Opinion
B317091
06-14-2023
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN ANTONIO MISH, JR., Defendant and Appellant.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA148499 Joseph R. Porras, Judge. Affirmed and remanded for resentencing.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
A jury found defendant Joaquin Antonio Mish, Jr. guilty of carjacking (Pen. Code, § 215, subd. (a); count 1), second degree robbery (§ 211; count 2), and fleeing a pursuing peace officer's vehicle while driving recklessly (Veh. Code, § 2800.2; count 3).
All subsequent undesignated statutory references are to the Penal Code.
Mish appeals his conviction and sentence on several grounds. First, he challenges the admission of evidence of a pretrial identification. Second, he contends the trial court abused its discretion by admitting evidence related to two of his prior felony convictions. Third, he contends the trial court abused its discretion in denying his motion to strike his prior strike convictions. Last, he contends that remand for resentencing is necessary under recently enacted changes to section 1170.
We reject Mish's challenges on the first three issues, but agree with Mish, as do the People, that remand is required for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution evidence
During the early morning on August 16, 2018, Andrew Jaramillo and Julia Csehy were in Jaramillo's car, a black Toyota Corolla, which was parked across the street from Csehy's house. Jaramillo and Csehy had just finished a date and were watching videos on Jaramillo's phone. Jaramillo was in the driver's seat and Csehy was in the front passenger seat.
While seated in Jaramillo's car, Csehy noticed a man walking on the sidewalk toward the car and briefly made eyecontact with him. It was unusual to see someone on her street so late at night, so she decided to wait to exit Jaramillo's car until the man passed. She could see his "whole face" "pretty clearly" as he walked by her. There was a streetlight about 20 feet away from them.
Seconds later, the man banged on the driver's side window with a gun and told Jaramillo and Csehy to get out of the car. As Jaramillo opened the car door, the man, aiming the gun at Jaramillo, told Jaramillo to put his phone and keys down and lie down on the sidewalk. Jaramillo complied with the instructions. Csehy could see the man's profile as he was aiming his gun at Jaramillo, but she "didn't really look too closely." Csehy grabbed her purse and phone and threw them onto the grass next to the car. She then stood outside the car with the passenger door still open.
The man picked up the keys and Jaramillo's phone and got into the car. He then shouted to Jaramillo, "where's your wallet at?" Jaramillo told him it was in the car. Csehy could see the man going through Jaramillo's wallet. The man told Csehy to lie down and close the passenger side door. He then drove away in Jaramillo's car.
Jaramillo used Csehy's phone to call 911. Los Angeles County Sheriff's Deputy Ryan Stewart arrived about five minutes later. As Deputy Stewart was speaking to Jaramillo, a call came on his radio stating that other sheriff's deputies were in pursuit of a vehicle matching the description of Jaramillo's car. Deputy Stewart then left to assist the other deputies.
Meanwhile, Los Angeles County Sheriff's Deputy Victor Rodriguez and his partner, Deputy Sanchez (first name unknown), who were on patrol in the area, spotted a vehicle matching the description of Jaramillo's driving in the opposite direction. They made a U-turn and began pursuing it.
After the vehicle turned into a parking lot and stopped, the deputies exited their patrol car with their guns drawn. The vehicle then quickly reversed, drove over a curb, and started driving away. The deputies returned to their patrol car, activated its lights and sirens, and again pursued the suspect, who was driving over the speed limit and making unsafe maneuvers.
The suspect then crashed into a parked car. Deputy Rodriguez lost sight of the vehicle "for about a second or two" as it turned a corner and did not see the car crash. However, according to Deputy Sanchez's stipulated testimony, Deputy Sanchez, a passenger in the patrol car, saw the suspect make a sharp unsafe turn, strike a curb, and ricochet into a parked car. Deputy Sanchez then saw the suspect, the sole occupant of the vehicle, exit through the driver's side door and run away. Deputy Rodriguez also saw the suspect, whom he identified at trial as Mish, exit the vehicle and start running.
Deputy Rodriguez chased after Mish. While chasing Mish, Deputy Rodriguez saw him toss a black wallet on the ground. Mish attempted to climb a fence into a back yard, but was unable to get over the fence. Deputy Rodriguez ultimately caught and detained Mish. Deputy Rodriguez then notified Deputy Stewart, who arrived shortly afterwards.
Deputy Stewart thereafter returned to Jaramillo and Csehy and asked them if they were willing to identify the person who was apprehended. Jaramillo agreed and went to the scene of the arrest. There, Deputy Stewart read an admonition advising Jaramillo that he was not obligated to identify this person as the suspect, and that Jaramillo should not identify this person just because he was handcuffed or in police custody. Jaramillo then identified Mish as the person who had carjacked him. Jaramillo testified that on the night of the incident he was "positive" the person he identified was the person who had carjacked him.
Csehy did not accompany Jaramillo to the scene of the arrest. She told Deputy Stewart that although she saw the perpetrator's face, she did not feel comfortable identifying the perpetrator "in the emotional state [she] was in;" she was still "panicked and shocked." She also told Deputy Stewart on the night of the incident that the perpetrator had a hood up covering his head and that she would not be able to positively identify him if she saw him again.
When Jaramillo retrieved his car that night, he saw a hat in the car that he recognized as the hat worn by the man who had carjacked him. Also, sheriff's deputies returned Jaramillo's wallet to him, but there was no cash inside it. Jaramillo had between $100 and $200 in his wallet before the incident. When Deputy Sanchez searched Mish, he found $150 in Mish's pocket.
The day after the incident, a resident who lived on the street where Mish was apprehended found a loaded ammunition clip in a flowerpot. That same day, another resident on the same street found a gun in her backyard. Jaramillo was shown a photo of the same handgun, and testified that it appeared similar to the one used during the carjacking.
In March 2019, seven months after the incident, Csehy attended the preliminary hearing and identified Mish as the perpetrator. She was "confident" that she correctly identified Mish at the preliminary hearing. However, by the September 2021 trial Csehy could not identify Mish.
