People v. Krater CA3

Filed 8/15/22 P. v. Krater CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C093982

v. (Super. Ct. No. 20CF00007)

CHRISTIAN CALVIN KRATER,

Defendant and Appellant.

Defendant Christian Calvin Krater pleaded no contest to injuring his child’s parent. In exchange for his plea, four additional charges were dismissed with a Harvey1 waiver. In March 2021, the trial court sentenced defendant to the upper term of four years in state prison. Defendant appealed, and his appointed counsel asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende

1 People v. Harvey (1979) 25 Cal.3d 754

1

(1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed, and we received no communication from defendant. While this appeal was pending, the Legislature passed and the Governor signed Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567). Effective January 1, 2022, that law amended Penal Code section 1170, subdivision (b) to require the trial court to impose a sentence not to exceed the middle term unless there are circumstances in aggravation that justify the imposition of a term exceeding the middle term and the facts underlying those aggravating circumstances (1) have been stipulated to by the defendant, (2) have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial, or (3) relate to the defend ant’s prior convictions and are based on a certified record of conviction. (§ 1170, subd. (b)(1), (2), (3).) In light of the new law, we asked the parties to submit supplemental briefing on its affect in this case. Having considered the supplemental briefing and having reviewed the record, we will affirm the conviction but remand for resentencing. BACKGROUND On the morning of December 30, 2019, defendant went to another person’s home to visit his child. While there, defendant grabbed A.S., the mother of his child, by the head and threw her into the front of a parked car, causing A.S. to lose consciousness and fall to the ground. Defendant picked A.S.’s limp body up off the ground only to drop her again and start walking away. As he walked away, A.S. stood up and “began to limp away from the vehicle.” Defendant turned, grabbed her by the face or neck, and “ ‘thrashed’ her face around.” In an effort to keep defendant off of her, A.S. put out her arms; defendant grabbed one of her arms, “jerked her forward, and punched her in the face.” The punch caused A.S.’s head to snap backward and defendant punched her in the shoulder before walking away. A.S. ran inside the house. Two adults and a minor child witnessed the assault, which was also caught on video.