People v. Bradley CA1/1

Filed 8/26/22 P. v. Bradley CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi- cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or o r- dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A163776

v. (Alameda County HERBERT BRADLEY, Super. Ct. No. 21- CR-001459) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Herbert Bradley was convicted by jury of injuring a child under the age of 14, brandishing a deadly weapon, and lying to a law enforcement officer. The trial court sentenced him to 12 years in state prison (a 6-year aggravated term on the child endangerment conviction, doubled for prior strikes to 12 years). He maintains on appeal that given recent amendments to Penal Code section 1170,2 his sentence must be vacated, and the matter remanded for resentencing. The Attorney General agrees.

This appeal may appropriately be resolved by Memorandum Opinion 1

pursuant to California Standards of Judicial Administration, section 8.1. 2 All further statutory references are to the Penal Code unless

otherwise indicated.

1

Effective January 1, 2022, our determinate sentencing law, section 1170, was amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020– 2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.) Relevant here, Senate Bill No. 567 amended section 1170, former subdivision (b) by making the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1) & (2).) This bill also created a presumption in favor of a low prison term under certain circumstances. (Stats. 2021, ch. 695, § 4, adding § 1016.7; Stats. 2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6).) As relevant here, section 1170, subdivision (b)(6) provides: “[U]nless 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, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.” (§ 1170, subd. (b)(6)(A).) “The People correctly concede the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308. . . .) Under established law, we ‘assume, absent evidence to the contrary, that the Legislature intended an “amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” ’ (People v. Lopez (2019) 42 Cal.App.5th 337, 341. . . .) ‘For the purpose of determining the retroactive application of an amendment to a criminal