People v. Edwards CA6

I. INTRODUCTION

A jury found defendant Michael Edwards guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1),1 possession of heroin for sale (§ 11351; count 2), and misdemeanor possession of drug paraphernalia (§ 11364, subd. (a); count 3). The trial court sentenced defendant to four years in county jail, imposing the upper term on count 2. On appeal, defendant initially contended that the trial court erred when it failed to instruct the jury on the lesser included offenses to counts 1 and 2, namely, simple possession of methamphetamine (§ 11377, subd. (a)) and simple possession of heroin (§ 11350,

1 All further statutory references are to the Health and Safety Code unless otherwise indicated. subd. (a)). The Attorney General contended that the trial court did not err because there was no evidence to warrant the instruction. We affirmed the judgment. Defendant filed a petition for rehearing, contending that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which, as relevant here, amended Penal Code section 1170, subdivision (b) (section 1170(b)) effective January 1, 2022, to make the middle term the presumptive sentence…