People v. Penaloza CA4/3

INTRODUCTION

Jose Manuel Penaloza appeals from the sentence imposed after his 1 conviction under Penal Code sections 261.5, 288a, and 288. He asserts that newly amended section 1170 applies to him, and his judgment was not final when the amendment went into effect. In addition, a new amendment to section 654 could have an ameliorative effect on his sentence. Accordingly, his sentence should be vacated and remanded for resentencing under the new laws. The Attorney General agrees, and we concur and return the matter to the trial court for resentencing.

FACTS

On May 21, 2021, Penaloza, age 36, was convicted of unlawful sexual intercourse (§ 261.5, subd. (d)), oral copulation with a minor under 16 (§ 288a, subd. (b)(2)), and lewd act upon a child (§ 288, subd. (c)(1)). He’d had sex with a 15-year-old girl. Penaloza was sentenced to three years (the middle term) on count 3, the unlawful sexual intercourse count, and two years on the other two counts, concurrent with the third count.

DISCUSSION

Penaloza makes two arguments on appeal. First, newly effective section 1170, subdivision (b)(6)(A), applies to him, and, second, his sentence under count 1 should have been stayed so that he…