Filed 8/17/22 P. v. Arias CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant Michael Santos Arias of felony evasion of a peace officer and misdemeanor trespass, resisting a peace officer, leaving the scene of an accident, and possession of drug paraphernalia. The trial court sentenced Arias to the upper term of three years in prison for his felony evasion conviction and concurrent county jail terms for each of the four misdemeanor convictions.

On appeal, Arias claims that the evidence was insufficient to support a conviction for trespass. In addition, he asserts the enactment of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which amended Penal Code section 1170, subdivision (b), effective January 1, 2022, requires that the matter be remanded to the trial court for resentencing. Finally, he requests that the abstract of judgment and the sentencing minute order be modified to reflect the trial court’s oral pronouncement of judgment.

For the reasons explained below, we reject Arias’s challenge to his trespass conviction, but we vacate his sentence and remand the matter for resentencing under amended Penal Code section 1170, subdivision (b).

I. Facts and procedural background

A. Procedural History

In August 2021, the Monterey County District Attorney filed a complaint charging Arias with felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a); count 1) and six misdemeanors: aggravated trespass (Pen. Code, § 602.5, subd. (b);[1] count 2); vandalism under $400 (§ 594, subd. (b)(2)(a); count 3); resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1); count 4); leaving the scene of an accident (Veh. Code, § 20002, subd. (a); count 5); possession of paraphernalia used for unlawfully injecting or smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a); count 6); and possession of burglar’s tools (§ 466; count 7). The complaint further alleged that Arias had suffered a prior strike conviction for residential burglary in Nevada in 2016 (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)). The parties subsequently stipulated that the complaint be deemed the information.

In November 2021, a jury found Arias guilty of count 1 (felony evasion), count 2 (aggravated trespass), count 4 (resisting an officer), count 5 (leaving the scene of an accident), and count 6 (possession of drug paraphernalia). The jury found Arias not guilty of count 3 (vandalism under $400) and count 7 (possession of burglar’s tools). Based on the evidence presented at trial, the parties stipulated that count 2 be amended to reflect a violation of simple trespass under section 602.5, subdivision (a), instead of the previously alleged aggravated trespass under section 602.5, subdivision (b). A guilty verdict was entered as to simple trespass (§ 602.5, subd. (a)).

In a separate court trial, the trial court found not true the prior strike allegation. The court concluded that the records of Arias’s 2016 Nevada residential burglary conviction (submitted as exhibits to the district attorney’s in limine motion) did not establish that that conviction constitutes a strike under California law.

On December 10, 2021, the trial court sentenced Arias on count 1 to the upper term of three years in state prison. It also imposed 180-day jail terms for each of the four misdemeanor convictions (counts 2, 4–6), to be served concurrently with the prison sentence. In addition, the court ordered Arias to pay various fees and assessments and a restitution fine (§ 1202.4, subd. (b)). The court also imposed and suspended a parole revocation restitution fine (§ 1202.45) in the same amount as the restitution fine.[2]

Arias timely appealed.

B. Evidence Presented at Trial

On June 11, 2020, at approximately 3:51 a.m., uniformed City of Carmel-by-the-Sea Police Officers Anthony Gotelli and Greg Johnson were on duty in separate marked patrol cars. While parked beside Officer Johnson’s patrol car at a street corner in Carmel, Officer Gotelli observed a vehicle (driven by Arias) with expired registration tags driving on the wrong side of the roadway. Gotelli turned on his overhead lights to effect a traffic stop.

Arias continued driving as Officer Gotelli followed him. During a pursuit through a residential area, Arias failed to stop at several stop signs and accelerated up to a speed of around 70 to 75 miles per hour. Arias’s car finally stopped after colliding with a stop sign and a tree near a dirt embankment.

Arias got out of his car and ran away. He did not comply with Officer Johnson’s command to show his hands. Officer Johnson chased after Arias and ordered him to get on the ground, but Arias continued running. During the chase, Arias discarded his wallet containing his Nevada driver’s license. He ran into a home’s backyard, and Officers Johnson and Gotelli lost sight of him. Other police officers responded and heard sounds indicating that Arias was running through the backyards of residences.

