People v. Patzke CA3

Filed 11/22/22 P. v. Patzke CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, C095166

Plaintiff and Respondent, (Super. Ct. No. CR038496)

v.

JAMES ALLEN PATZKE,

Defendant and Appellant.

A jury found defendant James Allen Patzke guilty of assault on a peace officer, fleeing a pursuing peace officer’s motor vehicle and driving against traffic, and driving a vehicle without the owner’s consent. The trial court sentenced defendant to an aggregate term of six years four months in state prison, consisting of the upper term of five years for the assault count and one-third of the middle term for each of the remaining counts.

1

On appeal, defendant contends the recent amendments to Penal Code section 1170, subdivision (b)1 made by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), apply retroactively to his case, and remand is required for the trial court to impose sentence consistent with the changes. (Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.) The Attorney General agrees that remand for resentencing is required, as do we. We shall remand for resentencing in accordance with the current law and otherwise affirm the judgment. BACKGROUND The facts underlying defendant’s offense are immaterial to our disposition. It suffices to say defendant fled police pursuit by driving a stolen vehicle at high speeds and in an otherwise dangerous manner. During the pursuit, defendant almost collided with one of the police cars. The pursuit ended when defendant crashed the vehicle. A jury found defendant guilty of assault on a peace officer (§ 245, subd. (c)), fleeing a pursuing peace officer’s motor vehicle and driving against traffic (Veh. Code, § 2800.4), and driving a vehicle without consent (Veh. Code, § 10851). At sentencing, the trial court noted (as documented in the probation report) that defendant had multiple adult criminal convictions and four documented probation violations, and had served a prior prison term. When the instant offense was committed, defendant was on parole with a pending violation. The court found defendant’s crime “involve[d] a threat of bodily harm” and observed defendant “didn’t seem to show any remorse for” stealing the vehicle and ultimately crashed it during the pursuit. The court found no mitigating circumstances and selected the upper term of five years for assault on