People v. Vance CA1/2

DISCUSSION

When defendant was sentenced in 2021, a sentencing court needed only to find circumstances in aggravation by a preponderance of the evidence to impose an upper term. (People v. Hicks (2017) 17 Cal.App.5th 496, 512.) The sentencing law has since changed.

1 Effective January 1, 2022, S.B. No. 567 amended Penal Code section 1170, so that subdivision (b)(2) now provides in relevant part, “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” On appeal, defendant seeks remand for resentencing under Penal Code section 1170 as amended. The Attorney General agrees the new version of section 1170 applies retroactively to defendant and that the matter should be remanded for resentencing “[b]ecause the trial court may have relied on factors that were neither admitted by [defendant] nor found to be true beyond a reasonable doubt.” We agree with…