Opinion
F084238
08-09-2023
THE PEOPLE, Plaintiff and Respondent, v. MARIO TARIN GARCIA, Defendant and Appellant.
Devon Stein, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.
Retired Judge of the Merced Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Devon Stein, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Mario Tarin Garcia (defendant) challenges an upper term sentence imposed prior to the enactment of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which amended Penal Code section 1170. (All undesignated statutory references are to the Penal Code.) Under current law, sentencing courts are prohibited from relying on aggravating circumstances not expressly found by the trier of fact or stipulated to by the defendant. (See § 1170, subd. (b)(1), (2).) An exception exists for basing an upper term on certified records verifying the fact of a prior conviction. (Id., subd. (b)(3).)
Senate Bill 567 has uniformly been held to apply retroactively to nonfinal judgments. However, there is a split of authority regarding the applicable test for prejudicial error. The latter issue is now pending before the California Supreme Court. (See People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942.)
Here, the People generally concede there was sentencing error but argue it was harmless. Two published opinions from this district, People v. Dunn (2022) 81 Cal.App.5th 394, review granted October 12, 2022, S275655, and People v. Falcon (2023) 92 Cal.App.5th 911, have articulated different tests for resolving the question presented. We conclude defendant is entitled to a new sentencing hearing under both approaches. His convictions will be affirmed, but the sentence will be vacated and the matter remanded for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2020, defendant's cohabitant (victim 1) called 911 and reported that she had "just been beaten up really badly." The dispatcher asked, "You've been beaten up by who?" She replied, "Mario Garcia," i.e., defendant.
Police quickly responded to the home, arriving at approximately 6:20 a.m. The investigating officer photographed a bleeding laceration and visible swelling just below victim 1's left eyebrow. When questioned about the injury, victim 1 claimed she was attacked by a female who had apparently departed prior to the officer's arrival.
A few hours later, victim 1 contacted the police again to provide a revised statement. The same officer returned to the home at approximately 10:30 a.m., whereupon victim 1 identified defendant as the perpetrator. She accused him of punching her in the stomach and striking her in the face with a laptop computer.
Based on the above incident, defendant was charged with inflicting corporal injury on a cohabitant after having previously been convicted of the same crime. (§ 273.5, subd. (f)(1); count 1). He was also charged with violating section 273.5 on April 26, 2021 (count 2), and again on May 1, 2021 (count 4). There were additional charges of misdemeanor battery (§ 243, subd. (e)(1); count 3); misdemeanor violations of protective orders against a different victim (§ 273.6, subd. (a); counts 5 &6); and misdemeanor possession of drug paraphernalia (Health &Saf. Code, § 11364; count 7). Defendant was further alleged to have suffered a qualifying conviction under the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.)
A jury trial commenced in September 2021. On the witness stand, victim 1 claimed to believe it was defendant's "ex-girlfriend" who had injured her during the December 2020 incident. She testified to "[waking] up to being hit with a laptop" and seeing the woman standing over her. Her testimony was impeached by that of the investigating officer and a recording of the 911 call.
The prior strike and prior domestic violence allegations were submitted to the jury. To prove those allegations, and for purposes of Evidence Code section 1109, the People made an unopposed request for judicial notice of four prior convictions: aggravated assault (§ 245, subd. (a)(4) [Mar. 2013]); infliction of corporal injury upon a spouse (§ 273.5, subd. (a) [Sept. 2015]); violation of a domestic violence protective order (§ 273.6, subd. (a) [Apr. 2016]); and first degree burglary (§§ 459, 460, subd. (a) [Mar. 2020]). The trial court granted the request.
The evidence concerning counts 2 through 7 is not relevant to the issues on appeal.
Defendant was convicted as charged on counts 1, 2, and 5. He was acquitted on counts 3, 4, 6, and 7. The prior strike and prior domestic violence conviction allegations were found to be true.
Defendant filed a motion to "strike the strike" for purposes of sentencing. The motion was denied. The ruling included these statements:
"[T]he Court has primarily relied upon the probation report setting forth his criminal history. It's quite extensive. He has numerous convictions, which are increasing and of a serious-more increasing serious nature. [¶] I cannot find that he is outside the intent of the Three Strikes law."
