People v. Simmons CA3

Filed 3/25/22 P. v. Simmons CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C093707

Plaintiff and Respondent, (Super. Ct. Nos. 12F4520 & 13F1568) v.

AARON THOMAS SIMMONS,

Defendant and Appellant.

Appointed counsel for defendant, Aaron Thomas Simmons, 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.) Thereafter, defendant filed two supplemental briefs. We also requested supplemental briefing on (1) the applicability of Senate Bill No. 567 (2021-2022 Reg. Sess.), Assembly Bill No. 124 (2021-2022 Reg. Sess.) and Assembly Bill No. 1540 (2021-2022 Reg. Sess.) to this case, and (2) the inconsistencies between the fines and fees orally imposed by the court and reflected in the minute orders. Having reviewed

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defendant’s arguments, the supplemental briefing, and the record as required by Wende, we will remand the matter to allow the trial court to select a sentence in light of the changes brought about by this new legislation. As to the fines and fees, we shall direct the trial court to correct clerical errors. In all other respects, the judgment is affirmed. FACTUAL AND PROCEDURAL BACKGROUND Following defendant’s preliminary hearing in case No. 12F4520 (the burglary case), the People filed a felony information alleging defendant committed second degree burglary of a vehicle (Pen. Code, § 459; count 1)1 with the special allegation that he had suffered a prior strike (§ 1170.12) and a prior prison term (§ 667.5, former subd. (b)). On March 14, 2014, defendant resolved the burglary case and numerous other cases by pleading, in pertinent part, no contest to the burglary and to a felony failure to appear (§ 1320, subd. (b)) in case No. 13F1568 (the failure to appear case). In exchange, defendant would receive probation and the ability to file a motion to reduce the burglary charge to a misdemeanor at sentencing. The remaining charges and enhancements (including the prior strike) were dismissed/stricken and the matter referred to probation for a sentencing report.2 The stipulated factual basis for the burglary case plea was the preliminary hearing transcript. The parties stipulated the factual basis for the failure to appear case could be found in the court record. On September 9, 2014, the trial court denied defendant’s motion to reduce the burglary to a misdemeanor (§ 17, subd. (b)), noting that since the burglary, defendant committed five violations of law and had had a total of seven misdemeanors dismissed as a result of his plea agreement. Further, defendant had committed numerous violations of probation and parole in the past 10 years. The court suspended imposition of sentence