Opinion
A166702
05-06-2024
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL LEE OWEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR1802335
STEWART, P.J.
This case returns to us after a prior remand for resentencing in light of amendments to Penal Code section 1170 that became effective subsequent to Gabriel Lee Owen's trial. Owen contends another remand is necessary because the trial court failed to comply with the remittitur directing it to resentence him in accordance with the amended statute and imposed upper term sentences that did not satisfy the statutory requirements. He further contends the court erred in failing to obtain an updated probation report and in not awarding credit for all actual custody served. We affirm.
Further statutory references will be to the Penal Code.
BACKGROUND
I.
Factual Background
After a jury trial in 2019, Owen was convicted of multiple offenses including sexual offenses committed against two women, each the mother of one of his children. The underlying facts are described at length in our unpublished opinion on Owen's prior appeal. (People v. Owen (April 6, 2022, A161067 [nonpub. opn.] (Owen).) For present purposes, a summary of the conduct described by the two women, Jane Doe 1 and Jane Doe 2, is sufficient.
Jane Doe 1 testified that Owen was first violent toward her when their daughter was about six months old: While she was sitting in a rocking chair breastfeeding the baby, Owen tried to force her to perform oral sex on him by rubbing his erect penis on her face and attempting to force it into her mouth, despite her telling him to leave her alone. (Owen, supra, A161067.) On another occasion, Owen sat on Jane Doe 1's chest with his knees pinning down her arms and tried to force his penis into her mouth; when she told him she did not want to do this, he told her," 'It's not up to you.'" (Ibid.) Another time, when Jane Doe 1 allowed Owen to come over to see their two-year-old daughter, Owen pushed Jane Doe 1 down on the bed, got on top of her and, with their daughter standing next to the bed, face to face with Jane Doe 1, pulled down Jane Doe 1's pants and put his fingers in her vagina and anus. (This act was charged as count 2.) Owen stopped after about 10 minutes and Jane Doe 1 got up and pulled up her pants, then Owen pushed her into the bathroom and locked the door. While their daughter pounded on the door, crying and saying" 'mama,'" Owen bent Jane Doe 1 over the sink, pulled down her pants, unzipped his and, over her protests, thrust his penis in and out of her anus until he ejaculated. (This act was charged as count 1.) (Ibid.)
Owen also subjected Jane Doe 1 to nonsexual violence including frequently pinching and twisting her skin until it left bruises, trying to burn her with his cigarette, once grabbing her by the hair while she was driving and once charging at her and pinning her against the wall. (Owen, supra, A161067.) He made threats including that he would drown her in the toilet, throw her in the bay, shoot her with a lethal dose of drugs, and find a new mother for their daughter; Jane Doe 1 believed Owen was capable of carrying out the threats because he had told her he had gotten away with killing people. Owen told her almost daily that she was his property and said" 'he could have anyone raped and murdered for $5,000, and not to piss him off.'" When she tried to end the relationship, he told her he" 'didn't release ownership'" of her. (Ibid.) Jane Doe 1 had seen Owen shooting his gun out the front door, where he had been standing arguing with a man who worked for him, and was afraid he had killed someone, then later learned Owen had "shot around the man." (Ibid.)
After Jane Doe 1 was able to end the relationship and married another man, her daughter would return from visits with Owen relating threatening things he had said, including that he needed a gun for Jane Doe 1's husband and was going to feed him to the sharks and that he was going to kill Jane Doe 1 if the daughter did not eat her dinner. (Owen, supra, A161067.)
Jane Doe 2, the mother of Owen's younger daughter, testified that the first sexually assaultive act that" 'really scared'" her was when she was pregnant, on bedrest due to preterm labor, and Owen subjected her to vaginal and anal intercourse despite her protests that she was not supposed to have sex and did not want to. (Owen, supra, A161067.) In an incident after the baby was born, while Jane Doe 2 was at the kitchen counter making dinner and the baby was in the living room, Owen pressed himself against Jane Doe 2 from behind and pulled her pants and underwear down to her ankles; she told him she did not want to have sex and he unzipped his pants and tried to put his penis into her vagina as she tried to push him away and told him to leave her alone. (Ibid.) Owen sexually assaulted Jane Doe 2 in their bedroom multiple times. In the incident she eventually reported to the police, he wanted to have sex while she was breastfeeding the baby in bed. She told him she did not want to and as he began to "grab and grope at" her breasts and she told him to leave her alone, he laughed and said she was" 'his,'" he owned her and" '[i]t is his body.'" (Ibid.) He then touched her vaginal and anal areas with his fingers and penetrated her anally with his fingers multiple times. She tried to squirm away but had nowhere to move because the baby was" 'right there.' "
Aside from the sexual assaults, Jane Doe 2 testified that multiple times during her pregnancy, Owen took her keys and phone away so she could not leave when she wanted to, including a time when she did not feel the baby moving and wanted to go to the doctor. Owen ended up driving her and on the way she became emotional and wanted to get out of the car; he locked the doors and would not let her out, then said" 'maybe we should just cut the baby out of you, you are clearly crazy and don't deserve to be a mom.'" (Owen, supra, A161067.) During their relationship, Owen indirectly threatened her by saying that if she" 'didn't act a certain way or do a certain thing that there would be harm to friends or family,'" and he told her daily that he" 'owned" her.'" (Ibid.) Owen's temper scared her, and she felt the only way to stay safe was to" 'try to control the situation as best I could.'" Owen never hit her, but she saw him" '[h]itting things, throwing things, extremely raised voice, violent threats' when he was angry." Owen kept" 'duffel bags full'" of firearms in their home, which he eventually took to a neighbor's house. (Ibid.) The police subsequently seized a bag the neighbor said Owen had brought to his house, which contained three rifles, a semiautomatic pistol and almost 3,000 rounds of ammunition, as well as marijuana and an assortment of knives. (Ibid.)
