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Name: People v. Ellis
Case #: B325433
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/15/2024

The trial court struck two PC 667.5(b) priors at defendant's PC 1172.75 resentencing. Defendant argued on appeal that he did not receive a “full resentencing” because the trial court did not resentence to the middle term as generally required under amended PC 1170 (SB 567). The trial court and parties had not “expressly” mentioned SB 567 at resentencing, and the original sentence was a stipulated one. The Court of Appeal affirms, holding, among eight grounds for denying relief, that PC 1172.75(d)(4) precludes middle term resentencing when the original sentence imposed the upper term.

The full opinion is available on the court’s…

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Name: People v. Gonzalez (2024) 98 Cal.App.5th 1300
Case #: F084952
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/23/2024

Assembly Bill No. 333’s amendments to Penal Code section 186.22 did not change the status of defendant’s prior conviction as a strike. Defendant was found guilty of multiple firearm and drug offenses. The trial court sentenced him as a second strike offender after finding that he had been convicted in 2002 of felony possession of a firearm with a gang enhancement. On appeal, defendant argued that his prior conviction no longer qualified as a strike after AB 333’s amendments to section 186.22. Held: Affirmed. The Court of Appeal agreed with other cases holding that the plain language of the Three Strikes…

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Name: People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054
Case #: H049363
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/13/2023

The changes made by Senate Bill No. 567 to Penal Code section 1170(b) apply retroactively to convictions reached by plea agreements providing for a stipulated sentence. As part of a negotiated plea agreement, defendant pleaded no contest to charges of assault with a deadly weapon and hit-and-run driving resulting in permanent, serious injury after he purposely hit a person with his car. The trial court sentenced him to an aggregate stipulated sentence of eight years in prison, which included a four-year upper term for his conviction for assault with a deadly weapon. On appeal, defendant argued the postsentencing enactment of…

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Name: People v. Ruiz (2023) 97 Cal.App.5th 1068
Case #: B324477
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/13/2023

The resentencing court committed harmless error when it considered inapplicable aggravators to impose upper terms after Senate Bill No. 567 amended Penal Code section 1170. Ruiz was convicted of assault with a firearm with various enhancements, and this is his third appeal. His case had previously been remanded to the trial court for resentencing due to sentencing errors and new laws that applied in his case. At Ruiz’s second resentencing (which occurred after SB 567’s effective date), the trial court imposed a 4-year upper term on the assault with a firearm charge and the 10-year upper term for a firearm-use…

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Name: People v. Hall (2023) 97 Cal.App.5th 1084
Case #: A165406
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 12/13/2023

Senate Bill No. 567’s amendments to Penal Code section 1170(b)(1) do not require the prosecution to “plead” aggravating factors that it intends to urge at sentencing. In 2022, defendant pleaded no contest to two counts of committing lewd or lascivious acts on a child under the age of 14 years (§ 288(a)). At sentencing, the court found no mitigating factors and seven aggravating factors set forth in California Rules of Court, rule 4.421, and sentenced defendant to 10 years in prison, which included the upper term on one of the two counts. On appeal, defendant argued the aggravating factors found…

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Name: People v. Wiley (2023) 97 Cal.App.5th 676
Case #: A165613
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 11/29/2023

Trial court did not err under Penal Code section 1170 (as amended by Senate Bill No. 567) in imposing an upper term sentence after finding that certified records of convictions showed defendant’s crimes were increasing in seriousness and that he was not successful on probation. Wiley was on probation for a criminal threats conviction and committed a new offense. In sentencing, the trial court relied on certified rap sheets, finding that, beyond the mere fact of the convictions, the rap sheets showed two aggravating factors: that his crimes were increasing in seriousness and that he had failed to succeed on…

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Name: Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65
Case #: A166159
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 11/13/2023

The phrase “circumstances in aggravation” in Penal Code section 1170(b)(2) refers to the factors listed in California Rules of Court, rule 4.421, and the Legislature has not violated the separation of powers by referring to this rule. Zepeda was charged with felony offenses and his preliminary hearing occurred before Senate Bill No. 567 amended section 1170(b)(2) to provide that the trial court cannot impose a sentence exceeding the middle term unless it finds that a longer sentence is justified by “circumstances in aggravation of the crime” and “the facts underlying those circumstances” have been stipulated to by the defendant or…

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Name: People v. Suazo (2023) 95 Cal.App.5th 681
Case #: F082140
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/19/2023

A predrinking intent to drive is not required before a jury may find implied malice supporting a second degree Watson murder (People v. Watson (1981) 30 Cal.3d 290). Defendant, while intoxicated, drove his vehicle at a high rate of speed off the highway and into an area occupied by an adjacent tractor supply business. When the vehicle hit agricultural equipment the passenger was ejected and killed. Defendant fled. He was convicted of second degree implied malice Watson murder, as well as other counts. He appealed. Held: Remanded for resentencing. Defendant contended the evidence was insufficient to support his murder conviction,…

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Name: People v. Falcon (2023) 92 Cal.App.5th 911
Case #: F083577
Court: CA Court of Appeal
Opinion Date: 06/26/2023
Subsequent History: Opn. modified 7/13/2023

Resentencing for noncompliance with revised Penal Code section 1170(b) is unwarranted only where the sentence remains legally valid under federal and state law, and the record clearly indicates the trial court would have imposed the upper term had it know of its circumscribed sentencing discretion. Falcon was convicted of attempted murder and other offenses. His sentence included some upper terms, which he challenged on appeal. Held: Remanded for resentencing. Senate Bill No. 567 amended Penal Code section 1170(b) to limit a trial court’s discretion to impose an upper term sentence by creating a presumptive sentencing preference for the middle term.…

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Name: People v. Achane (2023) 92 Cal.App.5th 1037
Case #: A165968
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/28/2023

Because defendant’s upper term sentence was not unauthorized and an objection to the sentence would not have been futile, defendant forfeited his request for resentencing under the recent amendments to Penal Code section 1170 by failing to raise the issues below. In 2022, defendant violated probation. The trial court ordered him to serve a sentence previously imposed in 2020, with execution of sentence suspended; that sentence included an upper term. On appeal, defendant argued he is entitled to resentencing for retroactive application of Senate Bill No. 567 and Assembly Bill No. 124, which were in effect at the time he was…

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