On November 18, 2021, defendant was sentenced to an aggregate prison term of 12 years 8 months. The trial court imposed the upper term of five years for count 1, which was doubled because of the prior strike, and a consecutive term of 32 months for count 2 (one-third of the middle term, doubled for the prior strike). No additional time was imposed for the count 5 misdemeanor. The following explanation was given for the punishment on count 1:
"[L]ooking at the-all of the factors in this case, it certainly cries for imposition of upper terms. He's statutorily not eligible for probation based on his numerous felony convictions.
"The factors in aggravation are both of these crimes involve great violence. [Victim 1] was particularly vulnerable. Defendant has a repeated history of violent conduct particularly against [women]. His convictions are numerous and of increasing seriousness. He's served a prior prison term. He was on probation or parole at the time of this offense, or these offenses. His performance on parole or probation was unsatisfactory.
"There are no factors in mitigation, so that leads to the inevitable conclusion that [the] upper term should be imposed."
An untimely notice of appeal was filed on April 20, 2022. However, defendant's trial counsel filed a declaration admitting that he mishandled the matter. In September 2022, this court deemed the notice timely filed pursuant to the constructive filing doctrine set forth in In re Benoit (1973) 10 Cal.3d 73.
DISCUSSION
At the time of sentencing, the decision to impose the lower, middle, or upper term for an offense with a sentencing triad rested "within the sound discretion" of the trial court based on its determination of what "best serves the interests of justice." (§ 1170, former subd. (b) as amended by Stats. 2020, ch. 29, § 14.) As of January 1, 2022, by enactment of Senate Bill 567, trial courts are precluded from imposing the upper term absent "circumstances in aggravation of the crime that .. have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial..." (§ 1170, subd. (b)(2).) However, "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.." (Id., subd. (b)(3).)
The parties contend Senate Bill 567 applies retroactively to judgments not yet final as of January 2022. "All published cases to consider this issue have found likewise." (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109.) We agree as well. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 [new legislation that "reduces the possible punishment for a class of persons" is presumptively retroactive].)
Defendant claims Senate Bill 567 entitles him to a new sentencing hearing. The People argue remand is unnecessary. To explain why we agree with defendant, it is necessary to first discuss a split of authority regarding the standard of review.
I. Legal Overview
"Under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt." (People v. Gallardo (2017) 4 Cal.5th 120, 123.) "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely v. Washington (2004) 542 U.S. 296, 303.) The prior conviction exception is based on the rationale that "prior adjudications of criminal conduct [were] obtained in proceedings which themselves afforded substantial constitutional protections." (People v. Nguyen (2009) 46 Cal.4th 1007, 1018, italics omitted.) "As Senate Bill 567 mandates a sentence not to exceed the middle term and permits upward departure from this presumptive maximum sentence only when there are additional factual findings that justify doing so, all additional facts 'legally essential' to impose an upper term sentence must be found in a manner consistent with Sixth Amendment principles." (People v. Falcon, supra, 92 Cal.App.5th at p. 919 (Falcon).)
"'Failure to submit a sentencing factor to the jury, like failure to submit an element [of the crime] to the jury, is not structural error.'" (People v. French (2008) 43 Cal.4th 36, 52, quoting Washington v. Recuenco (2006) 548 U.S. 212, 222.) For Sixth Amendment purposes, "[s]uch an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18." (French, at p. 52, citing Neder v. United States (1999) 527 U.S. 1, 15.) The test of Chapman, supra, 386 U.S. 18 (Chapman) requires a reviewing court "to determine 'whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury's verdict would have authorized the upper term sentence.'" (French, at p. 53, quoting People v. Sandoval (2007) 41 Cal.4th 825, 838.)
In People v. Flores (2022) 75 Cal.App.5th 495 (Flores), Division Three of the First Appellate District articulated the following standard of review for errors arising from retroactive application of Senate Bill 567: "'[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." (Flores, supra, at p. 500, quoting People v. Sandoval, supra, 41 Cal.4th at p. 839.) Put differently, the Chapman test need not be applied to all aggravating circumstances relied upon by the sentencing court. If one circumstance would have undoubtedly been found to exist, "remand for resentencing ... is unnecessary." (Flores, at p. 501.)
