Filed 6/28/22 P. v. Thornton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW DAVID THORNTON,

Defendant and Appellant.

F083218

(Super. Ct. No. F17905508)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Heather 

Mardel Jones, Judge.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd 

Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Franson, J. and Peña, J.
2.

Defendant Matthew David Thornton pled guilty pursuant to a plea agreement to 

assault by means likely to produce great bodily injury by a state prisoner and admitted he 

had suffered three prior “strike” convictions within the meaning of the Three Strikes law 

(Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

1

 The plea agreement 

indicated the factual basis was entered pursuant to People v. West.

2

 He was sentenced to 

a total term of 12 years’ imprisonment, including an upper term on count 2. On appeal, 

defendant contends that his sentence must be vacated and his case remanded for 

resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) 

amendments to section 1170, subdivision (b). The People disagree. We conclude that 

the sentence was not imposed in compliance with section 1170, subdivision (b) but the 

error was harmless.3

PROCEDURAL SUMMARY

On September 21, 2017, the Fresno County District Attorney filed a criminal 

complaint, charging defendant with assault by means of force likely to produce great 

bodily injury by a state prisoner (§ 4501, subd. (b); count 2).4 The complaint further 

alleged that defendant had suffered three prior strike convictions. (§§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d).) 

1 All statutory references are to the Penal Code.

2 People v. West (1970) 3 Cal.3d 595. A West plea is “ ‘a plea of nolo contendere, 

not admitting a factual basis for the plea,’ ” which “allows a defendant to plead guilty in 

order to take advantage of a plea bargain while still asserting his or her innocence.” 

(People v. Rauen (2011) 201 Cal.App.4th 421, 424.) 

3 Throughout our discussion, we refer to section 1170, subdivision (b) “error.” 

However, we note that at the time the trial court sentenced defendant, it correctly applied 

the then-existing law. Accordingly, while we refer to section 1170, subdivision (b) 

“error,” we are mindful that the trial court complied with the applicable law at the time of 

sentencing.

4 Count 1 was alleged only against a codefendant.
3.

On May 25, 2021, pursuant to a negotiated plea agreement, defendant pled guilty 

on count 2 and admitted the three prior strike convictions. In exchange for his guilty 

plea, the plea agreement provided a maximum term of imprisonment of 12 years. The 

plea agreement indicated that the trial court could find a factual basis from the 

“police/prison reports” pursuant to West and the trial court confirmed the West plea 

during the change of plea colloquy. 

On June 23, 2021, the trial court struck two of defendant’s three prior strike 

convictions and imposed a 12-year term of imprisonment, consecutive to the term he was 

already serving, as follows: on count 2, 12 years (the upper term of six years, doubled 

due to the prior strike conviction). 

On August 20, 2021, defendant filed a notice of appeal. 

FACTUAL SUMMARY

Because defendant’s plea was entered pursuant to West, the trial court relied on the 

police/prison reports in finding a factual basis. The probation officer summarized the 

facts of a prison crime report reflecting the offense. In short, defendant was a prisoner in 

a state prison. He and one other person attacked an inmate. No weapons were used. The 

attacked inmate suffered an orbital bone fracture. 

DISCUSSION

I. Senate Bill 567

Defendant contends that we must vacate the sentence and remand the matter 

because defendant did not admit, and the trial court did not find true, the facts underlying 

the circumstances in aggravation that the trial court relied upon in imposing the upper 

term. The People agree that Senate Bill 567 is retroactive to defendant but argue that the 

trial court’s imposition of the upper term was consistent with section 1170, 

subdivision (b) because the trial court appropriately “relied upon [defendant]’s criminal 

history,” which defendant admitted, in imposing the sentence. Alternatively, the People 

argue that any error in imposition of the upper term is harmless beyond a reasonable 
4.

doubt because “[a]t the very least, a jury would have found one of the aggravating factors 

relied on by the trial court to be true beyond a reasonable doubt.” The People are 

mistaken regarding the relevant standard for harmless error. As we explain below, 

whether the jury would have found true beyond a reasonable doubt the facts underlying at 

least one of the aggravating circumstances is not the relevant question in this context. 