Around the same time, a resident in the area, Mr. Taylor, was awoken by a “boom” and the sound of someone running across the roof of his house. Taylor saw a man jump from the roof onto a table on a deck. The man ran onto an adjacent lower deck and then jumped off that deck into the backyard. The backyard included a structure that is separate from the house and served as Taylor’s office. Taylor heard police officers at his front gate. He let them onto the property and led them to his backyard. Taylor turned on some lights in his backyard and saw Arias. Police took Arias into custody after he walked out from behind the office structure saying, “ ‘Okay. I’m giving up.’ ”

Police officers “had to clear the residence because three open doors were located.” One of the open doors led from the backyard into a bedroom inside the house. The two other open doors were double doors which led into the separate office structure in the backyard. Taylor testified that he worked as an attorney and had “no doubt” he shut the doors to his office when he last used it. He also said that the door leading into the bedroom was closed when he went to bed that night.

Police Officer Gerald Maldonado searched Arias’s car and found bolt cutters and a methamphetamine pipe inside. Officer Maldonado also spoke to Arias. Arias said he was from Nevada and in the area because he had met a woman online. Arias further said that when he was driving and saw the officers trying to stop him, he fled because he knew his driver’s license was suspended and did not want to lose his car. Arias confirmed that all the items found inside the car belonged to him.

Arias presented no witnesses in his defense.

II. Discussion

Arias contends that the evidence was insufficient to support a conviction for trespass (count 2) and this matter should be remanded for resentencing in light of Senate Bill 567’s amendments to section 1170, subdivision (b). Additionally, Arias requests that the abstract of judgment and the sentencing minute order be corrected to reflect the trial court’s oral pronouncement of judgment regarding the restitution fines. We address these issues in turn.

A. Sufficiency of Evidence for Trespass

Arias contends that his trespass conviction must be reversed for insufficient evidence because (1) the detached home office was not a “noncommercial dwelling house, apartment, or other residential place” under section 602.5, subdivision (a) (hereafter, section 602.5(a)), and (2) the prosecution failed to prove beyond a reasonable doubt that Arias actually entered any of the structures. We address the latter issue first.

1. Legal Principles

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Powell (2018) 5 Cal.5th 921, 944; see also Jackson v. Virginia (1979) 443 U.S. 307, 318–319; People v. Jimenez (2019) 35 Cal.App.5th 373, 392.) “In applying this test, we . . . presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) “We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence.’ ” (Ibid.) “ ‘We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (Ibid.) “However, ‘[a] reasonable inference . . . “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.” [Citation.]’ ” (People v. Davis (2013) 57 Cal.4th 353, 360 (Davis).)

The offense of unauthorized entry of property, commonly known as trespass, is set forth in section 602.5. Section 602.5(a) makes it a misdemeanor for a person to “enter[] or remain[] in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or the person in lawful possession thereof . . . .” Although Arias was charged with aggravated trespass,[3] the parties stipulated during trial to conform the information to proof to reflect a violation of section 602.5(a). The jury was instructed on the elements of simple trespass: “To prove that the defendant is guilty of [trespass], the People must prove that: 1. The defendant willfully entered or remained in a noncommercial dwelling house or other residential place belonging to someone else; [¶] 2. The defendant entered or remained without the consent of the owner or person in lawful possession of the property.” (See CALCRIM No. 2932.)

2. Substantial Evidence of Entry

Arias contends there is no evidence in the record that he “entered” the detached office space or the main residence. He asserts that the testimony regarding the three open doors may support an inference that he opened the doors hoping to find a suitable hiding place but is insufficient to establish “actual entry” as a required element of trespass. The Attorney General points to no evidence to support entry other than the opened doors. The Attorney General relies on case authority interpreting the analogous requirement of entry in the context of burglary, whereby “any slight crossing” of the dwelling space’s outer boundary (People v. Yarbrough (2012) 54 Cal.4th 889, 894 (Yarbrough)) constitutes “an entry for purposes of the burglary statute” (ibid.).