In People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez), the Fourth Appellate District, Division One, disagreed with Flores and held that certainty under Chapman as to the existence of one among several factors relied upon by the sentencing court does not end the inquiry. According to Lopez, "the initial relevant question ... is whether the reviewing court can conclude beyond reasonable doubt that a jury would have found true beyond a reasonable doubt all of the aggravating factors on which the trial court relied in exercising its discretion to select the upper term." (Lopez, at p. 467, fn. 11.) If the answer is no, the reviewing court must determine whether it is "certain, to the degree required by People v. Watson (1956) 46 Cal.2d 818, 836, 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." (Ibid.) If the answer to both questions is no, the cause must be remanded for resentencing. (Ibid.)
In People v. Dunn, supra, 81 Cal.App.5th 394, review granted (Dunn), a panel from this district adopted "a version of the standard articulated in Lopez, modified to incorporate Watson in the first step." (Dunn, at p. 409.) The threshold determination, i.e., step "(1)(a)," is "whether the jury would have found one aggravating circumstance true beyond a reasonable doubt" or whether (i) the sentencing court relied on an aggravating circumstance proven by "the fact of defendant's prior convictions and a certified record of defendant's convictions was admitted, or [(ii)] defendant admitted the facts underlying an aggravating circumstance." (Dunn, at pp. 409-410 &fn. 13.)
If any of the step "(1)(a)" questions can be answered affirmatively, the reviewing court proceeds to step "(1)(b)," asking "whether there is a reasonable probability that the jury would not have found any remaining aggravating circumstance(s) [relied upon by the sentencing court] true beyond a reasonable doubt." (Dunn, supra, 81 Cal.App.5th at p. 410, rev. granted.) In essence, prejudice from the sentencing court's reliance on factors not found true by the jury is evaluated under the standard of People v. Watson, supra, 46 Cal.2d 818 (Watson) if the existence of at least one such factor can be determined with the degree of certainty required by Chapman. "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 proceeds to the second part (step 2) of the analysis. (Dunn, at p. 410.)
In step 2, the reviewing court determines "whether there is a reasonable probability that the trial court would have imposed a sentence 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)." (Dunn, supra, 81 Cal.App.5th at p. 410, rev. granted.)
"A minority of courts hold that application of any harmless error analysis cannot dispositively indicate whether resentencing is unwarranted because [Senate Bill 567] changed more than just the proof requirements for aggravating circumstances for upper term sentences[;] it imposed a presumptive sentencing preference that altered the trial court's discretion." (Falcon, supra, 92 Cal.App.5th at pp. 919-920.) In Falcon, a panel from this district reached the same conclusion. The opinion generally approves of Dunn's "basic two-step framework" but holds "resentencing is unwarranted in retroactive cases only when the upper term remains legal under state and federal law at the first step; and, if so, pursuant to [People v. Gutierrez (2014) 58 Cal.4th 1354] at a mandatory second step, the record clearly indicates the trial court would impose the upper term had it known the middle term was the presumptive maximum sentence." (Falcon, at p. 938.)
As stated in the Falcon opinion, "Gutierrez teaches that applying retroactive changes to a trial court's sentencing discretion will require resentencing unless the record clearly indicates the trial court would have imposed the same sentence had it known about the limits to its discretion." (Falcon, supra, 92 Cal.App.5th at p. 926, referencing People v. Gutierrez, supra, 58 Cal.4th 1354.) The principal distinction between Dunn and Falcon is the latter's questioning of Dunn's "adaptation of the Watson harmless error test as a dispositive means to measure the need for resentencing." (Falcon, at p. 940.) It seems Falcon views the Watson standard as being substantively distinct from, and less stringent than, "Gutierrez's clearly indicated test." (Falcon, at p. 943.) And whereas Dunn concludes remand is unnecessary "[i]f all aggravating circumstances relied upon by the trial court would have been proved to the respective standards" (Dunn, supra, 81 Cal.App.5th at p. 410, rev. granted), Falcon requires the extra analytical step of considering the trial court's prior unawareness of the presumptive middle term. (See Falcon, at p. 948 ["Even if all of the aggravating circumstances could be deemed permissibly considered, we are still left with the question of whether a sentencing court would impose an upper term under the newly altered sentencing framework"].)
