People v. Duran CA4/1

Filed 1/18/23 P. v. Duran CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080916

Plaintiff and Respondent,

v. (Super. Ct. No. FVI20001761)

ERIC DURAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino
County, John P. Vander Feer, Judge. Judgment of conviction affirmed;
sentence vacated and remanded for resentencing.
Michael Allen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, A. Natasha Cortina, and Alan L.
Amann, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted Eric Duran of attempted murder (Pen. Code,1 §§
664/187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd.
(a)(1); count 2). The jury found true an allegation that Duran used a deadly
weapon during the commission of count 1 (§ 12022, subd. (b)(1)). The jury
found not true an allegation that count 1 was premeditated (§ 664, subd. (a))
and an allegation that Duran personally inflicted great bodily injury during
the commission of counts 1 and 2 (§ 12022.7, subd. (a)). In a bifurcated trial,
the court found not true an allegation that Duran had a prior serious felony
conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds.
(b)-(i), 1170.12). The court sentenced Duran to a total term of 10 years,
consisting of the upper term of 9 years for count 1, plus one year for the
deadly weapon allegation.
On appeal, Duran contends his conviction for attempted murder is not
supported by substantial evidence. Duran further contends the trial court

deprived him of his Sixth Amendment rights during a Marsden2 hearing by
failing to inquire into aspects of defense counsel’s decisions. Finally, Duran
contends remand for resentencing is warranted pursuant to Senate Bill No.
567 (2021-2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 518
(2021-2022 Reg. Sess.) (Assembly Bill 518). We agree Duran is entitled to
resentencing and remand for that purpose, but otherwise affirm the
judgment.

1 All further unspecified statutory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118.
2
 FACTUAL AND PROCEDURAL BACKGROUND
On February 20, 2020, Mario Villar, his brother, Eddie Ramirez, and
his sister-in-law, Anastacia Baca, stopped for gas at a gas station in
Victorville. Villar and Ramirez walked towards the entrance of the gas
station and discussed Ramirez’s upcoming wedding. Villar told Ramirez
“we’re going to get this,” in reference to Ramirez’s wedding-related activities.
Duran walked by Villar and Ramirez during their conversation and
asked “Get what? What are you going to get?” According to Ramirez, it
seemed as though Duran believed they were talking about Duran’s girlfriend
or wife. Neither Villar or Ramirez had previously met Duran or his wife.
Villar responded to Duran, “I’m having a conversation with my brother” and
“we’re not talking to you.” Duran stated, “You’re not going to get her. You’re
not going to take the mother.”
Duran then approached Villar with a four-to-six-inch knife, reached

over Villar’s shoulder, and “sliced” Villar’s neck.3 Villar started “freaking
out” and said, “you really stabbed me.” Duran remained in a fighting stance
and continued to jab the knife towards Villar’s and Ramirez’s face and
stomach areas. Villa ran towards Duran, who got into his car and drove
away with a female passenger. As Duran’s drove away, Villar threw a
squeegee at the car.
After Duran left the scene, there was “blood all over, down [Villa’s]
shirt, down to his neck area.” Villa was in “a lot of pain” and he estimated
his pain was a seven or eight on a scale of ten. Paramedics arrived and
treated a 45-millimeter laceration on the right side of Villar’s neck. Villar

