Opinion
F083807 F083833
12-26-2023
THE PEOPLE, Plaintiff and Respondent, v. VICTOR CASTRO, JR. et al., Defendants and Appellants.
Susan K. Shaler and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Victor Castro, Jr. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant Cristian Hernandez Blanco. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Nos. SF019930A & SF019930B, Gregory A. Pulskamp, Judge.
Susan K. Shaler and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Victor Castro, Jr.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant Cristian Hernandez Blanco.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
Codefendants and appellants Victor Castro, Jr., then 23 years old, and Cristian Hernandez Blanco, then 24 years old, were arrested in April 2020 in connection with a carjacking and shooting. They, along with codefendant Desiree Foster, were charged with multiple offenses, including attempted premeditated murder. Castro and Blanco appealed following their convictions and sentencings. As explained herein, we conclude Castro and Blanco are entitled to a remand for full resentencing, but we otherwise affirm their judgments.
Foster is not a party to this appeal.
PROCEDURAL SUMMARY
In the first phase of the bifurcated jury trial, the jury acquitted Castro of attempted murder (Pen. Code, §§ 664/187/189; count 1), but convicted him of carjacking (§ 215, subd. (a); count 2), assault with a firearm with a firearm enhancement finding (§§ 245, subd. (a)(2)/12022.5, subd. (a); count 3), reckless evasion of a peace officer (Veh. Code, § 2800.2; count 4), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5), and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 7). The jury deadlocked on the attempted murder charge against Blanco, but convicted him of carjacking, assault with a firearm with a firearm enhancement finding, and possession of a firearm by a felon. Foster was acquitted of attempted murder and convicted of carjacking.
All further statutory references are to the Penal Code unless otherwise stated.
After the close of evidence, the charges for resisting arrest (count 7) against Blanco and Foster were dismissed; the great bodily injury (GBI) enhancement allegation against Foster attached to carjacking (count 2) was dismissed; and the GBI enhancement allegation against Castro attached to assault (count 3) was dismissed. Finally, on the attempted murder and carjacking charges against Castro, the information was amended to allege a firearm enhancement under section 12022.53, subdivision (c), rather than subdivision (d). Subsequently, the jury found the firearm enhancement allegations attached to carjacking not true for both Castro and Blanco.
In phase two, the jury convicted Castro, Blanco, and Foster of active participation in the Southside Bakers criminal street gang (§ 186.22, subd. (a); count 6), but deadlocked on all of the gang enhancement allegations (§ 186.22, subd. (b)(1)). The jury also deadlocked on the firearm enhancement allegations under section 12022.53, subdivisions (b) and (e)(1), attached to Castro's and Blanco's convictions for carjacking.
Discussed post, following empanelment of the jury but prior to the commencement of evidence, the trial court bifurcated the gang charges following the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333).
Finally, in a third bifurcated proceeding, the trial court found true that Castro and Blanco each had one prior serious or violent felony conviction for the purpose of "Three Strikes" law sentencing and the prior serious felony conviction enhancement allegations. (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).)
The trial court sentenced Castro to an aggregate determinate term of 29 years 8 months, and Blanco to an aggregate determinate term of 28 years 4 months. Each was sentenced to the upper term of nine years for carjacking, doubled to 18 years under the Three Strikes law; a consecutive term of one year doubled to two years for assault with a firearm, with an additional three years four months for the attached firearm enhancement; and a term of five years for one prior serious felony conviction enhancement. In addition, Castro received a consecutive term of one year four months for reckless evasion of a peace officer. The sentences on the remaining counts were imposed and stayed under section 654.
On appeal, Castro claims that following bifurcation of the gang charges, the trial court erred when it denied his motion for a mistrial and he argues that pre-bifurcation voir dire on gang issues tainted the jury, depriving him of a fair trial before an impartial jury. In addition, Castro, who was sentenced in January 2022, claims that he is entitled to have one or both sentence enhancements stricken under section 1385 as amended by Senate Bill No. 81; he is entitled to remand for resentencing under section 1170 as amended by Senate Bill No. 567; and, under Duenas, the court erred when it imposed fines and fees without making a finding that he had the ability to pay. (People v. Duenas (2019) 30 Cal.App.5th 1157, 1172 (Duenas).) If we find his claims of sentencing error forfeited for failure to object, he claims trial counsel rendered ineffective assistance of counsel (IAC).
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) amended section 1385, and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) amended section 1170, effective January 1, 2022. Both statutes were amended subsequently, but those amendments are not relevant to the issues raised in this appeal. (Assembly Bill No. 200 (2021-2022 Reg. Sess.) [amending § 1385, eff. June 30, 2022]; Assembly Bill No. 960 (2021-2022 Reg. Sess.) [amending § 1170, eff. Jan. 1, 2023].) The Legislature also recently made nonsubstantive changes to numerous code sections as part of a code maintenance bill, including sections 1170 and 1385. (Assem. Bill No. 1754, approved by the Governor July 27, 2023 (2023-2024 Reg. Sess.) Stats. 2023, ch. 131, §§ 155, 160, eff. Jan. 1, 2024.)
Blanco claims that, individually, his seating position behind counsel during trial and his restriction to use of a small golf pencil prejudiced him before the jury, depriving him of a fair trial, and he claims cumulative error. In addition, Blanco, who was also sentenced in January 2022, claims he is entitled to remand for resentencing under section 1170 as amended by Senate Bill 567, he raises a Duenas claim based on imposition of fines and fees without an ability-to-pay finding, and he claims IAC if any of his sentencing error claims are found to be forfeited.
The People dispute Castro's entitlement to any relief based on the denial of his mistrial motion, his claim of sentencing error under section 1385, or his Duenas claim; they dispute Blanco's entitlement to any relief based on his seating position during trial, his restriction to use of a golf pencil, or his Duenas claim; and they dispute that either one received constitutionally IAC. With respect to section 1170 as amended by Senate Bill 567, the People argue that Castro forfeited his claims of sentencing error because he failed to object, but if we decline to apply the forfeiture doctrine, they concede remand is appropriate under section 1170, subdivision (b)(1). As to Blanco, they argue that any error in the imposition of upper terms was harmless, and remand is not required.
For the reasons set forth herein, we reject Castro's and Blanco's claims of trial error based on gang-related voir dire, seating position, and restriction to a golf pencil, and we reject Castro's interpretation of section 1385 as mandating dismissal of one or both sentence enhancements. However, we conclude that in sentencing Castro and Blanco, post-Senate Bill 567, the trial court engaged in some impermissible factfinding of aggravating factors, and that, based on Blanco's sentencing record, Castro's and Blanco's sentencing decisions were not fully informed by the then-new constraints on the scope of the court's sentencing discretion. (People v. Salazar (2023) 15 Cal.5th 416, 424 (Salazar); People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Therefore, we vacate Castro's and Blanco's sentences and remand for full resentencing. We otherwise affirm their judgments. Because this disposition renders Castro's and Blanco's IAC and Duenas claims moot, we do not consider those arguments.
Blanco's petition for writ of habeas corpus raising an IAC claim is pending in case No. F085077. In light of the disposition of Blanco's sentencing claims in this direct appeal, his petition is moot and is denied by separate order.
FACTUAL SUMMARY
I. Phase One
A. Prosecution Case
1. Shooting
On April 24, 2020, Diana T. purchased a gray 2011 Chrysler 300. Her friend, Victor Ch., went with her to pick it up and she agreed to let him borrow it. On April 25, 2020, at around 1:30 a.m., six people called 911 and reported hearing shots fired. The calls were played for the jury. One caller heard a man yelling "no" before shots were fired, and several callers heard a man begging for help. Three witnesses who lived in the area testified to hearing between three and seven gunshots, and one witness heard a scream. Another testified he went outside to his back patio and, one street over through the fence, saw the taillights of what he thought was a gray Chrysler 300 fleeing.
The victim and Castro share the same first name and last name initial. We refer to Castro by his last name and the victim by his first name.
Police responded to reports of shots fired and one of the responding officers was flagged down by a frantic, jumpy man who was bleeding from a gunshot wound to his right hand and another to the area of his left buttock. The man identified himself as Victor and said the involved vehicle was a gray 2011 Chrysler 300 he had borrowed from a friend.
An officer responding to reports of a carjacking saw a gray Chrysler 300 pass by and after he made a U-turn to follow the car, it made a sharp right turn onto a street and accelerated. A high-speed pursuit involving multiple patrol vehicles ensued. At one point, the Chrysler swerved and went over a curb, but the driver regained control and the pursuit reached speeds of at least 100 miles per hour. After approximately 30 minutes and 35 miles, the Chrysler finally came to a stop, completely disabled. The occupants were removed from the car one at time. Castro was the driver, and Blanco and Foster were in the backseat.
Police found three cell phones in the car, one wallet with Blanco's driver's license in it, and a second wallet with Castro's Social Security card in it. Police also found a methamphetamine (meth) pipe, a clear plastic bag with a white crystalline substance in it and a syringe with a brownish liquid in it, both of which an officer thought, based on his experience, was meth. A records check reflected the registered owner of the car was Diana T.
When Castro was booked into jail, he had a cell phone and a key with a tag reading 2011 Chrysler 300 on him.
Castro, Blanco, and Foster were taken to the hospital where Victor was for an infield showup. Victor identified them as the parties involved in the shooting, and said he was 80 to 85 percent sure about Castro.
Police located two live bullets and four spent casings in the street in front of one house. Later that morning, an officer retrieved one live bullet and one spent casing found by residents in the area.
