People v. Scott CA3

Filed 8/30/22 P. v. Scott CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C095430

Plaintiff and Respondent, (Super. Ct. Nos. 19CR000316, 19CR002530, 21CR000691, v. 21CR001901)

JOSHUA CALEB SCOTT,

Defendant and Appellant.

Defendant Joshua Caleb Scott appeals the trial court’s imposition of an aggregate prison sentence of five years, including a principal upper term of three years. He requests we reverse this sentence and remand for resentencing in light of the passage of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which altered the methodology

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for selecting an appropriate triad term. (Pen. Code, § 1170, subd. (b)1 ; Stats. 2021, ch. 731, § 1.3, effective Jan. 1, 2022.) We agree with the parties that the amendments to section 1170 apply to defendant’s nonfinal sentence. (People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores).) Further, because the trial court failed to articulate the bases upon which it chose to impose the upper term, we cannot conclude that any error in failing to apply these legislative changes is harmless as argued by the People. Therefore, we find it necessary to vacate defendant’s sentence and remand this matter for a resentencing hearing. Moreover, our review has disclosed certain sentencing errors that we will direct the trial court to correct on remand. The judgment of conviction is otherwise affirmed.

I BACKGROUND Defendant’s ultimate sentence in this matter was derived from four separate cases, which we will briefly describe herein. In Tehama County Superior Court case No. 19CR000316 (the February 2019 case), the People charged defendant with possession of a firearm by a felon (§ 29800, subd. (a)(1); count I); possession of a concealed firearm (§ 25400, subd. (a)(2); count II); misdemeanor driving on a suspended license with a prior (Veh. Code, § 14601.1, subd. (a); count III); and possession of ammunition by a felon (§ 30305, subd. (a)(1); count IV). Defendant resolved the matter by pleading guilty to counts III and IV, and in exchange, he received five years’ formal probation and dismissal of the remaining counts. The stipulated factual basis for his plea was Tehama County Sheriff’s Office report No. 19-00216. In Tehama County Superior Court case No. 19CR002530 (the September 2019 case), defendant was again charged with possession of ammunition by a felon (§ 30305,