Filed 1/18/23 P. v. Duran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. ERIC DURAN,
Defendant and Appellant. D0 80916

(Super. Ct. No. FVI20001761 )

APPEAL from a judgment of the Superior Court of San Bernardino County, John P. Vander Feer , Judge

. Judgment of conviction affirmed ; sentence vacated and remanded for resentencing.
Michael Allen , under appointment by the Court of Appeal, for Defendant an d Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, A. Natasha Cortina , and Alan L. Amann , Deputy Attorney s General, for Plaintiff and Respondent.2 INTRODUCTION A jury convicted Eric Duran of attempted murder (Pen. Code, 1 §§
664/187 , subd. (a); count 1 ) and assault with a deadly weapon (§ 245, subd. (a)(1) ; count 2 ). The jury found true an allegation that Duran used a deadly weapon during the commission of count 1 (§ 12022, subd. (b) (1))

. The jury found not true an allegation that count 1 was premeditated ( § 664, subd. (a))
and an allegation that Duran personally inflicted great bodily injury during the commission of counts 1 and 2 (§ 12022.7, subd. (a)). In a bifurcated trial,
the court found not true an allegation that Duran had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subd s

. (b)

- (i), 1170.12). The court sentenced Duran to a total term of 10 years , consist ing of the upper term of 9 years for count 1 , plus one year for the deadly weapon allegation. On appeal , Duran contends his conviction for attempted murder is not supported by substantial evidence. Duran further contends the trial court deprived him of his Sixth Amendment ri ghts during a Marsden 2 hearing by failing to inquire into aspects of defense counsel’s decisions. Finally, Duran contends remand for resentencing is warranted pursuant to Senate Bill No.
567 ( 2021

- 2022 Reg. Sess. ) (Senate Bill 567) and Assembly Bill No. 518 (2021

- 2022 Reg. Sess.) (Assembly Bill 518)

. We agree Duran is entitled to resentencing and remand for that purpose, but otherwise affirm the judgment.

1 All further unspecified statutory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118.3 FACTUAL AND PROCEDURAL BACKGROUND On February 20, 2020, Mario Villar , his br other, Eddie Ramirez, and
his sister

- in

- law, Anastacia Baca, stopped for gas at a gas station in
Victorville. Villar and Ramirez walked towards the entrance of the gas station and discussed Ramirez’s upcoming wedding. Villar told Ramirez “we’re going to get this , ” in referenc e to Ramirez’s wedding

- related activities.
Duran walked by Villar and Ramirez during their conversation and asked “Get what? What are you going to get?” According to Ramirez, it seemed as though Duran believed they were talking abo ut Duran’s girlfriend

or wife. Neither Villar or Ramirez had previously met Duran or his wife. Villar responded to Duran, “I’m having a conversation with my brother” and “we’re not talking to you.” Dura n stated, “You’re not going to get her. You’re

not going to take the mother.” Duran then approached Villar with a four

- to

- six

- inch knife , reached over Villar’s shoulder, and “ sliced ” Villar’s neck. 3 Villar started “freaking

out ” and said , “ y ou really stabbed m e

. ” Duran remained in a fighting stance and continued to jab the knife towards Villar ’s and Ramirez ’s face and
stomach area s

. Villa ran towards Duran , who got into his car and drove away with a female passenger

. As Duran’s drove away , Villar threw a squeegee at the car

. After Duran lef

t the scene, there was “blood all over, down [Villa’s] shirt, down to his neck area.” Villa was in “ a lot of pain ” and he estimated his pain was a seven or eigh t on a scale of ten. Paramedics arrived and
treated a 45

