People v. Henry CA1/4

Filed 5/11/22 P. v. Henry CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A164012 v. JAMAR JAY HENRY II, (Solano County Super. Ct. No. FCR323094) Defendant and Appellant.

In September 2021, pursuant to a negotiated disposition, defendant pled guilty to one count of voluntary manslaughter with an enhancement for personal use of a firearm, in exchange for a stipulated sentence of 21 years. (Pen. Code, §§ 192, subd. (a), 12022.5.) On September 30, 2021, the court sentenced defendant according to the plea agreement to 21 years in state prison. The sentence consisted of the 11- year upper term for voluntary manslaughter, as well as the 10-year upper term for the firearm enhancement. On appeal, defendant contends that he is entitled to resentencing based on two recent amendments to Penal Code section 1170. The first, enacted by Senate Bill No. 567 (2021-2022 Reg. Sess., makes the midterm the presumptive sentence for a term of imprisonment unless certain circumstances exist. The second, Assembly Bill No. 124 (2021-2022 Reg. Sess.), as relevant here, requires the court to impose the lower term in cases

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where a defendant’s youth or psychological, physical or childhood trauma related to abuse, neglect or sexual violence was a contributing factor to the commission of the offense, unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.1 The Attorney General agrees that the amendments apply retroactively to defendant’s case because his judgment was not final at the time the amendments went into effect (In re Estrada (1965) 63 Cal.2d 740) and that “the case should be remanded for the trial court to resentence defendant consistent with the changes made to Penal Code section 1170.” The parties agree that the resentencing hearing is governed by People v. Stamps (2020) 9 Cal.5th 685, 707. Accordingly, if the trial court, having considered the permissible factors under the amended law, again imposes the upper-term sentence, defendant’s sentence would stand. If the court indicates