People v. Renselaer CA2/4

Filed 5/10/23 P. v. Renselaer CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B318492

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA101753)
v.

EDWARD RENSELAER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
William L. Sadler, Judge. Vacated and Remanded.
Sarah M. Javaheri, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven
D. Mathews and Rama R. Maline, Deputy Attorneys General, for Plaintiff
and Respondent.

____________________________
 Appellant Edward Renselaer was convicted by a jury of felony assault
with a deadly weapon and a misdemeanor charge for leaving the scene of an
accident, following a “road rage” incident. The trial court sentenced
appellant to a term of four years in state prison, suspended with formal
probation.
On appeal, appellant contends that his case should be remanded for
resentencing based on recent amendments to Penal Code section 1170, by
Senate Bill No. 567 (SB 567) and Assembly Bill No. 124 (AB 124). We agree
remand is necessary under SB 567, as we cannot be confident on this record
the trial court would have imposed the same term had it been aware of the
requirements of SB 567. In light of our determination, we need not address
appellant’s AB 124-related argument. Upon remand, the trial court may
consider the applicability of AB 124.

FACTUAL AND PROCEDURAL BACKGROUND
A. The People’s Evidence
On October 14, 2019, at approximately 7:00 p.m., Christian Zavala was
driving his Toyota Camry home from work on Sawtelle Boulevard in Culver
City. A white Cadillac Escalade, driven by appellant, veered into Zavala’s
lane without signaling and Zavala had to slam on his brakes to avoid hitting
the Escalade. Zavala honked his horn.
In response to Zavala honking his horn, appellant slammed on his
brakes and stopped in the middle of the road for about 15 to 20 seconds.
Appellant then drove away.
Several blocks further, at the intersection of Sawtelle and Sepulveda
Boulevard, Zavala saw appellant’s Escalade in the left turn lane; Zavala was
in the middle lane. When the light turned green, Zavala drove past

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appellant, took a picture of the Escalade with his phone, and called out,
“Learn how to drive, asshole.”
After driving through the intersection, Zavala turned right onto the
next street, Hannum Avenue. Zavala noticed that appellant was following
him. As appellant’s Escalade came close to Zavala, Zavala tapped on his
brakes. Appellant stopped short of Zavala’s car. Zavala then heard appellant
“rev” his engine, and appellant “barreled” into Zavala’s car, pushing his car
three to four car lengths. Zavala’s car struck a parked car and then hit a
second car, at which point he became wedged in and could not be pushed any
further. Zavala’s bumper was pushed in and the rear trunk popped open.
Zavala exited his car, took a photograph of appellant’s Escalade,1 and
walked to appellant’s passenger window. A teenage girl was in the front
passenger seat. Zavala said, “what’s your problem? Look what you’ve done.”
Appellant and Zavala cursed at each other. Appellant then drove away.
Appellant did not provide his name, insurance information, or driver’s
license. Zavala called the police.
Zavala paid $15,000 for his car in 2012. Zavala’s car was “totaled.”

B. Eyewitness Testimony
On October 14, 2019, at approximately 7:00 p.m., Judy Hughes was at
Sawtelle and Hannum in Culver City near Menchie’s Ice Cream Parlor.
Hughes was locking her car when she saw a small blue car come around the
corner very fast. About seven to twelve seconds later, a large white Escalade
came around the corner. The blue car stopped, and the white Escalade
stopped close behind the blue car. The driver of the Escalade revved his

1 The photo taken by Zavala shows a gap between the two cars; Zavala
explained that appellant had reversed after he hit him.

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motor, and then rammed the back of the white car, pushing it.
Hughes called 911. Hughes said that a big white truck rammed into
another car, forcing the car into parked cars.

C. Defense Evidence
Appellant did not testify on his own behalf.

1. Testimony of Appellant’s Daughter/Passenger
Ashley Renselaer is appellant’s daughter. On October 14, 2019, at
approximately 7:00 p.m., Ashley was 14 years old. Appellant and Ashley
were driving in a white Escalade. As Ashley spoke to her father, she heard
something hit the windshield. A dark-colored car sped off. Appellant
followed the car.
Appellant came around the corner, and Ashley saw brake lights on the
other car. Appellant put on his brakes and skidded a bit, but did not hit the
other car. The other car screeched and hit some parked cars, and stopped a
few feet away. The driver exited the car, angry and screaming, and banged
his fist on the hood of appellant’s car. The driver then came around to
Ashley’s side of the car, screaming and cursing and taking pictures.
Appellant tried to talk to him, but he was very angry. Appellant left.
Ashley stated that due to a medical condition, appellant has trouble
with his feet and difficulty walking.

