People v. Savala CA3

Filed 1/20/23 P. v. Savala CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Colusa) ----

THE PEOPLE, C096006

Plaintiff and Respondent, (Super. Ct. No. CR63277)

v.

PHILLIP CHARLES SAVALA,

Defendant and Appellant.

Defendant Phillip Charles Savala pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).1 The trial court sentenced him to the upper term of four years. On appeal, defendant challenges the upper-term sentence based on recent legislative enactments. We agree and will vacate the judgment and remand for resentencing.

1 Undesignated statutory references are to the Penal Code.

1

I. BACKGROUND The facts underlying defendant’s offense are immaterial to our disposition. It suffices to say that while running from a law enforcement officer, defendant broke into a family’s backyard and fought with one of the family members. During the fight, defendant drew a knife and threatened to stab two of the family members. Defendant was charged with two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), one count of making criminal threats (§ 422), and one count of misdemeanor criminal trespass (§ 602, subd. (m)). Defendant pled no contest to one count of assault with a deadly weapon and the remaining charges were dismissed on the People’s motion. A presentence probation report filed on January 4, 2022, delineated defendant’s criminal history as reflecting four prior felony convictions, at least two of which were serious or violent felonies, and that defendant was on probation at the time he committed this offense. The narrative portion of the probation report, states defendant had five prior felony convictions and that he was on parole at the time of the offense. The probation report recommended defendant be sentenced to the aggravated term. Approximately one month later, defendant filed a statement in mitigation claiming his mental state was compromised at the time of the offense due to alcohol and substance abuse issues. In the statement in mitigation, defendant acknowledged the probation report contained “a fair and accurate accounting of his criminal and social history” and did “not dispute his history of criminal activity and his failures, both on probation and his prior attempt at treatment.” At the February 7, 2022 sentencing hearing, relying on the probation report’s assertion that defendant’s had five prior felony convictions and was on parole at the time of the commission of the offense, the trial court sentenced defendant to the aggravated term of four years. The court also awarded presentence custody credits and imposed various fines and fees.