Filed 2/21/23 P. v. Luna CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYAN LUNA et al.,

Defendants and Appellants.

F082309

(Consolidated w/F082434)

(Madera Super. Ct. 

Nos. MCR066495A & 

MCR066495B)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. 

Rigby, Judge.

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant 

and Appellant, Bryan Luna.

Catherine White, under appointment by the Court of Appeal, for Defendant and 

Appellant, William Webb.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Appellants and defendants Bryan Luna (Luna) and William Webb (Webb), along 

with codefendant Francisco Samaniego (Samaniego), confronted Kevin Goodrich in a 

park and assaulted him with a shovel, an axe, and a sledgehammer. Goodrich suffered 

fractures to his skull and face. The three defendants were charged with assault with a 

deadly weapon (Pen. Code, § 245, subd. (a)(1)).

1

At their joint trial, defendants did not testify but relied on the defense that 

Goodrich drew his knife first and provoked the incident. The three defendants were 

convicted as charged. As to Luna and Webb, the jury found true the enhancements that 

they personally inflicted great bodily injury on Goodrich in the commission of the assault 

(§ 12022.7, subd. (a)); the jury was unable to reach a finding on this enhancement as to 

Samaniego. Luna and Webb were sentenced to second strike terms of 16 years in prison.

Luna and Webb have filed appeals that have been consolidated in this case. 

Samaniego is not part of the instant appeal.

On appeal, Luna and Webb jointly assert there is insufficient evidence to support 

the great bodily injury enhancements because Goodrich was unable to testify as to which 

defendant inflicted which blow upon him during the assault; and the matter must be 

remanded for a new sentencing hearing because the court imposed upper terms based on 

aggravating circumstances that they did not admit and were not found true by the jury 

beyond a reasonable doubt, as required by Senate Bill No. 567’s (2021–2022 Reg. Sess.) 

(Senate Bill 567) amendments to section 1170, subdivision (b) (Stats. 2021, ch. 731, 

§§ 1.3, 2).

Webb separately asserts the court failed to enumerate the elements of one of the 

fines it imposed, and the calculation of his credits must be corrected.

We will order correction of Webb’s credits, find the other issues raised by Luna 

and Webb are not meritorious, and affirm their judgments.

1 All further statutory citations are to the Penal Code unless otherwise indicated.
3.

FACTS

Around 9:30 p.m. on May 28, 2020, 62-year-old, Kevin Goodrich, was sitting at a 

table in the picnic pavilion area at Millview Park in Madera and getting ready to “bed 

down” for the night. Goodrich was homeless and had been living at the park by himself 

for four to six weeks. The pavilion area was very dark, and there were only lights in the 

adjacent parking lot.

Goodrich carried camping gear with him that consisted of a tent, sleeping bag, 

portable burner, and cooking utensils. He also had a backpack with his personal 

belongings and rode a red, 18-speed bicycle. Goodrich carried a knife to protect himself 

on the streets. On that night, he decided not to set up his tent, and instead placed his 

sleeping bag on top of a picnic table to sleep there.

Goodrich Encounters Defendants

Goodrich testified that Bryan “Polo” Luna, William “Will” Webb, and Francisco 

“Franky” Samaniego were also in the picnic area that night. They were sitting two tables 

away from him, about 15 to 18 feet away.

Goodrich had known Webb for over a year through the rescue mission, Luna 

occasionally stayed at the park, and Luna had introduced him to Samaniego. Goodrich 

testified that the three defendants talked among themselves, and he was not listening to 

their conversation.

Luna walked over to Goodrich and started to “bait” him. Luna said he did not

want Goodrich to know about his business and what he was doing, he did not trust him, 

and he wanted Goodrich to leave. Goodrich testified that Luna sold drugs, and Luna said 

that he was afraid Goodrich was talking to the police. Luna said that if Goodrich did not 

leave, “they were going to beat me up and steal my bike and my stuff.”

Goodrich testified that Luna was standing about 10 feet in front of him when he 

made these statements. Webb and Samaniego were about 12 feet behind Goodrich, and 
4.

they moved closer to him. Goodrich did not see defendants in possession of any weapons 

at that time.

Goodrich testified that he pulled his folding knife from his pocket, opened the 

blade, and held it in his right hand because Luna was threatening him. Goodrich testified 

that he did not leave the picnic area because he had already set up his belongings for the 

night, and he wanted to stay there and defend his position.

Goodrich stepped forward, waved his knife at Luna, and thrust it forward. Luna 

backed away and continued to “bait” him, saying that Goodrich was too old and slow to 

catch him. Goodrich testified that he was not looking for a fight, but he was going to 

defend himself and hoped Luna would leave. Luna moved too far away for Goodrich to 

hit him, or he might have made a second thrust of the knife toward Luna. Webb and 

Samaniego did not say anything to him.

As Goodrich stepped toward Luna, Samaniego took Goodrich’s bicycle and 

pushed it behind some shrubs, about 18 to 20 feet away. Goodrich told Luna he was not

going to leave, and Luna could just as easily leave himself.

Goodrich testified that after moving the bicycle, Samaniego returned to the area 

where Goodrich was standing with Luna and Webb. Samaniego was carrying three 

construction tools: a metal shovel with a round-nosed spade, a steel axe, and a 

sledgehammer, all of which had long wooden handles. Samaniego kept the 

sledgehammer and gave the shovel to Webb and the axe to Luna.

The Assault

Goodrich testified that Luna, Webb, and Samaniego “converged” on him, and 

started “swinging” at him with the weapons they were holding. No one else was in the 

picnic area when defendants attacked him. Goodrich grabbed his backpack and folded 

tent in his left hand and used them as shields. He still held his knife in his right hand. 

Goodrich had to “dance” and “wheel around” because the three defendants surrounded 

him with their weapons.
5.

Goodrich tried to lunge at defendants with his knife, but they were able to stay 

away from him, and they attacked him with their long-handled tools. Goodrich did not 

believe he hit anyone with his knife.

Goodrich’s Testimony About Defendants’ Blows

On direct examination, Goodrich testified that he was “getting hit” by all three 

defendants, but “to say who with what weapon at what time hit me, I mean, I can’t tell 

that.”

“Q ... Mr. Luna, did he have a weapon?

“A Yes. He had the long-handled axe.

“Q And did he swing it at you?

“A Yes.

“Q And did he ever strike you?

“A Could be. I can’t tell you which weapon, you know, did 

what. I mean, sometimes I had my pack up. And, you know, their longhandled tools, they were coming over the top, you know? It was a [melee]. 

I can’t say ... which injury was caused by what weapon.

“Q So just to clarify, you are sure that Defendant Luna had a 

weapon and swung it at you, but you weren’t sure if that was one of the 

ones that you were able to successfully block or if it’s one of the one you 

weren’t able to block and it did strike you; is that accurate?

“A Yes...”

Goodrich testified that Webb had the shovel and was swinging it.

“Q And do you know whether or not [Webb] was successful in 

landing any of his strikes against you?

“A I would imagine. He had the longest weapon. He had the 

longest reach. But, you know, it was – like I say, it was – I was having to 

wheel around and watch everybody and try to fend off whatever blows I 

could.”
6.

Goodrich testified that Samaniego had the sledgehammer, used it against him, and 

was “swinging it over his head.”

“Q And can you tell us whether or not [Samaniego] was 

successful in actually landing a strike on you?

“A I can’t say which one, you know ... who landed what, you 

know, what caused what wound. I don’t know. I had abrasions on my 

body and got my skull cracked and my face broken and my nose broken.”

On further direct examination, Goodrich testified that all three defendants were 

swinging the tools “mostly” at his head and upper body. While he was not sure which 

defendant inflicted which injuries, he was sure that he was hit in the face and head 

multiple times, and “they were all swinging at me.”

“Q ... As to Defendant Luna, can you say with any certainty that 

you are sure he actually landed any of the blows he attempted on you?

“A Oh, yes.

“Q And to what level of certainty are you sure that he indeed 

successfully struck you with his weapon?

“A Oh, you mean to put a number on it?

“Q How sure are you?

“A Oh, I know he did. I can’t necessarily say exactly how many.

“Q Can you estimate ... how many times you are 100 percent 

sure that Luna struck you? [¶] ... [¶]

“[A] At least two.”

Goodrich was asked the same questions about Webb and testified that he was sure 

Webb actually landed blows on him.

“Q And how many of [Webb’s] attempted blows are you 100 

percent sure landed?

“A At least two.

“Q And –
7.

“A I know it – well, probably more, but at least two, yes.”

As to Samaniego, Goodrich testified that he was sure that he landed “[a]t least

two” blows on him with the sledgehammer. At one point, Samaniego swung the 

sledgehammer and missed him. Goodrich testified that Samaniego might have hit a 

picnic table with his sledgehammer as concrete shards flew around, but the shards did not 

hit him.

On cross-examination, the defense attorneys returned to the subject of the 

weapons:

“Q Who swung first?

“A Uh, William Webb with the long-handed shovel.”

Goodrich acknowledged he previously testified that he did not know who 

specifically hit him, that he later said each defendant hit him two times, and that “was an 

approximation, once to twice.”

“Q Well, was it an approximation, or was it a guess?

“A Well, at least – you know, I am not 100 percent sure of whom 

hit me with all of the blows and .... which person did ... each and every 

blow that connected with me. I do not know.

“Q So –

“A It was a flurry.”

Goodrich explained that as he testified, he had “more clarity” about the assault 

because he thought about what happened, and he could be more specific. “You were 

asking about if I knew how many times each and every one of them delivered blows to 

me through that [melee]. No, I do not. I do not have a specific count on it.” “The 

specific count as to how many times each and every one of them hit me? No, I don’t 

know that number.”

“Q So yesterday ... you could remember Mr. Webb specifically 

hitting you?
8.

“A Yes.

“Q So has that changed since yesterday?

“A As to specific blows that did connect? Yes, I can.

“Q And as you sit here today, you think each of them hit you two 

times?

“A Oh, yes. At least, yes.”

The Assault Ends

Goodrich testified that the three defendants eventually became tired, backed away, 

and the assault ended. Goodrich was exhausted. He sat down, caught his breath, 

announced he was leaving, and walked away from the picnic area. Goodrich headed 

toward the parking lot, about 50 to 70 feet away from the scene of the assault. The 

parking lot was illuminated by lights, and Goodrich thought he would be safe there. 

Goodrich had his backpack and tent but left behind his other possessions in the picnic 

area; he did not try to find his bicycle. Luna initially followed Goodrich into the parking 

lot and was “trying to hurry me along,” but stopped following him when Goodrich got to 

the lighted area.

Goodrich kept walking until he got to an intersection. He retrieved his cell phone 

from his backpack and called 911, and the police quickly arrived.

The Police Arrive

At 9:39 p.m., Madera Police Officer Santoyo responded and contacted Goodrich, 

who was sitting on a curb and appeared scared. The top right side of his head was 

actively bleeding. His face and hair were covered in blood, his right eye was swollen, 

and there was a laceration on the bridge of his nose.

Officer Santoyo testified that Goodrich said he had been in an altercation, gave his 

knife to Santoyo, and said he used it to defend himself.

Officer Santoya testified that Goodrich gave the following account of what 

happened and referred to the suspects by their first names. Goodrich said that Polo (later 
9.

identified as Luna) got very angry and told Goodrich if he did not hurry up and leave, he 

was going to have “his homeboys” beat him up, referring to Franky and Will (Samaniego 

and Webb). Goodrich said that he was afraid Polo, Franky, and Will were going to attack 

him. Goodrich pulled out his folding knife and told Polo to back up until he could get 

away. Polo did not have a weapon at that time but “rushed” him. Goodrich said that he 

swung his knife at Polo, and believed he made contact somewhere on Polo’s face. After 

that, he was attacked by Polo, Franky, and Will. Goodrich said that it was very dark, and 

he could not remember who used what weapon, but he remembered being hit by a shovel, 

an axe, and a knife. Goodrich said that he was able to fight his way out and escape.

Officer Santoyo went to the picnic area where the assault occurred, and it was very 

dark and “pitch black” there. The suspects were gone, but Santoyo found an axe with 

blood on it and a few of Goodrich’s belongings. He did not find Goodrich’s sleeping bag 

or bicycle.

Goodrich’s Injuries

Goodrich was taken by ambulance to the hospital that night. As a result of the 

assault, Goodrich suffered fractures to his skull and on the right side of his face, a broken 

nose, and abrasions to his arms, shoulder, and back of his neck. There was so much 

pressure caused by blood and fluid between his brain and skull, that physicians had to cut 

two tendons on the side of his eye to relieve the pressure. Goodrich was placed on a 

morphine drip to prevent seizures and antibiotics to prevent infections. He was released 

from the hospital on June 2, 2020. About four or five weeks after he was released, he 

returned to the hospital for removal of staples that were placed in his skull.

At the time of trial, five months after the assault, Goodrich still had blurry 

eyesight, dizzy spells, and high blood pressure that he did not have before.

