People v. Wigiert CA3

Filed 10/5/22 P. v. Wigiert CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C095664

Plaintiff and Respondent, (Super. Ct. No. P20CRF0351)

v.

MATTHEW ALAN WIGIERT,

Defendant and Appellant.

Defendant Matthew Alan Wigiert agreed to a stipulated sentence that included a stayed upper term in exchange for a grant of five years’ felony probation. After defendant violated that probation, the trial court lifted the stay on the four-year eight- month prison sentence. Defendant appeals arguing we should reverse this sentence and remand the matter for resentencing in light of the passage of Senate Bill No. 567 (2021- 2022 Reg. Sess.) (Senate Bill 567), which altered the methodology for selecting an appropriate triad term. (§ 1170, subd. (b); Stats. 2021, ch. 731, eff. Jan. 1, 2022.) For the reasons we shall explain, we disagree and will affirm the judgment.

1

I BACKGROUND The People’s amended consolidated criminal information charged defendant with stalking (Pen. Code, § 646.9, subd. (b)—count 1)1; resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)—count 2); corporal injury on a dating partner (§ 273.5, subd. (a)—count 3); criminal threats (§ 422, subd. (a)—count 4); vandalism (§ 594, subd. (b)(2)—count 5); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count 6); and violating a domestic relations court order (§ 273.6, subd. (a)—counts 7-13). The information further alleged that as to counts 1, 3, and 4, defendant had suffered a prior strike (§ 667, subds. (b)-(i)), had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and had been out on bail when the crimes occurred (§ 12022.1). On July 27, 2021, defendant pled no contest to counts 3 and 4 in exchange for the dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 and a midterm prison sentence of three years eight months. Following a consultation with the victim and in order to allow defendant to care for his parents, on October 25, 2021, the People and defendant entered into a new deal that included a stayed, upper principal term of four years eight months, and a grant of five years’ felony probation. The deal specified the stay would be lifted if defendant violated his probation in any way. Defendant violated his probation in December 2021 by possessing methamphetamine, and on January 31, 2022, the trial court lifted the stay on the defendant’s four-year eight-month prison sentence. Defendant timely appealed.