People v. Perez CA4/2

Filed 7/8/22 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078155

v. (Super.Ct.No. SWF1707851)

CHRISTOPHER DANIEL PEREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed with directions.

Cindy Brines, by appointment of the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel and

Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

1
 I. INTRODUCTION

This is the second appeal by defendant and appellant, Christopher Daniel Perez,

following resentencing. Defendant was convicted by a jury of eight offenses arising out

of three separate incidents of domestic violence. (People v. Perez (Dec. 4, 2020,

E073399 [nonpub. opn.]) (Perez I).) In Perez I, this court affirmed the judgment, but

remanded the matter for resentencing.

At resentencing, the trial court imposed the upper term on the principal offense but

failed to provide a statement of reasons in support of its decision to do so. Shortly after

defendant’s resentencing, Penal Code1 section 1170 was amended to prohibit a trial court

from imposing an upper term sentence unless there are aggravating circumstances, and

the defendant has either stipulated to the facts underlying those circumstances or those

facts were found true beyond a reasonable doubt. (§1170, subd. (b)(1)-(2); People v.

Flores (2022) 75 Cal.App.5th 495, 500.) Defendant again appeals, arguing that we

should again remand the matter for resentencing because “[t]he record does not make

clear what aggravating factors the trial court [relied] on to impose the upper term or

whether the aggravating factors upon which the trial court relied were admitted by

[defendant] or found beyond a reasonable doubt.”

1 Undesignated statutory references are to the Penal Code.

2
 We conclude that (1) defendant has forfeited any claim of error based upon the

trial court’s failure to give an adequate statement of reasons for imposing an upper term

sentence; (2) even in the absence of forfeiture, defendant has not suffered prejudice

warranting reversal as the result of any failure to provide an adequate statement of

reasons; and (3) defendant has not suffered prejudice warranting reversal, even under the

newly amended version of section 1170. As such, we affirm the judgment but order the

abstract of judgment modified to correct a clerical error, as well as a miscalculation of

defendant’s custody credits.

II. FACTS & PROCEDURAL HISTORY

A. Background

Defendant and H.Q. began a dating relationship in August 2017. (Perez I, supra,

E073399.)

On November 17, 2017, defendant struck H.Q. multiple times in the head while

they were arguing inside a vehicle. (Perez I, supra, E073399.) When H.Q. tried to get

out of the vehicle, defendant punched her in the face, forced her back in the vehicle, and

drove her around for hours. (Ibid.) Defendant was convicted of one count of willful

infliction of corporal injury upon someone with whom he had a dating relationship

(§ 273.5, count 5) and one count of kidnapping (§ 207, subd. (a), count 6) arising out of

this incident. (Perez I, supra, E073399.)

On December 15, 2017, following an argument, defendant placed H.Q. into a

chokehold. (Perez I, supra, E073399.) As a result, H.Q. lost consciousness. (Ibid.)

When H.Q. regained consciousness, she was lying on the floor, and defendant was

3
yelling at her. (Ibid.) H.Q. attempted to scream, but defendant began to choke her again

and threatened to continue choking her until she stopped screaming. (Ibid.) Defendant

was convicted of one count of willful infliction of corporal injury upon someone with

whom he had a dating relationship (§ 273.5, count 8) and one count of assault by means

of force likely to produce great bodily injury (§ 245, subd. (a)(4), count 7) arising out of

this incident. (Perez I, supra, E073399.)

On December 19, 2017, H.Q. ended her relationship with defendant and asked him

to leave her home. (Perez I, supra, E073399.) The two began to argue, and defendant

took H.Q.’s phone from her. (Ibid.) While they were arguing, H.Q.’s pastor arrived at

her front door and began knocking loudly. (Ibid.) H.Q. had texted her pastor earlier and

had asked him to come check on her in 30 minutes if he did not hear from her. (Ibid.)

Defendant would not let H.Q. leave her bedroom to answer the door. (Ibid.) H.Q. tried

to scream to get her pastor’s attention, but defendant began strangling her to make her

stop screaming. (Ibid.) When H.Q. did not answer the door, her pastor called 911.

