Opinion
H051075
07-19-2024
THE PEOPLE, Plaintiff and Respondent, v. ELOY TORRES GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 22CR000061)
WILSON, J.
Defendant Eloy Torres Gonzalez was convicted by a jury of multiple drug and firearm offenses and was sentenced to a total term of 16 years and 4 months in prison. On appeal, Gonzalez argues that the trial court erred in selecting an upper term sentence on one of his convictions. We agree that Gonzalez is entitled to resentencing under the current version of Penal Code section 1170, subdivision (b)(2). Accordingly, we will reverse the judgment and remand for the limited purpose of resentencing.
Unspecified statutory references are to the Penal Code.
I. Factual and Procedural Background
We omit a recitation of the facts underlying Gonzalez's offenses as they are not relevant to or necessary for resolving his appeal.
On March 13, 2023, the Monterey County District Attorney filed a consolidated information charging Gonzalez with two felony counts of possession of methamphetamine for sale (Health & Saf. Code, § 11378; counts 1, 9); one felony count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2); one felony count of possession of fentanyl for sale (Health & Saf. Code, § 11351; count 3); two felony counts of possessing a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); counts 4, 7); two felony counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 5, 8); one felony count of possession of ammunition by a felon (§ 30305, subd. (a)(1); count 6); one felony count of possession of heroin for sale (Health & Saf. Code, § 11351; count 10); one felony count of possession of cocaine for sale (Health & Saf. Code, § 11351; count 11); and two misdemeanor counts of resisting a peace officer (§ 148, subd. (a)(1); counts 12, 13).
The consolidated information also alleged various sentencing enhancements, specifically that Gonzalez was personally armed with a firearm in connection with counts 1, 2, 3, 6, 10, and 11 (§ 12022, subd. (c)), that Gonzalez was in possession of a statutorily excessive quantity of methamphetamine in connection with counts 1, 2, and 9 (former § 1203.073, subd. (b)(1)), and also that Gonzalez committed counts 7 through 11 while he was out of custody on bail (§ 12022.1, subd. (b)).
At the conclusion of a trial on the aforementioned charges, the jury found Gonzalez guilty on all eleven felony counts (counts 1 through 11) and also found true that he was personally armed with a firearm in connection with counts 1, 2, 3, 9, 10, and 11. Gonzalez admitted the out-on-bail enhancements alleged in connection with counts 7 through 11. The jury did not reach a verdict on the two misdemeanor charges of resisting a peace officer (counts 12, 13), and the court declared a mistrial on those two counts.
The consolidated information alleged this enhancement in connection with count 6, possession of ammunition by a felon (§ 30305, subd. (a)(1)). The trial court initially instructed the jury that if it found Gonzalez "guilty of the crimes charged in [c]ounts 1, 2, 3, 6, 10, or 11," it should then decide whether he was armed with a firearm when committing those offenses. The trial court subsequently informed the jury that it had "misspoke[n]" and that the "personally armed with a firearm" allegation applied to count 9, not count 6. Gonzalez did not object to the trial court's reinstruction or the jury's finding that he was personally armed with a firearm while committing count 9, nor does he raise it as an issue on appeal.
On May 17, 2023, the trial court sentenced Gonzalez to a total term of 16 years and 4 months, as follows: (1) the upper term of four years on count 3 (Health &Saf. Code, § 11351) plus a consecutive upper term of five years for the associated arming enhancement (§ 12022, subd. (c)); (2) concurrent middle terms of two years on count 1 and count 9 (Health &Saf. Code, § 11378) plus concurrent middle terms of four years for each of the associated arming enhancements (§ 12022, subd. (c)); (3) a consecutive term of one year (one-third the middle term) on count 2 (Health &Saf. Code, § 11379); (4) concurrent middle terms of three years on count 4 and count 7 (Health &Saf. Code, § 11370.1, subd. (a)); (5) consecutive eight-month terms (one-third the middle terms) on count 5 (§ 29800), count 6 (§ 30305, subd. (a)(1)); and count 8 (§ 29800, subd. (a)(1)); (6) a concurrent middle term of two years on count 9 (Health &Saf. Code, § 11378) plus a concurrent middle term of four years on the associated arming enhancement (§ 12022, subd. (c)); (7) a concurrent middle term of three years on count 10 (Health &Saf. Code, § 11351) plus a concurrent middle term of four years on the associated arming enhancement (§ 12022, subd. (c)); (8) a consecutive one year term (one-third the middle term) on count 11 (Health &Saf. Code, § 11351) plus a consecutive term of one year four months (one-third the middle term) on the associated arming enhancement (§ 12022, subd. (c)); and (9) a consecutive term of two years for the out-on-bail enhancement (§ 12022.1, subd. (b)). The court dismissed counts 12 and 13 in the interests of justice (§ 1385).
