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Filed 9/28/22 P. v. Cea CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN L. CEA,

Defendant and Appellant.

 A163879

 (Mendocino County

 Super. Ct. No.

 SCUKCRCR202036679 &

 SCUKCRCR2020368942)

Defendant and Appellant John L. Cea (Appellant) seeks remand for 

resentencing under amendments to Penal Code section 1170, subdivision (b).1 

Respondent properly concedes that remand is appropriate.

PROCEDURAL BACKGROUND

In April 2021, the Mendocino County District Attorney filed an 

information (case number SCUKCRCR2020368942) charging Appellant with 

second degree robbery (§§ 211, 212.5, subd. (c); count one); driving against 

traffic while evading a police officer (Veh. Code, § 2800.4; count two); and 

reckless driving while evading a police officer (Veh. Code, § 2800.2, subd. (a); 

count three). In a separate information filed the same day (case number 

1 All undesignated section references are to the Penal Code.
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SCUKCRCR202036679), the district attorney charged Appellant with grand 

theft (§ 487, subd. (a)).

In July 2021, Appellant entered open no contest pleas to robbery and 

grand theft. Pursuant to the plea agreement, the trial court dismissed the 

remaining counts in case number SCUKCRCR2020368942.

In September 2021, the trial court denied probation and sentenced 

Appellant to a term of five years and eight months in prison, composed of the 

five-year upper term for robbery and eight consecutive months (one-third of 

the middle term) for grand theft. In imposing the upper term for robbery, the 

court appeared to rely on aggravating factors identified in the probation 

report and prior convictions listed in the report.

The present appeal followed.

FACTUAL BACKGROUND

Defense counsel stipulated to the following factual basis for Appellant’s 

pleas as stated by the prosecutor: “[O]n October 23, 2020, the defendant stole 

an ATM cassette from the owner. [¶] It contained $32,000 in cash, and the 

cassette was worth approximately $500. He took this without permission,

and permanently deprived the owner of that money and cassette. . . . [¶] [O]n 

December 8, 2020, the defendant and another defendant, Christian Flores, 

who has already been sentenced, arranged to do a marijuana deal at the 

Burger King in Willits. [¶] And when the seller brought the marijuana to the 

location, this defendant and his codefendant took that marijuana by force and 

fear from the seller, and then fled the scene.”

DISCUSSION

“Effective January 1, 2022, our determinate sentencing law, section 

1170, was amended in several fundamental ways. (See Sen. Bill No. 567 

(2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–
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2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.) Relevant here, Senate Bill 

No. 567 amended section 1170, former subdivision (b) by making the middle 

term the presumptive sentence for a term of imprisonment unless certain 

circumstances exist. (Stats. 2021, ch. 731, § 1.3, adding Pen. Code, § 1170, 

subd. (b)(1), (2).) This bill also created a presumption in favor of a low prison 

term when a defendant is under 26 years of age at the time of the offense. 

(Stats. 2021, ch. 695, § 4, adding Pen. Code, § 1016.7; Stats. 2021, ch. 695, 

§ 5.1, adding Pen. Code, § 1170, subd. (b)(6)(B).)” (People v. Flores (2022)

73 Cal.App.5th 1032, 1038, fn. omitted (Flores).) As the parties agree, “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.” (Flores, at 

p. 1039.)

The first change relevant in the present case is to section 1170, 

subdivision (b)(2), which now provides that a trial 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.” (§ 1170, subd. (b)(2), added by Stats. 2021, ch. 731, § 1.3.) Also 

relevant is section 1170, subdivision (b)(3), which now provides, 

“Notwithstanding paragraphs (1) and (2), the court may consider the 

defendant’s prior convictions in determining sentencing based on a certified 

record of conviction without submitting the prior convictions to a jury.” 

(§ 1170, subd. (b)(3), added by Stats. 2021, ch. 731, § 1.3.)
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In the present case, the parties agree the trial court imposed the upper 

term based on aggravating factors identified by the probation department 

that were not stipulated to by Appellant or found true beyond a reasonable 

doubt at trial. The parties also agree the trial court considered Appellant’s 

alleged prior convictions based on the information in the probation report 

without reviewing any certified records of conviction. Respondent does not 

argue this court could find the error was harmless. (See People v. Wandrey

(2022) 80 Cal.App.5th 962, 982.) As the parties agree, it is appropriate to 

remand for resentencing. (Id. at p. 983.)

The second change relevant in the present case is to section 1170, 

subdivision (b)(6), which now 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.” (§ 1170, subd. (b)(6); see 

§ 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 parties 

agree Appellant was under 26 years old when he committed the offenses at 

issue on appeal. The parties further agree it is appropriate to remand for the 

trial court to apply section 1170, subdivision (b)(6) in the first instance. 

(Flores, supra, 73 Cal.App.5th at p. 1039.)

DISPOSITION

The judgment is reversed, and the matter is remanded to the trial court 

for resentencing under the amended version of section 1170, subdivision (b).
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SIMONS, J.

We concur. 

JACKSON, P. J.

WISEMAN, J.*

(A163879)

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.