Filed 10/6/ 22 P. v. Mora CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SE RGIO MORA,

Defendant and Appellant. B313078

(Los Angeles County Super. Ct. No. TA153005)

APPEAL from a judgment of the Superior Court of Los Angeles County, Sean D. Coen, Judge. Affirmed. Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorney s General, for Plaintiff and Respondent.

_______________________2 Following a jury trial appellant Sergio Mora was convicted
of first degree burglary and of making criminal threats. He was sentenced to 18 years 4 months in state prison, and was ordered to pay $440 in fines and court fees. On appeal, Mora contends that the court erred in (1) not holding an evidentiary hearing to
address alleged misconduct of a juror; (2) no t granting the prosecution’s (unopposed) Romero 1 m otion to dismiss a prior strike; (3) ordering him to pay the fines and court fees without first holding a hearing to determine his ability to pay those sums; and (4) sentencing him to a prison term so disproportionate to his
offense as to violate the Calif ornia Constitution’s prohibition of cruel or unusual punishment

. We reject each of these contentions for the reasons explained below

. In a supplemental brief, Mora
raises the additional contention that his sentence to the high
term on hi s burglary conviction violate s Penal Code 2 section 1170, subd ivision (b)(2) ( as amended by Stats. 2021, ch. 731, § 1.3 )

, effective January 1, 2022 . That amendment require s sentencing courts to select the middle term unless aggravating
factors existed and were stipulated to by the defendant or proved beyond a reasonable doubt at trial or proven by a certified record
of conviction

. We conclude there was no such error and

, even if
the trial court erred in finding aggravating factors that justifie d selecting the upper term of sentence, any such error was
harmless

. We thus affirm.

1 People v. Superior Court (Romero) (1996) 13 Cal.4 th 497 ( Romero )

.
2 Subsequent unspecified statutory references are to the Penal Code , unless otherwise stated.3 FACTUAL AND PROCEDURAL BACK GROUND
On the morning of October 27, 2020, Danielle A lvarado 3 was getting ready for work when Mora knocked on the front door
and asked for someone who did not live there. Danielle informed
Mora that he was at the wrong address and closed the door.
Mora persisted, repeatedly knocking on and then kicking the
door. Danielle eventually a wakened Joseph a nd asked him to watch her while she walk ed to her car because Mora “seemed out of his right mind .” Joseph also tried to persuade Mora that he was at the wrong house, but Mora responded that Joseph was the
man who had shot and killed Mora’s brother

, and th at Mora only
wanted “ to do [ drugs ] ” with Danielle and Joseph

. Mora followed Danielle to her par k ed car, all the while accusing her of harboring his personal property and telling her that he was not afraid of the police and that he would not allow her to l eave in
her car. Joseph accompanied Danielle when he realized Mora was following her. Mora spoke to Joseph as well, accusing him of having killed Mora’s brother

. When they reache d Danielle’s car Mora tried to grab her hand or arm, causing Danielle to dr op her phone. Joseph pushed Mora away while Danielle retrieved her phone and announced she was calling the police. At that point Mora ran off and Danielle drove away.
Mora turned back to Danielle’s and Joseph’s residence, followed by Joseph. When Joseph arrived home he found Mora in the living room , holding a pair of sneakers he had taken from a nearby closet

. Joseph took the shoes away and physically

3 Danielle and her roommate Joseph have the same last name. For ease of reference

, we refer to them by their first

names.4

removed Mora from th e apartment

. While Joseph waited for the police to arrive, Mora stood outside yelling at Joseph, including a threat to kill Joseph. Mora then left the property, returned, knocked on the door, and left. Mora returned again, this time holding a baseball b at , and again tried to get in through the front
door

. Mora left and had returned yet again , still carrying the bat, when the police arrived . Although he had dropped the bat by the time he was taken into custody

, o ne of the responding officers
found the b aseball bat a few houses away.
Mora was charged in an information with one count of first degree burglary and one count of criminal threats , accompanied by an enhancement arising from use of a dangerous weapon

— the
baseball bat . The information further ch arged Mora with two prior serious felonies , murder and robbery. The enhancement for use of the baseball bat was dismissed at Mora’s preliminary hearing, but he was convicted at trial on both the burglary and
criminal threat c ounts. Mora waived a jury trial at his sentencing. The court disregarded a prior strike for a murder
that occurred in 1992, when Mora was approximately 15 years
old but found as true a prior strike arising from his 20 12 conviction for robbery

. The court sentenced Mo ra , who was 44 years old at the time of sentencing

, to the upper term of imprisonment for his burglary conviction, citing Mora’s criminal record, his recent convictions for increasingly violent crimes, and the fact that Mora was on probation in three separ ate matters when the burglary occurred. 4

4 Mora’s sentence, before credits for time served, amounted to 18 years 4 months in state prison, calculated as follows: for burglary, six years in state prison, doubled to 12 years pursuant to section s 667, subdivisions (b) to (i) and 1170.12 , subdivisions5 Finally, the court imposed $440 in fines and court fees, consisting of a restitution fine of $300, a court operations assessment of $80, and $30 conviction assessment fees imposed
for each of the two counts on whic h Mora was convicted. In response, defense counsel inquired whether the court would “consider waiving or staying the court fees based on Mr. Mora being indigent and his sentence.” The court responded in the negative: “ I t is premature for me to do that a t this time as it cuts both ways as with the length of the sentence because [Mora] will have earning capacity within state prison.”