In imposing upper term sentences on count 3 and its associated arming enhancement, the trial court noted the following aggravating factors: (1) Gonzalez's prior convictions are "of increasing seriousness" (Cal. Rules of Court, rule 4.421(b)(2)); (2) Gonzalez "has served prior prison terms" (rule 4.421(b)(3)); and (3) Gonzalez's unsatisfactory "prior performance on probation" (rule 4.421(b)(5)). The trial court did not identify any applicable mitigating factors.
Unspecified rule references are to the California Rules of Court.
The Attorney General acknowledges that the trial court's description of Gonzalez's criminal history did not entirely comport with that set forth in the probation report. The trial court said that Gonzalez was sentenced to "16 months state prison" for his 2020 offense but the probation report reflects that this term was served in "[j]ail." Because certified records of Gonzalez's convictions are not part of the record on appeal, we have no way to resolve this discrepancy.
The trial court imposed a $1,000 restitution fund fine (§ 1202.4, subd. (b)), a parole violation restitution fund fine of $1,000 (§ 1202.45) (stayed pending successful completion of parole), a $50 crime lab fine (Health &Saf. Code, § 11372.5, subd. (a)), a $150 drug program fine (Health &Saf. Code, § 11372.7, subd. (a)), a $440 court operations assessment (§ 1465.8) and a $330 court facilities assessment (Gov. Code, § 70373). The trial court awarded 689 custody credits, consisting of 345 actual days plus 344 days of conduct credits.
Gonzalez timely appealed.
II. Discussion
Gonzalez argues that the trial court erred in imposing upper term sentences on count 3 and the associated firearm enhancement based on his prior convictions because he did not admit any of those convictions and no certified records of the convictions were submitted to the court. The Attorney General counters that Gonzalez has forfeited this argument by failing to raise it below, and alternatively, that the error was harmless.
We note that the Attorney General does not contest the question of error in this case, and rightly so. The trial court found that the aggravating factors applied but there is nothing in the record to show that it had certified copies of the records of Gonzalez's prior convictions. Because the Legislature required the court to use certified records in order to "consider the defendant's prior convictions" for sentencing purposes (§ 1170, subd. (b)(3)), the trial court erred in basing its selection of the upper term sentence without those documents. Accordingly, we consider only whether Gonzalez has forfeited the claim of error and, if not, whether he was prejudiced.
A. Forfeiture
The Attorney General cites People v. Scott (1994) 9 Cal.4th 331 for the proposition that, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Id. at p. 356.) In his reply, Gonzalez argues that forfeiture does not apply because his sentence was unauthorized.
"[A]n unauthorized sentence or one in excess of jurisdiction is a sentence that 'could not lawfully be imposed under any circumstance in the particular case.' [Citation.] The appellate court may intervene in the first instance because these errors 'present[] "pure questions of law" [citation], and [are]" 'clear and correctable' independent of any factual issues presented by the record at sentencing"' and without 'remanding for further findings.' [Citation.] The rule exists because correction of sentencing error that is evident from the record and needing no redetermination of facts does not significantly impact the state's interest in finality of judgments. [Citation.] 'In such circumstances, an individual's interest in obtaining judicial review of an allegedly illegal sentence cannot be ignored.' [Citation.]" (In re G.C. (2020) 8 Cal.5th 1119, 1130.)
Gonzalez does not raise a pure question of law in a situation where the sentence could not have been imposed under any circumstance. Instead, he asserts that the trial court failed to comply with section 1170, subdivision (b)(3)'s requirement that an upper term sentence based on prior convictions must be "based on a certified record of conviction." The imposition of the upper term on his conviction for possession of fentanyl for sale in this situation does not constitute an unauthorized sentence.(See People v. Achane (2023) 92 Cal.App.5th 1037, 1044 [no unauthorized sentence where trial court imposed the upper term despite allegedly not complying with amendments to section 1170, subdivision (b) that were already in effect].)
The relevant amendments to section 1170, subdivision (b) went into effect on January 1, 2022. (Stats. 2021, ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(1) & (2).) Gonzalez's sentencing was on May 17, 2023, more than 16 months later.
Nevertheless, we need not decide whether forfeiture occurred under the circumstances presented in this case. The California Supreme Court has made clear that, "[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.]" (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) There is no dispute the trial court did not possess certified records of Gonzalez's convictions and thus could not have based its sentencing decision on those records. Even if Gonzalez's failure to object constituted forfeiture, we use our discretion to decide whether the sentencing error was harmless. (People v. Ruiz (2023) 97 Cal.App.5th 1068, 1076.)
