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Filed 8/26/22 P. v. Turner CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KIANTE DOMNIQUE TURNER,

Defendant and Appellant.

C094937

(Super. Ct. No. 21CF01072)

Defendant Kiante Dominique Turner pleaded no contest to two counts of 

continuous sexual abuse of minors, J.F. and A.F, and the trial court sentenced him to the 

upper term of 16 years on each count. Defendant contends Senate Bill No. 567 (2021-

2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) requires us to reverse and 

remand for resentencing. The People properly concede Senate Bill 567 is retroactive but 

argue the new law does not affect defendant’s sentence. We affirm defendant’s 

convictions but will remand the case for resentencing with directions that the trial court 

reconsider the upper term sentence in a manner consistent with section 1170.
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FACTUAL AND PROCEDURAL BACKGROUND

The first amended information charged defendant with oral copulation or sexual 

penetration of J.F., a child under 10 years old (Pen. Code, § 288.7, subd. (b);1 count 1), 

continuous sexual abuse of J.F. (§ 288.5; count 2), and continuous sexual abuse of A.F.

(§ 288.5; count 3). The amended information also alleged defendant engaged in 

substantial sexual conduct and committed the crimes on more than one victim during the 

same course of conduct. (§ 1203.066, subd. (a)(7) & (8).) As part of a plea agreement, 

defendant pleaded no contest to count 2 and count 3 in exchange for the dismissal of

count 1 and the special allegations with a Harvey2 waiver.

Defendant stipulated to the probation report as the factual basis for his plea. That 

report disclosed defendant sexually assaulted his wife’s two daughters over the course of 

a decade starting when they were approximately six years old and nine years old. The 

abuse continued until the mother discovered what defendant was doing. Because we will 

remand this matter for resentencing, we will not describe the nature of these sexual 

assaults other than to say defendant, asthe stepfather of these children, committed dozens 

of assaults against these girls over the prior decade. Defendant admitted his crimes to the 

sheriff deputies who interviewed him.

The probation report prepared for defendant’s sentencing hearing noted 

defendant’s prior convictions included a sustained juvenile petition for an attempted 

robbery (§§ 664/211) in 2007. It also showed three adult convictions between 2009 and 

2011. The first was a misdemeanor conviction for being a principal or accomplice to an 

unknown crime. (§ 31.) The second was for carrying a loaded firearm in public. 

(Former § 12031, subd. (a)(1).) The third was for a failure to appear. (§ 1320, subd. (b).) 

The report also noted defendant violated his probation in 2011.

1

 Undesignated statutory references are to the Penal Code.

2 People v. Harvey (1979) 25 Cal.3d 754.
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At sentencing, the trial court found “on balance the circumstances in aggravation 

outweigh the circumstances in mitigation, and the upper term is the appropriate term.” In 

imposing sentence, the court found the victims were particularly vulnerable, pointing out 

that A.F. was approximately nine years old, and J.F. approximately six years old at the 

time of the sexual assaults; defendant was in a position of authority as their stepfather; 

defendant engaged in conduct that indicated a serious danger to society; defendant 

engaged in substantial sexual conduct with both children; defendant “groomed” the 

children over a long period of time, escalating the abuse as the children matured; and 

defendant’s prior convictions as an adult and sustained petitions as a juvenile, were of an 

increasing seriousness in nature. The only factor in mitigation was that “defendant 

admitted wrongdoing at an early stage . . . and he has expressed remorse.” The trial court 

sentenced defendant to two consecutive upper terms of 16 years in state prison on each 

count.

Defendant timely appealed.

DISCUSSION

A. Senate Bill 567

Defendant argues the case should be remanded for resentencing due to the 

enactment of Senate Bill 567, which became effective January 1, 2022, and made 

changes affecting the trial court’s sentencing determinations for upper term sentences.

