Filed 6/28/22 P. v. Thornton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
F083218
Plaintiff and Respondent,
(Super. Ct. No. F17905508)
v.
MATTHEW DAVID THORNTON, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. Heather
Mardel Jones, Judge.
Patrick J. Hennessey, Jr., 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 R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Franson, J. and Peña, J.
Defendant Matthew David Thornton pled guilty pursuant to a plea agreement to
assault by means likely to produce great bodily injury by a state prisoner and admitted he
had suffered three prior “strike” convictions within the meaning of the Three Strikes law
(Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).1 The plea agreement
indicated the factual basis was entered pursuant to People v. West.2 He was sentenced to
a total term of 12 years’ imprisonment, including an upper term on count 2. On appeal,
defendant contends that his sentence must be vacated and his case remanded for
resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567)
amendments to section 1170, subdivision (b). The People disagree. We conclude that
the sentence was not imposed in compliance with section 1170, subdivision (b) but the
error was harmless.3
PROCEDURAL SUMMARY
On September 21, 2017, the Fresno County District Attorney filed a criminal
complaint, charging defendant with assault by means of force likely to produce great
bodily injury by a state prisoner (§ 4501, subd. (b); count 2).4 The complaint further
alleged that defendant had suffered three prior strike convictions. (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d).)
1 All statutory references are to the Penal Code.
2 People v. West (1970) 3 Cal.3d 595. A West plea is “ ‘a plea of nolo contendere,
not admitting a factual basis for the plea,’ ” which “allows a defendant to plead guilty in
order to take advantage of a plea bargain while still asserting his or her innocence.”
(People v. Rauen (2011) 201 Cal.App.4th 421, 424.)
3 Throughout our discussion, we refer to section 1170, subdivision (b) “error.”
However, we note that at the time the trial court sentenced defendant, it correctly applied
the then-existing law. Accordingly, while we refer to section 1170, subdivision (b)
“error,” we are mindful that the trial court complied with the applicable law at the time of
sentencing.
4 Count 1 was alleged only against a codefendant.
2.
On May 25, 2021, pursuant to a negotiated plea agreement, defendant pled guilty
on count 2 and admitted the three prior strike convictions. In exchange for his guilty
plea, the plea agreement provided a maximum term of imprisonment of 12 years. The
plea agreement indicated that the trial court could find a factual basis from the
“police/prison reports” pursuant to West and the trial court confirmed the West plea
during the change of plea colloquy.
On June 23, 2021, the trial court struck two of defendant’s three prior strike
convictions and imposed a 12-year term of imprisonment, consecutive to the term he was
already serving, as follows: on count 2, 12 years (the upper term of six years, doubled
due to the prior strike conviction).
On August 20, 2021, defendant filed a notice of appeal.
FACTUAL SUMMARY
Because defendant’s plea was entered pursuant to West, the trial court relied on the
police/prison reports in finding a factual basis. The probation officer summarized the
facts of a prison crime report reflecting the offense. In short, defendant was a prisoner in
a state prison. He and one other person attacked an inmate. No weapons were used. The
attacked inmate suffered an orbital bone fracture.
DISCUSSION
I. Senate Bill 567
Defendant contends that we must vacate the sentence and remand the matter
because defendant did not admit, and the trial court did not find true, the facts underlying
the circumstances in aggravation that the trial court relied upon in imposing the upper
term. The People agree that Senate Bill 567 is retroactive to defendant but argue that the
trial court’s imposition of the upper term was consistent with section 1170,
subdivision (b) because the trial court appropriately “relied upon [defendant]’s criminal
history,” which defendant admitted, in imposing the sentence. Alternatively, the People
argue that any error in imposition of the upper term is harmless beyond a reasonable
3.
doubt because “[a]t the very least, a jury would have found one of the aggravating factors
relied on by the trial court to be true beyond a reasonable doubt.” The People are
mistaken regarding the relevant standard for harmless error. As we explain below,
whether the jury would have found true beyond a reasonable doubt the facts und erlying at
least one of the aggravating circumstances is not the relevant question in this context.
Instead, to find that the error was harmless we would have to conclude (1)(a) beyond a
reasonable doubt that the jury would have found beyond a reasonable doubt that the facts
underlying at least one aggravating circumstance was true, and (1)(b) that there is no
reasonable probability the jury would not have found the remaining circumstances true
beyond a reasonable doubt, or (2) that there is no reasonable probability the trial court
would have imposed a lesser term based on the aggravating circumstances that would
have been provable to the jury beyond a reasonable doubt. 5
For the following reasons, we conclude the sentence does not comply with the
requirements of section 1170, subdivision (b), but the error was harmless.
A. Additional Background
The trial court adopted the probation officer’s recommendation regarding the
following four circumstances in aggravation and one circumstance in mitigation. In
aggravation, the court found:
“The crime involved great violence, great bodily harm, threat of
great bodily harm, or other facts disclosing a high degree of cruelty,
viciousness, or callousness.
“The defendant has engaged in violent conduct which indicates a
serious danger to society.