2. Victor's Testimony
At trial, Victor, who was in custody and had two prior felony convictions, was uncooperative, although he denied he was afraid to be there. He conceded he had been shot in his hand and left side and was taken to the hospital in an ambulance, but otherwise purported not to remember very much about that night, including being shot. He stated he did not remember if he had a friend named Diana T. or if he met anyone named Desiree, he denied knowing anyone named Desiree, and he stated an officer made him pick out three individuals, but they were not in the courtroom. He also testified he was a crystal meth addict, the drug caused him memory loss and blackouts, and he was under the influence of meth at the time of the shooting.
The jury viewed footage from officers' body cameras. In one, prior to being taken to the hospital, Victor told Officer Puryear that the car belonged to his friend Diana T. He said there were two "guys" and one "girl" involved, and he was texting when the men came up and ordered him out of the car. After he got out and they took the car, he thought they were going to leave, but they returned and shot him. He also said they got out and started shooting, and they took his phone.
At the hospital, Officer McWilliams spoke with Victor for between 30 and 60 minutes, and Victor did not appear to be under the influence of meth. Victor told McWilliams that he was supposed to hang out with the woman, whom he only recently met and knew as Desiree, and she asked him to do her a favor. He did not know what it was, but he wanted to hang out with her, so he picked her up. She told him two other people were going to come, too. He drove them somewhere, they got out, and he told her he was not comfortable and did not know what he was getting himself into. After the men returned, the group directed him where to drive and they parked. When they started talking about what they were going to do, Victor said he did not want to be involved. The group was quiet, and he started to drive. About a block away, they told him to park, and he thought they were going to get out. They ordered him out of the car, however, and both men pointed guns at his face.
Victor got out of the car, and they searched him and took everything he had. He started walking and they drove past him before stopping. He then started to run. The car came up from the other side and one of the men got out. The driver told Victor to come over to him, but Victor ran. The man who got out of the car started chasing him and shooting at him. Victor said both men fired shots, but he was hit by the man chasing him in the street. He also admitted being afraid of retaliation.
At the hospital prior to identifying Castro, Blanco, and Foster, Victor told McWilliams that he thought the driver's first name was Victor, like his own, and the passenger's name was Cristian. He also said the guns were dark chrome, and he recalled someone saying something about a revolver.
3. Castro's Statement
After waiving his Miranda rights, Castro gave an audio-video recorded statement and a redacted version was played for the jury. He said a man he did not know picked him up in the car and he then picked up some dope. The man walked away without his car, and Castro, who thought the car was stolen, panicked and took off when a police car flashed him. He denied having a gun or shooting the man. He then said the man was supposed to give them a ride but "flak[ed]" and said, "'I'm not comfortable with guns and shit.'" The man got out of the car and "it became more than it was supposed to."
Miranda v. Arizona (1966) 384 U.S. 436.
Castro again denied shooting the man or shooting at all. He said they went back to find out who the man was to make sure they were not "doing stuff to the wrong person." When asked how the man got shot, Castro said he was just trying to figure out who the man was when the man took off running. When asked where the gun was, Castro said he did not know. He also said he had used heroin an hour or two prior to the incident.
4. Foster's Jail Call
In a recorded call from the jail played for the jury, Foster told a relative that she and Blanco were "solid," but "[t]he other one" was not and "spilled the whole beans, ... not just a little bit, the whole pot." She stated that Blanco had received discovery and they went over it together, and that he said he was not going to let her "take .. time up state" or "strikes." She stated she might have to, however, because she was "not going to let him take everything." She also said Blanco had "everything else under control" and it was "a matter of . [their] other co-defendant . speaking."
5. Text Messages
Of the three cell phones located in the car, one was matched to Foster, one to Castro, and one to Victor. The fourth phone was damaged and only the phone number was obtainable. A Cellebrite report containing text messages was admitted into evidence and an officer testified concerning text messages sent from Foster's, Castro's, and Victor's phones during the approximately five-hour period leading up to the shooting.
Victor reached out to Foster at 8:34 p.m. on April 24, 2020, and texted, "'Kick it[?]'" She responded, "'Who's this?'" and he answered, "'The guy from yesterday.'" Foster apologized and said she had been busy. Victor told her he was bored and to "'hit [him] up whenever.'"
Foster then texted someone named Alan and asked if he was "'strapped,'" which an officer testified meant armed with a firearm. A few minutes later, Foster texted someone named Stomper and asked if he or she was strapped and wanted to make some money. Stomper responded, "'Yeah, it's small, though. Why? What's up?'" Foster then texted Alan again and said, "'Well, you want to make some money or at least help me out? It will only take about two hours.'" Foster texted Castro, whose number was saved as "Lil' Slick," "'[M]y homie has a strap and who but just waiting for his response.'" A few minutes later, Foster texted Castro, "'I need two people with a strap. My homie is one and if you it one you could be too,'" and "'Laugh out loud. Hold on. I'm trying to tell my friend this.'"
About an hour later, Foster texted Alan, "'Yes or no? Kind of need to know as soon as possible.'"
At 10:00 p.m., Foster texted Castro, "'So I can't get the car. Sorry.'" At 10:54 p.m., Foster texted Castro, "'But tell me,'" and then, "'If it's a go or not.'"
At 11:20 p.m., Foster texted Victor, "'You busy though and are you around?'" and"' [K]ind of need a favor if you can. '"
At 11:27 p.m., Castro texted Foster, "'Fo sho, loc. You didn't tell her what we were doing, right?'" Foster responded, "'Nope and it's not her,'" and then, "'[N]o, they don't know a thing.'" At 11:53 p.m., Castro texted Foster, "'Oh. Okay. Who is it, loc, and where are you at?'" At 11:54 p.m., Foster responded, "'Some guy named Victor and I'm going now.'" At 12:09 a.m., Foster texted Castro, "'About to pull up and he doesn't know anything.'"
At 12:40 a.m., Castro texted Foster, "'Spence . . . the loc, he was showing us the AR he just finished building. I was trying to get him to let me use it for this job. Laugh out loud.'" At 1:21 a.m., Castro texted Foster, "'Loc, what's good? Wanna take his shit?'" Foster responded, "'Yes. Now I'm so game for it but I don't know who he really is, you know. You know what? Fuck it. Yes. '" Foster then texted Castro, "'But if he said he knows, muerto,'" "'He does know muerto and my government name,'" and "'Not last name but first name.'"
B. Defense Evidence
On behalf of Foster, a criminalist with the Kern Regional Crime Laboratory testified that she examined five spent nine-millimeter cartridge casings, four of which were FC brand and one of which was RP brand. In her opinion, all five were fired from the same firearm. Nothing else was submitted for examination.
II. Phase Two
A. Southside Bakers
Through multiple officers with the Bakersfield Police Department, one of whom testified as a gang expert, the prosecution presented evidence that Castro, Blanco, and Foster were active members of the Southside Bakers, a criminal street gang in Bakersfield. In terms of hierarchy, the Southside Bakers, which has subsets, is under the Sureno gang umbrella, which in turn is under the Mexican Mafia. Primary activities of the Southside Bakers include shootings, homicides, carjackings, evading police, committing assaults with a deadly weapon, and possessing illegal firearms; the Southside Bakers commonly use firearms and knives as weapons; and they commonly engage in a continuing pattern of criminal activity, of which individual members are aware.
B. Indicia of Gang Membership
Castro had multiple gang-related tattoos. One was the Kansas City Royals's "'KC'" logo tattoo, which was adopted by many Sureno gang members to signify Kern County. Castro also had "Bakers," "SS Bakers," "SSB," and "'SS'" for Southside Bakers; "Lil Locs," a subset of the Southside Bakers; "'661,'" the area code for Bakersfield, which advertised his Sureno status; and "13," which is associated with the Mexican Mafia. Collectively, the tattoos signified Castro's participation in the Southside Bakers.
Castro's phone also contained photos of him wearing traditional gang attire and colors for southern Hispanic gangs, showing his tattoos, and manipulating firearms. In one photo, Castro was standing with someone else and the two had firearms in their waistbands and were throwing gang signs. In a second photo, Castro and someone else had firearms in their waistbands, blue bandanas over their faces, and they were manipulating their hands. In a third photo, Castro's gang tattoos were visible, and he was making an "'S'" with his hands.
The unredacted version of Castro's statement following his arrest was played for the jury. He stated that he was jumped into the Southside Bakers and that he was still active.
Blanco had a three-dot tattoo on his left hand, a popular tattoo among Sureno gang members signifying" 'My Crazy Life.'" He also had a "'KC'" tattoo and a "'South Side'" tattoo.
Foster had "'SS'" on her index finger and was wearing a "'KC'" baseball cap when she was arrested, indicating her involvement in the Southside Bakers. On crossexamination, Foster's counsel questioned the gang expert on the existence of "'HH'" on the same finger, spelling, "'Sshh.'" He maintained the tattoo was still indicative of the Southside Baker because of the "clever" ways tattoos are spelled. Foster's phone contained messages with "'SS'" and "'South,'" including in messages between Foster and Castro. They also texted "'All day every day loc,'" with the Lil Locs being a Southside subset, and loc or "'lok,'" a term they used a lot when referring to themselves. Foster's phone also contained photos of Blanco, one with "'South'" at top and several with Blanco manipulating his fingers or hands.
C. Predicate Offenses
The prosecutor introduced evidence of four predicate offenses. On February 17, 2016, police responded to the report of theft by someone armed with a handgun. Based on vehicle description, the officer pulled over a vehicle driven by R.G. The backseat passengers were Castro and L.D., and there was a black BB gun on the floorboard. Castro admitted he had the BB gun in his waistband when he took cosmetics and electronics from the store without paying, and he said that L.D. was aware of the theft. Castro was arrested for second degree burglary.
On June 15, 2016, police responded to a report of shoplifting with the suspect detained. The loss prevention officer turned over a pellet gun and Castro stated he had it on him for protection.
