Opinion
C096331
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN CALDERON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 17FE014783
Duarte, Acting P. J.
In 2017, defendant Adrian Calderon shot two people in a nightclub. He was found guilty of multiple offenses based on the shooting and sentenced to 35 years four months in prison. This court reversed one count of conviction for insufficient evidence and affirmed the judgment as modified. (People v. Calderon (Dec. 29, 2020, C088993) [nonpub. opn.] (Calderon).) After the remittitur issued, defendant was resentenced by a different judge in May 2022 to 30 years in prison.
The original sentencing judge had since retired.
Defendant appeals his sentence for a second time. He contends that: (1) under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) (Stats. 2021, ch. 731, § 1.3), which recently amended Penal Code section 1170, the trial court erred or abused its discretion by imposing an upper term sentence on count 2 rather than a presumptive lower term; (2) under section 1385 as amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81) (Stats. 2021, ch. 721, § 1), the trial court erroneously declined to dismiss one or more of the attached firearm or great bodily injury enhancements because at least three mitigating factors under the newly enacted legislation were present and nothing in the record shows the trial court made, or could have made, a finding that dismissal of any enhancement would have endangered public safety; (3) the trial court erred in failing to dismiss the prior serious felony enhancement or prior strike under Senate Bill No. 81; and (4) remand is required because the trial court was unaware of its discretion under section 654 as amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518) to impose less than the longest possible term.
Further undesignated statutory references are to the Penal Code.
The Attorney General contends defendant forfeited his challenge to his upper term sentence. Alternatively, he argues defendant's sentence comports with the constitutional and statutory requirements for imposing an upper term or that any error was harmless. He also asserts the trial court properly declined to strike the enhancements under Senate Bill No. 81, that Senate Bill No. 81 does not apply to prior strike convictions, and that defendant forfeited his amended section 654 challenge by failing to raise it below. The Attorney General further requests corrections to the abstract of judgment and the sentence on count 1.
We conclude defendant sufficiently preserved his objection to the upper term sentence and the trial court abused its discretion by applying the wrong standard when imposing the upper term. Accordingly, we shall reverse and remand for a full resentencing. Thus, we need not and do not reach the parties' remaining appellate contentions.
BACKGROUND
Defendant's Convictions
Defendant and Gregory Grimes regularly patronized the same nightclub in Sacramento, although they did not know each other. One night in August 2017, defendant and Grimes, who was much larger than defendant and very intoxicated, bumped into one another as the nightclub was closing. Grimes punched defendant in the face, and security guard Nathan Higgins grabbed Grimes from behind to pull him away. Defendant fired a single shot, hitting Grimes in the neck and Higgins in the hand, and then fled.
We draw the brief factual summary from this court's prior opinion in defendant's direct appeal in Calderon, supra, C088993.
A jury found defendant guilty of the attempted voluntary manslaughter of Grimes (§§ 192, subd. (a), 664, count 1) as a lesser included offense to attempted murder (§ 187), two counts of assault with a semiautomatic firearm (§ 245, subd. (b), count 2 [Grimes] &count 3 [Higgins]), unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1), count 4), and intimidating a witness (§ 136.1, subd. (a)(1), count 5). The jury also found true that defendant personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)) during the attempted involuntary manslaughter and assault offenses. In a bifurcated proceeding, the trial court found defendant had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12).
Defendant's Original Sentence
The trial court denied defendant's Romero motion to strike his strike prior, declined to exercise its discretion to strike the firearm and prior serious felony enhancements, and sentenced defendant to an aggregate term of 35 years four months in prison. Defendant's sentence included the upper term of nine years for the assault on Grimes (count 2), doubled to 18 years for the strike prior, three years for the attached great bodily injury enhancement, and the midterm of four years for the firearm enhancement, and a concurrent midterm of six years for the assault on Higgins (count 3), three years for the great bodily injury enhancement, and four years for the firearm enhancement. For count 4 (felon in possession), the court imposed a consecutive one-third the midterm of eight months, doubled to 16 months for the strike prior, and for count 5 (witness intimidation), the court imposed a full midterm of two years, doubled to four years for the strike prior. The court imposed five years for the prior serious felony enhancement, and imposed and stayed a midterm sentence on the attempted voluntary manslaughter conviction (count 1) under section 654.