Goodrich’s Pretrial Statements

On May 28, 2020, Officer Gonzales spoke with Goodrich on the telephone about 

the assault. At that time, Goodrich said that he believed Luna and Webb were having “a 
10.

side conversation together” in the picnic area, and “they were saying ‘Why hadn’t we 

killed him yet,’ ” referring to Goodrich. Goodrich said that three subjects hit him with an 

axe and shovel, and Webb retrieved the shovel and Samaniego retrieved the axe. 

Goodrich did not mention a sledgehammer. Goodrich said that Luna should have a large 

cut on his chin.

On June 1, 2020, Officer Gonzales met with Goodrich at the hospital, and testified 

that Goodrich was hooked up to monitors and IV bottles. Goodrich’s right eye was 

bruised, discolored, swollen, and he could not open it. There were bruises under his left 

eye. There were staples on a wound on top of his head, and scratches on his arms or 

upper torso. Gonzales took photographs of Goodrich’s injuries, and the pictures were 

introduced at trial.

On the same day, Officer Gonzales conducted a recorded interview with Goodrich. 

Goodrich said that he had heard Luna and Webb talking, and the “gist” of their 

conversation made him “wonder” if they were talking about killing him. Goodrich said 

that he cut Luna with his knife, and Luna should have a large cut on his chin area.

Goodrich said that he jumped on the picnic table as he tried to defend himself. Goodrich 

also said, “ ‘They were hitting stuff with their sledgehammers trying to scare me,’ ” 

someone hit a picnic table with a sledgehammer, and the table should be damaged. 

Goodrich said all three men followed him to the parking lot.

2

2 At trial, Goodrich testified that he never told anyone Samaniego retrieved an axe 

and Webb separately got a shovel; that there were multiple sledgehammers; that he was 

hit with a knife; he jumped on top of a table during the fight; he had to fight his way out 

to escape; all three defendants followed him to the parking lot area; or that any of the 

defendants threatened members of his family.

Goodrich admitted that during breaks in his trial testimony, he asked the 

prosecutor about certain aspects of the investigation, but that information did not affect 

his testimony, and he was not fabricating anything about the assault. While he asked the 

prosecutor about the case during the breaks, he testified, “[W]hat difference does it make 

whether who hit me? They were all trying to hit me.”
11.

The Arrests of Defendants and Their Statements

On June 1, 2020, Officer Gonzales came into contact with Webb at the picnic area 

where Goodrich was assaulted. Webb was with Samaniego.

On June 2, 2020, Officer Gonzales saw Luna riding a bicycle toward the picnic 

area. Gonzales was familiar with Luna because he had seen him about a month earlier at

the same picnic area when Luna was with Samaniego.

On June 2, 2020, Officer Brian Majors saw Luna riding a bicycle near Millview 

Middle School. Majors stopped Luna and placed him under arrest because of the 

investigation in this case. Majors noticed Luna had a cut on his chin and asked him about 

it. Luna said that he had fallen. Majors searched Luna and asked him if he had any 

contraband. Luna indicated that he had something in his pocket, and Majors found a 

white substance that appeared to be crystal methamphetamine.

Also on June 2, 2022, Officer Gonzales met with Luna at the police station, 

advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and 

Luna agreed to answer questions. Gonzales asked about the cut on his chin. Luna said 

that he had cut himself in a shaving accident. In response to questions, Luna said that he 

was known as “Polo,” and he knew Goodrich. He denied being in any type of altercation 

with Goodrich. Luna did not claim that Goodrich used a knife against him or that he had 

to defend himself against Goodrich.

Detective Gonzales testified that he separately interviewed Webb and Samaniego. 

In those interviews, both men acknowledged being at the picnic area on the evening of 

May 28, 2020.

DEFENSE EVIDENCE

None of the defendants testified. Luna and Samaniego did not introduce any 

defense evidence.

Webb called Yvette Paul, an investigator for the district attorney’s office, as a 

defense witness. Ms. Paul testified that she contacted Goodrich on September 1, 2020, to 
12.

get his consent to obtain his medical records. During this contact, Ms. Paul did not 

conduct a formal interview or ask any questions, but Goodrich started to talk about the 

assault. Goodrich said that “he believed the attack was premeditated,” and Webb “was 

waiting for him and that he had a shovel and used that to hit him with.” Goodrich said 

that after the assault, Webb told him not to tell anyone what had happened, or Webb 

would hurt Goodrich’s family. Goodrich said that Webb threatened to kill Goodrich’s 

sister in Visalia, his father and niece in Hanford, and other family members in Santa 

Barbara.

Goodrich also told Ms. Paul that, at a later date after the assault, he was sitting in a 

park and near a table, something hit the table and exploded; he thought someone shot at 

him. Goodrich said that on another day, he was sitting near a tree and heard a loud sound 

above him, like an explosion, and pieces of the tree fell around him; he thought it was 

another gunshot. Goodrich was not sure if these incidents had anything to do with the 

assault or were just coincidental.

PROCEDURAL BACKGROUND

On October 14, 2020, a first amended information was filed in the Superior Court 

of Madera County, charging defendants Luna, Webb, and Samaniego with count 1, 

assault with a deadly weapon (§ 245, subd. (a)(1)), with enhancements as to all three 

defendants, that they personally inflicted great bodily injury on Goodrich in the 

commission of the assault (§ 12022.7, subd. (a)). Luna was separately charged in count 2 

with misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, 

subd. (a)).

As to count 1, it was further alleged that Webb and Luna each had one prior strike 

conviction and one prior serious felony enhancement (§§ 667, subds. (a), (b)–(i), 

1170.12).
13.

Trial and Verdicts

On October 15, 2020, the joint trial began for the three defendants, with motions 

and jury selection.

On December 1, 2020, Webb, Luna, and Samaniego were convicted as charged of 

count 1, assault with a deadly weapon. The jury found true the enhancements attached to 

count 1, that Webb and Luna personally inflicted great bodily injury.

The jury was unable to reach a finding on the great bodily injury enhancement 

alleged as to Samaniego. The court declared a mistrial on that enhancement, and it was 

later dismissed.

Luna was found not guilty of count 2, misdemeanor possession.

The Court Trial on the Prior Conviction Allegations

The first amended information alleged that Webb and Luna each had one prior 

strike conviction and one prior serious felony enhancement, based on Luna’s prior 

conviction for assault with a deadly weapon in 2010 (§ 245, subd. (a)), and Webb’s prior 

conviction for commission of a lewd or lascivious act on a child under the age of 14 years 

in 1996 (§ 288, subd. (a)).

Luna and Webb waived a jury trial on the special allegations.

On December 4, 2020, the court held a bench trial on the truth of the prior 

conviction allegations. The prosecutor introduced documentary exhibits consisting of 

certified copies of abstracts of judgment, and the chronological/movement history for 

both defendants from the California Department of Corrections and Rehabilitation 

(CDCR).

The defense attorneys did not object to the exhibits and submitted the matter, and 

the court admitted the documentary exhibits into evidence. The court found all prior 

conviction allegations to be true beyond a reasonable doubt for both Luna and Webb.
14.

Luna’s Sentencing Hearing3

On January 15, 2021, the court conducted the sentencing hearing for Luna. The 

court denied Luna’s motion to dismiss the prior serious felony enhancement and imposed 

an aggregate sentence of 16 years, based on the upper term of four years for assault, 

doubled to eight years as the second strike term, plus three years for the great bodily 

injury enhancement, and five years for the serious felony enhancement.

The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), suspended the 

parole revocation fine in the same amount (§ 1202.45), and ordered victim restitution in 

an amount to be determined.

The court imposed a total fine of $890 pursuant to section 245, subdivision (a)(1). 

Both parties waived enumeration of the elements of that fine.

The court imposed a fee of $73 per day for the cost of court-ordered confinement 

(§ 1203.1, subd. (a)), and a booking fee of $108.19 payable to the City of Madera (Gov. 

Code, § 29550.2); and granted Luna’s motion to strike the felony presentence fee of 

$750.

Webb’s Sentencing Hearing

On January 29, 2021, the court conducted Webb’s sentencing hearing and denied 

his request to dismiss the prior strike conviction. As to count 1, assault with a deadly 

weapon, the court imposed the upper term of four years, doubled to eight years as the 

second strike sentence, plus consecutive terms of three years for the great bodily injury 

enhancement and five years for the prior serious felony conviction, for an aggregate 

sentence of 16 years.

3

In parts IV, V, and VI, post, we will address defendants’ sentencing hearings in 

detail, as relevant to their appellate contentions that the court improperly imposed upper 

terms in violation of Senate Bill 567’s amendments to section 1170, subdivision (b).
15.

The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), suspended the 

parole revocation fine in the same amount (§ 1202.45), and ordered victim restitution in 

an amount to be determined.

The court imposed a total fine of $890 pursuant to section 245, subdivision (a)(1). 

Both parties waived enumeration of the elements of that fine.4

The court also imposed a $750 felony presentence fee, a fee of $73 per day for the 

cost of court-ordered confinement (§ 1203.1, subd. (a)), and a booking fee of $108.19 

payable to the City of Madera (Gov. Code, § 29550.2).

CONSOLIDATION OF APPEALS

On January 20 and February 24, 2021, Luna and Webb, respectively, filed timely 

notices of appeal. Samaniego is not part of the instant appeal.

On August 2, 2021, Webb and Luna jointly moved for consolidation of their 

appeals.

On August 17, 2021, this court granted the motion and consolidated Webb’s 

appeal with that of Luna under case No. F082309.

Appellant Contentions

While we consolidated the appeals, Luna and Webb have filed separate briefs in 

this case.

In Webb’s opening brief, he argued there was insufficient evidence to support the 

jury’s true finding on the great bodily injury enhancement because Goodrich was unable 

to specify which defendant inflicted which injury upon him. Webb argued the matter 

must be remanded because the sentencing court failed to enumerate the individual 

components of the $890 fine and that his credits on the abstract of judgment must be 

corrected. Webb also joined any issues raised by Luna that are applicable to his case.

4

In part II, post, we will address Webb’s arguments that the court failed to 

enumerate this fine.
16.

In Luna’s opening brief, he joined Webb’s argument that there is insufficient 

evidence to support the great bodily injury enhancement because of Goodrich’s inability 

to testify as to who inflicted the injuries on him.

Luna filed a supplemental opening brief, and argued remand is required for the 

court to reconsider imposition of the upper term in light of the enactment of Senate Bill 

No. 567 (2021–2022 Reg. Sess.).

In Webb’s reply brief, he joined Luna’s argument that remand is required for the 

court to reconsider the upper term after the enactment of Senate Bill 567 (2021–2022 

Reg. Sess.). Luna filed a reply brief but did not request to join Webb’s other appellate 

arguments.

DISCUSSION

I. Substantial Evidence of the Great Bodily Injury Enhancements

Webb and Luna argue there is insufficient evidence to support the jury’s true 

findings on the enhancements that they personally inflicted great bodily injury on 

Goodrich in the commission of the assault. Webb and Luna acknowledge there was “no 

real question Goodrich suffered injuries, including some great bodily injuries.” They 

argue, however, there is insufficient evidence to prove which defendant inflicted the 

blows that actually landed on his face and head, and Goodrich’s testimony about the 

assault was inconsistent and undermined by his prior statements.

A. Substantial Evidence

“ ‘We review the sufficiency of the evidence to support an enhancement using the 

same standard we apply to a conviction.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 

806.) “[W]e must determine whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime ... beyond a reasonable doubt. We review the entire record in the 

light most favorable to the judgment below to determine whether it discloses sufficient 

evidence – that is, evidence that is reasonable, credible, and of solid value – supporting 
17.

the decision, and not whether the evidence proves guilt beyond a reasonable doubt. 

[Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses.

[Citation.] We presume in support of the judgment the existence of every fact the jury 

reasonably could deduce from the evidence.” (People v. Jennings (2010) 50 Cal.4th 616, 

638–639.)

“The same standard governs in cases where the prosecution relies primarily on 

circumstantial evidence. [Citation.] We ‘must accept logical inferences that the jury 

might have drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it 

is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible 

of two reasonable interpretations, one of which suggests guilt and the other innocence, it 

is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond 

a reasonable doubt. [Citation.]’ [Citation.] Where the circumstances reasonably justify 

the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also 

reasonably be reconciled with a contrary finding does not warrant the judgment’s 

reversal.” (People v. Zamudio (2008) 43 Cal.4th 327, 357–358.)

B. Personal Infliction of Great Bodily Injury

Section 12022.7, subdivision (a) defines the great bodily injury enhancement that 

the jury found true in this case: “Any person who personally inflicts great bodily injury 

on any person other than an accomplice in the commission of a felony or attempted 

felony shall be punished by an additional and consecutive term of imprisonment in the 

state prison for three years.”

