SEE CONCURRING OPINION

Filed 3/13/24 P. v. Power CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA CODY POWER,

Defendant and Appellant.

F084793

(Super. Ct. No. BF176741A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, 

Judge.

Janice M. Lagerlof, 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, Lewis A. 

Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Poochigian, J. and Meehan, J.
2.

Defendant Joshua Cody Power contends on appeal that his sentences on counts 1 

and 3 must be vacated and the case remanded for resentencing because the trial court

abused its discretion in imposing the upper terms pursuant to Penal Code1section 1170, 

subdivision (b).2 We agree that the trial court erred in its application of section 1170, 

subdivision (b), but conclude any error was harmless. We affirm.

PROCEDURAL SUMMARY

On June 22, 2022, the Kern County District Attorney filed an amended 

information charging defendant with first degree murder (§ 187, subd. (a); count 1); 

assault by means of force likely to produce great bodily injury while confined in prison 

(§ 4501, subd. (b); count 2); and attempt by threats or violence to deter a correctional 

officer from performing his duty (§ 69; count 3). As to count 2, it was further alleged 

that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, 

subd. (a)). It was also alleged that defendant has five prior strike convictions under the 

“Three Strikes” law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), two of which were 

prior serious felony convictions (§§ 667, subd. (a)).

The district attorney alleged the following circumstances in aggravation: the 

crime involved great violence (California of Rules of Court, rule 4.421(a)(1));3the victim 

was particularly vulnerable (rule 4.421(a)(3)); defendant engaged in violent conduct 

indicating a serious danger to society (rule 4.421(b)(1)); and defendant has prior 

convictions that are numerous or of increasing seriousness (rule 4.421(b)(2)).

1 All statutory references are to the Penal Code.

2 Section 1170, subdivision (b) was recently amended effective January 1, 2022, by Senate 

No. Bill 567. (2021–2022 Reg. Sess.; Senate Bill 567) (See Stats. 2021, ch. 731, § 1.3, adding 

§ 1170, subd. (b)(1), (2).) The amended statute was in effect at the time of defendant’s 

sentencing.

3 All references to rules are to the California Rules of Court.
3.

On July 15, 2022, a jury found defendant guilty of the lesser included offense of 

voluntary manslaughter (§ 192) on count 1, and guilty as charged on count 2 (§ 4501, 

subd. (b)) and count 3 (§ 69). The jury found true the allegation that defendant 

personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).

On July 15, 2022, a bench trial was held on the prior convictions and aggravating 

circumstances allegations. The court found not true the alleged aggravating circumstance 

that the victim was particularly vulnerable. The court found true the five prior strike 

convictions, two of which were prior serious felony convictions, and the three remaining 

aggravating circumstances allegations: (1) that the crime involved great violence 

(rule 4.421(a)(1)); (2) that defendant engaged in violent conduct indicating a serious 

danger to society (rule 4.421(b)(1)); and (3) that defendant has prior convictions that are 

numerous or of increasing seriousness (rule 4.421(b)(2)).

On August 12, 2022, the trial court sentenced defendant to prison for the 

indeterminate term of 33 years to life (the upper term, tripled pursuant to § 667, 

subd. (e)(2)(A)(i)) on count 1 (voluntary manslaughter; § 193, subd. (a)) plus 10 years for 

the two prior serious felony conviction enhancements (§ 667, subd. (a)), and six years 

(the upper term) on count 3 (attempt by threats or violence to deter a correctional officer 

from performing his duty; §§ 18, 69). The term imposed on count 2 was stayed under 

section 654.

On August 12, 2022, defendant filed a notice of appeal.

FACTS

Prosecution

Defendant and Kevin Mansfield were inmates at a corrections facility. They had 

been housed in the same cell since approximately December 2017. Their cell was in a 

locked and secure unit.

On February 16, 2018, correctional officer Kevin Almond came on duty at 

10:00 p.m. Almond testified that in defendant’s unit all cell doors are locked at 
4.

11:00 p.m. Almond’s supervising officer on the night of the incident, correctional officer 

Khwann Oliver, testified that routine inmate counts are conducted daily at 5:00 a.m., 

12:00 p.m., 5:00 p.m., 9:30 p.m., and 11:00 p.m.4 During inmate counts, a correctional 

officer is supposed to go to each cell in the unit to verify all inmates are physically 

present, coherent, and responsive.

Almond testified he was briefed by the officers who were on the prior shift when 

he began his shift on the evening of the incident that the 9:00 p.m. routine inmate count 

had been conducted and there had been no incidents in the unit. The control booth officer 

on duty in the unit that evening, correctional officer Yolanda Pantoja, whose shift also 

began at 10:00 p.m., stated that according to protocol, she would have been informed by 

the officer with the prior shift that the routine 9:30 p.m. inmate count had been

performed. She also testified that she believed the 9:30 p.m. count had been conducted 

according to standard procedure because no one had informed her otherwise. Pantoja 

stated that she had not heard any unusual sounds in the unit from the time she began her 

shift at 10:00 p.m. until Almond began the 11:00 p.m. inmate count.