Instead, to find that the error was harmless we would have to conclude (1)(a) beyond a 

reasonable doubt that the jury would have found beyond a reasonable doubt that the facts 

underlying at least one aggravating circumstance was true, and (1)(b) that there is no 

reasonable probability the jury would not have found the remaining circumstances true 

beyond a reasonable doubt, or (2) that there is no reasonable probability the trial court 

would have imposed a lesser term based on the aggravating circumstances that would 

have been provable to the jury beyond a reasonable doubt.5 

For the following reasons, we conclude the sentence does not comply with the 

requirements of section 1170, subdivision (b), but the error was harmless. 

A. Additional Background

The trial court adopted the probation officer’s recommendation regarding the 

following four circumstances in aggravation and one circumstance in mitigation. In 

aggravation, the court found:

“The crime involved great violence, great bodily harm, threat of 

great bodily harm, or other facts disclosing a high degree of cruelty, 

viciousness, or callousness.

“The defendant has engaged in violent conduct which indicates a 

serious danger to society.

5

In order to reach the second step, the reviewing court must conclude beyond a 

reasonable doubt that the jury would have found at least one aggravating circumstance 

true beyond a reasonable doubt. Otherwise, the sentence violates the Sixth Amendment.
5.

“The defendant’s prior convictions as an adult or sustained petitions 

in juvenile delinquency proceedings are numerous or of increasing 

seriousness.

“The defendant has served a prior prison term.” 

In mitigation, the court found: “The defendant voluntarily acknowledged 

wrongdoing before arrest or at an early stage of the criminal process.” 

The trial court summarized its assessment of those circumstances as follows:

“So at this time the Court has reviewed the sentencing report. I’ve 

reviewed the summary of the facts. I’ve reviewed and note that defendant 

has no prior juvenile criminal history. I’ve reviewed defendant’s prior 

adult criminal history; while it’s short, it’s serious. ... The Court 

considered California Rule of Court 4.420, 4.421, circumstances and 

aggravation, and will note the crime involved great violence, great bodily 

harm, or other facts which demonstrate a high degree of cruelty, 

viciousness, and callousness, and that defendant himself has in this 

case⸻but more importantly in his prior criminal history engaged in 

violence and is a danger to society. His prior convictions as an adult are 

becoming numerous and are of equal or increasing seriousness and he has 

served⸻in fact, currently serving a prior prison term. The Court 

considered California Rule of Court 4.423, circumstances and mitigation, 

and will note he voluntarily acknowledged wrongdoing at an early stage of 

the criminal process, that is pre-prelim.” 

In light of the identified circumstances in aggravation and in mitigation, the trial 

court imposed the upper term on count 2. 

B. Analysis

From March 30, 2007, to January 1, 2022, California’s determinate sentencing law 

specified that “[w]hen a judgment of imprisonment [wa]s to be imposed and the statute 

specifie[d] three possible terms, the choice of the appropriate term ... rest[ed] within the 

sound discretion of the court.” (§ 1170, former subd. (b).) 

Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b). 

(Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he court 

may impose a sentence exceeding the middle term only when there are circumstances in 

aggravation of the crime that justify the imposition of a term of imprisonment exceeding 
6.

the middle term, and the facts underlying those circumstances have been stipulated to by 

the defendant, or have been found true beyond a reasonable doubt at trial by the jury or 

by the judge in a court trial.” (§ 1170, subd. (b)(2).) As an exception to the general rule, 

a trial court is permitted to rely upon a certified record of conviction to determine prior 

criminality for purposes of sentencing without submitting the prior conviction to a jury. 

(§ 1170, subd. (b)(3).)

As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to 

cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People 

v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under 

another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s 

sentence is not yet final on appeal. 

