Filed 6/24/22 P. v. Fridley CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C095304
Plaintiff and Respondent, (Super. Ct. Nos. CRF200101502,
CRF2100975)
v.
JEFFREY EUGENE FRIDLEY,
Defendant and Appellant.
Defendant Jeffrey Eugene Fridley entered a plea agreement to resolve two felony
cases filed against him. Pursuant to that agreement, defendant pled guilty in one case to
receiving stolen property and admitted to having been convicted of a strike offense. In
the other case, defendant pled guilty to assault by means of force likely to cause great
bodily injury.
At sentencing, the trial court imposed the upper term of three years, doubled to six
years pursuant to the three strikes law, for defendant’s receiving stolen property
conviction. For the assault conviction, the trial court imposed a consecutive one-year
1
term. When choosing the upper term for the receiving stolen property conviction, the
trial court, relying on the probation report, considered a number of aggravating factors,
including: (1) defendant’s six prior felony convictions and three prior prison terms;
(2) defendant’s unsatisfactory performance on probation, mandatory supervision, and
parole; and (3) the circumstances of the current case, during which defendant was
“driving a stolen vehicle[,] . . . gave his brother’s name [to the police officer] knowing he
had warrants[,] . . . claimed [the stolen vehicle] was his girlfriend’s truck, and then
claimed he bought it for $200 and did not know it was stolen.” As a mitigating factor, the
trial court considered defendant’s willingness to “resolve th[e] matter at an early stage in
the proceedings.” The trial court found “[t]he aggravating factors in number and
seriousness [to] outweigh [the] mitigating factors,” and that defendant “certainly [wa]s
not a low-term candidate.”
Defendant appeals arguing “the matter must be remanded for resentencing
pursuant to amended Penal Code1 section 1170 because imposition of the upper term for
[the receiving stolen property conviction] does not satisfy the criteria mandated by Senate
Bill No. 567 [(2021-2022 Reg. Sess.)].” (Bolding and capitalization omitted.) We
disagree and affirm.
DISCUSSION
The parties agree Senate Bill No. 567 applies retroactively to defendant because
defendant’s judgment was not final on January 1, 2022, when Senate Bill No. 567
became effective. (See § 1170, subd. (b), as amended by Stats. 2021, ch. 731, § 1.3.)
Defendant contends the matter must be remanded for resentencing because the
aggravating circumstances relied on by the trial court when imposing the upper term were
not stipulated to by defendant, found true by a jury beyond a reasonable doubt, or
1 Undesignated section references are to the Penal Code.
2
contained in a certified record of conviction. We agree Senate Bill No. 567 applies
retroactively but find remand unnecessary.
I
Senate Bill No. 567 Applies Retroactively
Senate Bill No. 567 amended section 1170, subdivision (b), to provide that the
trial court may impose the upper term only if the facts underlying the aggravating
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 amended section 1170,
subdivision (b)(3), a 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.” This change aims to protect a defendant’s right to a jury trial
by ensuring the trial court does not impose an upper term “without granting defendants
the opportunity to have a jury review and determine the truthfulness of alleged
aggravating facts.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business
Analysis of Sen. Bill No. 567 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 4.)
According to the principle established in In re Estrada (1965) 63 Cal.2d 740, an
ameliorative change in law applies retroactively to nonfinal judgments in the absence of
an express statement to the contrary by the Legislature. (People v. Francis (1969) 71
Cal.2d 66, 75-76.) A judgment becomes final when it has reached final disposition in the
highest court authorized to review it. (People v. Rossi (1976) 18 Cal.3d 295, 304.) Here,
defendant’s judgment is not yet final, nor did the Legislature expressly prohibit the
retroactive application of the bill. Thus, Senate Bill No. 567 applies retroactively to
defendant’s case.
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II
Remand Is Unnecessary
The People contend the trial court’s sentencing decisions complied with Senate
Bill No. 567 because one of the aggravating circumstances relied upon by the trial court
was proven by certified records and a trial court is permitted to base an upper term on a
single aggravating circumstance. In the alternative, the People contend any error in
failing to apply Senate Bill No. 567 was harmless because, upon remand, the aggravating
factors will clearly be found true beyond a reasonable doubt. We agree.
