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Filed 2/24/23 P. v. Hackett CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Don a van 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.2 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 N o. 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 N o. 21F1285 )

. Defendant stipulated that the factual basis fo r the plea was found in the Shasta County Sheriff’s Department r eport. The plea agreement contained a Cruz 2 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 , “ S hould 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

respon ded , “I understand

. ”

1 Undesignated statutory references are to the Penal Code.

2 People v. Cruz (1988) 44 Cal.3d 1247

.3

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 r eady 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 wa s 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, defend ant 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 [defe ndant] 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 a ll 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 waiver4

violation,” and asked the court to consider at least the midterm based on defen dant’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 wa s the agreement that was reac hed.

. . . [¶] So I am sentencing [defendant] as I told him that I would, and that is to the aggravated term

. . . o f six years in prison .” Defense counsel responded, “ [J] ust because some of these new sentencing laws are getting hashed out, I would jus t 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 to ok 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 , “ Yea h. 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.”5

Defense counsel again objected “because those aggravating factors w eren’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 ag gravated term of six years in prison in

case No. 21F1285 and the mid dle 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 low er 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 subdivis ion (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 t he 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 up on certified records of conviction to find a prior conviction prove n. (§ 1170, subd. (b)(1)

- (3), as amended by Stats. 2021, ch. 731, § 1.3.)6

B. Analysis
1. Ag gravating 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 st ipulated 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 fir st 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

. I t appears that t he 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 t he upper term.7

Defendant also did not stipulate that the victim was particularl y vulnerable, or that
h e repeatedly failed to appear in court , demonstrat ing 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, wh ich 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 fou nd 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.5 th 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 rep eatedly 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

.8

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 pro bability” “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 w ould 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 p rosecut or 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 s ection
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 .)9 DISPOSITION
The sentence is vacated and the matter rem anded 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.