DISCUSSION
We have jurisdiction to review Mora’s challenges to the judgment. ( § 1237, subd. (a).)

A. The Trial Court Committed No Error Regarding Purported Juror Misconduct Mora’s first contention on appeal is that a juror committed misconduct, that the trial court failed to address the misconduct when it was brought to the court’s attention, and that the presumption of prejudice from the juror’s misconduct entitles
Mora to a new trial. We review for abuse of discretion the trial
court’s decision no t to conduct a hearing or detailed inquiry. ( People v. Ray (1996) 13 Cal. 4 th 313, 343; People v. Keenan (1988)
46 Cal.3d 47 8, 539

. ) The juror misconduct claim is based on a note sent by the jury foreman on the morning the jury reached its verdict. The

(a) to (d); for criminal threats, eight months in state prison, doubled to 16 months pursuant to section s 667, subdivisions (b) to (i) and 1170.12 , subdivisions (a) to (d); plus an additional five years in state prison pursuant to section 667 , subdivision (a)(1).6

note, received at 9:45 a.m.

, read in its entirety: “If a member of the jury is not considering all of the elements of the ca se to determine if the defendant is guilty or not guilty.” After conferring with counsel, and without objection by Mora’s counsel

, the court replied in writing that “ [a] ll jurors must weigh and consider all elements and evidence in making a determination on whether the defendant is guilty or not guilty.” Approximately half an hour after the jury resumed deliberating, it informed the
court it had reached a verdict.
Mora now contends that the juror’s note put the court on
notice of misconduct warranting di smissal of the juror in question, and that it was error not to have held an evidentiary hearing before determining how to respond. Before addressing these contentions, however, we consider whether they have been waived by defense counsel’s failure to make any objection at the time the court consulted counsel on how to respond to the jury

note . We conclude that Mora waived his challenges based on the jury note. Even a constitutional right “ ‘ “ may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. ” ’ ” ( In re Sheena K (2007) 40 Cal.4 th 875, 880

- 881. ) In the absence of a requirement that a timely objection be made, the prosecutor would be deprived “ ‘ of the opportunity to cure the defect at trial, ’ ” while the defendant could “ ‘ “ gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal. ” ’ ” ( People v. Partida (2005) 37 Cal.4 th 428,
434. ) Our cases make it clear that a claim of juror misconduct is
waived in the absence of a timely object ion . ( People v. Stanley ( 2006 ) 39 Cal.4 th 913, 950 [ issue of juror misconduct is waived on7

appeal when defense failed to object at trial or seek a mistrial on ground s of juror misconduct ] ; People v. Wisely (1990) 224 Cal.App.3d 939, 948 [ waiver when, rather than object, defendant “fully acquiesced in the proceedings” ]. ) We also reject Mora ’s contention on its merits. “Juror misconduct” is a broad concept and can incl ude a juror undertaking “experiments” on his own ( Bell v. State of California (1998) 63 Cal.App.4 th 919, 932)

, a juror being intoxicated ( People v. Burgener (1986) 41 Cal.3d 505, 516

- 517 , disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 746 )

, jurors discussing among themselves the defendant’s failure to testify ( People v. Lavender (2014) 60 Cal.4 th 679, 687)

, a juror sleeping during trial ( People v. Bradford (1997) 15 Cal.4 th 1229,
1347

- 1348 )

, or a juror expressing an opinion as to the defendant’s guilt prior to deliberations ( People v. Weatherton (2014) 59
Cal.4 th 589, 598). Just as “juror misconduct” describes a broad range of circumstances, the trial court has broad discretion to address reports of potential juro r misconduct

. That discretion extends to determining whether misconduct has occurred, as well as how best to respond to a report of misconduct. “The court does not abuse its discretion simply because it fails to investigate any and
all new information ob tained about a juror during trial.” ( People v. Ray (1996) 13 Cal.4 th 313, 343.) Contrary to Mora ’s contention, “ ‘ a hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case. ’ ” ( People
v. Cleveland (2001) 25 Cal.4 th 466, 478; accord

, People v. Ray

, supra , 13 Cal.4 th at p. 343 [ same ]. ) “The trial court’s auth o rity to8

discharge a juror includes the authority to conduct an

a ppropriate investigation concerning whether there is good cause to do so, and the authority to take ‘ less drastic steps [than discharg( ing a juror ) ] where appropriate to deter any misconduct

o r misunderstanding it has reason to suspect. ’ ” ( People v.
Alexander (2010) 49 Cal.4 th 846, 926 , quoting People v. Keenan

, supra , 46 Cal.3d at p. 533. ) Far from showing cause to dismiss a juror, the note at issue
in this case can be read as simply revealing that the juror in question misunderstood the court’s instruction regarding the
elements of one of the offenses for which defendant was tried. On the facts presented here, the court’s response was correct, “to reinstruct the jurors regarding their duty to delib erate and to permit the jury to continue deliberations before making further inquiries that could intrude upon the sanctity of deliberations.” ( People v. Cleveland

, supra , 25 Cal.4th at p. 480. ) Only “when reinstruction does not resolve the problem” need the court conduct whatever inquiry is reasonably necessary to determine whether grounds exist to dismiss a juror. ( I bi d

. ) Here, the record
confirms that reinstruction did resolve whatever problem there

was, as the jury returned with a verdict less than half an hour
after the court’s instruction that all jurors must “weigh and consider all elements and evidence” in reaching a verdict.

