Opinion
F085326
01-26-2024
THE PEOPLE, Plaintiff and Respondent, v. AMOS ANDREW BEAVERS, JR., Defendant and Appellant.
Thomas R. O'Brien, 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, Christopher J. Rench, and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 22CR-00178 . Carol K. Ash, Judge.
Thomas R. O'Brien, 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, Christopher J. Rench, and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appellant and defendant Amos Andrew Beavers, Jr., was convicted by a jury of one count of corporal injury to an intimate partner. (Pen. Code, § 273.5, subd. (a).) In a bifurcated court trial, the trial court found true an enhancement allegation that defendant had a prior strike conviction. (§ 667, subds. (b)-(i).) The trial court also found true the following aggravating circumstances that were pled in the information: that defendant's "prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness" (Cal. Rules of Court, rule 4.421(b)(2)); that defendant "has served a prior term in prison or county jail under section 1170[, subd. ](h)" (rule 4.421(b)(3)); and that defendant's "prior performance on probation, mandatory supervision, ... or parole was unsatisfactory" (rule 4.421(b)(5)). Defendant was sentenced to the upper term of four years, and the trial court doubled the sentence pursuant to the prior strike conviction.
All further statutory references are to the Penal Code unless otherwise stated.
All subsequent rule references are to the California Rules of Court.
On appeal, defendant contends that the matter must be remanded for a new sentencing hearing because the trial court imposed an upper term based upon aggravating circumstances that he did not admit and were not found true by the jury beyond a reasonable doubt, as required by Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b) (Stats. 2021, ch. 731, §§ 1.3, 2). We affirm.
FACTS
Prosecution Evidence
Defendant and Charlotte L. started a dating relationship in August 2021. At approximately 11:00 a.m. on November 16, 2021, Charlotte found defendant hugging and kissing another woman at his residence. Charlotte became angry and began yelling at defendant. She was upset because she believed that they were in an exclusive dating relationship. The other woman claimed that she was still dating defendant, but defendant indicated that Charlotte was his new girlfriend. After her interaction with defendant and the other woman, Charlotte went to the hospital with bruising and swelling on her face. At the hospital, Charlotte told a medical professional and sheriff's deputy that defendant caused her injuries.
During her testimony at trial, Charlotte claimed that the injuries to her face were self-inflicted. She testified that she hit herself in the face with both of her hands and the steering wheel of her car. Charlotte indicated that she lied to the deputy about being abused by defendant because she wanted him to get in trouble. She denied that defendant had ever been violent with her, and she claimed that their relationship ended on the date of her injuries. A restraining order was preventing Charlotte from contacting defendant, and she hoped the criminal charges would be dropped to allow their relationship to resume.
Merced County Sheriff's Deputy Curtis Rouse testified that he responded to a report of domestic violence at the hospital on November 16, 2021. Rouse made contact with Charlotte in the emergency waiting room. Charlotte was observed to be upset and tearing up during their interaction. Rouse completed his interview with Charlotte at the hospital and was unable to find defendant at the scene of the alleged incident. Detective Luis Sanchez from the Merced County Sheriff's Office testified that Charlotte was present when he arrested defendant on January 6, 2022. Defendant identified Charlotte as his current girlfriend on the date of his arrest.
DISCUSSION
Defendant contends the trial court used unauthorized procedures to impose a sentence exceeding the middle term, which denied him of his right to have a jury determine the truth of the aggravating circumstances.
A. Legal Principles
On October 8, 2021, Senate Bill 567 was signed into law, amending the determinate sentencing law, section 1170, subdivision (b), which delineated the trial court's authority to impose one of three statutory terms of imprisonment, known as the lower, middle, or upper terms, by making the middle term the presumptive sentence for a term of imprisonment, unless certain circumstances existed. (See Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2).) Under the amended law, the court may only impose an upper term sentence where "there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying all of the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or a court if the defendant has consented to a court trial." (People v. Dunn (2022) 81 Cal.App.5th 394, 402, as modified July 20, 2022, review granted Oct. 12, 2022, S275655.)
Also, under section 1170, subdivision (b)(3), 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." (§ 1170, subd. (b)(3).) Under amended section 1170, subdivision (b)(5), the court must "set forth on the record the facts and reasons for choosing the sentence imposed. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b)(5).)