(Stats. 2021, ch. 731; Cal. Const., art. IV, § 8, subd. (c).) The Attorney General agrees 

Senate Bill 567 is retroactive but argues this change in the law does not benefit defendant 

because the plea agreement specifically included defendant’s waiver pursuant to People 

v. Harvey, supra, 25 Cal.3d 754, and the trial court properly relied on the dismissed 

charges to supply circumstances in aggravation and alternatively, any error in imposing 

the upper term was harmless beyond a reasonable doubt. “A Harvey waiver permits the 

sentencing court to consider the facts underlying dismissed counts and enhancements 
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when determining the appropriate disposition for the offense or offenses of which the 

defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167 

(Munoz), citing People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)

At the time the trial court sentenced defendant, former section 1170 provided 

when a judgment of imprisonment is to be imposed and a statute specifies three possible 

terms, “the choice of the appropriate term shall rest within the sound discretion of the 

court.” (Former § 1170, subd. (b).) The California Rules of Court lists various 

circumstances in aggravation and mitigation to inform this decision. (Cal. Rules of 

Court, rules 4.421, 4.423.) 

As relevant here, Senate Bill 567 (Stats. 2021, Ch. 731, §§ 1.3, 3(c)) amended

section 1170, subdivision (b) to state, the trial “court may impose a sentence exceeding 

the middle term only when there are circumstances in aggravation of the crime that 

justify the imposition of a term of imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the defendant, or have been 

found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”

(§ 1170, subd. (b)(2).) Further, “the court may consider the defendant’s prior convictions 

in determining sentencing based on a certified record of conviction without submitting 

the prior convictions to a jury.” (§ 1170, subd. (b)(3).) Thus, the Legislature created a 

rule limiting a trial court’s discretion to impose the upper term in cases where the facts 

underlying the circumstances in aggravation have not been proven beyond a reasonable 

doubt in a jury or court trial or otherwise stipulated by the defendant.

Because Senate Bill 567 is ameliorative due to its potential to bar some upper term 

sentences, we agree with the parties Senate Bill 567 applies retroactively to defendant’s 

case. (People v. Flores (2022) 75 Cal.App.5th 495, 500.)
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B. Defendant’s Harvey Waiver and Stipulation

The Attorney General argues defendant’s Harvey waiver constitutes a stipulation 

that the sentencing court could rely on facts of the dismissed count and special allegations 

that were not proven beyond a reasonable doubt. The Attorney General’s argument is

based on Munoz, supra, 155 Cal.App.4th 160, which involved a defendant’s 

relinquishment of his Sixth Amendment right to a jury trial and beyond a reasonable 

doubt finding, on the facts used to aggravate his sentence. (Munoz, at p. 168.) At the 

time Munoz was decided the United States Supreme Court had concluded “other than the 

fact of a prior conviction, any fact that increases the penalty for a crime beyond the 

statutory maximum must be tried to a jury and proved beyond a reasonable doubt.” (Id.

at p. 166, citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Blakely v. 

Washington (2004) 542 U.S. 296; & Cunningham v. California (2007) 549 U.S. 270.) 

The Attorney General argues the application of amended section 1170 in this case raises 

the same issue as in Munoz, and should be resolved the same way here because, like in 

Munoz, defendant made a plea bargain with a Harvey waiver.

In the alternative, the Attorney General argues the sentence should be affirmed 

based on the doctrine of harmless error.

We agree with the Attorney General that because defendant provided a Harvey

waiver, he in turn stipulated to some of the aggravating factors the trial court relied on in 

imposing the upper term sentence. In this regard we find Munoz helpful to our analysis. 

The court in Munoz found that all of the aggravating factors cited by the trial court 

were encompassed in defendant’s Harvey waiver, which permitted the trial court to 

consider the entire background of the case, the dismissed or stricken charges or 

allegations, and defendant’s criminal history when imposing sentence. As such, the

Munoz court held that the defendant effectively “ ‘stipulate[d] to the relevant facts’

necessary to impose the upper term, thereby waiving his right to have a jury trial and 
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proof beyond a reasonable doubt on those facts.” (Munoz, supra, 155 Cal.App.4th at 

p. 168.) 

Here defendant completed a written plea form. On the form the defendant 

initialed the box regarding a Harvey waiver which states as follows: “I stipulate the 

sentencing judge may consider my prior criminal history and the entire factual 

background of the case, including any unfiled, dismissed or stricken charges or 

allegations or cases when granting probation, ordering restitution, or imposing sentence.” 

