Filed 3/8/23 P. v. Bess CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. No s . 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 amendment s 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 c ase No. C1919395 , defendant was charged with five counts of second degree robbery ( Pen. Code, § 212.5, subd. (c) , counts
A 1, A 4 , A 7, A 8 & A 10 ; unspecified statutory references are to the Penal Code ); two counts of second degree burglary (§ 460, subd. (b) , counts A 2 & A 5); four counts of using personal identifying information without authorization (§ 530.5, subd. (a) , counts
A 3, A 6 , A 9 & A 11); and misdemeanor counts of possessi ng personal identifying information with intent to defraud (§ 530.5, subd. (c)(1) , count A 12); driving with a2

suspended license (Veh. Code § 14601.2, subd. (a) , count A 13); and misuse of a disabled person plac ard (Veh. Code § 4461, subd. (c) , count A 14). The complaint alleged defendant personally used a firearm in counts A 1 and A 4 (§ 12022.53, subd. (b)) and personally used a deadly or dangerous weapon in count A 10 (§ 12022, subd. (b)(1)). The complaint also alleged defendant was on bail when he committed counts A 1 through A 7 (§ 12022.1, subd. (b)).
In c ase No. B2000478 , defendant was charged with second degree burglary ( § 460, subd. (b) , count B 1) ; using personal identifying information without authorization ( § 530.5, subd. (a) , count B 2); and using an altered, stolen, or counterfeit access card to commit grand theft ( § 484g, subd. (a) , count B 3). In that case also, t he complaint alleged
that defendant was on bail when he committed the charged o ffenses ( § 12022.1,
subd. (b)).
D efendant 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 sentence d
defendant to 11 years 8 months on the felony convictions (with sentences on the misdemeanors deemed served)

. Th e 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 c ase 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 Genera l agrees defendant is entitled to the benefit of those amendments under the reasoning of In re Estrada (1965) 63 Cal.2d 7 40 , but argues reversal is not required because any error was harmless.
When defendant was sentenced in 2020 , trial courts had broad d iscretion under section 1170, subdivision (b) to select the “appropriate term” for offenses having a3

prescribed sentencing triad . (Former § 1170, subd. (b); Stats. 2018, ch. 1001, § 1.)
Under amend ments to that section effective January 1, 2022 , trial co urts 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, an d 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 invo lved 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 v ictimization 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 ).)4

The Flores court held that such an error is harmless so long as even one of the aggravat ing factors relied on by th e 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 factor s need satisfy the

r easonable doubt standard , and any other factors relied upon c ould be analyzed under the
reasonable probability standard . ( Dunn , supra , 81 Cal.App.5th at pp. 405

– 410.)
Common to al l 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 d efendant 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).) A lthough a single aggravating factor can support an upper term ( People v. Osband (1996) 13 Cal.4th 622, 728) , and th at factor w as permissibly considered under amended section 1170 , it was not the only factor cited b y 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

. T he 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 th at question here5

because we concl ude the error was prejudicial under ev en 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 repo rts. (See People v. Zabelle (2022) 80 Cal.App.5th 1098, 1114 ( Zabelle ) .) W e will not presume the existence of
extrarecord materials , nor that a factfinder would have found the contents of such
material s 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)); t he manner in which the crime s w ere carried out indicate d plannin g (Cal. Rules of Court, rule 4.421(a)(8)); and defendant took advantage of a position of
trust or confidence to commit the offense s (Cal. Rules of Court, rule 4.421(a)(1 1 ) ). Given the subjectivity inherent in those factors, it is difficult to “conclude wi th 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 ha ve 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 eviden ce 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
th ose 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 theft6

convictions , even though defendant was sen tenced concurrently . While th at 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

w here a trial court relie d on both permissible and impermissible factors , and d id 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 . T he

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, t he 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.7 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