Opinion
A164660
08-30-2023
THE PEOPLE, Plaintiff and Respondent, v. JAKE RUSSELL DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Del Norte County Super. Ct. No. CRPB-19-5036)
STEWART, P.J.
Jake Russell Diaz appeals from convictions of offenses he committed in 2018 and 2019, while incarcerated for prior offenses. He raises several claims of sentencing error. Although we find several of his arguments lack merit, we conclude resentencing is necessary due to errors at the sentencing hearing with regard to the requirements of then newly effective amendments to Penal Code section 1170, subdivision (b).
Further statutory amendments will be to the Penal Code unless otherwise specified.
BACKGROUND
In 2016, Diaz was sentenced to an eight-year prison term after pleading guilty to attempted second degree robbery, assault with force likely to produce great bodily injury and two counts of assault with a deadly weapon. On August 16, 2018, while incarcerated, Diaz pleaded guilty to one count of battery by a prisoner on a non-prisoner and was sentenced to a four-year term consecutive to his sentence on the 2016 convictions.
The current case involves charges arising out of three incidents at Pelican Bay State Prison (Pelican Bay). On April 16, 2018, after being handcuffed and taken out of the shower to return to his cell, Diaz "slipped his left hand out of the handcuffs" and struck Correctional Officer Phillip White in the face with his right hand, "using the handcuffs as a weapon" like "brass knuckles." White's glasses and hat were knocked off, he felt momentarily dizzy, as though close to losing consciousness, his face hurt and his ears were ringing; he had a lump on the side of his face and a wound from the "double bars" on the handcuffs. At the time of this offense, Diaz was housed with the mental health population.
On January 12, 2019, Diaz was handcuffed, placed in leg restraints and removed from his cell while it was being searched. When he was being returned to the cell, after Correctional Officer Paul Barnes removed the leg restraints, Diaz "turned 180 degrees away from the cell he was expected to enter," turning toward Barnes and stepping in his direction, and "lunged" toward Barnes, "leading with his head forward right at [Barnes's] facial area." Diaz came within a few inches but did not make contact. As other officers were trying to control him, Diaz lifted his leg to about the height of his waist and swung it in Barnes's direction before the officers took him to the ground.
The handcuffs had to be re-secured after Diaz initially attempted to take them off while the door to his cell was opening.
On May 1, 2019, preparing to escort Diaz to the shower, Correctional Officer Timothy Dempsey Lemos handcuffed him and signaled for the cell door to be opened. As the door was opening, Diaz "lunged" out of the cell and "threw his head back in a violent motion," hitting the "left side of [Dempsey's] facial area, forehead, and eye." The movement was "violent and quick," indicating to the officer that it was not accidental and Diaz was assaulting him. Dempsey had redness on the left side of his forehead and his eye.
Inmates are handcuffed in back and are supposed to exit their cells with their backs to the officers after the door is completely open.
Diaz was charged in a second amended information filed on October 28, 2021, with assault by a prisoner (§ 4501, subd. (b)) (count 1), attempted battery on a non-confined person by a prisoner (§ 664/4501.5) (count 2) and battery on a non-confined person by a prisoner (§ 4501.5) (count 3). The information alleged Diaz's four 2016 convictions as strikes under section 667, subdivisions (b) through (i). Diaz was convicted of the charged offenses after a jury trial, and in a bifurcated court trial, the court found the prior conviction allegations true.
On February 3, 2022, Diaz was sentenced to a total term of 16 years. For the current offenses, the court imposed the aggravated term of six years on count 1 and consecutive one-third middle terms of six months on count 2 and one year on count 3, then pursuant to section 667, subdivision (b) through (i), doubled the aggregate seven-year, six-month sentence to 15 years, consecutive to any term Diaz was presently serving. Finally, citing People v. McCart (1982) 32 Cal.3d 338 (McCart) the court reduced the sentence for the 2018 conviction to one-third the middle term, one year, consecutive to any other sentence.
Although the reference to McCart was not rendered correctly in the reporter's transcript, context makes the reference clear and it was referred to correctly in the court's minutes. As will be discussed, McCart involved sentencing on multiple convictions for offenses committed in prison. (§ 1170.1, subd. (c).)
This appeal followed.
DISCUSSION
I.
Issues Arising from Senate Bill No. 567
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) amended Penal Code section 1170, subdivision (b) in a number of respects, two of which are relevant to this case. First, Senate Bill 567 made the middle term of imprisonment the presumptive sentence. (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.3.) Under the amended statute, "[a] trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt" (People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores); § 1170, subd. (b)(1)-(2)), except that a court is permitted to "consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury." (§ 1170, subd. (b)(3).) Second, the amended statute establishes a presumption in favor of the lower term where specified circumstances were "contributing factor[s] in the commission of the offense," unless the trial court finds that "the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6).) One of the specified circumstances is that the defendant "has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." (Pen. Code, § 1170, subd. (b)(6)(A).)
Diaz contends the trial court erred in imposing the aggravated term on count 1 in the current case, his conviction of assault by a prisoner in violation of section 4501, subdivision (b), without considering evidence of his history of psychological, physical and childhood trauma as now required by section 1170, subdivision (b)(3). He argues both that this evidence should have been considered with respect to the presumptive lower term established by section 1170, subdivision (b)(3), and that it should have been considered as mitigating evidence bearing on the presumptive middle term under section 1170, subdivision (b)(1)-(2). Additionally, he argues the trial court erred in reasoning that it could impose the upper term based on facts found true beyond a reasonable doubt by the jury "as part of the conviction," because relying on a fact that formed the basis of the conviction to impose an aggravated term violates the prohibition against dual use of facts.
A. Background
Diaz was sentenced on Thursday, February 3, 2022, one month after the effective date of the section 1170 amendments. At the outset of the hearing, defense counsel requested a continuance, explaining that he had received a 24-page "psych[]" evaluation "on Monday" and had not been able to review it with Diaz because he had not been able to meet with him "as scheduled" on Tuesday. The People objected, as the matter had been continued three weeks earlier because although the evaluation had been done, the evaluator had not yet completed the written report. Defense counsel stated he had scheduled a telephone appointment with Diaz due to COVID and "[f]or some reason my client couldn't make it to the phone." When the court asked if this meant "he refused to go to the phone by his own volition," counsel responded, "I believe so." The court commented that this was not good cause for a continuance and appeared to question whether the report would be relevant to sentencing, and defense counsel stated, "If I don't go over it with him I'm not going to submit it and not use the eval because I haven't had a chance to review it with him." The court trailed the matter to enable counsel to discuss the situation with Diaz, noting it had another hearing that would take a "substantial amount of time" and if that was not enough, the court would "hear it after that as well" and then decide whether there was good cause for a continuance. When the hearing resumed, defense counsel thanked the court for the opportunity to confer with Diaz and said they were ready to proceed.