Rule 4.421(b) lists circumstances in aggravation, including, "(2) [t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; [¶] (3) The defendant has served a prior term in prison or county jail ...; [and] [¶] (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed[.]" (Rule 4.421(b)(2)-(4).)
B. Procedural Background
On March 11, 2022, the Merced County District Attorney filed an information alleging one count of corporal injury to an intimate partner. (§ 273.5, subd. (a).) The information included "[e]nhancement 1," alleging that defendant suffered a prior conviction pursuant to section 667, subdivisions (b)-(i), section 1170.12, and section 668, arising from a robbery conviction under section 211. "Enhancement 2" provided defendant with notice that evidence of prior domestic violence conduct and/or convictions may be introduced pursuant to California Evidence Code section 1109. The final allegations under "[e]nhancement 3" set forth four different aggravating circumstances pursuant to rule 4.421.
The jury trial began on July 26, 2022. During a discussion of various motions, the trial court sought to clarify whether the prosecution desired to bifurcate the enhancement allegations regarding defendant's prior strike conviction and aggravating circumstances. The prosecution confirmed that it would like to bifurcate the enhancements. The trial testimony would be the only evidence used by the prosecution to support the enhancements, and the prosecution intended to provide a verdict form to the jury regarding the aggravating circumstances after a potential guilty verdict. The prosecution also stipulated that it would not elicit testimony from Sanchez regarding defendant's parole status at the time of his arrest.
During the presentation of evidence, the parties discussed a stipulation regarding the fact of defendant's previous domestic violence conviction on February 16, 2012. The prosecution withdrew its request to introduce a certified conviction package from defendant's previous domestic violence conviction based upon defendant's stipulation to the fact of the conviction and its date. Afterwards, the prosecution clarified that it did not intend to present the jury with the question of the first aggravating circumstance of violent conduct that indicates a serious danger to society (rule 4.421(b)(1)) if defendant was found guilty. The trial court responded that it would not submit anything to the jury on that aggravating circumstance.
The trial court asked defendant's trial counsel, "regarding the prior strike, which is [e]nhancement 1, [defendant], is he prepared to waive jury on that just in case depending what the verdict is, obviously? Because that way I can just excuse the jurors; otherwise, I'll have to send them back to the jury room and discuss with him what he wants to do." Defendant's counsel responded, "Yes. It's been bifurcated and then we come back and stipulate that that record does exist and then continue after sentencing."
The proceeding continued with the following exchange:
"THE COURT: I just want to get the waiver of the jury if I could before, so that once they reach their verdict, they can be excused and don't have to go in the jury room while we put the waiver on the record because he has a right to a jury trial on that.
"[DEFENSE COUNSEL]: Yes. Yes. I believe we'd be willing to-they'd just be going to decide if there is a strike prior
"THE COURT: No, that's what I thought you were waiving. That's what I was asking.
"[DEFENSE COUNSEL]: Yes, that's what I just wanted to clarify.
"THE COURT: Yes, no, it's just so they don't get sent back again and then come out to be told they're excused.
"[DEFENSE COUNSEL]: Yes.
"THE COURT: That would only be, obviously, if there were a guilty verdict.
"[DEFENSE COUNSEL]: Yes.
"THE COURT: So, I don't know, [defendant], did you understand what we were talking [about]?
"[DEFENDANT]: No. No, ma'am.
"THE COURT: Okay. In the Information, [e]nhancement 1 does allege that you have a prior conviction for a serious felony, and that's [section] 211. Your attorney moved to bifurcate that where the jurors aren't hearing about that, so the case will be submitted to them just on whether you're guilty or not guilty on the charge itself, [c]ount 1.
"If they find you guilty, then you also have the right to a jury trial as to [e]nhancement 1, which is that prior conviction for [section] 211 in 2016.
"Your attorney has indicated that you'd be willing to give up the right for the jury to decide that prior, and instead I believe he's going to put it out and ask the Court to dismiss it or make some other determination, but there's no guarantee. It would end up-the Court would end up determining whether or not you had suffered that prior conviction.
