Under Penal Code section 1170, as amended by Senate Bill No. 567, there is no jury-finding requirement for facts used to impose a middle term when the lower term is the presumed sentence. Defendant was convicted of sexual penetration of a child (count 1), and a lewd act on a child (count 2) with a true finding that the defendant had substantial sexual conduct with the victim (Pen. Code, § 1203.066, subd. (a)(8)). The trial court imposed an indeterminate term of 15 years to life on count 1 and stayed an eight-year upper term on count 2 pursuant to Penal Code section 654. Defendant appealed. Held: Sentence vacated and remanded for a full resentencing. The parties agreed that the changes to section 654 by AB 518, and to section 1170 by SB 567, applied retroactively and required a full resentencing. Under AB 518, the trial court now has discretion to impose and execute the sentence of either count. Under SB 567, on remand the prosecution may elect to prove aggravating factors beyond a reasonable doubt to a jury if they choose. In addition, defendant was 19 years old at the time of the crime and may have experienced childhood trauma. This now creates a presumption in favor of a lower term under section 1170, subdivision (b)(6), “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice.” The Court of Appeal declined to add a requirement that any facts used in determining whether a low term is “contrary to the interests of justice” must be proved beyond a reasonable doubt to a jury.

The trial court does not have authority under Penal Code section 1385 to strike a factual finding that establishes ineligibility for probation under section 1203.066. Senate Bill 81, which took effect January 1, 2022, amended section 1385 to specify factors a trial court must consider when deciding whether to strike enhancements in the interest of justice. Although amended section 1385 will apply at defendant’s resentencing, it does not authorize the trial court to strike the section 1203.066 finding or to grant probation in this case. Section 1203.066 both (1) provides that probation may not be granted when such a finding is made, and (2) specifies that the finding may not be stricken under section 1385.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A162579.PDF