People v. Turner CA3

DISCUSSION

A. Senate Bill 567 Defendant argues the case should be remanded for resentencing due to the enactment of Senate Bill 567, which became effective January 1, 2022, and made changes affecting the trial court’s sentencing determinations for upper term sentences. (Stats. 2021, ch. 731; Cal. Const., art. IV, § 8, subd. (c).) The Attorney General agrees Senate Bill 567 is retroactive but argues this change in the law does not benefit defendant because the plea agreement specifically included defendant’s waiver pursuant to People v. Harvey, supra, 25 Cal.3d 754, and the trial court properly relied on the dismissed charges to supply circumstances in aggravation and alternatively, any error in imposing the upper term was harmless beyond a reasonable doubt. “A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements

3 when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167 (Munoz), citing People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) At the time the trial court sentenced defendant, former section 1170 provided…