People v. Gage CA3

Filed 5/16/23 P. v. Gage CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C096533

Plaintiff and Respondent, (Super. Ct. No. P21CRF0100)

v.

JESSE SHANE GAGE,

Defendant and Appellant.

A jury found defendant Jesse Shane Gage guilty of one count of burglary, two counts of assault, and one count of dissuading a witness. Relying on seven aggravating factors, the trial court sentenced defendant to the upper term for the burglary. The court further sentenced defendant to a consecutive middle term for dissuading a witness and stayed low term sentences for the assault counts. Defendant argues we must remand for resentencing because the trial court relied on multiple improper aggravating factors in imposing the upper term for the burglary conviction. The People concede. We accept that concession and remand for resentencing.

1

FACTUAL AND PROCEDURAL BACKGROUND On February 23, 2021, defendant entered the home of a former friend, J.S., without permission and hit J.S. and J.S.’s mother with a wrench. Defendant was charged with burglary and two counts of assault. While J.S. was testifying at the preliminary examination on those charges, defendant verbally threatened J.S.; as a result, the prosecution also charged defendant with dissuading a witness from testifying. At trial, the prosecution argued the specific intent element of the burglary charge was satisfied by defendant’s use of the wrench. A jury found defendant guilty of burglary of an inhabited dwelling (Pen. Code, § 459; further statutory references are to the Penal Code), assault of two individuals with a deadly weapon (§ 245, subd. (a)(1)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). In a bifurcated proceeding, the trial court found seven aggravating factors true beyond a reasonable doubt, including the following four: (1) defendant used a weapon at the time of commission of the crime (Cal. Rules of Court, rule 4.421(a)(2); further rule references are to the California Rules of Court); (2) defendant’s prior convictions are of increasing seriousness (rule 4.421(b)(2)); (3) defendant served a prior prison term (rule 4.421(b)(3)); and (4) defendant was on parole when the crimes were committed (rule 4.421(b)(4)). The People argued three other aggravating factors also applied. First, they argued defendant’s conviction for dissuading a witness met the standard for interference with a judicial process under rule 4.421(a)(6) (the interference factor). Second, they cited defendant’s prior convictions with concurrent sentences and argued that those convictions met the factor under rule 4.421(a)(7) for convictions of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed (the concurrent sentence factor). And third, relying on defendant’s assault with a wrench, they argued defendant engaged in violent conduct under rule 4.421(b)(1) (the violent conduct factor). The trial court found these three other factors true.