B. The Trial Court Did Not Err in Failing to Hold a Hearing on Mora’s Ability to Pay
Mora ’s second contention on appeal is that the trial court erred by imposing the restitution fine and court fees without

reg a rd to his ability to pay those sums. Citing People v. Due ñ as (2019) 30 Cal.App.5 th 1157 ( Due ñ as ) , Mora contends that he was9

entitled t o a hearing as to his ability to pay before the court could impose the fine and fees

. 5
In Due ñ as , Division Seven of this c ourt held that it was error to impose certain fees and assessments as part of a criminal conviction without holding a hearing at whic h the defendant could attempt to prove her inability to pay. We begin our review of this contention by determining whether counsel preserved it for appeal by making a timely and complete objection at trial. We note that, while defense counsel in Due ñ as specifically requested a hearing to address the defendant’s inability to pay, and offered proof of her indigence, counsel here did neither. We also note that the opinion in Due ñ as was published in January 2019, approximately two and one

- half years before Mora was sentenced. Mora’s sentencing memorandum did not address the issue of fines and assessments, and did not contend that Mora lacks the ability to pay fines that may be imposed.
We conclude Mora has waived his contention

, first made on appeal

, that the trial court erred in failing to hold a hearing on
his inability to pay fines and fees . However, we treat counsel’s request below that the court “ consider waiving or staying the court fees” as a timely objection to the court’s order imposing the
restit ution fine and court fees, and therefore address whether the court erred by refusing to waive those fees

. W e conclude that it
did not.

5 The California Supreme Court has granted review to consider the requirement to hold a hearing as to the defendant’s ability to pay before ordering payment of restitution fines or court fees as part of the sentence in a criminal case. ( People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov

. 13, 2019, S257844. )10 Mora ’s circumstances are very different from those of the
defendant in Due ñ as . The defendant in that case was a young, homeless woman who suffered from cerebral palsy and who relied on public assistance to support herself and her two children. Her driving pr ivilege was repeatedly suspended for inability to pay
fines and court fees , and each successive offense left her deeper in

court

- ordered debt that she had no ability to escape. Yet another traffic stop in 2015 resulted in the defendant pleading no contest to driving with a suspended license, after which she was sentenced to probation and ordered to pay a $150 restitution fine and $70 in court fees. Her counsel requested a hearing to determine her ability to pay these fees, but the court declined on the gr ound that it had no discretion to waive the fine or court fees. The Court of Appeal remanded for a hearing, holding that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay
b efore ” imposing court and administrative fees

, and that it was “fundamentally unfair” to impose a restitution fine on those lacking the ability to pay it. ( Dueñas

, supra , 30 Cal.App.5th at

p. 1164.)
In People v. Caceres (2019) 39 Cal.App.5 th 917 ( Caceres )

,

w e limited Due ñ as to its “extreme facts ” and to the unique
circumstances of the defendant in that case. ( Caceres

, supra , at pp. 923, 926

- 927.) The defendant in Caceres contended that he was deprived o f due process when the trial court assessed $370 in fines and court fees following his conviction for making criminal threats. Our opinion in Caceres addressed at length the factual
differences between the defendants in Due ñ as and in Caceres

. Specifically , we concluded that while Ms. Due ñ as’s crime was inseparable from her poverty, in that she was trapped by “the11

cascading consequences of

. . . fines and assessments” ( Due ñ as , supra , 30 Cal.App.5th at p. 1163) that she could not afford to pay,
and fell fart her behind each time she was stopped for driving on the suspended license that she could not afford to reinstate, the
defendant in Caceres had no such excuse

. As we observed

,

“ Caceres ’ s offense, criminal threats, on its face is not a crime
either ‘ driven by ’ poverty or likely to ‘ contribut[e] to ’ that poverty such that an offender is trapped in a ‘ cycle of repeated violations and escalating debt. ’ ” ( Caceres

, supra , at p. 928, quoting Dueñas

, supra , at p. 1164 & fn. 1 .) To the contrary, “[a] person may avoid making criminal threats regardless of his or her financial circumstances, and the imposition of $370 in fees and fines will not impede Caceres’s ability to avoid making criminal threats in the future.” ( Caceres

, supra , at pp. 928

- 929

. ) We believe the same distinction applies to Mora : any inability to pay the $440 in fines and assessments is not the result of Mora having committed the burglary at issue, and his obligation to pay those fees will not impede his ability to avoid committing future burglaries.
Based on Caceres , we conclude that the trial court did not

err by refusing Mora ’s request to waive the restitution fine and court costs in question. We review the record to determine whether there is “evidence supporting an i mplied determination of ability to pay.” ( People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) The trial court’s conclusion that the waiver request was premature
, due to Mora’s earning capacity while
incarcerated

, finds approval in a number of cases. ( See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [the defendant sentenced to six years; $370 in fees and costs assessed; potential earnings during sentence “forecloses a meritorious inability to12

pay argument”] ; People v. Johnson (2019) 35 Cal.A pp.5 th 134,
139 [ “[t]he idea that [ the defendant] cannot afford to pay $370 while serving an eight

- year prison sentence is unsustainable” ] ; People v. Hennessey

, supra , at p. 1837 [“ability to pay” includes potential earnings from prison job during sentence]; People v. Frye (1994) 21 Cal.App.4 th 1483, 1487 [ “ [ i ] n the absence of objection by [the] defendant, the trial court could presume the fine would be paid out of [the] defen dant’s prison wages” ]