Accepting, as we must, the “ ‘logical inferences that the jury might have drawn from the circumstantial evidence’ ” (Zamudio, supra, 43 Cal.4th at p. 357), we conclude the evidence of the open door into the bedroom of Taylor’s house was substantial evidence sufficient to support the jury’s determination of guilt.

Taylor testified that he was awoken by the noise as Arias ran “across the roof” and jumped onto a lower deck of the house, then into the backyard. After the officers (who had arrived around the same time) apprehended Arias in Taylor’s backyard, they “had to clear the residence because three open doors were located.” One of the open doors led from the backyard into a guest bedroom in the house on the lower level. The two other open doors were double doors which led into the separate office structure. Photographs admitted in evidence showed that both the bedroom door and the double doors into the office opened inward. Taylor had “no doubt” he had shut the doors to the office when he had last used it and that the door leading into the bedroom was closed when he went to bed that night. In closing argument, the prosecutor told the jury that Arias committed trespass when he “willfully entered a residential place”—namely the “study” (detached office) and “guest bedroom” facing the backyard, both of which had doors that law enforcement found open.

Arias claims that while there was circumstantial evidence that he opened the doors, there is no evidence that he “penetrated the area behind the door” and so “it cannot be said beyond a reasonable doubt that there was an entry.”

This argument ignores that an appellate court “ ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence.’ ” (Zamudio, supra, 43 Cal.4th at p. 357.) Focusing first on entry into the guest bedroom of the house, the evidence presented to the jury established that the door had been closed when Taylor went to sleep that night. When the police apprehended Arias in Taylor’s backyard, after his flight across the roof and decks into the backyard, the door was open. Based on the photograph depicting the bedroom door, which opened inward, the jury could have reasonably inferred that at least some part of Arias’s hand or wrist “entered” the bedroom when he opened the door during his attempt to flee or hide.

Case authority interpreting the entry requirement in the burglary context supports this inference. Like trespass, the crime of burglary requires entry. “A person who ‘enters any house . . . with intent to commit . . . larceny or any felony is guilty of burglary.’ (§ 459.)” (Magness v. Superior Court (2012) 54 Cal.4th 270, 273 (Magness).) Indeed, “the essence of burglary is ‘ “ ‘an entry which invades a possessory interest in a building.’ ” ’ ” (Yarbrough, supra, 54 Cal.4th at p. 892.) As our high court has explained with respect to burglary, “It has long been settled that the slightest entry by any part of the body or an instrument is sufficient: ‘As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient . . . .’ ” (Magness, supra, at p. 273, italics added.)

It is true that a defendant who opens a door without entering or penetrating the structure may not be convicted of burglary. (Magness, supra, 54 Cal.4th at p. 278.) The California Supreme Court in Magness confirmed that a defendant who stood in the driveway of a residence and used a remote control to open a motorized garage door “did not commit burglary because he did not enter the residence” and “[n]othing penetrated the outer boundary of the residence.” (Ibid.) The Supreme Court compared the facts to that of a would-be intruder opening an unlocked sliding glass door into a residence: “Assuming the sliding door is the interior pane of a double-pane frame, sliding it open would cause the door to displace the air inside the residence. If the would-be intruder were to stop before any part of his body or any instrument under his control crossed the door’s threshold, then no burglary would have occurred.” (Ibid.)

In contrast to a remotely operated garage door or an unlocked sliding glass door (see Magness, supra, 54 Cal.4th at p. 278), it is reasonable to infer that some amount of penetration beyond the threshold would naturally occur when using a handle to open a door that itself opens into a room. The jury could have reasonably inferred from the evidence that, in opening the door, at least some part of Arias’s body entered the guest bedroom. The jury’s inference that when Arias opened the doors, he “enter[ed]” for purposes of committing a simple trespass (§ 602.5(a)) was therefore both appropriate and unexceptional, and Arias points to no case authority that suggests otherwise.

