Filed 7/22/22 P. v. Conner 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NOT TO BE PUBLISHED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
(Tehama)
----
THE PEOPLE, C094715
Plaintiff and Respondent, (Super. Ct. No. 20CR002621)
v.
DONALD NICOLAUS CONNER,
Defendant and Appellant.
Defendant Donald Nicolaus Conner pleaded guilty to four sex crimes involving
two minors. Defendant contends, and the People concede, that recently enacted
legislative changes are ameliorative and apply to him retroactively. Furthermore,
defendant claims the trial court erroneously imposed consecutive sentences for
defendant’s sex crimes in violation of the statutory scheme, and alternatively, defendant
received ineffective assistance of counsel. Reaching only the first contention, we vacate
the sentence and remand.
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FACTUAL BACKGROUND
As the basis for defendant’s plea, the parties stipulated to the facts from the police
report. In summary, over the course of several months in 2020, and while intermittently
cohabitating with the victims’ parents, the 20-year-old defendant engaged in multiple
nonconsensual sexual acts with two girls, aged 14 and 16 years old. Defendant’s sexual
misconduct ranged from digital penetration to sexual intercourse. On several occasions,
the victims were asleep when defendant initiated sexual contact.
On November 3, 2020, law enforcement interviewed defendant and, after initially
denying the conduct, he admitted to having sex with one of the victims but not the other.
That same day, law enforcement arrested defendant.
PROCEDURAL BACKGROUND
The People charged defendant with 14 counts as follows: four counts of sexual
penetration of an unconscious or sleeping person (Pen. Code, § 289, subd. (d)(1)),1 five
counts of sexual penetration by use of force of a minor victim 14 years of age or older
(§ 289, subd. (a)(1)(C)); forcible rape of a child over 14 years old (§ 261, subd. (a)(2));
rape of an unconscious or sleeping person (§ 261 subd. (a)(4)(A)); and three counts of
forcible oral copulation. (§ 287, subd. (c)(2)(A).) A single count of sexual penetration of
an unconscious or sleeping person (§ 289, subd. (d)(1)), and a single count of sexual
penetration by use of force of a minor victim 14 years of age or older (§ 289, subd.
(a)(1)(C)), applied to one victim and the remainder of the charges applied to the other
victim.
On July 9, 2021, in a negotiated plea, defendant pleaded guilty to one count of
sexual penetration of an unconscious or sleeping person (§ 289, subd. (d)(1)) involving
the first victim (count I); two counts of sexual penetration of an unconscious or sleeping
1 Undesignated statutory references are to the Penal Code.
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person (§ 289, subd. (d)(1)) (counts VII & IX), and one count of sexual penetration by
use of force of a minor 14 years of age or older (§ 289, subd. (a)(1)(C)) (count X)
involving the second victim. Defendant’s plea was in exchange for a maximum
aggregate sentence of 29 years, a three-year stipulated sentence for count VII, and
dismissal of the remaining counts. The trial court sentenced defendant to the upper term
of 10 years for count X, two consecutive eight-year upper terms for counts I and IX, and
the stipulated consecutive three-year lower term for count VII.
In its colloquy during sentencing, the trial court stated: “Having read and
considered the probation report, this was a heinous crime. There were two minor victims.
I find under California Rule[s] of Court[, rule] 4.421(a)(3) and (a)(11) that those do come
into play here because both of these victims were vulnerable, they were attacked in their
own residences, and the defendant took advantage of a position of trust because he was a
family friend.”
DISCUSSION
Defendant contends he is entitled to resentencing in light of recent amendments to
sections 1170 and 1170.1, which took effect two weeks after defendant filed his opening
brief.2 Defendant also argues the trial court erred in imposing full, consecutive upper
terms pursuant to section 667.6 because he was not convicted of multiple enumerated
offenses involving the same victim on the same occasion, and alternatively, that he
received ineffective assistance of counsel based on counsel’s failure to object to the
2 Defendant asserts he is entitled to the ameliorative benefits both of Senate Bill No.
567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) and Assembly Bill
No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5.3) (Assembly Bill 124). Senate
Bill 567 was enacted after Assembly Bill 124 and incorporated Assembly Bill 124’s
amendments to section 1170. (Stats. 2021, ch. 731, § 3, subd. (c).) Senate Bill 567 takes
precedence because it was enacted last. (Gov. Code, § 9605.) Thus, Senate Bill 567 is
the operative legislation, not Assembly Bill 124, and we will address defendant’s claims
as raised under that legislative enactment.
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imposition of consecutive sentences during sentencing. The People concede the
applicability of the recent legislative enactments. We accept the concession and, in light
of its effect, we vacate the sentence and remand without reaching defendant’s claim
regarding the imposition of consecutive sentences.
Effective January 1, 2022, Senate Bill 567 amended section 1170, former
subdivision (b), to create a presumption in favor of the low prison term where a
defendant’s “youth” was a contributing factor in the offense. (§ 1170, subd. (b)(6); Stats.
2021, ch. 731, § 1.3.) As relevant here, the court is required to impose the lower term if
defendant was under 26 years old at the time of the offense unless the aggravating
circumstances outweigh the mitigating circumstances such that imposition of the lower
term would be contrary to the interests of justice. (§§ 1170, subd. (b)(6)(B), 1016.7,
subd. (b).)
Here, defendant was 20 years old at the time of his offenses and the parties agree
the lower-term sentencing presumption now codified in section 1170, subdivision
(b)(6)(B) would apply to him. Therefore, because the People correctly concede Senate
Bill 567 is ameliorative to defendant, this matter should be remanded for a full
resentencing given the changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857,
893.)
Because resentencing is appropriate, we need not address defend ant’s remaining
arguments on appeal. We vacate defendant’s sentence as to counts I, IX, and X.
DISPOSITION
The convictions are affirmed. The sentence as to counts I, IX, and X is vacated,
and the matter is remanded for a full resentencing consistent with the changes from
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Senate Bill 567 and any other ameliorative changes to the sentencing laws that apply to
defendant.
KRAUSE , J.
We concur:
MAURO , Acting P. J.
EARL , J.
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