Filed 8/26/22 P. v. Bradley CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
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dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A163776
v. (Alameda County
HERBERT BRADLEY, Super. Ct. No. 21-
CR-001459)
Defendant and Appellant.
MEMORANDUM OPINION1
Defendant Herbert Bradley was convicted by jury of injuring a child
under the age of 14, brandishing a deadly weapon, and lying to a law
enforcement officer. The trial court sentenced him to 12 years in state prison
(a 6-year aggravated term on the child endangerment conviction, doubled for
prior strikes to 12 years).
He maintains on appeal that given recent amendments to Penal Code
section 1170,2 his sentence must be vacated, and the matter remanded for
resentencing. The Attorney General agrees.
This appeal may appropriately be resolved by Memorandum Opinion
1
pursuant to California Standards of Judicial Administration, section 8.1.
2 All further statutory references are to the Penal Code unless
otherwise indicated.
1
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–
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 § 1170, subd. (b)(1) &
(2).) This bill also created a presumption in favor of a low prison term under
certain circumstances. (Stats. 2021, ch. 695, § 4, adding § 1016.7; Stats.
2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6).) As relevant here, 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: [¶] (A) The person has
experienced psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence.” (§ 1170, subd.
(b)(6)(A).)
“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. Superior Court (Lara) (2018) 4 Cal.5th 299,
308. . . .) Under established law, we ‘assume, absent evidence to the
contrary, that the Legislature intended an “amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative
date.” ’ (People v. Lopez (2019) 42 Cal.App.5th 337, 341. . . .) ‘For the purpose
of determining the retroactive application of an amendment to a criminal
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statute, the finality of a judgment is extended until the time has passed for
petitioning for a writ of certiorari in the United States Supreme Court.’ (Id.
at pp. 341–342, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306. . . .)”
(People v. Flores (2022) 73 Cal.App.5th 1032, 1039 (Flores), fn. omitted.)
Defendant points out the probation report and defense sentencing
memorandum refer to a number of mental health conditions from which
defendant allegedly suffers, including depression, post-traumatic stress
disorder, anxiety disorder, bipolar disorder, and schizophrenia. While in jail
pending trial, he was prescribed and took anti-depressant medication and
anti-psychotic medication. On at least one occasion he has been admitted to
the John George Psychiatric facility. Accordingly, defendant has made a
prima facie showing that he comes within the provisions of section 1170,
subdivision (b)(6)(A).
In the final pages of his opening brief, defendant seemingly urges us to
do more than vacate the sentence and remand for the trial court to exercise
its discretion under section 1170 as recently amended. He asks that we
“conditionally reverse the conviction” to allow him to make a further showing
as to his eligibility under section 1170, subdivision (b)(6)(A). The Attorney
General agrees defendant is entitled to a remand for resentencing, at which
time he may present additional evidence bearing on the applicability of this
subdivision. However, the Attorney General does not agree defendant is
entitled to “conditional[] reversal” of his “conviction.”
We agree with Flores that the new statutory provisions “establish[] a
presumption of the lower term if” the circumstances set forth in section 1170,
subdivision (b)(6) apply. (Flores, supra, 73 Cal.App.5th at p. 1039.) However,
that presumption can be overcome if “ ‘the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the
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lower term would be contrary to the interests of justice. . . .’ (§ 1170, subd.
(b)(6)(B). . . .)” (Flores, at p. 1039.) Accordingly, the proper disposition is to
“remand to the trial court to apply this provision in the first instance in order
to determine defendant’s new sentence.” 3 (Ibid.; see People v. Whitmore
(2022) 80 Cal.App.5th 116, 132 [“On remand, the parties are free to argue for
the term they believe is appropriate under the applicable law.”].)
DISPOSITION
The sentence is vacated, and the matter is remanded for the trial court
to exercise its discretion consistent with section 1170, subdivision (b), as
amended by Senate Bill No. 567 (2020–2021 Reg. Sess.) and Assembly Bill
No. 124 (2020–2021 Reg. Sess.). Following resentencing, the trial court clerk
shall prepare an amended abstract of judgment and forward a certified copy
to the Department of Corrections and Rehabilitation. In all other respects
the judgment is affirmed.
3 Defendant cites to People v Frahs (2020) 9 Cal.5th 618 (Frahs) in
seeming support of his assertion that his conviction should be conditionally
reversed. The issue in Frahs, however, was whether the defendant was
entitled to the benefit of retroactive pretrial diversion under sections 1001.35
and 1001.36, and the high court held that he was. (Id. at p. 625.) Defendant
here makes no claim pertaining to pretrial diversion but claims entitlement
to resentencing under the recent amendments to section 1170. Presumably,
defendant cites to Flores in support of a remand, a disposition with which we
agree.
4
_________________________
Banke, J.
We concur:
_________________________
Margulies, P.J.
_________________________
Wiss, J.*
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A163776, People v. Bradley
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