Filed 1/11/23 P. v. Barnes CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077878
v. (Super. Ct. No. BAF1701103)
ANTHONY TYRONE BARNES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed with directions.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland , Assistant Attorney General, Daniel J. Hilton and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Anthony Tyrone Barnes was sentenced to 32 years for
convictions stemming from a domestic violence incident. He contends the trial court
erroneously denied his request for mental health diversion and that his sentence must be
vacated and the matter remanded for resentencing. We reject defendant’s contentions
and affirm the judgment, as corrected.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim, B.L., began dating in November 2016, and defendant
moved in to B.L.’s apartment shortly afterward. They broke up in September 2017, but
defendant lived with B.L. while he looked for a new place.
Defendant knocked on B.L.’s door one night and asked if he could sleep in her bed
with her. B.L. said she would go sleep on the couch and defendant could sleep in her bed
and got up to move to the couch. As she was leaving the bedroom, defendant grabbed
her and said he wanted her to sleep with him. Defendant then threw her face-down into
the bed and got on top of her. B.L. yelled that she could not breathe, but defendant
punched her in the back of the head four or five times while telling her to shut up.
Defendant then jumped off B.L. and left the room. He returned a few minutes
later and asked B.L. if she loved him. B.L. said she hated him, so defendant began
packing his belongings in B.L.’s closet. Defendant put his things in the living room, but
2 then went back into B.L.’s room while muttering vulgarities and “talking crazy.” In
between packing his things, defendant punched, choked, and berated B.L., including by
telling her repeatedly that he was going to kill her. At one point, defendant choked B.L.
so hard that she thought she was going to pass out.
B.L. covertly grabbed her keys, driver’s license, and debit card and hid them under
her shirt. B.L. tried to leave with her son, but defendant told her to get back into the bed
and said she was not going anywhere with her son. B.L. fled from the apartment, ran
downstairs, and ran about 100 feet to where her car was parked. She got inside the car
but could not start it because she was shaking. Defendant used a spare key to open the
car and began trying to pull B.L. out of the car. After punching B.L. five to 10 times,
defendant dragged B.L. out of the car by her feet, causing her to land on her back on the
ground.
Defendant told B.L. to go upstairs and back into the apartment. Although B.L.
considered trying to flee, she felt like she had no choice. When they entered the
apartment, defendant punched B.L. at least five times in the face and then resumed
packing his belongings while yelling at B.L.
At some point (B.L. could not recall when), defendant told her, “Bitch, if you call
the cops, I’m going to kill you.” Defendant eventually told B.L. to pack his things and
put them in a corner. He told B.L. that he was leaving and that she “better have all [his]
shit packed neatly in this corner” when he got back. Defendant then left and took B.L.’s
3 car. B.L. immediately ran to a nearby gas station where she asked an employee to call
911.
Defendant was arrested shortly afterward. At the time, he had B.L.’s
identification, car keys, and bank card on him.
Defendant was charged and convicted of kidnapping (Pen. Code, § 207, subd. (a); 1 count 1), inflicting injury on a cohabitant after having previously been convicted of 2 domestic violence (§ 273.5, subd. (f ); count 2), committing a criminal threat (§ 422;
count 3), and dissuading a witness with force or fear (§ 136.1, subd. (c)(1); count 4). The
jury also found that defendant had been convicted of two prior robbery offenses, both of
which constituted serious felony convictions (§ 667, subd. (a)) and strikes (§§ 667, subds.
(b)-(i), 1170.12).
The trial court sentenced defendant as follows: an upper term of eight years for
the kidnapping count, doubled to 16 years for the strike; a consecutive term of one-third
the midterm (16 months) for the kidnapping count, doubled to two years, eight months
for the strike; a consecutive term of one-third the midterm (eight months) for the criminal
threat count, doubled to 16 months for the strike; a consecutive term of one-third the
midterm (one year) for the dissuading a witness count, doubled for the strike; and two 5-
1 All further statutory references are to the Penal Code. 2 Defendant was convicted of domestic violence against B.L. At the time of his current offenses, he was on parole for that conviction.
4 year serious felony enhancements. The court also ordered defendant to pay $678.98 in
restitution to the California Victim Compensation Board and a $3,000 restitution fine.
III.
DISCUSSION
Defendant contends the trial court erred by (1) denying his request for mental
health diversion under section 1001.36, (2) imposing separate sentences on all four
counts in violation of section 654, and (3) imposing fines and fees. He also argues his
sentence must be vacated and the matter remanded for resentencing under recently
enacted Senate Bill No. 567.