- millimeter laceration on the right si de of Villar’s neck. Villar

3 At trial, the prosecution admitted into eviden ce video surveillance of the incident as well as photographs of Villar’s injuries. We received these exhibits as part of the record on appeal and have reviewed them in deciding this appeal.4

then went to the emergency room where he received a shot and a bandage that stayed on his neck for around two days. The laceration left a small scar on Villar’s neck. Duran was arrested the following day and gave a postarrest statement that was admitted into evidence and played for the jury. Duran asserted t hat
Villar and Ramirez approached him at the gas station and said “we’re gonna take her home to your mother.” Duran believed the two men were talking
about his girlfriend and that they were going to attack him. Duran acknowledged that he put his knife to Villar’s neck, stating, “When I pulled my knife out, I put it to his neck and I guess he moved or whatever

. ” Duran
stated he did not intend to cut Duran and as serted that he w ielded the knife in order to protect himself. The jury found Duran guilty of counts 1 and 2, and, thereafter, the court conducted a bifurcated court trial on the issue of whether Duran suffered a prior serious felony conviction (§ 667, sub d. (a)(1)) and a prior strike conviction (§§ 667, subds. (b)

- (i), 1170.12). The People submitted into evidence a certified record of conviction that demonstrat ed Duran was convicted of robbery in 1997 in Maricopa County, Arizona

. The court
concluded that the elements of Duran’s robbery conviction from Arizona were not equivalent to the elements of robbery in California, and, therefore, found the allegations related Duran’s prior conviction to be not true

. At sentencing, the court imposed the upper term o f nine years on count
1 , and a consecutive one

- year term for the great bodily injury allegation. The court imposed a consecutive one
- year term on count 2 , but it stayed sentence under section 654. The court relied on four aggravating circumstances at

sen tencing, including allegations that (1) the crime involved great violence and a threat of great bodily harm, (2) Duran’s conduct posed a serious danger5

to society, (3) Duran sustained prior convictions that appeared to be increasing in seriousness, and (4) Duran served a prior prison term. In imposing an aggravated term , the court commented, “the factors in aggravation so greatly outweigh the factors in mitigation, that the [ c ] ourt finds the appropriate term to be the aggravated term

. . . . ”
Duran filed a timely notice of appeal. DISCUSSION
I. Sufficiency of Evidence of Attempted Murder Duran contends his conviction for attempted murder is not supported by substantial evidence because there was insufficient evidence of his intent
to kill. In support of his contention, Duran argues that Villar ’s and Ramirez’s behavior during the offense demonstrate d they did not subjectively believe
Duran acted with the intent to kill. He further argues the location of Villar’s injury

— Villar’s neck

— does not support a conclusion that Duran acted with
the intent to kill. Finally, Duran argues the weapon and limited force used during the offense do not support a conclusion Duran acted with the intent to
kill. We disagree with these contentions and conclude th ere is substantial evidence to support the judgment. In reviewing the sufficiency of the evidence to support a conviction, we
must determine “ ‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” ( People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) T his standard is deferential, and, as such, we must “re view the whole record in the light most favorable to the judg ment

. . . .” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept6

logical inferences that the jury mig ht have drawn from the circumstantial evidence.’ [Citation.] ” ( People v. Flores (2020) 9 Cal.5th 371, 411.) “To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]” ( People v. Canizales (2019) 7 Cal.5th 591, 602.) Because “[ d ] irect evidence of intent to kill is rare

. . . ordinarily the intent must be inferred from the statements and actions of the defendant and the circumstances surrounding
the crime. ” ( Ibid. ) Circumstances relevant to the determination of intent to
kill include the conduct of the defendant prior to the attack , the nature of the weapon used, the manner of the attack, and the serio usness of the injury

. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945

– 946.) In evaluating this evidence, “ our sole function is to determine if any rational trier of fact could have found the essential elements of the crime [of attempted murder] beyon d
a reasonable doubt. ” ( Id. at p. 946 .) Although this was a close case, v iewing the evidence in a light most favorable to the judgment, as we must, we conclude there was sufficient
evidence to support Duran’s conviction for attempted murder. Duran’s conduct prior to and during the attack support an inference he harbored the
intent to kill. The evidence showed that Duran engaged with Villa and Ramirez for the purpose of confrontation . In his postarrest statement, Duran
admitted he spoke to Vil la and Ramirez because he believed they were talking about hi s girlfriend. Ramirez and Villa also testified Duran mistakenly believed they were discussing Duran’s girlfriend or wife , which prompted the confrontation

