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Filed 5/16/23 P. v. Gage CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE SHANE GAGE,

Defendant and Appellant. C096533

(Super. Ct. No. P21CRF0100)

A jury found defendant Jesse Shane Gage guilty of one count of burglary

, two

counts of assault, and one count of dissuading a witness. Relying on seven aggravating

factors, t he trial court sentenced defendant to the upper term for the burglary

. The court

further sentenced defendant to a consecutive middle term for dissuading a witness and

stayed low term sentences for the assault counts

. Defendant argues we must remand for

resentencing because the trial court relied on multiple improper aggravating factors in

imposing the upper term for the burglary conviction

. The People concede. W e accept

that concession and reman d for resentencin g

.2 FACTUAL AND PROCEDURAL BACKGROUND

On February 23, 2021, defendant entered the home of a former friend, J .S.

, without permission and hit J.S. and J.S. ’s mother with a wrench. Defendant was charged

with burglary and two counts of assault. While J.S. was testifying a t the preliminary

examination on those charges

, d efendant verbally threatened J.S. ; as a result, the

prosecution also charged defendant with dissuading a witness from testifying

. At trial,

t he prosecu tion argued the specific intent element of the burglary charge was satisfied by

defendant’s use of the wrench

. A jury found defendant guilty of burglary of an inhabited

dwelling ( Pen

. Code

, § 459 ; further statutory references are to the Penal Code ) , assault of

two individuals with a deadly weapon ( § 245, subd. (a)(1) ) , and dissuading a witness by

force or threat ( § 136.1 , subd. (c)(1) )

. In a bifurcated proceeding

, the trial court found seven aggravating factors true

beyond a reasonable doubt , incl uding the following four : (1 ) defendant used a weapon at

the time of commission of the crime (Cal. Rules of Court, rule 4.421(a)(2) ; further rule

references are to the California Rules of Court ) ; ( 2) defendant’s prior convictions are of

increasing seriousness (rule 4.421(b)(2)); (3) defendant served a prior prison term (rule

4.421(b)(3)); and ( 4 ) defendant was on parole when the crimes were committed (rule

4.421(b)(4)).

The People argued three oth er aggravating factors also applied . First, they argued

defendant’s conviction for dissuading a witness met the standard for interference with a

judicial process under rule 4.421(a)(6) (the interference factor). Second, they cited

defendant’s prior convi ctions with concurrent sentences and argued that those convictions

met the factor under rule 4.421 (a)(7) for convictions of other crimes for which

consecutive sentences could have been imposed but for which concurrent sentences are

being imposed (the concu rrent sentence factor). And third , relying on defendant’s assault

with a wrench, they argued defendant engaged in violent conduct under rule 4.421(b)(1)

(the violent conduct factor). The trial court found these three other factors true.3

At sentencing, defendant asked the trial court to impose the low term and pointed

to certain factors in mitigation , including the fact that no injuries resulted from these

crimes

. Noting the seven aggravating factors found true in the bifurcated proceeding and

concluding those factors outweighed any in mitigation , t he trial court imposed the upper

term of six years for the burglary conviction. The court stayed low term concurrent

sentences under section 654 for the assault coun ts and imposed a three

- year consecutive

term for dissuading a witness.

Defendant filed a timely notice of appeal. He argues (1) the trial court erred by

improperly relying on the interference factor, the violent conduct factor , and the

concurrent sentence factor in selecting the upper term for burglary ; and (2) remand is

required because the error was prejudicial

. The People concede and we accept their

concession

.

DISCUSSION

I

The trial court erred in relying on certain aggravating factors to impose the upper term

under section 1170, subdivision (b)

Section 1170, subdivision (b)(1) applies when the trial court imposes a judgment

of imprisonment and the statute specifies three possible terms, generally described as the

upper, middle, and low terms

. The court cannot select the upper term unless the facts

supporting the aggravating circumstances are , as relevant here, proven to the court

beyond a reasonable doubt or are based on prior convictions evidenced by a certified

record of conviction. ( People v. Jones (2022) 79 Cal.App. 5th 37, 44.) The California

Rules of Court provide a nonexhaustive list of aggravating factors the court may

consider. ( R ule 4.421

. ) T he parties agree the trial court improperly relied on the

interference factor, the violent conduct factor , and the concurrent sentence factor

. ( R ule4

4.421 (a)(6)

, (7) & (b)(1) .) The trial court’s errors as to those factors are clear from the

record

. A sentencing court may not use the same factor to choose the aggravated sentence

and impose a consecutive sentence. ( People v. Williams (1986) 180 Cal.App.3d 57, 62;

rule 4.425(b).) The trial court violated this dual use rule

. It sentenc ed defendant to a

consecutive term for dissuading a witness and re l ied on defendant’s conduct underlying

that conviction as the basis for finding the interference factor true.

The trial court also violated another dual use rule, namely the rule prohibiting a

fact that is an element of the crime on which punishment is being imposed from being

considered in choosing a term from the applicable triad

. ( People v. Burbine (2003)

106 Cal.App.4th 1250, 1261; rule 4.420(h).) T he People concede that violent conduct

was an element of the burglary for which defendant was convicted and was also used

,
under the violent conduct factor, to aggravate defendant’s sentence for that crime.

Lastl y, the trial court misinterpreted the concurrent sentence factor

. This factor

applies when “ [ t ] he defendant was convicted of other crimes for which consecutive

sentences could have been imposed but for which concurrent sentences are being

imposed

. ” ( R ule 4.421(a)(7) , italics added .) Based on its plain language, this factor

concerns convictions in the case before the court

, not prior convictions

. The People

concede the trial court impr operly relied on defendant’s prior felony conviction s in

applying this factor and further concede no other crimes in this case implicate this factor.

II

T he trial court’s error was prejudicial

When the trial court has relied on improper aggravating factors , the reviewing

court must determine whether the trial court’s error was harmless. ( People v. Zabelle

(2022) 80 Cal.App.5th 1098, 1110 .) Under the harmless error test

, the reviewing court

“must consider whether it is reasonably probabl e that the trial court would have chosen a

lesser sentence in the absence of the error. ” ( Id. at p. 1112

. ) Here we must determine5

whether it is reasonably probable the trial court would have chosen a lesser sentence had

it considered only the four remaining aggravating circumstances, namely, defendant’s use

of a weapon, his prior convictions

, his prior prison term, and his parole status.

As in Zabelle , “ we are not convinced the trial court would have found these

circumstances alone sufficient to w arrant imposition of the upper term sentence.”

( People v. Zabelle

, supra , 80 Cal.App.5th at p. 1115.) “The trial court gave no particular

weight to any of its listed aggravating circumstances. Nor did it indicate whether its

decision to impose the upper term was (or was not) a close call.” ( Ibid .) The trial court

laid out the true aggravating factors and found those factors did not outweigh any

mitigating factors

. O n this record, we cannot determine whether the trial court would

have issued the same sentence had it been left with only the four aggravating

circumstances ; thus, we r emand for resentencing.6 DISPOSITION

Defendant ’ s sentence is vacated and the case remanded to the trial court for

resentencing

. After resentencing, the trial court must prepare an amended abstract of

judgment and forward a certified copy to the Department of Corrections and

Rehabilitation.

/s/ MESIWALA, J.

We concur:

/s/ DUARTE, Acting P. J.

/s/ BOULWARE EURIE, J.