Opinion
F083685
04-18-2023
THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN AVALOS, Defendant and Appellant.
Brad Kaiserman, 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, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF174337A Charles R. Brehmer, Judge.
Brad Kaiserman, 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, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
On October 29, 2018, defendant Cristian Avalos, while driving under the influence of both alcohol and cocaine, collided into a white Honda Civic (Civic), killing the driver, Pablo Garcia, and causing serious injuries to the passenger, George H. Defendant was convicted of numerous counts arising from the collision. He was sentenced to a determinate term of seven years, plus an indeterminate term of 15 years to life.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
On appeal, defendant contends the trial court prejudicially erred (1) when it refused to excuse a juror who followed on social media a victim's family member, and this refusal deprived him of his federal and state constitutional rights to an impartial jury, due process, and a fair trial; and (2) when it admitted the underlying facts of his prior driving under the influence (DUI) conviction, and this evidence rendered his trial fundamentally unfair. Defendant further contends this case should be remanded for resentencing considering the changes made to Penal Code section 1170. (Undesignated statutory references are to the Penal Code.) The People concede these changes apply retroactively to defendant's case and therefore this matter should be remanded for resentencing.
We accept the People's concession, vacate the sentence, and remand for resentencing. In all other respects, we affirm the judgment.
PROCEDURAL HISTORY
After rendering a verdict only on count 1 on August 17, 2021, the jury was returned to deliberations and reached verdicts on the remaining counts the next day. It convicted defendant of second degree murder (Pen. Code, § 187, subd. (a); count 1 (Pablo Garcia)); gross vehicular manslaughter (id., § 191.5, subd. (a); count 2 (Pablo Garcia)), and found true the enhancements defendant proximately caused bodily injury to George H. and Luis E. (Veh. Code, § 23558); driving while under the influence of alcohol or drugs causing bodily injury to George H. (id., § 23153, subd. (a); count 3); driving while under the influence with a 0.08 percent blood-alcohol content (BAC), and causing bodily injury to George H. (id., § 23153, subd. (b); count 4); and misdemeanor driving with a suspended license (id., § 14601.1, subd. (a); count 5). As to counts 3 and 4, the jury found true defendant personally inflicted great bodily injury upon George H. (Pen. Code, § 12022.7, subd. (a)) and bodily injury upon Luis E. (Veh. Code, § 23558), and that he suffered a prior DUI in Kern County in case No. DM085549A (id., § 23540).
Subsequently, as to count 1, the trial court sentenced defendant to an indeterminate term of 15 years to life. As to count 4, the trial court sentenced defendant to the upper term of three years, plus an additional four years for the bodily injury enhancements (Pen. Code, § 12022.7, subd. (a); Veh. Code, § 23558). The total term imposed was 15 years to life, plus seven years.
As to count 2, the trial court sentenced defendant to the upper term of 10 years, plus an additional two years for the bodily injury enhancement (Veh. Code, § 23558), but stayed the sentence pursuant to Penal Code section 654. As to count 3, the trial court sentenced defendant to the upper term of three years, plus an additional four years for the bodily injury enhancements (Pen. Code, § 12022.7, subd. (a); Veh. Code, § 23558), but stayed it under Penal Code section 654. As to count 5, the trial court imposed a sentence of 180 days in custody to run concurrent to count 1.
FACTS
The Traffic Collision
Around midnight on October 29, 2018, Pablo Garcia and George H. carpooled home from work in Garcia's Civic in Bakersfield. Subsequently, a black Chevrolet Camaro (Camaro) collided with the Civic in the area of Panama Lane and State Route 99. As a result of the collision, Garcia was killed by blunt force trauma to both his head and chest. Further, George H. suffered multiple fractures, along with a brain hemorrhage. George H. was in the hospital for more than a month and was required to wear a neck collar, along with casts on both his arms and legs.
Brittany J. testified she was a passenger in a vehicle exiting State Route 99 when she observed a black vehicle, which she mistakenly identified as a "Charger," speeding down the road "[a]t least 75" miles per hour and collide into the Civic. After the collision, Brittany observed the Camaro continue down the road until it came to a stop. Subsequently, she attempted to retrieve the driver and passenger from the Civic, but the doors were locked. Brittany noticed the driver suffered "a lot of trauma" and had "blood on his face"; she stayed nearby until emergency personnel arrived.
Pedro V. was pumping gas at a gas station east of the collision when he observed the Camaro collide into the driver's side of the Civic, causing it to "swerv[e] into the Denny's, almost into the parking lot area onto the sidewalk." The Camaro went "into the center divider[,] [p]retty much right in front of [Pedro V.] is where it stopped." Selina I. was leaving a fast food restaurant's drive-thru when she saw "a black car hit a white car and the white car started to spin until it stopped at a light pole right off of Denny's, and then [she] just saw the black car continue to go all the way down to the light." The black car "was going really fast." She then observed two people being removed from the Camaro; she identified the driver as defendant in court. At the collision scene, Selina I. asked defendant if he needed any help and he replied, "'What the fuck for? You're already here.'" Defendant then told Selina, "'I don't want to talk. I don't want to talk. I'm so fucked up right now. I don't want to talk.'"
