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Filed 2/24/23 P. v. Hackett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DONAVAN DEAN HACKETT,

Defendant and Appellant.

C096170

(Super. Ct. Nos. 

19F4855, 21F1285)

Defendant Donavan Dean Hackett appeals his six-year prison sentence on multiple 

grounds. We conclude that the trial court abused its discretion by imposing the upper 

term sentence without satisfying the requirements of Senate Bill No. 567 (2021-2022 

Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567). As the error was not harmless, 

we vacate the sentence and remand for a full resentencing.
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FACTUAL AND PROCEDURAL BACKGROUND

In August 2019, defendant pleaded no contest to unlawful possession of a firearm 

with a juvenile prior (Pen. Code, § 29820)1 and possession of a device for injecting a 

controlled substance (Health & Saf. Code, § 11364, subd. (a)) (case No. 19F4855). The

trial court suspended imposition of defendant’s sentence, placed him on formal probation 

for three years, and required he serve 90 days in jail. 

In March 2021, defendant pleaded no contest to first degree residential burglary 

(§ 459) (case No. 21F1285). Defendant stipulated that the factual basis for the plea was 

found in the Shasta County Sheriff’s Department report. The plea agreement contained a 

Cruz2 waiver, and provided that if defendant did not violate the Cruz waiver, he would 

have two years of probation and spend 180 days in county jail. It further specified that if 

defendant did violate the Cruz waiver, his sentence was “open on [the burglary count] 

(max 6 years).” The agreement stated that the minimum term for burglary was two years 

and the maximum term was six years in prison. Defendant also admitted to violating

probation in case No. 19F4855. 

At the plea hearing, defense counsel explained that this Cruz waiver meant that 

“[i]f [defendant] comes back for sentencing without any problems, it will be 180 days 

county jail. If there is an issue, obviously it’s an open plea to the six-year max.” The 

trial court likewise told defendant, “Should you violate probation, you could receive up to 

six years in prison as a result of the plea.” When revoking and reinstating probation, the 

trial court reiterated that if defendant failed to appear when required, “then all bets are off 

and you are looking at six years in prison. [¶] Do you understand?” Defendant 

responded, “I understand.” 

1 Undesignated statutory references are to the Penal Code.

2 People v. Cruz (1988) 44 Cal.3d 1247.
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Defendant subsequently failed to appear for sentencing on three occasions. In 

December 2021, the trial court found that defendant violated his Cruz agreement by 

failing to appear in court, despite repeated orders. 

On April 6, 2022, defendant appeared at his sentencing hearing. At the outset, the 

prosecution asked if the trial court had a tentative ruling, and the trial court answered,

“Yes. I am going to sentence [defendant] to six years in prison.” Defense counsel urged 

the trial court to consider residential drug treatment instead, and the trial court responded 

that it had considered the option “as a prospect.” However, when it reviewed defendant’s 

record, the court concluded that he was “too young, too reckless” and not ready for 

treatment. 

The trial court explained that defendant “had some violations in April and then 

June of 2020 and then September of 2020 and then February of 2021, April 2021. Then 

he picked up the new case. And when he picked up the new case, it was a case whereby 

he was going to get probation.” But, the court continued, instead of returning to court to 

“get his probation, [defendant] took off for a period of time, and he ultimately was 

arrested.” The court also noted that after his arrest, defendant was “talking jail talk to his 

mom,” who he had previously said he would avoid because they used drugs together. 

The trial court then quoted its statement from the plea hearing, where it said that 

defendant was “ ‘looking at six years in prison’ ” if he failed to return in April 2021. It 

explained, “This was a negotiated disposition between me and [defendant], and he said, ‘I 

understand.’ So he knew if he took off that he was going to get six years in prison. That 

was the stipulation by way of [defendant] and the Court and by way of his change of plea 

and the discussions of the plea. [¶] So I am going to give him what I told him I would 

even though there would have been differences along the way had [defendant] not really 

generated that jail talk all along.” 

Defense counsel interjected that she did not know the “interplay between the new 

sentencing laws with regards to the aggravating factors when there’s a Cruz waiver 
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violation,” and asked the court to consider at least the midterm based on defendant’s 

youth and lack of a prior prison sentence. The trial court responded, “Well, he was told 

that. So he said, ‘I understand.’ ” The court then stated that defendant was told, “ ‘But if 

you don’t show up, you just blow off the Court, that means, you know, you are going to 

get six years. Do you understand that?’ ‘I understand.’ [¶] So the fact is he did 

understand, he did acknowledge that, that was the stipulated agreement. . . . So I am 

finding that this was the agreement that was reached. . . . [¶] So I am sentencing 

[defendant] as I told him that I would, and that is to the aggravated term . . . of six years

in prison.” 

