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Filed 6/24/22 P. v. Fridley CA3

NOT TO BE PUBLISHED

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY EUGENE FRIDLEY,

Defendant and Appellant.

C095304

(Super. Ct. Nos. CRF200101502, 

CRF2100975)

Defendant Jeffrey Eugene Fridley entered a plea agreement to resolve two felony 

cases filed against him. Pursuant to that agreement, defendant pled guilty in one case to

receiving stolen property and admitted to having been convicted of a strike offense. In 

the other case, defendant pled guilty to assault by means of force likely to cause great 

bodily injury. 

At sentencing, the trial court imposed the upper term of three years, doubled to six 

years pursuant to the three strikes law, for defendant’s receiving stolen property 

conviction. For the assault conviction, the trial court imposed a consecutive one-year 
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term. When choosing the upper term for the receiving stolen property conviction, the 

trial court, relying on the probation report, considered a number of aggravating factors, 

including: (1) defendant’s six prior felony convictions and three prior prison terms; 

(2) defendant’s unsatisfactory performance on probation, mandatory supervision, and 

parole; and (3) the circumstances of the current case, during which defendant was 

“driving a stolen vehicle[,] . . . gave his brother’s name [to the police officer] knowing he 

had warrants[,] . . . claimed [the stolen vehicle] was his girlfriend’s truck, and then 

claimed he bought it for $200 and did not know it was stolen.” As a mitigating factor, the 

trial court considered defendant’s willingness to “resolve th[e] matter at an early stage in 

the proceedings.” The trial court found “[t]he aggravating factors in number and 

seriousness [to] outweigh [the] mitigating factors,” and that defendant “certainly [wa]s 

not a low-term candidate.” 

Defendant appeals arguing “the matter must be remanded for resentencing

pursuant to amended Penal Code1section 1170 because imposition of the upper term for 

[the receiving stolen property conviction] does not satisfy the criteria mandated by Senate 

Bill No. 567 [(2021-2022 Reg. Sess.)].” (Bolding and capitalization omitted.) We 

disagree and affirm. 

DISCUSSION

The parties agree Senate Bill No. 567 applies retroactively to defendant because 

defendant’s judgment was not final on January 1, 2022, when Senate Bill No. 567 

became effective. (See § 1170, subd. (b), as amended by Stats. 2021, ch. 731, § 1.3.) 

Defendant contends the matter must be remanded for resentencing because the 

aggravating circumstances relied on by the trial court when imposing the upper term were 

not stipulated to by defendant, found true by a jury beyond a reasonable doubt, or 

1 Undesignated section references are to the Penal Code.
3

contained in a certified record of conviction. We agree Senate Bill No. 567 applies 

retroactively but find remand unnecessary.

I

Senate Bill No. 567 Applies Retroactively 

Senate Bill No. 567 amended section 1170, subdivision (b), to provide that the 

trial court may impose the upper term only if the facts underlying the aggravating 

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), as amended by Stats. 2021, ch. 731, § 1.3.) Under amended section 1170, 

subdivision (b)(3), a trial court “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.” This change aims to protect a defendant’s right to a jury trial 

by ensuring the trial court does not impose an upper term “without granting defendants 

the opportunity to have a jury review and determine the truthfulness of alleged 

aggravating facts.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business 

Analysis of Sen. Bill No. 567 (2021-2022 Reg. Sess.) as amended Sept. 3, 2021, p. 4.)

According to the principle established in In re Estrada (1965) 63 Cal.2d 740, an 

ameliorative change in law applies retroactively to nonfinal judgments in the absence of 

an express statement to the contrary by the Legislature. (People v. Francis (1969) 71 

Cal.2d 66, 75-76.) A judgment becomes final when it has reached final disposition in the 

highest court authorized to review it. (People v. Rossi (1976) 18 Cal.3d 295, 304.) Here, 

defendant’s judgment is not yet final, nor did the Legislature expressly prohibit the 

retroactive application of the bill. Thus, Senate Bill No. 567 applies retroactively to 

defendant’s case. 
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II

Remand Is Unnecessary

The People contend the trial court’s sentencing decisions complied with Senate 

Bill No. 567 because one of the aggravating circumstances relied upon by the trial court 

was proven by certified records and a trial court is permitted to base an upper term on a 

single aggravating circumstance. In the alternative, the People contend any error in 

failing to apply Senate Bill No. 567 was harmless because, upon remand, the aggravating 

factors will clearly be found true beyond a reasonable doubt. We agree.

