile offense, such that the prior juvenile adjudication may constitute a prior serious felony conviction and ultimately qualify as a strike. (§§ 667, subd. (d)(3)(A), 1170.12, subd. (b)(3)(A).) "[T]he court, not the jury" determines whether "a prior felony conviction qualifies as a 'serious felony' for purposes of the 'Three Strikes' law." (Kelii, supra, 21 Cal.4th at p. 454.) Although this determination by the trial court on retrial implicated an issue of authenticity regarding the juvenile court petition, this authenticity issue remained a question for the court.
In sum, neither Kelii nor Epps supports defendant's contention that he was entitled to a jury trial on the issue of the authenticity of the juvenile court petition, where that petition was being considered by the trial court to determine whether defendant was 16 years or older at the time of his prior juvenile offense. The other authorities cited by defendant - People v. McGee (2006) 38 Cal.4th 682 and People v. Jefferson (2007) 154 Cal.App.4th 1381 - likewise do not stand for the proposition that all authenticity issues regarding prior conviction records are for the jury to decide. We therefore find no err in the trial court's denial of defendant's request for a jury on retrial.
B. Failure to Allow Defendant to See Exhibit No. 91
Defendant contends that his rights under local court emergency rules, California law, and the federal Constitution were violated by the trial court's "refusal to make the prosecution provide [defendant] with[e]xhibit [No.] 91." He similarly contends that the prosecutor violated a local court emergency rule, California law, and the federal Constitution when the prosecutor "refused to show [the juvenile court petition] to him."
The Attorney General contends that defendant had a copy of exhibit No. 91, and that no violation of local, state, or federal provisions has been shown.
Defendant's arguments are premised on the assumption that his trial counsel never received a copy of the juvenile court petition that looked like the version in exhibit No. 91. The record on appeal, however, indicates that the prosecutor provided defendant with at least two copies of the juvenile court petition.
One copy of the petition, which was attached to the prosecutor's August 24, 2020 trial brief, had alterations on the face of the petition. At trial, the prosecutor acknowledged the alterations, but he did not know why the "extra characters" appeared on the petition when it was transmitted with the trial brief. As the court observed, alterations also appeared on the last page of the prosecutor's trial brief near the location where a signature line usually appears, as well as on the copy of the verdict form from the first trial that the prosecutor had attached to the trial brief.
Based on the unusual characters appearing in the trial brief and on the attached verdict form from the first trial, it would have been readily apparent to defendant, as well as commonsense, that the trial brief, the verdict form, and the juvenile court petition had been inadvertently altered during transmission by electronic service by staff in the prosecutor's office. Consistent with this interpretation of the record, we observe that defendant never raised the issue of alterations regarding any of these documents in his trial brief. Instead, the only argument he raised in his trial brief concerning the authenticity of anything was that the juvenile court petition was a faxed, noncertified copy. Further, at trial, defendant did not dispute the fact that the copy of the verdict form attached to the prosecutor's trial brief contained alterations not found on the original verdict form. As the inadvertent alterations to the verdict form were readily apparent to defendant's trial counsel, as well as the inadvertent alterations to the prosecutor's trial brief, so too must have been the inadvertent alterations to the juvenile court petition attached to the same trial brief. Moreover, to the extent the alterations in the trial brief, on the verdict form, and on the juvenile court petition attached to the prosecutor's trial brief created some confusion on the part of defendant's trial counsel, counsel could have asked the prosecutor for clarification before trial.
Significantly, however, the prosecutor indicated in a declaration that he had earlier sent another copy of the juvenile court petition to defense counsel prior to trial on August 21, 2020. Unlike the trial brief, which was served "by 'ediscovery by Karpel site'" (bold omitted), this copy of the juvenile petition was e-mailed directly from the prosecutor to defendant's trial counsel. Nothing in the record on appeal indicates that this copy of the petition was altered or otherwise affected as the version that had been attached to the prosecutor's trial brief had been.
