Filed 11/27/23 P. v. Viveros CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCOS VIVEROS,

Defendant and Appellant.

F084608

(Kern Super. Ct. No. BF181346A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. 

McNamara, Judge.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari R. 

Mueller, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

A jury convicted defendant and appellant Marcos Viveros of attempted murder 

(count 1; Pen. Code,1 §§ 187, subd. (a), 664), finding true it was deliberate and 

premediated (§ 189, subd. (a)); assault with a firearm (count 2; § 245, subd. (a)(2)); 

criminal threats (count 3; § 422); grossly negligent discharge of a firearm (count 4; 

§ 246.3, subd. (a)); being a felon in possession of a firearm (count 5; § 29800, 

subd. (a)(1)); unlawful possession of ammunition (count 6; § 30305, subd. (a)(1)); two 

counts of inflicting corporal injury on a person in a dating relationship (counts 7 and 10; 

§ 273.5, subd. (a)); robbery (count 8; § 212.5, subd. (a)); and stalking (count 9; § 646.9, 

subd. (a)). The jury found true appellant used a firearm (§§ 12022.5, subd. (a), 12022.53, 

subd. (b)) and discharged a firearm (§ 12022.53, subd. (c)) in count 1 and that he used a 

firearm (§ 12022.5, subd. (a)) in counts 2, 3, and 7.

Appellant raises three challenges to his sentence on appeal. First, appellant claims 

the trial court gave a legally erroneous jury instruction on voluntary intoxication that 

precluded the jury from considering voluntary intoxication evidence as it relates to 

premeditation and deliberation. Second, appellant claims his felony conviction for 

count 10 should be reversed since it was charged as a misdemeanor for all purposes 

pursuant to section 17, subdivision (b)(4). Third, appellant claims the trial court violated 

the Sixth Amendment by relying on aggravating circumstances to impose upper term 

sentences that were not found true beyond a reasonable doubt and do not comply with 

section 1170, subdivision (b).

We conclude the voluntary intoxication instruction was legally erroneous but that 

the error was harmless; the court erred when it accepted the People’s motion to amend 

count 10 to a felony after they chose to charge it as a misdemeanor under section 17, 

subdivision (b)(4) for all purposes; and that the imposition of the upper terms violated the 

1 All further undesignated statutory references are to the Penal Code unless 

otherwise stated.
3.

Sixth Amendment and do not comply with section 1170, subdivision (b). Therefore, we 

vacate the sentence, modify count 10 to reflect a misdemeanor and remand for full 

resentencing. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND 

I. April 3, 2019 Incident

A.R. was in a dating relationship with appellant. She testified that during her 

relationship with appellant, he would drink beer every other day, and they smoked weed 

together every day. A.R. did not drink.

On April 3, 2019, A.R. woke up to appellant pulling her off the bed and saying, 

“[W]ake up bitch.” A.R. described appellant as being in an extreme state of anger. 

Appellant saw messages on A.R.’s cell phone that appeared to be between A.R. and 

another man. Appellant did not believe A.R.’s explanation that the messages were 

forwarded from her friend. Appellant told A.R. he was going to kill her and himself. 

Appellant grabbed a handgun from somewhere in the room. He sat on the bed with the 

gun in his hand while A.R. stood about three feet in front of him. Appellant then pointed 

the gun at A.R. and said, “I’m gonna f[**]kin’ kill you bitch.” A.R. saw appellant’s 

fingers curl around the trigger. When appellant’s fingers moved, A.R. hit his arm and 

pushed the gun up and to the side. The gun discharged next to A.R.’s right ear. A.R.’s 

face was bright red, and the side of her face hurt. The gunshot impacted A.R.’s hearing.

A.R. testified she knew what appellant was like when he was drunk or “stoned” 

and said he was maybe stoned but not drunk on the night of the incident. The officer who 

transported appellant after arrest said that he looked at appellant to see if he had been 

drinking alcohol, and he did not appear to be drinking alcohol or under the influence of 

narcotics.

II. March 23, 2020 Incident

A neighbor saw appellant and A.R. walking to a store and saw appellant “pick 

[A.R.] up by [her] throat.” Appellant was holding A.R. by her neck, “kind of in a 
4.

headlock,” cussing and giving her commands like which way he wanted her walking. 

A.R. pushed back against the headlock but did not give a lot of resistance. Appellant 

appeared intoxicated as he was stumbling and fumbling while he walked. The neighbor 

called the police, but A.R. denied appellant hurt her. After the police left, appellant and 

A.R. started arguing and physically fighting. Appellant pushed, punched, and kicked 

A.R. Appellant took money out of A.R.’s wallet and left.

III. Stipulation

Appellant stipulated that he was previously convicted of a felony before these 

incidents.

IV. Information and Verdict

Appellant was charged with the following: attempted murder (§§ 187, subd. (a), 

664; count 1) alleging the attempted murder was deliberate and premeditated (§ 189, 

subd. (a)), that appellant used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and 

that he discharged a firearm (§ 12022.53, subd. (c)); assault with a firearm (§ 245, 

subd. (a)(2); count 2) alleging appellant used a firearm (§ 12022.5, subd. (a)); criminal 

threat (§ 422; count 3) alleging appellant used a firearm (§ 12022.5, subd. (a)); 

discharging a firearm with gross negligence (§ 246.3, subd. (a); count 4); unlawful 

possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5); unlawful possession 

of ammunition by a felon (§ 30305, subd. (a)(1); count 6); two counts of inflicting 

corporal injury (§ 273.5, subd. (a); counts 7 & 10) alleging appellant used a firearm in 

count 7 (§ 12022.5, subd. (a)); first degree robbery (§ 212.5, subd. (a); count 8); and 

stalking (§ 646.9, subd. (a); count 9). The prosecutor elected to charge count 10 as a 

misdemeanor pursuant to section 17, subdivision (b)(4).

