People v. Eldridge CA3

Filed 3/3/23 P. v. Eldridge 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C095340
Plaintiff and Respondent, (Super. Ct. No. 20CF00627,
20CF05186, 21CF00326 &
v. 21CF02777)
DANIEL MIRLE ELDRIDGE, JR.,
Defendant and Appellant.
Defendant Daniel Mirle Eldridge, Jr., entered a global plea agreement resolving
four criminal cases and acknowledging that the matter of probation and sentencing would
be left to the trial court’s sole discretion with a potential maximum sentence of eight
years and four months. After finding several aggravating factors outweighed a single
factor in mitigation, the trial court exercised its discretion to impose the maximum term,
including the upper term of four years on the principal count.
1
The parties agree, as do we, that the trial court’s selection of the upper term does
not comply with the sentencing requirements in Penal Code1 section 1170, subdivision
(b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731,
§ 1.3) (Senate Bill 567). Because the new legislation applies retroactively to defendant’s
case, we shall reverse and remand for full resentencing so the trial court can exercise its
discretion in light of the statutory changes. Based on our disposition, we need not and do
not address defendant’s additional arguments that the trial court erred when it denied
probation, imposed fees and fines without an ability to pay hearing, and imposed an
allegedly improper condition of mandatory supervision regarding gangs.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2020, defendant was pulled over during a routine traffic stop, and
officers discovered a large quantity of narcotics inside the car he was driving. Defendant
was charged in Butte County case No. 20CF00627 (00627) with eight drug offenses,
including three counts of possession for sale of a controlled substance (Health & Saf.
Code, § 11351; count 1 [heroin], count 5 [methadone], count 7 [suboxone]). Defendant
was released on bail and later failed to appear for his arraignment on the information.
In October 2020, while out on bail, defendant was pulled over while driving a car
that had been reported stolen. Marijuana and drug paraphernalia were found in the car.
Defendant was charged in Butte County case No. 20CF05186 (05186) with driving or
taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 1) with three prior
convictions (§ 666.5), which he allegedly committed while released on bail in case
No. 00627 (§ 12022.1). Two other drug charges were also alleged. The following month
he was released on bail but failed to appear as ordered.
1 Further undesignated statutory references are to the Penal Code.
2
In January 2021, defendant was charged in Butte County case No. 21CF00326
(00326) with failure to appear while on bail (§ 1320.5; count 1) and with a special
allegation that he committed the felony offense while he was released from custody on
bail in cases Nos. 00627 and 05186 (§ 12022.1).
After being returned to custody, defendant admitted in May 2021 that he had
narcotics on his person, and correctional officers retrieved a bag of methamphetamine
from his pocket. Defendant was charged in Butte County case No. 21CF02777 (02777)
with possession of a controlled substance or paraphernalia in a custodial facility
(§ 4573.6, subd. (a); count 1).
In September 2021, defendant agreed to a global plea deal regarding all four cases
with a maximum lid of eight years and four months, and sentencing discretion left to the
court. Under the terms of the plea agreement, defendant pleaded guilty to all three
possession offenses (counts 1, 5 & 7) in case No. 00627, the vehicle theft offense (count
1) in case No. 05186, the felony failure to appear offense (count 1) in case No. 00326,
and the possession of a controlled substance in a jail facility offense (count 1) in case
No. 02777. All remaining charges and enhancements were dismissed with a Harvey
waiver.2 The parties stipulated to the probation report as the factual basis for defendant’s
pleas.
A presentence probation report recommended the upper term on the principal
count with a portion of defendant’s sentence served on mandatory supervision. The
report summarized defendant’s criminal history, including four prior felony convictions
and nine prior misdemeanor convictions. The report found three factors in aggravation
— that defendant’s prior convictions were numerous, that he had served a prior prison
2 A fifth misdemeanor matter (Butte County case No. 19CM07193) was also
dismissed with a People v. Harvey (1979) 25 Cal.3d 754 waiver given defendant’s global
plea in the four felony cases.
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term, and that his performance on probation was unsatisfactory. It found no
circumstances in mitigation.
At the October 2021 sentencing hearing, the trial court followed probation’s
recommendation and imposed a four-year upper term on count 1 in case No. 00627,
which it deemed the principal count. In selecting the upper term, the court found that
several aggravating factors outweighed any factors in mitigation. The court found a
single mitigating factor (that defendant pled at an early stage), and four aggravating
factors — that the crime involved a large quantity of narcotics, defendant’s prior
convictions as an adult were numerous, he had served a prior prison term, and his prior
performance on probation and mandatory supervision was unsatisfactory.
The trial court imposed consecutive one-third of the midterm sentences for each of
defendant’s remaining convictions.3 Defendant’s total aggregate sentence was eight
years and four months in county prison with the concluding 1,538 days suspended and to
be served as a period of mandatory supervision with various terms and conditions.
