People v. Rotta CA3

Filed 11/15/23 P. v. Rotta CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C097330

Plaintiff and Respondent, (Super. Ct. No. CRF190005003) v.

MICHAEL JAMES ROTTA,

Defendant and Appellant.

Defendant Michael James Rotta appeals from his sentencing hearing, at which the trial court executed his suspended upper term prison sentence. Defendant contends legislation enacted after the imposition of sentence but prior to its execution invalidates his sentence and requires that he be resentenced. He adds that the court erroneously relied on the prosecutor’s assertions that he had previously agreed to the upper term sentence. We conclude the court was required to apply the new legislation when it

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executed defendant’s sentence, and we cannot deem the error harmless on this record. Accordingly, we will vacate defendant’s sentence and remand for a full resentencing. FACTUAL AND PROCEDURAL HISTORY On March 5, 2020, defendant pleaded no contest to assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4))1 pursuant to a negotiated plea agreement. The prosecution agreed to a probationary sentence and to dismiss the remaining charges and the allegation that defendant had previously committed a serious felony. (§ 1170.12.) On April 29, 2020, the trial court suspended imposition of sentence and granted probation in accordance with the plea agreement. On July 23, 2020, defendant admitted violating the terms of probation by possessing methamphetamine. The trial court ordered defendant to serve 30 days in jail and reinstated probation. On April 21, 2021, defendant again admitted violating the terms of probation by possessing methamphetamine. On June 10, 2021, the court imposed an upper term sentence of four years in state prison, but suspended execution of the sentence and reinstated probation. The record does not reflect any stipulation or other agreement to the upper term sentence by defendant. The Legislature then amended section 1170, effective January 1, 2022. (See Stats. 2021, ch. 731, § 1.3.) Among other things, the amended section 1170, subdivision (b) prohibits trial courts from considering aggravating circumstances when selecting an upper term sentence unless the facts underlying each aggravating circumstance have been established by one of three prescribed methods. (§ 1170, subd. (b)(2)-(3).) On August 1, 2022, defendant again admitted violating the terms of probation, by failing to submit monthly reports.