People v. Tatum CA3 ( 2022 )

Filed 10/25/22 P. v. Tatum 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent, C094490, C094571
v. (Super. Ct. Nos. 20CF05128,
20CF01690)
ALPHONSO FITZGERALD TATUM,
Defendant and Appellant.
Defendant Alphonso Fitzgerald Tatum admitted violating the conditions of his
probation. The trial court imposed an upper term sentence for carrying a concealed dirk
or dagger.
While defendant’s appeal was pending, the Legislature enacted Senate Bill
No. 567 (2021-2022 Reg. Sess.), which took effect on January 1, 2022. Among other
things, the bill amended Penal Code section 1170, subdivision (b)1 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.)
1 Undesignated statutory references are to the Penal Code.
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The parties agree on all three contentions asserted by defendant on appeal: (1) that
the trial court’s imposition of an upper term sentence on the principal count does not
satisfy the new requirements of section 1170, subdivision (b); (2) that the trial court did
not properly specify the fines and penalty assessments it imposed; and (3) that the
abstract of judgment incorrectly lists the code for one of defendant’s convictions.
Because we agree with the parties on the first contention, we need not address the
other two. We will vacate defendant’s sentence and remand for resentencing.
BACKGROUND
In two separate cases, defendant pleaded no contest to carrying a concealed dirk
or dagger (case No. 20CF01690; § 21310) and possessing a controlled substance (case
No. 20CF05128; Health & Saf. Code, §§ 11377, 11055, subd. (d)(2)). The trial court
suspended imposition of sentence and placed defendant on probation.
Four months later, defendant admitted violating the conditions of his probation in
both cases. At sentencing, the trial court denied defendant’s request to continue on
probation. As aggravating circumstances, the trial court found: (1) defendant had served
prior prison terms; (2) defendant was on parole when he committed the offense; and (3)
defendant had previously performed unsatisfactorily on probation, parole and post-release
community supervision. The trial court found no mitigating circumstances.
Based on these circumstances, the trial court sentenced defendant to the upper
term of three years in state prison for carrying a concealed dirk or dagger, plus a
consecutive term of eight months (one-third the middle term) for possessing a controlled
substance.
DISCUSSION
Senate Bill No. 567 amended section 1170, subdivision (b) to provide that a trial
court may only impose an upper term sentence if aggravating circumstances are
stipulated to by the defendant, have been found true beyond a reasonable doubt, or are
based on a certified record of conviction. (§ 1170, subd. (b)(1)-(3); Stats. 2021, ch. 731,
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§ 1.3, eff. Jan. 1, 2022.) The amendments apply retroactively to nonfinal convictions on
appeal. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109.)
The parties agree that the new requirements of section 1170, subdivision (b) were
not met in this case. Accordingly, we will vacate defendant’s sentence and remand for a
full resentencing. Because the trial court can revisit all prior sentencing decisions when
resentencing, defendant can assert his other appellate contentions on remand. (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”].)
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for
resentencing. The judgment is otherwise affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
HOCH, J.
/S/
BOULWARE EURIE, J.
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