In sum, the record on appeal indicates that defendant received two copies of the juvenile court petition on August 21 and 24, 2020, and that the latter August 24, 2020 copy was obviously irregular in the same manner as the prosecutor's trial brief and the copy of the verdict form which had been electronically transmitted "by 'ediscovery by Karpel site'" to defense counsel at the same time. (Bold omitted.) However, there is no indication in the record on appeal that the earlier August 21, 2020 copy of the juvenile court petition, which was transmitted to defendant's trial counsel by different means, had any irregularities on its face due to the method of transmission by direct e-mail. In view of this record on appeal, where it appears that defendant's trial counsel received a copy of the juvenile court petition that was unaffected by the electronic transmission process, defendant fails to show (1) error-under local rule, California law, or the federal Constitution-by the trial court in its purported "refusal to make the prosecution provide [defendant] with[e]xhibit [No.] 91," or (2) prejudice from the trial court's purported error. (See People v. Garza (2005) 35 Cal.4th 866, 881 ["a judgment is presumed correct," and appellant "must affirmatively demonstrate prejudicial error"]; accord, People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We similarly find no merit, based on the record on appeal, in defendant's contentions that the prosecutor committed misconduct by purportedly "hid[ing] the ball" and "sideswip[ing]" him at trial with the juvenile court petition contained in exhibit No. 91, "mislead[ing]" him about the evidence it intended to introduce at trial, and "[s]pringing . . . inculpatory evidence" upon him without prior notice.
We do not find defendant's attacks on the record persuasive. First, defendant contends that the prosecutor's August 21, 2020 e-mail, which transmitted the first copy of the petition to defendant's trial counsel, "does not show counsel's e-mail address" that the prosecutor sent the e-mail to. Defendant acknowledges, however, that the prosecutor's accompanying declaration to the e-mail states that he (the prosecutor) sent the e-mail to reasecriminaldefense@gmail.com, which defendant acknowledges "is [his trial] counsel's e-mail address." We determine that the prosecutor's statement, in a declaration signed under penalty of perjury, that he sent the e-mail to the specified e-mail address of defendant's trial counsel sufficiently establishes that fact.
Second, defendant argues that although the record on appeal contains the prosecutor's August 21, 2020 e-mail to defendant's trial counsel, the juvenile court petition that was purportedly attached to the e-mail is not included in the record on appeal. Again, however, the record on appeal contains the prosecutor's accompanying declaration, signed under penalty of perjury, stating that he "forwarded a courtesy copy of the [juvenile court] Petition to Defense Counsel by way of Email addressed to his email address .... (See Exhibit 1)." The e-mail attached to the prosecutor's declaration indicates that the following document was included as an "[a]ttachment[]" to the e-mail: "San Joaquin County Petition-Smith.pdf." The prosecutor's declaration and the e-mail sufficiently establish that the juvenile court petition was attached to the prosecutor's August 21, 2020 e-mail to defendant's trial counsel.
Third, defendant contends that when his trial counsel objected at trial to having never seen exhibit No. 91, the prosecutor did not respond by saying, for example, that he had served counsel with it. Instead, the prosecutor indicated that counsel needed to be in court that day to get a copy of it. Defendant argues that the prosecutor's "statements and actions at trial do not comport with [the prosecutor's] later declaration" that he had e-mailed the juvenile court petition to defendant's trial counsel before trial on August 21, 2020.
We are not persuaded by defendant's argument. At trial, defendant's trial counsel was complaining about exhibit No. 91, which the prosecutor sought to introduce into evidence and which the trial court had in its possession. To see that particular exhibit, which the trial court had in its possession, counsel would necessarily need to be in court. To the extent defendant is suggesting that the prosecutor falsely stated in a declaration under penalty of perjury that he e-mailed a copy of the juvenile court petition to defense counsel on August 21, 2020, defendant's suggestion is not supported by sufficient evidence in the record.
C. Trial Court's Denial of Defendant's Request for a Trial Continuance Defendant contends that during trial, the trial court "unreasonably abused its discretion by denying a brief continuance."
A continuance in a criminal proceeding "shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) Defendant and trial counsel must demonstrate that they prepared for trial with due diligence. (People v. Riggs (2008) 44 Cal.4th 248, 296.) A trial court has broad discretion in determining whether good cause exists for a continuance. (Ibid.)
