Opinion
F083121
02-09-2023
THE PEOPLE, Plaintiff and Respondent, v. GILBERT ANTHONY KWOLEK, Defendant and Appellant.
Jennifer May Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Ian P. Whitney, and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 20CMS-2139 Robert Shane Burns, Judge.
Jennifer May Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, Ian P. Whitney, and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
INTRODUCTION
Based on the facts discussed in detail below, a jury convicted Kwolek of committing an attempted criminal threat (Pen. Code, §§ 664/422, subd. (a)). At a bifurcated bench trial, the court found true the allegations regarding his prior convictions. The trial court sentenced Kwolek to eight years' imprisonment.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, Kwolek presents three claims. First, he claims there was insufficient evidence to support his attempted criminal threat conviction. Second, he claims the court committed reversible error by failing to instruct the jury on the reasonableness element of attempted criminal threat. The People contend there is substantial evidence to support every element of an attempted criminal threat and that any instructional error was harmless beyond a reasonable doubt. Third, in supplemental briefing, Kwolek contends the court failed to comply with section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022, Reg. Sess.) (SB 567) in imposing the upper term for count 1 and that remand for resentencing is required on that basis. The People argue any error was harmless. We remand for the court to hold a resentencing hearing at which it may apply the changes implemented by SB 567. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
B.D. works in an office that is on the second floor of a commercial development. To get to the second floor, there is an external staircase that runs between two separate commercial buildings. The stairs lead to an open external balcony on the second floor that connects the two buildings. B.D. was leaving for her lunch break and was on the exterior balcony of her office building when she saw a dog in the trash enclosure behind the office building below. When B.D. looked further, she saw Kwolek in the enclosure and noticed he was urinating on the wall surrounding the trash enclosure. From the second floor balcony, B.D. told him he needed to leave. Kwolek did not respond verbally but glanced in her direction and slowly made his way out of the enclosure. B.D. recorded Kwolek on her phone because he was doing "something that he was not supposed to be doing[.]"
Kwolek stopped at the staircase and B.D. told him he needed to leave or she would call the police. He responded, saying, "Call the fucking cops, they won't get here in ten minutes, I'll wait." B.D. was still standing on the second floor balcony when she called the police. While B.D. was on the phone with the police, Kwolek became angry; he was pacing and mumbling to himself, then yelled his name out loud directly to B.D. After that, he yelled "I am going to kill a mother fucker today" while facing in B.D.'s direction; no one else was in the vicinity when he made that statement. B.D. did not respond but relayed Kwolek's threat to the dispatcher. B.D. testified Kwolek's statement made her fear for her life; she took it as a direct threat.
After making the statement to B.D., Kwolek began walking up the stairs that led to where B.D. was standing. B.D. felt so scared and threatened that it caused her to physically shake. B.D. went into the hallway outside her office where she could lock herself behind a glass door. Kwolek walked up the stairs and to the door B.D. had locked and was hiding behind. He pulled hard on the door a couple of times, trying to get into the hallway, but he could not because it was locked. He was "mad yelling" at B.D., but she was on the phone with police dispatch and far enough inside that she could not make out what he was saying. Kwolek remained on the balcony for about four to five minutes.
B.D. stayed on the phone with dispatch until they told her the police had arrived and made contact with Kwolek. Dispatch then told B.D. it was safe to leave, so she left for lunch. After lunch, B.D. went back to work until 5 p.m. When B.D. was leaving work, she saw a man sitting at the top of the stairs on the balcony. He was wearing a baseball cap, sunglasses, and a face mask. B.D. believed it to be the same person from earlier that day. Since the stairs were the only way down from the second floor, B.D. had to walk past the man. As she was leaving her office, B.D. starting recording with her phone because she "was terrified." As she got close, the man was staring at her; B.D. knew that it was Kwolek. Kwolek did not say anything to B.D. as she walked past him.
While walking to her car, B.D. saw Kwolek walk down the stairs. After B.D. got into her car, she locked the doors and saw Kwolek coming out of the stairway and into the street. B.D. called the police. While B.D. was on the phone, she noticed Kwolek was recording her and the back of her car with his phone. Then, Kwolek went back to the staircase and sat down near the bottom of the stairs facing B.D. B.D. left after the police arrived and they told her it was okay to leave.
The prosecution played two videos of Kwolek B.D. had recorded using her cell phone. The first video was of Kwolek leaving the trash enclosure and the second video was of Kwolek sitting at the top of the stairs when B.D. was leaving work. The People also played the first 911 call B.D. made to police.
Kwolek was charged with criminal threats (§ 422, subd. (a); count 1), stalking (§ 646.9, subd. (a); count 2), and false imprisonment (§ 236; count 3) in connection with the incident. It was further alleged that Kwolek had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), which also qualified as prior serious felony convictions (§ 667, subd. (a)(1)).
The jury found Kwolek not guilty of criminal threats as charged in count 1, but convicted him of the lesser included offense of an attempted criminal threat (§§ 664/422). The jury found Kwolek not guilty of false imprisonment in count 3 and was deadlocked on the stalking charge (count 2). The court declared a mistrial on count 2, which was dismissed at the request of the People. At a bifurcated bench trial, the court found the allegations regarding Kwolek's two prior strike convictions proven beyond a reasonable doubt.
At sentencing, the court struck one of the prior strike convictions under Romero.The trial court imposed the upper term of 18 months for the attempted criminal threat conviction, which was doubled due to the remaining strike, plus five years for the prior serious felony conviction (§ 667, subd. (a)(1)) for a total term of eight years. Kwolek filed a timely appeal.