Nor has our research uncovered any case authority—in the context of either trespass or burglary—that would suggest the jury’s inference was unreasonable. To the contrary, courts recognize the appropriate role of inference by the factfinder based on circumstantial evidence. For example, People v. Goode (2015) 243 Cal.App.4th 484 (Goode) involved a similar use of inference in a case involving burglary of a residence via a metal storm door. The defendant in Goode challenged his conviction by arguing “ ‘[t]he evidence was insufficient to establish [he] actually opened the metal door,’ and, in any event, ‘there was zero evidence . . . that he actually put some part of his body on the interior side of that door.” (Goode, at p. 486.) In affirming the burglary conviction, the Court of Appeal explained that the storm door formed the outer boundary of the home. (Id. at p. 489.) The court reasoned that based on the testimony of the resident, who was awoken by the “particular sound” the storm door made when opened or closed (id. at p. 487), there was substantial evidence that the defendant opened the door (id. at p. 490). Further, the court rejected the contention that there was no substantial evidence the defendant penetrated the area behind the storm door because, based on the sounds the resident heard (the metal door noise, followed by jiggling of the window) and applying the required inferences on appellate review, the circumstantial evidence was sufficient for the jury to have reasonably inferred that the defendant opened the storm door in his attempt to gain entry before proceeding to the window. (Id. at pp. 490–491.)

For these reasons, we conclude that substantial evidence supports the inference that in opening the door to the guest bedroom and the detached office, Arias—or at least some part of his body, such as his finger, hand, or wrist—entered those structures. Since there is no dispute the guest bedroom was part of the main residence and within the scope of section 602.5(a), we need not decide whether the detached office constituted a “noncommercial dwelling house, apartment, or other residential place” for purposes of section 602.5(a).[4]

B. Upper Term Sentence for Felony Evasion

Arias contends he is entitled to a remand for resentencing on count 1 (felony evasion (Veh. Code, § 2800.2, subd. (a))) due to recent changes made by Senate Bill 567 to section 1170, subdivision (b) (hereafter, section 1170(b)). The Attorney General agrees with Arias that current section 1170(b) applies to this case. However, the Attorney General asserts that a remand is not required because the trial court properly relied on Arias’s 2016 Nevada residential burglary conviction to impose the upper term sentence on count 1 and, regardless, any error was harmless.

1. Background

At Arias’s sentencing hearing, Arias’s trial counsel asked the trial court to impose the middle term on count 1 along with concurrent sentences for Arias’s four misdemeanor convictions. Counsel asserted that Arias’s crimes involved “a single period of aberrant behavior.” Counsel also asked the court to take into consideration that Arias had accepted responsibility for most of the charged crimes, no one was injured during the incident, and Arias had acted in an “exemplary” manner during trial.

Before imposing the upper term for count 1, the trial court found that Arias was not eligible for probation and noted, under California Rules of Court, rule 4.414(a)(1), the seriousness of Arias’s crime, “[p]articularly the [Vehicle Code section] 2800.2 [offense, which was] very grave compared to other instances of the same conduct, also aggravated by the numerous other offenses, misdemeanor offenses, that occurred and arose out of the same set of circumstances.”

In addition, the trial court disagreed with Arias’s trial counsel that the current crime was “one incident of aberrant behavior,” noting Arias’s “very lengthy criminal history.” The court referred to the probation officer’s report which lists numerous convictions from Nevada, including six misdemeanor convictions between 2003 and 2011, a felony conviction in 2012, additional misdemeanor convictions in 2012 and 2013, a domestic violence misdemeanor conviction in 2015, a felony conviction for residential burglary in 2016, a misdemeanor conviction in 2017, and two felonies and a misdemeanor conviction (and another misdemeanor charge) in 2020. The court also noted that Arias had a pending case in California for which a warrant had been issued. Furthermore, the court mentioned that Arias had not entered any guilty pleas prior to trial and the district attorney had recommended the upper term for count 1 and consecutive misdemeanor sentences.