B. The error was not harmless
1. Applicable legal principles
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment absent the existence of certain specified circumstances. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subds. (b)(1) &(2).) The amended statute now provides that a trial 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." (§ 1170, subd. (b)(2).) Subdivision (b)(3) of section 1170 provides an exception to this limitation, permitting courts to "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).)
2. Analysis
The published opinions are in conflict on the standard to be applied when the court relies on multiple factors, some of which were not found by the jury or stipulated to by the defendant. (Compare People v. Flores (2022) 75 Cal.App.5th 495, 500 [remand not required if appellate court concludes beyond a reasonable doubt that a jury would have found at least one aggravating factor true] with People v. Lopez (2022) 78 Cal.App.5th 459, 466 (Lopez) [all aggravating factors must have been found true beyond a reasonable doubt; if only some factors would have been found true, it must be reasonably probable the same sentence would have been imposed based on those] and People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn), review granted Oct. 12, 2022, S275655 [if at least one aggravating factor would have been found true beyond a reasonable doubt and it is reasonably probable any remaining aggravating factors relied on in imposing sentence would have been found true, assess likelihood of same sentence being imposed absent factors not meeting that standard]; 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 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"].) Lopez requires the reviewing court to evaluate every factor on which the court relied, and we read Dunn to require at least one aggravating factor that the trial court actually relied upon to withstand Chapman scrutiny. (See Lopez, supra, 78 Cal.App.5th at p. 466; Dunn, supra, 81 Cal.App.5th at pp. 409-410.) Where" '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[,]"' [citation] [¶] . . . remand would be an idle act. [Citation.]" (People v. Flores (2020) 9 Cal.5th 371, 432.) In People v. Salazar (2023) 15 Cal.5th 416 (Salazar), the California Supreme Court recently reemphasized and expanded on this principle, stating "unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant's sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing." (Id. at p. 431, italics added.)
We recognize that, in Salazar, the California Supreme Court was specifically addressing the amendments to section 1170, subd. (b)(6) which now mandate that the trial court impose a lower term where a qualifying trauma is found to be a contributing factor in the commission of the offense unless it makes specified findings. (Salazar, supra, 15 Cal.5th at p. 426.)
At sentencing, the trial court found no mitigating circumstances but found three aggravating circumstances, specifically: (1) Gonzalez's prior convictions and their increasing severity (rule 4.421(b)(2)); (2) his prior prison terms (rule 4.421(b)(3)); and (3) his unsatisfactory prior performance on probation (rule 4.421(b)(5)). As discussed above, section 1170 creates two types of exclusions from the constitutional jury trial right: (1) aggravating facts stipulated to by the defendant may be considered without a jury finding (§ 1170, subd. (b)(2)), and (2) the sentencing court may consider prior convictions based on certified records of conviction (§ 1170, subd. (b)(3)).
The Attorney General argues that any error is harmless because the trial court's summary of Gonzalez's criminal history, except its description of his 2020 sentence to "16 months state prison," comported with the summary provided in the probation report. Although probation reports are inherently reliable, a probation report is not a certified record of conviction and cannot be used to support imposition of the upper term under the statute. (Dunn, supra, 81 Cal.App.5th 394, 401, 403, review granted Oct. 12, 2022, S275655; People v. Falcon (2023) 92 Cal.App.5th 911, 953, review granted Sept. 13, 2023, S281242.) "We will not presume the existence of extrarecord materials, however likely they are to exist, to address this insufficiency." (Zabelle, supra, 80 Cal.App.5th 1098, 1115, fn. 6.) Following the guidance from the California Supreme Court and considering this record," 'we cannot say with confidence what sentence [the court] would have imposed' [citation]" (Salazar, supra, 15 Cal.5th at p. 432) had it possessed and reviewed Gonzalez's certified records of conviction as required by section 1170, subdivision (b)(3).
In footnote 5, ante, we highlighted a discrepancy between the trial court's recitation of Gonzalez's criminal history at his sentencing hearing and that set forth in the probation report. Again, without a certified record of conviction, we will not speculate as to whether the trial court made an error in concluding the 2020 conviction was served in "state prison" or whether the probation report erroneously stated the sentence was served in "jail." Furthermore, as cautioned by the California Supreme Court, we will also not speculate as to whether such a distinction would have mattered to the trial court in imposing the upper term.
As a result, we will remand the matter for resentencing under section 1170, as amended by Senate Bill No. 567.
III. Disposition
The judgment is reversed and the matter is remanded to the trial court to resentence Gonzalez under current law.
WE CONCUR: GREENWOOD, P. J. BAMATTRE-MANOUKIAN, J.