Emergency Response
Bakersfield Police Department (BPD) Officer J. Cooley was assisting a disabled vehicle in the area of Panama Lane when he observed a Camaro accelerating between 60 to 70 miles per hour. The Camaro slowed down as it passed a police vehicle stopped on the side of the road. Approximately 30 seconds later, the Camaro continued accelerating and Officer Cooley heard the collision, which he described as "sound[ing] like a bomb going off." Officer Cooley then responded to the collision scene and observed "a debris field that was significant covering the whole-every single one of the eastbound lanes into the westbound lanes as well." The Civic was "kind of pushed off to the side" and "[t]he motor from that vehicle was actually sitting completely knocked out of the vehicle itself and sitting in the roadway." Officer Cooley "hear[d] screaming from the [Civic's] interior" and he attempted to enter the vehicle, but was unable because the doors were locked. Therefore, he removed the front windshield and observed two individuals- Garcia in the driver's seat and in the passenger seat was George H., who was screaming in pain. Eventually, fire personnel utilized the Jaws of Life to gain access to the car's occupants and removed George H. from the Civic. George H. was placed on a gurney and transported to Kern Medical Center.
Officer Cooley was told the Camaro was on fire and thus, grabbed a fire extinguisher and put out the fire. Subsequently, BPD Officer N. Lomeli arrived on scene and spoke with the two individuals who had been inside the Camaro. She first contacted the passenger, subsequently identified as Luis E. Luis E. told Officer Lomeli he was the passenger "and that the driver was to his left on the sidewalk on the north side of the road." She then contacted the driver, whom she later identified in court as defendant, lying on the sidewalk. She asked defendant if he was hurt, and he informed her "his back was hurting really bad." She then asked defendant if he was driving the Camaro and he replied, "[Y]es." Officer Lomeli attempted to ask defendant additional questions, but "[h]e said that he couldn't answer any more questions because he was too drunk and [was] going to throw up." She asked defendant how much he had to drink and he replied, "'[T]oo fucking much'" and then "told [her again] he was going to throw up." Officer Lomeli assisted defendant onto his left side so he would not choke if he threw up.
Paramedic D. Rogers transported defendant to Kern Medical Center. Rogers attempted to ask defendant questions, but he replied, "'Fuck you. I don't have to answer. I have a good lawyer.'" She analyzed defendant and concluded he was intoxicated based on his demeanor, along with the fact she could smell the odor of an alcoholic beverage on his breath.
Subsequent DUI Investigation
Former BPD Officer R. Lane was assigned lead investigator to investigate the collision scene. He arrived on scene and observed the Civic and Camaro-both with major damage. He noted the weather was clear and the traffic signals were functioning properly. Officer Lane then went to Kern Medical Center to contact defendant, but "[h]is demeanor appeared to be uninterested ... like [Officer Lane] was bothering him." Officer Lane checked defendant's criminal record and noticed he had a prior DUI from 2013. As a part of this prior DUI, it was determined that defendant received a Watson advisement (People v. Watson (1981) 30 Cal.3d 290 (Watson), which states the following:
"'You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence or alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.'" (Veh. Code, § 23593, subd. (a).)
Officer Lane then contacted BPD Officer M. Reynolds to conduct a DUI investigation.
Officer Reynolds contacted defendant and smelled "the strong odor of an alcoholic beverage emitting from his breath and person," and "[h]e had the red, watery eyes and slurred speech." On October 29, 2018, at 2:11 a.m., a nurse extracted a court-ordered blood sample from defendant. Criminalist R. Bohn then tested the blood sample and determined defendant had a BAC of 0.241 percent. Criminalist Y. Ruvalcaba further tested the blood and determined it had trace amounts of cocaethylene and benzoylecgonine. She explained, "Cocaethylene is a metabolite that is created in the liver when cocaine and ethanol or drinking alcohol ... are coingested." She testified an individual driving with a 0.24 percent BAC is "impaired for the purpose of safely operating a motor vehicle."
BPD Officer Chad Ott retrieved the event data recorder information from the Camaro and it was determined defendant was traveling approximately 103 miles per hour a half a second before the collision.
Officers interviewed Luis E. as a part of their investigation. In the recorded interview, Luis E. indicated on the night of the collision he was a passenger and defendant was the driver of the vehicle. Luis E. stated he and defendant had been drinking "805" beer at a club and defendant had five beers. After the collision, defendant told Luis E., "'[W]e're fucked.'" Luis E. also told officers that on the night of the collision, defendant was wearing a white shirt and blue pants.
Evidence of Defendant's Prior "Knowledge" Regarding the Dangers of Driving Under the Influence of Alcohol.
On September 15, 2013, at approximately 11:30 p.m., Delano Police Officer M. Nunez observed a silver Honda Accord "accelerate[] to a high rate of speed breaking traction and causing the back end of the vehicle to slide or lose control to the right." Officer Nunez initiated a traffic stop and contacted the driver, who he identified in court as defendant. Officer Nunez asked defendant to perform field sobriety tests and thereafter, based on the test's results, formed an opinion defendant was driving while under the influence of alcohol. Officer Nunez transported defendant to the Delano Regional Medical Center for a blood draw. The blood draw revealed defendant had a BAC of 0.120 percent. Defendant subsequently pled guilty to a DUI.
Catherine Sons worked as an executive director of "TAASK," which is a DUI program aimed "to educate, motivate, change [an individual's] lifestyle and behavior so they do not get another DUI." She testified defendant attended and completed the program in 2014, which required him to complete "nine group sessions, six education sessions, [and] three one-on-one interviews with [TAASK] counselors." As a part of the curriculum, participants are informed about the dangers of drinking and driving and specifically reminded of the Watson advisement "several times throughout the curriculum, then [their] exit interview for first offenders, they actually sign a page that we have discussed it with them and that they understand what it is."
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in Refusing to Excuse a Juror
On appeal, defendant contends the trial court's failure to excuse a juror (Juror 7) who recognized a family member of the decedent in the courtroom audience prejudicially deprived him of his federal and state constitutional rights to an impartial jury, due process, and a fair trial. We disagree.
