Filed 6/27/22 P. v. Dannebaum CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE ,
F082773
Plaintiff and Respondent,
(Super. Ct. No. 20CMS2639)
v.
DUSTIN M. DANNEBAUM, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kings County. Michael J.
Reinhart, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Franson, J. and Peña, J.
Appointed counsel for defendant Dustin M. Dannebaum asked this court to review
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental
brief within 30 days of the date of filing of the opening brief. Defendant did not respond.
After requesting supplemental briefing on the applicability and effect of Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) to this case, we conclude the failure to
submit aggravating circumstances to the jury was either no error or harmless error, and
remand for resentencing is unnecessary. We affirm.
BACKGROUND
On March 26, 2020, two officers were escorting defendant between sites at
Corcoran State Prison. Defendant was handcuffed behind his back and was being led by
the two officers. Almost immediately, defendant slipped out of one officer’s grip, then
lowered his shoulder and forcefully struck the shoulder and chest of the other officer,
slamming him against a wall repeatedly. The two officers eventually managed to force
defendant face down to the ground. One of the officers suffered an injury to his hand that
required two surgeries. The other officer’s back was hurt in the struggle. Both officers
required extensive time off work because of their injuries.
On September 28, 2020, the Kings County District Attorney filed an information
charging defendant with battery by a prisoner upon a nonconfined person (Pen. Code,
§ 4501.5;1 count 1) and resisting arrest (§ 69; count 2). As to both counts, the
information further alleged defendant inflicted great bodily injury in the commission of
the crime (§ 12022.7, subd. (a)) and had suffered three prior “strike” convictions within
the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
Defendant declined a plea offer of three years eight months and waived his right to
a jury trial. A court trial ensued.
1 All statutory references are to the Penal Code.
2.
At the close of the prosecution’s case, the prosecutor introduced a section 969b
packet of certified documents, which included abstracts of judgment reflecting
convictions for grand theft on July 31, 2006, second degree robbery on July 7, 2008,
attempted robbery on April 24, 2012, robbery on August 14, 2012, and evading an officer
with reckless driving on January 8, 2018. The two robberies and one attempted robbery
were offered to prove the three alleged prior strike convictions. The court found the
three convictions true “beyond a reasonable doubt.” The court found defendant guilty of
all counts and found the great bodily injury allegation true.
At the sentencing hearing on March 18, 2021, the trial court struck two of
defendant’s prior strike convictions pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. The court sentenced defendant to a total of 11 years in prison, as
follows: on count 1, the upper term of four years, doubled to eight years pursuant to the
Three Strikes law, plus a three-year consecutive great bodily injury enhancement, all to
be served consecutively to the term in case No. SCS255708; on count 2, the upper term
of three years, doubled to six years pursuant to the Three Strikes law, plus a three-year
consecutive great bodily injury enhancement, both stayed pursuant to section 654. The
court imposed various fines and fees.
On May 11, 2021, defendant filed a notice of appeal.
DISCUSSION
We requested supplemental briefing on the application of Senate Bill 567 and
section 1170, subdivision (b) to this case. The parties agree, as do we, that Senate
Bill 567 applies retroactively to this case (see In re Estrada (1965) 63 Cal.2d 740), but
the parties disagree as to whether remand for resentencing is required.
When rendering its verdicts, the trial court stated the following:
“All right, as to the charges set forth in the Information the evidence
produced by the People remains uncontroverted. The Court will find
beyond a reasonable doubt that the defendant is guilty as charged in
Count 1 of the violation of … Section 4501.5, and as charged in Count 2
3.
for a violation of … Section 69 both as felonies. And find the special
allegations both as to the personal infliction of great bodily injury pursuant
to … Section 12022.7(a) true as to each count. As well as finding that the
People sustained the burden of beyond a reasonable doubt establishing the
three separate convictions as set forth in the Information under
[section] 1170.12, specifically the abstracts of judgment indicate that on or
about August 14th, 2012 the defendant was convicted of a violation of …
Section 211, robbery out of San Diego County Superior Court, case
number SCS255708 of attempted robbery out of San Diego County
Superior Court case number SCE313058, and of second degree robbery out
of San Diego Superior Court case number SDE214513. The
[section] 969(b) packet contains the abstracts of judgment, which is the
single best documentation of a conviction. They bear the defendant’s
correct name, the [section] 969(b) packet also contains a picture of the
defendant.