As we have explained, the record indicates that defendant's trial counsel had a copy of the juvenile court petition on August 21, 2020, which was prior to trial, and there is no evidence in the record to indicate that this copy was altered or that it was otherwise not an identical copy of the petition contained in exhibit No. 91. Thus, although defendant argues on appeal that a brief continuance of trial was warranted here because "all the prosecution had to do was press 'send'" to give defendant a copy of the juvenile court petition, the record indicates that defendant already had an identical copy of the petition as of August 21, 2020.
Further, the trial court was aware that defendant's trial counsel had at least the copy of the juvenile court petition that was attached to the prosecutor's August 24, 2020 trial brief. While that copy contained alterations, as we have explained the alterations were readily apparent and not unlike the alterations to the trial brief itself and to the other exhibit-the verdict form-which was also attached to the prosecutor's trial brief. Rather than seeking clarification from the prosecutor prior to trial about these clearly altered copies, as the court readily did so itself during trial, or raising the issue in defendant's own trial brief, trial counsel instead waited until trial to raise the issue and seek a continuance. We cannot conclude that this showed diligence on counsel's part. Nonetheless, the trial court did offer a brief continuance to allow defendant's trial counsel to come to court that day to examine exhibit No. 91. Although defense counsel declined due to unspecified health reasons, he made no request to have the document resent to him, nor did he otherwise indicate when he, or someone on his behalf, would be able to come into court to review the exhibit. On this record, no abuse of discretion has been shown by the court in offering only a short continuance.
D. Authenticity of Exhibit No. 91 (Juvenile Court Petition)
Defendant contends that the juvenile court petition in exhibit No. 91 was not shown to be authentic, and therefore the petition was inadmissible. He argues that the juvenile court petition was a faxed, noncertified copy, and neither defense counsel nor the prosecutor located the original court file or obtained a certified copy of the petition. In the absence of the admission of the juvenile court petition, defendant contends that there was not substantial evidence to support a finding that he was at least 16 years old when he committed the juvenile offense.
The Attorney General contends that the trial court did not abuse its discretion in admitting exhibit No. 91.
"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).)
A writing must be authenticated before it may be admitted into evidence. (Evid. Code, § 1401.) "Authentication is to be determined by the trial court as a preliminary fact ([Evid. Code,] § 403, subd. (a)(3)) and is statutorily defined as 'the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is' or 'the establishment of such facts by any other means provided by law' ([Evid. Code,] § 1400)." (Goldsmith, supra, 59 Cal.4th at p. 266.)
One method of authenticating a copy of a writing is by certification. (People v. Gonzalez (2019) 42 Cal.App.5th 1144, 1149.) An "attested or certified" copy "must state in substance" in the attestation or certificate "that the copy is a correct copy of the original." (Evid. Code, § 1531; see People v. Skiles (2011) 51 Cal.4th 1178, 1186 (Skiles).) "[A] certified copy of an official writing 'is prima facie evidence of the existence and content of such writing or entry.'" (Skiles, supra, at p. 1186.) On the other hand, "a noncertified copy, by itself, is not reliable enough to constitute such prima facie evidence." (Id. at p. 1187.)
However, authenticity may be established by methods other than certification. (Skiles, supra, 51 Cal.4th at p. 1187.) "For example, a writing can be authenticated by circumstantial evidence and by its contents. [Citations.]" (Ibid.) The necessary proof to authenticate a writing "varies with the nature of the evidence that the [writing] is being offered to prove and with the degree of possibility of error. [Citation.] . . . The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 267.)
"Under the secondary evidence rule, the content of a writing may now be proved either 'by an otherwise admissible original' ([Evid. Code,] § 1520) or by 'otherwise admissible secondary evidence' ([Evid. Code,] § 1521, subd. (a) . . .)." (Goldsmith, supra, 59 Cal.4th at p. 269.) However, "[t]he secondary evidence rule does not 'excuse[] compliance with Section 1401 (authentication).' ([Evid. Code,] § 1521, subd. (c).) '[T]o be "otherwise admissible," secondary evidence must be authenticated.' (. . . [S]ee [Evid. Code,] § 1401, subd. (b) ['Authentication of a writing is required before secondary evidence of its content may be received in evidence.'].)" (Id. at p. 271.)
