People v. Knight CA3

Filed 5/11/23 P. v. Knight 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C096334
Plaintiff and Respondent, (Super. Ct. No. 21CF01479)
v.
KEEGAN SHEA KNIGHT,
Defendant and Appellant.
Defendant Keegan Shea Knight argues the trial court erroneously imposed the
upper term on his conviction for possession of a controlled substance for sale.
Determining that defendant has forfeited this contention, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In March 2021, defendant was charged with felony possession for sale of a
controlled substance (Health & Saf. Code, § 11378; count 1) and misdemeanor unlawful
possession of a controlled substance (id., § 11350, subd. (a); count 2).
In February 2022, defendant pleaded no contest to count 1. The remaining
allegations were dismissed with a Harvey waiver.1 During the plea, defendant stipulated,
through his counsel, that the court could take the factual basis for the plea from the
probation report.
In the probation report, defendant stated that he had “been in trouble with the law
throughout [his] life,” including vandalism, possession of firearms, assault, possession of
drugs, and theft. He also noted he had been sent to prison in 2018 for a six-year term for
possession for sale, although he had been released in two years. The report further noted
defendant had told a police officer at the time of the instant crimes that he was on
postrelease community supervision (PRCS). In addition, the report included a “Criminal
Record Summary” listing defendant’s multiple convictions and prison sentences and
release on PRCS in 2020. The report noted that the probation department had derived
defendant’s prior criminal record from the official records of the Department of Justice,
the Federal Bureau of Investigation, the California Law Enforcement
Telecommunications System, and the records of Butte County Superior Court.
During the May 2022 sentencing hearing, the court indicated it intended to impose
the upper term of three years in the instant case, plus eight months in Mendocino County
Superior Court case No. 21CR00472 (case No. 472) involving a conviction under Health
and Safety Code section 11378. Defense counsel responded that the midterm of two
years was the appropriate term. He noted that defendant had prior convictions from
1 People v. Harvey (1979) 25 Cal.3d 754.
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Mendocino County, and defendant had served prison terms. Still, those convictions were
all drug-related, and the trial court had only imposed the midterm in case No. 472.
The trial court sentenced defendant to county prison for the upper term of three
years plus eight months (or one-third the midterm) consecutive in case No. 472. The
court explained why it imposed the upper term: “[Defendant] did not stipulate to the
existence of aggravating factors, nor did a jury find those factors to be true. And
although [Penal Code section 1170, subdivision (b)] presumes that the Court should
impose a midterm, in reviewing the Rules of Court, the Court, nonetheless, finds that
aggravating circumstances outweigh the mitigating circumstances. Specifically, his prior
convictions are numerous, he has served prior prison terms, he was on PRCS for the
exact same crime that brings him before the Court at this time. Because of those factors
in aggravation, the Court is going to impose an upper term.” Defendant did not object.
DISCUSSION
I
1. Legal background
Prior to January 1, 2022, Penal Code section 1170, subdivision (b)2 stated: “When
a judgment of imprisonment is to be imposed and the statute specifies three possible
terms, the choice of the appropriate term shall rest within the sound discretion of the
court.” (Stats. 2020, ch. 29, § 14.) However, the Legislature amended section 1170 via
Senate Bill No. 567 (2021-2022 Reg. Sess.) to now require a trial court, in its sound
discretion, to impose the lower or middle term, unless there are “circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated to by
the defendant, or have been found true beyond a reasonable doubt at trial by the jury or
2 Undesignated statutory references are to the Penal Code.
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by the judge in a court trial.” (§ 1170, subd. (b)(2).) “[T]he court may consider the
defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
2. Analysis
Defendant asserts that recent amendments to section 1170 require that the facts
that the trial court used to aggravate his sentence (namely his prior convictions, prior
prison terms, and fact that he was on PRCS for the same crimes) had to be proven to the
jury unless he stipulated to them.
Defendant was sentenced in May 2022, after the amendments to section 1170
came into effect. Defense counsel, the prosecutor, and the trial court were aware of these
amendments during the sentencing hearing, as indicated by the trial court’s comment that
section 1170, subdivision (b) made the presumptive term to be the midterm, unless there
were aggravating circumstances such as defendant’s criminal history. Defense counsel
even acknowledged that the new law permitted a trial court to impose an upper term
sentence based on a defendant’s prior criminal record, and defendant here had prior
convictions and prior prison terms. In failing to object in the trial court to the adequacy
of the evidence of defendant’s criminal history, defendant has forfeited the issue on
appeal. (See People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [“ ‘[c]laims of error
relating to sentences “which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner” are waived on appeal if not first raised in the
trial court’ ” (italics omitted)].)
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DISPOSITION
The judgment is affirmed.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
MCADAM, 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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