A. Mental Health Diversion
Before trial, defendant moved for mental health diversion under section 1001.36.
He supported the motion with a report from clinical psychologist Dr. Jennifer Bosch. Dr.
Bosch explained in her report that defendant had been diagnosed with anxiety disorder,
unspecified; schizophrenia; major depressive disorder, recurrent, moderate; and
unspecified psychosis not due to a substance or medical condition. Dr. Bosch opined that
defendant suffers from a psychotic diagnosis suggestive of a paranoid personality
disorder and/or schizophrenia.
Dr. Bosch noted in her report that appellant showed signs of daily symptoms of
depression, irritability, agitation, visual and auditory hallucinations, and sleep issues.
Defendant told Dr. Bosch that “when not on his medication he is aggressive and fights
everyone.” He also believes that “deputies are out to get him due to him being put in
5 segregation for no reason and that they are poisoning him through his food.” He also
claimed that a clinician and nurses tried to infect him and other prisoners with the
COVID-19 virus in order to kill them.
According to Dr. Bosch’s report, defendant had been placed on administrative
segregation due to his aggressive combative behavior, including allegedly stabbing
another inmate in the neck. Defendant was temporarily sent to Patton State Hospital.
When he returned to jail in November 2019, defendant threatened to kill his attorney.
At the conclusion of her report, Dr. Bosch offered her opinion on defendant’s
case: “It is this examiner’s opinion given the information provided by [defendant] that it
is quite possible that at the commission of the crime he was unable to distinguish right
from wrong and or the quality of his actions at the time of the offense due to a severe
mental illness. It is this examiner’s recommendation that [defendant] be referred
specifically for a [section] 1026 evaluation to determine if he meets criteria for Not
Guilty by Reason of Insanity as this was not the focus of this evaluation.”
The trial court denied defendant’s request for mental health diversion on the
ground that he was “ineligible . . . based on prong six, dangerousness; as well as a finding
of unsuitability given his criminal history and the conduct alleged in this case.”
Defendant contends both findings were erroneous. We disagree as to the first one
and thus need not address the second.
A trial court may grant pretrial diversion if a defendant meets all six statutory
requirements. (§ 1001.36, subd. (b)(1)(A)-(F); People v. Williams (2021) 63 Cal.App.5th
6 990, 995.) The only one at issue here is the sixth and final requirement, which is that
“the defendant will not pose an unreasonable risk of danger to public safety, as defined in
[s]ection 1170.18, if treated in the community.” (§ 1001.36, subd. (b)(1)(F).) Section
1170.18, in turn, defines “unreasonable risk of danger to public safety” as an
“unreasonable risk that the [defendant] will commit a new violent felony” described in
section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) These enumerated violent
felonies, commonly referred to as “super strike offenses,” include murder, attempted
murder, and any serious or violent felony punishable by death or life imprisonment.
(§ 667, subdivision (e)(2)(C)(iv)(I)-(VIII).)
We review a trial court’s finding that a defendant is not entitled to mental health
diversion because he or she poses an unreasonable risk of committing a super strike for
an abuse of discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 459; People v.
Pacheco (2022) 75 Cal.App.5th 207, 213.) A trial court abuses its discretion when its
decision is so arbitrary, capricious, or irrational that it exceeds the bounds of reason.
(People v. Pacheco, supra, at p. 213.)
The trial court here reasonably found defendant would pose an unreasonable risk
to public safety if granted mental health diversion. Defendant repeatedly threatened to
kill B.L. while brutally beating and kidnapping her. When he was arrested, he had B.L.’s
identification, car keys, and bank card. While in jail awaiting trial, defendant stabbed
7 3 another inmate in the neck and threatened to kill his attorney. Although defendant’s
previous offenses occurred over 25 years before his current offenses, one of his
convictions was for domestic battery against B.L., and he was on parole for that
conviction at the time he committed his current offenses.
Under these circumstances, the trial court reasonably found that if treated in the
community, defendant posed an unreasonable risk of committing a super strike (e.g.,
murder, attempted murder, or aggravated kidnapping punishable by life (§ 209, subd.
(a).) The trial court therefore did not abuse its discretion by denying defendant’s request
for mental health diversion.
B. Consecutive Sentences
Defendant contends the trial court violated section 654 by imposing consecutive
sentences for the criminal threat and dissuading a witness by threat of force counts
because they were based on the same act. He also contends the trial court violated
section 654 by imposing consecutive sentences for the domestic violence and kidnapping
counts because they were incidental to one another. We disagree.
