Filed 2/20/24 P. v. Aguilar CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B326991
(Super. Ct. No. PA075131)
Plaintiff and Respondent, (Los Angeles County)
v.
CRUZ AGUILAR,
Defendant and Appellant.
Cruz Aguilar appeals from the judgment entered after he
was resentenced pursuant to Penal Code section 1172.6.1 The
trial court vacated his prior conviction of attempted murder,
redesignated it as a conviction of simple kidnapping, imposed the
upper term for that conviction, and imposed consecutive terms for
first degree robbery and a firearm-use enhancement.
Appellant claims the trial court erred in redesignating the
attempted murder conviction and imposing a prison term for the
1 Unless otherwise stated, all statutory references are to
the Penal Code.
firearm-use enhancement. In addition, appellant argues that, by
imposing prison terms for both kidnapping and robbery, the court
violated section 654’s proscription against multiple punishment.
Finally, appellant contends the trial court erroneously
imposed the upper term for kidnapping. If we conclude that he
forfeited this contention because his counsel failed to object,
appellant maintains he was denied his constitutional right to
effective assistance of counsel. We affirm.2
Section 1172.6
Section 1172.6 was added to the Penal Code by Senate Bill
No. 1437 and became effective on January 1, 2019. (Stats. 2018,
ch. 1015, § 4.) Section 1172.6, subdivision (a) provides in relevant
part, “A person convicted of . . . attempted murder under the
natural and probable consequences doctrine . . . may file a
petition with the court that sentenced the petitioner to have the
petitioner’s . . . attempted murder . . . conviction vacated and to
be resentenced on any remaining counts when” certain conditions
apply.
After a facially valid section 1172.6 petition is filed and
“[a]fter the parties have had an opportunity to submit briefings,
the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (Id., subd.
2 On December 9, 2022, two days after appellant was
resentenced, he filed in the superior court a timely notice of
appeal from the judgment. On March 23, 2023, appellant filed in
the superior court a second notice of appeal from the same
judgment. The second notice is a nullity. The operative notice of
appeal is the first notice.
2
(c).) If an order to show cause is issued, the court shall conduct
an evidentiary hearing to determine the petitioner’s eligibility for
relief. (Id., subd. (d)(1).) “At the hearing . . . the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of . . . attempted murder . . . .” (Id.,
subd. (d)(3).) “If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
(Ibid.)
Factual Background
Appellant and his co-defendants, David Valle and Carmen
Garcia, were tried before a jury. During the trial, appellant and
Garcia agreed to a plea bargain. The trial of Valle continued, and
the jury convicted him.3
After the trial court had scheduled an evidentiary hearing
on appellant’s section 1172.6 petition, appellant filed a brief
containing a statement of facts based on the evidence presented
at the jury trial. We quote below from the brief’s statement of
facts. We omit citations to the reporter’s transcript of the trial.
“On November 1, 2012, victim Avila agreed to pick up
$6000 for a drug dealer . . . . Avila called [appellant] and they
arranged to meet . . . . [Appellant] arrived in a white GMC Tahoe
with co-defendant Valle. When [appellant] realized that Avila
did not bring drugs to give him, he made a phone call. Shortly
thereafter a man wearing a mask, whom Avila later referred to
3 Valle appealed from his judgment of conviction. We
modified the judgment and affirmed it as modified. (People v.
Valle (July 22, 2015, B257673) [nonpub. opn.].) We take judicial
notice of the Valle opinion. (Evid. Code, §§ 452, subd. (d), 459.)
3
as ‘Palmdale,’ arrived in [a] green Toyota Corolla. [Appellant]
pointed a semi-automatic handgun with an extended magazine at
Avila. [Italics added.] Valle and Palmdale also pointed guns at
Avila. [Appellant] ordered Avila to get back into his car but
ordered him to sit in the passenger seat. Palmdale drove Avila’s
car, with Valle in the back seat. Palmdale took Avila’s keys,
phone and wallet. . . .
“After driving for approximately an hour, Palmdale stopped
on a dead end street. [Appellant] pulled beside them. A woman
got out of [appellant’s] car. The men ordered [Avila] into
[appellant’s] car. The woman drove Avila’s car away. . . .
“[Appellant] drove to a strip mall. Palmdale ordered Avila
into a Mitsubishi driven by an unknown man. Valle and
Palmdale got into the Mitsubishi with Avila. [Appellant] drove
away.
