People v. Lynch

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DEANDRE LYNCH,

Defendant and Appellant.

S274942

Third Appellate District

C094174

Sacramento County Superior Court

20FE009532

August 1, 2024

Justice Corrigan authored the opinion of the Court, in which

Justices Liu, Groban, and Evans concurred.

Justice Kruger filed a concurring and dissenting opinion, in

which Justice Jenkins concurred.

Chief Justice Guerrero filed a dissenting opinion.

PEOPLE v. LYNCH

S274942

Opinion of the Court by Corrigan, J.

The Sixth Amendment to the United States Constitution,

applicable to the States through the Fourteenth Amendment’s

due process clause, “provides that those ‘accused’ of a ‘crime’

have the right to a trial ‘by an impartial jury.’ This right, in

conjunction with the Due Process Clause, requires that each

element of a crime be proved to the jury beyond a reasonable

doubt.” (Alleyne v. United States (2013) 570 U.S. 99, 104

(Alleyne), quoting U.S. Const., 6th Amend.; accord, Apprendi v.

New Jersey (2000) 530 U.S. 466, 476 (Apprendi).) In the context

of California’s determinate sentencing scheme, Cunningham v.

California (2007) 549 U.S. 270 (Cunningham) held that, “under

the Sixth Amendment, any fact that exposes a defendant to a

greater potential sentence must be found by a jury, not a judge,

and established beyond a reasonable doubt, not merely by a

preponderance of the evidence.” (Id. at p. 281.) “Inhering in

that guarantee is an assurance that a guilty verdict will issue

only from a unanimous jury.” (Erlinger v. United States (2024)

602 U.S. ___, ___ [144 S.Ct. 1840, 1849] (Erlinger); accord,

Ramos v. Louisiana (2020) 590 U.S. 83, 90, 92–93 (Ramos).)

Effective January 1, 2022, Penal Code1 section 1170,

subdivision (b) (hereafter section 1170(b)) was amended to

prohibit imposition of an upper term sentence unless

1

All further undesignated statutory references are to the

Penal Code.

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Opinion of the Court by Corrigan, J.

aggravating circumstances justify that term and the facts

underlying any such circumstance, other than a prior conviction,

“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(b)(2), as amended by Stats. 2021,

ch. 731, § 1.3.) Allegations of prior convictions may be tried by

the court alone and proven by certified records of conviction.

(Id., subd. (b)(3).) The Courts of Appeal have uniformly held,

and the parties here agree, that this amendment applies

retroactively to defendants like Lynch whose judgments were

not final on direct appeal at the time the statute took effect. We

granted review to decide when a remand for resentencing is

required under the new law. We hold that a court reviewing a

case where the former version of section 1170(b) was employed

must apply the Chapman standard of review. (Chapman v.

California (1967) 386 U.S. 18 (Chapman).) Accordingly, in a

case where the judgment is not yet final, a sentence imposed

under former section 1170(b) must be reversed and remanded

unless the reviewing court concludes beyond a reasonable doubt

that a jury, applying that same standard, would have found true

all of the aggravating facts upon which the court relied to

conclude the upper term was justified, or that those facts were

otherwise proved true in compliance with the current statute.

(§ 1170(b)(2), (3).) Throughout this opinion, any discussion of

jury findings refers to factual findings made beyond a

reasonable doubt. Further, similar to the situation in People v.

Gutierrez (2014) 58 Cal.4th 1354, 1390 (Gutierrez), the 2022

amendment to section 1170(b)(1) and (2) altered the scope of the

trial court’s discretion. As a result, for sentences imposed under

the former law the record must clearly indicate that the court

would have found an upper term justified had it been aware of

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Opinion of the Court by Corrigan, J.

its more limited discretion. We reverse the Court of Appeal

judgment, disapprove contrary Court of Appeal holdings, and

remand for resentencing.

I. BACKGROUND

Defendant, Deandre Lynch, is Jasmine Doe’s former

boyfriend and the father of her child. Over the course of several

months, Lynch physically abused Jasmine daily. At trial,

Jasmine vaguely described the details of some assaults and

testified that she had no recollection of others.

Jasmine’s brother, Joseph C., testified about statements

Jasmine had made recounting Lynch’s abuse. On one occasion,

she called Joseph crying and out of breath. She said that Lynch

had punched her in the face, thrown her to the ground, and

beaten her with a metal rod. A few weeks later, Jasmine called

Joseph again and tearfully reported that Lynch had kicked her

and hit her with an extension cord. Joseph saw looped and

straight-line bruises on her arms, shoulder, and back consistent

with a metal rod and an extension cord.

On May 24, 2020, Joseph arrived at Jasmine’s home and

heard banging and screaming. Going inside, he saw his sister

lying on the floor with her hands raised in defense. Lynch stood

over her with his arm drawn back as if to hit her. Joseph

intervened and took his sister outside.

A deputy sheriff dispatched to investigate saw multiple

bruises on Jasmine’s body. Jasmine told the deputy that Lynch

had hit her with a small wooden table until a leg broke off, then

continued to beat her with the detached leg. She also said that

he had previously hit her with an extension cord and a metal

broom. Jasmine’s injuries were consistent with her report.

Searching the home, the deputy saw a wooden table with a

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Opinion of the Court by Corrigan, J.

missing leg, a power cord, and a broom and mop with metal

handles. As time went by, Jasmine became less forthcoming to

the deputy about the details of the assaults and less willing to

assist in the prosecution.

A jury convicted Lynch of three counts of domestic violence

resulting in a traumatic condition. (§ 273.5, subd. (a).) It hung

on one count of assault with a deadly weapon against Joseph C.

(§ 245, subd. (a)(1).)2 It acquitted Lynch on a second count of

assault with a deadly weapon against Jasmine but convicted

him of simple assault (§ 240) as a lesser offense. Following a

jury waiver, the court found Lynch had suffered a prior

conviction for assault with a firearm (§ 245, subd. (a)(2)) within

the meaning of the Three Strikes law, and a prior conviction for

domestic violence, which increased the sentencing triad for his

current domestic violence convictions (§ 273.5, subd. (f)(1)).

The probation report listed prior felony convictions for

assault with a firearm (§ 245, subd. (a)(2)); two counts of

obstructing a law enforcement officer (§ 69); two counts of

domestic violence (§ 273.5, subd. (a)); unlawful possession for

sale of a controlled substance (Health & Saf. Code, § 11378);

failure to appear (§ 1320, subd. (b)); unlawful

transportation/sale of cannabis (Health & Saf. Code, § 11360,

subd. (a)); and unlawful delivery of cocaine (Oregon) (Or. Rev.

Stat. § 475.880). It also listed six misdemeanor convictions,

including one count of obstructing a peace officer (§ 148, subd.

(a)(1)).

2

This count involved testimony by Joseph about a fight

during which Lynch allegedly stabbed him.

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Opinion of the Court by Corrigan, J.

The report also noted potentially applicable aggravating

circumstances set out in California Rules of Court, rule 4.421.

At the sentencing hearing, defense counsel challenged three of

these aggravating circumstances, arguing that Lynch’s actions

did not rise to the level of a high degree of cruelty, viciousness,

or callousness; that the victim was not particularly vulnerable;

and that Lynch was not a serious danger to society. Counsel did

not object to any of the information about Lynch’s criminal

history in the certified records or the probation report.

In April 2021, the court ordered a prison sentence of 15

years 4 months, imposing the upper term of five years for the

first domestic violence conviction, and consecutive terms of one

year four months for the remaining two counts. The total was

doubled under the Three Strikes law.3 The court cited eight

circumstances in aggravation to support imposing the upper

term sentence for the principal count: (1) the crimes involved a

high degree of cruelty, viciousness, and callousness because

Lynch had struck the victim with a table leg, an extension cord,

and a broomstick (see Cal. Rules of Court, rule 4.421(a)(1));

(2) the victim was particularly vulnerable (id., rule 4.421(a)(3));

(3) Lynch used a weapon when committing the crimes (id., rule

4.421(a)(2)); (4) his conduct and prior record indicate a serious

danger to society (id., rule 4.421(b)(1)); (5) his prior convictions

are numerous (id., rule 4.421(b)(2)); (6) he had served prior

prison terms (id., rule 4.421(b)(3)); (7) he was on parole at the

time he committed the crimes (id., rule 4.421(b)(4)); and (8) his

prior performance on parole was unsatisfactory (id., rule

4.421(b)(5)). The court found no circumstances in mitigation.

3

The court also imposed but stayed a one-year term for the

simple assault. (§ 654.)

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Opinion of the Court by Corrigan, J.

Approximately two months after sentencing, Senate Bill

No. 567 (2021–2022 Reg. Sess.), amending section 1170(b), was

signed into law. On appeal, Lynch argued that he was entitled

to reversal of his sentence and a remand because the jury did

not find any of the facts on which the court relied to support the

upper term sentence.

A divided Court of Appeal affirmed the upper term

sentence. The Attorney General conceded that the 2022

amendment to section 1170(b)(1), (2), and (3) applied

retroactively to Lynch’s pending appeal under In re Estrada

(1965) 63 Cal.2d 740, 745 (Estrada). The majority concluded,

however, that reversal was not required. It held that two

aggravating circumstances, Lynch’s use of a weapon and his

prior convictions, were proved in compliance with the Sixth

Amendment guarantees and with the statute as amended. As

to the remaining aggravating circumstances cited by the trial

court, it ruled that the failure to satisfy the current statute was

an error of state law, reviewable under the “reasonably

probable” standard set out in People v. Watson (1956) 46 Cal.2d

818, 836 (Watson). The majority characterized the Watson test

as asking: “[W]ould any of the facts underlying the . . .

improperly found aggravating circumstances have been found

true beyond a reasonable doubt if submitted to the jury?” And

“excluding any factors we cannot conclude would have been

found true in a permissible manner, is there a reasonable

probability the trial court would have imposed a more lenient

sentence?” Applying that test, the majority found the absence

of a jury verdict harmless. Justice Renner, writing in dissent,

would have found that Lynch suffered prejudice. He pointed out

that the court’s statement of support for the upper term

mentioned many circumstances unadjudicated by the jury.

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PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

Accordingly, it was not clear what sentence the court would have

imposed had it not relied on improperly proven circumstances.

Thereafter, several published cases weighed in on the

matter. (See, e.g., People v. Hall (2023) 97 Cal.App.5th 1084,

1104–1108, review granted Feb. 28, 2024, S283530 (Hall);

People v. Ruiz (2023) 97 Cal.App.5th 1068, 1076–1078, review

granted Mar. 12, 2024, S283504; People v. Falcon (2023) 92

Cal.App.5th 911, 938–951, review granted Sept. 13, 2023,

S281242 (Falcon); People v. Butler (2023) 89 Cal.App.5th 953,

960, review granted May 31, 2023, S279633 (Butler); People v.

Lewis (2023) 88 Cal.App.5th 1125, 1136–1137, 1142–1143,

review granted May 17, 2023, S279147 (Lewis); People v. Ross

(2022) 86 Cal.App.5th 1346, 1354, review granted Mar. 15, 2023,

S278266 (Ross); People v. Dunn (2022) 81 Cal.App.5th 394, 407,

review granted Oct. 12, 2022, S275655 (Dunn); People v. Zabelle

(2022) 80 Cal.App.5th 1098, 1110–1113 (Zabelle); People v.

