California Cases June 07, 2022: People v. Greg Eugene Carter

Case Description

1

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. C1649796

BAMATTRE-MANOUKIAN, J.

I. INTRODUCTION

Defendant Greg Eugene Carter was convicted by jury of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and was sentenced to the upper term of four years in prison. On appeal, defendant contends that the trial court committed prejudicial error by instructing the jury that a knife may be an inherently deadly weapon. He also argues that his conviction must be reversed because the prosecutor committed misconduct in rebuttal argument and violated his constitutional rights to counsel and due process. Lastly, defendant contends that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which amended Penal Code section 1170, subdivision (b) (section 1170(b)) effective January 1, 2022, to make the middle term the presumptive

2

sentence unless certain circumstances exist, applies retroactively to him and requires remand for resentencing.

For reasons that we will explain, we will remand the matter for resentencing under amended section 1170(b).

II. BACKGROUND

Defendant was charged by information with attempted premeditated murder (§§ 664, subd. (a), 187; count 1) and assault with a deadly weapon, a knife (§ 245, subd. (a)(1); count 2). The information also alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the attempted murder (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury under circumstances involving domestic violence in the commission of both the attempted murder and the assault (§ 12022.7, subd. (e)).

A. The Trial

1. The prosecution's case

The victim testified that defendant was her boyfriend. They met in August 2015, and began dating a month later. They broke up after Thanksgiving for about a month. The victim did not verbally end the relationship. They had an argument, and she simply stopped responding to his text messages.

When they got back together, defendant told the victim, "If you leave me, I'll kill you." At the time, they were in his car, and he showed her the glove compartment which contained "a lot" of black "plastic" gloves. Defendant stated, "I will use this to kill you," in reference to the black gloves. He also put his hands around her neck. The victim responded that if he killed her, he would be arrested and go to jail. Defendant told her, "I will not be arrested. I will make the police kill me." The victim was "a little" scared but did not take his threats seriously at the time. During the course of their relationship,

3

he grabbed her neck twice, and he verbally threatened her approximately seven times. Defendant knew the victim's work schedule and threatened that he would kill her at work.

The victim lived with her two sons. The victim's oldest son testified that the victim had told him at least once that defendant had threatened to kill her.

The victim testified that she only saw defendant once or twice a week because she worked long hours as a certified nursing assistant. Defendant knew her work schedule. At times, he got upset because he felt like she wasn't spending enough time with him. Defendant was also suspicious about her having relationships with other people.

The pair discussed marriage before the breakup and after they reconciled. Before the breakup, the victim was happy to get married. When the topic of marriage came up after they reconciled, she would tell him, "Let's pray on it, let's pray." This made defendant mad.

In October 2016, the victim and defendant had an argument and did not communicate over the next 10 days. Although it was not normal for them to go so long without communicating, the victim did not think the relationship had ended. During the time period when they were not communicating, the victim saw defendant's car at her workplace. He had not called or texted her, so she went into her workplace.

On the morning of October 28, 2016, the victim exited her ground-floor Campbell apartment at 6:20 a.m. to go to work. The victim had a designated parking spot at the apartment complex. As she approached her car, she turned her head and saw defendant, who was very close to her.

Defendant was wearing black pants, a black jacket with a hood, and black gloves. He was also holding up a knife in his right hand. It looked like a kitchen knife that would be used to cut onions. The knife was "sparkling" and looked new.

The victim saw the knife blade near her, so she screamed and put up her left hand by her neck to cover herself. The blade "hit" the back of her left hand. The victim

4

continued to scream and tried to escape. Defendant tried to cover her mouth. As the pair struggled, the victim repeatedly asked, "Why are you doing this?" Defendant responded, "I told you if you leave me, I would kill you." As the victim tried to fight off defendant, her jacket was ripped, and the palm of her hand was scratched. She was scared and thought she was going to die.

When the victim screamed, she heard other people ask, "Who is there?" As the voices got closer, the victim started backing away from defendant, and defendant ran off.

The victim's upstairs neighbor testified that he was awake inside his apartment when he heard screaming. He went outside and saw the victim, who had a bloody hand and was screaming and crying. The neighbor asked what happened, and the victim stated that defendant "hit" her with a knife. The victim then realized that she was bleeding. The neighbor asked her to come upstairs and gave her ice and a towel. The victim eventually went downstairs to her own apartment while the neighbor or his son called 911. The police arrived and observed a trail of blood from the victim's car to the upstairs neighbor's apartment.

The victim suffered a cut on her left hand that required nine stitches. The cut was approximately five centimeters long and one millimeter deep. Medical records regarding her follow-up treatment four days later indicated that the" 'laceration [was] healing well, '" that she" 'denied numbness or tingling, '" and that her "pain score" was "zero." Her medical records also indicated that she had a laceration on the right hand, but she had not received any treatment for it. At the time of trial, the victim had a scar on her hand from the cut and felt numbness in the left hand. She never reported the numbness to a doctor. At trial, the victim denied self-inflicting the injuries to both hands.

The emergency room doctor who treated the victim, and who testified as an expert in the field of emergency room medicine and human anatomy, testified that generally

5

lacerations to the neck can be life-threatening. In some people, the external jugular vein is just under the surface of the skin and, if cut, could be life threatening.

Defendant had requested time off from work on October 28, 2016. His written time off request listed the reason as "D APT."

The police located defendant in San Jose around 5:00 p.m. on the same day as the attack. He was getting out of his parked car. Defendant was taken into custody without any resistance. There was no blood on him, but he had a small cut on one of his fingers.

Defendant's vehicle was searched. In the front passenger footwell area was a stun gun and a black jacket, which had a cut in it. In a drawer under the front passenger seat was a pair of handcuffs. In the rear footwell behind the driver's seat, the police located a knife in a box. The box had the words "New Galaxy Kitchen Knife" on it. In the right rear footwell, under the floor mat, was a second knife.

At trial, the victim recognized the Galaxy knife as the knife used in the attack. The blade on the knife was five inches, and the handle was five and one-half inches. The Galaxy knife had general discoloration, and there were fibers or material on the blade.

