People v. Bess CA6

Filed 3/8/23 P. v. Bess CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048744 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. B2000478 & C1919395) v.

RICHARD LEE BESS,

Defendant and Appellant.

Defendant Richard Lee Bess was sentenced to 11 years 8 months in prison after he pleaded no contest to, among other things, multiple counts of robbery and identity theft related to crimes that occurred in 2019. Defendant contends on appeal that he is entitled to resentencing under recent amendments to Penal Code section 1170, subdivision (b). We will remand for resentencing. I. TRIAL COURT PROCEEDINGS Defendant’s negotiated disposition resolved two cases (whose underlying facts are not directly relevant to the issue raised on appeal). In case No. C1919395, defendant was charged with five counts of second degree robbery (Pen. Code, § 212.5, subd. (c), counts A1, A4, A7, A8 & A10; unspecified statutory references are to the Penal Code); two counts of second degree burglary (§ 460, subd. (b), counts A2 & A5); four counts of using personal identifying information without authorization (§ 530.5, subd. (a), counts A3, A6, A9 & A11); and misdemeanor counts of possessing personal identifying information with intent to defraud (§ 530.5, subd. (c)(1), count A12); driving with a

suspended license (Veh. Code § 14601.2, subd. (a), count A13); and misuse of a disabled person placard (Veh. Code § 4461, subd. (c), count A14). The complaint alleged defendant personally used a firearm in counts A1 and A4 (§ 12022.53, subd. (b)) and personally used a deadly or dangerous weapon in count A10 (§ 12022, subd. (b)(1)). The complaint also alleged defendant was on bail when he committed counts A1 through A7 (§ 12022.1, subd. (b)). In case No. B2000478, defendant was charged with second degree burglary (§ 460, subd. (b), count B1); using personal identifying information without authorization (§ 530.5, subd. (a), count B2); and using an altered, stolen, or counterfeit access card to commit grand theft (§ 484g, subd. (a), count B3). In that case also, the complaint alleged that defendant was on bail when he committed the charged offenses (§ 12022.1, subd. (b)). Defendant pleaded no contest as to all counts and admitted the on bail enhancement in exchange for a sentence not to exceed 12 years. The trial court sentenced defendant to 11 years 8 months on the felony convictions (with sentences on the misdemeanors deemed served). The sentence included “the upper term of five years” on count A1 and “a concurrent upper term of three years” on each of counts A3, A6, A9, B2, and B3. The remaining enhancements in case No. C1919395 were dismissed on the prosecution’s motion. II. DISCUSSION Defendant argues the judgment must be reversed and the matter remanded for resentencing so that he can receive the benefit of recent amendments to section 1170. The Attorney General agrees defendant is entitled to the benefit of those amendments under the reasoning of In re Estrada (1965) 63 Cal.2d 740, but argues reversal is not required because any error was harmless. When defendant was sentenced in 2020, trial courts had broad discretion under section 1170, subdivision (b) to select the “appropriate term” for offenses having a 2