At approximately 11:00 p.m., Almond began the 11:00 p.m. inmate count. He 

stated that at approximately 11:03 p.m. he approached the cell occupied by defendant and 

Mansfield. He noticed the light of their cell was still on and their window was partially 

covered by cardboard. From outside the cell, Almond ordered the inmates to take the 

cardboard off the window but received no response. Almond testified that when he 

looked inside the cell through the uncovered part of the window, he saw the two inmates 

about two feet from the back of the cell. Mansfield’s body was laying on the floor, and 

4 Almond also stated that a minimum of five inmate counts are conducted daily. He 

stated he was not sure of all of the times they were regularly scheduled throughout a 

24-hour period. However, he and Oliver both testified that counts occurred daily at both 

9:30 p.m. and 11:00 p.m.
5.

defendant was laying on top of him, punching the right side of Mansfield’s face. Almond 

said that he ordered the inmates to stop fighting and get in a prone position, but defendant 

continued to punch Mansfield, so he radioed other officers for assistance. Almond 

testified that at the time he was not sure what Mansfield’s condition was, but he did not 

see Mansfield make any voluntary movement or response. He only saw Mansfield’s 

body move as it was being struck by defendant.

When the inmates did not comply with Almond’s orders, he pepper sprayed inside 

the cell through the food port. He stated that the first burst of pepper spray had no effect 

on either inmate, and defendant continued to punch Mansfield’s face. Almond testified 

that he realized Mansfield was incoherent, so he radioed that there was a medical 

emergency. Almond again ordered defendant to stop fighting and to get in a prone 

position, but defendant replied, “F[***] you” and continued. Almond sprayed a 

second burst of pepper spray into the cell, which caused defendant to slide off Mansfield 

and lay on the side of the cell. Defendant attempted to stand but fell. Almond testified 

that Mansfield made no movements after defendant stopped punching him. Almond 

ordered defendant to back up to the food port so he could place handcuffs on him but he 

did not comply.

Assisting officers performed an extraction on defendant but he resisted the 

officers’ efforts to restrain him, punching and kicking the officers. Oliver hit defendant’s 

legs and buttocks with his baton but defendant continued to resist until the officers were 

eventually able to place handcuffs and leg restraints on him and put him in a wheelchair 

because he refused to walk.

Almond testified that after defendant was extracted, Mansfield was lying on the 

floor of the cell. Almond did not observe Mansfield breathe or make voluntary 

movements. Oliver also testified that he did not see Mansfield make any voluntary 

movements and appeared “fully unresponsive.” Oliver stated that Mansfield “was laying 

facedown ... [a]s [correctional officers] turned him over and placed him on the 
6.

backboard ... it appeared that he had skin that—the skin appeared to be burned somehow. 

It was peeling off of his face, shoulder, hands. His—he was covered in blood. It even 

appeared as if his face was somewhat deformed, like disfigured.” Another correctional 

officer involved in the extraction, Hector Ortega, stated that efforts to resuscitate 

Mansfield with an automated electric device (AED) were unsuccessful. Medical 

personnel determined Mansfield did not have a pulse and was not breathing. Medical 

personnel were having trouble getting the AED properly applied to Mansfield’s chest 

because there was so much blood that it would slide off his skin. They instead began 

chest compressions as they transported him to the medical clinic but were unsuccessful. 

Attending paramedics pronounced him deceased. Almond stated he was shocked and 

surprised at the condition of the cell and extent of the violence, and the cell “had so much 

blood inside ... that it would be difficult to go in there without it actually being on your 

person.”

Almond testified that defendant looked unrecognizable because of the amount of 

blood he had on his body. He accompanied defendant to the medical clinic and stated 

that defendant continued to act belligerent there, cursing at the medical team.

Mansfield was also brought to the medical clinic. Almond observed that he did 

not seem responsive. Oliver also observed Mansfield at the medical clinic and believed 

he appeared to be deceased.

Forensic pathologist Dr. Robert Whitmore testified that he performed an autopsy 

of Mansfield. He determined his cause of death was strangulation with blunt force head 

trauma contributing. He stated that he observed second degree burns on his face, the 

right side of his body and upper extremity, and left hand, “consistent with hot liquid 

being applied.” He stated that he also observed “blunt force trauma to the head and some 

to the body.” He noticed a large contusion on his forehead, bruise on his nose, fractured 

nasal bone, bruises and cuts to his lips, abrasions, lacerations and bruising to his left eye, 

ruptured left eyeball, and leaking eye fluid. He testified that the ruptured eyeball would 
7.

have been caused by “significant” force and it would be unusual for such an injury to be 

caused by a fist or elbow.

He also noted petechiae, or “pinpoint hemorrhages,” in Mansfield’s right eye, 

which is frequently caused by strangulation, and saw hemorrhaging in his neck muscles, 

tongue muscle, pharynx and thyroid gland and that the thyroid cartilage had 

two fractures. He explained that for force applied to the neck to cause death, it must 

typically be sustained for three to five minutes and that a person being strangled by 

continuous pressure being applied to the neck would lose consciousness “fairly rapidly ... 

[m]aybe ten seconds,” and that, “if the pressure’s released, [the person will] wake back 

up.”

Defense

Several correctional officers and former cellmates of Mansfield testified about 

their past interactions with Mansfield. They described him as dangerous and violent and 

testified that he committed prior assaults on other inmates and had been found in 

possession of inmate manufactured weapons.

Defendant testified that he and Mansfield had been cellmates for approximately a 

month or month and a half and his requests to be moved out of Mansfield’s cell had been 

ignored multiple times. Defendant stated that although he and Mansfield had no prior 

altercations, he was scared of Mansfield because Mansfield presented himself to other 

inmates as a violent person.

Defendant testified that on the evening of the incident, he was brewing whiskey in 

their cell and he and Mansfield had been drinking a considerable amount of it since 

6:00 p.m. or 6:30 p.m. He testified Mansfield was “talking down” to him and about 30 to 

45 minutes after they started drinking, Mansfield suddenly attacked him, punching and 

choking him. Defendant stated he tried to get to the door, and fought back, fearing 

Mansfield would kill him. He stated Mansfield latched onto his neck and started choking 

him, causing him to fear he would die. He stated he threw Mansfield off his back, 
8.

causing Mansfield to fall into the batch of whiskey that was brewing. He testified that 

the fight lasted “nonstop” for hours, and that no one checked on their cell at 9:30 p.m. 