. ) Our holding that the trial court correctly took into account Mora ’s potential earnings while serving his sentence establishes that any error in failing to hold a hearing regarding hi s ability to

pay

— even though Mora neither request ed a hearing nor made an offer of proof of inability to pay

— was harmless. 6

C. The Trial Court Did N ot Err In Denying the Prosecution’s Romero Motion
Mora ’s third contention on appeal is that the trial court
erred when it denied the prosecution’s Romero motion to dismiss a prior strike for Mora’s conviction for robbery in 2012. Mora and the People agree that we review this decision for abuse of
discretion. ( People v. Carmony (2004) 33 Cal.4th 367, 376.) The
trial court denied the motion, citing Mora’s lengthy criminal record and the fact that he was on probation for three separate matters at the time he committed the burglary: “ I can take into
considerat ion the fact that the strike prior was from 2012, but the story doesn’t end there because there was no significant break

—

6 Mora did not assert an Eighth Amendment claim in connection with the restitution fine and court costs. Accordingly, we deem the issue waived and do not address it. ( Caceres

, supra , 39 Cal.App.5 th at p. 923. )13

there was no break period in lawlessness from that date up until
the date of this crime. [Mora] was constantly getting arrested
and he was put on probation various times and then he violated the probation. So based up on that, I cannot see how it would be in the interest of justice to strike the strike prior and I will not strike the strike prior.” 7
A trial court abuses its discretion in refusing to dismiss a prior strike only in limited circumstances, such as when it was
not aware of i t s discretion to dismiss, where it considered impermissible factors in refusing to dismiss, or where the resulting sentence lea d s to “ ‘ an “ ar bitrary, capricious or patently absurd” result. ’ ” ( People v. Carmony

, supra , 33 Cal.4 th at

p. 375. ) None of these factors appears on th is record. T he trial

court was fully a ware of its discretion to dismiss a strike. In fact, the court did disregard M ora ’s conviction for murder dating back
to 1992. The factor s that the court did emphasize; namely,
Mora ’s lengthy criminal history and the fact that he was on probation for three offenses when he was arrested, comport with factors cases have recognized to be relevant to inform that
discretion. ( See, e.g., People v. Brugman (20 21 ) 62 Cal.App.5 th 608, 640 [ no abuse of discretion, citing the defendant’s “continuous history of criminal conduct” ] ; People v. Bernal (2019) 42 Cal.App.5 th 1160, 1170 [ no abuse of discretion although refusal to strike two prior convictions resulted in sentence of 85 years to life ] ; People v. Humphrey (1997) 58 Cal.App.4 th 809, 813

7 This was the prosecution’s second Romero motion directed to Mora’s earlier strike from 2011. Prior to trial, before a different judge, the prosecutor’s oral Romero motion was denied as well.14

[ reversing dismissal of prior strike where the defendant “led a
continuous life of crime after the prior ” ]. ) Thus, the decision not
to strike the 2012 conviction was not “ so irrational or arbitrary that no reasonable person could agree with it.” ( People v. Carmony

, supra , 33 Cal. 4th at p. 377 .) With respect to Mora’s contention that the trial co urt should have found, as a mitigating factor in support of the
Romero motion, that Mora was suffering from mental illness at
the time of his crimes

, 8 w e have reviewed the record , find such a condition was not established by competent evidence, and find no abuse of discretion by the trial court. The existence of a mitigating factor must be determined by examining the facts and circumstances of the case. ( People v. Regalado (1980) 108 Cal.App.3d 531, 538.) Here, the trial court
had no admissible evidence supporting Mora’s counsel’s
contention that his mental condition amount ed to a mitigating
factor requiring the court to strike the prior

. Both a t trial and at his sentencing

, Mor a ’s counsel did not adduce any evidence at trial of mental illness or disease. Similarly, in her sentencing
memorandum

, Mora ’s trial counsel did not contend that evidence
showed that mental illness caused Mora to commit the crimes he
was convicted of

, alt hough counsel did suggest that Mora ’s “borderline intellectual functioning

. . . could have played a role”

8 We assume this contention is based on r ule 4.423 (b)(2) of the California Rules of Court, which includes among “Circumstances in m itigation” whether “the defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime.”15

in his crimes, and request ed that the trial court order mental health screening. 9 Mora’s opening brief on appeal summarizes the “evidence”
of mental illness as including all of the following: the victim’s testimony that Mora “ [ j ] ust seemed out of his right mind” while committing the offense

, defense counsel ’s request that Mora be referred for mental health screening , and what counsel argue are
t he jurors’ perceptions of Mora as expressed in two notes to the trial judge , which we discuss below

. T his “evidence” does not justify set ting aside the trial court’s exercise of his discretion to deny the Romero motion

. It falls far short of demonstrating that
the trial judge ’ s conclusion was “irrational or arbitrary” ( People v. Myers (1999) 69 Cal.App.4th 305, 310) or one “that no reasonable person could agree with.” ( People v. Carmony

, supra , 33 Cal.4th at p. 377 .)
S ta tements made by Mora’s counsel , whether in written briefs ( Muskan Food & Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 389

- 390) or oral argument ( People v. Superior
Court (Crook) (1978) 83 Cal.App.3d 335, 341) are not evid en ce

. The testimony of the complaining witnesses is as consistent with
Mora being under the influence of alcohol or drugs as with him being mentally ill. 10 In fact, at the sentencing hearing defense

