Filed 6/30/22 P. v. Fields 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MAURICE LAFAY FIELDS,

Defendant and Appellant.

F083476

(Super. Ct. No. F21900886)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Monica R. 

Diaz, Judge.

Allan E. Junker, 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, Michael A. Canzoneri and 

Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

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

Defendant Maurice Lafay Fields pled no contest pursuant to a plea agreement to 

infliction of corporal injury to a cohabitant in exchange for dismissal of other counts and 

enhancements. He was sentenced to the upper term of four years’ imprisonment, 

execution of the term was suspended, and the trial court granted defendant a term of 

probation. Defendant later violated probation and the suspended sentence was executed. 

On appeal, defendant contends that his sentence must be vacated and his case remanded 

for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate 

Bill 567) amendments to Penal Code section 1170, subdivision (b).1 The People 

disagree. We conclude that the sentence was not imposed in compliance with 

section 1170, subdivision (b) but the error was harmless.2

PROCEDURAL SUMMARY

On April 20, 2021, the Fresno County District Attorney filed an information, 

charging defendant with false imprisonment (§ 236; count 1), making criminal threats 

(§ 422; count 2), inflicting corporal injury to a cohabitant (§ 273.5, subd. (a); count 3), 

and human trafficking (§ 236.1, subd. (b); count 4). The complaint further alleged that 

defendant had suffered two prior strike convictions. (§§ 667, subds. (b)–(i), 1170.12, 

subds. (a)–(d).) 

On June 17, 2021, pursuant to a negotiated plea agreement, defendant pled no 

contest to count 3 of the information. In exchange for his no contest plea, the plea 

agreement provided a sentence that included no initial state prison and dismissal of the 

remaining counts and allegations. The plea agreement indicated that the trial court could 

1 All statutory references are to the Penal Code.

2 Throughout our discussion, we refer to section 1170, subdivision (b) “error.” 

However, we note that at the time the trial court sentenced defendant, it correctly applied 

the then-existing law. Accordingly, while we refer to section 1170, subdivision (b) 

“error,” we are mindful that the trial court complied with the applicable law at the time of 

sentencing.
3.

find a factual basis pursuant to “People v. West”

3 and the trial court confirmed that the 

parties “stipulate[d] ... the crime reports and[/]or the preliminary hearing transcript ... 

would [provide] a factual basis” for defendant’s plea. After defendant entered his no 

contest plea, the prosecutor dismissed the remaining counts and allegations “reserving the 

right to comment and with a Harvey[4] waiver.” Prior to the prosecutor’s comment, no 

mention was made of a Harvey waiver, defendant was not asked to waive Harvey 

protections, and the plea agreement was silent regarding a Harvey waiver. 

On July 16, 2021, the trial court sentenced defendant to four years’ imprisonment 

(the upper term) on count 3. The court then suspended execution of the sentence and 

granted defendant felony probation for a term of three years. 

On October 22, 2021, following a contested violation of probation hearing, the 

trial court concluded that defendant violated the terms of his probation. The trial court 

revoked defendant’s probation and imposed the previously suspended four-year term of 

imprisonment. 

On October 25, 2021, defendant filed a notice of appeal. 

FACTUAL SUMMARY

Because defendant’s plea was entered pursuant to People v. West, the trial court 

relied on the police reports in finding a factual basis. The probation officer summarized 

the facts of a police report in defendant’s case. 

3 People v. West (1970) 3 Cal.3d 595. A West plea is “ ‘a plea of nolo contendere, 

not admitting a factual basis for the plea,’ ” which “allows a defendant to plead guilty in 

order to take advantage of a plea bargain while still asserting his or her innocence.” 

(People v. Rauen (2011) 201 Cal.App.4th 421, 424.) 

4 People v. Harvey (1979) 25 Cal.3d 754. In Harvey, our Supreme Court held that a 

trail court may not consider evidence of any crime as to which charges were dismissed as 

an aggravating circumstance to support the upper term on any remaining count or counts. 

(Id. at p. 758.) “To avoid the Harvey restriction, prosecutors often ‘condition [] their plea

bargains upon the defendant agreeing that the sentencing court may consider the facts 

underlying the not-proved or dismissed counts when sentencing on the remainder’ ”—a 

so-called “Harvey waiver.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167.)
4.