3 At trial, the prosecution admitted into evidence video surveillance of
the incident as well as photographs of Villar’s injuries. We received these
exhibits as part of the record on appeal and have reviewed them in deciding
this appeal.
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then went to the emergency room where he received a shot and a bandage
that stayed on his neck for around two days. The laceration left a small scar
on Villar’s neck.
Duran was arrested the following day and gave a postarrest statement
that was admitted into evidence and played for the jury. Duran asserted that
Villar and Ramirez approached him at the gas station and said “we’re gonna
take her home to your mother.” Duran believed the two men were talking
about his girlfriend and that they were going to attack him. Duran
acknowledged that he put his knife to Villar’s neck, stating, “When I pulled
my knife out, I put it to his neck and I guess he moved or whatever.” Duran
stated he did not intend to cut Duran and asserted that he wielded the knife
in order to protect himself.
The jury found Duran guilty of counts 1 and 2, and, thereafter, the
court conducted a bifurcated court trial on the issue of whether Duran
suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior
strike conviction (§§ 667, subds. (b)-(i), 1170.12). The People submitted into
evidence a certified record of conviction that demonstrated Duran was
convicted of robbery in 1997 in Maricopa County, Arizona. The court
concluded that the elements of Duran’s robbery conviction from Arizona were
not equivalent to the elements of robbery in California, and, therefore, found
the allegations related Duran’s prior conviction to be not true.
At sentencing, the court imposed the upper term of nine years on count
1, and a consecutive one-year term for the great bodily injury allegation. The
court imposed a consecutive one-year term on count 2, but it stayed sentence
under section 654. The court relied on four aggravating circumstances at
sentencing, including allegations that (1) the crime involved great violence
and a threat of great bodily harm, (2) Duran’s conduct posed a serious danger

4
to society, (3) Duran sustained prior convictions that appeared to be
increasing in seriousness, and (4) Duran served a prior prison term. In
imposing an aggravated term, the court commented, “the factors in
aggravation so greatly outweigh the factors in mitigation, that the [c]ourt
finds the appropriate term to be the aggravated term . . . .”
Duran filed a timely notice of appeal.
DISCUSSION
I. Sufficiency of Evidence of Attempted Murder
Duran contends his conviction for attempted murder is not supported
by substantial evidence because there was insufficient evidence of his intent
to kill. In support of his contention, Duran argues that Villar’s and Ramirez’s
behavior during the offense demonstrated they did not subjectively believe
Duran acted with the intent to kill. He further argues the location of Villar’s
injury—Villar’s neck—does not support a conclusion that Duran acted with
the intent to kill. Finally, Duran argues the weapon and limited force used
during the offense do not support a conclusion Duran acted with the intent to
kill. We disagree with these contentions and conclude there is substantial
evidence to support the judgment.
In reviewing the sufficiency of the evidence to support a conviction, we
must determine “ ‘whether from the evidence, including all reasonable
inferences to be drawn therefrom, there is any substantial evidence of the
existence of each element of the offense charged.’ [Citations.]” (People v.
Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) This standard is deferential,
and, as such, we must “review the whole record in the light most favorable to
the judgment . . . .” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We
“ ‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept

5
logical inferences that the jury might have drawn from the circumstantial
evidence.’ [Citation.]” (People v. Flores (2020) 9 Cal.5th 371, 411.)
“To prove the crime of attempted murder, the prosecution must
establish ‘the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.’ [Citation.]”
(People v. Canizales (2019) 7 Cal.5th 591, 602.) Because “[d]irect evidence
of intent to kill is rare . . . ordinarily the intent must be inferred from the
statements and actions of the defendant and the circumstances surrounding
the crime.” (Ibid.) Circumstances relevant to the determination of intent to
kill include the conduct of the defendant prior to the attack, the nature of the
weapon used, the manner of the attack, and the seriousness of the injury.
(See People v. Lashley (1991) 1 Cal.App.4th 938, 945–946.) In evaluating this
evidence, “our sole function is to determine if any rational trier of fact could
have found the essential elements of the crime [of attempted murder] beyond
a reasonable doubt.” (Id. at p. 946.)
Although this was a close case, viewing the evidence in a light most
favorable to the judgment, as we must, we conclude there was sufficient
evidence to support Duran’s conviction for attempted murder. Duran’s
conduct prior to and during the attack support an inference he harbored the
intent to kill. The evidence showed that Duran engaged with Villa and
Ramirez for the purpose of confrontation. In his postarrest statement, Duran
admitted he spoke to Villa and Ramirez because he believed they were
talking about his girlfriend. Ramirez and Villa also testified Duran
mistakenly believed they were discussing Duran’s girlfriend or wife, which
prompted the confrontation.
The nature of the weapon and the manner with which it was used also
support an inference that Duran acted with the intent to kill. The jury found

