Filed 4/7/22 P. v. Roberson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Catherine Chatman and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.

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introduction

On August 17, 2017, defendant Andrew Roberson, an inmate at Sierra Conservation Center (a California state prison), was videotaped engaged in a group assault on another inmate, S.R., during a prison riot. Defendant and other inmates kicked, punched, and stomped on S.R., rendering him unconscious and causing him to be hospitalized. A jury convicted defendant of assault by an inmate likely to produce great bodily injury and battery resulting in serious bodily injury, and found true the allegation that defendant personally inflicted great bodily injury on S.R.

Defendant contends on appeal that (1) the evidence was insufficient to support his conviction because the video was not of sufficient quality to prove he was the inmate who participated in the assault and battery of another inmate, and (2) the trial court erred in ordering his new sentence fully consecutive to his prior prison term without declaring the prior term to be subordinate and reducing it to one-third of the original pronouncement in accordance with Penal Code section 1170.1, subdivision (a).[1]

In addition, both parties agree that new sentencing enactments apply retroactively to this case under legislation that took effect on January 1, 2022. While we accept the parties’ agreement, we also agree with the People that no remand for resentencing is necessary as the record is clear that the trial court would not alter defendant’s sentence even under the new sentencing laws. However, the trial court failed to sentence as to the five-year prior serious felony conviction enhancement and the matter is remanded to the trial court for the limited purpose to exercise its discretion to impose additional punishment or strike the prior serious felony conviction enhancement (§ 667, subd. (a)). We affirm the judgment.

procedural background

The District Attorney of Tuolumne County filed a complaint on May 15, 2019, that was later deemed an information on September 25, 2019, charging defendant with assault by an inmate by means of force likely to produce great bodily injury (§ 4501, subd. (b); count 1) and battery resulting in serious bodily injury (§ 243, subd. (d); count 2). The information alleged that defendant personally and intentionally inflicted great bodily injury pursuant to section 12022.7, subdivision (a) (as to count 1) and sections 667.5, subdivision (c)(8) and 1192.7, subdivision (c)(8) (as to both counts). As to both counts, the information alleged that defendant had a prior “strike” conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)–(i)) and a prior serious felony conviction (§ 667, subd. (a)(1)).

Defendant’s trial was consolidated with the trial of five other inmates (codefendants) who were charged with the same assault and battery. After a four-day trial, the jury convicted defendant of both counts on October 30, 2019. The jury also found true that defendant personally inflicted great bodily injury as to count 1 (§ 12022.7, subd. (a)) and count 2 (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)). Defendant waived his right to a jury trial and admitted his prior conviction.

On January 6, 2020, the trial court sentenced defendant to a term of 12 years[2] as to count 1 (twice the upper term pursuant to § 667, subd. (e)), plus three years (§ 12022.7, subd. (a)).[3] As to count 2, the court sentenced defendant to a term of four years (§ 243, subd. (d))[4] and stayed the sentence pursuant to former section 654. Defendant was sentenced to a total term of imprisonment of 15 years. The court imposed a $4,500 restitution fine (former § 1202.4) and a suspended $4,500 parole revocation restitution fine (§ 1202.45, subd. (a)). The court retained jurisdiction over victim restitution (former § 1202.4, subd. (f)(2)).

This timely appeal followed on January 10, 2020.

FACTS

1. Prosecution Evidence[5]
   1. Lieutenant Michael Bullock

At the time of defendant’s trial, Lieutenant Michael Bullock had been employed as a correctional officer for 17 years, serving the last 12 years at Sierra Conservation Center, and a member the investigative services unit for the last five years.

The prison was divided into three levels, including Level 2, which was involved in defendant’s case. The Level 2 yard (the yard) was surrounded on all sides, including 30-man dorms and a concrete building Level 2 housed approximately 1,000 inmates. Approximately 300 to 500 inmates were released into the yard at any given time. The yard was shaped like the letter “D,” with the dorms forming the outer perimeter. The yard was divided into areas for sitting and lounging, soccer, exercise, handball, and basketball, and these areas were surrounded by a track. Nine surveillance cameras monitored different areas of the yard.

On August 17, 2017, Lieutenant Bullock was on duty investigating a gang activity case. He responded to the unit office overlooking the yard after hearing a radio call of “code three,” requiring that all available personnel respond. When he arrived, Lieutenant Bullock saw a full-scale riot whereby inmates were in “disruptive groups and fighting each other.”