(Italics added.) Defendant also signed the plea form under penalty of perjury and 

confirmed when questioned by the trial judge at the time he entered his plea, that he read 

and understood the form, and carefully reviewed it with his attorney.

Mindful that the particular Harvey waiver that defendant entered in this case 

included his agreement that the trial court could consider the entire background of the 

case, and defendant’s criminal history, we note that included within the probation report, 

to which defendant stipulated to support the facts of the case, was a recount of 

defendant’s statement to law enforcement in which defendant admitted to engaging in 

numerous sexual acts with J.F. during the time she was between the ages of six to 15

years old, and numerous sexual acts with A.F., which began when she was approximately 

nine years old.

Defendant also provided a statement to probation which was contained in the 

probation report. In his statement, defendant admitted committing the offenses detailed 

in the police report, and confirmed that his abuse of the children began when they were 

six and nine years old. Defendant also told probation that he “regrets taking advantage of 

his position as the victims’ stepfather and feels the victims have been impacted by the 

offenses.” He explained to probation that he felt the victims may have felt trapped as he 

had “ ‘control over their lives at the time.’ ”

Thus, like the defendant in Munoz, “defendant effectively ‘stipulate[d] to some of 

the relevant facts’ necessary to impose the upper term, thereby waiving his right to have a 
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jury trial and proof beyond a reasonable doubt on those facts.” (Munoz, supra,

155 Cal.App.4th at p. 168.)

In addition to the facts that defendant admitted to, defendant pled to allegations of 

“continuous sexual abuse,” and “unlawfully engag[ing] in three and more acts of 

‘substantial sexual conduct’ ” on both minors. He also stipulated to facts which included 

the age of the children, and his position of authority. 

However, the trial court also conducted its own factfinding in determining the 

defendant “groomed” the children and that the abuse “escalated as the children matured.” 

The court also found that defendant engaged in conduct that indicates a serious danger to 

society and that his prior convictions were of an increasing seriousness in nature. These 

factors were not stipulated to by defendant, proven through certified records of 

conviction, or proven to a jury beyond a reasonable doubt. (§ 1170, subd. (b).) As such, 

consideration of these factors by the trial court was improper under the newly amended 

statute. We thus examine whether the trial court’s error in this case was prejudicial to 

defendant.

C. Harmless Error Under Chapman v. California

Reviewing courts subject most trial court errors to harmless error review, either 

under the standard described in Chapman v. California (1967) 386 U.S. 18, or the 

standard described in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. 

Gonzalez (2018) 5 Cal.5th 186, 195-196; but see id. at p. 196 [errors that are structural in 

nature are not subject to harmless error analysis].) The Chapman standard covers errors 

involving “violations of the federal Constitution” and “requires reversal unless the error 

is harmless ‘beyond a reasonable doubt.’ [Citation.]” (Gonzalez, at pp. 195-196.) The 

Watson standard, in turn, covers errors involving violations of state law and requires 

reversal if “it is ‘ “reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.” ’ [Citations.]” (Id. at p. 195.) 
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In this case, at least one of the factors relied upon by the trial court, that defendant 

engaged in substantial sexual conduct with each victim, was proven when defendant 

waived his right to a jury trial and entered a no contest plea. Accordingly, we have no 

constitutional concerns with defendant’s upper term sentences. (See People v. Black

(2007) 41 Cal.4th 799, 812 [as long as a single aggravating circumstance that renders a 

defendant eligible for the upper term sentence has been established in accordance with 

the requirements of Apprendi and its progeny, any additional factfinding engaged in by 

the trial court in selecting the appropriate sentence among the three available options 

does not violate the defendant’s right to jury trial].) 

