People v. Kamilchu CA3

Filed 3/15/24 P. v. Kamilchu CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C096908

Plaintiff and Respondent, (Super. Ct. No. 18FE001319)

v.

EDWARD KAMILCHU,

Defendant and Appellant.

Defendant Eduard Kamilchu was found guilty of arson and sentenced to the upper term of eight years. On defendant’s original appeal, we remanded for the trial court to resentence defendant under recently amended Penal Code1 section 1170. On remand, the trial court again imposed the upper term based on two aggravating factors related to defendant’s prior convictions. Defendant appeals again; now he contends the trial court’s

1 Undesignated section references are to the Penal Code.

1

sentence violated amended section 1170 because it relied on facts not found true by a jury beyond a reasonable doubt. We agree and vacate defendant’s sentence and remand for another resentencing hearing. FACTUAL AND PROCEDURAL BACKGROUND Defendant stayed at his ex-girlfriend’s house after she gave birth to their child even though she had a restraining order against him. When law enforcement officers attempted to arrest defendant, he barricaded himself upstairs and threw objects down the stairs at officers, including a lit cannister of kerosene that exploded and caught the house on fire. The jury found defendant guilty of arson. (People v. Kamilchu (Feb. 28, 2022, C092636) [nonpub. opn.].)2 At the original sentencing hearing the trial court found defendant violated his probation and imposed the upper term of eight years. Defendant appealed and we remanded for the trial court to “resentence defendant consistent with the changes effected by Senate Bill No. 567” (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567). (People v. Kamilchu, supra, C092636.) At the resentencing hearing the prosecutor introduced two exhibits. The first was a set of certified documents relating to defendant’s 2017 conviction for domestic violence in case No. 17MI000498. The second exhibit was a transcript of defendant’s testimony at his trial where he conceded to having a driving under the influence conviction in 2010, a prior misdemeanor restraining order violation, and a prior misdemeanor domestic violence conviction in 2017. The trial court then found based on “the certified copy, plus . . . [d]efendant’s admissions in court to those convictions, the [c]ourt would find that he suffered those convictions and that it demonstrates a record of increasing seriousness.” The court