The opinion
Filed 8/18/25 P. v. Brown CA2/6
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321228
(Super. Ct. No. 1442714)
Plaintiff and Respondent, (Santa Barbara County)
v. OPINION ON TRANSFER
FROM THE SUPREME
JOSEPH IRBY BROWN, COURT
Defendant and Appellant.
Joseph Irby Brown appeals from the judgment following
resentencing. On remand from the previous appeal, the trial
court sentenced Brown to 25 years to life in state prison for
second degree robbery with two prior strikes (count 1; Pen. Code,1
§§ 211, 667, subd. (e)(2)(A)(ii)), plus a determinate term of 16
years for resisting an officer by threats or violence (count 3; § 69,
doubled pursuant to § 667, subd. (e)(2)(C)), and two prior serious
felony convictions (§ 667, subd. (a)(1)).
1 All undesignated statutory references are to the Penal
Code.
Brown contends the trial court erred when it found him
ineligible for mental health diversion, imposed the high term for
count 3 without a jury determination of aggravating factors,
failed to consider the presumption of low term based on trauma,
did not dismiss five-year enhancements for prior serious felony
convictions, and did not reconsider his Romero motion to dismiss
prior strikes (People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero)). He also contends errors in the abstracts of
judgment must be corrected. Following transfer from the
Supreme Court, we reverse the sentence for count 3 and remand
for full resentencing. In all other respects, the judgment is
affirmed.
FACTUAL AND PROCEDURAL HISTORY2
Gas station robbery
Brown was convicted following a jury trial of second degree
robbery of a gas station (count 2, § 211) and a misdemeanor count
of wearing a mask or disguise to avoid detection (count 4, § 185).
The jury found true an enhancement for use of a deadly weapon
(§ 12022, subd. (b)(1)). In the first appeal in this case, we
reversed both counts based on an involuntary confession. (People
v. Brown (Nov. 3, 2020, B291733) opn. on rehg. [nonpub. opn.]
2020 WL 6439959.) On remand, the district attorney opted to not
retry these counts, and the court dismissed them on the People’s
motion.
Bank robbery
In December 2013 Brown entered a Rabobank in Santa
Barbara wearing a baseball cap, a grey sweatshirt with the hood
over his head, sunglasses, and black gloves. Teller G.D. was
2 The factual summary is derived from our opinion and the
record in the first appeal. We take judicial notice of that opinion.
2
immediately suspicious because it was not a cold day and the
clothing was unusual.
Brown took a deposit slip and wrote on it, “Give me the
money[.] No one gets hurt[.] Act stupid you die.” He went to the
teller window and set down the note. G.D. put about $4,000 in
currency on the counter. Brown asked if there was a dye pack,
and G.D. assured him there was not. G.D. was unable to take the
note because Brown had his finger on it. He put the money under
his sweatshirt and walked out of the bank.
Officer Richard Washington detained Brown a few blocks
from the bank. Brown had changed his clothes and was holding a
bag containing a hoodie and hat that closely resembled those
worn by the robber in a photograph transmitted by the bank.
When Washington radioed for backup, Brown stood up and ran.
Washington caught Brown and tackled him. Brown got up and
continued running. Washington tackled him a second time.
Brown got up again, grabbed the officer’s motorcycle helmet, and
wrenched his head back and to the right. Washington subdued
Brown with the help of a citizen.
Washington suffered lacerations to his face and elbow and
abrasions to his hand. His uniform was ripped and his helmet
was broken.
The jury convicted Brown of second degree robbery of a
bank (count 1, § 211) and forcibly resisting the police officer who
detained him for that robbery (count 3, § 69). He admitted he
suffered two prior serious felony convictions (§ 667, subd. (a)(1))
and two prior strikes (§ 667, subds. (d)(1), (e)).
Defendant’s trial testimony
Brown testified he was ambushed by two men in November
2012. Hospital records showed he suffered serious permanent
3
injuries consistent with being shot twice with an assault rifle and
stabbed twice with a machete. Brown testified that after leaving
the hospital, he suffered from physical pain, weakness, nerve
damage, recurring fear he was being attacked, and memory
problems. He “tried to never sleep” because he would have
nightmares and flashbacks of his attack.
Brown testified he often wore hats and hoodies to hide from
people trying to kill him. He sometimes wore gloves because of
nerve damage to his hands.