On August 31, 2016, Castro was arrested for shoplifting armed with a knife. He also had a meth pipe, meth, and heroin on him. Castro was convicted of robbery.
On September 25, 2017, police stopped a vehicle driven by Foster. The passenger was N.A.-H., an active Southside Bakers gang member, and there was a loaded nine-millimeter firearm under the passenger seat. N.A.-H. had "'S,'" "'South Side,'" "'BKS,'" and "'SS'" tattoos. N.A.-H. was convicted of being a felon in possession of a firearm, and he and Foster were both convicted of possession of a stolen vehicle.
D. Hypothetical
Given a hypothetical with facts mirroring the crimes and the involved individuals, the gang expert testified that they were committed "for the benefit, for the furtherance, and at the direction of the Southside Bakers." In his opinion, the carjacking, assault with a deadly weapon and vehicle pursuit benefitted the Southside Bakers by instilling fear in the community and rival gang members, bolstering the reputation of the gang for committing violent crimes and bolstering the reputations of the involved individuals within the gang. The crimes were done at the direction of the gang because it required the involved individuals to strategize among themselves and it was directed by someone, either in the car or higher up in the gang structure.
DISCUSSION
I. Denial of Castro's Mistrial Motion
A. Procedural Background
On September 21, 2021, the trial court denied motions to bifurcate the gang charges and evidence, brought by all three codefendants, and jury selection began. On October 8, 2021, the jury was empaneled and sworn. On the same date, the Governor approved Assembly Bill 333, which, effective January 1, 2022, made substantive and procedural changes to the law governing gang charges through the amendment of section 186.22 and the addition of section 1109, pertaining to bifurcation. On October 12, 2021, Blanco's counsel, joined by counsel for Castro and for Foster, raised the issue of bifurcation again in view of Assembly Bill 333. Over the prosecutor's objection, the court bifurcated trial of the substantive gang offenses and gang enhancements.
Section 1109 provides: "(a) If requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases as follows: "(1) The question of the defendant's guilt of the underlying offense shall be first determined. "(2) If the defendant is found guilty of the underlying offense and there is an allegation of an enhancement under subdivision (b) or (d) of Section 186.22, there shall be further proceedings to the trier of fact on the question of the truth of the enhancement. Allegations that the underlying offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang and that the underlying offense was committed with the specific intent to promote, further, or assist in criminal conduct by gang members shall be proved by direct or circumstantial evidence. "(b) If a defendant is charged with a violation of subdivision (a) of Section 186.22, this count shall be tried separately from all other counts that do not otherwise require gang evidence as an element of the crime. This charge may be tried in the same proceeding with an allegation of an enhancement under subdivision (b) or (d) of Section 186.22."
Later in the same session, the trial court addressed the engagement in gang-related voir dire during jury selection given the subsequent bifurcation of the trial into two phases. The court concluded that an admonition to the jury was sufficient because even in cases bifurcated from the outset, it was common to engage in gang-related voir dire due to the need to assess potential jurors' biases and prejudices related to gangs and gang evidence. Blanco's counsel acknowledged the need to question jurors about gang issues, but represented she would have conducted her voir dire differently and moved for a mistrial. Castro's and Foster's counsel joined in the mistrial motion, and Castro's counsel expressly argued that voir dire on gang issues poisoned the jury, depriving Castro of a fair trial. The trial court took the matter under submission and then denied the motion that afternoon. The court pointed out that the jury had not yet heard the charges, opening statements, or any evidence, and that because the same jury would hear phase two, voir dire would have been handled very similarly, if not identically, had the trial been bifurcated earlier. The court further concluded that to the extent defense counsel would have conducted voir dire differently, an admonition to the jury was sufficient.
On appeal, Castro argues that the trial court erred in denying his motion for a mistrial. He contends the ruling was an abuse of discretion and violated his constitutional rights to due process, to a fair trial, and to confront witnesses.
"'The requirement that a jury's verdict "must be based upon the evidence developed at the trial" goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.... [¶] In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the "evidence developed" against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.'" (People v. Nesler (1997) 16 Cal.4th 561, 578 (plur. opn.) (Nesler), quoting Turner v. Louisiana (1965) 379 U.S. 466, 472-473.) As discussed, however, this case does not involve a claim that any juror was improperly influenced through the receipt of extraneous information. (Nesler, supra, at p. 579 ["Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term 'misconduct,' it nevertheless gives rise to a presumption of prejudice, because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine, or rebut."]; accord, People v. Ramirez (2022) 13 Cal.5th 997, 1092-1093 (Ramirez) [discussing juror bias through receipt of extraneous information].)
B. Legal Principles
Under federal and state law, criminal defendants have the constitutional right to a fair trial before an impartial jury. (People v. Mataele (2022) 13 Cal.5th 372, 402-403.) "'[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. [Citations.] "Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled."'" (Id. at p. 403, quoting Morgan v. Illinois (1992) 504 U.S. 719, 729-730.)
"In general, 'a motion for mistrial should be granted only when "'a party's chances of receiving a fair trial have been irreparably damaged.'"'" (People v. Bell (2019) 7 Cal.5th 70, 121.) "'A trial court should declare a mistrial only "'if the court is apprised of prejudice that it judges incurable by admonition or instruction.'" [Citation.]'" (Ibid.; accord, Ramirez, supra, 13 Cal.5th at p. 1126.) "'[W]e use the deferential abuse of discretion standard to review a trial court's ruling denying a mistrial.'" (People v. Clark (2011) 52 Cal.4th 856, 990; accord, Ramirez, supra, at p. 1126.) "[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required" (People v. Medina (1990) 51 Cal.3d 870, 889), but it "'"abuses its discretion when its ruling 'falls outside the bounds of reason'"'" (People v. Thomas (2011) 52 Cal.4th 336, 354-355).
Castro urges us to apply a de novo standard of review. (Citing People v. Albarran (2007) 149 Cal.App.4th 214, 224-225, fn. 7 & People v. Garcia (2022) 83 Cal.App.5th 240, 248, review granted Jan. 11, 2023, S276858.) In People v. Peterson, the California Supreme Court stated, "The denial of a motion for a mistrial is generally reviewed for abuse of discretion. (People v. Bell (2019) 7 Cal.5th 70, 121.) Where, however, the motion rests on allegations of juror misconduct and the facts underlying those allegations are essentially undisputed, we review de novo whether misconduct occurred." (People v. Peterson (2020) 10 Cal.5th 409, 467, citing People v. Collins (2010) 49 Cal.4th 175, 242 [independent review]; accord, Nesler, supra, 16 Cal.4th at p. 582 ["Whether prejudice arose from juror misconduct ... is a mixed question of law and fact subject to an appellate court's independent determination."]; see People v. Vivar (2021) 11 Cal.5th 510, 527 ["'"[independent review is not the equivalent of de novo review"'"].) We need not take a position on this issue, because the alleged error in this case did not involve juror misconduct (People v. Peterson, supra, at p. 467; Nesler, supra, at p. 582), or implicate Castro's constitutional rights (People v. Albarran, supra, at pp. 224-225, fn. 7). Moreover, the result in this case would remain the same even if we applied a different standard.
C. Analysis
Castro claims that "the jury was irreparably tainted by the numerous gang questions asked during jury voir dire, "doom[ing]" his chance of a fair trial. However, in arguing prejudicial error, Castro leans on authority that involved juror or prosecutorial misconduct, or the erroneous admission of inflammatory evidence, none of which is at issue here. (Citing Nesler, supra, 16 Cal.4th at p. 585 [actual juror bias]; People v. Hill (1998) 17 Cal.4th 800, 845 ["constant and outrageous" prosecutorial misconduct]; People v. Huynh (2021) 65 Cal.App.5th 969, 977-978 [admission of highly inflammatory gang evidence]; People v. Albarran, supra, 149 Cal.App.4th at p. 232 [same]; People v. Gibson (1976) 56 Cal.App.3d 119, 129-131 [admission of prior crimes evidence]; United States v. Garza (5th Cir. 1979) 608 F.2d 659, 665-666 [prosecutorial misconduct].) Further, Castro relies in part on federal appellate authority, which is neither binding (People v. Brooks (2017) 3 Cal.5th 1, 90-91), nor, on the facts here, persuasive (Mach v. Stewart (9th Cir. 1998) 137 F.3d 630, 632-633 [the defendant, charged with child molestation, denied right to fair trial by impartial jurors when potential juror stated repeatedly and authoritatively that in three years as a social worker, she had never known a child to lie about being sexually assaulted and no other jurors responded when asked if they disagreed]; United States v. Iribe-Perez (10th Cir. 1997) 129 F.3d 1167, 1169-1171 &fn. 4 [prior to voir dire, jurors informed in error that the defendant was going to plead guilty to charges jury subsequently convicted him of]; United States v. Garza, supra, at p. 666 [prosecutor's "conduct so prejudiced [the] defendant's right to a fair trial as to amount to 'plain error'"]).
The question in this case is whether the trial court erred in denying Castro's motion for a new trial because, viewed through the lens of subsequent bifurcation, voir dire related to gang issues deprived him of a fair trial. Given the gang charges and the gang evidence that would be introduced, this general line of inquiry was relevant to ensuring an impartial jury and, as the court recognized, because the same jury would hear both phases of trial, bifurcation of the gang charges did not eliminate the need to voir dire potential jurors on these issues. Indeed, the court expressly stated:
"[T]he more I think about that, the more I do believe that the questions that were asked during the jury selection process in this case were very similar or essentially the same that would have been asked even if the case had been bifurcated. The reason I say that is-and I alluded to this prior to the lunch break-it's the same jury that would decide Phase 1 and Phase 2 of the case. It's the exact same set of jurors that would decide guilty or not guilty on the substantive counts. Should it proceed to Phase 2 involving the gang allegations, it would be the same group of jurors. Therefore, I think it would be important for all the attorneys, especially the defense attorneys, to explore a potential juror's views about gangs and gang activity and I really believe the defense would have done that in a fashion that was very similar, if not identical, to the way that we've done it in this case regardless of whether the case was bifurcated or not. I don't think much would be changed at all. I still think we would use the questionnaire and there would still be a lot of questions about gang evidence."
