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Filed 7/15/22 P. v. Fielding CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
ANGEL MIGUEL FIELDING,

Defendant and Appellant. C094725
(Super. Ct. Nos. CRF20761, CRF201377)

Defendant Angel Miguel Fielding pleaded no contest to first degree burglary and taking a vehicle without consent

. The plea agreement included a Cruz waiver. 1 After
defendant violated the Cruz waiver, the trial court sentenced him to the middle term for the principal offense, first degree burglary

.

1 See People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.2

Defendant contends that we must remand for resentencing because the trial court’s imposition of the middle term did not satisfy the new requirements of recently enacted
amendments to Penal Code section 1170 , subdivision (b) (6) , 2 which took effect while hi s appeal was pending and appl y retroactively to his case. 3 The People agree that these
amendments appl y retroactively but contend that defendant is ineligible for relief under
the terms of the new law.
We conclude that there is no evidence in the record that the amendments to section 1170, subdivision (b)(6) apply to defendant ’s sentence. We also disagree with defendant’s contention that the trial court erred by imposing a fine for the burglary in the wrong amount. Accordingly, we will affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND Defendant pleaded no contest to first degree burglary ( §§ 459, 4 61 , subd. (a), Yuba County Super. Ct. case No. CRF20

- 1377 ) and taking a vehicle without consent (Veh. Code, § 1 0851, Yuba County Super. Ct. case No. CRF20

- 761). For the burglary charge, the parties stipulated that defendant forcibly entered and stole items from the
residence of his aunt

. For the taking a vehicle without consent charge , the parties stipulated that defen dant took and drove a vehicle valued at over $1,000 without the permission of its owner. As part of the negotiated plea, defendant also admitted a prior serious felony conviction. The plea agreement incorporated a Cruz waiver, permitting defendant’s relea se on his own recognizance pending sentencing

. If defendant complied with terms of the Cruz

2 Undesignated s tatutory references are to the Penal Code.

3 The parties refer most ly to A ssembly B ill No. 124 (2021

- 2022 Reg. Sess.) (A ssembly B ill 124) , but S enate B ill No. 567 (2021

- 2022 Reg. Sess.) , the later

- enacted bill, incorporated A ssembly B ill 124’s amendments to section 1170 and is the operative legislation

. ( See Stats. 2021, ch. 731, § 3 , subd. (c) .) For clarity ’s sake , we refer to the codified statutes rather than to the two bills.3

waiver , the court would strike his prior serious felony conviction and sentence him to two years eight months in state prison, comprised of the lower term of two y ears for first degree burglary , plus eight months (one

- third of the middle term) for taking a vehicle
without consent

. But, if defendant vio lated the Cruz waiver, the trial court would not strike the prior serious felony conviction and would instead sentence him to at least five years four months and up to 13 years four months. After being released pursuant to the Cruz waiver, d efendant did not return for his sentencing and did not appe ar at any of the rescheduled dates. Upon return ing to custody , defendant admitted that he violated his Cruz waiver.
The probation report s indicated that defendant was 27 years old at the time he
committed each offense. The reports also detailed a lengthy criminal record, including a number of juvenile offenses

. But defendant’s interview with the probation officer d id not indicate that he experienced any psychological, physical, or childhood trauma

. Nor d id the probation reports indicate that defendant was ever the victim of intimate partner
violence o r human trafficking. At sentencing, the trial court noted that defendant stole minimal property in the burglary but showed remarkably poor judgment in failing to appear for sentencing. The
trial court then sentenced defendant to an aggregate term of nine years four month s in prison , comprised of the middle term of four years for first degree burglary , plus eight months (one

- third of the middle term) for taking a vehicle without consent , with each

term doubled due to the prior serious felony conviction. In addition to other fines and fees not at issue in this appeal, the trial court imposed a fine of $40 , including penalty

assessments , on the burglary charge, pu rsuant to section 1202.5

. Defendant timely appealed.
W hile defendant’s appeal was pending, the Legislature amended section 1170,
effect ive January 1, 2022 , impos ing new requirements for trial courts selecting among three possible sentences for an offense . (Stats. 2021, ch. 731, § 1.3.)4 DISCUSSION
I Middle Term Sentence
S ection 1170, subdivision (b) (6) now requires imposition of a lower term sentence when certain mitigating factors contributed to the commission of the offense, “ unless the
court fin ds that the aggravating circumstances outweigh the mitigating circumstances [and] that imposition of the lower term would be contrary to the interests of justice