Wandrey (2022) 80 Cal.App.5th 962, 981–983 (Wandrey); People

v. Lopez (2022) 78 Cal.App.5th 459, 466, 468 (Lopez); People v.

Flores (2022) 75 Cal.App.5th 495, 500 (Flores).) The Courts of

Appeal have uniformly concluded that the 2022 statutory

amendment applies retroactively. They have also uniformly

concluded that defendants sentenced under the old law are not

automatically entitled to a remand, and that some type of

prejudice inquiry applies. The courts have reached different

conclusions about the extent to which the current statute

implicates the Sixth Amendment, and how precisely to

articulate the prejudice inquiry in this context.4 We granted

review to answer these questions.

4

We discuss the lower court holdings in greater detail

below.

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Opinion of the Court by Corrigan, J.

II. DISCUSSION

A. California’s Determinate Sentencing Law

We begin with an overview of various changes to

California’s determinate sentencing law during the last 16

years. Resolving this case will involve distinguishing among

three versions of section 1170: the original approach adopted

when the Legislature replaced the Indeterminate Sentencing

Law with the Determinate Sentencing Law (DSL); the 2007

amendment of section 1170 made in immediate response to

Cunningham; and the latest amendment in 2022. In 2007, the

United States Supreme Court invalidated California’s upper

term sentencing scheme as violative of the Sixth Amendment.

(Cunningham, supra, 549 U.S. at pp. 274, 288, 293.) The

original approach of section 1170(b), which governed

Cunningham’s sentence, required that, when a statute specified

three terms, “the court shall order imposition of the middle

term, unless there are circumstances in aggravation or

mitigation of the crime.” (Former § 1170(b); Stats. 1977, ch. 165,

§ 15, p. 648; Stats. 1998, ch. 926, § 1.5, p. 6207; see Cunningham,

at pp. 277–278.) Thus, the original statute reflected a

presumption in favor of the middle term. The accompanying

rule of court specified that such circumstances had to be proved

by a preponderance of the evidence. (Cal. Rules of Court, former

rule 4.420(b).) Under that scheme the trial court, not the jury,

determined the facts bearing on aggravation or mitigation

employing the lower standard of proof.

However, Cunningham held that, with the exception of

prior conviction allegations, “under the Sixth Amendment, any

fact that exposes a defendant to a greater potential sentence

must be found by a jury” and “established beyond a reasonable

doubt.” (Cunningham, supra, 549 U.S. at p. 281.) The majority

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Opinion of the Court by Corrigan, J.

explained: “As this Court’s decisions instruct, the Federal

Constitution’s jury-trial guarantee proscribes a sentencing

scheme that allows a judge to impose a sentence above the

statutory maximum based on a fact, other than a prior

conviction, not found by a jury or admitted by the defendant.

Apprendi[, supra,] 530 U.S. 466 . . . ; Ring v. Arizona[ (2002)]

536 U.S. 584 . . . ; Blakely v. Washington[ (2004)] 542 U.S. 296

. . . ; United States v. Booker[ (2005)] 543 U.S. 220 . . . . ‘[T]he

relevant “statutory maximum,” ’ this Court has clarified, ‘is not

the maximum sentence a judge may impose after finding

additional facts, but the maximum he may impose without any

additional findings.’ Blakely, 542 U.S., at 303–304 (emphasis in

original).” (Cunningham, at pp. 274–275.) In Cunningham’s

case, “the jury’s verdict alone limited the permissible sentence

to 12 years. Additional factfinding by the trial judge, however,

yielded an upper term sentence of 16 years. The California

Court of Appeal affirmed the harsher sentence.” (Id. at p. 275.)

Cunningham reversed that disposition “because the four-year

elevation based on judicial factfinding denied petitioner his

right to a jury trial.” (Ibid.)

The court observed that, in the wake of its decision, “ ‘[t]he

ball . . . lies in [California’s] court.’ [Citations.] We note that

several States have modified their systems in the wake of

Apprendi and Blakely to retain determinate sentencing. They

have done so by calling upon the jury — either at trial or in a

separate sentencing proceeding — to find any fact necessary to

the imposition of an elevated sentence. As earlier noted,

California already employs juries in this manner to determine

statutory sentencing enhancements. [Citation.] Other States

have chosen to permit judges genuinely ‘to exercise broad

discretion . . . within a statutory range,’ which, ‘everyone

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Opinion of the Court by Corrigan, J.

agrees,’ encounters no Sixth Amendment shoal. [Citation.]

California may follow the paths taken by its sister States or

otherwise alter its system, so long as the State observes Sixth

Amendment limitations declared in this Court’s decisions.”

(Cunningham, supra, 549 U.S. at pp. 293–294, fns. omitted.)

In response to Cunningham, the California Legislature

amended section 1170 in 2007 to provide that the choice between

the lower, middle, and upper terms “shall rest within the sound

discretion of the court,” with the court “select[ing] the term

which, in the court’s discretion, best serves the interests of

justice” and stating reasons for its decision. (Former § 1170(b),

enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) The amendment

gave judges “broad discretion in selecting a term within a

statutory range, thereby eliminating the requirement of a judge-

found factual finding to impose an upper term. [Citations.] [It]

amended section 1170 so that (1) the middle term [was] no

longer the presumptive term absent aggravating or mitigating

facts found by the trial judge; and (2) a trial judge [had] the

discretion to impose an upper, middle or lower term based on

reasons he or she states.” (People v. Wilson (2008) 164

Cal.App.4th 988, 992 (Wilson).) By enacting this amendment,

the Legislature selected the second option presented by the high

court in Cunningham. Lynch was sentenced under the 2007

version of the law.

However, as of January 1, 2022, the Legislature again

amended section 1170 to provide that the trial court “shall,” in

its discretion impose a sentence “not to exceed the middle term”

(id., subd. (b)(1)) except in the following circumstance: “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” an upper term sentence, and “the facts

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Opinion of the Court by Corrigan, J.

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(b)(2);

Stats. 2021, ch. 719, § 2; see also §1170.1, subd. (d)(1), (2)

[imposing same requirement for enhancements punishable by

one of three terms]). Notwithstanding these provisions, 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(b)(3).)5 At the defendant’s request, trial on the

aggravating circumstances alleged in the indictment or

information “shall be bifurcated from the trial of charges and

enhancements” unless “evidence supporting an aggravating

circumstance is admissible to prove or defend against the

charged offense or enhancement at trial, or it is otherwise

authorized by law.” (Id., subd. (b)(2).)6 The effect of the 2022

amendment was to embrace Cunningham’s first option.

5

This provision is consistent with Apprendi, which

recognizes an exception to the jury trial right for prior

convictions. (Apprendi, supra, 530 U.S. at p. 490; see

Almendarez-Torres v. United States (1998) 523 U.S. 224

(Almendarez-Torres).) Section 1170(b)(3) further provides that

this exception to the jury trial requirement “does not apply to

enhancements imposed on prior convictions.” (§ 1170(b)(3).)

6

California Rules of Court, rule 4.420(b) was amended to

reflect these changes. The CALCRIM instructions likewise have

been modified to provide guidance on the definitions and

required findings for the listed aggravating circumstances.

(CALCRIM Nos. 3224–3251.)

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Opinion of the Court by Corrigan, J.

B. Retroactive Application of 2022 Amended Section

1170(b)(1), (2) and (3)

“ ‘It is well settled that a new statute is presumed to

operate prospectively absent an express declaration of

retrospectivity or a clear indication that the electorate, or the

Legislature, intended otherwise.’ [Citations.] The Penal Code

provides that ‘[n]o part of it is retroactive, unless expressly so

declared.’ (§ 3.)” (People v. Stamps (2020) 9 Cal.5th 685, 698–

699 (Stamps).)

The Legislature did not expressly declare whether the

2022 amendment to section 1170 at issue here applies

prospectively or retroactively. The Court of Appeal held that

amended section 1170(b)(1), (2), and (3) apply to Lynch’s case

because the effect of the amendment was ameliorative under the

authority of Estrada, supra, 63 Cal.2d 740 and subsequent

cases, so as to indicate a legislative intent that the amendment

be applied retroactively to cases not final on appeal. Other

appellate courts have uniformly reached the same conclusion.

(See, e.g., Falcon, supra, 92 Cal.App.5th at p. 924; Butler, supra,

89 Cal.App.5th at p. 959; Zabelle, supra, 80 Cal.App.5th at pp.

1108–1109; Lopez, supra, 78 Cal.App.5th at p. 465; People v.

Garcia (2022) 76 Cal.App.5th 887, 902; Flores, supra, 75

Cal.App.5th at p. 500.) The Attorney General concedes the point

in his briefing here and we accept the concession.

C. Whether Automatic Reversal or Prejudice Review Is

Appropriate

The question remains whether Lynch, and similarly

situated appellants, are entitled to an automatic sentencing

reversal and remand, or whether the appellate court should

review the question under some form of prejudice analysis. “The

Estrada rule only answers the question of whether an amended

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Opinion of the Court by Corrigan, J.

statute should be applied retroactively. It does not answer the

question of how that statute should be applied.” (Stamps, supra,

9 Cal.5th at p. 700.)

In the past, when applying ameliorative legislative

changes retroactively, we have employed a prejudice analysis to

determine whether a new trial is required. People v. Wright

(2006) 40 Cal.4th 81 (Wright), for example, held a new law

expanding defenses for marijuana possession was properly

applied because Wright’s case was not final on appeal. (Id. at

pp. 94–98.) However, we concluded he was not entitled to a new

trial because, based on the trial record, the failure to instruct on

the new defense was harmless beyond a reasonable doubt under

Chapman, supra, 386 U.S. 18. (Wright, at pp. 98–99.)7

Likewise, in People v. Tran (2022) 13 Cal.5th 1169 (Tran), a new

provision added elements to a gang enhancement allegation.

We again held the statutory changes applied retroactively. (Id.

at pp. 1206–1207.) We reversed the jury finding as to the gang

enhancement and remanded for a retrial on that question.

Applying Chapman, we concluded reversal and remand were

appropriate because we could not conclude beyond a reasonable

doubt that the failure to instruct on the new elements was

harmless. (Id. at p. 1207; accord, People v. Cooper (2023) 14

Cal.5th 735, 742, 746 (Cooper).) It bears emphasis that, just as

in Wright and Tran, the trial court did not err here. It followed

the law in effect at the time of defendant’s trial. (See Gutierrez,

supra, 58 Cal.4th at p. 1390; Wright, supra, 40 Cal.4th at p. 104

7

Because we found the Chapman standard was met, it was

unnecessary to decide whether failure to instruct on the

affirmative defense violated the defendant’s due process right to

present a defense or was instead state law error only. (Wright,

supra, 40 Cal.4th at p. 98.)

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(conc. & dis. opn. of Baxter, J.).) In circumstances such as these

the prejudice analysis provides a mechanism for reviewing

whether retroactive application of an ameliorative change in the

law could have a practical effect on the judgment. If, for

example, the record establishes beyond a reasonable doubt that

the lack of a jury trial on new elements (Tran/Cooper) or a

defensive theory (Wright) did not affect the outcome, the

defendant cannot claim to have suffered prejudice even though

he was not tried under the provisions of the new law. In keeping

with this approach, and as we discuss in greater detail below,

we conclude a form of prejudice review is appropriate here as

well.

Arguing against this approach, Lynch and amicus curiae

California Public Defender’s Association offer four reasons why

defendants who were sentenced under the former version of

section 1170(b) should be afforded a new sentencing hearing

without an individualized assessment of prejudice. Their

reasoning is unpersuasive.

