Flores

discussion. The victim was 12 years old.

1 We also dismissed defendant’s appeal from the recall denial as taken from a nonappealable order. In a petition for rehearing filed on December 29, 2021, defendant now requests that we grant rehearing, vacate his midterm sentence, and either impose the lower term or remand to the trial court with directions to do so. Defendant argues that an ameliorative change in Penal Code2 section 1170, the determinate sentencing law, that became effective January 1, 2022, applies retroactively to his case pursuant to In re Estrada (1965) 63 Cal.2d 740 because his conviction is not yet final. In an answer to this petition, the People agree the new law, section 1170, subdivision (b)(6), applies retroactively in this case but disagree that defendant is automatically entitled to the lower-term sentence. The People argue we should grant rehearing and modify our opinion to remand the matter to the trial court for resentencing under the new law. After the People filed their answer, we granted rehearing. Upon rehearing, in the nonpublished portion of this opinion, we restate our conclusion that the court had discretion to reject probation and sentence…