Defendant was in a sexual relationship with the confidential victim (CV). On 

December 14, 2020, at approximately 3:08 a.m., Fresno police officers responded to a 

domestic disturbance call involving defendant and CV. CV told officers she had an 

active warrant and asked to be arrested. Officers removed CV from defendant and 

discovered that she had no active warrant. CV told officers that she was staying at a 

friend’s house when defendant told her to come outside and threatened to burn the house 

down if she would not comply. She exited the home. Defendant then struck her with a 

belt, grabbed her hair, and forced her to his vehicle. 

CV also told officers that on December 13, 2021, defendant struck her repeatedly 

on her left arm with his closed fist. When she fell to the ground, defendant “stomped” 

her right side approximately three times, causing her head to strike the ground and 

bruising to her left arm and her ribs. 

DISCUSSION

I. Senate Bill 567

Defendant contends that we must vacate the sentence and remand the matter 

because defendant did not admit, and the trial court did not find true, the facts underlying 

the circumstances in aggravation that the trial court relied upon in imposing the 

upper term. The People agree that Senate Bill 567 is retroactive to defendant but argue 

that the trial court’s imposition of the upper term was consistent with section 1170, 

subdivision (b) because the defendant “effectively stipulated to the aggravating factors 

invoked by the court in his case ...” by entering a Harvey waiver. Alternatively, the 

People argue that any error in imposition of the upper term is harmless because “a jury 

would inevitably find true beyond a reasonable doubt all the factors relied upon by the 

court below ...,” more than satisfying the standard for harmless error that “ ‘as long as a 

jury could have found a single aggravating circumstance true beyond a reasonable doubt, 

any error was harmless.’ ” The People are mistaken regarding the relevant standard for

harmless error. As we explain below, whether the jury would have found true beyond a 
5.

reasonable doubt the facts underlying at least one of the aggravating circumstances is not 

the relevant question in this context. Instead, to find that the error was harmless we 

would have to conclude (1)(a) beyond a reasonable doubt that the jury would have found 

beyond a reasonable doubt that the facts underlying at least one aggravating 

circumstances was true, and (1)(b) that there is no reasonable probability the jury would 

not have found the remaining circumstances true beyond a reasonable doubt, or (2) that 

there is no reasonable probability the trial court would have imposed a lesser term based 

on the aggravating circumstances that would have been provable to the jury beyond a 

reasonable doubt.5 

For the following reasons, we conclude the sentence does not comply with the 

requirements of section 1170, subdivision (b), but the error was harmless. 

A. Additional Background

The trial court appears to have only partially adopted the probation officer’s 

recommendation regarding the circumstances in aggravation and in mitigation. The 

probation officer recommended the following circumstances in aggravation relating to 

defendant (rather than to the offense):

“The defendant has engaged in violent conduct which indicates a 

serious danger to society.

“The defendant’s prior convictions as an adult or sustained petitions 

in juvenile delinquency proceedings are numerous or of increasing 

seriousness.

“The defendant has served a prior prison term.

“The defendant was on probation or parole when the crime was 

committed.

5

In order to reach the second step, the reviewing court must conclude beyond a 

reasonable doubt that the jury would have found at least one aggravating circumstance 

true beyond a reasonable doubt. Otherwise, the sentence violates the Sixth Amendment.
6.

“The defendant’s prior performance on probation or parole was 

unsatisfactory.

“The dismissed counts listed in the Information can be considered as 

factors in aggravation.” 

In mitigation, the probation officer recommended the trial court find “[t]he 

defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of

the criminal process.” 

The trial court explained its conclusion that the upper term was warranted as 

follows:

“The Court is selecting the aggravated term based upon the violent 

conduct that is indicated by the probation report and the serious danger to 

society which is indicated by that conduct, the number of prior convictions 

[defendant] has suffered, as well as the number of prior prison terms he has 

served, and the fact that [defendant’s] prior performance on parole or 

probation has been unsatisfactory.” 

The trial court did not mention that defendant was on parole or probation at the 

time the new offense was committed, that defendant had committed other offenses that 

were dismissed as part of the plea agreement, or that defendant voluntarily acknowledged 

his wrongdoing at an early stage. In light of the identified circumstances in aggravation 

found true by the trial court, it imposed the upper term on count 3. 