The record reflects that on retrial, the parties and the trial court understood that the prosecutor would be relying on the exhibits that had previously been admitted in the first trial, along with exhibit No. 91, which contained a copy of the juvenile court petition. Relevant here, the previously admitted exhibits included "certified copies of records from juvenile proceedings in 1989," including "a minute order from a contested jurisdictional hearing on July 14, 1989....[¶] The jurisdictional minute order was issued by the San Joaquin County Juvenile Court. The minute order reflects that a Welfare and Institutions Code section 602 petition dated June 20, 1989, alleged that defendant violated sections 212.5 and 12022.5 (count 1); sections 211 and 12022, subdivision (a) (count 2); and Vehicle Code section 10851 (count 3). The minute order lists defendant's age as 16 but does not state defendant's date of birth or the date of the offenses. The minute order reflects that the juvenile court sustained the allegations in count 1, dismissed count 2 at the prosecution's request, and dismissed count 3 after finding it not true. The court ordered the petition and all proceedings transferred to Monterey County for disposition ...." (People v. Smith, supra, H045505, at p. 8, italics added.)
Consistent with this information in the certified copy of the jurisdictional minute order, the juvenile court petition contained in exhibit No. 91 indicates: (1) that the petition was submitted to San Joaquin County Superior Court; (2) that the petition was filed in that court on June 20, 1989; (3) that the petition pertains to Welfare and Institutions Code section 602; (4) that the minor allegedly violated sections 212.5 and 12022.5 (count 1), sections 211 and 12022, subdivision (a) (count 2), and Vehicle Code section 10851 (count 3); and (5) that the minor's age by the time of the filing of the petition was 16 years old.
In addition to the fact that the juvenile court petition's contents correspond to the information reflected in the certified copy of the jurisdictional minute order, other evidence in the record supports the trial court's finding of authenticity regarding the juvenile court petition. Specifically, the prosecutor included within exhibit No. 91 a declaration explaining that he had received the juvenile court petition directly from San Joaquin County Superior Court after he had requested a copy of the petition. The prosecutor's declaration included copies of his letter requesting the petition and the superior court's fax coversheet sending back a copy of the petition. The prosecutor explained in his declaration that, although the court initially indicated a certified copy would be provided upon payment, the court later indicated that it could not provide a certified copy of the petition because defendant's case had been transferred to Monterey County Superior Court. The record thus reflects that the copy of the juvenile court petition offered by the prosecutor was obtained directly from San Joaquin County Superior Court and, consistent with the certified jurisdictional minute order, the reason the petition could not be certified was because San Joaquin County Superior Court had transferred the case to Monterey County Superior Court.
Given that (a) the contents of the noncertified juvenile court petition - including the filing date, location of the court, type of petition, number of counts alleged, and the five particular code sections allegedly violated by the minor - matched the information contained in the certified jurisdictional minute order, and (b) there was uncontradicted evidence that the petition was obtained directly from San Joaquin County Superior Court where the petition was originally filed, we determine that the trial court did not abuse its discretion in determining the authenticity of the copy of the petition and admitting it into evidence. (See Skiles, supra, 51 Cal.4th at p. 1187 ["a writing can be authenticated by circumstantial evidence and by its contents"].)
We are not persuaded by defendant's contention that the contents or circumstances of the juvenile court petition call into question its authenticity. For example, defendant observes that the petition, in the upper portion on page one, has "several blanks" where information must be filled in regarding the date and time of a court hearing on the petition and the signature of the court clerk. Based on our review of the petition, however, it appears that these portions must be filled in after the petition has been presented to the court for filing by the petitioner, the district attorney.
Defendant also contends that because San Joaquin County Superior Court was unable to provide a certified copy of the petition due to the transfer of the file to Monterey County Superior Court, this fact necessarily establishes that the juvenile court petition contained in exhibit No. 91 is not a true and correct copy of the original document. As we have explained, however, the lack of, or inability to obtain, certification does not mean that a document cannot be authenticated. As in this case, "a writing can be authenticated by circumstantial evidence and by its contents." (Skiles, supra, 51 Cal.4th at p. 1187.)
