Disagreeing with People v. Flores (2022) 75 Cal.App.5th 495 and People v. Lopez (2022) 78 Cal.App.5th 459, the Court of Appeal sets out a new prejudice test for SB 567 error. The court first determines (a) whether the record fails to show beyond a reasonable doubt that the jury would have found one aggravating circumstance; and (b) whether there is a reasonable probability the jury would not have found any remaining aggravating circumstances. If the answer to either question is yes, the court then determines whether there is a reasonable probability the trial court would not have imposed the upper term.
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