He stated that at some point, “[b]eing so tired and beat up,” he held Mansfield down to 

get him to stop fighting. He stated he strangled Mansfield but did not intend to kill 

Mansfield. He stated he resisted the officers and restraints because he was “a little 

inebriated,” “falling everywhere,” and “trying to protect himself” because the officers 

“were pushing a shield down on top of [him].” He testified that he sustained broken 

cartilage in his nose, scrapes on his elbows and knees, and lacerations in the incident, but 

suffered no burns or puncture wounds. He stated that both he and Mansfield suffered 

swollen hands caused by fighting each other.

DISCUSSION

Defendant contends the trial court abused its discretion in imposing the upper 

terms on counts 1 and 3 because it did not properly apply section 1170, subdivision (b). 

He argues the court erred in its application of section 1170, subdivision (b) by (1) finding 

no mitigating circumstances, thus failing to properly balance aggravating against 

mitigating circumstances; (2) relying on an aggravating circumstance not alleged or 

specifically found true in the court trial on the aggravating circumstances; and (3) failing 

to state separate reasons relating to the selection of the upper terms for counts 1 and 3. 

The People disagree. We conclude the court erred by relying on an aggravating 

circumstance not found true beyond a reasonable doubt in the separate bench trial on the 

aggravating circumstances, but any error was harmless. 

A. Background

The information alleged four circumstances in aggravation: (1) the crime involved 

great violence (rule 4.421(a)(1)); (2) the victim was particularly vulnerable

(rule 4.421(a)(3)); (3) defendant engaged in violent conduct indicating a serious danger to 

society (rule 4.421(b)(1)); and (4) defendant has prior convictions that are numerous or of 

increasing seriousness (rule 4.421(b)(2)).
9.

On July 15, 2022, after the jury trial on the charges concluded, a bench trial was 

held on the prior convictions and aggravating circumstances allegations. The trial court 

admitted as exhibits a certified copy of a defendant’s CLETS printout, or rap sheet 

(Exh. 12), and defendant’s 969b packet (Exh. 13). After considering the exhibits, the 

evidence presented at the jury trial, the probation report and the parties’ arguments, the 

court stated it found not true the alleged aggravating circumstance that the victim was 

particularly vulnerable (rule 4.421(a)(3)) but found true the remaining aggravating 

circumstances alleged: (1) that the crime involved great violence (rule 4.421(a)(1)); 

(2) that defendant engaged in violent conduct indicating a serious danger to society 

(rule 4.421(b)(1)); and (3) that defendant’s prior convictions are numerous or of 

increasing seriousness (rule 4.421(b)(2)).

On August 12, 2022, at sentencing, the court discussed whether the upper, middle, 

or low terms were appropriate for counts 1 and 3. It found no mitigating circumstances 

but found four aggravating circumstances justifying the imposition of the upper terms on 

counts 1 and 3. It stated, 

“In considering the probation officer’s report and presiding over the 

trial, the Court does have a grasp of the information presented to the jury as 

well as the information now presented to the Court. In considering the 

appropriate triad to select an indeterminate-term sentencing, the court is 

mindful of ... Rule 4.421 and recognizes the limitations the Court can 

utilize to justify an upper-term sentence. The Court says that because 

Count 3, as all counsel are aware, is a count that would result in a 

determinate-term sentence. 

“The circumstances in aggravation, likewise, can be utilized for the 

Court to consider an indeterminate-term sentencing as it relates to factors to 

determine whether to exercise discretion to strike or to impose sentencing 

for particular reasons. It does appear to the Court, based on an evaluation 

of the circumstances in mitigation and aggravation, that the Court will be 

guided by exercising its discretion when considering those factors. 

“For purposes of circumstances in mitigation, there simply aren’t 

any. For circumstances in aggravation, the Court does agree with the 
10.

recommendations by the Probation Department, recognizing that the Court 

did find in a separate trial that three circumstances in aggravation were 

proven by the People beyond a reasonable doubt. 

“One, 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. That is pursuant to [rule 4.421(a)(1)]. Two, 

pursuant to [rule 4.421(b)(1)], the defendant has engaged in violent conduct 

that indicates a serious danger to society as evidenced by his present 

conviction as well as prior convictions. Three, pursuant to 

[rule 4.421(b)(2)], the defendant’s prior convictions as an adult are 

numerous or of increasing seriousness. And four, the defendant’s prior 

performance on juvenile misdemeanor and felony probation as well as 

parole have been unsatisfactory and that he has failed to comply with terms 

and he has re-offended.”

The fourth aggravating circumstance cited by the trial court, that defendant’s prior 

performance on juvenile misdemeanor and felony probation and parole was

unsatisfactory, was not alleged in the information, nor found true at the earlier bench trial 

on the alleged circumstances in aggravation.

The trial court then imposed the upper terms on count 1 (§ 192; voluntary 

manslaughter) and count 3 (§ 69; attempt by threats or violence to deter a correctional 

officer from performing his duty).

B. Law

As amended by Senate Bill 567, effective January 1, 2022, section 1170, 

subdivision (b) states that “when a sentencing court chooses a term from a statutory triad, 

the chosen term shall not exceed the middle term, unless the facts supporting the 

aggravating circumstances are (1) established by the defendant’s stipulation to them, 

(2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or 

(3) based on prior convictions evidenced by a certified record of conviction.” (People v. 