Defendant also contends that exhibit No. 91 was inadmissible because the prosecutor "failed to present evidence satisfying [Evidence Code section 1280's] foundational requirements" and therefore the trial court's "holding that it satisfied section 1280's requirements was erroneous." Evidence Code section 1280 is the official records exception to the hearsay rule. (See People v. Martinez (2000) 22 Cal.4th 106, 119.) Defendant did not raise a hearsay objection below or otherwise contend that exhibit No. 91 did not satisfy the requirements of Evidence Code section 1280. Instead, below and on appeal, we understand defendant's argument to be that the trial court should not have admitted the juvenile court petition because it was not certified and because there was no other evidence establishing the authenticity of the petition. As we have explained, the trial court did not abuse its discretion in finding sufficient evidence of authenticity and admitting the petition into evidence.
Evidence Code section 1280 states: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness." "Under the law of the case doctrine, when an appellate court' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal ...."' [Citation.] Absent an applicable
In sum, the juvenile court petition was properly admitted into evidence. The petition establishes that defendant's date of birth is March 23, 1973, and, along with the other certified records previously admitted into evidence, establishes that he committed the violations of section 212.5 and 12022.5 on June 15, 1989, when he was 16 years old. We therefore determine that substantial evidence supports the finding that defendant's prior juvenile adjudication qualified as a strike. (§§ 667, subd. (d)(3)(A), 1170.12, subd. (b)(3)(A).)
E. Use of Defendant's Juvenile Adjudication as a Strike Prior
Defendant raises several claims regarding the use of his juvenile adjudication as a strike prior. First, he contends that the use of the juvenile adjudication violated his Sixth and Fourteenth Amendment rights to a trial and due process because his age was not found by a prior jury, nor did he admit it. Second, defendant argues that use of the juvenile adjudication violated his Sixth and Fourteenth Amendment rights to a jury trial and proof beyond a reasonable doubt because he did not have the right to a jury trial in the juvenile proceeding. Third, he contends that the use of the juvenile adjudication violated his Fourteenth Amendment right to due process because it contravened the state's promise that the juvenile system's primary purpose is to provide care, treatment, and guidance with the goal of rehabilitation. Defendant acknowledges that this court rejected all of these arguments in his prior appeal. He states that he has "reiterate[d] the argument[s] here in summary form to preserve [them] for California Supreme Court and federal court review."
The Attorney General does not address defendant's arguments anew and instead relies on the doctrine of the law of the case. exception, the doctrine 'requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 246 (Barragan).)
As defendant does not present any new argument in this appeal regarding purported federal constitutional violations due to the use of his juvenile adjudication as a strike prior, we adhere to the reasoning set forth in our opinion regarding defendant's prior appeal and again reject defendant's same contentions here. (People v. Smith, supra, H045505, at pp. 7-8, 10-13, 16-17; see Barragan, supra, 32 Cal.4th at p. 246.)
F. Double Jeopardy
Defendant contends that the retrial of the strike allegation violated his state and federal constitutional rights against double jeopardy. The Attorney General contends that defendant's argument is contrary to binding precedent.
In Barragan, the California Supreme Court explained that double jeopardy principles do not bar retrial of a prior conviction allegation. (Barragan, supra, 32 Cal.4th at pp. 241-242; see also id. at pp. 244, 254.) The California Supreme Court's discussion in Barragan was based on the United States Supreme Court's opinion in Monge v. California (1998) 524 U.S. 721 (Monge), which held that "the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context." (Monge, supra, at p. 734; see Barragan, supra, at p. 241.)
Defendant contends that the United States Supreme Court's holding in Monge has been "seriously undermined" by more recent Supreme Court decisions. However, it is the" '[United States Supreme] Court's prerogative alone to overrule one of its precedents.' [Citations.]" (Bosse v. Oklahoma (2016) 580 U.S. 1, 3, italics added (Bosse).) In other words, United States Supreme Court "decisions remain binding precedent until [that court] see[s] fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality." (Hohn v. United States (1998) 524 U.S. 236, 252-253; accord, Bosse, supra, at p. 3.)
