People v. Krater CA3 ( 2022 )

Filed 8/15/22 P. v. Krater 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093982
v. (Super. Ct. No. 20CF00007)
CHRISTIAN CALVIN KRATER,
Defendant and Appellant.
Defendant Christian Calvin Krater pleaded no contest to injuring his child’s
parent. In exchange for his plea, four additional charges were dismissed with a Harvey1
waiver. In March 2021, the trial court sentenced defendant to the upper term of four
years in state prison.
Defendant appealed, and his appointed counsel asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
1 People v. Harvey (1979) 25 Cal.3d 7541
(1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental
brief within 30 days of the date of filing the opening brief. More than 30 days elapsed,
and we received no communication from defendant.
While this appeal was pending, the Legislature passed and the Governor signed
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill
567). Effective January 1, 2022, that law amended Penal Code section 1170,
subdivision (b) to require the trial court to impose a sentence not to exceed the middle
term unless there are circumstances in aggravation that justify the imposition of a term
exceeding the middle term and the facts underlying those aggravating circumstances (1)
have been stipulated to by the defendant, (2) have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial, or (3) relate to the defend ant’s
prior convictions and are based on a certified record of conviction. (§ 1170, subd. (b)(1),
(2), (3).) In light of the new law, we asked the parties to submit supplemental briefing on
its affect in this case. Having considered the supplemental briefing and having reviewed
the record, we will affirm the conviction but remand for resentencing.
BACKGROUND
On the morning of December 30, 2019, defendant went to another person’s home
to visit his child. While there, defendant grabbed A.S., the mother of his child, by the
head and threw her into the front of a parked car, causing A.S. to lose consciousness and
fall to the ground. Defendant picked A.S.’s limp body up off the ground only to drop her
again and start walking away. As he walked away, A.S. stood up and “began to limp
away from the vehicle.” Defendant turned, grabbed her by the face or neck, and
“ ‘thrashed’ her face around.” In an effort to keep defendant off of her, A.S. put out her
arms; defendant grabbed one of her arms, “jerked her forward, and punched her in the
face.” The punch caused A.S.’s head to snap backward and defendant punched her in the
shoulder before walking away. A.S. ran inside the house. Two adults and a minor child
witnessed the assault, which was also caught on video.
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Defendant was ultimately charged with five criminal acts including a single charge
of injuring his child’s parent (Pen. Code, § 273.5, subd. (a)), to which defendant pleaded
no contest. Defendant agreed the probation report provided the factual basis for his plea.
In exchange for his plea, the People moved the court to dismiss the remaining four
charges with a Harvey waiver. The trial court granted the People’s motion.
At sentencing, defendant argued for probation. The trial court was not persuaded
and followed the probation department’s recommendation, sentencing defendant to the
upper term of four years in state prison. The trial court found that seven aggravating
factors supported imposition of the upper term: that the crime involved great violence
(California Rules of Court, rule 4.421(a)(1)), the victim was particularly vulnerable (id.,
rule 4.421(a)(3)), defendant took advantage of a position of trust (id., rule 4.421(a)(11)),
defendant engaged in conduct indicating he is a serious danger to society (id., rule
4.421(b)(1)), defendant’s prior convictions are numerous (id., rule 4.421(b)(2)),
defendant served a prior prison term (id., rule 4.421(b)(3)), and defendant’s prior
performance on probation was unsatisfactory (id., rule 4.421(b)(5)). The trial court found
no factors in mitigation. The trial court also ordered defendant to pay various fines and
fees and awarded him 317 days of presentence credit.
Defendant appealed without a certificate of probable cause.
DISCUSSION
Under In re Estrada (1965) 63 Cal.2d 740, “ ‘ “[a]n amendatory statute lessening
punishment is presumed to apply in all cases not yet reduced to final judgment as of the
amendatory statute’s effective date” [citation], unless the enacting body “clearly signals
its intent to make the amendment prospective, by the inclusion of either an express saving
clause or its equivalent.” ’ ” (People v. Lara (2019) 6 Cal.5th 1128, 1134.) A judgment
of conviction is not final for the purpose of determining the retroactive application of a
statutory amendment until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
3
Nothing in Senate Bill 567 suggests a legislative intent that its amendments apply
prospectively only, and the parties correctly agree that defendant is entitled to the benefits
of the legislative enactments in Senate Bill 567. (Stats. 2021, ch. 731, §§ 1-3; Flores, at
p. 1039.)
The People nevertheless argue the upper term sentence is consistent with the
amended law because defendant agreed, when he pleaded no contest, that the trial court
could consider his prior criminal history at sentencing. The People’s argument is based
on People v. Munoz (2007) 155 Cal.App.4th 160, which involved a defendant’s
relinquishment of his Sixth Amendment right to a jury trial and beyond a reasonable
doubt finding on the facts used to aggravate his sentence. (Id. at p. 168.) The People
argue the application of amended section 1170 in this case raises the same issue as in
Munoz, and should be resolved the same way here because, like in Munoz, defendant
made a plea bargain with a Harvey waiver. Munoz is inapposite, however, because the
plea in that case occurred after the cases establishing the new law (i.e., Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] & Blakely v. Washington (2004) 542 U.S.
296 [159 L.Ed.2d 403]) had been decided. Whereas here, defendant pleaded no contest
with a Harvey waiver before the amendments to section 1170 were in effect.
In the alternative, the People argue harmless error. Although some courts have
discussed the application of a harmless error analysis in a challenge under Senate Bill 567
with differing results (cf. People v. Flores (2022) 75 Cal.App.5th 495, 500-501; People v.
Lopez (2022) 78 Cal.App.5th 459, 465-466), because the trial court did not have the
opportunity to consider the amendments to section 1170, we will remand the matter to
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permit the trial court to reconsider the upper term sentence based on the retroactive
change in the law.2
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
Defendant’s conviction is affirmed and the matter is remanded for resentencing.
The trial court is directed to reconsider the upper term sentence in a manner consistent
with amended section 1170.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
2 In an effort to circumvent a mootness argument, defendant’s appellate counsel notes
defendant may be out of prison but the appeal remains viable because a reduction in
defendant’s sentence could result in a reduction to his fines and fees. We agree, and
conclude the appeal remains viable. (§ 2900.5; see People v. Morris (2015)
242 Cal.App.4th 94, 100.)
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