Opinion
A163771
09-14-2023
THE PEOPLE, Plaintiff and Respondent, v. EMARIEAY D. PRESCOTT, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 51922921
TUCHER, P.J.
Defendant Emarieay D. Prescott appeals a judgment entered upon a jury verdict finding him guilty of burglary and conspiracy to commit robbery of an inhabited dwelling. He contends he was deprived of his federal constitutional right to a speedy trial, that the trial court misinstructed the jury on the elements of robbery of an inhabited dwelling in concert, and that he is entitled to be resentenced based on statutory amendments enacted since the time he was originally sentenced.
We agree Prescott is entitled to the benefit of the amendments and accordingly remand for resentencing. We reject his speedy trial claim. And while we agree that the challenged instruction was erroneous, we find the error harmless beyond a reasonable doubt.
FACTUAL AND PROCEDURAL BACKGROUND
This case originates in a drug deal gone wrong. The defendants in this case were Prescott, Azrael Vargas, Domenico Delgado-Caramagno (Delgado-Caramagno), and Thomas Lloyd. Delgado-Caramagno and Lloyd reached plea agreements before trial, and Delgado-Caramagno testified at Prescott and Vargas's joint trial.
Domenico B. (Domenico) lived in Moraga with his mother Francesca, his father, his fiancee Abby, their baby daughter, and his brother Anthony.Domenico sold marijuana.
In the interest of privacy and for ease of reference, we refer to the family by their first names, intending no disrespect.
Delgado-Caramagno's Version of Events
Delgado-Caramagno testified that on November 2, 2019, he, Prescott, Vargas, Lloyd, and a man named Angelo went to a house in Moraga in Vargas's Toyota Prius to buy marijuana. Vargas and Angelo went into the house.
Delgado-Caramagno testified in detail about the crimes. He, Vargas, and Lloyd went to Delgado-Caramagno's house after buying the marijuana, and they complained that there was less of it than there should have been. The next day, Prescott rejoined the group and they again talked about the shortage in the marijuana. Vargas said there was more marijuana at the house, and Delgado-Caramagno suggested they go back and take it. Prescott was reluctant, but Delgado-Caramagno told him it would be easy.
Delgado-Caramagno also testified that the four of them agreed to a plan to enter the house by the back door and to restrain the brothers if they were present. After a sidebar discussion, the trial court instructed the jury that statements made at Delgado-Caramagno's house before any of the four got into a car were not admissible against Prescott. When instructing the jury after the close of evidence, the court reminded the jury that certain evidence had been admitted only against Vargas, and specified that limitedpurpose evidence included Delgado-Caramagno's testimony about statements Vargas had made before getting into the car to drive to Moraga.
The four of them got into Delgado-Caramagno's Prius and drove to the house in Moraga, discussing their plan as they drove and agreeing they would drive past the house, see what it looked like, and try to find a way to get in the back. Delgado-Caramagno gave the others, including Prescott, some zip ties and they discussed using them if they had to restrain anyone. There were large trash bags in the trunk, to be used to carry the marijuana.
When the group arrived at the house in Moraga, they all put gloves on their hands, concealed their faces with masks or shirts, got out of the car, and walked up to the back gate. Delgado-Caramagno and Lloyd carried baseball bats, and Vargas was armed with a gun.
Vargas and Lloyd went into the back yard and looked through a sliding door, while Delgado-Caramagno and Prescott watched the street for passing cars and people. Vargas and Lloyd came back and reported there was no one in the main area of the house and the boxes of marijuana were "right there." They approached the house. Vargas opened the back door and all four went inside. The marijuana was by the back door. They looked around to see if there was anything else to take, and as they did so Prescott stepped on a toy, which made a sound. Someone Delgado-Caramagno later learned was Anthony looked out of a door down the hallway. Delgado-Caramagno moved as if he was going to charge Anthony, who slammed the door. He thought Vargas went to Francesca's bedroom.