1. Applicable Law and Standard of Review
Section 654, subdivision (a) provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under either
3 These allegations were provided to the trial court through Dr. Bosch’s report, and defendant never argued in the trial court that they were inadmissible or inaccurate. He therefore forfeited his evidentiary challenge to the allegations raised for the first time on appeal. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1362.)
8 of such provisions, but in no case shall the act or omission be punished under more than
one provision.”
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘“‘Whether a
course of criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and objective of the actor. If all
of the offenses were incident to one objective, the defendant may [not] be
punished . . . for more than one.’”’ [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269,
354.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which
were independent of and not merely incidental to each other, he may be punished for each
statutory violation committed in pursuit of each objective, ‘even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.’
[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
We review a trial court’s ruling on whether section 654 applies for substantial
evidence. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other
grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
2. Analysis
Substantial evidence supports the trial court’s finding that the criminal threat and
dissuading a witness counts were based on different acts with different objectives and
thus separately punishable. Defendant incorrectly argues that the charges were based on
the same statement, “Bitch, if you call the cops, I’m going to kill you.” B.L. testified that
9 defendant repeatedly threatened to kill her over the course of the incident. Her testimony
about his multiple threats supports the trial court’s implicit finding that he had different
objectives behind different threats.
Defendant told B.L. multiple times that he was going to kill her. He did so while
choking and strangling her to the point where she thought she may lose consciousness.
He also threatened to kill her while intermittently packing his belongings and hitting and
yelling at B.L. The trial court could reasonably find that defendant made these threats to
scare B.L. and inflict emotional pain on her (in other words, to criminally threaten her).
The trial court could also reasonably find that defendant’s threat, “Bitch, if you
call the cops, I’m going to kill you,” served another purpose. The trial court could
reasonably find that defendant made this threat to pressure B.L. from calling law
enforcement so that he would not be arrested (in other words, to dissuade her from being
a witness). Substantial evidence thus supports the trial court’s implied finding that the
threat and dissuading a witness counts were based on separate, distinct acts with different
objectives.
The trial court also permissibly sentenced defendant to consecutive sentences for
the kidnapping and domestic violence counts. “‘[A] course of conduct divisible in time,
although directed to one objective, may give rise to multiple violations and punishment.’”
(People v. Cruz (2020) 46 Cal.App.5th 715, 738.) Defendant’s acts were sufficiently
“‘temporally separated’” to afford him the “‘opportunity to reflect and to renew his . . .
intent before committing the next’” offense. (People v. Deegan (2016) 247 Cal.App.4th
10 532, 542.) Defendant hit, choked, and threatened B.L. in her apartment before she fled.
Defendant followed B.L.as she went outside the apartment, down the stairs, and about
100 feet to her parked car. Defendant then unlocked the car, punched B.L. repeatedly in
the face, pulled her out of the car, and ordered her to go back upstairs. When they got
back to the apartment, defendant again repeatedly punched B.L. in the face.
By the time defendant kidnapped B.L., he had already punched, choked, and
threatened to kill her. After he successfully kidnapped her by forcing her back into the
apartment, he continued beating her. Substantial evidence thus supports the trial court’s
implied finding that the kidnapping and domestic violence counts were sufficiently
divisible and separately punishable. We therefore affirm the trial court’s imposition of
consecutive sentences for defendant’s four convictions.
C. Upper Term
Defendant contends the upper term imposed on the kidnapping count must be
vacated and the matter remanded for resentencing under recently enacted Senate Bill No.
567. We disagree.
The trial court explained its reasons for imposing the upper term as follows: “You
were on probation for domestic violence against the same victim that you dragged out of
the car and that you beat the crap out of her. Those photographs showed to me, man, it
was so horrible. Her eyes were completely shot dark. She thought she was going to die
that day. You may not remember that, but this victim will never ever forget that. She
11 thought she was a goner that night. For that, the [c]ourt will sentence you to the upper
term of eight years.”
“While this appeal was pending, Senate Bill No. 567 (2021-2022 Reg. Sess.)
amended section 1170, subdivision (b), making the middle term of imprisonment the
presumptive sentence. (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1, effective Jan. 1,
2022.) 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. (§ 1170,
subd. (b)(1)-(2).)” (People v. Flores (2022) 75Cal.App.5th 495, 200 (Flores).) However,
under amended section 1170, subdivision (b)(3), the sentencing court may “may consider
the defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.”