(Ibid.)

Defendant shut the bedroom door, moved a dresser in front of the door, turned off

the lights, and told H.Q. he was going to stay there and watch her all night. (Perez I,

supra, E073399.) After some time, police officers arrived, announced their presence, and

shouted for them to come out of the apartment. (Ibid.) While the officers were outside,

defendant pulled down H.Q.’s pants and underwear and began to have sex with her.

(Ibid.) H.Q. did not resist because she was afraid. (Ibid.)

4
 Police officers eventually entered the apartment after obtaining a key from H.Q.’s

apartment manager. (Perez I, supra, E073399.) They discovered H.Q., shaking and

crying, with bruises on both sides of her neck, and red marks on her carotid arteries.

(Ibid.) Defendant was escorted out of the apartment and taken into custody. (Ibid.) He

was convicted of one count of willful infliction of corporal injury upon someone with

whom he had a dating relationship (§ 273.5, subd.(f)(1), count 1); one count of rape

(§ 261, subd. (a)(2), count 2); one count of dissuading a witness (§ 136.1, subd. (b)(1),

count 3); and one count of false imprisonment (§ 236, count 4), arising out of this

incident. (Perez I, supra, E073399.)

In a bifurcated proceeding, the trial court found true allegations that defendant had

sustained four prior prison sentences qualifying for a sentence enhancement (former

§ 667.5, subd. (b); Stats. 2018, ch. 423, § 65); a prior conviction qualifying as a serious

prior felony (§ 667, subd. (a)); and a prior conviction qualifying as a strike offense

(§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). (Perez I, supra, E073399.)

B. Defendant’s Initial Sentence

Defendant’s initial sentencing hearing was held on August 9, 2019. Defendant

brought a motion to dismiss the strike offense as well as his prison priors and presented

evidence of potential mitigating factors in support of that request. The prosecutor

opposed the motion, noting that defendant had an extensive history of prior criminal

convictions, as well as the fact that defendant was on probation for a different offense at

the time he committed the current offenses. The trial court denied defendant’s motion,

explicitly referencing his “past criminal history” and stating: “I do not think his

5
prospects of living crime-free in the future are good at all based on past history. . . .

[W]hen you do the number of bad things he’s done, whether they’re defined instances or

not, you become a danger to society . . . .”

The trial court proceeded to sentence defendant, offering the following prefatory

statement: “Okay. I have a lot to say, but I’m going to bottom line this for you so you’re

not sitting there. I’m going to sentence you to the maximum amount of time I believe I

can sentence you to; okay? [¶] The reason I’m going to do that is because I see, and so

did all those women see, like your mom sees, you have good qualities. The problem is

you get angry and you assault people who trust you, okay, and your type of assault, this

grabbing around the neck in an arm hold like that, or arm hold and strangling them, is

incredibly dangerous. And we’re lucky we’re not here for a murder. [¶] And I think this

has been a pattern of conduct with you. I don’t think it’s going to stop. I don’t think you

can stop yourself. And I do not believe that you are safe out in the public. That is the

bottom line.”

The trial court then sentenced defendant to a total of 41 years and eight months in

state prison. (Perez I, supra, E073399.) The sentence included an upper term for the

kidnapping conviction (§ 207, subd. (a), count 6) and consecutive sentences on all counts.

However, other than its prefatory statement, the trial court offered no reasons for these

discretionary sentencing choices and neither party objected or requested a more detailed

statement. The sentence also included one-year enhancements for each of defendant’s

four prior prison terms pursuant to former section 667.5, subdivision (b). (Perez I, supra,

E073399.)

6
C. Appeal and Resentencing

Defendant appealed from the judgment and, on December 4, 2020, this court

issued its opinion affirming the judgment but remanding the matter for resentencing.

(Perez I, supra, E073399.) Specifically, we concluded the trial court erred in imposing a

sentence less than that statutorily mandated for dissuading a witness (count 3); that prior

prison term enhancements should be stricken as a result of amendments to section 667.5;

and that the trial court could not order defendant to participate in counseling or education

as part of his sentence. (Perez I, supra, E073399.)

