BACKGROUND

In August 2020, defendant and A. lived together in a tent outside Orland in Glenn County. On the 18th of that month, they stayed the night at defendant’s mother’s house. That night, during an argument, defendant straddled A., placed both hands around her neck, and strangled her while threatening to kill her. A. believed the threat was serious and was afraid for her life. A. briefly lost consciousness, but managed to push or kick defendant off of her, which prompted defendant to headbutt her, causing a black eye. The next day, defendant forced A. to orally copulate him against her will, then punched her in the back of the head, causing a laceration. Later in the day, defendant kicked her in the face, causing a cut on her nose. A. left defendant’s mother’s house and reported the circumstances to a sheriff’s deputy. The deputy took photos of A.’s injuries. The jury convicted defendant of forcible oral copulation, making criminal threats, and inflicting corporal injury upon a cohabitant. Defendant admitted having a prior domestic violence conviction within the previous seven years as well as a prior strike conviction. At the sentencing hearing, the trial court imposed the upper term sentence for the forcible oral copulation. The trial court based the upper term on findings that the crime

2 involved great violence, bodily harm, and threats of bodily harm, demonstrating a high degree of cruelty, viciousness and callousness; that defendant’s conduct appeared to be getting more violent and serious and he was a danger to society; his prior convictions were numerous and of increasing seriousness; defendant served a prior prison term; and he was on probation when the crime was committed and his performance was unsatisfactory. The trial court found in mitigation that defendant had successfully completed drug court and it appeared he was struggling with substance abuse, but concluded the aggravating circumstances outweighed the mitigating circumstances.

DISCUSSION

Defendant and the Attorney General agree that Senate Bill 567 applies retroactively to this case and requires remand for resentencing. We agree with the parties. Senate Bill 567, which became effective January 1, 2022, about four months after defendant was sentenced in this case, changed the requirements for using aggravating circumstances and altered sentencing discretion under section 1170. (Stats. 2021, ch. 731.) Among other things, Senate Bill 567 amended section 1170 to prohibit upper- term sentencing unless factors in aggravation are stipulated to by the defendant, proven to a fact finder beyond a reasonable doubt, or established by a certified record of conviction. (§ 1170, subd. (b)(2), (3).) Senate Bill 567 also created a presumption in favor of the low prison term if defendant’s youth or psychological, physical, or childhood trauma contributed to the commission of the offense. (§§ 1170, subd. (b)(6)(A) & (B), 1016.7, subd. (b).) The amended version of section 1170, subdivision (b) applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) And many, if not all, of the findings upon which the trial court relied in imposing the upper term were determined in a manner inconsistent with current law. Because it is not clear on this record what

3 sentencing choices the trial court might have made with the benefit of current law, we will vacate the sentence and remand for resentencing. Defendant further argues the sentencing minute order and abstract of judgment must be corrected to award the correct amount of custody credit. In addition, although not referenced in a separate heading, it appears defendant may also have asserted changes to section 1170 made by Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695), which became effective January 1, 2022. Because we have determined that the matter must be remanded for resentencing, we need not address those arguments. Defendant may assert arguments consistent with current law on remand.

DISPOSITION

The sentence is vacated, and the matter is remanded to the trial court for resentencing consistent with current law. The judgment is otherwise affirmed. Following resentencing, the trial court shall deliver an amended and/or corrected abstract of judgment, as appropriate, to the Department of Corrections and Rehabilitation.

/S/

MAURO, J.

We concur:

/S/ ROBIE, Acting P. J.

/S/

HULL, J.

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