People v. Fox CA3

Filed 5/2/22 P. v. Fox CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094314

Plaintiff and Respondent, (Super. Ct. Nos. 19F7182, 20F5798, 20F7295) v.

GARY GLEN FOX,

Defendant and Appellant.

Defendant Gary Glen Fox appeals from his sentence in three criminal cases. Specifically, defendant contends that we must remand for resentencing because the trial court’s imposition of an upper term sentence on the principal count does not satisfy the new requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which took effect while his appeal was pending and applies retroactively to his case. The People agree.

1

We conclude Senate Bill 567 is an ameliorative statute that applies retroactively to defendant’s nonfinal case and defendant is entitled to resentencing under the amended statute. We accordingly vacate the sentence and remand the matter to the trial court to resentence defendant.

FACTS AND HISTORY OF THE PROCEEDINGS In an open plea, defendant pleaded no contest to receiving a stolen motor vehicle with a prior (Pen. Code, §§ 496d, subd. (a), 666.5; case No. 19F7182; statutory section citations that follow are to the Penal Code) second degree robbery (§ 211; case No. 20F7295), four counts of resisting an officer (§ 148, subd. (a)(1); case No. 20F7295), and first degree burglary (§§ 459, 460, subd. (a); case No. 20F5798). At the sentencing hearing for all three cases, the trial court listed the aggravating factors it considered in deciding whether to select the upper term for first degree burglary: (1) the manner in which defendant carried out the burglary indicated planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8); rule references that follow are to the California Rules of Court), (2) defendant’s prior convictions were numerous and of increasing seriousness (rule 4.421(b)(2)), (3) defendant has served a prior prison term (rule 4.421(b)(3)), and (4) defendant was on probation when he committed the crime (rule 4.421(b)(4)). The trial court sentenced defendant to an aggregate term of 20 years in state prison, consisting of: the upper term of six years for first degree residential burglary, doubled to twelve years due to a prior strike; one year (one-third the middle term) for second degree robbery, doubled to two years due to the strike, plus a five-year enhancement for a prior serious felony; and one year (one-third the middle term) for receiving a stolen motor vehicle. For the four counts of resisting an officer, the trial court sentenced defendant to time served.