Filed 6/30/22 P. v. Scarbrough 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent, C093901
v. (Super. Ct. No. 20CF04444)
JOSHUA LEE SCARBROUGH,
Defendant and Appellant.
After defendant Joshua Lee Scarbrough pleaded no contest to carrying a dirk or
dagger, the trial court imposed an upper term sentence of three years. On appeal,
defendant argues (1) the trial court abused its discretion in imposing the upper term
because it incorrectly concluded there were no factors in mitigation, and (2) we should
remand the matter to permit the trial court to reconsider the upper term sentence in light
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of Senate Bill No. 567 (2021-2022 Reg. Sess.), which recently amended section 1170,
subdivision (b), making the middle term of imprisonment the presumptive sentence
(§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1, effective Jan. 1, 2022).
We conclude defendant’s first contention is forfeited because he did not object at
sentencing. As for his second contention, we will remand the matter to permit the trial
court to reconsider the upper term sentence based on the retroactive change in the law. In
addition, based on our review of the record, we will direct the trial court to orally
pronounce sentence on defendant’s misdemeanor conviction in this case.
BACKGROUND
One night in September 2020, a police officer conducted a traffic stop on a vehicle
defendant was driving. After lying to the officer about his name and admitting that he
did not have a driver’s license, defendant later admitted his true name and claimed he
provided a false name because he thought there was a warrant for his arrest. During a
search, the officer found defendant had a knife, the possession of which defendant
admitted he knew was unlawful. The officer also found over seven grams of a substance
that appeared to be heroin, but which defendant said was “ ‘fake heroin’ ” that he
intended to sell as real heroin.
The People charged defendant with carrying a dirk or dagger (Pen. Code,
§ 21310 -- count 1),1 misdemeanor giving false information to a police officer (§ 148.9,
subd. (a) -- count 2), and misdemeanor possession for distribution of an imitation
controlled substance (Health & Saf. Code, § 109575 -- count 3). Defendant pleaded no
contest to counts 1 and 2 and the trial court dismissed count 3.
In connection with the plea, defendant read, initialed, and signed a plea form.
Among other things, he initialed the following paragraph of the plea form: “Harvey
1 Undesignated statutory references are to the Penal Code.
2
Waiver: I stipulate the sentencing judge may consider my prior criminal history and the
entire factual background of the case, including any unfiled, dismissed or stricken
charges or allegations or cases when granting probation, ordering restitution or imposing
sentence.”
A probation officer’s presentencing report recommended imposition of the upper
term of three years for count 1, explaining that defendant had numerous prior convictions
as an adult. Defendant had five prior felony convictions, including a prior felony
conviction for carrying a dirk or dagger, and 16 misdemeanors. The report also explained
that defendant had served prior prison terms, was on post release community supervision
(PRCS) and a grant of court probation when he committed the instant offenses, and that
his prior performance on probation, parole, and PRCS had been unsatisfactory.
At a March 2021 sentencing hearing, the trial court told the parties it had read and
considered the probation report, and its “intended ruling would be county prison, upper
term . . . . I’ll certainly hear from counsel though.”
Defendant’s counsel said he understood the trial court’s position given the history
provided by the probation report. Nevertheless, defense counsel asked the trial court to
grant probation despite defendant’s lengthy record.
The trial court denied probation. Having reviewed the circumstances in
aggravation set forth in California Rules of Court, rule 4.421, and the circumstances in
mitigation set forth in California Rules of Court, rule 4.423, the trial court said the
circumstances in aggravation outweighed the circumstances in mitigation, and the upper
term was appropriate. In aggravation, the trial court found that defendant’s prior
convictions as an adult were numerous and of an increasing serious nature, he served a
prior prison term, he was on probation and PRCS at the time of the offense, and his prior
performance on probation, parole and post release supervision was unsatisfactory. The
trial court found no factors in mitigation. Accordingly, the trial court sentenced
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defendant to county prison for the upper term of three years on count 1 and a concurrent
six-month term on count 2, the misdemeanor conviction.
DISCUSSION
I
Defendant argues the trial court abused its discretion in imposing the upper term
on count 1 because the sentence was based on an inaccurate conclusion that there were no
factors in mitigation.2 The People argue this claim is forfeited because defendant did not
raise it at sentencing. We agree with the People.
“[T]he right to challenge a criminal sentence on appeal is not unrestricted. In
order to encourage prompt detection and correction of error, and to reduce the number of
unnecessary appellate claims, reviewing courts have required parties to raise certain
issues at the time of sentencing. In such cases, lack of a timely and meaningful objection
forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351, italics omitted
(Scott).)