The parties agree, as do we, that these ameliorative amendments apply
retroactively to defendant’s non-final case. (See Flores, supra, 75 Cal.App.5th at p. 500;
People v. Lopez (2022) 78 Cal.App.5th 459; People v. Zabelle (2022) 80 Cal.App.5th
1098, 1109.) The parties disagree, however, on which factor(s) the trial court relied on
when imposing the upper term and whether the case should be remanded for
resentencing.
Defendant claims the trial court “did not rely on [his] prior convictions when it
imposed the upper term” and thus did not “impos[e] the upper term because of [his]
criminal history.” The People, on the other hand, contend the trial court imposed the
12 upper term in largely because he was on probation for a conviction for domestic abuse
against B.L. when he committed his current offenses.
We agree with the People. The trial court stated that it was imposing the upper
term because defendant was “on probation for domestic violence against the same
victim” when he committed his current offenses. Although the trial court did not impose
the upper term for all of defendant’s criminal history, the court unambiguously imposed
it because he was on probation for his then-most recent conviction for domestic violence
against B.L. The trial court therefore did not improperly rely on his entire criminal
record when imposing the upper term.
Under amended section 1170, subdivision (b)(3), the trial court could have
permissibly considered the certified record of defendant’s prior domestic violence
conviction in imposing the upper term, but it is unclear from the record whether the court
did so. But the court did improperly find that defendant was on probation when he
committed his current offenses and used that finding to impose the upper term. (See
People v. Zabelle, supra, 80 Cal.App.5th at pp. 1114-1115.) Under amended section
1170, subdivision (b), defendant had to stipulate to that fact or the jury had to find it true
before the trial court could rely on it to impose the upper term.
Courts are split on how to assess errors like this. (See Lopez, supra, 78
Cal.App.5th at p. 467, fn. 11.) In Flores, Division Three of the First District held that
remand for resentencing under amended section 1170, subdivision (b) was unnecessary
because any error in the trial court’s imposing an upper term (instead of the presumptive
13 middle term required by Senate Bill No. 567) was harmless. (Flores, supra, 75
Cal.App.5th at p. 501.) The Flores court held reviewing courts may affirm an upper
term, even if the defendant is entitled to the retroactive application of Senate Bill No.
567, so long as a reasonable jury would have found true “‘at least a single aggravating
circumstance’” justifying an upper term true beyond a reasonable doubt. (Flores, supra,
at p. 501, quoting People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) The
Flores court affirmed the defendant’s upper term because a reasonable jury would have
found true beyond a reasonable doubt the aggravating circumstances that he had
“numerous convictions” and committed the underlying offense while on probation.
(Flores, supra, at p. 501.)
Our colleagues in Division One recently disagreed with Flores. (Lopez, supra, 78
Cal.App.5th at p. 467, fn. 11.) The Lopez court held that assessing harmlessness in the
context of retroactive application of Senate Bill No. 567 requires a two-step analysis.
(Ibid.) The first question we ask is whether we “can conclude beyond reasonable doubt
that a jury would have found true beyond a reasonable doubt all of the aggravating
factors on which the trial court relied in exercising its discretion to select the upper term.”
(Ibid.) The Lopez court reasoned that section 1170, subdivision (b)(2) “requires that
every factor on which a court intends to rely in imposing an upper term, with the
14 exception of factors related to a defendant’s prior conviction(s), have been admitted by 4 the defendant or proven to a jury.” (Lopez, supra, at p. 466.)
If the answer to the first question is “yes,” then the trial court’s “reliance on
factors not found true by a jury in selecting the upper term” was harmless. (Lopez, supra,
78 Cal.App.5th at p. 467, fn. 11.) But if the answer to that question is “no,” then the
reviewing court must ask if it is reasonably probable that the trial court still would have
imposed 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.” (Ibid.) If
it is not reasonably probable that the trial court would have imposed an upper term, then
the reviewing court must remand the case for resentencing under amended section 1170,
subdivision (b). (Ibid.)
4 Amended section 1170, subdivision (b)(2) provides in full: “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
15 In fashioning its test for harmlessness, the Flores court relied entirely on our
Supreme Court’s opinion in Sandoval. (See Flores, supra, 75 Cal.App.5th at p. 501.)
But Sandoval was based on former section 1170, subdivision (b)’s language mandating
sentencing courts to impose the middle term “unless there are circumstances in
aggravation.” Sandoval held that a sentencing court’s finding of aggravating
circumstances justifying an upper term was harmless if a jury would have found a single
aggravating circumstance true beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th
at p. 836.)