2. Medical Testimony
Dr. Ryan O’Connor, an emergency medicine doctor, reviewed
appellant’s medical records. Appellant has peripheral neuropathy, which
affects his ability to walk. Appellant also had decreased sensations,

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numbness, and problems with knowing where his body was in space. The
condition could have affected appellant’s ability to drive and caused him to
press on both the gas and the brake pedals at the same time, or not be able to
tell the difference between the two pedals.

3. Forensic Expert
Babak Malek, a forensic engineer, examined appellant’s 2011 Cadillac
Escalade. Malek also downloaded contents of the Event Data Recorder or
“Black Box.” Appellant’s car had no damage consistent with hitting another
car. There were no dents, chips, or scuffs to the front of appellant’s vehicle.
Malek also saw no indications of an accident in the Black Box data.
The Black Box records airbag deployments and non-deployment events. The
latter includes impacts that are not enough to trigger an airbag deployment,
but cause a change in velocity of more than five miles per hour. There were
no events recorded in the black box.

D. Charges and Jury Verdict
Appellant was charged by an amended information with a felony count
of assault with a deadly weapon (Pen. Code,2 § 245, subd. (a)(1); count 1), and
misdemeanor count for leaving the scene of an accident, resulting in property
damage (Veh. Code, § 20002, subd. (a); count 2).
A jury found appellant guilty of both counts. The trial court sentenced
appellant to the upper term of four years, but suspended sentence. Appellant
was placed on formal probation for 24 months and ordered to serve 180 days
in jail with credit for 104 days.

2 All further statutory references are to the Penal Code unless otherwise
specified.

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 DISCUSSION
Appellant contends SB 567 and AB 124 apply retroactively to his felony
count conviction and require this case be remanded for resentencing.
Respondent concedes both provisions apply retroactively to appellant’s case,
but argues remand is not required under either provision.
We conclude a remand for resentencing is required under SB 567, and
thus need not address appellant’s AB 124 contention.

A. Proceedings in Trial Court
After appellant was found guilty on both counts, the trial court set the
matter for sentencing and informed the parties it was considering whether it
could “legitimately” use as a sentencing factor in aggravation “the fact that
[appellant] called his teenage daughter to lie for him.” The court added: “I
want to know about whether I can use that in aggravation because I consider
that an aggravating circumstance at this time.” The court then set the
sentencing hearing for December 29, 2021.
Prior to sentencing, the parties submitted sentencing memoranda.

1. Prosecutor’s Sentencing Memorandum
In his sentencing memorandum, the prosecutor pointed out count 1,
assault with a deadly weapon, carries a sentence of two, three, or four years,
and recommended the trial court impose the mid-term sentence of three
years. (§ 245, subd. (a)(1).) The prosecutor then identified several
aggravating factors, in order of severity. The most serious factor was
appellant suborned perjury from his daughter.

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 The prosecutor argued, without elaboration, Ashley’s testimony was
“completely different than the statement she gave to the public defender’s
investigator in early 2020” and the court “can and should draw the
reasonable inference” appellant knew his daughter would “lie for him” when
called as a defense witness.
The other aggravating factors identified by the prosecutor included
appellant’s conduct endangered his daughter and appellant had a previous
criminal history. The prosecutor identified the following factors in relation to
appellant’s criminal history: (1) appellant’s prior convictions were numerous
or of increasing seriousness; (2) appellant had served prior prison terms; and
(3) appellant’s prior performance on probation was unsatisfactory. The
prosecutor noted the last factor was the weakest because appellant
successfully completed probation for his most recent felony conviction, which
occurred in 2009. The prosecutor also observed appellant’s instant
conviction, suffered at appellant’s current age of 65 years, was his “first
serious felony.”3 The prosecution stated there were no factors in mitigation.