The phrase “great bodily injury” as used in section 12022.7 is defined as “ ‘bodily 

injury which is significant or substantial, not insignificant, trivial or moderate.’ 

[Citation.] ‘[T]he injury need not be so grave as to cause the victim “ ‘permanent,’

‘prolonged,’ or ‘protracted’ ” bodily damage.’ ” (People v. Quinonez (2020) 

46 Cal.App.5th 457, 464.) “ ‘Proof that a victim’s bodily injury is “great” – that is, 

significant or substantial within the meaning of section 12022.7 – is commonly 
18.

established by evidence of the severity of the victim’s physical injury, the resulting pain, 

or the medical care required to treat or repair the injury.’ [Citation.] While ‘any medical 

treatment obtained by the victim is relevant to determining the existence of “great bodily 

injury” [citation], the statutory definition and relevant ... instruction ... do not require a 

showing of necessity of medical treatment. Nor are we aware of any case authority 

imposing such a requirement.’ ” (Ibid.) “[D]etermining whether a victim has suffered 

physical harm amounting to great bodily injury is not a question of law for the court but a 

factual inquiry to be resolved by the jury.” (People v. Cross (2008) 45 Cal.4th 58, 64.)

This type of enhancement “arise[s] from the circumstances of the crime and 

typically focus[es] on what the defendant did when the current offense was committed.” 

(People v. Coronado (1995) 12 Cal.4th 145, 157; People v. Ollo (2021) 11 Cal.5th 682, 

687 (Ollo).)

The meaning of “personally inflict” as used in section 12022.7 “is clear and 

unambiguous in the context of injuries resulting from the direct application of physical 

force. [Citation.] Commonly understood, the term ‘personally’ refers to ‘an act 

performed “in person,” and involving “the actual or immediate presence or action of the 

individual person himself (as opposed to a substitute, deputy, messenger, etc.).” ’ 

[Citation.] The verb ‘to inflict’ means ‘ “to lay (a blow) on: cause (something damaging 

or painful) to be endured: impose.” ’ [Citation.] The meaning of the statutory 

requirement that a defendant personally inflict the victim’s injury does not differ from its 

nonlegal meaning. [Citation.] ‘[T]he phrase “personally inflicts” means that someone 

“in person” ..., that is, directly and not through an intermediary, “cause[s] something 

(damaging or painful) to be endured.” ’ ” (Ollo, supra, 11 Cal.5th at pp. 687–688.)

C. Group Assaults and the Personal Infliction Enhancement

Defendants do not dispute that Goodrich suffered great bodily injury. They 

contend, however, there is insufficient evidence that each defendant personally inflicted 

great bodily injury upon him during the group assault.
19.

“[O]ne who merely aids, abets, or directs another to inflict the physical injury is 

not subject to the enhanced penalty of section 12022.7.” (People v. Cole (1982) 

31 Cal.3d 568, 571; People v. Rodriguez (1999) 69 Cal.App.4th 341, 348–349.)

Cole has been repeatedly distinguished in cases where multiple defendants have 

been convicted of assault, with enhancements found true for the personal infliction of 

great bodily injury, when there has been a group beating. In People v. Dominick (1986) 

182 Cal.App.3d 1174, the court upheld a section 12022.7 enhancement for a defendant 

who did not actually strike the victim, but who grabbed her hair and held her so that she 

could be hit by another. Dominick affirmed the enhancement for personal infliction of 

great bodily injury because these acts “constituted more than aiding and abetting,” and 

contributed to the great bodily injury the victim suffered. (Id. at p. 1211.)

In People v. Corona (1989) 213 Cal.App.3d 589 (Corona), the court created an 

express exception to Cole in the group beating context. “While Cole has logical 

application with regard to the section 12022.7 culpability of an aider and abettor who 

strikes no blow, it makes no sense when applied to a group pummeling. Central to Cole

is the conclusion that the deterrent intent of section 12022.7 is served by directing its 

increased punishment at the actor who ultimately inflicts the injury. Applying Cole

uncritically in the context of this case does not create a deterrent effect. Rather it would 

lead to the insulation of individuals who engage in group beatings. Only those whose 

foot could be traced to a particular kick, whose fist could be patterned to a certain blow or 

whose weapon could be aligned with a visible injury would be punished. The more 

severe the beating, the more difficult would be the tracing of culpability.” (Corona, at 

p. 594, italics added.)

Corona declined to state a “universally applicable test” but held that “when a 

defendant participates in a group beating and when it is not possible to determine which 

assailant inflicted which injuries, the defendant may be punished with a great bodily 
20.

injury enhancement if his conduct was of a nature that it could have caused the great 

bodily injury suffered.” (Corona, supra, 213 Cal.App.3d at p. 594.)

The Supreme Court addressed group assaults in People v. Modiri (2006) 

39 Cal.4th 481 (Modiri). In that case, the defendant was at a party and participated in a 

group attack that left the victim with serious injuries. “The evidence showed that [the] 

defendant personally applied physical force to the victim several times. However, chaos 

at the scene prevented witnesses from linking the victim’s injuries to a particular 

assailant, weapon, or blow.” (Id. at p. 485.) The defendant was convicted of felony 

assault with a deadly weapon. “To enhance the sentence in any future prosecution, the 

jury sustained an allegation that, in the course of the assault, [the] defendant ‘personally 

inflict[ed] great bodily injury’ on the victim. (§ 1192.7, subd. (c)(8) ....” (Ibid.)

As to the personal infliction allegation in Modiri, the trial court gave CALJIC 

No. 17.20, that stated the “defendant must personally have inflicted great bodily harm. 

The same instruction also said that if he participated in a group attack, and jurors could 

not decide which person inflicted which injury, the allegation could be sustained if [the] 

defendant personally applied physical force to the victim either (1) of a nature that, ‘by 

itself,’ could have caused great bodily injury, or (2) under such circumstances that the 

‘cumulative effect’ of the force used by all participants would have caused the injury.” 

(Modiri, supra, 39 Cal.4th at pp. 485–486.)

Modiri approvingly cited Corona and Dominick, held that CALJIC No. 17.20 was 

a correct statement of the law, and concluded that a defendant, who participated in a 

group beating, could be found to have personally inflicted great bodily injury on the 

victim. (Modiri, supra, 39 Cal.4th at p. 486.)

“No instructional error occurred at trial. For 20 years, courts have 

upheld personal-infliction findings where the defendant physically joins a 

group attack, and directly applies force to the victim sufficient to inflict, or 

contribute to the infliction of, great bodily harm. Consistent with the 

statutory language and the manner in which it has been judicially construed, 
21.

the defendant need not be the sole or definite cause of a specific injury. 

[T]hese group beating principles have been accepted by the Legislature. 

CALJIC No. 17.20 duly describes them. A contrary approach would mean 

that those who perpetrate mob violence and inflict gratuitous injury would 

often evade enhanced punishment.” (Ibid., italics added.)

In reaching this conclusion, Modiri acknowledged and limited the holding in Cole:

“... Cole stands for the modest proposition that a defendant personally 

inflicts great bodily harm only if there is a direct physical link between his 

own act and the victim’s injury. Under Cole, someone who does not strike 

or otherwise personally use force upon the victim does not qualify for 

enhanced punishment where the personal infliction of harm is required.

... CALJIC No. 17.20 follows this rule. However, consistent with the 

instruction, nothing in Cole precludes a person from receiving enhanced 

sentencing treatment where he joins others in actually beating and harming 

the victim, and where the precise manner in which he contributes to the 

victim’s injuries cannot be measured or ascertained.” (Modiri, supra, 

39 Cal.4th at p. 495, italics added.)

Modiri held that while California’s courts have followed Cole, “participation in a 

group attack may satisfy sections 1192.7[, subdivision] (c)(8) and 

12022.7[, subdivision] (a) where the defendant personally uses force against the victim, 

and the precise injurious effect is unclear.” (Modiri, supra, 39 Cal.4th at pp. 495–496.)

Modiri recognized two theories where liability may be imposed for personal 

infliction of great bodily injury in group beating situations. (Modiri, supra, 39 Cal.4th at 

p. 496.) In one type of a group beating, “the force personally used by the defendant

during a group attack was serious enough that it may, by itself, have caused great bodily

injury, even though the evidence did not show for certain that the defendant’s acts alone

perpetrated specific harm or that nobody else injured the victim.” (Ibid.) In the second 

type of group-beating cases, “a personal-infliction finding [was affirmed] where the

physical force the defendant and other persons applied to the victim at the same time

combined to cause great bodily harm.” (Ibid.)

Modiri held these two theories, as applied to group beating cases, were sound 

because “those who participate directly and substantially in a group beating should not be 
22.

immune from a personal-infliction finding for the sole reason that the resulting confusion 

prevents a showing or determination of this kind.” (Modiri, supra, 39 Cal.4th at pp. 496–

497.)

“Defendant’s contrary view would mean that ‘[o]nly those whose foot 

could be traced to a particular kick, whose fist could be patterned to a 

certain blow or whose weapon could be aligned with a visible injury would 

be punished. The more severe the beating, the more difficult would be the 

tracing of culpability.’ [Citation.] Under such circumstances, all 

participants in a group attack who personally caused or contributed to the 

infliction of harm could conceivably escape enhanced punishment. Given 

the apparent goal of deterring and punishing gratuitous violence, the 

drafters of sections 1192.7(c)(8) and 12022.7(a) could not have intended 

that result.” (Id. at p. 497, citing Corona, supra, 213 Cal.App.3d at p. 594; 

Ollo, supra, 11 Cal.5th at pp. 688–689.)

Modiri held CALJIC No. 17.20 reasonably and correctly conveyed the operative 

legal principles. (Modiri, supra, 39 Cal.4th at p. 493)

“CALJIC No. 17.20 requires jurors to first determine the defendant’s guilt 

of the charged crime. The instruction applies if they then decide that he

‘participate[d]’ in a group beating, and that ‘it is not possible’ to determine 

which assailant inflicted a particular injury. [Citation.] Both prongs of the 

instruction permit a personal-infliction finding in this instance only if the 

defendant personally ‘appli[es] unlawful physical force’ to the victim. 

[Citation.] CALJIC No. 17.20 makes clear that the physical force 

personally applied by the defendant must have been sufficient to produce 

great bodily injury either (1) by itself, or (2) in combination with other 

assailants. Both group beating theories exclude persons who merely assist 

someone else in producing injury, and who do not personally and directly 

inflict it themselves.

“It bears emphasis that CALJIC No. 17.20 contemplates acts that 

contribute substantially to the victim’s injured state. By definition, ‘force’

involves ‘power, violence, compulsion, or constraint exerted upon or 

against a person.’ [Citations.] Also, the instruction’s group beating 

theories preclude a section 1192.7[, subdivision] (c)(8) finding where the 

defendant’s conduct ‘could [not] have,’ or ‘would [not have],’ caused or 

contributed to the requisite harm. [Citation.] In light of these 

qualifications, the defendant’s role in both the physical attack and the 

infliction of great bodily injury cannot be minor, trivial, or insubstantial. 
23.

The instruction thus does not conflict with the statutory language in the 

manner [the] defendant suggests.” (Id. at pp. 493–494, italics added.)

Modiri affirmed the jury’s finding on the great bodily injury allegation. (Modiri, 

supra, 39 Cal.4th at pp. 486, 501–502.)

“Here, after initially punching Schon [the victim] in the face, [the] 

defendant was seen in the group of 10 to 15 people who swarmed and beat 

Schon after he had been knocked down. The evidence suggested that [the] 

defendant also struck Schon on the head with bottles during the melee .... 

However, the violence initiated by [the] defendant and escalated by the 

group prevented any evidence or determination whether [the] defendant’s 

blows were the exact ones that broke Schon’s nose, cut his head, or caused 

other trauma. Under CALJIC No. 17.20, a personal-infliction finding could 

nonetheless be made if [the] defendant personally applied force to the 

victim, and such force was sufficient to produce grievous bodily harm 

either alone or in concert with others. Thus, use of this instruction in the 

present case followed statutory law, as applied by the courts.” (Id. at 

p. 497, italics added.)

In People v. Dunkerson (2007) 155 Cal.App.4th 1413 (Dunkerson), the defendant 

was convicted of assault after a group beating, with an enhancement for personally 

inflicting great bodily injury. On appeal, he argued the court erroneously gave 

CALCRIM No. 3160, the successor instruction to CALJIC No. 17.20, because it 

“improperly allowed the jury to find he personally inflicted great bodily injury even 

though others in the group may have caused the injury.” (Dunkerson, at p. 1414.)

Dunkerson held there was no instructional error because Modiri rejected identical 

arguments “involving CALJIC No. 17.20, which is not materially different from 

CALCRIM No. 3160 with respect to the issue raised by [the] defendant.” (Dunkerson, 

supra, 155 Cal.App.5th at p. 1414.) Dunkerson held that CALJIC No. 17.20 and 

CALCRIM No. 3160 “each provide the jury with the same guidance, allowing the jury to 

find that the defendant personally inflicted great bodily injury during a group assault 

where it is impossible to determine which person caused which injury to the victim.” 

