The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. In so doing, the Court found that the error was not harmless because “[s]ome ‘degree of speculation’ would [ ] be required for [the Court] to conclude that the trial court would have exercised its sentencing discretion in the same way if it had taken the statutory presumption in favor of the middle term into account.”
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