Defense counsel responded, “[J]ust because some of these new sentencing laws 

are getting hashed out, I would just like to note my objection to the aggravated term on 

the record.” The prosecutor rejoined that it would “like to bring up some more 

aggravating factors that the Court has mentioned,” and said that the victim was 

particularly vulnerable, that defendant took advantage of a position of trust because he 

knew the victim, and that defendant was receiving a favorable outcome because the

sentence in his other case would run concurrent rather than consecutive to the six-year

term.

The trial court responded, “Yeah. I thought that the victim was exceptionally 

vulnerable,” citing the victim’s statement in the probation report. The court continued: 

“[B]ack last year when [defendant] could have received the deal of his lifetime, after I 

read [the victim statement], when I was planning on sentencing [defendant] to probation, 

I thought, jeez, what a great deal that is. [The stolen property] was a vintage gun in 

premium condition, so what [defendant] did—he likes guns. His first crime involved 

possession of a handgun. [¶] So the aggravated term is not only appropriate because of 

the agreement that I reached with [defendant,] but also because of the factors in 

aggravation outweighing those in mitigation and the long failure to appear to court 

demonstrating a lack of interest in complying with court orders.” 
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Defense counsel again objected “because those aggravating factors weren’t pled 

and proven as required by the law now.” The prosecution said, “I don’t believe they have 

to, your Honor,” and the court rejoined, “Well, I am making the findings today as to 

those, so thank you.” 

The trial court sentenced defendant to the aggravated term of six years in prison in 

case No. 21F1285 and the middle term of two years in prison in case No. 19F4855, to be 

served concurrently. Defendant appealed. 

DISCUSSION

Defendant contends the trial court abused its discretion at sentencing in several 

ways: by erroneously believing that a Cruz waiver violation resulted in a six-year

stipulated term; by failing to find aggravating factors in compliance with newly amended 

section 1170, subdivision (b); and by failing to apply the presumptive lower term given 

defendant’s youth. (§ 1170, subd. (b)(6).) He argues that the errors were not harmless 

and require remand for resentencing. We agree with defendant that the imposition of the 

upper term failed to comply with the amended version of subdivision (b) of section 1170, 

and that the error was not harmless. We therefore need not consider defendant’s other 

arguments, as he is regardless entitled to remand for a full resentencing.

A. Senate Bill 567

Effective January 1, 2022, Senate Bill 567 amended section 1170 to limit the trial 

court’s discretion to impose a sentence greater than the midterm. (§ 1170, subd. (b)(1), 

(2), as amended by Stats. 2021, ch. 731, § 1.3.) To impose a sentence beyond the 

midterm, the sentence must be justified by the aggravating factors, and the facts 

underlying the circumstances must have been stipulated to by defendant or found true 

beyond a reasonable doubt, except that the trial court may rely upon certified records of 

conviction to find a prior conviction proven. (§ 1170, subd. (b)(1)-(3), as amended by 

Stats. 2021, ch. 731, § 1.3.) 
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B. Analysis

1. Aggravating factors

The trial court’s reliance on various aggravating factors to support imposition of 

the upper term did not comply with Senate Bill 567. 

We initially note that the trial court’s articulation of the aggravating factors was 

somewhat unclear, hindering our review. However, our best reading of the record reveals 

that the trial court expressly relied on three aggravating factors: (1) defendant stipulated 

to the upper term in the event he violated his Cruz waiver; (2) the victim was particularly 

vulnerable; and (3) defendant repeatedly failed to appear in court, which evinced 

indifference to compliance with court orders.3 

With respect to the first factor, the record does not reflect that defendant stipulated 

to the upper term if he violated the Cruz waiver. The plea form clearly states that 

defendant agreed to an “open” plea, with exposure of two years minimum and six years 

maximum if he violated the Cruz waiver. His attorney reiterated at the plea hearing that 

it was an “open plea to the six year max.” The trial court explained that the plea form 

meant defendant “could receive up to six years in prison” (italics added), and defendant

confirmed his understanding that if he failed to appear he was “looking at six years in 

prison.” Thus, the plea was explicitly an open plea, and the trial court’s (and counsel’s) 

comments to defendant at the plea hearing are best understood as describing defendant’s 

potential maximum sentence. They do not constitute a stipulation between the court and 

defendant to a six-year term. Accordingly, defendant did not stipulate to this factor. 