Before trial, the prosecutor moved to amend the information to strike the election 

under section 17, subdivision (b)(4) to make count 10 a felony. Appellant objected, but 

the trial court granted the prosecutor’s motion and amended the information, making 
5.

count 10 a felony. Appellant was arraigned on the amended information and pled not 

guilty.

On August 12, 2021, a jury convicted appellant of all counts and found true all 

allegations. On June 29, 2022, appellant was sentenced to an indeterminate term of seven 

years to life, plus a determinate term of 26 years eight months. Specifically, the court 

imposed life in prison with the possibility of parole after seven years on count 1, plus 20 

years for discharging a firearm for count 1; imposed and stayed pursuant to section 654 

the upper term on counts 2 through 7; a six-year upper term on count 8; and a consecutive 

eight-month term on count 9.

DISCUSSION

I. The Trial Court Erred by Precluding Premeditation and Deliberation in the 

Voluntary Intoxication Instruction, but the Error Was Harmless 

Appellant contends the premeditation and deliberation allegation should be 

reversed because the court’s voluntary intoxication instruction precluded the jury from 

considering evidence of appellant’s intoxication when deciding premeditation and 

deliberation. The People first argue appellant forfeited this claim by failing to request an 

instruction relating voluntary intoxication to premeditation and deliberation. Second, the 

People argue that the evidence of intoxication was so weak that no instruction was 

warranted, and any error could not have prejudiced appellant. We agree that the court 

erred by precluding premeditation and deliberation in its voluntary intoxication 

instructions, but conclude the error was harmless.

A. Relevant Background

At trial, A.R. described appellant’s daily habits, which included drinking beer 

every other day and smoking marijuana. A.R. did not think appellant was “drunk” during 

the incident but thought he might have been “stoned.”

After the close of evidence, the trial court asked defense counsel whether there 

were instructions the court was going to read that he requested the court not read; or 
6.

instructions he requested the court to read but refused to read. Defense counsel 

responded “no” to both inquiries. The court asked the prosecutor about the voluntary 

intoxication instruction, and the prosecutor asked the court not to read the instruction 

because he “felt there was insufficient evidence to bring this to the attention of the jury,” 

and that it could be handled in argument. The court reminded the parties that this 

instruction was not a sua sponte instruction, but one given upon request. Defense counsel 

affirmed that he requested the voluntary intoxication instruction and was still comfortable 

with the instruction. The court determined the evidence of intoxication “weaved in and 

out” and accepted the instruction.

The court gave the following instruction regarding voluntary intoxication: 

“You may consider evidence if any of the [appellant]’s voluntary 

intoxication only in a limited way. You may consider that evidence only in 

deciding whether the [appellant] acted or failed to do an act with the 

required specific intent in Count[] 1 .... [¶]

“A person is voluntarily intoxicated if he or she becomes intoxicated 

by willingly using any intoxicating drug, drink, or other substance knowing 

that it could produce an intoxicating effect or willingly assume the risk of 

that effect.

“In connection with the charge of attempted murder Count [1] ... the 

People have the burden of proving beyond a reasonable doubt that the 

[appellant] acted with the intent to kill. If the People have not met this 

burden, you must find the [appellant] not guilty of attempted murder .... 

[¶] ... [¶]

“Do not consider evidence of voluntary intoxication for any other 

purpose. Voluntary intoxication is not a defense to the crimes charged in 

Counts Two, Four, Five, Six, Seven or Ten or the lessor included offense of 

Penal Code Section 243(E)(1) in Counts Seven and Ten.”

During closing arguments, defense counsel did not argue that premeditation and 

deliberation were affected by voluntary intoxication.
7.

B. Standard of Review and Applicable Law

Section 29.4, subdivision (a) states that “[n]o act committed by a person while in a 

state of voluntary intoxication is less criminal by reason of his or her having been in that 

condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity 

to form any mental states for the crimes charged, including, but not limited to, purpose, 

intent, knowledge, premeditation, deliberation, or malice aforethought, with which the 

accused committed the act.”

“Evidence of voluntary intoxication is admissible solely on the issue of whether or 

not the defendant actually formed a required specific intent, or, when charged with 

murder, whether the defendant premeditated, deliberated, or harbored express malice 

aforethought.” (§ 29.4, subd. (b).) “Voluntary intoxication includes the voluntary 

ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or 

other substance.” (Id., subd. (c).) 

With the statutory elimination of diminished capacity as a defense, there is no sua 

sponte duty to instruct on the effect of voluntary intoxication on the mental states 

required for attempted murder. (§ 28, subd. (b); People v. Saille (1991) 54 Cal.3d 1103, 

1119–1120 (Saille); People v. Castillo (1997) 16 Cal.4th 1009, 1016 [includes attempted 

murder] (Castillo).) Voluntary intoxication is now more like a “pinpoint” instruction to 

which a defendant is entitled upon request. (Saille, at p. 1119.) Such instructions are 

required to be given only upon request when there is evidence supportive of the theory, 

but they are not required to be given sua sponte. (Ibid.; People v. Ricardi (1992) 

9 Cal.App.4th 1427, 1432 [no sua sponte duty to instruct on voluntary intoxication but 

must give this instruction on request]; Castillo, at p. 1014.) 

