Filed 1/31/23 P. v. Seaton CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

LEON SEATON,

Defendant and Appellant.

B312805

(Los Angeles County

Super. Ct. No. NA115193)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Laura Laesecke, Judge. Remanded for 

resentencing.

Susan Morrow Maxwell, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Analee J. Brodie, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

After a jury found Leon Seaton guilty of first degree 

burglary, the trial court found that he had two prior strike

convictions within the meaning of the Three Strikes law, struck 

one of the strikes, and sentenced him to the upper term, doubled 

based on the remaining strike. Seaton now appeals, contending 

that remand is required based on recent amendments to Penal 

Code1 section 1170 and that there are other sentencing errors. 

We agree that remand for resentencing is required. 

BACKGROUND

On the morning of August 27, 2020, Caitlyn Lindgren 

heard a loud bang come from the front of her house. Looking out, 

she saw someone in her storage shed. Lindgren called 911. 

Responding police officers found Seaton on a neighbor’s property

and arrested him. Seaton was charged with first degree 

burglary, person present (§ 459), and a jury found him guilty as 

charged. 

On May 4, 2021, the trial court held a court trial on two 

prior strike convictions that had been alleged under the Three 

Strikes law against Seaton. The prosecutor moved to dismiss the 

prior strikes based on their age and per a directive of the District 

Attorney’s Office, but the trial court declined to dismiss them. 

The People proceeded to prove them by submitting two packets of 

certified prison records, i.e., 969b packets.2 The first packet 

stated that Seaton had suffered a first degree burglary conviction

(§ 459) on October 12, 1999. The second packet showed that 

1 All further undesignated statutory references are to the 

Penal Code.

2 Certified prison records submitted under section 969b are 

often referred to as 969b packets. (See, e.g., People v. Gibson 

(2015) 239 Cal.App.4th 1151, 1153.)
3

Seaton had a conviction for first degree robbery (§ 211) on 

December 14, 2005. In response to this evidence, defense counsel

argued that the documents were insufficient to prove the prior 

strikes. The trial court found that Seaton had suffered the 

robbery conviction, stating it recognized the judge and the deputy 

district attorney involved in that conviction and Seaton’s 

photograph. As to the burglary conviction, the trial court said it 

recognized the judge and Seaton’s photograph. The trial court 

accordingly found that the People had proven the prior strike 

convictions beyond a reasonable doubt. 

Moving to sentencing, the trial court said it would not 

sentence Seaton to a life term because he did not have a weapon, 

so it struck the 1999 prior strike under People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497. Noting that Seaton had not 

resisted arrest, the trial court also declined to impose the fiveyear prior (§ 667, subd. (a)). The trial court then sentenced 

Seaton to the high term of six years, doubled due to the 

remaining strike, to 12 years in prison.

DISCUSSION

Seaton contends that remand is necessary so that the trial 

court can reconsider his sentence under newly amended section 

1170. Effective January 1, 2022, Senate Bill No. 567 (2020–2021 

Reg. Sess.) amended section 1170 to provide that a trial court 

may impose the upper term only “when there are circumstances 

in aggravation of the crime” that justify imposing a term of 

imprisonment exceeding the middle term, and the defendant has 

stipulated to the facts underlying those circumstances or those 

facts have been found true beyond a reasonable doubt at trial by 

the trier of fact. (§ 1170, subd. (b)(2); see generally People v. 

Lopez (2022) 78 Cal.App.5th 459, 464–465.) Newly amended 
4

section 1170, subdivision (b), thus makes the middle term the 

presumptive term.3 Here, the trial court imposed the upper term 

of six years for the burglary conviction. The People agree, as do 

we, that Senate Bill No. 567 applies retroactively to Seaton and 

that remand is necessary for reconsideration of the sentence 

under section 1170. (See, e.g., People v. Flores (2022) 73 

Cal.App.5th 1032, 1039 [People properly conceded Senate Bill 

No. 567 is retroactive].)

Because we are remanding for resentencing, Seaton’s 

remaining contentions are largely moot. (See People v. Ramirez 

(2019) 35 Cal.App.5th 55, 64 [on remand for resentencing, trial 

court may reconsider entire sentence and modify any aspect of

it].) Thus, as to Seaton’s contention that the trial court abused 

its discretion by refusing to strike his 2005 prior strike 

conviction, Seaton may refile any Romero motion he deems 

necessary on remand.

To guide the trial court on remand, although the trial court 

will have the option of imposing the five-year enhancement under 

section 667, subdivision (a), should the trial court again decide 

not to impose the enhancement, then it should be stricken and 

not stayed. (See generally People v. Lopez (2004) 119 Cal.App.4th 

355, 364 [enhancement should be imposed or stricken, not stayed, 

under section 1385].) 

Further, for the purposes of calculating custody credits, a 

defendant convicted of a felony is entitled to credit for all days in 

3 Although not relevant here, section 1170, subdivision (b)(6), 

provides that the lower term shall be the presumptive term if the 

trial court finds that any specified factors were a “contributing 

factor” to the crime’s commission and aggravating circumstances 

do not outweigh mitigating ones. 
5

custody, beginning with the day of arrest and continuing to the 

day of sentencing. (§ 2900.5; People v. Rajanayagam (2012) 211 

Cal.App.4th 42, 48.) The trial court gave Seaton only 250 days of 

actual days in custody. However, he is entitled to 251 days of 

actual custody credits from his August 27, 2020 arrest to the May 

4, 2021 sentencing hearing. Any recalculation of actual custody 

credits should account for the 251 days of actual days in custody 

during that period. 

Finally, as to Seaton’s contention there was insufficient 

evidence that he suffered the 1999 first degree burglary 

conviction, we recognize that the trial court on remand could 

reconsider whether to strike that conviction. Nevertheless, it is 

unlikely in the extreme that the trial court would do so, given the 

trial court’s unequivocal statements that it did not “intend to 

strike Mr. Seaton out” and that, as it had told counsel during 

trial, “my intent was not to give Mr. Seaton a life sentence.” We 

therefore decline to reach the sufficiency of the evidence issue 

because it is theoretical and speculative on this record that the 

trial court will do anything but strike the 1999 burglary 

conviction. (See generally Wilson v. L.A. County Civil Service 

Com. (1952) 112 Cal.App.2d 450, 453 [courts do not decide moot 

or purely academic questions or abstract propositions].) We also 

note that even where an appellate court reverses a true finding 

on a strike allegation for insufficient evidence, the allegation may 

be retried. (People v. Barragan (2004) 32 Cal.4th 236, 259.) 

Therefore, even if we agreed with Seaton, the allegation could be 

retried on remand. 
6

DISPOSITION

The sentence is vacated, and the matter is remanded for 

resentencing. The judgment of conviction is otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

RICHARDSON (ANNE K.), J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.