Although Castro summarizes some of the gang-related voir dire, he identifies no instances in which the questions or lines of inquiry, while appropriate for assessing the potential for bias or prejudice in a unitary trial, were prejudicial in a bifurcated trial heard by the same jury and he identifies nothing indicating jurors' impartiality was affected. (See People v. Ledesma (2006) 39 Cal.4th 641, 666-667.) Instead, his claim of prejudicial error appears to rely on the broader proposition that the mere mention of gang charges or questions about views on gangs deprived him of a fair trial. (Code Civ. Proc., § 223; People v. Landry (2016) 2 Cal.5th 52, 83 ["'[T]he voir dire process serves as a means of implementing the defendant's Sixth Amendment right to an impartial jury.'"].) We cannot agree with this premise. First, post-Assembly Bill 333, the California Supreme Court reiterated "that gang evidence, even if not admitted to prove a gang enhancement, may still be relevant and admissible to prove other facts related to a crime," and recognized that "the fact that section 1109 requires bifurcation only upon a defendant's request suggests there are circumstances where a single trial remains appropriate." (People v. Tran (2022) 13 Cal.5th 1169, 1208.) That a unitary trial remains appropriate in some circumstances and that the failure to bifurcate is an error of state law only undermines any claim that the mere mention of gang issues during voir dire renders the trial fundamentally unfair, requiring reversal. (See id. at pp. 1208-1209.)
Second, and critically, "[v]oir dire examination serves to protect th[e] right [to a fair trial by an impartial jury] by exposing possible biases, both known and unknown, on the part of potential jurors." (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554, italics omitted; accord, People v. Mataele, supra, 13 Cal.5th at p. 403.) Because gang evidence may have a highly inflammatory impact on the jury (People v. Tran, supra, 13 Cal.5th at p. 1208; Ramirez, supra, 13 Cal.5th at p. 1095), reasonable inquiry into jurors' views on gangs and gang activity during voir dire serves to protect rather than infringe upon the right to an impartial jury (In re Manriquez (2018) 5 Cal.5th 785, 797). Castro identifies nothing specific about the voir dire in this case that suggests it tainted the jury. Notably, this is not a case where the jury was allegedly arguably tainted by receipt of extraneous information pertaining to the parties or their guilt, or by juror or prosecutorial misconduct.
In phase one, the jury acquitted Castro of the most serious charge-attempted murder-and found the enhancement attached to carjacking for personal and intentional discharge of a firearm not true, "which tends to show that it was not prejudiced against him, but rather was able to fairly evaluate the evidence before it." (People v. Harris (2013) 57 Cal.4th 804, 831; accord, Skilling v. United States (2010) 561 U.S. 358, 384 [presumption of juror prejudice from pretrial publicity at odds with jury's acquittal of the defendant on multiple counts]; People v. Avila (2014) 59 Cal.4th 496, 512 [recognizing "a split verdict, with some portions favoring the defendant, . . . [may] indicat[e] the jury was fair and impartial"].) Further, in phase two, the jury deadlocked on all of the gang enhancements, which also supports the view that the jury evaluated the evidence rather than acted based on prejudice. Finally, of the charges Castro was convicted of, the evidence against him was strong: Victor sustained gunshot wounds; Castro was arrested after Victor's borrowed car, which Castro was driving, became disabled following a lengthy pursuit by law enforcement; Victor identified the driver by Castro's first name while hospitalized and then identified him in person; Castro admitted involvement in the events, although he denied shooting Victor; and texts messages between Castro and Foster mentioned firearms and established a timeline for the crimes, including Castro's inquiry, minutes before the shooting and carjacking, "'Wanna take his shit?'"
As previously stated, "[a] motion for '"mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction,"'" and "[h]ere, where the jury was properly admonished, we find no abuse of discretion in the trial court's denial of the mistrial motion." (People v. Montes (2014) 58 Cal.4th 809, 888; accord, Ramirez, supra, 13 Cal.5th at p. 1126; People v. Bell, supra, 7 Cal.5th at p. 121.) Accordingly, we reject Castro's claim of reversible error.
II. Blanco's Seating Position Behind Counsel and Restriction to Golf Pencil A. Procedural Background
Blanco filed a motion in limine seeking to be seated next to his attorney at counsel table and to use an ink pen rather than a short golf pencil. He argued these accommodations were necessary to a proper and fair trial, including the presumption of innocence, and if they were not granted, it would be infantilizing and an affront to human dignity. Additionally, he claimed the seating arrangement impeded his ability to confer with counsel.
The trial court denied the motion. With respect to seating, the record reflects that counsel table was approximately 12 feet long and could not accommodate three attorneys, their case files, and three codefendants. The court directed that each codefendant sit immediately behind and to the side of his or her counsel, in the gaps between counsel, so that all each attorney had to do was turn in his or her chair to communicate. With respect to the golf pencil, the courtroom bailiff preferred the shorter instrument to a pen for security reasons. The court agreed and stated it was unlikely jurors would notice, but there was no prejudice if anyone did.
Blanco argues that the court's rulings infringed on his right to the presumption of innocence and deprived him of a fair trial.
B. Legal Principles
The "'trial court has broad power to maintain courtroom security and orderly proceedings" and "decisions regarding security measures in the courtroom are generally reviewed for abuse of discretion." (People v. Stevens (2009) 47 Cal.4th 625, 632 (Stevens); accord, People v. Poore (2022) 13 Cal.5th 266, 285; People v. Hernandez (2011) 51 Cal.4th 733, 741, 742.) "[S]ome extraordinary security practices carry an inordinate risk of infringing upon a criminal defendant's right to a fair trial. These exceptional practices must be justified by a particularized showing of manifest need sufficient to overcome the substantial risk of prejudice they pose." (Stevens, supra, at p. 632; accord, People v. Poore, supra, at p. 285; People v. Hernandez, supra, at pp. 741742.) Included in this category are visible physical restraints and prison clothing, and physical restraints that are not visible may nonetheless impair a defendant's ability to assist in his or her defense or serve as a competent witness. (Stevens, supra, at pp. 632633.) Because of the risks of infringing on the right to a fair trial, physical restraint is considered inherently prejudicial under federal and state law and is subject to heightened scrutiny. (Id. at pp. 633-634; People v. Hernandez, supra, at pp. 742-743.) The underlying concern is the avoidance of "'the pernicious effect of the "possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system . . ., as well as the effect such restraints have upon a defendant's decision to take the stand"'" (People v. Anderson (2001) 25 Cal.4th 543, 596, quoting People v. Duran (1976) 16 Cal.3d 282, 290), and "'the first and last of these considerations predominate'" (People v. Anderson, supra, at p. 596., quoting People v. Cox (1991) 53 Cal.3d 618, 652).
Blanco identifies independent review as the appropriate standard. He fails to persuade us that either condition complained of infringed upon a constitutional right, but the result we reach remains the same regardless of the standard of review applied.
C. Analysis
Notwithstanding Blanco's contrary framing of the issue, his claims do not implicate inherently prejudicial security measures such as physical restraints and, therefore, the measures in dispute "need not be justified by a demonstration of extraordinary need." (Stevens, supra, 47 Cal.4th at p. 633; accord, People v. Poore, supra, 13 Cal.5th at p. 285; People v. Hernandez, supra, 51 Cal.4th at pp. 741-742.) The trial court was thoughtful in its consideration of Blanco's motion. A different seating arrangement was not possible given the physical limitations in the courtroom, the arrangement applied to the three codefendants and their attorneys in equal measure, and the arrangement was such that it did not interfere with Blanco's ability to speak with his counsel. With respect to the golf pencil, the bailiff wanted the codefendants to have short pencils rather than ink pens, which were longer and could have metal parts. The court agreed with the security concern, found it unlikely jurors would notice the short pencils, and concluded there was no prejudice if anyone did notice.
Blanco cites to no authority supporting a claim of error under these circumstances and we are unpersuaded that the seating arrangement, which was physically necessary and entirely unrelated to a security concern, or the short pencil risked prejudicing Blanco in the eyes of the jury or compromising his ability to confer with counsel, and we find no abuse of discretion. Moreover, the record is devoid of any indication of prejudice to Blanco flowing from either courtroom measure (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 910-911), which also forecloses his claim of cumulative error (People v. Capers (2019) 7 Cal.5th 989, 1017).
Blanco points to the split verdict as an indication that this was such a close case that the asserted courtroom errors cannot be deemed harmless, but we find this argument unpersuasive in view of the record in this case. The evidence of Blanco's participation in the crimes was exceptionally strong, as he, Castro, and Foster were apprehended after they emerged from Victor's car at the end of the police pursuit. As with Castro, Victor, who had gunshot wounds, identified Blanco by first name before identifying him in person. Further, Foster's jail call indicated Blanco's willing participation in the events that occurred. Rather than reflecting uncertainly over Blanco's guilt in general, a more reasonable reading of the verdicts is that the jury could not reach agreement on whether or not Blanco intended to kill Victor and, consistent with Castro's and Foster's verdicts, whether the trio committed their crimes "for the benefit of, at the direction of, or in association with" the Southside Bakers. (§ 186.22, subd. (b)(1).) This reading is consistent with the jury notes reflecting a split of nine versus three on count 1 in phase one, and the same split for both Blanco and Castro on the gang enhancements in phase two. Blanco points to nothing in the record that supports his assertion the split verdicts were attributable to the seating arrangement or his use of a golf pencil.