(Dunkerson, at p. 1418.) As to the specific facts of that case, Dunkerson held:
24.

“Even though it might be difficult to link [the victim’s] specific 

injuries to specific blows by [the] defendant, the evidence showed that [the] 

defendant personally applied physical force to [the victim] several times. 

When [the defendant’s mother] told [the] defendant that [the victim] hit her, 

[the] defendant was the first to attack [the victim]. During the melee of 

blows to his head and ribs, it seemed to [the victim] that most of the force 

was coming from [the] defendant. It was [the] defendant who commanded 

that the group put [the victim] against the couch. And it was [the] 

defendant who stayed an extra few seconds after the rest of the group left to 

deliver eight to 10 more kicks to [the victim’s] head.” (Ibid.)

D. CALCRIM No. 3160

The jury in this case was instructed with CALCRIM No. 875 on the elements of 

the charged offense of assault with a deadly weapon, as alleged in count 1.

As relevant to defendants’ arguments, the jury was also instructed with CALCRIM 

No. 3160 on the great bodily injury enhancement and group assaults. This instruction 

was approved in Dunkerson as providing the same guidance as CALJIC No. 17.20, that 

itself was approved in Modiri. As given to the jury in this case, CALCRIM No. 3160 

stated:

“If you find the defendants or any of them guilty of the crime charged in 

Count 1, assault with a deadly weapon, you must then decide whether the 

People have proved the additional allegation that the defendant personally 

inflicted great bodily injury upon Kevin Goodrich during the commission 

of that crime.

“ ‘Great bodily injury’ means significant or substantial physical 

injury. It is an injury that is greater than minor or moderate harm.

“If you conclude that more than one person assaulted Kevin 

Goodrich and you cannot decide which person caused which injury, you 

may conclude that the defendant personally inflicted great bodily injury on 

Kevin Goodrich if the People have proved that:

“One, two or more people acting at the same time assaulting Kevin 

Goodrich and inflicted great bodily injury on him;

“Two, the defendant personally used physical force on Kevin 

Goodrich during the group assault;
25.

“And, three, the amount or type of physical force the defendant used 

on Kevin Goodrich was enough that it alone could have caused Kevin 

Goodrich to suffer great bodily injury.

“The defendant must have applied substantial force to Kevin 

Goodrich. If that force could not have caused or contributed to great 

bodily injury, then it was not substantial.

“The People have the burden of proving each allegation beyond a 

reasonable doubt. If the People have not met this burden, you must find 

that the allegation has not been proved.” (Italics added.)

The jury was also instructed with CALCRIM No. 3470, that lawful self-defense or 

defense of others was a defense to count 1, assault with a deadly weapon; that a 

defendant was not guilty if he reasonably believed he or someone else was in imminent 

danger of suffering bodily injury or of being unlawfully touched, that the immediate use 

of force was necessary, and he used no more force than was reasonably necessary to 

defend against the danger; that a defendant was not required to retreat and was entitled to 

stand his ground and defendant himself, if reasonably necessary, to pursue the assailant 

even if safety could have been achieved by retreating; and the People had the burden to

prove beyond a reasonable doubt that defendant did not act in lawful self-defense or 

defense of others.

E. Closing Arguments

In his closing argument, the prosecutor reviewed the language of CALCRIM 

No. 3160 about group assaults, and argued it was applicable because Goodrich testified 

that the three defendants attacked him simultaneously; the axe, sledgehammer, and 

shovel were deadly weapons; each defendant had a deadly weapon and used it to assault 

him; and Goodrich’s head and skull injuries constituted great bodily injuries. The 

prosecutor argued that based on Goodrich’s testimony, “being hit with a shovel, being hit 

with an axe, or being hit with a sledgehammer, all three of those are the type of physical 

force that were used on him. And those individually and alone could have caused Kevin 

Goodrich to suffer great bodily injury.”
26.

In their separate closing arguments, each defense attorney attacked Goodrich’s 

credibility, his inconsistent statements about the incident, that he was the first person who 

pulled a knife and cut Luna, and he was the instigator.

Luna’s attorney argued that Luna was not guilty because he was engaged in lawful 

self-defense and, in the alternative, he was only guilty of a simple assault. Webb’s 

attorney argued that he was not guilty because there was no crime, and Webb may have 

stepped in to help Luna after Goodrich slashed him.

F. Defendants’ Appellate Arguments

Webb and Luna agree, for the purposes of this appeal, “that each defendant used a 

deadly weapon at the time of the assault,” and the jury was properly instructed with 

CALCRIM No. 3160. Webb further agrees there was substantial evidence that he 

“swung a shovel at Goodrich,” and does not dispute that he “swung at Goodrich’s head” 

and “at least of two of [his] swings actually landed on Goodrich’s body.”

Nevertheless, defendants Luna and Webb argue the great bodily injury 

enhancements must be stricken because there is “no telling ... which defendant struck a 

substantial blow that actually landed on Goodrich’s face and head.” They argue that 

Goodrich’s trial testimony was inconsistent about “which weapons were used and by 

whom during the assault,” he could not connect any particular defendant to any weapon 

and any specific bodily injury, and his testimony changed throughout trial.

Defendants further argue that even in a group assault case, the prosecution must 

prove beyond a reasonable doubt “that at least one of the defendant’s blows were applied 

to the victim with such substantial force that it alone could have caused the great bodily 

injury.” The prosecution “was never able to establish beyond a reasonable doubt that all 

three defendants actually landed a blow to Goodrich’s face and head area which by itself 

could have caused the great bodily injuries.”
27.

G. Analysis

The arguments raised by Luna and Webb are meritless. CALCRIM No. 3160 

correctly stated the elements for an enhancement for personal infliction of great bodily 

injury during a group assault – that two or more people assaulted Goodrich at the same 

time and inflicted great bodily injury on him; each defendant personally used physical 

force during the assault; and each defendant used the amount or type of force that alone 

could have caused Goodrich to suffer great bodily injury. The jury was further instructed 

that each defendant must have applied substantial force to Goodrich and, if that force 

could not have caused or contributed to great bodily injury, then it was not substantial.

Luna and Webb have conceded Goodrich suffered great bodily injuries as a result 

of the group assault. The trial evidence established Goodrich was assaulted by Luna and 

Webb at the same time, and no one else was present when the defendants converged on 

him with their weapons.5 Goodrich testified that Webb used a metal shovel with a roundnosed spade, and Luna used a steel axe, and each defendant was able to hit him with their 

weapons.

Goodrich repeatedly and consistently testified the defendants hit him with their 

weapons, and they hit him “mostly” in his head and upper body – an account consistent 

with the fractures to Goodrich’s skull and the right side of his face. While he was not 

sure which defendant inflicted which injuries, he testified that “they were all swinging at 

me,” and he was hit in the face and head multiple times – again, an account completely 

consistent with suffering a fractured skull and face. When asked to clarify the number of 

blows, he was certain Luna hit him at least twice with the axe and Webb hit him at least 

twice with the shovel. On cross-examination, Goodrich acknowledged he did not have “a 

5 We limit our analysis to the evidence about Luna and Webb, since Samaniego is 

not part of the instant appeal, and the jury did not reach a finding on the great bodily 

injury enhancement attached to his conviction.
28.

specific count” about the number of blows inflicted by each defendant and his testimony 

“was an approximation, once to twice.”

As set forth in Modiri and CALCRIM No. 3160, the jury’s true findings on the 

great bodily injury enhancements for Luna and Webb are supported by substantial 

evidence. Goodrich was assaulted by defendants, they each had a weapon, an axe found 

in the picnic area had blood on it, and he suffered a skull fracture and other great bodily 

injuries to his head and face that required surgery and were consistent with such an 

assault.

Nevertheless, defendants assert that Goodrich’s testimony still lacked specificity 

to support the enhancements, because he could not state that any of the defendants 

inflicted a particular blow that would have inflicted great bodily injury to his face or 

head.6 As explained in Midori, however, such an argument “would mean that ‘[o]nly 

those whose foot could be traced to a particular kick, whose fist could be patterned to a 

certain blow or whose weapon could be aligned with a visible injury would be punished. 

The more severe the beating, the more difficult would be the tracing of culpability.’ 

[Citation.] Under such circumstances, all participants in a group attack who personally 

caused or contributed to the infliction of harm could conceivably escape enhanced 

punishment. Given the apparent goal of deterring and punishing gratuitous violence, the 

6 Defendant states the prosecutor relied on CALCRIM No. 3160 in closing 

argument when he asserted that while Goodrich could not tell which person hit him 

where, “ ‘he did testify that all three hit him and all three hit him in his face and head 

area.’ ” Defense counsel now argues, for the first time, that the prosecutor’s closing 

argument “was not supported by the evidence” because the prosecutor was never able to 

establish beyond a reasonable doubt that “all three defendants actually landed a blow to 

Goodrich’s face and head area which by itself could have caused the great bodily 

injuries.” To the extent that defendants may be raising a claim of prosecutorial 

misconduct, the issue has been forfeited because there were no objections to this portion 

of the prosecutor’s closing argument. (People v. Mendoza (2016) 62 Cal.4th 856, 905.) 

Moreoever, the prosecutor’s argument was fair commentary on Goodrich’s trial 

testimony.
29.

drafters of sections 1192.7[, subdivision] (c)(8) and 12022.7[, subdivision] (a) could not 

have intended that result.” (Modiri, supra, 39 Cal.4th at p. 497; Ollo, supra, 11 Cal.5th at 

pp. 688–689.)

Defendants further argue Goodrich’s credibility was undermined by his 

inconsistent statements about the sequence of events during the group assault, each 

defendant’s conduct, the type of weapons that were used, and his own conduct. In 

reviewing the jury’s true findings on enhancements for substantial evidence, “ ‘[i]t is for 

the trier of fact to consider internal inconsistencies in testimony’ [citation], and it is for 

[the appellate court] when reviewing for substantial evidence to resolve the

inconsistencies in favor of the verdict.” (People v. Collins (2021) 65 Cal.App.5th 333, 

345.) “[U]nless the testimony is physically impossible or inherently improbable, 

testimony of a single witness is sufficient to support a conviction.” (People v. Young

(2005) 34 Cal.4th 1149, 1181.) Reversal is “unwarranted unless it appears ‘that upon no 

hypothesis whatever is there sufficient substantial evidence to support [the conviction.]’ ” 

(People v. Bolin (1998) 18 Cal.4th 297, 331.) Goodrich was subject to extensive crossexamination by the defense attorneys, who cited his inconsistent statements in their 

closing arguments in support of their assertions that the prosecution failed to prove the 

truth of the enhancements beyond a reasonable doubt. The jury obviously rejected these 

defense arguments, including their claims of self-defense. There was nothing physically 

impossible or inherently improbable in Goodrich’s trial testimony.

Goodrich’s testimony, viewed in the light most favorable to the judgment and 

resolving all conflicting inferences in favor of the prosecution, was sufficient for a 

rational trier of fact to find beyond a reasonable doubt that Luna and Webb personally 

inflicted great bodily injury on him during the group assault.
30.

II. The Court’s Imposition of the $890 Fine

Webb contends the court improperly imposed the $890 fine at the sentencing 

hearing without enumerating the individual components of that fine, and defense 

counsel’s waiver of such enumeration does not amount to a forfeiture.

Webb concedes an enumeration of the fine is contained in the minute order and 

abstract of judgment, and that enumeration is identical to the recommendation in the 

probation report. Nevertheless, Webb argues the trial court failed to enumerate the 

amount or cite to the enumeration in the probation report when it imposed the $890 fine 

at the sentencing hearing, defense counsel could not waive this enumeration, and the 

matter must be remanded to clarify the statutory basis for the imposition of the $890 fine. 

As we will explain, Webb’s argument is refuted by the record and meritless.7

A. The Trial Court’s Duty to Enumerate Fines

Webb was convicted of a violation of section 245, subdivision (a)(1), assault with 

a deadly weapon, which states the punishment shall include imprisonment in state prison 

for two, three, or four years, or in a county jail for not exceeding one year, or by a fine 

not exceeding $10,000, or by both the fine and imprisonment.

“ ‘[A] fine ... is part of the judgment which the abstract must “ ‘digest or 

summarize.’ ” ’ ” (People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) A trial 

court’s failure “to specify the statutory bases for the fine, fees, and penalty assessments

imposed” is legal error and may be reviewed on appeal even in the absence of an 

objection. (People v. Hartley (2016) 248 Cal.App.4th 620, 636.)

High held that “[a]lthough we recognize that a detailed recitation of all the fees, 

fines and penalties on the record may be tedious, California law does not authorize 

shortcuts. All fines and fees must be set forth in the abstract of judgment.” (High, supra, 

119 Cal.App.4th at p. 1200, italics added.)

7 Luna did not join this argument on appeal. As will be explained, such an 

argument would also be meritless as to Luna.
31.

