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Name: People v. Ross
Case #: A163242
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 12/28/2022

Remand for resentencing under Senate Bill No. 567 was required where the Court of Appeal could not conclude beyond reasonable doubt that a jury would have found true all of the aggravating factors relied on in selecting the upper term, and the error was not harmless under Watson. Defendant was convicted of one count of battery on a correctional counselor by a prisoner, with two prior strike convictions. The trial court found six aggravating factors true, and sentenced defendant to the upper term doubled to eight years. He appealed. Held: Remanded for resentencing. While defendant’s appeal was pending, SB 567 amended section 1170, subdivision (b), to require that a trial court must presumptively impose the middle term unless the facts underlying aggravating circumstances have been stipulated to, or found true beyond a reasonable doubt. However, the trial court may consider the defendant’s prior convictions based on a certified record of conviction. Here, the record on appeal included certified records of defendant’s prior convictions, which supported the trial court’s true finding on four aggravating factors. But the trial court erred under SB 567 in finding that the crime involved a high degree of callousness, and that the victim was particularly vulnerable. The Court of Appeal applied the two-step harmless error standard articulated in People v. Lopez (2022) 78 Cal.App.5th 459. First, the court could not conclude beyond reasonable doubt that a jury would have found true beyond a reasonable doubt all of the aggravating factors, specifically whether the victim was particularly vulnerable, and whether the crime involved great violence disclosing a high degree of cruelty, viciousness, or callousness. Second, the court could not conclude the error was harmless under People v. Watson (1956) 46 Cal.2d 818. Therefore, remand for resentencing under SB 567 was appropriate. [Editor’s Note: The California Supreme Court will address what prejudice standard applies on appeal when determining whether a case should be remanded for resentencing in light of newly-enacted SB 567 in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted 8/10/2022 (S274942).]