See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
DISCUSSION
I. Substantial Evidence Supports the Attempted Criminal Threat Conviction.
Kwolek challenges his attempted criminal threat conviction, asserting there was insufficient evidence he threatened to commit a crime involving death or great bodily injury to B.D., or that there was an unequivocal, unconditional, immediate prospect of execution of a criminal threat. Kwolek also claims there was insufficient evidence that B.D. was in sustained fear for her safety. The People disagree, arguing there was substantial evidence to show Kwolek is guilty of an attempted criminal threat. We agree with the People and conclude substantial evidence supports Kwolek's conviction.
A. Standard of Review
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime ... beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) The record must disclose substantial evidence-that is, evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.; accord People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez); People v. Johnson (1980) 26 Cal.3d 557, 578.) Under the substantial evidence test, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment." (People v. Mincey (1992) 2 Cal.4th 408, 432 (Mincey); see also People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Smith (2005) 37 Cal.4th 733, 738-739.)
"The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (Mincey, supra, 2 Cal.4th at p. 432.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Zamudio, supra, 43 Cal.4th at p. 357.) Thus, the appellate court must affirm the judgment if any reasonable jury could have found sufficient evidence to sustain the conviction, even if the court might have reached a different conclusion had it been the initial fact-finder. (People v. Latham (2012) 203 Cal.App.4th 319, 334.)
B. Applicable Law
The People must prove the following five elements to convict a defendant of criminal threats under section 422: (1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person;" (2) the defendant had "the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out;" (3) the threat "on its face and under the circumstances in which it was made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat;" (4) the threat "thereby causes that person reasonably to be in sustained fear for his or her own safety . . .;" and (5) the threatened person's fear was reasonable under the circumstances. (§ 422, subd. (a); People v. Fierro (2010) 180 Cal.App.4th 1342, 1347-1348 (Fierro); People v. Toledo (2001) 26 Cal.4th 221, 227228 (Toledo).)
"[A]ttempted criminal threat requires "a specific intent to commit the crime" of criminal threat "and a direct but ineffectual act done toward its commission." (§ 21a; People v. Chandler (2014) 60 Cal.4th 508, 516 (Chandler).) As explained in Toledo, the intent required for an attempted criminal threat is a specific intent" 'to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety.'" (Chandler, supra, at p. 516; Toledo, supra, 26 Cal.4th at pp. 230231.)
C. Analysis
First, Kwolek contends there was insufficient evidence he threatened to commit a crime involving death or great bodily injury upon B.D. Instead, he argues his statement was an "angry, intemperate outburst ... borne out of frustration and humiliation that [B.D.] was yelling at him in a public place, saying that he 'needed to leave.'" Second, Kwolek claims "[t]here was insufficient evidence that there was an unequivocal, unconditional, immediate prospect of execution of a criminal threat." Kwolek argues his threat to "kill a mother fucker today" was made while he was in an empty parking lot and not directed at, or intended for, B.D. Third, Kwolek also claims there was insufficient evidence that B.D. was in sustained fear for her safety, noting she "brush[ed]" past Kwolek while he was sitting at the top of the stairs. The People disagree with Kwolek's contentions, arguing there was substantial evidence to show he committed an attempted criminal threat. We conclude sufficient evidence supports Kwolek's conviction.
"[S]ection 422 requires that the communication must be sufficient 'on its face and under the circumstances in which it is made' to constitute a criminal threat." (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) This means that the communication and the surrounding circumstances are to be considered together. (Ibid.) "Thus, it is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422." (People v. Butler (2000) 85 Cal.App.4th 745, 753 (Butler); see also People v. Jones (1998) 67 Cal.App.4th 724, 727-728.) The circumstances surrounding a communication include such things as the prior relationship of the parties and the manner in which the communication was made. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137-1138.) Although an intent to carry out a threat is not required, the actions of the accused after making the communication may serve to give meaning to it. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1220-1221.) Affirmative conduct and circumstances after the threat can show that a criminal threat was made, just as the absence of circumstances that would be expected to accompany a threat may serve to dispel the claim that a criminal threat was made. (In re Ricky T., supra, 87 Cal.App.4th at p. 1139.)
With these principles in mind, we conclude substantial evidence supports the jury's conclusion Kwolek willfully threatened to commit a crime that would result in death or great bodily injury to another person. Kwolek made his statement that he was "going to kill a mother fucker today" after B.D. told him to leave and called the police on him. The record shows Kwolek became angry and started mumbling and yelling. B.D. testified Kwolek was facing her when he made the statement, no one else was around, and then he proceeded to come up the stairs and unsuccessfully tried to enter the hallway into which B.D. had retreated. From such evidence, the jury could reasonably conclude Kwolek's statement that he was going to "kill a mother fucker today," followed by his pursuit of B.D. and attempt to confront her, constituted a willful threat to inflict death or great bodily injury on B.D.
It is true that section 422 does not punish" 'mere angry utterances or ranting soliloquies, however violent.'" (In re Ryan D., supra, 100 Cal.App.4th at p. 861; People v. Teal (1998) 61 Cal.App.4th 277, 281.) But here, even if the evidence could be reconciled with a contrary finding-that is, that Kwolek's statement was a mere "angry utterance"-"' "[c]onflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." '" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Next, a reasonable fact-finder could also conclude Kwolek's affirmative conduct and the circumstances surrounding his threat established that he intended to threaten B.D., and the threat was so unequivocal, unconditional, immediate, and specific as to convey to her a gravity of purpose and an immediate prospect of execution. Even where an accused does not personally communicate a direct threat to the victim, it may be shown that he specifically intended that the threat be conveyed to the victim. (People v. Felix (2001) 92 Cal.App.4th 905, 913-914 [the setting and context of the expression must be considered]; In re David L. (1991) 234 Cal.App.3d 1655, 1659 [threat need not be directly communicated and may be relayed through a third party].)