The forfeiture doctrine applies to “claims involving the trial court’s failure to
properly make . . . its discretionary sentencing choices,” including “cases in which the
stated reasons allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it . . . misweighed the various factors.” (Scott, supra, 9 Cal.4th
at p. 353; accord People v. Scott (2015) 61 Cal.4th 363, 406.)
Here, defendant did not object when the trial court observed that there were no
factors in mitigation. Accordingly, defendant’s contention is forfeited on appeal.
2 Defendant also asserts that his sentence is “out of alignment with the current trend of
reduction of sentences for less serious offenses.” If he intended this separate comment to
be an independent argument for why the trial court abused its discretion, the argument is
forfeited. (See People v. Lombardo (2020) 54 Cal.App.5th 553, 565, fn. 6 [declining to
address argument “because it was not stated under a separate heading or subheading”];
People v. McElroy (2005) 126 Cal.App.4th 874, 884, fn. 3 [same].)
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For the first time in his reply brief, defendant argues we should nevertheless
consider his claim because (1) counsel could not have foreseen a future change in the law
that might have benefited defendant, and (2) trial counsel should have objected at the
sentencing hearing, and therefore counsel’s failure to do so was ineffective assistance.
But these arguments are forfeited too, as defendant did not raise them in his opening
brief. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219; People v. Duff (2014)
58 Cal.4th 527, 550, fn. 9; People v. Bona (2017) 15 Cal.App.5th 511, 517.)
II
Defendant next argues we must remand the matter to permit the trial court to
reconsider the upper term sentence in light of recent statutory changes that apply to him
retroactively. The People agree the new law applies to defendant’s sentence, but they
contend the sentence is consistent with the amended law because defendant agreed, when
he pleaded no contest, that the trial court could consider his prior criminal history at
sentencing. In the alternative, the People argue any error was harmless.
A
Effective January 1, 2022, pursuant to Senate Bill No. 567, when a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the trial
court must impose a term not exceeding the middle term unless there are circumstances in
aggravation of the crime that justify the imposition of a term exceeding the middle term
and the facts underlying those aggravating circumstances (1) have been stipulated to by
the defendant or (2) have been found true beyond a reasonable doubt at trial by the jury
or by the judge in a court trial or (3) relate to the defendant’s prior convictions and are
based on a certified record of conviction. (§ 1170, subds. (b)(1), (b)(2), (b)(3); Stats.
2021, ch. 731, Legis. Counsel’s Digest.)
Under In re Estrada (1965) 63 Cal.2d 740, “ ‘ “[a]n amendatory statute lessening
punishment is presumed to apply in all cases not yet reduced to final judgment as of the
amendatory statute’s effective date” [citation], unless the enacting body “clearly signals
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its intent to make the amendment prospective, by the inclusion of either an express saving
clause or its equivalent.” ’ ” (People v. Lara (2019) 6 Cal.5th 1128, 1134.) A judgment
of conviction is not final for the purpose of determining the retroactive application of a
statutory amendment until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 305-306;
People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) Nothing in Senate Bill No. 567
suggests a legislative intent that its amendments apply prospectively only, and the parties
correctly agree that defendant is entitled to the benefits of the legislative enactments in
Senate Bill No. 567. (Stats. 2021, ch. 731, §§ 1-3; Flores, at p. 1039.)
B
The People argue defendant’s upper term sentence is consistent with the amended
law because defendant agreed, when he pleaded no contest, that the trial court could
consider his prior criminal history at sentencing. But their argument is based on
People v. Munoz (2007) 155 Cal.App.4th 160, which involved a defendant’s
relinquishment of his Sixth Amendment right to a jury trial and beyond a reasonable
doubt finding on the facts used to aggravate his sentence. (Id. at p. 168 [finding no error
under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 453] and Apprendi v.
New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]].) The People argue the application
of amended section 1170 in this case raises the same issue as in Munoz, and should be
resolved the same way because here, like in Munoz, defendant made a plea bargain with a
Harvey waiver.
We are not persuaded that Munoz is on all fours with the instant case. The
defendant in Munoz pleaded no contest with a Harvey waiver after the cases establishing
the new law had been decided (i.e., Apprendi and Blakely). Here, however, defendant
pleaded no contest with a Harvey waiver before the amendments to section 1170 were in
effect.
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In the alternative, the People argue harmless error. Although some courts have
discussed the application of a harmless error analysis in a challenge under Senate Bill
No. 567 with differing results (cf. People v. Flores (2022) 75 Cal.App.5th 495, 500-501;
People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11), because the trial court did not
have the opportunity to consider the amendments to section 1170, we will remand the
matter to permit the trial court to reconsider the upper term sentence based on the
retroactive change in the law.