9 The trial court denied the request, stating that Mora was
not “ a good candidate.”

10 Danielle initially described Mora as acting “like he was obviously on drugs.” Only after the c o urt sustained counsel’s objection to that testimony did Danielle describe M ora as “out of his right mind,” a statement that drew no objection. Both Danielle and Joseph testified that Mora insisted they had drugs16

counsel argued that the victims’ testimony suggested that Mora was “under the influence or having something to that effect being present on the day of the incident,” while acknowledging that the testimony was not sufficient to raise a defense of voluntary
intoxication. The prosecutor’s comments at the hearing on the issue of whether Mora’s mental state supported striking his prior are also ambiguous at best , although he was clear that he was
not aware of “ any evid ence of mental health issues.”
We also find no merit in Mora’s contention that the trial court should have considered the juror’s notes as evidence of mental illness. The notes in question were sent together on the morning of the last day of deliberations . The first note read

, “And if your mental state of mind has any bearing on intent as according to the courts opinion.” After consulting with counsel, and without objection

, the court responded in writing: “There are no instructions given as to mental s tate. Please refer to instruction 3.31 page 22.” 11 The second note read, “If a clinical diagnosis is needed to deem someone ’ s mental state as rational or irrational in order for the jury to consider it.” With the

concurrence of counsel

, the court r espon ded : “This evidence is not before you.” Certainly, a fair reading of these notes is that at

in the apartment and that they should all consume drugs together.

11 Instruction 3.31 reads as follows: “In the crimes charged in [c] ounts 1, and 2, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed. [ ¶ ] The specifi c intent required is included in the definitions of the crimes set forth elsewhere in these instructions.” (CALJIC No. 3.31.)17

least one juror questioned whether Mora’s mental state was a factor in his guilt, but that does not mean the trial court had to
consider the notes as evidence of mental illness in deciding the
Romero motion. Jurors are neither witnesses no r expert evaluators of mental health , and the two notes from the jury foreperson are not evidence ( see Evid

. Code

, § 140 ) . Moreover, Mora’s counsel did not object to the trial court’s resolution of the juror notes by advising them that “ [ t ] his evidence is not before

you , ” which is consistent with our perception of the record

— there
was no evidence of mental impairment

. This further supp orts our conclusion that the trial court did not abuse its discretion.

D. Mora’s Sentence Was Not Cruel or Unusual
Punishment
Mora next contends that his sentence violates the California Constitution’s prohibition against cruel or unusual punishments in article I, section 17 . We conclude that Mora ’s
sentence does not violate the C onstitution. We first address the People’s contention that Mora waived this ground for appeal by failing to raise an objection at the sentencing hearing. While the People are correct that a constitutional challenge to the length of sentence may be waived if not addressed to the court at the time sentence is imposed, even under the People’s authorities, we may

, and will, address the constitutional issue, if for no other reason than to “forestall a subsequent cl a im of ineffectiveness of

counse l

. ” ( People v . Martin (1995) 32 Cal.App.4 th 656, 661
, disapproved on other ground s in People v. Deloza (1998) 18 Cal.4th 485, 600, fn. 10 ; s ee People v. Norman (2003) 109 Cal.App. 4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27

, citing People
v. Martin

, supra

. )18 The constitutionality of a sentence in an individual case is an issue that we review independently for legal error , deferring to the underlying factual findings made by the trial court in determining Mora ’s sentence. ( People v. Wilson (2020) 56 Cal.App.5th 128, 166

- 167; People v. Palafox (2014) 231 Cal.App.4th 68, 82.) We also defer to the Legislature’s power to determine what punishment is appropriate for crimes

. “Reviewing courts

. . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” ( Sol em v. Helm (1983) 463 U.S. 277, 290

, fn. omitted

. ) As our Supreme Court observed in People v. Carmony

, supra , 33 Cal.4th at p age 378 , “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depa rt from this norm

. . . . In doing so, the law creates a strong presumption that any sentence that
conf o rms to these sentencing norms is both rational and proper.” Reflecting that deference to the L egislature’s power to define crimes and punishments, our cases hold that reducing a sentence

“ is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.” ( People v. Mora (1995) 39 Cal.App.4th 607, 616. ) In deciding whether a sentence is cruel or unusual, a reviewing court must determine whether the punishment “is so disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human dignity.” ( In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted

. ) Lynch established a three

- prong test to determine constitutionality, but Mora expressly limits his challenge to the19

first of the three prongs: 12 “the nature of the offense and/or the
offender

, with particu lar regard to the degree of danger both present to society.” Turning first to the nature of the offense, we are unable to minimize “the degree of danger” posed to society by first

- degree burglary. Our L egislature has classified this crime as a “violent
fe lony” ( § 667.5, subd. (c)(21) )

. Inherent in burglary is an invasion of the victim’s dwelling, a crime that strikes at the heart of society’s sense of personal safety and the right to quiet enjoyment of one’s home

. Mora also followed Danielle as she
tried to enter her car, where Mora physical ly assault ed her

, an assault that potentially would have caused more serious injury to
Danielle had Joseph not accompanied her to the car after Mora ’s
k nocking and kicking at the door scared her

. Mora also
threatened to kill Joseph

. Mora then returned to the residence
with a baseball bat. Th is collective conduct is more than
sufficient to deem Mora a danger to society. Turning to the second factor, the nature of the offender, w e find nothing in Mora’s pers onal history supporting his contention
that his sentence was cruel and unusual. Mora has a lengthy history of offenses going back three decades. In fact, the only significant breaks in Mora’s criminal history occurred when he
was incarcerated. At the time he committed the crimes before us,