Here, Kwolek's anger, pacing in front of the stairs and mumbling, then yelling his name at B.D. and yelling "I'm going to kill a mother fucker today," followed by his subsequent actions towards B.D., provide substantial evidence he intended to threaten B.D. We have Kwolek telling B.D. to go ahead and call the police because they wouldn't arrive within ten minutes, the evidence that he became angry after B.D. called the police, paced back and forth while mumbling to himself, yelled his name to B.D. while she was on the phone, and then made the statement that he was going to "kill a mother fucker today." Moreover, after making the threat, defendant proceeded up the stairs towards B.D. and began pulling hard on the door to try to enter the locked hallway where B.D. was hiding. There is substantial evidence the threat was sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.
The record belies Kwolek's claim there was no evidence that he followed up on his threat with actions. Accordingly, we cannot conclude, as Kwolek contends, that the facts of Butler, supra, 85 Cal.App.4th 745 and People v. Mendoza (1997) 59 Cal.App.4th 1333 (Mendoza) are distinguishable. In Butler, the defendant confronted the victim, said he was going to hurt her, then demonstrated how serious he was by grabbing the victim's arm when he made the threat. (Butler, at p. 749.) He also bragged that his gang owned the apartments where the victim lived. (Ibid.) The Butler court found such circumstances, standing alone, were sufficient evidence to support a violation of section 422. (Id. at p. 755.)
In Mendoza, the defendant confronted the victim and told her she "fucked up his brother's testimony," and he was going to talk with guys from "Happy Town." Within 20 to 30 minutes, Happy Town gang members showed up at the victim's home, honked to get her attention, and put word out on the street they were looking for her. (Mendoza, supra, 59 Cal.App.4th at pp. 1341-1342.) The Mendoza court found, although the defendant's "words were ambiguous" in that they "did not mention a particular criminal act or give other particulars, a rational juror could have found-based on all the surrounding circumstances-appellant's words were sufficiently unequivocal, unconditional, immediate, and specific to convey to [the victim] a gravity of purpose and immediate prospect of death or serious bodily injury." (Id. at 1342.)
Here, as in Butler and Mendoza, Kwolek's threat in the context of his subsequent actions after making the threat-proceeding up the stairs to where B.D. was standing, causing B.D. to be scared to the point she locked herself behind a hallway door, and continuing to pursue her by trying hard to open the glass door to the hallway where B.D. was hiding-could reasonably be construed by a jury as conveying gravity of purpose and an immediate prospect of execution.
Additionally, there is sufficient evidence from which a jury reasonably could have found Kwolek's threat, along with his actions, would have caused a reasonable person in B.D.'s position to be in sustained fear for his or her safety. (See Fierro, supra, 180 Cal.App.4th at p. 1349.) In Fierro, the victim heard defendant say, "I will kill you . . . right now" and saw defendant displaying a weapon. The court concluded "that a person who hears someone say, 'I will kill you ... right now,' coupled with seeing a weapon, is quite justified in remaining 'scared shitless'-as [the victim] put it-for 15 minutes." (Ibid.) Similarly here, B.D. saw Kwolek angry and pacing, heard him say "I'm going to kill a mother fucker today," and then saw him proceed up the stairs towards her and pull hard on the locked door to the hallway where she had hidden. B.D. testified she was so scared that she physically shook. Under these circumstances, a reasonable trier of fact could find beyond a reasonable doubt that Kwolek's actions would have caused a reasonable person to be in "sustained fear" for a "period of time that extends beyond what is momentary, fleeting, or transitory." (See People v. Allen (1995) 33 Cal.App.4th 1149, 1156; Mendoza, supra, 59 Cal.App.4th at p. 1342.)
Kwolek's argument that B.D. was not actually in sustained fear is misplaced. It is not an element of the offense of attempted criminal threat that B.D. actually suffer sustained fear. And Kwolek's argument challenging the sufficiency of the evidence to prove B.D. was actually in sustained fear is irrelevant to whether or not the circumstances would "reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (See People v. Jackson (2009) 178 Cal.App.4th 590, 598 (Jackson); Toledo, supra, 26 Cal.4th at pp. 230-231.)
After reviewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Therefore, we conclude substantial evidence supports Kwolek's attempted criminal threat conviction. (See Zamudio, supra, 43 Cal.4th at p. 357; Rodriguez, supra, 20 Cal.4th at p. 11; Johnson, supra, 26 Cal.3d at p. 578.)
II. The Trial Court Erred in Failing to Instruct the Jury on the Reasonableness Element of an Attempted Criminal Threat, but the Error was Harmless Beyond a Reasonable Doubt.
Kwolek contends the trial court erred by failing to instruct the jury that, to establish an attempted criminal threat, the prosecution must prove the threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. He asserts he was prejudiced by the court's instructional error and, accordingly, the conviction should be reversed. The People agree that the trial court erred when it failed to instruct on the reasonableness element regarding attempted criminal threat but contend the error was harmless. We agree with the People and conclude the trial court's error was harmless beyond reasonable doubt.
A. Relevant Facts
The trial court instructed the jury on the elements of a criminal threat as follows:
"To prove the defendant is guilty of this crime the People must prove that the defendant willfully threatened to unlawfully kill, or unlawfully cause great bodily injury to [B.D.] [¶] The defendant made the threat orally. [ ¶ The defendant intended that his statement be understood as a threat. [¶] The threat was so clear, immediate, unconditional, and specific that it communicated to [B.D.] a serious intention and the immediate prospect that the threat would be carried out. The threat actually caused [B.D.] to be in sustained fear for her own safety. And [B.D.'s] fear was reasonable under the circumstances.
