Opinion
F082613
05-27-2022
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ALEXANDER SMITH, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kings County. No. 19CM2272 Randy L. Edwards, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Defendant Christopher Alexander Smith was charged with four felony sex offenses against three children: (1) lewd or lascivious act on H., a child under the age of 14 years (§ 288, subd. (a) (section 288(a) or § 288(a)); count 1); (2) oral copulation or penetration of a child, Na., who was under the age of 10 years (§ 288.7, subd. (b); count 2); (3) felony use of a minor, Na., to perform prohibited acts through posing and modeling for purposes of preparing film, photograph, negative or slide (§ 311.4, subd. (c); count 3); and felony use of a minor, No., to perform prohibited acts through posing and modeling for purposes of preparing film, photograph, negative or slide (§ 311.4, subd. (c); count 4).
Defendant pled no contest to count 1, which carried a sentencing triad of three, six or eight years, and agreed to a sentencing lid of eight years. In exchange for his plea, counts 2, 3 and 4 were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey). In Harvey, the California Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant, be used to impose adverse sentencing consequences. (Id. at pp. 758-759.) Here, the trial court sentenced defendant to the upper term of eight years.
Defendant argues, and the People concede, (1) his presentence custody credits were miscalculated and he is entitled to 12 additional days of credit; and (2) he is subject only to tier two registration under section 290 rather than lifetime registration under tier three as the court ordered. After briefing was complete in this case, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567 or Sen. Bill 567) became effective on January 1, 2022. (Stats. 2021, ch. 731, § 1.3.) We asked the parties to submit supplemental briefs addressing whether Senate Bill 567 applies here. The parties agree Senate Bill 567 applies retroactively to nonfinal cases on appeal, such as this one, but they disagree whether resentencing is warranted. We conclude the appropriate remedy in this case is to remand for resentencing under Senate Bill 567.
These facts were drawn from the probation report and the police reports offered in support of the arrest warrant.
S.S. and C.S. are married and live together with S.S.'s three children: Na., and twins H. and No. Defendant is C.S.'s adult son from a prior marriage; defendant was 30 years old at the time of the offenses. During a school break in December 2015, defendant visited C.S. and S.S.'s family home for two days. At that time, H. and No. were seven years old, and Na. was nine years old. During the visit, defendant was alone with the children. While in the bathroom with H., defendant told her to take off her pants and show him her private parts, and she complied. After she went to bed that night, defendant came into her room and put his hand down her pants and underwear and touched her bottom.
At another point in the visit, defendant was alone with No., and defendant told No. to take off his pants and show him his private parts. While No. was exposing his penis, defendant took a photograph of it with a cellphone. The next day, defendant took No. to have lunch and bought him a shirt, telling No. not to say anything about the photograph defendant had taken. No. told his mother what happened after defendant's visit was over.
Na. reported that while defendant visited the home, he saw defendant tell No. to pull his pants down and saw defendant take a photograph of No.'s genitals. Later that day, when defendant was alone with Na., defendant pulled his own pants down and exposed his genitals to Na. Defendant then told Na. to pull his pants down and defendant orally copulated him. Na. told his mother something happened with defendant, but he could not remember what had occurred.
In 2018, Na. remembered what happened to him during defendant's visit, and told his mother about three weeks before Na.'s interview. At that time, his mother reported the incidents to the police. Each of the children underwent a recorded interview. Defendant was charged with four felony offenses arising from this conduct and, in November 2020, he pled no contest to one count of lewd or lascivious acts against H., a child under the age of 14 years (§ 288(a); count 1), and the remaining counts involving Na. and No. (counts 2, 3 and 4) were dismissed. The trial court sentenced defendant to the upper term of eight years, and defendant appealed.
DISCUSSION
I. Resentencing Warranted Under Senate Bill 567
The People concede error with respect to the two issues defendant identified in his opening brief. The parties initially agreed these errors could be addressed by modifying the trial court's judgment on appeal without any need for resentencing.
Since briefing was completed, however, the Governor signed Senate Bill 567, which amended section 1170 effective January 1, 2022. (Legis. Counsel's Dig., Sen. Bill 567, Stats. 2021, ch. 731, § 1.3, pp. 25-33; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Amended section 1170, among other things, limits a trial court's ability to impose an upper-term sentence. (§ 1170, subd. (b)(2).) Relevant here, the court imposed the upper term on count 1 to which defendant pled no contest. We asked the parties to address in supplemental briefs whether and how the amended sentencing law applies. The parties agree Senate Bill 567 applies retroactively to this case, but disagree whether the changes in the law require resentencing.