Evidence of voluntary intoxication is “ ‘admissible solely on the issue of whether 

or not the defendant actually formed a required specific intent, premeditated, deliberated, 

or harbored malice aforethought, when a specific intent crime is charged.’ ” (Castillo, 

supra, 16 Cal.4th at p. 1013; Saille, supra, 54 Cal.3d at pp. 1111–1112; § 29.4, 
8.

subd. (b).) Although voluntary intoxication is not an affirmative defense to a crime, the 

jury may consider evidence of voluntary intoxication and its effect on the defendant’s 

required mental state. (§ 29.4; People v. Reyes (1997) 52 Cal.App.4th 975, 982–986 

[relevant to knowledge element in receiving stolen property]; People v. Mendoza (1998) 

18 Cal.4th 1114, 1131–1134 [relevant to mental state in aiding and abetting].)

We review de novo a claim of instructional error. (People v. Posey (2004) 

32 Cal.4th 193, 218 [“[t]he independent or de novo standard of review is applicable in 

assessing whether instructions correctly state the law”].)

C. Analysis

Appellant argues the court’s instruction on voluntary intoxication was an incorrect 

statement of law because it “improperly precluded the jury from considering evidence of 

voluntary intoxication when deciding whether [appellant] acted with premedication and 

deliberation as charged in count 1.” The People argue appellant’s claim is forfeited 

because the court did not have a sua sponte duty to give the pinpoint instruction on 

premeditation and deliberation and appellant failed to object to the court’s instruction. 

However, appellant contends forfeiture does not apply where the court fails to give a 

correct statement of law.

Generally, because the trial court has no sua sponte duty to instruct on the pinpoint 

instruction for voluntary intoxication, failing to raise the issue in the trial court may result 

in forfeiture. (See People v. Virgil (2011) 51 Cal.4th 1210, 1260 [failure to object to 

instruction forfeits claim on appeal]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 

1037 [same].) Here, appellant requested the instruction on voluntary intoxication but 

contends the court erred when it did not instruct that “voluntary intoxication evidence 

was relevant to two distinct mental states: the intent to kill required for the attempted 

murder charge and the premeditation and deliberation required for the separate 

allegation.” However, appellant did not request the specific pinpoint instruction relating 

voluntary intoxication to premeditation and deliberation.
9.

In Saille, “the instructions given (CALJIC No. 4.21) related voluntary intoxication 

only to the question of whether defendant had the specific intent to kill” and did not 

include the mental state for premeditation and deliberation. (Saille, supra, 54 Cal.3d at 

p. 1117.) The defendant contended that the court should have instructed sua sponte that 

the jury could consider his voluntary intoxication in determining whether he had 

premeditated and deliberated the murder. (Ibid.) The court noted that “[t]he abolition of 

the defense of diminished capacity had eliminated the need for a sua sponte instruction 

relating mental illness or voluntary intoxication to the required mental states.” (Id. at 

pp. 1117, 1119.) The court concluded the court did not err in failing to instruct sua 

sponte on premeditation and deliberation since evidence of intoxication does not involve 

a “ ‘general principle of law.’ ” (Id. at p. 1120.)

Here, the trial court gave the CALCRIM equivalent to the instruction given in 

Saille on voluntary intoxication, similarly telling the jury they may consider evidence of 

appellant’s voluntary intoxication “only in deciding whether the defendant acted or failed 

to do an act with the required specific intent ....” (See CALCRIM No. 3426; CALJIC 

No. 4.21.) Like in Saille, the instruction did not relate voluntary intoxication to mental 

state or premeditation and deliberation. Appellant requested the voluntary intoxication 

instruction but did not request the specific pinpoint instruction relating voluntary 

intoxication to premeditation and deliberation. On this point, the court did not err in not 

adding the premeditation and deliberation portion of the voluntary intoxication 

instruction where appellant did not request it.

However, knowing that the trial court does not have a sua sponte duty to instruct 

on the pinpoint instruction on premeditation and deliberation, appellant claims that the 

instruction the court gave regarding voluntary intoxication was legally incorrect. As the 

People point out, under the doctrine of invited error, appellant could be barred from 

challenging the instruction since it was appellant who requested the voluntary 

intoxication instruction. The Supreme Court, in People v. DeHoyos (2013) 57 Cal.4th 79, 
10.

explained that the “doctrine of invited error bars [an appellant] from challenging a jury 

instruction given by the trial court when the [appellant] has requested the instruction

based on a ‘ “ ‘ “conscious and deliberate tactical choice.” ’ ” ’ ” (Id. at p. 138.) 

However, unlike in DeHoyos, where the defendant was barred from challenging the 

instruction he requested, appellant is not challenging the voluntary intoxication 

instruction, but claiming that the court erred by giving an incorrect statement of law when 

it gave the instruction. As our Supreme Court has recognized, when a court “does choose 

to instruct, it must do so correctly.” (Castillo, supra, 16 Cal.4th at p. 1015; People v. 

Pearson (2012) 53 Cal.4th 306, 325.) As such, appellant’s claim that the instruction was 

legally incorrect is not forfeited. (See People v. Capistrano (2014) 59 Cal.4th 830, 875, 

fn. 11, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104 [“[w]here, 

however, defendant asserts that an instruction is incorrect in law an objection is not 

required”]; People v. Hudson (2006) 38 Cal.4th 1002, 1012 [no forfeiture where trial 

court gave incorrect statement of the law]; People v. Smith (2017) 12 Cal.App.5th 766, 

778, fn. 5 [no forfeiture of argument that instruction incorrectly stated the law].) 

