People v. Arthur CA3

Filed 10/28/22 P. v. Arthur CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C095313

Plaintiff and Respondent, (Super. Ct. No. 20FE003116)

v.

MICHAEL DWAINE ARTHUR,

Defendant and Appellant.

Defendant Michael Dwaine Arthur was sentenced to the middle term of two years for possession of methamphetamine for sale doubled to four years for a prior strike conviction. On appeal, defendant contends his sentence should be vacated and the case remanded for resentencing under the amendments to Penal Code1 section 1170, subdivision (b) by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). The People concede remand is appropriate.

1 Further undesignated section references are to the Penal Code.

1

We agree and therefore vacate defendant’s sentence and remand for resentencing. FACTUAL AND PROCEDURAL BACKGROUND At defendant’s trial, a police officer testified to finding methamphetamine and other drug paraphernalia in defendant’s car and home on February 14, 2020. The jury found defendant guilty of the sole charge of possession of methamphetamine for sale. Defendant waived a jury trial on his prior conviction and admitted one prior strike offense. The probation report listed defendant’s prior convictions and noted defendant has “a prosthetic right leg as a result of a[n] . . . infection he suffered while incarcerated in jail in 2015.” The report recommended the middle term based on two factors in aggravation—numerous adult convictions of increasing seriousness and defendant was on probation and parole when the crime was committed—and no factors in mitigation. On December 3, 2021, the trial court held the sentencing hearing. Defendant asked to be admitted to a drug treatment program, saying he had a drug problem and all of his crimes were linked to that, adding: “I have a prosthetic. I’m not doing any running.” The trial court agreed defendant’s criminal behavior “is all connected to [his] drug use.” The trial court also noted his criminal history included “seven prior trips to state prison, three convictions for drug trafficking, six separate misdemeanor cases, [and] two strike priors.” Relying on this criminal history, the trial court imposed the middle term of two years, doubled to four for the prior strike. DISCUSSION Defendant argues Senate Bill No. 567’s modifications to section 1170 require remand for resentencing because the loss of his leg is physical trauma that could have contributed to the offense, requiring the trial court to impose the lower term. The People agree remand is appropriate to allow the trial court to reconsider defendant’s sentence in light of the new standards under Senate Bill No. 567.