People v. Myers CA1/2

Filed 7/26/22 P. v. Myers 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A162896
v.
JUSTIN MICHAEL MYERS, (Del Norte County
Super. Ct. No. CRF209442)
Defendant and Appellant.

Justin Michael Myers was sentenced to nine years in prison after
pleading no contest to driving under the influence of alcohol (DUI), causing
injury, within 10 years of another DUI offense, and admitting allegations
that he personally inflicted great bodily injury and had suffered a prior strike
conviction. He contends the trial court abused its discretion in denying his
Romero1 motion to dismiss the prior strike conviction. We disagree. Due to
legislative developments since Myers was sentenced, however, the matter
must be remanded for resentencing in light of amendments to Penal Code
section 1170.
BACKGROUND
On August 20, 2020, shortly after 10:00 p.m., Myers was observed
driving at a high rate of speed on Highway 199, tailgating other vehicles, and

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

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crossing double yellow lines to pass vehicles. He cut a corner and drove onto
a gravel shoulder on the opposite side of the road, losing control as the vehicle
fishtailed and crashed into a car that was parked on the shoulder. A man
standing outside the parked car suffered a broken leg which, at the time of
sentencing nine months later, still caused him pain, limited his activities,
and required medical attention; he also suffered “PTSD-type [post-traumatic
stress disorder] symptoms.” Both cars sustained major damage, and the
victim had incurred $25,000 in medical bills at the time of the hearing.
A police officer who responded to the scene of the collision observed
signs that Myers was intoxicated, including the odor of alcohol on his breath
and emanating from his person, red and watery eyes, and slightly slurred
speech; subsequent testing showed Myers’s blood alcohol content was 0.121
percent. Myers told the officer the crash was his fault, but said he had not
been driving very fast, had been unable to make the corner due to worn rear
tires, and had consumed only one beer earlier in the day. When interviewed
by probation, he accepted responsibility for the collision and admitted he
should not have been driving. He told the probation officer he had made
changes in his life, was a “validated ‘Northener’ drop out, his last grant of
Post Release Community Supervision was successfully discharged at the nine
month mark in 2017” and since then he had no new arrests or convictions.
Myers had previously been convicted of four felonies and one
misdemeanor. He was convicted in May 2012 of felony unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)), and granted probation; he
sustained a probation violation in September 2012 and probation was
revoked in February 2013 due to a new offense. In November 2012, he was
convicted of felony first degree burglary (Pen. Code, §§ 459/460) and
misdemeanor DUI (Veh. Code, § 23152, subd. (a)), and sentenced to four

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years in prison. In December 2013, he was convicted of receiving stolen
property (Pen. Code, § 496, subd. (a)) and reckless evading of a police officer
(Veh. Code, § 2800.2, subd. (a)), and sentenced to six years in prison.
By information filed on January 27, 2021, Myers was charged with two
felony counts: driving under the influence of alcohol, causing injury (Veh.
Code, § 23153, subd. (a)) (count 1) and felony driving with 0.08 percent or
more blood alcohol content, causing injury (Veh. Code, § 23153, subd. (b))
(count 2). It was alleged that the offense occurred within 10 years of a
conviction for violation of section 23152 (Veh. Code, § 23560); that Myers
personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a),
causing the offense to become a serious/violent felony (Pen. Code, §§ 1192.7,
subd. (c)(8), 667.5, subd. (c)(8)); that Myers caused bodily injury to more than
one victim (Veh. Code, § 23558); and that Myers had suffered a prior
conviction for first degree burglary (Pen. Code, § 459), a serious felony for
purposes of sentence enhancement (Pen. Code, § 667, subd. (a)(1)), and a
strike (Pen. Code, §§ 1170.12, 667.) A third count charged Myers with
misdemeanor driving with a suspended driver’s license, causing injury (Veh.
Code, §§ 14601.2, subd. (a), 14601.4).
On April 1, 2021, pursuant to a plea agreement, Myers entered a plea
of no contest to count 2 (Veh. Code, § 23153, subd. (b)) and admitted the
allegations that the offense occurred within 10 years of another DUI offense
(Veh. Code, § 23560), that he personally inflicted great bodily injury (Pen.
Code, § 12022.7), and that he had suffered a prior strike conviction (Pen.
Code, § 1170.12, subd. (c)(1)). This was an open plea with potential exposure
of nine years, and it was contemplated that Myers would move to strike the
prior strike. The charges in counts 1 and 3 were dismissed, as were the
allegations that Myers caused injury to more than one victim (Veh. Code,