Defendant was resentenced on October 6, 2021. Despite our directive to strike the

prison prior enhancements imposed pursuant to section 667.5, the trial court apparently

struck only the punishment for those enhancements. The trial court also exercised its

discretion to impose a consecutive sentence for dissuading a witness and, as a result,

imposed a full middle term sentence for that offense. It also modified the abstract of

judgment to clarify it was only recommending defendant participate in counseling or

educational programs and purported to recalculate defendant’s custody credits. As a

result, defendant was sentenced to a total of 39 years eight months in state prison, which

again included the imposition of the upper term on count 6.

The trial court did not offer a new statement of reasons for its sentencing choices

and, instead, stated only that it would not revisit any aspects of the prior sentence other

than those specifically mentioned on the record. Defendant did not object to the trial

court’s failure to provide a new statement of reasons in support of its sentencing choices

at the time of resentencing.

7
 III. DISCUSSION

A. Legal Background and Issues Presented

Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended

section 1170, subdivision (b), which guides the trial court’s discretion in sentencing a

defendant when the applicable statutes specify three possible terms for imposition of a

judgment of imprisonment. (§ 1170, subd. (b).) As amended, section 1170, subdivision

(b), now provides the middle term of imprisonment as the presumptive sentence, and it

permits a trial court to “impose an upper term sentence only where there are aggravating

circumstances in the crime and the defendant has either stipulated to the facts underlying

those circumstances or they have been found true beyond a reasonable doubt.” (People v.

Flores, supra, 75 Cal.App.5th at p. 500; § 1170, subd. (b)(1)-(2).)

Under the amended statute, the truth of any facts in support of an aggravating

circumstance must be tried in a bifurcated proceeding, except where the evidence is also

relevant to prove or defend against a charged offense or enhancement. (§ 1170,

subd. (b)(2).) Further, the trial court is permitted to consider a defendant’s prior

convictions based on a certified record of conviction without submitting the prior

convictions to a jury. (§ 1170, subd. (b)(3).) The amendment to section 1170,

subdivision (b), applies retroactively to all cases not yet final because it has the potential

to lessen the punishment for a defendant’s crimes. (People v. Flores, supra,

75 Cal.App.5th at p. 500; People v. Garcia (2018) 28 Cal.App.5th 961, 972; In re

Estrada (1965) 63 Cal.2d 740, 744-745.)

8
 Here, it is undisputed that the trial court imposed the upper term for kidnapping

(§ 207, subd. (a), count 6) when resentencing defendant, and the People concede that

section 1170, subdivision (b), as amended, applies retroactively to this case. Thus, the

only contested issue on appeal is whether the statute requires us to again remand the

matter for resentencing. With respect to the application of the newly amended section

1170, subdivision (b), the opening brief argues only that: “The record does not make

clear what aggravating factors the trial court [relied] on to impose the upper term or

whether the aggravating factors upon which the trial court relied were admitted by

[defendant] or found beyond a reasonable doubt.”

As we explain, defendant has forfeited any claim of error based on the trial court’s

purported failure to state its reasons for imposing the upper term on count 6 at the time of

sentencing or resentencing. Additionally, we conclude that, even in the absence of

forfeiture, we would find no prejudice warranting reversal, even under the newly

amended provisions of section 1170, subdivision (b).

B. Defendant Has Forfeited Any Claim Based Upon the Trial Court’s Failure To State

Its Reasons and Any Such Error Was Harmless Even Absent Forfeiture

1. Forfeiture

“[C]omplaints about the manner in which the trial court exercises its sentencing

discretion and articulates its supporting reasons cannot be raised for the first time on

appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356; see People v. Wall (2017) 3 Cal.5th

1048, 1075 [“[A] defendant forfeits on appeal any ‘claims involving the trial court’s

failure to properly make or articulate its discretionary sentencing choices’ in the absence

9
of objection below.”].) The rule of forfeiture applies in “ ‘cases in which the state

reasons allegedly do not apply to the particular case, and cases in which the court

purportedly erred because it double-counted a particular sentencing factor, misweighed

the various factors, or failed to state any reasons or to give a sufficient number of valid

reasons.’ ” (People v. Boyce (2014) 59 Cal.4th 672, 730-731.)