“Now, [defense counsel], as to your legal argument regarding the
weight that you should give the [section] 969(b) packet, I believe that in
some circumstances it would be—the abstract may be insufficient, but
under the factual circumstances given or presented to the Court here all
robberies are strikes, so there is no really ambiguity that needs to be cleared
up, and there is no evidence of any error that would raise any doubt as to
the accuracy of th[is section] 969(b) packet.” (Italics added.)
At sentencing, the trial court reviewed the probation report, then stated the
following:
“Now tentatively I agree with the People’s analysis in this case as to
the selection of the appropriate term as it remains. This is a two, three,
four triad. Tentatively the Court would select the upper term of four years.
This is based upon the defendant’s significant criminal history and his
numerous prior prison commitments.” (Italics added.)
At the time defendant was sentenced, former subdivision (b) of section 1170
largely left it to a sentencing court’s “sound discretion” to select the appropriate term
within a sentencing triad that “best serves the interests of justice.” (Former § 1170,
subd. (b).) While defendant’s appeal was pending, the Legislature enacted Senate
Bill 567, which amended section 1170, subdivision (b), making the middle term the
presumptive term and limiting the situations in which an upper term can be imposed.
(Stats. 2021, ch. 731, § 1.3.) Effective January 1, 2022, a court must “order imposition of
4.
a sentence not to exceed the middle term,” except under narrow circumstances. (§ 1170,
subd. (b)(1).) An upper term may be imposed only when there are circumstances in
aggravation that justify imposition of the upper 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).)
Here, the judge in a court trial did make true findings—beyond a reasonable
doubt—as to the three prior strike convictions, based on certified abstracts of judgment.
We believe those three convictions were sufficient to satisfy the aggravating
circumstances of multiple prior convictions and prison terms. (§ 1170, subd. (b)(2)
[permitting a judge to find the aggravating circumstances true beyond a reasonable doubt
in a court trial]; see People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior
convictions are numerous].) But if they were not (many more were listed in the
section 969b packet and probation report), any error in not making the finding, beyond a
reasonable doubt, that defendant had “a significant criminal history and … numerous
prior prison commitments” was harmless. (§ 1170, subd. (b)(3).)
The standard for harmlessness in this context is not settled. In People v. Flores
(2022) 75 Cal.App.5th 495 (Flores), the court extended the harmless error standard from
People v. Sandoval (2007) 41 Cal.4th 825, 838–839 (Sandoval),2 applied in the
Sixth Amendment context, to articulate the following standard for harmless error in the
section 1170, subdivision (b) context: “ ‘if a reviewing court concludes, beyond a
reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard,
2 Sandoval, as we explain in more detail below, considered the standard for
harmless error in the context of Cunningham v. California (2007) 549 U.S. 270
(Cunningham) error—where a sentence in excess of the statutory maximum sentence was
imposed under California’s former determinate sentencing law without submitting the
facts authorizing such a sentence to a jury.
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unquestionably would have found true at least a single aggravating circumstance had it
been submitted to the jury,’ the error is harmless.” (Flores, at p. 500, italics added.) On
the other hand, the court in People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez), applied
the following two-part standard for harmlessness: First, “[i]n order to conclude that the
trial court’s reliance on improper factors that were not found true by a jury[,] … admitted
by [the defendant, or based on certified records of conviction] was not prejudicial, [the
reviewing court] would have to conclude beyond a reasonable doubt that a jury would
have found true beyond a reasonable doubt every factor on which the court relied,
because the amended statute requires that every factor on which a court intends to rely in
imposing an upper term, with the exception of factors related to a defendant’s prior
conviction(s), have been admitted by the defendant or proven to a jury (see § 1170,
subd. (b)).” (Lopez, at pp. 465–466.) According to Lopez, if that conclusion is made, the
defendant has suffered no prejudice. (Id. at p. 467 & fn. 11.) If not, the reviewing court
“then consider[s] the second question, which is whether [it] can be certain, to the degree
required by People v. Watson (1956) 46 Cal.2d 818, 836 [(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, at p. 467,
fn. 11.)
