People v. Schafer CA3

Filed 8/5/25 P. v. Schafer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento) ----

THE PEOPLE, C101252

Plaintiff and Respondent, (Super. Ct. No. 15F04925)

v.

DANIEL GENE SCHAFER,

Defendant and Appellant.

Appointed counsel for defendant Daniel Gene Schafer filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We ordered supplemental briefing on whether the trial court erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170, subdivision (b).1 Because the court did so err, and because we

1 Undesignated statutory references are to the Penal Code.

1

conclude the error was not harmless, we vacate defendant’s sentence and remand to the trial court for further litigation of the aggravating circumstances and resentencing. FACTS AND PROCEEDINGS2 In 2016, a jury found defendant guilty of first degree attempted robbery (§§ 211, 664), first degree robbery (§ 211), first degree burglary (§ 459), and unlawful possession of a firearm (§ 29800, subd. (a)(1)). As to the robberies, the jury found true that defendant personally used a firearm. (§ 12022.53, subd. (b).) As to the burglary, the jury found true that defendant personally used a firearm (§ 12022.5, subds. (a), (d)) and that another person other than an accomplice was present in the residence during the burglary (§ 667.5, subd. (c)(21)). Defendant waived a jury trial as to his prior convictions. At a bench trial, the trial court found true that defendant had seven prior strike convictions, all stemming from a single prior case. The trial court sentenced defendant to an aggregate term of 75 years to life plus 23 years four months. In his prior appeal, we agreed with defendant’s claims of sentencing error and remanded for resentencing. (See People v. Schafer (Nov. 5, 2020, C083560) [nonpub. opn.].) On remand, the trial court resentenced defendant as follows: (1) 25 years to life for the attempted robbery plus 10 years for the associated firearm enhancement; (2) 25 years to life for the first degree robbery plus three years four months for the associated firearm enhancement; (3) 25 years to life for the burglary plus 10 years (the upper term) for the associated firearm enhancement (both stayed under section 654); (4) six years for unlawful possession of a firearm (the upper term, doubled due to the prior strike); and (5) 10 years for two prior serious felony enhancements (§ 667, subd. (a)). In imposing the