Lieutenant Bullock learned that an inmate had been injured and identified him as S.R. In attempting to identify the inmates responsible for S.R.’s injuries, Lieutenant Bullock reviewed the videos from the surveillance cameras and concentrated on images from camera 2, as they provided the best view of the incident. The video from camera 2 (the video) was played for the jury and Lieutenant Bullock described the video as it was played. He testified that the video showed that the riot initiated on the far right of the screen, in the area of the phone booths. During the riot, the correctional officers observed from a roof and deployed chemical agents. Inmates were ordered to “get down,” and those not involved in the riot did so. The video showed S.R. being pulled by a group of inmates from behind a caged area used by the staff as a clothing room and medical area. After the initial group assaulting S.R. dispersed, approximately four more inmates ran up to his prone body and kicked him. Toward the end of the video, which was approximately 10 minutes long, S.R. was lying nonresponsive when several inmates carried him to a gate off camera where medical staff waited with an ambulance.

In conducting the investigation of S.R.’s assault, Lieutenant Bullock reviewed the surveillance videos at his computer desk. He explained that while the videos were slightly pixelated when viewed on his computer monitor, they became more pixelated and less clear when viewed on larger screens. Other officers reviewed the videos and filed reports regarding the identifications of inmates involved in S.R.’s assault. Lieutenant Bullock personally reviewed the identification badge of each inmate identified and compared their badge photographs to the video, thereby confirming their identifications. Inmate identification badge photographs were updated each time inmates’ appearances changed so that their badges reflected their current appearances.

1. 2. Leah Zoellner

Leah Zoellner had been employed as a registered nurse by the Department Corrections and Rehabilitation and assigned to the Sierra Conservation Center for more than 11 years. Zoellner was located at the back gate of the yard when the riot broke out. She observed inmates running and fighting and saw S.R. being assaulted by many other inmates until he fell to the ground. The inmates kicked S.R. and stomped on his head until he lost consciousness. S.R. went limp and stopped both moving and defending himself. Zoellner was approximately 300 feet from S.R. when she saw the assault.

Other inmates then dragged S.R. to her. He was still unconscious. After approximately two minutes, S.R. came to, sat up, and started talking. Zoellner placed a cervical collar on S.R., laid him on a backboard, and took his vital signs. S.R. was alert, orientated to person, place, and time but slow to respond. S.R. had multiple abrasions, swelling, and redness to his head, face, eyes, and mouth area. When asked about his pain, S.R. only moaned in response. S.R.’s respiratory rate was faster than normal, but his lungs were clear, and he had equal chest rise. Based upon S.R.’s loss of consciousness and injuries, Zoellner determined he needed a higher level of care, and an outside ambulance transported him to an outside hospital. She reported S.R.’s loss of consciousness to the emergency medical technicians.

1. 3. Officer Daniel Browning

Daniel Browning had worked as a correctional officer at Sierra Conservation Center for more than 12 years. At the time of the riot, Officer Browning was responsible for six dormitories in Facility B[6] and had been assigned there for approximately eight months. Officer Browning had become familiar with the inmates assigned to those dormitories through his daily interactions and by reviewing their identification badges during contacts.

Officer Browning reviewed the video in an attempt to identify the inmates responsible for S.R.’s assault. Officer Browning identified defendant in the video assaulting S.R with 100 percent certainty. Officer Browning was familiar with defendant and had a one-on-one counseling session with him prior to the riot. Officer Browning identified defendant as being depicted in a still photograph from the video at time stamp 09:54:58:953. He was wearing a white T-shirt with cut-off sleeves, blue shorts, white sneakers, and sunglasses on the top of his head. Officer Browning identified defendant as the inmate in a still photograph from the video between time stamp 09:55:20:171 and “955832071”[7] who kicked S.R. in the head and upper body. Defendant walked out of camera 2’s view and returned to kick S.R. at time stamp 09:55:31:25. Officer Browning identified defendant in still photographs from the video but testified that the quality of the photograph was not as good as the quality of the video displayed on the screen he used to review it.

1. 4. Identification of Codefendants

Michael Jennings and Daron Hitchcock were also correctional officers working at Sierra Conservation Center. Both officers were assigned to sections of Facility B and had been for six years and one year, respectively. They regularly interacted with the inmates and, through such interaction, became familiar with the inmates assigned to them. During these interactions, the officers would regularly inspect the inmates’ identification badges.

