Filed 2/2/23 P. v. Mathews CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

Plaintiff and Respondent,

v.

TONEY ROBERT MATHEWS,

Defendant and Appellant.

B313909

Los Angeles County

Super. Ct. No. NA113308

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Laura L. Laesecke, Judge. Affirmed.

Justin Behravesh, 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

A jury convicted Toney Robert Mathews of attempted 

murder and several other crimes after he struck his girlfriend 

in the head with a machete, leaving her in a persistent vegetative 

state. On appeal, Mathews argues his case should be remanded 

for resentencing in accordance with Senate Bill No. 567 (2021–

2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 518 

(2021–2022 Reg. Sess.) (Assembly Bill 518), both of which 

altered trial courts’ sentencing discretion. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

The People charged Mathews with attempted murder 

(Penal Code, §§ 187, subd. (a), 664; count 1),1 injuring a spouse/

cohabitant (§ 273.5, subd. (f)(1); count 2), assault with a deadly 

weapon (§ 245, subd. (a)(1); count 3), two counts of contempt 

of court (§ 166, subd. (c)(1); counts 4 & 12), and battery on a 

spouse/cohabitant (§ 243, subd. (e)(1); count 11). On counts 

1 and 2, the People alleged Mathews personally used a deadly 

and dangerous weapon (§ 12022, subd. (b)(1)), and on counts 

1, 2, and 3, the People alleged Mathews inflicted great bodily 

injury (GBI) under circumstances involving domestic violence 

(§ 12022.7, subd. (e)).

At trial, the People presented evidence showing the 

following:

On the morning of October 5, 2019, Alexis Nunez was 

working at a gas station when she saw Mathews kicking and 

punching his girlfriend, Jessica W. Jessica was on the ground 

in a fetal position, covering her head and calling out for help. 

1 Statutory references are to the Penal Code.
3

Mathews said he was teaching Jessica a lesson because she 

had not come home the night before.

About a month later, on November 13, 2019, Cassandra 

Anderson saw Mathews with his hand around Jessica’s throat. 

Jessica yelled for help. Mathews struck Jessica with what 

Anderson described as a two-foot long machete. Anderson ran 

over to Jessica, who was bleeding from her mouth, nose, and ears. 

Mathews got in a car and drove away. He later told someone 

he hit Jessica with a metal pipe and thought she might be dead.

When paramedics arrived, Jessica was lying on the ground, 

unresponsive but breathing. She had a half-inch laceration 

on her head that caused a traumatic brain injury. Paramedics 

took her to a hospital, where surgeons removed part of her skull 

and performed a tracheotomy. As of October 27, 2020, Jessica

remained hospitalized in a vegetative state. She continued 

to be completely unresponsive, was unable to move her body, 

and relied on a feeding tube.

Mathews testified in his own defense. According to 

Mathews, on the night of November 13, 2019, he started walking 

toward Jessica and she yelled at him to get away from her. 

Jessica ran across the street and an SUV hit her. Mathews

went over to the SUV and started beating on its window. The 

SUV drove off. Some men approached Mathews with weapons, 

so Mathews fled in his car.

Mathews stipulated that he had two prior domestic 

violence convictions, one in February 2016 and one in March 

2019. In connection with the March 2019 conviction, a court 

issued a 10-year criminal protective order prohibiting Mathews

from having contact with Jessica.
4

The jury convicted Mathews as charged, and it found true 

all the enhancement allegations except the weapon allegation 

on count 2. The court sentenced Mathews to life with the

possibility of parole on count 1, plus the upper term of five years

for the GBI enhancement and one year for the weapon 

enhancement. On count 11, the court imposed a concurrent term

of 364 days in jail. The court also imposed, but stayed under 

section 654, the following: on count 2, the upper term of five 

years plus the upper term of five years for the GBI enhancement; 

on count 3, the upper term of four years plus the upper term of 

five years for the GBI enhancement; on count 4, 364 days in jail;

and on count 12, 364 days in jail.

The court explained that it chose to impose upper term 

sentences because “this is a very aggravating set of events,” 

Mathews had a history of abusing Jessica, and he has a 

criminal history, including a prior misdemeanor and felony. 

With respect to the GBI enhancement on count 1, the court 

noted that it chose to impose the high term “because of 

the gravity of the injuries” Mathews inflicted on Jessica.

Mathews timely appealed.

DISCUSSION

1. The court’s failure to comply with Senate Bill 567 

was harmless

Mathews contends his case must be remanded for 

resentencing in accordance with Senate Bill 567.