A. Senate Bill 567
At the time of defendant's sentencing in July 2020, section 1170, former subdivision (b), provided that the choice between sentencing a defendant to the lower, middle, or upper term "shall rest within the sound discretion of the court," with the court to determine which term "best serves the interests of justice." (§ 1170, former subd. (b).)
Pursuant to Senate Bill 567, section 1170 now precludes a trial court from imposing a sentence exceeding the middle term for any offense with a sentencing triad unless "there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.…" (§ 1170, subd. (b)(2).) Notwithstanding this limitation, "the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury…." (§ 1170, subd. (b)(3).)
B. Amendments to Section 1170 Apply Retroactively
We agree with the parties that the amendments to section 1170, subdivision (b), pursuant to Senate Bill 567, apply retroactively and apply to all nonfinal convictions. (People v. Garcia (2022) 76 Cal.App.5th 887, 902; People v. Flores (2022) 75 Cal.App.5th 495, 520; People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039.) "[W]e '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 statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court.' (Id. at pp. 341-342, citing People v. Vieira (2005) 35 Cal.4th 264, 305-306.)" (People v. Flores, supra, 73 Cal.App.5th at p. 1039.)
The parties disagree, however, on whether resentencing is necessary, and so we turn now to the question of remedy upon application of Senate Bill 567.
C. Resentencing is Warranted 1. Factual Background
The trial court discussed the following when it pronounced its sentence:
"The facts in this case are that the defendant sexually molested three children of his stepmother's, so these are not biologically related to him, these children aren't; however, they are his step-brothers and sister or half-brothers and sister, and all of them were under 14 years old at the time these offenses occurred, and although the conduct that's specifically alleged is not necessarily any more egregious than some of the other cases that this Court sees with similar charges, this is disturbing to the Court that the defendant bought the victims video games to keep them quiet after the incidents occurred.
"The Court finds this especially disturbing that there are three different children involved and there is a position of trust and confidence that the defendant was in when these offenses occurred, as cited in the probation report and by [the prosecutor], and these children were particularly vulnerable in the fact that-of their ages and the family relationships that were involved here.
"The circumstances set forth on Page 5 of the probation officer's report and the Court has considered them as well…. [¶] Under [California Rules of Court, ] Rule 4.421 circumstances in aggravation that the victims were particularly vulnerable as I've indicated, and the defendant took advantage of the position of trust and confidence. [¶]… [¶] And the other circumstances in mitigation that the court has considered is that the defendant voluntarily acknowledged wrong-doing prior to arrest or at an early stage of the proceedings. [¶] … [¶] In this case, after considering all of those matters, probation is denied .… [¶] As to Count 1, [defendant is] sentenced to the upper term of eight years."
We note the parties disagree whether the trial court relied on three or four aggravating factors in imposing the upper term, but it appears there were four: (1) the existence of multiple victims; (2) the victims were particularly vulnerable given their ages; (3) defendant violated a position of trust and confidence to commit the offenses; and (4) defendant bribed the victims not to tell anyone.
Defendant maintains resentencing is the appropriate remedy in light of Senate Bill 567: the trial court imposed the upper term on count 1 based on four aggravating factors-which did not include prior convictions-that were neither stipulated to by defendant nor found true by a jury beyond a reasonable doubt. Defendant contends the trial court must resentence defendant within the new parameters of section 1170, subdivision (b).
The People disagree. They point out that, as part of his plea and in exchange for the dismissal of counts 2, 3 and 4, defendant signed a Harvey waiver. The People argue that waiver effectively stipulated to the aggravating facts the court relied on to impose the upper term, and defendant waived his right to a jury trial and proof beyond a reasonable doubt on those facts.
2. Legal Background
To contextualize the parties' arguments, a brief summary of relevant legal authority is helpful. In imposing sentence pursuant to a plea bargain, the California Supreme Court held in Harvey that the court may not consider evidence of any crime as to which charges were dismissed as a circumstance in aggravation to support the upper term on the remaining count or counts. (Harvey, supra, 25 Cal.3d at p. 758.) The court reasoned it was "improper and unfair" to permit the sentencing court to consider any facts underlying dismissed counts because implicit in a plea bargain is the understanding the defendant will not suffer adverse consequences stemming from the dismissed counts. (Ibid.)