Officers Jennings and Hitchcock both reviewed videos of the riot, focusing on the video from camera 2, attempting to identify the inmates involved in S.R.’s assault. Officer Jennings identified codefendant Josue Echeverria as involved in the assault after recognizing him in the video. He had been familiar with Echeverria before the assault and was certain of his identification. Officer Hitchcock reviewed the video “a ton” of times and used a roster of inmates, which included their photographs. Through his review, Officer Hitchcock identified six of the inmates who assaulted S.R., including codefendants Jacob Ambriz, Cristian Barrera, Samuel Delarosa, and Jose Frausto.[8] Officer Hitchcock was certain these inmates assaulted S.R. as seen in the video.

1. 5. Medical Records

According to S.R.’s medical records, S.R. presented at the emergency room with severe facial pain, blurry vision, midback pain, a concussion, and facial swelling. S.R. was unable to open his eyes due to soft tissue swelling over his eyes and around his nose. Hemorrhaging was detected in his eyes. S.R. was admitted to the hospital where he underwent a computed tomography scan (CT scan). Testing confirmed facial fractures to S.R.’s nasal and ethmoid bones (the latter is also known as a right orbital fracture). While his scalp exhibited soft tissue thickening related to trauma, no brain damage was detected. Ocular pressure in his eyes was elevated. S.R. was advised to apply ice packs to his eyes for 20 minutes every one to two hours for the next 24 to 48 hours, keep his head elevated, refrain from blowing his nose for six weeks, and told that he would experience double vision that would lessen over time. After consulting with a surgeon, doctors concluded S.R.’s facial fractures were nonoperative but that he should follow up with plastic surgeons regarding nasal deformity.

1. 6. Trial Exhibit 1, the Surveillance from Video Camera 2

Trial exhibit 1 contains nine videos, one from each of the nine surveillance cameras used to monitor the yard. The videos are each 10 minutes long and start at time stamp 09:50. The video from camera 2 was played to the jury because it has the best view of S.R.’s assault. At the beginning of the video, camera 2 points to the left of the facility showing the back of the dormitories that line the yard. Camera 2 pans across the yard showing, at the opposite side of the dormitories, a long building running alongside the interior running track. A covered sidewalk or walkway runs along the front of one building on the right, ending half-way (from bottom to top across the right side of the screen). Air conditioning units are located on the roof over the walkway. S.R.’s assault occurred under the walkway in the approximate area below the second air conditioner (counting from the topmost air conditioner seen on the screen).

At time stamp 09:51, the video shows inmates running from the area of the dormitories toward the far end of the yard where the riot started. Camera 2 pans to that area and shows smoke dispersing. The mob of inmates moves to the walkway in the center of the building on the right, under the first air conditioner. Over the next two minutes, the inmates converge at that area and then move back along the covered walkway toward the bottom right of the screen.

Lieutenant Bullock testified that the assault on S.R. converged at the caged area seen in the video on the bottom right of the screen, under the second air conditioner. The group of inmates move to this area at approximately time stamp 09:54. Camera 2 zooms in on this area at time stamp 09:54:32, zooms out briefly, then zooms in again at time stamp 09:54:49.

Camera 2 zooms in on where the walkway ends at the caged area (toward the bottom right of the screen). Defendant approaches the caged area and the group of inmates beating S.R. while S.R. is still on the walkway. Defendant is wearing a white tank top, has a shaved head, and is wearing sunglasses on top of his head. At other times in the video, defendant can be seen wearing long blue shorts and white sneakers. Defendant remains outside the circle of inmates assaulting S.R., and the video next captures defendant after the inmates attacking S.R. move out from under the walkway roof.

Defendant circles around the inmates who are assaulting S.R. and starts to run from the group (toward camera 2) but then stops, turns back, watches the assault again, and then runs the other way, leaving camera 2’s view.

Defendant approaches the assault again and comes back in view of camera 2. The assault moves back toward the walkway and defendant approaches the circle of inmates. As camera 2 zooms in, defendant circles behind the assault, moves onto the walkway, and then grabs the corner of the cage for support as he too kicks S.R. in the head approximately five times. The inmates pause in their attack and S.R. crawls onto his knees with his head to the ground. Defendant walks away briefly. The assault on S.R. continues and another inmate (codefendant Echeverria) kicks S.R. two times and then stomps on his head four times. Defendant joins in and kicks S.R. in the head approximately three more times. Defendant and the other inmates run away, leaving S.R. immobile on the ground as several other inmates kick him in passing.