“The abstract of judgment form used here ... provides a number of lines for 

‘other’ financial obligations in addition to those delineated with statutory 

references on the preprinted form. If the abstract does not specify the 

amount of each fine, the Department of Corrections cannot fulfill its 

statutory duty to collect and forward deductions from prisoner wages to the 

appropriate agency. [Citation.] At a minimum, the inclusion of all fines 

and fees in the abstract may assist state and local agencies in their 

collection efforts. [Citation.] Thus, even where the Department of 

Corrections has no statutory obligation to collect a particular fee ..., the fee 

must be included in the abstract of judgment.” (Ibid.)

There are several ways for the trial court to perform the duty addressed in High to 

enumerate fines and fees. “A trial court could recite the amount and statutory basis for 

any base fine and the amounts and statutory bases for any penalty assessments on the 

record, as High suggests should be done. [Citation.] Or, in cases where the amounts and 

statutory bases for the penalty assessments have been set forth in a probation report, a 

sentencing memorandum, or some other writing, the court could state the amount and 

statutory basis for the base fine and make a shorthand reference in its oral pronouncement 

to ‘penalty assessments as set forth in the’ probation report, memorandum, or ... 

writing ....” (People v. Hamed (2013) 221 Cal.App.4th 928, 939–940; Hartley, supra,

248 Cal.App.4th at pp. 636–637.) “[T]rial courts frequently orally impose the penalties 

and surcharge discussed above by a shorthand reference to ‘penalty assessments.’ The 

responsibility then falls to the trial court clerk to specify the penalties and surcharge in 

appropriate amounts in the minutes and, more importantly, the abstract of judgment. This 

is an acceptable practice.” (People v. Sharret (2011) 191 Cal.App.4th 859, 864.)

B. The Probation Report

As relevant to Webb’s argument, the probation report recommended the $890 fine 

as follows:

“$890 Fine per 245(a)(1) PC which consists of:

“$200 Base Fine.
32.

“$340 State and Local Penalty Assessment per 1464 PC & 76000 

GC.

“$40 Criminal Surcharge per 1465.7 PC.

“$100 State Court Facility per 70372(a) GC.

“$40 Court Operations Assessment per 1465.8(a) PC ($40 per 

convicted Charge).

“$100 DNA Penalty Assessment per 76104.6/.7 GC.

“$40 EMS per 76000.5 GC.

“$30 Criminal Conviction Assessment per GC 70373 ($30 per 

convicted Charge).”

C. The Sentencing Hearing

At Webb’s sentencing hearing, the court imposed the restitution fine and then 

imposed the $890 fine as follows:

“[THE COURT]: $890 fine pursuant to Penal Code Section 

245, subdivision (a), subdivision (1). [¶] Do the People waive enumeration 

of the elements of that fine?

“[THE PROSECUTOR]: Yes, Your Honor.

“THE COURT: Waived by the Defense?

“[WEBB’S COUNSEL]: So waived.”

D. The Minute Order

The minute order for Webb’s sentencing hearing stated the court imposed the $890 

fine, that defense counsel waived reading the enumeration, and stated the same 

enumeration and statutory basis for each element of the fine, identical to that contained in 

the probation report as follows:

“$890 Fine per 245(a)(1) PC, counsel waive reading of the enumeration of 

the elements of the fine, which consists of:

“$200 Base Fine.
33.

“$340 State and Local Penalty Assessment per 1464 PC & 76000 

GC.

“$40 Criminal Surcharge per 1465.7 PC.

“$100 State Court Facility per 70372(a) GC.

“$40 Court Operations Assessment per 1465.8(a) PC ($40 per 

convicted Charge).

“$100 DNA Penalty Assessment per 76104.6/.7 GC.

“$40 MS per76000.5GC.

“$30 Criminal Conviction Assessment per GC 70373 ($30 per 

convicted Charge).”

E. The Abstract of Judgment

Finally, item No. 8 in Webb’s abstract of judgment stated the court’s order for the 

$890 fine, and the breakdown and statutory basis for that fine as follows:

“$890 Fine per 245(a)(1) PC which consists of: $200 Base Fine, $340 State 

and Local Penalty Assessment per 1464 PC & 76000 GC, $40 Criminal 

Surcharge per 1465.7 PC, $100 State Court Facility per 70372(a) GC, $40 

Court Operations Assessment per 1465.8(a) PC ($40 per convicted 

Charge), $100 DNA Penalty Assessment per 76104.6/.7 GC, $40 EMS per 

76000.5 GC and $30 Criminal Conviction Assessment per GC 70373 ($30 

per convicted Charge).”

F. Analysis

On appeal, Webb acknowledges defense counsel waived enumeration of the fine, 

that the minute order and abstract of judgment enumerate the individual elements of that 

fine, and those statements are identical to the enumeration in the probation report but 

insists the matter must be remanded because the court did not expressly refer to the 

probation report at the sentencing hearing when it asked for the waiver.

We have quoted at length from the record to show that Webb’s appellate claim of 

error completely lacks merit. The probation report recommended imposition of the $890 

fine, stated the statutory basis for that fine, and enumerated the amounts and statutory 
34.

basis for each individual component of that fine. At Webb’s sentencing hearing, the 

court imposed the $890 fine and expressly asked the prosecutor and defense counsel if 

they would waive “enumeration of the elements” of that fine. Both attorneys agreed, 

implying that they were well aware of the nature and substance of the fine recommended 

in the probation report. The minute order for the sentencing hearing and abstract of 

judgment stated the court imposed the $890 fine, the statutory basis for that fine, and 

enumerated the amounts and statutory basis for the individual components of that fine, 

identical to that contained in the probation report.

Webb has not argued the itemization in the minute order or the abstract were 

miscalculated or legally unauthorized. Indeed, such an argument cannot be made based 

on this record. We find the court complied with High’s requirement to enumerate the 

$890 fine imposed in this case.8

III. Correction of Abstract of Judgment

Webb contends, and the People agree, that at his sentencing hearing on 

January 29, 2021, the court correctly awarded 242 actual days of custody credit, and 242 

days of conduct credits, for a total 484 days of presentence credits.

The parties further agree the abstract of judgment and minute order erroneously 

state the court awarded 218 actual days of custody credits and 218 days of conduct 

credits for a total of 436 days of presentence credits.

We will order the minute order and abstract corrected to the credits awarded at the 

sentencing hearing.

8 We note that Luna has not raised this issue on appeal, and such an argument 

would be meritless: Luna’s probation report stated that a $890 fine was recommended 

and contained an enumeration and the statutory authority to impose each element of that 

fine; the court imposed the $890 fine at Luna’s sentencing hearing, and asked for and 

obtained waivers from the attorneys of the enumeration of the elements; and both the 

minute order and abstract of judgment for Luna contained the statutory itemization and 

enumeration for each element of the fine.
35.

We therefore order Webb’s abstract of judgment and January 29, 2021, minute 

order corrected to show the accurate number of credits awarded at the sentencing hearing.

IV. Imposition of the Upper Terms

At each of their sentencing hearings, the court sentenced Webb and Luna to the 

upper term for assault with a deadly weapon. Webb and Luna argue the matter must be 

remanded for new sentencing hearings because the court imposed the upper terms based 

on aggravating circumstances not found true beyond a reasonable doubt as required by 

Senate Bill 567’s amendments to section 1170, subdivision (b).

In this section, we review the applicable law, and then will separately address the 

court’s findings at the sentencing hearings for Webb and Luna.

A. Senate Bill 567

At the time Webb and Luna were sentenced, “the trial court had broad discretion 

to determine whether imposition of the lower, middle, or upper term ... ‘best serve[d] the 

interests of justice.’ [Citation.] Consistent with the law at that time, the trial court 

identified a number of factors in aggravation and no factors in mitigation, and it 

ultimately chose to impose an upper term sentence ... based on these aggravating 

factors.” (People v. Lopez (2022) 78 Cal.App.5th 459, 464, fn. omitted (Lopez).)

While defendants’ appeal was pending, “[o]n October 8, 2021, Senate Bill 567 

was signed into law. It amended the determinate sentencing law, section 1170, 

subdivision (b), which delineates the trial court’s authority to impose one of three 

statutory terms of imprisonment, known as the lower, middle, or upper terms, by making 

the middle term the presumptive sentence for a term of imprisonment, unless certain 

circumstances exist. [Citations.] Effective January 1, 2022, under the newly amended 

law, the trial court may impose an upper term sentence only where there are 

circumstances in aggravation that justify the imposition of a term of imprisonment 

exceeding the middle term, and the facts underlying all of the aggravating circumstances 

have been stipulated to by the defendant or found true beyond a reasonable doubt by a 
36.

jury or a trial court if the defendant has consented to a court trial. [Citation.] Also, under

section 1170, subdivision (b)(3), the trial 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.’ [Citation.] Under amended section 1170, 

subdivision (b)(5), the trial court must ‘set forth on the record the facts and reasons for 

choosing the sentence imposed. The court may not impose an upper term by using the 

fact of any enhancement upon which sentence is imposed under any provision of law.’ ” 

(People v. Dunn (2022) 81 Cal.App.5th 394, 402 (review granted Oct. 12, 2022, 

S275655) (Dunn).)

In this case, defendants and the People agree that “Senate Bill No. 567’s 

ameliorative amendments to section 1170, subdivision (b) apply retroactively to all cases 

not yet final as of January 1, 2022.” (Lopez, supra, 78 Cal.App.5th at p. 465; Dunn, 

supra, 81 Cal.App.5th at p. 403.)

Defendants and the People disagree as to whether remand is required because of 

the imposition of the upper terms in their cases, and the appropriate standard to determine 

whether the trial court’s reliance on factors not found true beyond a reasonable doubt or 

stipulated to by defendant constituted harmless error.

B. Harmless Error

The appellate courts are currently divided on the standard to assess prejudice in 

cases where the trial court imposed the upper term by relying on aggravating 

circumstances that were not admitted or found true beyond a reasonable doubt.

In People v. Flores (2022) 75 Cal.App.5th 495, Division Three of the First District 

held a remand for resentencing is unnecessary if “ ‘a reviewing court concludes, 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.’ ” (Id. at p. 521.)
37.

“On this record we are satisfied, beyond a reasonable doubt, the jury would 

have found true at least one aggravating circumstance. [The defendant’s] 

probation report, which the court reviewed and considered, identified his 

five sustained juvenile delinquency petitions and numerous convictions, 

including battery, as an adult – information that is readily available from 

official records. [Citation.] The report further established [the defendant’s]

unsatisfactory performance while on probation – he was on probation when 

committing the offense against [the victim].” (Ibid.)

In People v. Lopez, supra, 78 Cal.App.5th 459, Division One of the Fourth District 

Court of Appeal disagreed with Flores and held:

“The question of prejudice under retroactive application of the revised triad 

system involves a two-step process, neither of which includes a 

determination as to whether the trial court relied on a single, or even a few, 

permissible factors in selecting an upper term. Rather, under the new 

version of the triad system set forth in section 1170, the initial relevant 

question for purposes of determining whether prejudice resulted from 

failure to apply the new version of the sentencing law is whether the 

reviewing court can conclude beyond reasonable doubt that a jury would 

have found true beyond a reasonable doubt all of the aggravating factors on 

which the trial court relied in exercising its discretion to select the upper 

term. If the answer to this question is ‘yes,’ then the defendant has not 

suffered prejudice from the court’s reliance on factors not found true by a 

jury in selecting the upper term. However, if the answer to the question is 

‘no,’ we then consider the second question, which is whether a reviewing 

court can be certain, to the degree required by People v. Watson (1956) 

46 Cal.2d 818, 836 ..., that the trial court would nevertheless have 

exercised its discretion to select the upper term if it had recognized that it 

could permissibly rely on only a single one of the aggravating factors, a few 

of the aggravating factors, or none of the aggravating factors, rather than all 

of the factors on which it previously relied. If the answer to both of these 

questions is ‘no,’ then it is clear that remand to the trial court for 

resentencing is necessary.” (Lopez, supra, 78 Cal.App.5th at p. 467, 

fn. 11.)

The harmless error issue is currently pending before the California Supreme Court

in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.] review granted August 10, 

2022, S274942, a case that relied on the harmless error standard in Lopez and declined to 

remand the matter.
38.

1. Dunn

After review was granted in Lynch, a panel of this court articulated a different 

harmless error standard in Dunn, and held the type of error at issue has both federal 

Constitutional and state law dimensions. (Dunn, supra, 81 Cal.App.5th at pp. 408–409.)