With respect to the Sixth Amendment, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.)
Four years later, the high court examined the State of Washington's determinate sentencing law (DSL) in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Washington's law required that a sentence within the "'standard range'" must be imposed unless the court finds aggravating factors that justify an "'exceptional sentence.'" (Id. at p. 299.) While an exceptional sentence under Washington law was still within the maximum term specified by statute for the offense, the high court held that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Id. at p. 303.) Since Washington's law permitted imposition of an exceptional term only if an aggravating factor had been found, the Blakely court held that the top of the standard range was the "'statutory maximum"' sentence that could be imposed in the absence of a jury finding of an aggravating factor. (Id. at pp. 303-304.)
Shortly after Blakely was decided, the California Supreme Court held upper term sentences imposed pursuant to California's DSL under section 1170 survived Blakely's Sixth Amendment inspection. (People v. Black (2005) 35 Cal.4th 1238, 1255-1256 (Black).) At the time, California's DSL specified the "court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (§ 1170, former subd. (b); see Black, supra, at p. 1247.) Under this former version of the DSL and the relevant California Rules of Court, the facts relevant to this sentencing choice were to be determined by the court and needed to be proven only by a preponderance of the evidence. (Black, supra, at p. 1247.)
In January 2007, however, the United State Supreme Court expressly disapproved Black, holding that "[b]ecause [California's] DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." (Cunningham v. California (2007) 549 U.S. 270, 293 (Cunningham).) The Cunningham court explained "California's DSL, and the Rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts- whether related to the offense or the offender-beyond the elements of the charged offense." (Id. at p. 279.) Applying Apprendi and Blakely, the court concluded the middle term under the DSL was the maximum term that could be imposed on the basis of the jury's verdict alone. (Cunningham, supra, at p. 288.) Since the DSL exposed a defendant to an upper term based on facts not found by a jury beyond a reasonable doubt, the law violated a defendant's Sixth Amendment right to a jury trial where the upper term was imposed. (Id. at p. 281.)
As a result of Cunningham, the California Supreme Court had occasion to consider whether a Sixth Amendment violation under Cunningham in the imposition of an upper term sentence was harmless. (People v. Sandoval (2007) 41 Cal.4th 825, 838- 843 (Sandoval).) The Sandoval court held that "[i]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury," the error is harmless. (Id. at p. 839; see People v. Osband (1996) 13 Cal.4th 622, 728 [single aggravating factor is sufficient to support an upper term].)
Meanwhile, in response to Cunningham, California's Legislature amended the DSL through urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2; see People v. Black (2007) 41 Cal.4th 799, 808, fn. 2.) The amended DSL did away with a presumptive middle term and left "the choice of the appropriate term" to the "sound discretion of the court." (§ 1170, former subd. (b); Stats. 2007, ch. 3, § 2.) Since 2007, there have been amendments to the DSL, but the choice of the appropriate determinate term from a specifically articulated sentencing triad has been left to the discretion of the trial court. Specifically, at the time defendant here committed the offense for which he pleaded no contest and at the time of sentencing, the DSL provided "the choice of the appropriate term shall rest within the sound discretion of the court" which "best serves the interests of justice." (§ 1170, former subd. (b); Stats. 2015, ch. 378, § 1.) This had the effect of making the upper term the statutory maximum for purposes of the Sixth Amendment.
Against this legal backdrop, and about two months after the decision in Sandoval, People v. Munoz (2007) 155 Cal.App.4th 160 (Munoz) was decided. There, the court held the imposition of an upper term sentence did not violate the defendant's right to a jury trial in light of the defendant's Harvey waiver and his effective stipulation to relevant facts throughout the sentencing proceedings. (Munoz, supra, at p. 168.) The defendant had pled no contest to one offense and admitted a firearm enhancement in exchange for the dismissal of numerous other counts and enhancements. (Id. at p. 162.) The defendant's plea agreement specifically included a broadly worded Harvey waiver that permitted the sentencing court to consider all the underlying facts of the case, including those related to dismissed counts and enhancements when determining the appropriate sentence for the offense the defendant stood convicted. (Munoz, supra, at pp. 165-167.) The defendant was sentenced to the upper term for both his offense and the firearm enhancement. (Id. at p. 165.) On appeal, the defendant argued that his upper term sentence violated the Sixth Amendment under Cunningham. (Munoz, supra, at p. 166.)
