Filed 5/13/22 P.v. Dahlem 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C094655
Plaintiff and Respondent, (Super. Ct. No. 19F1929)
v.
JACOB MICHAEL DAHLEM,
Defendant and Appellant.
Defendant Jacob Michael Dahlem appeals the trial court’s judgment denying his
request for probation and sentencing him to an aggregate prison term of six years. He
asserts and the People agree that: (1) the trial court erred in determining he was
presumptively ineligible for probation; and (2) he is entitled to remand for a full
resentencing in light of recent amendments to Penal Code1 section 1170. For the reasons
explained herein, we concur that defendant is entitled to remand for a new probation
1 Undesignated section references are to the Penal Code.
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determination and full resentencing under amended section 1170. Accordingly, we will
vacate defendant’s sentence and remand for further proceedings consistent with this
opinion.
BACKGROUND
Defendant was charged with causing bodily injury while driving under the
influence of alcohol (count 1) and causing injury while driving with a blood-alcohol
content of 0.08 percent or more (count 2). It was alleged as enhancements to both counts
that defendant caused great bodily injury and bodily injury to more than one victim.
Defendant pled no contest to both counts and admitted the associated
enhancements. The stipulated factual basis for his plea was the preliminary hearing
transcript. This transcript reflected that defendant was driving under the influence of
alcohol when he took an off-ramp too fast and collided with a truck, causing the ejection
of the driver, who died. Defendant’s passenger was also injured in the crash.
Defendant’s preliminary alcohol screening tests from the scene came back at 0.091 and
0.097 percent, while his evidentiary preliminary alcohol screening tests later administered
at the patrol office came back at 0.08 and 0.10 percent.
Thereafter at the August 17, 2021, sentencing hearing, the court gathered evidence
from the parties, noted its review of various materials (including the probation sentencing
report), and listened to argument of counsel. The trial court then determined defendant
was presumptively ineligible for probation because he had used a deadly weapon and the
crime involved great bodily injury given that the victim died. Further, there were no facts
justifying a grant of probation under the circumstances.
The court then sentenced defendant to an aggregate prison term of six years
comprised of the midterm of two years for count 1, plus three years for the great bodily
injury enhancement, plus one year for the multiple victim enhancement, and the upper
term of three years stayed under section 654 for count 2. The trial court also imposed a
$300 restitution fine, a $300 suspended parole revocation restitution fine, a $40 court
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operations assessment, and a $30 criminal conviction assessment.2 All remaining fines
and fees were permanently stayed, and defendant was ordered to pay $1,396.14 in victim
restitution to the California Victim Compensation Board. Defendant timely appealed and
did not request a certificate of probable cause.
DISCUSSION
I
Eligibility For Probation
Consistent with the probation department’s presentencing recommendation, the
trial court determined defendant was presumptively ineligible for probation because the
crime involved great bodily injury given that the victim died. (§ 1203, subd. (e)(3).)
Defendant asserts, and the People agree, that the trial court erred in finding defendant
presumptively ineligible for probation because there was no evidence that he acted
willfully. We concur.
Section 1203, subdivision (e)(3) provides in pertinent part, “Except in unusual
cases in which the interests of justice would best be served if the person is granted
probation, probation shall not be granted to any of the following persons: [¶] . . . [¶]
(3) Any person who willfully inflicted great bodily injury or torture in the perpetration of
the crime of which that person has been convicted.” This has been interpreted to require
that a defendant “inten[d] to cause great bodily injury or torture, not merely that the crime
resulted in great bodily injury or torture.” (People v. Lewis (2004) 120 Cal.App.4th 837,
853; id. at p. 902 [“The inclusion of the word ‘willfully’ in section 1203,
2 It was error for the court to assess the $30 and $40 fees as only to one count and
not the count stayed under section 654. (See People v. Sencion (2012) 211 Cal.App.4th
480, 484 [“the trial court was required to orally impose a $40 court security fee and a $30
court facilities assessment as to each of the four counts of which defendant was
convicted, including the stayed counts”].) We will direct the court to correct this error on
remand absent some valid reason articulated in the record on remand as to why the court
is declining to do so.
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subdivision (e)(3), suggests that the Legislature meant the section to be applicable not
merely when great bodily injury is the result of a crime but, rather, when the defendant
intended to cause great bodily injury”].) Here, there is no suggestion that defendant
willfully hit the truck, causing the victim’s death. Rather, defendant had no prior record
and accidentally collided with the victim’s truck when taking an exit at a high rate of
speed and while driving under the influence of alcohol.
