Filed 11/30/22 P. v. Hill 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C095428
Plaintiff and Respondent, (Super. Ct. Nos. 21CF00239,
21CF00051)
v.
CAROLYN GENE HILL,
Defendant and Appellant.
Defendant Carolyn Gene Hill pleaded no contest to multiple felonies in two
separate cases, and the trial court imposed the upper term on the principal count at
sentencing. On appeal, defendant challenges the upper term portion of her sentence
based on recent legislative amendments to Penal Code section 1170.1
1 Further undesignated statutory references are to the Penal Code.
1
The Attorney General agrees that remand for resentencing is required, as do we.
We shall remand for resentencing in accordance with the current law and otherwise
affirm the judgment.
BACKGROUND
The parties stipulated that the facts from the probation report formed the factual
basis for defendant’s plea.
Butte County Case No. 21CF00051
In August 2020, defendant and two others broke into approximately 100 post
office boxes at a United States Post Office in Durham. Defendant later admitted that she
participated in the burglary and had attempted to cash a fraudulent check from an
organization whose mail was stolen. She was charged with second degree commercial
burglary (§ 459, count 1) and identity theft with a prior (§ 530.5, subd. (c)(2), count 2).
Butte County Case No. 21CF00239
In December 2020, officers contacted defendant in her storage unit with drug
paraphernalia and stolen items in plain view. A subsequent search of her car and storage
unit with a warrant revealed that defendant had acquired and possessed numerous stolen
and fraudulent checks as well as the personal identifying information of over 40 victims.
Initially, defendant was charged with 41 counts of identity theft with a prior
(§ 530.5, subd. (c)(2), counts 1-41), and two counts of forgery (§ 476, counts 42-43).
The prosecutor later amended the complaint without objection to allege 10 counts of
identity theft with a prior.
Plea and Sentencing
In June 2021, defendant pleaded no contest to 10 counts of identity theft with a
prior in case No. 21CF00239, and one count of second degree commercial burglary in
case No. 21CF00051 in exchange for dismissal of all remaining counts and allegations
with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The parties agreed
defendant’s sentence would not exceed nine years eight months in prison, and that the
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trial court had sole discretion to determine probation and sentencing. Following her plea,
defendant withdrew an earlier application for mental health diversion.
During sentencing in November 2021, the trial court indicated it had read and
considered the probation report. The court found that defendant pleaded no contest at an
early stage of the proceedings as the single mitigating factor, and found planning,
sophistication, or professionalism, the taking of great monetary value, and numerous
prior convictions as the three aggravating factors. On balance, the court found the three
aggravating factors outweighed the lone mitigating factor.
Defendant did not stipulate to any factors in aggravation. Nor were any certified
records of defendant’s prior convictions introduced during the sentencing hearing or
attached to the probation report, although the probation report did reference her criminal
history.
The trial court imposed the upper term of three years on count one for identity
theft in case No. 21CF00239, which it designated as the principal term, and consecutive
terms of eight months (one third the midterm) for each remaining count in both cases.
Defendant’s total aggregate prison sentence was nine years eight months, with a portion
of the sentence suspended to be served on mandatory supervision.
Defendant timely appealed; the case was fully briefed on September 30, 2022, and
assigned to this panel shortly thereafter. The parties waived argument and the case was
deemed submitted on November 29, 2022.
DISCUSSION
Defendant challenges the upper term sentence on identity theft (count 1 in case
No. 21CF00239) under recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 731, § 1.3) (Senate Bill No. 567).2 The People concede Senate Bill No.
2Senate Bill No. 567 was enacted after Assembly Bill No. 124 (2021-2022 Reg. Sess.),
which also amended section 1170, and incorporated Assembly Bill No. 124’s
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567 applies retroactively to defendant’s case and that remand for resentencing under the
new legislation is appropriate. We agree with the parties.