In rejecting the defendant's argument, the court explained all of the aggravating factors cited by the trial court were encompassed in the defendant's Harvey waiver, which permitted the court to consider the entire background of the case, the dismissed or stricken charges or allegations and the defendant's criminal history when imposing the sentence. (Munoz, supra, 155 Cal.App.4th at p. 168.) Reviewing the facts contained in the probation report, those the defendant admitted to the probation officer, and those contained in defendant's sentencing brief, the court concluded the defendant had effectively stipulated throughout the sentencing proceedings to the relevant facts necessary to impose the upper term, thereby waiving his right to have a jury trial and proof beyond a reasonable doubt on those facts. (Ibid.)
Approximately 15 years after the March 2007 amendments to the DSL, Senate Bill 567 amended the DSL effective January 1, 2022, once again making the middle term presumptive-as it was when Cunningham was decided. Specifically, pursuant to Senate Bill 567, the DSL now provides that the court "may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term …." (§ 1170, subd. (b)(2); Stats. 2021 ch. 731, § 1.3.) Consistent with Apprendi, Blakely and Cunningham, section 1170 also now requires that aggravating facts used to impose an upper-term sentence, with the exception of prior convictions, must be found by a jury beyond a reasonable doubt or admitted or stipulated to by the defendant. (§ 1170, subd. (b)(2)-(b)(3).) Thus, imposing an upper term sentence based on aggravating facts neither found by a jury to be proven beyond a reasonable doubt nor admitted or stipulated to by the defendant may, with some exceptions, implicate both the Sixth Amendment and consonant new state law requirements under Senate Bill 567.
3. Analysis
Turning to the parties' arguments here, the People maintain the trial court's reliance on what amounted to stipulated facts under the Harvey waiver in imposing the upper term was fully consistent with both the Sixth Amendment and section 1170, subdivision (b) as amended by Senate Bill 567. Alternatively, the People contend, even if the Harvey waiver did not constitute a stipulation to the aggravating facts the court considered at sentencing, under Sandoval any Sixth Amendment and state law violation were harmless because, beyond a reasonable doubt, at least one of the aggravating factors would have been found true by a jury beyond a reasonable doubt and supported the imposition of the upper term.
In response, defendant contends Munoz was wrongly decided. He argues a Harvey waiver does not encompass Sixth Amendment rights-it extends only to consideration of facts for which the law authorizes judicial discretion and not those that require a jury finding beyond a reasonable doubt. Moreover, even if a Harvey waiver could operate to waive Sixth Amendment rights, defendant points out he did not check a box on the plea form indicating a Blakely waiver, referring to Blakely, supra, 542 U.S. 296. Defendant argues the existence of a specific waiver for Sixth Amendment error-the Blakely waiver, which defendant did not initial on his plea form-demonstrates the parties' mutual understanding that the Harvey waiver did not constitute a waiver of defendant's Sixth Amendment rights. Defendant also contends any error cannot be deemed harmless. Citing People v. French (2008) 43 Cal.4th 36, 53-54, defendant contends the California Supreme Court has acknowledged the difficulty of assessing harmless error in the context of a plea bargain because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense.
The Blakely waiver that defendant did not initial includes the following language: "I understand that as to any fact in aggravation that may be used to increase my sentence on any count or allegation to the upper or maximum term provided by law, I have the constitutional rights listed in paragraphs 6b-6e. I now give up those rights and agree that the sentencing judge may determine the existence or non-existence of any fact in aggravation, either at the initial sentencing or at any future sentencing in the [e]vent my probation is revoked."
We decline to extend Munoz's conclusion with respect to the Harvey waiver to the particular circumstances of this case. Munoz involved consideration of the Sixth Amendment only-it did not consider the implications of a Harvey waiver in the context of Senate Bill 567. Munoz relied on the statement in Blakely that "'[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.'" (Munoz, supra, 155 Cal.App.4th at p. 166.) The court effectively construed the Harvey waiver to encompass a consent to judicial factfinding for purposes of the Sixth Amendment under Blakely.