A county criminalist conducted presumptive testing on both the Galaxy knife and the second knife found in defendant's vehicle. No positive presumptive for the presence of blood was found on either knife. The criminalist noted the testing did not mean, however, that the knives did not touch blood, as wiping a knife with even a paper towel can "defeat" a presumptive test for blood.

The police also searched a second vehicle belonging to defendant that was located at a storage facility. Latex gloves were found in the glovebox of the vehicle. There was also a screwdriver on the front floorboard.

2. The defense case

Defendant testified that he met the victim in September 2015. He estimated that they broke up at least five or six times. During those times, he knew they had broken up because the victim would not respond to his texts or calls. It made him feel sad and mad.

6

The victim reinitiated contact each time by calling him. The pair eventually discussed getting married, and by October 2016, defendant had started making payments on an engagement ring. Defendant, however, was upset that the victim was not spending time with him and that she was not sending enough messages to him even though he could see she was on Facebook.

In October 2016, defendant and the victim had an argument, and they did not talk for a period of time. Defendant admitted that he went to the victim's workplace. She saw him but did not talk to him, so he just left. Over the next few days, defendant did not know the status of the relationship, and he felt hurt.

Defendant testified that on the day before the incident, he had requested October 28, 2016 off from work because he had to "take care of" his expired license and registration. He testified that he "probably" told his employer that he had a doctor's appointment although he did not have such an appointment. He also testified that he told his employer that he was going to the DMV. At trial, defendant denied intending to see the victim when he filled out the time off request. He testified that he decided to see the victim when he was on the freeway going to the DMV to stand in line early.

Defendant testified that he went to the victim's residence on October 28, 2016, to talk to her because she had stopped communicating with him, "which she did a lot." He testified that he was feeling confused and angry and that he decided to confront and scare the victim. He also "wanted to make her miss work so that [they could] talk," since she had "made [him] miss work." According to defendant, the victim "kept breaking it off with [him], off and on, off and on, off and on, and off and on." He was "getting tired of it" and thought that if he "scared her, either she's going to act right or she's going to get mad enough to leave [him]."

Defendant testified that he only intended to scare her, and that he did not intend to kill her. He denied ever threatening her.

7

Defendant arrived at the victim's apartment complex around 6:15 a.m. to try to catch her before she went to work. He parked "around the corner." Defendant testified that he was wearing black pants, a black and gray top, and a black jacket with a hood. He testified that he wore dark colors "a lot" and that it was raining so he had a jacket with a hood on. According to defendant, his jacket was already torn before he saw the victim that morning. He stated that he was "not . . . the neatest person in the world," that he "thr[e]w [his] clothes and everything around in the car," and that a "knife was loosely in [his] car too." Defendant was also wearing black "surgical" or "plastic type" gloves. When asked why he wore the gloves, defendant indicated that it was related to him trying to scare the victim. Defendant also had a trash bag in his pocket.

Defendant testified that he walked to the apartment's carport and hid behind a pillar. He "jumped out at [the victim]," "grabbed her shoulder," and said, "[A]h," "really loudly." The victim screamed and was upset. She asked, "Why are you doing this?"

Defendant testified that his thoughts at the time were as follows: "I wanted to scare her enough that she would get mad and end the relationship or that she would get mad and know that okay, this guy is . . . crazy or whatever so I'll act right, you know. So basically I wanted her to stop noncommunication with me off and on like she was doing." Defendant denied having a knife when he encountered the victim.

Defendant testified that once the victim saw him, she was still upset but she calmed down a bit. The pair "just started talking normal" about the relationship. As they talked, they heard voices and someone asked, "Hey, who's out there? What are you guys doing?" The victim told defendant that the police were going to come, and she walked away. Defendant testified that he heard people coming and it was raining, so he sprinted back to his car. Defendant felt "satisfied" and that he had "got[ten] back at her." According to defendant, when he left the victim, she did not have any blood on her clothing, and her jacket was not torn.

8

Defendant testified that he drove to a friend's house in San Jose, where he took off his gloves. He went to his friend's house because he "didn't have nothing to do at the time." He later went to the DMV, but the line was too long.

Later that day, he encountered the police. Defendant testified that whenever the victim stopped communicating with him, she was the first one to reconnect. As a result, he was waiting for her to call or text him, and he "really didn't know" why the police were contacting him. Defendant testified that he was wearing the same clothes and shoes that he had worn when he saw the victim in the morning, and that he had not "done anything to clean up."

Defendant admitted that he had a Galaxy knife in a container in his car. He testified that he used the tip of the knife to adjust the amplifier that was mounted in the back of his car. Defendant acknowledged that he had screwdrivers in his other car, but he indicated that those screwdrivers were too big. He denied using the knife to threaten or attack someone.

Defendant admitted that he had black gloves in the glove compartment of his other car. He testified that he used the gloves when he worked on car engines with a friend. Defendant admitted that he wore the same gloves on the morning that he went to see the victim. He testified that he had gotten the gloves from his other car about a week before the incident because he was planning to help his friend with an engine. He decided to put on the gloves when he parked at the victim's residence.

Between 2008 and 2015, defendant was convicted of ten misdemeanors.

At trial, the parties stipulated that the preliminary hearing was held in April 2017. A portion of the victim's testimony from the preliminary hearing was admitted into evidence at trial. The victim testified at the preliminary hearing that she and defendant argued frequently; that when they argued, they would not call each other for two weeks; and that they checked the calls made on each other's phones.

9

A medical doctor who was board certified in forensic pathology and neuropathology, and who testified as an expert in forensic pathology and wound interpretation, testified that the wound on the victim's left hand was a "sharp force injury," meaning that it was made by something with a sharp edge. He believed the wound on the victim's left hand was not a stab wound but rather an "incised wound." He testified that a stab wound "extends deeper into the body," whereas an "incised wound is longer on the surface of the skin than it extends into the body" and "is a consequence" of a sharp edged object "being drawn across the surface of the skin." The doctor characterized the wound as "superficial" because it was only "one millimeter into the skin." The doctor testified that the victim's description of how she sustained the injury to her left hand, that is, by using it to block a knife heading towards her neck, was consistent with her wound. Further, photographs of the blood loss at the scene was "compatible" with the victim's injury as "[h]ands . . . can have a lot of very small blood vessels within them." Although an incision wound to the neck that was deep enough could lead to death, the doctor believed it was "incredibly unlikely" that a wound that was five centimeters long by one millimeter deep on a person's neck could be life threatening.