The trial court said that it would impose the upper term on count 1 and concurrent sentences on the misdemeanors. The court explained that its imposition of concurrent misdemeanor sentences, “in part, justifies imposing the upper term on the felony charge.” In addition, the court stated that some aggravating factors listed in the California Rules of Court supported the upper term, including that Arias’s “prior convictions are numerous and increasing in seriousness,” Arias had served a prior prison term, he was on probation at the time he committed the instant offense, and his performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(2)–(5)).

2. Legal Principles

Current section 1170, subdivision (b)(1) directs a trial court to impose not more than the middle term of a sentencing triad “except as otherwise provided in paragraph (2).”[5] Paragraph (2) provides: “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2), italics added.[6]) Paragraph (3) provides: “Notwithstanding paragraphs (1) and (2) [of section 1170(b)], the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)

Section 1170, subdivision (b)(4) provides: “The court may consider the record in the case, the probation officer’s report, other reports, including reports received pursuant to [s]ection 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.” (§ 1170, subd. (b)(4).) However, section 1170, subdivision (b)(4) does not permit the court to impose an upper term without compliance with section 1170, subdivision (b)(2) and (3). Under section 1170, subdivision (b)(5), the trial court must “set forth on the record the facts and reasons for choosing the sentence imposed. 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.” (§ 1170, subd. (b)(5).)

3. Analysis

The Attorney General concedes that the recent legislative changes to section 1170(b) apply to Arias because the trial court imposed the upper term and the judgment in this case is not yet final. We agree. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039; People v. Garcia (2022) 76 Cal.App.5th 887, 902.)

Notwithstanding the applicability of current section 1170(b) to this case, the parties dispute the necessity of a remand for resentencing. Arias contends that none of the circumstances relied on by the trial court to impose the upper term was found true by the jury and he did not stipulate to the existence of any of them. He further asserts that the court records concerning his 2016 Nevada felony residential burglary conviction—which were attached to an in limine motion filed by the district attorney—were not certified copies and thus are not sufficient to be considered “a certified record of conviction” under section 1170, subdivision (b)(3). Lastly, Arias contends that, even if the district attorney could produce a certified record of the 2016 Nevada conviction, “it is not certain that the trial court would impose the upper term based on that single factor” and “t cannot be said that” had the current law been in effect at the time of sentencing, the court would have imposed the upper term.

Regarding the 2016 Nevada court records attached to the district attorney’s in limine motion, the Attorney General acknowledges that those documents—as reproduced in the appellate record—do not include a certification by the court clerk.[7] Nevertheless, there is another document attached to the district attorney’s in limine motion that constitutes a certified record of conviction, namely a properly certified “Nevada Prison Packet” (Exhibit 4). That packet includes a copy of the 2016 judgment of conviction, as well as a 2017 order revoking probation (related to the 2016 conviction) and a 2017 judgment of conviction for conspiracy to possess a controlled substance (a “gross” misdemeanor). Certified prison records are sufficient to prove a prior conviction. (See [i]People v. Brucker (1983) 148 Cal.App.3d 230, 241; § 969b.) We thus conclude that, under section 1170, subdivision (b)(3), the trial court could have properly considered Arias’s 2016 felony conviction and 2017 gross misdemeanor conviction based on the certified prison records attached to the district attorney’s in limine motion. (See People v. Dunn (June 30, 2022, No. F083390) 81 Cal.App.5th ___, ___ [2022 WL 2828730, at *4] (Dunn).)

Although Arias’s two prior convictions constitute an aggravating circumstance that may justify imposition of the upper term, the trial court here also relied on additional aggravating circumstances (including other convictions not documented by certified records) when imposing a sentence on count 1.