“. . . They drove in the Mitsubishi to a donut store with an
ATM machine where Palmdale was able to withdraw money
using Avila’s bank card.
“Next, they took Avila to a motel in Sylmar. . . . [Appellant]
met them there. . . .
“[¶] . . . [Appellant] . . . was . . . upset with Avila. [He]
ordered Avila to call someone to get drugs. . . . [Appellant]
continued to press Avila for drugs and asked him whether he had
drugs at his house. Avila lied and said there were a lot of people
at the house besides his wife and children.
“[¶] . . .
“[Appellant] left the motel room about 30 minutes to an
hour before Avila and the remaining defendants left the motel
room and got into Avila’s car. [Appellant] was not seen again by
Avila after [appellant] left the motel room . . . .
4
“Valle and Garcia then forced Avila into his own car, that
had been moved into the motel parking lot. . . . Garcia drove
Southwest for some distance before exiting the freeway. He
looked around before he stopped and ordered Avila out of the car.
As Avila walked away as instructed, Valle tried to shoot him with
a silver revolver. The gun malfunctioned. Avila pled for his life.
Valle pulled a semi-automatic gun from his waistband and shot
at Avila five times, hitting him in his buttocks, waist and legs.”
Avila survived the shooting.
Appellant’s Plea Bargain
An information charged appellant with 11 counts of various
felony offenses. They included attempted first degree murder
(§§ 664, 187, subd. (a)), “first degree automated teller machine
[ATM] robbery” (§§ 211, 212.5, subd. (b)), and simple kidnapping
(§ 207, subd. (a)).
Appellant pleaded no contest to attempted second degree
murder and first degree ATM robbery. He admitted a gang
allegation within the meaning of section 186.22, subdivision
(b)(1)(C). He was sentenced to prison for 20 years, four months:
the upper term of nine years for attempted murder, plus
consecutive terms of 10 years for the gang enhancement and one
year, four months for the robbery. Pursuant to the plea bargain,
the court dismissed the remaining charges and enhancements,
including simple kidnapping and an allegation that appellant had
personally used a firearm within the meaning of section
12022.53, subdivision (b).
5
Appellant’s Resentencing Pursuant to Section 1172.6
The trial court scheduled the matter for an evidentiary
hearing (§ 1172.6, subd. (d)(1)), but the hearing did not occur.
Appellant acknowledges that “neither side objected to the waiver
of an evidentiary hearing.”
On the date set for the evidentiary hearing, the People
conceded that appellant was eligible for resentencing on the
attempted murder conviction. The trial court vacated that
conviction, redesignated it as a conviction of the target offense of
simple kidnapping, and imposed the upper term of eight years.
The court imposed a consecutive 10-year term for the previously
dismissed allegation that appellant had personally used a firearm
within the meaning of section 12022.53, subdivision (b). In
addition, the court imposed a consecutive term of one year, four
months for the first degree robbery conviction. Accordingly,
appellant’s aggregate sentence was 19 years, four months – one
year less than the original sentence.
The court stated that “[t]here were multiple target
offenses” and that it was trying “to keep alive the letter and spirit
of [the plea] agreement.”
Redesignation of Attempted Murder
Conviction as Conviction of Simple Kidnapping
Section 1172.6, subdivision (d)(3) provides that where, as
here, a conviction of attempted murder is vacated, “the petitioner
shall be resentenced on the remaining charges.” Because of the
plea bargain, the only remaining charge against appellant is the
first degree robbery count. Appellant claims “the superior court
was obligated to resentence appellant on that count alone” and
could not redesignate the attempted murder conviction as a
conviction of simple kidnapping.
6
Subdivision (d)(3) should not be viewed in isolation from
the other subdivisions of section 1172.6. “ ‘Rules of statutory
construction obligate us to read a statute, and its various
subdivisions, as a cohesive whole.’ ” (People v. Watson (2021) 64
Cal.App.5th 474, 487 (Watson).) Section 1172.6, subdivision
(d)(3) must be read together with subdivision (e), which provides:
“The petitioner's conviction shall be redesignated as the target
offense or underlying felony for resentencing purposes if the
petitioner is entitled to relief pursuant to this section, murder or
attempted murder was charged generically, and the target offense
was not charged.” (Italics added.)