III
Although defendant does not raise the issue,3 we observe that the appellate record
does not reflect oral pronouncement of the sentence for defendant’s misdemeanor
conviction, rendering the sentence (reflected in a minute order) unauthorized. (See
People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6 [“The failure to pronounce
sentence on a count is an unauthorized sentence and subject to correction on remand”].)
Accordingly, we will direct the trial court to orally pronounce sentence on the
misdemeanor conviction. (Cf. People v. Rivera (2015) 233 Cal.App.4th 1085, 1093 [the
Court of Appeal has jurisdiction over all appealable orders in felony cases, including
orders regarding misdemeanors charged in conjunction with felonies]; In re Dupper
(1976) 57 Cal.App.3d 118, 122, unnumbered fn. [“We consider it highly preferable for
the sentencing judge to impose an unambiguous sentence rather than one requiring
interpretation”].)
DISPOSITION
Defendant’s convictions are affirmed. The matter is remanded for resentencing
with directions that the trial court reconsider the upper term sentence in a manner
3 Because the law appears clear, we address the issue without further briefing in the
interest of judicial economy. Any party aggrieved may petition for rehearing. (Gov.
Code, § 68081.)
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consistent with section 1170, and orally pronounce sentence on the misdemeanor
conviction.
/S/
MAURO, Acting P. J.
I concur:
/S/
DUARTE, J.
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EARL, J., Dissenting.
I disagree with the decision to remand in light of Senate Bill No. 567 (2021-2022
Reg. Sess.); I would conclude that any error in this case was harmless pursuant to People
v. Watson (1956) 46 Cal.2d 818 (Watson).
Here, the trial court based its selection of the upper term sentence on the
circumstance that defendant: had prior convictions which, as described in a
presentencing report prepared by the probation department, were numerous and of an
increasing serious nature; had served a prior prison term; was on probation and
postrelease community supervision at the time of the offense; and had performed poorly
on probation, parole and postrelease community supervision (Cal. Rules of Court, rule
4.421(b)(2), (3), (4), & (5)). The court also noted that “There are no factors in
mitigation.”
Reviewing courts subject most trial court errors to harmless error review, either
under the standard described in Chapman v. California (1967) 386 U.S. 18, or the
standard described in Watson, supra, 46 Cal.2d 818. (People v. Gonzalez (2018)
5 Cal.5th 186, 195-196; but see id. at p. 196 [errors that are structural in nature are not
subject to harmless error analysis].) The Chapman standard covers errors involving
“violations of the federal Constitution” and “requires reversal unless the error is harmless
‘beyond a reasonable doubt.’ [Citation.]” (Gonzalez, at pp. 195-196.) The Watson
standard, in turn, covers errors involving violations of state law and requires reversal if
“it is ‘ “reasonably probable that a result more favorable to the appealing party would
have been reached in the absence of the error.” ’ [Citations.]” (Id. at p. 195.) I find both
these standards relevant in reviewing the trial court’s error here.
I would not find that the trial court’s reliance on the described aggravating
circumstances violated the federal Constitution, as the aggravating circumstances all
related to defendant’s prior convictions, which case law has determined need not be
submitted to a jury and can be established by information obtained from defendant’s
criminal history record. In the Supreme Court’s decision in Cunningham v. California
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(2007) 549 U.S. 270, the court explained, “any fact [other than a prior conviction] that
exposes a defendant to a greater potential sentence must be found by a jury, not a judge,
and established beyond a reasonable doubt, not merely by a preponderance of the
evidence.” (Id. at pp. 281.) However, under People v. Black (2007) 41 Cal.4th 799, the
California Supreme Court held that the exception recognized in Apprendi v. New Jersey
(2000) 530 U. S. 466 for prior convictions extends to the fact of a defendant’s prior
prison term and the number and seriousness of them. “Under Cunningham, aggravating
circumstances based on a defendant's criminal history that render the defendant eligible
for the upper term include a trial court’s finding that the defendant suffered a prior
conviction (Black, supra, 41 Cal.4th at pp. 818-820); that the defendant suffered prior
convictions that are numerous or increasingly serious (ibid.); that the defendant was on
probation or parole at the time the offense was committed (People v. Towne (2008)
44 Cal.4th 63, 80-81); and that the defendant performed unsatisfactorily while on
probation or parole to the extent such unsatisfactory performance is established by the
defendant's record of prior convictions (id. at p. 82).” (People v. Scott (2015) 61 Cal.4th
363, 405).