The trial court awarded various fees and fines and presentence credits. Defendant
timely appealed with a certificate of probable cause.
DISCUSSION
At the time defendant was sentenced in October 2021, section 1170 provided that
when a judgment of imprisonment is to be imposed and the statute authorizes three
potential terms, “the choice of the appropriate term shall rest within the sound discretion
of the court.” (§ 1170, former subd. (b).)
While this appeal was pending, effective January 1, 2022, Senate Bill 567 changed
the requirements for proving aggravating circumstances and altered sentencing discretion
3 The court imposed a consecutive one-year term each for counts 5 and 7 in case
No. 00627 and count 1 in case No. 02777. The court imposed consecutive terms of eight
months each for the counts in case Nos. 05186 and 00326.
4
under section 1170. (Stats. 2021, ch. 731, § 1.3.) Among other things, Senate Bill 567
amended section 1170 to generally provide for midterm sentences and prohibit upper
term sentencing unless the factors in aggravation are stipulated to by the defendant,
proven to a fact finder beyond a reasonable doubt, or established by a certified record of
conviction. (§ 1170, subds. (b)(1)-(3).) In selecting an appropriate term, the court must
set forth on the record the facts and reasons for choosing the sentence imposed. (§ 1170,
subds. (b)(5), (c).)
We agree with the parties that Senate Bill 567 applies retroactively to this case.
(People v. Garcia (2022) 76 Cal.App.5th 887, 902; In re Estrada (1965) 63 Cal.2d 740,
744.) The parties further agree that none of the aggravating factors the trial court cited in
imposing the upper term on count 1 in case No. 00627 were either stipulated to by
defendant or found true beyond a reasonable doubt by a trier of fact. Nor were any
certified records of defendant’s prior convictions introduced.
The People concede they cannot in good faith show the failure to comport with the
newly revised sentencing scheme was harmless “[g]iven the nebulous nature of the
aggravating factors the trial court cited in imposing the upper term.” We accept the
People’s concession.
To find the state law error harmless, a reviewing court must consider, for each
aggravating factor, “whether it is reasonably probable that the [fact finder] would have
found the fact not true. We must then, with the aggravating facts that survive this review,
consider whether it is reasonably probable that the trial court would have chosen a lesser
sentence had it considered only these aggravating factors.” (People v. Zabelle (2022)
80 Cal.App.5th 1098, 1112.) “[T]o the extent a potential aggravating circumstance at
issue . . . rests on a somewhat vague or subjective standard, it may be difficult for a
reviewing court to conclude with confidence that, had the issue been submitted to the
jury, the jury would have assessed the facts in the same manner as did the trial court.”
(People v. Sandoval (2007) 41 Cal.4th 825, 840.)
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Here, at least two of the four factors in aggravation the trial court relied on are
relatively subjective and not capable of precise determination. Whether the quantity of
narcotics was “large” or whether defendant’s convictions were “numerous” relative to
other offenses or offenders rested on a somewhat “vague or subjective standard,” (People
v. Sandoval, supra, 41 Cal.4th at p. 840) making it difficult to conclude with confidence
that a fact finder would have found the factors true if the proof requirements of amended
section 1170 had been applied at sentencing. And given the absence of any certified
records concerning defendant’s criminal history, we will not presume evidence exists to
show defendant served a prior prison term or that his performance on probation or
mandatory supervision was unsatisfactory. (People v. Zabelle, supra, 80 Cal.App.5th at
p. 1115, fn. 6 [“If the record is insufficient to support a trial court’s findings about a
defendant’s criminal history, we will not presume the existence of extra-record materials,
however likely they are to exist, to address this insufficiency.”].) Because the trial court
also found a factor in mitigation — that defendant pled at an early stage, we are unable to
conclude the trial court would have chosen the upper term had it had the benefit of
amended section 1170’s provisions. The error, then, is not harmless on this record.
In light of our conclusion, we will remand for a full resentencing. (People v.
Buycks (2018) 5 Cal.5th 857, 893; People v. Walker (2021) 67 Cal.App.5th 198, 206
[trial court has a duty to ensure all components of a defendant’s sentence are authorized
by the law and the facts at the time any new sentence is imposed].) We do not reach
defendant’s remaining contentions on appeal, which he may raise at resentencing.
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DISPOSITION
Defendant’s sentence is reversed, and the matter is remanded to the trial court for
full resentencing, including — but not limited to — the exercise of discretion pursuant to
Senate Bill 567 and any other applicable changes in the law.
\s\ ,
McADAM, J.*
We concur:
\s\ ,
DUARTE, Acting P. J.
\s\ ,
KRAUSE, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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