When the trial court sentenced Mathews, section 1170 

provided, “When a judgment of imprisonment is to be imposed 

and the statute specifies three possible terms, the choice of 

the appropriate term shall rest within the sound discretion 

of the court.” (Former § 1170, subd. (b).) Under this provision, 
5

the trial court was free to impose an upper term sentence 

based on any aggravating circumstances it deemed significant, 

so long as they were reasonably related to the sentencing 

decision. (People v. Moberly (2009) 176 Cal.App.4th 1191, 

1195–1196.) “An aggravating circumstance is a fact that 

makes the offense ‘distinctively worse than the ordinary.’ ” 

(People v. Black (2007) 41 Cal.4th 799, 817 (Black).) The 

California Rules of Court provide a non-exhaustive list of 

aggravating circumstances, including that the crime involved 

great violence, great bodily harm, threat of great bodily harm, 

or other acts disclosing a high degree of cruelty, viciousness, 

or callousness. (Cal. Rules of Court, rule 4.421.) 

While Mathews’s appeal was pending, Senate Bill 567 

took effect. It restricts a trial court’s discretion to impose an 

upper term sentence. Effective January 1, 2022, “[t]he court 

may impose a sentence exceeding the middle term only when 

there are circumstances in aggravation of the crime that justify 

the imposition of a term of imprisonment exceeding 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).) The court also 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).)

The parties agree—as do we—that, because Mathews’s 

case was not yet final when Senate Bill 567 went into effect, 

he is entitled to the retroactive benefit of the ameliorative 

legislation. (See In re Estrada (1965) 63 Cal.2d 740, 744–745 

(Estrada); People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) 
6

The parties disagree, however, as to the proper disposition. 

Mathews contends that, because—when imposing the upper 

terms on counts 2 and 3 and the GBI enhancements on counts 1, 

2, and 3—the trial court relied on aggravating circumstances 

not stipulated to nor found true by the jury, we must remand 

the case for resentencing. The Attorney General contends 

remand is unnecessary because the trial court’s failure to 

apply the new law was harmless.

Courts of Appeal have articulated several harmless error 

standards to determine whether remand is required when a trial

court failed to comply with the amended version of section 1170. 

Under one standard—articulated in People v. Flores (2022) 75 

Cal.App.5th 495—the error is harmless if the reviewing court 

determines beyond a reasonable doubt that the jury would 

have found true at least one aggravating circumstance. (Id. at 

pp. 500–501.) Under another standard—articulated in People 

v. Lopez (2022) 78 Cal.App.5th 459 (Lopez)—the reviewing court 

first considers whether, beyond a reasonable doubt, the jury 

would have found true all the aggravating circumstances. If so, 

the error is harmless. If not, the reviewing court considers 

whether it is reasonably probable the trial court would have 

imposed a more favorable sentence had it not considered the 

improper factors. (Id. at pp. 464–467.) More recently, the court

in People v. Zabelle (2022) 80 Cal.App.5th 1098, articulated a 

modified version of the Lopez standard that also asks whether 

it is reasonably probable the jury would have found true all

the aggravating circumstances. (Zabelle, at pp. 1110–1113; 

see People v. Dunn (2022) 81 Cal.App.5th 394, 405–410.) 

Both the Flores, supra, 75 Cal.App.5th 495, and Lopez 

standards suffer from the same problem: they fail to account 
7

for the fact that the retroactive application of Senate Bill 567 

raises both federal constitutional and state statutory issues, 

which are subject to different harmless error standards. Like 

the court in Zabelle, we think the proper course is to analyze 

those issues separately. To the extent there is a constitutional 

violation, we apply the federal Chapman2 standard and ask

whether, beyond a reasonable doubt, the jury would have 

found true at least one aggravating circumstance. (See People 

v. Sandoval (2007) 41 Cal.4th 825, 838–839 (Sandoval).) If there 

is a statutory violation, we apply the state Watson3 standard 

and ask whether it is reasonably probable the jury would have 

found true all the aggravating circumstances on which the 

trial court relied. If so, the error is harmless. (See People v. 

Breverman (1998) 19 Cal.4th 142, 177–178 (Breverman).) If not, 

we consider whether it is reasonably probable the court would 

have imposed a more favorable sentence had it not relied on 

the improper factors. (See People v. Avalos (1984) 37 Cal.3d 216,

233.)

We consider the constitutional issue first. In Cunningham 

v. California (2007) 549 U.S. 270 (Cunningham), the United 

States Supreme Court held that, with the exception of a 

defendant’s prior convictions, the Sixth Amendment requires 

that a jury determine the facts that render a defendant eligible 

for an upper term sentence. (Id. at pp. 288–289.) The 

California Supreme Court subsequently held that, so long as 

one aggravating circumstance has been established consistently 

2 Chapman v. California (1967) 386 U.S. 18.

3 People v. Watson (1956) 46 Cal.2d 818 (Watson).
8

with Sixth Amendment principles, the federal constitution does 

not prohibit a trial court from relying on additional aggravating 

circumstances to impose an upper term sentence. (Sandoval, 

supra, 41 Cal.4th at pp. 838–839; see Black, supra, 41 Cal.4th 

at p. 813.)