On the day of the bank robbery, Brown had $30 in his
pocket to buy prescription medication. His practice was to sell
the prescription medication and use the money to buy street
drugs. He believed he began experiencing a blackout between
3:30 and 6:30 a.m. He stood in front of the drug store, then went
into Rabobank across the street. He wrote the note, gave it to the
teller, and robbed the bank. He said he had an out-of-body
experience in the bank and came “back into [himself]” when he
exited.
While running from the bank, he saw a woman he knew.
He went to her home, changed clothing, transferred the $30 to
the new clothing, and put the clothing from the robbery into a
bag. He called a taxi and went outside to meet it.
Brown testified that when he heard Officer Washington call
for backup, he decided to run and “try to be free as long as I
could.” He pushed the officer’s face to try to get away.
Trial evidence of mental state
Brown’s brother testified that Brown became paranoid after
his release from the hospital in January 2013. He stared out the
windows of his house and locked himself in the bathroom for
hours every day. This behavior continued for two to four months
4
after Brown was released from the hospital, but not through
November or December 2013. On several occasions, continuing
through 2013, Brown was unable to remember things he had
done recently.
Dr. Nancy Kaser-Boyd, a clinical and forensic psychologist
with extensive experience in posttraumatic stress disorder
(PTSD), testified for the defense. She said PTSD is caused by an
incident where a person feels they are going to die or senses a
threat to their physical integrity. Brown had PTSD, exacerbated
by substance abuse. She testified that Brown’s behavior during
the bank robbery was consistent with a dissociative state, which
she described as “a split in consciousness where the regular state
of thinking and being is split off and there is an altered state.” It
can occur with PTSD. Symptoms of a dissociative state can
include loss of awareness of one’s surroundings and blackouts
with absence of memory of one’s actions. But she agreed that
Brown remembered his conduct during the robbery. She testified
an individual in a dissociative state may exhibit “robotic”
behavior of something they commonly do. But she agreed it
would not include “walking into a bank and writing down a note
and handing it to a teller” unless the person has “done it before.”
She said Brown was not hallucinating or delusional during the
robbery.
In rebuttal, the prosecution called Dr. James Tahmisian, a
clinical psychologist with 45 years’ experience. He concluded that
Brown was not in a dissociative state during the bank robbery
but demonstrated situational awareness and engaged in
goal-directed behavior.
Original sentence
In the original sentencing on July 2, 2018, the trial court
5
denied Brown’s Romero motion to dismiss the strikes. The court
sentenced Brown to a determinate term of 27 years, consisting of
the upper term of three years for the violation of section 69,
doubled for the prior strikes (§ 667, subd. (e)(2)(C)), one year for
use of a deadly weapon (§ 12022, subd. (b)(1)), and five years for
each of the four serious felony priors (§ 667, subd. (a)(1)). He was
sentenced to consecutive indeterminate “Three Strikes” terms of
25 years to life for each of the robberies, for a total of 50 years to
life, to follow the determinate term. (§§ 211, 667, subd.
(e)(2)(A)(ii)) & (2)(B).) The court imposed a concurrent 180-day
county jail sentence for the misdemeanor (§ 185, count 4).
First appeal
In the first appeal, we reversed counts 2 and 4 based on an
involuntary confession. We conditionally reversed counts 1 and 3
and directed the trial court to conduct a mental health diversion
eligibility hearing (§§ 1001.35, 1001.36). We ordered: “If the
court determines that Brown is ineligible for diversion, or he does
not successfully complete diversion: (1) he may be retried for
counts 2 and 4 and the deadly weapon enhancement, (2) the
conviction for counts 1 and 3 and the admission of the prior
serious felony convictions and prior strikes shall be reinstated,
(3) he shall be resentenced, and (4) the court shall exercise its
discretion whether to strike the serious felony priors.” (People v.
Brown, supra, 2020 WL 6439959.) Our Supreme Court denied
Brown’s petition for review (S265909).
Resentencing
On remand in April 2022, the trial court denied mental
health diversion. In May 2022, the court granted the People’s
motion to dismiss counts 2 and 4 and the accompanying deadly
weapon enhancement and five-year priors, declined to dismiss
6
the five-year enhancements to count 1 for the two serious felony
priors (§ 667, subd. (a)(1)), and declined to reconsider denial of
the Romero motion.