Jones (2022) 79 Cal.App.5th 37, 44; § 1170, subd. (b).) 

Under amended section 1170, subdivision (b)(5), the trial court must “set forth on 

the record the facts and reasons for choosing the sentence imposed. The court may not 
11.

impose an upper term by using the fact of any enhancement upon which sentence is 

imposed under any provision of law.” (§ 1170, subd. (b)(5).)

We review the trial court’s imposition of the upper term for an abuse of discretion. 

(See People v. Sandoval (2007) 41 Cal.4th 825, 847.) A court abuses its discretion when 

its ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 

1198, 1226 (DeSantis).) In doing so, we are “guided by two fundamental precepts”: 

“First, ‘ “[t]he burden is on the party attacking the sentence to 

clearly show that the sentencing decision was irrational or arbitrary. 

[Citation.] In the absence of such a showing, the trial court is presumed to 

have acted to achieve legitimate sentencing objectives, and its discretionary 

determination to impose a particular sentence will not be set aside on 

review.” ’ [Citations.] Second, ‘ “a decision will not be reversed merely 

because reasonable people might disagree. ‘An appellate tribunal is neither 

authorized nor warranted in substituting its judgment for the judgment of 

the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that 

a trial court does not abuse its discretion unless its decision is so irrational 

or arbitrary that no reasonable person could agree with it.” (People v. 

Carmony (2004) 33 Cal.4th 367, 376–377 (Carmony).) 

C. Analysis

1. Mitigating Circumstances 

Defendant first contends that the trial court erred because it did not find true any 

mitigating circumstances. He argues the court ignored evidence of the following 

applicable mitigating factors under rule 4.423: (1) the victim was an initiator of, willing 

participant in, or aggressor or provoker of the incident (rule 4.423(a)(2)); (2) the crime 

was committed because of an unusual circumstance, such as great provocation, that is 

unlikely to recur (rule 4.423(a)(3)); (3) defendant participated in the crime under 

circumstances of coercion or duress, or the criminal conduct was partially excusable for 

some other reason not amounting to a defense (rule 4.423(a)(4)); and (4) defendant was 

intoxicated at the time of the offense (rule 4.423(b)(2)). Defendant further contends that 

the mitigating factors that the court should have found true should have outweighed the 
12.

court’s finding that the offense involved great cruelty under rule 4.421(a)(1). Here, the 

record shows the court clearly considered the totality of circumstances when finding there 

were no mitigating circumstances. Accordingly, its finding that the aggravating 

circumstances outweighed the lack of mitigating circumstances was not so arbitrary or 

irrational that no reasonable person could disagree with it such that it fell outside the 

bounds of reason. (See Carmony, supra, 33 Cal.4th at pp. 376–377; see also DeSantis, 

supra, 2 Cal.4th at p. 1226.) During the jury trial, defense counsel argued that the victim, 

Mansfield, was the aggressor, and that defendant had acted to defend himself. The jury 

and court also heard evidence about Mansfield’s violent history in prison before the 

incident at issue, and several inmates who knew Mansfield before the incident testified 

about his violent behavior and history of attacking other inmates. The jury found that 

defendant committed voluntary manslaughter.

During the hearing on the circumstances in aggravation, the trial court considered 

Mansfield’s role in the fight and Mansfield’s history of violence in declining to find that 

Mansfield was particularly vulnerable (rule 4.421, subd. (a)(3)). 

At sentencing, defense counsel again argued that Mansfield was the aggressor and 

that the court should find that defendant defended himself as a circumstance in 

mitigation. However, the trial court noted that Mansfield’s role in the incident was 

already taken into account by the jury’s finding of voluntary manslaughter on count 1, as 

the finding of voluntary manslaughter must have been based on either heat of passion or 

imperfect self-defense, and that the jury thus rejected the defense of perfect self-defense. 

Discussing defendant’s Romero5 motion and the sentencing triads, the court stated: 

“There is one thing that the jury certainly found, that the defendant 

was not guilty of murder, but he was guilty of voluntary manslaughter for 

either imperfect self-defense or in the heat of passion. It does appear to the 

Court, as an objective observer, that at some point this jury was provided 

5 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
13.

with guidance in determining whether the defendant completely or perfectly 

defended himself during the course of this action or whether he imperfectly 

defended himself. By virtue of the verdict, it is reasonable to infer that the 

defendant very well might have been defending himself but did so 

imperfectly by using excessive force under the circumstances.

“It is that excessive force that this Court considers strongly as it 

relates to the manner in which the defendant comported himself in 

exercising excessive force to kill another human being. As testified to by 

the pathologist, he testified that it would take approximately ten seconds of 

continuous pressure around the neck to render an individual unconscious. 

It would take another two minutes and 50 seconds, up to four minutes and 

50 seconds, for continued pressure along that neck area to kill someone or 

to strangle someone. Those are the circumstances that the Court is 

confronted with when determining ... whether—given the circumstances of 

the offense specifically, the defendant should be afforded an opportunity to 

be found outside the spirit of the Three Strikes Law. It does not appear to 

the Court, given the circumstances of the offense as presented before this 

jury, that the defendant should be afforded that right based on the excessive 

force utilized by the defendant to kill another human being. For those 

reasons alone, the Court would deny the Romero motion. 

“But I stated previously the Court must likewise consider the totality 

of the circumstances, which would also include the defendant’s criminal 

history. The Court has been presented with documentation during the court 

trial to prove beyond a reasonable doubt the prior convictions alleged. 

Court has also been provided with a probation officer’s report which 

outlines, albeit briefly, the defendant’s criminal history. When considering 

this information, the Court does recognize that the defendant has suffered 

one past juvenile adjudication, at least two misdemeanor convictions, 

nine felony convictions, five violations of probation. Of the nine felony 

convictions, five qualified as strike priors. 

