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Filed 3/30/22 P. v. Dean CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Modoc)

----

THE PEOPLE,

Plaintiff and Respondent,

v. STEPHEN WEST DEAN III,

Defendant and Appellant. C093782 (Super. Ct. No. F20197)

In light of recently enacted Senate Bill No. 567 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 731 , § 1.3 ) (Senate Bill 567) , effective January 1, 2022, defendant Stephen
West Dean III appeals the upper

- term sentenc e imposed following his plea of guilty to battery with serious bodily injury. D efendant contends Senate Bill 567 necessitates a remand for resentencing in light of the recent statutory changes limiting the trial court’s discretion to impose the upper term

. The People agree. We remand for resentencing

.2 I. BACKGROUND
D efendant entered an open plea to battery with serious bodily injury (Pen. Code , §
24 3 , subd. ( d )) following a fight with another inmate while hous ed at Modoc C ounty J ail
when he was 24 years old

. 1 The probation report recommended the court impose an upper

- term sentence of four years , based on a number of aggravating factors, including : (1) the crime involved great violence resulting in great bo dily injury; (2) the crime required planning, sophistication, and professionalism; (3) the cri me indicated that defendant was a danger to society; and (4) defendant’s criminal history indicates increasing seriousness . The probation officer concluded that there were no facts limiting the defendant’s culpability nor were there any circumstances in mitigation. The trial court considered defendant’s “good demeanor” and “good decorum” throughout the proceedings as a mitigating factor.
Nonetheless , the court stated, “there’s no question in my mind, in reviewing this [probation] report, that the aggravating circums tances far outweigh ” those in mitigation and therefore the upper term was appropriate

. T he trial court sentenced defendant to the four

- year upper term. 2 Defendant timely appealed on February 12, 2021.
II. DISCUSSION Prior to Senate Bill 567, the Pe nal Code provided that , “the choice of the appropriate term shall rest within the sound discretion of the court.

. . . In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports, inclu ding reports received pursuant to s ection 1203.03, and

1 Undesignated statutory references are to the Penal Code.

2 It appears the trial court initially misspoke and pronounced that defendant be sentenced to the upper term of 94 years. The entirety of the record makes clear defendant was sentenced to four years.3

statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence
introduced at the sen tencing hearing.” (§ 1170, former subd. (b).)
Senate Bill 567 amended sections 1170 and 1170.1 to limit the trial court’s discretion to impose the greater term. Specifically, it limited the trial court’s ability to impose a sentence greater than the mid

- term unless the aggravating factors justify doing

so and the facts underlying the circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt. (§ 1170, subd. (b)(1) & (2), as amended by Stats.
20 20 , ch. 29, § 15.)
Addit ionally, as relevant to defendant’s appeal , section 1170, subdivision (b)(6) provides: “[U]nless 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: [¶]

. . . [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.” ( S ee § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any person under 26 years of age on the date the offense was committed”]. ) “The People correctly concede the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal.” ( People
v. Flore s (2022) 73 Cal.App.5th 1032, 1039.)
Gener ally, statu t es are presumed to operate prospectively. ( People v. Brown (2012 ) 54 Cal.4th 314, 323.) In re Estrada (1965) 63 Cal.2d 740 ( Estrada ) established an exception and governs retroactive application for ameliorative changes in the law.
Under Estr ada , “[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of4

the legislation’s effective date. [Citation.] This presumption ‘rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not .’ ” ( People
v. Gentile (2020) 10 Cal.5th 830, 852.) Statutes can apply retroactively to plea agreements through Estrada even when the contested legislation lacks discussion of pleas specifically. ( People v. Stamps (202 0 ) 9 Cal.5th 685, 698

- 699 .) We re view the application of retroactivity de novo. ( People v. Andahl (2021) 62 Cal.App.5th 203, 213, review granted June 16, 2021, S268336.) Senate Bill 567 is ameliorative as it limits the trial court’s ability to impose a sentence beyond the middle term. T he bill lacks language indicating a saving s clause or
some other signal that it should only apply prospectively. The legislative history similarly lacks an intention for the bill to only apply prospectively. As all of the relevant considerations have been met, w e agree with the parties that Estrada applies to defendant’s no nfinal appeal. The People also concede that because t he trial court imposed the four

- year upper term even though defendant had not stipulated to the facts supporting the circumstances in aggravation and those facts had not been found true beyond a reasonab le doubt , we must remand for the trial court to resentence defendant consistent with the changes made to section 1170, subdivision (b)

. We accept the People’s concession and will remand for resentencing

.5 III. DISPOSITION
We remand the matter for resentencing under Penal Code section 1170, as amended by Senate Bill 567 and related legislation . In all other aspects, the judgment is
affirmed.

/S/
RENNER, J.

We concur:

/S/ MAURO, Acting P. J.

/S/
EARL, J.