Jaramillo could not identify Mish at the preliminary hearing or trial. He acknowledged that on the night of the incident it was dark and the perpetrator was wearing a hat, and that the top half of the perpetrator's face was shadowed. However, he testified at both the preliminary hearing and trial that Mish "resembled" the perpetrator. Jaramillo recalled that the perpetrator was about five foot eight or a little shorter than his own height of five foot ten. The parties stipulated that Mish is five foot five. Jaramillo described the perpetrator as having a "medium" complexion, but acknowledged describing him to a sheriff's deputy soon after the incident as having a "dark" complexion.
II. Defense evidence
The defense first called Csehy as a witness. Csehy testified that the prosecutor from the preliminary hearing showed her a photograph of Mish, but she could not recall whether she was shown the photograph before or after she testified at the preliminary hearing. Csehy further described a call between her and the prosecutor the day before. On that call, she said that she thought she had been shown a photograph of Mish before the preliminary hearing, but was not sure.
Csehy further explained that the photograph of Mish did not resemble how he looked in court at the preliminary hearing. She thus identified Mish at the preliminary hearing because she recognized him as the person who had carjacked her and Jaramillo, not because of the photograph she was shown.
The defense also called Mitchell Eisen, an expert witness on eyewitness testimony. Eisen explained that memory is not like a camera that perfectly records events. Rather, memory is "malleable, changeable by nature." Thus, suggestive procedures can lead to inaccurate identifications, even where an eyewitness makes an identification quickly and confidently.
Eisen described multiple factors that can affect an eyewitness's ability to make an accurate identification. For example, a brief exposure to someone may make it difficult to accurately identify the person later. Also, unless an eyewitness "locked into" a particular aspect of a person's appearance, the witness may not notice subtle differences between the person's face and someone else's. Moreover, in a traumatic event an eyewitness can become focused on a particular aspect of the event, such as the brandishing of a weapon, which can detract from the witness's ability to process information he or she may otherwise have noticed. Even so, Eisen emphasized that this doesn't mean a witness can't identify somebody in a traumatic event; instead, you have to look "case-by-case."
The passage of time can also adversely affect memory. One's memory right after an event tends to be "fresher, more detailed and more available" than one's memory after long delays. When a witness is exposed to "post-event information," such as seeing pictures or talking to others about an event, the new information can also lead to changes in memory. Similarly, "hindsight bias"-seeing past events through the lens of one's current understanding of what occurred-can affect memory. Thus, if a witness concludes that someone is the perpetrator, the witness will recall the crime through that lens. Relatedly, Eisen described the "commitment effect"-if a witness makes an identification, the witness tends to stick with it. And, if a witness gets confirming feedback from an identification, such as being told he or she correctly identified the perpetrator, the witness's confidence in his or her memory increases.
Eisen also explained that a single person showup is suggestive and has a higher rate of misidentification than a lineup or photo array identification. Use of an admonition is therefore particularly important for showups.
On cross-examination, Eisen agreed that corroboration is "crucial" in identification cases. He explained that "if somebody had my stuff in their pocket, yeah, I'd say that has to be explained. It's corroborating evidence." Eisen also testified that if a witness identified a perpetrator shortly after an incident, but was unable to make an identification seven months later, the witness was likely being "very candid" and resisting some of the "inevitable pressures of being a witness in an investigation." Eisen likewise agreed that a witness who made an identification seven months after an incident but was unable to do so two and a half years later was displaying "honesty" that is "rare in [his] opinion."
Eisen testified on redirect that showing a witness a single photograph for purposes of making an identification is the same as a showup. In his opinion, doing so prior to asking the witness to make an in-court identification would create a "great" potential for error. Eisen also clarified that although a witness's memory tends to be better right after an event, doing a showup right after the event still presents a significant risk of a false identification.
Mish testified next. In the early morning on August 16, 2018, he was in a car with his date, parked in front of a friend's house waiting for friends to arrive. He and his date were smoking methamphetamine. A black four-door sedan drove towards them and the driver rolled down the window, introduced himself as Grimes, and asked Mish if he knew where Jerry or Gary lived. Mish said he had no idea. Grimes then asked Mish if he smoked and commented that "it smells pretty fiery." Mish understood the comment to refer to the methamphetamine he was smoking and offered Grimes his pipe. Grimes took the pipe, smoked it, and asked if Mish had any methamphetamine for sale. Mish said he did not. Grimes then asked Mish if he knew where to buy some. Mish's date began texting her friends to see if they had any to sell while Mish and Grimes continued smoking.
Mish then received a text from a friend asking to split a purchase of methamphetamine from another friend. Mish's date did not want to go, so Mish asked if Grimes would be willing to drive to Mish's friend's house to purchase the methamphetamine. Grimes agreed. Mish pulled $150 from his wallet, put the money in his sock, and got into Grimes's car. Mish left his wallet in the car because it had a tendency to fall out of his shorts. Mish noticed a hat on the seat and picked it up as he sat down.
Before they left, Mish tried to give Grimes directions to the location where they were purchasing methamphetamine, but Mish did not know the area well enough to do so. Hence, Mish suggested that he drive Grimes's car. Grimes agreed.
As Mish drove to his friend's house, he and Grimes noticed headlights coming in the opposite direction. Grimes grew agitated. When they saw it was a police car, Grimes "got really agitated." The police then made a U-turn. Mish straightened up in his seat and Grimes sunk down low in his seat.
Mish decided to pull into a parking lot to see if the police followed them. Grimes became irate, started cursing at Mish, and told Mish he was on parole and that the car was stolen. Grimes pulled a chrome handgun from his sweatshirt and told Mish they needed to flee. Mish, fearing for his life, drove out of the parking lot and followed Grimes's driving instructions until he accidently crashed. Grimes hopped out of the car and fled.
Although relieved, Mish was also scared because he had "done time in prison," was a "two striker," and "any kind of crime I'm going to be in jail for life." Not wanting to "have anything to do with this situation or this scene," Mish exited the vehicle and started running after Grimes. Mish exited the car about three to five seconds after Grimes.