The court stated, "Sounds like someone's dragged their feet on their own volition, that's not good cause. That is one issue. The other issue what you want to go over with him wouldn't have any salient effect on the sentencing or not."
Counsel asked the court to impose the middle term rather than an aggravated sentence on count 1, arguing that the offense was not carried out with planning, sophistication or professionalism and did not involve great bodily injury, and that Diaz's other offenses were also "simple attacks" that did not reflect an increasing amount of violence.
The court asked for the probation department's position, noting that "[u]nder the new Senate bill and what has to be given to the jury and what was not since this was a trial from last year before the new law changed," the court was "supposed to automatically start at the midterm unless things have gone to the jury for aggravational [sic] mitigation." The probation officer told the court the department's report had been prepared "with that new law in mind" and the aggravated term was warranted based on Diaz's prior record of convictions alone-12 prior felony convictions, including the 2018 in-custody violation. In addition, the probation officer argued the court could consider the fact that Diaz used a weapon because this was a fact the jury found true beyond a reasonable doubt and stated there did not appear to be any factors in mitigation "even under the new criteria put forth by the new bill." The People argued the offense showed sophistication, malice and aggression in that even if the cuffs slipped off Diaz's hands accidentally, he took advantage of the situation and hit the officer hard enough that his hat and glasses flew off and he had marks on his face four years later.
In imposing the upper term on count 1, the trial court referred to aggravating circumstances under rule 4.421 of the California Rules of Court,stating that subdivision (a)(2) was found true by the jury, which found Diaz was "armed with a weapon, assault with a deadly weapon," and that the court found subdivisions (b)(2) and (b)(3) true as Diaz had prior convictions and was serving a prior prison term when he committed the offense. The court had "no information" to find any of the mitigating circumstances under rule 4.423 true, concluded the circumstances in aggravation outweighed those in mitigation and therefore imposed the aggravated term.
Further references to rules will be to the California Rules of Court.
B. Diaz Has Not Demonstrated Prejudicial Error in the Trial Court's Failure to Address Section 1170, subdivision (b)(6).
1. Diaz Forfeited the Issue.
As we have said, section 1170, subdivision (b)(6), directs the court to impose the lower term where the defendant "has experienced psychological, physical, or childhood trauma" that was a "contributing factor in the commission of the offense," unless the trial court finds that "the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6)(A).)
Diaz argues the trial court was aware that his experience of psychological, physical and childhood trauma was a contributing factor in the commission of his offense through reports from Rosemarie Reynolds, Ph.D. and Everett Allen, M.D. Dr. Allen was engaged by the defense to review Diaz's "medical records and past history that could explain [his] charged conduct and inability to communicate with counsel" and provided his opinions in a letter to defense counsel dated October 2020. Reynolds was appointed to evaluate Diaz's competence to stand trial (§ 1368) and on May 25, 2021, submitted her assessment finding him competent.
Reynolds's competency assessment was based on a clinical interview and tests administered to Diaz as well as review of records provided by defense counsel and the court. These records apparently did not include prison mental health records. Reynolds noted that Diaz was included in the mental health population at the time of some of the crime incident reports she reviewed but not at the time of others, and that it was "not clear what brought him into [mental health] level of care."
Reynolds related that Diaz denied any history of trauma or abuse, family history of alcoholism or substance abuse, personal "extensive history of substance abuse" or intravenous drug use, learning problems or special education, psychiatric history or family history of mental illness. Diaz reported that he "fell down during his childhood and had superficial stitches to his forehead."
Reynolds had reviewed Allen's report and she related points he noted about Diaz's history: "[h]istory of early head traumas," [u]se of street drugs including methamphetamine," "history of inpatient treatment," "enroll[ment] in special education, "history of ADHD and asthma" and, as reported by his mother, "lack of oxygen at birth." Reynolds quoted Allen's opinion that "Diaz has 'significant condition[s]' that 'have been demonstrated to damage the brain and nervous system to alter feeling/emotional, thought and to result in non-adaptive and or harmful behavior to self and to other'" and stated that Allen "conclude[d] that Mr. Diaz suffers from a neurocognitive disorder of a mass lesion and fetal alcohol syndrome." Reynolds also stated that she had received notes from defense counsel including one dated August 16, 2018, saying Diaz was diagnosed with Antisocial Personality Disorder, a "chrono" dated May 17, 2019, saying Diaz met the criteria for inclusion into the "CCCMS level of care," a note indicating "[p]ossible anxiety" dated May 9, 2019, and a psychologist's diagnosis of Antisocial Personality Disorder on March 29, 2018.
According to testimony at trial, "CCCMS" stands for Correctional Clinical Case Management Services, which is mental health care.
Allen's letter to defense counsel was submitted to the court on November 16, 2021, under seal, in connection with a defense request for appointment of a forensic neuropsychologist to advise about possible mental health defenses and diversion. Based on his review of legal and medical documents, Allen discussed the conditions, traumas and events in Diaz's history that he believed contributed to Diaz's behavior.
Diaz contends these reports show that physical and childhood trauma and psychological trauma related to mental illness were contributing factors in the commission of his offenses, requiring the trial court to impose the lower term unless it found that "the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6)(A).) He argues the record does not indicate that the trial court understood his mental health history warranted imposition of the lower term or that the court made the requisite finding that imposition of the lower term would be contrary to the interests of justice.
As the People point out, however, Diaz did not argue at sentencing that he should receive the lower term pursuant to section 1170, subdivision (b)(6)(A). He did not raise any issue related to having a history of trauma or otherwise argue his mental state should be considered as a mitigating circumstance. Neither Allen's nor Reynolds's reports were offered or referred to as providing mitigation evidence. Indeed, although Diaz had recently been evaluated by a forensic neuropsychologist and defense counsel initially sought to continue the sentencing hearing to allow him to discuss the new psychological report with Diaz, after consulting with Diaz defense counsel elected not to submit the report and argued only that Diaz should receive a middle term sentence because the offense did not involve aggravating circumstances.
