People v. Thornton CA5

facts of a prison crime report reflecting the offense. In short, defendant was a prisoner in a state prison. He and one other person attacked an inmate. No weapons were used. The attacked inmate suffered an orbital bone fracture.

DISCUSSION

I. Senate Bill 567

Defendant contends that we must vacate the sentence and remand the matter because defendant did not admit, and the trial court did not find true, the facts underlying the circumstances in aggravation that the trial court relied upon in imposing the upper term. The People agree that Senate Bill 567 is retroactive to defendant but argue that the trial court’s imposition of the upper term was consistent with section 1170, subdivision (b) because the trial court appropriately “relied upon [defendant]’s criminal history,” which defendant admitted, in imposing the sentence. Alternatively, the People argue that any error in imposition of the upper term is harmless beyond a reasonable

3. doubt because “[a]t the very least, a jury would have found one of the aggravating factors relied on by the trial court to be true beyond a reasonable doubt.” The People are mistaken regarding the relevant standard for harmless error. As we…