But, as amended by Senate Bill No. 567, section 1170, subdivision (b) now
provides that the sentencing court may impose an upper term “only when there are
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term.” (§ 1170, subd. (b)(2).) “As a result of this
change, it may no longer be true that ‘the existence of a single aggravating circumstance
is legally sufficient to make the defendant eligible for the upper term.’” (Flores, supra,
75 Cal.App.5th at p. 501 [conc. statement of J. Liu].) Rather, an upper term is
appropriate only if the aggravating circumstances “‘justify the imposition’ of that term
under all of the circumstances, which may include evidence both in aggravation and in
mitigation.” (Ibid.)
16 The Lopez court correctly identified this change in the law by concluding that
amended section 1170, subdivision (b) now “requires that every factor on which a court
intends to rely in imposing an upper term, with the exception of factors related to a
defendant’s prior conviction(s), have been admitted by the defendant or proven to a jury.”
(Lopez, supra, 78 Cal.App.5th at p. 466, italics added.) The Flores court, on the other
hand, relied on case law interpreting an outdated version of the statute, which allowed the
sentencing court to impose an upper term if the jury would have found at least one
aggravating circumstance true beyond a reasonable doubt.
But under amended section 1170, subdivision (b), the sentencing court may
impose the upper term only if all of the circumstances, including aggravating and
mitigating circumstances, “justify the imposition” of that term. A single aggravating
circumstance thus may be insufficient for a sentencing court to conclude that the upper
term is justified under amended section 1170, subdivision (b). We therefore respectfully
disagree with Flores. (See People v. Wandrey (2022) 80 Cal.App.5th 962, 982 fn. 34
[disagreeing with Flores and following Lopez]; People v. Zabelle, supra, 80 Cal.App.5th
at pp. 1113-1114 [agreeing with Lopez but “fram[ing] the issue somewhat differently”
while noting “[b]oth our approach and the Lopez court’s approach are the same in terms
of outcomes”]; People v. Dunn (2022) 81 Cal.App.5th 394, [review granted Oct. 12, 5 2022, S275655] (Dunn) [disagreeing with Flores].)
5 Because our Supreme Court granted review in Dunn, we rely on the case only for its persuasive value. (See Cal. Rules of Court, rule 81115(e)(1).)
17 The Fifth District recently agreed with Lopez’s two-step analysis, but disagreed on
the appropriate standard of review. (Dunn, supra, 81 Cal.App.5th at p. 408.) The court
was “unconvinced that the Chapman standard of harmless error—applicable to errors
implicating federal constitutional rights—must be applied to all aggravating
circumstances in the Lopez court’s first step.” (Ibid.) The court noted that only one
aggravating circumstance must be proved beyond a reasonable doubt under Sandoval,
and observed that Lopez relied on only section 1170, subdivision (b) as authority for its
holding that “Chapman applies to every factor.” (Ibid.)
Dunn thus found that “Flores sets too low a standard for harmlessness and Lopez
too high” and thus adopted “a version of the standard articulated in Lopez, modified to
incorporate Watson in the first step.” (Dunn, supra, 81 Cal.App.5th at p. 409.) Dunn
articulated the appropriate test as follows: “The 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 moves to the second step of Lopez, (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
18 reviewing court vacates the sentence and remands for resentencing consistent with
section 1170, subdivision (b).” (Dunn, supra, at pp. 409-410, fn. omitted.) We agree
with this approach and follow it here.
Applying Dunn’s first prong, we conclude the trial court’s error here was not
prejudicial. Defendant admitted his domestic violence conviction and a certified record
proved it. Defendant does not and cannot dispute that the probation report confirmed he
was on probation at the time he committed his current offenses. Thus, any reasonable
jury would have found true beyond a reasonable doubt that defendant was on probation
for a conviction for domestic violence against B.L. when he committed his current
offenses. We are thus satisfied beyond a reasonable doubt that “the jury would have
found anyone aggravating circumstance true beyond a reasonable doubt.” (Dunn, supra,
81 Cal.App.5th at p. 410.)
We construe the trial court’s statements about the extent and nature of B.L.’s
injuries as a finding that defendant’s offenses “involved great violence” or “great bodily
harm.” (Cal. Rules of Court, rule 4.421(a)(1).) Defendant claims the trial court
erroneously used this aggravating circumstance to impose the upper term. Even though
defendant is correct that the trial court could not rely on this aggravating circumstance
under amended section 1170, subdivision (b) because defendant did not stipulate to it and
the jury did not find it true, the error was harmless.
