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

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

SERGIO 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 Attorneys 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) not granting the 

prosecution’s (unopposed) Romero1 motion 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 California 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 his burglary conviction violates Penal Code2 section 

1170, subdivision (b)(2) (as amended by Stats. 2021, ch. 731, 

§ 1.3), effective January 1, 2022. That amendment requires 

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 justified 

selecting the upper term of sentence, any such error was 

harmless. We thus affirm.

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 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 Alvarado3

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 awakened Joseph and asked him to 

watch her while she walked 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 that Mora only 

wanted “to do [drugs]” with Danielle and Joseph. Mora followed 

Danielle to her parked 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 leave 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 reached Danielle’s car

Mora tried to grab her hand or arm, causing Danielle to drop 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 the 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 bat, 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, one of the responding officers 

found the baseball 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 charged 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 counts. 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 2012

conviction for robbery. The court sentenced Mora, 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 separate 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 sections 667, subdivisions (b) to (i) and 1170.12, subdivisions
5

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 which 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: “It is premature for me to do that at 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 not to conduct a hearing or detailed inquiry. 

(People v. Ray (1996) 13 Cal.4th 313, 343; People v. Keenan (1988) 

46 Cal.3d 478, 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 sections 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 case 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 dismissal 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.4th 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.4th 428, 

434.) Our cases make it clear that a claim of juror misconduct is 

waived in the absence of a timely objection. (People v. Stanley

(2006) 39 Cal.4th 913, 950 [issue of juror misconduct is waived on 
7

appeal when defense failed to object at trial or seek a mistrial on 

grounds 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 include a juror

undertaking “experiments” on his own (Bell v. State of California

(1998) 63 Cal.App.4th 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.4th 679, 687), a juror 

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

1347-1348), or a juror expressing an opinion as to the defendant’s 

guilt prior to deliberations (People v. Weatherton (2014) 59 

Cal.4th 589, 598).

Just as “juror misconduct” describes a broad range of 

circumstances, the trial court has broad discretion to address 

reports of potential juror 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 obtained about a juror during trial.” (People 

v. Ray (1996) 13 Cal.4th 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.4th 466, 478; accord, People v. Ray, 

supra, 13 Cal.4th at p. 343 [same].) “The trial court’s authority to 
8

discharge a juror includes the authority to conduct an 

appropriate 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 

or misunderstanding it has reason to suspect.’ ” (People v. 

Alexander (2010) 49 Cal.4th 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 deliberate 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. (Ibid.) 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 

regard to his ability to pay those sums. Citing People v. Dueñas

(2019) 30 Cal.App.5th 1157 (Dueñas), Mora contends that he was 
9

entitled to a hearing as to his ability to pay before the court could 

impose the fine and fees.

5

In Dueñas, Division Seven of this court held that it was 

error to impose certain fees and assessments as part of a criminal 

conviction without holding a hearing at which 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 Dueñas 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 Dueñas 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 

restitution fine and court fees, and therefore address whether the 

court erred by refusing to waive those fees. We 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 Dueñas. 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 privilege 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 ground 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 

before” 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.5th 917 (Caceres), 

we limited Dueñas 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 of 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 Dueñas and in Caceres. 

Specifically, we concluded that while Ms. Dueñas’s crime was 

inseparable from her poverty, in that she was trapped by “the 
11

cascading consequences of . . . fines and assessments” (Dueñas, 

supra, 30 Cal.App.5th at p. 1163) that she could not afford to pay, 

and fell farther 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 implied 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 to 
12

pay argument”]; People v. Johnson (2019) 35 Cal.App.5th 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.4th 1483, 1487 [“[i]n the absence of 

objection by [the] defendant, the trial court could presume the 

fine would be paid out of [the] defendant’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 his ability to 

pay—even though Mora neither requested a hearing nor made an 

offer of proof of inability to pay—was harmless.6

C. The Trial Court Did Not 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 

consideration 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.5th 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 upon 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 its discretion to dismiss, where it considered 

impermissible factors in refusing to dismiss, or where the 

resulting sentence leads to “ ‘an “arbitrary, capricious or patently 

absurd” result.’ ” (People v. Carmony, supra, 33 Cal.4th at 

p. 375.) None of these factors appears on this record. The trial 

court was fully aware of its discretion to dismiss a strike. In fact, 

the court did disregard Mora’s conviction for murder dating back 

to 1992. The factors 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 (2021) 62 Cal.App.5th

608, 640 [no abuse of discretion, citing the defendant’s 

“continuous history of criminal conduct”]; People v. Bernal (2019) 

42 Cal.App.5th 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.4th 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 court 

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 we 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 amounted to a mitigating 

factor requiring the court to strike the prior. Both at trial and at 

his sentencing, Mora’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, although counsel did suggest that Mora’s 

“borderline intellectual functioning . . . could have played a role” 

8 We assume this contention is based on rule 4.423(b)(2) of 

the California Rules of Court, which includes among 

“Circumstances in mitigation” whether “the defendant was 

suffering from a mental or physical condition that significantly 

reduced culpability for the crime.”
15

in his crimes, and requested 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 

the jurors’ perceptions of Mora as expressed in two notes to the 

trial judge, which we discuss below. This “evidence” does not 

justify setting 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.)