B. Jury Verdicts and Sentencing

On August 9, 2019, the jury found defendant guilty of assault with a deadly weapon, a knife (§ 245, subd. (a)(1); count 2), and not guilty of attempted murder (§§ 664, subd. (a), 187; count 1). Regarding the assault, the jury found not true the great bodily injury allegation (§ 12022.7, subd. (e)).

On August 26, 2019, the California Supreme Court filed People v. Aledamat (2019) 8 Cal.5th 1 ( Aledamat ). In Aledamat , the California Supreme Court determined that a "box cutter is, as a matter of law, not inherently deadly"; that a trial court's error in permitting the jury to consider whether the box cutter was a deadly weapon based on this

10

improper theory was subject to "the usual 'beyond a reasonable doubt' standard of review"; and that the error was harmless in the case before it. ( Id. at pp. 3-4.)

In this case, the jury had been instructed that "[a] deadly weapon other than a firearm is any object . . . that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (See CALCRIM No. 875.) Prior to sentencing, the trial court requested briefing from the parties regarding Aledamat . In response, defendant filed a motion for new trial, contending that the jury, similar to Aledamat, had been allowed to consider the erroneous theory that a knife may be an inherently deadly weapon. Defendant argued that the trial court had the discretion to grant a new trial and that the court did not need to engage in a harmless error analysis. The prosecutor filed a written brief contending that the instructional error was harmless.

The sentencing hearing was held on September 11, 2019. The trial court found the instructional error harmless and denied defendant's motion for a new trial. The court observed that neither the prosecutor nor defense counsel had argued to the jury that the knife was inherently deadly, and that the prosecutor instead "focuse[d] on the manner in which the weapon was used as opposed to the inherently dangerous weapon theory." The court also referred to the size of the knife and further observed that the victim's testimony indicated that "she essentially fended off the knife." Defendant in "his testimony did not address the manner of use of a knife" and instead testified that he did not have a knife. The court observed that the jury, however, rejected defendant's testimony in reaching a verdict of assault with a deadly weapon instead of simple assault. There was also "significant blood" although the jury did not find the great bodily injury allegation to have been proven beyond a reasonable doubt.

The trial court proceeded to sentence defendant to the upper term of four years in prison. Defendant was granted 2, 037 days of custody credits.

11

III. DISCUSSION

A. Jury Instruction Defining Deadly Weapon

1. The Parties' Contentions

Defendant contends that the trial court abused its discretion in denying his motion for a new trial by finding harmless error in instructing the jury on an incorrect theory of assault with a deadly weapon. The Attorney General concedes that it was error to instruct the jury that a knife can be an inherently deadly weapon but contends that the error was harmless beyond a reasonable doubt.

2. Background

In this case, the jury was instructed that the prosecutor must prove the following regarding an assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)): "1. [Defendant] did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. [Defendant] did that act willfully; [¶] 3. When [defendant] acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and [¶] 4. When [defendant] acted, he had the present ability to apply force with a deadly weapon other than a firearm. [¶] . . . [¶] The People are not required to prove that [defendant] actually touched someone. [¶] . . . [¶] No one needs to actually have been injured by the alleged act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether [defendant] committed an assault, and if so, what kind of assault it was. . . ." (See CALCRIM No. 875.)

Relevant to this appeal, the jury was further instructed that "[a] deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." (See CALCRIM No. 875.)

12

In argument to the jury, the prosecutor stated the following regarding an assault with a deadly weapon under section 245, subdivision (a)(1): "If somebody takes a baseball bat and swings it as somebody's head, that's a 245(a)(1) because when you swing a baseball bat at somebody's head, it's reasonable to anticipate that that might crack their skull and seriously hurt them. [¶] That baseball bat is being used like a dangerous weapon; and that swinging, that force, that person is intentionally and willfully moving that baseball bat towards that person's head. [¶] Same works for a knife. You don't have to actually contact that person. That's in the instructions. You don't have to actually cause any injury. [¶] But the swinging, the application of force that any reasonable person would realize by its act and nature would directly and probably result in the application of force, that's what we're talking about with a 245(a)(1). [¶] Swinging a baseball bat to somebody's head, you can swing and miss; it's a 245(a)(1). Take a knife and go to stab somebody and then missing, 245(a)(1), assault with a deadly weapon. [¶] Here, you've got a little bit more with that. It's not even required to show that there was actual touching. So you can swing and miss, and that's a 245(a)(1), an assault with a deadly weapon. [¶] But if you get injured, . . . if you see actual injury, which we have in this case, her hand was sliced, there's blood everywhere, then you can use that fact to help determine that there was an assault with a deadly weapon. [¶] And that's actually one of the more common sense things in these jury instructions. Like, if she was cut, then you can use that to help show that there was a knife that cut her. I know it seems silly, but these are the instructions providing information on how to use this evidence. [¶] Again, not even required that they touch. But she was definitely touched. She was cut. Again, we have all these marks to her jacket. It was a new jacket. [¶] How did they get there? It's because the knife was coming at her to the middle of her body, to her shoulder, to the back of her shoulder, and then onto her hand. Arguably, the worst, the worst -- the rest of that knife was that opening one to her hand that was up by her neck. And she demonstrated that for you here in court."

13

Defense counsel in argument did not specifically contest the issue of whether the knife was a deadly weapon. Counsel only made brief references to a deadly weapon in connection with the defense argument that defendant did not attempt to murder the victim. For example, defense counsel stated, "[N]ot every assault with a deadly weapon, even if the weapon is deadly, is an attempted murder, is a direct step toward killing someone." Similarly, defense counsel argued, "If you take [the victim] at her word, she was assaulted with a deadly weapon, but that doesn't mean that the prosecution has convinced that [defendant] took a direct step toward killing her, let alone the previous element that he intended to kill her."