. The nature of the weapon and the manne r with which it was used also support an inference that Duran acted with the intent to kill. The jury found7

true an allegation that Duran’s weapon

— a four

- to

- six

- inch knife

— was a dangerous or deadly weapon

. Th is allegation necessarily included a finding

t hat the knife was inherently deadly or dangerous , or used in such a way that
it was capable of causing and likely to cause death or great bodily injury. (§ 12022, subd. (b)( 1 ); C ALCRIM No. 3145.) Duran admitted he intentionally put this dangerous weapon to Villa ’s neck , a particularly vulnerable part of Villa’s body

. After Duran sliced Villa’s neck , he continued his attack by swinging the knife towards Villar ’s and Ramirez’s face and stomach areas.
Th us, contrary to his argument, Duran’s use of this dangerous weapon in a

manner that injured Villa’s neck is indicative of his deadly intent.
That Villa’s injury was ultimately not life

- threatening does not prove that Duran did not harbor the intent to kill

. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552 [ “ [t]he fact that [appellant’s attack] missed [the victim’s] heart and lungs was fortuitous rather than indicative of the absence of an intent to kill.” ] .) Following the slice to Villa’s neck, V illa bled onto his neck, hands, and shirt, and went to the hospital to receive treatment. While Duran claimed he did not intend to cut Villa, hi s use of a dangerous weapon
in a manner that caused such substantial bleeding supports an inference that
Duran a cted with the intent to kill. The trier of fact was free to reject Duran’s claim that he did not intend to cut Villa, and the totality of the evidence supports the conviction for attempted murder.
II. Denial of Marsden Motion
A. Background On October 14, 2020, seven months p rior to the start of his trial, Duran
made a Marsden motion to substitute his court

- appointed attorney

. The court conducted a formal Marsden hearing and sought input from Duran and
his attorney

. Duran complained about a lack of communication, telling the8

court he had not been able to get ahold of his attorneys in the nine months
since his arrest. Duran furthe r claimed that when he asked his attorney for a drug treatment program, his attorney would not talk to him about a program and told Duran, “we’re just going to go to trial.” Duran mentioned his strike prior conviction and asserted that his attorney had no t mentioned “striking [the] strike” even though the prior offense was 26 years old

. In response, defense counsel explained that although he had taken over Duran’s case from another attorney and therefore was newer to the case, he
had met with Duran multiple times. Defense c ounsel also explained th at Duran’s trial had been continued in order to accommodate requests by
Duran. Defense counsel proffered that Duran’s request for drug court and the defense’s “counteroffer” ha d been presented to an d rejected by the prosecution. After hearing from Duran and his attorney, the trial court found there was no irreconcilable difference between Duran and his counsel, or ineffective assistance of counsel, and denied Duran’s motion. The court confirmed th at Duran had previously requested drug court directly from the court and informed Duran he was ineligible for the program due to the nature of his charges. The court further explained to Duran that delays in his trial were due, in part, to issues related to the Covid

- 19 pandemic.
B. Discussion On appeal, Duran d oes not contend that he made a sufficient showing
in the trial court that he was entitled to substitute counsel. Rather, he contends the trial court failed to inquire into the adequacy of defense

co unsel’s representation. Specifically, Duran contends the trial court erred by not making an inquiry into defense counsel’s reasons for failing to: (1)9

move for pretrial diversion under section 1001.36; and (2) challenge Duran’s strike prior. Duran argue s the court’s failure to inquire into these matters constitutes an abuse of discretion because “[t]he court could not exercise informed discretion without making these basic inquiries.” Duran contends “it is impossible to determine that Duran was not prej udiced” by the court’s purported errors because, had counsel investigated and “eliminat[ed]” Duran’s strike prior, the prosecution would have likely offered Duran a more “attractive plea offer.” These contentions are not supported by the record and we fin d no error in the scope and sufficiency of the Marsden hearing. A defendant may request a change in appointed counsel under Marsden on the grounds the attorney is not providing adequate representation or the