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true an allegation that Duran’s weapon—a four-to-six-inch knife—was a
dangerous or deadly weapon. This allegation necessarily included a finding
that the knife was inherently deadly or dangerous, or used in such a way that
it was capable of causing and likely to cause death or great bodily injury.
(§ 12022, subd. (b)(1); CALCRIM No. 3145.) Duran admitted he intentionally
put this dangerous weapon to Villa’s neck, a particularly vulnerable part of
Villa’s body. After Duran sliced Villa’s neck, he continued his attack by
swinging the knife towards Villar’s and Ramirez’s face and stomach areas.
Thus, contrary to his argument, Duran’s use of this dangerous weapon in a
manner that injured Villa’s neck is indicative of his deadly intent.
That Villa’s injury was ultimately not life-threatening does not prove
that Duran did not harbor the intent to kill. (See People v. Gonzalez (2005)
126 Cal.App.4th 1539, 1552 [“[t]he fact that [appellant’s attack] missed [the
victim’s] heart and lungs was fortuitous rather than indicative of the absence
of an intent to kill.”].) Following the slice to Villa’s neck, Villa bled onto his
neck, hands, and shirt, and went to the hospital to receive treatment. While
Duran claimed he did not intend to cut Villa, his use of a dangerous weapon
in a manner that caused such substantial bleeding supports an inference that
Duran acted with the intent to kill. The trier of fact was free to reject
Duran’s claim that he did not intend to cut Villa, and the totality of the
evidence supports the conviction for attempted murder.
II. Denial of Marsden Motion
A. Background
On October 14, 2020, seven months prior to the start of his trial, Duran
made a Marsden motion to substitute his court-appointed attorney. The
court conducted a formal Marsden hearing and sought input from Duran and
his attorney. Duran complained about a lack of communication, telling the

7
court he had not been able to get ahold of his attorneys in the nine months
since his arrest. Duran further claimed that when he asked his attorney for a
drug treatment program, his attorney would not talk to him about a program
and told Duran, “we’re just going to go to trial.” Duran mentioned his strike
prior conviction and asserted that his attorney had not mentioned “striking
[the] strike” even though the prior offense was 26 years old.
In response, defense counsel explained that although he had taken over
Duran’s case from another attorney and therefore was newer to the case, he
had met with Duran multiple times. Defense counsel also explained that
Duran’s trial had been continued in order to accommodate requests by
Duran. Defense counsel proffered that Duran’s request for drug court and
the defense’s “counteroffer” had been presented to and rejected by the
prosecution.
After hearing from Duran and his attorney, the trial court found there
was no irreconcilable difference between Duran and his counsel, or ineffective
assistance of counsel, and denied Duran’s motion. The court confirmed that
Duran had previously requested drug court directly from the court and
informed Duran he was ineligible for the program due to the nature of his
charges. The court further explained to Duran that delays in his trial were
due, in part, to issues related to the Covid-19 pandemic.
B. Discussion
On appeal, Duran does not contend that he made a sufficient showing
in the trial court that he was entitled to substitute counsel. Rather, he
contends the trial court failed to inquire into the adequacy of defense
counsel’s representation. Specifically, Duran contends the trial court erred
by not making an inquiry into defense counsel’s reasons for failing to: (1)