The court sentenced Brown to 25 years to life for count 1
with two prior strikes. (§§ 211, 667, subd. (e)(2)(A)(ii).) The court
imposed the high term of three years for count 3, doubled it for
the strikes, and added enhancements for the two five-year serious
felony priors, for a total determinate sentence of 16 years. (§§ 69,
667, subds. (a)(1), (e)(2)(C).)
Current appeal
Brown appealed the resentencing. Our original decision in
this appeal, filed October 26, 2023, remanded to correct technical
errors in the abstracts of judgment but affirmed the judgment in
all other respects. Our Supreme Court granted review (S282850),
then transferred the matter back to the Court of Appeal with
directions to vacate our decision and to reconsider it in light of
People v. Salazar (2023) 15 Cal.5th 416 and People v. Lynch
(2024) 16 Cal.5th 730 (Lynch). Having reconsidered the matter
and reviewing the parties’ supplemental briefs, we reverse the
sentence for count 3 and remand for full resentencing.
DISCUSSION
Mental health diversion
On June 27, 2018, the Governor signed Assembly Bill No.
1810 (2017–2018 Reg. Sess.), providing for diversion of
individuals with mental disorders. (§§ 1001.35, 1001.36, enacted
by Stats. 2018, ch. 34, § 24.) In the first appeal, we remanded for
the trial court to determine whether to grant mental health
diversion. (People v. Frahs (2020) 9 Cal.5th 618, 640–641; see
People v. Braden (2023) 14 Cal.5th 791, 802–803.) Brown
7
contends the trial court abused its discretion when it denied
diversion. We disagree.
1. Senate Bill No. 1223
After the trial court’s ruling on remand, section 1001.36
was amended to expand the availability of mental health
diversion. (Sen. Bill No. 1223 (2021–2022 Reg. Sess.); Stats.
2022, ch. 735, § 1, eff. Jan. 1, 2023.) The Attorney General
correctly concedes the amendment applies to the current appeal.3
The amended statute made two significant changes
regarding eligibility for diversion: (1) the defendant “has been
diagnosed with a mental disorder” (replacing the previous
requirement that “[t]he court is satisfied that the defendant
suffers from a mental disorder”), and (2) establishing a rebuttable
presumption that the “mental disorder was a significant factor in
the commission of the charged offense.” (§ 1001.36, subd. (b)(1) &
(2).)
If the defendant is eligible for diversion, the court “may, in
its discretion” grant diversion if “the court determines that the
defendant is suitable.” (§ 1001.36, subd. (a), italics added.)
Suitability requires that four criteria are met. There is no
dispute that Brown met three of the suitability criteria because
he was diagnosed with a mental disorder, would consent to
diversion, and agreed to comply with treatment. (§ 1001.36,
subds. (b)(1), (c)(2) & (3).) But as discussed below, the court
found that Brown did not meet the fourth suitability requirement
3 Section 1001.36 was subsequently repealed and replaced
by a similar new section 1001.36, operative July 1, 2024. (Stats.
2023, ch. 687, § 1.2.) It was later amended effective January 1,
2025. (Stats. 2024, ch. 647, § 1.5.) These changes are not
relevant to this appeal.
8
because he “pose[d] an unreasonable risk of danger to public
safety . . . if treated in the community.” (§ 1001.36, subd. (c)(4).)
“A court abuses its discretion when it makes an arbitrary
or capricious decision by applying the wrong legal standard
[citations], or bases its decision on express or implied factual
findings that are not supported by substantial evidence
[citation].” (People v. Moine (2021) 62 Cal.App.5th 440, 449.)
“This standard involves abundant deference to the trial court’s
rulings.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)
The record here supports the trial court’s exercise of discretion to
deny diversion.
2. Significant factor in commission
Regarding eligibility, the mental health diversion statute
originally required the court to be “satisfied that the defendant’s
mental disorder was a significant factor in the commission of the
charged offense.” (§ 1001.36, former subd. (b)(1)(B).) Senate Bill
No. 1223 (2021–2022 Reg. Sess.) created a presumption that the
court “shall find” the disorder was a significant factor “unless
there is clear and convincing evidence that it was not a
motivating factor, causal factor, or contributing factor to the
defendant’s involvement in the alleged offense.” (§ 1001.36, subd.
(b)(2).)
The trial court here found no “nexus between the criminal
conduct of Mr. Brown and any alleged delusional behavior or
symptomology.”
