People v. Bruhn CA3

Filed 7/11/22 P. v. Bruhn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C094000

Plaintiff and Respondent, (Super. Ct. No. 19FE017469)

v.

MICHAEL ROBERT BRUHN,

Defendant and Appellant.

A jury found defendant Michael Robert Bruhn guilty of stalking in violation of a restraining order and found true the allegation of a prior felony stalking conviction. The trial court imposed the upper term. Defendant appeals. While defendant’s appeal was pending, Senate Bill No. 567 (2021-2022 Reg. Sess.) came into effect, changing the trial court’s sentencing discretion. Both parties agree that Senate Bill No. 567 applies retroactively to defendant’s case but disagree on the remedy. Defendant contends the case must be remanded for resentencing because some aggravating factors relied on by the trial court were not stipulated to or proven beyond a reasonable doubt under the amended statute. The People, on the other hand, argue remand is unnecessary because the trial court based the upper term on facts admitted by defendant and found true by the jury, and any error was harmless. We affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND The People charged defendant with stalking in violation of a restraining order and alleged that defendant had sustained a prior felony stalking conviction in June 2018. At the jury trial, defendant stipulated to a prior stalking conviction in October 2017, and the alleged June 2018 prior felony stalking conviction, and that both involved the same victim. He also stipulated that a restraining order prohibiting him from contacting the same victim was in effect at the time of the current offense. According to the testimony of a probation officer at trial, defendant had served a prior prison term and was on postrelease community supervision when he was arrested for the current offense. The jury found defendant guilty of stalking in violation of the restraining order and found the prior felony stalking conviction allegation to be true. At sentencing, the trial court stated it considered the aggravating factors in the probation report, including: that the crime involved a threat of great bodily harm or acts of cruelty; the manner in which the crime was carried out; defendant had prior convictions as an adult “for the same offense directed to the same victim”; defendant’s prior convictions were numerous or of increasing seriousness; defendant had served a prior prison term; and, defendant was on postrelease community supervision when he committed the current offense. The trial court also noted the lack of any mitigating circumstances. Considering these circumstances and “particularly given the prior prison term,” the trial court selected the upper term of five years. Defendant timely appealed.1