“ ‘defendant and counsel have become embroiled i n such an irreconcilable conflict that ineffective representation is likely to result.’ [Citation.]” ( People
v. Memro (1995) 11 Cal.4th 786, 857.) “ ‘[A]t any time during criminal proceedings, if a defendant requests substitute counsel, the trial court is obligated, pursuant to [the] holding in Marsden , to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney. [Citations.]’ ” ( In re M.P. (2013) 217 Cal.App.4th 441,
456 .) “[S]ubstitute couns el should be appointed when, and only when

. . . the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of
counsel

. . . .” ( People v. Smith (1993) 6 Cal.4th 684, 69 6.) We review a trial court's decision not to discharge appointed counsel for abuse of discretion. ( People v. Cole (2004) 33 Cal. 4 th 1158, 1190.)
Duran cites to People v. Groce (1971) 18 Cal.App.3d 292 ( Groce ) , in support of his contention that the trial court had an obligation to conduct a10

further inquiry into Duran’s complaint s against his attorney. In Groce, t he
victim testified she received stitches at a hospital after she was assaulted by
the defendant

. ( Groce, at p. 296.) During the trial, t he defendant asserted
that the victim was n ever assaulted and complained to the court that his defense counsel didn’t “ want to bring up the doctor's report” that would have called into question the victim’s testimony

. ( Id. at p. 295.) The trial court
den ied the defendant’s motion for substitute counsel without making any inquiry of defense counsel, relying solely on its observations of defense counsel's performance during the trial

. ( Id. at pp. 295

– 296.)
The Groce court reversed on the ground that the d efendant had made allegations of “ specific important instances of alleged inadequacy of his representation, i.e., the existence or nonexistence of stab wounds and other pertinent evidence that could have been established by hospital records,” and that the trial court erred by failing to inquire “ into counsel's reason for not producing the physician or his hospital records.” ( Groce, supra, 18 Cal.App.3d at pp. 296

– 297 .) The court further explained that the purpose of

t rial court’s inquiry sho uld not be to ascertain defense counsel’s reasons for not following the defendant’s request s , but , rather , to determine whether the attorney made a “knowledgeable election on the subject.” ( Id. at p. 296.) As a preliminary matter, w e note it is unclear w hether our Supreme Court agrees that the duty to inquire described in Groce exists. (See People v.
Barnett (1998) 17 Cal.4th 1044 , 1095 [ observing that the duty to inquire
articulated in Groce has been called into question by at least one court].) But, assuming such a duty does exist, it was not violated in this case

. In Groce , the trial court made “absolutely no effort to inquire into defense counsel's alleged inadequacy” after the defendant made specific allegations relating to hospital records. ( Id

. at p. 1095.) By contrast, here, the trial court conducted11

a thorough inquiry during a formal Marsden hearing and appropriately sought input from both Duran and his attorney.
Duran contends that his comments during the Marsden hearing regarding drug treatment , which were general in nature, required the trial

court to specifically inquire from defense counsel wh ether they had sought pretrial mental health diversion under s ection 1001.36

. 4 Duran argues the
trial court could not determine whether defense counsel was constitutionally effective without this inquiry

. We disagree. In response to Duran’s comments expressing a desire for drug treatment, d efense counsel proffered they had sought alternative resolutions
in the case, incl uding drug court , but these requests had been denied by the prosecution. Duran’s comments about his drug use and desire for treatment, and defense counsel’s response, d id not suggest that Duran met the six requirements for section 1001.36 diversion

. Nor did his comments impose upon the trial court a duty to inquire whether defense counsel consider ed pursuing this program. The trial court was under no obligation to inquire from defense counsel what speculatively available programs were being sought simply because Duran stated he desired drug treatment.