2. Defense Evidence

Defendant’s counsel called Correctional Officer Jasmin Lopez to testify. Officer Lopez had been employed as a correctional officer for at least five years and worked at Sierra Conservation Center on the day of the riot. Officer Lopez was directed to take photographs of inmates who were located in the chow hall. She photographed the inmates and their identification badges, and for some inmates that did not have their badges, their medical evaluation forms. Defendant’s name was not listed in her report as having been photographed. Officer Lopez reviewed the photographs she took of the inmates who had not been identified by their identification badges and agreed that defendant’s photograph was not taken that day.

Officer Lopez testified that she did not photograph all the inmates who were in the yard during the riot. Approximately 300 inmates were in the yard during the riot, and while she took 247 photographs, that number also included photographs of the inmates’ medical evaluation forms and identification badges, if they had them. She estimated that she photographed only 150 of the 300 inmates who were in the yard during the riot. Another officer photographed other inmates who had been in the yard during the riot.

discussion

1. Defendant’s Conviction Was Supported by Sufficient Evidence, Including a Video of Defendant’s Assault on S.R. and an Officer’s Identification of Defendant as the Inmate in the Video

Defendant argues the evidence was insufficient to prove that he participated in the assault of S.R. as the video was not of sufficient quality to identify defendant. We disagree and conclude that the evidence was sufficient to support defendant’s convictions for assault by an inmate with force likely to produce great bodily injury and battery resulting in serious bodily injury.

1. 1. Standard of Review and Applicable Law

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.”].) We must accept logical inferences that the trier of fact might have drawn from the evidence although we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (Albillar, at p. 60.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (Young, at p. 1181.)

1. 2. Analysis

The surveillance cameras captured S.R.’s assault. As the witnesses testified, the best view of the assault was recorded by camera 2. During various portions of the assault, camera 2 was used to zoom closer. No eyewitness could identify the inmates responsible for the assault. However, the videos from the nine surveillance cameras, including camera 2, were introduced into evidence, and the video from camera 2 was played to the jury several times. In addition, correctional officers testified that they were able to identify individual inmates as perpetrators in the assault based on the video.

We have reviewed the video from camera 2 and conclude that the recording is of a sufficient quality that a reasonable jury could view the video and determine whether defendant is depicted therein. During our review, we were able to differentiate the inmate whom Officer Browning identified as defendant throughout the period of the assault.

Defendant argues that Officer Browning clearly erred and identified two separate inmates as both being defendant. He bases this argument on two separate still photographs introduced into evidence (trial exhibits 3 & 4) and claims that the inmate in one photograph is clearly wearing a V-neck shirt while the inmate depicted in the other is wearing a crew-neck shirt. While the photographs do appear to show shirts with different neck types in the still views, the video itself clearly demonstrates the still photographs captured the same inmate less than one second apart and that the inmate in both photographs is the same inmate. The inmate’s movement may have distorted his neckline from one still photograph to the next, but the video continuously recorded the inmate between the two still photographs and demonstrates it is clearly the same inmate in both photographs.

We further note that during certain segments of the video, the inmate identified as defendant faces the camera and his likeness is clearly captured. We have no trouble concluding that the images captured could be recognized by someone familiar with defendant, such as Officer Browning. A lay witness, including a law enforcement officer, may offer opinion testimony as to the identity of an individual in surveillance footage if it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony. (Evid. Code, § 800; People v. Leon (2015) 61 Cal.4th 569, 601, citing & quoting People v. Perry (1976) 60 Cal.App.3d 608, 612–613 [officers may predicate their opinion on “ ‘contacts with [the] defendant, their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events’ ”]; People v. Mixon (1982) 129 Cal.App.3d 118, 127 [upholding lay opinion of officers who had numerous contacts with the defendant and were unequivocal in their identification].) We further believe that the video is of a sufficient quality to permit the jury to compare the inmate in the video with defendant’s courtroom appearance to determine whether Officer Browning was correct in his identification.

We conclude the evidence was sufficient to support the jury verdict.

