Filed 1/18/23 P. v. Duran CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC DURAN,

Defendant and Appellant.

 D080916

 (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 and Appellant.

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

Attorney General, Charles C. Ragland, A. Natasha Cortina, and Alan L. 

Amann, Deputy Attorneys 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, subds. 

(b)-(i), 1170.12). The court sentenced Duran to a total term of 10 years, 

consisting 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 rights during a Marsden2 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 brother, 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 reference 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 about 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.” Duran 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, “you really stabbed me.” Duran remained in a fighting stance 

and continued to jab the knife towards Villar’s and Ramirez’s face and 

stomach areas. 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 left 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 eight on a scale of ten. Paramedics arrived and 

treated a 45-millimeter laceration on the right side of Villar’s neck. Villar

3 At trial, the prosecution admitted into evidence 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 that 

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 asserted that he wielded 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, subd. (a)(1)) and a prior 

strike conviction (§§ 667, subds. (b)-(i), 1170.12). The People submitted into 

evidence a certified record of conviction that demonstrated 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 of 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 

sentencing, including allegations that (1) the crime involved great violence 

and a threat of great bodily harm, (2) Duran’s conduct posed a serious danger 
5

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 demonstrated 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 there 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.) This standard is deferential, 

and, as such, we must “review the whole record in the light most favorable to 

the judgment . . . .” (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 ‘accept 
6

logical inferences that the jury might 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 seriousness 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] beyond 

a reasonable doubt.” (Id. at p. 946.)

Although this was a close case, viewing 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 Villa and Ramirez because he believed they were 

talking about his 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 manner with which it was used also 

support an inference that Duran acted with the intent to kill. The jury found 
7

true an allegation that Duran’s weapon—a four-to-six-inch knife—was a 

dangerous or deadly weapon. This allegation necessarily included a finding 

that 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); CALCRIM 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. 

Thus, 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, Villa 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, his use of a dangerous weapon 

in a manner that caused such substantial bleeding supports an inference that 

Duran acted 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 prior 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 the 
8

court he had not been able to get ahold of his attorneys in the nine months 

since his arrest. Duran further 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 not 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 counsel also explained that 

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” had been presented to and 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 that 

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 does 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 

counsel’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 argues 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 prejudiced” 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 find 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 in 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 counsel 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, 696.) We review a trial 

court's decision not to discharge appointed counsel for abuse of discretion. 

(People v. Cole (2004) 33 Cal.4th 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 a
10

further inquiry into Duran’s complaints against his attorney. In Groce, the 

victim testified she received stitches at a hospital after she was assaulted by 

the defendant. (Groce, at p. 296.) During the trial, the defendant asserted

that the victim was never 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

denied 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 defendant 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 

trial court’s inquiry should not be to ascertain defense counsel’s reasons for 

not following the defendant’s requests, but, rather, to determine whether the 

attorney made a “knowledgeable election on the subject.” (Id. at p. 296.)

As a preliminary matter, we note it is unclear whether 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 conducted 
11

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 whether they had sought

pretrial mental health diversion under section 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, defense counsel proffered they had sought alternative resolutions 

in the case, including 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, did 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 considered

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, 886, fn. 3.)
12

Nor is there evidence in the record to support Duran’s contention that 

defense counsel failed to “challenge” his strike prior 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 pretrial mechanism 

defense counsel could have pursued to seek a dismissal of the prior strike 

conviction before the Marsden hearing. The trial court accurately explained 

that there were limited motions available to be filed at that stage of the 

criminal proceeding, 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 offer. 

In sum, the 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 adequate information from Duran and his counsel to exercise 

informed discretion, and the court did not abuse its discretion in denying 
13

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, section 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 doubt by a jury or the judge in a 

court trial. (§ 1170, subds. (b)(1)-(2).)

The parties correctly agree that amendments to section 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) 73

Cal.App.5th 1032, 1039 [Senate Bill 567 applies retroactively to nonfinal 
14

cases on direct appeal].) The parties disagree, however, as to whether 

remand is required in Duran’s case.5

The Attorney General contends remand is not required because the 

evidence established, beyond a reasonable doubt, that Duran sustained a 

prior criminal conviction.6 Because the trial court may consider prior 

convictions under section 1170, subdivision (b)(3), without submitting the 

matter to a jury, they 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, the Attorney General argues 

that, assuming a sentencing error did occur, any such error was 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 respondent’s brief, the 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. 11, and articulated a two-part standard in determining

harmlessness. 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. However, he contends that the remaining 

factors relied upon by the court were 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 section 1170.

In Lopez, supra, 78 Cal.App.5th at p. 466, fn. 10, this court concluded 

“the presence of a single valid aggravating factor is insufficient to permit a 

reviewing court to affirm a sentence imposed in violation of the revised

version of section 1170, subdivision (b).” Rather, sentencing errors under 

newly amended 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 the 
16

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, 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, supra, at

p. 467, fn. 11.) 

Our 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 determining 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 there 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 sentence 
17

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, the reviewing court vacates the 

sentence and remands for resentencing consistent with section 1170, 

subdivision (b).”7 (Dunn, at pp. 409–410.)

In Zabelle, the court established a similar two-part standard of 

harmlessness. (Zabelle, supra, 80 Cal.App.5th at pp. 1110–1113.) 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.” (Id. 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

aggravating 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 clarified 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 underlying 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 satisfy 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 the record 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 personally 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, along 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 the 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 certainty 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 factors, including Duran’s 

demonstration 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 not
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permissibly rely on most of the aggravating factors it considered—namely the 

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

as 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 provisions.” (§ 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 applies retroactively to Duran’s case because the 

case was 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, having 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. 
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DISPOSITION

The sentence is vacated and the matter is remanded to the trial court 

for resentencing. In all other respects, the judgment is affirmed.

O'ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.