People v. Brogdon CA3

Filed 6/28/22 P. v. Brogdon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C094200

Plaintiff and Respondent, (Super. Ct. No. 62174325)

v.

NICOLE MARIE BROGDON,

Defendant and Appellant.

After a jury found defendant Nicole Marie Brogdon guilty of evading a peace officer, the trial court sentenced her to an upper term of three years, suspended execution of the sentence, and granted three years of probation. Defendant contends that we must remand for resentencing because the trial court’s imposition of an upper term sentence did not satisfy the new requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which took effect while her appeal was pending and applies retroactively to her case. The People agree. 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

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statute. Accordingly, we vacate the sentence and remand the matter to the trial court to resentence defendant. BACKGROUND The details of the offenses in this case are not relevant to defendant’s appeal of her upper term sentence, so we omit them. A jury found defendant guilty of evading a peace officer (Veh. Code, § 2800.2, subd. (a)), resisting a peace officer (Pen. Code, § 148, subd. (a)),1 and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). During trial, defendant also pleaded guilty to driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). At the sentencing hearing, the trial court considered as aggravating circumstances: (1) defendant’s prior convictions (Cal. Rules of Court, rule 4.421(b)(2));2 (2) prior violations of probation and parole (rule 4.421(b)(5)); (3) the fact that defendant was on probation when she committed the current offense (rule 4.421(b)(4)); and (4) defendant’s “total disregard for the safety of others” in driving under the influence, which could easily have resulted in the death of an innocent person (rule 4.421(a)(1)). The trial court considered as mitigating circumstances: (1) defendant’s gainful employment since the offense and (2) defendant’s success participating in various Placer County support programs, as evidenced by numerous recommendations from program personnel. The report prepared by the Placer County Probation Department noted defendant had experienced abuse and violence, both as a child and in intimate relationships as an adult, but the trial court did not mention these circumstances at the sentencing hearing. After weighing the aggravating and mitigating factors, and calling it “an extremely close case,” the trial court imposed an upper term sentence of three years for evading a