Delgado-Caramagno and Lloyd took the boxes of marijuana and put them in the back seat of his car. All four men got into the car, with Prescott in the front passenger seat; Vargas had to lie down in the back seat because the boxes prevented him from sitting. Prescott took out a wallet and put it in the glove compartment. They drove away and were soon apprehended by police.
Domenico's Testimony
Domenico testified that when Vargas and Angelo came to the house on November 2, he showed them two large boxes containing about 48 pounds of marijuana, which were in the living room, and Vargas bought two pounds.
At about 9:20 p.m. the following evening, Domenico was home with Abby, their baby, Francesca, and Anthony, all in their bedrooms. He was holding his crying baby and trying to soothe her. The bedroom door opened, and he saw Vargas and someone else. Vargas told Domenico to come out of the room with the baby, and he pointed a gun at them. Domenico tossed his daughter into her crib to get her out of the way of the firearm, slammed the door closed, and locked it with a deadbolt. He heard rustling sounds coming from down the hall. He told Abby to call the police, and she made a phone call. After a couple of minutes, he left the bedroom and saw his mother Francesca, holding zip ties.
Francesca's Testimony
Francesca also described the events of that evening. She was in her bedroom at about 9:20 p.m., when someone, whom she identified at trial as Vargas, came into the bedroom with a gun pointed at her and told her to lie down on the bed then to get on the floor. A larger person wearing a colorful sweatshirt was with him. Francesca was frightened and tried not to look at them. She sat on the floor, and Vargas told her to put her hands behind her back. She did so, and someone put zip ties on her wrists. She heard kicking and screaming elsewhere in the house. Someone's hand took her wallet from the top of her purse. After the men left, Francesca was able to remove the zip ties from her wrists. Police officers later returned her wallet.
Francesca identified Prescott at an in-field identification after the suspects were arrested, and at trial she identified a sweatshirt Prescott was wearing on the night of his arrest as similar to the one the second person in her bedroom was wearing, She acknowledged, however, that at the preliminary hearing she identified Lloyd as the second person she saw.
Search of Car
A police search of the Prius revealed Francesca's wallet in the glove compartment, two boxes with large amounts of marijuana, a baseball bat, zip ties, a ski mask, gloves, and, toward the back of the area under the front passenger seat, a firearm.
Vargas's Testimony
Testifying in his own defense, Vargas presented his decision to enter the house and steal the marijuana as a split-second choice made while he was high on drugs, and he denied planning with anyone to rob the house, threatening anyone, or pointing a gun at anyone. He said he opened the sliding door and entered the house on his own, and he did not see Prescott, Delgado-Caramagno, or Lloyd in the house.
Verdict and Sentence
The jury found defendant guilty of first degree burglary of an inhabited dwelling, with special allegations that a principal was armed with a firearm and that a nonaccomplice was present (Pen. Code, §§ 459, 12022, subd. (a)(1); count 6), and guilty of conspiracy to commit robbery of an inhabited dwelling (§ 182, subd. (a)(1); count 7). It found him not guilty of robbery of an inhabited dwelling as to Domenico (§ 211; count 2) and assault with a semiautomatic firearm or the lesser included offense of assault as to Domenico and his daughter (§§ 245, subd. (b), 240; counts 4 &5). The jury did not reach a verdict on the remaining counts, robbery of an inhabited dwelling as to Francesca (§ 211; count 1) and assault with a semiautomatic firearm or simple assault as to Francesca (§§ 245, subd. (b), 240; count 3).
All undesignated statutory references are to the Penal Code.
The trial court sentenced Prescott to the upper term of six years for burglary of an inhabited dwelling. (§§ 460, subd. (a) &461, subd. (a).) It imposed the midterm of six years for conspiracy to commit a crime and stayed that sentence under section 654, and it dismissed the firearm enhancement. This timely appeal ensued.