. ” (§ 1170, subd. (b)(6) .) Those potential mitigating factors are : (A) the defendant has
exp erienced psychological, physical, or childhood trauma ; (B) the defendant was under 26 years of age on the date the offense was committed; or (C) prior to or at the time of the offense, the defendant was a victim of intimate partner violence or human trafficking. (§§ 1170, subd. (b)(6)(A)

- (C) , 1016.7, subd. (b).) Defendant contends that these
amendments apply retr oactively to his sentence and require remand

. The People correctly concede the amended version of section 1170, subdivis ion (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 indica tions, 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 amendments to § 1170, subd. (b)(6) appl y retroactively to nonfinal conv ictions on appeal].) But the People d o not agree that we must remand for resentencing

. Rather, they argue that the amendments to section 1170, subdivision (b)(6) do not apply to defendant’s

sentence. Defendant concedes in his reply brief that he does not fall within the purview of the statute’s mitigating factors, but argues that section 1170, subdivision (b)(6) has created a presumption in favor of a lower term sentence, which means that the trial cou rt erred by not stating reasons on the record for imposing the middle term instead. We disagree with defendant’s interpretation. The presumption in section 1170, subdivision5

(b)(6) arises only “if any of the [mitigating factors] was a contributing factor in the commission of the offense.” The provision in section 1170, subdivision (b)(7) that ensures that subdivision (b)(6) does not limit a trial court’s ability to sentence a defendant to a lower term for other reasons does not change or expand the scope of the presumption in subdivision (b)(6). Here, as defendant concedes , the record is devoid of any evidence that the newly
added provisions of section 1170, subdivision (b)(6) apply to defendant. D efendant was not under 26 years of age on the date the offenses were committed. Defendant’s interview with the probation officer does not disclose any experience of psychological, physical, or childhood trauma

— much less trauma that “contributed to the commission of
the offense .” To the contrary, defendan t reported that he lived with his mother and stepfather and is in good physical and mental health

. Nor did defendant claim to be a victim of domestic abuse or human trafficking. The record lacks any evidence that section 1170, subdivision (b)(6) applies, even thou gh defendant had an incentive to
disclose such trauma and victimization to mitigate his sentence , ( s ee former Cal. Rules of Court, rule 4.423 (a)(4) , (9), (b)(2), (c) , as amended effective Jan

. 1, 201 8 ) , and did in fact divulge his prior use of il legal substances. Accordingly, the amended section 1170, subdivision (b)(6) does not apply to defendant’s sentence , so no presumption would arise under the retroactive amendments and the trial court did not err in sentencing defendant
to a middle term wit hout stating reasons why imposition of a lower term sentence would be contrary to the interests of justice.
II
Fine Pursuant to Section 1202.5
Defendant also contends the trial court was not authorized by section 1202.5 to impose a fine of $40 for the burglary. Section 1202.5 authorizes “ a fine of ten dollars ($10) in addition to any other penalty or fine imposed ” for burglary convictions. (§ 1202.5, subd. (a) , italics ad ded.) D efendant fails to account for the trial court’s6

statement that the $40 includes penalty assessments , instead misunderstanding the record to say that the trial court imposed a base fine of $40

. A fine under section 1202.5 is subject to seven penalt y assessments. ( See §§ 1464, subd. (a)(1) [$10], 1465.7, subd. (a) [$2] ; Gov. Code, §§ 70372, subd. (a)(1) [$5], 76000, subd. (a) [$7], 76000.5, subd. (a)(1) [$2], 76104.6, subd. (a)(1) [$1], 76104.7, subd. (a) [$4] ; People v. Knightbent (2010)
186 Cal.Ap p.4th 1105, 1109 .) Thus, the trial court did not err by imposing required penalty assessments in addition to the $10 base fine.
DISPOSITION
The judgment is affirmed

.

/s/ EARL, J.

We concur:

/s/ ROBIE, Acting P. J.

/s/ MAURO, J.