2. Appellant’s Sentencing Memorandum
Appellant’s counsel submitted a sentencing memorandum on his behalf,
requesting the court grant a probationary sentence. Counsel pointed out
appellant’s last criminal conviction was over a decade ago, he had no prior
acts of violence, and submitted a number of letters attesting to appellant’s
good character.
Counsel also noted the court had previously inquired as to whether it
could consider the daughter’s testimony as a basis for concluding appellant

3 The prior convictions, identified in the probation report, consisted of
theft and fraud-related offenses, the last of which appellant suffered in 2009.

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suborned perjury. On this point, counsel first stated it had been his decision
to call appellant’s daughter to the stand, in light of appellant’s criminal
history. Counsel further pointed out the prosecutor did not identify what, if
any, false testimony Ashley gave on the stand, but surmised it had to do with
her testimony that appellant never hit Zavala’s car, as she was cross-
examined on this point based on a purportedly contradictory statement she
gave to the defense investigator. Counsel stated the jury clearly grappled
with this issue since it expressly asked the court whether contact between the
two cars was necessary for the charge of assault. The court told the jury
contact was not necessary, and the jury thereafter returned its verdicts.

3. Sentencing Proceedings
During the December 29, 2021 sentencing hearing, the trial court
imposed the upper term of four years on count 1, suspended with a term of
formal probation. The court identified the aggravating and mitigating
circumstances as follows:
“I see a couple of issues regarding mitigation. Number one, there was a
significant break in criminal activity to when he was younger to when he is
older. He has no criminal history that would indicate violent conduct on his
behalf.
“He does have some disabilities; not enough to act as a defense in this
case.
“There are also some aggravating factors. And I think among the
biggest aggravating factors that I see is . . . you put up your daughter to lie—
We heard both statements, the statements that she made to the investigator
and the statement she testified to . . . . [¶] The jury came back and they
reached the verdict they did. . . . [¶] . . . What I also don’t understand is

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getting ready for trial knowing what your options are, and deciding that I am
going to have my daughter who is then 14 at the time and now 16 testify for
you, right? . . . [¶] . . . Instead of taking your lumps based upon the
evidence. That I don’t understand at all. So, yeah, I think that is an
aggravating factor.
“I think it’s an aggravating factor that is worthy of a prison sentence.
The question that I have in this case is whether imposing a high term prison
sentence and placing [appellant] on probation . . . would be appropriate.”
After discussing the matter with the prosecutor (who objected to
probation), the court imposed an upper term sentence of four years in state
prison, suspended with a formal term of probation.

B. Relevant Law
1. Law Prior to Enactment of SB 567
a. Cunningham v. California
In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the
United States Supreme Court explained “the Federal Constitution’s jury trial
guarantee proscribes a sentencing scheme that allows a judge to impose a
sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.” (Id. at pp.
274–275.) The court then held California’s procedure for selecting upper
term sentences under former section 1170, subdivision (b), violated the
defendant’s Sixth and Fourteenth Amendment right to a jury trial because it
gave “to the trial judge, not to the jury, authority to find the facts that expose
a defendant to an elevated ‘upper term’ sentence.” (Cunningham, supra, 549
U.S. at p. 274.)

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 At the time, California’s determinate sentencing law (DSL), which
specifies three terms of imprisonment by statute for most offenses, provided
“‘the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.’” (People v.
Sandoval (2007) 41 Cal.4th 825, 836 (Sandoval), quoting former § 1170, subd.
(b).) The DSL further required facts relevant to this sentencing choice were
to be determined by the court, need to be proved by a preponderance of the
evidence, and the court must set forth its reasons for departing from the
middle term. (Sandoval, supra, 41 Cal.4th at p. 836.)
In deeming such a procedure violative of Sixth Amendment principles,
the Cunningham court explained although a trial judge can ordinarily
exercise his or her discretion to select a sentence within a statutorily-defined
range without running afoul of the Sixth Amendment, the “maximum term”
under California’s DSL was, in fact, the middle term. The Court so concluded
because the middle term, as defined under California law, was the maximum
term that could be imposed on the jury’s verdict alone, while any departure
from that term required additional, and specified, fact-finding.
(Cunningham, supra, 549 U.S. at pp. 278, 288–289; Sandoval, supra, 41
Cal.4th at pp. 836–837.)

b. Black and Sandoval
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California
Supreme Court held “imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one legally sufficient
aggravating circumstance has been found to exist by the jury, has been
admitted by the defendant, or is justified based upon the defendant’s record
of prior convictions.” (Id. at p. 816.)