12 The other two prongs are “to compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” and “ a comparison of the challenged penalty with the punishme nts prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. ” ( In re Lynch

, supra , 8 Cal.3d at pp. 426
, 427).)20

Mora was on probation for three separate offenses

. This supports the trial court’s expressed finding that continued leniency would serve no purpose other than to make it possible for Mora to commit more crimes.
Mora ’s constitutional challenge to his sentence relies heavily on People v. Avila (2020) 57 Cal.App.5th 1134 ( Avila )

. Given the fact

- specific nature of a constitutional challenge to the length of a sentence ( People v. Dillon (1983) 34 Cal.3d 441, 479 [ court must consider “the totality of the circumstances surrounding the commission of the offense ” ] )

, Avila is only apposite to the extent the crime at issue, and the offender’s personal characteristics and criminal background, resemble those
of Mora . Those similarities are almost entirely absent.
The offender in Avila was convicted of attempted robbery and attempted extortion after he tried to collect “rent” from
roadside fruit vendors. He neither committed violence nor threatened his victims and, as the court observed, the only damage was that oranges worth $20 were crushed. ( Avila

, supra , 57 Cal.App.5th at p. 1147.) Nonetheless, the trial court sentenced
him to life in prison based upon two prior strike offenses committed 26 and 28 years previously, when he was a juvenile. ( Id. at p. 1142.) The C o urt of A ppeal reversed, finding that the trial court had abused its discretion: “[A]n abuse of discretion may be found where a trial court c onsiders impermissible factors, and, conversely, does not consider relevant ones. [ C itation.] [¶] That is precisely what occurred here. The trial court did not
consider factors relevant to the nature and circumstances of Avila’s prior strikes.” ( Id. at p. 1141.) T he C ourt of A ppeal
found , inter alia, that the trial court had not afforded due weight to the fact that Avila’s prior strikes were both decades old and21

committed when he was a juvenile, and had inaccurately
sentenced Avila as a violent offe nder. It had also erred by treating Avila as a habitual criminal, finding that “Avila is not comparable to the defendant who has led a continuous life of crime so as to counteract the extreme remoteness of his priors.” ( Id. at p. 1143.) Finally, the tri al court’s life sentence improperly focused on the potential for violence, not supported by the evidence at trial. “Sentencing is not the proper venue for the trial court’s imagination.” ( Id. at p

. 1142.) From the foregoing

, it is obvious that there are significant factual differences underlying Mora’s sentencing that were absent in Avila’s case. Foremost among them is the different exercise of the trial court’s discretion: here, for example, the trial court did strike Mora’s prior strike for a murder c ommitted when he was a juvenile

. Nor did the trial judge engage in speculation about the potential for violence in arriving at Mora’s sentence. He indicated that he would give no weight to the fact that Mora had at one point returned with a baseball bat, but properly considered other factors, including Mora’s threat to kill Joseph
and the assault on Danielle. The two offenders’ criminal histories are sharply different as well: unlike Avila, Mora can accurately
be described as a career criminal. Finally, there is the difference
between the sentence struck down in Avila and the one that Mora
received. Mora’s 18

- year sentence is simply not comparable to
the life sentence at issue in Avila

. We have already discussed

— and rejected

— the argument
that the trial court should have given more weight in mitigation to the possibility that Mora ’s conduct was caused in some part by mental illness or incapacity. We cannot ignore the many factors in aggravation, particularly the v erbal threat to kill Joseph

. No22

fair analysis of Mora’s culpability allows us to ignore the significance of his real and threatened actions on the day in question. Just as the lack of a criminal record is not determinative in a cruel and unusual punishme nt analysis ( People v. Martinez (1999) 76 Cal.App.4th 489, 497 )

, it is not an
abuse of discretion to consider a criminal record as extensive as
Mora ’s record

. Put another way, “ [ t ] he facts of the crime as committed in this case and the particular nature o f the offender
who committe d that crime [citation] prevent us from taking a benign or sympathetic view of [ Mora ’s] culpability.” ( People v.
Munoz (1984) 157 Cal.App.3d 999, 1015. )

E. Mora is Not Entitled to be Resentenced
The final issue we address is Mora ’s contention, raised in a supplemental brief, that his sentence must be set aside and the matter remanded for resentencing consistent with the amendments to section 1170 that became effective on January 1, 2022, and applicable to all judgments not yet final on that date.
At the time Mora was sentenced, former section 1170, subdivision (b) afforded trial courts wide discretion to sentence convicted offenders to the low, middle or high term of sentence prescribed by law. (See former § 1170, subd. (b) ; Stats. 2018,
ch. 1001, § 2

. ) Effective January 1, 2022, Senate Bill No. 567 (2021

- 2022 Reg. Sess.) amended section 1170, subdivision (b), in a number of respects, including making the middle term of imprisonment the presumptive sentenc e. (§ 1170, subd. (b)(2).) As amended, the statute provides that “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1).)23

Paragraph (2) of subdivision (b) provides the exceptions that allow a judge to select the upper term of imprisonment “when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding 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 j udge in a court trial.” ( Id ., subd. (b)(2).) Finally, paragraph (3) of subdivision (b) provides that the sentencing judge “may consider the defendant’s prior convictions in determining sentencing based on a certified
record of conviction without submitti ng the prior convictions to a jury.” ( Id ., subd. (b)(3).) Before imposing sentence, the trial court held a court trial

on Mora ’s prior convictions , and admitted into evidence two exhibits offered by the prosecution: a 17