"So what I'm asking is if you're waiving your right to a jury trial where the Court would decide the prior, and if you have questions, you can talk to [defense counsel] first if you want to.
"[DEFENDANT]: Yeah, I do.
"[DEFENSE COUNSEL]: Sure.
"(Off the record.)
"THE COURT: [Defendant] are you waiving your right to the jury deciding whether or not [e]nhancement 1, the strike prior, is true, and instead you would have a right to a trial in front of the Court on that issue?
"[DEFENDANT]: Yes.
"THE COURT: Okay. I'll make a finding that he is making a knowing and intelligent waiver of his right to a jury trial on that issue, then."
The jury ultimately returned a verdict of guilty, and they were subsequently dismissed. The trial court set a court trial on the prior strike conviction under "[e]nhancement 1" and aggravating circumstances under "[e]nhancement 3" for August 12, 2022.
On August 29, 2022, the trial court denied defendant's motion for a new trial, and it proceeded to a court trial on the enhancements. The court began the court trial by stating, "And, [prosecutor], there were two enhancements that were bifurcated for a Court trial. [¶] There's [e]nhancement 1, which is the strike prior for-from 2016, actually; [e]nhancement 3, um-or just the aggravating factors at sentencing, and you withdrew the one that would be decided by the jury, as I recall." The prosecution responded, "Yes, Your Honor."
The prosecution then introduced a certified copy of the abstract for defendant's conviction pursuant to section 211, on February 1, 2016. The trial court received the prosecution's exhibit 107 in support of enhancement 1 without any objection from defendant. Enhancement 1 for defendant's prior strike conviction was found true by the trial court, and the matter was continued for sentencing. No additional evidence or consideration was given regarding enhancement 3 at the court trial.
At the sentencing hearing held on November 15, 2022, defendant was represented by new counsel. The trial court initially denied defendant's motion to strike the prior strike conviction pursuant to Romero v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court asked if the parties were ready to proceed with the sentencing portion of the hearing, and the following discussion ensued: "[DEFENSE COUNSEL]: Yes, Your Honor. I would just note, obviously, I'm not the one that completed the trial; however, from the documents that I reviewed, I did not see that the aggravating factors were submitted to the factfinder, as I did note in my moving papers, so I believe that the maximum term that the Court would be able to impose would be the middle term.
"We would be requesting [the] low term given the Court's findings on the Romero motion, um, and I believe that would be most appropriate based on the facts laid out in my motion; also, the fact that I don't believe aggravating factors were found.
"[PROSECUTOR]: We're here on a court trial on the aggravating factors because the defendant waived trial on the aggravating factors.
"THE COURT: Yes. It's my understanding [prosecutor]-she did not submit one of her aggravating factors to the jury, she withdrew that, but she was requesting the aggravating factors based upon-I think it was his prior convictions-and that he[ was] on probation or parole when he committed the current offense. [Prosecutor]?
"[PROSECUTOR]: That's correct, Your Honor.
"[DEFENSE COUNSEL]: Okay. And I looked through the record. I couldn't find anything. So the-[defendant] had already waived jury on aggravating factors; is that correct?
"THE COURT: Yes, because we had a discussion in chambers, and I don't know if that was on the record now that I'm thinking about it.
"[DEFENSE COUNSEL]: Okay. So which are the aggravating factors that the People are submitting to the Court?
"[PROSECUTOR]: That [defendant's] prior conviction as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness, that [defendant] has served a prior term in prison or county jail under [section] 1170[, subdivision ](h), and that [defendant's] prior performance on probation, mandatory supervision, [p]ost-[r]elease [c]ommunity [s]upervision [(PRCS)] or parole was unsatisfactory.
"THE COURT: I believe under [section] 1170[, subdivision ](b) the Court can use those factors even if there's not a trial on it. That's the exception. I think it's [section ]1170[, subdivision ](b)(3) or something like that.
"[DEFENSE COUNSEL]: And I'm not familiar with what has been submitted to the Court in terms of that record. I don't know what conviction
"THE COURT: Yes. At this point I only have the probation report and then I have his prior strike conviction- [¶] ... [¶] was submitted.