3. General Legal Principles Regarding Deadly Weapons and Alternate-Theory Error

The California Supreme Court has explained that only a "few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.]" ( Aledamat , supra , 8 Cal.5th at p. 6.) In contrast, "[b]ecause a knife can be, and usually is, used for innocent purposes, it is not among the few objects that are inherently deadly weapons." ( Ibid. ) However, a knife" 'may assume such characteristics, depending upon the manner in which it was used . . . .' [Citation.]" ( Ibid. )

In this case, the trial court "erred in presenting the jury with two theories by which it could find the [knife] a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct." ( Aledamat , supra , 8 Cal.5th at p. 7.)

Under this circumstance of "alternative-theory error" ( Aledamat , supra , 8 Cal.5th at p. 7 & fn. 3), the California Supreme Court has held that "the usual 'beyond a reasonable doubt' standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . for federal constitutional error applies." ( Id. at p. 3; see id. at pp. 9, 13.) Under this test, "[t]he reviewing court must reverse the conviction unless, after

14

examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." ( Id . at pp. 3, 13.) More precisely,"' "[t]he error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well."' [Citations.]" ( Id. at p. 10.)

4. Analysis

We determine that the instructional error in this case, which presented the jury with both (1) the incorrect theory that it could find the knife an inherently deadly weapon and (2) the correct theory that it could be a deadly weapon as used, was harmless beyond a reasonable doubt. (See Aledamat , supra , 8 Cal.5th at pp. 3-4, 13.)

First, the record reflects that the victim and defendant were the only witnesses to the encounter at the victim's carport. The victim testified that defendant "hit" her with a knife, while defendant testified that he did not have a knife and that he did not attack her. The jury found defendant guilty of assault with a deadly weapon, a knife, which necessarily means the jury believed the victim's testimony and not defendant's testimony on these points. The victim testified that during the attack, she sustained an injury to her left hand, which she had raised to her neck to cover herself. Undisputed evidence reflected that the knife blade was five inches, the handle was five and one-half inches, and the victim required nine stitches for the wound to her left hand. Expert testimony from both the prosecution and the defense indicated that a sufficiently deep neck wound could be life threatening. Further, even the defense expert testified that the victim's description of how she sustained the injury to her left hand, that is, by using it to block a knife heading towards her neck, was consistent with her wound. The evidence, as believed by the jury or otherwise undisputed, thus reflected that the knife was deadly based on the manner in which it was used. Specifically, defendant had a knife with a five-inch blade that he used to attack the victim, he made at least one aggressive motion

15

with the knife towards her neck, and although she was able to protect her neck with her hand, she nevertheless sustained a wound requiring multiple stitches.

Second, the record reflects that the prosecutor in argument never relied on the theory that the knife was inherently deadly. Instead, the prosecutor's argument focused exclusively on how the knife was used. At the same time, defense counsel in argument did not specifically contest the issue of whether, if the victim was believed, the knife was a deadly weapon as used.

In sum, in view of the victim's testimony regarding how she was attacked with a knife, which the jury found credible; the undisputed evidence concerning the characteristics of the knife and how the victim sustained an injury during the attack; the prosecutor's argument to the jury, which was limited to the theory regarding the use of the knife, rather than a theory based on the inherent nature of a knife; and the jury's ultimate findings that (a) defendant did commit an assault and (b) the assault was committed with the knife," '[n]o reasonable jury that made all of these findings could have failed to find' that defendant used the [knife] in a way that is capable of causing or likely to cause death or great bodily injury. [Citation.]" ( Aledamat , supra , 8 Cal.5th at p. 15.) In other words,"' "it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well."' [Citations.]" ( Id. at p. 10.) We therefore find the instructional error in this case harmless beyond a reasonable doubt. (See id. at pp. 3-4, 13, 15.)

Defendant contends that the error was not harmless because, in contrast to Aledamat , where the jury was given an additional instruction regarding how to decide whether an object is a deadly weapon, and where the jury also found the defendant guilty

16

of making a criminal threat in violation of section 422 (see Aledamat , supra , 8 Cal.5th at pp. 4-5, 14), an additional instruction regarding how to decide whether an object is a deadly weapon was not given in this case nor was defendant charged or found guilty of making a criminal threat.

As the Aledamat court itself indicated, there are various ways "in which a court might evaluate harmlessness" and the fact that one court evaluated it one way "do[es] not preclude other ways." ( Aledamat , supra , 8 Cal.5th at p. 13.) In this case, as we have explained, based on the jury's verdict that an assault with a weapon was committed, the necessary implication that the jury rejected defendant's testimony and found the victim's testimony that she was attacked with a knife credible, the other undisputed evidence concerning the nature of the weapon and circumstances of the victim's wound to the hand in protection of the neck, and the prosecutor's limited argument to the jury about how the knife was used, we have found the instructional error harmless beyond a reasonable doubt.

Having reached this determination of harmless error, we accordingly conclude that the trial court did not abuse its discretion in denying defendant's motion for a new trial based on the instructional error. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127 [ruling on a new trial motion reviewed for abuse of discretion].)

B. Prosecutor's Rebuttal Argument

1. The Parties' Contentions

Defendant contends that the prosecutor committed misconduct in rebuttal argument to the jury. Specifically, the prosecutor argued in rebuttal that defense counsel's arguments "conflicted" with, "contradict[ed]," and were "inconsistent" with defendant's testimony. Defendant contends that the prosecutor's argument violated his Sixth Amendment right to counsel, his right to due process, and state law by "insinuating" that defense counsel did not believe his defense and "created a strong probability that the jury perceived that defense counsel conceded his guilt." (Italics omitted.)

17

Further, because the prosecutor made the statements in rebuttal argument, defense counsel "had no opportunity to clarify to the jury that she did not make any such concession." Defendant contends that the "trial court should have, at the very least, provided an admonition as requested by counsel," and that the failure to do so requires the reversal of defendant's conviction for assault with a deadly weapon.

The Attorney General contends that the prosecutor did not commit misconduct in rebuttal argument. The Attorney General contends that defendant has "conflate[d]" a claim that defense counsel has refused to respect defendant's expressed choice of defense, with a claim that the prosecutor has accused defense counsel of not believing her client's defense. The Attorney General contends that in this case, the prosecutor never accused defense counsel of disbelieving her client. According to the Attorney General, the prosecutor in rebuttal argument focused on the evidence and the lack of believability of defendant's testimony.