This failure to raise section 1170, subdivision (b)(6)(A), at sentencing forfeited the issue. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims involving failure to make or articulate discretionary sentencing choices]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to urge consideration of mitigating evidence at trial forfeited issue].) As Scott explained, the reason for the forfeiture rule is straightforward: "Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, at p. 353.) Had defense counsel called the trial court's attention to section 1170, subdivision (b)(6)(A), and the evidence he believed supported its application, the court could have addressed the issue.
Diaz argues this case is analogous to People v. Panozo (2021) 59 Cal.App.5th 825 (Panozo), which held remand for resentencing was required where the record indicated the trial court was unaware of its statutory obligation to consider psychological trauma resulting from the defendant's military service in determining whether to grant probation and as a mitigating circumstance at sentencing. (Id. at p. 828; §§ 1170.9, 1170.91.) The defendant's sentencing memorandum sought probation and referral to Veterans Treatment Court, referenced his military combat-related post-traumatic stress disorder (PTSD) and provided documentation to support his diagnosis and request for treatment, and defense counsel "argued extensively at sentencing that his client's crimes were the byproduct of his military service, warranting probation or imposition of the lower term." (Panozo, at pp. 837-838.) But none of the parties referred to sections 1170.9 and 1170.91 or the court's obligation to consider the defendant's PTSD, neither the prosecution nor the probation department treated it as a mitigating factor, and "despite ample references to Panozo's service-related PTSD," the record reflected "no indication the court understood its obligation to consider that fact as a circumstance in mitigation when making discretionary sentencing choices" and in fact supported "the opposite inference." (Panozo, at p. 837.) In these circumstances, the Panozo court concluded it could not apply the usual presumption that sentencing courts "have acted in accordance with legitimate sentencing objectives" and remand was required. (Id. at pp. 838-839.)
Panozo rejected the People's argument that the defendant forfeited his claim by failing to object when the trial court did not refer to his PTSD as a mitigating factor because the defendant did "not challenge the manner in which the trial court exercised its sentencing discretion but rather its apparent misapprehension of statutory sentencing obligations." (Panozo, supra, 59 Cal.App.5th at p. 840.) The court found forfeiture inappropriate because once the defendant alleged that he committed the offense as a result of service-related PTSD, the court was "statutorily required to make an eligibility determination and consider service-related mitigating factors at sentencing," and there was "no indication the court did either." (Ibid.)
The situation in the present case is significantly different. First, while the record in Panozo indicated the trial court was unaware of its obligations under the relevant statutes, here the record confirms the trial court was aware of the amendments affecting its discretionary sentencing choices. The court expressly referred to the "new Senate bill" with respect to the need for jury findings on aggravating factors and the court's obligation to "automatically start at the midterm," and also mentioned mitigation, although the wording of the reporter's transcript makes it difficult to decipher exactly what the court meant to say regarding mitigation. The probation officer told the court the probation report had been prepared "with that new law in mind"; the probation report noted that Senate Bill 567 "made significant amendments to Section 1170 PC and Section 1170.1 PC, specifically affecting the Court's analysis and application of factors in aggravation and mitigation," although it focused on the requirements for imposition of an aggravated term and did not specifically highlight the lower term presumption in section 1170, subdivision (b)(6)(A). Given the trial court's express acknowledgement of the Senate Bill 567 amendments to section 1170 regarding aggravation and mitigation, we do not think it reasonable to infer the court was aware only of the changes affecting its discretion to impose an upper term and not of the amendments concerning factors creating a presumption favoring the lower term.
As mentioned, after defense counsel argued for a middle term sentence, the court asked for the department's position, stating, "[u]nder the new Senate bill and what has to be given to the jury and what was not since this was a trial from last year before the new law changed, I think the Court's supposed to automatically start at the midterm unless things have gone to the jury for aggravational [sic] mitigation."
Second, in Panozo there was "uncontested evidence" that the defendant "served as a combat veteran in Iraq and attributed his criminal behavior to service-related PTSD and substance abuse," which triggered the court's obligation to make an eligibility determination under section 1170.9. (Panozo, supra, 59 Cal.App.5th at p. 838.) Here, the evidence Diaz points to as showing he "experienced psychological, physical, or childhood trauma" that "was a contributing factor in the commission of the offense" (§ 1170, subd. (b)(6)(A)) was the opinion of Dr. Allen. Allen's report was not submitted to the court for purposes of sentencing: It was obtained in 2020 to assist the defense in investigating the case and Allen's opinions were initially presented to the court through Reynolds's section 1368 report. Moreover, Reynolds reported that when she interviewed Diaz, he denied the events on which Allen's opinions were founded, including that he had "any history of trauma or abuse." Even when Allen's report was directly submitted to the court, it was not as evidence of the matter stated but rather in support of an effort to obtain additional information: A defense motion for appointment of a forensic neuropsychologist to advise the defense about possible mental health defenses and diversion was based in part on Allen's concerns about the effects of aspects of Diaz's history on his brain function and recommendation that Diaz be assessed by a psychologist with respect to potential defenses. The court appointed the neuropsychologist, but the resulting report was not submitted by the defense. As we have said, after consultation with Diaz, defense counsel proceeded with sentencing without further reference to the report.
As previously noted, Reynolds stated that Diaz denied any history of trauma or abuse, family history of alcoholism or substance abuse, personal "extensive history of substance abuse" or intravenous drug use, learning problems or special education, psychiatric history or family history of mental illness, and reported that he "fell down during his childhood and had superficial stitches to his forehead."
Thus, in contrast to the uncontested evidence that triggered the trial court's statutory obligation to consider a specific mitigating factor in Panozo, in the present case there was at best conflicting evidence of the circumstance that would trigger application of section 1170, subdivision (b)(6)(A), and the defense declined to submit the additional psychological report it had obtained. The circumstances that led the Panozo court to find forfeiture inappropriate simply do not exist in the present case.
2. Diaz Has Not Demonstrated Ineffective Assistance of Counsel.
Diaz contends his attorney's failure to object when the court did not address the presumptive lower term under section 1170, subdivision (b)(6)(A), constituted ineffective assistance of counsel. This argument cannot prevail on this record.
