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Filed 3/15/24 P. v. Kamilchu 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD KAMILCHU,

Defendant and Appellant.

C096908

(Super. Ct. No. 18FE001319)

Defendant Eduard Kamilchu was found guilty of arson and sentenced to the upper 

term of eight years. On defendant’s original appeal, we remanded for the trial court to 

resentence defendant under recently amended Penal Code1section 1170. On remand, the 

trial court again imposed the upper term based on two aggravating factors related to 

defendant’s prior convictions. Defendant appeals again; now he contends the trial court’s 

1 Undesignated section references are to the Penal Code.
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sentence violated amended section 1170 because it relied on facts not found true by a jury 

beyond a reasonable doubt. We agree and vacate defendant’s sentence and remand for 

another resentencing hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant stayed at his ex-girlfriend’s house after she gave birth to their child 

even though she had a restraining order against him. When law enforcement officers 

attempted to arrest defendant, he barricaded himself upstairs and threw objects down the 

stairs at officers, including a lit cannister of kerosene that exploded and caught the house 

on fire. The jury found defendant guilty of arson. (People v. Kamilchu (Feb. 28, 2022, 

C092636) [nonpub. opn.].)2 

At the original sentencing hearing the trial court found defendant violated his 

probation and imposed the upper term of eight years. Defendant appealed and we 

remanded for the trial court to “resentence defendant consistent with the changes effected 

by Senate Bill No. 567” (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567). 

(People v. Kamilchu, supra, C092636.) 

At the resentencing hearing the prosecutor introduced two exhibits. The first was 

a set of certified documents relating to defendant’s 2017 conviction for domestic violence

in case No. 17MI000498. The second exhibit was a transcript of defendant’s testimony at 

his trial where he conceded to having a driving under the influence conviction in 2010, a 

prior misdemeanor restraining order violation, and a prior misdemeanor domestic 

violence conviction in 2017. 

The trial court then found based on “the certified copy, plus . . . [d]efendant’s 

admissions in court to those convictions, the [c]ourt would find that he suffered those 

convictions and that it demonstrates a record of increasing seriousness.” The court 

2 We granted defendant’s motion to incorporate the record from his previous appeal. 
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explained it was “very important” that during trial it established the victim was “the same 

person that was the subject of all of the drama that led to this conviction for arson in this 

case. . . . [¶] . . . [¶] So sometimes maybe misdemeanors aren’t considered as records 

of increasing seriousness, but in this case absolutely because it involves the same victim 

as in the other case.” The court also found defendant was “clearly on probation at the 

time of” the arson. Thus, the court concluded, “[B]ased on those three factors of his prior 

convictions, his record of increasing seriousness, and unsatisfactory performance while 

on probation, the [c]ourt finds that those aggravating factors are sufficient.” 

The trial court added, “[A]ny one of those aggravating factors is sufficient to 

aggravate this case to where the [c]ourt would impose the upper term of eight years, 

which this [c]ourt has previously imposed. [¶] I find that because of the circumstances 

involved in this case and the unique circumstances in the case he was convicted on, as 

well as the unique circumstances on the [2017 domestic violence case] with the same 

victim being involved, that I would think that any one of these aggravating factors would 

be sufficient in the [c]ourt’s view to impose the upper term on this case.” The court then 

summarized the facts underlying defendant’s arson conviction and concluded, “So I think 

in the interest of justice and to ensure public safety the only proper sentence in this case 

is the upper term. The [c]ourt will impose the sentence on the arson of the upper term of 

eight years.” The court also ordered the same credits and fee terms as ordered at the 

original sentencing. Defense counsel then put on the record an objection to the court 

using defendant’s prior trial testimony as an admission to his prior convictions. 

Defendant appeals. 

DISCUSSION

I

The Trial Court Prejudicially Erred In Imposing The Upper Term

Senate Bill 567 amended section 1170, subdivision (b) so that, among other 

things, aggravating circumstances now only justify the imposition of an upper-term 
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sentence if “the facts underlying those circumstances have been stipulated to by the 

defendant or have been found true beyond a reasonable doubt at trial by the jury or by the 

judge in a court trial.” (§ 1170, subd. (b)(2), as added by Stats. 2021, ch. 731, § 1.3.) 

The amended statute includes a third method of factfinding, which allows courts to 

“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).)

Defendant argues the trial court erred in imposing the upper term at resentencing 

because the trial court engaged in impermissible factfinding to support several of the 

aggravating factors. The People concede the aggravating factors based on defendant’s 

prior convictions did not meet the evidentiary requirements of section 1170. But they 

argue reversal is not required because “there is no reasonable probability that the jury 

would not have found that [defendant’s] crimes were increasing in seriousness and that 

his prior performance on probation was unsatisfactory.” We conclude there was 

reversible error.

The trial court found two aggravating factors: (1) defendant was on probation at 

the time of the crime, and (2) defendant’s prior convictions as an adult are numerous or 

of increasing seriousness. (See Cal. Rules of Court, rule 4.421(b)(2) & (4).)3 There are 

two issues with these findings. First, although a certified record of conviction supported 

defendant’s 2017 conviction, the other two prior convictions were not supported by a 

3 The trial court said it relied on “three factors,” with one being “his prior 

convictions.” But there is no enumerated aggravating factor for just prior convictions. 

(See Cal. Rules of Court, rule 4.421.) And it may violate the prohibition against dual use 

of facts in sentencing to use his prior convictions for both its own factor and for the

increasing in seriousness factor. (§ 1170, subd. (b)(5); Cal. Rules of Court, rule 

4.420(g).) Regardless, a review of the court’s entire analysis establishes it considered 

defendant’s prior convictions in establishing these two aggravating factors, not as an 

independent factor.
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certified record of conviction. There is no provision in section 1170 permitting a 

defendant’s prior testimony at trial to support an aggravating circumstance.