B. Compliance with Section 1170, subdivision (b)

From March 30, 2007, to January 1, 2022, California’s determinate sentencing law 

specified that “[w]hen a judgment of imprisonment [wa]s to be imposed and the statute 

specifie[d] three possible terms, the choice of the appropriate term ... rest[ed] within the 

sound discretion of the court.” (§ 1170, former subd. (b).) 

Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b). 

(Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he 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 
7.

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).) As an exception to the general rule, 

a trial court is permitted to rely upon a certified record of conviction to determine prior 

criminality for purposes of sentencing without submitting the prior conviction to a jury. 

(§ 1170, subd. (b)(3).)

As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to 

cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People 

v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under 

another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s 

sentence is not yet final on appeal. 

In this case, as to the first circumstance in aggravation found true by the trial 

court, that defendant had previously engaged in violent conduct which indicates a serious 

danger to society, no jury made a finding and defendant entered no stipulation. 

Defendant did not admit his prior strike convictions and the record does not demonstrate 

that any certified record of conviction was before the court. The same is true of the 

remaining circumstances in aggravation relied upon by the court—the number of 

defendant’s prior convictions and prison terms and defendant’s unsatisfactory 

performance on probation. None of those circumstances were found true by a jury 

beyond a reasonable doubt or admitted by defendant.

The People argue that defendant stipulated to his criminal history and agreed that 

his sentence would be considered only by the trial when he entered a Harvey waiver that 

“ ‘encompassed not only the entire factual background of the case, ... but also 

encompassed [defendant]’s criminal history ....’ ” The record does not support the 

People’s assertion. Nowhere in defendant’s plea agreement is the term “Harvey waiver” 

or a discussion of/requested waiver to permit the court’s consideration of the facts 

underlying dismissed counts (or the count to which defendant pled guilty). Neither was 
8.

the term “Harvey waiver” or the concept of a Harvey waiver explained to defendant on 

the record. The first mention of a Harvey waiver in the record before us occurred after 

defendant entered his no contest plea, when the People dismissed the other counts and 

allegations. Indeed, defendant declined to admit a factual basis and instead the parties 

stipulated that the trial court could find a factual basis pursuant to West. Entering a 

stipulation to the factual basis pursuant to West is incongruous with the People’s 

argument that defendant admitted “ ‘the entire factual background of the case’ ” and his 

entire “ ‘criminal history.’ ” 

Despite none of the aggravating circumstances having been proved in compliance 

with section 1170, subdivision (b)(2) or (b)(3), the upper term was nevertheless imposed 

on count 3. Imposition of the upper term on count 3 is not in compliance with 

section 1170, subdivision (b). Therefore, unless imposition of the upper term on count 3 

was harmless, the sentence must be vacated and the matter must be remanded to the trial 

court for resentencing in compliance with section 1170, subdivision (b).

C. Harmless Error

The People contend that any error is harmless because a jury would have found 

one of the aggravating factors relied on by the trial court true beyond a reasonable doubt. 

For that proposition, they rely on People v. Flores (2022) 75 Cal.App.5th 495 (Flores), 

which applied the harmless-beyond-a-reasonable-doubt standard of harmless error from 

Chapman v. California (1967) 386 U.S. 18 as adapted to the context of violations of the 

Sixth Amendment right to a jury trial on aggravating circumstances by People v. 

Sandoval (2007) 41 Cal.4th 825, 838–839 (Sandoval).6 (Flores, at pp. 500–501.) Flores 

6 Sandoval, as we explain in more detail below, considered the standard for 

harmless error in the context of Cunningham v. California (2007) 549 U.S. 270 

(Cunningham) error—where a sentence in excess of the statutory maximum sentence was 

imposed under California’s former determinate sentencing law without submitting the 

facts authorizing such a sentence to a jury.
9.

articulated the harmless error standard in the Senate Bill 567 error context as follows: 

“ ‘[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the 

beyond-a-reasonable-doubt standard, unquestionably would have found true at least a 

single aggravating circumstance had it been submitted to the jury,’ the error is harmless.” 