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 “By the same reasoning” the court in People v. Sandoval, supra, 42
Cal.4th 825, held “if a reviewing court concludes, beyond a reasonable doubt,
that the jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single aggravating
circumstance had it been submitted to the jury, the Sixth Amendment error
properly may be found harmless.” (Id. at p. 839.)
The Black II/Sandoval conclusion that only one aggravating factor
must be established in accordance with Sixth Amendment principles was tied
to the fact that “[u]nder California’s determinate sentencing system, the
existence of a single aggravating circumstance is legally sufficient to make
the defendant eligible for the upper term.” (Black II, supra, 41 Cal.4th at p.
813; cf. p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.)

c. Legislative Amendments to Section 1170 in Response to
Cunningham

In response to Cunningham, the Legislature passed a bill that
amended section 1170, subdivision (b) by eliminating the requirements of
judicial fact-finding to impose a lower or upper term and granting judges the
discretion to select any term within the statutory range. (Stats. 2007, ch. 3,
§ 3 (Sen. Bill No. 40).)

2. Enactment of SB 567
Senate Bill No. 567 took effect on January 1, 2022. It amended section
1170 “to specify that, when a sentencing court chooses a term from a
statutory triad, the chosen term shall not exceed the middle term, unless the
facts supporting the aggravating circumstances are (1) established by the
defendant’s stipulation to them, (2) proven to a jury (or to a court, if jury is

11
waived) beyond a reasonable doubt, or (3) based on prior convictions
evidenced by a certified record of conviction.” (People v. Jones (2022) 79
Cal.App.5th 37, 44; Stats. 2021, ch. 731, §§ 1.3, 3(c), adding § 1170, subd.
(b)(1)-(3), by amendment.)
The parties agree, as do we, the amendments to section 1170 made by
S.B. 567 retroactively apply to the upper-term sentence imposed on appellant
for count 1. (See People v. Garcia (2022) 76 Cal.App.5th 887, 902.) However,
the parties disagree as to whether remand for resentencing is necessary.

3. Harmless Error Tests Post-SB 567
Published California appellate decisions to consider the retroactive
application of the current version of section 1170, subdivision (b), uniformly
recognize the failure to submit an aggravating circumstance for
determination by a jury does not require reversal where the error is
harmless. However, they differ on the correct test to apply in making such a
determination.

a. Flores Test
In People v. Flores (2022) 75 Cal.App.5th 495 (Flores), the court of
appeal concluded “‘if a reviewing court concludes, beyond a reasonable doubt,
that the jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single aggravating
circumstance had it been submitted to the jury,’ the error is harmless.” (Id.
at p. 500; see also People v. Salazar (2022) 80 Cal.App.5th 453, 465
[concluding, in a split decision, that “Flores is the standard governing
appellate review”], review granted Oct. 12, 2022, S275788.)

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 b. Lopez Test
In People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez) the court of appeal
concluded the standard articulated in Flores was incomplete and instead, to
find harmless error, a reviewing court must conclude beyond a reasonable
doubt a jury would have unquestionably found true beyond a reasonable
doubt every aggravating factor upon which the trial court relied at the time of
sentencing. (Id. at p. 466.) If so, the error is harmless; if not, the court
considers whether it is reasonably probable the trial court would nevertheless
have exercised its discretion to select the upper term “based on a single
permissible aggravating factor or on some constellation of permissible
aggravating factors,” rather than all of the factors on which it previously
relied. (Lopez, at p. 468; see id. at p. 467, fn. 11.) (Lopez, at pp. 463, 466–
467; accord, People v. Wandrey (2022) 80 Cal.App.5th 962, 982 & fn. 34,
review granted Sept. 28, 2022, S275942.)
Recently, the court that decided Flores abandoned its approach in favor
of the Lopez analysis. (People v. Ross (2022) 86 Cal.App.5th 1346, 1355, fn. 8
(Ross), review granted March 15, 2023, S278266).) In so doing, the court
noted it had based its Flores test entirely on Sandoval, supra, 41 Cal.4th 825,
which had addressed Cunningham error under the previous version of section
1170. (Ross, supra, 86 Cal.App.5th at pp. 1354, 1355.) Under the amended
version of section 1170, however, all facts underlying the circumstances used
to justify imposition of the upper term must be found true by a jury. (Ross,
supra, 86 Cal.App.5th at pp. 1353–1355 & fn. 8; § 1170, subd. (b).) As such,
reliance on Sandoval was no longer appropriate. (Id. at p. 1355, fn. 8.) The
court also found “the rationale for adding a state law harmless error
component both logical and compelling,” because defendants are “entitled to

