The opinion
Filed 12/27/23 P. v. Brown CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
THE PEOPLE, C097317
Plaintiff and Respondent, (Super. Ct. No. 2021-
CR0050386)
v.
KENNETH HARDISON BROWN,
Defendant and Appellant.
Defendant Kenneth Hardison Brown contends the trial court violated his right,
protected by both the Sixth Amendment to the United States Constitution and Penal Code
section 1170, subdivision (b),1 to a jury trial on any fact that can expose him to greater
punishment because the court sentenced him to the upper term prison sentences for
burglary and assault without the prosecution pleading or a jury finding true any facts in
1 Undesignated statutory references are to the Penal Code.
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aggravation of those crimes. The People agree that we should vacate defendant’s
sentence and remand for resentencing. We agree with the parties that the trial court erred
when imposing upper term sentences absent properly found aggravating circumstances
and the error was not harmless. Accordingly, we will vacate defendant’s sentence and
remand for a full resentencing.
FACTS AND PROCEEDINGS
Defendant visited his friend M.A.’s house at approximately 1:00 a.m. and asked
for a bowl of cereal. While defendant was eating, M.A. pulled a lighter out of his pants
pocket and $700 in cash fell out. Defendant finished eating and, as he was leaving
M.A.’s house, he looked over at a box of large wrenches. Defendant left, and M.A. went
to bed. M.A. awakened shortly after 4:00 a.m. to assist his wife to the bathroom. After
helping his wife back to bed, M.A. made coffee and was sitting at the dining room table
playing a game on his phone when defendant reentered the house. M.A. and defendant
had an understanding that defendant did not need to knock and could just walk into
M.A.’s house.
Defendant approached and hit M.A. twice in the head with one of the large
wrenches. M.A. fell to the floor, and defendant started punching him. M.A. then pushed
himself up, grabbed defendant, and tackled him into the kitchen. While holding
defendant down, M.A. began feeling weak, so he told defendant he would let him up if
defendant left. M.A.’s wife awoke and began screaming at defendant to let M.A. go and
leave him alone. M.A.’s wife then left the house. M.A. let defendant go, and defendant
got up and left through the front door.
M.A. followed to the front door and saw defendant in an aggressive stance,
holding a car battery, and telling M.A.’s wife that he would smash her if she did not get
out of his way. M.A. picked up a wood chisel and threw it at defendant, hitting him.
Defendant dropped the battery and ran away. When M.A. went back inside, he saw a lot
of blood and the cash from his pocket on the kitchen floor. M.A. counted the money and
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discovered a $100 bill was missing. Because he was bleeding profusely from his head,
M.A. was taken to the hospital, where the medical staff used 27 staples to close the
wound.
The prosecution charged defendant with attempted murder, first degree robbery,
first degree burglary, and assault with a deadly weapon. The prosecution also alleged
that defendant used a deadly or dangerous weapon, committed the offenses while
released on bail, and inflicted great bodily injury. No other circumstances in aggravation
of the crimes were alleged. The jury failed to reach a verdict on the attempted murder
charge, found defendant not guilty of robbery, and found defendant guilty of burglary and
assault. The jury also found true the allegation that defendant inflicted great bodily
injury in committing the assault. In a bifurcated trial, the trial court found true
allegations that defendant committed the burglary and assault while released on bail.
The probation report noted three “aggravating factors for merely informational
purposes,” not “to argue for a heftier sentence”: (1) the crime involved acts disclosing a
high degree of viciousness and callousness (California Rules of Court, rule 4.421(a)(1))2;
(2) the manner in which the crime was carried out indicated a measure of planning (rule
4.421(a)(8)); and (3) defendant has engaged in violent conduct that indicates he is a
serious danger to society (rule 4.421(b)(1)). The probation report recommended the
upper term prison sentences for burglary and assault without addressing the constitutional
or statutory requirements for imposing upper term sentences.