“[W]e think the correct standard for harmless error lies between the 

standards articulated in Flores and Lopez; Flores sets too low a standard for 

harmlessness and Lopez too high. We instead apply a version of the 

standard articulated in Lopez, modified to incorporate Watson in the first 

step: The reviewing court determines (1)(a) beyond a reasonable doubt 

whether the jury would have found one aggravating circumstance true 

beyond a reasonable doubt and (1)(b) whether there is a reasonable 

probability that the jury would have found any remaining aggravating 

circumstance(s) true beyond a reasonable doubt. If all aggravating 

circumstances relied upon by the trial court would have been proved to the 

respective standards, any error was harmless. If not, the reviewing court 

moves to the second step of Lopez, (2) whether there is a reasonable 

probability that the trial court would have imposed a sentence other than the 

upper term in light of the aggravating circumstances provable from the 

record as determined in the prior steps. If the answer is no, the error was 

harmless. If the answer is yes, the reviewing court vacates the sentence and 

remands for resentencing consistent with section 1170, subdivision (b).” 

(Id. at pp. 409–410, fn. omitted.)

The trial court in Dunn found three aggravating factors when it imposed the upper 

term: the defendant’s prior convictions were numerous, she was on probation at the time 

she committed the charged offenses, and her prior probation performance was 

unsatisfactory. (Dunn, supra, 81 Cal.App.5th at p. 403.)

Dunn held that the defendant’s probation report was not a certified record of 

conviction under section 1170, subdivision (b)(3) to establish that his prior convictions 

were numerous. However, during the contested hearing on the defendant’s probation 

violations, the trial court had admitted into evidence “a certified copy of [the] defendant’s 

criminal history report,” that constituted a certified record and established the court’s first 

finding, that the defendant had numerous convictions, and met the requirements of 

section 1170, subdivision (b)(3). (Dunn, supra, 81 Cal.App.5th at pp. 403–404, 
39.

fn. omitted.) “Accordingly, there was no error in the trial court’s reliance upon the 

aggravating circumstance of [the] defendant’s numerous prior convictions.” (Ibid.)

The third aggravating factor was that the defendant’s prior performance on 

probation was poor. Dunn held that since the defendant stipulated to probation violations 

that had been alleged in separate petitions as part of the case, and that she committed a 

new offense that resulted in another violation, the third aggravating factor met the 

requirements of section 1170, subdivision (b)(2) “because the facts underlying the 

aggravating circumstance have been stipulated to by [the] defendant,” and “there was no 

error in the trial court’s reliance upon the aggravating circumstance that [the] defendant’s 

prior performance on probation was unsatisfactory.” (Dunn, supra, 81 Cal.App.5th at 

p. 404; ibid.)

Dunn further held the facts underlying the second aggravating circumstance, that

the defendant was on probation at the time of the charged offense, “were not admitted by 

[the] defendant or presented to or found true by the jury as required by section 1170, 

subdivision (b)(2). Accordingly, as section 1170 requires all aggravating circumstances 

relied upon by the trial court to meet the requirements of section 1170, subdivision (b)(2) 

or (3), unless imposition of the upper term on count 1 was harmless, the sentence must be 

vacated and the matter must be remanded to the trial court for resentencing in compliance 

with section 1170, subdivision (b).” (Dunn, supra, 81 Cal.App.5th at pp. 404–405, fn. 

omitted.)

Dunn applied its standard to the court’s findings of aggravating circumstances and

found “there was no error as to the first aggravating circumstance, that [the] defendant 

had numerous convictions, because it met the requirements of section 1170, 

subdivision (b)(3) permitting the trial court to rely on certified records of [the] 

defendant’s prior convictions. There was also no error, as discussed above, as to the trial 

court’s reliance on the third aggravating circumstance, that [the] defendant’s prior 

performance on probation was unsatisfactory, because [the] defendant admitted two prior 
40.

probation violations in this case. These admissions met the requirements of section 1170, 

subdivision (b)(2), that aggravating circumstances relied upon by the court must be

stipulated to by [the] defendant or proven true beyond a reasonable doubt by a jury. 

Accordingly, we need not determine beyond a reasonable doubt whether the jury would 

have found any one aggravating circumstance true beyond a reasonable doubt.” (Dunn, 

supra, 81 Cal.App.5th at p. 410, fn. omitted.)

Dunn turned to the question about “whether there is a reasonable probability that 

the jury would not have found the remaining aggravating circumstance true beyond a 

reasonable doubt.” (Dunn, supra, 81 Cal.App.5th at p. 411.) While the jury did not 

make a specific finding as to the facts underlying the second aggravating circumstance, 

that the defendant was on probation at the time the charged offenses were committed, she 

made admissions at the hearing on probation violations and consisted of a record where 

“a jury would have assessed the facts underlying the second aggravating circumstance, 

that [the] defendant was on probation at the time she committed the charged offenses, in 

the same manner as the trial court. Accordingly, we conclude that there is not a 

reasonable probability the jury would not have found the remaining aggravating 

circumstance true beyond a reasonable doubt.” (Ibid.)

Dunn concluded that “[a]s the first and third aggravating circumstances met the 

requirements of section 1170, subdivision (b)(2) and (3), and there is not a reasonable 

likelihood the jury would not have found the second aggravating circumstance true 

beyond a reasonable doubt, the error was harmless.” (Dunn, supra, 81 Cal.App.5th at 

p. 411.)

In the absence of guidance from the Supreme Court on this issue, we agree with 

and apply Dunn’s harmless error standard. As applied to this case, we must separately 

review the court’s findings at the sentencing hearings for Luna and Webb, and the 

evidence and information before the court in each case.
41.

V. Imposition of Luna’s Upper Term

In determining whether the court properly imposed the upper term for Luna, we 

review the evidence and information before the court when it considered his sentence, 

and then apply the factors in Dunn to determine harmless error.

A. Luna’s Certified Records

As explained above, the first amended information alleged Luna had both a prior 

strike conviction and a prior serious felony enhancement based on his prior conviction for 

assault with a deadly weapon in 2010 (§ 245, subd. (a)).

At the court trial on the prior conviction allegations, the prosecution introduced 

documentary exhibits, without defense objections, that consisted of certified records of 

abstracts of judgment, and Luna’s chronological/movement history from CDCR.

The certified records of the abstracts of judgment were for Luna’s convictions of 

felony driving under the influence (Veh. Code, § 23152, subd. (b)), where he was 

sentenced to one year four months in prison in September 2007; felony assault with a 

deadly weapon (§ 245, subd. (a)(1)), where he was sentenced to four years in prison in 

October 2010; and felony unlawfully taking or driving a vehicle (Veh. Code, § 10851, 

subd. (a)), where he was sentenced to two years eight months in prison in December 

2014.

The certified records of CDCR’s chronological/movement history of Luna’s 

confinement showed that after his felony conviction for driving under the influence, he 

was delivered to state prison in October 2007, released on parole but returned to custody 

several times in 2008 and 2009, and again released on parole in November 2009.

These certified records further state that in October 2010, Luna was returned from 

parole and received at CDCR for a new prison term (corresponding to his conviction and 

sentence for assault with a deadly weapon). In September 2012, Luna was released on 

parole, and absconded in November 2012. During 2013 and 2014, Luna was returned to 

parole but repeatedly absconded again.
42.

Finally, in December 2014, Luna was returned from parole and received at CDCR 

for a new prison sentence (corresponding to his conviction and sentence for unlawfully 

taking or driving a vehicle). In April 2016, Luna was released on postrelease community 

supervision.

B. Luna’s Probation Report

Luna’s probation report summarized his criminal record based on information 

from the databases of the Federal Bureau of Identification (FBI), the California 

Identification and Investigation Bureau (CIIB), the Department of Motor Vehicles 

(DMV), and the California Department of Corrections (CDCR), and listed Luna’s 

identification numbers for each department.

According to the probation report, Luna’s adult record began in 2002 for 

misdemeanor driving under the influence (DUI), and he was placed on probation for five 

years (Veh. Code, § 23152, subd. (b)). On January 15, 2003, Luna was found in violation 

of probation in this case, and probation was extended for five years.

On February 18, 2003, Luna was convicted of misdemeanor forgery (§ 470) and 

sentenced to 365 days in jail.

On August 2, 2004, Luna was again convicted of misdemeanor driving under the 

influence and placed on probation for five years.

On November 10, 2004, Luna was convicted of misdemeanor taking or driving a 

vehicle (Veh. Code, § 10851, subd. (a)) and placed on probation for three years. As a 

result of that conviction, his probation was extended for three years for his DUI 

conviction from 2002, and five years for his misdemeanor DUI conviction from 2004.

On January 4, 2006, Luna was convicted of misdemeanor disturbing the peace 

(§ 415(2)) and placed on probation for one year.

On November 15, 2006, Luna violated probation in his misdemeanor DUI 

conviction from August 2004, and probation was terminated.
43.

On June 6, 2007, Luna was convicted of felony DUI, his prison sentence of three 

years was suspended, and he was placed on probation for three years; he was also 

convicted of misdemeanor DUI and received jail time. As a result of these convictions, 

Luna was found in violation of probation in his misdemeanor DUI case from 2002.

On September 28, 2007, Luna violated probation in his 2006 felony DUI case, 

probation was revoked, and he was sentenced to 16 months in prison. In 2008 and 2009, 

Luna repeatedly violated parole and was returned to prison to complete his term.

On October 6, 2010, Luna was convicted of felony assault with a deadly weapon 

(§ 245, subd. (a)) and sentenced to four years in prison. This conviction was alleged as 

both the prior strike conviction and the prior serious felony enhancement in this case.

On December 10, 2014, Luna was convicted of felony taking or driving a vehicle 

(Veh. Code, § 10851, subd. (a)) and sentenced to 32 months in state prison; he was also 

convicted of misdemeanor possession and sentenced to jail (Health & Saf. Code, 

§ 11377, subd. (a)).

In 2016, Luna’s postrelease community supervision was revoked (§ 3455) and he 

served jail time.

1. The Probation Report’s Recommendations

The probation report stated Luna was statutorily ineligible for probation because 

of his prior strike conviction (§ 667, subd. (e)(1)). The probation report next stated the 

following criteria affecting probation pursuant to specific subdivisions of California 

Rules of Court,

9

rule 4.414: (a)(1) the facts relating to the case, based on a summary of 

the trial evidence; (a)(2) Luna was armed with and used a weapon; (a)(3) the victim was 

particularly vulnerable as he was outnumbered three to one; (a)(4) Luna inflicted physical 

injury on the victim; (a)(6) Luna was an active participant in the commission of the 

crime; (b)(1) Luna had a significant record of criminal conduct; (b)(2) his prior 

9 All further references to rules are to the California Rules of Court unless 

otherwise indicated.
44.

performance on probation and parole was unsatisfactory; (b)(3) he had not expressed a 

willingness to comply with probation; (b)(4) his inability to comply with probation is 

indicated by his lack of stable housing, lack of employment, and drug use; 

(b)(5) imprisonment will have no likely effect on the defendant and he does not have 

custody of his dependents; (b)(6) a felony conviction will have no effect on him; 

(b)(7) he had not expressed remorse for his actions; and (b)(8) he was likely a danger to 

the community if not imprisoned as evidenced by the instant offense.

The probation report listed the following circumstances in aggravation pursuant to 

rule 4.421: Luna’s prior convictions are numerous, he had served a prior prison term, and 

his prior performance on probation and parole was unsatisfactory. The report further 

stated that under rule 4.423, there were no circumstances in mitigation.

The probation report concluded that the circumstances in aggravation 

preponderate, and recommended imposition of the upper term for the assault conviction, 

for an aggregate term of 16 years.

C. Luna’s Sentencing Hearing

On January 15, 2021, the court conducted the sentencing hearing for Luna.

Defense counsel stated Luna was very remorseful and wanted to apologize to the 

victim and his family. Counsel stated the incident happened because of his addiction; he 

was not able to get into a program at the time because of COVID-19 and had to live in 

the park; and used bad judgment because of his addiction. Counsel asked the court to 

dismiss the five-year enhancement for the prior serious felony conviction, that would still 

result in an 11-year sentence which would be significant.

Defense counsel asked the court to strike the $750 presentence report fee that was 

recommended in the probation report, because he would have trouble paying that amount 

if he received a long sentence. Defense counsel did not object or request any corrections 

to the probation report.
45.

The prosecutor replied that the court should impose 16 years as recommended in 

the probation report because Luna had not shown any remorse or taken responsibility for 

his actions.

1. Imposition of Sentence

The court stated it had read the probation report and made the following findings.

“I will note under ... Section 667, subdivision (e), subdivision (i)

[sic], the defendant is statutorily ineligible for probation.

“The defendant was armed with and used a weapon during the 

course of the perpetration of the crime for which he's been convicted. The 

victim was vulnerable, as he was outnumbered; there were three assailants 

to the one victim. The defendant inflicted physical injury on the victim and 

was an active participant in the commission of the crime.

“Mr. Luna has a significant record of criminal conduct. His prior 

performance on probation and parole was unsatisfactory.

“Until today, the defendant had not expressed remorse. I have in 

mind, however, the statements on his behalf by [Luna’s defense attorney] 

made here today in that regard.

“And I will note that the defendant is likely a danger to the 

community if not imprisoned, based upon the activity of the instant offense.