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§ 23558), had a prior serious felony conviction and the present offense is a
serious and/or violent felony (Pen. Code, § 667, subd. (a)(1)), and caused
bodily injury while driving with a suspended license (Veh. Code, § 14601.4).
At sentencing on June 7, 2021, the trial court denied Myers’s invitation
to strike his prior strike conviction and sentenced him to nine years in prison:
the upper term of three years for the section 23153 conviction, doubled due to
the prior strike, plus three years for the great bodily injury enhancement.
Myers timely appealed.
DISCUSSION
I.
“ ‘[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law, on its
own motion, “in furtherance of justice” pursuant to Penal Code [section]
1385[, subdivision] (a), or in reviewing such a ruling, the court in question
must consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may
be deemed outside the scheme’s spirit, in whole or in part, and hence should
be treated as though he had not previously been convicted of one or more
serious and/or violent felonies.’ ” (People v. Carmony (2004) 33 Cal.4th 367,
377 (Carmony), quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
“ ‘[T]he Three Strikes initiative, as well as the legislative act
embodying its terms, was intended to restrict courts’ discretion in sentencing
repeat offenders.’ (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end,
‘the Three Strikes law does not offer a discretionary sentencing choice, as do
other sentencing laws, but establishes a sentencing requirement to be applied
in every case where the defendant has at least one qualifying strike, unless

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the sentencing court “conclud[es] that an exception to the scheme should be
made because, for articulable reasons which can withstand scrutiny for
abuse, this defendant should be treated as though he actually fell outside the
Three Strikes scheme.” ’ ” (Carmony, supra, 33 Cal.4th at p. 377, quoting
People v. Strong (2001) 87 Cal.App.4th 328, 337–338.) “ ‘[T]he court must
consider evidence offered by the defendant in support of his assertion that the
dismissal would be in furtherance of justice.’ (Rockwell v. Superior
Court (1976) 18 Cal.3d 420, 441.) And ‘[w]hen the balance falls clearly in
favor of the defendant, a trial court not only may but should exercise the
powers granted to him by the Legislature and grant a dismissal in the
interests of justice.’ (People v. Superior Court (Howard) (1968) 69 Cal.2d 491,
505.)” (Carmony, at p. 375.)
We review the trial court’s refusal to dismiss or strike a prior serious
and/or violent felony conviction allegation for abuse of discretion. (Carmony,
supra, 33 Cal.4th at p. 376.) “ ‘ “[T]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set
aside on review.” ’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
977–978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5
Cal.App.4th 822, 831.)” (Carmony, at pp. 376–377.) “[A] ‘ “decision will not
be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.’ ” ’ (Alvarez, at p. 978, quoting People v.
Preyer (1985) 164 Cal.App.3d 568, 573.)” (Carmony, at p. 377.) Thus, “[t]o
show an abuse of discretion, the defendant must show that the trial court’s

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decision was ‘so irrational or arbitrary that no reasonable person could agree
with it.’ ” (People v. Mendoza (2022) 74 Cal.App.5th 843, 856, quoting
Carmony, at p. 377.)
Myers maintains the trial court should have treated him as though he
fell outside the “Three Strikes” scheme. He contends the court abused its
discretion in failing to consider that he was 18 years old when he pleaded
guilty to the prior conviction for first degree burglary; 12 years had elapsed
between that offense and the current one; and the current offense stemmed
from alcohol abuse rather than “sinister motives” and did not involve
intentional infliction of harm or use of a weapon. He takes issue with the
court’s characterization of him as a “career criminal” despite the remoteness
of his prior offenses and the positive changes he had made in his life.
At sentencing, defense counsel asked the court to dismiss the strike
prior and/or the great bodily injury enhancement (either of which would have
reduced the sentence to six years), and also to consider reducing the offense
to a misdemeanor (Pen. Code, § 17, subd. (b)). Counsel described Myers as
having worked to overcome a difficult background: His father, a “ranking
member of the Hell’s Angels,” was abusive and abandoned the family shortly
after Myers was born; his mother was emotionally and physically abusive
toward Myers throughout his childhood; he joined a gang at age 14, was shot
six times and nearly died; and he was diagnosed with and still suffered from
PTSD due to his traumatic childhood. While in prison for burglary and
receiving stolen property, Myers decided to give up his gang affiliation and
live crime free. Since his release from prison, he had gotten a barber’s license
and had supported himself by lawful means, most recently working as a
counter supervisor in a supermarket.

