1

Filed 7/19/22 P. v. Tynsky CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.
CHRISTOPHER JOHN TYNSKY,

Defendant and Appellant. C095176
(Super. Ct. Nos. 20CF03287, 20CF03988)

D efendant Christopher John Tynsky was convicted in separate prosecutions for , respectively, possession of a concealed dirk or dagger (Pen. Code, § 21310) 1 and possession of ammunition by a person prohibited from owning or possessing a firearm (§ 30305) . The trial court sentenced defendant to two years’ probation

. Shortly thereafter, as defendant admitted, he violated the terms and conditions of probation. The

1 Undesignated statutory references are to the Penal Code.2

trial court denied defendant’s request to reinstate probation and imposed the upper term of three years on the section 21310 offense and a consecutive sentence of eight months (one

- third the middle term) on the section 30305 offense

. On appeal, defendant contends the legislative change s to section 1170 made by
Senate Bill No. 567 ( 2021

- 2022 Reg. Sess. ) (Senate Bill 567) and Assembly Bill No. 124 (2021

- 2022 Reg. Sess.) (A ssembly B ill 124) require remand for resentencing. We conclude that, while the changes to section 1170, subdivision (b)(1)

- (3) made by Senate
Bill 567 may not require remand in this instance, the change s proposed by Assembly
Bill 124 to section 1170, subdivision (b)(6) d o

. 2 Therefore, we remand for resentencing.
In addi tion, under Assembly Bill No. 1869 (2019

- 2020 Reg. Sess.) , we vacate the probation supervision fee imposed by the trial court.

FACTUAL AND PROCEDURAL BACKGROUND The amended petition for hearing regarding violation of probation alleged that in June 2021 defendant was granted two years’ formal probation in a case involving violation of section 21310 and a separate case involving violation of section 30305. The petition alleged that defendant violated probat ion in three instances in August and

2 Assembly Bill 124 is not independently operative. In 2021, three bills proposing changes to section 1170 were enacted by the Legislature and signed by the Governor on the same day: Assembly Bill 124 (Stats. 2021, ch. 695, § 5) , Assembly Bill No. 1540 (2021

- 2022 Reg. Sess .) (Stats. 2021, ch. 719 , § 2 ) , and Senate Bill 567 (Stats. 2021, ch. 731, § 1.3). (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038 ( Flores I ) ; People v

. Banner (2022) 77 Cal.App.5th 226, 243 , fn. 2 (conc. & dis. opn. of Detjen, J. ) .) Since Senate Bill 567 was the last bill the Governor signed and bears the highest chapter number, its amendments to section 1170 prevail over the amendments to that section specified in the other two bills. (Gov. Code, § 9605, subd. (b); In re Thierry S. (1977) 19 Cal.3d 727, 738

- 739.) However, Senate Bill 567 states that if that bill is enacted last of the three , section 1.3 of the bill incorporating the amendments proposed by Assembly Bill 124 and Assembly Bill No. 1540 shall become operative. (Stats. 2021, ch. 731, § 3.) Therefore, the amendments to section 1170, subdivision (b) (6) that defendant contends were made by Assembly Bill 124 became operative only through Senate Bill 567

.3

September 2021. After initially denying the probation violations, defendant changed his plea and admitted them. At the sentencing hearing, the trial court stated that it had reviewed and considered a 2018 probation re port and three supplemental 2021 probation reports. These reports documented defendant’s multiple convictions and sustained juvenile petitions , as well as the fact that he was on probation at the time he committed the underlying offenses.
Defendant’s ext ensive juvenile record, detailed in the 2018 probation report, beg an with a sustained petition for exhibiting a deadly weapon (§ 417, subd

. (a)(1)) in 2007 and
conclude d with five sustained petitions for robbery (§ 211), which resulted in defendant’s
commi ssion to the California Youth Authority from 2010 until 2017. Defendant’s juvenile record also included multiple probation violations

. Defense counsel requested that the court reinstate probation and give defendant “a
mental health evaluation because I b elieve part of his issue is mental health. When I talked to him, he indicated as a juvenile he was diagnosed with, I think it was schizophrenia, bipolar, and other mental health issues.” Alternatively, defense c ounsel urged the court to impose the middle or lower term prescribed for the offenses