We reversed defendant's witness intimidation conviction in Calderon for insufficient evidence. The matter was remanded to the trial court for further proceedings.
Resentencing
Upon remand, a newly assigned trial judge resentenced defendant to the previously imposed terms on counts 2 and 3 as well as five years for the prior serious felony enhancement. The court again imposed and stayed the midterm on count 1 and reimposed a consecutive one-third the midterm of eight months on count 4, doubled to 16 months for the strike prior, but purported to stay that consecutive sentence under section 654. Defendant's total aggregate sentence was 30 years in state prison, which he timely appealed. The case was fully briefed on March 28, 2023, and assigned to this panel on April 5, 2023.
We note that this was error. If the court stays the term on any count under section 654, the court must first impose a full term on that count rather than a fraction of the midterm. (See People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 ["The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654"].)
The abstract of judgment prepared following the resentencing hearing reflects a total sentence of 16 years, which does not accurately reflect the trial court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [an abstract of judgment is not the judgment of conviction and does not control if it differs from the trial court's oral pronouncement of judgment].)
DISCUSSION
I
Error in Consideration of Senate Bill No. 567
Defendant contends the trial court prejudicially erred or otherwise abused its discretion in resentencing him to the upper term on count 2 because the aggravating factors the court relied on to impose the upper term do not comply with Senate Bill No. 567's new sentencing requirements. We agree the court applied the wrong legal standard, as we next explain.
A. Senate Bill No. 567's Amendments to Section 1170
When defendant was originally sentenced in March 2019, section 1170, subdivision (b) provided that when a judgment of imprisonment is to be imposed and the statute authorizes three potential terms, "the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, former subd. (b); Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, Senate Bill No. 567 changed the requirements for proving aggravating circumstances and altered sentencing discretion under section 1170. (Stats. 2021, ch. 731, § 1.3.)
As relevant here, Senate Bill No. 567 amended section 1170, former subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment unless there are circumstances in aggravation that justify a term exceeding the midterm and the facts underlying those circumstances in aggravation are stipulated to by the defendant, proven beyond a reasonable doubt, or established by a certified record of conviction. (§ 1170, subd. (b)(1)-(3).) Senate Bill No. 567 also added new subdivision (b)(6) to section 1170, which now provides that the trial court shall impose the lower term if certain factors contributed to the commission of the offense, including that a defendant "has experienced psychological, physical, or childhood trauma, including, but not limited to abuse, neglect, exploitation, or sexual violence," unless the court finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice. (§ 1170, subd. (b)(6)(A).)
B. Resentencing Proceedings
Following the issuance of the remittitur in Calderon, defendant renewed his Romero motion and filed a resentencing brief asking the trial court to reconsider the originally imposed sentence based on intervening changes in the law. He argued that under newly enacted Senate Bill No. 567, the court was required to impose the middle or lower term unless there were aggravating factors found true beyond a reasonable doubt or stipulated to by defendant. He asked the court to exercise discretion to strike the firearm enhancement or the five-year prior serious felony enhancement, and to dismiss one or more enhancements under Senate Bill No. 81. Defense counsel also requested that the court stay the sentence on count 4 (the unlawful firearm possession offense) under section 654.
Defendant submitted a letter on his own behalf as well as statements from several of his family members. Defendant, his mother, and his brother each stated that defendant suffered from posttraumatic stress disorder, anxiety, or other mental health issues, some of which stemmed from having been shot in the back during an alleged robbery approximately a year before the current nightclub shooting.