Under familiar principles, a defendant raising a claim of ineffective assistance of counsel "must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms" and second, "must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Diaz cannot satisfy this burden. As we have described, defense counsel initially sought a continuance of the sentencing hearing on the grounds that he had been unable to meet with Diaz as scheduled to review the new "psych[]" report counsel had received only a few days earlier. After counsel stated he would not submit and rely on the evaluation if he was not able to discuss it with Diaz, the court trailed the case to allow that discussion to happen. When the hearing resumed, defense counsel thanked the court for the opportunity to confer with Diaz and said they were ready to proceed, then argued for imposition of the middle term rather than the aggravated term advocated by the prosecutor and probation department.
The record thus reflects a choice made by counsel not to submit the conclusions of the new psychological assessment and to seek a middle term on grounds unrelated to Diaz's mental condition. One possible explanation for this choice could have been that the new assessment did not support Dr. Allen's view that Diaz's history of physical and psychological trauma contributed to his commission of the offenses, making reliance on section 1170, subdivision (b)(6)(A), futile. Counsel is not required to advance futile positions. (People v. Anderson (2001) 25 Cal.4th 543, 587 [counsel "not required to proffer futile objections"].) Other possibilities obviously exist, including that counsel could have been unaware of the change in law. But the possibility of a satisfactory explanation for counsel's conduct is fatal to Diaz's claim."' "[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.'" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, quoting People v. Wilson (1992) 3 Cal.4th 926, 936.)
C. The Trial Court Did Not Abuse Its Discretion in Imposing the Upper Term Without Consideration of Section 1170, subdivision (b)(6) Factors As Mitigation.
Diaz also contends the trial court abused its discretion in imposing the upper term without considering the history of psychological, physical and childhood trauma shown in Reynold's and Allen's reports as a mitigating circumstance. Citing People v. Burney (1981) 115 Cal.App.3d 497, 505, he argues remand is required where a trial court imposes the upper term after finding there are no mitigating circumstances when in fact mitigating circumstances exist. Burney concluded the defendant was entitled to a new sentencing hearing despite the trial court having cited proper aggravating factors in imposing the upper term because the trial court found no mitigating circumstances when the record showed the existence of several. (Ibid.)
This claim has been forfeited for the reasons discussed in the preceding section of this opinion. Diaz did not offer Reynolds's or Allen's reports as mitigating evidence at sentencing or otherwise ask the court to consider his claimed history of trauma as a mitigating circumstance. Defense counsel argued that various aggravating circumstances did not apply but did not offer any affirmatively mitigating circumstances, and counsel did not object to the probation officer's representation that there were no mitigating factors.
Also, for the reasons we have discussed, Diaz has not demonstrated that the failure to raise his claimed history of trauma as a mitigating circumstance constituted ineffective assistance of counsel. As this is not a case in which there could be no satisfactory reason for counsel to decide not to seek consideration of this mitigating circumstance, Diaz cannot prevail on appeal on a claim of ineffective assistance of counsel.
D. Resentencing Is Required Due to the Trial Court's Reliance on Factors Not Properly Supported under Senate Bill 567.
The trial court explained its decision to impose the upper term on count 1, assault by a prisoner by means of force likely to produce great bodily injury (§ 4501, subd. (b)), as follows: "[W]e will start at the middle term which is four years then make it 421/423 analysis as required under the new Senate bill. [¶] Take a look at Rule 421, circumstances in aggravation. The jury did find A2 to be true, he was armed with a weapon, assault with a deadly weapon, so that is clearly found to be true. Then didn't hear anything from the jury about A8 or A1. [¶] Then looking at B section, Court does find B2 to be true. He has prior convictions that were sustained to the jury in court I should say. B3 is true as he was serving a prior prison term, he was in prison that came out to the jury as part of the conviction. I find those to be true. [¶] Then I take a look at Rule 423. I have no information to find anything in that section to be true. So when I weigh the circumstances in aggravation versus mitigation, the circumstances in aggravation do outweigh the circumstances in mitigation, therefore, the aggravated term of six years is hereby order for violation of Count 1."
Diaz argues that the trial court believed it could rely on the three aggravating circumstances it cited because the facts had been found true by the jury beyond a reasonable doubt "as part of the conviction" and that this rationale means the court violated the proscription against dual use of facts by relying on facts that "formed the basis of [his] conviction" to also impose the upper term. A trial court "cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence." (People v. Scott, supra, 9 Cal.4th at p. 350; rule 4.420, subds. (g) & (h).) As we will explain, we see no dual use violation but conclude for other reasons that the court could not properly rely on at least two of the three factors it cited.
1. The Aggravating Circumstances Did Not Involve Dual Use of Facts but Two of the Three Were Not Properly Supported.
Preliminarily, we disagree with Diaz's view that the court believed all three of the aggravating circumstances it relied on had been found true beyond a reasonable doubt by the jury in finding him guilty of count 1. The court clearly referred to a jury finding only with respect to the aggravating circumstance under rule 4.421(a)(2), that Diaz was armed with a weapon. As to the rule 4.421(b) aggravating circumstances, we read the court's remarks as referring to its own findings, not the jury's, although we acknowledge the remarks regarding rule 4.421(b)(3) are ambiguous.
With respect to the aggravating circumstance under rule 4.421(b)(2) ("[t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness"), the court began by saying the "Court does find B2 to be true." The court referred to the jury in saying Diaz had prior convictions "that were sustained to the jury in court I should say," but in context we understand the "I should say" as a self-correction of the initial statement that Diaz has prior convictions "that were sustained to the jury" to "that were sustained . . . in court." This is the most logical reading of the court's comment, since Diaz waived jury trial on the four priors alleged as strikes in the second amended information and the court found them true beyond a reasonable doubt after receiving certified copies of the records documenting them at a bifurcated trial. No evidence about Diaz's priors was presented to the jury; although it could have inferred that Diaz had at least one prior conviction from the fact that he was in prison when he committed the charged offenses, the jury was given no basis for inferring he had more than one prior conviction. The court was certainly aware that Senate Bill 567 permitted reliance on some aggravating circumstances found true by the court rather than the jury, as reflected in its earlier question to the probation officer, "What are you stating are the aggravating circumstances that either went to the jury or the Court?" The court's comment regarding rule 4.421(b)(3) ("[t]he defendant has served a prior term in prison or county jail under section 1170(h)") is more ambiguous. The court said "B3 is true as he was serving a prior prison term, he was in prison that came out to the jury as part of the conviction." While this remark can be read as referring to the fact that being in prison is an element of the offense, it can also be read as simply referring to the evidence at trial. The court said, as to both the subdivision (b) circumstances, "I find those to be true."
