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Name: Sentencing

The Court of Appeal held the resentencing court erred in relying on appellant’s criminal history from the probation report to impose the upper term. While Penal Code section 1170, subdivision (b)(3) allows the trial court to consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to the jury, a probation report is not a certified record of conviction.

Appellant did not forfeit the issue. All parties and the trial court understood that Senate Bill No. 567’s provisions applied at the resentencing hearing; the court expressly considered appellant request to impose the middle or lower term rather than the upper term; and appellant had no meaningful opportunity to specifically object to the trial court’s consideration of the probation report because the court did not indicate it was doing so until it actually announced the sentence at the conclusion of the hearing.

The error was not harmless. The Court of Appeal could not confidently conclude that the resentencing court would have chosen the upper term if it could rely only on the prior robbery conviction that the original sentencing court found true.

The matter was remanded for full resentencing.