2. Background

a. Prosecutor's argument

In argument to the jury, the prosecutor contended that the evidence showed that defendant planned to kill the victim, that he intended to kill her, and that he tried to kill her by stabbing her in the neck. The prosecutor also argued that defendant committed an assault with a deadly weapon by trying to stab the victim with the knife, which resulted in the victim's bloody hand injury and damaged jacket. The prosecutor contended that defendant's testimony was not reasonable, that some of his testimony was "ridiculous," and that he lied when he testified.

b. Defense counsel's argument

Defense counsel argued to the jurors that they should "put on [their] skeptical goggles" and "be skeptical" of everything they heard during the trial. Counsel stated that defendant and the victim were in a "pretty dysfunctional relationship." According to counsel, defendant wanted the victim to take him seriously, to stop ignoring him, and to

18

stop pushing him away. To that end, counsel argued that defendant only intended to scare the victim during the incident, and that he did not intend to kill her. Counsel observed that defendant stated that he" 'wanted to scare her into acting right.'" Counsel argued that even if the jury believed that defendant had an intent to injure the victim with the knife, that "reasonable explanation . . . f[e]ll[] short of an intent to kill." Counsel argued that if there was any reasonable explanation of the evidence "that is not intent to kill," then the jury "ha[d] to pick that one that points to innocence."

Regarding defendant's request for the whole day off from work, defense counsel argued that it did not show an intent to kill the victim, as argued by the prosecutor. Defense counsel argued that instead, it "kind of ma[d]e sense" that defendant took the whole day off due to "the sort of weird expectation he seemed to have that maybe if he went out there to talk to [the victim], maybe if he scared her, she would start acting right and they would talk and she'd miss a day of work because of what he did that morning." Counsel argued, "How are you going to make a person miss a day of work? Not by killing them. That doesn't make sense." Counsel further argued that the evidence did not show an "intent to kill, and that's not the reasonable interpretation of that evidence."

Defense counsel contended that other pieces of evidence introduced by the prosecution also did not "point to a reasonable interpretation that [defendant] intended to kill [the victim]." For example, if defendant was going to kill the victim, he would have parked his car closer, he could have used the stun gun to disable her, he would not have fled as soon as he heard someone else was present, and he would have used the plastic bag from his pocket to discard the bloody knife. Counsel emphasized that even if the jury found evidence of an intent to kill, if it was also reasonable that defendant was intending to scare the victim, then the jury could not find him guilty of attempted murder. Defense counsel thus contended that even if the jury took the prosecution's word and believed the victim, (1) the intent to kill, (2) a direct step toward killing, and (3) great bodily injury had not been proven.

19

Defense counsel then focused on defendant's testimony. Counsel observed that the prosecutor had argued that defendant's testimony about the incident was not reasonable and did not make sense. Counsel acknowledged that defendant's testimony about not having a knife and that the victim was not cut or bleeding when he left her implied that either someone else cut her "or she cut it herself to try to frame him for this charge." Counsel stated, "I can see why you would be suspicious and skeptical of that explanation. I don't want to tell you, though, that stranger things haven't happened. I think one thing that we learn in our lives, in our jobs, in our current events is sometimes the truth is stranger than fiction. [¶] So I want to talk a little bit about [defendant's] testimony and about this possibility." Counsel later stated, "I want to talk about a few things that are actually consistent with [defendant's] version of events, with this strange possibility that somehow [defendant] wasn't the one who created the injury on [the victim's] hands." Counsel then proceeded to discuss evidence that purportedly supported defendant's version of events and suggested that the victim may have lied about being injured by defendant. Counsel concluded by arguing (1) the jury should find defendant not guilty of attempted premeditated murder; (2) depending on whether the jury believed the victim, it could convict defendant of assault with a deadly weapon or the lesser included offense of simple assault; and (3) the great bodily injury enhancement had not been proven.

c. Prosecutor's rebuttal argument

In rebuttal, the prosecutor contended that it was "patently offensive to suggest, without any evidence in the record at all, that [the victim] ha[d] concocted, lied, and framed [defendant] with stabbing her that morning in the carport, that she grabbed a knife and cut herself." The prosecutor argued that the jury had heard two versions - one from the victim and one from defendant - regarding what happened that day, and the jury needed to decide which one of those versions was "reasonable" based on everything that

20

the jury had heard. The prosecutor contended that "[b]elievability and reasonableness are tied together."

The prosecutor argued that it was not reasonable for a "single working mom who's working 16-hour days to support her two kids" to go "stab herself," or that "she's this cold, calculated, on-a-moment frame job" when at the same time "she's hysterical and can't . . . even really communicate with her family and friends about what happened."

Immediately thereafter, the prosecutor argued: "Defense counsel's arguments conflicted with her own client's testimony. And it's important to think about that. It's a difficult job that [defense counsel] has up here because she didn't exactly point out that [defendant] got on the stand and denied having a knife, which is really unreasonable. But she argued things to you that completely contradict with the testimony of her own client."

Defense counsel objected, and the trial court had an unreported discussion at the bench with counsel. The trial court thereafter overruled the objection, stating that the reasons would be "noted later."

The prosecutor continued with rebuttal argument to the jury, stating, "[Defense counsel] argued things in her closing argument that's inconsistent and conflicts with her own client's testimony." As an "example," the prosecutor observed that defendant had testified that after he spoke to the victim, he saw her run to the area where they had heard voices and where the neighbors were located. The prosecutor asked, "[H]ow does that fit into this frame job?" in apparent reference to the defense theory that the victim had cut herself before the neighbor saw her.

The prosecutor next pointed out that defendant testified that he did not decide to go to the victim's apartment until that morning when he was on the freeway. The prosecutor observed that defense counsel had "attempted to argue," however, that defendant really wanted to go there all day and talk to her, based on the fact that he had previously requested the entire day off from work. The prosecutor then stated, "There's subtle differences, but there's conflicts in what [defendant] actually said and what

21

[defense counsel] was arguing to you. And those conflicts occur because what [defendant] told you is completely unreasonable and not believable." The prosecutor then proceeded to address the evidence showing (1) an intent to kill, rather than an intent to scare, by defendant, and (2) premeditation. The prosecutor then argued that the jury had "two versions of events," and it should "[a]ccept the reasonable" and "reject what's unreasonable." The prosecutor ended argument by asking the jury to find defendant guilty of all charges.

d. Defendant's objection to prosecutor's rebuttal argument

Later, after jury deliberations had begun and outside the presence of the jury, the trial court and the parties discussed defendant's earlier objection to the prosecutor's rebuttal argument. At the earlier sidebar conference regarding the objection, defense counsel had contended that it was prosecutorial misconduct to state that defense counsel's arguments conflicted with her own client's testimony. The trial court denied defense counsel's motion for a mistrial and request for an admonition to the jury.