(Flores, at p. 500, italics added.) We respectfully disagree with the People and Flores

that Sandoval provides the appropriate standard for harmless error in this context. A 

reviewing court concluding beyond a reasonable doubt that the jury would have the facts 

underlying a single circumstance in aggravation true beyond a reasonable doubt is 

insufficient to conclude that any error under section 1170, subdivision (b) was harmless.

To explain our disagreement with Flores, we consider the origin of the harmless 

error standard it applied. In Cunningham, the Supreme Court held that California’s 

determinate sentencing law (as it existed from 1977 to 2007) violated the 

Sixth Amendment right to a jury trial because it permitted a trial judge to determine facts 

(other than a prior conviction) that would allow imposition of a sentence in excess of the 

statutory maximum.7 (Cunningham, supra, 549 U.S. at pp. 275–276.) As Cunningham

explained, the Supreme Court had long held that any fact that permitted imposition of a 

sentence beyond the statutory maximum had to be proved to a jury beyond a reasonable 

doubt. (Id. at p. 281.) Under the California determinate sentencing law, a statutory 

presumption existed that “ ‘[t]he middle term [would] be selected unless imposition of 

the upper or lower term [was] justified by circumstances in aggravation or mitigation.’ ” 

(Id. at p. 278.) Under the then-existing statutory scheme, those circumstances in 

aggravation or mitigation—and the underlying facts related to those circumstances—

were to be determined by the trial court, not the jury. (Ibid.) The Supreme Court 

therefore determined that the imposition of an upper term without having the facts 

7

In the Sixth Amendment context, the statutory maximum “ ‘is not the maximum 

sentence a judge may impose after finding additional facts, but the maximum he may 

impose without any additional findings.’ ” (Cunningham, 549 U.S. at p. 275.)
10.

underlying the aggravating circumstances proved to a jury beyond a reasonable doubt 

violated the Sixth Amendment. (Id. at p. 293.)

In Sandoval, our Supreme Court considered whether an upper-term sentence 

imposed pursuant to the pre-Cunningham determinate sentencing law—i.e., imposed 

based on judicial findings of fact on circumstances in aggravation—was harmless error 

under the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 837.) It explained that 

the trial court had relied upon multiple aggravating circumstances, none of which had 

been proved to a jury, admitted by the defendant, or based on the fact of a prior 

conviction. (Id. at pp. 837–838.) The upper-term sentence therefore violated the 

defendant’s Sixth Amendment rights under Cunningham. The Sandoval court then 

considered whether the violation was harmless. To that end, it articulated the following 

standard: “if a reviewing court concludes, beyond a reasonable doubt, that the jury, 

applying the beyond-a-reasonable-doubt standard, unquestionably would have found true 

at least a single aggravating circumstance had it been submitted to the jury, the 

Sixth Amendment error properly may be found harmless.” (Sandoval, at p. 839.) In the 

Sixth Amendment context, the issue was whether the “defendant [was] eligible for the 

upper term ...”; the trial court’s consideration of additional circumstances not proved to a 

jury was not a federal constitutional question. (Id. at p. 839.)

As noted, in Flores, the Court of Appeal for the First District, Division Three 

extended the standard for harmless error applied in the Sixth Amendment context in 

Sandoval to section 1170, subdivision (b)(2) error.8 (Flores, supra, 75 Cal.App.5th at 

pp. 500–501.) The Court of Appeal for the Fourth District, Division One disagreed with 

Flores on that point. (People v. Lopez (2022) 78 Cal.App.5th 459, 465–468, fn. 11 

(Lopez).)

8 The Flores court did not explain why it concluded that the harmless error test 

applied in Sandoval applies in this context.
11.

The court in Lopez agreed with Flores that section 1170, subdivision (b)(2) error is 

subject to a harmless error analysis: “where a sentencing factor must be found true by a 

jury beyond a reasonable doubt and the court fails to submit that factor to the jury, the 

error in the court’s reliance on that fact may be subject to harmless error review as to 

whether the lack of a finding by the jury was prejudicial.” (Lopez, supra, 78 Cal.App.5th 

at p. 465.) But Lopez disagreed with Flores on the correct standard for harmlessness. 

