California Court of Appeal Nov 12, 2024 No. E078155AUnpublished
Filed 11/12/24 P. v. Perez CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078155
v. (Super.Ct.No. SWF1707851)
CHRISTOPHER DANIEL PEREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.
Reversed with directions.
Cindy Brines, by appointment of 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, Melissa A. Mandel and
Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
This is the second appeal by defendant and appellant, Christopher Daniel Perez,
following resentencing. Defendant was convicted by a jury of eight offenses arising out
of three separate incidents of domestic violence. (People v. Perez (Dec. 4, 2020,
Defendant’s initial sentencing hearing was held on August 9, 2019. Defendant
brought a motion to dismiss the strike offense as well as his prison priors and presented
evidence of potential mitigating factors in support of that request. The prosecutor
opposed the motion, noting that defendant had an extensive history of prior criminal
convictions, as well as the fact that defendant was on probation for a different offense at
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the time he committed the current offenses. The trial court denied defendant’s motion,
explicitly referencing his “past criminal history” and stating: “I do not think his
prospects of living crime-free in the future are good at all based on past history. . . .
[W]hen you do the number of bad things he’s done, whether they’re defined instances or
not, you become a danger to society . . . .”
The trial court proceeded to sentence defendant, offering the following prefatory
statement: “Okay. I have a lot to say, but I’m going to bottom line this for you so you’re
not sitting there. I’m going to sentence you to the maximum amount of time I believe I
can sentence you to; okay? [¶] The reason I’m going to do that is because I see, and so
did all those women see, like your mom sees, you have good qualities. The problem is
you get angry and you assault people who trust you, okay, and your type of assault, this
grabbing around the neck in an arm hold like that, or arm hold and strangling them, is
incredibly dangerous. And we’re lucky we’re not here for a murder. [¶] And I think this
has been a pattern of conduct with you. I don’t think it’s going to stop. I don’t think you
can stop yourself. And I do not believe that you are safe out in the public. That is the
bottom line.”
The trial court then sentenced defendant to a total of 41 years and eight months in
state prison. (Perez I, supra, E073399.) The sentence included an upper term for the
kidnapping conviction (§ 207, subd. (a), count 6) and consecutive sentences on all counts.
However, other than its prefatory statement, the trial court offered no reasons for these
discretionary sentencing choices and neither party objected or requested a more detailed
statement. The sentence also included one-year enhancements for each of defendant’s
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four prior prison terms pursuant to former section 667.5, subdivision (b). (Perez I, supra,
E073399.)
C. Appeal and Resentencing
Defendant appealed from the judgment and, on December 4, 2020, this court
issued its opinion affirming the judgment but remanding the matter for resentencing.
(Perez I, supra, E073399.) Specifically, we concluded the trial court erred in imposing a
sentence less than that statutorily mandated for dissuading a witness (count 3); that prior
prison term enhancements should be stricken as a result of amendments to section 667.5;
and that the trial court could not order defendant to participate in counseling or education
as part of his sentence. (Perez I, supra, E073399.)
Defendant was resentenced on October 6, 2021. Despite our directive to strike the
prison prior enhancements imposed pursuant to section 667.5, the trial court apparently
struck only the punishment for those enhancements. The trial court also exercised its
discretion to impose a consecutive sentence for dissuading a witness and, as a result,
imposed a full middle term sentence for that offense. It also modified the abstract of
judgment to clarify it was only recommending defendant participate in counseling or
educational programs and purported to recalculate defendant’s custody credits. As a
result, defendant was sentenced to a total of 39 years eight months in state prison, which
again included the imposition of the upper term on count 6.
The trial court did not offer a new statement of reasons for its sentencing choices
and, instead, stated only that it would not revisit any aspects of the prior sentence other
than those specifically mentioned on the record. Defendant did not object to the trial
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court’s failure to provide a new statement of reasons in support of its sentencing choices
at the time of resentencing.
III. DISCUSSION
A. Legal Background and Issues Presented
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended
section 1170, subdivision (b), which guides the trial court’s discretion in sentencing a
defendant when the applicable statutes specify three possible terms for imposition of a
judgment of imprisonment. (§ 1170, subd. (b).) As amended, section 1170, subdivision
(b), now provides the middle term of imprisonment as the presumptive sentence, and it
permits a trial court to “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, supra, 75 Cal.App.5th at p. 500; § 1170, subd. (b)(1)-(2).)