Here, the trial court relied upon factors in a statutorily impermissible manner as
the factors were not admitted by defendant, proven through certified records of
conviction, or found true beyond a reasonable doubt by a jury, as now required under the
newly amended statute. Because the error is purely one of state law, I find the harmless
error test in Watson, supra, 46 Cal.2d at p. 836 applies. (People v. Epps (2001)
25 Cal.4th 19, 29 (Epps).) The test 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, at p. 836; see also Cal. Const., art. VI,
§ 13; People v. Price (1991) 1 Cal.4th 324, 492 [“When a trial court has given both
proper and improper reasons for a sentence choice, a reviewing court will set aside the
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sentence only if it is reasonably probable that the trial court would have chosen a lesser
sentence had it known that some of its reasons were improper”].)
I find the analysis begins with whether there is a reasonable probability that the
facts underlying the improperly determined aggravating circumstances would have been
established in a statutorily permissible manner, most notably, found true beyond a
reasonable doubt if submitted to a jury, or court in a court trial. (Watson, supra,
46 Cal.2d at p. 836; Pen. Code, § 1170, subd. (b)(2).)
Here, the court imposed the upper term of imprisonment based solely on
defendant’s recidivism. The error here was twofold: no certified records of conviction
were introduced to prove the existence and number of prior convictions, and the other
factors relating to a qualitative assessment of his recidivism (i.e., the frequency and
seriousness of prior offenses; performance on probation or parole) were not submitted to
a jury. As to the first error, I find there is a reasonable probability that defendant’s prior
convictions would be proven in a statutorily permissible manner, as the existence of these
prior convictions is easily verifiable through certified records, and defendant failed to
challenge their existence at the sentencing hearing, when he had every opportunity and
incentive to do so in order to mitigate his sentence. (See Epps, supra, 25 Cal.4th at p. 29
[finding the denial of a statutory right to a jury trial on a prior conviction harmless where
the only factual question for the jury was whether the prior convictions occurred, and
defendant did not question this fact].)4 For these same reasons, defendant’s prior
4 This is not a case in which the trial court was unaware of the full scope of discretion
granted by the law (cf. People v. Gutierrez (2014) 58 Cal.4th 1354, 1387, 1390
[eliminating presumption in favor of life without parole for special circumstance murder
committed by 16- or 17-year-old offender]), or where “defendant and his counsel have
never enjoyed a full and fair opportunity to marshal and present the case supporting a
favorable exercise of discretion” (People v. Rodriguez (1998) 17 Cal.4th 253, 258).
Rather, defendant had the same opportunity to submit mitigating evidence and dispute
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performance on probation and parole would be objectively proven through certified
records of convictions even if submitted to a jury. (Cal. Rules of Court, rule 4.421(b)(5).)
Thus, there is a reasonable probability that this factor would have been found true beyond
a reasonable doubt by a jury.
Lastly, the probation report prepared for defendant’s sentencing listed defendant’s
prior convictions and past violations of supervision. Leading up to the current
convictions, defendant has as many as eight prior misdemeanor convictions between
2005 and 2019, seven prior felony convictions during that same period, and numerous
violations of probation, parole, and postrelease community supervision. Based on this
history, it would be reasonable to conclude the existence of a reasonability probability
that a jury would have found true, beyond a reasonable doubt, that defendant’s prior
convictions were becoming more regular and serious over time.
Because all of the aggravating factors relied on by the trial court related to
defendant’s recidivism and could be easily proved to a jury beyond a reasonable doubt
aggravating evidence prior to Senate Bill No. 567. (Compare former Pen. Code, § 1170,
subd. (b), added by Stats. 2020, ch. 29, § 14, and amended by Stats. 2021, ch. 731, § 1.3,
eff. Jan. 1, 2022, with Pen. Code, § 1170, subd. (b)(4).) Likewise, trial courts apply their
discretion to the same set of aggravating circumstances to decide whether to impose an
upper term sentence, but the facts underlying those circumstances now may only be
found in one of the permissible ways. (Pen. Code, § 1170, subd. (b)(2)-(3); compare
former Pen. Code, § 1170, subds. (a)(3) & (b), added by Stats. 2020, ch. 29, § 14, and
amended by Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022 [“In sentencing the convicted
person, the court shall apply the sentencing rules of the Judicial Council” and “select the
term which, in the court’s discretion, best serves the interests of justice”], with Pen.
Code, § 1170, subds. (a)(3) & (b)(2) [“In sentencing the convicted person, the court shall
apply the sentencing rules of the Judicial Council” and “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”]; see also Cal. Rules of Court, rule 4.421 [unchanged after passage of Sen. Bill
No. 567].)
4
(Epps, supra, 25 Cal.4th p. 29), I would conclude that there is not a reasonable
probability that defendant would have received a more favorable sentence if the trial
court had made the findings based on certified records. Thus, to the extent that the
aggravating factors were not stipulated to or proven by a certified record, I would find
any error in taking them into consideration, harmless. (See People v. Flores (2022)
75 Cal.App.5th 495, 500.)
/S/
EARL, J.
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