DISCUSSION
I. Speedy Trial
Additional Facts
Prescott was arrested on the evening of the burglary, November 3, 2019, and he was charged jointly with Vargas, Delgado-Caramagno, and Lloyd. The arraignment took place on December 16, 2019. Prescott did not waive his right to a speedy trial, and the matter was set for trial on February 3, 2020.
A private attorney substituted in as counsel for Vargas, and on January 21, 2020, the trial court granted a continuance of trial as to all defendants under section 1050.1 to allow him to prepare, over Prescott's objection. Trial was set for March 16, 2020.
In response to the COVID-19 pandemic, beginning in March 2020 the Chief Justice authorized, and the presiding judge of the trial court implemented, emergency relief extending the statutory deadlines for criminal trials. (§ 1382; Gov. Code, § 68115.) On March 19 the Governor issued an executive order requiring all Californians to stay home, subject to certain exemptions, and on March 23 the Chief Justice issued an order suspending jury trials in California for 60 days. Lloyd moved to dismiss the case under section 1382 on April 27, 2020, and Prescott joined in the motion.
Section 1382 establishes deadlines for filing an information and bringing a defendant to trial.
Vargas again moved to continue the trial on June 8, 2020, citing the ongoing COVID-19 pandemic, as well as his counsel's age (71 years old) and preexisting medical conditions that made counsel vulnerable to the virus. As a result, counsel declared, he was "not willing to come to court for any reason until both the Governor of the State of California feels that it is healthy for persons of my age with preexisting medical conditions to not shelter in place, and when my doctor feels that it is safe for me to leave my home and attend court for over seven hours a day for an extended period of time for a trial." Prescott objected to the continuance and asked the court to sever his case. The prosecutor argued against severance and said the trial would involve between 15 and 25 witnesses. The trial court granted the motion to continue trial, denied Prescott's request to sever, and set a trial date for July 24, 2020.
Prescott moved on August 11, 2020 to dismiss the action against him under section 1382. The trial court denied the motion on September 14, 2020.
Prescott challenged the order in this court through a petition for writ of mandate. (Prescott v. Superior Court (A161229), filed Oct. 28, 2020.) The petition was summarily denied on December 3, 2020.
In the meantime, on August 17 Vargas again moved to continue the jury trial based on the pandemic and his counsel's health concerns, including an upcoming medical procedure. On the same date Lloyd also requested a continuance because his counsel was currently trying a homicide case that might last until September 21. Prescott objected to a continuance and asked that his case be severed and sent to trial. The trial court declined to sever Prescott's case and granted the motion to continue, telling the parties that if Vargas's counsel was not able to go to trial on September 21 he would need to arrange for substitute counsel to be ready on that date. On September 21, the matter was continued to October 5, 2021, on which date it was again continued to October 19. The record does not include transcripts of these proceedings.
At the hearing on October 19, 2020, Vargas was represented by new counsel. She indicated she had just substituted in, had only recently received the voluminous case file, was starting to review the materials, and thought it would take her 60 days to complete her preparations. Over the objections of both Prescott and the prosecutor, the trial court granted a continuance until December 14. The prosecutor estimated that he would call about 20 witnesses at trial, and the trial court refused to sever Prescott's trial from Vargas's.
It appears that by this time Delgado-Caramagno and Lloyd had reached agreements to testify against Prescott and Vargas, and their cases were severed.
When December 14, 2020 arrived, the trial court explained that due to the pandemic, the Chief Justice had granted an extension for jury trials, and the court set the new trial date of January 4. On January 4, 2021, the trial date was continued to February 8; according to the court minutes, Prescott was in COVID-19-related quarantine.