Here, defendant contends on appeal that “[t]he record does not make clear what

aggravating factors the trial court [relied] on to impose the upper term.” However, the

record does not show that defendant raised any objection to the trial court’s statement of

reasons, either at the time of his original sentencing or resentencing. Notably, defendant

did not address the forfeiture issue in reply, even after the People raised that point in the

respondent’s brief. We agree with the People that any claim of error premised upon the

trial court’s failure to identify which aggravating factors it relied upon to impose the

upper term on count 6 have been forfeited and cannot support reversal or remand in this

case.

This is particularly true where, as here, the court was required to state the reasons

for selecting the upper term even prior to the changes to section 1170, subdivision (b),

effectuated by Senate Bill 567. (See former § 1170, subd. (b); Stats. 2007, ch. 3, §§ 1-3

(SB 40), eff. Mar. 30, 2007.) Despite this, the record shows that defendant did not raise

any objection. As a result, the claim is clearly forfeited.

2. Any Error Based on the Failure To State Reasons Was Harmless

“Where sentencing error involves the failure to state reasons for making a

particular sentencing choice, . . . reviewing courts have consistently declined to remand

10
cases where doing so would be an idle act that exalts form over substance because it is

not reasonably probable the court would impose a different sentence.” (People v. Coelho

(2001) 89 Cal.App.4th 861, 889; see People v. Scott, supra, 9 Cal.4th at p. 355 [trial

court’s error “in identifying or articulating its sentencing choices” does not require

reversal where “it is ‘not reasonably probable that a more favorable sentence would have

been imposed in the absence of error”]; People v. Jones (2009) 178 Cal.App.4th 853,

861 [“ ‘[A] reviewing court will set aside the 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.’ ”].)

The appropriate consideration is whether there is “a reasonable possibility that a

statement of reasons would have altered the trial judge’s conclusion or revealed

reversible error[.]” (People v. May (1990) 221 Cal.App.3d 836, 839.) On this point, our

Supreme Court’s decision in People v. Osband (1996) 13 Cal.4th 622 (Osband) is

instructive. In that case, the trial court erroneously stated it was relying upon the same

aggravating factor to impose both the upper term and consecutive sentences. (Id. at p.

728.) The trial court also failed to state reasons in support of a decision to impose a full

consecutive term instead of one-third the middle term on one of the counts. (Id. at p.

729.) In concluding that both errors were harmless, our Supreme Court explained that the

defendant failed to show a reasonable probability of a more favorable sentence because

the record disclosed the trial court “could have selected disparate facts from among those

it recited to justify the imposition of both a consecutive sentence and the upper term,” and

11
it “could have referred to the aggravating circumstances contained in the California Rules

of Court that it found true” if it had been pressed to do so. (Ibid.)

The reasoning in Osband applies equally to this case. The record shows no

shortage of aggravating circumstances referenced by the trial court at the time of

sentencing. As the People point out, the trial court’s prefatory statement explicitly refers

to at least three aggravating circumstances: (1) the crime involves great violence, great

bodily harm or the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1);

(2) defendant took advantage of a position of trust or confidence to commit the offense

(id., rule 4.421(a)(11); and (3) the defendant has previously engaged in violent conduct

that indicates a serious danger to society (id., rule 4.421(b)(1)). Defendant concedes that

the trial court’s prefatory statement can reasonably be interpreted as a reference to each

of these factors.

Additionally, moments earlier, the prosecutor brought to the trial court’s attention

the fact that defendant had an extensive criminal record with “over 20 other convictions,”

and that defendant was “on probation in at least one case . . . while committing our

current charged conduct.” In response, the trial court explicitly referenced defendant’s

“past criminal history” as part of its reason for denying defendant’s motion to dismiss

prison prior and strike enhancements. Accordingly, the trial court also clearly had before

it facts to support three additional aggravating circumstances: (1) defendant’s prior

convictions as an adult are numerous (Cal. Rules of Court, rule 4.421(b)(2));

(2) defendant has served prior terms in prison (id., rule 4.421(b)(3)); and (3) the

defendant was on probation when the crime was committed (id., rule 4.421(b)(4)).