2. The Trial Court Did Not Err in Imposing a Sentence in the Instant Case Consecutive to Defendant’s Prior Out-of-prison Sentence Pursuant to Section 1170.1
   1. Background

When committing the instant offenses, defendant was serving four years in prison for buying or receiving a stolen vehicle (§ 496d, subd. (a)), a sentence imposed on July 19, 2016, in Orange County Superior Court case No. 16WF1447.

The trial court sentenced defendant to double the upper term (§§ 667, subd. (e)(1)) for assault by an inmate with force likely to produce great bodily injury(§ 4501, subd. (b)), a total term of 12 years in prison. The trial court also sentenced defendant to a consecutive three-year term for the enhancement of personally causing great bodily injury. (§ 12022.7, subd. (a).) The trial court found that the battery (§ 243, subd. (b)) conviction arose from a single act pursuant to former section 654 and stayed the four-year term in prison (presumably reached by doubling the lower term sentence for battery resulting in serious injury, although the trial court failed to explain how it reached this term). The court ordered the sentence to be served consecutive to the four-year term imposed in Orange County Superior Court case No. 16WF1447.

Defendant argues that the trial court should have pronounced an aggregate sentence as to his current and prior sentences pursuant to section 1170.1, subdivision (a). Then his prior sentence would have been deemed a subordinate term and reduced to one-third of the middle term penalty for that prior offense. We reject defendant’s argument because the trial court properly sentenced defendant pursuant to section 1170.1, subdivision (c), which is applicable to in-prison offenses and requires defendant to be sentenced to a second principal term as the result of committing the instant offenses while in prison.

1. 2. Applicable Law

Under section 1170.1, subdivision (a), the determinate sentencing law provides that, except as otherwise provided by law, consecutive terms are generally calculated as the sum of a principal term and consecutive subordinate terms that are one-third the middle term for each offense. Subdivision (c) of the same section provides exceptions to section 1170.1, subdivision (a), however, and reflects the legislative intent that determinate sentencing law treats in-prison offenses differently than out-of-prison offenses. (People v. McCart (1982) 32 Cal.3d 338, 340, 344 (McCart), citing § 1170.1, former subd. (b), now subd. (c).) “The difference is simple and understandable. The Legislature wanted in-prison crimes to be punished more severely than crimes committed ‘on the outside.’ ” (People v. White (1988) 202 Cal.App.3d 862, 869, citing McCart, at p. 340.) “The statutory scheme makes clear that such felonies, i.e., those felonies committed in prison, are exempt from the general sentencing scheme” of section 1170.1, subdivision (a). (White, at p. 869.) “The true legislative intent in enacting [section 1170.1, subdivision (c)] applicable to crimes committed by state prison inmates, is to require that they serve their full term for such conviction upon the completion of their term for other offenses for which they were convicted. The Legislature has thus made clear that a person who commits offenses while in prison is not entitled to the usual one-third the middle term for consecutively imposed sentences.” (In re Sims (1981) 117 Cal.App.3d 309, 314, citing § 1170.1, former subd. (b), now subd. (c); In re Tate (2006) 135 Cal.App.4th 756, 759 [“The effect of this provision is that the sentence for the in-prison offense must be fully consecutive to the term already being served, rather than being reduced to one-third of the middle term pursuant to the usual determinate sentencing rule.”]; White, at pp. 869–870 [“Using sentencing jargon ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’ ”]; see also People v. Reed (1993) 17 Cal.App.4th 302, 305.) “Viewed schematically, the term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed ‘on the outside.’ ” (White, at p. 870.) The term for an in-prison offense “shall begin to run at the end of the prison term imposed for [defendant’s] original ‘outside’ offense.” (McCart, at p. 340.)

Where a defendant is sentenced pursuant to section 1170.1, subdivision (c) for more than one in-prison offense, that section instructs that if the in-prison offenses are ordered to be served consecutively, then the court must calculate an aggregate term for such in-prison offenses pursuant to section 1170.1, subdivision (a). (§ 1170.1, subd. (c); McCart, supra, 32 Cal.3d at p. 340 [“The result … is that a single term, consisting of a principal and a subordinate term, should be calculated for both in-prison offenses” that begins to run at the end of the term imposed for the outside offense.]; People v. Langston (2004) 33 Cal.4th 1237, 1242 [“new crimes committed while in prison are treated as separate offenses and begin a new aggregate term”].)