When speaking of the trial court’s discretion to impose the upper term, 

section 1170, subdivision (b)(1) through (3), as amended by Senate Bill No. 567, 

provides the court may impose the 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 . . . .”2 By its plain meaning, the provision does not provide for a 

presumption that a trial court must exercise its discretion in a certain way. Instead, the 

Legislature created a rule limiting a trial court’s discretion to impose the upper term in 

cases where no aggravating factor has been proven beyond a reasonable doubt or 

otherwise stipulated to by the defendant.

2 Section 1170, subdivision (b)(1) through (3) provides: “(b)(1) 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). [¶] (2) The 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. . . . [¶] (3) Notwithstanding paragraphs (1) and (2), the court 

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. This 

paragraph does not apply to enhancements imposed on prior convictions.”
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Given that subdivision (b)(1) through (3) of section 1170 is silent regarding the 

court’s discretion, the newly enacted provision leaves unchanged a trial court’s discretion 

to impose the upper term of imprisonment based on a single aggravating factor (see 

People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182; People v. Osband (1996) 13 Cal.4th 

622, 728 [“[o]nly a single aggravating factor is required to impose the upper term”]) and 

the sentence it believes to be appropriate to the case and the defendant being sentenced 

before it (see People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [“A judge’s 

subjective determination of the value of a case and the appropriate aggregate sentence, 

based on the judge’s experiences with prior cases and the record in the defendant’s case, 

cannot be ignored. A judge’s subjective belief regarding the length of the sentence to be 

imposed is not improper as long as it is channeled by the guided discretion outlined in the 

myriad of statutory sentencing criteria”]).

Here, the trial court cited as a circumstance in aggravation that defendant had a 

prior conviction. Defendant admitted to this conviction, and thus the trial court properly 

relied on that conviction and exercised its discretion under newly enacted section 1170,

by imposing the upper term of imprisonment on defendant’s receiving stolen property 

conviction. (See People v. Garcia (2001) 25 Cal.4th 744, 757 [the three strikes law is not 

an enhancement under § 1170, subd. (b), it is a separate sentencing scheme that applies 

automatically where a defendant has at least one prior serious felony conviction and the 

trial court does not strike it].)

In any event, because the error is purely one of state law, the harmless error test in 

People v. Watson (1956) 46 Cal.2d 818, 836 applies. (People v. Epps (2001) 25 Cal.4th 

19, 29.) Thus, if a reviewing court concludes it is reasonably probable, beyond a 

reasonable doubt, that a jury, applying the beyond-a-reasonable-doubt standard, 

unquestionably would have found true the aggravating circumstances relied on by the 

trial court, the error is harmless. (See People v. Sandoval (2007) 41 Cal.4th 825, 839 

[when the error is of federal magnitude, the error is harmless if a reviewing court 
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concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonabledoubt standard, unquestionably would have found true at least a single aggravating 

circumstance had it been submitted to the jury].) 

Here, the trial court believed defendant’s case was not a low-term case. It decided 

to impose a sentence exceeding the low term based on several circumstances, including 

the manner by which defendant committed the offense. Given the subjective nature of 

this specific aggravating circumstance, we cannot say a jury would have found that 

circumstance true beyond a reasonable doubt. (See People v. Sandoval, supra, 41 Cal.4th 

at pp. 839-840 [“to the extent a potential aggravating circumstance at issue in a particular 

case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing 

court to conclude with confidence that, had the issue been submitted to the jury, the jury 

would have assessed the facts in the same manner as did the trial court”].) 

Under newly enacted section 1170, subdivision (b)(1) through (3), however, the 

trial court is still permitted to rely on unproven circumstances when deciding to elevate a 

defendant’s sentence above the lower term. It is just those circumstances the court relies 

on to “justify the imposition of a term of imprisonment exceeding the middle term” that 

must be proven or otherwise stipulated. (§ 1170, subd. (b)(1)-(3).) For this reason, we 

disagree with the holding of People v. Lopez (2022) 78 Cal.App.5th 459, 465-466, 

requiring a reviewing court to “conclude beyond a reasonable doubt that a jury would 

have found true beyond a reasonable doubt every factor on which the court relied . . . .” 

