People v. Cable CA3 ( 2023 )

Filed 3/15/23 P. v. Cable 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C096095
Plaintiff and Respondent, (Super. Ct. Nos. 20CF02345,
20CF06034, 21CF03808)
v.
SETH DANIEL CABLE,
Defendant and Appellant.
Following three separate plea agreements, defendant Seth Daniel Cable was
convicted of five counts of fraudulent possession of personal identifying information with
a prior qualifying conviction and two counts of possession of methamphetamine while in
custody. The trial court sentenced defendant on all three cases imposing consecutive
terms, totaling eight years four months. Defendant appeals, challenging the imposition of
an upper term sentence for the principal term of possession of methamphetamine while in
custody. We affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
On May 4, 2020, defendant was charged with 18 counts of fraudulent possession
of personal identifying information with a prior qualifying conviction and one count of
possession of methamphetamine. Defendant entered a plea of no contest for five of the
fraudulent possession counts and the remaining counts were dismissed. The trial court
sentenced defendant to five years eight months.
On December 2, 2020, defendant was charged with possession of
methamphetamine while in custody. Defendant entered a plea of no contest and filed a
motion to relieve the public defender and represent himself. The trial court granted
defendant’s motion. Subsequently, the trial court sentenced defendant to the upper term
of four years.
On July 26, 2021, defendant was charged for a second time with possession of
methamphetamine while in custody, and he later entered a plea of no contest. By the
court’s recommendation, defendant was appointed new counsel on October 13, 2021.
On March 9, 2022, the trial court resentenced defendant on all cases. It designated
defendant’s first possession of methamphetamine while in custody conviction as the
principal term and imposed the upper term of four years. The trial court selected the
upper term based on defendant’s prior conviction as an adult and prior prison term, which
were summarized in defendant’s probation report after the probation officer consulted
certified records. It then imposed a consecutive one-third the midterm (eight months) for
each of the five counts of fraudulent possession of personal identifying information and a
consecutive one-third the midterm (one year) for defendant’s second conviction of
possession of methamphetamine while in custody. Defendant did not object during the
trial court’s oral pronouncement of sentence.
Defendant appeals.
2
DISCUSSION
Defendant argues his four-year sentence for possession of methamphetamine
while in custody should be reduced to the midterm sentence because the aggravating
factors relied on by the trial court were not proven by certified records as required by
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). He contends his
claim is not forfeited because at the time of his full resentencing the law regarding what
constituted a certified record was unsettled. We disagree.
“[C]omplaints about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised for the first time on
appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356.) For the forfeiture doctrine to apply,
there must be a meaningful opportunity to object to sentencing errors of the trial court at
the time the errors are committed. (Ibid.) “This opportunity occurs only if, during the
course of the sentencing hearing itself and before objections are made, the parties are
clearly apprised of the sentence the court intends to impose and the reasons that support
any discretionary choices.” (Ibid.)
Here, defendant challenges the trial court’s imposition of the upper term sentence
rather than the midterm sentence, arguing the trial court improperly relied on aggravating
factors. This is a challenge to the trial court’s discretionary ruling, subject to forfeiture if
not raised in the trial court, as explained in Scott. (People v. Scott, supra, 9 Cal.4th at
p. 356.) Further, at the resentencing, the trial court delineated the terms imposed for
defendant’s combined sentence and explained its reasoning for choosing the upper term
sentence for the principal possession of methamphetamine conviction. Defendant was
apprised of the sentence and had multiple opportunities to object but failed to do so.1
Thus, the issue was forfeited.
1 Defendant does not argue his counsel was ineffective, and thus we will not address
the issue.
3
Defendant argues forfeiture should be excused in this case because there was
unsettled law regarding how courts may use probation reports when weighing factors
under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). (Citing
People v. Zabelle (2022) 80 Cal.App.5th 1098; People v. Flores (2022) 75 Cal.App.5th
495.) Defendant also relies on the fact that Senate Bill No. 567 had been recently enacted
when his resentencing occurred. We do not accept these arguments. Senate Bill No. 567
was effective on January 1, 2022, months before defendant’s resentencing. And contrary
to defendant’s contention, probation reports have never been considered certified records
for purposes of Senate Bill No. 567. (Flores, at pp. 500-501 [holding it was harmless
error for the trial court to rely on a defendant’s probation report during sentencing].)
Thus, even under the case law existing at the time of defendant’s resentencing, his
objection would have been well taken. Despite the recent effective date of Senate Bill
No. 567, it was defendant’s obligation to stay informed of current law and raise in the
trial court the issue he now raises on appeal. Accordingly, defendant’s sentencing claim
is forfeited, and we will not discuss the merits of his argument.
4
DISPOSITION
The judgment is affirmed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
EARL, J.
5