In this case, as to the first circumstance in aggravation found true by the trial 

court, that “the crime involved great violence, great bodily harm, or other facts which 

demonstrate a high degree of cruelty, viciousness, and callousness,” no jury made a 

finding and defendant entered no stipulation.6 As to the second and 

third circumstances—defendant’s history of violent conduct and that defendant’s prior 

convictions were numerous or increasing in severity—defendant admitted that he had 

suffered prior strike convictions for robbery, attempted murder, and assault with a deadly 

weapon. Those admitted convictions were defendant’s only violent prior convictions. 

The facts underlying the second and third aggravating factors were stipulated to by 

defendant. Finally, as to the fourth circumstance in aggravation—defendant’s having 

served a prior prison term—in pleading guilty to assault likely to cause great bodily 

6 The trial court’s discussion of that aggravating factor did not include whether 

defendant’s conduct included a threat of great bodily injury, a fact that was necessarily 

implied in defendant’s guilty plea to count 2—assault “by means of force likely to 

produce great bodily injury ....” (§ 4501, subd. (b).) Instead, the trial court placed 

emphasis on the actual injury inflicted. The actual injury inflicted was not necessarily 

implied in the conviction and was not admitted by defendant as a result of the West plea.
7.

injury while confined in the state prison, defendant necessarily admitted that he was 

serving or had served a state prison sentence.7 Despite one of the aggravating 

circumstances not having been proved in compliance with section 1170, subdivision 

(b)(2) and (b)(3), the upper term was nevertheless imposed on count 2. Imposition of the 

upper term on count 2 is not in compliance with section 1170, subdivision (b). Therefore, 

unless imposition of the upper term on count 2 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).

The People contend that any error is harmless because, “[a]t the very least, a jury 

would have found one of the aggravating factors relied on by the trial court true beyond a 

reasonable doubt.” For that proposition, they rely on People v. Flores (2022) 75

Cal.App.5th 495 (Flores), which applied the harmless-beyond-a-reasonable-doubt 

standard of harmless error from Chapman v. California (1967) 386 U.S. 18 (Chapman) as 

adapted to the context of violations of the Sixth Amendment right to a jury trial on 

aggravating circumstances by People v. Sandoval (2007) 41 Cal.4th 825, 838–839 

(Sandoval).8 (Flores, at pp. 500–501.) Flores articulated the harmless error standard in 

the Senate Bill 567 error context as follows: “ ‘[I]f a reviewing court concludes, beyond

a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, 

7 Defendant appears to argue that because he entered his plea pursuant to West, the 

trial court could not consider the fact that he was serving a prison term from his plea 

despite it being an element of the offense. He is mistaken. While a West plea allows a 

defendant not to admit a factual basis for the offense, all of the elements of the offense 

are treated as proved. (People v. Bradford (1997) 15 Cal.4th 1229, 1374–1375; People v. 

Rauen, supra, 201 Cal.App.4th at pp. 425–426.)

8 Sandoval, as we explain in more detail below, considered the standard for 

harmless error in the context of Cunningham v. California (2007) 549 U.S. 270 

(Cunningham) error—where a sentence in excess of the statutory maximum sentence was 

imposed under California’s former determinate sentencing law without submitting the 

facts authorizing such a sentence to a jury.
8.

unquestionably would have found true at least a single aggravating circumstance had it 

been submitted to the jury,’ the error is harmless.” (Flores, at p. 500, italics added.) We 

respectfully disagree with the People and Flores that Sandoval applies in this context. A 

reviewing court concluding beyond a reasonable doubt that the jury would have the facts 

underlying a single circumstance in aggravation true beyond a reasonable doubt is 

insufficient to conclude that any error under section 1170, subdivision (b) was harmless.