Lynch first urges that if none of the aggravating facts

relied on by the trial court was proved under the current section

1170(b)(2) procedure, the failure to comply with the statute is

structural error and requires reversal without an assessment of

prejudice.8 The Supreme Court rejected this same argument in

8

Lynch concedes that this circumstance does not apply to

him because the trial court properly considered the fact of his

prior convictions that were proved by certified records. (See

§ 1170(b)(3).) We nonetheless find it appropriate to consider the

argument, which presents a question of law arising in numerous

cases that have been granted and held for this lead case. Our

guidance is therefore warranted. (Cf. In re William M. (1970)

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Washington v. Recuenco (2006) 548 U.S. 212 (Recuenco). There,

the court held that the failure to submit a sentencing factor to

the jury, as required under Blakely v. Washington, supra, 542

U.S. 296 (Blakely), was not structural. It reasoned that, under

Apprendi, supra, 530 U.S. 466, “elements and sentencing factors

must be treated the same for Sixth Amendment purposes.”

(Recuenco, at p. 220.) That is to say that, absent a waiver,

sentencing factors must be proven beyond a reasonable doubt to

the jury. However, “an instruction that omits an element of the

offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining

guilt or innocence.” (Neder v. United States (1999) 527 U.S. 1, 9

(Neder).) The omission is not prejudicial if the reviewing court

concludes beyond a reasonable doubt that “a rational jury would

have found the defendant guilty” upon proper instruction. (Id.

at p. 18.) The court in Recuenco rejected attempts to

characterize the error as “the equivalent of a directed verdict of

guilt” (Recuenco, at p. 221), or the complete absence of a jury

finding under Sullivan v. Louisiana (1993) 508 U.S. 257

(Recuenco, at p. 222, fn. 4; accord, People v. French (2008) 43

Cal.4th 36, 52 & fn. 8 (French)). The same logic applies where

multiple elements are omitted, so long as the omission does not

vitiate all of the jury’s findings. (People v. Merritt (2017) 2

Cal.5th 819, 827–831 (Merritt).) Here, Lynch received a jury

trial on the elements of the substantive offenses. The lack of a

jury trial on aggravating facts therefore did not amount to a

total depravation of a jury trial, nor did it vitiate all of the jury’s

3 Cal.3d 16, 23 [court will decide an issue despite mootness

when it presents “an issue of broad public interest that is likely

to recur”].)

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findings. The prejudice analysis here is triggered by a

retroactive application of an amended state statute. Because

omission of the jury trial right with regard to elements of an

offense or enhancement is not automatically grounds for

reversal, the same analysis applies when assessing the omission

involved here.

Next, Lynch contends that failure to submit aggravating

facts to the jury as now required by section 1170(b)(2) results in

an “unauthorized sentence” that is not amenable to a prejudice

analysis. Again the argument fails. The unauthorized sentence

rule is an exception to the waiver doctrine. It permits a

challenge to an unauthorized sentence on appeal even if the

defendant failed to object below. (In re G.C. (2020) 8 Cal.5th

1119, 1129.) There is no issue of forfeiture or waiver here. The

new statute went into effect after Lynch’s trial and sentencing.

The sentence was authorized when it was imposed. It continues

to be permissible under the current statute so long as the

aggravating facts are either stipulated to by the defendant or

found true by a jury beyond a reasonable doubt. Lynch is

pursuing a legitimately filed appeal with regard to his sentence

and, indeed, will receive the remand remedy he is seeking. His

reliance on precedent governing unauthorized sentences is

misplaced.9 We disapprove language to the contrary in People

v. Falcon, supra, 92 Cal.App.5th 911, 942–943.

9

Lynch cites In re Birdwell (1996) 50 Cal.App.4th 926, but

that case is distinguishable. It involved the jury’s failure to

designate the degree of murder as required under section 1157,

an omission different in kind from that presented here.

Moreover, in finding noncompliance with section 1157, the

Birdwell court relied heavily on People v. McDonald (1984)

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Lynch argues that a prejudice analysis is inappropriate

here because he was not on notice that he would be required to

defend against the uncharged aggravating circumstances, in

violation of his right to due process.10 According to amicus

curiae: “[n]otice is necessary to allow defense counsel to

effectively advise his client of his or her maximum permissible

sentence, to assess the risk of exercising their Sixth Amendment

right to a jury trial, and to decide how to present their case in a

way that gives them a reasonable opportunity to be heard.”

Lynch and amicus curiae rely on cases holding that due process

is violated and reversal required when the prosecution fails to

specifically plead an offense or sentencing enhancement. (See,

e.g., Presnell v. Georgia (1978) 439 U.S. 14, 14–17 (per curiam)

[defendants who were charged with and convicted of kidnapping

with bodily injury (sodomy) could not be deemed to have

committed kidnapping with bodily injury (forcible rape) for first

time on appeal]; Cole v. Arkansas (1948) 333 U.S. 196, 197–202

[defendants who were charged with and convicted of unlawful

assemblage could not be deemed to have committed the separate

crime of interfering with a lawful vocation by the use of force or

violence for first time on appeal]; People v. Mancebo (2002) 27

Cal.4th 735, 742–752 (Mancebo) [defendant could not be

37 Cal.3d 351. (Birdwell, at pp. 928–930.) We subsequently

disapproved McDonald on this point when the charge involves

first degree felony murder. (People v. Mendoza (2000) 23 Cal.4th

896, 908–924.)

10

A similar argument was made in Recuenco. (Recuenco,

supra, 548 U.S. at p. 220, fn. 3.) The defendant there had argued

that Neder did not apply because this was a “case of charging

error, rather than of judicial factfinding.” (Ibid.) The court

declined to address the claim, noting that “the Supreme Court

of Washington treated the error as one of the latter type.” (Ibid.)

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sentenced under the One Strike law for sex crimes against

multiple victims when that circumstance was not alleged in the

accusatory pleading]; People v. Lohbauer (1981) 29 Cal.3d 364,

368–373 [defendant charged with residential burglary could not

be convicted of unauthorized entry, a nonincluded lesser

offense]; People v. Hernandez (1988) 46 Cal.3d 194, 204–211

[defendant’s sentence could not be enhanced for kidnapping for

purposes of rape when that enhancement was not pled and

proved].) Mancebo observed that the defendant “has a

cognizable due process right to fair notice of the specific sentence

enhancement allegations that will be invoked to increase

punishment for his crimes.” (Mancebo, at p. 747.) When a

statute includes specific pleading and proof requirements, “the

People’s failure to include a multiple-victim-circumstance

allegation must be deemed a discretionary charging decision”

which “restrict[s] the trial court to this application.” (Id. at p.

749; accord, In re Vaquera (2024) 15 Cal.5th 706, 721–724.)

Because Lynch was tried and sentenced under the 2007

version of section 1170, this case does not directly present issues

of pleading and notice. Accordingly, it is not necessary for us to

decide exactly what the statute and the federal Constitution

demand in this context. But to the extent pleading and notice

issues bear on whether a prejudice analysis is appropriate, we

find the situation here to be different from those in the cited

cases, rendering them distinguishable.

Each of the substantive offenses of which Lynch was

convicted was charged in the information. The Penal Code gave

notice of the applicable sentencing range for each offense. The

statutory structure, case law, and California Rules of Court set

out the contours of the hearing process. The probation report

and the People’s statement in aggravation advised Lynch of all

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the aggravating circumstances that the court could rely upon to

impose the upper sentence. All the aggravating circumstances

actually relied on by the court have long been set out in the

Rules of Court. (Cal. Rules of Court, rule 4.421.) Parties

regularly discuss their presence or absence during plea

negotiations and consider them in preparation for a sentencing

hearing. In short, Lynch had notice of potentially aggravating

circumstances, had the opportunity to contest them at the

sentencing hearing, and actually did contest three of the factors.

Moreover, because the previous sentencing structure did not

require that aggravating circumstances be set out in the

charging document, the People’s failure to plead and prove them

cannot be “deemed a discretionary charging decision.”

(Mancebo, supra, 27 Cal.4th at p. 749.)

People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) is

instructive. There, applying the high court’s holding in

Recuenco, we concluded that the absence of a jury trial on

aggravating circumstances used to impose the upper term was

amenable to prejudice review notwithstanding many of the

same arguments Lynch raises here. (Id. at pp. 838–840.) We

applied a prejudice analysis in Sandoval. In doing so we

emphasized, however, that the court must “take into account the

differences between the nature of the errors at issue in the

present case and in a case in which the trial court fails to

instruct the jury on an element of the crime but where the

parties were aware during trial that the element was at issue.

In a case such as the present one, the reviewing court cannot

necessarily assume that the record reflects all of the evidence

that would have been presented had aggravating circumstances

been submitted to the jury” because those circumstances “were

not part of the charge and were not directly at issue in the

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trial. . . . Defendant thus did not necessarily have reason — or

the opportunity — during trial to challenge the evidence

supporting these aggravating circumstances unless such a

challenge also would have tended to undermine proof of an

element of an alleged offense.” (Id. at p. 839.) We further

observed that “although defendant did have an incentive and

opportunity at the sentencing hearing to contest any

aggravating circumstances mentioned in the probation report or

in the prosecutor’s statement in aggravation, that incentive and

opportunity were not necessarily the same as they would have

been had the aggravating circumstances been tried to a jury.”

(Ibid.) This is so because the standard of proof at the sentencing

hearing was lower and the trial court had broad discretion in

imposing a sentence. We recognized that “[c]ounsel’s strategy

might have been different had the aggravating circumstances

been tried under a beyond-a-reasonable-doubt standard of proof

to a trier of fact that was responsible only for determining

whether such circumstances were proved (and not for making

the ultimate sentencing decision).” (Id. at p. 840.)

The factors identified in Sandoval may make it more likely

that the absence of jury factfinding on one or more aggravating

facts was prejudicial. But that reality does not justify a rule of

per se reversal. (People v. Cahill (1993) 5 Cal.4th 478, 503.) Our

application of a harmless error review in Sandoval

demonstrates that such review is possible, and the omission is

not structural. (Sandoval, supra, 41 Cal.4th at pp. 840–843; cf.

People v. Anderson (2020) 9 Cal.5th 946, 963–964 [applying

harmless error review to an unpled firearm enhancement].)

Finally, amicus curiae argues that using a prejudice

analysis to deny individual defendants a remand contravenes

the Legislature’s unarticulated intent to have the new statute

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apply retroactively to all persons whose sentences are not final

on direct appeal. In amending section 1170(b)(1) through (3),

the Legislature expressed its intent to codify the Supreme

Court’s holding in Cunningham. The bill’s author explained

that the 2007 legislative amendment to section 1170 was a

“ ‘temporary’ ” measure in response to Cunningham, and that

the statute’s sunset provision had been extended multiple times.

(Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 567

(2021–2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2.) The

author urged that “ ‘[i]t is time for us to revisit the determinate

sentencing structure [that has been] in place for the last 11

years to actively decide what of it is desirable, and serves the

general welfare and the interest of justice.’ ” (Ibid.) According

to the author, “ ‘[i]t is important, proper, and constitutionally

conforming to change the law to ensure that aggravating facts

are presented to the jury before a judge imposes a maximum

sentence as decided in Cunningham v. California.’ ” (Ibid.)

