Filed 4/19/22 P. v. Duran CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079512
Plaintiff and Respondent,
v. (Super. Ct. No. JCF003929)
MICHELLE DIAZ DURAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
William Derek Quan, Judge. Reversed and remanded with directions.
Jason L. Jones, 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, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respondent.
After entering a no contest plea to felony assault with force likely to
cause great bodily injury, Michelle Diaz Duran failed to comply with a term
of her plea agreement that required her to appear at her sentencing hearing.
Although the parties agreed to a suspended sentence, because Duran failed to
appear at the sentencing hearing, the court imposed the upper term of four
years in state prison.
On appeal, Duran contends the sentence must be vacated and the
matter remanded for resentencing in light of Senate Bill No. 567 (Senate
Bill 567), which amended Penal Code1 section 1170, subdivision (b) to make
the middle term the presumptive sentence absent certain circumstances.
Duran further contends the minute order and abstract of judgment reflect a
conviction for the wrong offense, and she requests the documents be corrected
to reflect the conviction is for assault with force likely to cause great bodily
injury.
The Attorney General agrees with Duran on both contentions. We
accept the concessions, and we will remand the matter for resentencing, with
instructions to correct the abstract and minute order.
BACKGROUND AND PROCEDURAL FACTS
The State charged Duran with felony criminal threats (§ 422, subd. (a);
count 1), misdemeanor battery (§ 242; count 2), misdemeanor violation of a
criminal protective order (§ 166, subd. (a)(4); count 3), and felony assault with
force likely to cause great bodily injury (§ 245, subd. (a)(4)). The charges
stemmed from an incident at Duran’s mother’s home in January 2021, during
a time period when Duran’s mother had an active court order prohibiting
1 Section references are to the Penal Code.
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Duran from contacting her.2 Duran’s sister reported that Duran had become
physically aggressive and scratched her face, leaving two small, half-inch
lacerations. Duran also threatened to kill her sister’s daughter. Duran told
police she had been attacked by her mother and sister but showed no signs of
injury.
Duran pled no contest to count 4 under the terms of a plea agreement
that dismissed the remaining counts, with Harvey waivers (People v. Harvey
(1979) 25 Cal.3d 754). Under the terms of the agreement, Duran was to be
sentenced to the upper term of four years, suspended, with three years of
formal probation. The agreement required Duran to appear for her probation
interview and her sentencing hearing; the failure to do either would result in
the sentence portion of the agreement being cancelled and Duran being
sentenced unconditionally without the option of withdrawing her plea.
Duran did not appear for her sentencing hearing on March 10, 2021.
The court held a hearing September 20, 2021 regarding the failure to appear,
during which it found Duran in willful violation of the plea term. The court
then imposed the upper term sentence of four years. The abstract of
judgment and the minutes from sentencing state that Duran pled no contest
to assault with a deadly weapon.
Duran timely appealed.
DISCUSSION
In 2007, the U.S. Supreme Court held that California’s procedure for
selecting upper terms sentences under former section 1170, subdivision (b)
2 The details of the underlying incident are not relevant to the matter
before us. The court used Calexico Police Department Report Number C21-
01450 as the factual basis for the plea, as stipulated by the parties. We
provide some information for context, taking the details from the probation
report.
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violated the constitution because it gave authority to the trial judge to find
facts that exposed a defendant to an upper-term sentence rather than leaving
that action to the jury. (Cunningham v. California (2007) 549 U.S. 270, 274.)
The California Legislature responded by amending section 1170,
subdivision (b), eliminating the requirements of judicial factfinding required
to impose lower or upper terms and granting judges discretion to select any
term within the statutory range. (Stats. 2007, ch. 3, § 2.)
In 2021, the Legislature approved Senate Bill 567, non-urgency
legislation, which amended section 1170, subdivision (b) by making the
middle term the presumptive sentence unless certain circumstances exist.
(See Stats. 2021, ch. 731, § 1.3 [adding §§ 1170, subd. (b)(1) & (2)].) Effective
January 1, 2022, the amended section 1170, subdivision (b) provides that a
trial court may impose an upper term sentence only when there are
circumstances in aggravation and either the defendant has stipulated to the
facts underlying the aggravating circumstances or those facts have been
found true beyond a reasonable doubt. (People v. Flores (2022) 75
Cal.App.5th 495, 500 (Flores).) Courts may also rely on certified records of a
defendant’s prior convictions in determining the sentence without submitting
the prior convictions to the jury. (§ 1170, subd. (b)(3); Stats. 2021, ch. 731,
§ 1.)
At the time Senate Bill 567 became effective, Duran’s judgment was not
yet final. Because the legislation reduces the presumptive punishment and
there is no indication the Legislature intended Senate Bill 567 to apply only
prospectively, the new law applies retroactively. (See In re Estrada (1965) 63
Cal.2d 740, 744, 746 [absent contrary evidence, ameliorative amendments to
statutes apply to all whose judgments are not yet final on the operative date];
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see also People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308; Flores,
supra, 75 Cal.App.5th at p. 500 [applying Senate Bill 567 retroactively].)
Duran contends that because the upper term sentence was imposed
using discretion that is broader than is currently permitted without the
required factual findings, the matter must be remanded for a new sentencing
hearing conducted in accordance with the current version of section 1170,
subdivision (b). The Attorney General concedes the new legislation applies in
this case.
Here, the parties agreed that if Duran willfully failed to appear at the
sentencing hearing, the sentencing agreement would be cancelled, and the
court would sentence her unconditionally. The trial court found she violated
that plea term; thus, there was no longer an agreement requiring she be
sentenced to the upper term. And when the trial court imposed the upper
term, it failed to address any aggravating or mitigating factors. Accordingly,
we will remand the matter with instructions to resentence Duran in
accordance with section 1170, subdivision (b).
Duran separately requests we remand the matter with instructions to
correct the minute order and abstract of judgment to reflect the conviction for
assault with force likely to cause great bodily injury under section 245,
subdivision (a)(4). The Attorney General agrees.
Generally, when there is a discrepancy between a written record of the
judgment and the oral pronouncement, “the oral pronouncement controls.”
(People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) The abstract of
judgment and minute order currently reflect a conviction for assault with a
deadly weapon even though Duran pled no contest to assault with force likely
to cause great bodily injury (§ 245, subd. (a)(4)). We will direct the trial court
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to correct the abstract of judgment and to send an amended copy to the
Department of Corrections and Rehabilitation.
DISPOSITION
The sentence is vacated, and the case is remanded to the superior court
with directions to hold a hearing to resentence Duran consistent with
section 1170, subdivision (b), as amended. We further direct the trial court to
correct the minute order and abstract of judgment to reflect that the
conviction was the result of a no contest plea to assault with force likely to
cause great bodily injury. Finally, the superior court is directed to forward
an amended abstract to the Department of Corrections and Rehabilitation.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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