- page certified “CLETS printout” of Mora ’s criminal record and a 17

- page certified copy of the Department of Corrections file on Mora pursuant to section
9 69 b. After revie w ing these exhibits and hearing argument, the
trial court sentenced Mora to the high term

— six years in state prison

— upon his conviction for first degree burglary. As the court explained, “ T his is based upon the fact that [Mora] was on probation in three di fferent matters when this crime occurred as well as his record and the fact that [his] priors were of an increasing violent nature.” Mora now argues that the trial court had no basis on which to impose a sentence higher than the middle term of imprisonment for burglary. Specifically, Mora argues none of the
factors the t rial court relied on to impose the upper term “ [was] stipulated to by [Mora] or found true beyond a reasonable doubt by the court or jury.” In addition, Mora argues that a prior24

conviction can only be proved by a “certified record,” and no such
record was before the trial court. We agree that Mora is entitled to the benefit of the recent amendments to section 1170, subdivision (b) added by Senate Bill
No. 567 . Those amendments apply to all sentences not final as of January 1, 2022

. On that date Mora ’s sentence was not final because this appeal was pending, and thus his request that we review the applicability of Senate Bill No. 567 to his sentence is a

proper one. We thus address whether the trial court had evidence of aggravating factors that satisfies the requirements of subdivision (b)(2) or (3) of section 1170, and if it did not, whether the resulting error is harmless such that no remand for resentencing is necessary. F or the reasons set out below, we find the record before the trial court qualified under section 1170

, subdivision (b)(3) and alternatively that there was no prejudicial

error if it did not. Therefore, w e decline to remand for

r esentencing

. We have independently reviewed the two exhibits admitted into evidence at Mora’s sentencing hearing, and we conclude that the trial court had, at the time of sentencing, “ a certified record of conviction” within the meaning of s ection 1170, subdivision (b) (3). The CLETS report and the Department of Corrections records were both “certified r ecords ” showing Mora ’s criminal history

, and were a sufficient evidentiary basis for the court to find two of the aggravating factors it relied on to sentence Mora to th e upper term: Mora’s “record,” which we take to mean his prior criminal history, as well as the fact that he was on probation for three separate offenses at the time he committed his current offense. ( See People v. Dunn (2022) 81 Cal.App.5th 394, 403

- 404 [ “certified copy of [the] defendant’s criminal history report”25

admitted into evidence at sentencing hearing “meets the requirements of [ § ] 1170, [ subd

. ] (b)(3)” ]. )
Even assuming

, arguendo

, that the certified records introduced at Mora’s sentencing hearin g would not qualify as “ a certified record of conviction” within the meaning of s ection 1170

, subdivision (b)(3), we conclude any error in relying on them
would have been harmless. The question of whether it is harmless error to sentence a defendant to the upper term based on aggravating factors not proved beyond a reasonable doubt by a jury or a court trial, stipulated to by the defendant, or proved with “ a certified record
of convi ction,” is one that has been addressed by a number of courts following the effective date of Senate Bill No. 567.
F requently cited on this issue are People v. Flores (2022) 75 Cal.App.5th 495 and People v. Lopez (2022) 78 Cal.App.5th 459.
The trial court in Flores imposed the upper term based on aggravating factors similar to Mora’s: Flores had numerous prior
convictions dating back to when he was a juvenile, he was on probation when the crime w a s committed

, and his prior performance on probation was uns atisfactory . Although the aggravating factors were not proved beyond a reasonable doubt,
the C ourt of A ppeal found the error was harmless. “ ‘ [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond

- a

- reasonable

- dou bt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, ’ the
error is harmless.” ( People v. Flores, supra , at p. 500, quoting People v. Sandoval (2007) 41 Cal.4th 825, 839

. ) People v. Lopez

, supra , 78 Cal.App.5th 459 reached the opposite conclusion to Flores , holding that it was not harmless26

error for the trial court to find the existence of aggravating factors other than as provided in s ection 1 170, subdivision (b). Lopez held that the relevant inquiry was not whether the trial
court could have found at least one aggravating factor beyond a reasonable doubt. Instead, the relevant inquiry was whether the trial court “ would have exercised its dis cretion to impose the upper

term based on a single permissible aggravating factor, or even two or three permissible aggravating factors, related to the defendant’s prior convictions, when the court originally relied on both permissible and impermissible fa ctors in selecting the upper term.” ( People v. Lopez

, supra , at p. 467. ) The court held that Lopez was entitled to be resentenced because “[t]he trial court offered no indication that it would have selected an upper term sentence even if only a single ag gravating factor or some subset of permissible factors were present.” ( Id. at p. 468. ) More recently, the Fifth District applied a different test to
find harmless error in People v. Dunn

, supra , 81 Cal.App.5th 394.
Dunn reviewed the Flores and Lopez cases and concluded that

“ Flores sets too low a standard for harmlessness and Lopez too high.” ( People v. Dunn

, supra , at p. 409.) Dunn adopted a test it
described as a modification of Lopez : “The reviewing court determines (1)(a) beyond a reasonable d oubt 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 move s to the second step of Lopez , (2) whether there is a reasonable probability that27

the trial court would have imposed a sentence other then 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 vacate s the sentence and remand for resentencing consistent with section 1170, subdivision (b). ” ( People v. Dunn

, supra , at pp. 409

- 410, fn. omitted.) We agree with Dunn that the harmless error test does not require us to conclude that a jury woul d have found, beyond a reasonable doubt, every aggravating factor that the trial court cited in sentencing Mora. We also believe that a hypothetical jury would have found true, beyond a reasonable doubt, the following aggravating factors