Instead of the Sandoval harmless error standard, the Lopez court applied the following 

two-part standard for harmlessness: First, “[i]n order to conclude that the trial court’s 

reliance on improper factors that were not found true by a jury[,] ... admitted by [the 

defendant, or based on certified records of conviction] was not prejudicial, [the reviewing 

court] would have to conclude beyond a reasonable doubt that a jury would have found 

true beyond a reasonable doubt every factor on which the court relied, because the 

amended statute requires that every factor on which a court intends to rely in imposing an 

upper term, with the exception of factors related to a defendant’s prior conviction(s), 

have been admitted by the defendant or proven to a jury (see § 1170, subd. (b)).” (Lopez, 

at pp. 465–466.) According to Lopez, if that conclusion is made, the defendant has 

suffered no prejudice. (Id. at p. 467 & fn. 11.) If not, the reviewing court “then 

consider[s] the second question, which is whether [it] can be certain, to the degree 

required by People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)], that the trial court 

would nevertheless have exercised its discretion to select the upper term if it had 

recognized that it could permissibly rely on only a single one of the aggravating factors, a 

few of the aggravating factors, or none of the aggravating factors, rather than all of the 

factors on which it previously relied. If the answer to both of these questions is ‘no,’ then 

it is clear that remand to the trial court for resentencing is necessary.” (Lopez, at p. 467, 

fn. 11.)

Lopez reasoned it is not enough that the reviewing court conclude that a trial court 

was permitted to impose the upper term because the jury would have found true a single 
12.

aggravating circumstance beyond a reasonable doubt; whether the trial court could have

imposed the upper term did not completely resolve the issue. (Lopez, supra, 78 

Cal.App.5th at p. 467.) Instead, when a reviewing court concludes beyond a reasonable 

doubt that a jury would have found true fewer than all the aggravating circumstances 

beyond a reasonable doubt, it must still ask whether it is reasonably probable the trial 

court “would have exercised its discretion” to impose a sentence less than the upper term 

in the absence of the unproved aggravating circumstance(s). (Ibid.) 

We agree with the Lopez court that a reviewing court finding beyond a reasonable 

doubt that the jury would have found a single aggravating circumstance true beyond a 

reasonable doubt is insufficient to conclude that the error was harmless. In other words, 

we disagree with Flores that Sandoval is applicable in this context. We further agree that 

the second step of the Lopez analysis—considering whether the trial court would have 

imposed a lesser term in absence of the aggravating circumstances not provable on the 

record before the reviewing court—is necessary. To find that section 1170, 

subdivision (b) error is harmless when fewer than all of the circumstances relied upon by 

the trial court could have been proved to the jury, we must determine whether the trial 

court would nevertheless have imposed the upper term based on the remaining 

aggravating circumstances. 

Despite our agreement with Lopez on the majority of the standard it articulated, we 

are unconvinced that the Chapman standard of harmless error—applicable to errors 

implicating federal constitutional rights—must be applied to all aggravating 

circumstances in the Lopez court’s first step. Lopez does not provide a clear explanation 

for why the Chapman standard for harmless error applies to all aggravating 

circumstances. Indeed, the only citation that the Lopez court provides for the proposition 

that Chapman applies to every circumstance is citation to section 1170, subdivision (b), 

itself. While Sandoval directs that at least one aggravating circumstance must be proved 

to the Chapman harmless error standard to satisfy the Sixth Amendment (i.e., for it to be 
13.

permissible for the trial court to impose the upper term consistent with the 

Sixth Amendment), ordinary errors of state law are subject to review pursuant to Watson, 

supra, 46 Cal.2d 818.9 (People v. Breverman (1998) 19 Cal.4th 142, 171 [when a state 

statutory right to a jury determination is violated, such error “is state law error alone, and 

thus subject, under article VI, section 13 of the California Constitution, to the Watson 

harmless error test”; “the state-created right to jury determination” does not implicate 

federal due process interests].) 