8
move for pretrial diversion under section 1001.36; and (2) challenge Duran’s
strike prior.
Duran argues the court’s failure to inquire into these matters
constitutes an abuse of discretion because “[t]he court could not exercise
informed discretion without making these basic inquiries.” Duran contends
“it is impossible to determine that Duran was not prejudiced” by the court’s
purported errors because, had counsel investigated and “eliminat[ed]”
Duran’s strike prior, the prosecution would have likely offered Duran a more
“attractive plea offer.” These contentions are not supported by the record and
we find no error in the scope and sufficiency of the Marsden hearing.
A defendant may request a change in appointed counsel under Marsden
on the grounds the attorney is not providing adequate representation or the
“ ‘defendant and counsel have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.’ [Citation.]” (People
v. Memro (1995) 11 Cal.4th 786, 857.) “ ‘[A]t any time during criminal
proceedings, if a defendant requests substitute counsel, the trial court is
obligated, pursuant to [the] holding in Marsden, to give the defendant an
opportunity to state any grounds for dissatisfaction with the current
appointed attorney. [Citations.]’ ” (In re M.P. (2013) 217 Cal.App.4th 441,
456.) “[S]ubstitute counsel should be appointed when, and only when . . . the
court finds that the defendant has shown that a failure to replace the
appointed attorney would substantially impair the right to assistance of
counsel . . . .” (People v. Smith (1993) 6 Cal.4th 684, 696.) We review a trial
court's decision not to discharge appointed counsel for abuse of discretion.
(People v. Cole (2004) 33 Cal.4th 1158, 1190.)
Duran cites to People v. Groce (1971) 18 Cal.App.3d 292 (Groce), in
support of his contention that the trial court had an obligation to conduct a

9
further inquiry into Duran’s complaints against his attorney. In Groce, the
victim testified she received stitches at a hospital after she was assaulted by
the defendant. (Groce, at p. 296.) During the trial, the defendant asserted
that the victim was never assaulted and complained to the court that his
defense counsel didn’t “want to bring up the doctor's report” that would have
called into question the victim’s testimony. (Id. at p. 295.) The trial court
denied the defendant’s motion for substitute counsel without making any
inquiry of defense counsel, relying solely on its observations of defense
counsel's performance during the trial. (Id. at pp. 295–296.)
The Groce court reversed on the ground that the defendant had made
allegations of “specific important instances of alleged inadequacy of his
representation, i.e., the existence or nonexistence of stab wounds and other
pertinent evidence that could have been established by hospital records,” and
that the trial court erred by failing to inquire “into counsel's reason for not
producing the physician or his hospital records.” (Groce, supra, 18
Cal.App.3d at pp. 296–297.) The court further explained that the purpose of
trial court’s inquiry should not be to ascertain defense counsel’s reasons for
not following the defendant’s requests, but, rather, to determine whether the
attorney made a “knowledgeable election on the subject.” (Id. at p. 296.)
As a preliminary matter, we note it is unclear whether our Supreme
Court agrees that the duty to inquire described in Groce exists. (See People v.
Barnett (1998) 17 Cal.4th 1044, 1095 [observing that the duty to inquire
articulated in Groce has been called into question by at least one court].) But,
assuming such a duty does exist, it was not violated in this case. In Groce,
the trial court made “absolutely no effort to inquire into defense counsel's
alleged inadequacy” after the defendant made specific allegations relating to
hospital records. (Id. at p. 1095.) By contrast, here, the trial court conducted

10
a thorough inquiry during a formal Marsden hearing and appropriately
sought input from both Duran and his attorney.
Duran contends that his comments during the Marsden hearing
regarding drug treatment, which were general in nature, required the trial
court to specifically inquire from defense counsel whether they had sought

pretrial mental health diversion under section 1001.36.4 Duran argues the
trial court could not determine whether defense counsel was constitutionally
effective without this inquiry. We disagree.
In response to Duran’s comments expressing a desire for drug
treatment, defense counsel proffered they had sought alternative resolutions
in the case, including drug court, but these requests had been denied by the
prosecution. Duran’s comments about his drug use and desire for treatment,
and defense counsel’s response, did not suggest that Duran met the six
requirements for section 1001.36 diversion. Nor did his comments impose
upon the trial court a duty to inquire whether defense counsel considered
pursuing this program. The trial court was under no obligation to inquire
from defense counsel what speculatively available programs were being
sought simply because Duran stated he desired drug treatment.

