Filed 6/22/22 P. v. Ellis CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Raymond Eugene Ellis appeals from a judgment of conviction after he pled no contest to discharge of a firearm at an inhabited dwelling (Pen. Code, § 246)[1] and infliction of corporal injury on a dating partner, with a prior domestic violence conviction (§ 273.5, subd. (f)(1)). The trial court sentenced Ellis to an aggregate prison term of 8 years and 4 months. Ellis argues that recent ameliorative changes to the determinate sentencing law (§ 1170) apply retroactively and necessitate a remand for resentencing. The People concede as much and we agree.

Background

In May 2021, Ellis fired a handgun toward an occupied residence. About a month earlier, he assaulted his ex-girlfriend.

Ellis pled no contest to discharge of a firearm at an inhabited dwelling and infliction of corporal injury on a dating partner, with a prior domestic violence conviction. His plea was open, with no specified term of imprisonment. In exchange for the plea, the prosecutor dismissed 10 additionally charged counts and numerous enhancement allegations.

At sentencing, the trial court found that Ellis was intoxicated at the time he committed the discharge of a firearm offense but that numerous aggravating factors—including the victims’ particular vulnerability and his numerous prior convictions—outweighed any factors in mitigation. (Cal. Rules of Court, rule 4.421(a)-(b).) The court imposed the upper term of seven years for the principal term—discharge of a firearm at an inhabited dwelling—plus a consecutive 16-month term (one-third the middle term) for the domestic violence count.

Discussion

Effective January 1, 2022, the Legislature amended section 1170. (See Sen. Bill No. 567 (2021–2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3.) Now when a sentencing court chooses a determinate term from a statute specifying three possible terms, the term selected must not exceed the middle term, unless there are aggravating circumstances that have been (1) stipulated by the defendant, (2) proven to a jury (or to a court) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction. (§ 1170, subds. (b)(1)-(3), as added by Stats. 2021, ch. 731, §§ 1.3, 3(c); People v. Jones (2022) 79 Cal.App.5th 37, 44 .) The amendments became effective after Ellis was sentenced.

Here, it is undisputed that the trial court imposed the upper principal term in reliance on aggravating factors that do not meet the requirements of section 1170, subdivisions (b)(2) or (b)(3). The People also concede that the statutory changes are ameliorative and apply retroactively to nonfinal judgments on appeal. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308-309.)

Accordingly, we must vacate Ellis’s sentence and remand the matter to the trial court for resentencing under the amended determinate sentencing law. (People v. Lopez (2022) 78 Cal.App.5th 459, 468; People v. Flores, supra, 73 Cal.App.5th at p. 1039.)

Disposition

Ellis’s sentence is vacated and the matter is remanded to the trial court for resentencing under the amended version of section 1170, subdivision (b). The People may elect to meet the new requirements of section 1170, subdivisions (b)(2) and (b)(3), or may accept resentencing on the record as it stands. The court is directed to prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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BURNS, J.

We concur:

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JACKSON, P.J.

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SIMONS, J.

A164228

[1] Undesignated statutory references are to the Penal Code.