A. Additional Factual Background
During the trial, Juror 7 informed the trial court she recognized an audience member. The relevant exchange between Juror 7, the trial court, and trial counsel is as follows:
"(The following proceedings were held in open court with Juror No. 7:)
"THE COURT: Good afternoon .... So you indicated to [the bailiff] that there may be somebody in the audience you might recognize?
"JUROR NO. 7: Yeah, I had not seen her since, I guess, day one. We graduated together in high school ten years ago. I haven't talked to her one-on-one since then. I wanted to let you know.
"THE COURT: Do you remember her name?
"JUROR NO. 7: D[].
"THE COURT: It may be somebody related to the defendant?
"JUROR NO. 7: No. ... It was this side. She was wearing a yellow shirt. I just noticed her today.
"THE COURT: That whole group of folks sitting in a row?
"JUROR NO. 7: Yeah, I don't talk to her one-on-one since high school.
"THE COURT: So you think she might be related to one of the people that was not [defendant] but one of the other people in one of the cars?
"JUROR NO. 7: Now that I remember her last name, it matched Pablo's last name so I'm assuming they're related.
"THE COURT: Did you know Pablo at all?
"JUROR NO. 7: I never met her family. I just went to that school one year. That's when I met her, but I didn't talk to her since then.
"THE COURT: Do you think the fact you recognized her and that you went to high school with her for about a year and that you think she might be related to the individual by the name of Pablo, that's the alleged victim in the case, that that would make you want to favor the prosecution?
"JUROR NO. 7: No. Based on my opinion, no, I don't let any of that come to mind.
"THE COURT: Or favor the defense in any way?
"JUROR NO. 7: No.
"THE COURT: [Trial counsel], any questions?
"[DEFENSE COUNSEL]: How big of a school was it?
"JUROR NO. 7: It's a small town in Wasco. I don't know how many students there were.
"[DEFENSE COUNSEL]: Did you have classes with her?
"JUROR NO. 7: No. I just knew her through mutual friends because I was the new kid in senior year. So that's how I met her a couple of times. We do follow each other on social media. I'll make that clear, but I don't talk to her.
"THE COURT: You have not posted anything about this case?
"JUROR NO. 7: No. I respect all that, no.
"[DEFENSE COUNSEL]: Are you friends on Facebook?
"Facebook operates a social networking service that enables some two billion users worldwide to connect and share information that is important to them with family, coworkers, and friends." (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 195.)
"JUROR NO. 7: I don't have Facebook. I think I follow her-I'm sure we're friends on Instagram. [¶] ... [¶] ... Yeah, we do follow each other on Instagram.
"Instagram is a Web-based photograph sharing platform through which users share usergenerated content. Among other things, it provides an application that allows users to upload photos, and share them with others." (In re K.B. (2015) 238 Cal.App.4th 989, 998.)
"THE COURT: Has she posted anything or seen anything about Pablo or the traffic collision?
"JUROR NO. 7: If she did, it was probably around the time it happened. I would assume it would be. I didn't know the trial was going to be this long.
"THE COURT: I get that, but what I'm saying is if there was something you saw and you don't remember seeing it?
"JUROR NO. 7: No, I don't. I know so little that's why I didn't realize they're probably related.
"THE COURT: You're doing the right thing.
"JUROR NO. 7: I just noticed her today. I don't think - I think she just came back from-after we came from break, it was her first time here. I would have said something day one.
"THE COURT: [Prosecutor]?
"[PROSECUTOR]: Good afternoon, ma'am. You will avoid communication with her during this trial; correct?
"JUROR NO. 7: Yeah, I mean, I'm happy to unfollow her. I'm not like that good friends with her.
"[PROSECUTOR]: No questions.
"THE COURT: It's up to you who you follow and who you don't follow. I think what we'll do is-you have a few minutes to wait outside? Is that okay?
"JUROR NO. 7: I do. That's fine.
"THE COURT: We'll have you step outside, then we'll bring you in. I'll let you know what we're going to do. Thank you.
"(Whereupon Juror No. 7 exited the courtroom.)
"THE COURT: [Defense counsel].
"[DEFENSE COUNSEL]: Your honor, I think if they're friends on Instagram, I think that right there is enough of a connection to warrant excusing her. It's also my understanding that Instagram doesn't delete. In other words, you can back scroll that thing to the night potentially like in a text message when it goes down.
"So I think-I think that is more than enough of a connection that Juror Number 7 should be excused.
"THE COURT: [Prosecutor]?
"[PROSECUTOR]: Your Honor, I do have some experience with Instagram. You're not friends with someone on Instagram. You follow them or they follow you. It's very common to follow people just because people you know follow them.
"For instance, I follow celebrities. I can't really say that I'm friends with Conor McGregor but maybe I do follow him. So the fact that she's following her or the relative is-we don't even-we're not even sure it's a relative, but the fact that they may be following each other doesn't create a connection that would hinder this juror from being fair and impartial.
"It's clear that she hasn't communicated with this person. She barely recognized her. When she did recognize her, she didn't even know who she was related to, but she thought the person may be related to the defendant. She thinks the person may be related to Pablo.
"She's agreed she's not going to communicate with this person throughout this jury trial, and based on the juror's own statement, I don't even think they would consider each other friends. She said she went to high school with her. I went to high school with a lot of people that I don't consider them to be my friend.
"I think, based on that, Your Honor, I think she's still a juror capable of performing her duties fair and impartially. I think she should remain on the panel. Submit.
"THE COURT: [Defense counsel], final comments?
"[DEFENSE COUNSEL]: My understanding of what she said was they were friends of friends. It was a smaller town and a smaller high school. And my concern would also be that, you know, if she does or does not vote a certain way as it relates to this case, that knowledge, especially now that we've shined a light on it, might cause her certain issues or anxiety and may, in fact-could result in her thinking-saying, well, I better vote this way because if I see so-and-so and so-and-so sees so-and-so or I didn't vote guilty or I didn't, you know, that could cause her some problems.