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sentencing decisions made in the exercise of the ‘informed discretion’ of the
sentencing court.” (Id. at p. 1354, internal quotation marks omitted.)

c. Dunn Test
In People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn), review granted
Oct. 12, 2022, S275655), the court of appeal added a slight variation on the
Lopez standard, holding that in order to find error harmless, a reviewing
court must (1) conclude beyond a reasonable doubt a jury would have
unquestionably found true at least one aggravating factor beyond a
reasonable doubt; (2) determine whether it is reasonably probable a jury
would have found true any remaining aggravating factors relied upon by the
trial court to impose an upper term sentence; and (3) conclude it is
reasonably probable the trial court would not have exercised its discretion
differently had it considered only the aggravating factors provable from the
record as determined in the prior steps. (Dunn, at pp. 409–410; see also
People v. Zabelle (2022) 80 Cal.App.5th 1098, 1112–1113 [applying similar
variation as Dunn].)
The Dunn court concluded it was not necessary to apply the stricter
constitutional standard for harmless error to all aggravating factors at the
first step because SB 567 itself mandated only a state-law created right to a
jury trial. (Dunn, supra, 81 Cal.App.5th at p. 408.) As such, any
Cunningham/Sixth Amendment error could be cured by Sandoval’s stricter
standard as applied to a single-aggravating factor, while any SB 567-related
error could be cured by the more lenient state law harmless error standard as
applied to the remaining aggravating factors. (Dunn, supra, 81 Cal.App.5th
at p. 409.)

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C. Analysis
Appellant, citing Lopez, argues the trial court imposed the upper term
on count 1 based on a single aggravating factor, Ashley’s purported perjury,
and the court’s reliance on this factor cannot be deemed harmless. We agree
and, as explained below, find remand necessary under any standard on the
issue.4
In arguing Ashley’s perjury was a viable circumstance in aggravation,
the prosecutor submitted no evidence on the issue other than asserting
Ashley’s trial testimony differed from a prior statement to a defense
investigator.
The trial record, in turn, reflects during cross-examination, the
prosecutor asked Ashley if she had seen a written report of a statement she
gave to a defense investigator in early 2020. After Ashley acknowledged she
had viewed the report, the prosecutor asked Ashley, “you told that
investigator somehow your car ended up colliding with the other man’s car,”
to which Ashley responded, “No. I did not say that.” The prosecutor then
asked, “So your position is this defense investigator wrote your statement
down wrong,” to which Ashley responded “yes” and reiterated, “there was no
collision.” A forensic expert then testified that in examining appellant’s
truck, he found no damage or black box evidence consistent with a collision.
During deliberations, the jury requested a read-back of the prosecutor’s
cross-examination of Ashley, “specifically, around her statement about the

4 Although the trial court noted at the outset of its discussion there “are
also some aggravating factors,” it never discussed, nor identified, any other
factor besides Ashley’s purported perjury in imposing the upper term. (Cf.
Flores, supra, 75 Cal.App.5th at pp. 499–500 [trial court expressly cited to
several aspects of defendant’s criminal history in imposing upper term
sentence].)