4 To be eligible for mental health diversion under section 1001.36, “[t]he
defendant must make a prima facie showing on the following six eligibility
requirements for diversion: (1) defendant suffers from a mental disorder
identified in the most recent edition of the Diagnostic and Statistical Manual
of Mental Disorders (DSM); (2) defendant's mental disorder was a significant
factor in committing the charged offense; (3) an opinion from a qualified
mental health expert that defendant's symptoms would respond to mental
health treatment; (4) defendant consents to diversion and waives the right to
a speedy trial; (5) defendant agrees to comply with treatment as a condition
of diversion; and (6) defendant will not pose an unreasonable risk of danger
to public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)–(F).)”
(People v. Qualkinbush (2022) 79 Cal.App.5th 879, 886, fn. 3.)
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 Nor is there evidence in the record to support Duran’s contention that
defense counsel failed to “challenge” his strike prior in such a way that
required inquiry by the court. Duran argues that, had defense counsel
investigated and discovered favorable case law pertaining to his out-of-state
prior strike conviction, “the serious felony prior and prior strike would have
been dismissed.” However, Duran does not explain what pretrial mechanism
defense counsel could have pursued to seek a dismissal of the prior strike
conviction before the Marsden hearing. The trial court accurately explained
that there were limited motions available to be filed at that stage of the
criminal proceeding, which was, at that point, seven months prior to the start
of trial. Notably, defense counsel did successfully challenge the strike prior,
as evidenced by the contested trial in which the court found the allegation to
be not true.
Duran’s comments regarding his strike prior were related to a
purported lack of communication with his attorney, and the trial court
adequately addressed this issue during the Marsden hearing. Duran submits
pure speculation as to the offer the prosecution would have made had defense
counsel presented favorable case law related to his strike prior conviction to
the prosecution. There is no evidence in the record regarding what offers had
been made by the prosecution and whether the prior conviction factored in
such an offer.
In sum, the trial court did not err by failing to make specific inquiries
of defense counsel’s tactical decisions relating to the pursuit of a particular
diversion program, or the legal sufficiency of the strike prior. The trial court
acquired adequate information from Duran and his counsel to exercise
informed discretion, and the court did not abuse its discretion in denying

12
Duran’s motion. Having found no error, we need not reach the question of
prejudice.
III. Remand For Resentencing is Appropriate
A. Senate Bill 567
At the time of Duran’s sentencing, section 1170, former subdivision (b),
left it to the sentencing court’s “sound discretion” to select the appropriate
term within a sentencing triad that “best serves the interests of justice.”
(§ 1170, former subd. (b).) During the pendency of this appeal, the
Legislature enacted Senate Bill 567 (Stats. 2021, ch. 731, § 1.3), which
mandates that a sentencing court “may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding the middle
term . . . .” and such circumstances have either been stipulated to by the
defendant or found true beyond a reasonable doubt by a jury or the judge in a
court trial. (§ 1170, subds. (b)(1)-(2).)
The parties correctly agree that amendments to section 1170 made by
Senate Bill 567 apply retroactively to Duran’s case because the case was not
final on appeal before the enactments became effective on January 1, 2022.
(In re Estrada (1965) 63 Cal.2d 740, 742 [when the Legislature lessens the
penalty for a crime, an inference arises that it intended the lighter penalty to
apply provided the judgment is not final]; People v. Flores (2022) 73
Cal.App.5th 1032, 1039 [Senate Bill 567 applies retroactively to nonfinal

13
cases on direct appeal].) The parties disagree, however, as to whether

remand is required in Duran’s case.5
The Attorney General contends remand is not required because the
evidence established, beyond a reasonable doubt, that Duran sustained a

prior criminal conviction.6 Because the trial court may consider prior
convictions under section 1170, subdivision (b)(3), without submitting the
matter to a jury, they contend the court did not err when it relied on this
factor. The Attorney General further argues there is no reasonable
probability that Duran’s jury would have failed to find the remaining
aggravating factors true, and, thus, Duran cannot demonstrate prejudice
relating to his aggravated sentence. Finally, the Attorney General argues
that, assuming a sentencing error did occur, any such error was harmless
because the trial court expressed its intent to impose the maximum sentence
and would not have sentenced Duran to anything less than the term it
imposed.
Duran acknowledges his prior conviction for robbery was proved by a
certified record of conviction in accordance with section 1170, subdivision

5 We requested that the parties submit supplemental briefing addressing
the effect, if any, of People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez), People
v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct. 12, 2022, S275655,
and People v. Zabelle (2022) 80 Cal.App.5th 1098, to the resentencing issue
presented in this matter. We received letter briefs from the parties and have
reviewed their arguments in deciding this appeal.

