Filed 2/22/23 P. v. Allen CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B317629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA080966)
v.
DAMION ALLEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Manuel Almada, Judge. Reversed and
remanded.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Following his conviction for assault with a firearm and
associated enhancements, the trial court sentenced defendant
and appellant Damion Allen in January 2022, shortly after
amendments to the Determinate Sentencing Law went into
effect. Although the parties and the trial court were aware of the
revised law, defendant’s sentence was not in accordance with the
amendments. We cannot conclude the error was harmless, and
we therefore reverse for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. Defendant’s Crime
Defendant shot his stepfather, Ramon Bond, in the leg.
Bond, the only trial witness to the facts, testified as follows: On
January 12, 2021, Bond was home where he lived with his wife.
Defendant came over to visit; he wanted to wash his car and
asked to use Bond’s power washer. Defendant had trouble
setting up the power washer, and Bond went to help him.
According to Bond, “We got into an argument about it. Next
thing I know we – we got into it. Words were said. I grabbed
him. He grabbed me. I took him down to the ground. From
there, he asked me to let him up. I let him up. I was about to go
back in the house. He went to the car, got a gun and shot me in
the leg.” The bullet broke Bond’s femur; the pain was
excruciating.
Bond testified that although he laid hands on defendant
first, he did so because defendant “brought his fist up, and I
thought he was going to come at me and hit me.” Bond was
“bigger than” defendant, and he got the better of defendant in the
scuffle.
Whether Bond was facing defendant or facing away toward
the house when he was shot was disputed. Although Bond had
2
initially told the investigating sheriff’s deputy that he had not
seen the gun, he testified that, in fact, he had seen it. He
explained that, although he had turned to go back inside, when
he heard the car door open, he turned back around to face
defendant. The physical evidence is in accord; the bullet entered
the front part of Bond’s thigh, “maybe halfway between the front
and the left.”
2. Charges
Defendant was charged with assault with a firearm (Pen.
Code, § 245, subd. (a)(2)).1 Enhancements for personal use of a
firearm (§ 12022.5, subd. (a)) and causing great bodily injury
(§ 12022.7, subd. (a)) were also alleged.
3. Bond’s Reluctance to Appear
Trial was delayed in part because Bond was reluctant to
testify. At a hearing on July 19, 2021, the prosecutor announced
she was not ready for trial because Bond, although personally
served, was not present. The prosecutor explained to the trial
court that a jail phone call revealed that defendant had asked his
mother to tell Bond not to come to court.2 The prosecutor thought
“there is dissuading going on” and needed more time to make
sure Bond would appear and also to determine whether to file
additional charges against defendant “and possibly his mother.”
Defendant was never charged with dissuading.3
1 All further statutory references are to the Penal Code.
2 Bond testified that, at the time of trial, Bond and
defendant’s mother were going through a divorce.
3 The record is unclear whether charges were brought
against defendant’s mother.
3
4. The Trial
Bond ultimately appeared at trial and testified to the
circumstances of the shooting. The prosecution was permitted to
play the jail call at trial, as evidence of defendant’s consciousness
of guilt. Defendant had made a number of telephone calls to his
mother under his own booking number. Defendant made the call
in question, however, using a different booking number. A
sheriff’s deputy testified that the voices on this call belonged to
defendant and his mother, as they were identical to the two
voices on the calls defendant had made to his mother from his
own booking number. In this call, defendant said, “You gotta
keep your husband from coming to court,” and his mother
responded, “He ain’t going to court. He told you that?” Later, his
mother said, “He wasn’t coming to court anyway. He told the
[DA] he was going to be out of town.” Defendant asked if Bond
was out of town right then; his mother replied that he was. She
explained that “they been coming to the house and all of that, and
he ain’t been answering.” Defendant responded, “That’s good.”
His mother said, “I got this.” Defendant agreed, “You got this.
That’s why you’re the big dog. I’m just a pup.”
Trial proceeded, and on November 24, 2021, the jury found
defendant guilty of assault with a firearm. Both enhancements
(personal use of a firearm and great bodily injury) were found
true.
The court set the matter for sentencing.