In its sentencing brief, the prosecution argued “there are some aggravating factors
the court can consider without a jury finding,” without further elaboration. At the
sentencing hearing, defense counsel argued that the trial court could not impose an upper
term sentence because the prosecution had not pleaded any aggravating circumstances or
2 Undesignated rule references are to the California Rules of Court.
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proven any to the jury. The prosecution suggested the trial court could consider “the
objectives of sentencing pursuant to Rule 4.410” to impose an upper term sentence, in
lieu of aggravating circumstances proven to a jury. The court then asked the probation
officer about imposing an upper term sentence in the absence of any aggravating
circumstances, to which the probation officer responded: “I believe with the updated
statute within [section] 1170[, subdivision] (h), there is a section in there that says the
Court does have the discretion to impose the upper term with the clear and convincing
evidence of the nature and seriousness of the offense.” The court responded: “That’s
what my research indicated as well.”
After hearing from the parties, the trial court reviewed the evidence presented at
trial and in the probation report as a basis for its sentencing decisions. Despite the earlier
discussion with the probation officer, the court found defendant ineligible for sentencing
under section 1170, subdivision (h). The court then explained it was “not using the
circumstances in aggravation pursuant to [rule] 4.421 to determine the appropriate
sentence,” but nevertheless noted for “informational purposes” that defendant’s actions
fit the aggravating circumstances listed in sections (a)(1), (a)(8), and (b)(1) of rule 4.421.
The trial court felt “particularly disturbed” by defendant’s “lack of remorse,”
based on defendant’s statements to his mother during a phone call from jail. According
to the probation report, defendant told his mother: “I am in jail from people I beat up
snitching on me that were hanging out with child molesters. I asked for a gun so I could
kill those people, you didn’t give it to me and then I got shot so I don’t know what to say
to that. Cause now they snitched on me, and I’m in jail and I almost died, so I guess I
should have just had that arranged ahead of time to where I could kill him myself.”
Defendant also told his mother, “God had already forgave [sic] him because, ‘all work is
good work when it’s done for the right reasons.’ ” When his mother asked what he did,
defendant responded, “I assaulted someone premeditated, with full intentions of GBI,
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which is great bodily harm and then I got shot for it. You know why I didn’t feel like I
deserve to be shot? Because I didn’t murder the piece of shit in the first place.”
The trial court then sentenced defendant to the upper term sentence of four years
in prison for assault and the upper term sentence of six years in prison for burglary, based
on “all of the reasons and objectives the Court[] [has] previously noted.” The court also
imposed a two-year enhancement for each of its findings that defendant committed an
offense while released on bail and imposed a three-year enhancement for the jury’s
finding that defendant inflicted great bodily injury. The court then stayed the sentence
for burglary and the associated on bail enhancement pursuant to section 654, resulting in
a total sentence of nine years in prison, plus a consecutive eight months in prison for a
vandalism charge in a separate case.
Defendant timely appealed from the judgment.
DISCUSSION
Defendant contends the trial court sentenced him to the upper term sentences for
burglary and assault in violation of the Sixth Amendment and section 1170, subdivision
(b), and this error requires remand for resentencing. The People agree, as do we.
I
Erroneous Upper Term Sentences
Specifically, defendant contends the trial court erred by imposing upper term
sentences when the prosecution did not plead any aggravating circumstances and the jury
did not find any aggravating circumstances true beyond a reasonable doubt. The People
dispute the need to include aggravating circumstances in the accusatory pleading, but
concede the trial court erred in imposing an upper term sentence in the absence of
properly established aggravating circumstances. We agree with the People as to the
pleading and with both parties as to proving aggravating circumstances.
Under the Sixth Amendment, “ ‘any fact [other than a prior conviction] that
exposes a defendant to a greater potential sentence must be found by a jury, not a judge,
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and established beyond a reasonable doubt, not merely by a preponderance of the
evidence.’ ” (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1110.) California law
requires “circumstances in aggravation of the crime that justify the imposition of a term
of imprisonment exceeding the middle term” (§ 1170, subd. (b)(2)), which means a jury
must find at least one aggravating circumstance true beyond a reasonable doubt for an
upper term sentence to comply with the Sixth Amendment. (Zabelle, at p. 1111.) The
trial court may only consider aggravating circumstances if “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 amended by Stats. 2021, ch. 731, § 1.3.) Section 1170 does not “require that
any circumstances in aggravation be alleged in an indictment or information.” (People v.
Pantaleon (2023) 89 Cal.App.5th 932, 940.)