. The trial court found a factual basis for the change of plea and probation violations, adjudged defendant guilty of the underlying offenses, and found true the violation of probation. The court determined that defendant was statutorily ineligible for probation except in an unusual case (§ 1203, subd

. (e)(4)) and that defendant did not meet the criteria for an unusual case (Cal

. Rules of Court, rule 4.413). 3 The court further stated that, even if defendant were not statutorily ineligible, probation would be denied, inter alia, because defendant’s “prior record of criminal conduct indicates a pattern of regular and increasingly serious criminal conduct

. . . . ”

3 Undesignated rule references are to the California Rules of Court.4

T he trial court stated it had reviewed the circumst ances in aggravation ( r ule 4.421) and mitigation ( r

ule 4.423), concluding that the former outweighed the latter and the upper term was the appropriate term. The court further explained: “Specifically in aggravation, the Court would note the defendant’s s ustained petitions as a juvenile are numerous or of increasing serious ness in nature. The defendant’s prior performance on juvenile probation was unsatisfactory. [¶] In mitigation, the Court would not e defendant’s long

- standing controlled substance addiction, and I take at face value the statements of Counsel of possible mental health condition that could have impacted his
conduct. I have weighed all of these factors in aggravation and mitigation and f ind that the upper term is the appropriate term. ”
DISCUSSION
I
Senate Bill 567
Defendant contends that the amendments made by Senate Bill 567 to section 1170, including subdivision (b)(1)

- ( 2 ) and (6) , constitute ameliorative legislation that appl ies

retro actively to cases such as his still pending on appeal and require s this court to vacate his sentence and remand to the trial court for resentencing

. As amended, s ection 1170, subdivision (b)( 1 ) provide s that a trial court “ may impose an upper term sentenc e only where there are aggravating circumstances , and the defendant has either stipulated to the facts underlying those circumstances or such facts
have been found true by a judge or jury beyond a reasonable doubt. (§ 1170, subd. (b)(1)

- (2) .) In making this determination, the ‘ court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. ’ (§ 1170, subd. (b)(3); Stats. 2021, ch. 731, § 1 .) ” ( People v. Flores (2022) 75 Cal.App.5th 495, 500 ( Flores II ) .) Section 1170, subdivision (b)(6) provides in relevant part: “ [ U] nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that5

imposition of the lo wer term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical,

or childhood trauma, including, but not limited to, abuse, neglect, exploitation or se xual
violence.” The Attorney General concedes the se amendments are retroactive and apply to
defendant’s nonfinal case pending on appeal

. We accept the Attorney General’s concession. ( See Flores II , supra , 75 Cal.App.5th at p. 500; Flores I , supra , 73 Cal.App.5th at p. 1039.) The Attorney General contends, however, that defendant does not benefit from the
amendments to section 1170 , subdiv ision (b)

. We begin with section 1170, subdivision (b)(1)

- (2) . D efendant did not stipulate to the aggravating circumstances specified by the trial court in imposing the upper term , nor were they found true beyond a reasonable doubt. The Attorney General argues that the court relied on certified records of prior convictions, citing instances in the record where
the trial court stated that it had revie wed certified records of defendant’s prior convictions or juvenile adjudications. Although r emand might b e unnecessary given certified records of defendant’s prior convictions and juvenile adjudications, as well as his poor performance on probation, documented in the probation report s the trial court had reviewed ( s ee Flores II , supra , 75 Cal.App.5th at pp. 500

- 501 ) , w e need not reach this issue, because we conclude remand is required under section 1170, subdivision (b)(6). In support of remand under section 1170, subdivision (b)(6), defendant cites portions of the record , inter alia , that : (1) in striking the strike prior, the trial court observed that “the defendant, as noted by defense counsel, suffered a difficult childhood and transition in early adult life”; (2) defendant’s father was disabled and his mother had
been incarcerated for drug possession; (3) defendant was declared a ward of the court at6

age 14 in 2007; (4) since age 17, defendant had been incarcerated for most of his life and , when not incarcerated , he was homeless; (5) from the age of 12, defendant ’s marijuana

use was ex tensive , and since his release from California Youth Authority in 2017 , he ha d been addicted to methamphetamine; (6) in the 2018 probation report, defendant stated that he had been diagnosed with bipolar disease and schizophrenia while in “ ‘ DJJ ’ ” but
the n was “ ‘ undiagnosed ’ ”; and (7) after being recently terminated from a rehabilitation program, defendant reported he was depressed and suicidal.
F urther , as mentioned, at sentencing defense counsel request ed a mental health
evaluation and the court took “at face value” defense counsel’s statements of “possible mental health condition that could have impacted [defendant’s] conduct .