To explain our disagreement with Flores, we consider the origin of the harmless 

error standard it applied. In Cunningham, the Supreme Court held that California’s 

determinate sentencing law (as it existed from 1977 to 2007) violated the 

Sixth Amendment right to a jury trial because it permitted a trial judge to determine facts 

(other than a prior conviction) that would allow imposition of a sentence in excess of the 

statutory maximum.9 (Cunningham, supra, 549 U.S. at pp. 275–276.) As Cunningham

explained, the Supreme Court had long held that any fact that permitted imposition of a 

sentence beyond the statutory maximum had to be proved to a jury beyond a reasonable 

doubt. (Id. at p. 281.) Under the California determinate sentencing law, a statutory 

presumption existed that “ ‘[t]he middle term [would] be selected unless imposition of 

the upper or lower term [was] justified by circumstances in aggravation or mitigation.’ ” 

(Id. at p. 278.) Under the then-existing statutory scheme, those circumstances in 

aggravation or mitigation—and the underlying facts related to those circumstances—

were to be determined by the trial court, not the jury. (Ibid.) The Supreme Court 

therefore determined that the imposition of an upper term without having the facts 

underlying the aggravating circumstances proved to a jury beyond a reasonable doubt 

violated the Sixth Amendment. (Id. at p. 293.)

9

In the Sixth Amendment context, the statutory maximum “ ‘is not the maximum 

sentence a judge may impose after finding additional facts, but the maximum he may 

impose without any additional findings.’ ” (Cunningham, supra, 549 U.S. at p. 275.)
9.

In Sandoval, our Supreme Court considered whether an upper-term sentence 

imposed pursuant to the pre-Cunningham determinate sentencing law—i.e., imposed 

based on judicial findings of fact on circumstances in aggravation—was harmless error 

under the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 837.) It explained that 

the trial court had relied upon multiple aggravating circumstances, none of which had 

been proved to a jury, admitted by the defendant, or based on the fact of a prior 

conviction. (Id. at pp. 837–838.) The upper-term sentence therefore violated the 

defendant’s Sixth Amendment rights under Cunningham. The Sandoval court then 

considered whether the violation was harmless. To that end, it articulated the following 

standard: “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, the Sixth 

Amendment error properly may be found harmless.” (Sandoval, at p. 839.) In the Sixth 

Amendment context, the issue was whether the “defendant [was] eligible for the upper 

term ...”; the trial court’s consideration of additional circumstances not proved to a jury 

was not a federal constitutional question. (Sandoval, at p. 839.)

As noted, in Flores, the Court of Appeal for the First District, Division Three 

extended the standard for harmless error applied in the Sixth Amendment context in 

Sandoval to section 1170, subdivision (b)(2) error.10 (Flores, supra, 75 Cal.App.5th at 

pp. 500–501.) The Court of Appeal for the Fourth District, Division One disagreed with 

Flores on that point. (People v. Lopez (2022) 78 Cal.App.5th 459, 465–468, fn. 11 

(Lopez).)

The court in Lopez agreed with Flores that section 1170, subdivision (b)(2) error is 

subject to a harmless error analysis: “where a sentencing factor must be found true by a 

10 The Flores court did not explain why it concluded that the harmless error test 

applied in Sandoval applies in this context.
10.

jury beyond a reasonable doubt and the court fails to submit that factor to the jury, the 

error in the court’s reliance on that fact may be subject to harmless error review as to 

whether the lack of a finding by the jury was prejudicial.” (Lopez, supra, 78 Cal.App.5th 

at p. 465.) But Lopez disagreed with Flores on the correct standard for harmlessness. 

Instead of the Sandoval harmless error standard, the Lopez court applied the following 

two-part standard for harmlessness: First, “[i]n order to conclude that the trial court’s 

reliance on improper factors that were not found true by a jury[,] ... admitted by [the 

defendant, or based on certified records of conviction] was not prejudicial, [the reviewing 

court] would have to conclude beyond a reasonable doubt that a jury would have found 

true beyond a reasonable doubt every factor on which the court relied, because the 

amended statute requires that every factor on which a court intends to rely in imposing an 

upper term, with the exception of factors related to a defendant’s prior conviction(s), 

have been admitted by the defendant or proven to a jury (see § 1170, subd. (b)).” (Lopez, 

at pp. 465–466.) According to Lopez, if that conclusion is made, the defendant has 

suffered no prejudice. (Id. at p. 467 & fn. 11.) If not, the reviewing court “then 

consider[s] the second question, which is whether [it] can be certain, to the degree 

required by People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)], 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, at p. 467, 

fn. 11.)