Accordingly, based on Monge, supra, 524 U.S. at page 734 and Barragan, supra, 32 Cal.4th at pages 241 to 242, we reject defendant's contention that the retrial of his prior conviction allegation violated double jeopardy principles. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
G. Amended Section 1170
Defendant was sentenced to the upper term on several counts. On appeal, he contends that Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill No. 567) amendment of section 1170, which made the middle term the presumptive sentence unless certain circumstances exist, applies retroactively to him. He argues that the matter must be remanded for resentencing and that the punishment on those counts must be reduced to the middle term.
The Attorney General concedes that amended section 1170 applies retroactively to defendant. The Attorney General contends, however, that remand for resentencing is unnecessary because the record indicates that the trial court would impose the same sentence under the amended statute.
1. Trial Court Proceedings
At the original sentencing hearing in 2018, the trial court denied defendant's motion to strike his prior strike. The court proceeded to sentence defendant as follows:
The trial court designated count 3, assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), as the principal term. The court found the following factors in aggravation: (1) "prior convictions as an adult and sustained petitions are numerous and of increasing seriousness," (2) "served prior prison terms," and (3) "prior performance on probation or parole [h]as been unsatisfactory." The court found no factors in mitigation. The court imposed the upper term of four years on count 3, doubled to eight years based on defendant's prior strike, plus a consecutive three-year term for the great bodily injury enhancement.
Regarding count 4, dissuading a witness (§ 136.1, subd. (b)(1)), the trial court stated that it was exercising its discretion to impose a consecutive term and, pursuant to section 1170.15 imposed the full middle term of two years, doubled to four years based on defendant's prior strike, plus a consecutive two-year term for the on-bail enhancement.
Regarding count 1, involuntary manslaughter (§ 192, subd. (b)), and count 2, battery with serious bodily injury (§ 243, subd. (d)), the trial court weighed "the same factors in aggravation and mitigation" and, pursuant to former section 654, stayed upper terms of four years each, doubled to eight years each based on defendant's prior strike. The court also imposed a consecutive one-year term for defendant's prior prison term enhancement, but the enhancement allegation was stricken on resentencing in 2020, following defendant's first appeal.
2. Analysis
As amended effective January 1, 2022, section 1170(b) provides in relevant part: "(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) The 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 the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial....[¶] (3) Notwithstanding paragraphs (1) and (2), 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...." (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038.)
As this case is not yet final, defendant is entitled to the retroactive application of section 1170(b) as amended by Senate Bill No. 567 because the amendment is ameliorative and nothing in Senate Bill No. 567 indicates that the Legislature intended the amendment to apply solely prospectively. (See, e.g., People v. Flores, supra, 73 Cal.App.5th at p. 1039; People v. Garcia (2022) 76 Cal.App.5th 887, 902; see People v. Frahs (2020) 9 Cal.5th 618, 627-630.)
As we have set forth above, the trial court imposed the upper term on counts 1, 2, and 3 based on defendant's (1) "prior convictions as an adult and sustained petitions [that] are numerous and of increasing seriousness," (2) "prior prison terms," and (3) "prior performance on probation or parole [that] [h]as been unsatisfactory." On appeal, we understand defendant to contend that the court's references to (1) numerous prior convictions and sustained petitions, (2) prior prison terms, and (3) unsatisfactory prior performance on probation or parole are "now-proscribed factors to impose the upper term[]" under amended section 1170(b), and therefore the matter must be remanded for resentencing.
The Attorney General concedes that "these aggravated circumstances were not stipulated to by [defendant] or found true beyond a reasonable doubt" by the factfinder. The Attorney General contends, however, that the error is harmless because the factfinder "would have found beyond a reasonable doubt the aggravating circumstances [the court] relied upon to impose the aggravated term." In making this argument, the Attorney General relies on the probation report, which indicates that defendant's criminal history started in 1992, and includes seven prior felony convictions, multiple prior state prison commitments, and multiple violations of probation and/or parole. The Attorney General also contends that defendant's crimes reflect increasing seriousness and violence, including the death of the victim in the current case. The Attorney General contends that the probation report was based on various "source documents," and that defendant at sentencing did not dispute the accuracy of the probation report regarding his criminal history. The Attorney General argues that given the three factors in aggravation and the absence of any factor in mitigation, the error was harmless and remand under amended section 1170 is unwarranted.