The jury found it not true that Castro and Blanco personally and intentionally discharged a firearm in the commission of carjacking. (§ 12022.53, subds. (c) [Castro], (d) [Blanco].) The jury asked when carjacking begins and ends, and its finding on this enhancement is consistent with Victor's statement that the group took the car and drove off before returning and shooting at him.
III. Claims of Sentencing Error
A. Castro's Claim of Error Under Section 1385 as Amended By Senate Bill 81
1. Legal Principles
When the trial court sentenced Castro, it imposed terms of three years four months for the firearm enhancement and five years for the prior serious felony conviction enhancement. (§§ 12022.5, subd. (a), 667, subd (a)(1).) Following amendment by Senate Bill 81, effective January 1, 2022, section 1385, subdivisions (a) through (c)(2), provides, in relevant part:
"(a) The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.
"(b) [¶] (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
"(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).
"(c) [¶] (1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
"(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
"(B) Multiple enhancemenls are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
"(D) The current offense is connected to mental illness.
"(E) The current offense is connected to prior victimization or childhood trauma. "(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
"(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
"(H) The enhancement is based on a prior conviction that is over five years old.
"(I) Though a firearm was used in the current offense, it was inoperable or unloaded." (Italics added.)
Castro claims that based on the plain language of section 1385 as amended by Senate Bill 81, he is entitled to dismissal of the firearm enhancement and the serious felony conviction enhancement because application of the enhancements resulted in a sentence that exceeds 20 years. (§ 1385, subd. (c)(2)(C).) Alternatively, he claims one of the two enhancements must be dismissed because section 1385 precludes imposition of multiple enhancements. (Id., subd. (c)(2)(B).) Castro acknowledges the published decisions holding that the term "shall" in the relevant subdivisions of section 1385 is not mandatory, but he argues the cases were wrongly decided. (Citing People v. Mendoza (2023) 88 Cal.App.5th 287, 295-297 (Mendoza); People v. Anderson (2023) 88 Cal.App.5th 233, 239-241 (Anderson), review granted Apr. 19, 2023, S278786; People v. Walker (2022) 86 Cal.App.5th 386, 391 (Walker), review granted Mar. 22, 2023, S278309.)
The People contend that Castro forfeited his claim of sentencing error under section 1385 because he failed to raise the issue in the trial court. Castro does not dispute that he failed to raise the issue, but he asserts that this court has the discretion to reach claims that are of constitutional dimension and has discretion to reach claims on their merits for the purpose of forestalling an argument of IAC. If this court declines to exercise discretion to consider his claim, Castro seeks remand for resentencing because trial counsel rendered IAC.
2. Unauthorized Sentence Doctrine
"[A]n unauthorized sentence or one in excess of jurisdiction is a sentence that 'could not lawfully be imposed under any circumstance in the particular case.'" (In re G.C. (2020) 8 Cal.5th 1119, 1130, quoting People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) "The appellate court may intervene in the first instance because these errors 'present[] "pure questions of law" [citation], and [are] "'clear and correctable' independent of any factual issues presented by the record at sentencing"' and without 'remanding for further findings.' (People v. Smith (2001) 24 Cal.4th 849, 852.) The rule exists because correction of sentencing error that is evident from the record and needing no redetermination of facts does not significantly impact the state's interest in finality of judgments. (In re Harris [(1993)] 5 Cal.4th [813,] 841.) 'In such circumstances, an individual's interest in obtaining judicial review of an allegedly illegal sentence cannot be ignored.' (Ibid.)" (G.C., supra, at p. 1130.)
In this case, Castro argues not that the trial court abused its sentencing discretion under section 1385, but that the statute, as amended, compels dismissal of one or both enhancements. If meritorious, this argument necessarily implicates the unauthorized sentence rule, which represents "a 'narrow exception'" to the forfeiture doctrine. (People v. Anderson (2020) 9 Cal.5th 946, 961, quoting Scott, supra, 9 Cal.4th at p. 354; Anderson, supra, 88 Cal.App.5th at p. 239, fn. 7, review granted.) Therefore, we consider, but reject, Castro's argument on the merits.
3. Analysis
Multiple appellate courts interpreting section 1385, subdivision (c)(2), have concluded that the "shall be dismissed" language included in section 1385, subdivisions (c)(2)(B) and (C), does not mandate dismissal of any enhancements. (Walker, supra, 86 Cal.App.5th at pp. 396-398, review granted [purpose of § 1385, subd. (c) is to give trial court discretion to dismiss enhancements]; People v. Lipscomb (2022) 87 Cal.App.5th 9, 17-21 (Lipscomb) ["'shall be dismissed'" language in § 1385, subd. (c)(2)(C) does not require dismissal of an enhancement whenever a sentence over 20 years may result]; Anderson, supra, 88 Cal.App.5th at p. 239, review granted [language in § 1385 that trial court "'shall'" dismiss an enhancement is conditioned on finding dismissal is in the interest of justice]; Mendoza, supra, 88 Cal.App.5th at pp. 294-297 [court is not required to dismiss an enhancement under § 1385, subd. (c)(2)(C) if it would endanger public safety].) Walker explained that the phrase "'all enhancements beyond a single enhancement shall be dismissed'" in section 1385, subdivision (c)(2)(B), cannot be considered in isolation, but must be considered in the context of the statute as a whole. (Walker, supra, at pp. 396-397.) The phrase is "not a standalone mandate of section 1385." (Id. at p. 397.) Instead, it is listed among nine mitigating circumstances, which, under section 1385, subdivision (c)(1) and (2), are to weigh greatly in favor of dismissal as the court is exercising its discretion to determine whether dismissal is in the furtherance ofjustice. (Walker, supra, at p. 397.) "If we were to read the phrase appended to the multiple enhancements mitigating factor as automatically mandating dismissal of all but one enhancement whenever multiple enhancements exist, then the existence of multiple enhancements would not 'weigh greatly' in favor of dismissal-it would weigh dispositively. But that is not what the statute says, and we are not allowed to rewrite the statute." (Ibid.)
The court in Lipscomb similarly concluded that a trial court is not required to strike an enhancement under section 1385, subdivision (c)(2)(C), where that mitigating circumstance is present. Like Walker, the Lipscomb court refused to read "'shall be dismissed'" under section 1385, subdivision (c)(2)(C), in isolation. (Lipscomb, supra, 87 Cal.App.5th at p. 18.) The court explained, "[W]e must consider the statute as a whole, in particular its characterization of the fact that the enhancement could produce a sentence over 20 years as a 'mitigating circumstance' for the court to consider in the exercise of its 'discretion' to strike the enhancement-consideration which, as noted, does not apply at all where the court finds that striking the enhancement would endanger public safety." (Ibid.)
Anderson, likewise, reasoned "the statement that a court 'shall' dismiss certain enhancements appears as a subpart to the general provision that a 'court shall dismiss an enhancement if it is in the furtherance of justice to do so.' (§ 1385, subd. (c)(1), italics added.) In other words, the dismissal of the enhancement is conditioned on a court's finding dismissal is in the interest of justice." (Anderson, supra, 88 Cal.App.5th at p. 239, review granted.) The language, taken together, means that "the trial court has discretion to dismiss sentencing enhancements; certain circumstances weigh greatly in favor of dismissal; and a finding of danger to public safety can overcome the circumstances in favor of dismissal." (Ibid.) Anderson explained the "shall be dismissed language" in section 1385, subdivision (c)(2)(B), means that "dismissal shall occur but only if, in exercising its discretion and giving great weight to certain factors, the court finds dismissal is in the interests of justice or would not endanger public safety." (Anderson, supra, at p. 240.)
Mendoza, too, concluded that the "'shall be dismissed'" language in section 1385, subdivision (c)(2)(C), "applies only if the court does not find that dismissal of the enhancement would endanger public safety. That interpretation gives meaning to the language in section 1385, subdivision (c)(2) requiring the court to consider whether dismissal 'would endanger public safety,' and it consequently avoids rendering that language surplusage." (Mendoza, supra, 88 Cal.App.5th at p. 296.)
We agree with Walker, Lipscomb, Anderson and Mendoza in their construction of the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C), and we find Castro's contrary arguments unpersuasive. When the language is read in the context of the statute as a whole, dismissal of an enhancement is not mandatory when the circumstances under section 1385, subdivision (c)(2)(B) or (C), are present. Castro's interpretation would strip the trial court of any power to weigh these two mitigating circumstances as required under section 1385, subdivision (c)(2)-under his interpretation, the presence of either one would dispositively require dismissal of one or more enhancements. (Walker, supra, 88 Cal.App.5th at p. 396, review granted.) Further, his interpretation would negate the trial court's consideration of public safety or whether dismissal is in the furtherance ofjustice as required under section 1385, subdivision (c)(1) and (2). (See Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087 [The Legislature "does not engage in idle acts, and no part of its enactments should be rendered surplusage if a construction is available that avoids doing so"].) Accordingly, we reject Castro's claim.
Although Castro does not cite any authority directly supporting his position, he relies on People v. Ortiz (2023) 87 Cal.App.5th 1087, 1097, footnote 6, review granted April 12, 2023, S278894, for the proposition that the court "suggested] the word 'shall,' in subdivision (c)(2)(B) and (C), was mandatory." (Italics added.) However, Ortiz addressed subdivision (c)(2)(D) of section 1385, and the court did not purport to interpret the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) and (C). "[C]ases are not authority for propositions not considered [citation] ...." (People v. Brown (2012) 54 Cal.4th 314, 330.) Further, we disagree with Castro's interpretation of Ortiz as supporting the proposition that section 1385, subdivision (c)(2), strips trial courts of their discretionary sentencing authority. (Ortiz, supra, at p. 1096 ["The plain language of section 1385[, subdivision ](c)(2) contemplates the trial court's exercise of sentencing discretion, even as it mandates that the court give 'great weight' to evidence of enumerated factors."].)
