People v. Alarconnunez CA2/6

DISCUSSION

Senate Bill No. 567 Appellant contends his upper term sentences should be vacated and remanded for resentencing in light of the recent amendments to section 1170, pursuant to Senate Bill No. 567. Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (S.B. 567) amended section 1170 such that the middle term is now the presumptive term of imprisonment. (Stats. 2021, ch. 731, § 1.3.) Under the newly amended law, the trial court must “order imposition of a sentence not to exceed the middle term” unless 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.” (§ 1170, subds. (b)(1), (2).) Here, appellant did not stipulate to the aggravated factors, nor did the jury find those factors true beyond a reasonable doubt. As the Attorney General correctly concedes, amended section 1170, subdivision (b) applies retroactively to appellant because his case is not final on appeal. (See People v. Flores…