, that Mora “was o n probation in
three different matters when this crime occurred

, ” and had a lengthy history of criminal behavior. In reaching this conclusion

we note that the record supporting the aggravating factors of
Mora being on probation in three separate matters at the time of
his current crime and the dates and substance of his prior arrests and convictions, is contained in documents our courts have recognized as accurate and reliable. “ [ T ] he circumstance of a prior prison term or of probation or parole status ordinarily is well documented in the same type of official records used to establish the fact and nature of a prior conviction

— court records, prison reco rds, or criminal history records maintained by law enforcement agencies.” ( People v. Towne (2008) 44 Cal.4 th 63, 81
, fns. omitted

. ) The records before the trial court when it
sentenced Mora

— in particular, the certified copy of his criminal
record

— are the types of records referred to in Towne as accurate and reliable for sentencing purposes.28 As to the final aggravating fa c tor relied on by the trial court, while we may question whether the record supports a finding that Mora’s numerous crimes were of an “ increasingly
violent ” nature
, there is no reasonable probability that the trial
court would have sentenced Mora differently, based solely on considering t he other two aggravating factors that we have concluded are supported by the record. 13 Therefore, under the harmless error test as applied in either Flores or Dunn , we are satisfied that , even if the “certified criminal records” admitted at Mora’s sentencing are not those contemplated in s ection 1170, subdivision (b)(3), they are nonetheless sufficiently reliable for
the trial court to reach the conclusions it did , and that a jury
would have reached the same conclusions had it considered that
evidence.
A single aggravating factor can support the trial court’s exercise of discretion to impose a sentence longer than the middle

term. ( People v. Black (2007) 41 Cal.4th 799, 817; People v. Hicks

13 In 2012, Mora was convicted of robbery, a violent felony, and sentenced to a term in state prison. Following his release from state prison, and not including his present crimes, Mora was arrested on six occasions. Following those arrests Mora was charge d with offenses including attempted burglary (once), battery (once), domestic battery (once) and elder/dependent abuse (twice). However

, he was convicted only of misdemeanors in the following order : domestic battery, vandalism, possession of a controlled substance, shoplifting, battery, and elder/dependent abuse. Mora’s longest sentence for any of these crimes was 90 days in county jail. Mora’s crimes are numerous, which is itself an aggravating factor, but the characterization of his misdemeanor convict ions between 2012 and his current offense as “increasingly violent” is questionable.29

(2017) 17 Cal.App.5th 496, 512

- 513

. ) Mora ’s history includes all of the aggravating factors enumerated in r ule 4.421 (b) of the
California Rules of Court : “(1) T he defendant has engaged in violent conduct that indicates a serious danger to society; [¶] (2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness [ 14 ] ; [¶] (3) The defendant has served a prior term in prison or county jail under section 1170 [

, subdivision ] (h); [¶] (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was co mmitted; and [¶] (5) T he defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory.” The findings pertaining to Mora

— his history of violence, his numerous prior offenses, his prior s tate prison sentence, and his probationary status at the time of the current
crimes

— are not subjective and they are demonstrable in records on which courts rely for the facts underlying these factors in aggravation of a sentence. Thus, t he trial court wou ld have
reached the same conclusion on sentencing as long as at least one of the aggravating factors under California Rules of Court, r ule

4

. 421 (b) were found by a jury. Any error thus was harmless. Our conclusion is consistent with the holding of Divisio n Six of this c ourt in People v. Salazar (2022) 80 Cal.App.5th 453

.

14 While , as noted, ante (see fn. 1 3 )

, it may be arguable whether Mora’s crimes between 2012 and the present can be characterized as demonstrating “ increase[ ed ] seriousness

, ” they certainly meet the alternative standard of “numerous[ness]” within the meaning of r ule 4.124(b)(2) of the California Rules of Court

.30

The appellant in Salazar sought resentencing under Senate Bill
No. 567 on the ground that, inter alia, the trial court lacked a certified record of convictions at the time of sentencing. Affirming, the court held that any error was harmless because the record “clearly indicated” that the trial court would not have impos ed a lower term even if it had been aware of its discretion to
do so under Senate Bill No. 567. The court pointed to many of the factors we have already discussed . For example, the trial judge in Salazar , like the judge who sentenced Mora , denied a
Romer o motion. The appellate court found that “[i]n denying the
Romero motion, the trial court necessarily found that [ Mora ] was not outside the spirit of the Three Strikes l aw and continued to pose a danger to the public.” ( People v. Salazar

, supra , at p. 46 3.) The trial judge in Salazar , like the judge here, ordered sentences to run consecutively rather than concurrently, which the appellate court found “shows the court’s reluctance to impose the
lower term.” ( Ibid .) There are other similarities as well, particularly an emphasis by the trial courts in both cases on the respective defendants’ continuing criminal histories and continuing to commit crimes even while on probation or community supervision. Like our colleagues in Salazar , we conclude the trial judge would not have imposed a lower sentence

on Mora even if he had been aware of his discretion to do so
under Senate Bill No. 567 and had concluded that the records upon which he had relied did not qualify as “certified records of
conviction.”31 DISPOSITION
Mora’s conviction and sentence, including the term of imprisonment and the fees and costs imposed, are affirmed.

NOT TO BE PUBLISHED

KELLEY , J. *

We concur:

CHANEY , J.

BENDIX, Acting P. J.

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.