People v. Jones CA3

Opinion

Filed 8/17/26 P. v. Jones CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo)

THE PEOPLE, C102791 Plaintiff and Respondent, (Super. Ct. No. CR2023-3136) v. CAIRO ANSAR MUHAMMAD JONES, Defendant and Appellant.

Following a string of attacks against his then-girlfriend, defendant Cairo Ansar Muhammad Jones was found guilty by a jury of criminal threats, corporal injury against a cohabitant, assault with a deadly weapon, false imprisonment with force and violence, and violation of a court order with physical injury. The trial court found true seven aggravating circumstances and sentenced defendant to an aggregate 11 years eight months in prison, which included an upper term sentence. Defendant now contends the trial court (1) failed to take a valid jury trial waiver on the aggravating circumstances, and (2) made improper dual use of facts in relying on five of the seven aggravating circumstances to impose the upper term. We disagree with defendant’s first contention, and as to the second, we conclude any error was harmless. We will affirm the judgment.

1 BACKGROUND Defendant and the victim were in a dating relationship from September 2019 to October 2023. On September 19, 2021, after a confrontation, defendant pushed the victim down and strangled her with his hands, leaving fingerprint marks around her neck. A little over two years later, on October 7, 2023, when the victim urged defendant to obtain medication for her, defendant punched her in the face. That same day defendant accused the victim of cheating on him, pulled her out of a car by her hair, punched her, threw her to the ground, and kicked her in the face and arm. Later, while driving, defendant hit the victim’s face with his hand. As he became more aggressive, the victim tried to jump out of the car, but defendant grabbed her by the hair. That evening, while the victim was driving, defendant told her he was going to kill her, and that by the end of it she would be unrecognizable. Defendant jabbed a small baseball bat into the victim’s ribs numerous times, pulled her hair, and hit her in the face with his closed fist. When the victim tried to get out of the car, defendant ripped her shirt and bra off. The victim attempted to move toward another car but defendant situated himself between her and the other car and told the driver to keep driving. The driver of the other car called 911. The jury found defendant guilty of criminal threats (Pen. Code,1 § 422 -- count 1), corporal injury against a cohabitant (§ 273.5, subd. (a) -- count 2), assault with a deadly weapon (§ 245, subd. (a)(1) -- count 3), false imprisonment with force and violence (§§ 236, 237, subd. (a) -- count 4), and violation of a court order with physical injury (§ 273.6 -- count 5). The jury found true an enhancement allegation that defendant had a prior conviction for corporal injury against a cohabitant. (§ 273.5, subd. (f)(1).) Regarding count 2, the jury found that defendant personally inflicted great bodily injury 1 Undesignated statutory references are to the Penal Code.

2 under circumstances involving domestic violence (§ 12022.7, subd. (e)) and that he personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). As to count 5, the jury found that defendant inflicted physical injury on another person. (§ 273.6, subd. (b).) In bifurcated proceedings, the trial court found true the following aggravating circumstances: (1) “The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness” (Cal. Rules of Court, rule 4.421(a)(1));2 (2) “The defendant was armed with or used a weapon at the time of the commission of the crime” (rule 4.421(a)(2)); (3) “The victim was particularly vulnerable” (rule 4.421(a)(3)); (4) “The defendant took advantage of a position of trust or confidence to commit the offense” (rule 4.421(a)(11)); (5) “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness” (rule 4.421(b)(2)); (6) “The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed” (rule 4.421(b)(4)); and (7) “The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory” (rule 4.421(b)(5)). The trial court sentenced defendant to an aggregate 11 years eight months in prison, consisting of the following: the upper term of five years for the count 2 conviction of corporal injury against a cohabitant; five years consecutive for the great bodily injury enhancement (§ 12022.7, subd. (e)); one year consecutive for the deadly weapon enhancement (§ 12022, subd. (b)(1)); eight months (one-third the middle term) consecutive on the count 4 conviction for false imprisonment with force and violence;

