People v. Clayton CA3

Filed 6/17/22 P. v. Clayton CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C093090

Plaintiff and Respondent, (Super. Ct. No. CRF191903)

v.

BRANDON ALLEN JESSIE CLAYTON,

Defendant and Appellant.

Defendant Brandon Allen Jessie Clayton pled no contest to felony criminal threats and felony corporal injury causing a traumatic condition on a spouse or child’s parent. Pursuant to a plea agreement, the trial court sentenced him to the stipulated upper term on the count for inflicting corporal injury of four years in prison and a consecutive eight months for criminal threats. Defendant filed this appeal.1 We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine if there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days

1 Defendant filed a timely notice of appeal on November 4, 2020, and the matter was fully briefed on March 6, 2022.

1

of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. After he was sentenced on October 19, 2020, but while this appeal was pending, the Legislature passed and the Governor signed Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731). Effective January 1, 2022, that law amended Penal Code2 section 1170, subdivision (b) to require the trial court to impose a sentence not to exceed the middle term unless defendant has stipulated to the facts that would justify an upper- term sentence or a jury or judge has found those facts to be true. (§ 1170, subd. (b)(2).) Given this new law, we directed the parties to submit supplemental briefing on its affect here. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The prosecutor filed an information charging defendant with felony criminal threats (count 1) and misdemeanor corporal injury on a spouse or child’s parent (count 2) and with enhancement allegations of a prior strike conviction and a prior serious felony conviction. As part of the plea agreement, the information was amended to add a count 3, felony willful infliction of corporal injury on a spouse or child’s parent causing a traumatic condition and defendant would plead no contest to count 1 and count 3. The plea agreement called for the court to release defendant for six weeks with a waiver of his sentencing rights under People v. Cruz (1988) 44 Cal.3d 1247, 1254, and the requirement he report to the probation department. If he complied with the terms of his release, defendant would be able to withdraw his plea to the criminal threats charge and would be sentenced to no more than the middle term on the remaining count. The plea agreement also called for the dismissal of count 2 and the enhancements. If defendant did not return to court for sentencing on February 18, 2020, the court would sentence him on count 1 and count 3 without any additional promises.