"I think this is the very reason we pick alternate jurors, and I think this is the time for an alternate juror.
"THE COURT: Okay. She clearly said she wasn't favoring one side or the other because of it. She hardly knows the person. I'll bring her in again. I'll have her take a seat, seat 7. I'll ask a couple of more questions, then I'll make a final decision.
"I don't need further argument unless there's something new she says. Let's bring her back in." The trial court brought back Juror 7 into the courtroom and asked her the following questions:
"[THE COURT:] Do you still live in that same town?
"JUROR NO. 7: I do, yes.
"THE COURT: Have you seen this individual in that town in the last year?
“JUROR NO. 7: I don't think she lives there. I haven't seen her.
"THE COURT: Have you had any direct contact with her about anything either through social media or face-to-face?
"JUROR NO. 7: No. The only thing I can say contact is when we like each other's post, but that's it. I don't private message.
"THE COURT: She'll post something, and you'll like it or not like it?
"JUROR NO. 7: And vice versa.
"THE COURT: Let's say you're still a juror in this case. Let's say you go back to deliberate. Let's say you find the defendant not guilty, then you run into her. How are you going to feel?
"JUROR NO. 7: My-it's my opinion at the end of the day.
"THE COURT: Are you going to change what you decide?
"JUROR NO. 7: It's my opinion.
"THE COURT: Or the other way around. Let's say you vote guilty?
"JUROR NO. 7: Same answer.
"THE COURT: Okay. We'll see you back on the 16th. Thank you very much. If you're okay unfollowing her
"JUROR NO. 7: That's fine.
"THE COURT: -until this trial is over, I'm okay with that too.
"JUROR NO. 7: Okay. That's no problem.
"THE COURT: Thank you. "(Whereupon Juror No. 7 exited the courtroom.)
"THE COURT: She's unequivocally indicated she's not going to favor one side or the other or make a decision that would be affected by any knowledge that this person even exists. Liking or not liking a post on Instagram doesn't matter unless it's related to this case.
"At this point, I don't see a basis to excuse her. If there's something else that comes up, we can address it on the 16th. I understand the defense's position, and I would make the same request.
"I also understand the People's position, and I would make that same argument, but I don't see a basis to excuse her at this time. If she had said something like they had contact, that they were actually communicating-I know it's not Facebook but you can message and communicate through Instagram.
"You can forward things to another person that you see on Instagram. So if you like something, like [the prosecutor] talked about Conor McGregor, there's a post by Conor McGregor and [the prosecutor] liked that. He can forward that to another person that he follows on Instagram or that follows him, but we didn't hear any of that.
"There's none of that communication. It's just I like something you posted, or I don't like something you posted. The record is preserved for [defendant]. Again, if something else comes up, we'll address it."
B. Applicable Law
A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th &14th Amends.; Cal. Const., art. I, § 16; Irwin v. Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97, 110.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it."'" (In re Hamilton (1999) 20 Cal.4th 273, 294.) Upon a showing of good cause, section 1089 authorizes a court to discharge a juror who is "found to be unable to perform his or her duty . . .." (§ 1089.)
"'A sitting juror's actual bias, which would have supported a challenge for cause, renders [her] "unable to perform [her] duty" and thus subject to discharge and substitution ....'" (People v. Lomax (2010) 49 Cal.4th 530, 589.) "'Actual bias' in this context is defined as 'the existence of a state of mind on the part of the juror ... [that would] prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.'" (People v. Nesler (1997) 16 Cal.4th 561, 581.) "When a court is informed of allegations which, if proven true, would constitute good cause for a juror's removal, a hearing is required." (People v. Barnwell (2007) 41 Cal.4th 1038, 1051, italics omitted.) "'A trial may proceed if the court, after considering factors such as the communication's nature, the jurors' responses, and the curative ability of instructions [citation], finds that the jury can (and will) remain impartial and render a verdict based solely on the evidence, not the improper contact.'" (People v. Harris (2008) 43 Cal.4th 1269, 1304.)
"'The trial court's decision whether or not to discharge a juror under section 1089 is reviewed for abuse of discretion and will be upheld if supported by substantial evidence; to warrant discharge, the juror's bias or other disability must appear in the record as a demonstrable reality.'" (People v. Lopez (2018) 5 Cal.5th 339, 365.) "'The demonstrable reality test ... requires a showing that the court as the trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence . . .. [T]he reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.'" (People v. Armstrong (2016) 1 Cal.5th 432, 450-451.)
This is because "'"[a]ppellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record." [Citation.] As such, "the reviewing court generally must defer to the judge who sees and hears the prospective juror, and who has the 'definite impression' that [s]he is biased, despite a failure to express clear views."'" (People v. Mataele (2022) 13 Cal.5th 372, 395.)
