California Court of Appeal Oct 19, 2023 No. E080028Unpublished
Filed 10/19/23 P. v. Melton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080028
v. (Super.Ct.No. FVI20003040)
DEREK MARCUS MELTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Lara Vavakin, 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, Collette C. Cavalier, Warren J.
Williams and Sahar Karimi, Deputy Attorney Generals, for Plaintiff and Respondent.
1
Defendant and appellant Derek Marcus Melton pled no contest to one count of
inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5).1 He challenges
the trial court’s imposition of the upper-term sentence of four years. As explained post,
we affirm because aggravating factors present at the time defendant was granted
factors]; see also People v. Martinez (2008) 166 Cal.App.4th 1598, 1606 [statement
concerning violent nature of crime indicated reliance on rule 4.421(a)(1)].) Specifically,
the record indicates that the supplemental report relied upon aggravating circumstances
under rule 4.421(a)(1) and (b)(1)-(2) to support its upper-term sentence recommendation;
that the trial court confirmed the report’s recommendation was based on “the original . . .
crime involv[ing] great violence”; and that the trial court ultimately concluded the totality
of defendant’s rap sheet and the facts of the case sufficiently demonstrated aggravating
factors to sentence defendant to the upper term. (Pearson, at p. 117.)
Turning to the merits, we conclude the trial court committed no sentencing error,
because the preprobation evidence of defendant’s conduct adequately supports imposition
5
of an upper-term sentence based on the aggravating factors in rule 4.421(a)(1) and (b)(1)-
(2). (§ 1170, subd. (b).)
Section 1170 generally provides that a trial court shall impose an upper-term
sentence only when there are aggravating circumstances “that justify . . . 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).) Notwithstanding those proof
requirements, the trial 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.” (§ 1170, subd. (b); see People v. Butler (2023) 89
Cal.App.5th 953, 958-959 (Butler), review granted May 31, 2023, S279633.)4 The trial
court may consider aggravating factors “relat[ed] to the crime and . . . to the defendant,”
such as, inter alia, whether the crime “involved great violence, great bodily harm . . . or
other acts disclosing a high degree of cruelty,” and whether “[t]he defendant has engaged
in violent conduct that indicates a serious danger to society.” (Rule 4.421.) In
implementing section 1170, with regards to probation revocation proceedings, the trial
court must base “the length of the sentence . . . on circumstances existing at the time
[probation] was granted,” and is prohibited from considering “subsequent events.” (Rule
4.435(b).)
4 We cite Butler for its persuasive value, in accordance with rule 8.115(e)(1).
6
To determine whether a trial court abused its discretion in imposing an upper-term
sentence, a reviewing court asks whether the aggravating factors relied upon by the trial
court could have been found to be unquestionably true, beyond a reasonable doubt. (See
People v. Flores (2022) 75 Cal.App.5th 495, 500; People v. Lopez (2022) 78 Cal.App.5th
459, 463; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1112-1113; see also Butler,
supra, 89 Cal.App.5th at 959-960.) Where the record indicates the aggravating factors
were supported by uncontroverted evidence, there is no error.5
As to the trial court’s reliance on rule 4.421(a)(1) and (b)(1), we conclude those
factors were properly supported by stipulated facts that demonstrate defendant’s violent
and callous criminal conduct. (See § 1170, subd. (b)(2) [imposition of upper term may be
based on facts stipulated to by defendant].) Specifically, it was undisputed that, at the
time defendant was placed on probation, he stipulated to the underlying facts of his 2020
section 273.5 conviction, which indicated: he had assaulted his then-girlfriend, prevented
her from accessing medical help, and caused her significant internal bodily injury. These
stipulated facts demonstrate that defendant’s 2020 conviction involved a high degree of
violence and callousness, so as to satisfy the sentencing requirements imposed by section
1170. (People v. Martinez, supra, 166 Cal.App.4th at p. 1607.)
We next conclude that, contrary to defendant’s contentions, the trial court properly
relied on rule 4.421(b)(2), as the record demonstrates his prior criminal convictions were
both numerous and increasingly serious. (§ 1170, subd. (b)(3); rule 4.421(b)(2).)
5 In light of our conclusion that the trial court committed no sentencing error here, we need not resolve any split in authority regarding the appropriate harmless error test.
7
Specifically, as to the abundance of defendant’s criminal convictions, the record
invalidates any possibility that defendant’s preprobation convictions were sparse.
(§ 1170, subd. (b)(3); People v. Searle (1989) 213 Cal.App.3d 1091, 1098.) Indeed,
defendant’s certified record of conviction indicates that, at the time probation was
granted, he had at least four misdemeanor convictions—including at least one under
section 273.5. These are sufficiently numerous to permit the trial court to rely on rule
4.421(b)(2) as an aggravating circumstance. (Searle, at p. 1098.) Further, the trial
court’s reliance on rule 4.421(b)(2) was proper, because defendant’s preprobation
convictions were also increasingly serious. Specifically, the record indicates that, within
a few years, defendant progressed from less serious offenses—including a non-violent
section 508 embezzlement conviction—to at least one section 273.5 conviction for
assaulting a cohabitant or spouse. In light of these facts, imposition of an upper-term
sentence was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in imposing an upper-term sentence because the defendant's pre-probation criminal history and the stipulated facts of his underlying offense provided sufficient aggravating factors under California Rules of Court, rule 4.421.
Issues
Whether the trial court improperly relied on post-probation criminal conduct in violation of Penal Code section 1170 and rule 4.435(b).
Whether the defendant's pre-probation criminal history and stipulated facts were sufficient to support an upper-term sentence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“we affirm because aggravating factors present at the time defendant was granted probation supported an upper-term sentence.”
“the trial court properly relied on rule 4.421(b)(2), as the record demonstrates his prior criminal convictions were both numerous and increasingly serious.”