People v. Dennisbellairs CA3, C093250A

Defendant Joshua Dennisbellairs pleaded guilty to violating a domestic relations court order with a prior conviction (Pen. Code, § 273.6(d)); factual basis stipulated to the probation report.
Court granted 36 months' probation; shortly after, defendant tested positive for methamphetamine, admitted ingestion, and probation was reinstated with 90 days in custody for the first violation.
Defendant later absconded for about a year, was arrested, admitted failing to report, and a supplemental probation report documented numerous prior convictions, multiple probation violations, failure to complete ordered treatment, denial/minimization of culpability, and recommended the upper term (3 years).
At resentencing the trial court imposed the upper term, citing unsatisfactory performance on probation, absconding, lack of remorse, minimization of responsibility, and exhaustion of probationary options.
On appeal defendant argued the upper term was an abuse of discretion, the court failed to exercise independent discretion or address aggravating/mitigating factors on the record, the supplemental report contained material errors, and (on rehearing) that SB 567 barred use of probation failure as an aggravating factor.
The Court of Appeal affirmed: SB 567 is retroactive but did not require remand because defendant had stipulated to the probation-related facts used to support the upper term; defendant also forfeited claim about the probation report and failed to show ineffective assistance.

Issue	People’s Argument	Dennisbellairs’ Argument	Held
Imposition of upper term sentence	Upper term justified by unsatisfactory probation performance, absconding, lack of remorse, prior convictions	Trial court abused discretion; record lacks signed report or on-the-record discussion of aggravating/mitigating factors	Affirmed: one valid aggravating factor (unsatisfactory probation) is sufficient; no abuse of discretion
Effect of SB 567 on using probation failure as aggravation	SB 567 is ameliorative and retroactive, but court may consider stipulated or found facts; defendant had stipulated to probation facts	SB 567 prohibits using failure on probation to support an upper term and requires remand	SB 567 applies retroactively but does not require resentencing here because defendant stipulated to facts (probation status) supporting aggravation
Reliance on supplemental probation report / material errors	Defendant forfeited challenge by not objecting below	Counsel ineffective for failing to object to alleged material errors in report	Forfeited; counsel’s tactical choices were reasonable—no ineffective assistance shown
Use of facts from dismissed counts (Harvey waiver)	Court may consider facts underlying dismissed counts when Harvey waiver given	Probation report improperly relied on dismissed assault/anger issues	Harvey waiver permits consideration; reliance was proper and counsel reasonably declined to press the issue

People v. Sandoval, 41 Cal.4th 825 (2007) (standard of review for selecting lower, middle, or upper term; aggravating factors must justify upper term)
People v. Osband, 13 Cal.4th 622 (1996) (a single aggravating factor can support imposition of the upper term)
In re Estrada, 63 Cal.2d 740 (1965) (ameliorative statutory changes should be applied retroactively to nonfinal cases)
People v. Superior Court (Lara), 4 Cal.5th 299 (2018) (retroactivity analysis for ameliorative sentencing changes)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance of counsel standard)
People v. Scott, 9 Cal.4th 331 (1994) (failure to raise sentencing objections in trial court forfeits appellate review)
People v. Harvey, 25 Cal.3d 754 (1979) (Harvey waiver permits consideration of facts underlying dismissed counts at sentencing)
People v. Harris, 226 Cal.App.3d 141 (1990) (trial court may consider events occurring after original grant of probation when resentencing upon revocation)