After seeing Grimes climb a fence of a nearby house, Mish tried unsuccessfully to climb the same fence. He saw the two sheriff's deputies pursuing him and continued running to get away. Mish did not toss a wallet while he was fleeing the deputies. Nor did he have a gun or clip with him. The sheriff's deputies eventually caught him.
On cross-examination, Mish acknowledged having pleaded guilty to three felonies in 1997: home invasion robbery, rape, and forcible oral copulation.
III. Conviction and sentence
A jury found Mish guilty of carjacking (§ 215, subd. (a); count 1), second degree robbery (§ 211; count 2), and fleeing a pursuing peace officer's motor vehicle while driving recklessly (Veh. Code, § 2800.2; count 3). As to counts 1 and 2, the jury found true that Mish used a firearm. (§ 12022.53, subd. (b).) Mish admitted he suffered three prior strike convictions under the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d).)
Mish filed a motion to strike his prior strike convictions. The trial court denied the motion, but struck Mish's prior serious felony and prior prison term enhancements. (§§ 667, subd. (a); 667.5, subd. (a).) The court sentenced Mish to 41 years to life: the upper term of nine years for count 1, tripled due to the prior strikes, plus 10 years for the firearm enhancement, and four years for count 3. The court stayed the sentence for count 2 under section 654. The court also imposed various fines and fees, and granted Mish 1,399 days of custody credits.
Mish timely appealed.
DISCUSSION
Mish raises several challenges to his conviction and sentence. We address each of them in turn.
I. Admission of Csehy's preliminary hearing identification
Mish first contends his right to due process was violated by the admission at trial of Csehy's testimony regarding her identification of Mish at the preliminary hearing. Mish argues it was impermissibly suggestive for the prosecutor to show Csehy a photograph of Mish prior to the preliminary hearing.
A. Relevant background
Before trial, defense counsel moved to exclude evidence of Csehy's identification of Mish at the preliminary hearing. Defense counsel emphasized that Csehy told Deputy Stewart on the night of the incident that she would be unable to identify the perpetrator if she saw him again. According to defense counsel, asking Csehy at the preliminary hearing whether she could identify the perpetrator in the courtroom was thus impermissibly suggestive. The trial court denied the motion.
Following Csehy's trial testimony and outside the presence of the jury, the trial court made the following observations regarding Csehy's trial testimony "so that any reviewing court can understand what this court's impressions were:" "This court's impressions of Ms. Csehy was that when she was asked at the scene if she could make an identification because a suspect was being held, she made it clear, at least to this court, that it wasn't that she was saying, I don't have the ability to make an identification because I didn't see a face. She explained yesterday . . . I wasn't in a right frame of mind. I was crying. I was-just had a gun held toward me. I was on the ground. I was scared. I was frightened, I think is the word she used. She was with her parents, and she just didn't-she wasn't in the right emotional state. [¶] So the court's impressions were not necessarily that she was saying, no, I never got a look at the guy, so I couldn't make an identification. [¶] It was just one of those, like, emotional I can't right now."
Near the conclusion of the prosecution's case, the prosecutor informed the court that, at defense counsel's request, he called Csehy and asked her if a prosecutor had shown her a single photograph of Mish before the preliminary hearing. According to the prosecutor, Csehy said she had been shown such a photograph. She further told the prosecutor that the photograph did not look like Mish and that she identified Mish at the preliminary hearing because she recognized him from the carjacking. Based on that information, defense counsel first stated he wanted to present this information to the jury. Shortly thereafter, defense counsel moved for a mistrial.
The trial court denied the motion for mistrial but ordered Csehy to appear to give additional testimony. Csehy testified as described above, namely, that the prosecutor had shown her a photograph of Mish but she was unsure if it was before or after her testimony at the preliminary hearing.
B. Analysis
"A pretrial identification procedure violates a defendant's due process rights if it is so impermissibly suggestive that it creates a very substantial likelihood of irreparable misidentification." (People v. Contreras (1993) 17 Cal.App.4th 813, 819 (Contreras).) "In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).)
It is the defendant's burden to show an identification procedure was unduly suggestive or unreliable. (People v. Chavez (2018) 22 Cal.App.5th 663, 675 (Chavez).) "The defendant bears the burden of proving unfairness as a 'demonstrable reality,' not just speculation." (Contreras, supra, 17 Cal.App.4th at p. 819.) "If a defendant's federal constitutional right to due process is violated, reversal of the defendant's conviction is required unless the People show that error was harmless beyond a reasonable doubt." (Chavez, at p. 675.)
"On appeal, we review de novo, or independently, a trial court's conclusion whether or not an identification procedure is unduly suggestive or unreliable under the totality of the circumstances." (Chavez, supra, 22 Cal.App.5th at p. 675.) "We must resolve all evidentiary conflicts in favor of the trial court's findings and uphold them if supported by substantial evidence." (Contreras, supra, 17 Cal.App.4th at p. 819.)
We are not convinced that Mish has met his burden of demonstrating that the pretrial identification procedure at issue was unduly suggestive. As an initial matter, although Mish asserts that Csehy was shown a single photograph of Mish "the same day as the preliminary hearing," the record fails to support that claim. As the People emphasize, Csehy testified that she could not recall if she was shown Mish's photo before or after the preliminary hearing. Because the record fails to clearly support the main factual premise of Mish's argument-that Csehy was shown Mish's photograph before the preliminary hearing-Mish cannot meet his "burden of proving unfairness as a 'demonstrable reality,' not just speculation." (Contreras, supra, 17 Cal.App.4th at p. 819.)