1. 3. Analysis

In this case, defendant was serving a four-year prison term for his “outside” original offense when he committed the instant offenses. The trial court was required to sentence defendant on his new in-prison conviction consecutively to his original sentence. (§ 4501, subd. (b).) Section 1170.1, subdivision (c) excepted the trial court from resentencing defendant to the aggregate term on his original sentence as otherwise would have been required pursuant to section 1170.1, subdivision (a). Because the trial court stayed the sentence on count 2 (battery resulting in serious bodily injury), the trial court did not impose a consecutive sentence as to that count, and the trial court was not required to sentence defendant to an aggregate term for the in-prison offenses. (§ 1170.1, subd. (c) [“If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a).” (Italics added.)].)

Defendant’s argument that the trial court erred in failing to calculate his custody credits is similarly misplaced. Defendant was in custody and serving his original prison term when sentenced on the instant offenses. As such, he was not entitled to actual custody credits on the instant offenses. Section 2900.5, which provides for credit to be given for time spent in custody prior to commencement of sentence, reads in relevant part: “For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b).) Defendant is not entitled to actual custody credit in this case for time that is credited against his original prison sentence. (In re Rojas (1979) 23 Cal.3d 152, 155.)

Defendant also argues that the trial court erred in not recalculating the actual custody credits relating to his original offense and recording them in the abstract of judgment for the instant offenses. Section 2900.1 provides: “Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” (Italics added.) Defendant’s argument relies upon People v. Saibu (2011) 191 Cal.App.4th 1005, in which the court held that section 2900.1 applied where a trial court had modified a prior sentence to reach an aggregate determinate sentence in accordance with section 1170.1, subdivision (a). However, as we concluded, the trial court in this case was not required to pronounce one aggregate determinate sentence because section 1170.1, subdivision (a) does not apply to sentencing of in-prison offenses (except as between multiple in-prison offenses). Therefore, defendant’s original sentence has not been modified, and section 2900.1 is inapplicable.

We conclude the trial court had no duty to recalculate and award actual custody credits for time served on defendant’s prior prison term.

3. The Effect of New Sentencing Legislation
   1. Background

During sentencing, defendant’s counsel asked the trial court for a middle term sentence as defendant was 22 years old at the time of the offenses and he had a six-year-old son. The trial court rejected counsel’s request and selected the upper term, citing the aggravating circumstances contained within the probation officer’s report[9] and considering that defendant inflicted great physical injury, was an active participant, had prior convictions, and had served a prior prison term. The court reflected that defendant continued beating S.R. “in a rather a savage manner,” even after S.R. had lost consciousness. Referencing defendant’s desire to see his child grow up, the trial court responded:

“Anybody who wants to get out [of prison] on time knows that they can’t be stomping on an unconscious inmate. And it wasn’t like a situation where he was mutual combat [sic] and it got carried away. It was a person laying on the ground, getting stomped on. There’s nothing mitigating about that conduct. I could find zero evidence of any mitigating factors that should be taken into consideration by the Court.”

At the time of defendant’s sentencing, former section 654, subdivision (a) required the trial court to punish defendant in accordance with the provision that provided for the longest potential term of imprisonment. Accordingly, the trial court imposed sentence on count 1, assault by an inmate with force likely to produce great bodily injury (§ 4501, subd. (b)) and stayed the sentence on count 2, battery resulting in serious bodily injury (§ 243, subd. (d)). Effective January 1, 2022, Assembly Bill No. 518 (2021–2022 Reg. Sess.) amended section 654 to provide the trial court with the discretion to choose the count for which it will impose punishment. (Stats. 2021, ch. 441, § 1.)

Additionally, effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) and Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5) amended section 1170 in two respects that are relevant here. First, a court must “order imposition of a sentence not to exceed the middle term,” except under narrow circumstances. (§ 1170, subd. (b)(1).) An upper term may be imposed when justified by aggravating circumstances and the facts underlying those circumstances have been stipulated to by the defendant or found true by a jury or by the judge in a court trial. (Id., subd. (b)(2).) However, “the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (Id., subd. (b)(3).)

