People v. West CA3

Filed 9/30/24 P. v. West CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C099967

Plaintiff and Respondent, (Super. Ct. No. CR2022402)

v.

CHAYTON PAUL WEST,

Defendant and Appellant.

Defendant Chayton Paul West pled no contest to one count of burglary and admitted an aggravating circumstance. The trial court dismissed the remaining three burglary counts and all allegations with a Harvey1 waiver for restitution purposes only. On appeal, defendant claims the trial court prejudicially erred by relying on the dismissed burglary counts as circumstances in aggravation when it imposed the upper term of six

1 People v. Harvey (1979) 25 Cal.3d 754.

1

years. The People concede the error, but argue it was harmless. Under Chapman,2 we agree with defendant the error was prejudicial and will remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Defendant broke into a home, ransacked it, and left. An information charged defendant with four counts of burglary. (Pen. Code, § 459) It alleged five circumstances in aggravation. (Cal. Rules of Court, rule 4.421(b)(1)-(5).) Defendant pled guilty to one count of burglary and admitted the circumstance in aggravation that his prior convictions were numerous or increasing in seriousness. In exchange, the trial court dismissed the remaining counts and allegations with a Harvey waiver for restitution purposes only. At sentencing, the trial court reviewed the probation report and the parties’ sentencing briefs. The probation report indicated defendant’s record included seven prior felony convictions from 2007 to 2018, which were numerous or of increasing seriousness. (Cal. Rules of Court, rule 4.421(a)(2).) The probation report recommended the court impose the middle term of four years. The trial court asked the prosecution its position regarding the Harvey waiver and if the trial court could use the three dismissed burglary counts as an aggravating factor for sentencing purposes. The prosecution responded, “I believe so,” and confirmed to the trial court that it intended the Harvey waiver be used as to both sentencing and restitution. Defense counsel indicated he did not have anything to add. The trial court then said, “[T]his is a tough -- tough case because [the probation report had] favorable reports about [defendant] and what he’s been doing since he was last released from custody . . . in 2022.” After finding defendant was not eligible for