Yet neither the text of the statute nor the legislative

history addressed the retroactive application of the amendment,

and they say nothing about the appropriate standard of review.

While we have accepted the Attorney General’s concession that

the 2022 statutory amendment applies retroactively under

Estrada to cases still pending on appeal at the time of its

enactment, that point of agreement does not dictate how it

should apply in a particular case, or the review standard under

which the question is to be addressed. Our precedent

demonstrates that not every defendant in this posture is

automatically entitled to a remand. (Cooper, supra, 14 Cal.5th

at pp. 742–743; Tran, supra, 13 Cal.5th at p. 1207; Wright,

supra, 40 Cal.4th at pp. 98–99.)

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As we have done before, we emphasize that determining

legislative intent with respect to retroactive application of a

statute “can be a difficult, divisive, and time-consuming one for

courts, which have to discern intent from sometimes opaque

sources.” (People v. Prudholme (2023) 14 Cal.5th 961, 979.)

Given these “ ‘interpretative difficulties’ ” and the “ ‘sheer

volume of nonfinal criminal cases in this state,’ ” courts will

greatly benefit from the Legislature’s specificity on these

matters. (Id. at p. 980, quoting People v. Flores (2022) 77

Cal.App.5th 420, 452–453.) “We urge the Legislature . . . to

consider the retroactive application of new laws and to regularly

express their intent regarding if and how they should be applied

retroactively.” (Prudholme, at p. 980.)

D. Test for Assessing Prejudice

Having determined that Lynch is not automatically

entitled to a remand for resentencing under current section

1170(b)(1), (2) and (3), we turn to the appropriate test for

assessing prejudice in this circumstance. Watson and Chapman

articulate two different tests for determining prejudice. Which

test is appropriate depends on the nature of the error and the

right impinged upon. We apply the Watson test to errors of state

law that do not rise to the level of federal constitutional error.

(People v. Hendrix (2022) 13 Cal.5th 933, 942; Watson, supra, 46

Cal.2d at p. 836.) Under the Watson test, an error is harmless

unless it is “reasonably probable” the outcome would have been

different in the absence of the error. (Watson, at p. 836.) “ ‘In

contrast, we evaluate the harmlessness of violations of the

federal Constitution under the standard set forth in

Chapman[, supra,] 386 U.S. 18.’ [Citation.] This ‘stricter’

standard of review requires reversal unless the error is

‘harmless beyond a reasonable doubt.’ ” (Hendrix, at p. 942.)

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The failure to afford a jury trial on every element of a criminal

offense is subject to Chapman review. (Ibid.; Merritt, supra, 2

Cal.5th at p. 824; Neder, supra, 527 U.S. at p. 10.) This is so

because the federal Constitution requires “criminal convictions

to rest upon a jury determination that the defendant is guilty of

every element of the crime with which he is charged, beyond a

reasonable doubt.” (United States v. Gaudin (1995) 515 U.S.

506, 510.)

The plain language of section 1170(b)’s current version

now requires that, excepting prior convictions and in the

absence of a waiver or stipulation, aggravating facts relied upon

to justify an upper term must be resolved by the jury beyond a

reasonable doubt. What we must decide is the extent to which

this right is tethered to the Sixth Amendment or is simply a

state law entitlement. Resolution of that question dictates the

appropriate standard of review. Although the question has

constitutional implications, it is primarily one of statutory

interpretation and legislative intent. It is up to the Legislature

to define what facts are necessary to impose an upper term

sentence. (Cf. Patterson v. New York (1977) 432 U.S. 197, 211,

fn. 12.) Relatedly, it is squarely within the Legislature’s

purview to decide how to remedy the constitutional violation

identified in Cunningham, supra, 549 U.S. 270. (See id. at pp.

293–294; cf. United States v. Booker, supra, 543 U.S. at p. 246

[“We answer the remedial question by looking to legislative

intent”].) Accordingly, in this context, what the Sixth

Amendment requires is necessarily informed by what the state

statutory scheme requires. “[T]he relevant inquiry is one not of

form, but of effect . . . .” (Apprendi, supra, 530 U.S. at p. 494.)

The majority of appellate courts to consider this question

have used both federal and state standards to address different

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aspects of the analysis. They have held that omission of a jury

trial is harmless so long as a reviewing court, applying

Chapman, can conclude beyond a reasonable doubt that at least

one aggravating fact would have been found true by the jury.

(Falcon, supra, 92 Cal.App.5th at pp. 938–939; Butler, supra, 89

Cal.App.5th at pp. 959–960; Lewis, supra, 88 Cal.App.5th at p.

1137; Ross, supra, 86 Cal.App.5th at pp. 1353–1355; Dunn,

supra, 81 Cal.App.5th at pp. 408–410; Zabelle, supra, 80

Cal.App.5th at pp. 1110–1113; Lopez, supra, 78 Cal.App.5th at

p. 467, fn. 11; Flores, supra, 75 Cal.App.5th at p. 500.)11 Those

opinions rely on People v. Black (2007) 41 Cal.4th 799 (Black II)

and Sandoval, supra, 41 Cal.4th 825, which were decided before

the 2022 amendment to section 1170.12 Courts relying on

Black II and Sandoval reason that, so long as a single

aggravating fact was either proved in compliance with the

11

Lopez, Ross, and Butler refer to finding “all” aggravating

facts upon which the trial court relied to impose the upper term

harmless beyond a reasonable doubt. (Butler, supra, 89

Cal.App.5th at p. 960; Ross, supra, 86 Cal.App.5th at p. 1354;

Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) But those cases

go on to apply a Watson harmless error standard if the Chapman

standard is not satisfied. This demonstrates, in effect, that

those opinions deem the Sixth Amendment error harmless by

the finding of a single aggravating fact. Were it otherwise, the

courts would have reversed if Chapman was not satisfied as to

all facts, and would have had no reason to resort to a second

level prejudice inquiry. (See Falcon, supra, 92 Cal.App.5th at p.

939.)

12

Black II was decided on remand from the high court

following its decision in Cunningham. (Black v. California

(2007) 549 U.S. 1190, vacating and remanding People v. Black

(2005) 35 Cal.4th 1238 (Black I).) Sandoval was granted review

after Cunningham was decided and was filed as a companion

case to Black II.

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current statute, or would have been found true by the jury

applying the Chapman standard, the trial court’s reliance on

other facts not proved in compliance with the statute is state

error only. (Falcon, at pp. 938–939; Lewis, at p. 1137; Ross, at

pp. 1353–1354; Dunn, at pp. 408–410; Zabelle, at pp. 1111–

1112.) Applying the less stringent Watson standard, they have

gone on to affirm the judgment if they can conclude, to a

reasonable probability, that the remaining facts would have

been found true by the jury; or alternatively, that the trial court

would have imposed the same sentence without relying on those

facts. (Butler, at pp. 961–962; Ross, at pp. 1353–1355; Dunn, at

pp. 408–410; Zabelle, at p. 1112; Lopez, at p. 467 & fn. 11.) Our

dissenting colleagues likewise adopt this approach. (Conc. &

dis. opn. of Kruger, J., post, at pp. 8–10, 15–16; dis. opn. of

Guerrero, C. J., post, at pp. 2–4, 7–9, 14–19, 31–32, 35.)

We find this reliance on Black II and Sandoval misplaced,

and we reject the secondary reliance on the Watson standard to

assess prejudice from the denial of a jury trial on aggravating

facts, other than prior convictions, used to justify an upper term

sentence. The premise underlying the appellate decisions and

our colleagues’ separate opinions is that the current statute

before us operates in the same manner as the original version of

section 1170 that Cunningham invalidated. That argument

fails at the threshold. The current version of 1170 is not the

same as the original pre-Cunningham version.

The 2022 amendment of section 1170(b)(1) and (2) has

overtaken the viability of Black II and Sandoval on this issue.

As we explain below, under the current statute the facts

supporting every aggravating circumstance upon which the trial

court relies to “justify” imposition of the upper term must be

properly proven as the statute requires. (§ 1170(b)(2).) The

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current statute specifically empowers the court to choose an

upper term only if the facts supporting each aggravating

circumstance on which it relies have been resolved by the jury

or otherwise established as the statute allows. In other words,

unlike the original statute at issue in Black II, the defendant is

no longer “eligible” for the upper term simply because an

aggravating fact exists. Instead, the defendant may be properly

sentenced to an upper term only if the jury finds facts that, in

the trial court’s view, “justify” an upper term sentence. The

2022 amendment of section 1170(b)(1) and (2) effectively codifies

the holding in Cunningham and goes on to adopt the first option

it presented. Excluding properly proven prior convictions or a

defense stipulation, a jury finding is now required for all facts

actually relied on to impose an upper term. (See Cunningham,

supra, 549 U.S. at pp. 281, 288–289.)

i. Black II and Sandoval

The original version of section 1170 at issue in Black II

provided that “[w]hen a judgment of imprisonment is to be

imposed and the statute specifies three possible terms, the court

shall order imposition of the middle term, unless there are

circumstances in aggravation or mitigation of the crime.” (Pen.

Code, former § 1170, subd. (b).) Considering Black’s case on a

Supreme Court remand after Cunningham, we explained that

“the constitutional requirement of a jury trial and proof beyond

a reasonable doubt applies only to a fact that is ‘legally essential

to the punishment’ [citation], that is, to ‘any fact that exposes a

defendant to a greater potential sentence’ than is authorized by

the jury’s verdict alone [citation].” (Black II, supra, 41 Cal.4th

at p. 812.) “Accordingly, so long as a defendant is eligible for the

upper term by virtue of facts that have been established

consistently with Sixth Amendment principles, the federal

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Constitution permits the trial court to rely upon any number of

aggravating circumstances in exercising its discretion to select

the appropriate term by balancing aggravating and mitigating

circumstances, regardless of whether the facts underlying those

circumstances have been found to be true by a jury.” (Id. at p.

813.) Applying these principles to the original section 1170(b),

Black II reasoned that “the existence of a single aggravating

circumstance [was] legally sufficient to make the defendant

eligible for the upper term. [Citation.] Therefore, if one

aggravating circumstance [was] established in accordance with

the constitutional requirements set forth in Blakely, the

defendant [was] not ‘legally entitled’ to the middle term

sentence, and the upper term sentence [was] the ‘statutory

maximum.’ ” (Black II, at p. 813.) Under this interpretation of

the former statute, “aggravating circumstances serve[d] two

analytically distinct functions in California’s . . . determinate

sentencing scheme. One function [was] to raise the maximum

permissible sentence from the middle term to the upper term.

The other function [was] to serve as a consideration in the trial

court’s exercise of its discretion in selecting the appropriate

term from among those authorized for the defendant’s offense.

Although the DSL does not distinguish between these two

functions, in light of Cunningham it is now clear that we must

view the federal Constitution as treating them differently.

Federal constitutional principles provide a criminal defendant

the right to a jury trial and require the prosecution to prove its

case beyond a reasonable doubt as to factual determinations

(other than prior convictions) that serve the first [eligibility]

function, but leave the trial court free to make factual

determinations that serve the second [discretionary] function.”

(Id. at pp. 815–816.)

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Black II concluded that there is no error under the Sixth

Amendment so long as one or more aggravating circumstances

“has been found to exist by the jury, has been admitted by the

defendant, or is justified based upon the defendant’s record of

prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.)

