People v. Dunn

81 Cal.App.5th 394

296 Cal.Rptr.3d 512

The PEOPLE, Plaintiff and Respondent,

v.Tuesdee Deann DUNN, Defendant and Appellant.

F083390

Court of Appeal, Fifth District, California.

Filed June 30, 2022

As Modified July 20, 2022

John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT^*

Defendant Tuesdee Deann Dunn contends on appeal that her sentence on count 1 must be vacated and her case remanded for resentencing in light of Senate Bill No. 567's (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to Penal Code section 1170, subdivision (b).¹ We conclude that the sentence on count 1 was not imposed in compliance with section 1170, subdivision (b), but that the error was harmless. We therefore affirm.

This matter turns on the appropriate standard for harmless error review in the Senate Bill 567 context. Two other published opinions have reached this question, People v. Flores (2022) 75 Cal.App.5th 495, 290 Cal.Rptr.3d 517 ( Flores ) and People v. Lopez (2022) 78 Cal.App.5th 459, 293 Cal.Rptr.3d 719 ( Lopez ), each offering a different answer. We offer a third answer which falls between the other two.

PROCEDURAL SUMMARY

On October 18, 2019, the Madera County District Attorney filed an amended information in case No. MCR063302 charging defendant with assault with a means of force likely to cause great bodily injury ("force-likely assault") ( § 245, subd. (a)(4) ; count 1) and misdemeanor violation of a protective order ( § 273.6, subd. (a) ; count 2).

That same day, defendant pled guilty to both counts.

On November 18, 2019, the trial court placed defendant on three years of probation in case No. MCR063302.²

On February 11, 2020, a petition was filed to revoke defendant's probation in case No. MCR063302. It alleged that defendant had failed to report monthly as directed by her probation officer. Defendant admitted the allegation. Her probation was revoked and reinstated for a period of three years.

On March 17, 2020, a second petition to revoke defendant's probation in case No. MCR063302 was filed. The petition alleged that defendant had committed petty theft ( § 459.5 ), which violated the term of her probation requiring her to obey all laws. Defendant admitted the violation and her probation was revoked and reinstated for a period of three years.

On April 27, 2021, a third petition to revoke defendant's probation in case No. MCR063302 was filed. The petition alleged that defendant violated the term of her probation requiring her to obey all laws by: (1) committing disorderly conduct ( § 647, subd. (f) ); (2) possessing a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ); and (3) possessing paraphernalia used to smoke or ingest a controlled substance ( Health & Saf. Code, § 11364, subd. (a) ). The petition further alleged that defendant failed to report to her probation officer as required by the terms of her probation and that she had violated the term prohibiting use or possession of a controlled substance because her urine sample tested positive for THC and amphetamine.

On June 11, 2021, the trial court held a contested hearing regarding the third probation revocation petition in case No. MCR063302. The trial court found that defendant had violated her probation by failing to obey all laws and by not reporting to her probation officer as alleged in the petition. The trial court found there was insufficient evidence supporting the allegation that defendant's urine test was positive, but found that she had nonetheless violated the probation term prohibiting controlled substance use or possession because she had been found in possession of methamphetamine and amphetamine paraphernalia. At sentencing, the trial court revoked defendant's probation and declined to reinstate it. The trial court imposed four years (the upper term) on count 1 (force-likely assault); and 125 days in county jail, with 125 days’ credit for time served, deemed time served, on count 2 (misdemeanor violation of a protective order).³

On September 29, 2021, defendant filed a notice of appeal in case No. MCR063302.

FACTS ⁴

Count 1—Felony Force-Likely Assault

Defendant was married to B.O. and they had children together. B.O.’s previous wife was J.S. On May 2, 2019, defendant arrived at J.S.’s residence for reasons unknown to J.S. and J.S. told defendant to leave. After J.S. told defendant to leave a second time, defendant lunged at J.S. and they began struggling and hitting each other. J.S. pushed defendant away and saw a knife in defendant's hand. J.S. immediately grabbed the knife from defendant and cut her right thumb in doing so.

