People v. Sanford CA3

Filed 5/1/23 P. v. Sanford CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095503

Plaintiff and Respondent, (Super. Ct. Nos. 21CF04465, 21CF04671) v.

SAMUEL SANFORD,

Defendant and Appellant.

After the trial court found defendant Samuel Sanford guilty of attempted arson and resisting a peace officer, it imposed a sentence that included the three-year upper term on the attempted arson conviction. On appeal, defendant argues insufficient evidence supports his attempted arson conviction and the case must be remanded for resentencing because the trial court’s imposition of the upper term sentence does not satisfy the new requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which took effect while his appeal was pending and applies retroactively to his case. We

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conclude sufficient evidence supported defendant’s conviction, and Senate Bill 567 is an ameliorative statute that applies retroactively to defendant’s nonfinal case, but that any error in imposing the sentence was harmless. Thus, we affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS This appeal involves the joint sentencing in two cases. In case No. 21CF04465, defendant pleaded no contest to bringing methamphetamine into a jail facility. (Pen. Code, § 4573.5; statutory section citations that follow are found in the Penal Code unless otherwise stated.) Before defendant was sentenced, the prosecution charged him with attempted arson (§ 455, subd. (a)), resisting a peace officer (§ 148, subd. (a)(1)), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)) in case No. 21CF04671. The prosecution also alleged defendant committed the attempted arson while he was released on bail or his own recognizance. (§ 12022.1.) The prosecution later dismissed the count charging possession of drug paraphernalia. At trial, two witnesses testified for the prosecution. The first, a city park employee, testified she saw defendant in a park one morning. She saw defendant bent over a stump with an open flame. Defendant was holding the flame “towards the stump, like he was trying to light something on the stump on fire.” Defendant did the same thing a “couple of times.” She could not tell if defendant was using a lighter or just a lit match. The witness called police and continued to watch defendant. She was concerned defendant was going to start a fire on top of the stump, although she did not see if there was anything on top of the stump. Police Sergeant John Sanzone testified he responded to a report of a man trying to start a fire in a local park. When he arrived at the park, he saw defendant crouched near a tree stump in a field holding an open flame. The flame was less than an inch from the ground. Sergeant Sanzone noted there was dry vegetation in the area. There was currently an active forest fire burning in the area and there had been a recent arson