As previously noted, the differing approaches to this issue are under review by the California Supreme Court. (See People v. Lynch, supra, S274942, rev. granted.)
II. Analysis
We decline to follow Flores, which is the only case that would support the People's argument against remand. In Flores, the sentencing court imposed an upper term based on the appellant's criminal history and its own finding of "'a high degree of cruelty, viciousness, and callousness'" with regard to the current offense. (Flores, supra, 75 Cal.App.5th at p. 499.) The appellate court found the retroactive sentencing error to be harmless because a probation report in the record supported the judicial findings of recidivism. (Id. at pp. 500-501.)
By focusing on the minimum requirements of the Sixth Amendment, i.e., the prior conviction exception to the Apprendi rule, the Flores approach generally "fails to recognize statutory noncompliance as error and measure the effect of statutory noncompliance." (Falcon, supra, 92 Cal.App.5th at p. 920.) In other words, "Flores sets too low a standard for harmlessness." (Dunn, supra, 81 Cal.App.5th at p. 409, rev. granted.) Incidentally, the author of Flores and another justice who concurred in the Flores opinion have since been persuaded by "the rationale for adding a state law harmless error component" to the analysis and now endorse "the two-step harmless error standard articulated in Lopez." (People v. Ross (2022) 86 Cal.App.5th 1346, 1354, rev. granted Mar. 15, 2023, S278266.)
As we will explain, the evidence of defendant's prior convictions satisfies the threshold analysis of Dunn's step "(1)(a)." (Dunn, supra, 81 Cal.App.5th at pp. 409-410 &fn. 13, rev. granted.) However, not all of the additional factors relied upon by the trial court can be presumed to exist under the first step of the Lopez test (see Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11) or step "(1)(b)" of the Dunn test (Dunn, at p. 410). In any event, remand is required under the final steps of Lopez, Dunn, and Falcon. Because the outcome is the same under all three approaches, we need not specifically endorse any one of them.
Under rule 4.421(b)(2) of the California Rules of Court, an aggravating circumstance exists if the defendant's "prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness." (All further rule references are to the California Rules of Court.) Judicial findings that a defendant's prior convictions are numerous have been held to fall within the prior conviction exception to the Apprendi rule. (E.g., People v. Scott (2015) 61 Cal.4th 363, 405; see People v. Boyce (2014) 59 Cal.4th 672, 727; People v. Towne (2008) 44 Cal.4th 63, 76.) Federal courts view the issue of numerosity as one that can be determined as a matter of law. (See Hicks v. Dexter (C.D.Cal. 2009) 646 F.Supp.2d 1182, 1188.)
"The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged." People v. Black (2007) 41 Cal.4th 799, 819-820.) For purposes of rule 4.421(b)(2), three or more prior convictions or adjudications are numerous. (See Black, at p. 818 [citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098, for proposition that "three prior convictions are numerous"]; People v. Fernandez (1990) 226 Cal.App.3d 669, 681 ["Two prior convictions ... are not 'numerous'"].)
The probation report, which the trial court relied upon during the sentencing hearing, shows defendant had 16 prior convictions. Although probation reports are not certified records for purposes of section 1170 (Dunn, supra, 81 Cal.App.5th at p. 403, rev. granted), a reviewing court "may consider the probation report in evaluating an Apprendi error for harmlessness." (Estrella v. Ollison (9th Cir. 2011) 668 F.3d 593, 599; see Falcon, supra, 92 Cal.App.5th at p. 942, fn. 10 ["we presume prior conviction findings made from a probation report would remain constitutionally sound [despite the state law requirement of proof by certified records]"].) The trial court also took judicial notice of four prior convictions during trial. As such, the record establishes the numerosity of defendant's prior convictions with the degree of certainty required by Chapman.
The parties disagree about whether the 2015 conviction for violating section 273.5 could be considered since that is what trigged the alternate penalty provision of section 273.5, subdivision (f)(1), for sentencing on count 1. (See § 1170, subd. (b)(5) ["The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law"].) However, as explained above, the other three judicially noticed priors were sufficient to show defendant's prior convictions were numerous. Whether an alternate penalty provision constitutes an "enhancement" within the meaning of section 1170, subdivision (b)(5), is a not a dispositive issue in this case and we need not address it.
