In re Wade CA3

Filed 2/28/23 In re Wade CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

In re CHANCELLOR WADE on Habeas Corpus. C096459

(Super. Ct. Nos. 18FE019068, 22HC00299)

After a jury found petitioner Chancellor Wade guilty of robbery and attempted robbery, the trial court sentenced him to 31 years to life in prison, which included a three- year upper term for attempted robbery, doubled based on a prior serious felony conviction. (See People v. Wade (Apr. 23, 2021, No. C090655) [nonpub. opn.], review granted July 14, 2021, S268936 (Wade).) Petitioner contends that we must remand for resentencing because the trial court’s imposition of an upper term sentence did not satisfy

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the requirements of new amendments to Penal Code section 1170,1 which took effect while his appeal was pending. The People agree that new subdivision (b)(6) of section 1170 applies retroactively and compels resentencing. We will vacate petitioner’s sentence and remand for resentencing. BACKGROUND In 2019, defendant was convicted and sentenced as set forth above. Wade appealed the judgment, this court affirmed, and our Supreme Court granted Wade’s petition for review. Wade’s case remains pending before our Supreme Court. (See Wade, supra, C090655, review granted.) At the time of petitioner’s sentencing, section 1170 permitted the trial court to select the term of imprisonment “which, in the court’s discretion, best serves the interests of justice.” (§ 1170, former subd. (b), as amended by Stats. 2018, ch. 1001, § 1.) Effective January 1, 2022, the Legislature amended section 1170, adding, among other things, subdivision (b)(6), which requires imposition of a lower term sentence when certain mitigating factors contributed to the commission of the offense, including when a defendant has experienced psychological trauma. (§ 1170, subd. (b)(6)(A); Stats. 2021, ch. 731, §§ 1.3, 3(c).) Petitioner filed a petition for a writ of habeas corpus in the trial court, which was denied in June 2022. Petitioner then filed his petition in this court, alleging posttraumatic stress disorder was a contributing factor in the commission of the attempted robbery, which entitled him to resentencing under the amended law. We initially denied the petition in July 2022. After petitioner asked the Supreme Court to review our denial, the court granted review in September 2022 and transferred the matter back to this court, ordering us to vacate our order denying the petition and issue an order to show cause why