Filed 7/29/22 P. v. Snyder CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A162756
v.
RALPH THOMAS SNYDER II, (Lake County
Super. Ct. No. CR953688-A)
Defendant and Appellant.
Defendant Ralph Thomas Snyder II contends on appeal his sentence
must be vacated and his case remanded for resentencing in light of Senate
Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to Penal
Code1 section 1170, subdivision (b). We agree and remand for resentencing.
I. BACKGROUND
Defendant was charged with felony unlawful possession of a firearm
(Pen. Code, § 29800, subd. (a); count 1) and felony unlawful possession of
ammunition (id., § 30305, subd. (a)(1); count 2). The complaint referenced a
felony conviction from 1993 in support of those counts. Defendant pled no
contest as to count 1 and admitted his prior as to that count.
The court suspended imposition of defendant’s sentence and placed him
on three years’ probation. However, the court subsequently revoked
1 All statutory references are to the Penal Code.
defendant’s probation due to a probation violation. The court then sentenced
defendant to the upper term of three years on count 1. The court identified
various circumstances in aggravation, including that “[t]he manner in which
the crime was carried out indicated planning and sophistication,” his “prior
convictions as an adult are numerous and of increasing seriousness,” he
“served two prior prison terms,” he ”was on two grants of summary probation
when the crime was committed,” and his performance on probation and
parole “were unsatisfactory.” Defendant timely appealed.
II. DISCUSSION
On appeal, defendant asserts he is entitled to resentencing under
section 1170 as amended by Senate Bill 567. He contends he did not
stipulate to the facts upon which the trial court relied when imposing his
sentence, and they were not found true by a jury. The Attorney General
disagrees resentencing is necessary, arguing defendant admitted to a prior
felony. The Attorney General further argues any error was harmless.2
At the time of sentencing, section 1170 provided that the sentencing
choice between the low, middle, and upper term “shall rest within the sound
discretion of the court” based on which term “best serves the interests of
justice.” (Former § 1170, subd. (b).) Effective January 1, 2022, Senate
Bill 567 modified this provision to require imposition of the middle term of
imprisonment unless circumstances in aggravation justify imposition of a
greater sentence. (Stats. 2021, ch. 731, § 1.3.) It also modified section 1170,
subdivision (b) to require the circumstances in aggravation be found true
beyond a reasonable doubt or be stipulated to by the defendant. (Stats. 2021,
2The parties agree that amended section 1170 applies retroactively to
defendant. We concur. (See People v. Flores (2022) 73 Cal.App.5th 1032,
1039.)
2
ch. 731, § 1.3.) However, subdivision (b)(3) allows a court to consider a
defendant’s prior convictions in determining sentencing “based on a certified
record of conviction without submitting the prior convictions to a jury.”
(Stats. 2021, ch. 731, § 1.3.)
Here, defendant was sentenced to the upper term of three years on
count 1 based on the following considerations: (1) the crime indicated
planning and sophistication; (2) his numerous and increasingly serious prior
convictions; (3) his two prior prison terms; (4) he committed the crime while
on probation; and (5) his unsatisfactory performance on probation and parole.
Nothing in the record indicates defendant stipulated to the facts supporting
these factors apart, perhaps, from admitting to a single 1993 felony
conviction as part of his plea deal.3 But nothing in that admission conceded
defendant committed numerous convictions or that those convictions were of
increasing seriousness.
Moreover, the court’s assessment of defendant’s convictions and his
performance while on probation appear to be drawn from the probation
report. Under amended section 1170, subdivision (b)(3), a trial court may
only 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).) If the prior convictions are not
included in the record in a certified record of conviction, then they must be
proven to a jury. (Ibid.) In this case, the trial court appears to have relied on
neither, but only on the probation report summarizing defendant’s criminal
3 The Attorney General argues the court properly considered the 1993
conviction under section 1170 because of defendant’s admission, and that
conviction supports imposition of an upper term. We disagree as discussed
further herein.
3
history. Accordingly, the trial court erred in relying on those factors when
imposing the upper term.
The Attorney General argues any error is harmless because only a
single aggravating factor could support an upper term sentence. The
Attorney General notes the probation report supports the court’s findings by
identifying defendant’s numerous misdemeanor and felony convictions, and
showing defendant served two prior prison terms, was on probation when he
committed the instant offense, and performed poorly on probation and parole.
And the Attorney General argues the court’s reliance on the probation report
was harmless because the same information is available from official records.
Section 1170, subdivision (b)(3) allows courts to consider certified
records of conviction. However, it is unclear whether subdivision (b)(3) is
limited to simply the convictions or allows trial courts to find any underlying
facts other than the prior convictions themselves. The statute arguably does
not codify judicial consideration of facts related to a defendant’s recidivism.
(See People v. Gallardo (2017) 4 Cal.5th 120, 124–125 [disapproving 6th
Amend. precedent and limiting judicial factfinding about the facts underlying
a defendant’s prior conviction].) We need not resolve this issue. Even
assuming section 1170, subdivision (b)(3) allowed courts to consider the
underlying facts surrounding a prior conviction and the trial court’s reliance
on the probation report rather than certified records of conviction was
harmless, we cannot conclude the court’s consideration of the other
aggravating factors was harmless error.
The record does not clearly indicate the trial court necessarily would
have imposed the upper term absent its consideration of all the aggravating
factors it identified, especially considering the middle term is now
presumptive as articulated in Senate Bill 567 and amended section 1170.
4
(§ 1170, subd. (b)(1)–(2) [court shall order imposition of a sentence not to
exceed the middle term except when there are circumstances in aggravation
that justify imposition of a term exceeding the middle term].) “ ‘Defendants
are entitled to sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed
discretion” than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant’s record.’
[Citation.] In such circumstances, [our Supreme Court has] held that the
appropriate remedy is to remand for resentencing unless the 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.) Because the record does not clearly establish how the
court would have balanced the sentencing factors with the limitations
imposed under Senate Bill 567 and amended section 1170, resentencing is
warranted. (See People v. Buycks (2018) 5 Cal.5th 857, 893. 896.)
Accordingly, we vacate defendant’s sentence and remand to the trial
court to apply section 1170 as modified by Senate Bill 567 in the first
instance in order to determine defendant’s new sentence.
III. DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded to the
trial court for resentencing in accordance with Penal Code section 1170 as
amended by Senate Bill No. 567.
5
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162756
People v. Snyder
6