What's more, even assuming that Csehy was shown Mish's photograph prior to the preliminary hearing, that fact standing alone fails to establish an impermissibly suggestive pretrial identification procedure. "A single person showup, or a single person photograph, is not inherently unfair or suggestive. [Citations.] 'Showing the witnesses a single photo of the defendant is no more impermissibly suggestive than an in-court identification with the defendant personally sitting at the defense counsel table in the courtroom.' [Citation.] A single person photograph is analogous to a single person showup that 'may pose a danger of suggestiveness, but such lineups or showups are not necessarily or inherently unfair.'" (Chavez, supra, 22 Cal.App.5th at pp. 674-675; People v. Sanchez (2019) 7 Cal.5th 14, 36 [single person photographic show up is "not necessarily unfair"]; People v. Martinez (1989) 207 Cal.App.3d 1204, 12191220 [single person photographic showup not so suggestive as to taint later in-court identification].) Because Mish points to no additional facts surrounding the presentation of his photograph to Csehy, we cannot conclude that the alleged mere presentation of the photograph to her prior to the preliminary hearing was impermissibly suggestive. (See, e.g., Manson v. Braithwaite (1977) 432 U.S. 98, 116 ["no coercive pressure" evident in circumstances surrounding presentation of single photograph to witness].)
Mish argues the pretrial identification procedure at issue here was nevertheless impermissibly suggestive, likening this case to Contreras. There, the victim, Lopez, was shot by Casares and stabbed by Contreras following a botched drug sale. (Contreras, supra, 17 Cal.App.4th at p. 817.) Lopez initially failed to identify his assailants after he was shown two photographic lineups, one including Casares and the other including Contreras. (Ibid.) He failed to identify Contreras again after being shown a single photograph of him two days before the preliminary hearing. (Ibid.) He then identified Contreras at the preliminary hearing. (Ibid.)
On appeal, the court, while ultimately ruling the admission of the identification evidence did not violate due process, concluded that the pretrial photographic procedures were suggestive. (Contreras, supra, 17 Cal.App.4th at pp. 820, 823824.) It stressed that "[a]fter Lopez had failed to identify [Contreras] from the photo lineup, the deputy district attorney showed him a single photo of Contreras two days before the preliminary hearing and asked if Lopez could identify him as his assailant. Lopez had been told there were two individuals in custody and knew Casares was one of them-he knew the police wanted Lopez to identify the other. The picture was a clear photo of [Contreras]. The procedure could only suggest to Lopez that the police believed Contreras to be the other assailant." (Id. at p. 820.)
We find Contreras distinguishable. Even if Csehy was shown Mish's photograph prior to the preliminary hearing, there is no evidence she failed to identify Mish from a photographic lineup before being shown Mish's single photograph, a more suggestive procedure than is at issue here. Also, unlike in Contreras where the victim was shown a "clear photo" of the defendant two days before the preliminary hearing (Contreras, supra, 17 Cal.App.4th at p. 820), Csehy testified that the photograph she was shown of Mish did not resemble the perpetrator. That distinction underscores the conclusion that her identification of Mish at the preliminary hearing was based on her recollection of Mish from the carjacking, not the photograph. (See People v. Martinez, supra, 207 Cal.App.3d at p. 1220 [single photographic showup did not taint in-court identification where, among other things, witness testified his in-court identification was based on observations at the scene of incident, not photograph].)
In any event, even if the pretrial identification procedure was suggestive, we disagree with Mish that Csehy's identification of Mish at the preliminary hearing was unreliable under the totality of the circumstances. Mish emphasizes that Csehy told police on the night of the incident that the perpetrator had his hood up and that she would not be able to identify him. He further emphasizes that despite seeing the perpetrator's face, Csehy was too "panicked and shocked" to identify him on the night of the incident. He also notes that Csehy could not identify Mish at trial.
Mish's argument overlooks the trial court's observation, described above, that the reason Csehy did not identify Mish on the night of the carjacking was because she was distraught, not because she was unable to identify him. Indeed, substantial evidence supports the conclusion that Csehy had ample opportunity to view Mish and paid attention to him. (See Cunningham, supra, 25 Cal.4th at p. 989.) There was a streetlight about twenty feet from Jaramillo's car; Csehy saw Mish as he walked past the car, made eye-contact with him, and saw his "whole face" "pretty clearly;" Csehy paid attention to Mish because it was unusual to see someone on her street late at night and she was waiting for him to pass before she exited Jaramillo's car; and Csehy saw Mish's profile as he aimed his gun at Jaramillo and ordered Jaramillo out of the car.
The remaining factors identified in Cunningham-the accuracy of the witness's prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification (Cunningham, supra, 25 Cal.4th at p. 989)-do not warrant the conclusion that admission of Csehy's identification testimony violated due process. Csehy identified the perpetrator as a "male Hispanic," a description that, although not detailed, Mish does not dispute. Furthermore, Csehy was "confident" in her identification of Mish at the preliminary hearing. Finally, the seven-month period between the incident and the preliminary hearing, while substantial, does not offset the balance of the other factors. (See Neil v. Biggers (1972) 409 U.S. 188, 201 [seven-month period between crime and identification did not require exclusion of identification evidence where other factors supported reliability]; U.S. v. Montgomery (9th Cir. 1998) 150 F.3d 983, 993 [one-year period between incident and photographic identification did not create substantial likelihood of misidentification].)
A final consideration supports our conclusion. As Eisen testified, a witness who makes an identification seven months after an incident but cannot do so two and a half years later displays "honesty" that is "rare in [his] opinion." In fact, that circumstance runs counter to several tendencies described by Eisen which could lead to a mistaken identification. Thus, that Csehy identified Mish at the preliminary hearing but was unable to do so at trial does not undermine the reliability of her identification, as Mish urges. According to Mish's own expert witness, it suggested the opposite-that Csehy's testimony was reliable.
For example, Csehy appears to have resisted "hindsight bias" and the "commitment effect." She appears also to have withstood the effect of confirming feedback, which, according to Eisen, tends to increase a witness's confidence in her memory, not decrease it.
We conclude that due process was not violated by allowing the jury to weigh for itself the credibility of Csehy's pretrial identification of Mish. (See Manson v. Braithwaite, supra, 432 U.S. at p. 116 ["Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature."]; Cunningham, supra, 25 Cal.4th at p. 989; Contreras, supra, 17 Cal.App.4th at pp. 823-824.)
We therefore do not reach the parties' arguments concerning reversible error under Chapman v. California (1967) 386 U.S. 18.
II. Admission of Mish's prior felony convictions
Mish next argues that the trial court abused its discretion by admitting evidence of his prior felony convictions for rape and forcible oral copulation. He further argues that the error led to a violation of his constitutional rights to effective assistance of counsel, to testify, and to a fair trial.