2 Undesignated rule references are to the California Rules of Court.

3 and 180 days concurrent on the count 5 conviction for violation of a court order. Pursuant to section 654, the trial court imposed but stayed a three-year sentence on the count 1 conviction for criminal threats, and a four-year sentence on the count 3 conviction for assault with a deadly weapon. DISCUSSION I Defendant contends the trial court failed to take a valid jury trial waiver on the aggravating circumstances. We disagree. A “[A] defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The proper procedure for adjudicating such aggravating facts is as follows: Defendants may assert the right to a jury trial, may waive jury in favor of a court trial, or may waive trial altogether.” (People v. Wiley (2025) 17 Cal.5th 1069, 1086, footnote omitted.) “ ‘[A] defendant’s waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, “ ‘ “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,” ’ ” as well as voluntary “ ‘ “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” ’ ” ’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151, 166.) (Sivongxxay) “ ‘[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.’ ” (Ibid.) Under this “totality of the circumstances standard, the presence or absence of a reference in a colloquy to this particular attribute of a jury trial, or to the impartiality requirement, is not necessarily determinative of whether a waiver meets constitutional standards.” (Id. at p. 168.) The record must affirmatively show the waiver was voluntary and intelligent. (People v. Collins (2001)

4 26 Cal.4th 297, 308-310 & fn. 3.) “The voluntariness of a waiver is a question of law which [appellate courts] review de novo.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) The California Supreme Court has provided “general guidance to help ensure that a defendant’s jury trial waiver is knowing and intelligent, and to facilitate the resolution of a challenge to a jury waiver on appeal,” recommending “that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy … ,” such as “that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence.” (Sivongxxay, supra, 3 Cal.5th at p. 169.) The Supreme Court also recommended “that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails,” for example “by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived.” (Id. at pp. 169-170.) However, trial courts need not follow a rigid formula or use any particular words to ensure a jury waiver is knowing and intelligent. (Ibid.) B During motions in limine, the trial court granted defendant’s request to bifurcate consideration of the aggravating circumstances. The trial court asked whether defendant wanted a jury or court trial on the aggravating circumstances, and defense counsel indicated he needed time to discuss the matter with defendant.

5 Near the end of trial, defense counsel said he had spoken with defendant and defendant wanted to waive jury trial on the aggravating circumstances. The following colloquy then occurred between the trial court and defendant: “THE COURT: [¶] . . . [¶] As far as the jury trial on the aggravating circumstances, early on I granted your attorney’s motion to bifurcate the trial meaning we’re in the first part of the trial right now where the People are trying to prove your guilt of various crimes. If the People prove your guilt on one or more of the crimes, then we will go into the second phase of the trial which is a trial on the alleged aggravating circumstances. You would have a right to have a jury trial on those aggravating circumstances or you can do a court trial if you wish. [¶] Your attorney indicates that you’re willing to waive your right to a jury trial and let the Court make that decision on aggravating circumstances. I just want to assure myself that that is what you want to do. You certainly have the right to have a jury of 12 people make that decision. You also have the right to have the Court make that decision. [¶] What would you like to do? “THE DEFENDANT: I have to make the decision right now? “THE COURT: Pardon me? “THE DEFENDANT: Do I have to make that decision right now? “THE COURT: Not at this moment but it would be useful if you could make that decision sometime today. “THE DEFENDANT: Okay.” The next day, the trial court had the following discussion with defense counsel and defendant: “THE COURT: [¶] . . . [¶] [Counsel, w]ould you like to have a further discussion with your client about whether if we need a second trial, it will be a court trial or a jury trial[?]