Here, defendant was sentenced to the upper term on count 1 based on his violent conduct that indicated a serious danger to society, his prior convictions (both as an adult and his juvenile delinquency wardship for robbery) were numerous and of increasing seriousness, and the fact he served a prior prison term. In part, the upper term sentence was not based on “facts … stipulated to by the defendant, or … found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial,” as required under the amended statute. (§ 1170, subd. (b)(2).)

Section 1170 was also amended to include a presumption in favor of the lower term sentence when a defendant is under 26 years of age at the time of the offense, unless the court finds that the aggravating circumstances outweigh the mitigating circumstances. (§ 1170, subd. (b)(6)(B).) Defendant was under 26 years of age when he committed the instant offenses.

1. 2. Applicable Law

Defendant contends that because his case is not yet final on appeal, he is entitled to the benefits sections 654 and 1170, as amended, pursuant to the principles of retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740. The People agree the amendments are retroactive but argue remand is not required because the trial court’s comments at the time of sentencing indicate that it would not exercise discretion to reduce defendant’s sentence.

The California Supreme Court has held, when a court is unaware of the scope of its discretionary powers, “the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) However, “[w]e are not required to remand to allow the court to exercise its discretion if ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not [have imposed a different sentence]’ even if it had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267, 272–273.) “The trial court need not have specifically stated at sentencing it would not [have sentenced defendant differently] if it had the discretion to do so. Rather, we review the trial court’s statements and sentencing decisions to infer what its intent would have been.” (Id. at p. 273; see People v. McVey (2018) 24 Cal.App.5th 405, 419 [no remand where, “n light of the trial court’s express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether”]; [i]People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [case not remanded for resentencing even though court did not expressly state it would not have stricken a prior strike conviction but indicated in statements and rulings that it would not exercise any discretion to reduce the sentence, regardless of the particular enhancement at issue].)

1. 3. Analysis

After reviewing the trial court’s comments and sentence in this case, we conclude that remand for resentencing under the ameliorative changes in the law is unnecessary.

The court elected to impose the upper term in sentencing defendant and found no mitigating circumstances. The evidence in the record, including the trial court’s comments and refusal to consider a middle term sentence, is sufficiently unequivocal to permit us to conclude that the court would decline to exercise discretion pursuant to section 654, as amended, to impose the four-year sentence for battery resulting in serious injury and instead stay the 15-year aggregate sentence for assault by an inmate. These circumstances are also sufficient to permit us to conclude that the trial court would not find the “zero” mitigating circumstances it described at sentencing outweigh the aggravating circumstances and, therefore, it would not choose to impose the lower term of imprisonment for defendant’s battery conviction.

Section 1170, as amended, requires that the aggravating circumstances relied on by the trial court be found true by a jury or stipulated to by a defendant but includes an exception: “Notwithstanding paragraphs (1) and (2), 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).) As we previously noted, regarding the trial court’s selection of an upper term sentence, the trial relied upon several factors. One such factor—that defendant’s prior convictions (as an adult and his juvenile delinquency wardship for robbery) were numerous and of increasing seriousness (see Cal. Rules of Court, rule 4.421(b)(2))—requires “consideration of only the number, dates, and offenses of prior convictions alleged” and “may be determined simply by reference to the range of punishment provided by statute for each offense” and has been determined not to require a jury verdict or defendant admission. (People v. Black (2007) 41 Cal.4th 799, 819–820 (Black), overruled on other grounds in Cunningham v. California (2007) 549 U.S. 270.) The record contains defendant’s certified record of convictions and juvenile delinquency proceedings.

Similarly, the court’s reliance upon defendant’s prior prison term is established by the certified copy of the abstract of judgment for his 2015 prior conviction that resulted in a two-year prison term. Defendant argues that the trial court should not have relied upon defendant’s prior prison term because it was an element of the offense of assault by an inmate with force likely to produce great bodily injury offense. Courts “generally cannot … use a fact constituting an element of the offense either to aggravate or to enhance a sentence.” (People v. Scott (1994) 9 Cal.4th 331, 350; see § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c) & (d).) However, according to defendant’s certified record of convictions, defendant served a prison term at Wasco State Prison in 2015, prior to the prison term for the 2016 conviction he was serving at the time of the instant offenses.

