Filed 3/8/23 P. v. Bess CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD LEE BESS,

Defendant and Appellant.

 H048744

 (Santa Clara County

 Super. Ct. Nos. B2000478 &

 C1919395)

Defendant Richard Lee Bess was sentenced to 11 years 8 months in prison after he 

pleaded no contest to, among other things, multiple counts of robbery and identity theft 

related to crimes that occurred in 2019. Defendant contends on appeal that he is entitled 

to resentencing under recent amendments to Penal Code section 1170, subdivision (b). 

We will remand for resentencing.

I. TRIAL COURT PROCEEDINGS

Defendant’s negotiated disposition resolved two cases (whose underlying facts are 

not directly relevant to the issue raised on appeal). In case No. C1919395, defendant was 

charged with five counts of second degree robbery (Pen. Code, § 212.5, subd. (c), counts 

A1, A4, A7, A8 & A10; unspecified statutory references are to the Penal Code); two 

counts of second degree burglary (§ 460, subd. (b), counts A2 & A5); four counts of 

using personal identifying information without authorization (§ 530.5, subd. (a), counts 

A3, A6, A9 & A11); and misdemeanor counts of possessing personal identifying 

information with intent to defraud (§ 530.5, subd. (c)(1), count A12); driving with a 
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suspended license (Veh. Code § 14601.2, subd. (a), count A13); and misuse of a disabled 

person placard (Veh. Code § 4461, subd. (c), count A14). The complaint alleged 

defendant personally used a firearm in counts A1 and A4 (§ 12022.53, subd. (b)) and 

personally used a deadly or dangerous weapon in count A10 (§ 12022, subd. (b)(1)). The 

complaint also alleged defendant was on bail when he committed counts A1 through A7 

(§ 12022.1, subd. (b)).

In case No. B2000478, defendant was charged with second degree burglary 

(§ 460, subd. (b), count B1); using personal identifying information without authorization 

(§ 530.5, subd. (a), count B2); and using an altered, stolen, or counterfeit access card to 

commit grand theft (§ 484g, subd. (a), count B3). In that case also, the complaint alleged 

that defendant was on bail when he committed the charged offenses (§ 12022.1, 

subd. (b)).

Defendant pleaded no contest as to all counts and admitted the on bail 

enhancement in exchange for a sentence not to exceed 12 years. The trial court sentenced 

defendant to 11 years 8 months on the felony convictions (with sentences on the 

misdemeanors deemed served). The sentence included “the upper term of five years” on 

count A1 and “a concurrent upper term of three years” on each of counts A3, A6, A9, B2, 

and B3. The remaining enhancements in case No. C1919395 were dismissed on the 

prosecution’s motion.

II. DISCUSSION

Defendant argues the judgment must be reversed and the matter remanded for 

resentencing so that he can receive the benefit of recent amendments to section 1170.

The Attorney General agrees defendant is entitled to the benefit of those amendments 

under the reasoning of In re Estrada (1965) 63 Cal.2d 740, but argues reversal is not 

required because any error was harmless.

When defendant was sentenced in 2020, trial courts had broad discretion under 

section 1170, subdivision (b) to select the “appropriate term” for offenses having a 
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prescribed sentencing triad. (Former § 1170, subd. (b); Stats. 2018, ch. 1001, § 1.) 

Under amendments to that section effective January 1, 2022, trial courts are now 

generally required to select the middle term (§ 1170, subd. (b)(1)) and may impose an 

upper term “only 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.” 

(§ 1170, subd. (b)(2).) A trial court may consider “defendant’s prior convictions in 

determining sentencing based on a certified record of conviction without submitting the 

prior convictions to a jury.” (§ 1170, subd. (b)(3).)

The trial court identified numerous aggravating factors, including that: “the 

crimes involved great violence” and “a threat of great bodily harm and callousness” 

because defendant “used a firearm in some of the offenses and he also assaulted a victim 

with a tire iron”; defendant’s “offenses involved some planning, given the manner in 

which they were carried out”; one of the crimes involved defendant “taking advantage of 

an apparent position of trust in that he posed as a police officer in order to subdue and 

gain control of that particular victim”; defendant had “served a prior prison term”; 

defendant’s “violations are numerous”; defendant’s “conduct in these cases demonstrates 

that he is a serious threat to the public”; and defendant’s “history demonstrates a 

continued victimization of others over a span of many years.” The trial court also 

identified one factor in mitigation: that defendant “accepted responsibility early in the 

course of these proceedings.” As the parties note, not all of the aggravating factors cited

by the trial court were stipulated to by defendant or found true beyond a reasonable doubt 

by a factfinder. But appellate courts are divided on the prejudice standard that applies in 

this context. (See People v. Flores (2022) 75 Cal.App.5th 495 (Flores); People v. Lopez

(2022) 78 Cal.App.5th 459 (Lopez); People v. Dunn (2022) 81 Cal.App.5th 394, rev.

granted Oct. 12, 2022, S275655 (Dunn).)
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The Flores court held that such an error is harmless so long as even one of the 

aggravating factors relied on by the trial court was proven beyond a reasonable doubt or 

by stipulation, or would have unquestionably been found true beyond a reasonable doubt 

by a jury. (Flores, supra, 75 Cal.App.5th at pp. 500–501.) The Lopez court rejected 

Flores, asking first whether a jury would unquestionably have found all aggravating 

factors relied on true beyond a reasonable doubt, and if not, then whether it is reasonably 

probable that a lesser sentence would have been imposed had the sentencing court 

considered only the aggravating factors that would have unquestionably been found true

beyond a reasonable doubt. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) The Dunn

court found a middle ground between Flores and Lopez; it adopted the two-step approach 

of Lopez, but held that only one of the identified aggravating factors need satisfy the

reasonable doubt standard, and any other factors relied upon could be analyzed under the

reasonable probability standard. (Dunn, supra, 81 Cal.App.5th at pp. 405–410.)