"Somebody commits an act willfully when he or she does it willingly or on purpose. In deciding whether a threat was sufficiently clear, immediate, unconditional and specific, consider the words themselves as well as the surrounding circumstances. Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory. An immediate ability to carry out a threat is not required."
The court then instructed the jury regarding attempted criminal threat as a lesser included offense as follows:
"To prove that the defendant is guilty of attempted criminal threat the People must prove that the defendant took a direct but ineffective step towards committing a criminal threat. And the defendant intended to commit a criminal threat.
"A direct step requires more than merely planning or preparing to commit a criminal threat, or obtaining or arranging for something needed to commit a criminal threat. A direct step is one that goes beyond planning or preparation, and shows that a person is putting his or her plan into action.
"A direct step indicates a definite and unambiguous intent to commit a criminal threat. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstances outside the plan had not interrupted the attempt.
"To decide whether the defendant intended to commit a criminal threat, please refer to the separate instructions that I have given you on that crime."
During deliberation, the jury had a question regarding "reasonable fear for her safety." The court brought the jury in to address their question. The court read the jury's question: "And the second question is is [sic] reasonable fear for her safety is it subjective based on emotion, (hers), or can we use an every day person." The court responded: "So fear requires the threat to be such as to cause a reasonable person to be in fear. It is -- contains both a subjective and objective component. A person must be actually in sustained fear, and the sustained fear must also be reasonable under the circumstances." The court further clarified, "So fear requires the threat to be such as to cause a reasonable person to be in sustained fear. It has a subjective and an objective component. A person must be actually in sustained fear, and the sustained fear must also be reasonable under the circumstances. So there is both the subjective standard. Did the person actually feel the fear, and there is an objective standard. Would an objective[] person feel fear in the same or similar set of circumstances."
B. Relevant Law and Standard of Review
Criminal defendants have the right to convictions that "rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (United States v. Gaudin (1995) 515 U.S. 506, 510.) To preserve this fundamental right, trial courts have a sua sponte duty to instruct on all elements of the charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824 (Merritt).) Moreover, courts have "a sua sponte duty to give correct instructions on the basic principles of the law applicable to the case that are necessary to the jury's understanding of the case." (People v. Williams (2009) 170 Cal.App.4th 587, 638 (Williams).)
"[W]hen a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525.) Specifically, "in order to support a conviction for attempted criminal threat the jury must find that the defendant specifically intended to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (Jackson, supra, 178 Cal.App.4th at p. 598; Toledo, supra, 26 Cal.4th at pp. 230-231.)
This court reviews claims of instructional error independently under the de novo standard of review. (See People v. Manriquez (2005) 37 Cal.4th 547, 584; People v. Waidla (2000) 22 Cal.4th 690, 733.)
Instructional error which results in the omission of an element of an offense is subject to harmless error review under the Chapman standard. (Neder v. United States (1999) 527 U.S. 1, 4 (Neder); People v. Mil (2012) 53 Cal.4th 400, 409; People v. Flood (1998) 18 Cal.4th 470, 504 (Flood).) Under this standard, we "consider whether it appears beyond a reasonable doubt that the error did not contribute to this jury's verdict." (Flood, supra, at p. 504; Chapman, supra, 386 U.S. at p. 24.)
See Chapman v. California (1967) 386 U.S. 18 (Chapman).
C. Analysis
Kwolek contends "the trial court failed to instruct the jury that, in addition to finding [he] intended his angry outburst to be a threat, they must find that his threat was 'sufficient under the circumstances to cause a reasonable person to be in sustained fear.'" He contends the closeness of his case demonstrates he was prejudiced by the court's instructional error. He also contends that there was a sufficient degree of separation between himself and B.D. to "not reasonably have caused the victim[] to suffer sustained fear."
The People acknowledge the instruction on attempted criminal threat was erroneous but contend any error was harmless beyond a reasonable doubt given the overwhelming evidence that Kwolek's conduct would have caused a reasonable person to be in sustained fear. We agree that the trial court erred but conclude that the error was harmless.
Although counsel did not object to the attempted criminal threat instruction, the trial court has "a sua sponte duty to give correct instructions on the basic principles of the law applicable to the case that are necessary to the jury's understanding of the case." (Williams, supra, 170 Cal.App.4th at p. 638.) Appellate courts may reach the merits of any claim of instructional error that potentially affects a party's substantial rights. (See § 1259; People v. Ramirez (2021) 10 Cal.5th 983, 1000.) A trial court's failure to correctly instruct the jury on an essential element of the charged offense is an error that potentially affects a party's substantial rights. (See § 1259; Merritt, supra, 2 Cal.5th at p. 824.) As such, we may review Kwolek's claim regarding instructional error even though counsel failed to object.
In order to prevent the crime of attempted criminal threats from conflicting with the First Amendment's protection of free speech, "the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525; Toledo, supra, 26 Cal.4th at p. 233; Jackson, supra, 178 Cal.App.4th at 598.) "By insisting that the intended threat be evaluated from the point of view of a reasonable person under the circumstances of the case, we can insure that punishment will apply only to speech that clearly falls outside First Amendment protection." (Jackson, supra, 178 Cal.App.4th at p. 598.)