The trial court made additional recidivism findings: "He's served a prior prison term. He was on probation or parole at the time of this offense .... His performance on parole or probation was unsatisfactory." (See rule 4.421(b)(3)-(5).) Defendant was also noted to have "a repeated history of violent conduct particularly against [women]." The Falcon opinion questions whether such "tangential fact[s]" come "within the scope of the prior conviction exception outlined in section 1170[,] [subdivision] (b)(3)." (Falcon, supra, 92 Cal.App.5th at p. 953.) Assuming they do, the trial court's additional findings regarding the circumstances of the current offense do not pass the Chapman or Watson tests.
The parties claim the reference to defendant's "history of violent conduct" against women was an implied finding that he is "a serious danger to society" as contemplated by rule 4.421(b)(1). We are not persuaded by this leap of reasoning. However, even if the parties are correct, we cannot be certain the jury would have unanimously agreed with the trial court. As noted in People v. Lewis (2023) 88 Cal.App.5th 1125, review granted May 17, 2023, S279147, there are no established legal standards for determining the applicability of rule 4.421(b)(1). (Lewis, at p. 1139.) "This uncertainty is compounded by the fact that what constitutes 'violent conduct that indicated a serious danger to society' is vague and subjective." (Ibid.)
"An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.'" (People v. Black, supra, 41 Cal.4th at p. 817; see rule 4.420(h) ["A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term"].) "Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, [rule 4.421(a)(3)] call[s] for a determination as to whether '[t]he victim was particularly vulnerable' ...." (People v. Sandoval, supra, 41 Cal.4th at p. 840, italics omitted.)
"As used in the context of rule [4.]421(a)(3), a 'particularly vulnerable' victim is one who is vulnerable 'in a special or unusual degree, to an extent greater than in other cases.'" (People v. Bloom (1983) 142 Cal.App.3d 310, 321, quoting People v. Smith (1979) 94 Cal.App.3d 433, 436.) Some "clear-cut" examples include being "elderly, very young, or disabled." (People v. Sandoval, supra, 41 Cal.4th at p. 842.) A sleeping, unconscious, or otherwise incapacitated victim would also meet the standard. (See People v. Ramirez (2006) 143 Cal.App.4th 1512, 1519, 1531; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.) However, the fact a victim was "unarmed and taken by surprise" is not enough to permit a reviewing court to assume jurors would have found a rule 4.421(a)(3) allegation true. (Sandoval, at p. 842.)
The trial court found victim 1 "was particularly vulnerable" without explaining why. The People argue it was because victim 1 "was sleeping when [defendant] entered her room and struck her with the laptop." However, the record does not conclusively establish this alleged fact.
In her 911 call, victim 1 said nothing about being attacked in her sleep. According to the investigating officer, she also omitted that detail in her initial reporting of the incident to him. When the officer returned a few hours later, victim 1 told him she was pretending to be asleep prior to being assaulted by defendant. At trial, she testified to "[waking] up to being hit with a laptop" and thus being uncertain whether it was defendant or his "ex-girlfriend" who had caused her injuries. Given the conflicting evidence and the jury's rejection of the third-party assailant story, there is a reasonable probability the jury also disbelieved the victim's testimony about being asleep. The People fail to identify any further evidence of vulnerability. Without more, it is reasonably probable the jury would not have unanimously found the victim was "particularly vulnerable." (See, e.g., People v. Wandrey (2022) 80 Cal.App.5th 962, 983 ["Some degree of speculation would necessarily be required for us to conclude the jury would have agreed with the trial court's evaluation" of the victim's vulnerability], rev. granted Sept. 28, 2022, S275942.)
The trial court also found the current offense involved "great violence." "We may assume the court intended to refer to the following aggravating circumstance described in ... rule 4.421(a)(1): 'The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.'" (People v. Sandoval, supra, 41 Cal.4th at p. 842.) This is another offensebased factor that is "not subject to clear standards" and requires "a subjective assessment of the circumstances rather than a straightforward finding of facts." (Id. at p. 840; accord, People v. Ross, supra, 86 Cal.App.5th at p. 1355, rev. granted.)
