People v. Swarens CA3

Filed 1/4/23 P. v. Swarens CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C095495

Plaintiff and Respondent, (Super. Ct. No. 21CF04395)

v.

KEITH AARON SWARENS,

Defendant and Appellant.

Defendant Keith Aaron Swarens pleaded no contest to felony grand theft and misdemeanor disobeying a domestic relations court order. The trial court sentenced defendant to the upper term of three years in county jail on the felony.

1

On appeal, defendant contends only that he is entitled to resentencing due to recent amendments to Penal Code section 1170, subdivision (b),1 made by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022). The Attorney General agrees. We shall vacate defendant’s sentence and remand for resentencing. BACKGROUND The parties stipulated that the factual bases for defendant’s pleas in Butte County Superior Court case Nos. 21CF04395 (case No. 395), 21CM02773 (case No. 773), and 21CM01837 (case No. 837) could be taken from the probation report. In case No. 395, defendant and his ex-girlfriend, J.J., fought at her home. Defendant threatened J.J. and her son before leaving the residence with J.J.’s cell phone and car, which were taken without permission. When law enforcement arrived, J.J. reported defendant had violated a restraining order by contacting her. At his plea hearing, defendant resolved three cases and secured dismissal of the remaining counts in case No. 395 with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The People also moved to dismiss five additional pending cases. In case No. 395, defendant pleaded no contest to grand theft exceeding $950 (§ 487, subd. (c)) and misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a)). In case Nos. 773 and 837, defendant pleaded no contest to multiple misdemeanors. At the sentencing hearing held in November 2021, the probation report identified as aggravating factors that defendant was on probation at the time of the offense, his performance on probation was poor, and his crimes were increasing in frequency and severity. In addition, the trial court found defendant was a serious danger to society. Defendant did not stipulate to any factors in aggravation. There were no certified records of defendant’s prior convictions introduced during the sentencing hearing or attached to