On February 8, 2021, through his counsel Prescott requested a continuance of the trial, over the prosecutor's objection, and the matter was set for a hearing three days later. A motion filed on February 11 in support of the motion to continue was supported by a declaration of Prescott's counsel explaining that COVID-19 cases and deaths were surging, that both he and his fiance were over the age of 60 and had not yet been able to secure a vaccination, and that he believed the health risks of a jury trial were too great and the jury pool might not be representative due to the reluctance of potential jurors to serve. Counsel also said he had a conflict of interest due to his "deep resentment" that Prescott foolishly insisted on proceeding to trial- thus exposing counsel to a potentially lethal threat-despite the strength of the evidence against him. Counsel stated that if Prescott did not waive time and the court did not grant a continuance, he would move to withdraw from the case.
The record does not include a transcript of the proceedings on February 11, 2021, but the court minutes indicate the trial was reset to March 29, with a status conference on March 16.
At the March 16, 2021 status conference, Vargas's counsel told the court she was scheduled for her second COVID-19 vaccination on March 28 and asked for a one-week continuance to allow her to recover. Prescott's counsel told the court he had still not been able to schedule his first vaccination despite diligent efforts and he believed it would be "reckless to go to trial under these circumstances." The court noted that pursuant to an order of the Chief Justice, the presiding judge of Contra Costa County had extended the speedy trial deadlines in criminal cases by a month, to April 17. Prescott indicated he did not wish to waive time, and the prosecutor argued against the continuance, urging that Prescott had the right to a fair trial in a timely fashion.
The trial court reset the trial for April 5, telling Prescott's counsel that he should be prepared to begin trial on that date whether or not he was vaccinated. Prescott's counsel then moved to withdraw, based both on his health-related concerns and on what he characterized as a breakdown in communication that would prevent him from representing Prescott adequately. Prescott confirmed that he was "okay" with his counsel being replaced. The trial court granted the request. New counsel was appointed for Prescott on March 19, 2021.
The case trailed after April 5, during part of which time the parties considered a possible plea agreement and the trial court resolved another criminal case that had precedence. On April 19, 2021, negotiations having failed and the other matter being concluded, the case was assigned for a jury trial. Jury selection began the following day.
Analysis
Prescott contends the repeated continuances of his trial date deprived him of his federal constitutional right to a speedy trial. We review a trial court's ruling on requests for continuances for abuse of discretion. (People v. Bradley (2020) 51 Cal.App.5th 32, 39 (Bradley), disapproved on another ground in Camacho v. Superior Court (Aug. 31, 2023, S273391) Cal.4th [2023 Cal. Lexis 4944, p. *51], fn. 8.)
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. Its purpose is "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." (Hernandez-Valenzuela v. Superior Court (2022) 75 Cal.App.5th 1108, 1122.)
In analyzing a speedy trial claim under the federal constitution, we consider four factors set forth by the United States Supreme Court: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (Barker v. Wingo (1972) 407 U.S. 514, 530.) None of these factors is "either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." (Id. at p. 533.) The defendant bears the burden to show a speedy trial violation under this test. (People v. Williams (2013) 58 Cal.4th 197, 233 (Williams).)
The first of these factors, length of delay, "encompasses a 'double enquiry.' [Citation.] 'Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from "presumptively prejudicial" delay, [citation], since, by definition, he cannot complain that the government has denied him a "speedy" trial if it has, in fact, prosecuted his case with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. [Citation.] This latter enquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time.'" (Williams, supra, 58 Cal.4th at p. 234.) As postaccusation delay approaches one year, courts treat it as" 'presumptively prejudicial.'" (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1 (Doggett).) In a complex case, delay weighs less heavily against the state because the delay's significance depends on the particular circumstances of the case and because" 'the delay that can be tolerated for an ordinary street crime is considerably less than for a serious . . . charge.'" (Williams, at p. 234.) Prescott's trial did not begin for approximately 17 months after his arrest, a length of time that is presumptively prejudicial and that is deeply troubling to this Court. Although this case was more serious and complex than" 'an ordinary street crime,'" the length of the delay here is a factor that favors Prescott.
