DISCUSSION

Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Nonetheless, the parties have responded to our request for supplemental briefing. Having undertaken an examination of the entire record pursuant to Wende, we note the recent passage of Senate Bill No. 567 (2021-2022 Reg. Sess.), which altered the statutory scheme for selecting between triad terms under section 1170 subdivision (b). (Stats 2021, ch. 695, §§ 1.3, 2.) In light of this change and in accordance with the agreement of the parties that these changes apply retroactively to defendant’s nonfinal judgment (see, e.g., People v. McKenzie (2020) 9 Cal.5th 40, 51; People v. Stamps (2020) 9 Cal.5th 685, 699), we have determined that a limited remand to allow the trial court to exercise its new sentencing discretion is required. We disagree with the People that remand is unnecessary because any error in not complying with the dictates of the new statute would be harmless under Cunningham v. California (2007) 549 U.S. 270. The People have not demonstrated that the court would have reached the same decision under the amended statute, and defendant is entitled to be sentenced by a trial court exercising informed discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390-1391.) Finally, we agree with the parties that defendant is not entitled to relief by virtue of the discrepancy in the advisement concerning the award of his custody credits. Defendant’s failure to object to this discrepancy has waived this issue on appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1023, overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183.) Further, even if we were to consider the discrepancy, defendant has not demonstrated any error was prejudicial. (Walker, at

3 pp. 1022-1023.) It is undisputed that defendant is subject to the 15 percent limit of section 2933.1, as section 288 is one of the enumerated offenses of section 667.5. Accordingly, the court’s order awarding those credits at the 15 percent limitation was correct. There is nothing in the record to suggest defendant would not have entered his plea deal had he been advised otherwise. (Walker, at pp. 1022-1023 [uninformed waiver based upon consequences of plea will only be set aside if the defendant shows it is “reasonably probable” he would have changed his plea if properly advised of the consequences].)

DISPOSITION

The sentence is vacated and the matter is remanded with directions to sentence defendant under Penal Code section 1170 as amended by Senate Bill No. 567. The judgment is otherwise affirmed.

/s/

RAYE, P. J.

We concur:

/s/

MAURO, J.

/s/

HOCH, J.

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