A. Relevant background
Mish was convicted in 1997 of robbery, rape, and forcible oral copulation. Prior to Mish's testimony, defense counsel asked the trial court to "sanitize" the rape and forcible oral copulation convictions "and simply say that they're felonies that are crimes of moral turpitude." According to defense counsel, allowing the jury to know Mish was convicted of rape and forcible oral copulation would "be so inflammatory and prejudicial that . . . it would affect their ability to render a fair verdict." The prosecutor disagreed and urged the court to allow the jury to know "exactly what [Mish] got convicted of." After further discussion, the court deferred its ruling.
At a further hearing, the court ruled that it would bar admission of evidence that Mish's prior convictions were for rape and forcible oral copulation but would admit evidence that the third conviction was for robbery. The court explained that the probative value of identifying the rape and forcible oral copulation convictions would be substantially outweighed by the potential prejudice. In response, the prosecutor argued that it was important for the jury to understand that Mish was not convicted of "really minor felonies" in evaluating Mish's credibility. After further discussion, the court stood by its prior ruling.
Mish later testified that he ran from the sheriff's deputies because he was "scared out of [his] wits, you know. I done time in prison. I'm a two striker. Anything, any kind of contact, any kind of crime I'm going to be in jail for life." (Italics added.) The trial court sustained the prosecutor's subsequent objection and called a recess. Outside the presence of the jury, the prosecutor argued that Mish had improperly discussed potential punishment. Defense counsel responded that he did not know Mish would say that and had admonished Mish "not to go into that area."
The court responded with its impression: "Court's impression[ ] defendant knows exactly what he's doing. He's talking about I have several strikes, and any little thing or any thing will send me back. He just talked a minute ago about having meth on him and that might just be a ticket, yet all of a sudden now he's bringing up the several strikes and that will send him back. [¶] I think we all know exactly what he's doing. [¶] And I'm going to let you know, Mr. Mish, I know exactly what you're doing-okay?-in terms of trying to influence this jury and give you some kind of sympathy that you have strikes and anything is going to send you back when in fact you just said meth might be a ticket." The trial court then instructed Mish that "there's not to be any mention of any type of penalty or punishment."
Based on Mish's testimony, the prosecutor stated that "we're also in a different position to explain [Mish's] prior convictions." The court indicated it agreed. At the next recess, the prosecutor stated that Mish had "opened the door" regarding his prior felony convictions. In response, the court stated that "one of the reasons that the court sanitized the felony convictions earlier this morning is because the nature of them, whether you look at them as strikes or actual charge[s], I just wanted to keep it at felony convictions. [¶] And then the one that the court didn't believe would rise to any prejudicial level was the robbery, but now at this point he's put it in himself about strikes. [¶] And so at this point I just think that being as truthful as possible about what he has on his-these convictions, he's put it into issue now. Now we have this term 'strikes' out there and, you know, he's opened that door now to what exactly are we talking about and what he has. [¶] So the court is allowing at this point the three felony convictions, the date of the conviction and the charge."
Defense counsel asked the court to stand by its earlier ruling. He argued that despite Mish's testimony that he had two prior strikes, there remained a substantial risk of undue prejudice from admission of the nature of Mish's rape and forcible oral copulation convictions.
The court disagreed. It explained that its prior ruling was before Mish "put into issue what the nature of these prior felony convictions are. He's the one that put it into issue by saying, I have prior strikes. So at this point the cat is out of the bag, and to say, well, you were convicted of one robbery and then other felonies, now we're just kind of not changing, but there's no real reason to-to cover what those things are. [¶] And I know that you're saying, well, it's the nature of the strikes and just tell him it's serious and violent. That seems to get into too many legal hurdles. And to just say these are the things that you were convicted of, these three felonies and these were what they are regardless of they're strikes or not, whatever, but that's not really the issue. [¶] It's what are the convictions for? [¶] And the court sees at this time, based upon Mr. Mish putting it into issue as to what felonies were convictions and what were strikes and what was his frame of mind, those type of things, the court is going to modify the ruling based upon that and find that the defendant has put that into issue. And so the court does see that the . . . probative value is not substantially outweighed by the prejudicial nature of the convictions at this point based upon the fact that he's the one that said strike convictions."
As noted, on cross-examination Mish testified that he had prior felony convictions in 1997 for home invasion robbery, rape, and forcible oral copulation. The prosecutor did not mention Mish's convictions in his closing argument, but during his rebuttal argument urged the jury to "[l]ook at [defendant's] credibility. Assess his credibility. He's a convicted felon." The prosecutor did not mention the nature of the prior felony convictions.
B. Analysis
"[A] witness may be impeached with any prior felony conviction involving moral turpitude, subject to the trial court's discretion under Evidence Code section 352 to exclude it if it finds its prejudicial effect substantially outweighs its probative value. [Citation.] The court's ruling is reviewed for abuse of discretion. [Citation.] Because this discretion is broad, 'a reviewing court ordinarily will uphold the trial court's exercise of discretion.'" (People v. Anderson (2018) 5 Cal.5th 372, 407.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The rationale for permitting impeachment with a prior felony conviction involving moral turpitude is that "a witness' moral depravity of any kind has some 'tendency in reason' [citation] to shake one's confidence in his honesty." (People v. Castro (1985) 38 Cal.3d 301, 315.) In other words, "[m]isconduct involving moral turpitude may suggest a willingness to lie." (People v. Wheeler (1992) 4 Cal.4th 284, 295.) "When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).)
Mish does not dispute that his prior felony convictions for rape and forcible oral copulation were crimes of moral turpitude and thus relevant to his credibility. Nor does Mish focus his argument on any of the specific factors listed in Clark. Last, Mish does not point to a case holding that a trial court is required to exclude or "sanitize" otherwise admissible prior felony convictions involving moral turpitude where they involve crimes of sexual violence like those at issue here. To the contrary, "[t]here is no automatic limitation on the . . . nature of prior convictions of crimes involving moral turpitude that may be used to impeach a witness." (People v. Johnson (1991) 233 Cal.App.3d 425, 458-459 [no abuse of discretion where trial court refused to" 'sanitize'" prior murder conviction by allowing "reference to it only as an unspecified 'felony' conviction"]; see, e.g., People v. Lewis (1987) 191 Cal.App.3d 1288, 1296-1298 [no abuse of discretion in trial for burglary and rape for trial court to permit impeachment of defendant with two prior rape convictions and robbery conviction].)
