Opinion
B320984
06-26-2023
WILLIAM R. BRAMSCHER, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent THE PEOPLE, Real Party in Interest.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County Super. Ct. No. YA100270, Nicole C. Bershon, Judge, treated as a petition for writ of habeas corpus.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
After a jury found William R. Bramscher guilty of various crimes, the trial court imposed a sentence that included an upper term. Bramscher petitioned to vacate his sentence and for resentencing based on recent amendments to Penal Code section 1170 that make the middle term the presumptive term. The trial court denied the petition and Bramscher now appeals. The People concede, and we agree, that remand for resentencing is required.
All further undesignated statutory references are to the Penal Code.
There is no statutory right to appeal from an order denying a petition for writ of habeas corpus. (Robinson v. Lewis (2020) 9 Cal.5th 883, 895.) However, we exercise our discretion to deem the appeal as an original petition for habeas corpus filed in this court. (Ibid.)
BACKGROUND
This case arises out of phone calls Bramscher made to Christopher C. threatening to burn down the club where Christopher C. worked and to kill everyone who was inside. In 2018, Bramscher was convicted of making criminal threats and the trial court issued a protective order. However, Bramscher renewed his threats by again calling Christopher C. and threatening to kill him and to burn down the club.
In 2019, a jury found Bramscher guilty of making criminal threats with a true finding on the allegation he had a prior strike conviction for making criminal threats (§ 422, subd. (a); count 1) and of disobeying a court order (§ 166, subd. (a)(4); count 2). On September 26, 2019, the trial court sentenced Bramscher to the upper term of three years, doubled to six years in prison, on count 1 and to a concurrent term of six months in jail on count 2. In selecting the upper term, the trial court found that Bramscher had not performed well on probation, his convictions were of increasing dangerousness and seriousness, and the crime involved threats of great violence because Bramscher had threatened to burn down the club and kill everyone, including Christopher C.
Bramscher appealed, and a different panel of this Division affirmed his judgment of conviction. (People v. Bramscher (Feb. 15, 2022, B303019) [nonpub. opn.].) Our California Supreme Court denied his petition for review in May 2022. Then, in September 2022, Bramscher filed a petition for a writ of certiorari in the United States Supreme Court, which it denied on October 31, 2022.
We grant Bramscher's request for judicial notice of the record in People v. Bramscher, supra, B303019. (See generally Evid. Code, § 452, subd. (d).)
Meanwhile, on April 25, 2022, Bramscher filed in the superior court a "petition" to vacate his sentence and for resentencing under Senate Bill No. 567. On May 9, 2022, the trial court denied the petition, and Bramscher then filed this appeal.
DISCUSSION
Bramscher contends that remand is necessary so that the trial court can reconsider his sentence under newly amended section 1170. We agree.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170 to make the middle term the presumptive term. A trial court thus may impose the upper term only "when there are circumstances in aggravation of the crime" that justify imposing a term of imprisonment exceeding the middle term, and the defendant has stipulated to the facts underlying those circumstances or those facts have been found true beyond a reasonable doubt at trial by the trier of fact. (§ 1170, subd. (b)(2); see generally People v. Lopez (2022) 78 Cal.App.5th 459, 464-465.) However, the trial court may consider the defendant's prior convictions based on certified records of conviction to determine the sentence to impose without submitting the prior convictions to the jury. (§ 1170, subd. (b)(3).)
Senate Bill No. 567 applies retroactively to cases not final on appeal when the legislation went into effect on January 1, 2022. (See, e.g., People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [People properly conceded Sen. Bill No. 567 is retroactive], see generally In re Estrada (1965) 63 Cal.2d 740.) For retroactivity purposes, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Here, Bramscher's case was not final for retroactivity purposes because he filed his petition for resentencing before the time for petitioning for certiorari in the United States Supreme Court had passed. Further, the trial court imposed the upper term based on its-and not the jury's-finding that, among other things, the crime involved threats of great violence. Because the trial court in imposing the upper term on count 1 relied on aggravating factors not found true by the jury or stipulated to by defendant, remand is required. (See, e.g., People v. Garcia (2022) 76 Cal.App.5th 887, 902.)
DISPOSITION
The petition is granted. The sentence is vacated with the direction to the trial court to reconsider William Bramscher's sentence in light of Senate Bill No. 567.
We concur: EGERTON, J., HEIDEL, J.[*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.