As an initial matter, we observe that the Courts of Appeal have reached conflicting conclusions about the test(s) to be applied in determining whether there is harmless error when the defendant is sentenced under the former version of section 1170, but the amended version applies retroactively to the defendant. (See, e.g., People v. Flores (2022) 75 Cal.App.5th 495, 500-501 (Flores) [error is harmless if reviewing court determines, beyond a reasonable doubt, that the jury would have found, beyond a reasonable doubt, at least one aggravating circumstance true]; People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11 (Lopez) [error is harmless if "reviewing court can conclude beyond reasonable doubt that a jury would have found true beyond a reasonable doubt all of the aggravating factors on which the trial court relied"; if not, reviewing court must then determine whether it is reasonably probable "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"]; People v. Dunn (2022) 81 Cal.App.5th 394, 409-410 ["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 not, reviewing court must then determine "(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" (fn. omitted)], petn. for review pending, petn. filed Aug. 22, 2022; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1112 (Zabelle) [reviewing court must first determine beyond a reasonable doubt that "jury would have found true at least one of the aggravating circumstances that the trial court relied on," and then second, determine whether, if the trial court relied on other aggravating circumstances, "it is reasonably probable that the trial court would have chosen a lesser sentence in the absence of the error," which requires determining "for each aggravating fact, . . . whether it is reasonably probable that the jury would have found the fact not true" and "then, with the aggravating facts that survive this review, . . . whether it is reasonably probable that the trial court would have chosen a lesser sentence had it considered only these aggravating facts"].) We need not resolve this conflict regarding which harmless error test(s) apply when the trial court has sentenced the defendant under the former version of section 1170 instead of under the current version. Under any test, we determine that the matter must be remanded for resentencing for the following reasons.
First, regarding the Attorney General's contention that defendant's criminal history was set forth in the probation report, which in turn was based on various "source documents," it is not apparent from the record which parts of defendant's criminal history recited in the probation report originated from which particular source document, and the Attorney General has not established the reliability of any of the sources for the relevant information at issue. (See Zabelle, supra, 80 Cal.App.5th at p. 1115, fn. 6 [where "the record is insufficient to support a trial court's findings about a defendant's criminal history, we will not presume the existence of extra-record materials, however likely they are to exist, to address this insufficiency"]; but see Flores, supra, 75 Cal.App.5th at p. 501 [appellate court determined beyond a reasonable doubt that jury would have found at least one aggravating circumstance true, in view of probation report's recitation of the defendant's criminal history, which was "information that is readily available from official records"].)
Second, although the record reflects that the trial court denied defendant's motion to strike his prior strike, and imposed the upper term or a consecutive term to the fullest extent possible, we also observe that the court made the following statements to defendant at sentencing: "I thought long and hard about your case," "I think most of your behavior for many years has been motivated by drugs," "For you personally, I find this to be a very tragic situation," and "It doesn't do me any pleasure to send you away like this."
Regarding whether the case must be remanded, we observe that" '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) In such circumstances, the California Supreme Court has held that "the appropriate remedy is to remand for resentencing 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.' [Citations.]" (Ibid.)
Senate Bill No. 567 altered the scope of the trial court's sentencing discretion under section 1170, subdivision (b). It is not clear from the record, including in light of the trial court's comments during sentencing, the weight that the court was placing on the three factors in sentencing defendant to the upper term. "The trial court gave no particular weight to any of its listed aggravating circumstances. Nor did it indicate whether its decision to impose the upper term was (or was not) a close call." (Zabelle, supra, 80 Cal.App.5th at p. 1115; see also Lopez, supra, 78 Cal.App.5th at p. 468 ["trial court offered no indication that it would have selected an upper term sentence even if only a single aggravating factor or some subset of permissible factors were present"].) Accordingly, because the record does not" 'clearly indicate[]'" that the court would have imposed the upper term despite the amendment to section 1170, subdivision (b), we will remand the matter for resentencing. (Gutierrez, supra, 58 Cal.4th at p. 1391.)