Statements 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 evidence. 

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 court sustained counsel’s 

objection to that testimony did Danielle describe Mora as “out of 

his right mind,” a statement that drew no objection. Both 

Danielle and Joseph testified that Mora insisted they had drugs 
16

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 evidence 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 state. 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 responded: “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 specific 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 nor 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 supports 

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 Constitution. 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 claim of ineffectiveness of 

counsel.” (People v. Martin (1995) 32 Cal.App.4th 656, 661, 

disapproved on other grounds in People v. Deloza (1998) 18 

Cal.4th 485, 600, fn. 10; see 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.” (Solem v. Helm (1983) 463 U.S. 277, 290, 

fn. omitted.) As our Supreme Court observed in People v. 

Carmony, supra, 33 Cal.4th at page 378, “the three strikes law 

not only establishes a sentencing norm, it carefully circumscribes 

the trial court’s power to depart from this norm . . . . In doing so, 

the law creates a strong presumption that any sentence that 

conforms to these sentencing norms is both rational and proper.” 

Reflecting that deference to the Legislature’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 the 
19

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

offender, with particular 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 Legislature has classified this crime as a “violent 

felony” (§ 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 physically assaulted her, an 

assault that potentially would have caused more serious injury to 

Danielle had Joseph not accompanied her to the car after Mora’s 

knocking and kicking at the door scared her. Mora also 

threatened to kill Joseph. Mora then returned to the residence

with a baseball bat. This collective conduct is more than 

sufficient to deem Mora a danger to society.

Turning to the second factor, the nature of the offender, we 

find nothing in Mora’s personal 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 punishments 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 Court of Appeal reversed, finding that the 

trial court had abused its discretion: “[A]n abuse of discretion 

may be found where a trial court considers impermissible factors, 

and, conversely, does not consider relevant ones. [Citation.] [¶] 

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.) The Court of Appeal 

found, inter alia, that the trial court had not afforded due weight 

to the fact that Avila’s prior strikes were both decades old and 
21

committed when he was a juvenile, and had inaccurately 

sentenced Avila as a violent offender. 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 trial 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 committed 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 verbal threat to kill Joseph. No 
22

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 punishment 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 of the offender 

who committed 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 sentence. (§ 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 judge 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 submitting 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 

969b. After reviewing 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, “This is based upon the fact that [Mora] was on 

probation in three different 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 trial 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 prior 
24

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. For 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, we decline to remand for 

resentencing.

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 section 1170, subdivision (b)(3). 

The CLETS report and the Department of Corrections records 

were both “certified records” 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 the 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 hearing would not qualify as “a 

certified record of conviction” within the meaning of section 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 conviction,” is one that has been addressed by a number of 

courts following the effective date of Senate Bill No. 567. 

Frequently 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 was committed, and his prior 

performance on probation was unsatisfactory. Although the 

aggravating factors were not proved beyond a reasonable doubt, 

the Court of Appeal found the error was harmless. “ ‘[I]f 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 

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 harmless 
26

error for the trial court to find the existence of aggravating 

factors other than as provided in section 1170, 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 discretion 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 factors 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 aggravating 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 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
27

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 vacates 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 would 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 on 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 records, or criminal history records maintained by law 

enforcement agencies.” (People v. Towne (2008) 44 Cal.4th 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 factor 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 the 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 section 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 

charged 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 convictions 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 rule 4.421(b) of the 

California Rules of Court: “(1) The 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 committed; and [¶] (5) The 

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 state 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, the trial court would have 

reached the same conclusion on sentencing as long as at least one 

of the aggravating factors under California Rules of Court, rule 

4.421(b) were found by a jury. Any error thus was harmless.

Our conclusion is consistent with the holding of Division 

Six of this court in People v. Salazar (2022) 80 Cal.App.5th 453. 

14 While, as noted, ante (see fn. 13), 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 rule 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 

imposed 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 

Romero 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 law and continued to 

pose a danger to the public.” (People v. Salazar, supra, at p. 463.) 

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.