Jane Doe 2 received 50 to 75 letters from Owen while he was in jail, all in his own handwriting. She then received a letter from him in someone else's handwriting in which he asked her to" '[p]lease just say Jane Doe 1 offered to pay you to get rid of me'" or" 'just say you thought I was cheating,'" expressed his love for her and begged her to" 'bring me home for the girls.'" (Owen, supra, A161067.)
II.
Procedural Background
Owen was charged with and convicted of two offenses against Jane Doe 1, forcible sodomy (§ 286, subd. (c)(2)(A)) (count 1) and sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) (count 2); two offenses against Jane Doe 2, felony sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) (count 3) and misdemeanor sexual battery (§ 243.4, subd. (e)(1)) (count 9); four counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)) (counts 4 through 7); and one count of possession of ammunition by a felon (§ 30305, subd. (a)(1)) (count 8). He was sentenced to a prison term of 24 years and 8 months, which included upper term sentences for the three felony sexual offenses.
After we affirmed the judgment, Senate Bill No. 567 went into effect, imposing new requirements for sentencing under Penal Code section 1170. (Stats. 2021, ch.731, § 1.3.) In response to Owen's petition for review, the California Supreme Court transferred the case back to us with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 567. (Owen, supra, A161067.) Our unpublished opinion, filed on April 6, 2022, affirmed Owen's convictions but remanded for resentencing in light of Senate Bill No. 567. (Owen, supra, A161067.)
On October 28, 2022, the trial court resentenced Owen to the same term previously imposed. Owen filed a timely notice of appeal on November 28, 2022.
DISCUSSION
I.
Resentencing Is Not Required.
Owen's fundamental claim on appeal is that the trial court's resentencing decision cannot stand because none of the aggravating circumstances the court relied on were proven in accordance with section 1170, subdivision (b), as amended by Senate Bill No. 567. He frames his challenge as two separate arguments: first, that resentencing is required because the trial court did not comply with the directions in our remittitur, and second, that the court's failure to comply with the Senate Bill No. 567 amendments was prejudicial. As will be seen, because our remand order directed resentencing in accordance with Senate Bill No. 567, the two arguments need not be treated separately. Although we agree that the trial court misunderstood the requirements imposed by our order, we disagree that Owen is entitled to another resentencing hearing.
The People contend Owen forfeited his argument that the trial court failed to comply with the requirements of section 1170, subdivision (b), as amended, and simply argued the court should exercise its discretion in favor of the middle term. Owen concedes that defense counsel did not object to the court's noncompliance with Senate Bill No. 567 but relies on the principle that failure to object does not forfeit the point where objection would have been futile. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365, fn. 8.) Owen argues that objecting to imposition of the upper term based on circumstances that had not been found true beyond a reasonable doubt by the jury would have been futile because, in arguing for a middle term sentence, counsel told the court that the aggravating circumstances had not been proved. We note that defense counsel also implicitly addressed this point in stating his disagreement with the prosecutor's interpretation of our prior opinion, defense counsel argued that our opinion "expressly rejected" the People's argument that the jury would have found the aggravating factors true and "that's why it was remanded for resentencing." We need not resolve whether Owen properly preserved his argument that the trial court violated Senate Bill No. 567, however, because we will address the same issues in the context of Owen's remittitur argument.
A. Background
1. The Prior Appeal
At the time defendant was sentenced, section 1170, subdivision (b) gave the trial court broad discretion to decide which of the three terms specified for an offense would best serve the interests of justice. (See § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 14.) As described in our previous opinion, in imposing upper term sentences on the three felony sexual offenses, the trial court relied upon two aggravating factors related to the offenses (the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421, subd. (a)(1)) and defendant took advantage of a position of trust or confidence (rule 4.421, subd. (a)(11)), as well as one factor relating to the defendant (his conduct indicates a serious danger to society (rule 4.421, subd. (b)(1)) and the court's conclusion that defendant lacked any" 'recognition of the offense.'" (Owen, supra, A161067.)
Further references to rules will be to the California Rules of Court.
Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b) in a number of respects, one of which was to make the middle term of imprisonment the presumptive sentence. (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.3.) Under the amended statute, a court "must impose the middle term for any offense that provides for a sentencing triad unless 'there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have 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)(1) &(2).)" (People v. Lopez (2022) 78 Cal.App.5th 459, 464 (Lopez).) The Senate Bill No. 567 amendments apply retroactively to this case as "an ameliorative change in the law applicable to all nonfinal convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)" (People v. Flores (2022) 73 Cal.App.5th 1032, 1039, fn. omitted.)
The People urged us to find that the jury would have found the aggravating factors the trial court relied on true beyond a reasonable doubt because the verdict convicting Owen of all the charged offenses showed the jury unequivocally believed the victims' versions of the events and all the aggravating factors pertaining to the offenses were supported by the record. The argument likened noncompliance with the Senate Bill No. 567 amendments to error under Cunningham v. California (2007) 549 U.S. 270, which held unconstitutional a version of section 1170, subdivision (b), that allowed a sentencing court to find the facts that exposed a defendant to an elevated sentence. (Owen, supra, A161067.) Cunningham error is harmless "if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury." (People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).)
We explained that "[t]he issue in the present case is not precisely the same as with Cunningham error. In the Cunningham situation, the trial court has properly exercised its discretion in determining the sentence and the question is whether the facts underlying its decision were determined according to the required standard. The Senate Bill No. 567 amendments add an additional component, changing the framework within which the trial court exercises its discretion by specifying a legislatively determined presumptive sentence." (Owen, supra, A161067.) We stated, "Even if we could conclude the jury would have found the aggravating circumstances the trial court relied upon beyond a reasonable doubt, we cannot be confident the trial court would have exercised its discretion in the same way if it had taken the statutory presumption in favor of the middle term" into account. (Ibid.)
We went on to explain that although the trial court ultimately found the aggravating circumstances predominated and found only a single mitigating factor, the court did not agree with all the aggravating factors recommended by the probation report and the district attorney and declined to find the victims particularly vulnerable (rule 4.421, subd. (a)(3)) or Owen's prior convictions numerous or of increasing seriousness (id., subd. (b)(2)). (Owen, supra, A161067.) We particularly noted the trial court's statement that it" 'was wobbling on whether these should be middle term or aggravated term offenses.'" (Ibid.) We concluded that "[g]iven this indication of openness to consideration of middle term sentences even without a statutory presumption favoring the middle term," remand was appropriate because the record did not "clearly indicate" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391) the trial court would have imposed the aggravated terms if it had been aware there was a statutory presumption in favor of the middle term. (Owen, supra, A161067.) We remanded "for resentencing in light of Senate Bill No. 567" and otherwise affirmed the judgment. (Owen, supra, A161067.)
2. Proceedings on Remand
At the outset of the resentencing hearing, the trial court stated that the judgment "was affirmed in all respects, with the exception that with the change in the law, there was not a jury determination relative to the circumstances in aggravation or mitigation, and that it's returned on that basis."
Defense counsel asked the trial court to impose middle term sentences on counts 1, 2 and 3. Counsel noted that at the original sentencing, the court had been "sort of on the fence" about whether to impose the aggravated term or the middle term on these counts and urged that the Legislature's decision to make the middle term the presumptive term "tips the scale in favor of the middle term." Counsel also argued that that the aggravating factors had not been proved.
The prosecutor maintained that the sentence should not be changed and the aggravating circumstances "can be determined from the jury's verdict." The prosecutor argued that the jurors would have "made the finding that the crimes involved great violence, as they convicted him of three violent crimes," would have found Owen took advantage of a position of trust in that "both victims were people that he had children with and had prior intimate relations with," would have found Owen engaged in violent conduct that is a serious danger to society, and would have found Owen's prior convictions were of increasing seriousness, as his prior felony conviction was a 2014 possession with intent to sell and the crimes in the present case are "certainly more serious." The prosecutor further argued that the middle term presumption had been rebutted by the evidence presented at trial and at the original sentencing hearing. Finally, the prosecutor argued that our prior opinion "made it clear" that we could have affirmed the upper terms based on the jury's findings and that we were "primarily" concerned with "the Court's comments about . . . considering the middle term versus the upper term." According to the prosecutor, our opinion "made it clear" that it was "within the purview of both the Court of Appeal[] and this Court at sentencing" to "find beyond a reasonable doubt that the jury would've found those aggravating factors to be present" and "[i]t doesn't need to have a jury make the factual findings when it's clear from the verdict what those findings would be."
Defense counsel disagreed with this interpretation of our prior opinion. Counsel stated that we expressly rejected the People's argument that the error was harmless because the jury would have found the aggravating factors true and "that's why it was remanded for resentencing." Regarding the prosecutor's argument that Owen's prior convictions were numerous and of increasing seriousness, counsel pointed out that the trial court had previously found this factor inapplicable. Counsel also urged that the prosecutor's other arguments were speculative since, if the case had gone to trial after the Senate Bill No. 567 amendments became effective, "all of those factors would've been subject to dispute and argument" and there is no way to "intelligently determine" what findings the jury would have made.