5 In order to reach the second step, the reviewing court must conclude beyond a
reasonable doubt that the jury would have found at least one aggravating circumstance
true beyond a reasonable doubt. Otherwise, the sentence violates the Sixth Amendment.
4.
“The defendant’s prior convictions as an adult or sustained petitions
in juvenile delinquency proceedings are numerous or of increasing
seriousness.
“The defendant has served a prior prison term.”
In mitigation, the court found: “The defendant voluntarily acknowledged
wrongdoing before arrest or at an early stage of the criminal process.”
The trial court summarized its assessment of those circumstances as follows:
“So at this time the Court has reviewed the sentencing report. I’ve
reviewed the summary of the facts. I’ve reviewed and note that defendant
has no prior juvenile criminal history. I’ve reviewed defendant’s prior
adult criminal history; while it’s short, it’s serious. … The Court
considered California Rule of Court 4.420, 4.421, circumstances and
aggravation, and will note the crime involved great violence, great bodily
harm, or other facts which demonstrate a high degree of cruelty,
viciousness, and callousness, and that defendant himself has in this
case⸻but more importantly in his prior criminal history engaged in
violence and is a danger to society. His prior convictions as an adult are
becoming numerous and are of equal or increasing seriousness and he has
served⸻in fact, currently serving a prior prison term. The Court
considered California Rule of Court 4.423, circumstances and mitigation,
and will note he voluntarily acknowledged wrongdoing at an early stage of
the criminal process, that is pre-prelim.”
In light of the identified circumstances in aggravation and in mitigation, the trial
court imposed the upper term on count 2.
B. Analysis
From March 30, 2007, to January 1, 2022, California’s determinate sentencing law
specified that “[w]hen a judgment of imprisonment [wa]s to be imposed and the statute
specifie[d] three possible terms, the choice of the appropriate term … rest[ed] within the
sound discretion of the court.” (§ 1170, former subd. (b).)
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b).
(Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he 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
5.
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)(2).) As an exception to the general rule,
a trial court is permitted to rely upon a certified record of conviction to determine prior
criminality for purposes of sentencing without submitting the prior conviction to a jury.
(§ 1170, subd. (b)(3).)
As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to
cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People
v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under
another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s
sentence is not yet final on appeal.
In this case, as to the first circumstance in aggravation found true by the trial
court, that “the crime involved great violence, great bodily harm, or other facts which
demonstrate a high degree of cruelty, viciousness, and callousness,” no jury made a
finding and defendant entered no stipulation.6 As to the second and
third circumstances—defendant’s history of violent conduct and that defendant’s prior
convictions were numerous or increasing in severity—defendant admitted that he had
suffered prior strike convictions for robbery, attempted murder, and assault with a deadly
weapon. Those admitted convictions were defendant’s only violent prior convictions.
The facts underlying the second and third aggravating factors were stipulated to by
defendant. Finally, as to the fourth circumstance in aggravation—defendant’s having
served a prior prison term—in pleading guilty to assault likely to cause great bodily
6 The trial court’s discussion of that aggravating factor did not include whether
defendant’s conduct included a threat of great bodily injury, a fact that was necessarily
implied in defendant’s guilty plea to count 2—assault “by means of force likely to
produce great bodily injury ….” (§ 4501, subd. (b).) Instead, the trial court placed
emphasis on the actual injury inflicted. The actual injury inflicted was not necessarily
implied in the conviction and was not admitted by defendant as a result of the West plea.
6.
injury while confined in the state prison, defendant necessarily admitted that he was
serving or had served a state prison sentence.7 Despite one of the aggravating
circumstances not having been proved in compliance with section 1170, subdivision
(b)(2) and (b)(3), the upper term was nevertheless imposed on count 2. Imposition of the
upper term on count 2 is not in compliance with section 1170, subdivision (b). Therefore,
unless imposition of the upper term on count 2 was harmless, the sentence must be
vacated and the matter must be remanded to the trial court for resentencing in compliance
with section 1170, subdivision (b).
The People contend that any error is harmless because, “[a]t the very least, a jury
would have found one of the aggravating factors relied on by the trial court true beyond a
reasonable doubt.” For that proposition, they rely on People v. Flores (2022) 75
Cal.App.5th 495 (Flores), which applied the harmless-beyond-a-reasonable-doubt
standard of harmless error from Chapman v. California (1967) 386 U.S. 18 (Chapman) as
adapted to the context of violations of the Sixth Amendment right to a jury trial on
aggravating circumstances by People v. Sandoval (2007) 41 Cal.4th 825, 838–839
(Sandoval).8 (Flores, at pp. 500–501.) Flores articulated the harmless error standard in
the Senate Bill 567 error context as follows: “ ‘[I]f a reviewing court concludes, beyond
a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard,
7 Defendant appears to argue that because he entered his plea pursuant to West, the
trial court could not consider the fact that he was serving a prison term from his plea
despite it being an element of the offense. He is mistaken. While a West plea allows a
defendant not to admit a factual basis for the offense, all of the elements of the offense
are treated as proved. (People v. Bradford (1997) 15 Cal.4th 1229, 1374–1375; People v.