Specifically, here, appellant claims that the instruction unlawfully precluded the 

jury from considering voluntary intoxication as it relates to premeditation and 

deliberation. However, “[e]vidence of voluntary intoxication is admissible solely on the 

issue of whether or not the defendant actually formed a required specific intent, or, when 

charged with murder, whether the defendant premeditated, deliberated, or harbored 

express malice aforethought.” (§ 29.4, subd. (b).) As such, appellant’s claim is 

cognizable on appeal.

Our Supreme Court, in Castillo, supra, 16 Cal.4th 1009 and People v. Hughes

(2002) 27 Cal.4th 287, provides some guidance on the issue of whether the court’s 

instruction on voluntary intoxication was misleading when it failed to include the mental 

state of premeditation and deliberation. In Hughes, the defendant claimed that his 

convictions should be reversed because the jury instruction on voluntary intoxication, 
11.

delivered at defense counsel’s request, “ ‘eviscerated’ ” the defendant’s voluntary 

intoxication defense to those charges. (Hughes, supra, at p. 340.) The trial court had 

instructed the jury that the defendant’s intoxication should be considered in determining 

whether the defendant possessed the “ ‘specific intent and/or mental state’ ” required. 

The defendant did not request the specific pinpoint instruction on premeditation and 

deliberation. (Id. at p. 342.) The Hughes court found no error, holding that “ ‘by relating 

intoxication to “mental state,” a reasonable jury would have understood deliberation and 

premeditation to be “mental states” for which it should consider the evidence of 

intoxication.” (Ibid.)

In Castillo, the appellate court criticized the instruction given on voluntary 

intoxication because it did not include “mental state,” which it felt would have been 

required for premeditation and deliberation. (Castillo, supra, 16 Cal.4th at p. 1016.) 

Even though the appellate court recognized no request was made by the defendant, it 

found the instruction “misleading because ‘when the first sentence of the version of 

CALJIC No. 4.21 that was read to the jury referred to “the specific intent to kill” and was 

completely silent as to mental state, [it felt] a conscientious juror would have understood 

it to pertain only to the charge of attempted murder, and not to the concept of 

premeditation as to either the attempted or the ... actual murder[].’ ” (Ibid.) 

However, the Supreme Court disagreed with the appellate court and concluded 

“[t]he instructions as a whole ... were not misleading.” (Castillo, supra, 16 Cal.4th at 

p. 1016.) “ ‘[T]he correctness of jury instructions is to be determined from the entire 

charge of the court, not from a consideration of parts of an instruction or from a particular 

instruction.’ ” (Ibid.; People v. Burgener (1986) 41 Cal.3d 505, 538.) “ ‘ “The absence 

of an essential element in one instruction may be supplied by another or cured in light of 

the instructions as a whole.” ’ ” (Castillo, at p. 1016; Burgener, at p. 539.) Even though 

the trial court did not include “mental state” when it told the jury what voluntary 

intoxication could be considered for, it did relate voluntary intoxication to “ ‘specific 
12.

intent or mental state’ ” elsewhere in the instructions. (Castillo, supra, at p. 1016.) The 

instructions correctly explained that, for the jury to find the defendant guilty of first

degree murder, it must find he acted with “ ‘deliberation and premeditation.’ ” (Ibid.) 

The court further explained that the defendant’s deliberation and premeditation to kill 

“ ‘must have been formed upon preexisting reflection and not upon a sudden heat of 

passion or other condition precluding the idea of deliberation ....’ ” (Ibid.) “A 

reasonable jury would have understood deliberation and premeditation to be ‘mental 

states’ for which it should consider the evidence of intoxication as to either attempted 

murder or murder.” (Ibid.) Therefore, “[a]lthough the trial court might have adapted the 

first paragraph of CALJIC No. 4.21 to refer to both the specific intent necessary for 

murder and the additional mental state necessary for first degree murder, its failure to do 

so did not mislead the jury in light of the rest of the instructions.” (Id. at p. 1017.) Since 

the trial court expressly stated the jury could consider intoxication “ ‘where a specific 

intent or mental state is an essential element of the crime’ ” (ibid., italics added by 

Castillo), the Castillo court held that “[n]o reasonable juror would understand the 

instructions to permit the jury to consider intoxication in determining whether defendant 

specifically intended to kill but to prohibit it from considering that same intoxication in 

determining whether he premeditated and deliberated.” (Ibid.) The Castillo court 

concluded the trial court “did not breach its duty to instruct correctly once it decided to 

instruct on voluntary intoxication.” (Id. at p. 1018.) 

Here, even when considering the court’s instructions as a whole, the trial court 

failed to expressly instruct anywhere that the jury could consider intoxication “ ‘where a 

specific intent or mental state is an essential element of the crime.’ ” (Castillo, supra, 

16 Cal.4th at p. 1017, italics added by Castillo [“Premeditation and deliberation are 

clearly mental states”].) The court only linked voluntary intoxication to specific intent 

and did not direct the jury that it could also consider voluntary intoxication in regard to 

mental states. Rather, the court instructed the jury that they may “not consider evidence 
13.

of voluntary intoxication for any other purpose.” We agree with appellant that because 

the court did not expressly tell the jury they could consider voluntary intoxication for 

mental states, and then told the jury they may not consider voluntary intoxication for any 

purpose other than specific intent, the court effectively precluded the jury from being able 

to consider evidence of voluntary intoxication for premeditation and deliberation. By 

telling they jury they may not consider intoxication for any other purpose, other than 

specific intent, it is reasonably likely the jury misconstrued the instructions as precluding 

it from considering the evidence of intoxication in deciding the degree of the murder.