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collision.” The jury also requested a read-back of Judy Hughes’ testimony.
The jury thereafter asked whether, for count 1, a “collision ha[s] to occur” or
“contact ha[s] to happen?” The court answered “no” to both questions. The
jury also asked whether “a car chase [can] be interpreted to be an assault?”
The trial court responded that it depended upon the facts of the case, and
referred the jury to CALCRIM No. 875, the standard instruction on assault
with a deadly weapon. The following day, after additional deliberations, the
jury returned its guilty verdicts.
In light of this record, we cannot conclude the jury would have found
Ashley committed perjury had it been required to make a finding on the
issue. (Lopez, supra, 78 Cal.App.5th at pp. 466–468; Dunn, supra, 81
Cal.App.5th at pp. 409–410; Flores, supra, 75 Cal.App.5th at pp. 500–501.)
Respondent nevertheless insists remand is unnecessary under SB 567.
In so arguing, respondent makes no mention of the trial court’s reliance on
the perjury factor. Nor does respondent cite any of the harmless error tests
issued by courts post-SB 567. Instead, respondent argues that “the trial
court relied on appellant’s prior criminal history in imposing the upper term”
and points out under newly amended section 1170, a sentencing court “may
rely upon certified records of a defendant’s prior convictions in selecting the
sentence to impose without submitting the prior conviction to a jury.”
(§ 1170, subd. (b)(3).)
There are several flaws with this line of argument.
First, in arguing appellant’s criminal history supported circumstances
in aggravation, the prosecutor cited to the probation report for the instant
offense, as opposed to official records of the underlying convictions. A
probation report does not qualify as a “certified record of conviction” within
the meaning of section 1170, subdivision (b)(3). (See Dunn, supra, 81 Cal.

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App. 5th at p. 401 [“a probation report is not a certified record of conviction”
under recently amended § 1170]; see also People v. Zabelle, supra, 80
Cal.App.5th at p. 1114 [noting trial court relied on probation report for
findings regarding defendant’s criminal history and thus none of these
findings were rendered in compliance with the current text of § 1170].)
Second, although appellant’s counsel acknowledged appellant had
suffered prior convictions, “section 1170, subdivision (b)(3) contains no
provision regarding stipulations by the defendant.” (Dunn, supra, 81
Cal.App.5th at p. 401.) Moreover, counsel argued the convictions were old
and non-violent, and the instant offense was an aberration. Thus counsel did
not admit to any of the three conviction-related factors argued by the
prosecution in its sentencing memorandum (i.e., increasing seriousness, prior
prison terms, and poor performance on probation). More importantly, at
appellant’s sentencing hearing the trial court discussed appellant’s criminal
history only in reference to the mitigating factors it found in this case.
In claiming the trial court “relied” on appellant’s criminal history in
imposing the upper term, respondent cites to the transcript of a previous
hearing in which the trial court considered appellant’s request to release him
on bail pending sentencing. In making this determination, the trial court
consulted section 1166—the relevant statute on the issue—and referenced
appellant’s prior conviction history solely in that context.
Therefore, the sentencing transcript reflects the trial court found
several mitigating factors and supported its imposition of the upper term
with a single factor in favor of aggravation (appellant’s purported
subornation of perjury). Since we cannot be satisfied the jury would have
found this factor true under the reasonable doubt standard, the error cannot
be deemed harmless. (Lopez, supra, 78 Cal.App.5th at pp. 466–468; Dunn,

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supra, 81 Cal.App.5th at pp. 409–410; Flores, supra, 75 Cal.App.5th at pp.
500–501.)
Accordingly, we vacate and remand appellant’s case for resentencing
consistent with amended section 1170, subdivision (b).5
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5 As previously noted, appellant also asks his case be remanded in light
of AB 124. AB 124, effective January 1, 2022, sets the low term as the
presumptive term when any of the following are a “contributing factor” to the
offense: (1) the person has experienced psychological, physical, or childhood
trauma; (2) the person is or was a youth at the time of the commission of the
offense; or prior to the offense, or at the time of the commission of the offense,
or (3) the person is or was a victim of intimate partner violence or human
trafficking. (See Stats. 2021, ch. 695, § 5.3, adding § 1170, subd. (b)(6).)
Although appellant does not point to any criteria he might satisfy under AB
124, appellant is free to argue the applicability of AB 124 at his resentencing
hearing. (People v. Padilla (2022) 13 Cal.5th 152, 161–163 [defendant is
entitled to benefit of any law in effect at time of resentencing hearing].)

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 DISPOSITION
Appellant’s sentence is vacated, and the matter is remanded for
resentencing in accordance with section 1170, as amended by SB 567. At the
resentencing hearing, the court may consider the applicability of AB 124 to
appellant’s case.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.*

We concur:

CURREY, Acting P. J.

COLLINS, J.

*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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