We do not believe that either standard is completely correct. To explain our
disagreement with Flores, we consider the origin of the harmless error standard it
applied. In Cunningham, the Supreme Court held that California’s determinate
sentencing law (as it existed from 1977 to 2007) violated the Sixth Amendment right to a
jury trial because it permitted a trial judge to determine facts (other than a prior
conviction) that would allow imposition of a sentence in excess of the statutory
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maximum.3 (Cunningham, supra, 549 U.S. at pp. 275–276.) As Cunningham explained,
the Supreme Court had long held that any fact that permitted imposition of a sentence
beyond the statutory maximum had to be proved to a jury beyond a reasonable doubt.
(Id. at p. 281.) Under the California determinate sentencing law, a statutory presumption
existed that “ ‘[t]he middle term [would] be selected unless imposition of the upper or
lower term [was] justified by circumstances in aggravation or mitigation.’ ” (Id. at
p. 278.) Under the then-existing statutory scheme, those circumstances in aggravation or
mitigation—and the underlying facts related to those circumstances—were to be
determined by the trial court, not the jury. (Ibid.) The Supreme Court therefore
determined that the imposition of an upper term without having the facts underlying the
aggravating circumstances proved to a jury beyond a reasonable doubt violated the
Sixth Amendment. (Id. at p. 293.)
In Sandoval, our Supreme Court considered whether an upper-term sentence
imposed pursuant to the pre-Cunningham determinate sentencing law—i.e., imposed
based on judicial findings of fact on circumstances in aggravation—was harmless error
under the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 837.) It explained that
the trial court had relied upon multiple aggravating circumstances, none of which had
been proved to a jury, admitted by the defendant, or based on the fact of a prior
conviction. (Id. at pp. 837–838.) The upper-term sentence therefore violated the
defendant’s Sixth Amendment rights under Cunningham. The Sandoval court then
considered whether the violation was harmless. To that end, it articulated the following
standard: “if 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
3 In the Sixth Amendment context, the statutory maximum “ ‘is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.’ ” (Cunningham, 549 U.S. at p. 275.)
7.
Sixth Amendment error properly may be found harmless.” (Sandoval, at p. 839.) In the
Sixth Amendment context, the issue was whether the “ ‘defendant [was] eligible for the
upper term’ ”; the trial court’s consideration of additional circumstances not proved to a
jury was not a federal constitutional question. (Sandoval, at p. 839.)
As noted, in Flores, the Court of Appeal for the First District, Division Three
extended the standard for harmless error applied in the Sixth Amendment context in
Sandoval to section 1170, subdivision (b)(2) error.4 (Flores, supra, 75 Cal.App.5th at
pp. 500–501.)
We agree with the Lopez court that a reviewing court finding beyond a reasonable
doubt that the jury would have found a single aggravating circumstance true beyond a
reasonable doubt is insufficient to conclude that the error was harmless. In other words,
we disagree with Flores that Sandoval is controlling in this context. We further agree
that the second step of the Lopez analysis—considering whether the trial court would
have imposed a lesser term in absence of the aggravating circumstances not provable on
the record before the reviewing court—is necessary. To find that section 1170,
subdivision (b) error is harmless when fewer than all of the circumstances relied upon by
the trial court could have been proved to the jury, we must determine whether the trial
court would nevertheless have imposed the upper term based on the remaining
aggravating circumstances.
Despite our agreement with Lopez on the majority of the standard it articulated, we
are unconvinced that the beyond a reasonable doubt standard of Chapman v. California
(1967) 386 U.S. 18—applicable to errors implicating federal constitutional rights—must
be applied to all aggravating circumstances in the Lopez court’s first step. Lopez does not
provide a clear explanation for why the Chapman standard for harmless error applies to
4 The Flores court did not explain why it concluded that the harmless error test
applied in Sandoval applies in this context.