4 To be eligible for mental health diversion under section 1001.36 , “[t]he defendant must make a prima facie showing on the following six eligibility requirements for diversion: (1) defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) defendant's mental disorder was a significant factor in committing the charged offense; (3) an opinion from a qualified mental health expert that defendant's symptoms would respond to mental health treatment; (4) defendant consents to diversion and waives the right to a speedy trial; (5) defendant agrees to comply with treatment as a condition of diversion; and (6) defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)

– (F) .)” ( People v. Qualkinbush (2022) 79 Cal.App.5th 879, 88 6, fn. 3 .)12

Nor is there evidence in the record to support Duran’s contention that defense counsel fail ed to “challenge” his strike p rior in such a way that required inquiry by the court

. Duran argues that, had defense counsel investigated and discovered favorable case law pertaining to his out

- of

- state prior strike conviction, “the serious felony prior and prior strike would have been dismissed.” However, Duran does not explain what pretr ial mechanism defense counsel could have pursued to seek a dismissal of the prior strike
conviction before the Marsden hearing

. T he trial court accurately explained that there were limited motions available to be filed at that stage of the criminal procee ding, which was, at that point, seven months prior to the start of trial. Notably, defense counsel did successfully challenge the strike prior, as evidenced by the contested trial in which the court found the allegation to
be not true. Duran’s comments regarding his strike prior were related to a purported lack of communication with his attorney, and the trial court adequately addressed this issue during the Marsden hearing. Duran submits pure speculation as to the offer the prosecution would have made had defense counsel presented favorable case law related to his strike prior conviction to the prosecution

. There is no evidence in the record regarding what offers had been made by the prosecution and whether the prior conviction factored in such an offe r. In sum , t h e trial court did not err by failing to make specific inquiries of defense counsel ’s tactical decisions relating to the pursuit of a particular
diversion program , or the legal sufficiency of the strike prior. The trial court acquired adequat e information from Duran and his counsel to exercise informed discretion , and the court did not abuse its discretion in denying13

Duran’s motion. Having found no error, we need not reach the question of prejudice.
III. Remand For Resentencing is Appropriate A. Senate Bill 567 At the time of Duran ’s sentencing, s ection 1170, former subdivision (b), left it to the sentencing court’s “sound discretion” to select the appropriate term within a sentencing triad that “best serves the interests of justice.” (§ 1170, former subd. (b)

. ) During the pendency of this appeal, the Legislature enacted Senate Bill 567 (Stats. 2021, ch. 731, § 1.3) , which mandates that a sentencing 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 such circumstances have either been stipulated to by the defendant or found true beyond a reasonable doub t by a jury or the judge in a
court trial. (§ 1170, subd s . (b)(1)

- (2).) The parties correctly agree that amendments to s ection 1170 made by Senate Bill 567 apply retroactively to Duran ’s case because the case was not final on appeal before the enactments became effective on January 1, 2022. ( In re Estrada (1965) 63 Cal.2d 740, 742 [when the Legislature lessens the penalty for a crime, an inference arises that it intended the lighter penalty to apply provided the judgment is not final ] ; People v. Flores (2022) 7 3 Cal.App.5th 1032 , 1039 [Senate Bill 567 applies retroactively to nonfi nal14

cases on direct appeal] .) T he parties disagree , however, as to whether remand is required in Dura n’s case

. 5 The Attorney General contends remand is not required because the
evidence established , beyond a reasonable doubt, th at Duran sustained a prio r criminal conviction

. 6 Because the trial court may consider prior
convictions under s ection 1170 , subdivision (b)( 3 ) , without submitting the

matter to a jury, the y contend the court did not err when it relied on this factor

. The Attorney General further argues there is no reasonable probability that Duran’s jury would have failed to find the remaining aggravating factors true, and, thus, Duran cannot demonstrate prejudice relating to his aggravated sentence. Finally, t he At torney General argues that, assuming a sentencing error did occur, any such error wa s harmless
because the trial court expressed its intent to impose the maximum sentence
and would not have sentenced Duran to anything less than the term it imposed.
Duran acknowledges his prior conviction for robbery was proved by a certified record of conviction in accordance with section 1170, subdivision

5 We requested that the parties submit supplemental briefing addressing the effect, if any, of People v. Lopez (2022) 78 Cal.App.5th 459 ( Lopez ) , People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct. 12, 2022, S275655, and People v. Zabelle (2022) 80 Cal.App.5th 1098, to the resentencing issue presented in this matter. We received letter briefs from the parties and have reviewed their arguments in deciding this appeal.