In considering the second factor, reason for the delay, courts ask" 'whether the government or the criminal defendant is more to blame for th[e] delay.' [Citation.] A delay meant to hamper the defense weighs heavily against the prosecution, while more neutral reasons such as negligence or overcrowded courts weight less heavily. [Citation.] Delays attributable to the defendant are effectively forfeited under the standard waiver doctrine." (Bradley, supra, 51 Cal.App.4th at p. 41.)
The delays in this case directly or indirectly stemmed, in the main, from the COVID-19 pandemic. All jury trials ceased for 60 days, and the health risks and state of emergency remained in effect for months after trials resumed. Beginning in June 2020, Vargas sought to continue the trial, based on his counsel's age and medical conditions, and beginning on January 4, 2021, trial was continued because first Prescott was in quarantine and then his counsel resisted going to trial without being vaccinated against COVID-19.
The record shows that, while the trial court made some accommodations for counsels' health concerns, it sought to minimize delays in a manner consistent with the defendants' right to adequately prepared counsel. On August 17, 2020, the trial court continued the trial date based on the unavailability of Lloyd's counsel, but it told the parties Vargas would have to find new counsel if his current attorney was not able to go to trial at that time. When counsel was still not willing to try the case, the court used the only leverage it had-requiring Vargas to obtain new counsel-but this introduced another increment of delay as new counsel needed time to come up to speed. Later, when Prescott's counsel twice expressed unwillingness to proceed with trial while not yet vaccinated, the court told him he must proceed, and, with Prescott's consent, allowed Prescott's counsel to withdraw so new counsel could be appointed. Trial began the following month.
We conclude from these events that neither the prosecution nor the court was primarily responsible for the extended delay in bringing Prescott to trial. Rather, it was a confluence of unfortunate circumstances-that his codefendant twice changed lawyers, that both his own attorney and his codefendant's attorney resisted taking the case to trial before they had been vaccinated against COVID-19, and that on one trial date Prescott himself was unavailable because of a COVID-19-related quarantine. On balance, these reasons for the delay weigh against finding a constitutional violation here. (See Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 169 ["Health quarantines to prevent the spread of infectious diseases have long been recognized as good cause for continuing a trial date"]; accord, Elias v. Superior Court (2022) 78 Cal.App.5th 926, 942 (Elias); People v. Tucker (2011) 196 Cal.App.4th 1313, 1317-1318.)
Prescott argues that rather than subjecting him to delays based on his codefendant's requests, though, the trial court should have severed his case and allowed it to go forward promptly. California has a preference for joint trials when two or more defendants are charged with an offense, in order to"' "promote efficiency and 'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" '" (People v. Zendejas (2016) 247 Cal.App.4th 1098, 1005; see § 1098.) And, where defendants are jointly charged, good cause to continue the trial as to one defendant is good cause to continue the remaining defendants so as to maintain joinder, and the court "shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court . . . that it will be impossible for all defendants to be available and prepared within a reasonable period of time." (§ 1050.1.) Under this rule, "when the proposed delay to permit a single joint trial is relatively brief, the substantial state interests that are served in every instance by proceeding in a single joint trial generally will support a finding of good cause to continue the codefendant's trial under section 1382, even when there is no indication that, were the defendants' trials to be severed, the separate trials would be unusually long or complex." (People v. Sutton (2010) 48 Cal.4th 533, 560.)
Here, it appears that none of the individual delays exceeded 60 days. We recognize that the accumulated delay was much longer, but each time the trial court denied Prescott's motion to sever, it had reason to believe the trial date it was setting would stick, and thus had reason for denying the motion to sever. Indeed, the trial court made clear to Vargas's counsel that it would not tolerate indefinite delays based on fears of COVID-19, and not long after that Vargas was represented by new counsel who sought no continuance other than 60 days to prepare and a one-week extension to recover from her vaccination. We see no abuse of discretion in the trial court finding these continuances reasonable.