(See ibid.) Therefore, we cannot conclude that “[n]o reasonable juror would understand 

the instructions to permit the jury to consider intoxication in determining whether 

defendant specifically intended to kill but to prohibit it from considering that same 

intoxication in determining whether he premeditated and deliberated.” (See ibid.) 

However, the instructional error was harmless under the Watson2standard of 

review. (See People v. Pearson, supra, 53 Cal.4th at p. 325 [applying “reasonable 

probability” standard of prejudice to failure to give voluntary intoxication instruction]; 

People v. Mendoza (1998) 18 Cal.4th 1114, 1134–1135 [error in voluntary intoxication 

instruction subject to state law standard of review]; People v. Watson, supra, 46 Cal.2d at 

pp. 836–837.) The jury was properly instructed on voluntary intoxication as it related to 

appellant’s ability to form the specific intent to kill. By finding appellant guilty of 

attempted murder, the jury necessarily rejected any theory that appellant’s intoxication 

prevented him from forming the specific intent to kill. We also agree with the People 

that the evidence of intoxication was not strong. A.R. testified that on the night of the 

incident appellant was maybe stoned but not drunk. The officer who arrested appellant

the day of the incident and transported him to jail said appellant did not appear to be 

2 People v. Watson (1956) 46 Cal.2d 818 (Watson)
14.

under the influence of drugs or alcohol. And A.R. did not tell police appellant was under 

the influence on the night of the incident.

Aside from the minimal evidence of intoxication, there was also no evidence that 

the voluntary intoxication had any effect on appellant’s mental state. (See People v. 

Williams (1997) 16 Cal.4th 635, 677–678 [no instruction for voluntary intoxication 

required where evidence of intoxication was scant]; People v. Marshall (1996) 13 Cal.4th 

799, 848 [evidence did not require requested voluntary intoxication instruction where the 

record did not support conclusion that at time of offense defendant was unable to

premeditate or form intent to kill].) Evidence of appellant’s statement to A.R. that “I’m 

gonna f[**]kin’ kill you bitch,” followed by appellant’s decision to then point his gun at 

A.R. and pull the trigger demonstrates appellant had the mental state to premeditate his 

actions. Defense counsel himself did not even assert voluntary intoxication as a 

mitigating consideration to premeditation and deliberation during closing arguments. 

Therefore, on this record, we cannot conclude the error in the voluntary intoxication 

instructions prejudiced defendant under either standard. (See People v. Watson, supra, 

46 Cal.2d at p. 837 [reasonably probable that a result more favorable would have been 

reached absent the error]; Chapman v. California (1967) 386 U.S. 18, 24 [harmless 

error].) Accordingly, we reject appellant’s first claim.

II. The Felony Conviction on Count 10 Should be Reduced to a Misdemeanor 

Since it was Charged as a Misdemeanor for All Purposes Under Section 17, 

Subdivision (b)(4).

Appellant contends that count 10 should be reduced to a misdemeanor because the 

prosecutor elected to charge it as a misdemeanor “for all purposes” under section 17, 

subdivision (b)(4). Appellant argues the judgment should be reversed and the matter 

remanded to the trial court for resentencing. The People agree that the court erred, and 

the felony should be reduced to a misdemeanor. However, the People argue that remand 

is not necessary since count 10 is stayed and reduction of the sentence does not create 
15.

changed circumstances to trigger application of the full resentencing rule. Appellant 

disagrees and asserts that full resentencing is required. We modify count 10 to reflect a 

misdemeanor and remand for full resentencing.

A. Relevant Background

In the complaint and information, appellant was charged in count 10 with corporal 

injury (§ 273.5, subd. (a)), filed as a misdemeanor under section 17, subdivision (b)(4). 

Before trial, the People filed a motion to amend count 10 to dismiss the section 17 

enhancement in order to make the offense a felony. Defense counsel objected but the 

trial court granted the amendment and struck the enhancement. The jury convicted 

appellant of felony corporal injury in count 10.

B. Applicable Law

Under section 17, subdivision (b)(4), “When a crime is punishable, in the 

discretion of the court, either by imprisonment in the state prison or imprisonment in a 

county jail under the provisions of subdivision (h) of Section 1170, or by fine or 

imprisonment in the county jail, it is a misdemeanor for all purposes under the following 

circumstances: ... When the prosecuting attorney files in a court having jurisdiction over 

misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless 

the defendant at the time of arraignment or plea objects to the offense being made a 

misdemeanor, in which event the complaint shall be amended to charge the felony and 

the case shall proceed on the felony complaint.” 

C. Analysis

Once the prosecuting attorney files a complaint specifying that the offense is a 

misdemeanor pursuant to section 17, subdivision (b)(4), it is a misdemeanor for all 

purposes unless the defendant objects. (§ 17, subd. (b)(4); People v. Park (2013) 

56 Cal.4th 782, 789, fn. 4.) An election to treat a charged offense as a misdemeanor for 

all purposes means that it is binding throughout the course of the proceeding. (See 

People v. Hannon (1971) 5 Cal.3d 330, 334–335, 340.) In Hannon, the defendant pled 
16.

guilty to two counts of statutory rape (§ 261, subd. (1)) and was committed to the Youth 

Authority, which classified his offenses as misdemeanors for all purposes under 

section 17, subdivision (b)(2). (Hannon, at p. 332.) After serving almost two years, the 

commitment was terminated pursuant to Welfare and Institutions Code section 1737.1,

and the defendant was returned to trial court and sentenced to state prison. (Hannon, at 

p. 332.) The defendant argued that “the trial court did not have discretion to impose 

felony punishment upon him, the court having previously denominated his offense a 

misdemeanor when it committed him to the Youth Authority.” (Id. at p. 333.) The court 

concluded that nothing in section 17, subdivision (b) indicates that classification of a 

crime as a misdemeanor is conditioned upon defendant’s behavior or subject to 

defeasance for later misconduct. (Hannon, at pp. 334–335.) 