C. Analysis
Here, the record does not establish that Juror 7's brief contact with the victim's family member on social media biased the juror in the prosecutor's favor. Rather, although Juror 7 followed the family member on Instagram, she and the family member had "graduated together in high school ten years ago [and Juror 7 had not] talked to her one-on-one since then." Further, Juror 7 did not "private message" with the family member on Instagram, but only "like[d] each other's post[s]." She subsequently informed the trial court she would unfollow the family member during the extent of the trial. Most importantly, Juror 7 repeatedly stated her prior contacts with the victim's family member would not influence her ability to be an impartial juror. Indeed, the trial court made an express finding Juror 7 "unequivocally indicated she's not going to favor one side or the other or make a decision that would be affected by any knowledge that this person even exists." Specifically, the trial court stated, "If she had said something like they had contact, that they were actually communicating[,] [¶] ... but we didn't hear any of that. [¶] There's none of that communication." The trial court did not "see a basis to excuse her" and thus, we defer to the court's credibility determination because it was in the best position to observe the juror's demeanor. (People v. Mataele, supra, 13 Cal.5th at p. 395.) Therefore, substantial evidence supports the trial court's conclusion that any bias on the part of Juror 7 was not a demonstrable reality. (People v. Lopez, supra, 5 Cal.5th at p. 365; see generally People v. Cochran (1998) 62 Cal.App.4th 826, 831 (Cochran) [holding that the statements by jurors, who knew victim's family members, that they could set aside this knowledge and fairly and impartially judge the case must be taken at "face value"]; People v. McPeters (1992) 2 Cal.4th 1148, 11741175 (McPeters) [trial court did not err by refusing to dismiss juror who knew and "thought highly" of a witness because he affirmed his belief he could be fair and impartial], superseded by statute on another ground as stated in People v. Boyce (2014) 59 Cal.4th 672, 707.)
Nonetheless, defendant argues "the ongoing online relationship between [Juror 7] and the victim's family member" biased the juror against defendant and deprived him of his rights to an impartial jury, a fair trial, and due process under both the federal and state Constitutions. Specifically, defendant attempts to distinguish this case from McPeters, supra, 2 Cal.4th 1148, and Cochran, supra, 62 Cal.App.4th 826. As noted above, we find both cases instructive.
In McPeters, our Supreme Court upheld the trial court's decision to keep a juror in place notwithstanding his initial failure during voir dire to disclose that he knew the victim's husband, whose name was read out as a possible trial witness. (McPeters, supra, 2 Cal.4th at p. 1174.) Before opening statements were delivered, the juror notified the trial court and the parties that he might be acquainted with the witness in connection with a real estate transaction. (Ibid.) Defense counsel objected, but the trial court questioned the juror further and found the juror had no bias, express or implied, and would be a fair and impartial juror. (Id. at pp. 1174-1175.) Specifically, theMcPeters court concluded:
"[T]he trial court did not abuse its discretion in finding [the juror's] nondisclosure to be inadvertent and, further, in finding no express or implied bias on his part. In the context of voir dire examination, it is conceivable a juror might not immediately remember the name of a real estate agent with whom he had recently dealt or recognize the agent's name on a long list of witnesses. Notwithstanding his contact with [the victim's husband], which in any event was brief and not naturally or inevitably productive of bias, [the juror] affirmed his belief he could be fair and impartial. His candid disclosure of the contact even before the trial began further supports his determination to be a fair and impartial juror. Under these circumstances, neither [the] defendant's Sixth Amendment rights nor his rights under section 1089 were infringed." (McPeters, at p. 1175.)
Further, in Cochran the court concluded the defendant was not deprived of a fair trial when "two jurors disclosed after the trial began that they knew relatives of the victim." (Cochran, supra, 62 Cal.App.4th at p. 830.) The first juror's "acquaintance with the aunt of the mother of the child [victim] was very minimal, that they had daughters who went to school together but that she felt she could be fair and impartial." (Ibid.) The second juror "recognized a woman in the courtroom who turned out to be the grandmother or great grandmother of the victim ... [but] only recognized the woman and really did not know her ... [but] [s]he further indicated that she could be fair and impartial." (Ibid.) The Cochran court concluded, "The relationship between the jurors and victim's family was extremely distant and we ... take the statements of the jurors that they could set aside this knowledge of family and judge the case fairly and impartially at face value" and therefore, "the presumption of prejudice has been overcome by the circumstances and content of the nondisclosure as well as the strength of the case." (Id. at p. 831.)
Similar to McPeters and Cochran, Juror 7's contacts with the victim's family member were "brief and not naturally or inevitably productive of bias." (McPeters, supra, 2 Cal.4th at p. 1175.) Further, as noted above, Juror 7 "affirmed h[er] belief [s]he could be fair and impartial" (ibid.), and therefore, the trial court did not abuse its discretion in keeping the juror seated because we "take the statements of the juror[] that [she] could set aside this knowledge of family and judge the case fairly and impartially at face value." (Cochran, supra, 62 Cal.App.4th at p. 831.) Accordingly, in light of that conclusion, any presumption of prejudice stands rebutted, and the trial court did not abuse its discretion in refusing to discharge Juror 7. Because we conclude it was not substantially likely Juror 7 was actually biased, we do not address defendant's additional argument any error by the trial court in refusing to excuse Juror 7 requires "reversal without consideration of actual prejudice." (People v. Marshall (1990) 50 Cal.3d 907, 951.)
II. The Trial Court Properly Admitted the Facts Underlying Defendant's 2013 DUI Conviction
Defendant further contends the trial court prejudicially erred in admitting the facts underlying his 2013 DUI conviction, and that the admission of this evidence rendered his trial fundamentally unfair under both the state and federal Constitutions. We again disagree.
Although defendant did not raise constitutionally based objections to the other act evidence in the trial court, he is permitted to claim admission of this evidence, insofar as assertedly erroneous for the reasons presented to the trial court, had the additional legal consequence of violating the federal and state Constitutions. (People v. DePriest (2007) 42 Cal.4th 1, 19, fn. 6.) Accordingly, because we find his claims sufficiently preserved for appeal, we do not address his assertion that if the claims are not cognizable, trial counsel's failure to preserve them constituted ineffective assistance of counsel.
A. Additional Factual Background
To prove implied malice for purposes of count 1, the prosecution moved to admit the facts underlying defendant's 2013 DUI conviction. Specifically, the prosecution argued the facts of the prior DUI conviction should be "admitted for purposes of proving defendant's knowledge of the dangers to human life and his conscious disregard of such dangers under implied malice murder theories." Defendant moved to exclude reference to his 2013 DUI because the plea was taken without the benefit of counsel, and in any event, it was also inadmissible under both Evidence Code sections 1101 and 352. At the evidentiary hearing, trial counsel further argued evidence of the prior DUI should be excluded because it did not involve reckless driving.
