Filed 6/28/22 P. v. Brogdon 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NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C094200
Plaintiff and Respondent, (Super. Ct. No. 62174325)
v.
NICOLE MARIE BROGDON,
Defendant and Appellant.
After a jury found defendant Nicole Marie Brogdon guilty of evading a peace
officer, the trial court sentenced her to an upper term of three years, suspended execution
of the sentence, and granted three years of probation. Defendant contends that we must
remand for resentencing because the trial court’s imposition of an upper term sentence
did not satisfy the new requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.)
(Senate Bill 567), which took effect while her appeal was pending and applies
retroactively to her case. The People agree.
We conclude Senate Bill 567 is an ameliorative statute that applies retroactively to
defendant’s nonfinal case and defendant is entitled to resentencing under the amended
1
statute. Accordingly, we vacate the sentence and remand the matter to the trial court to
resentence defendant.
BACKGROUND
The details of the offenses in this case are not relevant to defendant’s appeal of her
upper term sentence, so we omit them. A jury found defendant guilty of evading a peace
officer (Veh. Code, § 2800.2, subd. (a)), resisting a peace officer (Pen. Code, § 148, subd.
(a)),1 and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). During
trial, defendant also pleaded guilty to driving with a suspended license (Veh. Code,
§ 14601.1, subd. (a)).
At the sentencing hearing, the trial court considered as aggravating circumstances:
(1) defendant’s prior convictions (Cal. Rules of Court, rule 4.421(b)(2));2 (2) prior
violations of probation and parole (rule 4.421(b)(5)); (3) the fact that defendant was on
probation when she committed the current offense (rule 4.421(b)(4)); and (4) defendant’s
“total disregard for the safety of others” in driving under the influence, which could
easily have resulted in the death of an innocent person (rule 4.421(a)(1)). The trial court
considered as mitigating circumstances: (1) defendant’s gainful employment since the
offense and (2) defendant’s success participating in various Placer County support
programs, as evidenced by numerous recommendations from program personnel. The
report prepared by the Placer County Probation Department noted defendant had
experienced abuse and violence, both as a child and in intimate relationships as an adult,
but the trial court did not mention these circumstances at the sentencing hearing.
After weighing the aggravating and mitigating factors, and calling it “an extremely
close case,” the trial court imposed an upper term sentence of three years for evading a
1 Undesignated statutory references are to the Penal Code.
2 Undesignated rule references are to the California Rules of Court.
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peace officer, with execution of sentence suspended, and placed defendant on probation
for three years. For each of the three misdemeanor offenses, the trial court sentenced
defendant to a concurrent sentence of 180 days, execution suspended. Defendant timely
appealed.
While defendant’s appeal was pending, the Legislature enacted Senate Bill 567
(2021-2022 Reg. Sess.), which took effect on January 1, 2022. Among other things, the
bill amended section 1170, subdivision (b) to impose new requirements for trial courts
selecting among three possible sentences for an offense. (Stats. 2021, ch. 731, § 1.3.)
DISCUSSION
As amended, section 1170, subdivision (b) provides that aggravating
circumstances now justify the imposition of an upper term sentence only if “the facts
underlying those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
(§ 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) The amended statute
also adds a third acceptable method of factfinding, permitting courts to “consider the
defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)3
Newly added subdivision (b)(6) requires imposition of a lower term sentence when
certain mitigating factors contributed to the commission of the offense, including when
the defendant has experienced psychological, physical, or childhood trauma. (§ 1170,
subd. (b)(6).)
3 Defendant asserts that Senate Bill 567 (2021-2022 Reg. Sess.) also limits the trial
court’s ability to impose an upper term sentence by prohibiting the trial court from
considering aggravating circumstances that relate to the defendant, only permitting
consideration of aggravating circumstances that relate to the crime itself. (See rule
4.421.) We do not address this assertion because we find the matter should be remanded
for a different reason, as explained herein.
3
The People correctly concede the amended version of section 1170, subdivision
(b) applies retroactively in this case as an ameliorative change in the law applicable to all
nonfinal convictions on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745; People v.
Conley (2016) 63 Cal.4th 646, 657 [“in the absence of contrary indications, a legislative
body ordinarily intends for ameliorative changes to the criminal law to extend as broadly
as possible”]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [holding Sen. Bill 567
applies retroactively to nonfinal convictions on appeal].)
The parties also agree we must remand for resentencing.
We conclude remand is required under section 1170, subdivision (b)(6) and do not
reach defendant’s other arguments.
In support of remand under section 1170, subdivision (b)(6), defendant indicates
that her personal background includes childhood trauma and past abuse. Additionally,
the probation report prepared for defendant’s sentencing hearing includes references to
defendant having been sexually and emotionally abused as a child, and having been
physically abused by her spouse as an adult. (CT 136, 139) While this information was
apparently known to the trial court, the trial court did not have the benefit of section
1170, subdivision (b)(6) at the time of defendant’s sentencing hearing and as such, did
not conduct the analysis required of that section. When the trial court imposed sentence,
defendant was not entitled to a presumptive lower term upon a showing that mental
illness resulted in psychological trauma, which was a “contributing factor in the
commission” of her offenses. (§ 1170, subd. (b)(6).) Defendant thus had less incentive
to develop a record regarding these issues. By the same token, the trial court had less
incentive to assess whether psychological trauma was a contributing factor. (See People
v. Banner (2022) 77 Cal.App.5th 226, 242 [“record is likely incomplete relative to
statutory factors enacted after judgment [is] pronounced”], citing People v. Frahs (2020)
9 Cal.5th 618, 637-638.) When a sentencing court is unaware of the scope of its
discretionary powers, “the appropriate remedy is to remand for resentencing unless the
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record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion
‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014)
58 Cal.4th 1354, 1391.) The record before us does not make it clear that the trial court
would have imposed the upper term had section 1170, subdivision (b)(6) been in effect at
the time. (Banner, at p. 242.) Therefore, we find remand is necessary.
On remand, the trial court may revisit all of its sentencing choices in light of new
legislation. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full
resentencing rule allows a court to revisit all prior sentencing decisions when
resentencing a defendant”].)
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for
resentencing.
/s/
EARL, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
DUARTE, J.
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People v. Brogdon CA3
Combined Opinion