The trial court’s sentencing decision focused predominantly on defendant’s 

numerous prior convictions and prior prison terms, as well as his unsatisfactory 

performance on probation, mandatory supervision, and parole. The fact of defendant’s 

prior convictions, prior prison terms, and prior unsatisfactory performance on 

postconviction release were readily discernable from the probation report. While the 

probation report is not a certified record, the information contained in it was presented to 

the trial court and defendant for the purposes of the trial court’s sentencing decisions. 
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Defendant had every opportunity and incentive to object to the trial court’s reliance on 

those facts had the facts been incorrectly portrayed in the probation report. Defendant’s 

lack of objection demonstrates his prior convictions, prison terms, and unsatisfactory 

performance during postconviction release is readily ascertainable from certified records 

and would be found true beyond a reasonable doubt by a trial court or jury. Given the 

true findings that will undoubtedly be found upon remand, it is clear the trial court will 

impose the same sentence utilizing the same justification it already did. For these 

reasons, remand is unnecessary.

DISPOSITION

The judgment is affirmed. 

/s/ 

Robie Acting P. J.

I concur:

/s/ 

Earl, J.
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DUARTE, J., dissenting.

I disagree with the majority’s finding of harmless error and would remand for 

resentencing under the current version of Penal Code section 1170.1 Accordingly, I must 

dissent.

Defendant was sentenced to the upper term for his crime of receiving stolen 

property without the benefit of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 

No. 567), which amended section 1170, subdivision (b) and provides that a trial court 

may impose an upper term sentence only where there are aggravating circumstances 

justifying the imposition of a term exceeding the middle term, and the defendant has 

either stipulated to the facts underlying those circumstances or those facts have been 

found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2); Stats. 2021, ch. 731, 

§ 1, eff. Jan. 1, 2022.)

At sentencing, defendant asked for probation or, in the alternative, a middle term 

sentence. The People argued for the upper term in accordance with the probation report’s 

recommendation. When the trial court specifically asked the prosecutor for a position on 

defendant’s request for the middle term, the prosecutor responded that “the circumstances 

in aggravation far outweigh any in mitigation” and that the probation report contained a 

“well-reasoned argument” for the upper term. The trial court went over the report in 

detail and sentenced in conformity with the report’s recommendation.

As relevant to my disagreement, the majority first notes that the amendments to 

section 1170 “leave[] unchanged a trial court’s discretion to impose the upper term of 

imprisonment based on a single aggravating factor.” (Maj. opn., ante, at p. 5.) I do not 

disagree with that statement, but that is not what happened here. Instead, the trial court 

1

 Undesignated statutory references are to the Penal Code.
2

articulated a large number of aggravating factors to support its decision, and the vast 

majority of these factors were supported only by the probation report’s assertions. The 

majority notes that defendant admitted to his strike prior during his plea, and then 

cursorily concludes that because defendant admitted to the strike, which the trial court 

recited as one of many aggravating circumstances, “the trial court properly relied on that 

conviction and exercised its discretion newly enacted section 1170, by imposing the 

upper term of imprisonment on defendant’s receiving stolen property conviction.” (Maj. 

opn., ante, at p. 5.) But this does not address the effect of the multiple aggravating 

factors that were relied upon by the trial court, yet not proven as required. 

As noted by the majority, the trial court relied entirely on the probation report in 

considering defendant’s prior convictions (with the exception of the strike), defendant’s 

unsatisfactory performance on prior grants of probation, supervised release, and parole 

(collectively, performance on release), and the circumstances of the present case (which 

had been resolved by plea with a limited factual basis proffered by the prosecutor and 

admitted by defendant), including facts from outside the articulated factual basis. There 

is no dispute but that the bulk of the information relied upon by the trial court was 

insufficient to satisfy section 1170, subdivision (b) as amended; the information was 

summarized in the probation report and was neither stipulated nor proven as required. 

Although I agree the law allows the trial court to “consider the 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); as amended by Stats. 

2021, ch. 731, § 1), here there was one strike admitted by defendant but no certified 

records presented to prove any of the prior convictions listed in the report. 

Nor was there any evidence proving the aggravating factor of unsatisfactory 

performance on release. Subdivision (b)(3) of section 1170 specifies repeatedly that the 

only exception created is for prior convictions, and clearly does not codify the much 

broader exception allowing for judicial consideration of facts related to a defendant’s 
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recidivism without violating the Sixth Amendment. (People v. Towne (2008) 44 Cal.4th 

63, 79-85.) The majority lumps these factors together without differentiation, concluding 

that because the facts underlying the factors related to prior convictions and performance 

on release considered here are “readily available from official records” and “readily 

discernable from the probation report” and defendant did not object to their inclusion in 

the report, the factors “would be found true beyond a reasonable doubt.” (Maj. opn., 

ante, at p. 7.) 