When speaking of the trial court’s discretion to impose the upper term,
section 1170, subdivision (b)(1) through (3), as amended by Senate Bill No. 567,
provides the court may impose the 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 . . . .”2 By its plain meaning, the provision does not provide for a
presumption that a trial court must exercise its discretion in a certain way. Instead, the
Legislature created a rule limiting a trial court’s discretion to impose the upper term in
cases where no aggravating factor has been proven beyond a reasonable doubt or
otherwise stipulated to by the defendant.
2 Section 1170, subdivision (b)(1) through (3) provides: “(b)(1) When a judgment
of imprisonment is to be imposed and the statute specifies three possible terms, the court
shall, in its sound discretion, order imposition of a sentence not to exceed the middle
term, except as otherwise provided in paragraph (2). [¶] (2) 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. . . . [¶] (3) Notwithstanding paragraphs (1) and (2), 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. This
paragraph does not apply to enhancements imposed on prior convictions.”
4
Given that subdivision (b)(1) through (3) of section 1170 is silent regarding the
court’s discretion, the newly enacted provision leaves unchanged a trial court’s discretion
to impose the upper term of imprisonment based on a single aggravating factor (see
People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182; People v. Osband (1996) 13 Cal.4th
622, 728 [“[o]nly a single aggravating factor is required to impose the upper term”]) and
the sentence it believes to be appropriate to the case and the defendant being sentenced
before it (see People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [“A judge’s
subjective determination of the value of a case and the appropriate aggregate sentence,
based on the judge’s experiences with prior cases and the record in the defendant’s case,
cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be
imposed is not improper as long as it is channeled by the guided discretion outlined in the
myriad of statutory sentencing criteria”]).
Here, the trial court cited as a circumstance in aggravation that defendant had a
prior conviction. Defendant admitted to this conviction, and thus the trial court properly
relied on that conviction and exercised its discretion under newly enacted section 1170,
by imposing the upper term of imprisonment on defendant’s receiving stolen property
conviction. (See People v. Garcia (2001) 25 Cal.4th 744, 757 [the three strikes law is not
an enhancement under § 1170, subd. (b), it is a separate sentencing scheme that applies
automatically where a defendant has at least one prior serious felony conviction and the
trial court does not strike it].)
In any event, because the error is purely one of state law, the harmless error test in
People v. Watson (1956) 46 Cal.2d 818, 836 applies. (People v. Epps (2001) 25 Cal.4th
19, 29.) Thus, if a reviewing court concludes it is reasonably probable, beyond a
reasonable doubt, that a jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true the aggravating circumstances relied on by the
trial court, the error is harmless. (See People v. Sandoval (2007) 41 Cal.4th 825, 839
[when the error is of federal magnitude, the error is harmless if a reviewing court
5
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].)
Here, the trial court believed defendant’s case was not a low-term case. It decided
to impose a sentence exceeding the low term based on several circumstances, including
the manner by which defendant committed the offense. Given the subjective nature of
this specific aggravating circumstance, we cannot say a jury would have found that
circumstance true beyond a reasonable doubt. (See People v. Sandoval, supra, 41 Cal.4th
at pp. 839-840 [“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”].)
Under newly enacted section 1170, subdivision (b)(1) through (3), however, the
trial court is still permitted to rely on unproven circumstances when deciding to elevate a
defendant’s sentence above the lower term. It is just those circumstances the court relies
on to “justify the imposition of a term of imprisonment exceeding the middle term” that
must be proven or otherwise stipulated. (§ 1170, subd. (b)(1)-(3).) For this reason, we
disagree with the holding of People v. Lopez (2022) 78 Cal.App.5th 459, 465-466,
requiring a reviewing court to “conclude beyond a reasonable doubt that a jury would
have found true beyond a reasonable doubt every factor on which the court relied . . . .”
The trial court’s sentencing decision focused predominantly on defendant’s
numerous prior convictions and prior prison terms, as well as his unsatisfactory
performance on probation, mandatory supervision, and parole. The fact of defendant’s
prior convictions, prior prison terms, and prior unsatisfactory performance on
postconviction release were readily discernable from the probation report. While the
probation report is not a certified record, the information contained in it was presented to
the trial court and defendant for the purposes of the trial court’s sentencing decisions.