The People opposed defendant's renewed Romero motion, arguing the trial court had previously declined to exercise its discretion to strike defendant's strike prior and his prior serious felony enhancement and should do so again given defendant's lengthy criminal history. The People filed a separate opposition arguing the upper term sentence complied with Senate Bill No. 567, and that the court should not strike one or more of the enhancements under Senate Bill No. 81 because none of the mitigating factors were present or doing so would endanger public safety.
At the May 2022 resentencing hearing, the trial court summarized defendant's arguments as follows: "So the defense is asking this Court to strike [defendant's] prior under Romero, strike the gun enhancement and the five-year prior and lower the sentence that the trial court judge gave [defendant] on the princip[al] count to a middle term or lower term." Counsel agreed with the court's assessment, and further reiterated his position that count 4 should be stayed under section 654. Later in the hearing, defense counsel argued that the circumstances of the case did not warrant an upper term sentence, and defendant should at most receive the middle term.
After considering the parties' arguments and submissions, the trial court denied defendant's renewed Romero motion, finding defendant was not outside the spirit of the three strikes law (§ 667, subds. (b)-(i)) given his lengthy and violent criminal history. The court also rejected defendant's argument that Senate Bill No. 81 mandated the dismissal of any of the enhancements and declined to exercise its discretion to dismiss them, including the prior serious felony enhancement.
In determining the appropriate term, the trial court acknowledged that under "the new law which would apply in this case . . . there is a presumption that it be the middle or lower term unless there is an aggravated factor." It also noted: "The other seemingly [sic] complication would be the change in the law that requires the trier of fact to determine any factors in aggravation. Not all of them, but most of them."
The trial court then reimposed the prior sentence on count 2, including the upper term, after finding that the aggravating circumstances outweighed any mitigating evidence. In selecting the upper term, the court relied on the circumstances in aggravation listed in the probation report that was prepared several years before Senate Bill No. 567 took effect. In doing so, the court reasoned (incorrectly) that a jury was not required to find the aggravating circumstances true beyond a reasonable doubt because the circumstances did not seem to involve “Apprendi.” The court also emphasized that it was imposing the upper term in “deference to the trial court judge who heard the case” since the court was “simply the resentencing judge.”
The trial court noted that it could still impose the upper term based on a single aggravating factor, but it did not specify any particular factor.
Apprendi v. New Jersey (2000) 530 U.S. 466.
C. Forfeiture
Before turning to the merits, we first consider the Attorney General's claim that defendant did not properly preserve his objections to the upper term sentence for review. "As a general rule, a party who does not raise an argument below forfeits the argument on appeal." (In re Abram L. (2013) 219 Cal.App.4th 452, 462.)
An objection is generally considered sufficient "if it fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290.) "In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (Ibid.)
Here, defendant was resentenced in May 2022 after Senate Bill No. 567's effective date. (Stats. 2021, ch. 731, eff. Jan. 1, 2022.) Accordingly, this ameliorative legislation was in effect at the time of defendant's resentencing hearing and, as the Attorney General agrees, all the parties and the court were aware of that legislation's amendments to section 1170 and agreed that this "new law" applied to defendant's resentencing.
The trial court's comments at the resentencing hearing summarizing defendant's position, moreover, show that the court understood defendant was requesting to "lower the [previously imposed] sentence" on the principal count "to a middle term or lower term" under the new law. That is, that defendant objected to reimposing an upper term sentence under newly enacted Senate Bill No. 567.
Because all parties and the trial court understood that Senate Bill No. 567's provisions applied and the court expressly considered defendant's request to impose the middle or lower term rather than the upper term, defendant did not forfeit his objection to the reimposition of the upper term, nor did he forfeit any objection that the court failed to impose a low term sentence. We thus turn to the merits of defendant's Senate Bill No. 567 challenge.
D. Application of Amended Section 1170
Defendant contends the trial court erred or abused its discretion by failing to find aggravating factors in compliance with newly amended section 1170, subdivision (b) and the Sixth Amendment, by relying on aggravating factors already used to enhance his sentence, by improperly deferring to the original sentencing court's determinations, which were made before Senate Bill No. 567 amended section 1170's sentencing provisions, and by failing to apply the presumptive lower term given evidence that he suffered psychological trauma that contributed to the offenses.