At the second conference on the issue, which was reported, defense counsel argued that the prosecutor's comments (1) "essentially insinuate[ed]" that defense counsel believed defendant was guilty and (2) "burden[ed]" and "comment[ed]" on defendant's exercise of his constitutional rights. On the latter point, counsel argued that under McCoy v. Louisiana (2018) __U.S. __[138 S.Ct. 1500, 200 L.Ed.2d 821] ( McCoy ), defendant was "exercising his right to demand that his counsel not concede any count" even where defense counsel makes alternative arguments. Counsel contended that the prosecutor had "comment[ed] on defense counsel's strategy and defense counsel's argument" which "goes down to [defendant's] fundamental Sixth Amendment rights." Counsel again moved for a mistrial or, alternatively, requested that the jury be admonished.

The prosecutor contended that she did not make any comment about whether defense counsel believed her client. The prosecutor contended that she only pointed out

22

the inconsistencies between defendant's testimony and the arguments of defense counsel, which was "documented on the record, and a proper rebuttal in this case."

The trial court determined that the prosecutor's rebuttal argument to the jury "point[ed] out the inconsistencies in a defense," "were fair arguments," and that no prosecutorial misconduct had occurred. The trial court consequently found no basis for a curative instruction or a dismissal.

3. General Legal Principles Regarding Prosecutorial Misconduct

"' "The applicable federal and state standards regarding prosecutorial misconduct are well established." '" ( People v. Wright (2021) 12 Cal.5th 419, 443.)" '" 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." '"' [Citations.]" ( People v. Suarez (2020) 10 Cal.5th 116, 175.) "Misconduct that falls short of a federal due process violation may nevertheless violate state law if it 'involves the use of deceptive or reprehensible methods to persuade the court or jury.' [Citation.]" ( People v. Dworak (2021) 11 Cal.5th 881, 910 ( Dworak ).) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" ( People v. Centeno (2014) 60 Cal.4th 659, 667 ( Centeno ).) "To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct, unless an admonition would not have cured the harm. [Citation.]" ( People v. Davis (2009) 46 Cal.4th 539, 612.)

23

4. Legal Principles Regarding a Prosecutor's Argument to the Jury

"[I]t is . . . improper for the prosecutor to argue to the jury that defense counsel does not believe in his [or her] client's defense." ( People v. Thompson (1988) 45 Cal.3d 86, 112 ( Thompson ); accord, People v. Chatman (2006) 38 Cal.4th 344, 385.) It is also "improper for a prosecutor to argue to the jury as an analysis of the defense argument or strategy that defense counsel believes his [or her] client is guilty. [Citation.]" ( People v. Bell (1989) 49 Cal.3d 502, 537.) Such arguments regarding defense counsel's beliefs "direct[] the jury's attention to an irrelevant factor and might in some contexts be quite prejudicial." ( Thompson , supra , at p. 113, fn. omitted.)

At the same time, however, a"' "prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence."' [Citation.]" ( Dworak , supra , 11 Cal.5th at p. 910.)" 'Prosecutors may attack the defense case and argument. "Doing so is proper and is, indeed, the essence of advocacy."' [Citation.]" ( People v. Krebs (2019) 8 Cal.5th 265, 342 ( Krebs ).) "[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account. [Citations.] In so doing, the prosecutor may highlight the discrepancies between counsel's opening statement and the evidence. [Citation.] Misconduct claims also have been rejected where the prosecutor anticipates the flaws likely to appear in counsel's closing argument based on evidence that was introduced [citation], and where the prosecutor criticizes the defense theory of the case because it lacks evidentiary support [citation]." ( People v. Bemore (2000) 22 Cal.4th 809, 846 ( Bemore ); see id. at p. 847 ["the prosecutor argued accurately that [defense counsel's] assertions were contradicted by evidence adduced at trial"]; People v. Gonzales (2012) 54 Cal.4th 1234, 1296-1297.)

"Where the alleged misconduct arises from the prosecution's rebuttal argument, '[p]rosecutors may make vigorous arguments and fairly comment on the evidence; they have broad discretion to argue inferences and deductions from the evidence to the jury.

24

[Citation.] In particular, "[r]ebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel." [Citations.] . . .' [Citation.] '[A] prosecutor is justified in making comments in rebuttal . . . which are fairly responsive to argument of defense counsel and are based on the record.' [Citation.]" ( People v. Thomas (2021) 64 Cal.App.5th 924, 954 ( Thomas ); see People v. Edwards (2013) 57 Cal.4th 658, 740 ( Edwards ) [no misconduct where "prosecutor's comments were fair rebuttal to defense counsel's" argument, "were also supported by evidence at trial," and "nothing in the argument 'carried the clear implication that defense counsel did not believe in [defendant's] innocence' or believe their own client"]; People v. Chatman (2006) 38 Cal.4th 344, 385 ( Chatman ) [no misconduct in rebuttal argument where prosecutor did not argue that defense counsel disbelieved his client, and prosecutor "merely commented on discrepancies between defense counsel's opening statement and defendant's actual testimony, and pointed out gaps in defense counsel's argument"; no misconduct" 'to pointedly highlight, as the prosecutor did here, the contradictions in a defendant's case' "].)

5. Analysis

Defendant contends that the prosecutor committed misconduct in rebuttal argument by telling the jury that defense counsel's arguments "conflicted" with, "contradict[ed]," and were "inconsistent" with defendant's testimony. Defendant contends that the prosecutor's argument violated his Sixth Amendment right to counsel, his right to due process, and state law by "insinuating" that defense counsel did not believe his defense and "created a strong probability that the jury perceived that defense counsel conceded his guilt." (Italics omitted.)

