Filed 5/17/22 P. v. Harris CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A163259
v.
BRENDAN I. HARRIS, (San Mateo County Super. Ct.
No. 18-NF-010558-A)
Defendant and Appellant.
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-bodily-
injury 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.
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