Resentencing When Judge Considers Improper Factors

In San Joaquin County, Defendant Anthony Scott Zabelle approached a man named Scott from behind, hit him over the head with a glass bottle and after Scott fell to the ground, stomped on his head.  Zabelle and an associate then rifled through Scott’s pockets.  Zabelle took Scott’s knife and his pipe.  Zabelle’s associate took Scott’s wallet, which had about $100, from which he shared $41 with Zabelle. 

Shortly after these events, an officer found Scott laying on his back in the alley where the attack took place.  Another officer noticed about a two-inch long cut on Scott’s head. 

The officers shortly thereafter arrested Zabelle at a nearby hotel.  Zabelle was read his rights to remain silent and request an attorney, but he waived these rights.  He then confessed to the officers and was arrested.

He was then charged with and convicted of second degree robbery (Penal Code § 211) with great bodily injury committed during the robbery (Penal Code § 12022.7(a). 

The judge sentenced Zabelle to eight years in prison: five years for the robbery and three consecutive years for the great bodily injury enhancement. 

Mr. Zabelle challenged his sentence, first claiming that the judge should have regarded his confession to police as a coerced confession or, at the least, evidence of cooperation meriting a shorter sentence.  In response to this first argument, the Third Appellate District Court found nothing unduly coercive and cited to multiple cases wherein such a similar argument for a shorter sentence was rejected.

The second ground for appeal of his sentence was that after his upper-term (five year) sentence was ordered, Senate Bill (SB) 567 was passed, which would operate retroactively to his case because his sentence was on appeal and therefore not final.  The prosecution and the Third Appellate District agreed with Mr. Zabelle on this.  See, e.g., People v. Flores (2022) 73 Cal. App. 5th 1032, 1039 [“the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively . . . to all nonfinal convictions on appeal”].

The appellate court reminded the reader that SB 567 amended Penal Code § 1170(b) to require a court to “order imposition of a sentence not to exceed 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.”  Penal Code § 1170(b)(2); but see § 1170(b)(3) [allowing a court to “consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.”].

However, before remanding the case, the Third Appellate District looked at the trial court’s error for harmless error review under Chapman v. California (1967) 386 U.S. 18 (violations of the federal constitution requires reversal unless the error is harmless beyond a reasonable doubt) and People v. Watson (1956) 46 Cal. 2d 818; People v. Gonzalez (2018) 5 Cal. 5th 186, 195-196 (requiring reversal if it “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error” Id. at 195).

Turning to the factors the trial court judge considered in aggravation, none were stipulated to and none were found true by a jury or by the judge.  Yet the judge considered these factors: 1) the victim was particularly vulnerable . . . given his mental status; 2) the attack was “two against one” with the assailants coming from behind; 3) defendant used a weapon, a liquor bottle, to knock down the victim; 4) Zabelle gratuitously kicked the victim in the head while he was on the ground; 5) Zabelle “rifled through the victim’s wallet after knocking him to the ground; 6) Zabelle left the victim injured and alone in an alley; 7) Zabelle had at least one prior prison commitment according to the probation report; and 8) at the time of the attack, Zabelle was on post-release community supervision for another crime.

Given these considerations, the appellate court remanded the case for resentencing, as the judge should never have considered such factors in sentencing under SB 567 without a stipulation allowing this or factual findings by the jury or judge.

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