Rauen, supra, 201 Cal.App.4th at pp. 425–426.)
8 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.
7.
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.) We
respectfully disagree with the People and Flores that Sandoval applies in this context. A
reviewing court concluding beyond a reasonable doubt that the jury would have the facts
underlying a single circumstance in aggravation true beyond a reasonable doubt is
insufficient to conclude that any error under section 1170, subdivision (b) was harmless.
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 maximum.9 (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.)
9 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, supra, 549 U.S. at p. 275.)
8.
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 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.10 (Flores, supra, 75 Cal.App.5th at
pp. 500–501.) The Court of Appeal for the Fourth District, Division One disagreed with
Flores on that point. (People v. Lopez (2022) 78 Cal.App.5th 459, 465–468, fn. 11
(Lopez).)
The court in Lopez agreed with Flores that section 1170, subdivision (b)(2) error is
subject to a harmless error analysis: “where a sentencing factor must be found true by a
10 The Flores court did not explain why it concluded that the harmless error test
applied in Sandoval applies in this context.
9.
jury beyond a reasonable doubt and the court fails to submit that factor to the jury, the
error in the court’s reliance on that fact may be subject to harmless error review as to
whether the lack of a finding by the jury was prejudicial.” (Lopez, supra, 78 Cal.App.5th
at p. 465.) But Lopez disagreed with Flores on the correct standard for harmlessness.
Instead of the Sandoval harmless error standard, the Lopez court 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.)
Lopez reasoned it is not enough that the reviewing court conclude that a trial court
was permitted to impose the upper term because the jury would have found true a single
aggravating circumstance beyond a reasonable doubt; whether the trial court could have
imposed the upper term did not completely resolve the issue. (Lopez, supra, 78
10.
Cal.App.5th at p. 467.) Instead, when a reviewing court concludes beyond a reasonable
doubt that a jury would have found true fewer than all the aggravating circumstances
beyond a reasonable doubt, it must still ask whether it is reasonably probable the trial
court “would have exercised its discretion” to impose a sentence less than the upper term
in the absence of the unproved aggravating circumstance(s). (Ibid.)
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 applicable 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 Chapman standard of harmless error—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 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,
11.
supra, 46 Cal.2d 818.11 (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
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
11 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.
12.
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 standard s
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).
With that standard in mind, we revisit the aggravating circumstances relied upon
by the trial court. Because the second, third, and fourth aggravating circumstances were
found in compliance with section 1170, subdivision (b), we focus on the first
circumstance. First, the trial court relied upon the finding that the offense involved great
violence, great bodily harm, or other facts which demonstrate a high degree of cruelty,
viciousness, and callousness. As noted above, the facts underlying the offense were not
admitted or proved. The record contains no testimony regarding the offense. Even
assuming the facts summarized in the probation report are true—defendant and another
13.
person attacked an inmate, fracturing his orbital bone—we conclude that there is a
reasonable probability that the jury would not find beyond a reasonable doubt that
defendant’s part in the offense reflected his personal use of great violence, infliction of
great bodily harm, or a high degree of cruelty, viciousness, or callousness.
While we found that the second, third, and fourth aggravating circumstances were
all proved in compliance with section 1170, subdivision (b), even if they were not, they
are all questions of historical fact provable from a certified record of conviction.
Moreover, defendant’s convictions are reflected in the probation report, to which
defendant made no objection. There is no logical reason that defendant would not have
challenged the accuracy of those prior convictions if not true. Indeed, as noted,
defendant admitted three prior strike convictions which comprised most of his criminal
history (and all of his violent offenses). We would therefore conclude beyond a
reasonable doubt that the jury would have found true beyond a reasonable doubt that
defendant had engaged in violent conduct. We further conclude that there is no
reasonable probability12 that the jury would not have found true beyond a reasonable
doubt that defendant had numerous and/or increasing serious prior convictions and had
served a prior prison term.13 (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098
[three prior convictions are numerous].)
The trial court found true one circumstance in mitigation, and as discussed above,
the jury would have found true at least three of four aggravating circumstances beyond a
reasonable doubt. In light of the aggravating circumstances the jury would have found
true beyond a reasonable doubt, we conclude that the error in not presenting facts
underlying those circumstances to the jury was harmless. In imposing the upper term, the
12 We would reach the same conclusion if we applied the Chapman standard.
13 We note that defendant’s criminal history did not need to be proved to a jury. The
trial court could instead have relied upon a certified record of conviction for those
offenses. (§ 1170, subd. (b)(3).)
14.
trial court emphasized that “more important[]” than the violence of his present offense
(the factor we cannot conclude the jury would have found) were his history of violence
and the increasing seriousness of his offenses. Based on the trial court’s comments, its
imposition of the upper term was based primarily on defendant’s violent and serious
criminal history. In light of that record, we must conclude that there is no reasonable
possibility that the trial court would have imposed a term less than the upper term if it
had not considered the great violence, infliction of great bodily harm, or high degree of
cruelty, viciousness, or callousness involved in the present offense. The error was
harmless.
DISPOSITION
The judgment is affirmed.
15.