Prescott suggests that the court refused to sever his trial based partly on misleading statements by the prosecutor, that is, that the People would need to call between 15 and 25 witnesses, whereas in fact the People called only six witnesses. The discrepancy in these numbers is considerable, but Prescott does not, on that basis alone, establish that the prosecutor acted in bad faith or sought to mislead the court about the complexity of the case, or that the court would have ruled differently on any of the severance motions if accurately apprised of the number of witnesses the People intended to call.
As to the third Barker factor, there is no dispute Prescott consistently maintained his demand for a speedy trial.
The fourth Barker factor is prejudice. The harm caused by unreasonable delay between accusation and trial may involve" 'oppressive pretrial incarceration,' 'anxiety and concern of the accused,' and 'the possibility that the [accused's] defense will be impaired' by dimming memories and loss of exculpatory evidence. [Citations.] Of these forms of prejudice, 'the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" (Doggett, supra, 505 U.S. at p. 654; accord, People v. Horning (2004) 34 Cal.4th 871, 892 (Horning).)
Importantly, Prescott does not contend that the 17-month delay in bringing him to trial hampered his ability to defend this case. Rather, he points out that actual prejudice is not required; an uncommonly long delay "triggers a presumption of prejudice, with the presumption intensifying as the length of the delay increases." (People v. Martinez (2000) 22 Cal.4th 750, 765-766.) "But such presumptive prejudice does not alone entitle a defendant to relief; it is only 'part of the mix of relevant facts.'" (Horning, supra, 34 Cal.4th at p. 894.) In assessing the relevant facts, we look not just to the delay as a whole, but to the reasons for the delay at various points in the proceedings. (See id. at pp. 893-894.) Unacceptable reasons for delay- such as a deliberate attempt to harm the accused's defense, or official negligence-are weighed more heavily than justified delays. (Doggett, supra, 505 U.S. at p. 657.) As we have seen, in this case there were good reasons for the various delays, and throughout the process, the trial court and the prosecutor sought to move the case forward. Indeed, as of at least October 19, 2020, the prosecutor was objecting to trial continuances, and as of January 4, 2021, it was Prescott and his counsel who, for COVID-19-related reasons, were preventing the case from going to trial.
One important consideration in assessing prejudice is that Prescott was in custody at all times after his arrest. But as another court has explained, despite a lengthy incarceration while awaiting trial, "he [was] in the same position as hundreds of other in-custody defendants awaiting trial due to COVID-19 pandemic delays. Lengthy pretrial incarceration '" 'unenhanced by tangible impairment to the defense function and unsupported by a better showing on the other [Barker] factors than was made here, does not alone make out a deprivation of the right to a speedy trial.'" '" (Elias, supra, 78 Cal.App.5th at p. 943, quoting Bradley, supra, 51 Cal.App.5th at p. 43.) The same is true here.
In reaching this conclusion, we recognize that it appears Prescott suffered a serious injury while in custody. He told the court he had been assaulted in jail by a group of inmates on March 19, 2020, resulting in an orbital fracture and the eventual loss of vision in one eye. This is surely not a normal risk of pretrial incarceration, but neither is it a result of the COVID-19-related delays in Prescott's trial for 13 months following this incident. We are not persuaded this assault warrants reversing the judgment.
Balancing all these factors, we find no abuse of discretion in the trial court's determination that Prescott did not establish a violation of his federal constitutional right to a speedy trial.
II. Instructional Error
Prescott contends the trial court erred in instructing the jury on the elements of conspiracy to commit robbery of an inhabited dwelling. The Attorney General concedes the error but argues it was harmless. As we shall explain, we agree with the Attorney General.
A criminal conspiracy exists if two or more people conspire to commit a crime. (§ 182, subd. (a)(1).) As relevant here, the punishment for conspiracy to commit a felony is the same as it would be for committing the felony. (§ 182, subd. (a).) And, "[i]f the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit." (Ibid.) With exceptions not at issue here, if there is no determination of the degree of a felony, the punishment is for the lesser degree. (Ibid.)