The only other factor identified by the probation officer and relied upon by the trial court was that defendant engaged in violent conduct showing that he is a danger to a society (Cal. Rules of Court, rule 4.421(b)(1)), a factor arguably not based on “facts … stipulated to by the defendant, or … found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial,” as required by section 1170, subdivision (b)(2), as amended by Statutes 2021, chapter 695, section 5. However, we note that in Black, the California Supreme Court held that “the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence” under former section 1170, subdivision (b). (Black, supra, 41 Cal.4th at p. 815.) Under the Sixth Amendment to the federal Constitution, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California, supra, 549 U.S. at p. 281; see Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Black concluded that so long as one aggravating circumstance was found by a jury consistent with Sixth Amendment principles, judicial factfinding on additional aggravating circumstances was not unconstitutional. (Black, at p. 815.)

Given that two of the three aggravating circumstances relied upon by the trial court may be used to support an upper term because they were proven by defendant’s certified record of convictions and that the trial court found no mitigating circumstances, we conclude that the trial court’s original sentencing decisions would not change and comply with section 1170. We do not find it necessary in this case to remand for a full resentencing in light of changes effected by Assembly Bill No. 124 and Senate Bill No. 567.

4. Section 667, Subdivision (a) Enhancement

The information alleged defendant had a prior serious felony conviction pursuant to section 667, subdivision (a)(1). Defendant waived his right to a jury trial and admitted he had the prior serious felony conviction on October 31, 2019, the day following the jury’s guilty verdict.

However, the trial court did not address the five-year prior serious felony conviction enhancement during sentencing. As we have noted previously, the probation officer’s report contains a statement that the prosecutor dismissed the enhancement, but we could find no find mention of any such motion or the trial court’s ruling in the appellate record. The record also fails to indicate that defendant moved to dismiss or strike the five-year enhancement.

It is well established in California by a long line of decisional authority that a trial court’s failure to either (1) pronounce sentence on a statutory sentence-enhancement allegation based upon a finding by the trier of fact or an admission by the defendant that the allegation is true, or (2) exercise its discretion—to the extent imposition of the enhancement is discretionary—to either strike the enhancement allegation or impose the enhancement, results in an unauthorized sentence. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431–437, citing People v. Price (1986) 184 Cal.App.3d 1405, 1409 [failure to impose a weapons enhancement].) We are authorized to correct this error “whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment.” (Vizcarra, at p. 432, citing In re Ricky H. (1981) 30 Cal.3d 176, 191.)

Therefore, we will order a limited remand to the trial court to determine whether to impose a five-year sentence enhancement pursuant to section 667, subdivision (a) or strike the additional punishment. (See § 1385.)

disposition

The clerk of the superior court shall prepare an amended abstract of judgment correcting the term for count 1 to reflect 12 years (not “6” as it currently reads) and forward it to the Department of Corrections and Rehabilitation.

The matter is remanded to the trial court for the limited purpose to exercise its discretion to impose additional punishment or strike the prior serious felony conviction enhancement (§ 667, subd. (a)). In all other respects, the judgment is affirmed.

HILL, P. J.

WE CONCUR:

DETJEN, J.

FRANSON, J.

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

[2] The abstract of judgment lists the term imposed as to count 1 as six years. As the court doubled the term, we will direct the clerk of the superior court to correct the abstract to reflect a term of 12 years.

[3] Defendant was not sentenced as to the section 667, subdivision (a) felony prison term enhancement. The appellate record fails to indicate any disposition for this enhancement except for a notation in the probation officer’s report that it was dismissed by the district attorney.

[4] Section 243, subdivision (d) provides for a prison sentence of two, three, or four years. The record fails to indicate whether the trial court sentenced defendant to the low term of two years and doubled the term pursuant to section 667, subdivision (e)(1), or the upper term of four years but failed to double the term as required by section 667, subdivision (e)(1).

[5] The parties stipulated that defendant was in prison at the time of the offenses.

[6] During some testimony, Level 2 was also referred to as Facility B.

[7] The court reporter may have transposed these numbers as defendant’s last kick for this section of the video ended at time stamp 9:55:23:781.

[8] Ambriz, Barrera, and Delarosa were acquitted by the jury. Defendant, Frausto, and Echeverria were convicted.

[9] The aggravating circumstances identified in the probation officer’s report were defendant’s violent conduct (that indicated a serious danger to society), his prior convictions (both as an adult and his juvenile delinquency petition for robbery) that were numerous and of increasing seriousness, and his service of a prior prison term (relating to a 2015 conviction).