“By way of circumstances in aggravation, the defendant’s prior 

convictions are numerous. He has served a prior prison term. His prior 

performance on probation and parole was unsatisfactory.

“Under Rule 4.423, I do not find circumstances in mitigation 

applicable in this matter.” (Italics added.)

The court denied Luna’s motion to dismiss the prior serious felony enhancement 

because it found “under the circumstances of the particular offense and the status of 

[Luna] in his history here, the consecutive enhancement is appropriate.”

The court imposed an aggregate term of 16 years based on the upper term of four 

years for assault, doubled to eight years as the second strike sentence; plus three years for 
46.

the great bodily injury enhancement and five years for the prior serious felony 

enhancement.

D. The Nature of the Court’s Findings at the Sentencing Hearing

We first note the court made numerous findings before it imposed sentence and 

did not expressly clarify whether these findings were related to whether Luna was 

suitable for probation or consisted of aggravating circumstances to impose the 

determinate term.

By comparing the court’s findings to the Rules of Court (along with 

recommendations in the probation report), however, it is clear the court’s initial findings 

were pursuant to rule 4.414 and addressed criteria against a grant of probation, based 

upon the facts of the crime, that he was armed with and used a weapon, the victim was 

vulnerable and outnumbered, defendant inflicted physical injury on the victim, defendant 

was an active participant in the crime, he had a significant record of criminal conduct, his 

prior performance on probation and parole was unsatisfactory, and he was a danger to the 

community if not imprisoned. The probation report also stated defendant did not express 

any remorse under rule 4.414 (b)(7), but the court acknowledged defense counsel had 

done so on his behalf at the sentencing hearing

The court then addressed the aggravating circumstances under rule 4.421 for 

imposition of the determinate term: (1) Luna’s prior convictions were numerous; (2) he 

served a prior prison term; and (3) his prior performance on probation and parole was 

unsatisfactory. The court stated there were no mitigating circumstances.

We thus turn to whether the court imposed the upper term consistent with the 

amended version of section 1170, subdivision (b).

E. Compliance with Section 1170, Subdivision (b)

As explained in part IV, ante, under the amended version of section 1170, 

subdivision (b)(2), the court may impose an upper term sentence only where there are 

circumstances in aggravation that justify the imposition of a term of imprisonment 
47.

exceeding the middle term and the facts underlying all the aggravating circumstances 

have been stipulated to by the defendant or found true beyond a reasonable doubt by a 

jury or by the judge in a court trial. (§ 1170, subd. (b)(2).)

Also as discussed above, subdivision (b)(3) states an exception to this provision, 

that “the 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).) Subdivision (b)(5) states a limitation to this exception, 

that the court “may not impose an upper term by using the fact of any enhancement upon 

which sentence is imposed under any provision of law....” (§ 1170, subd. (b)(5).)

Our first consideration is whether the aggravating circumstances relied upon the 

trial court were proved in compliance with section 1170, subdivisions (b)(2) or (b)(3). 

None of these aggravating circumstances were proved to a jury or admitted by Luna. 

However, the exception stated in subdivision (b)(2) applies to two of the court’s three 

findings.

1. First Aggravating Circumstance

The first aggravating circumstance was that Luna had numerous prior convictions. 

The court held a bench trial on the truth of the prior conviction allegations and admitted, 

without objection, certified records of abstracts of judgment of Luna’s prior convictions. 

One abstract was for his assault conviction in 2010. Luna’s 2010 conviction, however, 

cannot be relied upon to impose an upper term since it was the basis to impose both his 

second strike sentence and the five-year prior serious felony enhancement in this case. 

(§ 1170, subd. (b)(5).)

However, the certified records also included abstracts of judgments for Luna’s 

additional felony convictions: driving under the influence in 2007 and unlawfully taking 

or driving a vehicle in 2014.
48.

The first circumstance in aggravation was thus proved in compliance with certified 

records pursuant to section 1170, subdivision (b)(3) – that he had prior felony 

convictions.

2. Second Aggravating Circumstance

The second aggravating circumstance was that Luna served a prior prison term. 

The certified records showed that he served three prior prison terms: for driving under 

the influence in 2007, a separate term for his assault conviction in 2010, and another term 

for unlawfully taking or driving a vehicle in 2014.

The second circumstance in aggravation was proved in compliance with certified 

records pursuant to section 1170, subdivision (b)(3).

3. Third Aggravating Circumstance

The third aggravating circumstance was that Luna’s prior performance on 

probation and parole was unsatisfactory. Luna did not admit, and the jury did not find, 

facts relating to this finding.

The certified records introduced at the bench trial on the prior conviction 

allegations included CDCR’s chronological/movement history of Luna’s confinement. 

These records showed that after his felony conviction for driving under the influence, he 

was delivered to state prison in October 2007, released on parole but returned to custody 

several times in 2008 and 2009, and again released on parole in November 2009.

These certified records further state that in October 2010, Luna was returned from 

parole and received at CDCR for a new prison term (corresponding to his conviction and 

sentence for assault with a deadly weapon). In September 2012, Luna was released on

parole, and absconded in November 2012. During 2013 and 2014, Luna was returned to 

parole but repeatedly absconded.

Finally, in December 2014, Luna was returned from parole and received at CDCR 

for a new prison sentence (corresponding to his conviction and sentence for unlawfully 
49.

taking or driving a vehicle). In April 2016, Luna was released on postrelease community 

supervision.

It could be argued that the certified “chrono” records showed his numerous 

violations of parole. As will be discussed below, there is additional information in the 

record to address this factor.

F. Harmless Error

The first and second aggravating circumstances were proved in compliance with 

section 1170, subdivisions (b)(2) and (b)(3). To the extent the third circumstance was not 

proven, we next determine whether the error was harmless.

In doing so, we apply Dunn’s standard for harmless error. “The reviewing court 

determines (1)(a) beyond a reasonable doubt whether the jury would have found one 

aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is a 

reasonable probability that the jury would have found any remaining aggravating 

circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied 

upon by the trial court would have been proved to the respective standards, any error was 

harmless. If not, the reviewing court moves to the second step of Lopez, (2) whether 

there is a reasonable probability that the trial court would have imposed a sentence other 

than the upper term in light of the aggravating circumstances provable from the record as 

determined in the prior steps. If the answer is no, the error was harmless. If the answer is 

yes, the reviewing court vacates the sentence and remands for resentencing consistent 

with section 1170, subdivision (b).” (Dunn, supra, 81 Cal.App.5th at pp. 409–410, 

fn. omitted.)

Since we have found the first and second aggravating circumstances were proved 

in compliance with section 1170, subdivisions (b)(2) and (b)(3), we need only address 

Dunn’s factor (1)(b) – whether there is a reasonable probability that the jury would have 

found the remaining aggravating circumstance true beyond a reasonable doubt – that 

Luna’s prior performance on probation and parole was unsatisfactory.
50.

In addition to the certified records of Luna’s “chrono,” the probation report also 

set forth Luna’s lengthy criminal record of his numerous felony and misdemeanor 

convictions, and violations of probation and parole. As discussed above, the probation 

officer listed the state and federal databases, and Luna’s identification numbers within 

each, which served as sources of information for Luna’s violations of probation, parole, 

and mandatory supervision. Luna did not object to the accuracy of these records, and 

there was no logical reason that he would not have done so if any portion was erroneous 

or incorrect.

As in Dunn, we have no difficulty concluding “there is a reasonable probability 

that the jury would have found any remaining aggravating circumstance(s) true beyond a 

reasonable doubt.” (Dunn, supra, 81 Cal.App.5th at pp. 409–410.) Since the three 

aggravating circumstances relied upon by the court would have been proved to the 

respective standards, we need not reach the second part of Dunn’s analysis, and any error 

imposing the upper term under section 1170, subdivision (b)(2) was harmless, and 

remand is not required. (Ibid.)

VI. Imposition of Webb’s Sentence

We next turn to the evidence and information before the court when it imposed the 

upper term for Webb.

A. The Certified Records

The first amended information alleged Webb had both a prior strike conviction 

and a prior serious felony enhancement based on his conviction for commission of a lewd 

or lascivious act on a child under the age of 14 years in 1996 (§ 288, subd. (a)).

At the court trial on the prior conviction allegations, the prosecution introduced 

documentary exhibits, without defense objections, that consisted of certified records of 

Webb’s prior conviction and his chronological/movement history from CDCR.

There was one certified record of an abstract of judgment, for Webb’s conviction 

of felony commission of a lewd act on a child under the age of 14 years, resulting from a 
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plea in 1996 (§ 288, subd. (a)), further stating that in December 2002, he was sentenced 

to six years in prison.

The certified records of CDCR’s chronological/movement history of Webb’s 

confinement showed in December 2002, he was received by CDCR for his felony 

commitment. Webb was released on parole on December 16, 2007, absconded two days 

later, and returned to custody on December 24, 2007. He was released in 2011 after 

serving the statutory maximum term.

B. Webb’s Probation Report

Webb’s probation report summarized his criminal record based on information 

from the databases of the FBI, CIIB, DMV, and CDCR, and listed defendant’s 

identification numbers for each department.

Webb’s adult record began in 1996, when he was convicted of committing a lewd 

or lascivious act upon a child under the act of 14 years (§ 288, subd. (a)); this was the 

prior conviction alleged as the strike offense and the prior serious felony enhancement in 

the instant case. According to the probation report, Webb was initially placed on 

probation for five years and sentenced to one year in jail in 1996. He violated probation 

in 2002, he was sentenced to six years in prison, and later released on parole. In 2007, 

Webb violated parole and returned to prison to complete his term.

In November 2011, Webb was convicted of misdemeanor failing to register as a 

sex offender (§ 290.11, subd. (a)) and placed on probation for three years.

On June 28, 2012, Webb was convicted of two misdemeanors: giving a false 

name to an officer (§ 148.9, subd. (a)), and failing to register, ordered to serve jail time, 

and placed on probation for three years. As a result of these convictions, he was found in 

violation of probation in his 2011 conviction for failing to register, sentenced to five days 

in jail, and probation was reinstated.

On October 2, 2013, Webb was convicted of felony failing to register (§ 290.011, 

subd. (a)) and sentenced to 32 months in prison. As a result of this felony conviction, the 
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grants of probation were terminated in his 2011 conviction for failing to register, and his 

2012 convictions for giving a false name and failing to register, and jail terms were 

imposed. 

On November 20, 2017, Webb was convicted of misdemeanor willful infliction of 

corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)) and placed on probation for 

three years.

On January 9, 2018, Webb was convicted of misdemeanor intentionally violating a 

protective order (§ 273.6, subd. (a)) and placed on probation for three years. As a result 

of this conviction, he violated probation in his 2017 conviction for infliction of corporal 

injury, ordered to serve time in jail, and probation was reinstated.

On May 18, 2018, Webb violated probation in his 2017 conviction for infliction of 

corporal injury, ordered to serve jail time, and probation was reinstated. On July 5, 2018, 

Webb again violated probation in his 2017 case, probation was not reinstated, and he was 

ordered to serve jail time.

On August 31, 2018, Webb was convicted of misdemeanor battery (§ 242) and 

placed on probation for three years. As a result of this conviction, he violated probation 

in his 2018 case for violating a protective order, a jail term was imposed, and probation 

reinstated. On September 21, 2020, he again violated probation in his 2018 conviction 

for violating a protective order, probation was not reinstated, and he was ordered to serve 

jail time.

1. The Probation Report’s Recommendations

Webb’s probation report stated he was statutorily ineligible for probation because 

of his prior strike conviction (§ 667, subd. (e)(1)). The probation report next stated the 

following criteria affecting probation pursuant to specific subdivisions of rule 4.414: 

(a)(1) the facts of the crime, based on a summary of the evidence; (a)(2) defendant was 

armed with and used a weapon; (a)(3) the victim was particularly vulnerable as he was 

outnumbered three to one; (a)(4) defendant inflicted physical injury on the victim; (a)(6) 
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defendant was an active participant in the commission of the crime; (b)(1) defendant had 

a significant record of criminal conduct; (b)(2) his prior performance on probation and 

parole was unsatisfactory; (b)(3) defendant has not expressed a willingness to comply 

with probation; (b)(4) there are no indications defendant could comply with probation, 

indicated by his lack of stable housing, education, and employment, and his drug use; 

(b)(5) imprisonment will have no likely effect on defendant and he does not have custody 

of dependents; (b)(6) a felony conviction will have no effect on the defendant; (b)(7) 

defendant has not expressed remorse for his actions; and (b)(8) defendant is considered a 

danger to the community if not imprisoned.

The probation report stated the following “Circumstances in Aggravation” 

pursuant to rule 4.421: Webb’s prior convictions were numerous, he served a prior 

prison term, and his prior performance on probation and parole was unsatisfactory. There 

were no mitigating circumstances under rule 4.423.