Here, it appears the trial court relied on three 

aggravating circumstances to impose the upper term sentences: 

(1) Mathews’s history of abusing Jessica; (2) Mathews’s 

criminal history; and (3) the severity of Jessica’s injuries. 

Because one of those circumstances concerns Mathews’s prior 

convictions—and because the Sixth Amendment requires only 

the existence of a single aggravating circumstance in order 

to impose an upper term—the court’s selection of the upper 

term sentences does not violate the federal constitution. 

(See Cunningham, supra, 549 U.S. at pp. 288–289; Sandoval, 

supra, 41 Cal.4th at p. 839.) 

That Mathews’s sentence passes constitutional muster, 

however, does not end our inquiry. We also must determine 

whether the court complied with section 1170. Unlike the 

federal constitution, the current version of section 1170 requires 

all aggravating circumstances relied on by the court—except 

for the defendant’s prior convictions, based on a certified record 

of conviction—be found true by the trier of fact or stipulated to 

by the defendant.4 (§ 1170, subd. (b)(2), (3).)

4 Section 1170 does not explicitly forbid a trial court from 

relying on its own factual findings in addition to those found true 

by the trier of fact or stipulated to by the defendant. However, 

section 1170, subdivision (b)(3) states, “the court may consider 

the defendant’s prior convictions in determining sentencing . . . 

without submitting the prior convictions to a jury.” This implies 
9

At trial, Mathews stipulated that he suffered prior 

domestic violence convictions, at least one of which involved

Jessica. Accordingly, the trial court’s reliance on two of 

the three aggravating circumstances—Mathews’s history of 

abusing Jessica and his criminal history—was consistent with 

Senate Bill 567. Mathews, however, did not stipulate to the 

severity of Jessica’s injuries, and the issue was not submitted 

to the jury.

5 The court’s reliance on that circumstance, therefore, 

violated Senate Bill 567, and we must remand for resentencing

unless the error was harmless. 

the court may not consider other factors that were not submitted 

to the jury. (See In re J.W. (2002) 29 Cal.4th 200, 209 [“the 

expression of one thing in a statute ordinarily implies the 

exclusion of other things”].) This interpretation is consistent 

with the legislative history of Senate Bill 567. A number of 

legislative committee reports and analyses of Senate Bill 567, 

for example, state the bill requires the aggravating circumstances 

relied on by the court at sentencing be found true by the trier 

of fact or admitted by the defendant. (See, e.g., Sen. Com. 

on Public Safety, Analysis of Sen. Bill No. 567 (2021–2022 

Reg. Sess.) April 13, 2021, p. 1; Sen. Rules Com., Off. of 

Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 567 

(2021–2022 Reg. Sess.) as amended May 20, 2021, p. 1; 

Assem. Com. on Appropriations, Analysis of Sen. Bill No. 567 

(2021–2022 Reg. Sess.) as amended July 1, 2021, p. 1; 

Assem. Com. on Public Safety, Analysis of Sen. Bill No. 567 

(2021–2022 Reg. Sess.) as amended May 20, 2021, p. 1.)

5 While the issue of the infliction of GBI was submitted to, 

and found true by, the jury, it seems the trial court relied on

facts related to the severity of Jessica’s injuries that went beyond 

the jury’s finding.
10

Section 1170’s requirement that all aggravating 

circumstances relied on by the court (except for the defendant’s 

prior convictions) be found true by the trier of fact or stipulated 

to by the defendant is a purely state-created right. “[A]ny state 

law right to a jury determination of particular issues is qualified 

in turn by the appellate review standards set forth in article VI, 

section 13 of the California Constitution,” and subject to the 

Watson harmless error test. (Breverman, supra, 19 Cal.4th 

at pp. 177–178.) Under that test, an error “is not subject to 

reversal unless an examination of the entire record establishes 

a reasonable probability that the error affected the outcome.” 

(Id. at p. 165; see Watson, supra, 46 Cal.2d at p. 836.) Therefore, 

with respect to any aggravating factors on which the trial court 

relied that should have been submitted to the jury, we must ask 

whether it is reasonably probable that the jury would have found 

them true and, if not, whether it is reasonably probable that 

the court would have imposed the same sentence absent those 

circumstances.

Applying that test here, we conclude the court’s reliance 

on the severity of Jessica’s injuries was harmless. The record 

shows Jessica suffered a traumatic brain injury that caused her 

to be in a persistent vegetative state. Surgeons had to remove 

part of her skull and perform a tracheotomy. Nearly a year after 

the incident, she remained hospitalized, completely unresponsive, 

and unable to move her body. At trial, Mathews did not dispute 

this evidence or in any way challenge the severity of Jessica’s 

injuries. On this record, it is reasonably probable the jury 

would have found Mathews caused Jessica to suffer injuries well 

beyond that required for the offenses and the GBI enhancements. 