“Given the information provided to the Court during the course of 

this motion, the Court now has a better understanding of the four strike 

priors accumulated in one case out of Tuolumne County in which they did 

derive from separate acts or involved separate victims to justify consecutive 

sentencing. That is significant for the Court because the Court views that 

particular case and those suffered convictions not as a single course of 

abhorrent behavior but rather a continuous course of conduct, certainly 

one that is disturbing, and that sets aside the prior convictions that 

ultimately arose in 2011. For those reasons it does not appear to the Court 
14.

that the defendant is outside the spirit of the Three Strikes Law, and on that 

basis the Romero motion is denied.”

It then stated, “For purposes of circumstances in mitigation, there simply aren’t 

any.”

The record reflects that the trial court considered whether the evidence supported 

the finding of any mitigating circumstances enumerated in rule 4.423. It was within the 

court’s discretion to find that, while defendant may have been defending himself, the 

excessive force defendant used did not justify finding Mansfield’s role of aggressor as a 

mitigating circumstance. 

Defendant further contends that “the court’s finding in aggravation: that the crime 

involved a high degree of cruelty, based on [Mansfield’s] injuries and the condition of the 

cell, did not adequately consider all the surrounding circumstances, especially in light of 

its belief that Mansfield was not a particularly vulnerable victim and had been the initial 

aggressor.” However, the record shows the trial court considered the evidence presented 

at trial in finding the aggravating circumstance of a “high degree of cruelty” was not 

outweighed by mitigating factors, as it stated it “consider[ed] strongly” the “excessive 

force [defendant used] to kill another human being,” based on the pathologist’s testimony 

that it would only have taken approximately 10 seconds of continuous pressure around 

Mansfield’s neck for defendant to render him unconscious, but would have taken another 

two minutes 50 seconds, up to four minutes 50 seconds, of pressure on Mansfield’s neck 

for defendant to kill Mansfield. Based on the record, the court’s finding that the offense 

involved a high degree of cruelty was within the court’s discretion and was neither so 

irrational nor arbitrary that no reasonable person could agree with it. 

Defendant also argues the evidence shows the fight was still ongoing when 

Almond came to the cell door. However, the record shows that when Almond arrived at 

the cell, he only saw defendant punching Mansfield and never saw Mansfield make any 

voluntary movement. Based on this testimony, the trial court could reasonably infer that 
15.

Mansfield was already incapacitated while defendant continued to punch him, supporting 

the court’s finding of “excessive force” or “great violence” and that any self-defense by 

defendant was imperfect self-defense. 

Accordingly, the record shows the trial court did not abuse its discretion in finding 

there were no mitigating circumstances, or in finding that the aggravating circumstances 

outweighed the lack of mitigating circumstances, as these findings were neither so 

irrational nor arbitrary that no reasonable person could disagree. (See Carmony, supra,

33 Cal.4th at pp. 376–377; see also DeSantis, supra, 2 Cal.4th at p. 1226.) 

2. Prior Performance on Probation (Rule 4.421(b)(5))

Defendant next argues that the trial court abused its discretion by using 

defendant’s prior performance on probation and parole (rule 4.421(b)(5)) as an 

aggravating circumstance supporting imposition of the upper terms for counts 1 and 3 at 

sentencing because that circumstance was not alleged or specifically found true in the 

separate bench trial on the aggravating circumstances, as required by section 1170, 

subdivision (b). Defendant contends “the parole performance factor [(rule 4.421(b)(5))]

does not fit within the exception for prior convictions contained in section 1170[, 

subdivision] (b)(3) which permits the court to consider ‘a certified record of conviction’ ” 

for defendant’s criminal history.

We agree the trial court erred in using the aggravating circumstance of defendant’s 

prior performance on probation and parole at sentencing to impose the upper terms on 

counts 1 and 3. However, we conclude any error was harmless because the court’s 

statement shows it is not reasonably probable that a result more favorable to defendant 

would have been reached in the absence of the error. 

At the bench trial on the aggravating and mitigating circumstances, the court 

found true three aggravating circumstances: (1) the crime involved great violence 

(rule 4.421(a)(1)); (2) defendant engaged in violent conduct indicating a serious danger to 
16.

society (rule 4.421(b)(1)); and (3) defendant has prior convictions that are numerous or of 

increasing seriousness (rule 4.421(b)(2)). A certified copy of defendant’s criminal 

history (a section 969b packet; exh. 13) and a CLETS printout (rap sheet; exh. 12) were 

admitted into evidence and considered by the court at the bifurcated trial.

At sentencing, after citing the three aggravating circumstances it found true at the 

earlier bench trial on the aggravating and mitigating circumstances, the court also cited a 

fourth aggravating circumstance, stating defendant’s “prior performance on juvenile 

misdemeanor and felony probation as well as parole have been unsatisfactory [in] that he 

has failed to comply with terms and he has re-offended.”

Rule 4.421(b)(5) lists “prior performance on probation ... or parole” as an 

aggravating circumstance. (Rule 4.421(b)(5).)

Amended section 1170, subdivision (b) permits imposition of an upper term based 

on a circumstance in aggravation where the facts underlying the circumstance 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).) 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).) 