Here, the trial court announced it was “not using the circumstances in aggravation
pursuant to [rule] 4.421 [of the California Rules of Court] to determine the appropriate
sentence,” yet the court still selected two upper term sentences. In other words, despite
acknowledging explicitly that the prosecution had not met the requirements of the Sixth
Amendment or section 1170, subdivision (b), the trial court nevertheless imposed upper
term sentences. This violated defendant’s constitutional and statutory rights.
Further, the trial court relied on flawed arguments to sidestep the requirements of
the Sixth Amendment and section 1170. First, the prosecutor’s argument that the general
objectives of sentencing listed in rule 4.410, taken from section 1170, subdivision (a), can
override the specific requirements in section 1170, subdivision (b) for imposing upper
term sentences is contrary to several basic rules of statutory interpretation. (See Hess v.
Ford Motor Co. (2002) 27 Cal.4th 516, 532 [“[i]f a rule is inconsistent with a statute, the
statute controls”]; People v. Wilcox (2013) 217 Cal.App.4th 618, 624 [“[u]nder well-
established rules of statutory construction, specific statutes govern general statutes.
[Citation.] ‘[T]o the extent a specific statute is inconsistent with a general statute
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potentially covering the same subject matter, the specific statute must be read as an
exception to the more general statute’ ”]; Copley Press, Inc. v. Superior Court (2006)
39 Cal.4th 1272, 1285 [“ ‘[w]ell-established canons of statutory construction preclude a
construction [that] renders a part of a statute meaningless or inoperative’ ”].) Second, the
probation officer’s statement that section 1170, subdivision (h) gave the trial court
“discretion to impose the upper term with the clear and convincing evidence of the nature
and seriousness of the offense” has no basis in the law.
II
Prejudice
Having established that the trial court erred in selecting upper term sentences
without adequate process, we must determine whether the error requires reversal. (See
Cal. Const., art. VI, § 13; Washington v. Recuenco (2006) 548 U.S. 212, 218-222.) We
first address the trial court’s violation of defendant’s Sixth Amendment right to a jury
trial, which we may find harmless only if we conclude, “beyond a reasonable doubt, that
the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have
found true at least a single aggravating circumstance had it been submitted to the jury.”
(People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval); Washington, at pp. 218-222;
People v. Zabelle, supra, 80 Cal.App.5th at pp. 1111-1112.)
As an initial matter, we reject defendant’s assertion that his sentence is
“unauthorized” and therefore not subject to harmless error analysis. Section 1170 does
not authorize trial courts to impose upper term sentences without properly found
aggravating circumstances justifying those sentences, but this is not the type of
“unauthorized sentence” addressed in the cases defendant cites. “ ‘The “unauthorized
sentence” rule generally permits . . . defendant[s] to “challenge an unauthorized sentence
on appeal even if they failed to object below.” ’ ” (In re G.C. (2020) 8 Cal.5th 1119,
1130.) In other words, this rule creates a “ ‘narrow’ category of nonforfeitable error,” but
does not affect our constitutional duty to ensure judgments are reversed only when an
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error was not harmless. (Id. at p. 1130.) Defendant has offered no authority
contradicting established precedent that “harmless error analysis applies to the failure to
submit a sentencing factor to a jury.” (Sandoval, supra, 41 Cal.4th at p. 838; accord
Washington v. Recuenco, supra, 548 U.S. at pp. 218-222.)
Further, defendant’s sentence is not the sort of “unauthorized sentence” addressed
by the rule. “[A]n unauthorized sentence or one in excess of jurisdiction is a sentence
that ‘could not lawfully be imposed under any circumstance in the particular case.’ ”
[Citation.] The appellate court may intervene in the first instance because these errors
‘present[] “pure questions of law” [citation], and [are] “ ‘clear and correctable’ ”
independent of any factual issues presented by the record at sentencing” ’ and without
‘remanding for further findings.’ ” (In re G.C., supra, 8 Cal.5th at p. 1130.) Here, the
trial court could have imposed an upper term sentence with proper findings, which could
have been established by a jury, by the court if defendant waived the jury, or by
stipulation. (§ 1170, subd. (b)(2).)
Instead, we will apply the harmless error standard for constitutional error in failing
to submit a sentencing factor to the jury. (Sandoval, supra, 41 Cal.4th at pp. 839-840.)
We first note that at defendant’s trial, the jury determined that defendant inflicted
great bodily injury upon the victim, but that finding cannot support both the enhancement
and an aggravating circumstance. (§ 1170, subd. (b)(5); rule 4.420(g).)