Appellant asserts that section 1172.6, subdivision (e) is
inapplicable. He argues that “the trial court did not have the
authority to redesignate appellant’s conviction [of simple
kidnapping] as a target offense or underlying felony because the
target offense [of ATM robbery] had already been charged.”
We disagree. A target offense is an “intended crime.”
(People v. Medina (2009) 46 Cal.4th 913, 920.) There were two
target offenses – robbery and kidnapping – because appellant
intended to commit both crimes. Appellant acknowledges that he
“was charged with the target offenses of kidnapping and
robbery.” The prosecutor dismissed the kidnapping charge
pursuant to a plea bargain, not for lack of evidence.4 As a result
4 However, before taking appellant’s plea, the trial court
noted that there was a problem with the victim’s identification of
appellant: “[I]n hearing the evidence presented at trial, there
were certain factual problems with the People’s case as it
pertained to [appellant]. Because the victim, Mr. Avila,
identified either positively or tentatively . . . two other
individuals who had the moniker of ‘Crook’ [appellant’s moniker]
before he positively identified [appellant]. So there were some
7
of the dismissal, the kidnapping offense was no longer charged.
Therefore, section 1172.6, subdivision (e) authorized the trial
court to redesignate appellant’s attempted murder conviction as a
conviction of the uncharged target offense of kidnapping.
Appellant could be resentenced on both this uncharged offense
and the remaining charge of robbery (Id., subd. (d)(3)). (See
People v. Silva (2021) 72 Cal.App.5th 505, 530 (Silva) [“If a judge
may redesignate a murder as a crime that was never charged, as
is implicit in subdivision (e), we see no reason why he or she
cannot redesignate a murder as a charge once made but dropped
in circumstances where the dismissal was not for lack of
evidence”].)
Watson, supra, 64 Cal.App.5th 474, shows that the trial
court was not precluded from resentencing appellant on both
simple kidnapping and first degree ATM robbery. In Watson the
defendant pleaded guilty to second degree murder. Based on
section 1172.6, he petitioned to vacate the conviction. The trial
court “vacated his murder conviction, and redesignated that
conviction as two offenses: first degree burglary and first degree
robbery.” (Watson, supra, at p. 477.) The defendant “argue[d]
the plain language of section [1172.6] permits a court to
designate only one underlying felony and, therefore, his sentence
for both burglary and robbery is unauthorized.” (Id. at pp. 477-
478.)
The appellate court “conclude[d] the trial court properly
redesignated the murder conviction as both burglary and
robbery.” (Watson, supra, 64 Cal.App.5th at p. 478.) It reasoned:
“[R]eading section [1172.6], subdivisions (d)(3) and (e) together
identification issues with regard to [appellant’s] case. And based
on that, the court will accept the disposition.”
8
reflects a legislative intent to grant trial courts flexibility in
designating the underlying [or target] offense for resentencing
purposes. [Defendant’s] contention that subdivision (e) requires a
court to redesignate a vacated murder conviction as only one
underlying [or target] felony—even when the evidence shows
beyond dispute the commission of more than one underlying [or
target] felony—would run directly contrary to this principle.” (Id.
at p. 488.)
The appellate court continued: “[B]y vacating [defendant’s]
murder conviction and designating that conviction as first degree
burglary and robbery, the [trial] court . . . calibrated [defendant’s]
punishment to his culpability for committing both of those
crimes. To prohibit the [trial] court from doing so on the facts of
this case would run contrary to the express purposes of the
statute. Further, adopting [defendant’s] interpretation of section
[1172.6], subdivision (e) would bestow a windfall on [defendant],
who has already been afforded the ‘“ameliorative benefits”’ of the
statute.” (Watson, supra, 64 Cal.App.5th at p. 492; see also Silva,
supra, 72 Cal.App.5th at p. 531 [in redesignating two vacated
murder convictions pursuant to section 1172.6, subdivision (e),
“the resentencing court could properly find Silva guilty of six
counts of robbery or attempted robbery . . . and could sentence
him consecutively on those counts in lieu of only two counts of
murder”].)
The Watson court noted that section 1172.6, subdivision
(e)’s provision that the “conviction shall be redesignated as the
target offense or underlying felony” (italics added) did not limit
the redesignation to a single target or underlying offense: “Penal
Code section 7 . . . provides that when construing words and
phrases throughout the Penal Code, ‘the singular number
9
includes the plural, and the plural the singular. . . .’ [Citation.]