Upon review of the record, we agree that the trial court failed to properly instruct the jury regarding attempted criminal threats. Here, the trial court failed to instruct the jury "that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (See Chandler, supra, 60 Cal.4th at p. 525.) The trial court only gave the jury the standard instruction on attempt, which failed to include the reasonable person standard and was therefore insufficient when instructing on attempted criminal threat. (See Jackson, supra, 178 Cal.App.4th at pp. 598-599.) The trial court instructed the jury that "[t]o prove that the defendant is guilty of attempted criminal threat the People must prove that the defendant took a direct but ineffective step towards committing a criminal threat. And the defendant intended to commit a criminal threat." Like in Jackson, the court here only explained that "[t]o decide whether the defendant intended to commit threats of violence, please refer to the instructions I just gave you" regarding criminal threat. (See id., at p. 599.) For an attempted criminal threat, the court is required to instruct the jury that the intended threat must be "sufficient under the circumstances to cause a reasonable person to be in sustained fear." (See Chandler, supra, 60 Cal.4th at p. 525; Jackson, supra, 178 Cal.App.4th at 598.) Therefore, the trial court erred when it failed to instruct the jury on the reasonableness requirement of an attempted criminal threat. However, as discussed below, we conclude the error was harmless beyond a reasonable doubt.
The failure to instruct on any element of the crime is subject to harmless error analysis under Chapman. (See Chapman, supra, 386 U.S. 18, 24; Neder, supra, 527 U.S. at p. 18 ["Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?"]; Merritt, supra, 2 Cal.5th at p. 831 ["We must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error"].) On appellate review, our role is to ask "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is 'no,' holding the error harmless does not 'reflec[t] a denigration of the constitutional rights involved.'" (Neder, supra, at p. 19, quoting Rose v. Clark (1986) 478 U.S. 570, 577.)
Here, the problem with the erroneous instruction is that it allows the jury to find defendant guilty of attempted criminal threats when either one or both of the last two elements of the completed crime was missing, namely that B.D. did not suffer sustained fear or that her fear was unreasonable under the circumstances. (See Jackson, supra, 178 Cal.App.4th at p. 600.) As the Jackson court explained, "[t]he latter scenario is legally insufficient to support [a] conviction of an attempted criminal threat and the former scenario is sufficient only upon finding that a reasonable person could have suffered fear in those circumstances .. .." (Ibid.)
Therefore, in order to determine whether the error was harmless, we review the circumstances of the case to determine whether "no reasonable juror could have failed to find defendant's threats sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525; see also Jackson, supra, 178 Cal.App.4th at p. 600.) For example, in Chandler, the defendant made explicit threats to the victims; some threats were when defendant was in his car and a victim was outside, others were while a victim was in her car and defendant was outside, while in another incident, a victim walked out of her house to see defendant walking up the street swinging a golf club while threatening her. (Chandler, supra, at pp. 511-512.) The Chandler court noted the defendant made explicit threats that he was going to kill the victims "while face-to-face with the victims . . . on the street where the victims lived. (Id. at p. 526.)
The Chandler court further noted that "[n]either the prosecution nor the defense ever suggested that defendant could be convicted of attempted criminal threat based solely on his subjective intent to threaten. Nor does the evidence suggest that the jury convicted defendant on that basis, since defendant expressly threatened to kill both victims. Moreover, the defense theory at trial did not contest the reasonableness of the victim's fear. Instead, defendant argued that there was reasonable doubt as to whether he made any of the alleged threats and that the threats, if made, did not cause actual or sustained fear." (Chandler, supra, 60 Cal.4th at p. 525.) Under these circumstances, the court concluded that "no reasonable juror could have failed to find defendant's threats sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Id. at p. 525.)
On the other hand, in Jackson, the defendant made threats to blow the victims' heads off and to chop their heads off. The victims called the police and waited inside the house while the defendant sat down outside. (Jackson, supra, 178 Cal.App.4th at p. 594.) "The jury was not instructed to consider whether the intended threat reasonably could have caused sustained fear under the circumstances" and the court noted "[c]ounsel's arguments did not fill the gap." (Id. at p. 599.) "[T]he jury might have concluded, since [the victims] were safely inside the house with a telephone to call the police while defendant sat out front, or since defendant's threats were so outlandish, that defendant's statements could not reasonably have caused the victims to suffer sustained fear." (Id. at p. 600.) The Jackson court concluded under these circumstances, there was "nothing in the record upon which to find the verdict was actually based on a valid ground." (Ibid.)
Initially we note that counsel's arguments "did not fill the gap" in the instructional error by addressing the requirement that a reasonable person be in sustained fear under the circumstances. (See Jackson, supra, 178 Cal.App.4th at p. 599.) Regarding the criminal threat offense, both the prosecutor and defense counsel explained that B.D.'s fear had to be reasonable under the circumstances. Defense counsel argued the prosecution failed to prove Kwolek had the specific intent that the statement be taken as a threat or that B.D.'s fear was reasonable under the circumstances. However, neither counsel argued that reasonable fear was a requirement for an attempted criminal threat. Defense counsel only argued that attempted criminal threat would be met here "if the intent was met but somebody wasn't in fear." Defense counsel argued that "in this instance they didn't prove that he had the specific intent." And, in finding Kwolek guilty of attempted criminal threats, the jury necessarily rejected his theory that he lacked the specific intent. However, their verdict provides no insight as to whether the jury determined that a reasonable person would be in fear under the circumstances.