Jane Doe 1 spoke at the hearing and the prosecutor read a letter from Jane Doe 2; both women described ongoing trauma and fear for their safety when Owen was released and urged the court not to reduce his sentence. Owen addressed the court and asserted that he had never hurt anyone, loved both of the mothers of his children and would never hurt them, that Jane Doe 1 raped him and that "fake" evidence was presented at trial.
Stating that the reason for the remand was the change in law to presume the middle term, the trial court explained that even before Senate Bill No. 567 it had understood the middle term to be the "first stop" in consideration of a sentence, with the court needing to justify a deviation to the upper term "on the record and in a . . . verifiable fashion that's unassailable." The court stated that since it had "said the word 'wobbling,'" the Court of Appeal had to consider whether the trial court would have made a different determination with the presumption in place.
The trial court explained: "What I should have said is that I considered deeply the issue of whether this should be a middle term or an aggravated term. And as noted in the record, I did not find some of those circumstances in aggravation that the probation department proposed to me. So by saying 'wobbling,' . . . my intent was to say that I have considered with great seriousness the viability of those circumstances in aggravation and whether an aggravated term was appropriate in this particular case." Stating that the comments at the hearing "solidify . . . the circumstances in aggravation that the Court did find," the court and elaborated: "[U]nder Rule 4.421(a)(1), the nature of the crime involving great bodily harm, great-threat of great bodily harm and other acts disclosing a high degree of cruelty, viciousness or callousness. I'll highlight 'callousness.' [¶] That the defendant took advantage of a position of trust, there's absolutely no doubt about that. So that's pursuant to rule 4.421(a)(11). [¶] And then I would highlight again, and I think it's pretty evident from the record today, Rule 4.421(b)(1). And I think what I said is that-I concluded at that time, and I think it's highlighted today, that the defendant lacks any recognition of the offense. So those are only solidified in my mind today." The court concluded, "[i]t's the Court's determination, after remand and with the consideration of the change in the law for the presumption of the middle term, that the aggravated term is the appropriate term in this particular matter."
B. The Trial Court Did Not Fully Comply with the Remittitur.
A reviewing court's order" 'is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.'" (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad), quoting Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701.) After the remittitur, "the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court." (People v. Dutra (2006) 145 Cal.App.4th 1359, 1366 (Dutra).)" 'Where a reviewing court reverses a judgment with directions . . . the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court.' [Citations.]" (Id. at p. 1367.)" 'Any material variance from the directions is unauthorized and void.'" (Ayyad, at p. 860, quoting Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982; Dutra, at p. 1367.)
"Our remittitur directions are contained in the dispositional language of our previous opinion." (Ayyad, supra, 210 Cal.App.4th at p. 859.) "If a remittitur is ambiguous the trial court can interpret it in light of the law and the appellate opinion to determine its duties" (Dutra, supra, 145 Cal.App.4th at p. 1368), and when the reviewing court remands the matter for further proceedings, "its directions must be read in conjunction with the opinion as a whole." (Ayyad, at p. 859.) We review de novo whether the trial court has correctly interpreted our opinion. (Ibid.)
Our disposition on the prior appeal stated, "The matter is remanded for resentencing in light of Senate Bill No. 567. In all other respects, the judgment is affirmed." Because Owen's trial and sentencing predated the effective date of Senate Bill No. 567, the upper terms posed two problems: The jury had not made the requisite underlying factual findings and the trial court had chosen to impose the upper terms without knowing of the new statutory presumption in favor of the middle term. The trial court noted at the outset of the resentencing hearing that the case had returned because "there was not a jury determination relative to circumstances in aggravation and mitigation." After hearing the parties' arguments, however, the court stated that the reason for the remand was "simply some, I suppose, opportunity for the Court now that the law has changed . . . to presume the middle term." The court went on to explain that the hearing had solidified its view of the aggravating circumstances it previously found and ruled that "with the consideration of the change in the law for the presumption of the middle term," the aggravated term was appropriate. The court did not address the issue of jury findings.
The People argue that the trial court properly interpreted our remittitur to require only an exercise of discretion in light of the new statutory presumption because our opinion "implicitly" found the absence of jury findings harmless beyond a reasonable doubt. We did not. Our opinion expressly stated, "Even if we could conclude the jury would have found the aggravating circumstances the trial court relied upon beyond a reasonable doubt, we cannot be confident the trial court would have exercised its discretion in the same way if it had taken [into account] the statutory presumption in favor of the middle term." (Owen, supra, A161067, italics added.) As the italicized language makes clear, we did not make any determination as to whether the jury would have found the facts underlying the aggravating circumstances; we found it unnecessary to do so because the matter would have to be remanded in any event.
