People v. Rice CA3

Filed 6/6/23 P. v. Rice CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096000

Plaintiff and Respondent, (Super. Ct. Nos. 20CF05483, 21CF03525) v.

JASON TALBOT RICE,

Defendant and Appellant.

Defendant Jason Talbot Rice pleaded guilty to injuring a cohabitant and, after failing to appear for sentencing, he was charged in a second case with, and pleaded guilty to, failing to appear. At sentencing for both cases on March 24, 2022, the trial court imposed the upper term for the injuring a cohabitant conviction because it found the aggravating circumstances outweighed any mitigating circumstances. On appeal, defendant contends the trial court imposed the upper term in violation of Penal Code section 1170 (statutory section citations that follow are found in the Penal Code unless

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otherwise stated), which, at the time of sentencing, had been modified by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1) (Senate Bill 567). Defendant contends he suffered ineffective assistance of counsel if we find this issue forfeited. We find defendant did forfeit this issue and conclude he did not establish his ineffective assistance of counsel claim.

FACTS AND HISTORY OF THE PROCEEDINGS Defendant was charged with injuring a cohabitant (§ 273.5, subd. (a)) and false imprisonment by violence (§ 236). He pleaded guilty to injuring a cohabitant with a maximum sentence of four years in exchange for dismissal of the other count. Defendant stipulated to the probation report for the factual basis of the plea. The probation report, relying on a police report, stated defendant shoved the victim into a bathroom closest, slapped her in the face multiple times “really hard,” stopped her from leaving their home, and when the victim broke free, he grabbed her arm and threw her to the ground. Officers saw the victim rub her jaw, had red marks on her chest, and scratches on her neck. A witness also told police they heard defendant threaten to kill the victim. Defendant told police he “ ‘thought it was legal’ ” to hit the victim “with an open hand ‘when she deserved it.’ ” Defendant failed to appear for his June 24, 2021, sentencing hearing and was charged in a second case with failing to appear on his own recognizance (§ 1320, subd. (b)), with the enhancement he was on bail (§ 12022.1). Defendant pleaded guilty to failing to appear and the enhancement was dismissed. He again stipulated to the probation report as the factual basis for the plea. The supplemental probation report prepared for the second sentencing hearing covering both cases provided defendant’s criminal history and detailed the “official sources believed to be accurate and sufficient to provide the Court a certified record of conviction for use at sentencing.” This history included misdemeanor convictions in