Rather, Mish argues that, having initially ruled that evidence of the prior convictions for rape and forcible oral copulation was more prejudicial than probative, it was error for the trial court to rule that Mish "opened the door" to admitting evidence of the "highly prejudicial" nature of the prior convictions when he described his prior convictions as "strikes." Mish contends that while further inquiry into the nature of the felonies would have been justified had he downplayed or mischaracterized them, he did neither by describing them as "strikes." If anything, Mish argues, he highlighted their "serious nature" by describing them as "strikes." According to Mish, the appropriate response would have been for the trial court to admonish the jury not to consider potential punishment.
We find no abuse of discretion here. The basis for the trial court's initial decision pursuant to Evidence Code section 352 to exclude evidence related to Mish's prior convictions changed when he revealed that he had prior "strikes." Even if, as Mish urges, his characterization was not inaccurate (see, e.g., People v. Kerley (2018) 23 Cal.App.5th 513, 553 ["Under the doctrine of 'opening the door,' one party may render otherwise inadmissible evidence admissible by introducing the topic selectively such as to leave a misleading impression"]), it was certainly selective and it upset the balance struck by the court's earlier ruling.
Mish's characterization of his prior convictions as "strikes" imparted to the jury that the prior felonies were serious, and yet avoided revealing anything about the specific nature of the convictions. Faced with that partial disclosure, the trial court reasonably determined that the probative value of the prior convictions was no longer substantially outweighed by the potential for prejudice, and that the best course following Mish's testimony was "being as truthful as possible about . . . these convictions." (See People v. Castro, supra, 38 Cal.3d at pp. 318319 ["identifying the nature of the prior felonies may well have operated to lessen the prejudice in their introduction, for the jury otherwise was free to speculate why defendant was on parole"]; People v. Rollo (1977) 20 Cal.3d 109, 119 [describing potential for prejudicial speculation by jury when it is not informed about the nature of defendant's prior felony conviction], superseded by statute on another point as recognized in Castro, at p. 308.)
As our high court has recognized, "different felonies have different degrees of probative value on the issue of credibility." (People v. Rollo, supra, 20 Cal.3d at p. 118.) Hence, "[t]he jury manifestly cannot weigh the probative value of the defendant's particular prior offense unless it knows what that offense was. To tell the jurors only that the defendant has been convicted of 'a felony' is therefore to furnish them with a largely meaningless fragment of information." (Id. at p. 119, italics omitted.) Furthermore, a jury that is informed simply that the defendant has been convicted of a "felony" may speculate "that the conviction was for an offense especially damaging to the defendant's credibility, such as perjury." (Ibid.) These same considerations underscore the reasonableness of the trial court's decision to allow the jury to hear evidence regarding the specific nature of the prior convictions after Mish described them as "strikes."
After all, Mish's prior felony convictions were undoubtedly relevant to his credibility. (See People v. Castro, supra, 38 Cal.3d at p. 315.) And, as Mish acknowledges, his credibility was a crucial issue in this case because his guilt depended in part on whether the jury believed his account that Grimes, not he, had carjacked Jaramillo and Csehy. (See People v. Johnson, supra, 233 Cal.App.3d at p. 459 [no abuse of discretion where "trial court could properly conclude that admission of defendant's prior murder was necessary to inform the jury fully as to defendant's credibility"]; People v. Bedolla (2018) 28 Cal.App.5th 535, 556 [rejecting argument that trial court abused its discretion by admitting" 'sanitized' yet 'loaded' reference to a prior felony" where defendant's "credibility was at issue because the nature of his defense was to deny any knowledge of or intent" to commit charged offense].)
We are also unconvinced that the trial court abused its discretion by allowing evidence regarding the nature of Mish's prior felony convictions instead of admonishing the jury not to consider potential punishment in its deliberations. While such an admonishment may have addressed the potential for the jury to mistakenly weigh punishment in determining guilt, it would not have addressed Mish's incomplete disclosure regarding the nature of his prior convictions.
We further note that any danger of undue prejudice posed by the admission of evidence regarding the nature of Mish's prior felony convictions was mitigated by the CALCRIM No. 316 jury instruction. That instruction advised the jury that it could consider the prior felony convictions only in evaluating Mish's credibility, and that it was up to the jury to determine whether those convictions made Mish less believable. (See People v. Gutierrez (2018) 28 Cal.App.5th 85, 91 [any prejudice from admission of evidence related to conduct underlying prior felony mitigated by trial court's instruction to jury "that it could consider the prior misconduct only in evaluating defendant's believability"].)
In sum, we reject Mish's contention that the trial court abused its discretion by admitting evidence of his prior felony convictions for rape and forcible oral copulation.
Because we conclude that the trial court did not abuse its discretion in admitting evidence regarding the nature of Mish's prior felony convictions, we need not address the parties' harmless error arguments. We also reject Mish's argument that his federal due process rights were violated by admission of the evidence. Having found no error based on the trial court's admission of evidence regarding Csehy's identification testimony and the nature of Mish's prior convictions, we also reject Mish's cumulative error argument.