In any event, Diaz's argument is that the court improperly relied on facts that formed the basis of his conviction to aggravate his sentence. As to the first circumstance the trial court relied on, this clearly was not the case: The trial court was incorrect in stating that the jury found Diaz was armed with a deadly weapon. Diaz was convicted of assault by a prisoner by means of force likely to produce great bodily injury (§ 4501, subd. (b). As the People concede, being armed with a weapon is not an element of this offense and the jury was not instructed to make a finding on the issue. (§ 4501, subd. (b); CALCRIM No. 2721.) Diaz's argument that the trial court violated the dual use prohibition in relying on the rule 4.421(a)(2) aggravating circumstance is thus misplaced.
The jury was instructed, pursuant to CALCRIM No. 2721, as follows: "The defendant is charged in Count 1 with assault with force likely to produce great bodily injury while serving a state prison sentence in violation of Penal Code Section 4501. To prove that the defendant is guilty of this crime, the People must prove that: 1, the defendant did an act that by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury; "2, the defendant did that act willfully; "3, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; "4, when the defendant acted, he had the present ability to apply force likely to produce great bodily injury to a person; "And, 5, when he acted, the defendant was confined in a California state prison." Being armed with a deadly weapon is an element of the offense described in section 4501, subdivision (a), assault with a deadly weapon by a prisoner. The trial court may have been misled by the probation report, which correctly stated that Diaz had been found guilty of "4501(b) PC" but incorrectly described this offense as "assault by a state prisoner with a deadly weapon or instrument." Diaz also suggests the probation report incorrectly listed "defendant was armed" as a circumstance in aggravation, but the facts underlying count 1 included that Diaz used the handcuff he slipped out of as a weapon. Nevertheless, as the jury did not need to make a finding on this point, the court could not rely on it as an aggravating circumstance.
But the fact that the jury did not find Diaz was armed with a weapon during commission of the offense necessarily means the trial court's reliance on this circumstance violated the requirement of section 1170, subdivision (b)(2), that aggravating circumstances may be used to impose an upper term only when "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." Curiously, Diaz does not make this argument even though he points out that the jury did not make the finding. The People nevertheless concede the point and acknowledge the court could not rely on rule 4.421(a)(2) to impose an upper term.
Diaz argues that the trial court's reliance on his prior convictions, the second aggravating circumstance the trial court cited, violated the dual use prohibition because the priors were the basis for doubling his sentence as a second strike under section 667, subdivisions (b) through (i), the Three Strikes law. He cites no authority for this contention, and we are aware of none.
The dual use prohibition does not preclude use of a prior conviction both to establish an element of the offense and to impose sentence under the Three Strikes law (People v. Garcia (2001) 25 Cal.4th 744, 757 [failure to register as sex offender; "plain and unambiguous language of the Three Strikes law discloses an intent to impose the enhanced, doubled sentence despite a possible 'dual use' of defendant's prior conviction"]; People v. Tillman (1999) 73 Cal.App.4th 771, 774-782 [failure to register as sex offender]), nor does it preclude use of a prior conviction as the basis for Three Strikes sentencing and to impose a sentence enhancement (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1517-1519 [prior used to elevate petit theft to felony, double sentence under Three Strikes law, and impose § 667.5, subd. (b), enhancement]; People v. Ramirez (1995) 33 Cal.App.4th 559, 562 [prior used to double sentence under Three Strikes law and impose § 667, subd. (a) enhancement]).
As these cases discuss, the express purpose of the Three Strikes law is" 'to ensure longer prison sentences and greater punishment' for convicted felons who have suffered prior serious felony convictions." (People v. Ramirez, supra, 33 Cal.App.4th at pp. 566-567, quoting § 667, subd. (b)); People v. Tillman, supra, 73 Cal.App.4th at pp. 781-782.) Section 667, subdivision (e), "expressly states that, where a defendant is convicted of a felony offense and has previously suffered a serious felony conviction, the defendant's sentence for the new felony offense shall be doubled 'in addition to any other enhancement or punishment provisions which may apply.' (Italics added.)" (Ramirez, at p. 566; Tillman, at p. 782 [discussing essentially the same language in § 1170.12, subd. (c)].) These provisions similarly support the conclusion that a trial court is not precluded from using a prior conviction that resulted in a doubled sentence under the Three Strikes law as an aggravating circumstance supporting imposition of an upper term sentence.
We note, too, that a single prior serious felony conviction triggers the doubled-term provision of section 667, subdivision (e)(1). As the trial court found true four prior serious felony convictions, its reliance on prior convictions as an aggravating circumstance could have been based on priors other than the one triggering application of section 667, subdivision (e)(1), as long as those convictions did not arise from the same single act. (People v. Vargas (2014) 59 Cal.4th 635, 638-639.) Prior convictions may be treated as separate strikes even when they result from the same proceeding (Vargas, at p. 638; People v. Fuhrman (1997) 16 Cal.4th 930, 933, 939) and even when section 654 precluded separate punishment at the time they were adjudicated (Vargas, at pp. 638, 642; People v. Benson (1998) 18 Cal.4th 24, 28-31). The record in the present case does not contain any information regarding the facts underlying Diaz's four 2016 convictions other than the abstract of judgment, which reflects that they resulted from pleas in a single proceeding and sentences on two of the four convictions were stayed pursuant to section 654.
Diaz also argues his priors could not be used to aggravate his sentence because they were implicitly an element of his offense in that to be "confined in the state prison," as section 4501, subdivision (b), requires, the person necessarily must have a prior conviction. It is true that a person confined in prison (an element of the offense in count 1) necessarily has a prior conviction. The aggravating circumstance described in rule 4.421(b)(2), however, is that "[t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness." (Italics added.) The aggravating circumstance thus goes well beyond the "confined in the state prison" element of the offense, which does not necessarily support an inference, much less prove, that the person has more than one conviction.