" 'A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.'" (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1517.) We conclude that is what occurred here.
The trial court's comments at the resentencing hearing demonstrate it applied an incorrect standard under the new statute in sentencing defendant to the upper term. According to the court, the aggravating factors listed in the original probation report did not have to be proven to the trier of fact beyond a reasonable doubt, or otherwise stipulated to by defendant, because they did not involve "Apprendi." But section 1170, subdivision (b) now prohibits the imposition of the upper term absent specific findings. The court may impose such a sentence "only when there are circumstances in aggravation of the crime that justify" that choice, and only where "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," or relate to a prior conviction and have been proven by a certified record of conviction. (§ 1170, subd. (b)(1)-(3).) Absent the finding and articulation of such justification and facts, or a valid waiver of these new requirements, imposing the upper term is outside the sentencing court's discretion under newly amended section 1170, subdivision (b), regardless of Apprendi.
The trial court also failed to apply a correct legal standard under subdivision (b)(6) of section 1170. Although the court found that aggravating factors outweighed evidence of mitigation, the court did not find, in light of the evidence that defendant suffered from past psychological trauma that may have contributed to the offense, that circumstances in aggravation outweighed circumstances in mitigation such that the presumptive low term would be contrary to the interests of justice. Amended section 1170 now requires such findings.
The trial court also appears to have unnecessarily deferred to the original sentencing court's choices, which were made before Senate Bill No. 567 was passed, rather than conducting a full resentencing based on the new statutory requirements and the information then before the court as required. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"].)
II
Harmlessness of the Errors
On this record, we cannot say these errors were harmless. Although there were numerous potential aggravating circumstances set forth in the probation report, they were not found to have been substantiated by adequate proof or stipulation as required by the statute. Although the jury did find beyond a reasonable doubt that defendant inflicted great bodily injury and personally used a firearm during the offense, the court could not rely on these factors to impose the upper term on count 2 where it also imposed the great bodily injury and firearm enhancements on that count. (§ 1170, subd. (b)(5) ["[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law"]; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [the trial court erred by using the fact the crime involved great bodily injury in imposing the upper term where the trial court also imposed a great bodily injury enhancement].)
Finally, while Senate Bill No. 567 does allow a trial court to consider prior convictions based on certified records (§ 1170, subd. (b)(3)) as a circumstance in aggravation, we cannot confidently conclude the resentencing court would have chosen the upper term if it could rely only on defendant's prior assault conviction (§ 245, subd. (a)(2)) that the original sentencing court found true. Although that single factor alone might be sufficient to satisfy the Sixth Amendment (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1111-1112), the same cannot be said under Senate Bill No. 567, where, as here, the court alluded to multiple aggravating factors but did not state which factor, or combination of factors, compelled it to select the upper term.
Although the People argue that defendant also had a prior conviction for dissuading a witness (§ 136.1), which could support imposition of the upper term, the prosecution did not allege that conviction as a prior strike and the original sentencing court did not find that prior conviction true beyond a reasonable doubt based on a certified record of conviction.
Because the trial court applied incorrect legal standards when exercising its discretion under newly amended section 1170, and we cannot say the errors were harmless, we shall vacate defendant's sentence and remand for resentencing. On remand, the trial court should revisit all its sentencing choices considering all applicable legislation, including, but not limited to, Senate Bill No. 81 and Assembly Bill No. 518. (People v. Valenzuela, supra, 7 Cal.5th at pp. 424-425.) Given this conclusion, we do not reach the parties' remaining contentions on appeal.
DISPOSITION
Defendant's sentence is vacated, and the matter is remanded for resentencing. The judgment is otherwise affirmed. Upon resentencing, the trial court shall prepare an amended abstract of judgment that accurately reflects the court's oral pronouncement of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: Boulware Eurie, J., Mesiwala, J.