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Filed 8/26/22 P. v. Turner CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

D efendant Kiante Dominique Turner ple a d ed 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 revers e 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 d efendant’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 1170.2 FACTUAL AND PROCE D URAL BACKGROUND
The first amended i nformation charg ed 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. (§ 1203.0 66 , subd. (a)(7) & (8)

. ) As part of a plea agreement,
d efendant plead ed no contest to count 2 and count 3 in exchange for the dismissal of count 1 and the specia l allegations with a Harvey 2 waiver. Defendant stipulated to the probation report as the factual basis for his plea. T hat report disclosed defendant sexually assaulted his wife’s two daughters over the course of a decade starting when they were approxima tely 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, as the stepfather of these children, committed dozens of assaults against the se girls over the prior decade. Defendant admitted his crimes to the

s heriff deputies who interviewed him. The probation report prepared for defendant’s sentencing hearing noted
de fendant’s prior convictions included a sustained juvenile petition for a n attempted

r obbery ( § § 664/

211) in 200 7 . 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 violat ed his probation in 2011

.

1 Undesignated statutory references are to the Penal Code.

2 People v. Harvey (197 9 ) 25 Cal. 3d 754

.3

At sentencing, the trial court f ound “ on balance the circumstances in aggravation outweigh the circumstances in mitigation, and the upper term is the appropriate term. ” In imposing sentence, t he court found the victims were particularly vulnerable , poin ting 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 indicate d a serious danger to soci ety ; 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 mature d ; 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
ad mitted wrongdoing at an early stage

. . . and he has expressed remorse.” The trial court
sentenced defenda nt to two consecutive upper term s of 16 years in state prison on each

count. Defendant timely appeal ed

. DISCUSSION

A. Senate Bill 567 Defendant argues the case should be remanded for resentencing due to the
enactment of Senate Bill 567 , which became effectiv e January 1, 2022 , and made changes affecting the trial court’s sentencing d eterminations 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 rel ied on the dismissed charges t o 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 enhancements4

when det ermining the appropriate disposition for the offense or offenses of which the
defendant stands convicted. ” ( People v

. Munoz (2007) 155 Cal.App.4 th 160, 167 ( Munoz ), citing People v

. Moser (1996) 50 Cal.App.4 th 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.” (For

mer § 1170, subd. (b).) T he California Rules of Court list s 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) ) am ended 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, an d 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 disc retion to impose the upper term in cases where the facts underlying the circumstances in aggravat ion 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 d ue 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.)5

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 do ubt .” ( 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 argue s the application of amended section 1170 in this ca se 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 argue s 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 su ch, 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 and6

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 allegation s or cases when granting probation, ordering restitution, or imposing sentence .” ( I talics 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 i ncluded 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 wit h A.F., wh ich 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 co nfirmed 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 e xplained 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 a7

jury trial and proof beyond a reasonable doubt on those facts.” ( Munoz , supra , 155 Cal.App

. 4th at p. 168

. )
In add ition to the facts that defendant admitted to , defendant pled to allegations of “continuous sexual abuse,” and “ unlawfully engag[ing] in three and more act s of

‘ substantial sexual conduct ’ ” on both minors. He also stipulated to facts which included
the a ge 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 defendan t 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 j ury 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. Harml ess 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 (2 018) 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.)8

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 aggravat ing 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 defe ndant’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, i n People v. Black , supra , 41 Cal.4th 799, the California Supreme Court held th at 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 incr easingly 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 u nsatisfactory 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.9

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 n ewly amended statute, we find the harmless error test in Watson , supra , 46 Cal.2d at p age 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 co urt] 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, start ing with whether there is a reasonable probability that the facts un derlying the improperly determined aggravating circumstances would have been established in a statutorily permissible manne r 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.)10

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 ) w as 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 t he 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
conclu de 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 circumstanc es ’ ” ].)11 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.