People v. Fregozo CA5

DISCUSSION

I. Senate Bill 567

Defendant contends that we must vacate the sentence and remand the matter because he did not admit, and the jury did not find true, the facts underlying the circumstances in aggravation that the trial court relied upon in imposing the upper term, nor did the trial court rely upon a certified record of conviction. The People concede that defendant’s sentence should be vacated, and the matter remanded for resentencing in light of the changes effected by Senate Bill 567. We accept the People’s concession. A. Additional Background The probation officer recommended the trial court find true six circumstances in aggravation and no circumstances in mitigation. The circumstances in aggravation included one related circumstance related to the offense of conviction and five related to defendant’s criminal history, probation or parole status, and performance on probation or parole. The trial court found true only four aggravating circumstances: (1) that

Because the jury found defendant not guilty of attempted murder, it made no finding on the section 12022.53, subdivision (d) allegation. Because defendant raises only sentencing issues, the…