We note that the Chapman standard of harmless error is compelled when an 

element of an offense or a sentencing factor necessary to impose a sentence above the 

statutory maximum is not presented to the jury. (Washington v. Recuenco (2006) 548 

U.S. 212, 220 [firearm enhancement sentencing factor harmless error is decided pursuant 

to Chapman]; People v. French (2008) 43 Cal.4th 36, 52–53 [applying only Chapman 

where the trial court imposed the upper term based on one aggravating circumstance and 

that circumstance was not proved to the jury].) A fact that is necessary to impose a 

sentence above the statutory maximum must be proved to a jury beyond a reasonable 

doubt. However, as Sandoval has made clear, when multiple aggravating circumstances 

not proved to the jury are relied upon by a trial court in imposing the upper term, the 

reviewing court must only conclude beyond a reasonable doubt that one of those 

circumstances would have been found true by the jury beyond a reasonable doubt to 

avoid offending the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 839 [so long as 

a defendant is eligible for the upper term by virtue of facts that have been established 

9 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, supra, 46 Cal.2d at p. 836.) In this context, the 

question for the reviewing court would be whether there is a reasonable probability that 

the trial court would not have found the aggravating circumstance(s) true beyond a 

reasonable doubt.
14.

consistently with Sixth Amendment principles, the federal Constitution permits the trial 

court to rely upon any number of aggravating circumstances in exercising its discretion to 

select the appropriate term by balancing aggravating and mitigating circumstances, 

regardless of whether the facts underlying those circumstances have been found to be true 

by a jury].) Accordingly, one aggravating circumstance must be reviewed pursuant to 

Chapman, but the remaining aggravating circumstances involve only a state-created right 

to a jury trial that must be reviewed pursuant to Watson.

In sum, we think the correct standard for harmless error lies between the standards 

articulated in Flores and Lopez; Flores sets too low a standard for harmlessness and 

Lopez too high. We instead apply a version of the standard articulated in Lopez, modified 

to incorporate Watson in the first step: The reviewing court determines (1)(a) beyond a 

reasonable doubt whether the jury would have found one aggravating circumstance true 

beyond a reasonable doubt10 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 the aggravating circumstances would have been proved to the 

respective standards, any error was harmless. If not, we move to the second step of 

Lopez, (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. If the answer is yes, we vacate the sentence and remand for resentencing 

consistent with section 1170, subdivision (b). 

10 Alternatively, this step is satisfied, and no aggravating factor must be proved to 

the Chapman harmless error standard if the trial court found defendant’s numerous or 

increasingly serious prior convictions to be an aggravating circumstance based on a 

certified record of conviction, and/or defendant admitted the facts underlying any 

aggravating circumstance.
15.

With that standard in mind, we revisit the aggravating circumstances relied upon 

by the trial court. All the aggravating circumstances found true by the trial court were 

based on questions of historical fact provable from a certified record of convictions and 

court records. Defendant’s history of violent offenses, his numerous and increasingly 

serious criminal history, his prior prison terms, and his unsatisfactory performance on 

probation are all apparent from the probation officer’s report which relied upon “a local 

record check and ... Federal Bureau of Investigation, California Identification and 

Investigation Bureau[,] and California Department of Motor Vehicles” databases. That 

criminal history began in 1983 and includes a total of 29 criminal offenses 

(19 misdemeanor offenses and 10 felony offenses), including robbery and assault with 

force likely to cause great bodily injury; 23 revocations of parole; and one violation of 

postrelease community supervision. Moreover, defendant made no objection or 

correction to the trial court’s consideration of his criminal history and performance on 

parole/postrelease community supervision. At the sentencing hearing, defendant had an 

opportunity and incentive to challenge any aggravating circumstance identified by the 

probation officer that was not true. There is no logical reason that defendant would not 

have challenged the accuracy of those facts if not true. We therefore conclude beyond a 

reasonable doubt that the jury would have found true beyond a reasonable doubt that 

defendant had engaged in violent conduct as evidenced by his violent prior convictions. 

We further conclude that there is no reasonable probability11 that the jury would not have 

found true beyond a reasonable doubt that defendant had suffered numerous prior 

convictions, served numerous prior prison terms, and that his performance on 

parole/supervision was unsatisfactory in that he violated parole (resulting in parole 

11 We would reach the same conclusion if we applied the Chapman standard.
16.

revocations) 23 times.12 (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 

[three prior convictions are numerous].) 

In light of that record, because we conclude that the jury would have found true all 

the aggravating circumstances beyond a reasonable doubt, the error was harmless.

DISPOSITION

The judgment is affirmed.

12 We note that defendant’s criminal history did not need to be proved to a jury. The 

trial court could instead have relied upon a certified record of conviction for those 

offenses. (§ 1170, subd. (b)(3).)