People v. Romero CA3

Filed 2/23/23 P. v. Romero CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096695

Plaintiff and Respondent, (Super. Ct. No. 21CF04027)

v.

CODY DAVID ROMERO,

Defendant and Appellant.

Defendant Cody David Romero pleaded no contest to kidnapping and admitted a firearm enhancement. The trial court sentenced him to an aggregate term of nine years in state prison, consisting of the upper term of eight years for kidnapping, plus one year for the firearm enhancement. On appeal, defendant argues that in the absence of a stipulation, a true finding by a jury, or a certified record of conviction, the trial court prejudicially erred in imposing the

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upper term for kidnapping based on the recitation of his criminal history contained in the probation report. The Attorney General agrees that remand for resentencing is required, as do we. We shall remand for resentencing and otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The facts underlying defendant’s offenses are irrelevant to our disposition. It suffices to say that defendant pleaded no contest to one count of kidnapping (Pen. Code, § 207, subd. (a))1 and admitted a firearm enhancement (§ 12022, subd. (a)(1)). The probation report included a summary of defendant’s criminal record, which was “derived from official records of the Department of Justice and/or the Federal Bureau of Investigation (FBI) through the California Law Enforcement Telecommunications System (CLETS) and supplemented, where applicable through the records of the Butte County Superior Court.” At sentencing, the trial court acknowledged section 1170 limited its authority to impose a sentence exceeding the middle term except when the aggravating factors justifying the upper term were stipulated to by a defendant or found true beyond a reasonable doubt by a jury or a judge. It further noted defendant “did not stipulate to the existence of aggravating factors, nor did a jury find[] aggravating factors to be true.” However, the court considered defendant’s “prior convictions are numerous and of increasing seriousness” as an aggravating factor, and concluded this factor outweighed other mitigating circumstances including defendant’s childhood trauma. Accordingly, the court selected the upper term of eight years for kidnapping. Defendant timely appealed.