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Filed 5/1/23 P. v. Sanford 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

SAMUEL SANFORD,

Defendant and Appellant.

C095503

(Super. Ct. Nos. 21CF04465, 

21CF04671)

After the trial court found defendant Samuel Sanford guilty of attempted arson and 

resisting a peace officer, it imposed a sentence that included the three-year upper term on 

the attempted arson conviction. On appeal, defendant argues insufficient evidence 

supports his attempted arson conviction and the case must be remanded for resentencing 

because the trial court’s imposition of the upper term sentence does not satisfy the new 

requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which 

took effect while his appeal was pending and applies retroactively to his case. We 
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conclude sufficient evidence supported defendant’s conviction, and Senate Bill 567 is an 

ameliorative statute that applies retroactively to defendant’s nonfinal case, but that any 

error in imposing the sentence was harmless. Thus, we affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

This appeal involves the joint sentencing in two cases. In case No. 21CF04465, 

defendant pleaded no contest to bringing methamphetamine into a jail facility. (Pen. 

Code, § 4573.5; statutory section citations that follow are found in the Penal Code unless 

otherwise stated.) Before defendant was sentenced, the prosecution charged him with 

attempted arson (§ 455, subd. (a)), resisting a peace officer (§ 148, subd. (a)(1)), and 

possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)) in case No. 

21CF04671. The prosecution also alleged defendant committed the attempted arson 

while he was released on bail or his own recognizance. (§ 12022.1.) The prosecution 

later dismissed the count charging possession of drug paraphernalia. 

At trial, two witnesses testified for the prosecution. The first, a city park 

employee, testified she saw defendant in a park one morning. She saw defendant bent 

over a stump with an open flame. Defendant was holding the flame “towards the stump, 

like he was trying to light something on the stump on fire.” Defendant did the same thing 

a “couple of times.” She could not tell if defendant was using a lighter or just a lit match. 

The witness called police and continued to watch defendant. She was concerned 

defendant was going to start a fire on top of the stump, although she did not see if there 

was anything on top of the stump. 

Police Sergeant John Sanzone testified he responded to a report of a man trying to 

start a fire in a local park. When he arrived at the park, he saw defendant crouched near a 

tree stump in a field holding an open flame. The flame was less than an inch from the 

ground. Sergeant Sanzone noted there was dry vegetation in the area. There was 

currently an active forest fire burning in the area and there had been a recent arson 
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nearby. The sergeant arrested defendant and found a lighter in his pocket. He also found 

a glass pipe for smoking methamphetamine. 

The trial court found defendant guilty of attempted arson and resisting a peace 

officer and found true the enhancement allegation. At the sentencing hearing, the court 

noted it had read and considered the probation report, which noted defendant had 

received three felony convictions and three misdemeanor convictions since 2011. 

Defendant had served terms in state prison and had multiple probation and parole 

violations. Defense counsel acknowledged defendant’s “prior history,” but noted the 

offenses in the current case were drug related and asked defendant be placed in a 

treatment program. The prosecutor argued defendant had received ample opportunities to 

seek treatment and had a track record that included 12 separate violations during his most 

recent parole term. 

In aggravation, the court found defendant had numerous prior convictions; had 

served prior prison terms; and his prior performance on probation and parole was 

unsatisfactory. The court found no mitigating factors. Thus, the court imposed the upper 

term of three years for the attempted arson conviction, for a total aggregate sentence of 

five years eight months. 

DISCUSSION

I

Insufficient Evidence

Defendant argues there was insufficient evidence to support the specific intent of 

the attempted arson conviction because no evidence shows defendant was trying to light 

the vegetation on fire, rather than his methamphetamine pipe. 

When considering a claim of insufficient evidence, we examine the entire record 

to assess whether any rational trier of fact could have found the defendant guilty beyond 
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a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, “we review 

the evidence in the light most favorable to the prosecution and presume in support of the 

judgment the existence of every fact the jury could reasonably have deduced from the 

evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable 

suspicion do not justify the reversal of a judgment, for it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and the truth or falsity of the 

facts upon which a determination depends. [Citation.] We resolve neither credibility 

issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] 

A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s 

verdict. [Citation.]” (Ibid.) 

Section 455 defines attempted arson, saying, “Any person who willfully and 

maliciously attempts to set fire to or attempts to burn or to aid, counsel or procure the 

burning of any structure, forest land or property, or who commits any act preliminary 

thereto, or in furtherance thereof, is punishable by imprisonment in the state prison . . . 

[¶] The placing or distributing of any flammable, explosive or combustible material or 

substance, or any device in or about any structure, forest land or property in an 

arrangement or preparation with intent to eventually willfully and maliciously set fire to 

or burn same, or to procure the setting fire to or burning of the same shall, for the 

purposes of this act constitute an attempt to burn such structure, forest land or property.” 

“ ‘In order to establish an attempt, it must appear that the defendant had a specific intent 

to commit a crime and did a direct, unequivocal act toward that end; preparation alone is 

not enough, and some appreciable fragment of the crime must have been 

accomplished.’ ” (People v. Archibald (1958) 164 Cal.App.2d 629, 633.) 

Adequate evidence supports the trial court’s conclusion that defendant intended to 

set fire to the stump or other vegetation in the park. An eyewitness testified that she saw 

defendant holding an open flame close to a tree stump in the park, as if he was “trying to 
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light something on the stump on fire.” Her testimony was corroborated by Sergeant 

Sanzone, who arrived shortly thereafter and saw defendant doing the same thing very 

close to the ground near dry vegetation. A trier of fact could reasonably conclude, based 

on defendant’s continued efforts to hold an open flame near flammable objects, that he 

intended to start a fire. That defendant failed to do so in the observed time does not mean 

that he lacked the necessary intent. Nor does the fact that defendant could have been 

attempting to light a pipe to smoke methamphetamine; our task in substantial evidence 

review is not to determine whether there are alternative conclusions the trier of fact could 

have reached, but only whether the trier of fact’s actual conclusion is reasonable. (People 

v. Zamudio, supra, 43 Cal.4th at p. 357.) 