Sandoval considered the related question of how to assess

prejudice when none of the aggravating circumstances was

proved in compliance with the federal Constitution’s jury trial

guarantee. Applying Black II’s logic, Sandoval held that “if 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

Sixth Amendment error properly may be found harmless.”

(Sandoval, supra, 41 Cal.4th at p. 839.)

As these holdings make clear, the original, pre-

Cunningham scheme created a presumption in favor of a middle

term. Imposition of an upper or lower term sentence was off

limits unless the court, acting as a factfinder, concluded that an

aggravating or mitigating factor permitted a deviation from the

middle term. Such a finding made the defendant “eligible” for

the upper or lower term. Once eligibility was established the

court had the authority to consider any and all facts it found to

select an appropriate sentence. Importantly, Black II and

Sandoval had no occasion to consider the statutory framework

currently before us. Indeed, by the time those cases were

decided, the Legislature had amended section 1170(b) in 2007 to

eliminate the middle term presumption and instead give the

trial court authority to select among any of the three terms as a

matter of discretion and without any judicial factfinding.

(Sandoval, supra, 41 Cal.4th at p. 845; Wilson, supra, 164

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Cal.App.4th at p. 992.) This post-Cunningham change

effectively eliminated the requirement of a jury trial which

would otherwise have been required under the Sixth

Amendment. (Cunningham, supra, 549 U.S. at p. 294.)

ii. The Text of Current Section 1170(b)

The 2022 version of section 1170(b) functions differently

than the pre-Cunningham statute analyzed in Black II and

Sandoval. Paragraph (1) now provides that “the court shall, in

its sound discretion, order imposition of a sentence not to exceed

the middle term, except as otherwise provided in paragraph (2).”

(§ 1170(b)(1).) Paragraph (2) provides that “[t]he 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

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.” (Id., subd. (b)(2).) Under the current statute the middle

term is the maximum term that can be imposed unless

additional factual determinations are made. It is the

requirement of additional factfinding that brings the Sixth

Amendment into play. (Cunningham, supra, 549 U.S. at pp.

288–289, 292–293.) As the Court clarified in Blakely, supra, 542

U.S. at page 304, the maximum available sentence is that

available “without any additional findings.” An upper term

sentence may be imposed “only” when circumstances in

aggravation “justify” that term, and “only” when the facts

underlying “those” justifying circumstances have been

stipulated to by the defendant or found true beyond a reasonable

doubt at a jury or court trial. By referring to aggravating

circumstances “that justify the imposition of” an upper term

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sentence (§ 1170(b)(2)), the statute contemplates all of the

aggravating circumstances that the court actually relies on to

justify the sentence, not some subset of those circumstances.

(Cf. Hudec v. Superior Court (2015) 60 Cal.4th 815, 826.) It then

specifies that the facts underlying “those circumstances,” i.e.,

the same circumstances the trial court relies on to “justify the

imposition of” an upper term sentence, must be proven as the

statute requires. (§ 1170(b)(2), italics added.)

The current statute does not follow the blueprint provided

in Black II. It does not speak in terms of a single aggravating

factor making the defendant “eligible” for an upper term

sentence. (Black II, supra, 41 Cal.4th at p. 813.) Nor does it

preserve the two-tiered approach discussed in Black II (id. at p.

816) authorizing the trial court to make factual determinations

as to aggravating facts (other than prior convictions) to justify

an upper term sentence. Absent stipulation or waiver, that

factfinding role now resides solely with the jury. Under the

current statute, if an aggravating circumstance does not rest on

properly proven facts, the circumstance cannot be relied upon

when the court exercises its discretion to justify an upper term

sentence.

The current statute tracks fairly precisely the test that

Cunningham articulated to safeguard the Sixth Amendment

jury trial guarantee: “any fact that exposes a defendant to a

greater potential sentence must be found by a jury, not a judge,

and established beyond a reasonable doubt, not merely by a

preponderance of the evidence.” (Cunningham, supra, 549 U.S.

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at p. 281, italics added.)13 Under the current statute, the

aggravating facts that would “justify” an upper term sentence

(§ 1170, subd. (b)(2)) are the same facts that “expose” the

defendant to imposition of that sentence in the trial court’s

discretion. (Cunningham, at p. 281.) Stated another way, under

the current statute the aggravating facts used to “justify” an

upper term sentence are “necessary to [its] imposition,” (id. at

p. 294) and effectively function like elements of a crime

(Recuenco, supra, 548 U.S. at p. 220).

A prejudice inquiry under Watson is inadequate to assess

the effect of a failure to honor the Sixth Amendment’s jury trial

right. The trial court’s substitution of its own factfinding for

that of a jury, and its application of a lower standard of proof,

are not mere state statutory errors. They are errors that run

counter to the high court’s interpretation of the federal

constitution. Neither are they mere errors affecting the court’s

exercise of discretion.14 This is true even if the court might have

imposed the same sentence based on fewer aggravating

circumstances than those it cites on the record. When the trial

court actually relies on improperly proven aggravating facts to

“justify” an upper term sentence, a Sixth Amendment violation

occurs and Chapman must be satisfied. That is to say the

13

Notably, Cunningham nowhere uses the words “eligible”

or “eligibility.” Those concepts were introduced by Black II and

Sandoval. (Black II, supra, 41 Cal.4th at pp. 806, 812–813, 820;

Sandoval, supra, 41 Cal.4th at pp. 832, 836, 839.)

14

Compare with People v. Price (1991) 1 Cal.4th 324, 492

(“When a trial court has given both proper and improper reasons

for a sentence choice, a reviewing court will set aside the

sentence only if it is reasonably probable that the trial court

would have chosen a lesser sentence had it known that some of

its reasons were improper”).

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reviewing court must be able to conclude beyond a reasonable

doubt that the jury would have found the unproven aggravating

facts to be true had it been properly instructed. This prejudice

inquiry does not allow us to uphold the trial court’s imposition

of an upper term sentence based on some subset of aggravating

facts. As Cunningham aptly put it: “Asking whether a

defendant’s basic jury-trial right is preserved, though some facts

essential to punishment are reserved for determination by the

judge, we have said, is the very inquiry Apprendi’s ‘bright-line

rule’ was designed to exclude.” (Cunningham, supra, 549 U.S.

at p. 291.) Under this circumstance, “[i]t is no answer to say

that the defendant could have received the same sentence with

or without that fact.” (Alleyne, supra, 570 U.S. at p. 115.)

The high court’s recent decision in Erlinger, supra, 602

U.S. ___ [144 S.Ct. 1840] confirms this view. There the court

interpreted the scope of the prior conviction exception

recognized in Almendarez-Torres, supra, 523 U.S. 224. It

rejected the argument that the exception “permits a judge to

find perhaps any fact related to a defendant’s past offenses,

including whether he committed them on different occasions”

within the meaning of the Armed Career Criminal Act.

(Erlinger, at p. ___ [144 S.Ct. at p. 1853].) Instead, “a judge may

‘do no more, consistent with the Sixth Amendment, than

determine what crime, with what elements, the defendant was

convicted of.’ ” (Id. at p. ___ [144 S.Ct. at p. 1854], quoting

Mathis v. United States (2016) 579 U.S. 500, 511–512.) In so

concluding, the court reaffirmed Apprendi’s basic rationale in

the face of arguments by the dissent and amicus curiae that,

historically, “[w]hen exercising their sentencing authority,

judges were also presumed to have the power to find and

consider nearly any fact deemed relevant to the penalty.”

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(Erlinger, at p. ___ [144 S.Ct. at p. 1876] (dis. opn. of Jackson,

J.); see also id. at p. ___ [144 S.Ct. at pp. 1856–1857]

[summarizing amicus curiae’s argument that “the Fifth and

Sixth Amendments’ original meaning and ‘deep’ common-law

traditions authorize judges at sentencing to find all manner of

facts about an offender’s past crimes”].) The court emphasized

that, while the government has flexibility to experiment with

sentencing practices, such experiments “must remain within the

Fifth and Sixth Amendments’ guardrails.” (Id. at p. ___ [144

S.Ct. at p. 1850].) In the face of “a variety of . . . recent

sentencing innovations” (id. at p. ___ [144 S.Ct. at p. 1851]), the

court has “come to the same conclusion in one decision after

another” (id. at p. ___ [id. at p. 1857]). “Virtually ‘any fact’ ” that

increases “a defendant’s exposure to punishment . . . must ‘be

submitted to a jury’ and found unanimously and beyond a

reasonable doubt.” (144 S.Ct. at p. ___ [Id. at p. 1851].)

Our Legislature’s most recent amendment to section

1170(b) closely follows those teachings. But the separate

opinions here do not. The dissents take issue with our

interpretation of both the high court’s precedent and the current

version of section 1170(b). In doing so, they embrace the

declarations in Black II and Sandoval applying the high court’s

precedent to a different version of the DSL that was found

unconstitutional in Cunningham. Respectfully, we find that

analysis unpersuasive.

The majority and dissents begin from the same premise:

that the Sixth Amendment jury trial right is triggered by section

1170(b)’s substantive requirements governing imposition of an

upper term sentence. (Conc. & dis. opn. of Kruger, J., post, at

pp. 9–13; dis. opn. of Guerrero, C. J., post, at pp. 8, 14.) But we

part ways in our interpretation of what the current statute

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requires. The dissents reason that, under section 1170(b)’s

current provisions, only one aggravating circumstance is legally

required to make a defendant eligible for an upper term

sentence, and therefore, only one aggravating circumstance

must be proved in compliance with the Sixth Amendment.

(Conc. & dis. opn. of Kruger, J., post, at pp. 7, 9–10, 12, 15; dis.

opn. of Guerrero, C. J., post, at pp. 2, 8, 17, citing Black II, supra,

41 Cal.4th at p. 813 and People v. Osband (1996) 13 Cal.4th 622,

728 (Osband).) Thus, they reason, additional judicial

factfinding beyond the first aggravator falls squarely with in the

trial court’s broad discretion to select a term within the

permissible range. (Conc. & dis. opn. of Kruger, J., post, at pp.

2, 4–5, 14; dis. opn. of Guerrero, C. J., post, at pp. 3, 6–7, 9–10,

13, fn. 4, 17, 19–21 & fn. 6.) Our dissenting colleagues do not

dispute our reading of the statute to require a jury trial as to all

aggravating circumstances, other than prior convictions, used to

justify an upper term sentence. But they reason that this is a

matter of state procedure, rather than one of constitutional

substance. (Conc. & dis. opn. of Kruger, J., post, at pp. 1–2, 8,

11, 15; dis. opn. of Guerrero, C. J., post, at pp. 12–14, 21, 24.)

The reliance on Black II falters upon examination of the

material differences between the original section 1170(b) and

the current version. The original statute set forth a single

requirement to depart from the middle term: that “there are

circumstances in aggravation or mitigation of the crime.”

