People v. Schanuth CA3

Filed 1/23/23 P. v. Schanuth 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE,
Plaintiff and Respondent, C095754
v. (Super. Ct. No. CRF2100211)
ARNOLD WAYNE SCHANUTH,
Defendant and Appellant.
Defendant Arnold Wayne Schanuth pleaded no contest to assault with a deadly
weapon, and admitted allegations that the crime resulted in great bodily injury and that he
had a prior strike conviction. Defendant also admitted that he had been on postrelease
community supervision (PRCS) at the time of the crime and had violated the terms of that
supervision. As part of the negotiated plea, defendant entered into a Cruz1 waiver. The
trial court subsequently found that defendant violated the Cruz waiver and imposed an
aggregate upper term sentence of 11 years in prison.
1 People v. Cruz (1988) 44 Cal.3d 1247.
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Defendant now contends his sentence should be vacated and the matter remanded
for resentencing in light of the passage of Senate Bill No. 567 (2021-2022 Reg. Sess.)
(Senate Bill 567), which altered the methodology for selecting an appropriate triad term.
(§ 1170, subd. (b); Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.) Defendant also claims
substantial evidence does not support the trial court’s determination that he violated his
Cruz waiver. The People agree with defendant’s first contention, but disagree with the
second. Finding merit in the first contention, we will affirm the convictions, vacate the
sentence, and remand for resentencing.
BACKGROUND
The People’s April 2021 information charged defendant with assault with a deadly
weapon (a knife) (Pen. Code, § 245, subd. (a)(1))2 with special allegations that the crime
resulted in great bodily injury (§ 12022.7, subd. (a)) and that defendant had a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.2, subd. (b)). On June 16, 2021, defendant
pleaded no contest and admitted the enhancement allegations. He also admitted he had
been on PRCS at the time of the crime and had violated that supervision. As part of the
negotiated plea, defendant entered into a Cruz waiver agreement wherein he would be
released pending sentencing under certain terms and conditions, including that he obey
all laws. If defendant successfully complied with the Cruz waiver, the trial court would
dismiss his prior strike allegation, and defendant would be sentenced to probation. If not,
defendant would receive a prison sentence of up to 11 years.
On November 1, 2021, the trial court conducted an evidentiary hearing,
ultimately concluding that defendant violated the Cruz waiver by committing violations
of section 240 [assault] and section 243, subdivision (e)(1) [battery]. Thereafter, on
December 27, 2021, the trial court sentenced defendant to an aggregate prison term of
2 Undesignated statutory references are to the Penal Code.
2
11 years as follows: the upper term of four years, doubled because of the prior strike,
plus three years consecutive for the great bodily injury enhancement.
DISCUSSION
I
Defendant asks that we vacate his sentence and remand for a full resentencing
hearing in light of the legislative changes brought about by Senate Bill 567. The People
agree that Senate Bill 567 applies retroactively and that remand is necessary.
Effective January 1, 2022, when a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the trial court must impose a term not exceeding
the middle term unless there are circumstances in aggravation that justify the imposition
of a term exceeding the middle term and the facts underlying those aggravating
circumstances (1) have been stipulated to by the defendant, (2) have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a court trial, or (3) relate
to the defendant’s prior convictions and are based on a certified record of conviction.
(§ 1170, subd. (b)(1)-(3); Stats. 2021, ch. 731.) The amendments apply retroactively to
defendant’s nonfinal judgment on appeal. (People v. Zabelle (2022) 80 Cal.App.5th
1098, 1109.)
Here, the trial court weighed multiple factors in aggravation and mitigation
before electing to impose the upper term, but the finding of only one circumstance
in aggravation (that defendant was on PRCS when he committed the crime) was
arguably consistent with the new requirements imposed under Senate Bill 567. (§ 1170,
subd. (b)(1), (2).) Because the findings for most of the factors clearly were not consistent
with the new requirements, it is unclear whether the trial court would have imposed the
upper term under the law as amended by Senate Bill 567. Given that the parties agree
with remand, we will vacate defendant’s sentence and remand for sentencing. (People v.
Garcia (2022) 76 Cal.App.5th 887, 902.)
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II
Defendant next argues there is insufficient evidence to support the trial court’s
determination that he violated his Cruz waiver.
At the contested hearing on the alleged violation, defendant’s fiancé indicated she
had been drinking on the day in question and had limited recall of the events. The fiancé
and defendant had argued, she asked him to pull the car over, and she called her father to
come get her, but she denied that the argument was physical or that she had reported
physical abuse to the reporting officer.
However, another witness testified that he saw a commotion in an orange car in
the parking lot. The witness saw defendant yell at the fiancé and then strike her on the
side of her face. The witness told others to call 911. Defendant threatened to assault the
witness and then returned to the car, where it looked like he grabbed or hit the fiancé.
Officer Daniel Fiut responded to the parking lot and interviewed the fiancé. She
told him defendant had “backhanded her a couple times” on the shoulder and shook her
by her triceps with his hands. The fiancé did not have any visible injuries and did not ask
to press charges.
The trial court determined that acts of domestic violence had occurred in violation
of section 240 [assault] and section 243, subdivision (e)(1) [battery], and that defendant
had violated his Cruz waiver.
A trial court determines whether a defendant violated a condition of his Cruz
waiver by a preponderance of the evidence, and we review this determination for
substantial evidence. (People v. Rabanales (2008) 168 Cal.App.4th 494, 509.) In
conducting this evaluation, “ ‘[t]he power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is substantial evidence,
contradicted or uncontradicted, which will support the determination.’ ” (Ibid., italics
omitted.) Accordingly, “ ‘[w]e do not reweigh or reinterpret the evidence; rather, we
determine whether there is sufficient evidence to support the inference drawn by the trier
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of fact.’ ” (Ibid.) Testimony of a single witness is sufficient to support a conviction,
unless that testimony is either “ ‘physically impossible or inherently improbable.’ ”
(Ibid., citing People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, the trial court credited the witness’s testimony that he saw defendant strike
the fiancé. Further, the fiancé told Officer Fiut that defendant backhanded her shoulder
multiple times and also shook her by her triceps. There was nothing physically
impossible or inherently improbable about this testimony, which constitutes substantial
evidence that defendant committed assault (see § 240; CALCRIM No. 915) and battery
(see § 243 subd. (e)(1); CALCRIM No. 841). Accordingly, substantial evidence supports
the trial court’s determination that defendant violated his Cruz waiver by violating his
promise to obey the law.
DISPOSITION
Defendant’s convictions are affirmed, but the sentence is vacated and the matter is
remanded for resentencing under current applicable law. Following resentencing, the
trial court shall prepare an amended abstract of judgment, as appropriate, and send the
amended abstract to the Department of Corrections and Rehabilitation.
/S/
MAURO, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
BOULWARE EURIE, J.
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