‘The rule of construction enunciated in [Penal Code] section 7 is
no mere rubric—it is the law.’ [Citation.] . . . Applying the rule in
Penal Code section 7 here supports the conclusion that
‘underlying felony’ [or ‘target offense’] is susceptible of either
singular or plural meaning depending on context.” (Watson,
supra, 64 Cal.App.5th at p. 485.)
Imposition of Firearm Enhancement upon Resentencing
Appellant argues that the trial court erroneously imposed a
10-year consecutive term for the firearm-use enhancement:
“There is a settled distinction in our penal law between an
‘offense’ and a sentence enhancement, and the phrase ‘target
offense or underlying felony’ in Penal Code section 1172.6,
subdivision (e) does not authorize a court to include a sentence
enhancement when it redesignates a vacated conviction as the
target offense or underlying felony for resentencing purposes
under that subdivision.”
Appellant’s position is supported by People v. Arellano
(2022) 86 Cal.App.5th 418 (Arellano). There, the Court of Appeal
concluded that, “through the specific language [the Legislature]
chose for section 1172.6, subdivision (e), [it] stated that ‘for
resentencing purposes,’ the newly redesignated conviction shall
include only the offense upon which liability for murder or
attempted murder was based.” (Id. at p. 436.) “‘“[A] sentence
enhancement is not equivalent to a substantive offense . . . .”’”
(Id. at p. 435.) Therefore, “[b]ecause the trial court redesignated
Arellano’s conviction and resentenced him under the purview of
section 1172.6, subdivision (e), it could not properly include the
firearm enhancement (§ 12022.5, subd. (a)) in Arellano’s new
conviction and sentence.” (Id. at p. 437.)
10
In Arellano the California Supreme Court granted review
on March 15, 2023 (S277962). According to the Supreme Court’s
news release dated March 17, 2023, Arellano “presents the
following issue: When a defendant obtains resentencing of a
conviction under Penal Code section 1172.6, subdivision (e), is the
trial court permitted to impose not only the target offense or
underlying felony, but also corresponding enhancements?”
We decline to follow Arellano. Instead, we follow People v.
Howard (2020) 50 Cal.App.5th 727 (Howard), disagreed with in
Arellano, supra, 86 Cal.App.5th at p. 434.) Howard’s reasoning is
as follows: “When the court redesignates the murder conviction
as the underlying felony (§ [1172.6], subd. (e)), may the court
impose enhancements relative to that felony? . . . Consistent with
the legislative goal of placing Howard after resentencing in a
situation where the murder and any related enhancements no
longer exist, Howard’s resentencing may not include count-
specific enhancements unless the People establish them related
to the underlying felony by evidence presented at the hearing on
the section [1172.6] petition. Our conclusion finds support in the
principle that ‘[t]o the extent the court is determining the
sentence to impose after striking the murder conviction, the
traditional latitude for sentencing hearings should be allowed.’
[Citation.]” (Id. at pp. 741-742.)
Howard continued: “In our view, the violent felony
designation and arming enhancement were proper because the
evidence established those enhancements relative to the
underlying felony, burglary. [¶] When a court resentences a
defendant pursuant to section [1172.6], the only limitation is the
new sentence cannot be greater than the original sentence. (§
[1172.6], subd. (d)(1).)” (Howard, supra, 50 Cal.App.5th at p. 742,
11
italics added.) Section 1172.6, subdivision (d)(1) provides,
“Within 60 days after the order to show cause has issued, the
court shall hold a hearing to determine whether to vacate the . . .
attempted murder . . . conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence.” (Italics added.)
Here, the parties waived an evidentiary hearing. The trial
court relied on briefs submitted by the parties. Appellant’s brief
contained a statement of facts in which he admitted that he had
personally used a firearm: “[Appellant] pointed a semi-automatic
handgun with an extended magazine at Avila. Valle and
Palmdale also pointed guns at Avila.” Accordingly, the trial court
properly imposed the previously dismissed section 12022.53,
subdivision (b) firearm-use enhancement as to the kidnapping
conviction.