For example, the trial court relied on the fact that Arias had numerous prior convictions of increasing seriousness, served a prior prison term, was on probation at the time he committed the present offense, and performed unsatisfactorily while on probation. Leaving aside the two Nevada convictions that qualify for consideration under current section 1170, subdivision (b)(3), none of the court’s findings of aggravating circumstances was based on “facts . . . stipulated to by the defendant, or . . . found true beyond a reasonable doubt,” as required by current section 1170, subdivision (b)(2). Because section 1170(b) now requires that all aggravating circumstances relied on by the court meet the requirements of section 1170, subdivision (b)(2) and (3), we conclude that section 1170(b) was not satisfied in this case for the purpose of justifying imposition of the upper term on count 1.

The Attorney General urges us to decide that any error here is harmless because, “[a]t the very least, a jury would have found one of the aggravating factors relied on by the trial court to be true beyond a reasonable doubt.” We do not agree that this test, based on People v. Flores (2022) 75 Cal.App.5th 495, 499–501, sets out the appropriate standard for harmless error review in this context. We note that a majority of other Courts of Appeal to have considered the issue have rejected the Flores formulation and have articulated other standards. For example, some courts have concluded that an appellate court “must ask both whether we can be certain the jury would have found beyond a reasonable doubt the aggravating circumstances relied on by the court and whether the trial court would have exercised its discretion in the same way if it had been aware of the statutory presumption in favor of the middle term.” (People v. Wandrey (2022) 80 Cal.App.5th 962, 982; see also People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11.)

Recently, the Third District Court of Appeal stated that a reviewing court, under Chapman v. California (1967) 386 U.S. 18, must decide first whether “ ‘beyond a reasonable doubt, [] the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.’ ” (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1114 (Zabelle).) Second, under People v. Watson (1956) 46 Cal.2d 818, the reviewing court must determine whether “the trial [court] would have imposed the upper term sentence even absent the error.” (Zabelle, at p. 1112. ) “Resolving this [second] issue entails two layers of review. We must first, for each aggravating fact, consider whether it is reasonably probable that the jury would have found the fact not true. We must then, with the aggravating facts that survive this review, consider whether it is reasonably probable that the trial court would have chosen a lesser sentence had it considered only these aggravating facts.” (Ibid.; see also Dunn, supra, 81 Cal.App.5th at p. ___ [2022 WL 2828730, at *8].) )

Under any of these standards (other than Flores), and acknowledging that the trial court could properly consider Arias’s 2016 and 2017 Nevada convictions, we cannot conclude under the circumstances of this case that the trial court’s imposition of the upper term was harmless. The record supports that it is reasonably probable only two of the four unstipulated and unadjudicated aggravating circumstances relied on by the trial court would have been proved true beyond a reasonable doubt. That is, based on the certified prison records documenting the revocation of Arias’s probation and sentence to prison for 16 to 72 months, Arias’s unsatisfactory performance on probation and prior prison term were provable. However, the sparseness of the information in the appellate record documenting Arias’s other prior convictions and his probationary status at the time of the current offense leads us to decide that it is reasonably probable that the jury would not have found those aggravating circumstances true beyond a reasonable doubt.

Although the parties and the trial court discussed Arias’s criminal history before the presentation of trial evidence and the probation officer’s report lists Arias’s prior convictions and their outcomes, no supporting documentation for his complete criminal history appears in the appellate record. (See Zabelle, supra, 80 Cal.App.5th at p. 1115, fn. 6 [“If the record is insufficient to support a trial court’s findings about a defendant’s criminal history, we will not presume the existence of extra[-]record materials, however likely they are to exist, to address this insufficiency.”].) Moreover, the issue of the increasing seriousness of Arias’s convictions rests on a somewhat vague and subjective standard that requires a comparison of his various convictions. (See People v. Sandoval (2007) 41 Cal.4th 825, 840; see People v. Lincoln (2007) 157 Cal.App.4th 196, 204.) For these reasons, we decide that we cannot rely on two of the four aggravating circumstances identified by the trial court.