The trial court concluded the prior DUI conviction was admissible and relevant to the issue of implied malice. Specifically, the relevant exchange occurred between the trial court, the prosecutor, and trial counsel:
"THE COURT: I'm going to let it in, and specifically I'm referencing [People v. McCarnes (1986) 179 Cal.App.3d 525]. 'The trial court held that prior DUI convictions were so substantial on the issue of knowledge and conscious disregard that it's [sic] probative value outweighed the danger of undue prejudice.'
"That's on page 532 of the opinion. The Court of Appeal concluded, quote-or this quote was not and could not even remotely be considered an abuse of discretion, end quote. I'm not worried about what someone else thinks of my rulings frankly ever, but I am always cognizant of trying to make the right rulings, what's fair to the defendant and to the People and certainly lawful.
"CALCRIM 520-it's also referenced by [the prosecutor] in his brief-but that kind of gives the definition of what implied malice's definition is. And, therefore, the prior DUI conviction itself is relevant along with the Watson advisal, and the fact that he went to TAASK class, assuming there's someone that will come in and talk about what is provided during the TAASK class that the defendant attended.
"For instance, it might be something like here are photographs of or videos of people that have been killed. Here's someone under the influence. You can see how they behave, et cetera. I've never been to a TAASK class so I don't know exactly what's part of it. Assuming it's relevant to that issue, it would be admissible.
"In regard to the length of time that the plea took, I don't find that to be relevant. It's a conviction. That's it. As to the facts of the case, I thought there was something in one of your briefs, but I don't see it right off the top of my head now.
"Is there someone that is going to testify as to the driving pattern or something like that?
"[PROSECUTOR]: Yes, Your Honor. We have the officer on our witness list.
"THE COURT: Can you remind me-if it's in your brief, can you point it out to me because I don't see it right now?
"[PROSECUTOR]: Are you talking about the argument in regard to the prior?
"THE COURT: In regard to the facts of the prior.
"[PROSECUTOR]: Page 11.
"THE COURT: Let me turn back. Okay. It's page 11, line 23. In defendant's prior DUI conviction from September 15, 2013, he was seen driving recklessly burning out by Delano Police Officer Nunez. There was a blood test. [¶] And the blood test was .12?
"[PROSECUTOR]: YES. [¶] ... [¶]
"THE COURT: Without Nunez the prior facts don't come in. But as far as how long the plea took, that's not the issue right now. It's whether or not the defendant knew the dangers and whether or not it meets the requirements under the description of implied malice."
At the close of evidence and prior to jury deliberation, the trial court instructed the jury that "certain evidence was admitted for a limited purpose" (CALCRIM No. 303) and that they could only consider the 2013 DUI conviction for the "limited purpose of whether . defendant had the knowledge or mental state or intent required for [c]ount 1, second degree murder" (CALCRIM No. 2125).
B. Applicable Law
The general rule is "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a); see People v. Ewoldt (1994) 7 Cal.4th 380, 393.) However, under Evidence Code section 1101, subdivision (b), "evidence that a defendant has committed an offense ... may be received to establish, among other things, identity, intent, motive, . . . plan," or knowledge. (People v. Bradford (1997) 15 Cal.4th 1229, 1316.)
This court reviews questions concerning the admissibility of evidence for an abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 717.) This includes a trial court's decision to admit "other crimes" evidence pursuant to Evidence Code section 1101, subdivision (b). (People v. Scully (2021) 11 Cal.5th 542, 587 ["We review the trial court's ruling on the admissibility of other crimes evidence for abuse of discretion"].) Our review examines "the evidence in the light most favorable to the trial court's ruling." (People v. Edwards (2013) 57 Cal.4th 658, 711.) We will not disturb the trial court's ruling absent a showing the court "'"exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (People v. Morales (2020) 10 Cal.5th 76, 97.)
In Watson, supra, 30 Cal.3d 290, our Supreme Court held that murder charges may arise out of vehicle accidents where the evidence reveals implied malice when "a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Id. at p. 296.) "[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (Id. at pp. 296-297.)
For example, in People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz), a jury found the defendant guilty of second degree murder after several witnesses reported seeing the defendant driving in an aggressive and reckless manner immediately preceding the crash. (Id. at pp. 107-108.) The defendant was not intoxicated. (Id. at p. 108.) Nevertheless, at trial, the prosecution introduced evidence of the defendant's three prior DUI's, traffic citations, instances of reckless driving, and the defendant's participation in DUI counseling. (Id. at pp. 108-109.) The prosecution claimed the evidence was admissible under Evidence Code section 1101, subdivision (b) to prove the defendant's knowledge of the dangers posed by reckless driving. (Id. at pp. 111-112.)
The Court of Appeal concluded the trial court did not abuse its discretion in admitting the evidence. (Ortiz, supra, 109 Cal.App.4th at pp. 112, 116.) Relying on Watson, the court agreed the prior DUI evidence could be admitted under Evidence Code section 1101, subdivision (b) to prove the defendant's knowledge of the dangers his driving poses. (Ortiz, supra, at p. 112.) Specifically, the court stated, "[C]ourts have recognized repeatedly that a motor vehicle driver's previous encounters with the consequences of recklessness on the highway-whether provoked by the use of alcohol, of another intoxicant, by rage, or some other motivator-sensitizes him to the dangerousness of such life-threatening conduct." (Ibid.)
