People v. Dean CA3

Filed 3/30/22 P. v. Dean CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Modoc) ----

THE PEOPLE, C093782

Plaintiff and Respondent, (Super. Ct. No. F20197)

v.

STEPHEN WEST DEAN III,

Defendant and Appellant.

In light of recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567), effective January 1, 2022, defendant Stephen West Dean III appeals the upper-term sentence imposed following his plea of guilty to battery with serious bodily injury. Defendant contends Senate Bill 567 necessitates a remand for resentencing in light of the recent statutory changes limiting the trial court’s discretion to impose the upper term. The People agree. We remand for resentencing.

1

I. BACKGROUND Defendant entered an open plea to battery with serious bodily injury (Pen. Code, § 243, subd. (d)) following a fight with another inmate while housed at Modoc County Jail when he was 24 years old.1 The probation report recommended the court impose an upper-term sentence of four years, based on a number of aggravating factors, including: (1) the crime involved great violence resulting in great bodily injury; (2) the crime required planning, sophistication, and professionalism; (3) the crime indicated that defendant was a danger to society; and (4) defendant’s criminal history indicates increasing seriousness. The probation officer concluded that there were no facts limiting the defendant’s culpability nor were there any circumstances in mitigation. The trial court considered defendant’s “good demeanor” and “good decorum” throughout the proceedings as a mitigating factor. Nonetheless, the court stated, “there’s no question in my mind, in reviewing this [probation] report, that the aggravating circumstances far outweigh” those in mitigation and therefore the upper term was appropriate. The trial court sentenced defendant to the four-year upper term.2 Defendant timely appealed on February 12, 2021. II. DISCUSSION Prior to Senate Bill 567, the Penal Code provided that, “the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports, including reports received pursuant to section 1203.03, and