On the other hand, in Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, the 

court held that dismissal of the misdemeanor charges in the complaint did not bar a 

second prosecution of the charges as a felony by indictment or information. (Id. at 

pp. 1015–1016.) The court stated, “There is accordingly no relationship between first 

and second proceedings when the first is aborted by a dismissal, other than in the narrow

sense of ... section 1387. Under that section an order of dismissal is a bar to ‘any other 

prosecution for the same offense if it is a misdemeanor, but not if it is a felony.’ ” (Id. at 

p. 1015.) Subsequently, the California Supreme Court in Burris v. Superior Court (2005) 

34 Cal.4th 1012 (Burris) affirmed that the dismissal of a misdemeanor complaint did not 

bar further prosecution for a felony charge based on the same conduct. (Id. at p. 1015.) 

Here, unlike Burris or Necochea where the prosecutor moved to dismiss the 

complaint and refile the charges as felonies in a separate complaint, the prosecutor moved 

to strike the section 17, subdivision (b) enhancement within the same proceedings in 

order to go to trial on a felony charge. However, once the prosecutor elected to charge 

the offense as a misdemeanor under section 17, subdivision (b)(4), it became a 

misdemeanor for all purposes for the entirety of the proceedings. (See People v. Hannon, 
17.

supra, 5 Cal.3d at pp. 334–335 [misdemeanor designation is binding throughout the 

course of the proceeding].) As such, the trial court erred when it granted the prosecutor’s 

motion striking the section 17, subdivision (b) enhancement as to count 10 and allowing 

that count to proceed to trial as a felony offense. And we order count 10 reduced to a 

misdemeanor.

The remaining issue is whether we should remand to the lower court for full 

resentencing. “[W]hen part of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. 

Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 

[“[T]he full resentencing rule allows a trial court to revisit all prior sentencing decisions 

when resentencing a defendant”].) Even when only a single “ ‘subordinate count[] of a 

felony conviction’ ” is reversed, “ ‘the trial court has jurisdiction to modify every aspect 

of the defendant’s sentence on the counts that were affirmed, including the term imposed 

as the principal term.’ ” (Buycks, at p. 893.) The People’s argument that full resentencing 

does not apply to stayed terms because they would have no practical effect is unsupported 

by their cited authority, People v. Barnum (2003) 29 Cal.4th 1210, 1217. We note that 

even though the sentence on count 10 is stayed, the trial court must still exercise its 

discretion in imposing a new misdemeanor sentence for count 10. As such, remand for 

full resentencing is appropriate. (Buycks, at p. 893.)

Therefore, we order count 10 modified to a misdemeanor and remand the matter to 

the trial court for a full resentencing as to all counts.

III. Trial Court’s Upper Term Sentence Violates the Sixth Amendment and Does 

Not Comply with Section 1170, Subdivision (b)

Appellant contends the trial court’s reliance on aggravating circumstances to 

increase his punishment beyond the middle term for counts 2 through 8 and 10 and the 

firearm enhancements attached to counts 1, 2, 3 and 7 were based on facts not proven 
18.

beyond reasonable doubt, which violated his Sixth Amendment right to a jury trial. 

Appellant contends the error was prejudicial and the sentence should be reversed, and the 

matter remanded for a new sentencing hearing. The People claim appellant forfeited this 

claim because he did not object to the imposition of the upper term at sentencing. 

Appellant contends there can be no forfeiture when an express waiver is required. The 

People also contend that any error was harmless. We conclude the court’s imposition of 

the upper terms was unauthorized and remand for resentencing. 

A. Relevant Background

The sentencing hearing was on June 29, 2022. The court was aware of the

changes in section 1170, subdivision (b) and had reviewed a sentencing brief from the

People based on the Legislature’s changes. The sentencing brief explained that the court

could rely on the following aggravating factors: that the crime involved great violence or

bodily harm, under California Rules of Court, rule 4.421(a)(1), which was based on

appellant’s attempted murder conviction; andt that appellant was armed with a firearm,

under California Rules of Court, rule 4.421(a)(2), which was proven true by the jury. 

And although the People stated in the sentencing brief that they would be prepared to

provide a certified record of conviction for appellant, there is nothing in the record

indicating that one was provided by the People at sentencing. At sentencing, the defense

counsel submitted on the probation report but stated, “[W]e believe that [appellant]

should be sentenced to the midterm of any determinate sentencing charges ....”

The court considered the sentencing brief and the probation report, adopted one

circumstance in mitigation that appellant was under the age of 26 years old and found

four factors in aggravation. The court identified the following four aggravating

circumstances: (1) “[appellant’s] prior sustained petitions in juvenile delinquency

proceeding[s] and prior convictions are numerous and of increasing seriousness”; (2) he

“served a prior commitment, pursuant to ... [section] 1170(h)(5)”; (3) his “prior

performance in juvenile and felony probation [was not] satisfactory in that he violated the
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terms and re-offended”; and (4) he “has engaged in violent conduct which indicates a

serious danger to society based on the current offense.”