6 In the respondent’s brief, the Attorney General relies on People v.
Flores (2022) 75 Cal.App.5th 495 (Flores), in support of their argument.
However, this court disagreed with Flores in Lopez (2022) 78 Cal.App.5th at
p. 466, fn. 11, and articulated a two-part standard in determining
harmlessness. Accordingly, we decline to apply the standard of harmlessness
articulated in Flores and analyze the resentencing issue under the standards
of harmlessness discussed further in this opinion.
14
(b)(3). Thus, he does not dispute that the court permissibly relied on this
factor in imposing his sentence. However, he contends that the remaining
factors relied upon by the court were not proven to the requisite degree of
certainty articulated in People v. Watson (1956) 46 Cal.2d 818. He further
argues the record does not establish that the court would have imposed the
same aggravated sentence had it relied solely on Duran’s prior conviction.
We agree and conclude remand is required for resentencing in conformity
with recent amendments made to section 1170.
In Lopez, supra, 78 Cal.App.5th at p. 466, fn. 10, this court concluded
“the presence of a single valid aggravating factor is insufficient to permit a
reviewing court to affirm a sentence imposed in violation of the revised
version of section 1170, subdivision (b).” Rather, sentencing errors under
newly amended section 1170 are subject to a harmless error analysis. (Lopez,
at p. 465.) “[W]here a sentencing factor must be found true by a 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 . . . .”
(Ibid.)
Lopez established a two-part standard in determining 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

15
defendant or proven to a jury . . . .” (Lopez, supra, at pp. 465–466.) If every
factor on which the trial court relied was proven beyond a reasonable doubt,
the defendant has not suffered prejudice. (Ibid.)
If every factor on which the trial court relied was not proven beyond a
reasonable doubt, 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, supra, at
p. 467, fn. 11.)
Our sister courts in People v. Dunn (2022) 81 Cal.App.5th 394, review
granted Oct. 12, 2022, S275655 (Dunn), and People v. Zabelle (2022) 80
Cal.App.5th 1098 (Zabelle), articulated similar, but slightly different,
standards in determining harmlessness. In Dunn, the court established the
following two-part test: “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 all
aggravating circumstances relied upon by the trial court would have been
proved to the respective standards, any error was harmless. If not, the
reviewing court moves to the second step of Lopez, (2) whether there is a
reasonable probability that the trial court would have imposed a sentence

16
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, the reviewing court vacates the
sentence and remands for resentencing consistent with section 1170,

subdivision (b).”7 (Dunn, at pp. 409–410.)
In Zabelle, the court established a similar two-part standard of
harmlessness. (Zabelle, supra, 80 Cal.App.5th at pp. 1110–1113.) Under the
first part of the test, the reviewing court must: (1) identify one aggravating
factor relied upon by the trial court that would have been found true by the
jury beyond a reasonable doubt; and (2) for the remaining factors, determine
whether it is reasonably probable that a jury would have found the remaining
aggravating factors true. (Ibid.) The reviewing court “must then, with the
aggravating facts that survive this review, consider whether it is reasonably
probable that the trial court would have chosen a lesser sentence had it
considered only these aggravating facts.” (Id. at p. 1112.)
Here, the Attorney General acknowledges the trial court did not rely
solely on Duran’s prior criminal conviction in imposing an aggravated term.
Specifically, they note that the trial court considered the following
aggravating factors: (1) Duran’s crime involved great violence and threat of
great bodily harm; (2) Duran’s conduct indicated he was a serious danger to
society; (3) Duran’s prior conviction as an adult, and the fact his crimes were