"[DEFENSE COUNSEL]: Okay. So I understand that the Court may take that into consideration. I'm just-I'm objecting for the record to the Court making any of these findings. I don't have any documents that have been submitted to the Court in terms of certified documents making this showing, so I'm asking the Court not find the aggravating factors, but submitted to the Court on the Court's findings.
"THE COURT: [Prosecutor]?
"[PROSECUTOR]: I ask the Court to take judicial notice of its own file for the defendant's prior convictions. There's CRM000135, conviction date August 6, 2009. That was for a [section] 273.5[, subdivision ](e)(1), for which the defendant was sentenced to prison.
"There's also CRM021088, conviction date February 16, 2012. It's for [section] 273.5[, subdivision ](e), for which the defendant was sentenced to prison.
"And then case 15CR-03996A was for the [section] 211, and the conviction date was February 1[, ]2016.
"THE COURT: I'll take judicial notice of those court files. Let me find them.
"So I do have CRM000135. Let me see if I have them in the document. Yes. I do have the reporter's transcript and the [a]bstract of [j]udgment which does show he was convicted on August 6, 2009[,] of [section] 273.5[, subdivision ](e), so I'll take judicial notice of that file.
"Then CRM021088, there is an [a]bstract of [j]udgment filed March 29[, ]2012, and that shows a conviction of [section] 273.5[, subdivision ](e)(1), and he was committed to prison on that offense.
"Then 15CR-0096A-I'm sorry, 03996A, I do have an [a]bstract from March 9[, ]2016[,] that does show the conviction of the first-degree robbery on February 1[, ]2016. It looks like the [a]bstract was just filed on that date.
"So I will take judicial notice of those prior convictions.
"[PROSECUTOR]: Thank you. Your Honor, as to, um, the aggravating factor that [defendant] did not successfully complete probation or parole, there was testimony at trial from [Sanchez] that [defendant] was on parole at the time, um, that he actually met him at the parole office to, um, interview him, and there's a trailing PRCS case, I believe, that the Court has that I'd ask the Court to take judicial notice [of]. There's been a violation as a result of the crime committed in this case.
"THE COURT: You don't know the case number for that, do you?
"[PROSECUTOR]: The Court case number is the 15CR case, the [section] 211, but I don't know
"THE COURT: I don't
"[PROSECUTOR]: -if it's reassigned a case number for violation.
"THE COURT: I do have ... 000192-10, but that's from 2016.
"[PROSECUTOR]: Your Honor, I'm sorry. I may be mistaken. He may have been released from parole after the commission of this crime.
"THE COURT: Anything else, [Prosecutor]?
"[PROSECUTOR]: No. Submitted.
"THE COURT: Okay. Going through the circumstances in aggravation and mitigation as set forth in [p]robation's report, I'll find circumstance in aggravation [rule 4.421](a)(1) would not be true because that would be needed to have been submitted to the jury, so I won't rely on that.
"As far as [rule 4.421](b), facts relating to [defendant], I will find [rule 4.421](b)(1) has been found that he was engaged in violent conduct which indicates a serious danger to society-actually, that would be found by the jury as well because they have to find a serious danger to society, so I won't rely on that factor.
"I will find [rule 4.421](b)(2), his prior convictions are numerous, I will find [rule 4.421](b)(3), he has served a prior prison term, and I will find [rule 4.421](b)(4) true, um, that he was on parole when this crime was committed. There was testimony presented regarding that fact at trial. Then, I won't find-rely on [rule 4.421](b)(5) as far as rule [4.421].
"Circumstances in mitigation. I-none of those are marked. I don't see any. I don't know if you had any argument regarding that, [defense counsel].
"[DEFENSE COUNSEL]: Um, all argument would be in my moving papers, Your Honor, so submitted.
"THE COURT: So, [defendant], at this time, probation is denied, and you are committed to the [d]epartment of [c]orrections. I am going to impose the upper term of four years based upon your prior convictions and that you were on parole when this offense was committed, that would be doubled pursuant to [e]nhancement 1, for a total of eight years at the [d]epartment of [c]orrections."
C. Analysis
1. Defendant Did Not Waive His Right to a Jury Trial on the Truth of the Aggravating Circumstances
Defendant contends that the trial court's imposition of the upper term was unauthorized because the aggravating circumstances utilized were not presented to the jury.