The trial court relied on all four aggravating circumstances when it sentenced 

appellant to the upper term for all determinate crimes, base terms, and enhancements with 

a triad. The court explained, “In this case, the [appellant’s] first three cited aggravating 

factors were related solely to recidivist behavior as shown by his record of conviction. 

People have not pled or proven the aggravating factors, which was not required at the 

time of the initial sentencing hearing. [⁋] Penal Code’s 1170(b) change has been deemed

retroactive by the higher court, thus the [appellant’s] aggravating factors can be 

considered for the upper term as to the base crimes, but not for the enhancements to the 

triad. [⁋] The fourth factor is supported by the record of conviction and for the crimes 

which the [appellant] was convicted in this case and will be considered for all purposes. 

However, only the portion that has been pled and proven will be considered. That’s 

[e]nhancement [f]our.”

Later, the trial court stated, “After review of the factors in aggravation versus one 

in mitigation, the upper term will be imposed for all determinate crimes, base terms, 

enhancements with a triad.” The court then imposed the upper term of six years on count 

8, plus imposed and stayed the upper term on counts 2 through 7 and count 10, as well as 

on the firearm enhancements attached to counts 1, 2, 3 and 7.

B. Standard of Review and Applicable Law

On appeal, an issue that presents a question of law is reviewed de novo. (People 

v. Lewis (2021) 11 Cal.5th 952, 961 [statutory interpretation]; People v. Prunty (2015) 

62 Cal.4th 59, 71.) 

Under the former version of section 1170, subdivision (b), when a judgment of 

imprisonment was to be imposed, and the statute specified three possible terms (lower, 

middle, and upper), the trial court had broad discretion to select the term that best served 

the interests of justice and was required to specify the reasons for its sentencing decision. 
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(§ 1170, former subd. (b); Cal. Rules of Court, former rule 4.420(e); People v. Sandoval

(2007) 41 Cal.4th 825, 846–847.) In making its selection, the trial court could consider 

the circumstances in aggravation or mitigation (as defined by rules 4.421 & 4.423) “and 

any other factor reasonably related to the sentencing decision.” (Former rule 4.420(d).) 

The court could rely on “the case record, the probation officer’s report, other reports and 

statements properly received, statements in aggravation or mitigation, and any evidence 

introduced at the sentencing hearing.” (Ibid.)

Effective January 1, 2022, section 1170, subdivision (b) was amended by Senate 

Bill No. 567 to create a “presumption of sentencing judgment not to exceed the middle 

terms.” (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. 3.) As amended, a trial 

court may only impose an upper term when the facts underlying the aggravating 

circumstances have been stipulated to by the defendant or found true beyond a reasonable 

doubt by the jury or the court acting as the fact finder. (§ 1170, subd. (b)(2); People v. 

Dunn (2022) 81 Cal.App.5th 394, 402, review granted Oct. 12, 2022, S275655; People v. 

Lewis (2023) 88 Cal.App.5th 1125, 1131, review granted May 17, 2023, S279147.) 

Under section 1170, subdivision (b)(3), the 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.” (§ 1170, subd. (b)(3); Dunn, at 

p. 402.)

C. Analysis

Appellant argues that the court’s imposition of the upper term violates his Sixth 

Amendment jury trial right by using facts not found true beyond a reasonable doubt to 

increase his maximum sentence. Appellant contends the error was prejudicial and the 

sentence should be reversed, and the matter remanded for a new sentencing hearing. The 

People claim appellant forfeited this claim because he did not object to the imposition of 

the upper term at sentencing. Appellant contends there can be no forfeiture when an 
21.

express waiver under the Sixth Amendment is required. The People agree that the court 

relied on aggravating circumstances that were neither admitted by the appellant nor 

proven true beyond a reasonable doubt but contend any error was harmless. In his reply, 

appellant asserts that if the matter were remanded for full resentencing based on his 

second claim regarding count 10, this claim would be rendered moot.

Appellant was sentenced on June 29, 2022, which was after the changes to 

section 1170, subdivision (b) took effect. The record shows all parties were aware of the 

changes in the law and the court’s newly limited discretion, which was discussed at 

sentencing. Although defendant did not object to the trial court’s imposition of the upper 

term, the People were aware of the changes in the law and prepared a sentencing brief for 

the court, and the court was also aware of the changes in the law. Therefore, the purpose 

for requiring an objection so that the issue could be raised and considered was served in 

this case. (See People v. Williams (1988) 44 Cal.3d 883, 906; People v. Partida (2005) 

37 Cal.4th 428, 435 [“A party cannot argue the court erred in failing to conduct an 

analysis it was not asked to conduct”]; see Partida, at p. 434 [“to further these purposes, 

the requirement must be interpreted reasonably, not formalistically”].)

Further, claims regarding an unauthorized sentence can be raised at any time. 

(People v. Scott (1994) 9 Cal.4th 331, 354.) “[A] sentence is generally ‘unauthorized’ 

where it could not lawfully be imposed under any circumstance in the particular case.” 

(Ibid.; People v. Brach (2002) 95 Cal.App.4th 571, 578 [sentence “ ‘could not lawfully 

be imposed under any circumstance in the particular case,’ for example, ‘where the court 

violates mandatory provisions governing the length of confinement’ ”].) Here, defendant 

claims that the imposition of the upper term violates his Sixth Amendment right and fails 

to comply with section 1170, subdivision (b), which would render his sentence

unauthorized. Therefore, defendant’s claim is not forfeited.