Robbery is divided into first and second degrees. (§ 212.5, subd. (a).) One type of first degree robbery is robbery perpetrated in an inhabited dwelling house. (Ibid.) First degree robbery is punished with a sentencing triad of three, six, or nine years' imprisonment if the defendant commits the robbery of an inhabited dwelling house (or other specified locations) "voluntarily acting in concert with two or more other persons." (§ 213, subd. (a)(1)(A), italics added; see In re Jonathan T. (2008) 166 Cal.App.4th 474, 482.) In all other cases of first degree robbery, the triad is three, four, or six years. (§ 213, subd. (a)(1)(B).) The trial court treated six years as the midterm when it imposed and stayed sentence for conspiracy.
The jury instruction for conspiracy to commit robbery of an inhabited dwelling stated that the People had to prove (1) Prescott intended to and did agree with Vargas, Lloyd, or Delgado-Caramagno to commit robbery of an inhabited dwelling; (2) he and one of the others agreed one or more would commit robbery of an inhabited dwelling; (3) one or more of the conspirators committed an overt act to accomplish that crime; and (4) the act was committed in California. It set forth a number of acts allegedly committed by all four participants to further the conspiracy, including that they agreed to commit the robbery and drove to the house in Moraga; they entered the house and moved toward the bedrooms with intent to commit robbery; Vargas entered Francesca's bedroom and pointed a handgun at her while one of the defendants tried to zip-tie her hands behind her back; Vargas opened Domenico's bedroom door and pointed a handgun at him and his child; the four tried to force entry to the family's bedrooms; Delgado-Caramagno and Lloyd took boxes of marijuana; and the four of them fled the home and ran to Delgado-Caramagno's car.
The instruction on conspiracy referred the jury to a different instruction, adapted from CALCRIM Nos. 1600 and 1601, to decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit robbery of an inhabited dwelling. It is in that instruction that the error here is found. Specifically, CALCRIM No. 1601, consistent with section 213, subdivision (a)(1)(A), provides that one element of robbery in concert is that the defendant voluntarily acted with two or more other people who committed or aided and abetted the commission of the robbery. The instruction given, however, instead included among the elements of robbery of an inhabited dwelling in concert that the defendant "acted in concert with one or more other persons." (Italics added.) This was error. The only question is whether it requires reversal.
We first note that the operative information alleges as to both counts 1 and 2, robbery of an inhabited dwelling in concert, that Prescott, Vargas, Delgado-Caramagno, and Lloyd all voluntarily acted in concert, and as to count 7, conspiracy, that all four men conspired to carry out the home invasion robbery. Prescott was thus on notice of the allegation that he conspired to act in concert with more than one person. (See People v. Mitchell (2011) 197 Cal.App.4th 1009, 1018 [defendant has due process right to notice of charges and enhancements]; People v. Fontenot (2019) 8 Cal.5th 57, 64 [accused must be advised of charges to provide reasonable opportunity to prepare and present defense].) The problem is not that Prescott did not have a fair opportunity to defend against the allegation that he conspired to commit robbery in concert with more than one person, but rather that the instructions misinformed the jury about the number of participants necessary for the crime.
As the Attorney General acknowledges, the applicable standard of prejudice is that for federal constitutional error, under which we reverse unless the error was harmless beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [failure to instruct jury on element of sentence enhancement]; People v. Flood (1998) 18 Cal.4th 470, 502-503 [omission of element of offense]; Chapman v. California (1967) 386 U.S. 18, 24.) That is, "[w]e must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831.)
