People v. Fox CA3 ( 2022 )

Filed 5/2/22 P. v. Fox 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C094314
Plaintiff and Respondent, (Super. Ct. Nos. 19F7182,
20F5798, 20F7295)
v.
GARY GLEN FOX,
Defendant and Appellant.
Defendant Gary Glen Fox appeals from his sentence in three criminal cases.
Specifically, defendant contends that we must remand for resentencing because the trial
court’s imposition of an upper term sentence on the principal count does not satisfy the
new requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567),
which took effect while his appeal was pending and applies retroactively to his case. The
People agree.
1
We conclude Senate Bill 567 is an ameliorative statute that applies retroactively to
defendant’s nonfinal case and defendant is entitled to resentencing under the amended
statute. We accordingly vacate the sentence and remand the matter to the trial court to
resentence defendant.
FACTS AND HISTORY OF THE PROCEEDINGS
In an open plea, defendant pleaded no contest to receiving a stolen motor vehicle
with a prior (Pen. Code, §§ 496d, subd. (a), 666.5; case No. 19F7182; statutory section
citations that follow are to the Penal Code) second degree robbery (§ 211; case
No. 20F7295), four counts of resisting an officer (§ 148, subd. (a)(1); case No. 20F7295),
and first degree burglary (§§ 459, 460, subd. (a); case No. 20F5798).
At the sentencing hearing for all three cases, the trial court listed the aggravating
factors it considered in deciding whether to select the upper term for first degree
burglary: (1) the manner in which defendant carried out the burglary indicated planning
and sophistication (Cal. Rules of Court, rule 4.421(a)(8); rule references that follow are to
the California Rules of Court), (2) defendant’s prior convictions were numerous and of
increasing seriousness (rule 4.421(b)(2)), (3) defendant has served a prior prison term
(rule 4.421(b)(3)), and (4) defendant was on probation when he committed the crime
(rule 4.421(b)(4)).
The trial court sentenced defendant to an aggregate term of 20 years in state
prison, consisting of: the upper term of six years for first degree residential burglary,
doubled to twelve years due to a prior strike; one year (one-third the middle term) for
second degree robbery, doubled to two years due to the strike, plus a five-year
enhancement for a prior serious felony; and one year (one-third the middle term) for
receiving a stolen motor vehicle. For the four counts of resisting an officer, the trial court
sentenced defendant to time served.
2
Defendant timely appealed, and the trial court granted his request for a certificate
of probable cause.
While defendant’s appeal was pending, the Legislature enacted Senate Bill 567
(2021-2022 Reg. Sess.), which took effect on January 1, 2022. Among other things, the
bill amended section 1170, subdivision (b) to prohibit trial courts from considering
aggravating circumstances to justify an upper term sentence, unless the facts underlying
each aggravating factor have been established by one of three prescribed methods.
(Stats. 2021, ch. 731, § 1.3.)
DISCUSSION
I
Retroactive Application of Senate Bill No. 567
As amended, section 1170, subdivision (b) provides that aggravating
circumstances only justify the imposition of an upper term sentence if “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), as amended by Stats. 2021, ch. 731, § 1.3.) The amended statute
also adds a third acceptable method of factfinding, permitting courts 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.” (§ 1170, subd. (b)(3).)
The People correctly concede the amended version of section 1170,
subdivision (b) applies retroactively in this case as an ameliorative change in the law
applicable to all nonfinal convictions on appeal. (See In re Estrada (1965) 63 Cal.2d
740, 745; People v. Conley (2016) 63 Cal.4th 646, 657 [“in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the criminal
law to extend as broadly as possible”]; People v. Flores (2022) 73 Cal.App.5th 1032,
1039 [holding Senate Bill 567 applies retroactively to nonfinal convictions on appeal].)
3
II
Defendant’s Upper Term Sentence
Defendant contends that these amendments to section 1170, subdivision (b)
require reversal of his sentence and remand for resentencing because the trial court based
the upper term sentence for first degree burglary on underlying facts that did not meet the
new requirements of the amended statute. Specifically, defendant argues he did not
stipulate to any of the facts underlying the aggravating circumstances the trial court
considered in selecting an upper term sentence, neither a jury nor the judge found any of
the underlying facts true beyond a reasonable doubt, and the prosecution did not offer any
certified records of defendant’s prior convictions. The People agree that the trial court
did not find the underlying facts in a manner consistent with the amended statute. The
parties likewise agree that remand for resentencing consistent with the amendments to
section 1170, subdivision (b) is the proper remedy.
We agree with the parties and will remand for a full resentencing. (See People v.
Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on
remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial
court can exercise its sentencing discretion in light of the changed circumstances’ ”].)
On remand, the trial court may revisit all of its sentencing choices in light of new
legislation. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full
resentencing rule allows a court to revisit all prior sentencing decisions when
resentencing a defendant”].)
4
DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded to the trial court for
resentencing.
HULL, J.
We concur:
BLEASE, Acting P. J.
RENNER, J.
5