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 Counsel argued that Myers’s current offense did not involve intentional
use of force or violence, he was cooperative with law enforcement, he
admitted wrongdoing early in the proceedings, showed remorse, and
personally apologized to the victim. Stating that Myers was driving to offer
help in response to an emergency call from a friend who suffered from PTSD,
counsel maintained he used bad judgment in driving when he had been
drinking, but did not display the “criminal mindset” the Three Strikes law
was meant for and should not have three years added to his sentence for the
strike “that occurred when he was 22.” Myers personally told the court he
understood he made a “wrong decision” getting in the car that night and was
“speeding at a certain point at a certain time,” but said it was “not what it
was made out to be,” his tire popped and threw him off guard, and he hit the
other car because it was “on the opposite side facing the other way.” Myers
said he understood the victim had PTSD and ongoing medical issues, but did
not understand “how he is making it seem like he is hurt so bad” when a
video showed him kayaking and “jumping down rocks” three weeks after the
incident.
The prosecutor disputed defense counsel’s attempts to place part of the
blame on the victim for how he was parked, downplay the victim’s injuries,
and overstate the length of time since Myers’s last charges.2 The prosecutor
emphasized the seriousness of Myers’s present offense: Despite being
prohibited from legally driving at all because his license was suspended, he
drove recklessly at high speed on a curvy road while intoxicated and caused
great bodily injury to the person he hit. The prosecutor pointed out that

2Defense counsel focused on the date Myers’s prior offenses were
committed rather than the date of conviction, stating that the conduct
underlying his strike offense occurred in 2009, but he was not convicted until
2012, after being on a period of supervision which was then revoked.

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Myers, having previously been convicted of a DUI, had received advisements
about the dangers of drinking and driving,3 that his prior convictions
indicated he had issues with vehicles that posed a danger to the public, and
that he had already received the benefit of having the Penal Code section
667, subdivision (a)(1), enhancement stricken as part of his plea agreement,
thus taking five years off his sentence.
The probation officer agreed with the prosecutor. The probation officer
acknowledged Myers’s success on postrelease community supervision (PRCS)
after his last release from prison and fact that he had no arrests or
convictions for four years, but maintained this did not mitigate the damage
done in the present case. Commenting on the victim’s PTSD-like symptoms,
the probation officer related that “just talking about it over the phone, he
audibly started to cry about getting into the vehicle to go to his doctor’s
appointments and go across town; it’s a traumatic event.” The probation
department believed striking the strike was not in the interest of justice
because Myers “got intentionally behind the wheel of the car and knew he
was driving and was significantly intoxicated. And based upon his prior
conviction, he knew better.”
The trial court declined to dismiss the prior strike, explaining it was
not persuaded to do so in light of the number of Myers’s convictions, the

3 Pursuant to Vehicle Code section 23593, subdivision (a), “[t]he court
shall advise a person convicted of a violation of Section 23103, as specified in
Section 23103.5, or a violation of Section 23152 or 23153, as follows: [¶] ‘You
are hereby advised that being under the influence of alcohol or drugs, or both,
impairs your ability to safely operate a motor vehicle. Therefore, it is
extremely dangerous to human life to drive while under the influence of
alcohol or drugs, or both. If you continue to drive while under the influence of
alcohol or drugs, or both, and, as a result of that driving, someone is killed,
you can be charged with murder.’ ” This is referred to as the Watson
advisement, after People v. Watson (1981) 30 Cal.3d 290, 296.