Count 2—Misdemeanor Violating a Court Order

Defendant had previously been served with a criminal protective order. On June 7, 2019, while it was in effect, B.O. went to defendant's father's home to pick up their children. Defendant was outside the residence waiting for B.O. When he put their children in his car, defendant demanded the children. B.O. refused and drove away. Defendant closely followed B.O. in her vehicle and told B.O. when they arrived at the children's daycare that she would follow them into the daycare. B.O. called the police to report defendant's violation of the protective order.

DISCUSSION

Defendant contends the trial court's aggravating circumstances findings fail to meet the requirements of amended section 1170, subdivision (b), because the aggravating circumstances relied upon by the trial court—(1) defendant had numerous prior convictions, (2) she was on probation when she committed the charged offenses, and (3) her prior performance on probation was unsatisfactory—were not stipulated to by defendant or proven true beyond a reasonable doubt, and the record does not show that the trial court would have imposed the upper term without these aggravating circumstances.

The People first contend that the trial court's sentence to the upper term on count 1 complies with Senate Bill 567's amendments to section 1170, subdivision (b)(3), because the probation officer's report was a certified record of defendant's prior convictions and contained stipulations by defendant that prove the facts underlying all three of the trial court's aggravating circumstances. As we explain below, a probation report is not a certified record of conviction, and section 1170, subdivision (b)(3) contains no provision regarding stipulations by the defendant. However, two of the trial court's aggravating circumstances findings were not made in error because the record contains certified records of defendant's prior convictions and stipulations by defendant, outside of the probation officer's report.

The People alternatively contend that any error was harmless under People v. Sandoval (2007) 41 Cal.4th 825, 838–839, 62 Cal.Rptr.3d 588, 161 P.3d 1146 ( Sandoval ) because "the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true [the relied upon] aggravating circumstance had it been submitted to the jury ...." ( Sandoval , at p. 839, 62 Cal.Rptr.3d 588, 161 P.3d 1146.) They further argue that any error was harmless because Senate Bill 567 does not require a minimum number of aggravating circumstances, so as long as a jury could have found a single aggravating circumstance true beyond a reasonable doubt, according to Flores, supra, 75 Cal.App.5th at p. 521, 290 Cal.Rptr.3d 517. However, as we explain below, we disagree with Flores that Sandoval controls in this context. Instead, to find that the error was harmless we would have to conclude: (1)(a) beyond a reasonable doubt that the jury would have found beyond a reasonable doubt that the facts underlying at least one aggravating circumstance was true and (1)(b) that there is no reasonable probability the jury would not have found the remaining aggravating circumstance(s) true beyond a reasonable doubt, "or if at least one aggravating circumstance would have been found true pursuant to the standard set out in part (1)(a), but all aggravating circumstances would not have been found true to the standard set out in part (1)(b) (2) that there is no reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps.⁵ Applying this standard, we conclude the trial court's error was harmless.

A. Background

When selecting the upper term on count 1, the trial court relied on the probation officer's recommendation and found three aggravating factors: (1) defendant had numerous prior convictions, (2) defendant was on probation at the time the charged offenses were committed, and (3) her prior performance on probation was unsatisfactory. The trial court stated at sentencing, "with regards to circumstances in aggravation ... defendant's prior convictions are numerous, [she] was on probation when the crime was committed, and her prior performance on probation was unsatisfactory." The probation officer's report indicated that defendant was on probation at the time she committed her offenses and also identified defendant's criminal history, which included six prior misdemeanor convictions and 11 prior probation violations.

B. Law

On October 8, 2021, Senate Bill 567 was signed into law. It amended the determinate sentencing law, section 1170, subdivision (b), which delineates the trial court's authority to impose one of three statutory terms of imprisonment, known as the lower, middle, or upper terms, by making the middle term the presumptive sentence for a term of imprisonment, unless certain circumstances exist. (See Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2).) Effective January 1, 2022, under the newly amended law, the trial...