The Court of Appeal remanded for resentencing in light of a recent amendment (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 holding, the Court rejected the prosecution’s harmless error argument, finding that the record does not clearly indicate the trial court necessarily would have imposed the upper term absent it consideration of all the aggravating factors it identified.
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