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majority of which involved dangerous “behind-the-wheel” conduct, and the
fact that the present case involved considerable damage, including bodily and
psychological injury to the victim. The court stated: “He has maimed an
individual and maybe permanently and I’m convinced of that. [¶] And when
probation calls a full grown man can be brought to tears and may be
permanently maimed, this is not a kind of case Romero should be given for.”
The court acknowledged, “it appears to me Mr. Myers has overcome a lot of
his prior history, gang activity, that’s a huge thing that ought to be
recognized and applauded, even though a lot of damage was done in this
particular case. . . .”
Myers argues the trial court failed to consider that he committed the
strike offense 12 years before the current one, when he was 18 years old—a
youth offender (Pen. Code, § 3051, subd. (a)(1)) with “diminished culpability”
due to immature judgment and limited self-control, and “greater prospects for
reform.” (See Miller v. Alabama (2012) 567 U.S. 460, 471; People v. Avila
(2020) 57 Cal.App.5th 1134, 1142 (Avila).) He relies heavily on Avila, which
held that the trial court abused its discretion in failing to strike any of the
defendant’s three prior strikes and that the sentence constituted cruel and
unusual punishment under the California Constitution. (Id. at pp. 1139–
1140.)
Avila was an example of the “extraordinary” case in which “no
reasonable people could disagree that the criminal falls outside the spirit of
the three strikes scheme.” (Carmony, supra, 33 Cal.4th at p. 378.) The
defendant in that case demanded rent money from a man selling oranges and
flowers at a freeway off-ramp and, when the man said he could not pay,
squashed two bags of oranges; the next day, he approached a different man
selling oranges near the same off-ramp and stomped on two bags of oranges,

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saying “ ‘money, money, money.’ ” (Avila, supra, 57 Cal.App.5th at p. 1139.)
The defendant was convicted of attempted extortion of the first man and
attempted second degree robbery of the second man. (Ibid.) The trial court
denied his motion to strike one of his three admitted prior strike convictions
and sentenced him to 25 years to life plus 14 years. (Ibid.)
Avila held the court abused its discretion in failing to consider the
remoteness of the prior strikes—two committed on a single occasion 28 years
before commission of the current offenses and one committed 26 years before.
(Avila, supra, 57 Cal.App.5th at p. 1141.) The court also did not consider the
defendant’s youth at the time he committed those prior offenses, 18 and 20
years of age respectively, mistakenly believing it was not permitted to do so.
(Id. at pp. 1141–1142.) Moreover, the court abused its discretion in relying
upon impermissible factors to find the defendant fell within the spirit of the
Three Strikes law, viewing the current offenses as “ ‘violent’ and ‘brutal’ ” by
speculating about what might have happened if the police had not been
called, thus “implying the infliction of physical harm to the victims that never
appeared in the evidence at trial,” and inaccurately characterizing the
defendant as a “career or habitual criminal” when he had committed no
further violent felonies and his offenses in the decade prior to the current
offenses were misdemeanors. (Id. at pp. 1142–1143.)
The circumstances in Avila differ from those here in at least two
critical ways. First, Avila’s current offenses involved no violence: Attempted
extortion is not a serious or violent felony within the meaning of the Three
Strikes law and attempted robbery is a serious offense but not a violent one.
(Pen. Code, §§ 1192.7, subd. (c)(39); 667.5, subd. (c).) Myers’s current offense,
in which he inflicted great bodily injury on the victim, is both a serious and a
violent felony. (Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).) While

10
there is no suggestion Myers intended to inflict the physical and
psychological injuries he caused the victim to suffer, he intentionally drove
with a suspended license, while significantly intoxicated, and his extremely
reckless driving posed considerable danger to anyone on the road, as well as
causing actual harm in the collision. Myers was necessarily aware of the
danger he posed: Having previously been convicted of a DUI offense, we
presume he received the Watson advisement informing him that driving
under the influence is dangerous to human life, as required by Vehicle Code
section 23593.
Second, Avila’s prior strikes were significantly more remote. Counting
from the date of commission, as Myers points out the Avila court did (Avila,
supra, 57 Cal.App.5th at p. 1141 [“Avila committed his first strike
offenses . . . in 1990”]), and accepting Myers’s representation that the
burglary he was convicted of in 2012 was committed in 2009, the strike would
have been 11 years old when he committed the current offense. This time
lapse is not brief, but it is far shorter than the 28 and 26 years in Avila. And
the strike was followed by additional felony convictions in 2013, for which
Myers was in prison or on PRCS until 2017—only a few years prior to the
current offense.
Myers’s prior non-strike convictions were also relevant. His prior DUI
conviction, although a misdemeanor, confirms his knowledge of the
dangerousness of driving while intoxicated, as indicated above. His felony
convictions for unlawful driving or taking of a vehicle and driving in willful or
wanton disregard for the safety of persons or property show his current
offense to be part of a pattern of illegal and dangerous conduct involving
vehicles.

