The opinion
Filed 10/26/23 P. v. Brown CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Civil No. B321228
(Super. Ct. No. 1442714)
Plaintiff and Respondent, (Santa Barbara County)
v.
JOSEPH IRBY BROWN,
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. Code1,
§§ 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, did not dismiss five-year
enhancements for prior serious felony convictions, did not
reconsider his Romero motion to dismiss prior strikes (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497), and imposed the
high term for count 3. He also contends errors in the abstracts of
judgment must be corrected. We remand to correct errors in the
abstracts of judgment. 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.].)
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
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
2 The factual summary is derived from our opinion and the
record in the first appeal. We take judicial notice of that opinion.
2
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
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
3
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
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.
4
Dr. Nancy Kaser-Boyd, a clinical and forensic psychologist
with extensive experience in 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
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
5
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.” Our
Supreme Court denied Brown’s petition for review (S265909).
Resentencing
On remand in April 2022, the trial court denied mental
health diversion. The court also granted the People’s motion to
dismiss counts 2 and 4 and the accompanying deadly weapon
enhancement and five-year priors; declined to dismiss 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
6
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).)
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
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. (Stats. 2022, ch. 735, § 1 (Sen. Bill No. 1223 (2021-
2022 Reg. Sess.), eff. Jan. 1, 2023.) The Attorney General
correctly concedes the amendment applies to the current appeal.
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
7
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
because he posed 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 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).)
8
The trial court here did not find a “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. 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 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)(1).)
“ ‘[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
9
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
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, who, like Brown, 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.
10
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.)
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 the defendant was treated in the
community.
Brown notes that the court impliedly found that Brown 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 the
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.
11
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.
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 disagree.
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 Senate Bill No. 1393 (2017-2018
Reg. Sess.); Stats. 2018, ch. 1013, §§ 1-2.)
Before 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 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
12
dismissal of the enhancement would result in physical injury or
other serious danger to others.” (§ 1385, subd. (c)(2).)3
On resentencing, the prosecution noted the court had
discretion to dismiss the enhancements and asked the court to
impose them “based on the circumstances in aggravation that
were presented at the trial as well as Mr. Brown’s significant
criminal history.” The court declined to dismiss the
enhancements, stating, “based 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.”4
Brown contends the trial court should have dismissed the
enhancements based on three mitigating circumstances listed in
section 1385, subdivision (c)(2):
“(B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single enhancement
shall be dismissed.
[¶] . . . [¶]
“(D) The current offense is connected to mental illness.
[¶] . . . [¶]
“(H) The enhancement is based on a prior conviction that is
over five years old.”
At the resentencing, Brown did not mention the
amendments of Senate Bill No. 81, did not argue that the court
was required to strike either prior or that it should exercise its
discretion to do so, and did not request a finding regarding public
3 Section 1385 was amended again by Assembly Bill No.
200 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 58, § 15), but the
amendment is not pertinent to the issues in this appeal.
4 The court actually imposed two five-year priors.
13
safety. He has not forfeited the issue, however, because he
contends imposition of multiple enhancements resulted in an
unlawful sentence (People v. Scott (1994) 9 Cal.4th 331, 354), and
he challenges the sufficiency of the evidence to support the
implied finding that dismissal of the enhancements would
endanger public safety (People v. Butler (2003) 31 Cal.4th 1119,
1128 & fn. 5).
The Attorney General concedes that multiple
enhancements were applied, the offenses were “connected to
mental illness,” and the prior offenses were over five years old.
But substantial evidence supports the implied finding that
dismissal of enhancements would endanger public safety. The
finding is supported by the circumstances of the offenses,
including robbing a bank with a threat to kill the teller, fighting
with, and injuring, the arresting officer, and Brown’s extensive
criminal record including armed robberies and assaults.
Brown contends the court was required to dismiss at least
one prior based on the seemingly mandatory language that “all
enhancements beyond a single enhancement shall be dismissed.”
(§ 1385, subd. (c)(2)(B), emphasis added.) We disagree. We join
the other appellate panels that have considered the issue and, for
the reasons stated in those cases, we conclude the trial court
retains discretion whether to dismiss multiple enhancements.
(People v. Anderson (2023) 88 Cal.App.5th 233, 240-241, review
granted Apr. 19, 2023, S278786; People v. Walker (2022) 86
Cal.App.5th 386, 396-399, review granted Mar. 22, 2023,
S278309.) This conclusion is in accord with the cases that
conclude the trial court retains discretion whether to dismiss “an
enhancement [that] could result in a sentence of over 20 years”
(§ 1385, subd. (c)(2)(C)), notwithstanding the same statutory
14
language that it “shall be dismissed.” (People v. Mendoza (2023)
88 Cal.App.5th 287, 297; People v. Lipscomb (2022) 87
Cal.App.5th 9, 17-21.)
