Filed 2/7/24 P. v. Tapia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, 

Plaintiff and Respondent,

v.

ALISHA NICOLE TAPIA,

Defendant and Appellant.

B325459

(Los Angeles County

Super. Ct. No.YA099077-03)

APPEAL from a judgment of the Superior Court of Los

Angeles County, Altus W. Hudson, Judge. Vacated and 

remanded with directions.

Olivia Meme, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Jason Tran and Shezad H. Thakor, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

In 2019, Alisha Tapia was convicted of first degree burglary 

(Pen. Code, § 459) and related minor offenses.1 In that 

proceeding she admitted she had suffered six prior convictions for 

residential burglary alleged under the Three Strikes law and 

section 667, subdivision (a). The trial court sentenced her to 

25 years to life in prison, plus two 5-year enhancement terms 

pursuant to section 667, subdivision (a).

Appellant appealed and we vacated the true findings on the 

prior conviction allegations and remanded for resentencing. The 

trial court resentenced appellant to the upper term of six years 

for the burglary conviction, doubled to 12 years pursuant to the 

Three Strikes law.2 Appellant now appeals the new sentence, 

contending the trial court erroneously imposed the upper term 

based on impermissible factors that were neither admitted by her 

nor found true by a jury or the court. She also contends, and 

respondent agrees, that the trial court erred in failing to stay the 

sentence for her conviction of possession of burglary tools

pursuant to section 654.

1 Undesignated statutory references are to the Penal Code. 

Appellant was also convicted of attempted first degree burglary 

(§§ 664/459), vandalism (§ 594, subd. (a)), and possession of 

burglary tools (§ 466).

2 The trial court stayed sentence on the attempted burglary 

conviction and imposed concurrent terms of three years for the

vandalism conviction and 180 days for possession of burglary 

tools.
3

The trial court identified two factors in support of the 

upper term sentence. We hold that one of the factors was 

improper and no evidence supports the second factor. We cannot 

find the error harmless and so vacate the sentence and remand 

for resentencing, with additional instructions to stay the sentence 

for possession of burglary tools.

BACKGROUND

In a bifurcated proceeding held three months after she was 

convicted of the offenses against her, appellant admitted she had 

suffered six prior convictions. On appeal, she contended these 

admissions were not voluntary and intelligent. We agreed and 

vacated the true findings related to those admissions. (People v.

Tapia (Sept. 5, 2021, B305572) [nonpub. opn.].)

After remand but before the resentencing hearing was held, 

Senate Bill No. 567 (2021–2022 Reg. Sess.) became effective. It

amended section 1170 to require a court to impose the middle 

term unless one or more aggravating factors were admitted by 

the defendant or found true beyond a reasonable doubt by a jury

or the court. (Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.)

At her August 18, 2022, resentencing hearing, appellant 

admitted only two prior convictions, both of which were strikes. 

The trial court dismissed appellant’s 2007 strike conviction and 

used the 2013 admitted strike conviction to double her sentence.

Effectively, then, the only issue for resentencing was 

whether to impose the middle or the upper term. The trial court 

chose the high term, because “Ms. Tapia is not a novice to the 

criminal justice system and certainly she has an obligation to not 

only the larger community but the victims at hand. For those 

reasons the court will sentence to the high term of 6 years times 

2 for 12 years.”
4

DISCUSSION

Tapia contends, and respondent agrees, that a trial court 

may only impose the upper term based on recognized aggravating 

factors. (See § 1170, subd. (b)(2); Cal. Rule of Court, rule 4.421.) 

Tapia contends that not being a “novice” or having an "obligation”

to the community and the victim are not recognized aggravating 

factors, and that the trial court failed to comply with the 

requirements of section 1170, subdivision (b)(2) which requires 

that facts underlying any aggravating factors must be “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.” 

Respondent counters that the trial court’s comments were 

referring to appellant’s criminal history, which is a recognized 

factor.

Preliminarily, respondent also contends that we need not 

consider the meaning of the trial court’s comments or its noncompliance with amended section 1170 because Tapia forfeited 

her claim by failing to raise it in the trial court. Tapia contends 

the claim is cognizable on appeal without an objection because 

her sentence is unauthorized. (See People v. Scott (1994) 

9 Cal.4th 331, 354.) We agree with her.

Turning to the merits of Tapia’s challenge, section 1170, 

subdivision (b)(2) provides: “The 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), italics added.) We agree with respondent that the
5

reference to not being a novice is clearly a reference to appellant’s 

criminal history, which is a recognized aggravating factor. (See 

Cal. Rules of Court, rule 4.421(b)(2) [“The defendant’s prior 

convictions as an adult or sustained petitions in juvenile 

delinquency proceedings are numerous or of increasing 

seriousness.”].)

