People v. Challe CA3

Filed 11/2/22 P. v. Challe CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C095700

v. (Super. Ct. Nos. 21F3310, 19F7033, 21F4392) SAVANNAH KAY CHALLE,

Defendant and Appellant.

Defendant Savannah Kay Challe, who was 23 years old at the time of sentencing, contends that in sentencing her to the upper term of three years for the illegal use of tear gas, the trial court failed to comply with Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567). Senate Bill 567 amended Penal Code section 1170, subdivision (b).1 Defendant contends the trial court did not consider whether her youth was a contributing factor in her crimes, as required by section 1170, subdivision (b)(6). She also claims section 1170,

1 Undesignated statutory references are to the Penal Code.

1

subdivision (b)(2) and (3) require a sentencing court to impose the middle term unless facts supporting aggravating circumstances have been stipulated to by the defendant, found true beyond a reasonable doubt by a trier of fact, or established by a certified record of conviction. We will vacate the sentence and remand for resentencing. In all other respects, we will affirm the judgment. BACKGROUND On July 7, 2021, defendant entered into a plea agreement in which she pleaded no contest to felony charges of vandalism (§ 594, subd. (b)(1)) and burglary (§ 459). She also admitted a violation of probation that had been granted after defendant was found guilty of illegal use of tear gas (§ 22810, subd. (g)(1)). Defendant also pleaded no contest to a number of misdemeanors. The trial court explained that defendant was agreeing to a four-year four-month lid, and she would be referred to both the Behavioral Health Court and the Addicted Offender Program to see if she qualified. If she was not accepted or she failed those programs, she would return to the trial court for sentencing, at which time the four-year four-month lid would be considered. Both programs considered defendant and rejected her. On January 13, 2022, defendant appeared for sentencing. The trial court imposed a four-year four-month sentence consisting of the following: the upper term of three years for illegal use of tear gas (§ 22810, subd. (g)), eight months (one-third the middle term) consecutive for vandalism (§ 594), and eight months (one-third the middle term) consecutive for burglary (§ 459). The trial court specified that defendant would serve three years in the county jail and be on supervised probation for one year four months. Prior to the imposition of sentence, the trial court discussed its tentative decision, explaining that it would find as aggravating circumstances defendant’s numerous and increasingly serious convictions, especially in recent years. It would also find that she