Nevertheless, we agree with the People that the facts here are more similar to those in Chandler than in Jackson. Unlike in Jackson where there was a greater degree of separation because the victims were safe inside their home, both B.D. and Kwolek were outside when he made his threat. Although Kwolek did not threaten B.D. face-to-face like in Chandler, B.D. testified Kwolek was looking in her direction when he made this threat. While Kwolek may not have threatened B.D. on the street where she lived like in Chandler, he threatened her at her place of employment. And although Kwolek did not physically swing a weapon back and forth while threatening B.D., his actions were physically threatening in that he was angry and he paced back and forth in front of the stairs B.D. needed to use in order to leave and then, after making his threat, proceeded up the stairs toward B.D. and tried to open the locked door she hid behind. We disagree with Kwolek that when B.D. locked herself behind the glass door she was like the victims in Jackson who were safe inside a home. B.D. sought refuge in the hallway since she knew it had a door that locked. Further, Kwolek was not sitting down outside like in Jackson, but physically pursued B.D. up the stairs and used force to try to open the glass door B.D. was hiding behind. Considering the totality of the circumstances, we conclude the error was harmless beyond a reasonable doubt since "no reasonable juror could have failed to find defendant's threats sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525; see Jackson, supra, 178 Cal.App.4th at p. 600.)
Kwolek cites to People v. Vasquez (2018) 30 Cal.App.5th 786, 801-802 in claiming that the "jury's rejection of the bulk of the People's case establishes that the state's evidence was weak, and that this was a close case." However, the issue in Vasquez was whether the error was harmless when the court failed to instruct the jury on the lesser included offense of involuntary manslaughter. (See id. at pp. 801-802.) The error here was not that the court failed to instruct the jury on the lesser included offense of an attempted criminal threat, but that it failed to instruct on an element of the offense.
III. Senate Bill 567
Kwolek contends we must vacate the sentence and remand the matter because his sentence no longer comports with the requirements under section 1170, subdivision (b) as amended under SB 567, which applies retroactively to his case. The People agree that SB 567 applies retroactively to Kwolek but argue that any error in imposing the upper term is harmless. Kwolek specifically argues that SB 567 altered the court's sentencing discretion by making the middle term the presumptive term and therefore, the trial court imposed his sentence without informed discretion and his case should be remanded for resentencing. We conclude SB 567 altered the court's discretion and that the record is not clear whether the trial court would have imposed the same sentence had it been aware of its new discretion.
A. Relevant Facts
Kwolek waived a jury trial for a bench trial to prove his two prior strike conviction allegations. The People offered certified records from the Department of Corrections and Rehabilitation for the 1994 attempted voluntary manslaughter conviction and the 2012 assault with a deadly weapon conviction, which were admitted into evidence as Exhibits 5 and 6. The court found both allegations to be proven beyond a reasonable doubt.
At sentencing, the court began with Kwolek's Romero motion and struck the 1994 conviction for sentencing purposes. The court did not strike the 2012 conviction. In considering the Romero motion, the court stated the following:
"Looking at the nature and the circumstances of the prior strike offenses the Court really can't say much about those, because they have not provided any information from either side about the factual circumstances of either prior offense. The time between the prior offenses and the current offenses is substantial.
"The attempted voluntar[y] manslaughter occurred 26 years and eight months prior to the commission of the current offense. And the assault with a deadly weapon occurred approximately four years and five months prior to the current offense. Approximately - excuse me, occurred approximately ten years and four months - four years and five months. There was approximately a ten year and four month period between the time the defendant was paroled and discharged on his parole for the attempted voluntar[y] manslaughter and the commission of the 245(a)(1) offense which is the second strike. During that per[iod] the defendant was convicted of one misdemeanor vandalism, and one misdemeanor driving under the influence, both relatively minor offenses. Both priors involve offenses that are violent in their ordinary meaning of that word, not necessarily the meanings prescribed under 667.5(c). However, because neither side provided any factual information, I cannot determine if the defendant perpetrated the violence in those crimes or he was an aider and abetter of another person's commission of those crimes."
The court continued, stating:
"And, again, I was provided no information regarding the -any of those prior criminal record. He does have a significant record of juvenile sustained petitions and criminal convictions involving both felonies and misdemeanors. He has a history of probation and parole violations, although he has also had periods where he remained crime-free.
"It appears the defendant's criminal conduct is decreasing. And it would appear he has a history of violence, although that history appears to be old. He has a misdemeanor 245 from 38 years ago. The attempted voluntar[y] manslaughter is from 26 years and eight months ago. And the 245 is from nine years and eight months ago.
"The circumstances of the current offense are nonviolent. The conduct is not the same as the strike priors. The defendant was cooperative with the law enforcement officers when they contacted him.
"The current offense is troubling in that one it appears that the defendant overreacted to the victim telling him that he needed to leave and she was calling the police, that he then went up the stairs to her location after making the threat that he was quote 'going to kill somebody,' unquote. Not necessarily directed specifically at her, but that would be the reasonable inference under the circumstances. And that he then returned to the location later in the day. However, it should be recognized if he desired to hurt the victim, he could easily have done so.
"The first incident he was separated from the victim only by a glass door, which he did not - easily could have broken open to get to her and did not do so.
"And on the second incident there a video of the incident where you could hear the victim's keys as she was exiting her employment, she stopped to lock the glass door. The defendant was sitting in the stairwell, she walked past him while he was sitting in the stairwell. He simply got up and followed her after that down the stairs and sat in a planter, watching her as she sat in her car calling the police. He easily could have overtaken her in the stairwells and assaulted her there, or gone in and broken a window in a car. Did some attempt to attack her, but he made no attempt to physically assault her. It seemed to be more everything was done to make her in fear."
At sentencing, the court heard from the victim, B.D., who explained the residual fear she experiences as a result of this incident. The court then stated:
"As to the appropriate term of imprisonment, there is nothing remarkable or noteworthy about the current offense. No weapon was used. It does not indicate sophistication professionalism or planning.