B. Blanco's and Castro's Claims of Error Under Section 1170 as Amended By Senate Bill 567
1. Legal Principles
As amended by Senate Bill 567, effective January 1, 2022, section 1170, subdivision (b), provides:
"(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. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
"(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.
"(4) At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. The court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.
"(5) The court shall 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. A term of imprisonment shall not be specified if imposition of sentence is suspended.
"(6) Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
"(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
"(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
"(C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
"(7) Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present."
Relevant to enhancements, section 1170.1 provides:
"(d) [¶ (1) When the court imposes a sentence for a felony pursuant to Section 1170 or subdivision (b) of Section 1168, the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three 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 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."
As recently explained in Falcon, "Senate Bill 567 materially revised the determinate sentencing scheme under section 1170[, subdivision ](b)" (People v. Falcon (2023) 92 Cal.App.5th 911, 924 (Falcon), review granted Sept. 13, 2023, S281242), and "the amended law now limits a trial court's discretion to impose an upper term" (id. at p. 918, citing § 1170, subd. (b)(1)). Absent circumstances in which the lower term is the presumptive term, discussed post, "[p]resumptively, the middle term is the maximum term that may be imposed and it may be exceeded 'only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term .. [Citation.] In addition, the facts underlying those circumstances must be proven, stipulated to by the defendant or evidenced in a specific manner not required under the former law." (Falcon, supra, at p. 918, quoting § 1170, subd. (b)(2) &citing § 1170, subd. (b)(2)-(3).)
"The plain language of this new configuration creates a presumption that the middle term is the default maximum sentence, and this new presumption bears weight on how the trial court may exercise its discretion to depart from the presumptive rule. [Citation.] Unlike its predecessor, the statute does not allow a court to select an upper term simply because it appears warranted and supported by aggravating circumstances. Instead, in distinct contrast with the former sentencing scheme, the court's decision to impose an upper term is now expressly framed around whether properly proven or established aggravating circumstances justify invoking the exception to the rule that the middle term is the default maximum sentence." (Falcon, supra, 92 Cal.App.5th at p. 925, review granted.)
Under section 1170 as amended, "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." (Id., subd. (b)(3).) Otherwise, "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...." (Id., subd. (b)(2).)
2. Blanco's Claim
a. Procedural Background
Blanco was sentenced almost four weeks after the effective date of Senate Bill 567, but the probation report was prepared prior to the effective date, in November 2021. The report identified one mitigating factor based on Blanco's satisfactory performance on juvenile probation in one case and listed the following five aggravating factors: "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness in that the defendant continued to cause the victim to fear for his life after committing the carjacking by following him and directing him to walk in various directions"; "[t]he defendant's prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous"; "[t]he defendant has served a prior . . . 1170[, subdivision ](h)(5)(A) commitment and a prior prison term"; "[t]he defendant was on parole when the crime was committed"; and "[t]he defendant's prior performance on juvenile probation was unsatisfactory in that he violated terms and re-offended." (See Cal. Rules of Court, rules 4.421(a)(1), (b)(1)-(5), 4.423(b)(15).)
All further references to rules are to the California Rules of Court.
Prior to the sentencing hearing, Blanco's trial counsel filed a sentencing memorandum requesting the trial court strike or stay the firearm enhancement because use of a firearm was an element of the assault offense, and requesting the court strike Blanco's prior strike conviction under Romero . The memorandum also included a statement of mitigating factors that included Blanco's family history, adverse childhood experiences, education, substance abuse, medical and mental health, and incarceration and rehabilitation. Finally, pursuant to section 1385 as amended by Senate Bill 81, the memorandum went through the factors enumerated in subdivision (c)(2)(A) through (I) of the statute and, for each factor, addressed applicability or inapplicability.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
At the sentencing hearing, Blanco's counsel stated that she had no additional evidence to offer, but she addressed the mitigating and aggravating factors identified in the probation report and pointed out that with the exception of the prior strike conviction, the aggravating factors must be found true by a jury or admitted by Blanco. Regarding the first aggravating factor in the probation report, counsel argued that a jury did not find "[t]he 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(a)(1).) Regarding the fifth aggravating factor, counsel disputed that there was any evidence Blanco violated probation while a juvenile, and she argued any violation of juvenile probation was remote in time and should not be considered against him. Regarding the remaining three aggravating factors in the probation report-that Blanco had numerous prior convictions, served a prior prison term, and was on parole when he committed the crimes in this case-counsel argued that the majority of the prior crimes were either for minor offenses or were remote in time and should not be used to impose the upper term, to impose the prior felony strike conviction enhancement, or to sentence Blanco under the Three Strikes law. Counsel also objected to imposition of consecutive sentences. (Rule 4.421(b)(2)-(4).)
The record reflects counsel referred to Senate Bill No. 483 rather than Senate Bill 567. (Senate Bill No. 483 (2021-2022 Reg. Sess.) It is unclear if counsel misspoke or there was a transcription error, but it is clear that counsel was referring to Senate Bill 567. Senate Bill No. 483, also effective January 1, 2022, added former sections 1171 and 1171.1, which, subject to certain exceptions, "invalidate[d] prior prison term and prior drug conviction enhancements imposed under Penal Code section 667.5, former subdivision (b), and Health and Safety Code section 11370.2, respectively." (People v. Flores (2022) 77 Cal.App.5th 420, 442, fn. omitted; see Assembly Bill No. 200 (2021-2022 Reg. Sess.) Stats. 2022, ch. 58, §§ 11-12 [renumbering § 1171 to § 1172.7 & § 1171.1 to § 1172.75].)
The prosecutor opposed Blanco's Romero motion, motion to strike the prior felony conviction enhancement and the firearm enhancement, and objection to consecutive sentences. In support of the upper-term recommendation in the probation report, the prosecutor acknowledged the then-recent amendment of section 1170, but he argued that the jury's verdicts amounted to a finding on the first aggravating factor and on the additional but unlisted factor that Blanco "was armed with or used a weapon at the time of the commission of the crime." (Rule 4.421(a)(2).) With respect to the other four factors in the probation report, the prosecutor disagreed that Blanco's prior offenses were remote in time, and he argued that Blanco started committing crimes as a juvenile in 2008 and continued into adulthood with no break, culminating in the present offenses.
Blanco's counsel responded only that the trial court was precluded from imposing the firearm enhancement because it was an element of his assault conviction.
The trial court rejected Blanco's counsel's enhancement argument in light of the exception in section 12022.5, subdivision (d), and agreed both with the five aggravating factors in the probation report, and with the sixth aggravating factor argued by the prosecutor. After describing the case as "very, very serious" with "circumstances in aggravation [that] significantly outweigh those in mitigation," the court sentenced Blanco to the upper term for carjacking; one-third of the upper term for the firearm enhancement attached to the assault conviction; and the upper terms for being a felon in possession of a firearm and active participation in a criminal street gang, both stayed under section 654.
Section 12022.5, subdivision (a), provides, "Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." (Italics added.) However, section 12022.5, subdivision (d), provides, "Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death." (Italics added.)
On appeal, Blanco argues that he did not waive his right to a jury trial on the aggravating factors and, therefore, the trial court's reliance on factors that were not found true by a jury was a violation of his rights under federal and state law. He claims that the error is reversible per se and, alternatively, is not harmless beyond a reasonable doubt. Additionally, Blanco claims that because he was 24 years old at the time of the crimes, his youth entitled him to the presumptive lower term under section 1170, subdivision (b)(6)(B). (See § 1016.7, subd. (b) [defining youth as anyone under the age of 26 years when the offense was committed].)
The People do not dispute that the trial court erred with respect to the first factor in the probation report. However, they contend that because the facts relating to Blanco's prior convictions were established through the certified records the trial court considered in connection with adjudicating the prior strike allegation, the upper-term sentence comports with the Sixth Amendment and partially comports with state law as amended, and the court's error in engaging in impermissible factfinding on the first aggravating factor is harmless beyond a reasonable doubt.
b. Legality of Blanco's Sentence
We turn first to which aggravating factors the trial court relied on to select upper terms for carjacking, possession of a firearm by a felon, and active participation in a criminal street gang and whether those findings comport with section 1170 as amended by Senate Bill 567. Whether these crimes "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(a)(1)) was a question of fact that had to be stipulated to by Blanco or found true beyond a reasonable doubt by the jury or the judge in a court trial (§ 1170, subd. (b)(2)-(3)). Blanco did not stipulate to this aggravating factor, he did not agree to a court trial on it, and the jury did not make other specific findings that necessarily include a finding on this factor. Therefore, the court erred by engaging in improper factfinding on the first factor.
Falcon explained, "As the requirements under state law frame how the Sixth Amendment applies, and because amended section 1170[, subdivisiion ](b) now effectively incorporates Sixth Amendment principles, it is likely better to consider state law viability before moving to the constitutional analysis-this is particularly true if, as we have questioned, the lack of any properly proven or established aggravating circumstances signals an unauthorized sentence under state law. If a circumstance is properly established under the amended law, it almost certainly satisfies Sixth Amendment principles. And, if there are no properly proven circumstances, and this constitutes an unauthorized sentence under state law, then there is no need to consider the constitutional question because resentencing would be required." (Falcon, supra, 92 Cal.App.5th at p. 952, fn. 12, review granted.)