5. The Parties’ Sentencing Memoranda
On January 4, 2022, defendant filed his sentencing
memorandum. Because the 2021 amendments to the sentencing
law had just gone into effect, defendant’s memo discussed the
4
effect of those amendments. Specifically, defendant addressed
three provisions of the new law:
(1) Midterm Sentencing. Section 1170, subdivision (b)(1)
now provides for a presumption of the middle term in a
sentencing triad, and subdivision (b)(2) provides that the court
may exceed 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.”4 Subdivision
(b)(3) provides, however, that “the court may consider the
defendant’s prior convictions in determining sentencing based on
a certified record of conviction without submitting the prior
convictions to a jury.”
(2) Low-term Sentencing. Section 1170, subdivision
(b)(6) itemizes certain circumstances in which the court shall
impose the lower term, “unless the court finds that the
aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.” One such circumstance is if
the defendant was a youth, defined as being under the age of 26,
at the time of the offense, if the defendant’s youth “was a
contributing factor in the commission of the offense.”
4 Section 1170.1, subdivisions (d)(1) and (d)(2) similarly
provide for the presumptive middle term for enhancements,
which may only be overcome by aggravating circumstances
stipulated to be true or found true beyond a reasonable doubt.
5
(3) Enhancements. Section 1385 now includes language
directing the dismissal of enhancements if in the furtherance of
justice, and itemizes circumstances a court should consider in
exercising its discretion to dismiss. These include: “Multiple
enhancements are alleged in a single case. In this instance, all
enhancements beyond a single enhancement shall be dismissed.”
(§ 1385, subd. (c)(2)(B).)5
Armed with these statutory amendments, defendant
argued for a lower or middle term sentence. Representing that
defendant “had just turned 20 a few days before the offense,”
counsel argued that defendant was entitled to the presumptive
low term. But should the court find the presumptive low term
did not apply, defendant asserted the presumptive middle term
surely did.
Counsel acknowledged there were circumstances in
aggravation the court could find true. He admitted the offense
was “violent and callous,” but argued that if the court chose to
impose sentence on the great bodily injury enhancement, it could
not then consider the infliction of bodily injury as an aggravating
5 The parties disagree as to the meaning of the quoted
language. Defendant reads this language standing alone, as a
mandate that, in all cases, all enhancements beyond a single
enhancement must be dismissed. The Attorney General responds
that, in context, multiple enhancements are simply a
circumstance the court shall consider in exercising its discretion
whether to strike enhancements, and, in the proper case, courts
still retain discretion to sentence on multiple enhancements.
(See People v. Anderson (2023) __ Cal.App.5th __ [2023 WL
1790118].) We need not resolve this dispute. Defendant was
sentenced on only one enhancement and, in any event, we are
remanding for resentencing.
6
factor. (§ 1170, subd. (b)(5) [court cannot impose the upper term
“by using the fact of any enhancement upon which sentence is
imposed”].) Counsel also admitted defendant had prior sustained
juvenile convictions “that are numerous or of increasing
seriousness,” and that he was on probation on two cases at the
time he committed this offense.6
Defendant argued there were also circumstances in
mitigation, specifically that Bond was the first to use physical
force, and Bond was larger and stronger than defendant.
Counsel argued that this constituted physical provocation. (Cal.
Rules of Court, rule 4.423(a)(2) [victim was instigator or provoker
is a mitigating circumstance].)7 As to rule 4.423(b), which
identifies mitigating circumstances specifically related to the
defendant, counsel conceded that none of them applied, but again
argued defendant’s age should result in the presumptive low
term. Counsel also added, “Mr. Bond was Defendant’s stepfather,
and Defendant’s mother can attest to the fact that Defendant was
repeatedly physically and verbally abused by Mr. Bond.”
6 Counsel told the court, “Defendant was on two grants of
felony probation at the time of the offense (one from June 2019,
and the other from February 2020), though there is no evidence
that he had violated the terms of his probation until the
commission of the instant offense in January 2021.” This is not
wholly accurate – the offense underlying the February 2020 grant
of probation appears to be based on a violation of the June 2019
grant of probation.
7 All further rule references are to the California Rules of
Court.
7
As to the enhancements, defendant argued that, under
section 1385 as amended, the court should impose only one. He
asked the court to dismiss the firearm enhancement, but, if the
court instead chose to dismiss the great bodily injury
enhancement, defense counsel sought the lower or middle term
on the firearm enhancement.
In its sentencing memorandum, the prosecution did not
seek a particular sentence, but argued in favor of finding
additional aggravating circumstances, including: the use of a
firearm (rule 4.421(a)(2)); and defendant’s attempt to dissuade
Bond from testifying (rule 4.421(a)(6)).
