Opinion
A164257
02-03-2022
The PEOPLE, Plaintiff and Respondent, v. Gustavo Medina FLORES, Defendant and Appellant.
Koryn & Koryn, Daniel G. Koryn, La Jolla, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of Discussion sections I, II, III(A), III(C), and IV.
Koryn & Koryn, Daniel G. Koryn, La Jolla, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Rodríguez, J. In 2018, a jury convicted Gustavo Medina Flores of a series of crimes, including felony corporal injury of his former girlfriend, Jane Doe. ( Pen. Code, § 273.5, subd. (a).) The trial court sentenced Flores to 18 years and 8 months in prison, which included the upper term of imprisonment for his corporal injury conviction, a five-year enhancement for a prior felony conviction, and a one-year enhancement for a prior prison term. (§§ 667, subd. (a), 667.5.) The court also imposed fees and fines, including a $750.00 fee for preparing a presentencing report and a $108.19 booking fee. (Former § 1203.1b; former Gov. Code § 29550.2.)
The California Supreme Court transferred this matter from the Court of Appeal for the Fifth Appellate District to the First Appellate District on December 20, 2021.
Undesignated statutory references are to the Penal Code.
On appeal, Flores argues the trial court improperly admitted evidence of his prior acts of domestic violence, and he asserts the jury instructions regarding this evidence violated his constitutional rights. He further challenges the enhancements for his prior felony conviction and prison term. Relying on recently enacted Senate Bill No. 567 (2021–2022 Reg. Sess.), which limits a trial court's authority to impose aggravated sentences unless certain circumstances exist, Flores argues he must be resentenced for his corporal injury conviction. (Stats. 2021, ch. 731, § 1.3; § 1170, subd. (b)(1)-(3).) Flores also asserts certain fees must be stricken based on Assembly Bill No. 1869 (2019–2020 Reg. Sess.), which eliminated a range of court-imposed fees. (Stats. 2020, ch. 92, §§ 11, 62.) We strike the one-year enhancement ( § 667.5 ), vacate the balance of Flores's $750.00 presentencing report fee, and $108.19 booking fee that remains unpaid as of July 1, 2021, but in all other respects affirm the judgment. BACKGROUND
Flores was in a relationship with Doe. In July 2018, Doe and her five-year-old daughter were passengers in a car driven by Flores. Flores and Doe began to argue. He threatened Doe and began driving erratically. Flores stopped the car, Doe exited and tried to run away. The child also got out of the car. Flores pursued Doe on foot and said, " ‘You fucking bitch. Get back in the car.’ " Flores hit Doe in the face twice, placed her in a chokehold, and pulled her hair. Flores also ordered Doe's daughter to get back in the car — the child eventually complied. Flores tried to pull Doe into the car. Eventually all three entered the car, and Flores drove away. A nearby resident witnessed these events and called 911.
Police officers pursued the car, and it stopped suddenly. Doe and her daughter got out, yelling and screaming, and they ran toward a nearby residence. Officers detained Flores. One officer observed Doe had suffered an injury to her lip, and she had blood on her teeth. Doe told the officer that Flores repeatedly threatened her in the past; Flores told Doe, " ‘When you leaving,’ [sic ] ... ‘I'm gonna fucking kill you.’ "
The Madera County District Attorney filed an information charging Flores with, as relevant here, felony infliction of corporal injury on a cohabitant, Doe ( § 273.5, subd. (a), count 3); felony assault with force likely to produce great bodily injury ( § 245, subd. (a)(4), count 4); felony criminal threats ( § 422, count 5); and felony false imprisonment of Doe's daughter and Doe ( § 236, count 7 and 8). The information also alleged Flores had a prior burglary conviction, which constituted a prior strike under the "Three Strikes" law ( § 667, subds. (b)-(i), former § 1170.12 ); a prior serious felony conviction ( § 667, subd. (a)(1) ); and that Flores had served a prior prison term ( § 667.5 ).
During a jury trial, Flores's parole officer testified regarding three uncharged incidents of Flores's violence towards a former girlfriend, V.Z. In sum: in January 2017, Flores hit V.Z.’s head against the car window. In another incident, V.Z. was sleeping at home and suddenly found Flores, who did not live with her, climbing into her bed. V.Z. asked him to leave, but Flores climbed on top of her, choked her, and stated, " ‘Bitch, I am going to choke the fuck out of you.’ " A physical altercation ensued, and Flores grabbed and pulled V.Z. by the hair. In November 2017, Flores unexpectedly appeared at V.Z.’s apartment. After Flores threatened to break her windows, V.Z. let him into the apartment. He then pushed her, attempted to choke her, and threatened to kill her if she called the police.
The jury found Flores guilty of false imprisonment with regard to Doe, infliction of corporal injury on a cohabitant, assault by means likely to produce great bodily injury, and criminal threats. The trial court found true all three special allegations regarding Flores's prior convictions and prison term, and it sentenced Flores to 18 years and 8 months in prison. The court also imposed various fines and fees. DISCUSSION
See footnote *, ante .
III.
Flores next argues the matter must be remanded for resentencing based on, among other things, recently enacted legislation. As explained below, remand is unwarranted.