The court committed the same factfinding error when it found Blanco was armed with or used a weapon. (Rule 4.421(a)(2).) Although Blanco mentions this sixth factor in passing, he does not address it substantively and the People do not address it at all. However, the court expressly stated, "I also agree that an additional circumstance in aggravation is not mentioned but it could be is that defendant personally used a firearm during the course of the events, so that can be added as an additional one." While there is some evidence in the record that Blanco and Castro pointed guns at Victor after they demanded his car, the jury found it not true that Blanco and Castro personally and intentionally discharged a firearm in the commission of carjacking. (§ 12022.53, subds. (c), (d).) Thus, the evidence allows for the possibility that the jury could have made such a finding, at least with respect to carjacking, but none of the findings the jury actually made permit, let alone compel, the conclusion that this factor was necessarily found true beyond a reasonable doubt. Additionally, we note that any reliance on this factor to impose the upper term for being a felon in possession of a firearm would constitute an impermissible dual use of facts. (Rule 4.420(h); People v. Moberly (2009) 176 Cal.App.4th 1191, 1197, citing Scott, supra, 9 Cal.4th at p. 350.)
The remaining four factors, two through five as addressed by the court, relate to Blanco's criminal record. The parties take opposing positions concerning what the certified records in this case show. Blanco argues that none of the four factors was proven true by a certified record of conviction, while the People claim that all four factors were proven true. Neither position is entirely accurate, in our view.
Under Sixth Amendment jurisprudence, "aggravating circumstances based on a defendant's criminal history that render the defendant eligible for the upper term include a trial court's finding that the defendant suffered a prior conviction [citation]; that the defendant suffered prior convictions that are numerous or increasingly serious [citation]; that the defendant was on probation or parole at the time the offense was committed [citation]; and that the defendant performed unsatisfactorily while on probation or parole to the extent such unsatisfactory performance is established by the defendant's record of prior convictions [citation]." (People v. Scott (2015) 61 Cal.4th 363, 404-405.) Several appellate courts have held that within the meaning of section 1170, subdivision (b)(3), "the fact of a prior conviction includes 'other related issues that may be determined by examining the records of the prior convictions'" (People v. Pantaleon (2023) 89 Cal.App.5th 932, 938 (Pantaleon), quoting People v. Black (2007) 41 Cal.4th 799, 819; accord, People v. Wiley (2023) 97 Cal.App.5th 676, 686; People v. Ross (2022) 86 Cal.App.5th 1346, 1353, review granted Mar. 15, 2023, S278266; People v. Flowers (2022) 81 Cal.App.5th 680, 685-686, review granted Oct. 12, 2022, S276237.) This includes "a finding that prior convictions are numerous or of increasing seriousness, and a finding that defendant was on probation or parole at the time the crime was committed." (Pantaleon, supra, at p. 938, citing People v. Towne (2008) 44 Cal.4th 63, 70-71 &Black, supra, at pp. 819-820; accord, Wiley, supra, at p. 686; Ross, supra, at p. 1353; Flowers, supra, at p. 685.) Although the People do not cite to intermediate appellate authority, they cite to People v. Scott, supra, at page 405, Towne, supra, at pages 80-81, and Black, supra, at pages 818-820 for the proposition that certified records of conviction can establish aggravating factors that relate to a defendant's prior convictions.
Blanco contends the People "completely misunderstand[] the limited scope of the certified-record-of-conviction exception to jury-trial requirement of section 1170, subdivision (b)," but does not explain why, for example, a certified record of a prior conviction that shows a jail or prison term or an adjudicated probation or parole violation would not suffice under state law. The California Supreme Court has granted review in People v. Lynch (May 27, 2022, C094174) (nonpub. opn.), review granted August 10, 2022, S274942, to address the standard of review in light of Senate Bill 567 and may clarify this issue. In the interim and given the court's longstanding interpretation of the prior conviction exception under the Sixth Amendment (People v. Scott, supra, 61 Cal.4th at pp. 404-405), we assume without deciding that under state law, the certified record exception expressly applicable to prior convictions findings may also extend to related findings such as the fact of a prior prison term or numerous convictions, or, if evidenced by the records, the fact that the defendant was on probation, supervision, or parole when the crime was committed or that the defendant's performance on probation or parole was unsatisfactory.
Turning to the certified records admitted into evidence for the purpose of proving Blanco's prior strike conviction, the trial court found that in 2018, Blanco suffered convictions for inflicting corporal injury under section 273.5, subdivision (a), and for criminal threats under section 422, the latter of which is a serious felony within the meaning of the Three Strikes law. (§§ 667, subds. (a), (d)(1), 1192.7, subd. (c)(38).)The probation report is not a certified record of conviction (Falcon, supra, 92 Cal.App.5th at p. 953, review granted, citing People v. Dunn (2022) 81 Cal.App.5th 394, 403 (Dunn), review granted Oct. 12, 2022, S275655), but Blanco's rap sheet, which shows that he had multiple prior juvenile adjudications and adult criminal convictions, as well as juvenile probation violations, was included in the certified records that were admitted. Of the 12 offenses listed in the probation report, 11 are supported by the certified records, as are four juvenile probation violations. The certified records also show the fact that Blanco was sentenced to three years in prison in January 2019 and was received into state custody.
Although not relevant to the issues raised in this appeal, section 1192.7 was recently amended, effective January 1, 2024. (Senate Bill No. 14 (2023-2024 Reg. Sess.) Stats. 2023, ch. 230, § 4 [adding human trafficking of minor to enumerated serious felonies].)
Of those convictions, the parties stipulated at trial to a 2018 felony conviction for the purpose of proving Blanco was a felon in possession of a weapon in count 5. Because "[a] fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term" (rule 4.420(h)), it would be improper to include that conviction for the purpose of determining numerosity on count 5. We discern no material difference between 10 and 11 convictions, however.
We agree that determining numerosity or increasing seriousness of prior convictions (rule 4.421(b)(2)), and unsatisfactory performance on probation, supervision, or parole (id., (b)(5)), may involve subjective factfinding of varying degree and may be subject to reasonable dispute in a given case. However, Blanco cites no authority supporting his apparent position that there is a reasonable argument that 10 or 11 prior juvenile adjudications and adult convictions from 2008 to 2018, evidenced by certified records, fall short of "numerous." (Id., (b)(2); cf. Falcon, supra, 92 Cal.App.5th at p. 953, review granted ["We are unaware of any published authority holding [only] one or two prior convictions qualify as 'numerous' for purposes of . . . rule 4.420(b)(2)."].) Further, he does not specifically address the state prison term or probation violations evidenced by the records. In the absence of a developed argument on the issue and because we conclude remand is warranted, we assume without deciding that the certified records permitted the trial court to find the second, third, and fifth factors. (§ 1170, subd. (b)(3).)
With respect to the fourth and remaining record-related factor, the records show only that Blanco was paroled in August 2019. The People, who take the position that certified records support the trial court's finding that Blanco was on parole when he was arrested for these crimes, do not cite where in the certified records this fact is shown. The information is set forth as a fact in the probation report, but, as stated, probation reports are not certified records. Thus, the trial court's reliance on this factor was improper.
In sum, this leaves imposition of the upper terms for carjacking, being a felon in possession of a weapon, and active participation in criminal street gang based on three valid factors relating to Blanco's criminal record and three invalid factors, two of which relate to the offenses. Further, section 1170.1, subdivision (d)(2), governing imposition of the upper term for the firearm enhancement, does not contain any exception for certified records and, effective March 14, 2022, rule 4.420(c) expressly provides, "[T]he court may consider the fact of the defendant's prior convictions based on a certified record of conviction without it having been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial. This exception does not apply to the use of the record of a prior conviction in selecting the upper term of an enhancement." The parties do not address section 1170.1 and, therefore, do not address selection of the upper term for the firearm enhancement through the lens of section 1170.1, subdivision (d)(1) and (2), but it appears that as to this enhancement, none of the factors found true by the court complied with the law as amended by Senate Bill 567.
c. Applicability of Gutierrez
Having identified which aggravating factors were found in contravention of the law, we turn to the issue of whether remand for resentencing is required. Generally, we assess federal constitutional error under the Chapman standard and state law error under the Watson standard. The changes effected by Senate Bill 567 have proven neither simple nor straightforward, and the assessment of error and prejudice under section 1170 as amended by Senate Bill 567 has resulted in varying approaches among the appellate courts. (Falcon, supra, 92 Cal.App.5th at pp. 918-921, review granted.) As Falcon observed, "While courts uniformly agree Senate Bill 567 applies retroactively to nonfinal cases, the Courts of Appeal are currently fractured regarding how to assess the need for resentencing in the context of upper term sentences imposed under section 1170, former subdivision (b)." (Id. at p. 918.)
Under Chapman, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt" (Chapman v. California (1967) 386 U.S. 18, 24, and under Watson, "a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error" (People v. Watson (1956) 46 Cal.2d 818, 836). Blanco argues that the error is reversible per se, but few trial errors are of the structural type that compel reversal. (People v. Tran, supra, 13 Cal.5th at p. 1208 ["Errors may be deemed structural according to '"three broad rationales"': where '"the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,"' '"where the effects of the error are simply too hard to measure,"' or where '"the error always results in fundamental unfairness."'"].) Blanco develops no persuasive argument that sentencing error under section 1170 is structural and the cases he relies on are of no assistance in this regard. (Citing People v. Blackburn (2015) 61 Cal.4th 1113, 1134-1135 [invalid waiver of jury trial right in civil commitment proceedings]; People v. Breverman (1998) 19 Cal.4th 142, 173-174 [discussing structural error], disapproved on another ground by People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7; People v. Ernst (1994) 8 Cal.4th 441, 443 [invalid waiver of jury trial right in guilt phase of criminal trial]; People v. Cahill (1993) 5 Cal.4th 478, 500-502 [discussing structural error].)