6 “[DEFENSE COUNSEL]: I believe I previously spoke with [defendant] and he would prefer a court trial rather than a jury trial. “THE COURT: [Defendant], is that your preference? “THE DEFENDANT: Yeah. “THE COURT: Very well. The Court will accept the waiver of jury trial. If we have to have a second trial on the aggregating factors, it will be a court trial. [¶] People agree? “[PROSECUTOR]: Yes. “THE COURT: Okay. Both parties have to waive that.” C Based on the totality of the circumstances in the record before us, we conclude defendant knowingly and intelligently waived his right to a jury trial on the aggravating circumstances. Defendant contends the waiver was invalid because the trial court neglected vital portions of a proper advisement as directed by the Supreme Court in Sivongxxay by failing to advise defendant that he had the right to participate in jury selection and that a jury verdict must be based on the unanimous decision of all 12 jurors. But the Supreme Court did not require that a jury waiver colloquy include the unanimity requirement. (Sivongxxay, supra, 3 Cal.5th at p. 168.) Nor did it limit trial courts to a narrow or rigid colloquy. (Id. at p. 170.) Indeed, the validity of a waiver does not turn on whether there was adherence to a predetermined ritualistic format but rather on whether the totality of the relevant circumstances demonstrates the waiver was knowing, intelligent, and voluntary. (Ibid.) “[T]he relevant circumstances include not only the colloquy, but also defendant’s prior criminal history, other events before and after the waiver was entered, and the fact that defendant was represented by counsel.” (Id. at p. 173, fn. 8.) After the waiver, defendant was present and represented by counsel when the trial court instructed the jurors that their verdict must be unanimous. Defendant did not 7 indicate upon hearing that instruction that he wanted a jury trial on the aggravating circumstances. Defendant’s prior experience in the criminal justice system further supports the conclusion that defendant entered a knowing and intelligent waiver. (Parke v. Raley (1992) 506 U.S. 20, 37 [“evidence of a defendant’s prior experience with the criminal justice system [is] relevant to the question whether he knowingly waived constitutional rights”].) Defendant has four prior convictions, including a 2021 conviction resulting from a plea of no contest to willful infliction of corporal injury against a cohabitant (§ 273.5, subd. (a)). That defendant pleaded to the prior conviction is particularly relevant because before a defendant can enter such a plea, they must be advised of, and waive, the right to a jury trial, among other things. (People v. Lytle (1992) 10 Cal.App.4th 1, 4.) Defendant argues the trial court could not have presumed that he knew a jury consists of 12 people and that he could participate in jury selection. But the trial court expressly informed defendant that he had the right to have a jury of 12 people decide the truth of the aggravating circumstances. And defendant was present during jury selection and throughout trial, in which he was tried by 12 jurors. On this record, we conclude defendant entered a knowing and intelligent waiver of his right to a jury trial on the aggravating circumstances. II Defendant also contends the trial court made an improper dual use of facts in relying on five of the seven aggravating circumstances to impose the upper term. We conclude any error was harmless. A Under section 1170, subdivision (b), 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. “[T]he court may not impose 8 an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b)(5).) Compliance with section 1170, subdivision (b) means that “a fact charged and found as an enhancement may be used as a reason for imposing a particular term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.” (Rule 4.420(g).) A trial court’s sentencing decision is reviewed for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion if it “relies upon circumstances … not relevant to the decision or that otherwise constitute an improper basis for [its] decision.” (Ibid.) In exercising its discretion to impose a sentencing judgment, the trial court may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. (Rule 4.420(d).) A single aggravating circumstance is enough to justify imposition of an upper term. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) Moreover, in this context, defendant’s dual use challenge is a state law issue subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818. (See People v. Avalos (1984) 37 Cal.3d 216, 233 [applying Watson to improper dual use of facts]; cf. People v. Lynch (2024) 16 Cal.5th 730, 768 [all aggravating circumstances used to impose an upper term must be found in compliance with Sixth Amendment principles].) To determine whether a dual use error requires a remand for resentencing, we “ ‘ “must determine if ‘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. Sperling (2017) 12 Cal.App.5th 1094, 1104; see People v. Osband (1996) 13 Cal.4th 622, 728 [dual use error does not require resentencing if “ ‘ “[i]t is not reasonably probable 9 that a more favorable sentence would have been imposed in the absence of the error” ’ ”].) B Following an agreed-upon bifurcated bench trial, the trial court found seven aggravating circumstances true beyond a reasonable doubt. Defendant does not claim it was dual use error for the trial court to use two of those circumstances: that defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed (rule 4.421(b)(4)), or that defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory (rule 4.421(b)(5)). Rather, defendant claims it was dual use error for the trial court to use five of the seven aggravating circumstances to impose the upper term sentence. We disagree with defendant that three of the five challenged circumstances involved improper dual use. First, as to the great bodily harm circumstance, defendant argues that because the injuries suffered by the victim supported the great bodily injury enhancement (§ 12022.7, subd. (e)) and also the rule 4.421(a)(1) aggravating circumstance that the crime involved great bodily harm, the trial court could not use the injuries to impose the enhancement and the upper term sentence. But rule 4.421(a)(1) states it is an aggravating circumstance if “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Italics added.) In support of the aggravating circumstance, the People focused on how the attacks were vicious and how defendant threatened to kill and disfigure the victim to the point that she would be unrecognizable, facts distinct from the injuries she experienced. Defendant has not established that the trial court engaged in an improper dual use of facts in connection with the great bodily injury enhancement and the rule 4.421(a)(1) aggravating circumstance.