"As to the defendant himself, he has engaged in violent conduct in the past. However, that conduct was quite some time ago. He does have a significant criminal history, and both as a juvenile and an adult, it started from 1977 to now. We had two felonies as a juvenile, although that is most juvenile offenses are felonies, so that is not too surprising. But he has three felonies as an adult, which would also be a reason why he would be ineligible for probation. And he has four adult misdemeanors. He has served two prior prison terms. And his prior performance on probation and parole has been unsatisfactory.
"Based upon all that it appears to me that the appropriate term for the attempted criminal threat is the upper term of 18 months, that would be doubled by operation of the strike prior to 36 month term. And there would be an additional five [year] term on the violation of Penal Code section 667[, subd.] (a)(1)."
We assume the trial court misspoke when it said five month term since section 667, subdivision (a)(1) is a five-year enhancement.
B. Applicable Law and Standard of Review
Effective January 1, 2022, SB 567 amended section 1170, subdivision (b), making the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist. Section 1170, subdivision (b) now states in 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. This paragraph does not apply to enhancements imposed on prior convictions."
We decide de novo the legal issue of whether Kwolek should benefit from the change in the law. (See People v. Lofchie (2014) 229 Cal.App.4th 240, 250.)
C. Analysis
SB 567 became effective January 1, 2022. When the Legislature amends a statute reducing punishment without stating whether it should be given retroactive effect, the new law applies in all cases in which the judgment is not yet final. (In re Estrada (1965) 63 Cal.2d 740, 742.) Estrada's retroactivity also applies where there are ameliorative changes in the law that provide a new opportunity for imposition of a lesser punishment. (See People v. Frahs (2020) 9 Cal.5th 618, 629-631 [Estrada requires retroactive application of new law providing a new opportunity for imposition of a lesser punishment-mental health diversion]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [Estrada requires retroactive application of new law providing a new opportunity for imposition of a lesser punishment-a juvenile disposition]; People v. Francis (1969) 71 Cal.2d 66, 76-77 [Estrada requires retroactive application of new law providing an opportunity for imposition of a lesser punishment-misdemeanor sentencing].) Because SB 567 makes a lesser punishment possible, and because the Legislature gave no indication it intended the changes to apply prospectively only, its ameliorative changes apply retroactively to nonfinal judgments. (People v. Lopez (2022) 78 Cal.App.5th 459, 461 (Lopez); People v. Garcia (2022) 76 Cal.App.5th 887, 902; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 (Flores); see People v. Frahs, supra, at p. 634; In re Estrada, supra, at p. 742; see People v. Esquivel (2021) 11 Cal.5th 671, 677.)
Kwolek's judgment is not yet final since his appeal was still pending when SB 567 became effective. (See People v. Babylon (1985) 39 Cal.3d 719, 722; People v. Shabazz (2015) 237 Cal.App.4th 303, 312; In re N.D. (2008) 167 Cal.App.4th 885, 891.) It is undisputed that Kwolek is entitled to retroactive application of the ameliorative changes effected by SB 567. (See People v. Jones (2022) 79 Cal.App.5th 37, 45.)
The former version of section 1170 stated that "[w]hen a judgment of imprisonment [was] to be imposed and the statute specifie[d] three possible terms, the choice of the appropriate term . . . rest[ed] within the sound discretion of the court." (§ 1170, former subd. (b).) This version gave the sentencing court broad discretion to decide which of the three terms of imprisonment to choose by weighing the aggravating and mitigating circumstances and choosing which term best served the interests of justice. (See People v. Wandrey (2022) 80 Cal.App.5th 962, 981 (Wandrey), review granted Sept. 28, 2022, S275942; People v. Salazar (2022) 80 Cal.App.5th 453, 462, review granted Oct. 12, 2022, S275788.)
SB 567 amended section 1170, subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment, unless certain circumstances exist. (People v. Dunn (2022) 81 Cal.App.5th 394, 402, as modified,Jul. 20, 2022, review granted Oct. 12, 2022, S275655 (Dunn).) Specifically, the middle term is now the maximum term of imprisonment that may be imposed unless there are circumstances in aggravation that justify imposition of a term exceeding the middle term, which must be admitted or proven true beyond a reasonable doubt. (§ 1170, subd. (b)(1), (2).) Retrospective application of these changes creates two separate issues to address: the first issue is that the facts the court relies on in finding aggravating circumstances must comply with the new legislative standard; and the second issue is the change in the court's discretion by "specifying a legislatively determined presumptive sentence." (See Wandrey, supra, 80 Cal.App.5th at p. 982.)
The Courts of Appeal are divided on the applicable standard for assessing prejudice in this situation, and the issue is currently pending before our Supreme Court. (See People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942.) In Flores, supra, 75 Cal.App.5th 495, Division Three of the First District Court of Appeal concluded a remand for resentencing is unnecessary if the reviewing court can determine beyond a reasonable doubt that the jury would have found true at least one aggravating factor. (Flores, at pp. 500-501.) In Lopez, supra, 78 Cal.App.5th 459, Division One of the Fourth District Court of Appeal concluded a remand is necessary unless the reviewing court can (1) determine beyond a reasonable doubt that the jury would have found true all the aggravating factors the trial court cited, or (2) conclude, "to the degree required by People v. Watson (1956) 46 Cal.2d 818, 836," that the trial court would have reached the same decision even if it knew it could not properly rely on all the factors it did. (Lopez, at p. 467, fn. 11).