In directing the trial court to resentence Owen "in light of Senate Bill No. 567," we expected the trial court to comply with both requirements for imposition of the upper terms-properly established aggravating circumstances (i.e., stipulated by Owen or found by the jury beyond a reasonable doubt) and a discretionary determination that departure from the presumptive middle term was justified. Although the language of our disposition was general, other remanding courts have spelled out what we considered inherent in the remand order: The People must be given the option "to proceed by meeting the requirements of the amended version of section 1170, subdivision (b)(2) regarding the requirement that true findings on facts underlying aggravating circumstances other than a prior conviction be found by a jury or admitted by the defendant, or alternatively, to have the court resentence [Owen] on the record as it stands." (Lopez, supra, 78 Cal.App.5th at p. 469; People v. Sherman (2022) 86 Cal.App.5th 402, 416417; People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 928.) The trial court followed our directions to resentence Owen in light of Senate Bill No. 567 as to the upward departure from the presumptive middle term but not as to reliance only on aggravating circumstances established in accordance with the new statutory requirements.
C. Resentencing Is Not Required. 1. The Error in Following Remand Instructions Does Not Require Resentencing.
Although the trial court failed to ensure the aggravating circumstances it relied on were proven in accordance with the amended section 1170, subdivision (b), we disagree with Owen's contention that another remand is required. Owen relies on People v. Saunoa (2006) 139 Cal.App.4th 870, 872, for the proposition that" 'No authority exists for conducting a harmless error analysis in this context.'" In Saunoa, the trial court began the defendant's retrial after the appellate court reversed his conviction but before issuance of the remittitur. On appeal from the resulting conviction, Saunoa held the trial court lacked jurisdiction to hold the retrial: Since the filing of the notice of appeal from the first conviction transferred jurisdiction to the appellate court until issuance of the remittitur, the trial court lacked authority to act until the remittitur issued and jurisdiction transferred to the trial court. (Id. at p. 872.) That situation is not analogous to ours. Our remittitur issued on July 11, 2022. The trial court had jurisdiction when it resentenced Owen on October 28, 2022.
"A trial court may not disobey a remittitur." (Dutra, supra, 145 Cal.App.4th at p. 1362.) It has no authority to retry an issue or make findings the remittitur does not direct, and a proceeding or judgment contrary to the appellate court's directions" 'would be void.'" (Id. at p. 1367, quoting Carter v. Superior Court (1950) 96 Cal.App.2d 388, 391.) In Dutra, for example, the trial court refused to conduct the resentencing hearing ordered by the appellate court because an intervening change in law negated the law that had required resentencing. (Dutra, at pp. 1361-1362.) Dutra held the trial court was required to follow the remittitur "whether the trial court believed our decision was right or wrong, or had been impaired by subsequent decisions." (Id. at p. 1367; but see People v. Hargis (2019) 33 Cal.App.5th 199, 207-208 [trial court could follow new law in "unique circumstances" of case].)
Here, the trial court did not disobey the remittitur: It did resentence Owen "in light of Senate Bill No. 567" as we directed. But it made a mistake in doing so without addressing the requirement of jury findings on the aggravating factors as well as the effect of the statutory middle term presumption on its choice of sentence. In other words, the court followed our directions but erred in applying the statute we directed it to apply. We do not believe this error rendered the court's order void so as to preclude harmless error analysis.
To the extent the trial court believed we had resolved the jury findings issue, it was mistaken for the reasons we have explained. To the extent it may have been misled by the People's argument that the trial court could find the jury would have made the required findings, it was wrong. We are aware of no authority allowing a trial court to find the absence of findings required by Senate Bill No. 567 harmless error when a case has been remanded for compliance with the amended statute. Permitting a trial court to impose an aggravated term based on its own determination that the jury would have made the finding if it had been asked to do so would go a long way toward negating the statutory requirement of jury findings.
On the prior appeal, we did not determine whether we could find beyond a reasonable doubt that the jury would have found the aggravating circumstances true beyond a reasonable doubt because, even if we had made that determination, the trial court's remarks at the original sentencing hearing prevented us from finding it clearly would have exercised its discretion the same way despite the new statutory presumption. Since we could not find the lack of compliance with the requirements of Senate Bill No. 567 harmless, it would not have been appropriate to resolve whether the jury would have made the findings necessary to allow the trial court to impose the upper term because the trial court would have the opportunity to comply with Senate Bill No. 567 on remand by holding a jury trial (or, on Owen's waiver, a court trial) on the aggravating factors or sentencing Owen without reliance on aggravating circumstances that had not been properly proven. (Lopez, supra, 78 Cal.App.5th at p. 469; People v. Sherman, supra, 86 Cal.App.5th at pp. 416-417; People v. Bautista-Castanon, supra, 89 Cal.App.5th at p. 928.)
