The court agreed with the parties that the appellant was entitled to a remand for resentencing due to the retroactive application of multiple changes in the law: Assembly Bill No. 124 (2021-2022 Reg. Sess.), which establishes a presumption that the trial court will impose the lower term when a defendant was under 26 years of age at the time of the offense and their age was a contributing factor in the commission of the offense; Assembly Bill No. 567 (2021-2022 Reg. Sess.), which generally limits the trial court’s ability to impose the upper term; Assembly Bill No. 518 (2021-2022 Reg. Sess.), which provides that a trial court is no longer required to impose a sentence under the crime providing for the longest possible sentence and may now sentence a defendant under any one of the applicable crimes; and People v. Tirado (2022) 12 Cal.5th 688, which held that if a trial court strikes or dismisses a Penal Code section 12022.53(d) enhancement, it may then impose an enhancement under section 12022.53(b) or (c). Further, Assembly Bill No. 333 (2021-2022 Reg. Sess.) significantly modified the requirements to prove gang enhancement under section 186.22, and because the jury convicted the appellant under the prior version of the law, his gang enhancements must be reversed.
Name: Double Punishment (PC 654)
Case #: F080327
Opinion Date: 05/11/2022
Attorney: Carla J. Johnson