DISCUSSION

Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b). (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he court may impose a sentence exceeding the middle term only when 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.” The court may consider the fact of the defendant’s prior convictions based on a certified record of conviction without it having been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial. (§ 1170, subd. (b)(3).) There is no indication that the Legislature did not intend Senate Bill No. 567 to apply retroactively to convicted defendants whose cases are not yet final. Absent a contrary indication from the Legislature, a defendant whose case is not yet final is entitled to the ameliorating benefits of newly enacted sentencing statutes. (In re Estrada (1965) 63 Cal.2d 740, 744-746.) On appeal, Fontanilla contends—among other things—that “ameliorative Senate Bill No. 567 retroactively requires beneficially the imposition of a sentence not to exceed the middle term.” (Some capitalization omitted.) The Attorney General concedes that “section 1170, subdivision (b)(1), applies to Fontanilla’s non-final judgment.” The Attorney General also concedes that, “[u]nder the particular circumstances of the case here,” “remand is proper for the trial court to conduct a resentencing hearing consistent

3. with . . . section 1170, subdivision (b), as amended, and to afford the prosecution an opportunity to prove Fontanilla’s prior convictions in compliance with the statute’s new requirements.” We accept these concessions.4

DISPOSITION

The sentence is vacated. The matter is remanded to the trial court for resentencing in accordance with section 1170 as amended. In all other respects, the judgment is affirmed.

4 Because we are remanding the case for resentencing, we need not address Fontanilla’s claim that the trial court erroneously denied his request to discharge his retained counsel. On remand, Fontanilla—if he should choose to do so—may raise the argument during resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ”].)

4.