The trial court’s exercise of discretion “ ‘ “ ‘must not be
disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice.’ ” ’ ”
(People v. Mendoza, supra, 88 Cal.App.5th at p. 298.) The trial
court here acted within its discretion based on Brown’s offenses
and criminal record. (People v. Walker, supra, 86 Cal.App.5th at
p. 398, review granted [multiple enhancements not dismissed
where danger to public safety]; see People v. Ortiz (2023) 87
Cal.App.5th 1087, 1097, review granted Apr. 12, 2023, S278894
[considering factors in addition to public safety to not dismiss
enhancement connected to mental illness].)
Romero motion
Brown contends the trial court improperly failed to
reconsider his motion to dismiss his prior strikes on remand.
(People v. Superior Court (Romero), supra, 13 Cal.4th 497.) We
agree but conclude the error is harmless.
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
the Romero motion and “at least strike one of the strikes.” Brown
argued the prior strikes were 23 years old, no violence was
15
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 prosecutor
stated, “In terms of a Romero motion, that motion was heard at
sentencing by Judge Herman, and so I don’t believe the Court
needs to take that into consideration nor really has jurisdiction to
hear that.” The court responded, “I thought so.”
The court then imposed sentence, including a Three Strikes
sentence of 25 years to life for count 1, without mentioning its
discretion to dismiss a strike pursuant to Romero. The defendant
then personally asked the court about the Romero motion and
asked, “you’re not able to do that at this point?” The court
responded, “No.”
The Attorney General concedes the trial court had
jurisdiction to reconsider the Romero motion on remand. (People
v. Buycks (2018) 5 Cal.5th 857, 893.) He nevertheless contends
the trial court knew it had discretion to dismiss the strikes, and
properly exercised that discretion. But the record shows the
court accepted the prosecutor’s position that the court had no
jurisdiction and did not reconsider dismissing the strikes. A trial
court abuses its discretion when it “was not ‘aware of its
discretion’ to dismiss.” (People v. Carmony (2004) 33 Cal.4th 367,
378; People v. Banks (1997) 59 Cal.App.4th 20, 23-24 [remand for
Romero motion].)
Although failure to reconsider the Romero motion was
error, it was harmless. This is not one of the “ ‘extraordinary
[cases] . . . by which a career criminal can be deemed to fall
outside the spirit’ ” of the Three Strikes law. (People v. Carmony,
supra, 33 Cal.4th at p. 378.) The age of the strikes, Brown’s
criminal record, the nature of the bank robbery, and Brown’s
16
mental health issues remain unchanged since the original
sentencing when the court denied the Romero motion.
This case is like People v. Gutierrez (1996) 48 Cal.App.4th
1894, in which the trial court erroneously believed it did not have
discretion to dismiss strikes. Our colleagues in Division 2
concluded the trial court would not have exercised its discretion
to lessen the sentence as evidenced by its imposition of the
maximum possible sentence, including the high term and two
discretionary one-year enhancements. The court found “no
purpose would be served in remanding for reconsideration.” (Id.
at p. 1896.) The record here is similarly clear the trial court
would not have dismissed either strike. It imposed the five-year
enhancements based on the circumstances of the present offenses
and Brown’s prior record, and selected the high term for the
determinate sentence. Accordingly, we decline to remand for
reconsideration of the Romero motion.
Upper term
Brown contends the trial court erred when it imposed the
high term for count 3 (§ 69). We again disagree.
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 and
1540. (Stats. 2021, ch. 731, § 1.3.) The Attorney General
correctly concedes the amendment applies to the 2022
resentencing here. (People v. Flores (2022) 73 Cal.App.5th 1032,
1039.)
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
17
trial by the jury or by the judge in a court trial.” (§ 1170, subd.
(b)(2).)
On remand, the court imposed the high term of three years
for count 3, doubled for the prior strikes (§ 667, subd. (e)(2)(C)).
The court took judicial notice of the aggravating factors listed in
the probation report, specifically that Brown’s violent conduct
indicated a serious danger to society, there were numerous prior
convictions increasing in severity, and he served a prior prison
term. (Cal. Rules of Court, rule 4.421(b)(1), (2), (3).)5
The probation report listed one factor in mitigation: “The
defendant voluntarily acknowledged wrongdoing before arrest.”