Common to all three approaches is first asking whether at least one aggravating 

factor was proven beyond a reasonable doubt or by stipulation, or would have 

unquestionably been found true beyond a reasonable doubt. Here defendant pleaded no 

contest to numerous offenses committed over multiple months, including five counts of 

robbery, a violent felony. (§ 667.5, subd. (c)(9).) Those convictions support a finding 

that he “has engaged in violent conduct that indicates a serious danger to society.” (Cal. 

Rules of Court, rule 4.421(b)(1).) Although a single aggravating factor can support an 

upper term (People v. Osband (1996) 13 Cal.4th 622, 728), and that factor was 

permissibly considered under amended section 1170, it was not the only factor cited by 

the trial court. Because we are unpersuaded by the reasoning of Flores, we will proceed 

to consider the other factors relied upon, as called for in Lopez and Dunn. The Lopez

court would analyze the remaining factors under the prejudice standard of Chapman v. 

California (1967) 386 U.S. 18, while the Dunn court would apply the standard of People 

v. Watson (1956) 46 Cal.2d 818 (Watson). We need not decide that question here 
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because we conclude the error was prejudicial under even the more lenient Watson

standard, as we will discuss below.

The cited factors based on defendant’s criminal history were supported only by the 

probation report. Although a trial court may consider a “defendant’s prior convictions in 

determining sentencing based on a certified record of conviction without submitting the 

prior convictions to a jury” (§ 1170, subd. (b)(3)), that exception does not extend to the 

contents of extrarecord materials such as probation reports. (See People v. Zabelle

(2022) 80 Cal.App.5th 1098, 1114 (Zabelle).) We will not presume the existence of

extrarecord materials, nor that a factfinder would have found the contents of such

materials true beyond a reasonable doubt.

The remaining factors relied on by the trial court were that defendant’s crimes 

involved great violence, threat of great bodily harm, and callousness (Cal. Rules of Court, 

rule 4.421(a)(1)); the manner in which the crimes were carried out indicated planning

(Cal. Rules of Court, rule 4.421(a)(8)); and defendant took advantage of a position of 

trust or confidence to commit the offenses (Cal. Rules of Court, rule 4.421(a)(11)). 

Given the subjectivity inherent in those factors, it is difficult to “conclude with 

confidence that, had the issue[s] been submitted to the jury, the jury would have assessed 

the facts in the same manner as did the trial court.” (People v. Sandoval (2007)

41 Cal.4th 825, 840.) Nor can we “be confident that the factual record would have been 

the same had aggravating circumstances been charged and tried to the jury.” (Ibid.; see 

People v. French (2008) 43 Cal.4th 36, 54 [“When a defendant pleads guilty or no 

contest, ... the record generally does not contain a full presentation of evidence 

concerning the circumstances of the offense.”].) The result satisfies even the Watson 

standard for prejudice, as we see a reasonable probability that a jury may not have found 

those particular circumstances true beyond a reasonable doubt.

The Attorney General suggests that an additional aggravating factor was present 

because consecutive sentences could have been imposed for the multiple identity theft 
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convictions, even though defendant was sentenced concurrently. While that may be a 

proper and less subjective factor in aggravation (Cal. Rules of Court, rule 4.421(a)(7)), it 

was not among the factors specifically cited by the trial court and we will not speculate 

about its possible effect.

The final step in our prejudice analysis is to consider the likelihood that the trial 

court would have imposed a lesser sentence had it considered only the single aggravating 

factor supported by defendant’s no contest pleas. As Lopez explained, the question “is 

whether a reviewing court can be certain, to the degree required by [Watson], that the 

trial court would nevertheless have exercised its discretion to select the upper term if it 

had recognized that it could permissibly rely on only a single one of the aggravating 

factors[.]” (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) Reversal is appropriate 

where a trial court relied on both permissible and impermissible factors, and did not 

describe giving “particular weight to any of its listed aggravating circumstances” or

“indicate whether its decision to impose the upper term was (or was not) a close call.” 

(Zabelle, supra, 80 Cal.App.5th at p. 1115; see People v. Avalos (1984) 37 Cal.3d 216, 

233 [appellate court must “reverse where it cannot determine whether the improper factor 

was determinative for the sentencing court”].) We conclude that a lesser sentence was 

reasonably probable had the trial court considered only the single aggravating factor. The 

court selected the upper term based on numerous aggravating factors of unspecified 

weight and it also identified early resolution as a mitigating factor.

On remand, the prosecution may accept resentencing on the current record or seek 

to prove any aggravating circumstances beyond a reasonable doubt. Under the full 

resentencing rule, the trial court may then revisit all of its previous sentencing decisions

(People v. Valenzuela (2019) 7 Cal.5th 415, 424–425), provided the new sentence is 

consistent with both amended section 1170 and the plea agreement.
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III. DISPOSITION

The judgment is reversed. On remand, the prosecution may elect to proceed by 

meeting the requirements of section 1170, subdivision (b)(2) regarding aggravating 

circumstances or may elect to proceed on the current record. After the prosecution makes 

that election, the trial court shall resentence defendant according to amended 

section 1170.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Lie, J. 

H048744

The People v. Bess