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SB 567 Resentencing Denied on Upper Term Sentence

As the reader of this article may already know, Senate Bill 567 amended Penal Code § 1170(b) to limit when a trial court judge may impose an upper term sentence and made the middle term the presumptive sentence unless certain circumstances exist. 

Those circumstances include a judge or jury finding of certain aggravating circumstances beyond a reasonable doubt or a stipulation by defendant that such aggravating factors are true.  Aggravating circumstances can include, but are not limited to, defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to the jury.

Under the new law, at Penal Code § 1170(b)(5), the judge must set forth on the record the facts and the reasons for selecting the sentence imposed and the judge may not impose an upper term by using the fact of any enhancement imposed.

It was generally understood that since the sentence would reduce punishment, it was retroactive to all case whose judgements are not yet final as of the amendment’s operative date.  People v. Superior Court (Lara) (2018) 4 Cal. 5th 299, 307-308 [discussing In re Estrada (1965) 63 Cal. 2d 740].

The new law went into effect on January 1, 2022, and it was not long before several defendants challenged his or her sentence as violating SB 567.

Tuesdee Deann Dunn was convicted in Madera County Superior Court of assault by means of force likely to cause great bodily injury (Penal Code § 245(a)(4)) and a misdemeanor charge of violating a protective order (Penal Code § 273.6(a)). 

The facts of the case were that Ms. Dunn and B.O. were married and had children together.  Ms. Dunn went to the home of B.O.’s former wife, J.S., unannounced.  Ms. Dunn carried a knife, which J.S. saw and told Ms. Dunn to leave.  Ms. Dunn refused and a struggle ensued, during which J.S. disarmed Ms. Dunn, but cut her hand on the knife in the process.

The protective order violation arose from a criminal protective order that B.O. had against Ms. Dunn, who violated it by following B.O. to their children’s daycare and getting into an argument with B.O. at the daycare facility.

After being convicted, Ms. Dunn was first placed on three years of formal probation, however, she had her probation revoked and reinstated after not reporting to probation, and then suffering a conviction for petty theft. 
Finally, she committed a third violation, being in possession of drug paraphernalia and possession of a controlled substance (methamphetamine).  The trial court judge then revoked her probation, finding she had failed to obey all laws and not reporting to probation, and imposed the upper term, four years, for her in state prison. 

In reaching the upper term sentence, the trial court judge explained that he considered the fact that Ms. Dunn: 1) had six prior misdemeanor convictions; 2) was on probation when the 245(a)(4) took place; and 3) had not performed well on probation in the past, having eleven prior probation violations in the past.  

Ms. Dunn appealed the upper term sentence to the Fifth Appellate District Court, which agreed that the upper term sentence was imposed without compliance with SB 567, but such an error was harmless under People v. Sandoval (2007) 41 Cal. 4th 825, 838-839 because “the jury, applying the beyond-a-reasonable-doubt standard would have found true [the relied upon] aggravating circumstances had it been submitted to the jury.”

The Fifth District did not casually offer the “harmless error” explanation.  It carefully considered application of Cunningham v. California (2007) 549 U.S. 270 and Chapman v. California (1967) 386 U.S. 18 insofar as Ms. Dunn’s possible Sixth Amendment claim about a judge finding such aggravating circumstances, rather than having a jury do so.    

We present this summary to the reader to exemplify how SB 567 is not perhaps what many may regard as carte blanche to have every upper term sentence remanded for reconsideration.  This particular case showed how that was not allowed.

For more information about resentencing under Senate Bill 567, please click on the following articles:
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