Our court recently articulated a standard of review if a trial court fails to follow 

section 1170, subdivision (b) in People v. Dunn (2022) 81 Cal.App.5th 394, review 

granted October 12, 2022, S275655 (Dunn). Dunn establishes a three-question 

framework. First, we determine: “(1)(a) beyond a reasonable doubt whether the jury 

would have found one aggravating circumstance true beyond a reasonable doubt and 

(1)(b) whether there is a reasonable probability that the jury would have found any 

remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating 

circumstances relied upon by the trial court would have been proved to the respective 

standards, any error was harmless.” (Id. at pp. 409–410, fn. omitted.) If the answer to 
17.

question (1)(b) is no, then we determine “(2) whether there is a reasonable probability 

that the trial court would have imposed a sentence other than the upper term in light of 

the aggravating circumstances provable from the record as determined in the prior steps. 

If the answer [to question (2)] is no, the error was harmless. If the answer is yes, the 

reviewing court vacates the sentence and remands for resentencing ....” (Id. at p. 410.) 

Under the Dunn framework, the “reasonable probability” standard of People v. Watson 

(1956) 46 Cal.2d 818 (Watson) is incorporated into questions (1)(b) and (2).6(Dunn, at 

pp. 407, 409–410.) The test under Watson is whether, “ ‘after an examination of the 

entire cause, including the evidence,’ [the reviewing court] is of the ‘opinion’ that it is 

reasonably probable that a result more favorable to the appealing party would have been 

reached in the absence of the error.” (Watson, at p. 836.)

Here, the facts underlying three of the circumstances in aggravation cited by the 

trial court were found true by the court or contained in the certified records of conviction. 

However, the fourth circumstance in aggravation relied on by the court, that defendant’s 

prior performance on probation and parole was unsatisfactory (rule 4.421(b)(5)), was 

neither alleged in the information nor found true by the trial court at the hearing on 

aggravating circumstances. Nevertheless, the upper terms were imposed on counts 1 and 

3. The court’s imposition of the upper terms on counts 1 and 3 is thus not consistent with 

the requirements of section 1170, subdivision (b). Unless imposition of the upper term 

6 Our court has also articulated a second possible standard of review in People v. Falcon

(2023) 92 Cal.App.5th 911, review granted September 13, 2023, S281242. However, Falcon

expressly states its two-question standard applies to retroactive applications of Senate Bill 567. 

(Falcon, at pp. 921 [“We ... hold that upon retroactive application of Senate Bill 567 to upper 

term sentences imposed under [§ 1170], resentencing is unwarranted only if two requirements are 

met ....”], 951 [“In sum, whether resentencing of an upper term sentence is the appropriate 

remedy on retroactive application of amended section 1170[, subdivision] (b) involves 

two relevant questions.”].) Here, amended section 1170 was already in effect when defendant 

was sentenced. Accordingly, this case does not involve the retroactive application of Senate 

Bill 567, so Falcon is inapplicable.
18.

on counts 1 and 3 was harmless, the sentence on those counts must be vacated and the 

matter remanded to the trial court for resentencing in compliance with section 1170, 

subdivision (b). 

Accordingly, we must answer Dunn’s questions. 

We revisit the aggravating circumstances relied upon by the trial court. Here, as 

discussed above, there was no error as to the court’s findings on the first 

three aggravating circumstances found true at the bench trial on the circumstances in 

aggravation and mitigation because those circumstances meet the requirements of 

section 1170, subdivision (b)(2), that the trial court found the facts underlying those 

circumstances true beyond a reasonable doubt, or subdivision (b)(3), that the facts were 

proven by a certified record of defendant’s prior convictions. Accordingly, we need not 

determine beyond a reasonable doubt whether the jury would have found any one 

aggravating circumstance true beyond a reasonable doubt, as required by Dunn question 

1(a).7

We must next address Dunn question 1(b) to determine whether there is a 

reasonable probability that the trial court would not have found the remaining 

aggravating circumstance true beyond a reasonable doubt. Here, the court did not make a 

specific finding as to the facts underlying the fourth aggravating circumstance, 

defendant’s prior performance on probation and parole, that it cited at sentencing. 

Defendant contends that the court would not have found true the aggravating 

circumstance regarding defendant’s prior performance on probation or parole because it 

does not fit within the exception for prior convictions in section 1170, subdivision (b)(3), 

which permits a court to consider “a certified record of conviction,” and because the 

7 Because there was no error by the trial court in relying upon the first three aggravating 

circumstances, we need not apply the Chapman v. California (1967) 386 U.S. 18 harmless error 

standard to the remaining aggravating circumstance. We instead apply Watson, as the 

requirements of the Sixth Amendment have already been met. (See Dunn, supra, 81 Cal.App.5th 

at p. 410, fn. 14.) 
19.

criminal history recited in the probation report does not satisfy section 1170, 

subdivision (b)(3). The People argue that the circumstance fits within the exception for 

prior convictions contained in section 1170, subdivision (b)(3) for certified records of 

conviction.

Section 1170, subdivision (b)(3) permits a 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).) A probation 

report is not a certified record of conviction. (Dunn, supra, 81 Cal.App.5th at p. 403.) 

Here, the trial court noted at sentencing that defendant had “five violations of 

probation” and the record on appeal includes certified records of defendant’s prior 

convictions, which document defendant’s convictions for numerous offenses over the 

past 20 years, as well as prior prison sentences he served. The certified records also show 

more than five probation and parole violation allegations against defendant. However, 

the records do not reflect the basis or outcome of all the probation and parole violation 

allegations. Accordingly, we find that the fourth aggravating circumstance does not fall 

within section 1170, subdivision (b)(3), and we cannot conclude that the court would 

have reached the same conclusion on that circumstance without finding true beyond a 

reasonable doubt all of the facts underlying the aggravating circumstance of defendant’s 

prior performance on probation and parole.