6. Sentencing Hearing and Sentence
Our record of the court’s expression of reasons for its
findings at the sentencing hearing is somewhat unclear.8 It
appears that the court made its own findings of fact regarding
aggravating circumstances, beyond those facts either stipulated
to, found true by the jury beyond a reasonable doubt, or related to
defendant’s prior criminal record.
8 According to the reporter’s transcript, the trial court stated,
“The court, as I indicated previously, has gone through both the
statutes at play here, case law, as well as the circumstances in
mitigation and aggravation in rendering a judgment here today
in sentencing. The court does find that while the probation
officer’s report may be considered in its entirety, the weight to
which this court will give any specific information that may or
may not be, depending on the level of credibility to this court, nor
does the court have substantial evidence presented during this
trial, and based on the probation officer’s record and the People’s
statement, as well as the defense’s statement, sentencing briefs
or memoradums, to find the following: [findings follow].” The
lack of clarity may be attributable to an error in transcription.
8
The court found the following factors in aggravation to be
true: (1) the crime involved great violence; defendant’s acts
disclosed a high degree of viciousness or callousness (rule
4.421(a)(1)); (2) the victim was particularly vulnerable, because
at the time he was shot, Bond was walking back into the garage
(rule 4.421(a)(3)); (3) defendant attempted to dissuade Bond from
testifying (rule 4.421(a)(6)); (4) defendant’s prior offenses show
violent conduct that indicates a serious danger to society (rule
4.421(b)(1)); (5) defendant’s prior convictions are of increasing
seriousness (rule 4.421(b)(3)); (6) defendant was on probation at
the time (rule 4.421(b)(4)); and (7) defendant’s prior performance
on probation was unsatisfactory (rule 4.421(b)(5)).
As to factors in mitigation, the court accepted defendant’s
argument that Bond had provoked the incident, and the court
found it to be the sole mitigating circumstance established in this
case.
The court concluded the mitigating circumstance was
greatly outweighed by the circumstances in aggravation: “The
court does find that aggravating circumstances as outlined here
not only outweigh the mitigating circumstances, but do so by a
substantial degree . . . .” The court stated that imposition of the
lower term would be contrary to the interests of justice. “And for
the reasons noted,” the court selected the upper base term of four
years. After again stating that it was weighing all facts and
circumstances, the court imposed the upper term of 10 years on
the firearm enhancement. The court believed it would not be in
the interests of justice to dismiss the great bodily injury
9
enhancement, but chose to stay the punishment on it, as 14 years
constituted “an appropriate sentence.”9
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant argues the trial court erred by
imposing the high term, on both the offense and the firearm
enhancement, in partial reliance on aggravating factors not
stipulated to by defendant or found true beyond a reasonable
doubt.10 The Attorney General agrees there was error, but
argues that it is harmless.
1. There Was Sentencing Error
The court imposed a high term sentence on both the offense
and the firearm enhancement by balancing seven aggravating
factors against a single factor in mitigation. The seven
aggravating factors included four factors related to the
defendant’s prior convictions and three that were not.
9 The court also imposed 1/3 the middle term, or 8 months, as
a concurrent term for each of defendant’s probation violations.
Defendant concedes that this was erroneous; a concurrent
sentence must be full-term. We agree. (People v. Matthews
(1999) 70 Cal.App.4th 164, 169, fn. 4.) Because we remand for re-
sentencing the trial court will have the opportunity to correct this
error. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [full
resentencing on remand].)
10 Defendant also argues the trial court erred by not properly
considering the presumptive low term due to his age, and in
staying, rather than dismissing, the great bodily injury
enhancement. As we remand for resentencing, we need not
address these issues.
10
The four factors related to defendant’s prior convictions,
were: (1) defendant’s prior offenses show violent conduct that
indicates a serious danger to society; (2) defendant’s prior
convictions are of increasing seriousness; (3) defendant was on
probation when he committed the current offense; and
(4) defendant’s prior performance on probation was
unsatisfactory. Defendant does not argue the court erred in
considering these factors.
We turn to the three factors unrelated to defendants’ prior
convictions.11 We briefly discuss each one:
1. The crime involved “great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).)
Here, by finding the great bodily injury enhancement true, the
jury found this aggravating circumstance true. While defendant
cautions against double counting (§ 1170, subd. (b)(5)), the court
imposed no sentence on the great bodily injury enhancement, so
the court was free to use this aggravating circumstance.
