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Filed 5/17/22 P. v. Harris CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

BRENDAN I. HARRIS,

Defendant and Appellant.

 A163259

 (San Mateo County Super. Ct.

 No. 18-NF-010558-A)

After the parties reached a plea agreement and defendant Brendan 

Harris entered a plea, the trial court imposed a sentence that included an 

upper term. On appeal, the parties agree Harris 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. 

BACKGROUND

The San Mateo District Attorney charged Harris with attempted 

murder (Pen. Code,1 §§ 664, 187, subd. (a); count 1), assault with a deadly 

weapon (§ 245, subd. (a)(1); count 2), and assault by means likely to produce 

great bodily injury (§ 245, subd. (a)(4); count 3). The information alleged 

enhancements including personal infliction of great bodily injury (§ 12022.7, 

subd. (a)) as to counts 2 and 3 and that Harris had a prior felony conviction 

1 Further undesignated statutory references are to the Penal Code. 
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that was a strike under sections 667 subdivisions (b)–(j) and 1170.12 and a 

serious felony conviction under section 667, subdivision (a)(1). 

In April 2021, the parties reached a plea agreement under which

Harris pleaded no contest to count 2 and admitted the great-bodily-injury and 

prior strike allegations in exchange for dismissal of the remaining allegations

with a Harvey waiver,

2 dismissal of another case, and a maximum sentence of 

11 years. 

At sentencing in July 2021, the trial court sentenced Harris to 11 years 

in prison, composed of the upper term of four years for the offense, doubled to 

eight years because of the prior strike, plus three years for the great-bodilyinjury enhancement. 

DISCUSSION

Since Harris’s sentencing in 2021, the sentencing law has changed. 

Effective January 1, 2022, S.B. No. 567 amended Penal Code 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 

2 “A Harvey waiver permits a trial court to consider facts underlying 

dismissed counts in determining the appropriate disposition for the offense of 

which the defendant was convicted.” (People v. Moser (1996) 50 Cal.App.4th 

130, 132–133; see People v. Harvey (1979) 25 Cal.3d 754.)
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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.” (Italics added.) 

Here, the trial court imposed the upper term, which now only may be 

imposed in compliance with section 1170, subdivision (b)(2). And, according 

to the probation report, Harris stated that he was physically abused by his 

father when he was a child, a circumstance that implicates consideration of 

section 1170, subdivision (b)(6). 

On appeal, Harris seeks remand for sentencing under both of these new 

provisions of section 1170. The Attorney General agrees the new provisions 

enacted by S.B. No. 567 apply retroactively to Harris and that the matter 

should be remanded for resentencing. 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.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Richman, Acting P.J.

_________________________

Mayfield, J.*

A163259, People v. Harris

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.