The majority does not explain how it is permissible for us to presume the existence 

of extra-record evidence, whether that evidence be certified copies of convictions or 

proof beyond a reasonable doubt of unsatisfactory performance on release, and I do not 

see how we may properly do so. I do not agree that the trial court’s reliance on 

recitations in a probation report in lieu of the proof that is now legally required should be 

excused based only on our assumption that all of the information on which the court 

admittedly relied would “undoubtably be found upon remand.” (Maj. opn., ante, at p. 7.) 

This broad and speculative conclusion undermines the specific language of Senate Bill 

No. 567 and amended sections 1170 and 1170.1, and signals this type of noncompliance 

will always be harmless error. 

Nor did defendant’s failure to explicitly dispute the report’s accuracy excuse the 

error. Defendant did not stipulate to the accuracy of the report or the information therein, 

and the requirement at issue--that the information in the report on which the trial court 

relied must be proven by certified record or, in the case of the unsatisfactory performance 

on release and circumstances of the underlying crime, beyond a reasonable doubt--did not 

exist at the time of his sentencing. 

I also disagree with the majority that the error “is purely one of state law” (maj. 

opn., ante, at p. 5), requiring only application of the harmless error test articulated in 
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People v. Watson (1956) 46 Cal.2d 818 at page 836.2 The trial court found factors in 

addition to prior convictions that it relied on to increase defendant’s sentence, including

unsatisfactory performance on release and certain factual aspects of defendant’s conduct 

that were not part of his plea. This is potentially constitutional error. (See People v. 

Lopez (2022) 78 Cal.App.5th 459, 464.) Although the majority indicates without analysis 

that it disagrees with Lopez, it bases that disagreement on an apparent assumption that the 

trial court’s passing mention of the lower term when imposing the sentence somehow 

changes the requirements for evidentiary support of factors considered to justify 

imposition of the upper term (see maj. opn., ante, at p. 6). I do not understand that basis 

for disagreement. 

In my view, where few if any of the various legal requirements for proof of 

aggravating factors were met, the trial court clearly considered sentencing to the middle 

term (and possibly even the lower term), and the court relied on multiple aggravating 

factors supported only by the probation report in reaching its conclusion not to do so, this 

is not a harmless error case. Even assuming that, on this record, any Sixth Amendment 

error was harmless, I cannot find the state law error harmless as well. (See People v. 

Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) This is because although defendant can 

be said to have stipulated to some aspects of the trial court’s description of his offense as 

well as his prior prison term by virtue of his plea, it is not at all clear the trial court would 

2

 Indeed, the majority appears uncertain about applying only the Watson standard of 

harmless error; it describes a test where if “a reviewing court concludes it is reasonably 

probable, beyond a reasonable doubt, that a jury, applying a beyond-a-reasonable-doubt 

standard, unquestionably would have found true the aggravating circumstances relied on 

by the trial court” the error is harmless, and cites People v. Sandoval (2007) 41 Cal.4th 

825, at page 839, which describes harmless error under the test set forth in see 

Chapman v. California (1967) 386 U.S. 18 [violations of the federal Constitution require 

reversal unless the error is harmless “beyond a reasonable doubt”].) (Maj. opn., ante, at 

pp. 5-6.)
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have found these circumstances alone sufficient to warrant imposition of the upper-term 

sentence. The trial court neither weighed its listed aggravating circumstances nor 

indicated whether its decision to impose the upper term was (or was not) a close call. It 

simply laid out the various factors in aggravation and mitigation and concluded: “The 

aggravating circumstances in number and seriousness outweigh mitigating factors. He 

certainly is not a low-term candidate. So the upper term is the appropriate term.” 

Because, on this record, we cannot determine whether the trial court would have imposed

the same sentence had it been left with only those aggravating circumstances arguably 

stipulated by defendant, remand is required. (See People v. Avalos (1984) 37 Cal.3d 216, 

233 [reviewing court “must . . . reverse where it cannot determine whether the improper 

factor was determinative for the sentencing court”].)

For all of these reasons, I respectfully disagree with the majority’s analysis and 

dissent from its refusal to remand.

/s/ 

Duarte, J.