For similar reasons, we also disagree with Mish's argument that People v. Hall (2018) 23 Cal.App.5th 576 (Hall) supports the conclusion that the trial court's admission of evidence regarding his prior felony convictions violated his constitutional rights to effective assistance of counsel, to testify, and to a fair trial. In Hall, the defendant was charged with first degree murder with the use of a knife. (Id. at p. 579.) Prior to trial, the prosecutor filed a motion seeking to impeach the defendant with evidence related to a prior misdemeanor conviction for carrying a concealed knife and brandishing it. (Id. at p. 585.) The trial court ruled that evidence of the misdemeanor conviction would be excluded for impeachment purposes, finding its probative value was outweighed by the potential prejudice. (Id. at p. 587.) The trial court also warned defendant, however, that his testimony regarding a prior statement to police about being a peaceful person could open the door to admitting the misdemeanor conviction. (Ibid.) After the defendant testified, the prosecutor renewed his motion to admit the misdemeanor conviction. (Id. at pp. 587-588.) The trial court then reversed its earlier ruling and allowed the admission of evidence of the prior misdemeanor conviction and the conduct underlying it. (Id. at p. 589.)
Following briefing, we granted Mish's motion for leave to file a supplemental opening brief addressing Hall and allowed the People to file a responsive brief.
The Court of Appeal held that the trial court erred by admitting evidence of the defendant's prior misdemeanor conviction. It concluded that the trial court's initial ruling excluding the evidence for impeachment purposes under Evidence Code section 352 was a "valid exercise" of the court's discretion. (Hall, supra, 23 Cal.App.5th at p. 591.) It further concluded that nothing in the defendant's trial testimony opened the door to character evidence under Evidence Code section 1102. (Hall, at pp. 591-593.) The court thus emphasized that nothing in defendant's testimony "enhanced the probative value of [the defendant's] misdemeanor conduct, which the court had previously deemed negligible compared to its prejudicial" effect. (Id. at p. 593.) Having found the "record reflects no basis for the trial court's ruling change," the court concluded that the trial court's "belated about-face ruling" deprived the defendant of his constitutional rights to effective assistance of counsel, to testify, and to a fair trial. (Id. at p. 599.)
Hall is plainly distinguishable from this case. Unlike Hall, where the defendant's trial testimony did nothing to change the basis for the trial court's initial ruling to exclude the prior conviction evidence, here Mish's trial testimony did change the basis for the trial court's initial ruling. As explained above, once Mish selectively disclosed that his prior convictions were "strikes," the trial court determined that the probative value of the evidence regarding Mish's prior convictions was no longer substantially outweighed by the potential for undue prejudice. Because we have concluded that the trial court's ruling was not erroneous, Hall is inapposite.
The People argue that Mish forfeited the arguments that the trial court's ruling violated his right to effective assistance of counsel, to testify, and to a fair trial by failing to raise the arguments below. Because we find Hall distinguishable and reject the argument on the merits, we need not reach the People's forfeiture argument.
III. Motion to strike prior strike convictions
Mish argues that the trial court abused its discretion by denying his motion to strike his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He contends that the trial court erred by failing to consider his age at the time of his prior strikes and that the prior strikes involved a single episode of aberrant behavior.
A. Relevant background
Mish's prior strikes arose from his conviction for robbery, rape, and forcible oral copulation in 1997, when Mish was 19 years old. The convictions arose from a single incident involving a 14-year old victim. Mish was sentenced to 13 years in prison in 1997 and was released in 2008. Mish returned to prison later that year for a parole violation arising from a narcotics-related arrest. He was also arrested in 2017 for possession of a controlled substance for sale, receiving stolen property, and evading a police officer, but there was insufficient evidence to prosecute him.
Before trial, defense counsel made an oral motion pursuant to Romero to strike Mish's prior strike convictions, emphasizing that Mish "has one case with the three strikes and it's pretty old." The trial court deferred its ruling so that it could review the applicable police reports and related materials.
At a further hearing on Mish's motion, the court stated that it had reviewed the police reports from the 1997 convictions. Defense counsel, despite recognizing the prior strikes were "very serious," stressed that they were old convictions, that Mish had been gainfully employed since his release from prison, and that Mish had potential for being rehabilitated. Although the court reserved making its ruling until after trial, it noted its concern that Mish was convicted when he was 19 years old, served prison time, and then allegedly committed the current offenses at 40 years old, only ten years after his release from prison.
Following his conviction, Mish filed his Romero motion. The motion emphasized that in the 10 years between Mish's release from prison and his current offenses, "he did fairly well while on parole and while out in the community." The motion further noted that Mish's recent convictions were not similar to his prior strikes; that all three strikes arose from a single incident; that Mish had no criminal history before the prior strikes; and that Mish had "minimal" criminal conduct in the 10 years between his release and instant convictions.
At sentencing, the trial court denied Mish's Romero motion. It noted that Mish's crimes increased in seriousness, including the use of a weapon, that the prior strikes were not so remote "as to be outside the spirit of the Three Strikes Law," and that the instant convictions arose from "very, very serious crimes." The court further emphasized that Mish did not take any responsibility for the crimes, and instead offered a "fanciful rendition of what occurred that night which was obviously rejected by the jury."
B. Analysis
The Three Strikes law is designed to increase the prison terms of repeat felons. (Romero, supra, 13 Cal.4th at p. 504; see §§ 667, subds. (b)-(i); 1170.12.) "While the purpose of the Three Strikes law is to punish recidivists more harshly [citation], not all recidivists fall within the spirit of that law. A trial court therefore may strike or dismiss a prior conviction in the furtherance of justice." (People v. Avila (2020) 57 Cal.App.5th 1134, 1140 (Avila); see § 1385, subd. (a).)
"When considering whether to strike a prior conviction, the factors a court considers are whether, in light of the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the defendant's background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though the defendant had not previously been convicted of one or more serious and/or violent felonies." (Avila, supra, 57 Cal.App.5th at p. 1140.)
"We review a trial court's ruling on a Romero motion under the deferential abuse of discretion standard, which requires the defendant to show that the sentencing decision was irrational or arbitrary. [Citation.] It is not enough that reasonable people disagree about whether to strike a prior conviction. [Citation.] The Three Strikes law 'not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm .... [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.' [Citation.] Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. [Citation.] Therefore, 'the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.'" (Avila, supra, 57 Cal.App.5th at p. 1140.)
Mish contends the trial court abused its discretion by denying his Romero motion because it failed to account for his youth at the time of the strikes and that the strikes arose from a single incident. He further emphasizes that our Legislature has underscored the importance of considering youth in sentencing by its enactment of section 1170, subdivision (b)(6)(B), and section 3051, subdivision (a)(1). Mish notes that he would have been entitled to the benefit of both statutes had he committed his prior strikes today.