As we answer Dunn question 1(b) in the negative, we must last determine the 

answer to Dunn question 2, whether there is a reasonable probability that the trial court 

would have imposed a sentence other than the upper term in light of the aggravating 

circumstances provable from the record as determined in the prior steps. If the answer is 

no, the error was harmless. As discussed above, the harmless error analysis to be applied 

in this case is the Watson standard, whether “it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the absence of the error.” 

(Watson, supra, 46 Cal.2d at p. 836.) 
20.

We conclude the error was harmless. At sentencing, as discussed above, the trial 

court explained its choice of the upper terms for counts 1 and 3, giving great weight to 

the excessive force used by defendant and his long history of convictions for violence 

showing he is a danger to society. It also noted there were no mitigating circumstances. 

A single aggravating circumstance is sufficient to impose an upper term sentence. 

(People v. Black (2007) 41 Cal.4th 799, 813.) The court was therefore permitted to 

impose the upper terms on counts 1 and 3 based on the first three aggravating 

circumstances it cited at sentencing. 

Given the trial court’s observations and findings on the record, we conclude that it 

is not reasonably probable that the court would have imposed a sentence lower than the 

upper terms for counts 1 and 3 had it only identified the first three aggravating 

circumstances. Therefore, any section 1170 error caused by its reliance at sentencing on 

defendant’s prior performance on probation and parole was harmless. (Dunn, supra, 81 

Cal.App.5th at pp. 409–410.)

3. Aggravating Circumstances Relating to Count 3

Defendant last contends that the trial court erred in applying section 1170, 

subdivision (b) by not making findings in aggravation that were related to the criminal 

conduct in count 3 (§§ 18, 69) under rule 4.421(a) because the offense in count 3 was 

based on a separate act involving separate victims from count 1 (§§ 192, 193). Defendant 

contends the “violent nature of the crime” aggravating circumstance (rule 4.421(a)(1))

found true relates only to count 1.

The “great violence” aggravating circumstance (rule 4.421(a)(1)) relates to only 

count 1 (voluntary manslaughter; §§ 192, 193), as the trial court explained it found that 

circumstance true “given the overall circumstances involving how ... Mansfield was 

found in the cell.” However, the other two aggravating circumstances found true by the 

court, “danger to society” (rule 4.421(b)(1)), and “prior convictions” (rule 4.421(b)(2)), 

both relate to defendant, rather than a specific count. 
21.

At sentencing, the trial court stated it gave great weight to the “excessive force” 

used by defendant in count 1, referring to the “great violence” aggravating circumstance. 

However, the court’s statement at sentencing makes clear that even though the “great 

violence,” relates only to count 1, it still found the remaining aggravating circumstances 

that relate to defendant, rather than a specific count, sufficient to justify the upper term on 

count 3. (See People v. Black, supra, 41 Cal.4th at p. 813 [A single aggravating 

circumstance is sufficient to impose an upper term sentence.].) When discussing the 

“danger to society” aggravating circumstance, the court noted, “the defendant has 

engaged in violent conduct that indicates a serious danger to society as evidenced by his 

present conviction as well as prior convictions.” It also extensively discussed the “prior 

convictions” aggravating circumstance, noting, “the Court must likewise consider the 

totality of the circumstances, which would also include the defendant’s criminal 

history.... Court has also been provided with a probation officer’s report which outlines 

... the defendant’s criminal history. When considering this information, the Court does 

recognize that the defendant has suffered one past juvenile adjudication, at least 

two misdemeanor convictions, nine felony convictions, five violations of probation. Of 

the nine felony convictions, five qualified as strike priors.”

“[I]t [is] not improper for the court to rely on the same facts to impose both upper 

terms.” (People v. Williams (1984) 157 Cal.App.3d 145, 156; see People v. Price (1984) 

151 Cal.App.3d 803, 812.) “Although preferred practice would have sentencing courts 

state reasons separately for each term imposed, for purposes of appellate review,” here, 

the court’s “incorporation by reference of its prefatory remarks sufficiently reveals its 

reasons for imposing two upper terms” on both counts 1 and 3. (Williams, at p. 156.) 

Accordingly, we conclude the trial court did not err by not stating separate reasons for its 

imposition of the upper terms on counts 1 and 3. 

We conclude the trial court did not err in applying section 1170, subdivision (b) by 

finding no mitigating circumstances or by not stating separate reasons for imposing the 
22.

upper terms on counts 1 and 3. Further, while the court did err in applying section 1170, 

subdivision (b) by relying on the aggravating circumstance of defendant’s prior 

performance on probation and parole (rule 4.421(b)(5)) because the facts underlying that 

circumstance were not found true by the court beyond a reasonable doubt or proven by a 

certified record of defendant’s convictions, we conclude the error was harmless. 

DISPOSITION

The trial court’s judgment is affirmed. 

HILL, P. J.

POOCHIGIAN, J.
MEEHAN, J., Concurring.

I agree with the majority’s affirmance of the trial court’s sentencing decision 

under Penal Code section 1170, subdivision (b),1 and, therefore, I concur in the 

disposition. In reaching that disposition, I also agree with the majority that the trial court 

relied on three valid aggravating factors, but erred in finding defendant’s prior 

performance on probation and parole was unsatisfactory.2 (Cal. Rules of Court, 

rule 4.421(b)(5).) However, I respectfully write separately because I would find the error 

harmless under a traditional application of Watson, as follows. (People v. Watson (1956) 

46 Cal.2d 818, 836 (Watson).)

The amendment to section 1170 by Senate Bill No. 567 (2021–2022 Reg. Sess.) 

had been in effect for more than seven months when defendant was sentenced. 