Diaz does not argue his prior convictions were insufficient to establish numerosity or increasing seriousness (rule 4.421(b)(2)), nor does he suggest any reason other than dual use of facts for finding the trial court's reliance on this aggravating circumstance improper. We note that the record does not make clear whether the trial court's reliance on Diaz's prior convictions was based only on the four 2016 priors it found true as alleged in the second amended information or also on the additional eight priors listed in the probation report. At sentencing, the probation officer argued the court could consider all 12 prior convictions. To the extent the court relied on all 12, the evidence supporting its finding is weakened because the record contains certified records for only five of the 12. As to the five, section 1170, subdivision (b)(3), clearly permitted the court to rely on those priors if it found them true beyond a reasonable doubt based on the certified records of conviction. But the remaining seven priors were documented only by the probation report, which is not a certified record (People v. Falcon (2023) 92 Cal.App.5th 911, 953 (Falcon), petn. for review pending, petn. filed Aug. 2, 2023, S281242) and therefore not within the section 1170, subdivision (b)(3), exception to the requirement of jury findings of proof beyond a reasonable doubt. In any event, as Diaz has not raised this issue, we need not further address it.
The third aggravating circumstance the trial court relied on, citing rule 4.421(b)(3), was that Diaz "was serving a prior prison term." Diaz argues reliance on this factor violated the dual use prohibition because his being in prison was an element of the offense. The People point out, however, that the aggravating circumstance specified in rule 4.421(b)(3) is that the defendant "has served a prior term in prison or county jail under section 1170(h)." (Italics added.) The jury necessarily found beyond a reasonable doubt, as an element of the offense, that Diaz was currently in prison when he committed the charged assault, but this finding does not establish that he had previously served a prison term. Whether the trial court based its reliance on rule 4.421(b)(3) on the jury having found Diaz was currently in prison or its own determination of that fact, the court did not violate the dual use proscription-but it erred in concluding that Diaz's current service of his prison sentence established the aggravating circumstance of having previously served a prison term.
It thus appears that while Diaz's dual use challenge to the upper term sentence is misplaced, the court's reliance on at least two of the three aggravating circumstances it cited was improper.
2. We Cannot Find Harmless Error.
The People maintain any error with regard to the aggravating circumstances was harmless because we can conclude beyond a reasonable doubt that the jury would have found beyond a reasonable doubt that Diaz "was armed with or used a weapon at the time of the commission of the crime" (rule 4.421(a)(2)); the court properly relied on the prior convictions it found true beyond a reasonable doubt (rule 4.421(b)(2)); it "either was or could have been proven from available records" that Diaz served a prior prison term (rule 4.421(b)(3)); and even if one or more of these circumstances does not meet the requirements of section 1170, subdivision (b), there is no reasonable probability the trial court would impose a lesser term even without reliance on the improper factors.
As the parties discuss, the Courts of Appeal have taken various approaches to assessing whether resentencing is required where trial courts imposed upper term sentences based on aggravating circumstances not properly determined under the amended section 1170, subdivision (b), and the issue is currently pending before the California Supreme Court. (People v. Lynch (May 27, 2022, C094174 [nonpub. opn.], review granted Aug. 10, 2022, S274942.)
An initial split in the cases was illustrated by Flores, supra, 75 Cal.App.5th 495 and People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez). Flores held that where a defendant is entitled to retroactive application of Senate Bill 567, an upper term sentence may be affirmed as long as it can be determined, beyond a reasonable doubt, that the jury would have found at least one aggravating circumstance true beyond a reasonable doubt. (Flores, at pp. 500-501.) Lopez disagreed, holding that resentencing is necessary unless the reviewing court can determine beyond a reasonable doubt that the jury would have found all the aggravating factors true beyond a reasonable doubt or, if not, that it is reasonably probable the trial court would "nevertheless have exercised its discretion to select the upper term if it had recognized that it could permissibly rely on only a single one of the aggravating factors, a few of the aggravating factors, or none of the aggravating factors, rather than all of the factors on which it previously relied." (Lopez, at pp. 466-468 and fn. 11.)
In People v. Ross (2022) 86 Cal.App.5th 1346, 1354-1355, review granted March 15, 2023, S278266, a panel including two of the three justices who decided Flores, upon reflection and consideration of subsequent cases, adopted Lopez's two-part harmless error standard.
As recently observed in Falcon, supra, 92 Cal.App.5th at page 933, a majority of courts (including ours in People v. Wandrey (2022) 80 Cal.App.5th 962, 982, review granted Sept. 28, 2022, S275942) have since followed some form of Lopez's two-step approach, with various modifications. The People, although at one point arguing resentencing is not required as long as we can conclude the trier of fact would have found at least one aggravating circumstance true beyond a reasonable doubt (Flores, supra, 75 Cal.App.5th 495) primarily urge reliance on the standard adopted in People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn), review granted Oct. 12, 2022, S275655). As Dunn articulated the test, "[t]he reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is a reasonable probability that the jury would have found any remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless. If not, the reviewing court . . . [determines] (2) whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing consistent with section 1170, subdivision (b)." (Dunn, at pp. 409-410, fn. omitted.)
Here, we can comfortably conclude beyond a reasonable doubt that if asked to make a finding on the issue, the jury would have found beyond a reasonable doubt that Diaz was armed with a weapon (rule 4.421(a)(2)) when he assaulted White. Undisputed evidence showed that Diaz hit White with the metal handcuff he had slipped out of: The correctional officer who observed the incident from one to two feet away testified that Diaz slipped his left hand out of the handcuffs and "struck Officer White in the face with his right hand using the handcuffs as a weapon," like "brass knuckles," and described White's injuries as consistent with having been inflicted by the cuffs. White testified that he had been hit in the face before and this "felt a lot harder" and "definitely more than a fist"; and Diaz did not contest these facts.
On the other hand, as to the trial court's reliance on rule 4.421(b)(3) based on the fact that Diaz was in prison at the time of the offense, the People do not attempt to argue the jurors would have found true the aggravating circumstance that Diaz had served a prior prison term if the issue had been submitted to them; the People acknowledge the point is "unclear . . . based on the lack of evidence presented of [Diaz's] prior prison terms." The People do argue the trial court would necessarily have found this aggravating circumstance true based on information" 'readily available from official records.'" But the only information in the record referring to prior prison sentences was in the probation report. "[A] probation report is not a certified record" (Falcon, supra, 92 Cal.App.5th at p. 953) and therefore not within the section 1170, subdivision (b)(3) exception to the requirement of jury findings of proof beyond a reasonable doubt. The evidence in the record would not have allowed the jury or the court to find the third aggravating circumstance-service of a prior prison term-true under the evidentiary requirements of section 1170, subdivision (a)(3).