The probation report concluded that Webb was statutorily ineligible and not a 

proper candidate for probation; the circumstances in aggravation preponderated; and the 

aggravated term in state prison was appropriate and recommended an aggregate term of 

16 years.

C. Webb’s Sentencing Statement

On January 20, 2021, Webb filed a sentencing statement and argued there were 

several mitigating factors relating to the crime: he was a passive participant or played a 

minor role; the victim was the initiator, willing participant, or aggressor of the incident; 

the incident occurred because of the victim’s great provocation by pulling a knife; 

Webb’s conduct was excusable because of the victim’s provocation; Webb was not the 

instigator, and induced by Luna and Samaniego to participate; he exercised caution to 

avoid harm to the victim, because the incident ended once the victim was disarmed; and 

the victim engaged in abusive conduct by waving a knife at Webb.
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Webb argued there were further mitigating circumstances because his prior strike 

conviction was 25 years old, his subsequent assault and battery convictions were

misdemeanors, Webb cooperated with officers and tried to enter a plea in this case, but an 

agreement could not be reached, and he was a transient with limited resources who was 

forced to defend himself from the victim.

Webb also filed a request to dismiss his prior strike conviction for violating 

section 288, subdivision (a) in 1986, commission of a lewd and lascivious act against a 

child under the age of 14 years. Webb argued it occurred 25 years ago, it had no 

relationship to the nature of the instant conviction, his current conviction was mitigated 

by the victim’s provocation and use of a deadly weapon, and Webb was not the instigator 

and played a minor role.

D. Sentencing Hearing

On January 29, 2021, the court conducted Webb’s sentencing hearing and heard

arguments on his sentencing motions.

1. Denial of Request to Dismiss the Prior Strike Conviction

The prosecutor opposed Webb’s request to dismiss the prior strike conviction for 

child molestation because the prior offense was a serious and violent crime, he served a 

substantial period of time in prison, he had 11 separate violations of probation, he was 

convicted of two misdemeanors and one felony conviction for failing to register as a sex 

offender, he had convictions for domestic violence, battery, and violating restraining 

orders for domestic violence, and his current conviction was also a serious and violent 

felony offense.

Defense counsel replied that Webb’s probation violations were “technical,” his 

criminal history was fairly minor aside from the prior strike conviction, and the 

misdemeanor convictions were for traffic offenses, drug possession, and domestic 

violence cases.
55.

The court denied Webb’s request to dismiss the prior strike conviction because he 

had “a history of failing to comply with terms of his probation. He has presented himself 

as a danger by way of the current offense.”

2. Arguments About the Sentence

Defense counsel asked the court to consider the mitigating factors in Webb’s 

sentencing statement because he was a passive participant, he did not instigate the crime, 

he did not become involved until the victim pulled a knife, the victim admitted he reacted 

because he felted “baited,” the victim provoked Webb into defending himself and his 

friends, and Webb was forced to act.

Defense counsel argued that the upper term would be inappropriate because Webb 

should not receive the same sentence as Luna, since the trial evidence showed Luna was 

the instigator and more culpable, Webb was merely an “observer” who “only interacted 

after things had escalated,” and Webb acted in self-defense. Defense counsel added that 

Webb attempted to resolve his case without going to trial, but the People only offered a 

“package deal” that did not work out.

Defense counsel asked the court to also strike the five-year prior serious felony 

conviction enhancement and impose the lower or midterm based on the mitigating 

circumstances.

The prosecutor replied that defense counsel’s version of the trial evidence was 

“wholly inaccurate,” and his sentencing arguments were based on “ostensibly the same 

strategy deployed during the trial that was rejected by the jury that [Webb] was acting in 

self-defense, that he was provoked or he was otherwise trying to protect his friends who 

are also co-defendants found guilty.” The prosecutor argued the jury found Webb was a 

“significant participant” because it found the personally infliction enhancement true, and 

the court should impose the recommended sentence of 16 years.

Defense counsel responded the jury had a difficult time reaching a verdict as to 

whether Webb was guilty of assault or he acted in self-defense, that was not because they 
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were having a hard time determining mitigating circumstances, and the jury’s guilty 

verdict “doesn’t preclude Mr. Webb from arguing for mitigating factors for sentencing.”

The prosecutor replied that the jury’s difficulties during deliberations was based 

on its inability to reach a finding on the great bodily injury enhancement alleged as to 

Samaniego. There was no evidence the jury was unable to decide or had any difficulty 

reaching a verdict as to Webb.10

3. Imposition of Sentence

The court rejected Webb’s arguments about the alleged mitigating circumstances 

and found Webb’s current conviction was for a serious and violent offense, his selfdefense claims were rejected by the jury, he had the opportunity to walk away from what 

happened, he was not compelled to participate in the assault but elected to do so, and his 

involvement was not passive.

The court imposed sentence as follows:

“[Webb] is statutorily ineligible for probation under [section] ... 

667(e)(1).

“With regard to the facts of the circumstance, it took place in a 

public park at night. The defendant, Mr. Webb, chose to participate with 

two associates in the attack on the victim in this matter.

“The prior convictions of Mr. Webb are numerous. He has served a 

prior prison term. His prior performance on probation or parole was 

unsatisfactory.

“And in considering factors in mitigation, I do not find mitigating 

factors as to the history or activity of Mr. Webb. He has a prior record of 

criminal conduct which is significant.

“His prior performance on probation or parole was unsatisfactory. 

He has not expressed a willingness to comply with probation. There appear 

to be indications that he would be able to comply; his inability to comply 

10 As stated by the prosecutor and explained above, the jury advised the court that 

it was unable to reach a finding on the great bodily injury enhancement as to Samaniego, 

and the court declared a mistrial and the enhancement was later dismissed.
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indicated by his lack of stable housing, lack of education, lack of 

employment, and drug use. And the defendant would be considered a 

danger to the community if not imprisoned. [¶] So based upon the 

foregoing, the Court intends to impose the following....”

For count 1, assault with a deadly weapon, the court imposed the aggravated term 

of four years, doubled to eight years as the second strike sentence, plus consecutive terms 

of three years for the great bodily injury enhancement and five years for the prior serious 

felony conviction, for an aggregate sentence of 16 years.

E. The Nature of the Court’s Findings at the Sentencing Hearing

As with Luna’s sentencing hearing, the court made numerous findings before it 

imposed Webb’s sentence but did not expressly clarify whether these findings were 

related to Webb’s suitability for probation or consisted of aggravating circumstances to 

impose the determinate term.

Again, a comparison of the court’s findings to the Rules of Court (along with 

recommendations in the probation report) clarifies that the court’s initial findings 

addressed probation criteria under rule 4.414 – the facts related to the crime; it took place 

in a public park at night; Webb chose to participate with two associates to attack the 

victim; his prior performance on probation or parole was unsatisfactory; he had not 

expressed a willingness to comply with probations; his inability to comply was based on 

his lack of stable housing, education, employment, and his drug use; he would be 

considered a danger to the community if not imprisoned; and he had a prior record of 

criminal conduct that was significant.

The rest of the court’s findings addressed the aggravating circumstances under 

rule 4.421 for imposition of the determinate term: “The prior convictions of Mr. Webb 

are numerous. He has served a prior prison term. His prior performance on probation or 

parole was unsatisfactory.” The court found no mitigating factors.

We thus turn to whether the court imposed the upper term consistent with the 

amended version of section 1170, subdivision (b).
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F. Compliance with Section 1170, Subdivision (b)

Our first consideration is whether the aggravating circumstances relied upon the 

trial court were proved in compliance with section 1170, subdivisions (b)(2) or (b)(3). 

None of these aggravating circumstances were proved to a jury or admitted by Luna, as 

required by subdivision (b)(2). We thus turn to whether the exception in 

subdivision (b)(3) applies.

1. First Aggravating Circumstance

The first aggravating circumstance was that Webb had numerous prior 

convictions. Webb did not admit, and the jury did not find, that he had numerous prior 

convictions.

As in Luna, the court held a bench trial on the truth of the prior conviction 

allegations against Webb. As discussed above, the court admitted certified records but 

only contained an abstract of judgment for Webb’s felony conviction for commission of a 

lewd and lascivious act in 1996 (§ 288, subd. (a)). This conviction was the basis to 

impose both his second strike sentence and the five-year enhancement, and cannot be 

relied on as an aggravating circumstance to impose an upper term (§ 1170, subd. (b)(5)). 

There were no other certified records of Webb’s prior convictions.

The first aggravating circumstance was not proved in compliance with 

section 1170, subdivisions (b)(2) and (b)(3).

2. Second Aggravating Circumstance

The second aggravating circumstance was that Webb served a prior prison term. 

Webb did not admit, and the jury did not find, that he served a prior prison term.

Section 1170, subdivision (b)(3) states “the 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....” The certified record of Webb’s 

abstract of judgment for his 1996 conviction for violating section 288, subdivision (a) 

states that he was sentenced to six years in state prison. While section 1170, subdivision 
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(b)(5) states the limitation that the court “may not impose an upper term by using the fact 

of any enhancement upon which sentence is imposed under any provision of law,” the 

prior prison term attached to Webb’s prior strike conviction in 1996 was not used to 

enhance his sentence in this case in any way.

The second circumstance in aggravation was proved in compliance with certified 

records pursuant to section 1170, subdivision (b)(3).

3. The Third Aggravating Circumstance

The third aggravating circumstance was that Webb’s prior performance on 

probation and parole was poor. Webb did not admit, and the jury did not find, that his 

performance on probation and/or parole had been unsatisfactory. None of the certified 

records addressed Webb’s probation and/or parole violations.

G. Harmless Error

The second aggravating circumstance – that Webb served a prior prison term –

was proved in compliance with section 1170, subdivisions (b)(2) and (b)(3), but not the 

first and third circumstances. We next determine whether the error as to these two 

circumstances was harmless under Dunn.

Since we have found the second aggravating circumstance was proved in 

compliance with section 1170, subdivisions (b)(2) and (b)(3), we need only address 

Dunn’s factor (1)(b), whether there is a reasonable probability that the jury would have 

found the first and third aggravating circumstances true beyond a reasonable doubt – that 

Webb had numerous prior convictions, and his prior performance on probation and parole 

was unsatisfactory.

In contrast to the certified records, the probation report recounted Webb’s lengthy 

adult criminal records of prior misdemeanor convictions and probation violations. As set 

forth above, the probation officer listed the federal and state databases, and Webb’s 

identification numbers within each, which served as sources of information for the 

lengthy list of Webb’s additional prior convictions and history of probation violations.
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At the sentencing hearing, Webb argued there were additional mitigating factors to 

support imposition of the lower or midterm, and the court rejected that argument. In his 

sentencing statement and arguments at the hearing, however, Webb did not dispute the 

accuracy of the probation report’s detailed recitation of his prior convictions and his 

numerous probation violations. There is no logical reason Webb would not have 

challenged his record of convictions and probation history if they had not been true.

As in Dunn, we have no difficulty concluding “there is a reasonable probability 

that the jury would have found any remaining aggravating circumstance(s) true beyond a 

reasonable doubt.” (Dunn, supra, 81 Cal.App.5th at pp. 409–410.) Since all aggravating 

circumstances relied upon by the court would have been proved to the respective 

standards, we need not reach the second part of Dunn’s analysis, and any error imposing 

the upper term under section 1170, subdivision (b)(2) was harmless, and remand is not 

required. (Dunn, at pp. 409–410.)

If section 1170, subdivision (b)(5) prohibits reliance on the abstract of judgment 

from Webb’s prior strike and prior serious felony enhancement to establish his single 

prior prison term, then there would be no evidence to support the second aggravating 

circumstance – that Webb had served a prior prison term. In evaluating the remaining 

two aggravating circumstances, however, we would still find any error in imposing the 

upper term was harmless because under Dunn’s factor (1)(a), the jury would have found 

true beyond the reasonable doubt the first aggravating circumstance – that Webb had 

numerous prior convictions based on the probation report’s recitation of his criminal 

record; and under Dunn’s factor (1)(b), there was a reasonable possibility the jury would 

have found true the remaining aggravating circumstance – that his prior performance on 

probation was unsatisfactory.

Since the court found no mitigating circumstances, under Dunn’s factor (2), there 

is no reasonable probability that the trial court would have imposed a sentence other than 
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the upper term in light of the two aggravating circumstances provable from the record as 

determined in the prior steps. (Dunn, supra, 81 Cal.App.5th at pp. 409–410.)

DISPOSITION

As to Luna, the judgment is affirmed.

As to Webb, the abstract of judgment and the January 29, 2021, minute order are 

ordered corrected to state that the court awarded him 242 actual days of custody credit, 

and 242 days of conduct credits, for a total 484 days of presentence credits. The trial 

court shall prepare and forward to all appropriate parties a certified copy of an amended 

abstract of judgment.

As modified, the judgment as to Webb is affirmed in all other respects.

POOCHIGIAN, Acting P. J.

WE CONCUR:

DETJEN, J.

SNAUFFER, J.