10 Second, as to the aggravating circumstance that the victim was particularly vulnerable (rule 4.421(a)(3)), defendant claims the circumstance was established by defendant’s intimate relationship with the victim, an element of the section 273.5 corporal injury against a cohabitant offense. However, in support of that circumstance, the People cited the victim’s cerebral palsy and drop foot, arguing they limited her ability to fight back or escape.3 Those facts were not required to establish any element of corporal injury against a cohabitant under section 273.5, subdivision (a). Defendant has not established that the trial court engaged in an improper dual use of facts in connection with the corporal injury against a cohabitant offense and the rule 4.421(a)(3) aggravating circumstance. Third, as to the aggravating circumstance that defendant’s prior convictions were numerous or of increasing dangerousness (rule 4.421(b)(2)), defendant does not assert an insufficient evidence claim. Instead, he points to the jury’s true finding on the enhancement allegation that defendant had a prior conviction under section 273.5 for corporal injury against a cohabitant, and notes that the same conviction was used to establish that his prior convictions were numerous and of increasing seriousness. But to establish the rule 4.421(b)(2) aggravating circumstance, the People provided a certified RAP sheet listing four prior convictions. Even without the prior corporal injury against a cohabitant conviction, the People provided evidence of three prior convictions. Reviewing the record in the light most favorable to the judgment and drawing all reasonable inferences in favor of the trial court’s decision (Hale v. Superior 3 Defendant argues it is questionable whether the victim was vulnerable. To the extent he is claiming insufficient evidence to support the aggravating factor, he forfeited the contention by failing to adequately assert it on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration’ ”].)

11 Court (2014) 225 Cal.App.4th 268, 271), defendant has not established that the trial court engaged in an improper dual use of facts in connection with the prior corporal injury against a cohabitant conviction and the rule 4.421(b)(2) aggravating circumstance. The parties agree that the trial court improperly considered defendant’s use of a bat in support of the weapons enhancement and to aggravate his sentence under rule 4.421(a)(2). Defendant further challenges use of the aggravating circumstance that defendant took advantage of a position of trust or confidence. (Rule 4.421(a)(11).) But even if the trial court erred in using those two aggravating circumstances, any such error was harmless. It is not reasonably probable defendant would have received a lesser sentence had the trial court disregarded those two aggravating circumstances out of the seven found true. The trial court said defendant’s crimes against the victim were “terrible.” It considered defendant’s age, his use of drugs and alcohol, and his history of anxiety and depression as mitigating circumstances, qualifying its consideration of the mitigating circumstances by noting that although defendant was not under 26, he was under 30, and that his mental health concerns were not as extensive as the trial court had seen in other cases. The trial court concluded that on balance the aggravating circumstances outweighed the mitigating circumstances and that an upper term sentence was appropriate. It did not mention any aggravating circumstance as a basis for its decision, and a single aggravating circumstance was sufficient. (Lai, supra, 138 Cal.App.4th at p. 1258.) On this record, we do not discern a reasonable probability that the trial court would not have imposed the upper term had it disregarded two of the seven aggravating circumstances. Any error was harmless.

12 DISPOSITION The judgment is affirmed.

/S/ MAURO, Acting P. J.

We concur:

/S/ MESIWALA, J.

/S/ WISEMAN, J.* * Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.