People v. Lynch CA3

Filed 1/9/24 P. v. Lynch CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097434

Plaintiff and Respondent, (Super. Ct. Nos. 19CF01700, 20CF03151 ) v.

PERRY MICHAEL LYNCH,

Defendant and Appellant.

In 2022, defendant Perry Michael Lynch pleaded no contest to selling or transporting a controlled substance in exchange for a stipulated upper-term sentence of five years. The trial court sentenced defendant in conformance with the agreement and added consecutive sentences for other convictions in a separate case. On appeal, defendant argues this case must be remanded for resentencing because the trial court imposed the upper-term sentence without making the factual findings of aggravating factors required by Penal Code1 section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.). (Stats. 2021, ch. 731, § 1.3.) The People respond defendant’s case must be dismissed because he did not obtain a certificate of probable cause before appealing. We agree with the People and will dismiss the case accordingly.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND In case No. 19CF01700, the prosecution charged defendant with three counts of robbery (§ 211) and alleged a deadly weapon was used (§ 12022, subd. (b)(1)) as to each count. Defendant pleaded guilty to two of the counts in exchange for the dismissal of the balance of the charges. The court suspended imposition of sentence and placed defendant on a three-year probation term. In case No. 20CF03151, the prosecution charged defendant with transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), possession of a controlled substance for sale (id., § 11351), misdemeanor possession of a controlled substance (id., § 11377, subd. (a)), and misdemeanor possession of drug paraphernalia (id., § 11364, subd. (a)). The prosecution also alleged defendant had a prior strike felony. (§§ 667, subd. (d), 1170.12, subd. (b).) On July 8, 2022, defendant pleaded no contest to the transportation of a controlled substance count for a stipulated upper-term sentence of five years and dismissal of the remaining charges. The parties agreed they would be permitted to argue sentencing in case No. 19CF01700. At the October 27, 2022, sentencing hearing, the trial court confirmed with defense counsel that the agreed-upon term for case No. 20CF03151 was the “5-year upper-term sentence.” The court asked defense counsel, “And do you stipulate to me imposing that sentence in that case?” Defense counsel responded, “Yes.” The parties then argued sentencing in case No. 19CF01700. The trial court terminated probation. The court then imposed the upper term, five-year sentence in case No. 20CF03151 and added two consecutive one-year terms (one-third the midterm sentence) for the convictions in case No. 19CF01700. Defendant filed a notice of appeal without a certificate of probable cause. DISCUSSION Defendant argues the trial court could not impose the upper-term sentence because section 1170, subdivision (b), as amended by Senate Bill No. 567, forbade it from