People v. Knight CA3

Filed 5/11/23 P. v. Knight CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096334

Plaintiff and Respondent, (Super. Ct. No. 21CF01479)

v.

KEEGAN SHEA KNIGHT,

Defendant and Appellant.

Defendant Keegan Shea Knight argues the trial court erroneously imposed the upper term on his conviction for possession of a controlled substance for sale. Determining that defendant has forfeited this contention, we affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND In March 2021, defendant was charged with felony possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 1) and misdemeanor unlawful possession of a controlled substance (id., § 11350, subd. (a); count 2). In February 2022, defendant pleaded no contest to count 1. The remaining allegations were dismissed with a Harvey waiver.1 During the plea, defendant stipulated, through his counsel, that the court could take the factual basis for the plea from the probation report. In the probation report, defendant stated that he had “been in trouble with the law throughout [his] life,” including vandalism, possession of firearms, assault, possession of drugs, and theft. He also noted he had been sent to prison in 2018 for a six-year term for possession for sale, although he had been released in two years. The report further noted defendant had told a police officer at the time of the instant crimes that he was on postrelease community supervision (PRCS). In addition, the report included a “Criminal Record Summary” listing defendant’s multiple convictions and prison sentences and release on PRCS in 2020. The report noted that the probation department had derived defendant’s prior criminal record from the official records of the Department of Justice, the Federal Bureau of Investigation, the California Law Enforcement Telecommunications System, and the records of Butte County Superior Court. During the May 2022 sentencing hearing, the court indicated it intended to impose the upper term of three years in the instant case, plus eight months in Mendocino County Superior Court case No. 21CR00472 (case No. 472) involving a conviction under Health and Safety Code section 11378. Defense counsel responded that the midterm of two years was the appropriate term. He noted that defendant had prior convictions from