6
Defendant had every opportunity and incentive to object to the trial court’s reliance on
those facts had the facts been incorrectly portrayed in the probation report. Defendant’s
lack of objection demonstrates his prior convictions, prison terms, and unsatisfactory
performance during postconviction release is readily ascertainable from certified records
and would be found true beyond a reasonable doubt by a trial court or jury. Given the
true findings that will undoubtedly be found upon remand, it is clear the trial court will
impose the same sentence utilizing the same justification it already did. For these
reasons, remand is unnecessary.
DISPOSITION
The judgment is affirmed.
/s/
Robie Acting P. J.
I concur:
/s/
Earl, J.
7
DUARTE, J., dissenting.
I disagree with the majority’s finding of harmless error and would remand for
resentencing under the current version of Penal Code section 1170.1 Accordingly, I must
dissent.
Defendant was sentenced to the upper term for his crime of receiving stolen
property without the benefit of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill
No. 567), which amended section 1170, subdivision (b) and provides that a trial court
may impose an upper term sentence only where there are aggravating circumstances
justifying the imposition of a term exceeding the middle term, and the defendant has
either stipulated to the facts underlying those circumstances or those facts have been
found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2); Stats. 2021, ch. 731,
§ 1, eff. Jan. 1, 2022.)
At sentencing, defendant asked for probation or, in the alternative, a middle term
sentence. The People argued for the upper term in accordance with the probation report’s
recommendation. When the trial court specifically asked the prosecutor for a position on
defendant’s request for the middle term, the prosecutor responded that “the circumstances
in aggravation far outweigh any in mitigation” and that the probation report contained a
“well-reasoned argument” for the upper term. The trial court went over the report in
detail and sentenced in conformity with the report’s recommendation.
As relevant to my disagreement, the majority first notes that the amendments to
section 1170 “leave[] unchanged a trial court’s discretion to impose the upper term of
imprisonment based on a single aggravating factor.” (Maj. opn., ante, at p. 5.) I do not
disagree with that statement, but that is not what happened here. Instead, the trial court
1 Undesignated statutory references are to the Penal Code.
1
articulated a large number of aggravating factors to support its decision, and the vast
majority of these factors were supported only by the probation report’s assertions. The
majority notes that defendant admitted to his strike prior during his plea, and then
cursorily concludes that because defendant admitted to the strike, which the trial court
recited as one of many aggravating circumstances, “the trial court properly relied on that
conviction and exercised its discretion newly enacted section 1170, by imposing the
upper term of imprisonment on defendant’s receiving stolen property conviction.” (Maj.
opn., ante, at p. 5.) But this does not address the effect of the multiple aggravating
factors that were relied upon by the trial court, yet not proven as required.
As noted by the majority, the trial court relied entirely on the probation report in
considering defendant’s prior convictions (with the exception of the strike), defendant’s
unsatisfactory performance on prior grants of probation, supervised release, and parole
(collectively, performance on release), and the circumstances of the present case (which
had been resolved by plea with a limited factual basis proffered by the prosecutor and
admitted by defendant), including facts from outside the articulated factual basis. There
is no dispute but that the bulk of the information relied upon by the trial court was
insufficient to satisfy section 1170, subdivision (b) as amended; the information was
summarized in the probation report and was neither stipulated nor proven as required.
Although I agree the law allows the trial court to “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)(3); as amended by Stats.
2021, ch. 731, § 1), here there was one strike admitted by defendant but no certified
records presented to prove any of the prior convictions listed in the report.
Nor was there any evidence proving the aggravating factor of unsatisfactory
performance on release. Subdivision (b)(3) of section 1170 specifies repeatedly that the
only exception created is for prior convictions, and clearly does not codify the much
broader exception allowing for judicial consideration of facts related to a defendant’s
2
recidivism without violating the Sixth Amendment. (People v. Towne (2008) 44 Cal.4th
63, 79-85.) The majority lumps these factors together without differentiation, concluding
that because the facts underlying the factors related to prior convictions and performance
on release considered here are “readily available from official records” and “readily
discernable from the probation report” and defendant did not object to their inclusion in
the report, the factors “would be found true beyond a reasonable doubt.” (Maj. opn.,
ante, at p. 7.)