12
 Thus, the record in this case clearly shows that there were a sufficient number of

aggravating circumstances specifically referenced 2 at the time of sentencing from which

the trial court could have selected to support the imposition of an upper term on count 6.

As such, the record does not suggest it is reasonably probable defendant would have

received a lesser sentence had the trial court actually been pressed to give a statement of

reasons and list which of those aggravating factors supported each decision.

C. Any Error Under the Newly Amended Section 1170 Was Harmless in This Case

In the alternative, defendant argues that remand is required because the trial court

did not rely upon aggravating factors that were found true by a jury, as required under the

newly amended section 1170, subdivision (b). However, we conclude that the record in

this case also shows any error in this regard was harmless.

1. Test for Harmless Error

Our Supreme Court has unambiguously expressed the view that “ ‘[f]ailure to

submit a sentencing factor to the jury, like failure to submit an element [of the crime] to

2 For this reason we are unpersuaded by defendant’s reliance on People v.
Cardenas (2007) 155 Cal.App.4th 1468. In that case, the trial court actually gave a
specific statement of reasons for its sentencing choice. (Id. at pp. 1479-1480.) It is in
this context that the Court of Appeal concluded that it could not rely on a factor that was
never referenced by any party or the trial court at the time of sentencing to affirm the
sentence. (Id. at pp. 1482-1483.) We agree that in cases in which the trial court actually
gives its specific reasons for a discretionary sentencing choice, our review should be
limited to the reasons actually given by the trial court. However, that is not the situation
before us in this case, as the trial court did not explain its reasons and, more importantly,
explicitly referred to the aggravating circumstances that could have supported the
exercise of its discretion at the time of sentencing.

13
the jury, is not structural error.’ [Citation.] Such an error does not require reversal if the

reviewing court determines it was harmless beyond a reasonable doubt, applying the test

set forth in Chapman v. California (1967) 386 U.S. 18.” (People v. French (2008)

43 Cal.4th 36, 52-53; People v. Sandoval (2007) 41 Cal.4th 825, 838 [“The denial of the

right to a jury trial on aggravating circumstances is reviewed under the harmless error

standard set forth in [Chapman]”]; People v. Mil (2012) 53 Cal.4th 400, 410 [same].)

Further, our Supreme Court has explained that such failure is harmless under the

Chapman 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.” (People

v. Sandoval, at p. 839; People v. Osband, supra, 13 Cal.4th at p. 728.)

There is no logical reason why this rule of prejudice would not apply here, simply

because the requirement to submit a sentencing factor to a jury is now mandated by

statute instead of decisional authority. Indeed, at least two published decisions by the

Courts of Appeal since the amendments to section 1170, subdivision (b), went into effect

have expressly held that the failure to submit the truth of aggravating circumstances to a

jury under the statute is governed by this standard. (People v. Flores, supra,

75 Cal.App.5th at p. 500; People v. Lopez (2022) 78 Cal.App.5th 459.)

2. Application

On appeal, the parties dispute whether the aggravating factors to which the trial

court appeared to allude in its prefatory statement would be found true beyond a

14
reasonable doubt if submitted to a jury.3 However, we do not believe it is necessary to

reach this question in order to conclude that at least one aggravating circumstance

unquestionably would have been found true in this case.

Even as amended, section 1170, subdivision (b), permits the trial court to consider

a 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).)

Decisional law at the time of section 1170, subdivision (b)’s amendment recognized that

the fact of a defendant’s prior conviction was sufficient to establish three circumstances

in aggravation without the need for a jury determination: (1) the defendant had been

convicted of prior offenses; (2) the defendant was on probation or parole at the time he

committed the current offense; and (3) the defendant served a prior prison term. (People

v. Towne (2008) 44 Cal.4th 63, 81-82.) “ ‘[T]he Legislature is deemed to be aware of

existing laws and judicial decisions in effect at the time legislation is enacted and to have