Under the amended statute, the truth of any facts in support of an aggravating
circumstance must be tried in a bifurcated proceeding, except where the evidence is also
relevant to prove or defend against a charged offense or enhancement. (§ 1170,
subd. (b)(2).) Further, the trial court is permitted to consider a defendant’s prior
convictions based on a certified record of conviction without submitting the prior
convictions to a jury. (§ 1170, subd. (b)(3).) The amendment to section 1170,
subdivision (b), applies retroactively to all cases not yet final because it has the potential
to lessen the punishment for a defendant’s crimes. (People v. Flores, supra,
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75 Cal.App.5th at p. 500; People v. Garcia (2018) 28 Cal.App.5th 961, 972; In re
Estrada (1965) 63 Cal.2d 740, 744-745.)
In Lynch, our Supreme Court explained that “a Sixth Amendment violation occurs
when the trial court relies on unproven aggravating facts to impose an upper term
sentence, even if some other aggravating facts relied on have been properly established.”
(Lynch, supra, 16 Cal.5th at p. 768.) Our Supreme Court further resolved a split in
authority to conclude that any such error “is prejudicial unless an appellate court can
conclude beyond a reasonable doubt that a jury would have found true all of the
aggravating facts relied upon by the trial court to justify an upper term sentence, or that
those facts were otherwise proved true in compliance with the current statutory
requirements.” (Id. at pp. 768-769.)
Here, it is undisputed that the trial court imposed the upper term for kidnapping
(§ 207, subd. (a), count 6) when resentencing defendant, and the People concede that
section 1170, subdivision (b), as amended, applies retroactively to this case. Thus, the
only contested issue on appeal is whether the statute requires us to again remand the
matter for resentencing. With respect to the application of the newly amended section
1170, subdivision (b), the opening brief argues only that: “The record does not make
clear what aggravating factors the trial court [relied] on to impose the upper term or
whether the aggravating factors upon which the trial court relied were admitted by
[defendant] or found beyond a reasonable doubt.”
As we explain, defendant has forfeited any claim of error based on the trial court’s
purported failure to state its reasons for imposing the upper term on count 6 at the time of
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resentencing. However, because our Supreme Court explained in Lynch that the
amendments to section 1170 represent a fundamental alteration of the scope of a trial
court’s sentencing discretion, the retroactive application of these amendments entitles
defendant to remand so that the trial court may exercise fully informed discretion in light
of this change.
B. Defendant Has Forfeited Any Claim Based Upon the Trial Court’s Failure To State
Its Reasons and Any Such Error Was Harmless Even Absent Forfeiture
1. Forfeiture
“[C]omplaints about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised for the first time on
appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356; see People v. Wall (2017) 3 Cal.5th
1048, 1075 [“[A] defendant forfeits on appeal any ‘claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing choices’ in the absence
of objection below.”].) The rule of forfeiture applies in “ ‘cases in which the stated
reasons allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular sentencing factor, misweighed
the various factors, or failed to state any reasons or to give a sufficient number of valid
reasons.’ ” (People v. Boyce (2014) 59 Cal.4th 672, 730-731.) And the rule of forfeiture
has been specifically applied in the context of the amended version of section 1170,
subdivision (b). (People v. Anderson (2023) 88 Cal.App.5th 233, 242 [defendant forfeited
argument that trial court erred by failing to articulate the reasons for imposing an upper
term sentence under amended section 1170] ; People v. Tilley (2023) 92 Cal.App.5th 772,
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778 [defendant forfeited argument by failing to object to trial court’s imposition of
middle term despite circumstances that created a presumptive lower term under amended
section 1170, subd. (b)].)
Defendant contends on appeal that “[t]he record does not make clear what
aggravating factors the trial court [relied] on to impose the upper term.” However, the
record does not show that defendant raised any objection to the trial court’s statement of
reasons, either at the time of his original sentencing or resentencing. Notably, defendant
did not address the forfeiture issue in reply, even after the People raised that point in the
respondent’s brief. Nor did defendant address the forfeiture issue in his supplemental
briefing following vacatur of our original opinion in this case. We continue to agree with
the People that any claim of error premised upon the trial court’s failure to identify which
aggravating factors it relied upon to impose the upper term on count 6 have been forfeited
and cannot support reversal or remand in this case.
