Filed 7/12/23 P. v. Segarra CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. ISRAFAEL SEGARRA, Defendant and Appellant. H049740, H049741, H049742 (Monterey County Super. Ct. Nos. 21CR008326, 20CR009369, 21CR005100 )

MEMORANDUM OPINION We resolve this case by memorandum opinion under California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002)
97 Cal.App.4th 847, 853

– 855.)
Defendant pleaded no contest to charges in two cases , resulting in convictions for operating a vehicle chop shop (Veh. Code, § 10 8 01); receiving stolen property (Pen. Code, § 496d, subd. (a)); and attempting to dissuade a witness (Pen. Code, § 136.1). I n a third case a jury convicted him of reckless evasion of a police officer (Veh. Code, § 2800.2, subd. (a)) and resisting arrest (Pen. Code, § 148, subd. (a)(1)). For th os e three

ca ses d efendant was sentenced to an aggregate prison term of three years eight months,
arrived at as follows: The upper term of three years for evading a police officer, and a concurrent six months for resisting arrest ; a consecutive eight months for attemp ting to dissuade a witness; a c o ncurrent low term of two years for operating a chop shop ; and a
concurrent middle term of two years for receiving stolen property , with one year to be2

served on mandatory supervision . Defendant filed notices of appeal in al l three cases , which we ordered considered together.
Defendant contends he is entitled to resentencing under new legislation that applies retroactively and could reduce his aggregate prison term

. 1 After he was sentenced, the Legislature amended Penal C ode section 1170 to allow an aggravated term

to be imposed only where the aggravating factors have been admitted by the defendant or
found true at trial . (Sen. Bill No. 567 (2020

- 2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3.) The new legislation further provides that whe re the defendant “has experienced psychological, physical, or childhood trauma” that contributed to the offense , the trial court must impose the low term, unless aggravating factors outweigh mitigating
circumsta nces

. (Pen. Code, § 1170, subd. (b)(6).) The Attorney General agree s th e ameliorative amend ments apply retroactively but argues remand is not required because
defendant was not prejudiced by application of the old standards ; that is, his sentence
would n ot have been more favorable had the new law been applied. Appellate courts are divided on how to determin e prejudice in this situation , and
the issue is pending before the California Supreme Court. ( See People v. Dunn (2022)
81 Cal.App.5th 394, rev. gra nted Oct. 12, 2022, S275655 [ if at least one aggravating
factor was found true beyond a reasonable doubt and remaining aggravating factors are reasonably probable to have been found true , assess likelihood same sentence would be imposed] ; and c ompare Peopl e v. Lopez (2022) 78 Cal.App.5th 459 [ if fewer than all aggravating factors were found true by the jury beyond a reasonable doubt , the record must clearly show the same sentence would be imposed considering only the factors that unquestionably would have been found true by the jury ] and People v. Flores (2022)

1 Defendant informs us he is no longer in prison but asserts the case is not moot because reducing his sentence would mean he spent excess time in custody , which could be credited against his remaining time on post release community supervision. We agree the appeal is not moot for that reason. (See People v. Warren (2018) 24 Cal.App.5th 899 , 919.)3

75 Cal.App.5th 495, 500 [ error harmless if at least on e aggravating factor relied on was found by a jury or unquestionably would have been found by a jury beyond a reasonabl e doubt ].) In selecting the upper term of three years for evading a police officer, the trial
court relied on only two aggravating factors: defendant’s prior criminal record, and his poor performance on probation and parole. Even applying the strictest of the various approaches to assessing prejudice, we acknowledge that both of those facts would have been proven true beyond a reasonable doubt based on information readily available in official records had they been submitted to a jury. (Indeed, under th e new law prior convictions need not be decided by a jury at all if they can be established by a certified record of conviction. (See Pen. Code, § 1170, subd. (b)(3).)) But satisfactory proof of the aggravating factors relied on by the trial court is not necessarily dispositive in this case. As we have noted, the new law also prescribes that the low term be imposed where the defendant “has experienced psychological, physical, or childhood trauma” that contributed to the offense and is not outweighed by a ggravating factors. (Pen. Code, § 1170, subd. (b)(6).) In light of this additional change , we cannot conclude the court would have imposed the same sentence had the amended law been in effect.
The record here contains information suggesti ve of possible childhood trauma. The probation report notes defendant has no contact with his father; could benefit from grief and loss counseling; and that drugs and alcohol have had a significant effect on his
life. We agree with the Attorney General that those facts do not necessarily establish
childhood trauma. But it is also significant that defense counsel had less incentive to develop evidence of trauma before this particular law change

. Because possible f urther
evidence establish ing trauma could inform the trial court ’s exercise of discretion , the record does not adequately show that the same sentence would have been imposed had
the new law been in place , regardless of which standard is applied to assess prejudice

. We will therefore reverse and remand for r esentencing under the current standards.4 DISPOSITION The judgment is reversed and the matter remanded for resentencing. Defendant’s
convictions shall remain. On remand, the prosecution may elect to proceed by meeting the requirements of Penal Code section 1170, subdivision (b)(2) regarding aggravating
circ umstances or may elect to proceed on the current record. D efendant shall be allowed the opportunity to present evidence in mitigation. The trial court shall then resentence defendant according to the current version of Penal Code section 1170.____________________________________ Grover, J.

WE CONCUR:

____________________________ Greenwood, P. J.

____________________________ Lie, J.

H049740, H049741, H049742 People v. Segarra