Lopez reasoned it is not enough that the reviewing court conclude that a trial court 

was permitted to impose the upper term because the jury would have found true a single 

aggravating circumstance beyond a reasonable doubt; whether the trial court could have

imposed the upper term did not completely resolve the issue. (Lopez, supra, 78 
11.

Cal.App.5th at p. 467.) Instead, when a reviewing court concludes beyond a reasonable 

doubt that a jury would have found true fewer than all the aggravating circumstances 

beyond a reasonable doubt, it must still ask whether it is reasonably probable the trial 

court “would have exercised its discretion” to impose a sentence less than the upper term 

in the absence of the unproved aggravating circumstance(s). (Ibid.) 

We agree with the Lopez court that a reviewing court finding beyond a reasonable 

doubt that the jury would have found a single aggravating circumstance true beyond a 

reasonable doubt is insufficient to conclude that the error was harmless. In other words,

we disagree with Flores that Sandoval is applicable in this context. We further agree that 

the second step of the Lopez analysis—considering whether the trial court would have 

imposed a lesser term in absence of the aggravating circumstances not provable on the 

record before the reviewing court—is necessary. To find that section 1170, 

subdivision (b) error is harmless when fewer than all of the circumstances relied upon by 

the trial court could have been proved to the jury, we must determine whether the trial 

court would nevertheless have imposed the upper term based on the remaining 

aggravating circumstances. 

Despite our agreement with Lopez on the majority of the standard it articulated, we 

are unconvinced that the Chapman standard of harmless error—applicable to errors 

implicating federal constitutional rights—must be applied to all aggravating 

circumstances in the Lopez court’s first step. Lopez does not provide a clear explanation 

for why the Chapman standard for harmless error applies to all aggravating 

circumstances. Indeed, the only citation that the Lopez court provides for the proposition 

that Chapman applies to every circumstance is citation to section 1170, subdivision (b), 

itself. While Sandoval directs that at least one aggravating circumstance must be proved 

to the Chapman harmless error standard to satisfy the Sixth Amendment (i.e., for it to be 

permissible for the trial court to impose the upper term consistent with the 

Sixth Amendment), ordinary errors of state law are subject to review pursuant to Watson, 
12.

supra, 46 Cal.2d 818.11 (People v. Breverman (1998) 19 Cal.4th 142, 171 [when a state 

statutory right to a jury determination is violated, such error “is state law error alone, and 

thus subject, under article VI, section 13 of the California Constitution, to the Watson 

harmless error test”; “the state-created right to jury determination” does not implicate 

federal due process interests].) 

We note that the Chapman standard of harmless error is compelled when an 

element of an offense or a sentencing factor necessary to impose a sentence above the 

statutory maximum is not presented to the jury. (Washington v. Recuenco (2006) 548 

U.S. 212, 220 [firearm enhancement sentencing factor harmless error is decided pursuant 

to Chapman]; People v. French (2008) 43 Cal.4th 36, 52–53 [applying only Chapman 

where the trial court imposed the upper term based on one aggravating circumstance and 

that circumstance was not proved to the jury].) A fact that is necessary to impose a 

sentence above the statutory maximum must be proved to a jury beyond a reasonable 

doubt. However, as Sandoval has made clear, when multiple aggravating circumstances 

not proved to the jury are relied upon by a trial court in imposing the upper term, the 

reviewing court must only conclude beyond a reasonable doubt that one of those 

circumstances would have been found true by the jury beyond a reasonable doubt to 

avoid offending the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 839 [so long as 

a defendant is eligible for the upper term by virtue of facts that have been established 

consistently with Sixth Amendment principles, the federal Constitution permits the trial 

court to rely upon any number of aggravating circumstances in exercising its discretion to 