6 In the r espondent’s b rief, t he Attorney General relies on People v. Flores (2022) 75 Cal.App.5th 495 ( Flores ) , in support of their argument. However, this court disagreed with Flores in Lopez (2022) 78 Cal.App.5th at p. 466, fn. 1 1 , and articulated a two

- part stan dard in determining harmless ness

. Accordingly, we decline to apply the standard of harmlessness articulated in Flores and analyze the resentencing issue under the standards of harmlessness discussed further in this opinion.15

(b)(3). Thus, he does not dispute that the court permissibly relied on this factor in imposing his sentence. Howeve r, he contends that the remaining factors relied upon by the court w ere not proven to the requisite degree of certainty articulated in People v. Watson (1956) 46 Cal.2d 818

. He further

argues the record does not establish that the court would have imposed the same aggravated sentence had it relied solely on Duran’s prior conviction. We agree and conclude remand is required for resentencing in conformity
with recent amendments made to s ection 1170

. In Lopez , supra, 7 8 Cal.App.5th at p. 466, fn. 10
, this court conclude d “the presence of a single valid aggravating factor is insufficient to permit a reviewing court to affirm a sentence imposed in violation of t he revised version of section 1170, subdivision (b).” Rather, sentencing errors under newly a mended section 1170 are subject to a harmless error analysis. ( Lopez
, at p. 465.) “[W]here 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

. . . . ” ( Ibid .) Lopez established a two

- part standard in determining 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 the16

defendant or proven to a jury

. . . .” ( Lopez , supra, at pp. 465

– 466.) If every factor on which the trial court relied was proven beyond a reasonable doubt, the defendant has not suffered prejudice. ( Ibid .)
If every factor on which the trial court relied was not proven beyond a
reasonable doubt , 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, 8 36 [( 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, supra, at p. 467, fn. 11.) O ur sister courts in People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct. 12, 2022, S275655 ( Dunn ) , and People v. Zabelle (2022) 80 Cal.App.5th 1098 ( Zabelle ) , articulated similar, but slightly different , standards in dete rmining harmlessness. In Dunn , the court established the following two

- part test: “The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether th ere 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. If not, the reviewing court moves to the second step of Lopez , (2) whether there is a reasonable probability that the trial court would have imposed a sentence17

other than the upper term in light of the aggravating circumstances provabl e from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing consistent with section 1170, subdivision (b).” 7 ( Dunn, at pp. 4 09

– 410.)
In Zabelle, the court established a similar two

- part standard of
harmlessness. ( Zabelle, supra, 80 Cal.App.5th at pp. 11 10

– 1113.) Under the first part of the test, the reviewing court must : (1) identify one aggravating factor relied upon by the trial court that would have been found true by the jury beyond a reasonable doubt ; and (2) for the remaining factors , determine whether it is reasonably probable that a jury would have found the remaining aggravating factors true. ( Ibid .) The reviewing court “must then, with the aggravating facts that survive this review, consider whether it is reasonably probable that the trial court would have chosen a lesser sentence had it considered only these aggravating facts.” ( I d. at p. 1112.) Here, the Attorney General acknowledges the trial court did not rely solely on Duran’s prior criminal conviction in imposing an aggravated term. Specifically, they note that the trial court considered the following

ag gravating factors: (1) Duran’s crime involved great violence and threat of great bodily harm; (2) Duran’s conduct indicated he was a serious danger to society; (3) Duran’s prior conviction as an adult, and the fact his crimes were