At sentencing, the trial court stated Flores's criminal record displayed "a pattern of regular criminality" and a failure to comply with his terms of probation — he was under probation supervision when he committed the offenses in this case. The court noted Flores had numerous prior convictions as an adult and several sustained juvenile delinquency petitions. According to the court, Flores's crimes in this case "involved a high degree of cruelty, viciousness, and callousness, as the defendant physically assaulted the victim by pulling her hair and punching her on the mouth." The court thus found the circumstances warranted an aggravated sentence. It then denied Flores's probation; imposed the upper term of eight years for infliction of corporal injury on Doe ( § 273.5, subd. (a), four years doubled for the prior strike finding under the Three Strikes law); and imposed consecutive sentences for Flores's remaining offenses — two years for assault ( § 245, subd. (a)(4), one-third the middle term, doubled for the strike finding), and 16 months each for false imprisonment and criminal threats ( §§ 236, 422, one-third the middle term doubled for the prior strike finding). ( § 1170.1, subd. (a) [subordinate term of imprisonment for consecutive offenses "shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction"].) It also imposed a five-year consecutive sentence based on Flores's prior serious felony conviction of residential burglary ( § 667, subd. (a) ), and a one-year consecutive term for his prior prison term for that same conviction ( § 667.5 ).
Under the Three Strikes law, "[i]f the defendant has only one qualifying prior felony conviction, the prescribed term of imprisonment ... is ‘twice the term otherwise provided as punishment for the current felony conviction.’ " (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 505–506, 53 Cal.Rptr.2d 789, 917 P.2d 628 [citing §§ 667, subd. (e)(1), 1170.12, subd. (c)(1) ].)
See footnote *, ante .
Flores contends he must be resentenced for inflicting corporal injury on Doe, an offense for which he received an upper term sentence. ( § 273.5, subd. (a).) We disagree.
While this appeal was pending, Senate Bill No. 567 (2021–2022 Reg. Sess.) amended section 1170, subdivision (b), making the middle term of imprisonment the presumptive sentence. ( § 1170, subd. (b)(2) ; Stats. 2021, ch. 731, § 1, effective Jan. 1, 2022.) A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. ( § 1170, subd. (b)(1)-(2).) In making this determination, 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." ( § 1170, subd. (b)(3) ; Stats. 2021, ch. 731, § 1.) These amendments apply retroactively to Flores because his conviction was not final when this legislation took effect. ( People v. Garcia (2018) 28 Cal.App.5th 961, 973, 239 Cal.Rptr.3d 558.) Here, when imposing the upper term for Flores's corporal injury offense, the trial court cited Flores's numerous prior convictions as an adult, as well as sustained petitions in juvenile delinquency proceedings. ( Cal. Rules of Court, rule 4.421(b)(2).) In addition, the court noted Flores was on probation when the crime was committed and his prior performance on probation was unsatisfactory. ( Cal. Rules of Court, rule 4.421(b)(4)-(5).) To the extent these aggravating circumstances were not stipulated to or found true beyond a reasonable doubt, any error in taking them into consideration is harmless. ( People v. Sandoval (2007) 41 Cal.4th 825, 838, 62 Cal.Rptr.3d 588, 161 P.3d 1146 ["denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless ... [beyond a reasonable doubt] standard set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705"].)
At our request, both parties submitted supplemental briefing regarding the relevance, if any, of ameliorative sentencing legislation, including Senate Bill No. 567 (2021–2022 Reg. Sess.), to the issues presented on appeal.
"[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury," the error is harmless. ( People v. Sandoval , supra , 41 Cal.4th at p. 839, 62 Cal.Rptr.3d 588, 161 P.3d 1146 ; see also People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal.Rptr.2d 26, 919 P.2d 640 [single aggravating factor is sufficient to support an upper term].) On this record we are satisfied, beyond a reasonable doubt, the jury would have found true at least one aggravating circumstance. Flores's probation report, which the court reviewed and considered, identified his five sustained juvenile delinquency petitions and numerous convictions, including battery, as an adult — information that is readily available from official records. ( People v. Towne (2008) 44 Cal.4th 63, 81, 78 Cal.Rptr.3d 530, 186 P.3d 10 [prior convictions and probation status are well documented in official records maintained by law enforcement agencies].) The report further established Flores's unsatisfactory performance while on probation — he was on probation when committing the offense against Doe. ( Id . at p. 82, 78 Cal.Rptr.3d 530, 186 P.3d 10 [unsatisfactory performance while on probation may be demonstrated by court records that committed new offense while on probation].) Thus, remand for resentencing on this issue is unnecessary.
See footnote *, ante .
See footnote *, ante .
DISPOSITION
The judgment of conviction is affirmed. The judgment is modified to strike the section 667.5, subdivision (b) enhancement imposed in this matter. We also strike the unpaid balance of the booking fee, as of July 1, 2021, imposed under former Government Code section 29550.2, and the presentence report fee under former section 1203.1b and vacate that portion of the judgment imposing those costs. The superior court is directed to amend the abstract of judgment reflecting these modifications and to reduce Flores's total prison sentence accordingly.
WE CONCUR:
Tucher, P. J.
Fujisaki, J.