11 The test under Watson is whether, “ ‘after an examination of the entire cause, 

including the evidence,’ [the reviewing court] is of the ‘opinion’ that it is reasonably 

probable that a result more favorable to the appealing party would have been reached in 

the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) In this context, the 

question for the reviewing court would be whether there is a reasonable probability that 

the trial court would not have found the aggravating circumstance(s) true beyond a 

reasonable doubt.
13.

select the appropriate term by balancing aggravating and mitigating circumstances, 

regardless of whether the facts underlying those circumstances have been found to be true 

by a jury].) Accordingly, one aggravating circumstance must be reviewed pursuant to 

Chapman, but the remaining aggravating circumstances involve only a state-created right 

to a jury trial that must be reviewed pursuant to Watson.

In sum, we 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 the aggravating circumstances would have been proved to the 

respective standards, any error was harmless. If not, we move 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, we vacate the sentence and remand for resentencing 

consistent with section 1170, subdivision (b). 

With that standard in mind, we revisit the aggravating circumstances relied upon 

by the trial court. Because the second, third, and fourth aggravating circumstances were 

found in compliance with section 1170, subdivision (b), we focus on the first 

circumstance. First, the trial court relied upon the finding that the offense involved great 

violence, great bodily harm, or other facts which demonstrate a high degree of cruelty, 

viciousness, and callousness. As noted above, the facts underlying the offense were not 

admitted or proved. The record contains no testimony regarding the offense. Even 

assuming the facts summarized in the probation report are true—defendant and another 
14.

person attacked an inmate, fracturing his orbital bone—we conclude that there is a 

reasonable probability that the jury would not find beyond a reasonable doubt that 

defendant’s part in the offense reflected his personal use of great violence, infliction of 

great bodily harm, or a high degree of cruelty, viciousness, or callousness. 

While we found that the second, third, and fourth aggravating circumstances were 

all proved in compliance with section 1170, subdivision (b), even if they were not, they 

are all questions of historical fact provable from a certified record of conviction. 

Moreover, defendant’s convictions are reflected in the probation report, to which 

defendant made no objection. There is no logical reason that defendant would not have 

challenged the accuracy of those prior convictions if not true. Indeed, as noted, 

defendant admitted three prior strike convictions which comprised most of his criminal 

history (and all of his violent offenses). We would therefore conclude beyond a 

reasonable doubt that the jury would have found true beyond a reasonable doubt that 

defendant had engaged in violent conduct. We further conclude that there is no 

reasonable probability12 that the jury would not have found true beyond a reasonable 

doubt that defendant had numerous and/or increasing serious prior convictions and had 

served a prior prison term.13 (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 

[three prior convictions are numerous].) 

The trial court found true one circumstance in mitigation, and as discussed above, 

the jury would have found true at least three of four aggravating circumstances beyond a 

reasonable doubt. In light of the aggravating circumstances the jury would have found 

true beyond a reasonable doubt, we conclude that the error in not presenting facts 

underlying those circumstances to the jury was harmless. In imposing the upper term, the 

12 We would reach the same conclusion if we applied the Chapman standard.

13 We note that defendant’s criminal history did not need to be proved to a jury. The 

trial court could instead have relied upon a certified record of conviction for those 

offenses. (§ 1170, subd. (b)(3).)
15.

trial court emphasized that “more important[]” than the violence of his present offense 

(the factor we cannot conclude the jury would have found) were his history of violence 

and the increasing seriousness of his offenses. Based on the trial court’s comments, its 

imposition of the upper term was based primarily on defendant’s violent and serious 

criminal history. In light of that record, we must conclude that there is no reasonable 

possibility that the trial court would have imposed a term less than the upper term if it 

had not considered the great violence, infliction of great bodily harm, or high degree of 

cruelty, viciousness, or callousness involved in the present offense. The error was 

harmless.

DISPOSITION

The judgment is affirmed.