Generally, cases along the lines of Ortiz involve the admission of prior DUI evidence to prove implied malice in vehicular murder cases. (See, e.g., People v. Moore (2010) 187 Cal.App.4th 937, 943 [holding that in a non-DUI vehicular murder case, trial court did not err in admitting evidence of prior DUI because "[t]he jury could reasonably conclude that [the defendant's] prior conviction put him on notice of the consequences of driving with extreme recklessness"]; People v. Brogna (1988) 202 Cal.App.3d 700, 707 [concluding trial court did not abuse its discretion admitting evidence of defendant's prior DUI's and participation in drunk driver counseling to "prove the knowledge element of implied malice"]; People v. McCarnes, supra, 179 Cal.App.3d at pp. 532-533 [rejecting the defendant's claim the trial court prejudicially erred in admitting evidence of four prior DUI convictions in murder case arising from DUI].) Furthermore, evidence of bad driving, even though an individual was not under the influence of drugs or alcohol at the time of the collisions, is also admissible to prove implied malice. (See People v. Eagles (1982) 133 Cal.App.3d 330, 338-340 [in a vehicular manslaughter trial, the trial court properly admitted testimony the defendant was speeding and weaving in and out of traffic the afternoon before the collision]; see also People v. Contreras (1994) 26 Cal.App.4th 944, 954-955 [holding the defendant could be charged with murder arising from a vehicle collision "even though he was sober and was not involved in a high-speed chase with police at the time of the fatal collision"].)
C. Analysis
1. Evidence Code Section 1101, Subdivision (b)
Here, the trial court did not abuse its discretion in admitting the facts underlying defendant's 2013 DUI conviction pursuant to Evidence Code section 1101, subdivision (b), because it was relevant for establishing implied malice for purposes of proving second degree murder (count 1). As the trial court stated on the record, the issue is "whether or not ... defendant knew the dangers and whether or not it meets the requirements under the description of implied malice." The facts of the prior DUI, where defendant was driving a vehicle at a high rate of speed, "'increase[d] [his] subjective awareness of the perils of driving badly and speeding'" and the trial court had "'to find out what he was exposed to that most people aren't exposed to in order to understand his level of awareness of the dangers of driving badly.'" (Ortiz, supra, 109 Cal.App.4th at p. 116, italics omitted.) Accordingly, the trial court did not err in admitting evidence of this prior DUI pursuant to Evidence Code section 1101, subdivision (b).
Nonetheless, defendant argues the trial court erred in admitting evidence of his prior DUI because "there was nothing from the facts underlying the prior conviction that would have demonstrated the dangers of drinking and driving, such as an accident, near accident, or blacking out." We disagree. The prior DUI evidence was still relevant even though defendant was not involved in a collision or near collision. Officer Nunez testified he observed defendant driving at a high rate of speed, causing the vehicle to lose control to the right. Although there was no evidence defendant was involved in a traffic collision, defendant's reckless driving "increase[d] [his] subjective awareness of the perils of driving badly and speeding" (Ortiz, supra, 109 Cal.App.4th at p. 116, italics omitted), and as stated above, our courts have consistently held that an individual's prior DUI and/or bad driving is admissible to prove implied malice for purposes of second degree murder. (See People v. Moore, supra, 187 Cal.App.4th at p. 943; People v. Brogna, supra, 202 Cal.App.3d at p. 707; People v. McCarnes, supra, 179 Cal.App.3d at pp. 532-533; see also People v. Eagles, supra, 133 Cal.App.3d at pp. 338-340; People v. Contreras, supra, 26 Cal.App.4th at pp. 954-955.) Accordingly, we conclude the trial court did not abuse its discretion in admitting evidence of the prior DUI pursuant to Evidence Code section 1101, subdivision (b). The record indicates the trial court considered this 2013 DUI evidence for that limited purpose and thus, the trial court's ruling was not arbitrary, and defendant points to nothing in the record to suggest manifest injustice arose from its decision. (People v. Morales, supra, 10 Cal.5th at p. 97.)
Defendant further contends "the underlying facts of the [2013 DUI] conviction were also more prejudicial than probative under Evidence Code section 352." We again disagree.
"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." (Evid. Code, § 352.) "'[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)
Here, Ortiz is again instructive. The Ortiz court concluded, "[T]he trial court did not abuse its discretion in admitting the challenged uncharged misconduct evidence relating to [the] defendant's prior drunk-driving arrests at his trial." (Ortiz, supra, 109 Cal.App.4th at p. 112.) The court noted minimal potential for prejudice existed because evidence of the prior acts were "'no stronger and no more inflammatory than the testimony concerning the charged offenses.'" (Id. at p. 118.) Finally, the trial court instructed the jury it could only consider evidence of prior misconduct for the limited purpose of evaluating the defendant's intent. (Ibid.)
The trial court in this case conducted an Evidence Code section 352 analysis and admitted the evidence because "'prior DUI convictions [are] so substantial on the issue of knowledge and conscious disregard that it's [sic] probative value outweighed the danger of undue prejudice.'" The risk of prejudice was low because the facts of this case involved a DUI collision with a fatality and serious injuries, whereas the prior DUI was "'no stronger and no more inflammatory than the testimony concerning the charged offenses'" because it only involved reckless driving and a traffic stop. (Ortiz, supra, 109 Cal.App.4th at p. 118.) Lastly, the trial court instructed the jury, the 2013 DUI evidence was offered for the limited purpose of deciding whether this prior DUI can establish defendant had the knowledge or mental state or intent required for second degree murder. Therefore, the trial court did not abuse its discretion because it properly conducted an Evidence Code section 352 analysis.
3. No Due Process Violation Occurred and Any Alleged Error Was Harmless
Defendant further contends the admission of the facts underlying the 2013 DUI violated his rights to due process and a fair trial and prejudiced his case. We conclude defendant's constitutional rights were not violated. However, even if we concluded the trial court erred in admitting evidence of the prior conviction, any error was harmless.