Applicability of Section 654
Appellant claims section 654 bars punishment for both the
kidnapping and ATM robbery convictions. Section 654,
subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law may be punished
under either of such provisions, but in no case shall the act or
omission be punished under more than one provision.” “‘[S]ection
654 applies not only where there was but one act in the ordinary
sense, but also where there was a course of conduct which
violated more than one statute but nevertheless constituted an
indivisible transaction. . . . If all the offenses were incident to one
objective, the defendant may be punished for any one of such
offenses but not for more than one.’ [Citation.] Whether offenses
12
are ‘indivisible’ for these purposes is determined by the
‘defendant’s intent and objective . . . .’ [Citation.] ‘If [a]
defendant harbored “multiple criminal objectives,” which were
independent of and not merely incidental to each other, he may
be punished for each statutory violation committed in pursuit of
each objective, “even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.”’
[Citation.] The application of section 654, thus, ‘turns on the
defendant’s objective in violating’ multiple statutory provisions.
[Citation.] Where the commission of one offense is merely ‘“a
means toward the objective of the commission of the other,”’
section 654 prohibits separate punishments for the two offenses.”
(People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.)
The trial court said that section 654 does not bar
punishment for both the ATM robbery and kidnapping because
“they are separate indivisible offenses.” The court apparently
meant to say “divisible” instead of “indivisible.” “We review
under the substantial-evidence standard the court's factual
finding, implicit or explicit, of whether there was a single
criminal act or a course of conduct with a single criminal
objective. [Citations.] As always, we review the trial court’s
conclusions of law de novo.” (People v. Moseley (2008) 164
Cal.App.4th 1598, 1603.) Under the substantial evidence
standard, “[w]e review the court’s determination of [the
defendant’s] ‘separate intents’ for sufficient evidence in a light
most favorable to the judgment, and presume in support of the
court’s conclusion the existence of every fact the trier of fact could
reasonably deduce from the evidence.” (People v. Cleveland
(2001) 87 Cal.App.4th 263, 271.)
13
In arguing that section 654 bars punishment for both the
robbery and kidnapping convictions, appellant reasons: “The
kidnapping was all about money. It was about robbery. The
intent and objective behind the commission of the robbery and
the kidnapping, therefore, was necessarily the same. The two
offenses . . . were part of an indivisible course of conduct with a
single criminal objective . . . .”
“Numerous cases support the proposition that Penal Code
section 654 bars multiple punishment for convictions of
kidnapping for the purpose of robbery and for committing that
very robbery. [Citations.]” (People v. Porter (1987) 194
Cal.App.3d 34, 37-38.) But this rule does not apply here. It is
reasonable to infer that the initial kidnapping of Avila was for
the purpose of committing the ATM robbery. But the kidnapping
continued after the ATM robbery at the donut store had been
completed. It is reasonable to infer that the continued
kidnapping was for a different, independent objective – obtaining
drugs. At the motel in Sylmar, appellant “ordered Avila to call
someone to get drugs. . . . [Appellant] continued to press Avila
for drugs and asked him whether he had drugs at his house.”
Thus, “[t]he record in this case supports the trial court's implied
finding that the two crimes for which appellant was sentenced
involved multiple objectives, were not merely incidental to each
other, and were not part of an indivisible course of conduct.” (Id.
at p. 38.)
Imposition of Upper Term for Kidnapping
Effective January 1, 2022, Senate Bill No. 567 (S.B. 567)
amended section 1170’s standards for imposing an upper-term
sentence. (Stats. 2021, ch. 731.) As amended, section 1170,
subdivision (b)(1) provides that, where a person is convicted of a
14
public offense, “the court shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).” Paragraph (2) provides,
“The 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 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.”
Appellant claims the trial court failed to follow S.B. 567’s
standards for imposing an upper term sentence on the
kidnapping conviction. In justifying its selection of the upper
term, the trial court stated: “I have . . . reviewed [appellant’s]
probation report, and I am finding factors in aggravation exceed
those in mitigation pursuant to the California Rules of Court.
[¶] So as to [the kidnapping conviction], I am going to impose the
high term of 8 years.”
Appellant’s counsel did not object to the trial court’s
imposition of the upper term. Therefore, appellant cannot
complain on appeal of the trial court’s alleged sentencing error.
(See People v. Scott (1994) 9 Cal.4th 331, 353 [“the waiver
doctrine should apply to claims involving the trial court's failure
to properly make . . . its discretionary sentencing choices]; People
v. Velasquez (2007) 152 Cal.App.4th 1503, 1511 [“by failing to
object, Velasquez has forfeited his claim the upper terms are
improper because the trial court did not state its reasons for
selecting those terms”]; People v. Kidane (2021) 60 Cal.App.5th
817, 826.) Counsel should have been aware of S.B. 567’s
amendment of section 1170. Appellant’s resentencing occurred
15
on December 7, 2022, almost one year after the effective date of
the amendment.