We need not remand for reconsideration of the “significant
factor” requirement for eligibility pursuant to Senate Bill No.
1223 (2021–2022 Reg. Sess.). Under either version of the statute,
the trial court would have found Brown was not suitable for
diversion because it found he posed an unreasonable risk of
9
danger to public safety if treated in the community. (See People
v. Jefferson (2019) 38 Cal.App.5th 399, 407 [declining to remand
for retroactive application of original version of § 1001.36 where
record “ ‘clearly indicates’ the trial court would not have found
defendant eligible for diversion”].)
3. Danger to public safety
One criterion for diversion suitability is: “The defendant
will not pose an unreasonable risk of danger to public safety, as
defined in Section 1170.18, if treated in the community.” Among
the factors the court may consider are “the defendant’s treatment
plan, the defendant’s violence and criminal history, the current
charged offense, and any other factors that the court deems
appropriate.” (§§ 1001.36, subd. (c)(4), 1170.18, subd. (b).)
“ ‘[U]nreasonable risk of danger to public safety’ ” means an
unreasonable risk the defendant will commit an offense listed in
section 667, subdivision (e)(2)(C)(iv), commonly referred to as
“ ‘super strikes.’ ” (§ 1170.18, subd. (c); People v. Hall (2016) 247
Cal.App.4th 1255, 1262, fn. 6.) Evaluation of the risk to public
safety is “a quintessential discretionary function.” (People v.
Moine, supra, 62 Cal.App.5th at p. 448.)
The trial court found that based on Brown’s “prior criminal
history spanning many years,” he had the potential to commit a
future “super strike.” Brown’s record included two 1998 strike
convictions for armed robbery, a 1993 robbery with great bodily
injury, assault by force likely to produce great bodily injury,
battery on a peace officer, two convictions for fighting in public,
and escape from jail. The probation report also included a risk of
violence and recidivism assessment tool that found Brown had a
high score for history of violence, a high risk for violent
10
recidivism, and a high score of noncompliance when placed in the
community.
This case is unlike People v. Moine, supra, 62 Cal.App.5th
440, upon which Brown relies. There the trial court abused its
discretion when it denied mental health diversion. Moine relied
on the unrefuted opinions of two psychiatrists that the defendant
posed a low risk of future assault. (Id. at p. 451.) Here, Dr.
Kaser-Boyd stated, without explanation, “If Mr. Brown
participates in the treatment he needs . . . he does not present a
risk of committing the violent acts identified in the law.” (Italics
omitted.) But the violence and recidivism tool in the probation
report was to the contrary. Moine distinguished People v. Hall,
supra, 247 Cal.App.4th at pages 1265–1266, which involved a
defendant, like Brown, who had a lengthy history of crimes,
including two strike convictions for robbery. (Moine, at p. 451.)
Nor is this case like People v. Williams (2021) 63
Cal.App.5th 990, upon which Brown relies. Psychiatrists found
Williams’s risk of violence was low. He had no prior felony
record, and he had never assaulted anyone. (Id. at pp. 997–998,
1002–1003.) In contrast, Brown had an extensive criminal
history, including armed robberies and assault.
The prosecutor told the trial court the current robbery was
a super strike because it carried a Three Strikes life sentence.
This argument is contrary to People v. Hernandez (2017) 10
Cal.App.5th 192, 202, but Brown did not refute it in the trial
court. The record does not show that the court accepted this
claim, and in any event, prior commission of a super strike is not
required to find an unreasonable risk of danger to public safety.
(People v. Hall, supra, 247 Cal.App.4th at p. 1266.)
11
Moreover, there was no assurance Brown would remain
medication-compliant in the community and receive other
services and treatment necessary to avoid substance abuse and
criminal conduct. Brown had a prescription for Norco when he
committed the offenses, but his practice was to sell the pills and
use the money to buy illegal drugs. As we concluded in People v.
Pacheco (2022) 75 Cal.App.5th 207, 213–214, the trial court was
not required to accept the defendant’s assurances that he would
comply with treatment if released to the community. As in
Pacheco, the trial court here acted within its discretion in
denying mental health diversion based on its assessment of
unreasonable risk of danger if Brown was treated in the
community.
Brown notes that the court impliedly found that he did not
pose an unreasonable risk of danger to public safety when it
reduced a 1994 narcotics possession conviction to a misdemeanor
pursuant to section 1170.18. But that order occurred before
Brown’s current convictions for bank robbery and resisting an
officer by violence.
