People v. Kain CA5

DISCUSSION

Assembly Bill 124 Assembly Bill 124 became effective January 1, 2022. (Stats. 2021, ch. 695, § 5.3; Stats. 2021, ch. 731, § 1.3.) Among other changes, Assembly Bill 124 sets a presumption that the trial court “shall order imposition of the lower term if any of the [enumerated circumstances] was a contributing factor in the commission of the offense .…” (§ 1170, subd. (b)(6).) Those circumstances are that (A) the defendant “has experienced psychological, physical, or childhood trauma …,” (B) the defendant “is a youth, or was a youth”—meaning that the defendant was under 26 years of age—“at the time of commission of the offense,” and (C) “[p]rior to the instant offense … the [defendant] is or was a victim of intimate partner violence or human trafficking.” (§§ 1016.7, subd. (b), 1170, subd. (b)(6)(A)–(C).) The parties agree, as do we, that the ameliorative changes in law brought about by Assembly Bill 124 are retroactive, pursuant to In re Estrada (1965) 63 Cal.2d 740, to cases not yet final on appeal. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) They further agree, as do we, that defendant’s…