19 The trial court relied primarily on the photographs of B.L. taken shortly after
defendant’s abuse to evaluate the nature and extent of her injuries. Any reasonable jury
would have interpreted them as strong evidence that defendant “beat the crap out of her.”
Any reasonable jury also would have found beyond a reasonable doubt that, as the
trial court put it, defendant “dragged [B.L.] out of the car” and she thought “she was a
goner that night,” as B.L. testified. Defendant’s defense was that he had a “blackout” due
to mental illness and could not recall anything from the incident other than having a
verbal argument with B.L. He denied that he dragged her out of her car or caused any of
her injuries. By convicting defendant of all four charges, the jury necessarily believed
B.L., not defendant.
We therefore find it is reasonably probable that the jury would have found beyond
a reasonable doubt that defendant’s offenses involved “great violence” or “great bodily
injury.” (See Dunn, supra, 81 Cal.App.5th at pp. 409-410.) As a result, the trial court’s
reliance on aggravating circumstances not submitted to the jury or stipulated to by
defendant was harmless because (1) any reasonable jury would have found beyond a
reasonable doubt that defendant was on parole when he committed his current offenses
and (2) it is reasonably probable a jury would have found true beyond a reasonable doubt
the remaining aggravating circumstances. (See ibid.) We therefore need not turn to the
second prong of the Lopez/Dunn test and affirm defendant’s upper term sentence. (See
ibid.; accord, People v. Zabelle, supra, 80 Cal.App.5th at p. 1114.)
20 D. Restitution Fines
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant
argues the trial court unconstitutionally imposed the $3,000 restitution fine and $678.98
in restitution to the California Victim Compensation Board. He contends the case should
be remanded so that he may request a hearing on his ability to pay the fines and fees.
Dueñas was decided over two years before defendant’s sentencing hearing, yet he
did not object to the imposition of restitution. Defendant therefore forfeited any Dueñas
argument. (People v. Greeley (2021) 70 Cal.App.5th 609, 624 [holding Dueñas
argument forfeited because sentencing occurred months after Dueñas was decided];
People v. Nelson (2011) 51 Cal.4th 198, 227 [holding defendant forfeited challenge to
$10,000 restitution fine because at the time “the law called for the court to consider a
defendant’s ability to pay in setting a restitution fine, and defendant could have objected
at the time”].)
Defendant disagrees for three reasons, none of which is persuasive. He first
argues that he did object to the restitution orders. He notes that when he asked if he had
to pay the restitution fine, the trial court interrupted him and said, “you’re going to have
to pay for it.” Defendant did not object, but instead submitted without stating anything
further.
Defendant next argues that any objection would have been futile. But defendant
did not object in the first place, so the futility doctrine does not apply here. (See People
v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [excusing defendant’s failure to object
21 because “any type of objection would have been fruitless” given the trial court’s previous
rulings on three motions]; People v. Sandoval (2001) 87 Cal.App.4th 1433, fn. 1
[excusing defendant’s failure to object based on change in the law because trial court was
bound by earlier cases at time of trial].)
Finally, defendant notes that we have the discretion to excuse his forfeiture
because his federal constitutional rights are at issue. We decline to do so. (See People v.
Greeley, supra, 70 Cal.App.5th at p. 624; People v. Boyette (2002) 29 Cal.4th 381, 424
[holding defendant forfeited argument that admission of evidence violated federal
constitutional due process rights by failing to object].)
Finally, defendant argues the trial court unconstitutionally imposed $280 in
assessments, composed of $160 under section 1465.8 and $120 under Government Code
section 70373. The superior court clerk’s minute order and the abstract of judgment state
that defendant was ordered to pay these assessments, but the trial court did not orally
pronounce them when imposing its sentence. Because the oral pronouncement controls,
we direct the trial court to correct its minute order and issue an amended abstract of
judgment. (See People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell
(2001) 26 Cal.4th 181, 185-186.)
IV.
DISPOSITION
The clerk of the superior court is directed to correct its minute order and the
abstract of judgment to reflect that the trial court did not impose $280 in assessments. As
22 modified, the judgment is affirmed. The clerk of the superior court is directed to prepare
an amended abstract of judgment and to forward a certified copy of the amended abstract
to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
MILLER Acting P. J.
FIELDS J.