People v. Cervantes CA4/1
Opinion
Opinion
Huffman, J.
DISCUSSION
After the sentencing in this case, the Legislature enacted two measures amending section 1170 with regard to the selection of the term where the felony offense has three possible terms. Senate Bill No. 567 changed the manner of calculation of the upper term choice. It declares the middle term to be the presumptive choice and places limitations on what a judge may consider in selecting an upper term sentence. Assembly Bill No. 124 makes the lower term sentence the presumptive sentence where there are certain mitigating circumstances present. Both
All further statutory references are to the Penal Code.
The facts of the offense are not relevant to the issues in this current appeal. We will omit the traditional statement of facts. 2 legislative changes potentially reduce the defendant’s punishment. Thus, as the parties agree, he is entitled to whatever benefit the statute may provide. (In re Estrada (1965) 63 Cal.2d 740; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304-308.) The Attorney General properly concedes the statutory changes must be applied in this case. Accordingly, we will vacate the sentence and remand for resentencing.