(Former § 1170(b); Stats. 1977, ch. 165, § 15, p. 648.) In a

separate discussion, the statute listed sources of information

that the court, as factfinder, could rely on “[i]n determining

whether there are circumstances that justify imposition of the

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upper or lower term.” (Ibid.)15 The accompanying rule of court

provided that “[t]he middle term must be selected unless

imposition of the upper or lower term is justified by

circumstances in aggravation or mitigation.” (Cal. Rules of

Court, former rule 4.420(a).) Based on this statutory structure,

Black II reasoned that “the existence of a single aggravating

circumstance is legally sufficient to make the defendant eligible

for the upper term” (41 Cal.4th at p. 813) and “aggravating

circumstances serve two analytically distinct functions” (id. at

p. 815), namely to raise the maximum permissible term and to

serve as a consideration in the trial court’s exercise of discretion

(id. at pp. 815–816, citing former § 1170(b) and Osband, supra,

13 Cal.4th at p. 728).

The current statute, by contrast, eliminates any purported

distinction between eligibility and justification with respect to

the finding of aggravating facts by: (1) deleting the stand-alone

reference to aggravating circumstances; (2) elevating the word

“justify” from an ancillary reference in the statute’s list of

permitted evidence to a substantive requirement;

(3) authorizing the court to impose an upper term sentence

“only” when the “circumstances in aggravation . . . justify the

imposition” of that term; and (4) eliminating the court’s

factfinding authority as to aggravating facts (other than prior

15

Although the statute has undergone numerous revisions

over the decades, the quoted language remained unchanged at

the time of Cunningham’s sentence in 2003 and when the high

court decided Cunningham in 2007. (Stats. 1998, ch. 926, § 1.5,

pp. 6207–6208; Stats. 2004, ch. 747, § 1, pp. 5808–5809.)

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convictions). (§ 1170(b).)16 Examination of these differences

undermines our colleagues’ assertion that the current statute is

materially indistinguishable from the original statute

considered in Black II and Cunningham. (Conc. & dis. opn. of

Kruger, J., post, at pp. 9–11; dis. opn. of Guerrero, C. J., post, at

pp. 19–20.) Nor are these changes merely procedural in nature.

(Dis. opn. of Guerrero, C. J., post, at pp. 12–14.) They convey

substantive sentencing requirements. These statutory

differences reanimate and give force to the defense argument,

rejected in Black II, that the existence of a single aggravating

circumstance does not satisfy Apprendi’s jury trial requirement

because the trial court must justify imposition of that sentence.

(Black II, supra, 41 Cal.4th at p. 814.) In so concluding, we heed

the high court’s caution not to ignore the constitutional

significance of the statutory scheme our Legislature has

adopted. (Cunningham, supra, 549 U.S. at pp. 289–293 & fn.

16.)

It is true that nothing in section 1170(b)(2) prohibits the

court from imposing an upper term sentence based on a single,

properly proven aggravating circumstance if, in the court’s

discretion, that circumstance alone justifies a sentence

exceeding the middle term. We do not read the current statute’s

16

California Rules of Court, former rule 4.420(b) is distinct

from current section 1170(b) as well. The former rule provided

that an upper term sentence is “justified only if, after a

consideration of all the relevant facts, the circumstances in

aggravation outweigh the circumstances in mitigation” (Cal.

Rules of Court, former rule 4.420(b)), rather than “only when

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” are properly

proven (§ 1170(b)(2)).

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reference to “circumstances” in the plural as requiring a

different conclusion. (§ 1170(b)(2); see § 7, subd. (a) [as used in

the Penal Code, “[w]ords used in the singular number includes

the plural, and the plural the singular”]; accord, Hall, supra, 97

Cal.App.5th at pp. 1105–1106; Falcon, supra, 92 Cal.App.5th at

p. 955; Lopez, supra, 78 Cal.App.5th at p. 467.) But under the

current statute, the court may do so “only” if it determines “in

its sound discretion,” that a single aggravating circumstance

“justif[ies]” the upper term. (§ 1170(b)(1), (2).) This

requirement is functionally different from the abstract concept

of eligibility discussed in Black II. (Black II, supra, 41 Cal.4th

at p. 812.) Accordingly, unlike our colleagues, we do not consider

the relevant inquiry under current section 1170(b) to be simply

whether a single aggravating fact is “ ‘legally sufficient’ ” or

“ ‘required’ ” to impose the upper term (dis. opn. of Guerrero,

C. J., post, at pp. 2, 8, quoting Black II, supra, 41 Cal.4th at p.

813 and Osband, supra, 13 Cal.4th at p. 728); or whether “an

upper term sentence is legally authorized so long as there exists

at least one aggravating circumstance found in a

‘constitutionally compliant’ manner . . .” (conc. & dis. opn. of

Kruger, J., post, at p. 9, italics added). (See also discussion, post,

at pp. 38–39.)

In arguing against this conclusion, the Chief Justice

emphasizes that original section 1170(b) discussed in Black II

also did not speak in terms of eligibility. (Dis. opn. of Guerrero,

C. J., post, at pp. 19–20.) She urges instead that the concept

comes from the “substantive requirements of California

sentencing law.” (Id., post, at p. 20.) It is not clear what these

“substantive requirements” would be, beyond section 1170(b)

and the accompanying California Rules of Court. Black II did

not provide much explication of its own on this point. It cited

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section 1170(b) and Osband. (Black II, supra, 41 Cal.4th at pp.

813, 815.) Osband, supra, 13 Cal.4th at page 728 had mentioned

a Court of Appeal case, People v. Castellano (1983) 140

Cal.App.3d 608, 614–615. Castellano cited People v. Burney

(1981) 115 Cal.App.3d 497, 504–505, which, in turn, cited People

v. Covino (1980) 100 Cal.App.3d 660. Covino stated, without

citation to authority, that “[t]here is no authority for appellant’s

position that the court may not act upon the finding of only one

of several circumstances in aggravation, and such a proposition

would be unreasonable.” (Id. at p. 670.) Given that section

1170(b) has been significantly amended since Black II, we find

it unnecessary to probe this line of analysis further. Suffice it

to say that the fact the original section 1170(b) did not reference

an eligibility “floor” is not a compelling justification for

importing such a concept into the current statute. If anything,

it calls Black II’s eligibility “gloss” into question.

An example illustrates the false equivalency of applying

Black II’s holding to the current statutory framework. Suppose

the trial court finds based on certified records that the defendant

has numerous prior convictions. (§ 1170(b)(3).) But the court

finds this circumstance does not justify an upper term sentence

because the convictions are decades old and the defendant has

lived a law-abiding life in the interim. Instead, the court finds

that a different aggravating circumstance, a victim’s particular

vulnerability, justifies an upper term sentence. If the facts

underlying that circumstance were not found by a jury, the court

cannot rely on it. (§ 1170(b)(2).) Nonetheless, under the logic of

Black II, there is no Sixth Amendment violation because the

defendant’s numerous prior convictions made him “eligible” for

an upper term sentence, even though they did not justify

imposition of the upper term. Or, as Justice Kruger otherwise

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puts it, the existence of the defendant’s numerous prior

convictions means that “an upper term sentence is legally

authorized” under the Sixth Amendment. (Conc. & dis. opn. of

Kruger, J., post, at p. 9.) But this cannot be so. The Sixth

Amendment cannot be satisfied where the statute’s substantive

requirements are not. Under the current statute, if a properly

proven aggravating circumstance does not justify an upper term

sentence, the defendant is not eligible for such a sentence. The

result does not change because the trial court finds that a

different unproven aggravating circumstance justifies such a

sentence.

The Chief Justice further reasons that current section

1170(b) “does not identify any particular aggravating fact, or

any number of aggravating facts, that must be found in order to

impose an upper term sentence.” (Dis. opn. of Guerrero, C. J.,

post, at p. 11.) Similarly, Justice Kruger urges that “section

1170(b)(2) does not create a crime whose elements consist of

some indeterminate set of aggravating facts — any facts at all —

but only so long as those facts have been found by a jury and are

deemed pertinent by a judge.” (Conc. & dis. opn. of Kruger, J.,

post, at p. 13.) They reason that the lack of particularized

identification, or numerical requirement, “distinguishes

aggravating facts in this context from the elements of a criminal

offense, each of which is essential.” (Dis. opn. of Guerrero, C. J.,

post, at p. 2; accord, conc. & dis. opn. of Kruger, J., post, at pp.

11–13.) Justice Kruger also observes, “if the court can exercise

its discretion to impose an upper term sentence based on a single

aggravating fact, it simply cannot be said that the Legislature

has made additional aggravating facts essential to the

sentence.” (Conc. & dis. opn. of Kruger, J., post, at pp. 12–13.)

It is true that section 1170(b) does not enumerate an exclusive

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list of aggravating facts, all of which must be proved before the

court can impose an upper term sentence. But it is also true

that, under the statute, no single aggravating fact is necessarily

sufficient. (See discussion, ante, at pp. 36–37.) The dissenters’

reliance on such absolutes is misplaced in this context. Our high

court has made clear that a sentencing scheme need not set out

a mandatory list of aggravating facts that must be proved in

every case in order for Apprendi’s protections to apply.

(Cunningham, supra, 549 U.S. at p. 284; Blakely, supra, 542

U.S. at p. 305 & fn. 8.) Rather, in the context of discretionary

sentencing schemes, the Supreme Court’s precedent speaks of

the right to a jury trial on “any fact that exposes a defendant to

a greater potential sentence.” (Cunningham, at p. 281, italics

added.) The high court has “treated sentencing factors, like

elements, as facts that have to be tried to the jury and proved

beyond a reasonable doubt.” (Recuenco, supra, 548 U.S. at p.

220.) That the trial court retains “broad discretion to decide

what facts may support an enhanced sentence, or to determine

whether an enhanced sentence is warranted in any particular

case, does not shield a sentencing system from the force of”

Apprendi and its progeny. (Cunningham, at p. 290.)

Our dissenting colleagues also rely on the high court’s

pronouncements reaffirming the trial court’s permissible

factfinding role in the context of sentencing. (Conc. & dis. opn.

of Kruger, J., post, at pp. 2, 4–5, 14; dis. opn. of Guerrero, C. J.,

post, at pp. 3, 6–7, 9–10, 13, fn. 4, 19–21 & fn. 6.) Apprendi, for

example, observed that “nothing in this history suggests that it

is impermissible for judges to exercise discretion — taking into

consideration various factors relating both to offense and

offender — in imposing a judgment within the range prescribed

by statute.” (Apprendi, supra, 530 U.S. at p. 481.) And Alleyne

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observed that “[j]uries must find any facts that increase either

the statutory maximum or minimum because the Sixth

Amendment applies where a finding of fact both alters the

legally prescribed range and does so in a way that aggravates

the penalty. Importantly, this is distinct from factfinding used

to guide judicial discretion in selecting a punishment ‘within

limits fixed by law.’ [Citation.] While such findings of fact may

lead judges to select sentences that are more severe than the

ones they would have selected without those facts, the Sixth

Amendment does not govern that element of sentencing.”

(Alleyne, supra, 570 U.S. at p. 113, fn. 2, second italics added.)17

Relying on these and other authorities, the Chief Justice

reasons that the Sixth Amendment’s protections do not apply

when a statute confers discretion on the trial court to determine

17

The Chief Justice also quotes from Justice Jackson’s

dissenting opinion in Erlinger, supra, 602 U.S. at page ___ [144

S.Ct. at p. 1880]: “Even after Apprendi, a sentencing judge can

still find and consider any fact — including sentencing factors

defined by the legislature — so long as the consequence of that

fact is not mandatory but rather left to the judge’s discretion.”

(See dis. opn. of Guerrero, C. J., post, at p. 11.) Justice Jackson

offered this comment in service of her criticism of Apprendi’s

rule: “Apprendi’s distinction between permissible and

impermissible judicial factfinding therefore neither aligns with

the doctrine’s rationale nor achieves its stated goals. As a result,

the Apprendi rule does little actual work.” (Erlinger, at p. __

[144 S.Ct. at p. 1880].) No other member of the court signed the

dissent or embraced the views it expressed.

