People v. Davis CA3

Filed 9/7/22 P. v. Davis CA3 See concurring opinion NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093994

Plaintiff and Respondent, (Super. Ct. No. NCR82824)

v.

JOSEPH VICTOR DAVIS,

Defendant and Appellant.

Defendant Joseph Victor Davis appeals the trial court’s 2021 recall and resentencing of his 2012 sentence. He argues his upper term sentences on three counts of assault, left intact by the trial court, cannot stand in light of Senate Bill No. 567 (2021- 2022 Reg. Sess.) (Senate Bill 567), which, as of January 1, 2022, modified the guidelines for the imposition of an upper term sentence. The People agree that the new legislation applies retroactively to defendant’s case but contend he has failed to meet his burden to demonstrate error by providing an insufficient record and, furthermore, any error in

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imposing the upper terms was harmless. We remand for full resentencing and otherwise affirm the judgment. BACKGROUND In June 2012, a jury found defendant, then 28 years old, guilty of three counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)),1 three counts of carjacking (§ 215, subd. (a)), and being a felon in possession of a firearm (former § 12021, subd. (a)(1)) and ammunition (former § 12316, subd. (b)(1)). Defendant stipulated to a prior felony conviction, having been convicted in 2005 of possessing stolen property and evading a police officer. The jury found true enhancement allegations that defendant personally used a firearm in the assault and carjacking counts. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) Defendant also admitted, under the then‑current version of section 667.5, subdivision (b), to serving a prior prison term for his 2005 convictions. A presentencing probation report identified circumstances in aggravation: the victims were vulnerable, defendant had numerous prior juvenile and adult adjudications and convictions, he served the 2005 prison term, and his performance on parole was unsatisfactory. The report stated there were no mitigating circumstances. The report concluded defendant “is clearly a significant danger to the community and should be sentenced to state prison for the longest time possible.” In the July 2012 sentencing hearing, the trial court stated, “I agree with the [probation] report as it analyzes the terms in aggravation and mitigation, to wit there are no terms in mitigation. And the circumstances in aggravation certainly include [defendant’s] prior adjudications and convictions, his prior prison terms and his performance on parole. The report concludes that he is a significant danger to the