3 There are several problems with this approach. Both before and after this
prefatory statement, the trial court explained it was intended as a “bottom line” statement.
Thus, the trial court’s own words implied it was intended only as a summary and not an
exhaustive discussion of facts it considered in making its sentencing decisions. More
importantly, nothing in the record indicates whether the trial court even intended its
prefatory statement to refer to its decision to impose an upper term on count 6. Notably,
the statement could have equally referred to its decision to impose consecutive sentences.
(People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638 [“ ‘A decision to impose
consecutive sentences is a sentencing choice for which a statement of reasons is
required.’ ”].) Thus, to engage in the analysis suggested by the parties would first require
us to speculate that the trial court’s prefatory statement referred to its decision to impose
the upper term on count 6, as opposed to other discretionary choices that also required a
statement of reasons, and further to speculate that the prefatory statement constituted a
comprehensive statement of the trial court’s reasons.

15
enacted and amended statutes “ ‘in the light of such decisions as have a direct bearing

upon them.’ ” ’ ” (People v. Licas (2007) 41 Cal.4th 362, 367.) Thus, we presume that

the exception set forth in section 1170, subdivision (b)(3), which permits the trial court to

“consider the defendant’s prior convictions . . . without submitting the prior convictions

to a jury” incorporates this established understanding of which circumstances in

aggravation the fact of a prior conviction could be used to establish.

In this case, all three of the circumstances in aggravation that do not require

determination by a jury are present. The probation report identified that: defendant had

been convicted of over 20 criminal offenses as an adult; a majority of those convictions

occurred within five years of the commission of the offenses for which he was convicted

in the present case; defendant had served at least four terms in prison within the five

years prior to the commission of the offenses for which he was convicted in this case; and

defendant had been on probation at the time he committed the offenses in this case.

Defendant did not dispute these facts, despite the prosecutor’s reliance on them to argue

that his original sentence should be increased.

Each of these aggravating circumstances could have been established based upon a

certified record of conviction had defendant decided to dispute them, and the trial court

would not have been required to submit the truth of these factors to a jury before

considering them in support of imposing an upper term sentence. Thus, we need not

reach the question of whether a jury, applying a reasonable doubt standard would have

found other aggravating circumstances true, in order to conclude that at least one

aggravating circumstance would have unquestionably been found true in this case.

16
 Defendant contends he was not given the opportunity to contest the evidence in

support of any aggravating circumstances or to argue that the prosecution had not met its

burden under a reasonable doubt standard. We agree that in many cases, these

considerations should be seriously considered before finding the failure to submit an

aggravating circumstance to the jury harmless. However, the salience of the opportunity

to contest evidence or the higher standard of proof diminishes significantly when the

aggravating circumstances at issue are based upon the fact of a prior conviction.

As our Supreme Court has also explained, “ ‘[o]fficial government records clearly

describing a prior conviction presumptively establish that the conviction in fact occurred

. . . . Some evidence must rebut this presumption before the authenticity, accuracy, or

sufficiency of the prior conviction records can be called into question.’ ” (People v.

Delgado (2008) 43 Cal.4th 1059, 1066; see People v. Yim (2007) 152 Cal.App.4th 366,

371 [Court records pertaining to a prior conviction were sufficient to “demonstrate, as a

matter of law, that [the defendant] committed new offenses while on parole,” and “[n]o

trial court or jury could rationally find otherwise.”].) Defendant has not suggested how

he could have possibly contested the fact of his prior conviction, prison terms, or the fact

he was on parole at the time he committed the current offense.

More importantly, even if we took these matters into consideration, the record

suggests there would still be one aggravating circumstance unquestionably found true in

this case. Specifically, the fact defendant served four prior prison terms was initially

alleged in support of a sentencing enhancement pursuant to the former section 667.5.

(Perez I, supra, E073399.) As such, defendant already had the right to have a jury

17
determine the truth of these facts beyond a reasonable doubt in a bifurcated proceeding.

