People v. Cea CA1/5

Filed 9/28/22 P. v. Cea CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A163879 v. JOHN L. CEA, (Mendocino County Super. Ct. No. Defendant and Appellant. SCUKCRCR202036679 & SCUKCRCR2020368942)

Defendant and Appellant John L. Cea (Appellant) seeks remand for resentencing under amendments to Penal Code section 1170, subdivision (b).1 Respondent properly concedes that remand is appropriate. PROCEDURAL BACKGROUND In April 2021, the Mendocino County District Attorney filed an information (case number SCUKCRCR2020368942) charging Appellant with second degree robbery (§§ 211, 212.5, subd. (c); count one); driving against traffic while evading a police officer (Veh. Code, § 2800.4; count two); and reckless driving while evading a police officer (Veh. Code, § 2800.2, subd. (a); count three). In a separate information filed the same day (case number

1 All undesignated section references are to the Penal Code.

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SCUKCRCR202036679), the district attorney charged Appellant with grand theft (§ 487, subd. (a)). In July 2021, Appellant entered open no contest pleas to robbery and grand theft. Pursuant to the plea agreement, the trial court dismissed the remaining counts in case number SCUKCRCR2020368942. In September 2021, the trial court denied probation and sentenced Appellant to a term of five years and eight months in prison, composed of the five-year upper term for robbery and eight consecutive months (one-third of the middle term) for grand theft. In imposing the upper term for robbery, the court appeared to rely on aggravating factors identified in the probation report and prior convictions listed in the report. The present appeal followed. FACTUAL BACKGROUND Defense counsel stipulated to the following factual basis for Appellant’s pleas as stated by the prosecutor: “[O]n October 23, 2020, the defendant stole an ATM cassette from the owner. [¶] It contained $32,000 in cash, and the cassette was worth approximately $500. He took this without permission, and permanently deprived the owner of that money and cassette. . . . [¶] [O]n December 8, 2020, the defendant and another defendant, Christian Flores, who has already been sentenced, arranged to do a marijuana deal at the Burger King in Willits. [¶] And when the seller brought the marijuana to the location, this defendant and his codefendant took that marijuana by force and fear from the seller, and then fled the scene.” DISCUSSION “Effective January 1, 2022, our determinate sentencing law, section 1170, was amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–