Second, even if a certified record of conviction established all prior convictions, 

the trial court relied on facts beyond the existence of the convictions. Courts typically

may determine whether past convictions are numerous or of increasing seriousness when 

it requires “consideration of only the number, dates, and offenses of the prior convictions 

alleged.” (People v. Black (2007) 41 Cal.4th 799, 819-820.) But courts cannot “engage 

in factfinding about the specifics of the offenses or to make subjective value judgments as 

to the relative seriousness of similar crimes.” (People v. Wiley (2023) 97 Cal.App.5th 

676, 687.)

Here, the trial court acknowledged “misdemeanors aren’t considered as records of 

increasing seriousness,” but what made this case different to the trial court was that the 

current offense and the prior domestic violence case “involve[d] the same victim.” Even 

if this is true, the significance of this fact and whether it indicates increasing seriousness

is a subjective value judgment, one not found true by a jury beyond a reasonable doubt.

We also agree with defendant that these errors are not harmless. Appellate courts

disagree on the appropriate harmless error test for Senate Bill 567. (See People v. Lewis

(2023) 88 Cal.App.5th 1125, 1131, review granted May 17, 2023, S279147.) The People 

argue the proper test considers whether “there is a reasonable probability the court would 

have imposed an upper-term sentence based upon the aggravating circumstances that 

satisfy the statute.” (See People v. Zabelle (2022) 80 Cal.App.5th 1098, 1112 [“we must 

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

sentence in the absence of the error”].) But even under this test we cannot conclude this 

error was harmless.

The trial court did state a single factor would be sufficient to justify the upper 

term, and the trial court found defendant’s violation of probation was an aggravating 

factor without any subjective value judgment. But the court explained that one factor 
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was sufficient “because of the circumstances involved in this case and the unique 

circumstances in the case he was convicted on,” including that they involved “the same 

victim.” The court also summarized the facts of the case to support this finding. 

Accordingly, the trial court’s finding is reinforced with facts and value judgments

not found true beyond a reasonable doubt by a jury and we cannot confidently excise 

these improper considerations without fatally undermining the finding’s integrity. We 

therefore can only speculate on whether the trial court would have exercised its discretion 

in the same way had it known it was unable to consider these facts to impose the upper 

term. Accordingly, we must again remand the matter for a full resentencing.

II

The Trial Court Must Order A New Probation Report On Remand

Defendant also argues the trial court erred in not ordering a new probation report 

because it was a full resentencing two years after the original sentencing. We agree.

The original sentencing hearing occurred on July 10, 2020. The presentence 

report for this hearing noted defendant was not interviewed due to the COVID-19 

pandemic, but the report found unusual circumstances rendered defendant eligible for 

probation. At the hearing, defense counsel argued for a term other than the upper term 

and noted defendant was a Marine and honorably discharged. A supplemental probation 

report was not prepared for the resentencing at issue here.

Under California Rules of Court, rule 4.411, “the court must refer the case to the 

probation officer for . . . [¶] . . . [¶] [a] supplemental report if a significant period of 

time has passed since the original report was prepared.” (Cal. Rules of Court, rule 

4.411(a)(2).) The Advisory Committee Comment provides an example of “significant 

time” as “after a remand by an appellate court.” (Advisory Com. com., 23 pt. 2 West’s

Ann. Cal. Rules of Court (2017 ed.) foll. rule 4.411, p. 94.) Further, “[c]ase law has 

recognized that a probation report is not necessarily required if [the] defendant is 

statutorily ineligible for probation.” (People v. Dobbins (2005) 127 Cal.App.4th 176, 
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180.) But a report may be appropriate if “needed to assist the court with other sentencing 

issues.” (Cal. Rules of Court, rule 4.411(a)(1)(B).)

A supplemental report was required here. Though statutorily ineligible, the 

probation officer found defendant eligible for probation given unique circumstances. 

And the resentencing hearing took place two years after the original sentencing hearing. 

(See People v. Dobbins, supra, 127 Cal.App.4th at p. 181 [finding error in not ordering a 

supplemental report with an eight-month period].) A supplemental report would also 

have been particularly helpful to address the change in analysis under amended section 

1170 and because defendant was not interviewed at all for the first probation report. It is 

also possible mitigating factors now relevant may have been present that were not listed 

in the original probation report, such as any trauma related to defendant’s military 

service. (See § 1170.91.) The trial court consequently erred in not requesting a 

supplemental probation report on the prior remand and must refer the case to probation 

on this remand.

III

The Trial Court Must Recalculate Defendant’s Actual Custody Credits

We also agree with defendant that the trial court must recalculate his actual 

credits. Since we are vacating defendant’s sentence and remanding for a full 

resentencing hearing, the trial court is directed to recalculate defendant’s custody credits

pursuant to section 2900.1. (People v. Buckhalter (2001) 26 Cal.4th 20, 23-24 [§ 2900.1 

applies when “an appellate remand results in modification of a felony sentence during the 

term of imprisonment” but not after “a limited appellate remand for correction of 

sentencing errors”].)
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DISPOSITION

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

resentencing consistent with current law. The trial court shall refer the case to the 

probation officer for a supplemental presentence report and recalculate defendant’s 

credits. The judgment is otherwise affirmed.

/s/ 

ROBIE, Acting P. J.

We concur:

/s/ 

DUARTE, J.

/s/ 

ASHWORTH, J.*

*

Judge of the El Dorado County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.