11 Defendant claims the trial court relied on five, not three,
factors that were not related to prior convictions. Specifically:
(1) the crime involved great violence; (2) the crime involved a
high degree of viciousness or callousness; (3) the victim suffered
serious injury; (4) the victim was particularly vulnerable; and
(5) defendant attempted to dissuade a witness. Under rule
4.421(a)(1), the first three factors defendant identifies are
actually a single factor – “The crime involved great violence,
great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness” is
a single aggravating circumstance. By our count, there were only
three aggravating circumstances not related to prior convictions,
not five.
11
2. The victim was particularly vulnerable. (Rule
4.421(a)(3).) The jury did not find the victim was particularly
vulnerable. The court made this finding, based on its conclusion
Bond’s back was turned when he was shot, a fact that was
disputed at trial.
3. Defendant attempted to dissuade Bond from
testifying. (Rule 4.421(a)(6).) The jury likewise did not make
this finding. While the prosecutor at one point indicated she was
contemplating adding this charge, she ultimately did not.
Neither of the latter two factors in aggravation was based
on facts found true by the finder of fact beyond a reasonable
doubt or subject to stipulation, and it was therefore error for the
trial court to rely on them. The trial court was, thus, entitled to
consider only infliction of great bodily injury, and the four factors
related to defendant’s prior convictions.
Having found error, we turn to the heart of the case:
whether the error is harmless.
2. The Error Was Prejudicial
In their briefs on appeal, defendant and the Attorney
General initially disputed the standard of review for the error of
a sentencing court imposing an upper term sentence in partial
reliance on an aggravating circumstance not found true by the
jury. (Compare People v. Lopez (2022) 78 Cal.App.5th 459, 465-
466 [harmless only if appellate court concludes a jury would have
found true beyond a reasonable doubt every factor on which the
court relied] with People v. Flores (2022) 75 Cal.App.5th 495, ___
[294 Cal.Rptr.3d 725, 729] [harmless as long as appellate court
concludes the jury would have found at least a single aggravating
circumstance true beyond a reasonable doubt].)
12
While the appeal was pending, newer authorities have
suggested a hybrid standard of review which the parties agree is
applicable. Under this standard, there are two inquiries. First,
in order to satisfy federal constitutional requirements, the
reviewing court must conclude beyond a reasonable doubt that
the jury, also applying the beyond a reasonable doubt standard,
unquestionably would have found true at least a single
aggravating circumstance. (People v. Zabelle (2022)
80 Cal.App.5th 1098, 1112 (Zabelle); see also People v. Dunn
(2022) 81 Cal.App.5th 394, 401 (Dunn), review granted Oct. 12,
2022, S275655. See People v. Sandoval (2007) 41 Cal.4th 825,
839.) Second, the court must determine, under the state-law
Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836),
whether the court would have imposed the upper term regardless
of the error. This involves a two-step examination. “In
particular, we must consider whether it is reasonably probable
that the trial court would have chosen a lesser sentence in the
absence of the error. [Citation.] Resolving this issue entails two
layers of review. We must first, for each aggravating fact,
consider whether it is reasonably probable that the jury would
have found the fact not true. We 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 those aggravating facts.”
(Zabelle, supra, at p. 1112 [italics added]; see also Dunn, supra,
at p. 401.)
There is no dispute that the first – federal constitutional –
prong of the standard has been met. Defendant concedes, as he
must, that at least one aggravating circumstance would have
been found true beyond a reasonable doubt by the jury. By
13
finding the great bodily injury enhancement true, the jury found
that aggravating circumstance had been established beyond a
reasonable doubt. (Rule 4.421(a)(1) [“crime involved great
violence, great bodily harm, threat of great bodily harm, or other
acts disclosing a high degree of cruelty, viciousness, or
callousness”].)
We therefore turn to the second prong, state law analysis.