In this case, we need not reach the issues of which standard applies and how it applies because we conclude that on this record, Gutierrez supplies the appropriate remedy. In that case, the California Supreme Court recognized the longstanding principle that "[a]bsent evidence to the contrary, we presume that the trial court knew and applied the governing law." (Gutierrez, supra, 58 Cal.4th at p. 1390, citing People v. Thomas, supra, 52 Cal.4that p. 361.) However, '"[defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] 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.' [Citation.] In such circumstances, we have held that 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; accord, Salazar, supra, 15 Cal.5th at p. 424; People v. Tirado (2022) 12 Cal.5th 688, 694; People v. Flores (2020) 9 Cal.5th 371, 431-432.)
Blanco was sentenced shortly after the effective date of Senate Bill 567 and prior to any substantive interpretation of the statute by the appellate courts. The trial court recognized the law had changed, but then proceeded to act as the factfinder, including on factors that clearly required jury findings, and it relied on a probation report that had been prepared prior to the change in the law, as well as the prosecutor's argument. Critically, in addition to the impermissible factfinding, the record is devoid of indication that Blanco was afforded the benefit of the new middle-term presumption. As we explained in Falcon, "[t]he statute's plain language creates an express presumption against the imposition of an upper term sentence, even when properly proven aggravating circumstances exist: a trial court must decide whether the existence of properly proven aggravating circumstances justify, not just the term selected, but upward departure from the presumptive rule itself. The presumption bears weight in this determination. As a result, the trial court no longer has full discretion to impose an upper term sentence without the weight of any presumption against it, as it did under the former version of the [determinate sentencing law]." (Falcon, supra, 92 Cal.App.5th at p. 921, italics added, review granted.) Moreover, as Blanco argues, he may have been entitled to a lower-term presumption, if his youth, which was not mentioned by the trial court, "was a contributing factor in the commission of the offense." (§ 1170, subd. (b), id., subd. (b)(6)(B); see rule 4.423(b)(6) [eff. Mar. 14, 2022, mitigating factors include that "[t]he defendant is under 26 years of age, or was under 26 years of age at the time of the commission of the offense"].)
The first published case, People v. Flores (2022) 73 Cal.App.5th 1032, was decided prior to both Blanco's and Castro's sentencing hearings, but it addressed limited procedural issues. Namely, that, as the parties conceded, Senate Bill 567 applied retroactively and that remand to allow the trial court to apply the new law in the first instance was the appropriate remedy. (People v. Flores, supra, at pp. 1039-1040.)
We express no view on the how the trial court should exercise its sentencing discretion on remand, but under the circumstances in this case, Blanco is entitled to a sentencing decision reached through the exercise of informed discretion. This requires a sentencing decision that affords weight to the middle-term presumption, as the Legislature intended, and any upward departure must comport with the factfinding limitations applicable to the offenses and to the firearm enhancement under sections 1170 and 1170.1. (Falcon, supra, 92 Cal.App.5th at pp. 921 &925, review granted.) The record does not "'clearly indicate[]' that the trial court would have reached the same conclusion" had it been aware of the new constraints on the scope of its discretion (Gutierrez, supra, 58 Cal.4th at p. 1391; accord, Salazar, supra, 15 Cal.5th at pp. 425426), and, therefore, we vacate Blanco's sentence and remand for a full resentencing hearing. This disposition moots Blanco's alternative claim that trial counsel was ineffective for failing to seek the lower term and his claim that the court erred in imposing fines and fees without determining his ability to pay, and we do not consider those claims. (Duenas, supra, 30 Cal.App.5th at p. 1172.)
3. Castro's Claims
a. Procedural Background
Castro was sentenced approximately 10 days before Blanco, and his probation report was also prepared in November 2021. The report identified no mitigating factors and five aggravating factors: "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness in that the defendant continued to cause the victim to fear for his life after committing the carjacking by following him and directing him to walk in various directions"; "[t]he defendant's prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous"; "[t]he defendant has served . . . a prior prison term"; "[t]he defendant was on parole when the crime was committed"; and "[t]he defendant's prior performance on juvenile probation, was unsatisfactory in that he violated terms and re-offended." (See rule 4.421(a)(1), (b)(1)-(5).)
At the sentencing hearing, the prosecutor argued that in addition to the factors identified in the probation report, Castro "was armed with or used a weapon at the time of the commission of the crime"; he "induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission"; "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism"; and "[t]he crime involved an attempted or actual taking or damage of great monetary value." (Rule 4.421(a)(2), (4), (8), (9).) Castro's trial counsel requested imposition of the middle term and submitted without further argument. The trial court found one mitigating factor based on Castro's acknowledgement of responsibility in his presentencing letter to the court and, in aggravation, the court found "the crime did involve great violence, great bodily harm, to [Victor], and a high degree of cruelty and viciousness" and relied on the same four criminal history related factors from the probation report as we discussed in resolving Blanco's claim. The trial court then imposed the upper term for carjacking; one-third of the upper term for the firearm enhancement attached to the assault count; and the upper terms for being a felon in possession of a firearm and active participation in a criminal street gang, stayed under section 654.
Based on certified records, the trial court found that in 2016, Castro suffered a conviction for robbery, in violation of section 212.5, subdivision (c), which is both a serious and a violent felony within the meaning of the Three Strikes law. (§§ 667, subds. (a), (d)(1), 667.5, subd. (c)(9), 1192.7, subd. (c)(19).) However, Castro argues that the five aggravating factors expressly relied on by the trial court were neither found true by a trier of fact nor admitted by him, and they were not proven by certified records. (§ 1170, subd. (b)(1)-(3).) He also argues that the additional aggravating factors identified by the prosecutor were not proven in compliance with section 1170 and, although the court did not refer to those factors, it is reasonably inferable from the record that the court relied on them as well. Castro claims that the imposition of upper terms in contravention of section 1170, subdivision (b)(2), violated his federal and state rights and the error is prejudicial. Additionally, Castro claims that because he was 23 years old at the time of the crimes, his youth entitled him to the presumptive lower term under section 1170, subdivision (b)(6)(B). (See § 1016.7, subd. (b) [defining youth as anyone under the age of 26 years when the offense was committed].)
The trial court was required to make a record of the facts and reasons for its sentence selection, and the court did not include the additional aggravating factors argued by the prosecutor. (§ 1170, subd. (b)(5); rule 4.406(a), (b)(3).) We will not infer reliance on additional factors from a silent record. (People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Harring (2021) 69 Cal.App.5th 483, 495.)
The People argue that Castro forfeited his claim of error by failing to object, but, if we disagree, they concede remand for resentencing is appropriate. Given the recency of the change in the law; the trial court's engagement in improper factfinding, discussed next; and the record of Blanco's sentencing almost 10 days later expressly reflecting the absence of informed sentencing discretion on this issue, we exercise our inherent discretion to reach the merits of Castro's claim, notwithstanding his failure to object. (In re F.M. (2023) 14 Cal.5th 701, 710, quoting People v. McCullough (2013) 56 Cal.4th 589, 593.)
b. Legality of Castro's Sentence
In contrast with Blanco, Castro's rap sheet was not included in the certified records admitted to prove his prior strike conviction. Therefore, the trial court's finding that Castro had numerous convictions appears based on the probation report, which listed seven convictions. Reliance on the probation report does not suffice. (Falcon, supra, 92 Cal.App.5th at p. 953, review granted; accord, Dunn, supra, 81 Cal.App.5th at p. 403, review granted.) The only conviction proven by certified records is Castro's 2016 conviction for robbery, which the parties also stipulated to for the purpose of proving an element of count 5, being a felon in possession of a firearm. (See rule 4.420(h).) However, the certified records additionally reflect that Castro admitted to violating probation in that case, and he was sentenced to prison and received into state custody. As with Blanco, the certified records admitted do not show that Castro was on parole when he committed the offenses in this case.
Thus, out of five aggravating factors relied on by the trial court, the only two that were properly found under section 1170 as amended by Senate Bill 567 are Castro's violation of probation and prison term. Moreover, as discussed in resolving Blanco's claim, section 1170.1, subdivision (d), does not include a certified records exception applicable to enhancements. The People do not argue to the contrary, instead relying on their forfeiture argument with a concession that remand for resentencing under section 1170, subdivision (b)(1), is appropriate if we decline to apply the forfeiture doctrine.
The People do not offer the same concession regarding Castro's claim he was entitled to the lower-term presumption under section 1170, subdivision (b)(6)(B), based on his youth, but they acknowledge he is entitled to raise that issue if the matter is remanded.
c. Remand for Resentencing
Castro was sentenced more than one week before Blanco and the record is silent with respect to the changes to the law effected by Senate Bill 567. The trial court engaged in impermissible factfinding and did not mention Castro's age. In view of the errors that occurred and given that we concluded Blanco's subsequent sentencing before the same court occurred in the absence of informed discretion, we decline to apply the general presumption that "[a]bsent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) The record here does not "'clearly indicate[]' that the trial court would have reached the same conclusion" had it been aware of the new constraints on the scope of its discretion. (Gutierrez, supra, 58 Cal.4th at p. 1391; accord, Salazar, supra, 15 Cal.5th at pp. 425426.) Therefore, Castro's sentence is vacated, and the matter remanded for full resentencing. In light of this disposition, we do not reach Castro's IAC claim or his Duenas claim.
DISPOSITION
Castro's and Blanco's sentences are vacated and this matter is remanded for full resentencing in accordance with sections 1170 and 1170.1 as amended by Senate Bill 567. Castro's and Blanco's judgments are otherwise affirmed.
WE CONCUR: PENA, Acting P. J. SNAUFFER, J.