H. Amended Section 654
Defendant contends that the matter must be remanded for resentencing so that the trial court may exercise its discretion under recently amended section 654 to determine which counts - 1, 2, or 3 - to stay. The Attorney General concedes that amended section 654 applies retroactively to defendant, but argues that "the trial court clearly indicated its intent to impose the maximum sentence" and therefore remand for resentencing under the amended statute is not required.
Section 654 prohibits multiple punishment for a single act or omission. (See People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of defendant's sentencing, section 654 required the trial court to punish defendant "under the provision that provide[d] for the longest potential term of imprisonment." (§ 654, former subd. (a).)
Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) to give the trial court discretion to select the provision under which the defendant would be punished. As relevant here, section 654 now provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.)
The amendment of section 654 effected an ameliorative change to the law as trial courts are no longer required to impose sentence under the provision that provides for the longest term of imprisonment when a defendant is convicted of multiple crimes for a single act or omission. Thus, as the parties agree, defendant is entitled to the retroactive application of amended section 654 because there is no indication that the Legislature intended the law to apply prospectively only, and this case is not yet final on appeal. (See, e.g., People v. Mani (2022) 74 Cal.App.5th 343, 379-380; People v. Sek (2022) 74 Cal.App.5th 657, 673-674; People v. Mendoza (2022) 74 Cal.App.5th 843, 861-862.)
Defendant observes that in this case, the trial court punished him on count 3, which included a great bodily injury enhancement, while staying the lesser punishments on counts 1 and 2 pursuant to former section 654. He contends that the case must be remanded for resentencing under amended section 654, so that the court may exercise its discretion to punish defendant on any one of the three counts and stay punishment on the other two counts.
The Attorney General contends that "there is no possibility" the trial court would exercise its discretion to reduce defendant's sentence. In making this argument, the Attorney General observes that the court denied defendant's motion to strike his prior strike and imposed upper terms and a consecutive term where possible.
As we have similarly explained regarding amended section 1170, we determine that the record is not so clear regarding whether the trial court would exercise its discretion and impose the same sentence under amended section 654, particularly in view of the trial court's comments at sentencing. We will therefore remand the matter for resentencing under amended section 654.
IV. DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for resentencing under amended Penal Code sections 1170 and 654. Upon resentencing, the abstract of judgment must reflect that the two-year on-bail enhancement to count 4 was imposed under Penal Code section 12022.1, subdivision (b).
WE CONCUR: DANNER, J. WILSON, J.
Danner, J., concurring.
I agree with the majority opinion's treatment of Smith's claims regarding the denial of his motion for a jury trial (maj. opn., ante, at pp. 11-15), the failure to allow him to see exhibit No. 91 (id. at pp. 15-18), the denial of his request for a trial continuance (id. at pp. 19-20), the authenticity and admissibility of exhibit No. 91 (id. at pp. 20-25), the purported double jeopardy bar to his retrial (id. at pp. 26-27), and the need to remand the matter for resentencing under current Penal Code sections 1170 and 654 (maj. opn., ante, at pp. 28-34).
Regarding Smith's challenge to the use of his juvenile adjudication as a strike prior on constitutional grounds (maj. opn., ante, at pp. 25-26), I believe it is far less clear than this court apparently did in People v. Smith (Apr. 14, 2020, H045505) (nonpub. opn.), at p. 14 (Smith I), that Smith did not have a right under the Sixth and Fourteenth Amendments to a jury determination of whether he was 16 years or older when he committed the offense reflected in the strike allegation. (See People v. Gallardo (2017) 4 Cal.5th 120, 136; see also Descamps v. United States (2013) 570 U.S. 254, 269-270.) Nevertheless, I agree that law of the case principles preclude relitigation of that issue in this appeal. (See People v. Alexander (2010) 49 Cal.4th 846, 870-871; People v. Boyer (2006) 38 Cal.4th 412, 441-442.) With the understanding that the disposition does not entail endorsement of the analysis in Smith I, at p. 14 on this point, I join the majority opinion.