(People v. Fielder (2004) 114 Cal.App.4th 1221, 1232; People v. Tenner (1993) 6 Cal.4th

559, 566-567.) Because these facts were actually used to enhance defendant’s original

sentence, defendant also had every incentive to contest a true finding to the extent he

could. Defendant has not suggested how this outcome could possibly have been any

different under section 1170, subdivision (b). Since the prison prior enhancements were

stricken as a result of defendant’s first appeal—not based upon the fact that they did not

occur, but rather solely based upon a change in the law limiting the application of former

section 667.5, subdivision (b), to sexually violent offenses as defined in subdivision (b)

of section 6600 of the Welfare and Institutions Code4 —nothing would have precluded the

trial court from relying on this aggravating circumstance in support of imposing an upper

term at the time of resentencing had, it been asked to explain its reasons.

Finally, we disagree with defendant’s argument that even if at least one

aggravating circumstance would unquestionably have been found true, there is still a

possibility he could obtain a more favorable outcome on remand because the trial court

might still exercise its discretion to decline to deviate upwards in sentencing defendant on

count 6. While this consideration could justify remand in many cases (see People v.

Lopez, supra, 78 Cal.App.5th 459.), this is not the situation presented by the facts of this

case.

4 See Perez 1, supra, E073399 for a detailed explanation as to why defendant’s
prison priors were ordered stricken.

18
 Here, despite failing to specify its reasons for imposing the upper term on count 6,

the trial court unambiguously expressed its intent to sentence defendant to the maximum

sentence permissible under California law, stating: “I have a lot to say, but I’m going to

bottom line this for you . . . . I’m going to sentence you to the maximum amount of time

I believe I can sentence you to; okay? . . . [¶] . . . [¶] I do not believe that you are safe

out in the public. That is the bottom line.” Given this express intent, it is not reasonably

probable the trial court would exercise any discretion in favor of leniency on remand.

(People v. Flores (2020) 9 Cal.5th 371, 432 [Where the trial court explicitly stated it

thought defendant deserved “the most severe sentence available under California law—it

is clear the trial court would not have exercised its discretion,” to reduce defendant’s

sentence and “remand is not required”]; People v. Buycks (2018) 5 Cal.5th 857, 896,

fn. 15 [Generally, where “the resentencing court [has] imposed the maximum possible

sentence . . ., there is no need to remand the matter to the trial court to exercise its

sentencing discretion anew.”].)

Because we conclude that at least one aggravating circumstance in support of

imposing an upper term sentence on count 6 would have unquestionably been found true,

even under the newly enacted provisions of section 1170, subdivision (b), and because

the trial court clearly expressed its intent to sentence defendant to the maximum sentence

available under the law, any purported error under section 1170, subdivision (b), was not

prejudicial and does not warrant remand for resentencing.

19
D. Correction of Other Errors

Finally, defendant contends that the trial court erred in failing to properly

recalculate his custody credits at the time of resentencing, and that the abstract of

judgment mislabels his five-year enhancement under section 667, subdivision (a), as an

enhancement imposed under section 667.5, subdivision (b). The People concede and we

agree that both of these errors should be corrected on appeal. Additionally, the People

have noted that the trial court failed to properly strike defendant’s enhancements imposed

pursuant to former section 667.5 as this court previously instructed in Perez I, instead

purporting to strike only the punishment for these enhancements.

However, remand is not necessary in order to correct these errors. (People v.

Lopez (2019) 42 Cal.App.5th 337, 342 [appellate court may order enhancements stricken

and judgment modified without remand]; People v. High (2004) 119 Cal.App.4th 1192,

1200 [appellate court may order corrections to abstract of judgment to address clerical

errors].) As such, we will order the judgment modified to correct each of these errors.

IV. DISPOSITION

The judgment is modified to provide: (1) defendant’s five-year sentence

enhancement has been imposed pursuant to section 667, subdivision (a), instead of

section 667.5, subdivision (b); (2) defendant’s enhancements previously imposed

pursuant to section 667.5, subdivision (b), are stricken in their entirety; and (3) defendant

is entitled to 1,477 days of custody credits, reflecting 1,388 days of actual time served

and 89 days of conduct credits. The trial court is directed to prepare an amended abstract

20
of judgment reflecting these modifications and to forward a certified copy to the

Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

CODRINGTON
Acting P. J.

SLOUGH
J.

21