7 The Dunn court further clarif ied that step (1)(a) is satisfied if the trial court, “ relied upon an aggravating circumstance that relied only upon the fact of defendant's prior convictions and a certified record of defendant's convictions was admitted, or defendant admitted the facts u nderlying an aggravating circumstance. ” ( Dunn, at p. 410, fn. 13.) In this case, the prosecution introduced a certified record of Duran’s prior conviction during the court trial on Duran’s prior strike and prior serious felony conviction , which would sat isfy step (1)(a) in the test articulated in Dunn

.18

increasing in seriousness ; and (4) Duran had served a prior prison term.
None of these factors were submitted to the jury or admitted by Duran, and , aside from the existence of the prior criminal conviction, these factors were
not proven beyond a reasonable doubt

. Nor does t he re cord reflect there is a reasonable probability that a jury would have found the remaining aggravating factors , aside from the prior criminal conviction, to be true. The jury found not true the allegations that count 1 was premeditated and that Duran person ally inflicted great bodily injury during the commission of his offenses. While substantial evidence may support Duran’s intent to kill, the record also demonstrates that the
altercation between Duran and Villa involved a single cut to Villa’s neck and
lasted only seconds. These facts, a long with the jury’s not true findings on the allegations, limit the probability the jury would have found true the aggravating factors relied upon by the trial court, including that Duran used great violence and a threat of great bodily injury , or posed a serious danger to society

. Accordingly, since at least some of the factors relied upon by the trial court were not proven as required by section 1170, subdivision (b), under the
standards articulated in Lopez , Dunn , or Zabelle , Duran’s sentence must be
vacated unless th e record reflects the trial would have imposed the same
sentence had it relied solely on permissible aggravating factors. We cannot conclude to the degree of cert ainty required under Watson that the trial court would have selected the upper term had it relied on the permissible aggravating factors available to the court

. The trial court acknowledged the presence of mitigating factor s , including Duran’s
demonstrati on of remorse and a recognition of the wrongfulness of his
actions. While the trial court found the circumstances in aggravation greatly outweighed the circumstances in mitigation , the trial court could not19

permissibly rely on most of the aggravating factors i t considered

— namely the degree of violence and threat of great bodily harm inflicted upon the victim,

a s well as Duran’s dangerousness to society. Consequently , we cannot conclude the error in this case was harmless and we remand for resentencing

. B. Assembly Bill 518 At the time of Duran’s sentencing, former section 654, subdivision (a) required that a defendant who committed an act punishable by two or more provisions of law be punished under the provision that provided for the longest possible term. ( § 654, former subd. (a) .) Effective January 1, 2022, Assembly Bill 518 (Stats. 2021, ch. 441, § 1) amended section 654 to permit an act or omission punishable under two or more provisions of law to “be punished under either of such provi sions.” (§ 654, subd. (a).) Accordingly, under amended section 654, a trial court has the discretion to punish a defendant under any of the offenses for which they were convicted. Assembly Bill 518 appl ie s retroactively to Duran’s case because the

case w as not final on appeal before the enactment became effective on January 1, 2022. ( People v. Sek (2022) 74 Cal.App.5th 657, 673 [Assembly
Bill 518 applies retroactively to nonfinal cases on direct appeal].) We disagree with the Attorney General’s contention that the record clearly
establishes remand would be futile because the trial court would have imposed the maximum sentence had it been aware of the full scope of its sentencing discretion. And, h aving already concluded we must vacate Duran’s sentence and remand for resentencing pursuant to Senate Bill 567 , the trial court may revisit all of its prior sentencing decisions, including
amendments to section 654 made by Assembly Bill 518. Accordingly, remand is also appropriate so the trial court may consider the ameliorative sentencing changes made pursuant to Assembly Bill 518.20 DISPOSITION
The sentence is vacate d and t he matter is remanded to the trial court for resentencing. In all other respects, t he judgment is affirmed

.

O'ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.