Alleged Violation of Right to
Effective Assistance of Counsel
Appellant argues that “trial counsel’s failure to object [to
imposition of the upper term for the kidnapping] constituted
ineffective assistance of counsel.” “‘“‘[I]n order to demonstrate
ineffective assistance of counsel, a defendant must first show
counsel's performance was “deficient” because his “representation
fell below an objective standard of reasonableness . . . under
prevailing professional norms.” [Citations.] Second, he must also
show prejudice flowing from counsel’s performance or lack
thereof. [Citations.] Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”’” [Citations.]’” (In re Hardy (2007) 41
Cal.4th 977, 1018.)
“[W]hen considering a claim of ineffective assistance of
counsel, ‘a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that course
should be followed.’ [Citation.] A defendant must prove
prejudice that is a ‘“demonstrable reality,” not simply
speculation.’” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
We need not determine whether counsel’s performance was
deficient. Appellant has failed to carry his burden of proving
16
prejudice as a demonstrable reality. Appellant’s discussion of
prejudice consists of a single paragraph:
Because the evidence in this case did not establish,
beyond a reasonable doubt, appellant’s identity or the
extent of his involvement in the crimes alleged, there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the sentencing proceeding would have
been different. [Citations.] The superior court’s intention
to keep appellant’s punishment the same even after his
attempted murder conviction was vacated was a
sufficiently egregious error that trial counsel should have
objected. If trial counsel had objected, furthermore, there is
a reasonable probability that the result of the proceeding
would have been different. There were no factors in
aggravation that justified the imposition of the upper term
on count 13 [simple kidnapping], and the matter should be
remanded for resentencing. (Italics added.)
Contrary to appellant’s argument, there were factors in
aggravation that justified the imposition of the upper term. The
trial court said it was relying on the aggravating factors listed in
the probation report. In addition to factors concerning
appellant’s present criminal offenses and violent conduct, the list
included the following aggravating factors concerning his
criminal record and performance on parole or probation: “[1.]
[Appellant] has served prior prison terms. [2.] [Appellant] was
on parole when the crime was committed. [3.] [Appellant’s] prior
performance on probation or parole was unsatisfactory.” There
were no mitigating factors. The probation report noted,
“Apparently, [appellant] continues to commit crimes to further
the status of his criminal street gang while on parole
supervision.” The report concluded, “The circumstances in
17
aggravation outweigh the lack of any in mitigation and, if
sentenced to state prison, would warrant imposition of the high-
base term.”
In determining whether to impose the upper term, “the
court may consider the defendant’s prior convictions . . . based on
a certified record of conviction without submitting the prior
convictions to a jury.” (§ 1170, subd. (b)(3).) “[T]he fact of a prior
conviction encompasses a finding that . . . defendant was on
probation or parole at the time the crime was committed.”
(People v. Pantaleon (2023) 89 Cal.App.5th 932, 938.)
Had appellant’s counsel objected to imposition of the upper
term for the kidnapping, it is not reasonably probable that the
result would have been different. To comply with section 1170,
subdivision (b)(3), the People could have obtained certified
records of appellant’s prior felony convictions. The probation
report shows that appellant committed several violations of
parole and that on two occasions his probation was revoked. The
trial court could have reasonably relied on appellant’s prior
felony convictions, prior prison terms, and poor performance on
parole/probation to impose the upper term. “Under California's
determinate sentencing system, the existence of a single
aggravating circumstance is legally sufficient to make the
defendant eligible for the upper term.” (People v. Black (2007) 41
Cal.4th 799, 813; see People v. Lopez (2022) 78 Cal.App.5th 459,
467 [“unquestionably the trial court may still rely on any single
permissible aggravating factor to select an upper term sentence
under the newly-revised triad system” of section 1170,
subdivision (b)].)
Disposition
The judgment entered upon resentencing is affirmed.
18
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
19
Hayden A. Zacky, Judge
Superior Court County of Los Angeles
______________________________
Law Offices of Brad Poore and Brad J. Poore, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Nima Razfar, Deputy Attorney General, for
Plaintiff and Respondent.