We are not persuaded by defendant's contentions. First, the prosecutor never stated (1) that defense counsel did not believe defendant's defense, (2) that defense counsel believed defendant was guilty, or (3) that defense counsel conceded defendant's guilt.

25

Second, in considering the context of the whole argument and whether there was" 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner, '" " 'we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" ( Centeno , supra , 60 Cal.4th at p. 667.) Defense counsel offered various theories to the jury about what happened on the morning of the incident depending on whether the jury found the victim or defendant credible. In rebuttal, the prosecutor referred to "[d]efense counsel's arguments" as "conflict[ing] with," "contradict[ing]," and being "inconsistent" with defendant's "testimony." In making these statements, the prosecutor clearly sought to focus the jury's attention on the evidence that had been presented at trial. To that end, the prosecutor immediately thereafter gave specific examples of defendant's testimony. Further, the prosecutor's last statement regarding the "conflicts" between defendant's testimony and defense counsel's argument was as follows: "And those conflicts occur because what [ defendant ] told you is completely unreasonable and not believable." The prosecutor thus sought to focus the jury on the evidence presented at trial and particularly defendant's testimony. Near the end of rebuttal argument, the prosecutor repeated the theme that the jury should "[a]ccept the reasonable" and "reject what's unreasonable."

Taken in context, it is not reasonably likely that the jury understood the prosecutor's rebuttal argument as implying (1) defense counsel's disbelief of defendant or (2) a concession by defense counsel of defendant's guilt. Rather, the prosecutor's message in rebuttal argument was that the jury should focus on the evidence at trial, should find the victim's testimony reasonable and accept her account of what happened, and should reject defendant's testimony as unreasonable in light of all the other evidence that had been presented at trial. "By referring to counsel in the first person and alluding to defenses not supported by the evidence, the prosecutor simply employed a rhetorical device calculated to focus the jury's attention on strong . . . evidence of guilt and on any

26

corresponding weaknesses in the defense case." ( Bemore , supra , 22 Cal.4th at p. 847.) "Contrary to defendant's assertion, nothing in the argument 'carried the clear implication that defense counsel did not believe in [defendant's] innocence' or believe [defendant]." ( Edwards , supra , 57 Cal.4th at p. 740; see Chatman , supra , 38 Cal.4th at p. 385 ["comment[ing] on discrepancies between defense counsel's opening statement and defendant's actual testimony, and point[ing] out gaps in defense counsel's argument" does not amount to an argument that defense counsel disbelieved his client].)

Third, it was not improper for the prosecutor in rebuttal argument to point out inconsistencies between the defense, as articulated by defense counsel during argument, and the evidence presented at trial. "[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account" ( Bemore , supra , 22 Cal.4th at p. 846) and" 'may attack the defense case and argument'" ( Krebs , supra , 8 Cal.5th at p. 342). It is not misconduct for the prosecutor, as in this case, to "criticize[] the defense theory of the case because it lacks evidentiary support [citation]." ( Bemore , supra , at p. 846.) The prosecutor's statements in this case were" 'fairly responsive to [the] argument of defense counsel and [were] based on the record.' [Citation.]" ( Thomas , supra , 64 Cal.App.5th at p. 954; see Edwards , supra , 57 Cal.4th at p. 740 [no misconduct where "prosecutor's comments were fair rebuttal to defense counsel's" argument and "were also supported by evidence at trial"].)

Fourth, defendant fails to cite persuasive legal authority supporting his contention that the prosecutor's statements in rebuttal argument "infringed upon [defendant's] right to define the fundamental purpose of his defense at trial" and "burdened" the exercise of his Sixth Amendment right to counsel. In making this contention, defendant cites extensively to McCoy , supra , 138 S.Ct. 1500, People v. Eddy (2019) 33 Cal.App.5th 472 ( Eddy ), and People v. Flores (2019) 34 Cal.App.5th 270 ( Flores ). In McCoy , the United States Supreme Court held that a defendant's Sixth Amendment right to counsel includes "the right to insist that counsel refrain from admitting guilt." ( McCoy , supra , 138 S.Ct. At p. 1505.)

27

Subsequently, the appellate court in Eddy concluded that the Sixth Amendment, as interpreted by McCoy , "affords a defendant an absolute right to decide the objective of his defense and to insist that his counsel refrain from admitting guilt." ( Eddy , supra , at p. 474; see id. at p. 481.) In Flores , the appellate court similarly held that "[u]nder McCoy , criminal defense lawyers must allow their clients to dictate the fundamental objective at trial, and thus must not concede the actus reus of a charged crime over their client's objection." ( Flores , supra , at p. 273.) In this case, defendant expressly states that his trial counsel "did not actually concede any count" and "did not commit McCoy error." (First italics added.) Further, defendant fails to establish that the prosecutor's statements in rebuttal argument "infringed upon [defendant's] right to define the fundamental purpose of his defense at trial" and "burdened" the exercise of his Sixth Amendment right to counsel by "directly impl[ying] that defense counsel believed [defendant] was guilty of the actus re[u]s of the charged offenses." As we have explained, it is not reasonably likely that the jury understood the prosecutor's rebuttal argument as implying (1) defense counsel's disbelief of defendant or (2) a concession by defense counsel of defendant's guilt. Consequently, no infringement, burdening, or impairment of defendant's Sixth Amendment right to counsel has been shown.

Accordingly, we determine that the prosecutor's statements in rebuttal argument did not constitute misconduct under state law or a violation of defendant's constitutional rights to counsel and due process, and that defendant fails to establish a basis for reversal of his conviction for assault with a deadly weapon.

C. Amendment of Section 1170(b)

Defendant contends that Senate Bill No. 567's amendment of section 1170(b), which made the middle term the presumptive sentence unless certain circumstances exist, applies retroactively to him and requires that his sentence be reduced to the middle term or that the matter be remanded for resentencing. The Attorney General concedes that the

28

matter must be remanded for resentencing under the amended statute. We find the Attorney General's concession appropriate.

As amended, section 1170(b) provides in relevant part: "(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) 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. . . . [¶] (3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. . . ."