Likewise, we find the trial court’s reliance on defendant’s prior convictions also 

did not violate the rule announced in Apprendi. Not only did defendant stipulate that the 

trial court could consider his prior criminal history, in People v. Black, supra, 41 Cal.4th 

799, the California Supreme Court held that the exception recognized in Apprendi, supra,

530 U.S. 466, for prior convictions extends to the fact of a defendant’s prior prison term 

and the number and seriousness of them. “Under Cunningham, aggravating 

circumstances based on a defendant’s criminal history that render the defendant eligible 

for the upper term include a trial court’s finding that the defendant suffered a prior 

conviction (Black, supra, 41 Cal.4th at pp. 818-820); that the defendant suffered prior 

convictions that are numerous or increasingly serious (ibid.); that the defendant was on 

probation or parole at the time the offense was committed (People v. Towne (2008) 

44 Cal.4th 63, 80-81); and that the defendant performed unsatisfactorily while on 

probation or parole to the extent such unsatisfactory performance is established by the 

defendant’s record of prior convictions (id. at p. 82).” (People v. Scott (2015) 61 Cal.4th 

363, 405). Therefore, we do not find any constitutional error here.
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D. Harmless Error Under People v. Watson

Because we find statutory error in the trial court’s reliance on certain aggravating 

factors that were not admitted by defendant, proven through certified records of 

conviction, or found true beyond a reasonable doubt by a jury as required by the newly 

amended statute, we find the harmless error test in Watson, supra, 46 Cal.2d at page 836 

applies. (People v. Epps (2001) 25 Cal.4th 19, 29.) The test 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; see also Cal. 

Const., art. VI, § 13; People v. Price (1991) 1 Cal.4th 324, 492 [“When a trial court has 

given both proper and improper reasons for a sentence choice, a reviewing court will set 

aside the sentence only if it is reasonably probable that the trial court would have chosen 

a lesser sentence had it known that some of its reasons were improper”], superseded by 

statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-

1165.) 

This analysis requires a two-step process, starting with whether there is a 

reasonable probability that the facts underlying the improperly determined aggravating 

circumstances would have been established in a statutorily permissible manner and found 

true beyond a reasonable doubt if submitted to a jury, or court in a court trial. (Watson, 

supra, 46 Cal.2d at p. 836; § 1170, subd. (b)(2).) Then, excluding any factors we cannot 

conclude would have been found true in a permissible manner, we examine the entire 

cause to see whether it is reasonably probable that the trial court would have imposed a 

more favorable result, i.e., a more lenient sentence. (See People v. Price, supra,

1 Cal.4th at p. 492.) A reasonable probability of a more favorable result exists where the 

improper factor was determinative for the sentencing court or where the reviewing court 

cannot determine whether the improper factor was determinative. (People v. Avalos

(1984) 37 Cal.3d 216, 233.) 
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While defendant’s entry of a Harvey waiver included his agreement to allow the 

trial court to consider his prior criminal history, the factor relating to a qualitative 

assessment of his recidivism (i.e., the increasing seriousness) was not submitted to a jury. 

Nor were the factors that defendant “groomed” the children and represented a danger to 

society. These factors call for a particularly subjective assessment and it would constitute 

speculation on our behalf, as to whether a jury would assess the facts in the same manner 

as did the trial court. 

Excluding then, consideration of the above factors, we analyze whether there is a 

reasonable probability that defendant would have received a more lenient sentence based 

only on those factors we find were permissible for the trial court to rely on. The record 

does not clearly indicate that the trial court weighed these permissible factors more 

heavily than the factors it impermissibly considered. Stated differently, the record does 

not disclose that the trial court would have exercised its discretion to impose an upper 

term sentence based only on the permissible aggravating factors. Because we cannot 

conclude that the trial court would have selected an upper term sentence based only on 

these factors, we conclude that remand is necessary to allow the trial court to exercise its 

discretion consistent with the recent amendments to section 1170. (See People v. Buycks

(2018) 5 Cal.5th 857, 893 [“when 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’ ”].)
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DISPOSITION

Defendant’s convictions are affirmed. The matter is remanded for resentencing 

with directions that the trial court reconsider the upper term sentence in a manner 

consistent with section 1170.

 /s/

EARL, J.

I concur:

 /s/

KRAUSE, J.

I concur; as to parts B, C, and D, I concur in the result:

 /s/

MAURO, Acting P. J.