The situation now is quite different. We know the trial court would exercise its discretion to impose the upper term despite the statutory presumption if the circumstances it relied on are valid under the amended section 1170, subdivision (b), because the trial court has already made that determination. If we can determine Owen was not prejudiced by the court's reliance on aggravating factors not determined in the required manner, the trial court's error would be harmless and the outcome of a resentencing hearing a foregone conclusion.
2. The Absence of Jury Findings Was Not Prejudicial.
As the parties recognize, the Courts of Appeal have taken various approaches to assessing whether resentencing is required where trial courts imposed upper term sentences based on aggravating circumstances not properly determined under the amended section 1170, subdivision (b), and the issue is currently pending before the California Supreme Court. (People v. Lynch (May 27, 2022, C094174 [nonpub. opn.], review granted August 10, 2022, S274942.) As observed in People v. Falcon (2023) 92 Cal.App.5th 911, 933, review granted September 13, 2023, S281242), a majority of courts, including ours (People v. Wandrey (2022) 80 Cal.App.5th 962, 982, review granted September 28, 2022, S275942, review dismissed August 30, 2023, S275942), have followed some form of the two-step approach described in Lopez, supra, 78 Cal.App.5th at page 467, footnote 11, with various modifications. Lopez held that resentencing is necessary unless the reviewing court can determine beyond a reasonable doubt that the jury would have found all the aggravating factors true beyond a reasonable doubt or, if not, that it is reasonably probable the trial court would "nevertheless have exercised its discretion to select the upper term if it had recognized that it could permissibly rely on only a single one of the aggravating factors, a few of the aggravating factors, or none of the aggravating factors, rather than all of the factors on which it previously relied." (Lopez, at pp. 466-468 and fn. 11.)
The People ask us to apply the approach adopted in People v. Dunn (2022) 81 Cal.App.5th 394, review granted October 12, 2022, S275655. Under this approach, "[t]he 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 . . . [determines] (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 consistent with section 1170, subdivision (b)." (Dunn, at pp. 409-410, fn. omitted.)
We conclude that even under the more stringent Lopez analysis, resentencing is not required.
As at the original sentencing, the trial court on remand relied on the aggravating circumstances that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421, subd. (a)(1)), Owen took advantage of a position of trust or confidence (id., subd. (a)(11)), Owen's conduct indicated a serious danger to society (id., subd. (b)(1)), and Owen lacked any "recognition of the offense." (Owen, supra, A161067.) The trial court stated that its view that these aggravating circumstances applied was "solidified" by what it heard at the resentencing hearing. But all of these are circumstances that section 1170, subdivision (b)(2), now requires to be stipulated to by the defendant or found true beyond a reasonable doubt by the jury.
All of these aggravating circumstances are also the type that "rest[] on a somewhat vague or subjective standard" or "require an imprecise quantitative or comparative evaluation of the facts." (Sandoval, supra, 41 Cal.4th at p. 840.) Sandoval cautioned that for such aggravating circumstances, "it may be difficult for a reviewing court to conclude with confidence that . . . the jury would have assessed the facts in the same manner as did the trial court." (Ibid.) Reviewing courts often conclude remand is required where such aggravating circumstances were the basis for an upper term sentence and were not proven in accordance with section 1170, subdivision (b)(2). (E.g., People v. Lewis (2023) 88 Cal.App.5th 1125, 11381139, review granted May 17, 2023, S279147; People v. Ross (2022) 86 Cal.App.5th 1346, 1355-1356, review granted March 15, 2023 S278266; People v. Wandrey, supra, 80 Cal.App.5th at p. 983.)
Still, Sandoval did not hold that the absence of jury findings on this kind of aggravating circumstance can never be found harmless. Sandoval analyzed each of the aggravating circumstances and concluded it could not be confident the jury would have found them true because the relevant evidence was disputed and not overwhelming. (Sandoval, supra, 41 Cal.4th at pp. 841-843.) For example, as to aggravating circumstances that turned on findings related to the defendant's state of mind (including that the defendant was "callous" and had no concern for the consequences of her actions), Sandoval explained that the defendant's state of mind was "hotly contested" at trial and, since the jury convicted the defendant of the lesser offense of voluntary manslaughter rather than the charged premeditated murder, "[e]vidently, the jury rejected the prosecution's view of the evidence." (Id. at p. 841.) As to whether the crimes involved" 'great violence . . . or other acts disclosing a high degree of cruelty, viciousness, or callousness[]' (Rule 4.421(a)(1)[])," the jury "reasonably could have concluded that this factor did not apply to defendant because, although the crime involved great violence on the part of others, that violence did not evidence a 'high degree of cruelty, viciousness, or callousness' (ibid.) on defendant's part." (Sandoval, at pp. 842-843.) The defendant's "level of personal culpability for the violent acts of [her companions]" was a disputed issue at trial and the verdict finding voluntary manslaughter rather than murder "demonstrates that the jury found her to be less culpable than the shooters." (Id. at p. 843.)
