People v. Peterson CA3

Filed 12/23/22 P. v. Peterson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C095232

Plaintiff and Respondent, (Super. Ct. No. 62180428)

v.

ANDREW JON PETERSON,

Defendant and Appellant.

A jury found defendant Andrew Jon Peterson guilty of stalking. The trial court imposed the upper term of three years and suspended the sentence. Defendant contends that the trial court failed to comply with Penal Code1 section 1170, subdivision (b)(1) and (2), enacted by Senate Bill No. 567 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), effective January 1, 2022, which makes the middle term the presumptive term.

1 Undesignated statutory references are to the Penal Code.

1

However, shortly after the amendments to section 1170 became law, the trial court recalled the sentence under section 1172.1 (former § 1170.03)2 and sentenced defendant to the middle term of two years. Therefore, defendant’s appeal is moot and will be dismissed. FACTUAL AND PROCEDURAL BACKGROUND The factual details of defendant’s crime are not pertinent to this appeal. In sum, when the victim and defendant broke off their relationship, defendant began a campaign of harassing text messages, phone messages, and e-mails to the victim despite her repeated requests to stop. Defendant, a pilot, flew low over the victim’s house on multiple occasions. On October 26, 2021, a jury found defendant guilty of stalking. The trial court sentenced defendant to the upper term of three years, suspended the sentence, and placed defendant on three years’ probation. The trial court also issued a criminal protective order restraining defendant from harassing or having any contact with the victim for 10 years. (§ 646.9, subd. (k).) On November 18, 2021, defendant filed a notice of appeal. On January 7, 2022, the trial court issued an order recalling the sentence under section 1172.1, subdivision (a)(1). In the interim between defendant’s initial sentencing and the order recalling the sentence, the victim reported that defendant committed multiple violations of the criminal protective order. In a separate case, the prosecutor charged defendant with misdemeanor violations of the criminal protective order.