In reliance on People v. Berutko (1969) 71 Cal.2d 84, 94, the People argue that "because [defendant] properly waived his right to a jury trial on [enhancement 1], he is deemed to have also waived jury trial on the aggravating circumstances."
In Berutko, the defendant waived a jury trial after entering a plea of not guilty to two drug counts and denying a prior conviction. (Berutko, supra, 71 Cal.2d at p. 87.) The trial court found him guilty and found the prior conviction to be true. (Ibid.) On appeal, the defendant contended his general jury waiver did not constitute a waiver of his right to jury trial on the prior conviction. (Id. at p. 94.) The Supreme Court, relying on the "one trial" principle, rejected this contention and explained:" 'It is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.'" (Ibid.)
Here, defendant did not enter a general waiver of a jury trial that would encompass all issues that were present in the case. (See People v. Lizarraga (1974) 43 Cal.App.3d 815, 819 ["A defendant's waiver of jury trial expresses his consent to a trial of all issues, including a charged prior conviction, before the court sitting without a jury."].) The trial court obtained only a limited and specific waiver that defendant would give up his right to have the jury determine whether he had a prior strike conviction. It cannot be said, as the People suggest, that defendant's waiver as to the prior strike allegation encompassed all remaining allegations in the information.
2. Pursuant to Section 1170, Subdivision (b)(3), the Trial Court Properly Considered Defendant's Prior Convictions in Imposing the Upper Term
Section 1170, subdivision (b)(2) provides: "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."
Section 1170, subdivision (b)(3) further provides: "Notwithstanding paragraph[] ... (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."
In the present case, in making its findings on the aggravating circumstances, the trial court utilized the exception set forth in section 1170, subdivision (b)(3). The court took judicial notice of its own criminal case files for two domestic violence convictions where defendant was sentenced to prison in 2009 and 2012. The court referred to the case files by case number and specifically cited to the abstracts of judgment it was viewing. The court also took judicial notice of defendant's robbery conviction from 2016, and a certified copy of the abstract for that conviction was previously admitted into evidence during the court trial on the prior strike enhancement.
Based upon this information, the trial court found true the aggravating circumstances set forth in rule 4.421(b)(2) (defendant's prior convictions are numerous), (b)(3) (defendant served a prior term in prison), and (b)(4) (defendant was on parole when the crime was committed). The court refused to find an additional aggravating circumstance true because it determined that the issue of "a serious danger to society" must be presented to a jury. (See rule 4.421(b)(1).)
The trial court's reliance on its own judicially noticed records of defendant's domestic violence convictions and the certified abstract of judgment for defendant's robbery conviction was proper. (See Evid. Code, § 452, subd. (d).) We reject defendant's assertion the court erred because the records of the domestic violence convictions were not "certified." (See § 1170, subd. (b)(3).) Defendant has offered no argument and cited no authority that, in this context, the court's reliance on its own judicially noticed records of conviction did not constitute a certified record or its functional legal equivalent. (Evid. Code, §§ 452, subds. (c)-(d), 452.5, subd. (b)(1); People v. Franklin (2016) 63 Cal.4th 261, 280; In re Vicks (2013) 56 Cal.4th 274, 314.)
Rule 4.421(b)(2) specifies that an aggravating circumstance exists when a defendant's prior convictions are "numerous," which can be as few as three prior convictions, including misdemeanors. (People v. Black (2007) 41 Cal.4th 799, 818, overruled on other grounds in Cunningham v. California (2007) 549 U.S. 270; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior driving while intoxicated convictions are" 'numerous' "].) A trial court can properly decide whether prior convictions are numerous as long as the underlying facts of the prior convictions are found in a permissible manner. (§ 1170, subd. (b)(3); see People v. Towne (2008) 44 Cal.4th 63, 79-82 [determinations that a defendant's prior convictions are numerous or of increasing seriousness, prior prison term and parole status may be determined by the record of prior convictions]; see also People v. Black, at pp. 819-820 ["determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged" and a jury determination on these aggravating factors is not necessary if a record of prior convictions supports them].)