However, the reference to “obligation” does not correspond 

to any recognized aggravating factor, and it is not clear what the 

trial court meant by this reference. We need not decide whether 

respondent is correct that the trial court’s reference to Tapia’s 

obligation is a reference to her criminal history. As we explain, 

we would reach the same result whether or not the “obligation”

comment was a reference to appellant’s criminal history or was 

an improper aggravating factor.

As the parties acknowledge, there is a split of authority 

concerning the correct standard of review for error in imposing 

the upper term, and the California Supreme Court has granted 

review to resolve this split. (People v. Lynch (May 27, 2022, 

C094174), review granted August 10, 2022, S274942.) Appellant 

urges us to follow the analysis set forth in People v. Lopez (2022) 

78 Cal.App.5th 459 (Lopez), while respondent contends we should 

follow the approach in People v. Dunn (2022) 81 Cal.App.5th 394, 

review granted October 12, 2022, S275655 (Dunn).

The difference between the two standards is not implicated 

in this appeal. Under Lopez, a reviewing court must determine 

whether “beyond a reasonable doubt . . . a jury would have found 

true beyond a reasonable doubt every factor on which the court

relied.” (Lopez, supra, 78 Cal.App.5th at p. 466.) Under Dunn, 

this standard must be met for only one aggravating factor, that 

is, the reviewing court must determine “beyond a reasonable 
6

doubt whether the jury would have found one aggravating 

circumstance true beyond a reasonable doubt.” (Dunn, supra,

81 Cal.App.5th at pp. 409–410, rev. granted.) The reviewing 

court would then apply a lower standard to any additional 

aggravating factors. (Id. at p. 410.) Since there is only one 

potentially proper aggravating factor in this case included in 

California Rules of Court, rule 4.421’s list of factors (Tapia’s prior 

criminal history), this lower standard does not come into play.3

Respondent contends a jury “unquestionably” would have 

found true the circumstance that appellant had numerous 

convictions, because appellant admitted two prior convictions 

before being resentenced and the record shows she had five 

additional burglary convictions. To the extent that respondent 

contends the two admitted convictions are “numerous” within the 

meaning of California Rules of Court, rule 4.421(b)(2), respondent 

has not cited nor are we aware of any published authority so 

holding. At least one case has stated that two convictions are not 

“numerous.” (People v. Berry (1981) 117 Cal.App.3d 184, 191.) 

Three would appear to be the bare minimum. (See People v. 

Black (2007) 41 Cal.4th 799, 818, citing with approval People v. 

3 As we explain below, it is not clear beyond a reasonable 

doubt that the jury would have found the only proper aggravating 

factor true. Taking the trial court’s reference to “obligation”

literally, a defendant’s obligation to the victim or community is 

not a recognized aggravating factor. Thus, even if we were to 

determine that the jury would have found an “obligation” factor 

allegation true (under wither the Dunn or Lopez standard), we 

would still have to vacate appellant’s sentence, because there 

would be no true finding on a recognized aggravating factor.
7

Searle (1989) 213 Cal.App.3d 1091, 1098 [three convictions are 

“numerous”].)

As for the additional, unadmitted convictions, the record to 

which respondent refers is the probation report and our prior 

appellate opinion. While the probation report is part of the 

record of conviction, it is not a certified record of conviction 

within the meaning of section 1170, subdivision (b)(3). (See 

People v. Zabelle (2022) 80 Cal.App.5th 1098, 1114.)

As for our prior opinion, we do not view it as establishing 

that a jury would “unquestionably” have found true an allegation 

that Tapia had numerous prior convictions. In the portion of the 

opinion cited by respondent, we found that appellant admitted six 

convictions in a bifurcated proceeding. Later in the opinion, we 

found the admissions were not voluntary and intelligent and 

vacated the true findings based on those admissions. We do not 

see how our opinion assists respondent in any way.

As to the other four alleged but not admitted convictions, 

the record on appeal shows that on remand for resentencing, the 

prosecutor referred to appellant’s prior convictions but did not 

offer certified records of the prior convictions (or any other proof). 

This certainly raises a doubt as to whether such evidence exists, 

given that the resentencing hearing took place after the effective 

date of the relevant amendments to section 1170 which requires 

proof of prior convictions. Without more, we cannot say a jury 

would have found true the aggravating circumstance of numerous 

convictions beyond a reasonable doubt.

Tapia’s second contention is that the trial court should 

have stayed the sentence for possession of burglary tools instead 

of running it concurrent with the sentence on the burglary 

conviction. Respondent agrees, as do we. (People v. Correa
8

(2012) 54 Cal.4th 331, 337; People v. Alford (2010)

180 Cal.App.4th 1463, 1472–1473.)

DISPOSITION

We vacate appellant’s sentence and remand for a new 

sentencing hearing. Appellant’s sentence for possession of 

burglary tools must be stayed pursuant to section 654 as part of 

her new sentence.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

WILEY, J.