This is particularly true where, as here, the court was required to state the reasons
for selecting the upper term even prior to the changes to section 1170, subdivision (b),
effectuated by Senate Bill 567. (See former § 1170, subd. (b); Stats. 2007, ch. 3, §§ 1-3
(SB 40), eff. Mar. 30, 2007.) Despite this, the record shows that defendant did not raise
any objection. As a result, the claim is clearly forfeited.
2. Any Error Based on the Failure To State Reasons Was Harmless
“Where sentencing error involves the failure to state reasons for making a
particular sentencing choice, . . . reviewing courts have consistently declined to remand
cases where doing so would be an idle act that exalts form over substance because it is
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not reasonably probable the court would impose a different sentence.” (People v. Coelho
(2001) 89 Cal.App.4th 861, 889; see People v. Scott, supra, 9 Cal.4th at p. 355 [trial
court’s error “in identifying or articulating its sentencing choices” does not require
reversal where “it is ‘not reasonably probable that a more favorable sentence would have
been imposed in the absence of error”]; People v. Jones (2009) 178 Cal.App.4th 853,
861 [“ ‘[A] reviewing court will set aside the sentence only if it is reasonably probable
that the trial court would have chosen a lesser sentence had it known that some of its
reasons were improper.’ ”].)
The appropriate consideration is whether there is “a reasonable possibility that a
statement of reasons would have altered the trial judge’s conclusion or revealed
reversible error[.]” (People v. May (1990) 221 Cal.App.3d 836, 839.) On this point, our
Supreme Court’s decision in People v. Osband (1996) 13 Cal.4th 622 (Osband) is
instructive. In that case, the trial court erroneously stated it was relying upon the same
aggravating factor to impose both the upper term and consecutive sentences. (Id. at p.
728.) The trial court also failed to state reasons in support of a decision to impose a full
consecutive term instead of one-third the middle term on one of the counts. (Id. at p.
729.) In concluding that both errors were harmless, our Supreme Court explained that the
defendant failed to show a reasonable probability of a more favorable sentence because
the record disclosed the trial court “could have selected disparate facts from among those
it recited to justify the imposition of both a consecutive sentence and the upper term,” and
it “could have referred to the aggravating circumstances contained in the California Rules
of Court that it found true” if it had been pressed to do so. (Ibid.)
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The reasoning in Osband applies equally to this case. The record shows no
shortage of aggravating circumstances referenced by the trial court at the time of
sentencing. As the People point out, the trial court’s prefatory statement explicitly refers
to at least three aggravating circumstances: (1) the crime involves great violence, great
bodily harm or the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1);
(2) defendant took advantage of a position of trust or confidence to commit the offense
(id., rule 4.421(a)(11); and (3) the defendant has previously engaged in violent conduct
that indicates a serious danger to society (id., rule 4.421(b)(1)). Defendant concedes that
the trial court’s prefatory statement can reasonably be interpreted as a reference to each
of these factors.
Additionally, moments earlier, the prosecutor brought to the trial court’s attention
the fact that defendant had an extensive criminal record with “over 20 other convictions,”
and that defendant was “on probation in at least one case . . . while committing our
current charged conduct.” In response, the trial court explicitly referenced defendant’s
“past criminal history” as part of its reason for denying defendant’s motion to dismiss
prison prior and strike enhancements. Accordingly, the trial court also clearly had before
it facts to support three additional aggravating circumstances: (1) defendant’s prior
convictions as an adult are numerous (Cal. Rules of Court, rule 4.421(b)(2));
(2) defendant has served prior terms in prison (id., rule 4.421(b)(3)); and (3) the
defendant was on probation when the crime was committed (id., rule 4.421(b)(4)).
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Thus, the record in this case clearly shows that there were a sufficient number of
aggravating circumstances specifically referenced2 at the time of sentencing that did not
require a jury determination under section 1170 from which the trial court could have
selected to support the imposition of an upper term on count 6. As such, the record does
not suggest it is reasonably probable defendant would have received a lesser sentence had
the trial court actually been pressed to give a statement of reasons and list which of those
aggravating factors supported its decision at resentencing.
C. The Amendments to Section 1170 Require A Remand in This Case
In the alternative, defendant argues that remand is required because the trial court
did not rely upon aggravating factors that were found true by a jury, as required under the
newly amended section 1170, subdivision (b). We need not address this argument
because we conclude that defendant is entitled to a remand for resentencing for an
entirely different reason.
