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Filed 8/16/22 P. v. Nelsen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYCE THOMAS NELSEN,

Defendant and Appellant.

C094252

(Super. Ct. No. 18F6428)

Appointed counsel for defendant Bryce Thomas Nelsen asked this court to 

conduct an independent review of the record to determine whether there are any arguable 

issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) On this court’s own motion, 

we ordered supplemental briefing by the parties on the effect of Senate Bill No. 567 

(2021-2022 Reg Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) on defendant’s sentence.

Defendant contends that Senate Bill 567, which took effect while his appeal was 

pending, applies retroactively to his case and requires reversal of his sentence and remand 

for resentencing. The People agree Senate Bill 567 applies retroactively, but argue the 
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trial court sufficiently complied with the new law in selecting an upper term sentence 

and, alternatively, any error was harmless.

We agree Senate Bill 567 applies retroactively and conclude the trial court’s error 

in relying on an aggravating circumstance neither found true by the trier of fact nor 

stipulated to by defendant was harmless. We affirm the judgment accordingly.

FACTS AND HISTORY OF THE PROCEEDINGS

In September 2018, the People charged defendant with a single count of felony 

vandalism (Pen. Code, § 594, subd. (b)(1))1in Shasta County Superior Court case No.

18F6428 (case No. 428). In November 2018, defendant pleaded no contest to the 

vandalism charge as well as a misdemeanor charge for battery (§ 242) in Shasta County 

Superior Court case No. 18M6218 (case No. 218). Defendant also admitted violating his 

probation in four other cases by failing to report to the probation department. In 

exchange for his plea, the People moved to dismiss “outright” Shasta County Superior 

Court case No. 18M7031. The trial court subsequently suspended imposition of sentence 

and placed defendant on three years’ formal probation. 

On November 20, 2020, the probation department (the Department) filed a petition 

alleging defendant violated his probation in case No. 428 by committing another act of 

vandalism (§ 594, subd. (b)(2)(A)), with which he was charged in Shasta County 

Superior Court case No. 20M7619 (case No. 619). 

On March 8, 2021, defendant admitted to violating his probation by committing 

the other act of vandalism and failing to report to his probation officer. Defendant also 

pleaded no contest to misdemeanor vandalism in case No. 619. In exchange for 

defendant’s plea, the People agreed to dismiss with a Harvey2 waiver three pending 

1 Undesignated statutory references are to the Penal Code.

2 People v. Harvey (1979) 25 Cal.3d 754.
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misdemeanor cases for charges including indecent exposure, vandalism, and public 

intoxication. The Department recommended defendant’s probation be revoked in case 

No. 428 and that he be sentenced to the upper term of three years in state prison. 

The Department explained their recommendation: “[D]efendant is in custody of 

the Shasta County Jail and despite this, he continues to be dishonest and blame others for 

his current situation. He has repeatedly failed to follow any of the directives given to him 

by his probation officer and continues to victimize the community. The defendant has 

had multiple opportunities at rehabilitation during the past five years he has been on 

probation; however, it does not appear the defendant has any desire to obtain sobriety or 

comply with [the] terms of probation. All resources have been exhausted with the 

defendant and reinstating probation would prove to be futile as the defendant is clearly 

not amenable to any form of treatment at this time.” 

At sentencing, after a lengthy discussion about defendant’s custody credits, the 

trial court sentenced defendant to the upper term of three years in county jail. The court 

explained its decision for imposing the upper term: “Well, so the recommendation from 

the probation department, and they did make that recommendation of the three-year term, 

and they base that on all of the numerous occasions where the Defendant failed to comply

with the terms and conditions of probation including⸺I mean, he’s been in lack of 

compliance mode for practically the entire term. So, no, I’m going to sentence him to the 

aggravated term of three years.” Although defendant’s counsel raised defendant’s 

underlying mental health issues as a possible mitigating factor, the trial court did not 

address that argument. The court awarded defendant 236 days of custody credit, ordered 

him to pay various fines and fees, affirmed those fines and fees previously ordered, and 

sentenced defendant to time served on the misdemeanor conviction in case No. 619. 

Defendant appeals without a certificate of probable cause. 
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DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief that sets forth the facts and procedural history of the case and asks this court to 

review the record to determine whether there are any arguable issues on appeal. (People

v. Wende, supra, 25 Cal.3d 436.) On our own motion, we requested supplemental 

briefing on the effect of Senate Bill 567 on the upper term sentence imposed on 

defendant. 

Defendant contends Senate Bill 567 applies retroactively to require reversal of his 

sentence and remand for resentencing because the trier of fact did not find any facts to 

support the aggravating circumstance on which the trial court relied when it selected the

upper term sentence. The People argue we should affirm defendant’s sentence because 

the trial court relied on defendant’s “criminal history” in imposing the upper term, which 

the new law permits and, alternatively, because any error was harmless. We conclude the 

court erred in relying on an aggravating factor neither found true beyond a reasonable 

doubt nor stipulated to by defendant, but further conclude the error was harmless.