Justice Kruger likewise places particular emphasis on

language appearing in a concurring opinion in a case that

addressed whether a federal Court of Appeals may apply a

presumption of reasonableness to sentences falling within a

properly calculated sentencing guidelines range. (Conc. & dis.

opn. of Kruger, J., post, at pp. 5, 14, quoting Rita v. United States

(2007) 551 U.S. 338, 373 (conc. opn. of Scalia, J.).)

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the significance of additional aggravating facts. (Dis. opn. of

Guerrero, C. J., post, at pp. 9, 11, 13, fn. 4.)

But this premise rests on the assumption that the trial

court is authorized to consider unproved, aggravating facts in

an exercise of its discretion to impose an upper term sentence.

This analysis also fails to honor the distinction between the

requirement of properly proven facts and the court’s exercise of

its discretion when determining the significance of those facts.

As the high court’s precedents make clear, a jury trial is

required on “fact[s]” that are used to justify a sentence in excess

of the middle term. (Apprendi, supra, 530 U.S. at p. 490; see

also Blakely, supra, 542 U.S. at p. 305, fn. 8.) However, “[t]he

trial court’s evaluation of the relative weight of aggravating and

mitigating circumstances is not equivalent to a factual finding.”

(Black II, supra, 41 Cal.4th at p. 814, fn. 4.) Moreover, for

reasons we have explained, aggravating facts that “justify” the

upper term under the current statute are not merely “fact[s]

that influence[] judicial discretion.” (Alleyne, supra, 570 U.S. at

p. 116; see conc. & dis. opn. of Kruger, J., post, at p. 4; dis. opn.

of Guerrero, C. J., post, at pp. 10, 21, fn. 6.) All such facts are

“legally essential to the punishment.” (Blakely, supra, 542 U.S.

at p. 313.)

Notwithstanding these observations, it remains true that

the current statute preserves the trial court’s factfinding role as

to a defendant’s prior convictions, which are specifically

exempted from the Sixth Amendment jury trial right.

(§ 1170(b)(3); Apprendi, supra, 530 U.S. at p. 490; Almendarez-

Torres, supra, 523 U.S. 224; but see Erlinger, supra, 602 U.S. at

p. ___ [144 S.Ct. at p. 1854]; fn. 20, post.) In addition, the court

is free to determine facts that, in its judgment, call for a

reduction of sentence to the lower available term. The current

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statute also preserves the trial court’s discretion to determine

whether an upper term sentence is in fact justified.

iii. Legislative History

Even if we were to conclude that the current statutory

language is ambiguous (see In re A.N. (2020) 9 Cal.5th 343, 351–

352), the legislative history and purpose of the 2022 statutory

amendment confirm our understanding that the Sixth

Amendment jury trial right attaches to every aggravating fact,

other than a prior conviction, used to justify imposition of the

upper term. The Legislature was acting to remedy a Sixth

Amendment violation. Cunningham gave the Legislature a

choice. It could (1) “call[] upon the jury — either at trial or in a

separate sentencing proceeding — to find any fact necessary to

the imposition of an elevated sentence” or (2) permit “judges

genuinely ‘to exercise broad discretion . . . within a statutory

range.’ ” (Cunningham, supra, 549 U.S. at p. 294.) In 2007, in

the immediate wake of Cunningham, the California legislature

adopted the second approach. (Former § 1170(b), enacted by

Stats. 2007, ch. 3, § 2, pp. 6−7.) In 2022, it changed course and

adopted Cunningham’s first provided alternative; requiring

juror factfinding in the absence of waiver or stipulation. A

statement by the bill’s author, which appears in materials

presented to the Legislature as a whole, recognized the need to

“ ‘revisit the determinate sentencing structure’ ” that was

adopted in response to Cunningham, and emphasized that “ ‘[i]t

is important, proper, and constitutionally conforming to change

the law to ensure that aggravating facts are presented to the

jury before a judge imposes a maximum sentence as decided in

Cunningham v. California.’ ” (Assem. Floor Analysis, 3d

reading analysis of Sen. Bill No. 567 (2021–2022 Reg. Sess.) as

amended Sept. 3, 2021, p. 2, italics added.) The statutory

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language, informed by the context in which it was passed,

demonstrates the Legislature’s intent to conform with

Cunningham’s interpretation of the Sixth Amendment, rather

than create a purely state law right.

The Chief Justice argues that this legislative history is

irrelevant because the Legislature cannot dictate what the Sixth

Amendment requires. (Dis. opn. of Guerrero, C. J., post, at pp.

23–24.) But these statements of legislative intent can and do

inform us of the statute’s substantive requirements, which in

turn guide our Sixth Amendment inquiry. The relevant

legislative history confirms our understanding that current

section 1170(b) operates in such a manner as to trigger the Sixth

Amendment jury trial right with respect to every aggravating

fact (other than a prior conviction) the trial court uses to justify

an upper term sentence.

iv. Assessing Prejudice Under Chapman

We hold that under the current statute a Sixth

Amendment violation occurs when the trial court relies on

unproven aggravating facts to impose an upper term sentence,

even if some other aggravating facts relied on have been

properly established. The violation is prejudicial unless an

appellate court can conclude beyond a reasonable doubt that a

jury would have found true all of the aggravating facts relied

upon by the trial court to justify an upper term sentence, or that

those facts were otherwise proved true in compliance with the

current statutory requirements. If the reviewing court cannot

so determine, applying the Chapman standard of review, the

defendant is entitled to a remand for resentencing. We

disapprove People v. Hall, supra, 97 Cal.App.5th 1101, 1104–

1108, People v. Ruiz, supra, 97 Cal.App.5th 1068, 1076–1078,

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People v. Falcon, supra, 92 Cal.App.5th 911, 938–939, People v.

Butler, supra, 89 Cal.App.5th 953, 960, People v. Lewis, supra,

88 Cal.App.5th 1125, People v. Ross, supra, 86 Cal.App.5th

1346, People v. Dunn, supra, 81 Cal.App.5th 394, 407, People v.

Zabelle, supra, 80 Cal.App.5th 1098, 1110–1113, People v.

Lopez, supra, 78 Cal.App.5th 459, 467, footnote 11, and People

v. Flores, supra, 75 Cal.App.5th 495, 500, to the extent they are

inconsistent with today’s opinion.18

We also clarify what potential issues we do not decide

here.

18

The Chief Justice questions why we do not adopt a second-

tier prejudice analysis that considers whether the record shows

beyond a reasonable doubt that the trial court would have

imposed the same sentence based on a subset of aggravating

facts that were either properly proven or that we can conclude

would have been found true by the jury beyond a reasonable

doubt. (Dis. opn. of Guerrero, C. J., post, at pp. 32–34, fn. 8; see

also conc. & dis. opn. of Kruger, J., post, at p. 13, fn. 2 [similarly

suggesting a reviewing court should consider whether the

individual facts a trial court relies on to justify an upper term

sentence were actually necessary to the trial court’s exercise of

its discretion].) But when a defendant is deprived of the Sixth

Amendment’s jury trial right, the high court has consistently

looked to whether the record demonstrates beyond a reasonable

doubt that the jury would have made the required finding, and

no further. (Neder, supra, 527 U.S. at pp. 16–19; Recuenco,

supra, 548 U.S. at pp. 220–221 [harmless error inquiry for

Apprendi violation is governed by Neder]; see also Erlinger,

supra, 602 U.S. at p. ___ [144 S.Ct. at pp. 1866–1867] (dis. opn.

of Kavanaugh, J.).) If the answer to that question is yes, we may

find the omission harmless. If the answer is no, we will not

engage in an additional hypothetical inquiry into whether we

can conclude, to some degree of certainty, that the trial court

would have exercised its discretion in the same manner based

on a lesser subset of aggravating facts than those it actually

relied on to justify an upper term sentence.

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Because Lynch was tried and sentenced before section

1170(b)’s latest amendment, this case does not directly present

issues of pleading and notice. Accordingly, it is not necessary

for us to decide exactly what the statute and the federal

Constitution demand in this context.

Under the posture of this case, Lynch was not asked to

expressly waive jury trial on aggravating circumstances. Nor

did he stipulate to the facts underlying any of the aggravating

circumstances listed by the trial court in support of its upper

term sentence. We have no occasion here to address the

conditions applicable to waiver and stipulation. (See generally

French, supra, 43 Cal.4th at pp. 46–52.)

Because Lynch did not receive a jury trial under the

provisions of current section 1170(b)(2), we have no occasion to

opine on the correctness of the CALCRIM jury instructions that

have been drafted to guide the jury’s deliberations. (CALCRIM

Nos. 3224–3251.) Nor need we examine the contours of the

unanimity requirement in this context. (See Erlinger, supra,

602 U.S. at p. ___ [144 S.Ct. at pp. 1849, 1851]; Ramos, supra,

590 U.S. at pp. 90, 92–93.)

Finally, we decline to consider the interplay between

section 1170(b)’s jury trial requirement and the current

reference in the California Rules of Court to “a nonexhaustive

list of factors that may be considered circumstances in

aggravation.” (Conc. & dis. opn. of Kruger, J., post, at p. 12; see

also ibid. [observing that Cal. Rules of Court, rule 4.421(c)

“permit[s] judges broad discretion to find any other factors, as

long as they are ‘reasonably relate[d] to the defendant or the

circumstances under which the crime was committed’ ”].) We

likewise do not here examine the practical differences, if any,

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between the jury’s factfinding role and the description of

aggravating circumstances that appears in the Rules of Court.

(See Cal. Rules of Court, rule 4.421.) We simply offer the

following observations: The Rules of Court in existence at the

time Cunningham was decided deemed aggravating

circumstances to be “ ‘facts.’ ” (Cunningham, supra, 549 U.S. at

p. 278 &. fns. 7, 8, quoting Cal. Rules of Court, former rules

4.405(d) & 4.421(a), (b).) When section 1170(b) was amended in

2007 to give the trial court broad sentencing authority, the

corresponding Rules of Court were redrafted to refer to

aggravating circumstances as “factors,” but the substantive

descriptions remained unchanged. The text of section 1170(b)(2)

itself “arguably allows for a distinction to be drawn between

‘circumstances in aggravation’ that can justify the imposition of

the upper term and ‘the facts underlying those circumstances’

that the jury must find true beyond a reasonable doubt.”

(Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 85,

fn. 4, quoting § 1170(b)(2).) Notwithstanding this terminology,

Chavez Zepeda held that “section 1170(b)(2) unambiguously

conveys the Legislature’s intent to have the jury make findings

about the truth of aggravating factors in rule 4.421 . . . .”

(Chavez Zepeda, at p. 77; see also id. at p. 85, fn. 4.) The

CALCRIM instructions likewise instruct the jury to make

findings such as whether: the victim was particularly

vulnerable (CALCRIM No. 3226); the defendant acted with

planning, sophistication, or professionalism (CALCRIM No.

3230); or the defendant poses a serious danger to society

(CALCRIM No. 3234). The parties before us have not urged a

distinction between aggravating circumstances considered by

the trial court and the facts the jury must find true beyond a

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reasonable doubt. Accordingly, we treat them the same for

purposes of this opinion without taking a position on the issue.