The majority does not explain how it is permissible for us to presume the existence
of extra-record evidence, whether that evidence be certified copies of convictions or
proof beyond a reasonable doubt of unsatisfactory performance on release, and I do not
see how we may properly do so. I do not agree that the trial court’s reliance on
recitations in a probation report in lieu of the proof that is now legally required should be
excused based only on our assumption that all of the information on which the court
admittedly relied would “undoubtably be found upon remand.” (Maj. opn., ante, at p. 7.)
This broad and speculative conclusion undermines the specific language of Senate Bill
No. 567 and amended sections 1170 and 1170.1, and signals this type of noncompliance
will always be harmless error.
Nor did defendant’s failure to explicitly dispute the report’s accuracy excuse the
error. Defendant did not stipulate to the accuracy of the report or the information therein,
and the requirement at issue--that the information in the report on which the trial court
relied must be proven by certified record or, in the case of the unsatisfactory performance
on release and circumstances of the underlying crime, beyond a reasonable doubt--did not
exist at the time of his sentencing.
I also disagree with the majority that the error “is purely one of state law” (maj.
opn., ante, at p. 5), requiring only application of the harmless error test articulated in
3
People v. Watson (1956) 46 Cal.2d 818 at page 836.2 The trial court found factors in
addition to prior convictions that it relied on to increase defendant’s sentence, including
unsatisfactory performance on release and certain factual aspects of defendant’s conduct
that were not part of his plea. This is potentially constitutional error. (See People v.
Lopez (2022) 78 Cal.App.5th 459, 464.) Although the majority indicates without analysis
that it disagrees with Lopez, it bases that disagreement on an apparent assumption that the
trial court’s passing mention of the lower term when imposing the sentence somehow
changes the requirements for evidentiary support of factors considered to justify
imposition of the upper term (see maj. opn., ante, at p. 6). I do not understand that basis
for disagreement.
In my view, where few if any of the various legal requirements for proof of
aggravating factors were met, the trial court clearly considered sentencing to the middle
term (and possibly even the lower term), and the court relied on multiple aggravating
factors supported only by the probation report in reaching its conclusion not to do so, this
is not a harmless error case. Even assuming that, on this record, any Sixth Amendment
error was harmless, I cannot find the state law error harmless as well. (See People v.
Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) This is because although defendant can
be said to have stipulated to some aspects of the trial court’s description of his offense as
well as his prior prison term by virtue of his plea, it is not at all clear the trial court would
2 Indeed, the majority appears uncertain about applying only the Watson standard of
harmless error; it describes a test where if “a reviewing court concludes it is reasonably
probable, beyond a reasonable doubt, that a jury, applying a beyond-a-reasonable-doubt
standard, unquestionably would have found true the aggravating circumstances relied on
by the trial court” the error is harmless, and cites People v. Sandoval (2007) 41 Cal.4th
825, at page 839, which describes harmless error under the test set forth in see
Chapman v. California (1967) 386 U.S. 18 [violations of the federal Constitution require
reversal unless the error is harmless “beyond a reasonable doubt”].) (Maj. opn., ante, at
pp. 5-6.)
4
have found these circumstances alone sufficient to warrant imposition of the upper-term
sentence. The trial court neither weighed its listed aggravating circumstances nor
indicated whether its decision to impose the upper term was (or was not) a close call. It
simply laid out the various factors in aggravation and mitigation and concluded: “The
aggravating circumstances in number and seriousness outweigh mitigating factors. He
certainly is not a low-term candidate. So the upper term is the appropriate term.”
Because, on this record, we cannot determine whether the trial court would have imposed
the same sentence had it been left with only those aggravating circumstances arguably
stipulated by defendant, remand is required. (See People v. Avalos (1984) 37 Cal.3d 216,
233 [reviewing court “must . . . reverse where it cannot determine whether the improper
factor was determinative for the sentencing court”].)
For all of these reasons, I respectfully disagree with the majority’s analysis and
dissent from its refusal to remand.
/s/
Duarte, J.
5