A finding of future dangerousness may also be based on the
circumstances of the current offenses. (People v. Bunas (2022) 79
Cal.App.5th 840, 861–862.) Brown robbed a bank, threatened the
teller with death if she did not cooperate, and fought with and
injured a police officer.
The circumstances of the current offenses and Brown’s
criminal history support the trial court’s exercise of discretion to
conclude that Brown “pose[d] an unreasonable risk of danger to
public safety” and that diversion would not meet the statutory
goal of “protecting public safety.” (§§ 1001.36, subd. (c)(4),
1001.35, subd. (a).) No abuse of discretion has been shown.
12
Because mental health diversion is not a sentencing choice
but is a pretrial program in lieu of adjudication and sentencing,
the trial court need not reconsider it when it resentences Brown
pursuant to our current remand. (See People v. Frahs, supra, 9
Cal.5th at p. 626.)
Upper term
Brown contends the trial court erred when it imposed the
high term for count 3 (§ 69) because there was not a stipulation
or jury determination of the truth of aggravating factors. We
agree and remand for further proceedings.
1. Sentencing hearings
At the original sentencing, the court relied on four
circumstances in aggravation listed in the probation report in
imposing the upper term: Brown’s violent conduct indicated a
serious danger to society, his prior convictions were numerous or
of increasing seriousness, he served a prior prison term, and his
prior performance on probation or parole was unsatisfactory.
(Cal. Rules of Court,4 rule 4.421(b)(1), (2), (3), (5).) The court did
not adopt the lone factor in mitigation listed in the probation
report: Brown “voluntarily acknowledged wrongdoing before
arrest.” (Rule 4.423(b)(8).) The court imposed the high term of
three years for count 3, doubled for the prior strikes. (§ 667,
subd. (e)(2)(C).)
On remand following the first appeal, the People asked the
trial court “to take judicial notice of the aggravating factors that
are listed out” in the probation report, including: “prior
convictions increasing in severity and significance,” “the
defendant has engaged in violent conduct that indicates a serious
danger to society,” and “the defendant . . . has served a prior
4 All rule references are to the California Rules of Court.
13
prison term.” The People did not mention unsatisfactory
performance on probation or parole. But the court took judicial
notice of “the aggravating factors.” It is unclear whether the
court relied on Brown’s alleged unsatisfactory performance on
probation or parole. The court reimposed the high term of three
years for count 3, doubled for the strikes.
2. Requirement of jury determination
Section 1170, subdivision (b) was amended effective
January 1, 2022, by Senate Bill No. 567 (2021–2022 Reg. Sess.),
which incorporated amendments in Assembly Bill Nos. 124
(2021–2022 Reg. Sess.) and 1540 (2021–2022 Reg. Sess.). (Stats.
2021, ch. 731, § 1.3.) The Attorney General correctly concedes
the amendment applies to Brown’s 2022 resentencing. (Lynch,
supra, 16 Cal.5th at p. 742.)
The amended statute allows imposition of the high term
only if justified by circumstances in aggravation “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.” (§ 1170, subd.
(b)(2).) As provided in section 1170, subdivision (b), equivalent
means of proof for a jury determination beyond a reasonable
doubt include the stipulation of the parties or a judge’s
determination at a court trial if jury is waived.
“[T]he 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.”
(§ 1170, subd. (b)(3).) But in Erlinger v. United States (2024) 602
U.S. 821, 837, the high court held a judge may “undertake the job
of finding the fact of a prior conviction—and that job alone.”
Erlinger held that for purposes of increased punishment under a
14
federal sentencing statute, the defendant is entitled to a jury
determination whether prior violent felonies were committed on
“separate occasions.” (Id. at p. 835.)
Pursuant to Erlinger v. United States, supra, 602 U.S. 821,
a jury determination was required to establish at least three of
the aggravating factors the court relied on when imposing the
upper term: Brown “engaged in violent conduct that indicates a
serious danger to society” (rule 4.421(b)(1); Lynch, supra, 16
Cal.5th at p. 776), his prior convictions were of increasing
seriousness (rule 4.421(b)(2); People v. Wiley (2025) 17 Cal.5th
1069, 1082–1083), and his prior performance on probation or
parole was unsatisfactory (rule 4.421(b)(5); Wiley, at pp. 1082–
1083).