(Rule 4.423(b)(8).) Brown additionally argued in the Romero
motion that he suffered from PTSD and did not intend violence in
the robbery. (Rule 4.423(b)(2) & (c).)
“[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).) Based on records of prior convictions, the
court may, without a jury finding, determine that the defendant
served a prior prison term, or the defendant’s prior convictions
“are ‘numerous or of increasing seriousness.’ ” (People v. Towne
(2008) 44 Cal.4th 63, 70, 75-76.) Such determinations do not
violate the Sixth Amendment right to jury trial as provided in
Apprendi v. New Jersey (2000) 530 U.S. 466. (Towne, at pp. 75,
79-80.)
Because Brown did not object in the trial court to the
court taking judicial notice of the factors in aggravation listed in
the probation report rather than a “certified record of conviction,”
5 All rule references are to the California Rules of Court.
18
he has forfeited that objection. (Evid. Code, § 353, subd. (a);
People v. Achane (2023) 92 Cal.App.5th 1037, 1043-1044.) Nor
does Brown contend that Brown’s criminal history contained in
the probation report is inaccurate.
Rule 4.421(b)(2) requires that prior convictions be either
“numerous or of increasing seriousness.” (Italics added.) Brown’s
record shows both. Because the 1998 robberies were used to
enhance the sentence (§ 667, subd. (a)(1)), they could not be used
to impose the high term. (§ 1170, subd. (b)(5).) But Brown had
numerous other convictions. (People v. Searle (1989) 213
Cal.App.3d 1091, 1098 [three convictions are numerous].)
Increasing seriousness was shown by two misdemeanor
convictions for fighting in public, followed by a felony drug
possession charge, a misdemeanor battery of a peace officer,
followed by a felony escape conviction.
Brown’s record also established the aggravating factor of “a
prior term in prison.” (Rule 4.421(b)(3).) Without considering the
1998 prison terms for robberies, he was sentenced in 1995 to two
years in prison for drug possession, and in 1998 to eight months
in prison for escape.
Because the jury did not determine that “[t]he defendant
has engaged in violent conduct that indicates a serious danger to
society” (rule 4.421(b)(1)), the trial court erred in considering it as
an aggravating circumstance. (See People v. Lewis (2023) 88
Cal.App.5th 1125, 1139, review granted May 17, 2023, S279147.)
But the error is harmless because the trial court properly
considered the circumstances of prior prison terms and
convictions that were numerous or of increasing seriousness, and
“the record ‘clearly indicate[s]’ that the trial court would not
impose a more favorable sentence upon theoretical reversal for
19
resentencing.” (People v. Flowers (2022) 81 Cal.App.5th 680, 686,
review granted Oct. 12, 2022, S276237.) Application of the test
articulated in People v. Dunn (2022) 81 Cal.App.5th 394, 409-410,
review granted Oct. 12, 2022, S275655, leads to the same result:
the error is harmless because the trial court properly determined
two aggravating circumstances based on Brown’s record, and
“there is a reasonable probability that the jury would have found
any remaining aggravating circumstance(s) true beyond a
reasonable doubt.” (Id. at p. 410; see People v. Falcon (2023) 92
Cal.App.5th 911, 949-952 [noting split of authority and
remanding for resentencing], review granted Sep. 13, 2023,
S281242.)
Senate Bill No. 567 added an additional consideration
relevant here: 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).) We review this determination for abuse of
discretion. (People v. Achane, supra, 92 Cal.App.5th at p. 1044.)
It is undisputed that Brown suffered psychological and
physical trauma because of the 2012 attack. The trial court did
not make an explicit finding whether it was “a contributing factor
in the commission of the offense.” (§ 1170, subd. (b)(6).) But
based on the seriousness of the current offenses and Brown’s
prior record, the trial court’s implied findings that the
aggravating circumstances outweighed the mitigating
circumstances and imposition of the lower term would be
contrary to the interests of justice were not an abuse of
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discretion.
Errors in abstracts of judgment
Brown notes several errors in the determinate and
indeterminate abstracts of judgment that must be corrected.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) The Attorney
General agrees. The clerk shall correct the abstracts as follows:
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
Section 5: delete sentence of life with the possibility
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
the two five-year enhancements for prior serious felony
convictions (§ 667, subd. (a)(1)) must be stricken from the
determinate sentence. They do not enhance the conviction for
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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 six-year term for count 3 for a
total determinate sentence of 16 years.
DISPOSITION
The matter is remanded to correct errors in the abstracts of
judgment. 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.
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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.