As amended, section 1170, subdivision (b)(2) provides that in order “to increase 

the punishment beyond this middle term maximum, a trial court must now rely on 
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separate aggravating-circumstance findings that it concludes justify upward departure 

from the presumptive maximum middle term.” (People v. Falcon (2023) 92 Cal.App.5th 

911, 933, review granted Sept. 13, 2023, S281242 (Falcon).) As such, “Sixth 

Amendment jury-trial-right principles attach to all facts legally essential to imposing an 

increased sentence” beyond the middle term maximum. (Ibid.; Blakely v. Washington

(2004) 542 U.S. 296, 313 [the constitutional requirement of a jury trial and proof beyond 

a reasonable doubt applies to a fact that is “legally essential to the punishment”]

(Blakely).) We note amended section 1170, subdivision (b)(2) “incorporates this jury 

trial right by requiring that all aggravating circumstance findings relied on to impose a 

sentence beyond the middle term be found true by a jury beyond a reasonable doubt.” 

(Falcon, at p. 933; Blakely, at p. 313.) The statute creates two types of exclusions from 

this constitutional jury trial right: aggravating facts stipulated to by the defendant may be 

considered without a jury finding (§ 1170, subd. (b)(2); Falcon, at p. 933; see Blakely, at 

p. 303 [facts admitted by the defendant excepted]) and the sentencing court may also 

consider prior convictions based on certified records of conviction (§ 1170, subd. (b)(3); 

Falcon, at p. 933; see People v. Sallee (2023) 88 Cal.App.5th 330, 337, review granted 

Apr. 26, 2023, S278690; People v. Flowers (2022) 81 Cal.App.5th 680, 685, review 

granted Oct. 12, 2022, S276237; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [fact 

of a prior conviction excepted] (Apprendi).) 

Upon review of the record, it shows that the aggravating factors relied upon by the 

trial court were neither stipulated to by the appellant nor found true beyond a reasonable 

doubt by a jury or judge in a court trial. While the record shows appellant stipulated to a 

prior felony conviction, no other information regarding the conviction was given. As 

such, it alone does not support either of the aggravating circumstances relied on by the 

court. Nor does the record demonstrate the aggravating circumstances were in some way 

supported by a certified record of conviction. While the court relied on the probation 

report in assessing appellant’s criminal record, a probation report is not a certified record 
23.

of conviction and cannot be used to support imposition of the upper term under section 

1170, subdivision (b)(3). (People v. Dunn, supra, 81 Cal.App.5th at p. 401, review 

granted [probation report is not a certified record of conviction].) Thus, the trial court’s 

findings on the aggravating factors rest on facts that have not been submitted to a jury or

proved beyond a reasonable doubt, violating the Sixth Amendment. (See Falcon, supra, 

92 Cal.App.5th at p. 933, review granted [all aggravating circumstance findings relied on 

to impose a sentence beyond the middle term must be found true by a jury beyond a 

reasonable doubt]; Blakely, supra, 542 U.S. 296 at p. 313.)

We also note that the fourth factor in aggravation, that appellant “engaged in 

violent conduct which indicates a serious danger to society based on the current offense,” 

cannot be based in part on the current convictions on the charged offenses and 

enhancements. “[Any] fact that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

(Apprendi, supra, 530 U.S. at p. 490.) Here, the trial court violated the Sixth Amendment 

by relying on the current convictions to impose punishment exceeding the middle term 

sentences authorized by those convictions. (Apprendi, at p. 483, fn. omitted [explaining 

that a jury must find any fact that “exposes the criminal defendant to a penalty exceeding

the maximum he would receive if punished according to the facts reflected in the jury 

verdict alone”].) The jury’s verdicts authorized no more than middle terms. (See 

§§ 1170, subd. (b)(1)–(3), 1170.1, subd. (d)(1)–(2).) As such, the trial court erred when it 

imposed the upper terms based on facts that were not proven true beyond a reasonable 

doubt by a trier of fact. (See § 1170, subd. (b)(2).)

Here, defendant was sentenced after the changes to section 1170, subdivision (b) 

took effect and the trial court’s error created an unauthorized sentence. (People v. Smith

(2001) 24 Cal.4th 849, 852 [an unauthorized sentence is one that “ ‘could not lawfully be 

imposed under any circumstance in the particular case’ ”].) We reject the People’s 

argument that the error was harmless since defendant’s sentence is unauthorized and not 
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subject to harmless error review. (See ibid. [unauthorized sentence cannot be lawfully 

imposed]; In re Birdwell (1996) 50 Cal.App.4th 926, 930 [unauthorized sentence not 

subject to harmless error review].) The People’s reliance on Dunn, People v. Zabelle

(2022) 80 Cal.App.5th 1098 and People v. Berdoll (2022) 85 Cal.App.5th 159 are readily 

distinguishable in that they address retroactive application of the changes to section 1170, 

subdivision (b) and whether the resulting sentencing error was harmless. Consequently, 

we vacate the sentence and remand for resentencing in accordance with section 1170, 

subdivision (b).3

DISPOSITION

We vacate the sentence, order count 10 modified to reflect a misdemeanor 

conviction and remand for full resentencing in accordance with this opinion. In all other 

respects, the judgment is affirmed.

POOCHIGIAN, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.

3 We reject appellant’s claim that double jeopardy bars the court from considering 

the recidivist-related aggravating circumstances at resentencing. Appellant’s reliance on 

People v. Seel (2004) 34 Cal.4th 535 is misguided as the Seel court held the double 

jeopardy clause barred retrial of a prior conviction allegation after an appellate finding of 

evidentiary insufficiency. (Id. at p. 541.)