Defendant argues the alleged error triggers review under Chapman v. California (1967) 386 U.S. 18. He claims it violated his federal constitutional rights to due process and to a fair trial. We disagree. "'The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.'" (People v. Jablonski (2006) 37 Cal.4th 774, 805.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [People v.] Watson [(1956) 46 Cal.2d 818, 836] test." (People v. Partida (2005) 37 Cal.4th 428, 439 [defendant's right to due process was not violated when the trial court admitted gang evidence over an Evid. Code, § 352 objection]; People v. Westerfield (2019) 6 Cal.5th 632, 700 [purported error in allowing evidence prohibited by Evid. Code, § 1101, subd. (a) did not result in a due process violation].)
Here, we fail to see how the admission of the 2013 DUI conviction rendered defendant's trial fundamentally unfair. By the time the evidence was introduced, the jury heard multiple witnesses' testimony surrounding defendant's reckless driving, the events leading up to the collision, defendant's high BAC of 0.241 percent, and evidence of the collision scene. In relation to the underlying case, the 2013 DUI evidence was comparatively innocuous. Moreover, as noted above, the jury was instructed it could only consider this evidence for the limited purpose of establishing knowledge. Therefore, no due process violation occurred, and the Watson standard of prejudice applies to the assumed error. This standard requires the defendant to establish "that it is '"reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (People v. Gonzalez (2018) 5 Cal.5th 186, 195, quoting People v. Watson, supra, 46 Cal.2d at p. 837.)
Specifically, defendant argues this evidence was prejudicial because "for the jury tasked with making subjective assessments of [his] mental state, the prejudicial effect of the bad character evidence-the visual image of [his] engaging in burnouts while under the influence in the prior offense-was particularly likely to influence that assessment." We disagree. Because "a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard" (Watson, supra, 30 Cal.3d at pp. 296-297), prior acts evidence is relevant in determining whether the individual had the subjective knowledge required to establish implied malice. (Ortiz, supra, 109 Cal.App.4th at pp. 113-115.)
Further, defendant argues this evidence prejudiced his case because "the facts underlying the prior conviction caused the jury to view [him] not only in a negative light but in the worst possible light." We again disagree. First, the jury was instructed it could only consider the prior DUI conviction for the "limited purpose of whether ... defendant had the knowledge or mental state or intent required for [c]ount 1, second degree murder" (see CALCRIM No. 2125), and that it could consider "that evidence only for that purpose and for no other" (CALCRIM No. 303; see People v. Pearson (2013) 56 Cal.4th 393, 414 ["We presume that jurors understand and follow the court's instructions"]).
Second, even assuming the jury impermissibly used the evidence, it is not reasonably probable defendant would have received a more favorable verdict. Evidence in support of the second degree murder charge was overwhelming. The jury heard testimony from multiple witnesses regarding defendant's erratic driving and that he was speeding at 103 miles per hour immediately before the collision. Further, the jury heard evidence defendant had a BAC of 0.241 percent, three times the legal limit. Lastly, the jury heard evidence defendant attended and completed the TAASK DUI program, where he was informed of the dangers of drinking and driving and specifically reminded of the Watson admonition several times throughout the curriculum. Defendant was required to sign a page acknowledging the counselors discussed the Watson advisement with defendant and he understood what it entailed. Accordingly, the evidence of implied malice was so overwhelming even if the jury did not hear facts of the 2013 DUI, it was not reasonably probable he would have received a more favorable result, thus any error in admitting the evidence was harmless.
III. Recent Amendments to Section 1170
Defendant further contends he is entitled to be resentenced consistent with the recent amendments to section 1170, specifically the changes made by the enactment of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124). The People concede defendant is entitled to the benefit of recent legislation and that remand is required. And we agree defendant is entitled to the retroactive benefits of Senate Bill 567 and Assembly Bill 124.
Prior to Senate Bill 567, section 1170, subdivision (b) provided as follows:
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and 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. A term of imprisonment shall not be specified if imposition of sentence is suspended." (§ 1170, former, subd. (b).)
As amended effective January 1, 2022, section 1170, subdivision (b) provides in relevant part, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term." (§ 1170, subd. (b)(1).) "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term ... 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." (Id., at subd. (b)(2).)
Further, Assembly Bill 124 sets a presumption the trial court will impose the lower term under enumerated circumstances, such as where an offender's childhood trauma or youth were contributing factors in the offense. The legislation adds subdivision (b)(6) to section 1170 and states:
"(6) Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
"(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
"(B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
"(C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking." (§ 1170, subd. (b)(6); Stats 2021, ch. 695, § 5.1, eff. Jan. 1, 2022.)
Section 1016.7, subdivision (b), states: "A 'youth' for purposes of this section includes any person under 26 years of age on the date the offense was committed."
As this case is not yet final, defendant is entitled to the retroactive application of section 1170, as amended by Senate Bill 567 and Assembly Bill 124, because the amendments are ameliorative, and nothing indicates the Legislature intended the amendments to apply solely prospectively. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039.)
Here, because defendant was 24 years old at the time of the offense, it is possible his age "was a contributing factor in the commission of the offense" that may require imposition of the lower term. (§ 1170, subd. (b)(6).) We do not address the merits of defendant's claim regarding the application of Senate Bill 567 to his sentence because remand is necessary under Assembly Bill 124. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"]; accord, People v. Buycks (2018) 5 Cal.5th 857, 893 ["the full resentencing rule"].)
DISPOSITION
Defendant's sentence is vacated and this matter is remanded for a resentencing hearing consistent with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J. DE SANTOS, J.