The present case does not present such nuanced factual issues. Jane Doe 1 and Jane Doe 2 each described sexual assaults committed against the backdrop of a relationship in which Owen threatened, controlled and scared her. (Owen, supra, A161067.) Owen's defense was that the sexual assaults did not occur and he believed his sexual activity was consensual. The jury's verdicts demonstrate it rejected the defense and believed testimony of Jane Doe 1 and Jane Doe 2.
Jane Doe 1 described years of Owen insisting she was his property, threatening to kill her and have her raped, and subjecting her to sexual and nonsexual physical violence; she testified that she was scared of him and felt controlled by him. (Owen, supra, A161067.) She described him trying to force her to orally copulate him while she was breastfeeding their six-month-old baby and on another occasion sitting astride her, trying to force his penis into her mouth and telling her it was" 'not up to [her]'" when she said she did not want to do this. (Ibid.) In the incident underlying count 1, Owen pulled down Jane Doe 1's pants and digitally penetrated her vagina and anus while she told him to stop and their daughter stood next to the bed, face to face with Jane Doe 1, crying. (Ibid.) As soon as he stopped and Jane Doe got up, Owen pushed her into the bathroom, bent her over the sink and repeatedly thrust his penis into her anus until he ejaculated, while she told him to stop and their daughter pounded on the bathroom door, crying and calling for her mother. (Ibid.)
Jane Doe 2 also described Owen constantly telling her he owned her, and threatening to hurt her friends or family if she did not" 'act a certain way or do a certain thing.'" (Owen, supra, A161067.) During her pregnancy, he took away her phone and keys, even when she wanted to go to the doctor because she could not feel the baby moving; when he drove her to the doctor and she became emotional with fears about what could be happening with the baby, he locked the doors to prevent her from getting out of the car he suggested they should" 'cut the baby out'" because she was crazy and did not deserve to be a mother. (Ibid.) He subjected her to unwanted sexual activity despite her trying to push him away and telling him to leave her alone, including an occasion during her pregnancy when she told him she was not supposed to have sex because she was on bed rest and he continued to engage in vaginal and then anal intercourse, resulting in an infection. (Ibid.) In the incidents charged as counts 3 and 9, Owen wanted sex while Jane Doe 2 was breastfeeding their daughter; he laughed and told her" '[i]t is his body' " when she told him to leave her alone, then touched her vaginal and anal areas and digitally penetrated her anally as she tried to move away but was unable to because her child was" 'right there.'" (Ibid.)
Regarding the aggravating circumstance that the offense involved "great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness" (rule 4.421, subd. (a)(1)), the trial court "highlight[ed] 'callousness.'" As described by Jane Doe 1 and Jane Doe 2, Owen committed the sexual offenses not only against the will of the victims but in the immediate presence of his young children-and, in the offenses against Jane Doe 1, over the child's obvious distress. His actions reflected the belief he communicated to both women that they were his property, to do with as he pleased, regardless of their wishes; indeed, he told Jane Doe 2 during one of the assaults that her body was "his." The conduct the victims described was the very definition of callous, and highly so. As we see no way the jury could have reached its guilty verdicts without fully accepting the victims' testimony, we are convinced the jury would have found this aggravating circumstance true beyond a reasonable doubt.
We reach the same conclusion with regard to the other aggravating circumstances the trial court relied on. Owen clearly took advantage of a position of trust or confidence (rule 4.421, subd. (a)(11)): He was or had been the intimate partner of each woman and was the father of each one's child, and he exploited these relationships to impose his will on the women in committing the offenses, even in the presence of the children. The seriousness of the danger indicated by his violent conduct (rule 4.421, subd. (b)(1)) is apparent in the fact that he engaged in such similar behavior with both women-especially combined with his complete refusal or failure to recognize the offenses. Again, because the testimony of Jane Doe 1 and Jane Doe 2 fully demonstrates the applicability of these aggravating circumstances, the jury's acceptance of the victim's accounts leads us to conclude beyond a reasonable doubt that the jury would have found each of these aggravating circumstances beyond a reasonable doubt.
Since the trial court found the upper term sentences justified even after consideration of the legislative presumption in favor of the middle term established by Senate Bill No. 567, our conclusion that the absence of jury findings was not prejudicial negates any need for another resentencing hearing.
II.
Owen Forfeited His Claim That the Trial Court Erred in Failing to Order a Supplemental Probation Report.
Owen contends the trial court committed prejudicial error in failing to order an updated probation report before resentencing him. This claim was forfeited by Owen's failure to request a supplemental report or object to the court proceeding without one.
Section 1203, subdivision (b)(1), requires trial courts to order a probation report for a person convicted of a felony and eligible for probation; a supplemental report is required "if a significant period of time has passed since the original report was prepared." (Rule 4.411, subd. (a)(2.) Where a person is not eligible for probation, "[t]he judge, in their discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person." (§ 1203, subd. (g).)
