People v. Esparza CA3

Filed 7/31/23 P. v. Esparza CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Colusa) ----

THE PEOPLE, C097359

Plaintiff and Respondent, (Super. Ct. No. CR64283)

v.

MARIO LEE ESPARZA,

Defendant and Appellant.

In September 2022, defendant Mario Lee Esparza pleaded no contest to one count of unlawfully driving or taking a vehicle. One month later, the trial court sentenced defendant to the upper term sentence of three years. On appeal, defendant argues this case must be remanded for resentencing because of changes made to Penal Code section 1170, subdivision (b) by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567), which became effective on January 1, 2022. We conclude defendant forfeited his claim and will affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND The prosecution charged defendant with unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)),1 and unlawful use of personal identifying information (§ 530.5, subd. (c)(1)). In a September 12, 2022, change of plea hearing, defendant pleaded no contest to the unlawful driving or taking a vehicle count and the prosecution dismissed the other counts. Before the sentencing hearing, the trial court reviewed the probation report, which detailed defendant’s criminal history, including two felonies and prior prison terms. At the October 10, 2022, sentencing hearing, defense counsel asked the trial court not to impose an upper term sentence, noting the mitigating circumstances. First, defendant had resolved the case at an early stage. Second, defendant was 26 years old at the time of the crime and should be considered a “youth offender. . . under the new statute.” Counsel acknowledged defendant’s criminal history but argued the current crime was not as serious as defendant’s previous crimes. The court imposed the upper term sentence of three years, explaining, “The Court chooses the aggravated term because the defendant has a significant and increasingly serious prior record. The present offense does not represent a single period of abhorrent behavior.” Defendant filed a timely notice of appeal. DISCUSSION Defendant argues the case should be remanded for resentencing because of Senate Bill 567, which limits the circumstances under which a trial court may impose the upper term. (§ 1170, subd. (b).) Senate Bill 567, effective January 1, 2022, changed the requirements for considering aggravating factors in sentencing and altered trial courts’ sentencing discretion under section 1170. (Stats. 2021, ch. 731.) Among other things, Senate Bill