Defendant’s case was remanded for resentencing under amended Penal Code section 1170(b) because the imposition of his upper term sentences was not harmless under the Court of Appeal’s two-part harmless error test for SB 567. A jury convicted Lewis of various pimping-related offenses against several minors. The trial court imposed upper term sentences on several counts and enhancements based on three aggravating factors (the factors were not prior convictions). One of his arguments on appeal was that the matter must be remanded for resentencing in light of recently enacted SB 567 so the trial court could decide whether to impose the upper terms under amended section 1170(b). Held: Sentence vacated. The parties agreed SB 567 applied retroactively in this case. However, Courts of Appeal are split on how to assess harmlessness in these circumstances. Here, the court concluded that a reviewing court must ask two questions to determine whether remanding for resentencing under amended section 1170(b) is appropriate. The first question is whether a defendant could still lawfully be sentenced to an upper term, i.e., whether the jury would have found at least one aggravating circumstance true beyond a reasonable doubt. If not, the sentence is invalid and the matter must be remanded. If the answer to the first question is yes, the second question is whether the record clearly indicates that the trial court would have imposed the same sentence in its informed discretion under the new law. After applying this two-part test, the court concluded remand for resentencing was appropriate. [Editor’s Note: The California Supreme Court will decide what prejudice standard applies on appeal when determining whether a case should be remanded for resentencing in light of newly-enacted Senate Bill No. 567 (Stats. 2021, ch. 731). (People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted 8/10/2022.)]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E076449.PDF