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Filed 7/22/22 P. v. Conner CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
DONALD NICOLAUS CONNER,

Defendant and Appellant. C094715
(Super. Ct. No. 20CR002621)

Defendant Donald Nicolaus Conner pleaded guilty to four sex crimes involving two minors. Defendant contends, and the People concede, that recently enacted legislative changes are ameliorative and apply to him retroactively. Furthermore,
defendant claims the trial court erroneously imposed consecutive sentences for defendant’s sex crimes in violation of the statutory scheme , and alternatively, defendant
received ineffective assistance of counsel

. Reaching only the first contention, w e vacate the sentence and remand.2 FACTUAL BACKGROUND As the basis for defendant’s plea, the parties stipulated to the facts from the police report. In summary, over the course of several months in 2020, and while intermittently cohabitating with the victims’ parents, the 20

- year

- old defendant engaged in multiple nonconsensual sexual acts with two girls, aged 14 and 16 years old

. Defendant’s sexual misconduct ranged from digital penetration to sexual intercourse. On several occasions, the victims were asleep when defendant i nitiated sexual contact.
On November 3, 2020, law enforcement interviewed defendant and , after initially denying the conduct , he admitted to having sex with one of the victims but not the other. That same day, law enforcement arrested defendant.
PROCE DURAL BACKGROUND
The People charged defendant with 14 counts as follows: four counts of sexual penetration of an unconscious or sleeping person ( Pen. Code, § 289, subd. (d)(1)), 1 f ive counts of sexual penetration by use of force of a minor victim 14 year s of age or older (§ 289, subd. (a)(1)( C )) ; forcible rape of a child over 14 years old (§ 261, subd. (a)(2)) ; rape of an unconscious or sleeping person (§ 261 subd. (a)(4)( A )) ; and three counts of forcible oral copulation

. (§ 287, subd. (c)(2)( A )

. ) A sin gle count of sexual penetration of
an unconscious or sleeping person (§ 289, subd. (d)(1)) , and a single count of sexual penetration by use of force of a minor victim 14 years of age or old er (§ 289, subd. (a)(1)( C )) , applied to one victim and the remainder of the charges applied to the other
victim

. On July 9, 2021, in a negotiated plea, defendant pleaded guilty to one count of sexual penetration of an unconscious or sleeping person (§ 289, subd. (d)(1)) involving

t he first victim (count I ) ; two count s of sexual penetration of an unconscious or sleeping

1 Undesignated statutory references are to the Penal Code.3

person (§ 289, subd. (d)(1)) (counts VII & IX ) , and one count of sexual penetration by use of force of a minor 14 years of age or old er (§ 289, subd. (a)(1)( C )) (coun t X ) involving the second victim . Defe ndant’s plea was in exchange for a maximum aggregate sentence of 29 years, a three

- year stipulated sentence for count VII , and dismissal of the remaining counts. The trial court sentenced defendant to the upper term of 10 years for count X , two consecutive eight

- year upper terms for counts I and IX , and the stipulated consecutive three

- year lower term for count VII

. In its colloquy during sentencing, the trial court stated: “ H aving read and
considered the probation report, this was a heinous crime. There were two minor victims.
I find under California Rule [s] of Court [, rule] 4.421(a)(3) and (a)(11) that those do come into play here because both of these victims were vulnerable, they were attacked in thei r own residences, and the defendant took advantage of a position of trust because he was a family friend.”
DISCUSSION
Defendant c ontend s he is entitled to resentencing in light of recent amendments to
section s 1170 and 1170.1, which took effect two weeks after defendant filed his opening
brief. 2 Defendant also argues the trial court erred in imposing full, consecutive upper

terms pursuant to section 667.6 because he was not convicted of multiple enumerated
offenses involving the same victim on the same occasion , and alternatively, that he received ineffective assistance of counsel based on counsel’s failure to object to the

2 Defendant asserts he is entitled to the ameliorative benefits both of Senate Bill No. 567 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 731) (Sen ate Bill 567) and Assembly Bill No. 124 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5.3) (Assem bly Bill 124). S en ate Bill 567 was enacted after Assem bly Bill 124 and incorporated Assem bly Bill 124’s amendments to section 1170. (Stats. 2021, ch. 731, § 3, subd. (c).) Sen ate Bill 567 takes precedence because it was enacted last. (Gov. Code, § 9605.) Thus, Sen ate Bill 567 is the operative legislation , not Assem bly Bill 124, and we will address defendant ’s claims as raised under that legislative enactment.4

imposition of consecutive sentences during sentencing. The People concede the applicability of the recent legislative enactments

. We accept the concession and , in light of its effect, w e vacate the sentence and remand without reaching defendant’s claim regarding the imposition of consecutive sentences

. Effective January 1, 2022, Sen ate Bill 56 7 amended section 1170, form er subdivision (b), to create a presumption in favor of the low prison term where a defendant’s “youth” was a contributing factor in the offense. (§ 1170, subd. (b)(6); Stats. 2021, ch. 731, § 1.3.) As relevant here, the court is required to impose the l ower term if defendant was under 26 years old at the time of the offense unless the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice. (§§ 1170, subd. (b)(6 )(B), 1016.7, subd. (b).)
Here , defendant was 20 years old at the time of his offenses and the parties agree
the lower

- term sentencing presumption now codified in section 1170, subdivision (b) (6) (B) would apply to him

. Therefore, because the People correc tly concede Sen ate Bill 567 is ameliorative to defendant , this matter should be remanded for a full resentencing given the changed circumstances. ( People v. Buycks (2018) 5 Cal.5th 857, 893.) Because resentencing is appropriate, we need not address defend ant’s remaining arguments on appeal. We vacate defendant’s sentence as to counts I , IX , and X

. DISPOSITION
The convictions are affirmed. The sentence as to counts I , IX , and X is vacated,
and the matter is remanded for a full resentencing consistent with the changes from5

Sen ate Bill 567 and any other ameliorative changes to the sentencing laws that apply to
defendant.

KRAUSE , J.

We concur:

MAURO , Acting P. J.

EARL , J.