Owen maintains he was eligible for probation for purposes of the mandatory probation report requirement. More precisely, he maintains he was statutorily ineligible for probation except in unusual circumstances and relies on cases holding a probation report is required unless the defendant is entirely ineligible for probation. (People v. Bohannon (2000) 82 Cal.App.4th 798, 809 ["Legislature has not sanctioned sentencings without probation reports except in those situations in which a defendant is wholly ineligible"]; People v. Mariano (1983) 144 Cal.App.3d 814, 821-822 [probation report required if defendant would be eligible for probation in unusual circumstances].)
Owen fails to recognize that he was in fact wholly ineligible for probation. Owen's offenses included convictions for violations of section 286, subdivision (c)(2)(A), and section 289, subdivision (a)(1)(A). These offenses are among those for which the Legislature has entirely precluded probation. (§ 1203.065, subd. (a) ["Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is convicted of violating . . . paragraph (2) or (3) of subdivision (c) . . . of Section 286, . . . [or] subdivision (a) . . .of Section 289 . . . "].) Accordingly, the trial court had discretion to order a probation report but was not required to do so.
The probation report for Owen's original sentencing stated that he was ineligible for probation except in unusual circumstances pursuant to section 1203, subdivision (e)(5) (due to the section 286 conviction) and subdivision (e)(4) (two or more prior felony convictions). The report did not mention section 1203.065.
Owen acknowledges that his attorney did not request a probation report prior to resentencing or object to proceeding without one. "Where, as here, a defendant is ineligible for probation, such omissions result in waiver of a supplemental report in the trial court and forfeiture of the right to object to the absence of such a report on appeal." (People v. Franco (2014) 232 Cal.App.4th 831, 834.) Owen relies on People v. Dobbins (2005)
127 Cal.App.4th 176, 181, to argue his right to a probation report was not forfeited because section 1203, subdivision (b)(4), provides that preparation or consideration of the probation report "may be waived only by a written stipulation of the prosecuting and defense attorneys . . . or an oral stipulation in open court." "This stipulation requirement, however, is predicated on section 1203, subdivision (b)(1), which refers to 'a person . . . eligible for probation.'" (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432.) Where the defendant is ineligible for probation, section 1203, subdivision (b)(4), is inapplicable. (Johnson, at p. 1432.) The defendant in Dobbins was eligible for probation; Owen is not.
This issue has not been preserved for appeal.
III.
Owen Is Not Entitled to Additional Custody Credits.
Owen's final contention is that the trial court erred in failing to award him credit for all actual custody he had served as of the date of the resentencing hearing. The trial court left unchanged the credits Owen was awarded at his original sentencing. Owen argues the court was required to recalculate his actual custody credits.
Section 2900.1 provides: "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." Thus, when "an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.' (§ 2900.1.)" (People v. Buckhalter (2001) 26 Cal.4th 20, 23 (Buckhalter).)
Owen's sentence was not modified. After considering the effect of the middle term presumption established by Senate Bill No. 567, the trial court "reiterate[d] the sentence as previously imposed," determined that the aggravated terms were appropriate and stated that "[t]he sentence will stand in that fashion." The court continued, "And the credits that were previously imposed will remain as well. All other terms and conditions . . . of the sentence were affirmed on appeal, so I'll leave those in place."
As Buckhalter confirmed, "a limited appellate sentence remand" does not necessarily vacate the original sentence. (Buckhalter, supra, 26 Cal.4th at p. 35.) Discussing its prior opinion in People v. Rodriguez (1998) 17 Cal.4th 253, the Buckhalter court explained, "we plainly indicated that if, on remand, the trial court decided not to exercise its discretion to modify the original sentence, that sentence would remain in effect, and the defendant need not be resentenced but should be remanded to continue serving the term previously imposed. The implication is that the original sentence remained in effect, and continued to govern the defendant's custody, unless and until it was disturbed as a result of the remand proceedings." (Buckhalter, at pp. 3536.)
Owen notes that the trial court made one modification at the resentencing hearing, ordering a criminal protective order as to Jane Doe 2 in place of the "peaceful contact" order that had been in effect since the original sentencing. Owen articulates no argument as to how modification of a criminal protective order would constitute a modified sentence as contemplated by section 2900.1 and Buckhalter offers no authority for such a proposition. Owen's sentence was not modified and there is no" 'subsequent sentence'" against which he is entitled to actual custody credit.
The trial court originally issued the peaceful contact order rather than a no-contact order because Jane Doe 2 had indicated Owen could contact her in order to have contact with their daughter. At the resentencing hearing, the prosecutor explained that Jane Doe 2 no longer wanted communication with Owen because he had been communicating with her about his "desire to be with her after he's released, rather than any type of fatherly communications with the child." The court set the expiration date of the protective order based on the date of Owen's original sentencing, explaining that Jane Doe 2 would have had a right to the restraining order at that time and the only reason there had been a peaceful contact order instead was "upon the request of the protected party."
DISPOSITION
The October 28, 2022 sentencing order is affirmed.
We concur.
MILLER, J. MAYFIELD, J. [*]
[*] Judge of the Mendocino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.