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 Pointing to the Avila court’s discussion of the potentially mitigating
circumstance that the defendant was under 21 years of age when he
committed his strike offenses (Avila, supra, 57 Cal.App.5th at p. 1142), Myers
complains that the trial court failed to consider that his prior convictions
“reflect the poor neurological development of a youth whose ‘lack of maturity
and [ ] underdeveloped sense of responsibility [led] to recklessness,
impulsivity, and heedless risk-taking.’ (Miller v. Alabama, supra, 567 U.S. at
p. 471.)” This point was not raised in the trial court: Myers argued several
mitigating circumstances, including that the prior strike was remote, but it
did not argue Myers’s culpability for the prior strike was reduced due to his
age at the time it was committed. “A party cannot argue the court erred in
failing to conduct an analysis it was not asked to conduct.” (People v. Partida
(2005) 37 Cal.4th 428, 435.)
In any event, the trial court was surely aware that Meyers was young
when he committed his prior offenses, as he was only 30 years old at
sentencing. “Avila does not mandate consideration of a defendant’s age at
the time of a first strike; it simply identifies such age as potentially relevant.
By identifying broad categories of information—‘the nature and
circumstances of [the defendant’s] present felonies and prior serious and/or
violent felony convictions, and the particulars of [the defendant’s]
background, character, and prospects’ (Williams, supra, 17 Cal.4th at
p. 161)—as the factors relevant to the Romero analysis, Williams gives trial
judges substantial leeway in determining the most significant facts in each
case.” (People v. Mendoza (2022) 74 Cal.App.5th 843, 861.) Here, the fact
that several years had passed since the last of Myers’s priors undermines
Myers’s attempt to cast the priors as youthful transgressions: The current
offense continued a pattern of convictions for conduct reflecting what the trial

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court referred to as “behind-the-wheel issues” despite Myers’s increased
age—and was of increased seriousness.
Myers also contends the trial court abused its discretion by failing to
consider that the consecutive three-year great bodily injury enhancement
already addressed the fact that Myers might have permanently injured a
person. Myers cites no authority for the proposition that a fact underlying an
enhancement may not also be considered in deciding whether to strike a prior
serious felony conviction allegation. Indeed, his argument appears to treat
the decision at issue as a discretionary sentencing choice rather than
recognizing that he was asking the trial court to depart from a sentencing
requirement prescribed by the Legislature and the electorate. (Carmony,
supra, 33 Cal.4th at p. 377; People v. McGlothin (1998) 67 Cal.App.4th 468,
476.)
Myers asserts that no reasonable person could view imposition of a
nine-year prison term for a DUI, in the circumstances of this case, as just.
We cannot agree. Myers initially faced a potential sentence of 15 years; his
plea agreement reduced that exposure through dismissal of some of the
charges and enhancement and he entered his plea knowing he could be
subject to a nine-year sentence. His view that the nine-year sentence is
unduly harsh depends on downplaying the intentionality of the conduct
underlying his present conviction for a serious and violent felony offense, the
degree of harm he caused to the victim, and the significance of his history of
convictions and violations of probation and parole—all points with which the
trial court disagreed, as underscored by its decision to impose an upper term
sentence.
The trial court acknowledged that Myers having “overcome a lot of his
prior history, gang activity” was a “huge thing that ought to be recognized