Section 1170, subdivision (b)(6)(B) provides in certain circumstances for imposition of the lower term of incarceration where youth was a contributing factor in the commission of the offense. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038 [Senate Bill No. 567 "created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense"].)
Section 3051, subdivision (a)(1) provides for expanded parole consideration for a person who was 25 years of age or younger at the time of committing an offense. (See Avila, supra, 57 Cal.App.5th at pp. 1141-1142 [noting that a "youth offender [is] entitled to expanded parole consideration" under § 3051, subd. (a)(1)].)
We find no abuse of discretion here. The record reflects that the trial court reviewed Mish's Romero motion and carefully evaluated the relevant factors in reaching its ruling. Neither Mish's age at the time of his prior strikes nor that his prior strikes arose from a single incident prevented the trial court from denying his Romero motion. (See, e.g., People v. Williams (1998) 17 Cal.4th 148, 162-164 [concluding that trial court abused its discretion by vacating prior strike conviction, which the defendant committed at age 20]; Avila, supra, 57 Cal.App.5th at p. 1141, fn. 6 [fact that strikes were committed on the same occasion "does not compel striking a prior"].) Regardless of whether we would have reached the same ruling, we cannot say the trial court's determination was irrational or arbitrary. (See Avila, at p. 1140.)
As Mish notes, in People v. Garcia (1999) 20 Cal.4th 490, 503, our high court held that a trial court did not abuse its discretion by striking a prior strike conviction where, among other things, "defendant's prior convictions all arose from a single period of aberrant behavior for which he served a single prison term." But Garcia also cited that "[d]efendant cooperated with police, his crimes were related to drug addiction, and his criminal history does not include any actual violence" (ibid.), factors not present here. Garcia thus fails to support the conclusion that the trial court abused its discretion.
Although Mish argues the trial court failed to consider his youth at the time of his prior strikes or that his prior strikes arose from a single incident, he points to nothing in the record supporting that contention. To the contrary, the record shows that the trial court was well aware of both considerations as it considered Mish's Romero motion. And even if the record was silent regarding the trial court's consideration of these factors, we would not presume it failed to weigh them in reaching its ruling. (See In re Large (2007) 41 Cal.4th 538, 550 [trial court need not explain its reasons for declining to strike a prior, reflecting" 'legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law' "]; People v. Carmony (2004) 33 Cal.4th 367, 378; People v. Myers (1999) 69 Cal.App.4th 305, 310 ["The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary."].)
The trial court observed in connection with Mish's Romero motion that Mish was "40 years old when this alleged carjacking occurred. So he goes into custody on the strikes case when he's 19 , gets out, you know-spends some time in, gets out. He's 40 years old, allegedly still doing these things." (Italics added.) The trial court further made clear it had considered "the police reports from the strike-the case that led to the strikes. So I have looked at that, I've looked at the probation report. [¶] So these strikes are from convictions that occurred in 1997." Also, the trial court read Mish's Romero motion, which emphasized that Mish's prior strikes "arose from the same incident and course of conduct."
Mish's reliance on Avila is therefore misplaced. There, the Court of Appeal concluded that the trial court's denial of the defendant's Romero motion was an abuse of discretion, in part because the trial court mistakenly believed it could not consider the defendant's youth at the time of his prior strikes as a mitigating factor. (Avila, supra, 57 Cal.App.5th at pp. 11411142.) As noted, Mish points to nothing in the record suggesting the trial court did not consider his youth at the time of his prior strikes in denying his Romero motion.
Because Mish has failed to demonstrate that the trial court failed to balance the relevant factors in denying his Romero motion, we find no abuse of discretion. (See People v. Carmony, supra, 33 Cal.4th at pp. 378-380.)
The People contend that Mish did not argue in the trial court that his Romero motion should be granted due to his youth at the time of his prior strikes, and thus forfeited the argument. Because we conclude the trial court did not abuse its discretion by denying Mish's Romero motion, we need not address this contention.
IV. Resentencing
Mish contends that remand for resentencing is required because the trial court imposed the upper term sentence on count 1 without adhering to the requirements of section 1170, subdivision (b), enacted after his sentence but before his judgment was final. The People agree.
A. Relevant background
On December 14, 2021, the trial court sentenced Mish to the upper term on count 1 of nine years, and tripled it due to Mish's prior strikes, resulting in a total sentence of 27 years to life on count 1. (See §§ 215, subd. (b) ["Carjacking is punishable by imprisonment in the state prison for a term of three, five, or nine years."]; 1170.12, subd. (c)(2)(A)(i) [providing for "[t]hree times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions"].) The trial court did not explain its reasons for imposing the upper term on count 1.
B. Analysis
While this appeal was pending, our Legislature enacted Senate Bill No. 567 (Stats. 2021, ch. 731), effective January 1, 2022, which made significant changes to section 1170. (See generally People v. Lopez (2022) 78 Cal.App.5th 459, 464-465.) Section 1170 was "amended to make the middle term the presumptive sentence for a term of imprisonment; a court now must impose the middle term for any offense that provides for a sentencing triad unless '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.'" (Lopez, at p. 464, quoting § 1170, subd. (b)(2).) The parties agree, as do we, that Senate Bill No. 567 applies retroactively to Mish. (Lopez, at p. 465; People v. Flores, supra, 73 Cal.App.5th at p. 1039.)
Mish's judgment was not final on January 1, 2022, the effective date of Senate Bill No. 567. Thus, the amendments to section 1170 apply to him. Because the trial court did not identify the aggravating factors it relied upon in imposing the upper term on count 1, it is not possible to determine whether the trial court relied upon aggravating factors either admitted by Mish or found to be true beyond a reasonable doubt. As a result, we agree with the parties that remand is required for the court to resentence Mish in accordance with section 1170, subdivision (b).
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing. The judgment of conviction is otherwise affirmed.
We concur: LAVIN, J. EGERTON, J.