People v. Berkey CA1/3 ( 2024 )

Filed 1/5/24 P. v. Berkey CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A164226
v.
SHELDON LEON-THOMAS (San Mateo County
BERKEY, Super. Ct. No. SCR-730994-1)
Defendant and Appellant.
MEMORANDUM OPINION1
In November 2020, Sheldon Leon-Thomas Berkey pled no contest to
assault by means of force likely to produce great bodily injury in exchange for
a grant of probation. The trial court suspended imposition of sentence and
placed Berkey on probation with various conditions. The court later revoked
probation after Berkey admitted to a violation.
1 We resolve this case by memorandum opinion, omitting mention of
details pertaining to Berkey’s global resolution of additional trial court cases
not before us. (Cal. Stds. Jud. Admin., § 8.1.) We grant Berkey’s unopposed
request for judicial notice of several facts, including that he is subject to a
grant of postrelease community supervision (PRCS) until at least March 31,
2024. (Evid. Code, §§ 452, subd. (h), 459, subd. (a); see In re M.F. (2022) 74
Cal.App.5th 86, 110.)
1
At a September 2021 sentencing hearing, defense counsel urged the
trial court to impose a low or middle prison term in light of Berkey’s mental
health issues and history of childhood abuse. The court, however, imposed
the upper term; in doing so, it relied on aggravating factors such as Berkey’s
criminal history. Berkey appealed.
The parties agree—as do we—that ameliorative amendments to Penal
Code section 1170, subdivision (b), that took effect after Berkey was
sentenced require a remand for resentencing.2 (Stats. 2021, ch. 731, § 1.3, eff.
Jan. 1, 2022; undesignated statutory references are to the Penal Code.)
As amended, section 1170 authorizes a trial court to impose a sentence
exceeding the middle term only when “the facts supporting the aggravating
circumstances are (1) established by the defendant’s stipulation to them,
(2) proven to a jury (or to a court, if jury is waived) beyond a reasonable
doubt, or (3) based on prior convictions evidenced by a certified record of
conviction.” (Jones, supra, 79 Cal.App.5th at p. 44; § 1170, subds. (b)(1)–(3).)
Additionally, section 1170 now requires the court to “impose the low term if
the defendant’s psychological, physical, or childhood trauma was a
contributing factor in the commission of the offense, ‘unless the court finds
that the aggravating circumstances outweigh the mitigating circumstances
[so] that imposition of the lower term would be contrary to the interests of
justice.’ ” (Jones, at p. 44, brackets in original; § 1170, subd. (b)(6)(A).)
When the trial court sentenced Berkey, it did not have the benefit of
these amendments to section 1170. As such, it imposed the upper term
without making the findings required by subdivisions (b)(2) and (3) and
2 For a summary of the sentencing paradigm shift effected by Senate Bill
No. 567 (2020–2021 Reg. Sess.), see People v. Jones (2022) 79 Cal.App.5th 37(Jones).
2
without considering the applicability of subdivision (b)(6)(A). In light of the
ameliorative changes to section 1170, subdivision (b), described ante, we
agree with the parties that the case must be remanded for resentencing.
(Jones, supra, 79 Cal.App.5th at pp. 45–46; People v. Buycks (2018) 5 Cal.5th
857, 893.)
DISPOSITION
The conviction is affirmed. The sentence is vacated and the matter is
remanded for resentencing in light of section 1170, subdivision (b). If, upon
resentencing, the trial court reduces Berkey’s sentence, it must apply any
excess credits to his PRCS term. (People v. Steward (2018) 20 Cal.App.5th
407, 426.)
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Petrou, J.
People v. Berkey (A164226)
3