P. v. Flowers

Appellant was convicted by jury of robbery. He waived jury as to the charged enhancements and the trial court, based upon certified records, found true the allegations that he had two serious prior felony convictions and two “strike” convictions. The trial court sentenced Appellant to 20 years in state prison and five years each for the two serious prior felony convictions.
 
Appellant contends the trial court erred in imposing the upper term pursuant to section 1170 as it existed at the time, there should be a reversal and remand for resentencing because of recent legislative changes, and the trial court erred in imposing fines and fees without determining ability to pay.
 
Second Appellate District affirmed the trial court’s judgment. The court held that the trial court did not violate the “dual use” rule, and it did not abuse its discretion in imposing the upper term. The court explained Here, the trial court reasoned that the upper term was appropriate because of Appellant’s “long and significant criminal history, and because of the numerous factors in aggravation.” The trial court considered his criminal history, which began in 1994 and was continuous throughout his adult life. The trial court also considered the probation report, which, as indicated, identified several factors in aggravation. Any one of these factors in aggravation constitutes a sufficient basis to support the upper term. Further, the court wrote that the sentencing hearing was held on May 12, 2021, and Senate Bill 81 does not apply. In addition, there are no mitigating circumstances to consider and there is no reason to dismiss any enhancement.