This case does not require us to take a position on the difference between Lopez and Dunn as to the need for a reviewing court to determine beyond a reasonable doubt that the jury would have found all aggravating circumstances true beyond a reasonable doubt or only to determine beyond a reasonable doubt that it would have found one aggravating circumstance by that standard and that there is a reasonable probability it would have found the others true beyond a reasonable doubt. (Lopez, supra, 78 Cal.App.5th at pp. 465-466; Dunn, supra, 81 Cal.App.5th at pp. 409-410 .) Because at least one of the three aggravating factors in the present case was not supported by evidence in the record, we could not find harmless error under the first stage of the analysis under either test.
This brings us to the second aspect of the harmless error analysis: Would the trial court have imposed the same sentence if it had been aware it could not properly rely on all of the three aggravating circumstances? In the cases we have discussed, because the defendants had been sentenced prior to the effective date of Senate Bill 567, reviewing courts had to determine what effect there would have been on the trial court's exercise of discretion if it had been aware both that it could not rely on one or more of the aggravating circumstances it had relied on and that its discretion was constrained by the Legislature's specification of a presumption in favor of the middle term.
As recently explained by the court in Falcon, supra, 92 Cal.App.5th 911, Senate Bill 567 "create[d] an express presumption against the imposition of an upper term sentence, even when properly proven aggravating circumstances exist." (Falcon, at p. 921.) Under the amended section 1170, subdivision (b), 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." "This language choice emphasizes there must be circumstances that not only justify an upper term sentence, but that justify upward departure from the presumptive rule. Thus, when a court weighs aggravating circumstances under the revised statutory scheme, it does so under the weight of a new statutory preference in favor of 'a sentence not to exceed the middle term,' and the trial court's discretion to impose an upper term is circumscribed to that extent." (Falcon, at p. 946.) The statutory presumption "meaningfully alters the scope of the trial court's discretion to impose an upper term sentence because it places weight on the scale in favor of the middle term that was not present under the prior version of the statute." (Id. at p. 944.) Trial courts are no longer allowed "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." (Id. at p. 925.)
A trial court's awareness of these statutory constraints on its sentencing discretion is obviously a significant aspect of harmless error analysis in this context. In cases applying the amended section 1170, subdivision (b), retroactively, the sentencing court necessarily made its discretionary choices without reference to the changes Senate Bill 567 would make to the scope of its discretion. In that situation, because the trial court "cannot have acted with '" 'informed discretion,'"' '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." [Citations.]'" (Lopez, supra, 78 Cal.App.5th at p. 467, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
The present case does not involve retroactive application of Senate Bill 567. The new law had become effective a month before Diaz was sentenced and the trial court was aware it had to apply the amended section 1170. The court expressly acknowledged it could only rely on aggravating circumstances proven to the jury, and in some instances the court, and it stated its understanding that it had to "start at the middle term." But the court's analysis indicates it did not fully appreciate the significance of the newly adopted presumptive middle term. After finding it could rely on the three aggravating circumstances it believed met the requirements of Senate Bill 567 and had "no information to find" any mitigating circumstances true, the court concluded, "So when I weigh the circumstances in aggravation versus mitigation, the circumstances in aggravation do outweigh the circumstances in mitigation" and "therefore" it would impose the aggravated term. This explanation, which was the full extent of the court's analysis, reflects a simple weighing of aggravating against mitigating circumstances that would have been appropriate under the former version of section 1170 but in no way acknowledges that the "discretionary limitation" imposed by Senate Bill 567 "means any weighing of aggravating circumstances must occur under the weight of the new rule favoring the middle term as the maximum sentence." (Falcon, supra, 92 Cal.App.5th at p. 948.) As it appears the trial court was not fully aware of the limitations on its sentencing discretion, resentencing is required "unless the record clearly indicates the trial court would have imposed the same sentence" if it had known not only that at least one of the aggravating circumstances it relied on was improper but also that "the middle term was the presumptive maximum sentence." (Id. at pp. 926, 938; People v. Lewis (2022) 88 Cal.App.5th 1125, 1137-1138, review granted May 17, 2023, S279147; People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
The People argue that even if one or more of the aggravating circumstances the trial court relied upon do not satisfy section 1170, subdivision (b), it is clear the trial court would impose the same upper term sentence based on the permissible ones because the court did not find any mitigating circumstances. The People's analysis is too superficial, considering only the existence of aggravating circumstances without evaluating their significance as justification for departing from the presumption favoring a middle term. The People cite People v. Flores (2020) 9 Cal.5th 371, 432, in which the trial court's stated opinion that the defendant deserved the most severe punishment available-the death penalty-made it clear the court would not have stricken 25-year-to-life sentencing enhancements "in the interest of justice" if it had known it had discretion to do so. There is nothing similar in the present record; the trial court expressed no view that Diaz deserved the most severe punishment possible. Nor does the record provide any basis for us to conclude the trial court would have concluded the aggravating circumstances justified an upper term sentence if it included the weight of the presumptive middle term in its analysis. We can only speculate as to how the court might have viewed the aggravating circumstances it relied on if it asked the question whether the aggravating circumstances justified imposition of the upper term rather than simply whether they outweighed mitigating circumstances.
This is particularly true because of the question we previously noted with regard to the aggravating circumstance based on Diaz's prior convictions (rule 4.421(b)(2)). (See footnote 13, ante, page 23.) The record does not exclude the possibility that the trial court was considering the prior convictions shown in the probation report as well as the four priors the court found true, as the probation officer argued it could. If the trial court concluded Diaz had numerous prior convictions based on a history of 12 convictions, we cannot assume its evaluation of whether this aggravating factor justified departure from the presumptive middle term (alone or in combination with weapon use in the present offense) would be the same if based only on the four 2016 convictions the court found true based on certified records-all of which arose from a single proceeding-and the 2018 conviction that was documented in the same certified records and therefore could be considered under section 1170, subdivision (b)(3).
Resentencing is required.
II.
The Trial Court Properly Sentenced Diaz Pursuant to Section 1170.1, subdivision (c).
A. Background
Section 1170.1, subdivision (c), governs sentencing for in-custody felonies. When a person commits multiple crimes while in prison, the sentencing court must impose "a single term, consisting of a principal and a subordinate term," that begins "to run at the end of the prison term imposed for appellant's original 'outside' offense." (McCart, supra, 32 Cal.3d 338, 340.)
