Filed 3/30/22 P. v. Dean 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Modoc)
----
THE PEOPLE, C093782
Plaintiff and Respondent, (Super. Ct. No. F20197)
v.
STEPHEN WEST DEAN III,
Defendant and Appellant.
In light of recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 731, § 1.3) (Senate Bill 567), effective January 1, 2022, defendant Stephen
West Dean III appeals the upper-term sentence imposed following his plea of guilty to
battery with serious bodily injury. Defendant contends Senate Bill 567 necessitates a
remand for resentencing in light of the recent statutory changes limiting the trial court’s
discretion to impose the upper term. The People agree. We remand for resentencing.
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I. BACKGROUND
Defendant entered an open plea to battery with serious bodily injury (Pen. Code, §
243, subd. (d)) following a fight with another inmate while housed at Modoc County Jail
when he was 24 years old.1
The probation report recommended the court impose an upper-term sentence of
four years, based on a number of aggravating factors, including: (1) the crime involved
great violence resulting in great bodily injury; (2) the crime required planning,
sophistication, and professionalism; (3) the crime indicated that defendant was a danger
to society; and (4) defendant’s criminal history indicates increasing seriousness. The
probation officer concluded that there were no facts limiting the defendant’s culpability
nor were there any circumstances in mitigation. The trial court considered defendant’s
“good demeanor” and “good decorum” throughout the proceedings as a mitigating factor.
Nonetheless, the court stated, “there’s no question in my mind, in reviewing this
[probation] report, that the aggravating circumstances far outweigh” those in mitigation
and therefore the upper term was appropriate.
The trial court sentenced defendant to the four-year upper term.2 Defendant
timely appealed on February 12, 2021.
II. DISCUSSION
Prior to Senate Bill 567, the Penal Code provided that, “the choice of the
appropriate term shall rest within the sound discretion of the court. . . . In determining
the appropriate term, the court may consider the record in the case, the probation officer’s
report, other reports, including reports received pursuant to section 1203.03, and
1 Undesignated statutory references are to the Penal Code.
2 It appears the trial court initially misspoke and pronounced that defendant be sentenced
to the upper term of 94 years. The entirety of the record makes clear defendant was
sentenced to four years.
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statements in aggravation or mitigation submitted by the prosecution, the defendant, or
the victim, or the family of the victim if the victim is deceased, and any further evidence
introduced at the sentencing hearing.” (§ 1170, former subd. (b).)
Senate Bill 567 amended sections 1170 and 1170.1 to limit the trial court’s
discretion to impose the greater term. Specifically, it limited the trial court’s ability to
impose a sentence greater than the mid-term unless the aggravating factors justify doing
so and the facts underlying the circumstances have been stipulated to by the defendant or
found true beyond a reasonable doubt. (§ 1170, subd. (b)(1) & (2), as amended by Stats.
2020, ch. 29, § 15.)
Additionally, as relevant to defendant’s appeal, section 1170, subdivision (b)(6)
provides: “[U]nless the court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if any of the
following was a contributing factor in the commission of the offense: [¶] . . . [¶] (B) The
person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at
the time of the commission of the offense.” (See § 1016.7, subd. (b) [“A ‘youth’ for
purposes of this section includes any person under 26 years of age on the date the offense
was committed”].)
“The People correctly concede the amended version of section 1170, subdivision
(b) that became effective on January 1, 2022, applies retroactively in this case as an
ameliorative change in the law applicable to all nonfinal convictions on appeal.” (People
v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Generally, statutes are presumed to operate prospectively. (People v. Brown
(2012) 54 Cal.4th 314, 323.) In re Estrada (1965) 63 Cal.2d 740 (Estrada) established
an exception and governs retroactive application for ameliorative changes in the law.
Under Estrada, “[n]ewly enacted legislation lessening criminal punishment or reducing
criminal liability presumptively applies to all cases not yet final on appeal at the time of
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the legislation’s effective date. [Citation.] This presumption ‘rests on an inference that,
in the absence of contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as possible, distinguishing
only as necessary between sentences that are final and sentences that are not.’ ” (People
v. Gentile (2020) 10 Cal.5th 830, 852.) Statutes can apply retroactively to plea
agreements through Estrada even when the contested legislation lacks discussion of pleas
specifically. (People v. Stamps (2020) 9 Cal.5th 685, 698-699.) We review the
application of retroactivity de novo. (People v. Andahl (2021) 62 Cal.App.5th 203, 213,
review granted June 16, 2021, S268336.)
Senate Bill 567 is ameliorative as it limits the trial court’s ability to impose a
sentence beyond the middle term. The bill lacks language indicating a savings clause or
some other signal that it should only apply prospectively. The legislative history
similarly lacks an intention for the bill to only apply prospectively. As all of the relevant
considerations have been met, we agree with the parties that Estrada applies to
defendant’s nonfinal appeal.
The People also concede that because the trial court imposed the four-year upper
term even though defendant had not stipulated to the facts supporting the circumstances
in aggravation and those facts had not been found true beyond a reasonable doubt, we
must remand for the trial court to resentence defendant consistent with the changes made
to section 1170, subdivision (b). We accept the People’s concession and will remand for
resentencing.
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III. DISPOSITION
We remand the matter for resentencing under Penal Code section 1170, as
amended by Senate Bill 567 and related legislation. In all other aspects, the judgment is
affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
EARL, J.
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