(See, e.g., People v. Quinonez (2020) 46 Cal.App.5th 457, 464 
11

[abrasions, lacerations, and bruising can constitute GBI]; People 

v. Medellin (2020) 45 Cal.App.5th 519, 529 [injury that required 

three stiches and “ ‘hurt for a few days’ ” was sufficient for a 

GBI enhancement].) The trial court’s reliance on the severity 

of Jessica’s injuries to impose the upper term sentences, 

therefore, was harmless. 

2. Remand for resentencing under Assembly Bill 518 

would be futile

Mathews contends his case must be remanded for 

resentencing in accordance with Assembly Bill 518.

When the trial court sentenced Mathews, section 654 

provided that if an act or omission is punishable in different 

ways by different provisions of law, the trial court may punish 

the defendant only once, but must impose punishment under

the provision that provides for the longest potential term of 

imprisonment. (Former § 654, subd. (a).) Mathews’s convictions 

on counts 1, 2, and 3 were premised on the same acts. The court, 

therefore, imposed the punishment on count 1—a life term—

and stayed the punishment on counts 2 and 3—which provided 

maximum terms of five years and four years, respectively. 

While Mathews’s appeal was pending, Assembly Bill 518 

went into effect. It removed section 654’s requirement that trial 

courts impose the provision that provides the greatest possible 

sentence. Under the amended statute, “[a]n act or omission that 

is punishable in different ways by different provisions of law may 

be punished under either of such provisions, but in no case shall 

the act or omission be punished under more than one provision.” 

(§ 654, subd. (a).) If Mathews had been sentenced under this 

version of the law, the trial court could have stayed the sentence 

on count 1 and imposed the sentence on either count 2 or count 3.
12

The parties agree—as do we—that, because Mathews’s case 

was not yet final when Assembly Bill 518 went into effect, he is 

entitled to the retroactive benefit of the ameliorative legislation. 

(Estrada, supra, 63 Cal.2d at pp. 744–745; People v. Sek (2022) 

74 Cal.App.5th 657, 673.) Once again, however, the parties 

disagree as to the proper disposition. Mathews urges us 

to remand for resentencing; the Attorney General contends 

remand would be futile because it is apparent the court would 

not change its sentencing decisions.

Generally, “ ‘when the record shows that the trial court 

proceeded with sentencing on the . . . assumption it lacked 

discretion, remand is necessary so that the trial court may 

have the opportunity to exercise its sentencing discretion at 

a new sentencing hearing. [Citations.] Defendants are entitled 

to “sentencing decisions made in the exercise of the ‘informed 

discretion’ of the sentencing court,” and a court that is unaware 

of its discretionary authority cannot exercise its informed 

discretion.’ [Citation.] But if ‘ “the record shows that the 

trial court would not have exercised its discretion even if 

it believed it could do so, then remand would be an idle act 

and is not required.” ’ [Citation.]” (People v. McDaniels (2018) 

22 Cal.App.5th 420, 425.)

People v. Jones (2019) 32 Cal.App.5th 267, is instructive. 

In that case, the defendant sought remand for resentencing 

in response to a new law that gave trial courts discretion to 

strike serious felony prior enhancements. (Id. at p. 272.) In 

declining to remand the case, the court relied on the trial court’s 

statements that imposing a lengthy sentence gave it “ ‘great 

satisfaction,’ ” the defendant had “ ‘earned’ ” the sentence, and 

there was “ ‘no shortage’ of aggravating factors.” (Id. at p. 274.) 
13

The court also pointed out that the trial court chose to impose 

the upper term on one of the counts, despite having already 

imposed a life with parole sentence. (Ibid.) The court concluded 

that, in light of the trial court’s statements and sentencing 

decisions, remand would be futile. (Id. at pp. 274–275.)

The same is true here. The trial court had no shortage 

of opportunities to exercise leniency when it sentenced Mathews. 

Among other things, the court had discretion to select from 

the triad on count 2, count 3, and the three GBI enhancements. 

In each instance, the court imposed the maximum possible 

sentence, despite having already imposed a life term on count 1. 

The court also expressed its belief that “this is a very aggravating 

set of events,” and Mathews had committed a particularly serious 

attempted murder. Given the court’s statements and sentencing 

choices, it is apparent it would not impose a different sentence 

if given the opportunity. Under these circumstances, remand 

would be futile and a waste of judicial resources. (See People 

v. McVey (2018) 24 Cal.App.5th 405, 419 [declining to remand 

case for resentencing related to a firearm enhancement, 

noting the trial court imposed the highest possible term 

for the enhancement].)
14

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.