2 For this reason we are unpersuaded by defendant’s reliance on People v.
Cardenas (2007) 155 Cal.App.4th 1468. In that case, the trial court actually gave a specific statement of reasons for its sentencing choice. (Id. at pp. 1479-1480.) It is in this context that the Court of Appeal concluded that it could not rely on a factor that was never referenced by any party or the trial court at the time of sentencing to affirm the sentence. (Id. at pp. 1482-1483.) We agree that in cases in which the trial court actually gives its specific reasons for a discretionary sentencing choice, our review should be limited to the reasons actually given by the trial court. However, that is not the situation before us in this case, as the trial court did not explain its reasons and, more importantly, explicitly referred to the aggravating circumstances that could have supported the exercise of its discretion at the time of sentencing.
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In addition to clarifying the standard of prejudice applicable when a trial court
relies upon an aggravating factor in violation of section 1170, our Supreme Court in
Lynch also endorsed the view that the amendments to section 1170 “alter[ed] the trial
court’s sentencing discretion” in that the “current statute narrows [the trial court’s]
authority by creating a presumption against the upper term, which may be overcome only
if the required facts are properly proven and the court concludes that term is justified.”
(Lynch, supra, 16 Cal.5th at p. 773.) Because a trial court applying the former version of
section 1170 would not have been guided by this constraint on its discretion, “[i]n this
circumstance, ‘it is almost always speculative for a reviewing court to say what the
sentencing court would have done if it had known the scope of its discretionary powers at
the time of sentencing.’ ” (Id. at p. 774.) Thus, regardless of whether the aggravating
factors upon which the court relied would have been found true beyond a reasonable
doubt by a jury, remand is still required where the record does not suggest how the trial
court would have exercised its discretion had it considered the standards set forth under
the amended version of section 1170. (Id. at p. 777.)
In this case, while the record shows that the trial court could have validly
sentenced defendant to the upper term based upon aggravating factors that did not require
a jury determination, the trial court did not state the specific reasons for imposing the
upper term sentence. And while we have concluded that this failure to state reasons does
not itself warrant reversal, the absence of reasons prevents us from concluding the trial
court would have exercised its discretion in the same manner if it had been aware of its
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altered scope of discretion under the amended version of section 1170.3 As such,
defendant is entitled to vacatur of his sentence and remand for further proceedings. This
conclusion renders it unnecessary for us to address defendant’s additional argument that
clerical errors in the abstract of judgment must be corrected, as defendant will have an
opportunity to raise these issues anew in the trial court.
IV. DISPOSITION
Defendant’s sentence is reversed. Upon remand, the trial court is directed to give
the People an opportunity to try the truth of any circumstances in aggravation in a
bifurcated proceeding pursuant to section 1170. If the People elect not to proceed with a
bifurcated trial, or at the conclusion of any such trial, the trial court shall conduct a full
resentencing where it will have discretion to reexamine all aspects of defendant’s
sentence. A decision by the People to not pursue a trial with respect to any specific
aggravating circumstance will not preclude the trial court from considering any
circumstances in aggravation which do not require a jury determination under
section 1170, and the trial court retains discretion to impose an upper term sentence if it
concludes that one or more properly proved circumstances justify such a sentence. We
3 We acknowledge that the trial court expressed its intent to sentence defendant to
the maximum term permissible under the law at the time of defendant’s initial sentencing. However, the trial court made no such comments on the record at the time of resentencing and, as a result, we cannot presume the trial court carried the same intent when exercising its discretion anew.
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express no opinion as to how such discretion should be exercised at the time of
resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that while the defendant forfeited his claim regarding the trial court's failure to state reasons for its sentencing choices, the retroactive application of amendments to Penal Code section 1170 requires a remand for resentencing because the trial court must exercise its discretion under the new statutory framework.
Issues
Whether the defendant forfeited his claim that the trial court failed to state reasons for imposing an upper term sentence.
Whether the retroactive application of Penal Code section 1170, as amended, requires a remand for resentencing.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“the retroactive application of amendments made to section 1170 entitles defendant to reversal and remand for further proceedings.”
“remand is still required where the record does not suggest how the trial court would have exercised its discretion had it considered the standards set forth under the amended version of section 1170.”