Given our conclusion that we can consider for the purpose of our harmless error analysis only Arias’s two prior convictions, prior prison term, and unsatisfactory performance on probation, we decide that the record here does not reflect that the trial court would have imposed the upper term for count 1 absent its consideration of the other aggravating circumstances it identified. Notably, the trial court relied on the aggravating circumstances cumulatively and did not state that any one of them, standing alone, would have caused it to make the same sentencing choice. We thus conclude that it is reasonably probable that the trial court would not have imposed the upper term if it had considered only Arias’s two prior convictions, prior prison term, and unsatisfactory performance on probation. Accordingly, we must vacate Arias’s sentence and remand for resentencing consistent with amended section 1170(b).

C. Errors in Abstract of Judgment and Sentencing Minute Order

Arias contends the abstract of judgment and the clerk’s minute order for his sentencing (on December 10, 2021) conflict with the trial court’s oral pronouncement of judgment imposing a restitution fine (§ 1202.4, subd. (b)) and parole revocation restitution fine (§ 1202.45). We agree. At sentencing, the trial court imposed a $900 restitution fine and a $900 parole revocation restitution fine. However, the abstract of judgment and sentencing minute order state that the trial court imposed a restitution fine and a parole revocation restitution fine each in the amount of $1,500.

Nevertheless, because we have decided to vacate Arias’s sentence under amended section 1170(b) and remand for resentencing, we will not order any correction to the abstract of judgment or sentencing minute order. On remand, the trial court will generate a new abstract of judgment and minute order based on its resentencing and will exercise its usual prerogative to ensure that the abstract of judgment and minute order comport with the sentence pronounced. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)

III. Disposition

The judgment is reversed, and the matter is remanded to the trial court solely for resentencing in light of Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.).

______________________________________

Danner, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

____________________________________

Wilson, J.

H049647

People v. Arias

[1] Unspecified statutory references are to the Penal Code.

[2] There is a discrepancy between the amounts for the restitution fine and parole revocation restitution fine as stated by the trial court at Arias’s sentencing and the amounts for those fines as listed on the abstract of judgment and the clerk’s sentencing minute order. We address this discrepancy post (section II.C.).

[3] Unauthorized entry is punishable as an aggravated trespass under section 602.5, subdivision (b), when a person, “without the consent of the owner, . . . enters or remains in any noncommercial dwelling house, apartment, or other residential place while a resident, or another person authorized to be in the dwelling, is present at any time during the course of the incident.” (§ 602.5, subd. (b).)

[4] We note that in the conclusion section of both his opening brief and his reply brief, Arias ask us to “reduce the court operation assessment (Pen. Code, [§] 1465.8, subd. (a)(1)) and the court facilities assessment (Gov. Code, [§] 70373) by $40 and $30 respectively.” Despite making this request, Arias makes no argument stating why those two assessments should be reduced. Presumably, his request is premised on an assumption that we would reverse his trespass conviction and, in turn, order reduction of the assessments accordingly. Because we do not reverse the trespass conviction and otherwise discern no reason to reduce the $200 court operation assessment or the $150 court facilities assessment imposed by the trial court, we reject Arias’s request regarding those assessments.

[5] Section 1170, subdivision (b)(1) provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph[](2).” (§ 1170, subd. (b)(1).)

Evasion of a peace officer in violation of Vehicle Code section 2800.2 is punishable “by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year.” (Veh. Code, § 2800.2, subd. (a).) Because that section does not specify a felony punishment, “imprisonment in the state prison” means a term of 16 months, two years, or three years in state prison. (See § 18, subd. (a); see also People v. Butcher (2016) 247 Cal.App.4th 310, 318–324.)

[6] Section 1170, subdivision (b)(2) further provides: “Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.” (§ 1170, subd. (b)(2).)

[7] The parties do not point to anything in the record indicating that the Nevada court records were entered into evidence as a trial or court exhibit.