. . .” Defendant argues that this record shows that he “suffered from significant and extensive trauma throughout his l ife .

. . .” The Attorney Genera l responds that (1) defendant failed to explain how the circumstances he cites qualify as psychological trauma within the meaning of section 1170, subdivision (b)(6), thereby forfeiting the
issue ; (2) the circumstances that defendant relies on do not in fact constitute psychological trauma under the statute ; and (3) there is no evidence that defendant’s
claimed trauma contributed to his commission of the offenses

. The Attorney General misses the point.
The trial court d id not have the benefit of section 1170, subdivision (b)(6) at the time of defendant’s sentencing hearing and as such, did not conduct the analysis required
of th at section. When the trial court imposed sentence, d efendant was not entitled to a presumptive lower term upon a showing that mental illness resulted in psychological

trauma , which was a “contributing factor in the commission” of his offenses. (§ 1170, subd. (b)(6).) Defendant thus h ad less incentive to develop a record regarding these
issue s. By the same token, the trial court had less incentive to assess whether psychological trauma was a contributing factor. ( See People v. Banner , supra , 77 Cal.App.5th at p. 242 [“record is likely incomplete relative to statutory factors enacted7

after judgment [is] pronounced”], citing People v. Frahs (2020) 9 Cal.5th 618, 637

- 638 .) When a sentencing court is unaware of the scope of its discretionary powers, “ the appropriate reme dy is to remand for resentencing unless the record ‘ clearly indicate[s] ’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion

. ’ ” ( People v

. Gutierrez (2014) 58 C al.4 th 1354, 1391

. ) The record before us does not make it clear that the trial court would have imposed the upper term had section 1170, subdivision (b)(6) been in effect at the time. ( Banner , at p. 242 .) On remand, defendant , as well as the Attorney General, will have t he opportunity to present additional evidence and information to permit the trial court to make the necessary findings and exercise the discretion afforded by section 1170, subdivision (b )

. 4
II Assembly Bill No. 1869 When defendant was placed on probation, the trial court imposed a probation fee under section 1203.1b of $164 per month for 24 months. After defendant violated probation, the court ordered defendant to pay all fines and fees previously ordered. Assembly Bill No. 1869 (2019

- 2020 Reg. Sess.) , operative July 1, 2021, repealed
former section 1203.1 b (Stats. 202 0 , ch. 92, § 47), and enacted section 1465.9, which provides in relevant part: “The balance of any court imposed costs pursuant to Section

. . . 1203.1b

. . . , as [that] section [ ] read on June 30, 2021, shall be un enforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (a) ; Stats. 2020, ch. 92, § 62 .)

4 Becau se we remand for resentencing, we need not reach defendant’s claim of error , based on People v. Dueñas (2019) 30 Cal.App.5th 1157, that assessments and a restitution fine imposed in his sentence without a determination of his ability to pay them violated d ue process

. ( People v. Buycks (2018) 5 Cal.5th 857, 893.)8

Accordingly, any balance still owing of the $164 monthly cost of probation fee imposed pursuant to section 1203.1b is now “ unenforceable and uncollectable.” (§ 1465.9, subd. (a).) Further, the portion of the judgment imposing such costs must be
vacated. ( People v. Greeley (2021) 70 Cal.Ap p.5th 609, 626

- 627 ; People v. Pacheco (2022) 75 Cal.App.5th 207, 214

- 215 .)
DISPOSITION
The case is remanded to the trial court to resentence defendant consistent with section 1170, subdivision (b). The order imposing a monthly probation supervision fee of $164 is vacated. In all other respects, the judgment is affirmed.

/s/ EARL, J.

We concur:

/s/ ROBIE, Acting P. J.

/s/ MAURO, J.