The instructions and verdicts as a whole persuade us that this standard is met here. Although the jury did not find Prescott guilty of robbery of an inhabited dwelling as to either Francesca (count 1) or Domenic (count 2), it found his codefendant, Vargas, guilty of both those crimes. It also found Vargas-like Prescott-guilty of conspiracy to commit robbery of an inhabited dwelling with at least one other person. The only reasonable conclusion is that the jury found Prescott and Vargas conspired to act together to rob or aid in robbing the house.
It is also clear the verdict was based on the presence of at least one other participant in the plan to rob the inhabited dwelling-Delgado-Caramagno. Not only did Delgado-Caramagno testify to the details of his own participation and to the fact that he would plead to committing the home invasion robbery with which he, Prescott, Vargas, and Lloyd were jointly charged, but the instructions specifically told the jury that if any of the charged offenses were committed-including count 7, conspiracy to commit robbery of an inhabited dwelling-"then Domenico Delgado-Caramagno was an accomplice to that crime." An accomplice, the instruction explained, is a person who either personally committed the crime or knew of the criminal purpose of the person or persons who committed it, and who intended to aid in commission of the crime or "participate in a criminal conspiracy to commit the crime." Based on the evidence at trial and these instructions, in finding Prescott guilty of conspiring to commit robbery of an inhabited dwelling, the jury necessarily found that Prescott also conspired with Delgado-Caramagno to rob the house together.
We are thus persuaded, beyond a reasonable doubt, that the jury found Prescott conspired to act in concert with at least two people to rob or aid and abet the robbery of an inhabited dwelling. The instructional error was harmless.
III. Recent Amendments to Section 1170
At the time Prescott was sentenced in October 2021, section 1170 gave the trial court broad discretion to select a term if a statute provided three possible terms. (Former § 1170, subd. (b); People v. Lopez (2022) 78 Cal.App.5th 459, 464.) In the exercise of its discretion, the trial court sentenced Prescott to the upper term for burglary of an inhabited dwelling. In doing so, it relied on a number of factors in aggravation, including that Prescott had a prior conviction and was on probation when the crime was committed, that the burglary involved multiple weapons, that the participants contemplated the use of violence, and that there was evidence Prescott sent a threatening letter to Lloyd while awaiting trial in an apparent effort to dissuade Lloyd from testifying.
While this appeal was pending, the Legislature amended section 1170, effective January 1, 2022, to limit the trial court's sentencing discretion in certain circumstances. (Stats. 2021, ch. 371, § 1.3 (Sen. Bill 567); Stats. 2021, ch. 695, § 5 (Assem. Bill 124); People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039 (Flores).) As relevant here, section 1170 now requires the court to impose a sentence no longer than the middle term, unless the circumstances in aggravation justify the higher term and "the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(1) &(2).) Additionally, the statute now provides that, "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 [sic]," the court must impose the lower term if any of three enumerated circumstances was a factor in the commission of the offense. (§ 1170, subd. (b)(6).) One of those factors is that the defendant was a youth (defined as under the age of 26) at the time of the offense. (§§ 1170, subd. (b)(6)(A) &(B), 1016.7, subd. (b).) Prescott was 21 years old at the time of the crimes.
The parties agree that Prescott is entitled to the retroactive benefit of these legislative amendments, as the judgment was not yet final when they were enacted. (See Flores, supra, 73 Cal.App.5th at p. 1039; In re Estrada (1965) 63 Cal.2d 740, 742-748 [when legislation reduces punishment for offense, we presume it applies to cases not yet final].) They also agree that remand for resentencing is appropriate.
We agree as well. The trial court appears to have relied on aggravating factors not stipulated to or found true beyond a reasonable doubt, and the record does not show clearly how the court would have exercised its sentencing discretion had the amendments been in effect. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) We shall therefore remand the matter for resentencing under the current version of section 1170.
DISPOSITION
The judgment is reversed and the matter remanded for a new sentencing hearing under the current version of section 1170. In all other respects, the judgment is affirmed.
WE CONCUR: FUJISAKI, J., PETROU, J.