Lynch declined to resolve whether a jury determination
was required for the other aggravating factor, i.e., that the
defendant “has served a prior term in prison.” (Rule 4.421(b)(3);
Lynch, supra, 16 Cal.5th at pp. 744–745, 774–775 & fn. 20.)
People v. Wiley, supra, 17 Cal.5th 1069 does not discuss this
issue. Even if Erlinger permitted the trial court to find that
Brown served a prior prison term, remand is required because
“the facts supporting every aggravating circumstance upon which
the trial court relies to ‘justify’ imposition of the upper term must
be properly proven as the statute requires.” (Lynch, supra, 16
Cal.5th at p. 757.)
3. Harmless error
Imposing the high term without a jury determination of
aggravating factors warrants reversal unless the error is
harmless beyond a reasonable doubt. (Lynch, supra, 16 Cal.5th
at p. 754.) We conclude the error here is not harmless.
The sentence “must be reversed and remanded unless the
15
reviewing court concludes beyond a reasonable doubt that a jury,
applying that same standard, would have found true all of the
aggravating facts upon which the court relied to conclude the
upper term was justified.” (Lynch, supra, 16 Cal.5th at p. 743,
italics added.) “In making this determination, we may
‘ “examine[] what the jury necessarily did find and ask[] whether
it would be impossible, on the evidence, for the jury to find that
without also finding the missing fact as well.” [Citation.] In
other words, if “ ‘[n]o reasonable jury’ ” would have found in favor
of the defendant on the missing fact, given the jury’s actual
verdict and the state of the evidence, the error may be found
harmless beyond a reasonable doubt.’ [Citations.] We may also
find the omission harmless if we can conclude beyond a
reasonable doubt ‘that the omitted [fact] was uncontested and
supported by overwhelming evidence.’ ” (Id. at p. 775.)
Applying this standard, we conclude beyond a reasonable
doubt that a jury would have found that Brown served a prior
prison term. (Rule 4.421(b)(3).) He admitted at trial he had been
in prison for robbery. The jury also would have found his prior
convictions were “of increasing seriousness.” (Rule 4.421(b)(2).)
He was convicted in two misdemeanor cases of fighting in public,
followed by a felony drug possession conviction, a misdemeanor
battery of a peace officer, followed by an armed first degree
robbery, another armed robbery, and a felony escape. But we
cannot conclude the jury would have found true the other two
aggravating factors relied upon by the court to impose the upper
term.
The jury found Brown guilty of second degree robbery of a
bank (count 1, § 211) and forcibly resisting a police officer (count
3, § 69). A jury certainly could find that this constituted “violent
16
conduct that indicates a serious danger to society.” (Rule
4.421(b)(1).) But we cannot conclude beyond a reasonable doubt
that it would have done so. In the bank robbery, Brown did not
have a weapon and did not use actual force. And Brown’s
resistance to the officer resulted in moderate injuries—
lacerations and abrasions. The Attorney General also concedes
that mental illness played a role in the offenses.
Brown contested whether he was dangerous. He argued
that the prior strike convictions were over 20 years old and he
was less likely to reoffend due to his age. He argued he had a
“very genuine motivation to avoid returning to prison, and
instead to receive treatment.” A report from Dr. Kaser-Boyd
concluded Brown desired treatment and “will not pose an
unreasonable risk of danger to public safety . . . if treated in the
community.” In our view, the record does not establish that it
would have been “impossible” for a reasonable jury to find Brown
did not pose a serious danger. (Lynch, supra, 16 Cal.5th at p.
775.)
We cannot speculate as to what the jury would have found
because determining “violent conduct” and “a serious danger to
society” are based on “ ‘ “subjective standard[s]” ’ ” that are
“ ‘ “difficult for a reviewing court to conclude with confidence that,
had the issue been submitted to the jury, the jury would have
assessed the facts in the same manner as did the trial court.” ’ ”
(Lynch, supra, 16 Cal.5th at p. 775.) On this record, we cannot
conclude, beyond a reasonable doubt, that a jury would have
found Brown “engaged in violent conduct that indicates a serious
danger to society.”
The same is true regarding unsatisfactory performance on
probation or parole. Brown’s probation report showed violations
17
of probation of an unknown nature in the 1990s. But at the
resentencing, Brown argued that he “remained perfectly law
abiding” when he was released on parole in 2008, was employed
full-time, tested negative for drugs, and did not commit any
offenses until after he was shot in November 2013. On this
record, we cannot conclude beyond a reasonable doubt that a jury
would necessarily find Brown’s performance on probation or
parole was unsatisfactory.