Next, although the trial court expressly denied reliance on rule 4.421 factors, it
mentioned the three aggravating circumstances listed in the probation report: The crime
involved a high degree of cruelty, viciousness, and callousness (rule 4.421(a)(1)); the
manner of the crime indicated planning (rule 4.421(a)(8)) and defendant engaged in
violent conduct that indicates a serious danger to society (rule 4.421(b)(1)). Additionally,
defendant’s lack of remorse “particularly disturbed” the court. (See rule 4.421(c) [court
may consider as aggravating any other factors that reasonably relate to the defendant].)
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In applying harmless error analysis in this context, we “cannot necessarily assume
that the record reflects all of the evidence that would have been presented had
aggravating circumstances been submitted to the jury” because defendant “did not
necessarily have reason—or the opportunity—during trial to challenge the evidence
supporting these aggravating circumstances unless such a challenge also would have
tended to undermine proof of an element of an alleged offense.” (Sandoval, supra, 41
Cal.4th at p. 839.) “Furthermore, although defendant did have an incentive and
opportunity at the sentencing hearing to contest any aggravating circumstances
mentioned in the probation report or in the prosecutor’s statement in aggravation, that
incentive and opportunity were not necessarily the same as they would have been had the
aggravating circumstances been tried to a jury.” (Ibid.) “Additionally, to the extent a
potential aggravating circumstance at issue in a particular case rests on a somewhat vague
or subjective standard, it may be 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.” (Id. at p. 840.) “The sentencing rules
that set forth aggravating circumstances were not drafted with a jury in mind,” so “they
are ‘framed more broadly than’ criminal statutes and necessarily ‘partake of a certain
amount of vagueness which would be impermissible if those standards were attempting to
define specific criminal offenses.’ ” (Ibid.)
With these considerations in mind, we are not convinced, beyond a reasonable
doubt, that the jury, applying the beyond-a-reasonable-doubt standard, would have found
the facts underlying any of these aggravating circumstances true. First, whether the
crime involved a high degree of cruelty, viciousness, and callousness is a subjective
determination about defendant’s intent. Here, the jury appeared to have reasonable
doubts about defendant’s violent intent, failing to reach a verdict on the attempted murder
charge and returning a not guilty verdict on the robbery charge. Second, whether the
manner in which the crime was carried out indicated planning is a vague circumstance,
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and we cannot say beyond a reasonable doubt that the jury would have considered the
amount of planning involved in such a chaotic situation--reentering a friend’s house at
4:00 a.m., assaulting the friend with a wrench, and grabbing $100 off the floor--sufficient
to aggravate the crime. Third, we cannot say the jury would have found defendant to
have engaged in violent conduct that indicates a serious danger to society, another
subjective standard, especially because the assault and victim’s injury already supported
the great bodily injury enhancement and could not be considered for this purpose.
Defendant’s prior criminal history consists of a misdemeanor for selling liquor to a
minor, which is not violent conduct. Finally, the trial court found defendant lacked
remorse based on the transcript of one phone call with his mother, which was borderline
incoherent and somewhat nonsensical. We are not confident the record would have been
so sparse had defendant’s remorsefulness been tried to a jury, nor are we convinced the
jury would have assessed the phone call the same way the trial court did.3
Because we are not convinced the jury would find true any of these aggravating
circumstances, we conclude the trial court’s violation of defendant’s constitutional right
to a jury trial on aggravating circumstances was not harmless. We will vacate
defendant’s sentence and remand for a full resentencing, including application of any
new sentencing laws that may apply to defendant. (See People v. Valenzuela (2019)
7 Cal.5th 415, 424-425.) Accordingly, we need not and do not address whether the trial
court’s violation of defendant’s statutory right to a jury trial on aggravating
circumstances requires remand. Nor need we reach defendant’s second contention that
the trial court improperly imposed two enhancements under section 12022.1, subdivision
(b). The parties may bring these issues to the attention of the trial court at the
resentencing hearing.
3 (See also People v. Salazar (2023) 15 Cal.5th 416, 431-432.)
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DISPOSITION
Defendant’s sentence is vacated and the matter is remanded for a full resentencing
hearing conducted in accordance with current law. In all other respects, the judgment is
affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Krause, J.
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