In Dunn, a panel of this court concluded, since the type of error at issue has both federal Constitutional and state law dimensions, "the correct standard for harmless error lies between the standards articulated in Flores and Lopez." (Dunn, supra, 81 Cal.App.5th at pp. 408-409.) Dunn described the standard for assessing prejudice as follows: "The 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 all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless. If not, the reviewing court moves to the second step of Lopez, (2) whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing ...." (Dunn, supra, at pp. 409-410, fn. omitted.)
We conclude, here, even if the upper term sentence could still be legally imposed under federal and state law, no application of the harmless error test can be properly employed to preclude resentencing. "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez); see Townsend v. Burke (1948) 334 U.S. 736, 741.) 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.'" (Gutierrez, supra, at p. 1391; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 (Belmontes).) "This means we must ask . . . whether the trial court would have exercised its discretion in the same way if it had been aware of the statutory presumption in favor of the middle term." (Wandrey, supra, 80 Cal.App.5th at p. 474; Lopez, supra, 78 Cal.App.5th at pp. 463, 466-467, fns. 10 &11.) In such case, "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.'" (Gutierrez, supra, at p. 1391; Belmontes, supra, at p. 348; see People v. Rodriguez (1998) 17 Cal.4th 253, 257.)
In Gutierrez, the California Supreme Court considered a retroactive change in the law expanding the trial court's sentencing discretion by eliminating the presumption in favor of life without the possibility of parole for 16- to 17-year-old juveniles convicted of special circumstance murder. (Gutierrez, supra, 58 Cal.4th at p. 1391.) By eliminating the presumption, the change in the law expanded the trial court's discretion. (Id. at p. 1382.) The Gutierrez court concluded the records did not clearly indicate that the courts would have imposed the same sentence had they been aware of the full scope of their discretion and remanded the cases for resentencing. (Id. at p. 1391.)
Like in Gutierrez, SB 567 changed the trial court's discretion at sentencing. Rather than the previous broad discretion given to the trial courts in deciding which term to impose, the trial courts are now restricted to a presumption of the middle term. (§ 1170, subd. (b)(1); see Dunn, supra, 81 Cal.App.5th at p. 402.) "[I]t is one thing to say that a court, confronting [three] permissible sentencing options, may impose the harsher sentence if it finds that sentence justified by the circumstances. It is quite another to say that a court, bound by a presumption [not to exceed the middle term], must impose that sentence unless it finds good reasons not to do so. When the choice between [three] sentences must be made by weighing intangible factors, a presumption in favor of one sentence can be decisive in many cases." (Gutierrez, supra, 58 Cal.4th at p. 1382.) Therefore, since the law retroactively restricts the court's discretion from three potential sentences to a presumption in favor of one sentence, "concomitantly circumscrib[ing]" its discretion, the case requires resentencing unless the record clearly indicates the trial court would have imposed the upper term had it known of the new presumptive middle term. (See id. at p. 1391, quoting People v. Guinn (1994) 28 Cal.App.4th 1130, 1142, disapproved of on other grounds by Gutierrez, supra, 58 Cal.4th at p. 1387; accord, Flores, supra, 9 Cal.5th at pp. 431-432.)
In this case, the record demonstrates the trial court found both mitigating and aggravating circumstances. While the court stated Kwolek has a history of violence, it noted that it was "quite some time ago." And while it stated that Kwolek has a "significant criminal history," it also noted that "defendant's criminal conduct is decreasing." The court struck Kwolek's 1994 strike conviction but did not strike his 2012 strike conviction. The court noted Kwolek has a history of probation and parole violations, but that he has also had periods where he remained crime-free. As for the circumstances of the offense, the court listed many mitigating factors: the circumstances were nonviolent, Kwolek was cooperative with the law enforcement officers. The court noted that Kwolek overreacted to B.D. telling him to leave, but that he did not attempt to physically hurt B.D. even though he could have easily done so if he desired.
Of further consideration here is that none of the aggravating circumstances the court relied upon in imposing the upper term were found true beyond a reasonable doubt or stipulated to by Kwolek as required under section 1170, subdivision (b)(2). The only facts that did comply with section 1170, subdivision (b) were two of the convictions underlying the aggravating circumstance that Kwolek had a "significant criminal history." (See Cal. Rules of Court, rule 4.421, subd. (b)(2).) Kwolek's two prior strike convictions were found true beyond a reasonable doubt by the court in a bifurcated bench trial in compliance with section 1170, subdivision (b)(2) and were also verified by certified records in compliance with section 1170, subdivision (b)(3). However, courts have generally required at least three prior convictions or more to be considered "numerous." (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior driving while intoxicated convictions are" 'numerous' "]; People v. Stuart (2008) 159 Cal.App.4th 312, 314 [six prior misdemeanor convictions were" 'numerous' "].) Kwolek's two convictions are insufficient to prove the aggravating circumstance that his convictions were "numerous."
The record demonstrates a balance between mitigating and aggravating circumstances and the aggravating circumstances are not in compliance with section 1170, subdivision (b). Therefore, we conclude the record does not clearly indicate whether the trial court would have imposed the upper term had it been aware of the new constraint on its discretion. Accordingly, we remand the case for resentencing. (See Gutierrez, supra, at 58 Cal.4th at p. 1391.) Furthermore, we need not address whether the trial court erred by relying on facts no longer in compliance with section 1170, subdivision (b) in imposing the upper term as the court will be able to comply with the amended section 1170, subdivision (b) at resentencing.
DISPOSITION
The matter is remanded for resentencing in light of SB 567. The judgment is otherwise affirmed.
WE CONCUR: MEEHAN, Acting P. J. DE SANTOS, J.