When the trial court sentenced defendant, former section 1170 provided that
“[w]hen a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest within the sound discretion of
the court.” (§ 1170, former subd. (b); Stats. 2020, ch. 29, § 14.) Senate Bill No. 567
amended this provision effective January 1, 2022, to limit the trial court’s discretion to
impose the greater term. As relevant here, the bill limited the trial court’s discretion to
impose a sentence greater than the midterm unless the aggravating circumstances justify
doing so and the facts underlying those circumstances have been stipulated to by the
defendant or found true beyond a reasonable doubt. (§ 1170, subd. (b)(1) & (2), as
amended by Stats. 2021, ch. 29, § 15.) One exception is that the trial court may rely on
certified records of conviction to find a prior conviction proven. (§ 1170, subd. (b)(3).)
As amended, section 1170 also now provides that “unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances [so] that imposition of
the lower term would be contrary to the interests of justice,” the trial court must impose
the low term if a defendant “experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence” if such
trauma “was a contributing factor in the commission of the offense.” (§ 1170, subd.
(b)(6).) The court must set forth on the record the facts and reasons for choosing the
sentence imposed. (§ 1170, subd. (b)(5).)
We agree with the parties that amended section 1170, which went into effect while
defendant’s appeal was pending, applies retroactively as an ameliorative change in the
law that is applicable to all nonfinal convictions. (People v. Flores (2022)
amendments to the statute. (Stats. 2021, ch. 731, § 3(c).) Thus, contrary to defendant’s
argument that she also may be entitled to resentencing under Assembly Bill No. 124 upon
remand, Senate Bill No. 567 is the only operative legislation on that issue.
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73 Cal.App.5th 1032, 1039.) We also agree that the requirements of the amended statute
were not followed here.
As we have described above, here the trial court imposed an upper term after
finding that three aggravating factors outweighed a single mitigating factor. When the
trial court imposed the upper term, Senate Bill No. 567’s amendments were not in effect,
and it is undisputed that defendant did not stipulate to the facts underlying any of the
aggravating factors, nor did the trier of fact find them true beyond a reasonable doubt,
and no certified records were introduced to prove any of defendant’s prior convictions.
Notably, even if a trier of fact would have found at least one of the aggravating
circumstances the trial court relied on true beyond a reasonable doubt, rendering any
constitutional error harmless (see People v. Zabelle (2022) 80 Cal.App.5th 1098, 1111),
“we still must grapple with the trial court’s reliance on other aggravating circumstances
inconsistent with the current requirements of section 1170.” (Id. at p. 1112.) “[I]t is not
enough that we find the trial court could have imposed the upper term sentence (based on
the conclusion that the jury would have found true at least one aggravating circumstance).
Rather, to find harmless error for the state law error, we must find that the trial [court]
would have imposed the upper term sentence even absent the error.” (Ibid.) The parties
agree, as do we, that here we are unable to make this finding to the required degree of
certainty.
Further, at the time of sentencing, defendant was not entitled to a presumptive
lower term upon a showing that she suffered a qualifying psychological, physical, or
childhood trauma, and that trauma contributed to the commission of her crimes. (§ 1170,
subd. (b)(6).) Defendant thus had less incentive to develop a record regarding these
issues even though there is some indication in the record that she perhaps suffers from
substance abuse and mental health issues.
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By the same token, the trial court had less incentive to assess whether
psychological, physical, or childhood trauma was a contributing factor. (See People v.
Banner (2022) 77 Cal.App.5th 226, 242, citing People v. Frahs (2020) 9 Cal.5th 618,
637-638.) As a result, the record before us does not make it clear the trial court
necessarily would have imposed a middle term had section 1170, subdivision (b)(6) been
in effect at the time. (Banner, at p. 242.)
Consequently, we vacate the sentence and remand for the trial court to conduct a
full resentencing in a manner consistent with amended section 1170, subdivision (b).
(See People v. Buycks (2018) 5 Cal.5th 857, 893.) We express no opinion as to the
ultimate sentence, but note that because defendant’s conviction is not yet final, the trial
court should consider any additional changes to the sentencing laws that may apply to
defendant’s benefit.
DISPOSITION
The sentence is vacated and the matter is remanded for a full resentencing. The
judgment is otherwise affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Krause, J.
/s/
Earl, J.
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