The record contains photographs of the facial injury sustained by victim 1 during the count 1 incident. They show a cut above her left eye and swelling in the surrounding area, as well as dried blood on her face. The investigating officer testified to his belief, upon seeing the injury, that it "probably need[ed] suturing." The victim, however, declined medical attention.
Section 273.5, subdivision (a) requires infliction of corporal injury resulting in a traumatic condition, and the jury would have needed to conclude this offense was "'distinctively worse than the ordinary'" (People v. Black, supra, 41 Cal.4th at p. 817) in order to find the aggravating circumstance of great violence. The record offers no insight into the likelihood of such a finding. "In other words, '[s]ome degree of speculation would necessarily be required for us to conclude the jury would have agreed with the trial court's evaluation.'" (People v. Ross, supra, 86 Cal.App.5th at p. 1355, rev. granted.) As such, the applicability of rule 4.421(a)(1) cannot be assumed with the degree of certainty required by Chapman or Watson. We thus proceed to the final steps of the Lopez, Dunn, and Falcon tests.
Under Lopez, the "relevant prejudice question is whether we can be assured that the trial court would have exercised its discretion to impose the upper term based on a single permissible aggravating factor, or even two or three permissible aggravating factors, related to the defendant's prior convictions, when the court originally relied on both permissible and impermissible factors in selecting the upper term." (Lopez, supra, 78 Cal.App.5th at p. 467.) In other words, "whether it is reasonably probable that a more favorable sentence would have otherwise been imposed absent the trial court's improper reliance on [certain] factors." (Ibid.) Step 2 of the Dunn test asks the same basic question: "whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps." (Dunn, supra, 81 Cal.App.5th at p. 410, rev. granted.)
In People v. Avalos (1984) 37 Cal.3d 216, the California Supreme Court applied the Watson standard "to determine whether error by the trial court in relying upon improper factors in aggravation requires remanding for resentencing." (Avalos, at p. 233.) The case holds remand is necessary if the reviewing court "cannot determine whether the improper factor was determinative for the sentencing court." (Ibid.) Here, the trial court relied on one set of factors concerning recidivism and another set of factors based on the manner in which the current offense was committed. No indication was given as to the relative importance of any single factor, which leaves us to guess whether it would have imposed the same sentence based solely upon defendant's criminal history. Because we cannot tell whether the improperly considered factors were determinative, it is necessary to remand for resentencing.
The Falcon opinion notes the Avalos case did not involve changes to the underlying sentencing scheme. (Falcon, supra, 92 Cal.App.5th at pp. 950-951 [discussing People v. Avalos, supra, 37 Cal.3d 216].) The Falcon approach would require us to further consider that "when a court weighs aggravating circumstances under the revised statutory scheme, it does so under the weight of a new statutory preference in favor of 'a sentence not to exceed the middle term,' and the trial court's discretion to impose an upper term is circumscribed to that extent." (Falcon, at p. 946, quoting § 1170, subd. (b)(1).) In short, we must account for the trial court's prior unawareness of the "presumptive middle term maximum." (Falcon, at p. 948.)
The trial court described its imposition of the five-year upper term as an "inevitable conclusion" due to the lack of mitigating factors, but that does not necessarily reveal how it would evaluate the case under the revised sentencing scheme. Pursuant to section 1170, subdivision (b), the presumptively appropriate base term for count 1 is the middle term of four years. (See § 273.5, subd. (f)(1).) "'When the choice between two sentences must be made by weighing intangible factors, a presumption in favor of one sentence can be decisive in many cases.'" (Falcon, supra, 92 Cal.App.5th at p. 948, quoting People v. Gutierrez, supra, 58 Cal.4th at p. 1382.) Since the record does not "demonstrate a clear indication the trial court would impose the upper term again under the weight of the presumptive middle term maximum sentence," remand is also required under Falcon. (Falcon, at p. 955.)
DISPOSITION
The judgment is affirmed but the sentence is vacated. The matter is remanded to the trial court for a resentencing hearing where further evidence and argument may be received regarding the sentence to be imposed under current law.
[*]Before Franson, Acting P. J., Pena, J. and De Santos, J.