Therefore, this case does not involve retroactive application of the statute and there is no 

suggestion the trial court was otherwise unaware of the scope of its sentencing 

discretion.3 (People v. Gutierrez, supra, 58 Cal.4th at p. 1391; accord, People v. Salazar,

supra, 15 Cal.5th at p. 425; People v. Flores (2020) 9 Cal.5th 371, 431–432.) This case 

1 All further statutory references are to the Penal Code.

2 So far as it appears from the appellate record in this case, the trial court did not base its 

finding on this factor on a certified record pursuant to section 1170, subdivision (b)(3). I am not 

persuaded that this factor necessarily falls outside the scope of the statute’s prior conviction 

exception, and this case does not present the opportunity to consider that issue. (See People v. 

Towne (2008) 44 Cal.4th 63, 82–83; People v. Falcon (2023) 92 Cal.App.5th 911, 954–955 & 

fn. 13, review granted Sept. 13, 2023, S281242 (Falcon).) Therefore, I do not join the majority’s 

opinion to the extent it takes that position. (Maj. opn., pp. 16–18.)

3 The majority characterizes this court’s decision in Falcon as limited to the retroactive 

application of Senate Bill No. 567 (2021–2022 Reg. Sess.). (Maj. opn., p. 18, fn. 6.) In Falcon,

supra, 92 Cal.App.5th at pages 950–951, review granted, a panel of this court declined to follow 

the harmless error analysis articulated by a different panel of this court in People v. Dunn (2022) 

81 Cal.App.5th 394, review granted October 12, 2022, S275655, which was also a retroactive 

application case, and concluded that remand was required under Gutierrez, which provided the 

applicable standard for assessing error in the context of retroactive application of Senate Bill 

No. 567 (2021–2022 Reg. Sess.). (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, 

People v. Salazar (2023) 15 Cal.5th 416, 424–425.) Neither the analysis nor the concerns raised 

in Falcon are as limited as the majority suggests, however, and I do not join in that position.
2.

also does not involve an unauthorized sentence claim (Falcon, supra, 92 Cal.App.5th at 

pp. 942–943, review granted; see In re G.C. (2020) 8 Cal.5th 1119, 1130 [“an 

unauthorized sentence or one in excess of jurisdiction is a sentence that ‘could not 

lawfully be imposed under any circumstance in the particular case’ ”]), or a claim of 

structural error (People v. Sivongxxay (2017) 3 Cal.5th 151, 178–179 (Sivongxxay)).

“States are free to apply their own harmless error rules to errors of state law” 

(Sivongxxay, supra, 3 Cal.5th at p. 178), and, absent an error of the foregoing type or a 

federal constitutional error,4 we generally evaluate a claim of state statutory error under 

the Watson harmless error test (People v. Lewis (2021) 11 Cal.5th 952, 973, citing 

Watson, supra, 46 Cal.2d at p. 836; accord, Sivongxxay, supra, at pp. 178–179). Under 

Watson, “a defendant must demonstrate that it is ‘reasonably probable that a result more 

favorable to [the defendant] would have been reached in the absence of the error.’ ” 

(Sivongxxay, supra, at p. 178, quoting Watson, supra, at p. 836; accord, People v. Lewis,

supra, at p. 974).

In this instance, the trial court found four aggravating factors and no mitigating 

factors. Although the court erred in finding that defendant’s performance on probation 

and parole was unsatisfactory, three valid aggravating factors support the sentencing 

choice. Under the circumstances in this case, defendant fails to show a reasonable 

4 This case does not present the situation where there were no properly proven factors, but 

as observed in Falcon, “As the requirements under state law frame how the Sixth Amendment 

applies, and because amended section 1170[, subdivision ](b) now effectively incorporates 

Sixth Amendment principles, it is likely better to consider state law viability before moving to 

the constitutional analysis—this is particularly true if, as we have questioned, the lack of any

properly proven or established aggravating circumstances signals an unauthorized sentence under 

state law. If a circumstance is properly established under the amended law, it almost certainly 

satisfies Sixth Amendment principles. And, if there are no properly proven circumstances, and 

this constitutes an unauthorized sentence under state law, then there is no need to consider the 

constitutional question because resentencing would be required.” (Falcon, supra, 92 

Cal.App.5th at p. 952, fn. 12, review granted.)
3.

probability of a more favorable result had the trial court not erred in finding the 

fourth aggravating factor. (Watson, supra, 46 Cal.2d at p. 836.)5

Therefore, on these grounds, I concur with the majority’s disposition in this case.

MEEHAN, J.

5 This result will not always follow from evaluating an erroneous finding on an 

aggravating factor under Watson, as some cases may not involve any valid aggravating factors, 

may involve a mix of aggravating and mitigating factors, or may otherwise evade a 

determination by a reviewing court that there is no reasonable probability of a more favorable 

result had the error not occurred. As stated in Falcon, “The harmless error test under Watson has 

indeed been applied in cases where a sentencing court considered improper sentencing factors.” 

(Falcon, supra, 92 Cal.App.5th at p. 950, review granted, citing People v. Price (1991) 1 Cal.4th 

324, 492 & People v. Avalos (1984) 37 Cal.3d 216, 233.) However, “[e]ven this application of 

Watson in Avalos came with a caveat: because the pre-2007 [determinate sentencing law] 

contained a presumptive middle term sentence coupled with the requirement that aggravating 

circumstances must outweigh mitigating circumstances before imposition of the upper term was 

proper, reviewing courts were also required to reverse when it could not be determined whether 

the improper factor was determinative for the sentencing court in weighing the circumstances 

and imposing an upper term.” (Falcon, supra, at p. 950, fn. 11, italics added, citing Avalos,

supra, at p. 233.)