Because we conclude imposition of the high term without a
jury determination was not harmless beyond a reasonable doubt,
we remand for resentencing on count 3.
Low term based on trauma
Brown also contends the sentence for count 3 must be
remanded to determine whether the low term is required based
on psychological or physical trauma. (§ 1170, subd. (b)(6)(A).)
We agree.
Senate Bill No. 567 (2021–2022 Reg. Sess.), which was in
effect at the resentencing, provides that if the defendant “has
experienced psychological, physical, or childhood trauma,” and it
was “a contributing factor in the commission of the offense,” the
court must impose the low term “unless the court finds that the
aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6)(A).)
The record establishes that Brown “suffered a qualifying
trauma, which would appear to meet the statute’s threshold
requirement for triggering the lower term presumption.” (People
v. Salazar, supra, 15 Cal.5th at p. 419.) This conclusion is
supported by the defense evidence at trial and expert opinions
regarding PTSD and other effects of the 2013 attack on Brown.
18
Brown relied on PTSD in his application for mental health
diversion. But at the resentencing neither the parties nor the
trial court mentioned the low term presumption. Brown seeks it
now, and the Attorney General does not contend Brown forfeited
the issue. Accordingly, our remand to determine the term for
count 3 shall include a determination whether Brown is entitled
to the low term based on section 1170, subdivision (b)(6)(A). We
express no view as to how the court should resolve that question.
Serious felony priors
Brown contends the trial court erred when it failed to
dismiss the five-year enhancements for the prior serious felony
convictions. We need not resolve this issue in light of our
disposition remanding the case for resentencing.
Brown admitted two prior serious felony priors based on
1998 robbery convictions. (§ 667, subd. (a)(1).) In the first
appeal, we remanded for the trial court to exercise its newly
authorized discretion to determine whether to strike the priors.
(§§ 667, 1385, as amended by Sen. Bill No. 1393 (2017–2018 Reg.
Sess.); Stats. 2018, ch. 1013, §§ 1–2.)
Before Brown’s resentencing, section 1385 was further
amended by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats.
2021, ch. 721, § 1). The amended statute applies to all
sentencings after January 1, 2022. (§ 1385, subd. (c)(7).) It
provides that “the court shall dismiss an enhancement if it is in
the furtherance of justice to do so.” (§ 1385, subd. (c)(1).) It
further provides, “In exercising its discretion under this
subdivision, the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present.
Proof of the presence of one or more of these circumstances
19
weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would
endanger public safety. ‘Endanger public safety’ means there is a
likelihood that the dismissal of the enhancement would result in
physical injury or other serious danger to others.” (§ 1385, subd.
(c)(2).)5
But there is no “rebuttable presumption” that the court
must dismiss an enhancement or impose a lesser one “that can
only be overcome by a finding that dismissal endangers public
safety.” (People v. Walker (2024) 16 Cal.5th 1024, 1033.) Rather,
“if the court does not conclude that dismissal would endanger
public safety, then mitigating circumstances strongly favor
dismissing the enhancement.” (Id. at p. 1036.) The court must
ultimately “determine whether dismissal is in furtherance of
justice.” (Ibid.)
On resentencing, the court declined to dismiss the
enhancements, stating, “[B]ased on my reading of the case, and
the allegations of the case I think it is appropriate for the court to
impose the nickel prior, the enhancement.”6
Brown contends the enhancements should be dismissed
based on three mitigating circumstances listed in section 1385,
subdivision (c)(2): “[m]ultiple enhancements are alleged in a
single case,” “[t]he current offense is connected to mental illness,”
5 Section 1385 was amended again by Assembly Bill No.
200 (2021–2022 Reg. Sess.) (Stats. 2022, ch. 58, § 15), and
Assembly Bill No. 1754 (2023–2024 Reg. Sess.) (Stats. 2023, ch.
131, § 160). These amendments are not pertinent to the issues
in this appeal.
6 The court actually imposed two five-year priors.
20
and “[t]he enhancement is based on a prior conviction that is over
five years old.” (Id., subd. (c)(2)(B), (D) & (H).)
We need not determine whether the trial court abused its
discretion when it declined to strike the enhancements because it
must exercise its discretion again on remand. “[W]hen part of a
sentence is stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.)