In addition, the court records indicated that defendant was previously sentenced to three separate prison terms. (See rule 4.421(b)(3).) Defendant did not dispute any of the evidence regarding his criminal history.
Defendant contends that even though section 1170, subdivision (b)(3), expressly authorized the trial court to consider prior convictions based on certified records, its reliance on said records in finding the truth of aggravating circumstances constituted impermissible judicial factfinding. Defendant cites People v. Gallardo (2017) 4 Cal.5th 120, which held "that a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.'" (People v. Gallardo, at p. 136.)
Defendant did not raise this claim below, during sentencing or otherwise. Accordingly, it is forfeited. (See People v. Scott (1994) 9 Cal.4th 331, 353.) In any event, defendant fails to advance any developed argument that the objective fact of either the number of convictions or that a defendant served a prior prison or a jail term, if evidenced by a certified record of conviction, is analogous to the type of judicial factfinding precluded under People v. Gallardo.
Based on the record, the trial court properly relied on defendant's record of conviction under section 1170, subdivision (b)(3) in finding true the aggravating circumstances set forth in rule 4.421(b)(2) (prior convictions are numerous), and (b)(3) (served a prior term in prison). We agree with defendant, however, that the trial court erred in finding true the aggravating circumstance set forth in rule 4.421(b)(4), that defendant was on parole when he committed the present offense. That aggravating factor was not evidenced by the records of conviction the court judicially noticed, or in the certified record of defendant's prior robbery conviction. Rather, the prosecutor argued there was trial testimony to that fact by a detective, and the court subsequently found that aggravating factor true because it recalled there was testimony to that fact. The record reflects that the victim testified defendant was on parole. But a witness's trial testimony plainly does not comport with the certified records exception under section 1170, subdivision (b)(3). Therefore, it was error for the court to deviate from the statutory requirement and engage in impermissible factfinding based on a witness's trial testimony.
Nor is the truth of a witness's trial testimony appropriate for judicial notice. (People v. Harbolt (1997) 61 Cal.App.4th 123, 126-127, quoting Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.)
However, we conclude the error was harmless. The amendment to section 1170 by Senate Bill 567 had been in effect for almost one year when defendant was sentenced. Therefore, this case does not involve retroactive application of the statute and there is no suggestion the trial court was otherwise unaware of the scope of its sentencing discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Salazar (2023) 15 Cal.5th 416, 425; People v. Flores (2020) 9 Cal.5th 371, 431-432.) This case also does not involve an unauthorized sentence claim (In re G.C. (2020) 8 Cal.5th 1119, 1130), or a claim of structural error (People v. Sivongxxay (2017) 3 Cal.5th 151, 178-179).
"States are free to apply their own harmless error rules to errors of state law" (People v. Sivongxxay, supra, 3 Cal.5th at p. 178), and, absent an error of the foregoing type or a federal constitutional error, we generally evaluate a claim of state statutory error under the Watson harmless error test (People v. Lewis (2021) 11 Cal.5th 952, 973, citing People v. Watson, supra, 46 Cal.2d at p. 836; accord, Sivongxxay, at pp. 178-179). Under Watson, "a defendant must demonstrate that it is 'reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error.'" (Sivongxxay, at p. 178, quoting Watson, at p. 836; accord, People v. Lewis, at p. 974).
People v. Watson (1956) 46 Cal.2d 818, 836.
In this instance, the trial court found three aggravating factors and no mitigating factors, and although the court erred in finding defendant was on parole at the time of the offense, two valid aggravating factors support the sentencing choice. Only a single factor in aggravation is needed to support an upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) Under these circumstances, we conclude defendant fails to show a reasonable probability of a more favorable result had the trial court not erred in finding the third aggravating factor.
In sum, the trial court properly considered defendant's certified prior conviction and its own judicially noticed criminal case files in finding true the aggravating circumstances that defendant's prior convictions are numerous, and that defendant has served a prior prison term. While the trial court erred in finding true the additional aggravating circumstance that defendant was on parole at the time of the present offense based on the testimony of witnesses at trial, the error was harmless under Watson in light of the two aggravating factors properly found true by the trial court.
DISPOSITION
The judgment is affirmed. --------- Notes: [*] Before Levy, Acting P. J., Pena, J. and Meehan, J.