People v. Hernandez CA3

DISCUSSION

Defendant argues the matter must be remanded for resentencing pursuant to Senate Bill 567. He also asserts the trial court erred in failing to stay the restitution fine and strike the assessments imposed. The Attorney General first argues defendant waived his right to appeal during the sentencing hearing. For purposes of this appeal, we will assume no waiver and reach the merits. As set forth below, we disagree with defendant’s claims. A. Senate Bill 567 Defendant argues the case should be remanded for resentencing because the trial court imposed the upper term on two counts with no aggravating facts stipulated to or admitted by defendant nor found true by a jury. Because he was sentenced in accordance with and pursuant to the stipulated sentence, we reject this claim. Senate Bill 567 amended section 1170, effective January 1, 2022. (Stats. 2021, ch. 731.) Under the amended version of section 1170, when a judgment of imprisonment is to be imposed and a statute specifies three possible terms, “the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in [section 1170, subdivision (b)(2)].” (§…