Under the “ ‘full resentencing rule,’ ” “the resentencing court has
jurisdiction to modify every aspect of the sentence.” (Ibid.)
Because we remand for resentencing on count 3, the court shall
also exercise its discretion whether to strike the five-year
enhancements for the prior serious felony convictions. We
express no view as to how the court should resolve any issue on
resentencing.
Romero motion
Brown contends the trial court improperly failed to
reconsider his motion to dismiss his prior strikes on remand.
(Romero, supra, 13 Cal.4th 497.) We agree but conclude the error
is moot because the trial court must exercise its discretion again
on remand.
In the initial sentencing in 2018, the trial court denied the
Romero motion. The court noted that the 1998 prior strikes were
“almost identical” to the new offenses, i.e., robberies “putting
people at significant risk, both mentally and physically.”
Although the strikes were committed approximately 16 years
earlier, Brown spent 11 years in prison until he was paroled in
2008 and then committed the current offenses in 2013.
On resentencing, Brown asked the trial court to reconsider
21
the Romero motion and “at least strike one of the strikes.” Brown
argued the prior strikes were 23 years old, no violence was
intended in the bank robbery, and he suffered from PTSD. The
prosecutor argued “[t]he only two issues in front of the [c]ourt”
were diversion and the five-year priors. The court apparently
accepted the prosecutor’s argument it had no jurisdiction to
dismiss a strike pursuant to Romero and imposed a Three Strikes
sentence of 25 years to life for count 1.
The Attorney General concedes the trial court had
jurisdiction to reconsider the Romero motion on the previous
remand. Because we now remand for resentencing on count 3,
and pursuant to the full resentencing rule, the court shall
exercise its discretion whether to dismiss the prior strikes
pursuant to Romero, supra, 13 Cal.4th 497. (People v. Buycks,
supra, 5 Cal.5th at p. 893.)
Errors in abstracts of judgment
Brown notes several errors in the determinate and
indeterminate abstracts of judgment:
1. Abstract of judgment—determinate
Date of hearing: date of resentencing
Judge: judge for resentencing
Section 15: execution of sentencing imposed at
resentencing per decision on appeal (box b rather than a)
Section 16: credit for time served pursuant to sections
2933 and 4019 as of date of resentencing
2. Abstract of judgment—indeterminate
Date of hearing: date of resentencing
Judge: judge for resentencing
Section 3: two (not four) five-year priors (if imposed)
Section 5: delete sentence of life with the possibility
22
of parole (retain section 6b, 25 years to life on count 1)
Section 9a: restitution fine is stayed
Section 9c: $41 theft fine is stayed
Section 12: indeterminate count [not counts] is
consecutive with determinate sentence
Section 14: execution of sentencing imposed at
resentencing per decision on appeal (box b rather than a)
Section 15: use date of resentencing.
We do not accept the Attorney General’s concession that if
the court imposes the two five-year enhancements for prior
serious felony convictions (§ 667, subd. (a)(1)), they must be
stricken from the determinate sentence. They do not enhance the
conviction for section 69 because it is not a serious felony.
(§§ 667, subd. (a)(1) & (4), 1192.7, subd. (c).) Instead, they
enhance the sentence for robbery, which is a serious felony.
(§ 1192.7, subd. (c)(19).) “ ‘Once the minimum indeterminate
term is calculated, “other enhancements or punishment
provisions,” such as section 667(a) enhancements, are added as a
separate determinate term to the indeterminate term,’ ” to be
served consecutively. (People v. Williams (2004) 34 Cal.4th 397,
403; People v. Flores (2021) 63 Cal.App.5th 368, 379.) The clerk
properly added the two five-year enhancements to the term for
count 1.
We do not order corrections to the abstracts because
following resentencing pursuant to the current remand, the clerk
must prepare new abstracts of judgment which will presumably
avoid the previous errors.
DISPOSITION
Our opinion filed October 26, 2023, is vacated. We reverse
the portion of the sentence imposing the high term for count 3.
23
The matter is remanded for resentencing. In all other respects,
the judgment is affirmed. The trial court shall prepare amended
abstracts of judgment and send a certified copy to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
CODY, J.
24
Thomas R. Adams II, Judge
Superior Court County of Santa Barbara
______________________________
Sylvia W. Beckham, 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, Idan Ivri and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.