One of the factors on which the trial court relied was that the
victim, Bond, was particularly vulnerable because his back was
turned when he was shot. This aggravating circumstance
requires a finding of particular vulnerability. “ ‘Particularly . . .
means in a special or unusual degree, to an extent greater than
in other cases. Vulnerability means defenseless, unguarded,
unprotected, accessible, assailable, one who is susceptible to the
defendant’s criminal act.’ ” (People v. Loudermilk (1987)
195 Cal.App.3d 996, 1007.) We conclude it is reasonably probable
a jury would have found this circumstance untrue for two
reasons. First, the facts were disputed. Bond was shot in the
front on the leg, and he testified that he had turned to look at
defendant when he heard the car door open. Second, whether
Bond was particularly vulnerable is a comparative standard; it
would require a degree of speculation as to whether the jury –
even if it found Bond’s back was turned – would have concluded
that circumstance rendered him more vulnerable than other
assault victims. (See People v. Wandrey (2022) 80 Cal.App.5th
962, 983, review granted Sept. 28. 2022, S275942 [finding
harmless error in the court’s reliance on particular vulnerability
would require some degree of speculation, given the quantitative
standard]; see also Butler v. Curry (9th Cir. 2008) 528 F.3d 624,
649-650 [expressing grave doubts that a jury would have found a
14
domestic violence victim particularly vulnerable simply because
her back was turned].)
We turn to the next aggravating circumstance – victim
dissuasion – and conclude it is not reasonably probable a jury
would have found it not true. It is apparent defendant placed the
call; the call was placed to his mother; the voice of the call
sounded like defendant; and defendant’s mother referred to the
caller as “son.” ~(Ex 4A, p. 5)~ In the call, defendant told his
mother, “You gotta keep your husband from coming to court.”
Defendant later repeated that the prosecution was going to send
his stepfather “a check, a victim of crime check. That’s the bait to
get him into the, um, to get him to come to court. You can take
the check, cash it do whatever, but tell him do not come to court.”
~(Ex 4A, p. 3)~ On these facts, no reasonable jury would have
concluded defendant did not attempt to dissuade his stepfather.
It is then our task to determine whether, in the absence of
the victim vulnerability aggravating circumstance, it is
reasonably probable that the trial court would have imposed a
lesser sentence. There is, however, an additional wrinkle:
Following the sentencing in this case, rule 4.423 was amended
(effective March 14, 2022) to expand the mitigating
circumstances. Specifically, subdivision (b), which identifies
“factors relating to the defendant,” was expanded from 6 factors
to 15. One of the new factors is that the defendant was under 26
at the time of the commission of the offense. (Rule 4.423(b)(6).)
Another newly added mitigating factor is that the defendant
“experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or
sexual violence and it was a factor in the commission of the
15
crime.”12 (Rule 4.423(b)(3).) We asked the parties to brief the
effect of this amendment on defendant’s appeal. Defendant
argued that the new factors should be considered. The
prosecution did not expressly take a position on whether the
amended rule should apply to cases pending on appeal, but
simply argued that remand is unnecessary because the trial court
already considered and rejected any mitigating effect of
defendant’s age and Bond’s alleged abusiveness.
The prosecution’s argument is unpersuasive. It is true that
the trial court rejected the presumptive low term with the
knowledge that defendant was 20 years old at the time of the
offense. But the court did not consider youth as a mitigating
circumstance in the sentencing calculus for determining whether
to impose the high- or mid-term, even though there was no
dispute as to defendant’s age. Defendant also argued in his
sentencing memorandum that the trial court should take into
account defendant’s claim that Bond had previously physically
and psychologically abused defendant. These factors at the time
of sentencing had not been itemized in the applicable rule of
court. The trial court did not consider whether or not those
mitigating factors applied to defendant.
In short, the trial court here balanced seven aggravating
circumstances against a single mitigating circumstance, and
12 Rule 4.423, as amended, also includes as mitigating factors
some of the factors added to section 1385, subdivision (b) as
circumstances the trial court should consider in determining
whether to dismiss an enhancement, including that multiple
enhancements are alleged, and that application of an
enhancement could result in a discriminatory racial impact. The
first occurred in this case; the second was alluded to in
defendant’s opening brief.
16
concluded the high term was appropriate for both the offense and
the enhancement. But, under the current law, the court should
not have relied on two of those aggravating circumstances
(particular vulnerability/dissuading a witness), although the
error in relying on one was harmless, and the court should have
considered at least one more mitigating circumstance
(defendant’s youth), and possibly several others. Under these
circumstances, we conclude it is reasonably probable the court
would have imposed a lesser sentence but for the errors we have
found.
DISPOSITION
The judgment is reversed and the matter remanded for
resentencing.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
17