While appellant’s appeal was pending, the Legislature passed Senate Bill No. 567 (2021–2022 Reg. Sess.), which amended Penal Code section 1170 to require that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. The Court of Appeal found the imposition of aggravated terms to be harmless error. Appellant’s subsequent petition for review was granted, and the California Supreme Court transferred the matter back to the Court of Appeal with directions to vacate its prior decision and reconsider the cause in light of People v. Lynch (2024) 16 Cal.5th 730.

The Court of Appeal then held that the record failed to demonstrate that the lower court would necessarily depart “from the legislative mandate for no more than a middle term sentence” in light of the changes made to section 1170. (Id. at p. 777.) The matter was remanded for full resentencing, with appellant having the opportunity for a trial regarding factors in aggravation conducted in accordance with the current statutory requirements.