Limit in imposition of high term for felonies (SB 567) applies retroactively

People v. Flores (Cal. Ct. App., Jan. 13, 2022, No. A160578) 2022 WL 121934, at *7–8

Changes to determinate sentencing law in 2022-Senate Bill 567

Felonies typically  carry three possible sentences, called a  low, middle, and high term.  High terms  cannot be imposed without a finding that there are aggravating factors. Previously,  judges could decide  if there were aggravating factors.  Effective January 1, 2022, the  determinate sentencing law, section 1170, was amended. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.)

SB 567 provides that, except for prior convictions, any aggravating factor relied on to impose high term must “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.”

Senate Bill No. 567 amended section 1170, former subdivision (b) by making the middle term the presumptive  unless certain circumstances exist. (Stats. 2021, ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(1) & (2).) A trial 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. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.” (§ 1170, subd. (b)(2), added by Stats. 2021, ch. 731, § 1.3.)

SB 567 also created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense.

Section 1170, subdivision (b)(6) provides: “[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: (B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.” (§ 1170, subd. (b)(6); see § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any person under 26 years of age on the date the offense was committed”].)

SB 567 applies retroactively to all cases not final on appeal

In this case, the People  conceded that the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Courts “assume, absent evidence to the contrary, that the Legislature intended an ‘amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337, 341, 254 Cal.Rptr.3d 883.) “For the purpose of determining the retroactive application of an amendment to a criminal statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court.” (Id. at pp. 341–342, 254 Cal.Rptr.3d 883, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306, 25 Cal.Rptr.3d 337, 106 P.3d 990.)

Here, Tge defendant was under age 26 when he committed this crime so under section 1170, subdivision (b), his  six-year midterm sentence must be vacated. Remand to the trial court to decide under the newly amended law whether defendant is entitled to the lower term is appropriate. Section 1170, subdivision (b)(6)(B) does not require imposition of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. But it establishes a presumption of the lower term if the defendant’s youth was “a contributing factor” in his or her commission of the crime “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice ….” (§ 1170, subd. (b)(6)(B), italics added.)

Disposition: The judgment is reversed and the matter is remanded to the trial court for resentencing under the amendatory version of section 1170, subdivision (b).