When defendant entered a Harvey waiver in this case, the Legislature had cured the DSL's Sixth Amendment deficiencies under Cunningham and there was no jury trial right with respect to aggravating facts used to impose the upper term. In this context, defendant's Harvey waiver could not have been understood to include a waiver of a jury trial right that definitively was not implicated at the time his plea was entered. And, in fact, defendant did not initial the Blakely waiver on his plea form that specifically dealt with jury trial rights. Additionally, the Harvey waiver cannot be construed as a stipulation to aggravating facts or to judicial factfinding of those facts regardless of any subsequent ameliorative changes in the law restricting how those facts may be considered at sentencing-i.e., Senate Bill 567. In other words, the Harvey waiver cannot be construed to waive future changes in the law that apply retroactively. (See § 1016.8, subd. (a)(1) ["That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them."].) We cannot agree the Harvey waiver here had the effect of waiving defendant's Sixth Amendment jury trial rights or the new limitations under Senate Bill 567 for considering aggravating facts to impose an upper term sentence.
Turning to the harmless error test articulated in Sandoval with respect to Sixth Amendment violation of a jury trial right, the application of that test here is not dispositive as to whether resentencing is warranted under Senate Bill 567. As noted above, in the context of a Sixth Amendment jury-trial-right violation in the imposition of an upper term sentence, "[i]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury," the error is harmless. (Sandoval, supra, 41 Cal.4th at p. 839; see People v. Osband, supra, 13 Cal.4th at p. 728 [single aggravating factor is sufficient to support an upper term].) Here, the Sandoval harmless error test is not dispositive because it is unclear whether the trial court would have imposed the upper term absent consideration of all the aggravating factors it identified.
In imposing the upper term, the trial court considered the following aggravating factors: (1) there were multiple victims; (2) the victims were particularly vulnerable due to their ages; (3) defendant abused a position of trust and confidence in committing the offenses; and (4) defendant purchased a gift for one of the children to prevent that child from telling anyone what defendant had done. Even though we can confidently conclude a jury would have found beyond a reasonable doubt the victim of the pleaded-to offense was particularly vulnerable given the victim's young age and that defendant violated a position of trust and confidence in committing the offense, we have no such degree of certainty the jury would have found true beyond a reasonable doubt the other two aggravating facts the court considered.
The existence of multiple victims and the use of a gift as a bribe was based solely on the dismissed charges, the probation report, and interviews with the children-there was no preliminary hearing or trial testimony to consider. We cannot confidently conclude beyond a reasonable doubt that a jury would have convicted defendant of the dismissed counts regarding the two other children (to establish multiple victims), or that the jury necessarily would have concluded beyond reasonable doubt defendant purchasing a gift for one of the children was meant as a bribe to assure silence. The record does not clearly indicate the trial court necessarily would have imposed the upper term absent its consideration of all the aggravating factors it identified, especially considering the middle term is now presumptive as articulated in Senate Bill 567 and amended section 1170. (§ 1170, subd. (b)(1)-(b)(2) [court shall order imposition of a sentence not to exceed the middle term except when there are circumstances in aggravation that justify imposition of a term exceeding the middle term].)
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Because the record does not clearly establish how the court would have balanced the sentencing factors with the limitations imposed under Senate Bill 567 and amended section 1170, resentencing is warranted; remand is not an idle act. (See People v. Buycks (2018) 5 Cal.5th 857, 893. 896.)
At resentencing, the parties may also present any arguments with regard to Assembly Bill No. 124 (2021-2022 Reg. Sess.), which also amended section 1170. (Stats. 2021, ch. 695, § 5.)
II. Remaining Issues
The parties agree the trial court's pronouncement of judgment contained two sentencing errors with respect to defendant's registration tier under section 290 and the calculation of defendant's custody credits. Since this matter will be remanded for resentencing under Senate Bill 567, these errors can be addressed and rectified at the resentencing hearing.
DISPOSITION
The trial court's sentence is vacated. Consistent with this opinion, the matter is remanded to the trial court for a full resentencing. We express no opinion as to how the court should exercise its sentencing discretion under Senate Bill 567 and amended section 1170.
[*] Before Detjen, Acting P. J., Franson, J. and Meehan, J.