As this case is not yet final, defendant is entitled to the retroactive application of section 1170(b) as amended by Senate Bill No. 567 because the amendment is ameliorative and nothing in Senate Bill No. 567 indicates that the Legislature intended the amendment to apply solely prospectively. ( People v. Flores (2022) 73 Cal.App.5th 1032, 1039; People v. Garcia (2022) 76 Cal.App.5th 887, 902; see People v. Frahs (2020) 9 Cal.5th 618, 627-630.)

The trial court imposed the upper term for assault with a deadly weapon, finding the following factors in aggravation: (1) injury to the victim, including "significant blood" loss, (2) defendant's "violation of a position of trust," and (3) defendant's prior convictions. The parties agree that defendant did not stipulate, and the jury did not find beyond a reasonable doubt, the first two factors regarding (1) injury to the victim and (2) defendant's violation of a position of trust.

With respect to the third factor regarding prior convictions, defendant testified during trial that he had been convicted of a total of 10 misdemeanors in 2008, 2009,

29

2011, and 2015. The probation report, which the trial court read and considered for sentencing, indicated that defendant's criminal history included three felony convictions and 38 misdemeanor convictions. At sentencing on September 11, 2019, in denying probation, the trial court explained that it "only allowed the jury to hear about ten of them, highly sanitized out of a choice of 20." The court stated that "one, if not two, were theft-related and the rest were all sexual batteries." The court explained that "the existence of the prior charges that [it] did not provide to the jury, the older ones, still indicate[d] to [the court] that [defendant was] not a probation eligible candidate."

The trial court then articulated its three reasons for choosing the upper term for assault with a deadly weapon, that is, injury to the victim, violation of a position of trust, and prior convictions. Regarding the prior convictions, the court stated the following: "And the fact that there were ten -- going back about ten years but some of the priors were quite recent, so I basically -- frankly, I'm using half of the priors to deny probation and the other half to aggravate the charge."

On appeal, defendant contends that the trial court's reliance on his prior convictions "was invalid as a matter of state law because they were not established by a certified record of conviction" under section 1170, subdivision (b)(3). In making this argument, defendant cites to the probation report, which refers to his three felonies and 38 misdemeanors, including 18 for sexual battery.

The Attorney General contends that the court's reliance on prior convictions "was legally supportable under the current sentencing scheme as [defendant] readily admitted the priors at trial." However, the Attorney General states that "this factor was somewhat tenuous given that the court split the priors between the aggravated sentence and the denial of probation without delineating which priors were used for what purpose." The Attorney General further states that the trial court "gave no indication the weight it was placing on the factors. While normal sentencing rules would allow a single supported factor to be used, at least under a state harmless error analysis [citations], here

30

the issue is whether the error is harmless under the Sixth Amendment of the federal [C]onstitution. . . . [T]he People cannot say that under this record the court would still have imposed the same sentence beyond a reasonable doubt absent the two unsupported factors. There is simply nothing in the record that shows that the prior convictions were weighted so heavily as to ignore the other two factors beyond a reasonable doubt." The Attorney General thus concludes that the matter must be remanded for resentencing.

We agree with the Attorney General in part. Specifically, we agree that the trial court properly relied on defendant's prior convictions, as defendant testified at trial in 2019 that he had previously been convicted of 10 misdemeanors in 2008, 2009, 2011, and 2015. (See § 1170, subd. (b)(2) [upper term permissible if facts underlying aggravating circumstance "have been stipulated to by the defendant"].) At the sentencing hearing, the court referred to "ten -- going back about ten years," which we understand to be a reference to the "ten" misdemeanor convictions that went back "about ten years" that defendant testified to at trial. Of those 10 convictions, the court at sentencing stated that it was "using half of the priors to deny probation and the other half to aggravate the charge."

In this circumstance, where the trial court's decision to impose the upper term was based on at least one proper aggravating factor (here, five prior convictions that defendant admitted at trial), we disagree with the Attorney General's contention that the appropriate analysis is whether there was an error that was harmless beyond a reasonable doubt. On this point, the California Supreme Court has stated the following: "[W]e held in [ People v. Black (2007) 41 Cal.4th 799 ( Black II )] that if a single aggravating factor has been established in a manner consistent with Blakely [ v. Washington (2004) 542 U.S. 296] and Cunningham [ v. California (2007) 549 U.S. 270]-by the jury's verdict, the defendant's admissions, or the fact of a prior conviction-the imposition by the trial court of the upper term does not violate the defendant's Sixth Amendment right to a jury trial, regardless of whether the trial court considered other aggravating circumstances in

31

deciding to impose the upper term. '[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established 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.' ( Black II , supra , 41 Cal.4th at p. 813.)" ( People v. Towne (2008) 44 Cal.4th 63, 75.)

Defendant in this case acknowledges the point by stating that a "single aggravating circumstance established consistently with Sixth Amendment principles is sufficient to render a defendant eligible for an upper term sentence so far as the federal constitution is concerned. ( People v. Black , supra , 41 Cal.4th at p. 813.)" Defendant contends, however, that "aggravating circumstances must also be established consistently with" section 1170, and that his alleged prior convictions were "invalid as a matter of state law because they were not established by a certified record of conviction." As we have explained, however, defendant admitted the five prior convictions that the trial court relied on to impose the upper term, which satisfies the requirement under state law that the facts underlying the aggravating circumstance "have been stipulated to by the defendant." (§ 1170, subd. (b)(2).)

Regarding whether the case must be remanded, we observe that" '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]" ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 ( Gutierrez ).) In such circumstances, the California Supreme Court has held that "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]'

32

that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" ( Ibid .)

Senate Bill No. 567 altered the scope of the trial court's sentencing discretion under section 1170, subdivision (b). Moreover, as the Attorney General acknowledges, it is not clear from the record the weight that the trial court was placing on the three factors - two of which were improper and one of which was proper - in sentencing defendant to the upper term. Accordingly, because the record does not" 'clearly indicate[]'" that the court would have imposed the upper term despite the amendment to section 1170, subdivision (b), we will remand the matter for resentencing. ( Gutierrez , supra , 58 Cal.4th at p. 1391.)

IV. DISPOSITION

The judgment is reversed, and the matter is remanded for resentencing in light of Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 567.

33

WE CONCUR: GREENWOOD, P.J. GROVER, J.