Moreover, while the briefing on appeal fails to acknowledge the court’s alternative
finding for defendant’s ineligibility for probation, to wit, that he had used a deadly
weapon, this finding suffers from a similar problem. Section 1203, subdivision (e)(2)
states a defendant is ineligible for probation if he “used, or attempted to use, a deadly
weapon upon a human being in connection with the perpetration of the crime of which
that person has been convicted.” However, neither defendant’s admission to driving
under the influence of alcohol causing injury, nor driving with a blood-alcohol content of
0.08 percent or over establishes that he “used” his vehicle as a deadly weapon upon the
victim. (See, e.g., People v. Nuno (2018) 26 Cal.App.5th 43, 51-52 [where jury acquitted
defendant of assault with a deadly weapon, but found him guilty of felony hit-and-run, it
necessarily determined defendant acted accidentally or not willfully, thus, precluding a
determination that he used a deadly weapon for purposes of § 1203, subd. (e)(2)]; c.f.
People v. Perez (2018) 4 Cal.5th 1055, 1066-1068 [recognizing a truck could be used as a
“deadly weapon” for Prop. 36 eligibility purposes under § 1170.12, subd. (c)(2)(C)(iii)
depending on how it is used].) Rather, defendant lost control and accidentally hit the
victim’s truck, killing him.
We therefore accept the parties’ concession, requiring reversal and remand for the
trial court to make a new determination regarding defendant’s request for probation.
(People v. Lewis, supra, 120 Cal.App.4th at p. 854; People v. Ruiz (1975) 14 Cal.3d 163,
168 [“when . . . the sentencing court bases its determination to deny probation in
significant part upon an erroneous impression of the defendant’s legal status,
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fundamental fairness requires that the defendant be afforded a new hearing and ‘an
informed, intelligent and just decision’ on the basis of the facts”].)
II
The Amendments To Section 1170
Defendant asserts and the People concur that he is entitled to remand for a full
resentencing in light of changes to section 1170, citing Assembly Bill No. 124. The
Governor signed Assembly Bill No. 124 (2021-2022 Reg. Sess.) and Senate Bill No. 567
(2021-2022 Reg. Sess.) on October 8, 2021. These bills became effective January 1,
2022 (Cal. Const., art. IV, § 8, subd. (c)) and make changes affecting the trial court’s
sentencing discretion in selecting one of the triad terms under section 1170,
subdivision (b). (Stats. 2021, ch. 695, § 5.3 [Assembly Bill No. 124]; Stats. 2021,
ch. 731, § 1.3 [Senate Bill No. 567].) However, because Senate Bill No. 567 was the last
bill signed by the Governor and bears the higher chapter number, its amendments to
section 1170 prevail over those specified in Assembly Bill No. 124. (Gov. Code,
§§ 9510, 9605, subd. (b); In re Thierry S. (1977) 19 Cal.3d 727, 738-739.)
Among other things, Senate Bill No. 567 (2021-2022 Reg. Sess.) provides that
“unless 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, as defendant asserts may be
pertinent here, the trial court finds an offender’s childhood trauma or youth were
contributing factors in the offense. (§ 1170, subd. (b)(6), added by Stats. 2021, ch. 731,
§ 1.3.) The term “youth” in section 1170, subdivision (b)(6)(B) is found in
section 1016.7, subdivision (b). Section 1016.7 was added by Assembly Bill No. 124
(2021-2022 Reg. Sess.), and provides “[a] ‘youth’ for purposes of this section includes
any person under 26 years of age on the date the offense was committed.” (Stats. 2021,
ch. 695.)
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Here, the parties have agreed that defendant, who was 22 years old at the time the
offense was committed, is entitled to resentencing in light of the changes to section 1170.
We accept the parties’ concession and conclude defendant is entitled to remand and a full
resentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
DISPOSITION
The sentence is vacated, and the matter remanded with directions for the court to
conduct a full resentencing hearing consistent with the changes brought about by Senate
Bill No. 567 and Assembly Bill No. 124 and any other ameliorative changes to the
sentencing laws that might affect defendant. This shall include a new determination of
defendant’s eligibility for probation. The court shall prepare an amended abstract of
judgment and forward a certified copy of that document to the California Department of
Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/
Robie J.
We concur:
/s/
Blease, Acting P. J.
/s/
Duarte, J.
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