8.
all aggravating circumstances. Indeed, the only citation that the Lopez court provides for
the proposition that Chapman applies to every circumstance is citation to section 1170,
subdivision (b), itself. While Sandoval directs that at least one aggravating circumstance
must be proved to the Chapman harmless error standard to satisfy the Sixth Amendment
(i.e., for it to be permissible for the trial court to impose the upper term consistent with
the Sixth Amendment), ordinary errors of state law are subject to review pursuant to
Watson, supra, 46 Cal.2d 818.5 (People v. Breverman (1998) 19 Cal.4th 142, 171 [when
a state statutory right to a jury determination is violated, such error “is state law error
alone, and thus subject, under article VI, section 13 of the California Constitution, to the
Watson harmless error test”; “the state-created right to jury determination” does not
implicate federal due process interests].)
We note that the Chapman standard of harmless error is compelled when an
element of an offense or a sentencing factor necessary to impose a sentence above the
statutory maximum is not presented to the jury. (Washington v. Recuenco (2006) 548
U.S. 212, 220 [firearm enhancement sentencing factor harmless error is decided pursuant
to Chapman]; People v. French (2008) 43 Cal.4th 36, 52–53 [applying only Chapman
where the trial court imposed the upper term based on one aggravating circumstance and
that circumstance was not proved to the jury].) A fact that is necessary to impose a
sentence above the statutory maximum must be proved to a jury beyond a reasonable
doubt. However, as Sandoval has made clear, when multiple aggravating circumstances
not proved to the jury are relied upon by a trial court in imposing the upper term, the
5 The test under Watson is whether, “ ‘after an examination of the entire cause,
including the evidence,’ [the reviewing court] is of the ‘opinion’ that it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) In this context, the
question for the reviewing court would be whether there is a reasonable probability that
the trial court would not have found the aggravating circumstance(s) true beyond a
reasonable doubt.
9.
reviewing court must only conclude beyond a reasonable doubt that one of those
circumstances would have been found true by the jury beyond a reasonable doubt to
avoid offending the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 839 [so long as
a defendant is eligible for the upper term by virtue of facts that have been established
consistently with Sixth Amendment principles, the federal Constitution permits the trial
court to rely upon any number of aggravating circumstances in exercising its discretion to
select the appropriate term by balancing aggravating and mitigating circumstances,
regardless of whether the facts underlying those circumstances have been found to be true
by a jury].) Accordingly, one aggravating circumstance must be reviewed pursuant to
Chapman, but the remaining aggravating circumstances involve only a state-created right
to a jury trial that must be reviewed pursuant to Watson.
In sum, we think the correct standard for harmless error lies between the standards
articulated in Flores and Lopez; Flores sets too low a standard for harmlessness and
Lopez too high. We instead apply a version of the standard articulated in Lopez, modified
to incorporate Watson in the first step: The reviewing court determines (1)(a) beyond a
reasonable doubt whether the jury would have found one aggravating circumstance true
beyond a reasonable doubt and (1)(b) whether there is a reasonable probability that the
jury would have found any remaining aggravating circumstance(s) true beyond a
reasonable doubt. If the aggravating circumstances would have been proved to the
respective standards, any error was harmless. If not, we move to the second step of
Lopez, (2) whether there is a reasonable probability that the trial court would have
imposed a sentence other than the upper term in light of the aggravating circumstances
provable from the record as determined in the prior steps. If the answer is no, the error
was harmless. If the answer is yes, we vacate the sentence and remand for resentencing
consistent with section 1170, subdivision (b).
Returning to the aggravating circumstances in this case, the trial court found true
that defendant had suffered multiple prior convictions and had served multiple prior
10.
prison terms. Based on the section 969b packet before the court, we would find that the
trial court (or a jury) would have found all of the prior convictions identified in the
section 969b packet and all of defendant’s prior prison terms true beyond a reasonable
doubt under any standard of harmless error. For that reason, if any error occurred, we
would conclude that it was harmless. Accordingly, remand for resentencing pursuant to
section 1170, subdivision (b) is unnecessary and we will affirm.
DISPOSITION
The judgment is affirmed.
11.