A. Retroactivity

Senate Bill 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b) so 

that, among other things, aggravating circumstances now only justify the imposition of an 

upper term 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 amended by Stats. 2021, ch.

731, § 1.3.) The amended statute also adds a third acceptable method of factfinding, 

permitting 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).)

The People correctly concede the amended version of section 1170, subdivision

(b) applies retroactively in this case as an ameliorative change in the law applicable to all 
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nonfinal convictions on appeal. (See People v. Flores (2022) 73 Cal.App.5th 1032, 

1039.) 

B. Aggravating circumstance found

The People contend the trial court “properly relied” on defendant’s “criminal 

history” in imposing the upper term. We disagree. The trial court was unequivocal in 

why it was imposing the upper term: defendant’s poor performance on probation. (Cal. 

Rules of Court, rule 4.421(b)(5).) This was error. Defendant did not stipulate to the 

underlying facts in support of this aggravating factor, neither a jury nor a judge found the 

underlying facts true beyond a reasonable doubt, and this aggravating factor does not fall 

within the exception found in amended section 1170, subdivision (b)(3). 

The exception found in section 1170, subdivision (b)(3) specifies it was created 

only for prior convictions: “[T]he 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), italics added.) The statute does not 

codify the much broader exception described in People v. Towne (2008) 44 Cal.4th 63, 

79-83, which allows judicial consideration of facts related to a defendant’s recidivism 

without violating the Sixth Amendment. (See also People v. Gallardo (2017) 4 Cal.5th 

120, 124-125.) Thus, resentencing is required unless we find the error was harmless.

C. Harmless error

The law requires a two-step analysis for determining harmless error: (1) whether 

the court could impose the aggravated term under the Sixth Amendment; and (2) whether 

the court would impose the aggravated term under section 1170. (People v. Zabelle

(2022) 80 Cal.App.5th 1098, 1112 (Zabelle).) We review the first question under the 

standard described in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], and 

the second under the standard described in People v. Watson (1956) 46 Cal.2d 818. 

(Zabelle, supra, at pp. 1112-1113.) 
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Here, the trial court relied on a single aggravating circumstance in imposing the 

upper term: defendant’s poor performance on probation. On this record, we find,

“beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt 

standard, unquestionably would have found true” the single aggravating circumstance 

“had it been submitted to the jury.” (People v. Sandoval (2007) 41 Cal.4th 825, 839.) In 

making this determination, we are mindful that we “cannot necessarily assume that the 

record reflects all of the evidence that would have been presented had aggravating 

circumstances been submitted to the jury.” (Ibid.) 

“[A]lthough defendant did have an incentive and opportunity at the sentencing 

hearing to contest any aggravating circumstances mentioned in the probation report or in 

the prosecutor’s statement in aggravation, that incentive and opportunity were not 

necessarily the same as they would have been had the aggravating circumstances been 

tried to a jury,” because the standard of proof was lower and because defense counsel 

may have adopted a different strategy with a jury factfinding than with a judge who is 

both factfinding and sentencing. (Ibid.) And, “to the extent a potential aggravating 

circumstance at issue in a particular case rests on a somewhat vague or subjective 

standard, it may be difficult for a reviewing court to conclude with confidence that, had 

the issue been submitted to the jury, the jury would have assessed the facts in the same 

manner as did the trial court.” (Id. at p. 840.)

Defendant was serving probation in four cases when he committed the criminal 

acts that underly his current felony conviction, as well as his misdemeanor conviction in 

case No. 218. He admitted to violating his probation in those matters by failing to report 

to his probation officer. Defendant was again placed on probation, and he again admitted 

to violating his probation by failing to report to his probation officer, in addition to 

committing another act of vandalism. 

In short, to the extent that “poor” performance on probation is subjective, 

defendant’s conviction for several offenses while on probation and his repeated failure to 
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report to his probation officer allow us to conclude, with confidence, that a trier of fact

would have found his performance on probation to be poor beyond a reasonable doubt.3

Thus, while we conclude the court could impose the aggravated term based on the 

single aggravating circumstance, we must also consider whether the court would have 

imposed the aggravated term under Watson. (Zabelle, supra, 80 Cal.App.5th at p. 1112.) 

Because defendant’s poor performance on probation was the only aggravating factor 

upon which the trial court relied in imposing the upper term, it is “not reasonably 

probable that the trial court would have chosen a lesser sentence had it fully complied 

with section 1170’s requirements.” (Zabelle, at p. 1113.) On this record, it is clear that

the court would impose the upper term again. We thus conclude the error in relying on an 

aggravating factor, neither found true by the trier of fact nor stipulated to by defendant, 

was harmless.

DISPOSITION

The judgment is affirmed.

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 HOCH , J.

3 We reach this conclusion based solely on the probation violations and criminal 

acts to which defendant admitted. We do not consider those listed in the probation 

report.