7 The Dunn court further clarified that step (1)(a) is satisfied if the trial
court, “relied upon an aggravating circumstance that relied only upon the fact
of defendant's prior convictions and a certified record of defendant's
convictions was admitted, or defendant admitted the facts underlying an
aggravating circumstance.” (Dunn, at p. 410, fn. 13.) In this case, the
prosecution introduced a certified record of Duran’s prior conviction during
the court trial on Duran’s prior strike and prior serious felony conviction,
which would satisfy step (1)(a) in the test articulated in Dunn.
17
increasing in seriousness; and (4) Duran had served a prior prison term.
None of these factors were submitted to the jury or admitted by Duran, and,
aside from the existence of the prior criminal conviction, these factors were
not proven beyond a reasonable doubt.
Nor does the record reflect there is a reasonable probability that a jury
would have found the remaining aggravating factors, aside from the prior
criminal conviction, to be true. The jury found not true the allegations that
count 1 was premeditated and that Duran personally inflicted great bodily
injury during the commission of his offenses. While substantial evidence may
support Duran’s intent to kill, the record also demonstrates that the
altercation between Duran and Villa involved a single cut to Villa’s neck and
lasted only seconds. These facts, along with the jury’s not true findings on the
allegations, limit the probability the jury would have found true the
aggravating factors relied upon by the trial court, including that Duran used
great violence and a threat of great bodily injury, or posed a serious danger to
society. Accordingly, since at least some of the factors relied upon by the trial
court were not proven as required by section 1170, subdivision (b), under the
standards articulated in Lopez, Dunn, or Zabelle, Duran’s sentence must be
vacated unless the record reflects the trial would have imposed the same
sentence had it relied solely on permissible aggravating factors.
We cannot conclude to the degree of certainty required under Watson
that the trial court would have selected the upper term had it relied on the
permissible aggravating factors available to the court. The trial court
acknowledged the presence of mitigating factors, including Duran’s
demonstration of remorse and a recognition of the wrongfulness of his
actions. While the trial court found the circumstances in aggravation greatly
outweighed the circumstances in mitigation, the trial court could not

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permissibly rely on most of the aggravating factors it considered—namely the
degree of violence and threat of great bodily harm inflicted upon the victim,
as well as Duran’s dangerousness to society. Consequently, we cannot
conclude the error in this case was harmless and we remand for resentencing.
B. Assembly Bill 518
At the time of Duran’s sentencing, former section 654, subdivision (a)
required that a defendant who committed an act punishable by two or more
provisions of law be punished under the provision that provided for the
longest possible term. (§ 654, former subd. (a).) Effective January 1, 2022,
Assembly Bill 518 (Stats. 2021, ch. 441, § 1) amended section 654 to permit
an act or omission punishable under two or more provisions of law to “be
punished under either of such provisions.” (§ 654, subd. (a).) Accordingly,
under amended section 654, a trial court has the discretion to punish a
defendant under any of the offenses for which they were convicted.
Assembly Bill 518 applies retroactively to Duran’s case because the
case was not final on appeal before the enactment became effective on
January 1, 2022. (People v. Sek (2022) 74 Cal.App.5th 657, 673 [Assembly
Bill 518 applies retroactively to nonfinal cases on direct appeal].) We
disagree with the Attorney General’s contention that the record clearly
establishes remand would be futile because the trial court would have
imposed the maximum sentence had it been aware of the full scope of its
sentencing discretion. And, having already concluded we must vacate
Duran’s sentence and remand for resentencing pursuant to Senate Bill 567,
the trial court may revisit all of its prior sentencing decisions, including
amendments to section 654 made by Assembly Bill 518. Accordingly, remand
is also appropriate so the trial court may consider the ameliorative
sentencing changes made pursuant to Assembly Bill 518.

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 DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
for resentencing. In all other respects, the judgment is affirmed.

O'ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.

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