Section 1170.1, subdivision (c), provides:" In the case of any person convicted of one or more felonies committed while the person is confined in the state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). This subdivision shall be applicable in cases of convictions of more than one offense in the same or different proceedings."
As earlier noted, Diaz was sentenced in 2016 to an eight-year prison term, then in 2018 received a consecutive four-year term for an in-custody offense. At sentencing in the present case, after imposing sentence on the three new convictions, the trial court reduced the sentence for his 2018 incustody conviction to one-third of the middle term, one year, to be served consecutive to his other sentence.
In Diaz's opening brief, he argued that the trial court erred in sentencing him pursuant to section 1170.1, subdivision (c), because by the time he was sentenced in the present case on February 3, 2022, he had already completed serving his sentences for the 2016 and 2018 convictions. "[I]f the defendant is no longer serving a prison term at the time of sentencing for his in-prison crime, then [section 1170.1,] subdivision (c) has no application." (People v. Brantley (2019) 43 Cal.App.5th 917, 923.)
Diaz's argument is founded on a November 4, 2021 representation by the Del Norte County Sheriff's Department that Diaz was due to be released from Pelican Bay on December 4, 2021. Based on the documentation supporting that release date, the People agreed that because Diaz was not serving a previously imposed prison term when he was sentenced in the present case in February 2022, section 1170.1, subdivision (c), did not apply and the case should be remanded for resentencing.
The sheriff's department on November 4, 2021, filed a request for an order designating Pelican Bay as the place of confinement (§ 4007) during pendency of the present case, stating that Diaz was due to be released from Pelican Bay and committed to the sheriff's custody on December 4, 2021.
Subsequent to the filing of the People's brief, we granted Diaz's motion to augment the record on appeal with the reporter's transcript of a November 3, 2022 hearing in the trial court regarding Diaz's entitlement to custody credits. At that hearing, the case records manager for Pelican Bay testified that although Diaz's release date was originally December 4, 2021, on November 21 the release date was revised to May 3, 2022, due to an "administrative loss" of 150 days of credit. As a result of this changed release date, Diaz was in fact still serving his prior sentence when he was sentenced in the present case. Accordingly, the People withdrew the concession to Diaz's argument that the trial court erred in sentencing him pursuant to section 1170.1, subdivision (c). Diaz has not responded to the withdrawal of the People's concession or otherwise further addressed the section 1170.1, subdivision (c), issue. As will be discussed, however, Diaz's claim of entitlement to custody credits is based on the evidence that he was still in custody on the 2018 offense when he was sentenced on the current offenses.
The People's revised position on the section 1170.1, subdivision (c), issue was stated in a supplemental brief filed in response to Diaz's supplemental brief regarding custody credits. Diaz did not file a reply to the People's supplemental brief; his attorney instead filed a letter explaining that Diaz would not file a reply because the only argument raised in the People's supplemental brief was that Diaz was entitled to custody credits and Diaz agreed. Diaz made no mention of the People's argument that the trial court properly relied on section 1170.1, subdivision (c).
The People's revised position is obviously correct: The trial court did not err in sentencing Diaz under section 1170.1, subdivision (c). Diaz's claim of error was based on his having completed his sentence for both the 2016 and the 2018 convictions prior to imposition of sentence on his new in-custody offenses. As the record confirms he was still serving his 2018 sentence in February 2022, section 1170.1, subdivision (c), applied.
III.
Diaz Is Entitled to Custody Credits.
The trial court did not award Diaz any custody credits at sentencing. In July 2022, Diaz's attorney filed a letter with the trial court requesting correction of the abstract of judgment to reflect custody credits from December 4, 2021, the date the Del Norte County Sheriff's Office had represented to be Diaz's release date for the 2018 conviction, to February 3, 2002, the date of sentencing. (People v. Fares (1993) 16 Cal.App.4th 954, 958; People v. Clavel (2002) 103 Cal.App.4th 516, 519, fn. 4.) This request led to the November 3, 2022 hearing at which it was established, as discussed in the preceding section of this opinion, that Diaz was still serving the sentence on his prior offenses when he was sentenced in the present case.
In a second supplemental brief filed in April 2023, Diaz argues he was entitled to credits for the portion of his 2018 sentence he had already served when the court modified that sentence in the present case. Section 2900.1 provides that "[w]here a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (People v. Saibu (2011) 191 Cal.App.4th 1005, 1012.)
The People agree that Diaz is entitled to section 2900.1 credits and that the case should be remanded for calculation of those credits. We also agree.
Diaz's opening brief, filed prior to the November 3, 2022 trial court hearing on his request for credits, stated that the trial court had not yet ruled on his request for credits. The subsequently filed transcript of that hearing reflects that the only issue addressed was the change in date of Diaz's release on the prior offenses from December 4, 2021, to May 3, 2022. The parties have not informed us of any further action taken in the trial court on the request for credit.
IV.
Clerical Errors in the Abstract of Judgment Must Be Corrected.
The People point to several errors in the abstract of judgment. First, the abstract of judgment lists April 16, 2018, as the date of conviction for the present offenses, but the jury returned the guilty verdicts on December 1, 2021. Second, the four prior strike convictions (§ 667, subds. (b) through (i)) that were charged in the second amended information and found true by the trial court were not listed in section 3 of the abstract of judgment, the space designated for this purpose.
These are clerical errors that can and should be corrected. (In re Candelario (1970) 3 Cal.3d 702, 705; People v. Rowland (1988) 206 Cal.App.3d 119, 123.) We will order the corrections.
DISPOSITION
The sentence is vacated and the matter remanded to the trial court to resentence Diaz on counts 1, 2 and 3 pursuant to section 1170, as amended by Senate Bill 567. In particular, the trial court may consider aggravating circumstances only if they have been found true beyond a reasonable doubt by the jury or, as to prior convictions, found true beyond a reasonable doubt by the court based upon a certified record as required by section 1170, subdivision (b)(3), and must consider whether any proven circumstances in aggravation justify departure from the presumptive middle term. We express no view on the appropriate sentence.
On remand, the trial court shall award Diaz custody credits in accordance with the law.
The trial court shall correct the abstract of judgment to reflect the correct date of conviction for counts A-1, A-2 and A-3 and list in section 3 the four prior convictions found true by the court on December 1, 2021.
In all other respects, the judgment is affirmed.
We concur. MILLER, J. MARKMAN, J. [*]
[*] Judge of the Alameda Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.