People v. Roser CA3

Filed 9/21/23 P. v. Roser CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097800

Plaintiff and Respondent, (Super. Ct. No. P14CRF0393)

v.

ROBERT ANTHONY ROSER,

Defendant and Appellant.

In 2016, the trial court sentenced defendant Robert Anthony Roser to seven years six months in state prison, suspended the execution of the sentence, and placed defendant on five years’ formal probation. In November 2022, defendant admitted violating probation, and, in January 2023, the court imposed the previously suspended sentence. Defendant contends that the trial court erred in sentencing defendant without considering the amendments to Penal Code section 1170, subdivision (b) (statutory section citations that follow are found in the Penal Code unless otherwise stated) made by

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Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) (Stats. 2021, ch. 731, § 1.3)1 and to section 1385, subdivision (c) made by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721, § 1). In both instances, the amendments became effective on January 1, 2022. Defendant was sentenced more than a year later. While defense counsel argued at length for leniency at the sentencing hearing, he made no mention of these amendments or the factual basis for their application in this case. Accordingly, defendant forfeited these claims on appeal. The judgment is affirmed.

FACTS AND HISTORY OF THE PROCEEDINGS The factual details of defendant’s crimes are not relevant to this appeal. In sum, defendant was driving a pickup truck in June 2014 with a 12-year-old boy in the bed of the truck. Defendant had the boy sit in the truck bed because defendant could not find anything to tie down the contents. The truck sped up around a bend and the boy was thrown from the truck into a tree, sustaining very serious injuries including a fractured skull and brain injury. In September 2016, a jury found defendant guilty of child abuse and endangerment (§ 273a, subd. (a)) and found true the enhancement that in committing the offense defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant entered a no contest plea to the charge of driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)).