3 The People contend that the trial court relied on two additional aggravating 

factors, i.e., that defendant was on probation when he committed the burglary and that his 

prior performance on probation was unsatisfactory. But the record on these factors is 

unclear. It appears that the trial court referenced defendant’s “various violations of 

probation” to explain why it was imposing a prison sentence rather than sending him to 

drug treatment. It did not expressly list either factor as an aggravating factor supporting 

imposition of the upper term. 
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Defendant also did not stipulate that the victim was particularly vulnerable, or that 

he repeatedly failed to appear in court, demonstrating indifference to following court 

orders.4 Finally, neither the trial court nor a jury found any of the aggravating factors 

true beyond a reasonable doubt at a trial. Accordingly, resentencing is required unless we 

find the error was harmless.

2. Harmless error analysis 

To assess harmless error, we follow the two-step analysis set forth in People v. 

Zabelle (2022) 80 Cal.App.5th 1098, 1110-1115 (Zabelle). 

First, we must address whether “the trial court could have imposed the upper term 

sentence” (Zabelle, supra, 80 Cal.App.5th at p. 1112) consistent with the Sixth 

Amendment’s jury trial guarantee under the standard set forth in People v. Sandoval 

(2007) 41 Cal.4th 825, which requires us to determine whether the jury would have found 

true beyond a reasonable doubt at least one of the aggravating circumstances the trial 

court relied on. (Sandoval, supra, at p. 839.) Here, we agree with the People that a jury 

would have found true beyond a reasonable doubt that defendant had a “long failure to 

appear to court demonstrating a lack of interest in complying with court orders,” given 

his undisputed failure to appear in court on multiple occasions. Accordingly, there is no 

Sixth Amendment prejudice.

Turning then to the second step under Zabelle, we must assess whether the court 

“would have imposed the upper term sentence even absent the error” (Zabelle, supra, 80

Cal.App.5th at p. 1112) under the state law standard set forth in People v. Watson (1956) 

4 Even if we interpreted the trial court’s discussion of defendant’s failures to appear 

to mean that it found his performance on probation was unsatisfactory (Cal. Rules of 

Court, rule 4.421(b)(5)), defendant neither stipulated that he repeatedly failed to appear 

nor that his failures to appear rendered his performance on probation unsatisfactory. 

Similarly, defendant’s admission of several (unrelated) probation violations does not 

constitute a stipulation that his performance on probation was unsatisfactory. 
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46 Cal.2d 818. “In particular, we must consider whether it is reasonably probable that the 

trial court would have chosen a lesser sentence in the absence of the error. [Citation.]”

(Zabelle, at p. 1112.) “ ‘A “reasonable probability” “does not mean more likely than not, 

but merely a reasonable chance, more than an abstract possibility.” [Citation.]’ 

[Citations.]” (People v. Soto (2022) 79 Cal.App.5th 602, 610.)

We find that it is reasonably probable that the trial court would have chosen a 

lesser sentence had it not erred as described above. When sentencing defendant, the trial 

court afforded great weight to defendant’s purported “stipulation” to the upper term, 

referencing it multiple times, and concluding the aggravated term was appropriate 

“because of the agreement that I reached with [defendant],” before listing other

aggravating factors. Certainly, if the trial court believed defendant agreed to the upper 

term, this fact would not simply weigh in favor of the upper term; it would be dispositive. 

Moreover, the court referenced the victim’s vulnerability and defendant’s repeated 

failures to appear only after announcing the six-year sentence, and following prompting

by the prosecutor to list additional aggravating factors. And, it did not give any particular 

weight to those two factors. Thus, it is reasonably probable that the trial court would 

have imposed a lesser sentence had it complied with amended subdivision (b) of section 

1170. 

As the trial court’s error was not harmless, we vacate the sentence and remand for 

the trial court to conduct a full resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 

893.) 
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DISPOSITION

The sentence is vacated and the matter remanded with directions to resentence 

defendant in a manner consistent with current law. The judgment is otherwise affirmed. 

 KRAUSE , J.

I concur:

 McADAM , J. Pro Tem.* 

I concur in the result:

 MAURO , Acting P. J.

*

Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.