SB 567 must be applied retroactively

People v. Ross (Cal. Ct. App., Dec. 28, 2022, No. A163242) 2022 WL 17974351, at *1
Summary: Ross appealed a conviction for battery on a non-confined person by a prisoner (Pen. Code, § 4501.5) and finding true two prior “strike” convictions (§ 667, subds. (b)–(i)). On appeal, he argues: (1) his attorney violated his Sixth Amendment rights by conceding his guilt; and (2) the matter should be remanded for resentencing due to Senate Bill No. 567. The Court rejected the  Sixth Amendment challenge. The Court agreed that a remand for resentencing is required due to postsentencing statutory amendments made by Senate Bill No. 567.

Factual and Procedural Background

At trial, the defense presented no evidence. Ross interjected in court during a discussion on jury intructions, he told his counsel Fallman “Man, you are fired” and “I will represent myself.” The court continued to talk about the instructions, when Ross cursed, saying: “Hey, why don’t you f[***] up your son, so what?” When the court tried to interrupt him, Ross continued to curse at the court and the prosecutor, and he was ordered removed from the courtroom.

The court asked Fallman to speak with Ross and ask if he wanted to come back for a Marsden hearing. Fallman stated that  Ross only said he wanted to go back to his cell. The court stated for the record that it had “nothing to hang [its] hat on why or what [defendant] purports Marsden to be,” and it asked Fallman if he had anything to add. (Italics added.) Fallman said: “No. I just think there comes a point where he tries to get rid of his attorney. He already got rid of Mr. Mavris, who I note to be an excellent attorney before me on this same case. So I don’t know. I think it’s probably provocation. There is no reason for it.” The court then denied Marsden relief, finding no basis for it and confirming again that Fallman also saw no basis for it.

The trial continued with defendant in absentia. The court instructed the jury on the section 4501.5 count and the lesser included offense of simple battery. During closing argument, Fallman admitted defendant touched the  victim willingly, in a harmful or offensive manner, but argued there was no pre-planning or weapon involved. Fallman asked the jury to find defendant guilty of the lesser included offense of misdemeanor battery.

The jury found Ross guilty of the section 4501.5 count and found both prior strike allegations true. Ross was sentenced to to the upper term of four years for the section 4501.5 count, doubled to eight years under the Three Strike Law.

Defense counsel’s concession during closing argument did not violate Sixth Amendment

Ross did not express opposition to a concession of guilt as the defendant did in McCoy. (McCoy, supra, 138 S.Ct. at p. 1506.) In California cases applying McCoy, the McCoy rule barring concessions of guilt “applies only where defendant actively opposes counsel’s concession.” (People v. Villa (2020) 55 Cal.App.5th 1042)

Senate Bill No. 567

The trial court sentenced Ross to the upper term for the section 4501.5 conviction. The court found true the two crime-based aggravating factors set out in California Rules of Court, rule 4.421(a)(1) and (a)(3), that “(1) [t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness” and “(3) [t]he victim was particularly vulnerable.” With regard to the rule 4.421(a)(3)factor, the court indicated that the victim-B.B.-was particularly vulnerable because he was alone in his office with Ross, without being behind glass or any type of protection. The court also found true the following four aggravating factors set forth in rule 4.421(b): “(1) The defendant has engaged in violent conduct that indicates a serious danger to society;  (2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; (3) The defendant has served a prior term in prison or county jail under section 1170(h); (5) The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory.” (Rule 4.421(b)(1)–(3), (5).) The court found no factors in mitigation and concluded the aggravating factors “far outweigh[ed]” those in mitigation, justifying the upper term.

While this appeal was pending, the Legislature enacted Senate Bill No. 567 (Senate Bill 567), which amended section 1170, subdivision (b), to require that when a statute specifies three potential terms of imprisonment, a court must presumptively impose the middle term. (§ 1170, subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.) Moreover, a court may not impose the upper term unless aggravating circumstances “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.” (§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) Under section 1170, subdivision (b)(3), however, “the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.”

Ross argues he must be resentenced pursuant to Senate Bill 567 because “the trial court imposed the upper term of four years without any consideration of whether the aggravating factors were true beyond a reasonable doubt.” The People properly conceded that Senate Bill 567 is retroactive under In re Estrada (1965) 63 Cal.2d 740, and that it applies here to defendant’s nonfinal judgment. (People v. Zabelle (2022) 80 Cal.App.5th 1098 (Zabelle).)

Harmless error review

This type of error is subject to harmless error review. In People v. Flores (2022) 75 Cal.App.5th 495 (Flores), this court recently articulated the following standard for harmless error: “ ‘[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,’ the error is harmless.”

Subsequent to Flores, several courts have additionally considered “whether it is reasonably probable that the trial court would have chosen a lesser sentence in the absence of the error,” thus incorporating a state law Watson component to their harmless error analysis.

The two-step harmless error standard articulated in Lopez

To determine whether prejudice resulted from a trial court’s failure to apply the new version of the sentencing law, we first ask “whether the reviewing court 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. If the answer to this question is ‘yes,’ then the defendant has not suffered prejudice from the court’s reliance on factors not found true by a jury in selecting the upper term. However, if the answer to the question is ‘no,’ we then consider the second question, which is whether a reviewing court can be certain, to the degree required by People v. Watson …, that 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. If the answer to both of these questions is ‘no,’ then it is clear that remand to the trial court for resentencing is necessary.” (Lopez, supra, 78 Cal.App.5th at p. 467.)

The Court could not conclude beyond reasonable doubt that a jury would have found true beyond a reasonable doubt the aggravating factors concerning the crime as set out in rule 4.421(a)(1) and (a)(3). The California Supreme Court has cautioned that “to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.) Here, the crime-based rule 4.421(a)(1) and (a)(3)aggravating factors are precisely of this nature, requiring a subjective evaluation as to whether the victim was particularly vulnerable, and whether the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.

Lopez’s second inquiry is whether we can be certain, to the degree required by Watson, supra, 46 Cal.2d 818, that 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 few of the aggravating factors, rather than all of the factors on which it previously relied. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) The Court cannot answer this inquiry in the affirmative. This case involved a crime by an inmate offender where the sentence was already enhanced by strike priors that were pleaded and proved. The Court could not conclude it is reasonably probable that the trial court, in the face of Senate Bill 567’s new presumption in favor of the middle term, would have exercised its discretion the same way had it known it could not rely on the rule 4.421(a)(1) and (a)(3) aggravating factors. (Watson, at p. 836.)

In order to give Senate Bill 567 its full effect, a remand for resentencing is appropriate.