People v. Nelsen CA3

Filed 8/16/22 P. v. Nelsen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094252

Plaintiff and Respondent, (Super. Ct. No. 18F6428)

v.

BRYCE THOMAS NELSEN,

Defendant and Appellant.

Appointed counsel for defendant Bryce Thomas Nelsen asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) On this court’s own motion, we ordered supplemental briefing by the parties on the effect of Senate Bill No. 567 (2021-2022 Reg Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) on defendant’s sentence. Defendant contends that Senate Bill 567, which took effect while his appeal was pending, applies retroactively to his case and requires reversal of his sentence and remand for resentencing. The People agree Senate Bill 567 applies retroactively, but argue the

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trial court sufficiently complied with the new law in selecting an upper term sentence and, alternatively, any error was harmless. We agree Senate Bill 567 applies retroactively and conclude the trial court’s error in relying on an aggravating circumstance neither found true by the trier of fact nor stipulated to by defendant was harmless. We affirm the judgment accordingly. FACTS AND HISTORY OF THE PROCEEDINGS In September 2018, the People charged defendant with a single count of felony vandalism (Pen. Code, § 594, subd. (b)(1))1 in Shasta County Superior Court case No. 18F6428 (case No. 428). In November 2018, defendant pleaded no contest to the vandalism charge as well as a misdemeanor charge for battery (§ 242) in Shasta County Superior Court case No. 18M6218 (case No. 218). Defendant also admitted violating his probation in four other cases by failing to report to the probation department. In exchange for his plea, the People moved to dismiss “outright” Shasta County Superior Court case No. 18M7031. The trial court subsequently suspended imposition of sentence and placed defendant on three years’ formal probation. On November 20, 2020, the probation department (the Department) filed a petition alleging defendant violated his probation in case No. 428 by committing another act of vandalism (§ 594, subd. (b)(2)(A)), with which he was charged in Shasta County Superior Court case No. 20M7619 (case No. 619). On March 8, 2021, defendant admitted to violating his probation by committing the other act of vandalism and failing to report to his probation officer. Defendant also pleaded no contest to misdemeanor vandalism in case No. 619. In exchange for defendant’s plea, the People agreed to dismiss with a Harvey2 waiver three pending