The Court of Appeal remanded for resentencing in light of recent amendments 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. Agreeing with the majority of courts that have addressed the applicable standard for assessing prejudice, the Court also held that remand was necessary because there is a reasonable probability that the jury would not have found one aggravating factor true beyond a reasonable doubt and that the court would have imposed a sentence other than the upper term had it not relied on that factor.
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