People v. Moreno CA1/2 ( 2022 )

Filed 7/22/22 P. v. Moreno CA1/2
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A164230
v.
CHRISTOPHER MORENO, (Lake County Super. Ct. Nos.
CR958048 & CR958409)
Defendant and Appellant.
Defendant Christopher Moreno pleaded no contest to (1) corporal injury
upon the mother of his children within seven years of a previous conviction
for the same offense (Pen. Code, § 273.5, subd. (f)(1)) and (2) criminal threats
(id., § 422) with the understanding that the terms for the two offenses would
be served concurrently and that certain other charges would be dismissed. In
October 2021, the trial court imposed an upper term of five years for corporal
injury with a prior conviction and a concurrent upper term of three years for
criminal threats.
On appeal, the parties agree defendant is entitled to resentencing
under Senate Bill No. 567 (2021-2022 Reg. Sess.) (S.B. No. 567). We agree
with the parties and remand for resentencing.
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DISCUSSION
Since defendant was sentenced in 2021, the sentencing law has
changed. Effective January 1, 2022, S.B. No. 567 amended Penal Code1
section 1170, so that an upper term may only be imposed in certain
circumstances and the lower term is the presumed term in other
circumstances. (§ 1170, subd. (b)(2) and (6).)
Section 1170, subdivision (b)(2), now provides in relevant part, “The
court may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Italics added.)
Section 1170, subdivision (b)(6), now provides in relevant part, “unless
the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if any of
the following was a contributing factor in the commission of the offense:
[¶] (A) The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence. [¶] (B) The person is a youth . . .,” meaning the person was under 26
years old when the offense was committed (§ 1016.7, subd. (b)). (Italics
added.)
Here, the trial court imposed upper terms, which now only may be
imposed in compliance with section 1170, subdivision (b)(2). In addition,
defendant was a youth when he committed the offenses (he was born in
1 Further undesignated statutory references are to the Penal Code.
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1996), and defendant reported that he suffered mental and physical abuse
from his father. Section 1170, subdivision (b)(6), now requires the trial court
to consider whether these circumstances contributed to the commission of the
offenses and, if so, the court must impose the lower term unless doing so
would be contrary to the interests of justice.
On appeal, defendant seeks remand for resentencing under these new
provisions of section 1170. The Attorney General agrees the new provisions
enacted by S.B. No. 567 apply retroactively to defendant and that the matter
should be remanded for resentencing.2 We agree with the parties and
remand the matter to the trial court for resentencing. (People v. Flores (2022)
73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under Penal
Code section 1170 as amended by S.B. No. 567].)
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
to sentence defendant under Penal Code section 1170 as amended by S.B. No.
567.
2 The Attorney General states that because resentencing is warranted
under section 1170, subdivision (b), it does not need to address defendant’s
claim that he is “entitled to the presumption of the low term pursuant to
section 1170, subdivision(b)(6)(A), because he suffered psychological, physical
or childhood trauma that was a contributing factor in the commission of the
offense.” (Italics added.) ~(RB 6, fn. 3)~ But it is undisputed that defendant
is entitled to raise the issue on remand.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Mayfield, J.*
A164230, People v. Moreno
*Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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