We are similarly unpersuaded by defendant’s reliance on People v. Carrasco 

(2008) 163 Cal.App.4th 978 and People v. Archibald, supra, 164 Cal.App.2d 629. In 

both cases, the respective courts found sufficient evidence for attempted arson 

convictions, but neither set a floor for the amount or type of evidence required for such a 

conviction, and thus neither requires a contrary finding in this case. (Carrasco, at 

pp. 983-984; Archibald, at p. 633.) And neither case established a requirement of

“statements” by defendant or proof of specific motive to find specific intent. We 

conclude substantial evidence supported the attempted arson conviction.

II

Senate Bill 567

Senate Bill 567 became effective January 1, 2022. (Stats. 2021, ch. 731; Cal. 

Const., art. IV, § 8, subd. (c).) The bill introduced changes generally prohibiting a trial 

court from imposing an upper term sentence except where there are circumstances in 

aggravation of the crime that justify imposing the upper term, and the facts underlying 

those circumstances (1) have been stipulated to by the defendant, or (2) have been found 

true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. 
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(§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) An exception to this rule 

authorizes the court to consider defendant’s prior convictions in determining sentencing 

based on certified records of conviction without submitting the prior convictions to the 

jury. (§ 1170, subd. (b)(3), added by Stats. 2021, ch. 731, § 1.3.)

We agree with the parties that Senate Bill 567 is retroactive and applies to this 

nonfinal case. The act provides an opportunity for defendant to receive a lesser penalty, 

and there is no indication the Legislature intended the act to apply prospectively only. (In 

re Estrada (1965) 63 Cal.2d 740, 746.) 

The facts underlying the court’s three findings for imposing the upper term for the 

attempted arson conviction (1) that defendant had numerous prior convictions (2) had 

served prior prison terms, and (3) had unsatisfactory performance on probation and 

parole -- were not found true by a trier of fact or stipulated to by defendant. Accordingly, 

applying Senate Bill 567 retroactively, it was error to consider those factors as supporting 

the imposition of an upper term sentence.

Notwithstanding the Attorney General’s concession that this error requires

remand, we conclude any error is harmless. 

Senate Bill 567 is now the statutory means by which California provides criminal 

defendants their Sixth Amendment right to a jury trial on upper-term sentencing factors. 

Defendant raises no Sixth Amendment violation here. He solely focuses on his state right 

under Senate Bill 567. To find harmless error for state law error, we apply the standard 

set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). Under that standard, “we 

must find that the trial [court] would have imposed the upper term sentence even absent 

the error. 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.” (People v. 

Zabelle (2022) 80 Cal.App.5th 1098, 1112.)

To apply this test, we ask two questions. For each aggravating fact, we must 

consider “whether it is reasonably probable that the [trier of fact] would have found the 
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fact not true. We must then, with the aggravating facts that survive this review, consider 

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

had it considered only these aggravating facts.” (People v. Zabelle, supra, 

80 Cal.App.5th at p. 1112.) “A reasonable probability . . . does not mean more likely 

than not; it means a reasonable chance and not merely a theoretical or abstract possibility. 

[Citations.]” (People v. Woods (2015) 241 Cal.App.4th 461, 474 [applying Watson

standard to omission of instruction on lesser included offense].)

Defendant’s criminal record was not subject to significant dispute. The probation 

report indicated defendant had received three felony convictions and three misdemeanor 

convictions since 2011, had been incarcerated in state prison for three of those 

convictions, and had been unsuccessful on probation and parole in that he had violated 

probation, parole, or community supervision 18 times. While we are mindful that 

defendant’s incentive and opportunity to contest the probation report was “not necessarily 

the same as they would have been had the aggravating circumstances been tried to a 

jury,” defense counsel acknowledged defendant’s “prior history” at the sentencing 

hearing and did not respond when the prosecution pointed out defendant’s poor 

performance under supervision. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) 

Moreover, none of these factors rested on a “somewhat vague or subjective standard,” 

and it is thus unlikely a trier of fact would assess the facts differently. (Id. at p. 840.) We 

conclude there is not a reasonable probability the court or a jury would have found these

facts not true. 

Because these facts are the only facts the trial court relied on to impose the upper 

term, and the trial court found no mitigating circumstances, we have no doubt the trial 

court would have imposed the upper term had the facts been found true beyond a 

reasonable doubt. Therefore, we conclude any error here is harmless.
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DISPOSITION

The judgment is affirmed. 

 

HULL, J.

I concur:

 

ROBIE, Acting P. J.
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MAURO, J., Concurring and Dissenting.

I fully concur in the majority opinion with the exception of part II, as to which I 

dissent. In part II, the majority concludes that although the imposition of the upper term 

sentence does not now comply with the amended statutory requirements of Penal Code 

section 1170, subdivision (b), the lack of statutory compliance is nevertheless harmless. 

I disagree.

The trial court sentenced defendant to the upper term without the benefit of Senate 

Bill No. 567 (2021-2022 Reg. Sess.), which amended Penal Code section 1170, 

subdivision (b) to provide that a trial court may only impose an upper term sentence if 

aggravating circumstances are stipulated to by the defendant, have been found true 

beyond a reasonable doubt, or are based on a certified record of conviction. (§ 1170, 

subd. (b)(1)-(3); Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022.) I do not agree that the trial 

court’s findings of aggravating circumstances were harmless given the current statutory 

requirements.

_________________________

MAURO, J.