People v. Tirado CA4/1

INTRODUCTION

A jury convicted Julio M. Tirado of assault on a peace officer by means

likely to produce great bodily injury (Pen. Code,1 § 245, subd. (c); count 1), battery on a peace officer with injury (§ 243, subd. (c)(2); count 2), and driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 3). After noting several circumstances in aggravation, the trial court sentenced Tirado to the upper term of five years on count 1 and 180 days on count 3 to run consecutive, under former section 1170. It also imposed the upper term of three years on count 2 and stayed the sentence. On January 1, 2022, while Tirado’s appeal was pending, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) went into effect. It amended section 1170 by limiting the trial court’s former broad discretion in sentencing. Section 1170 now restricts the trial court’s ability to consider certain aggravating factors at sentencing and establishes the middle term as the presumptive sentence. (§ 1170, subds. (b)(1) & (2).) Tirado raises two issues on appeal. First, he contends that substantial evidence does not support his conviction for assault on a peace officer by means likely to produce…