13
and applauded,” but nevertheless concluded the seriousness of the current
offense made it inappropriate to view him as outside the spirit of the Three
Strikes law. Even if the court had believed a nine-year sentence too severe
for Myers’s current offense, that belief would not have been sufficient to allow
the court to substitute its view of a better sentence for the “particular
sentencing scheme for repeat offenders” chosen by “the Legislature and the
People, by initiative.” (People v. McGlothin, supra, 67 Cal.App.4th at p. 476.)
In short, this case is not so extraordinary that we can find the trial court
abused its discretion in declining to strike the prior serious/violent felony
conviction at sentencing.
II.
As earlier noted, in sentencing Myers to nine years in prison, the trial
court imposed the upper term of three years for the Vehicle Code section
23153 conviction, doubled due to the prior strike, plus three years for the
great bodily injury enhancement. At the time Myers was sentenced, Penal
Code section 1170, subdivision (b) gave the trial court broad discretion to
decide which of the three terms specified for an offense would best serve the
interests of justice. (See Pen. Code, § 1170, subd. (b), as amended by Stats.
2020, ch. 29, § 14.)
Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.)
amended Penal Code section 1170, subdivision (b) in a number of respects,
two of which are relevant to this case. First, Senate Bill No. 567 made the
middle term of imprisonment the presumptive sentence. (Pen. Code, § 1170,
subd. (b)(2); Stats. 2021, ch. 731, § 1.3.) Under the amended statute, “[a] trial
court may impose an upper term sentence only where there are aggravating
circumstances in the crime and the defendant has either stipulated to the
facts underlying those circumstances or they have been found true beyond a

14
reasonable doubt. ([Pen. Code,] § 1170, subd. (b)(1)-(2).)’ ” (People v.
Flores (2022) 75 Cal.App.5th 495, 500, quoting Pen. Code, § 1170,
subd. (b)(3).)4 Second, the amended statute created a presumption in favor of
the lower term where specified circumstances were “contributing factor[s] in
the commission of the offense,” unless the trial court finds that “the
aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice.”
(§ 1170, subd. (b)(6).) One of the specified circumstances is that the
defendant “has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
(Pen. Code, § 1170, subd. (b)(6)(A).)
The parties agree that the Senate Bill No. 567 amendments apply
retroactively to this case as “an ameliorative change in the law applicable to
all nonfinal convictions on appeal. (People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 308.)” (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)5
In selecting the upper term sentence, the trial court found five
aggravating factors true: The “crime involved an attempted or actual taking
or damage of great monetary value”; the “defendant has engaged in violent
conduct that indicates a serious danger to society”; the “defendant’s prior
convictions as an adult or sustained petitions in juvenile delinquency
proceedings are numerous or of increasing seriousness”; the “defendant has

4 Penal Code section 1170, subdivision (b)(3), permits a court to
“consider the defendant’s prior convictions in determining sentencing based
on a certified record of conviction without submitting the prior convictions to
a jury.”
5 Myers did not raise the amendment of Penal Code section 1170 as an
issue on appeal. At our request, the parties submitted supplemental briefs
addressing whether the statutory changes apply and, if so, whether the case
should be remanded for resentencing.

15
served a prior term in prison or county jail under [Penal Code] section
1170(h)”; and the “defendant’s prior performance on probation, mandatory
supervision, [PRCS], or parole was unsatisfactory.” (Cal. Rules of Court, rule
4.421(a)(9) & (b)(1)–(3), (5).) Myers did not stipulate to these factors and they
were not found true beyond a reasonable doubt. Accordingly, as both parties
recognize, resentencing is required.6
Further, the record indicates the potential application of Penal Code
section 1170, subdivision (b)(6)(A). In addition to defense counsel’s
descriptions of Myers’s traumatic and abusive childhood, the probation report
states that Myers dealt with mental health issues as a juvenile and “has been
previously diagnosed with Post Traumatic Stress Disorder.” On remand, the
trial court should consider Penal Code section 1170, subdivision (b)(6)(A), in
exercising its sentencing discretion.
DISPOSITION
The matter is remanded for resentencing in light of the amended Penal
Code section 1170, subdivision (b). In all other respects, the judgment is
affirmed.

6 We recognize that one of the factors the trial court cited, Myers’s prior
prison term, could be relied upon based on a certified record of conviction.
(Pen. Code, § 1170, subd. (b)(3).) The Attorney General does not suggest this
one factor would be sufficient to avoid the need for resentencing, nor would
we be persuaded by such an argument. (See People v. Lopez (2022) 78
Cal.App.5th 459, 466–468.)

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 _________________________
Mayfield, J.*

We concur:

_________________________
Richman, Acting P.J.

_________________________
Stewart, J.

People v. Myers (A162896)

* 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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