E. Application of the Gutierrez “ ‘Clearly Indicate[s]’ ”

Standard

Gutierrez, supra, 58 Cal.4th 1354 considered the

appropriate remedy when the trial court was not aware of the

full scope of its discretionary powers at the time of the

defendant’s sentencing. That case involved a presumptive

sentence having to do with sentencing of minors convicted of

murder. We disapproved the longstanding interpretation that

when a minor defendant was tried as an adult and convicted of

a special circumstance murder, section 190.5 made life without

parole the presumptive sentence. (Gutierrez, at pp. 1370, 1387.)

We clarified that “the trial court must consider all relevant

evidence bearing on the ‘distinctive attributes of youth’

discussed in Miller[ v. Alabama (2012) 567 U.S. 460] and how

those attributes ‘diminish the penological justifications for

imposing the harshest sentences on juvenile offenders.’ ”

(Gutierrez, at p. 1390, quoting Miller, at p. 472.) We noted that

the trial courts in the consolidated Gutierrez cases had imposed

an LWOP sentence under the presumption favoring that term.

(Gutierrez, at p. 1390.) Accordingly, “neither court made its

sentencing decision with awareness of the full scope of discretion

conferred by section 190.5(b) or with the guidance set forth in

Miller and this opinion for the proper exercise of its discretion.”

(Id. at pp. 1390–1391.) In this situation, “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.’ ” (Id. at p. 1391, quoting People v. Belmontes (1983)

34 Cal.3d 335, 348, fn. 8 [clarifying that trial court has

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discretion to choose whether to sentence under § 667.6 or

§ 1170.1].) We further concluded that remand was necessary on

the record before us: “[a]lthough the trial courts . . . understood

that they had some discretion in sentencing, the records do not

clearly indicate that they would have imposed the same

sentence had they been aware of the full scope of their

discretion.” (Gutierrez, at p. 1391.)

Subsequently, People v. Salazar (2023) 15 Cal.5th 416

(Salazar) applied the Gutierrez remand standard to a

resentencing under amended section 1170, subdivision (b)(6).

(Salazar, at pp. 419, 424–426, 431–432; see Stats. 2021, ch. 731,

§§ 1.3, 3, subd. (c).) The amended statute provides that the trial

court “shall” enter a lower term sentence when any of the

following factors contributed to the offense: “psychological,

physical, or childhood trauma;” the offender’s “youth,” at the

time of the commission of the offense; or the offender “is or was

a victim of intimate partner violence or human trafficking.”

(§ 1170(b)(6)(A), (B), (C).) The court may only deviate from the

lower term if it “finds that the aggravating circumstances

outweigh the mitigating circumstances [so] that imposition of

the lower term would be contrary to the interests of justice.”

(Id., subd. (b)(6).) Salazar held that these changes create a

presumption that affects the scope of the trial court’s

discretionary sentencing authority. (Salazar, at pp. 419, 426–

427, 429–430.) Accordingly, when there is evidence in the record

meeting the statute’s threshold requirement for triggering the

lower term presumption, a defendant is entitled to a 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.” ’ ” (Id. at p. 425,

quoting Gutierrez, supra, 58 Cal.4th at p. 1391.) Upon reviewing

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the record in that case, we concluded that a remand was

warranted. The trial court’s other rulings, such as its denial of

the defendant’s Romero motion19 and its imposition of

consecutive sentences, were not sufficiently aligned with the

new factors such that the record clearly indicated how the court

would have exercised its newfound discretion. (Salazar, at pp.

428–430.)

Several Courts of Appeal have held that the latest

amendment to section 1170(b)(1) and (2) did more than codify

the holding in Cunningham; it also fundamentally altered the

trial court’s sentencing discretion in a manner similar to

Gutierrez and Salazar. (Falcon, supra, 92 Cal.App.5th at p. 921;

Lewis, supra, 88 Cal.App.5th at pp. 1136–1138; Wandrey, supra,

80 Cal.App.5th at pp. 981–982.) They focus on the amended

statute’s presumption in favor of a low or middle term sentence

that may only be overcome when aggravating circumstances

“justify” an upper term sentence. (§ 1170(b)(1), (2); see Falcon,

at pp. 918, 925–926, 944–945, Wandrey, at p. 981.) “As a result,

the trial court no longer has full discretion to impose an upper

term sentence without the weight of any presumption against it,

as it did under the former version of the DSL.” (Falcon, at p.

921.) The appellate courts have concluded that, for sentences

imposed before the effective date of section 1170’s latest

amendment, the standard for reversal articulated in Gutierrez

applies and must be satisfied in addition to a finding of

harmlessness regarding any omitted factual finding. (Falcon, at

pp. 921, 938, 949; Lewis, at pp. 1134–1138; Wandrey, at p. 982.)

This is so because neither a Chapman nor a Watson review “can

adequately indicate that resentencing is unnecessary upon

19

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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retroactive application of amended section 1170(b).” (Falcon, at

p. 938.) Instead, applying Gutierrez in this context, Falcon

articulated the following test: “to properly conclude that

resentencing is unwarranted upon retroactive application of

amended section 1170(b), an upper term sentence must remain

legal under federal and state law; and it must pass Gutierrez’s

clearly indicated test.” (Id. at p. 943; accord, Wandrey, at p. 982;

Lewis, at pp. 1136–1138.) The Court of Appeal in this case took

a different view, holding that the latest amendment to section

1170(b)(1) and (2) did not alter the scope of the trial court’s

sentencing discretion. It reasoned that, under the amended

statute, “trial courts apply their discretion to the same set of

aggravating circumstances to decide whether to impose an

upper term sentence, but the facts underlying those

circumstances now may only be found in one of the permissible

ways.” Accordingly, it found the Gutierrez standard

inapplicable.

We conclude that the amendment at issue did alter the

trial court’s sentencing discretion. At the time Lynch was

sentenced, former section 1170(b) gave a sentencing court broad

discretion to select among three terms and impose a sentence

that in its judgment served the interests of justice. (Former

§ 1170(b), enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) The

current statute narrows that authority by creating a

presumption against the upper term, which may be overcome

only if the required facts are properly proven and the court

concludes that term is justified. These changes circumscribe the

trial court’s previously broad discretion to select whichever of

the three terms of imprisonment serves the interests of justice.

As a result, the Gutierrez standard applies to sentences imposed

before the statute’s 2022 amendment, or when the record

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otherwise indicates that the court has not exercised its

“ ‘ “informed discretion.” ’ ” (Gutierrez, supra, 58 Cal.4th at p.

1391.)

Relying on Sandoval, supra, 41 Cal.4th 825, the Chief

Justice argues that the Gutierrez standard does not apply

because the change in the trial court’s discretion brought about

by the current statutory amendment is “ ‘not substantial.’ ” (Dis.

opn. of Guerrero, C. J., post, at p. 29, quoting Sandoval, at p.

850.) She would allow for review under Gutierrez only in “ ‘the

rarest of cases’ (Sandoval, . . . at p. 850) in which the new

maximum middle term presumption would materially affect the

trial court’s decision to impose the upper term.” (Dis. opn. of

Guerrero, C. J., post, at p. 37, fn. 9.) But again, we conclude

reliance on our past precedent is misplaced.

Sandoval considered how to conduct proceedings on

remand for defendants whose sentences were reversed after a

finding of constitutional error under Cunningham. (Sandoval,

supra, 41 Cal.4th at pp. 843–844.) Specifically, the court

considered whether it should fashion a sentencing procedure

which allowed for a jury trial on aggravating circumstances or,

alternatively, direct that those defendants be resentenced under

the same procedure that the Legislature had subsequently

enacted to remedy the Cunningham violation, namely, allowing

the trial court to choose between the three available terms in its

discretion. (Id. at pp. 844–852.) In opting for the latter

approach, the court observed: “[I]t is both accurate and realistic

to recognize that, in practical terms, the difference between the

pre-Cunningham provision of the DSL enacted by the

Legislature [which included a middle term presumption] and a

statutory scheme in which the trial court has broad discretion

to select among the three available terms is not substantial. It

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seems likely that in all but the rarest of cases the level of

discretion afforded the trial court under the Attorney General’s

proposal [which allowed selection among the three terms] would

lead to the same sentence as that which would have been

imposed under the DSL as initially enacted.” (Sandoval, at p.

850.)

This point loses its salience in the inverse situation

presented here. In Sandoval, the trial court had already

sentenced the defendant under a scheme that included a

presumption in favor of the middle term. Despite that

presumption, the trial court had imposed the upper term. (See

Sandoval, supra, 41 Cal.4th at p. 855 [“as applied to cases such

as this one, in which defendant already has been sentenced to

the upper term under the version of the DSL in place at the time

she committed the offense, application of the revised sentencing

scheme never could result in a harsher sentence”].) It was

therefore no leap to conclude that, if given broad discretion to

choose among the triad terms, a court would impose the same

sentence.

The same logic does not hold true here. The court

sentenced Lynch to the upper term when it had broad discretion

to select among the three terms; but under the current law, it is

constrained by a presumption against the upper term. It is this

constraint on the trial court’s discretion that triggers the

Gutierrez standard because “ ‘[a] court which is unaware of the

scope of its discretionary powers [cannot] exercise that

“informed discretion” . . . .’ ” (Gutierrez, supra, 58 Cal.4th at p.

1391.) In this circumstance, “it is almost always speculative for

a reviewing court to say what the sentencing court would have

done if it had known the scope of its discretionary powers at the

time of sentencing.” (Salazar, supra, 15 Cal.5th at p. 431.)

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Sandoval did not consider or apply the Gutierrez standard.

Its inquiry into how “substantial” the change is (Sandoval,

supra, 41 Cal.4th at p. 850) may inform a Watson harmless error

inquiry, i.e. whether it is reasonably probable that the trial court

would have reached the same outcome even under the new law.

But we made clear in Salazar, supra, 15 Cal.5th at page 425

that Gutierrez’s clearly indicates standard is not equivalent to

Watson.

In short, the posture in Sandoval differs from the situation

we confront here, and that context matters. The logic of

Gutierrez and Salazar govern in this circumstance and support

our conclusion that the clearly indicates standard governs here

as well.

F. Lynch Is Entitled to a Remand for Resentencing

Applying the standards articulated above, we conclude

Lynch is entitled to a remand for resentencing.

The trial court cited eight circumstances in aggravation to

support imposing the upper term sentence for the principal

count. (See ante, at p. 5.) The Court of Appeal held that two

aggravating circumstances, Lynch’s numerous prior convictions

and his use of a weapon during the commission of the offenses,

were proven in compliance with current section 1170(b), but the

remaining six aggravating circumstances were not.20 The

Attorney General does not dispute these findings here.

20

In reaching this conclusion, the Court of Appeal held

that section 1170(b)(2) and (3) require a jury trial on the facts

underlying three aggravating circumstances related to Lynch’s

criminal history: (1) he had served prior prison terms, (2) he

had just been released from prison and was on parole at the time

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As explained, Chapman provides the proper standard of

review in this case. Lynch is entitled to a reversal and remand

for resentencing unless, after examining the entire cause,

including the evidence as to all relevant circumstances (People

v. Aledamat (2019) 8 Cal.5th 1, 13), we can conclude that the

omission of a jury trial was harmless beyond a reasonable doubt

as to every aggravating fact the trial court used to justify an

upper term sentence. In making this determination, we may

“ ‘examine[] what the jury necessarily did find and ask[] whether

it would be impossible, on the evidence, for the jury to find that

without also finding the missing fact as well.’ [Citation.] In

other words, if ‘ “[n]o reasonable jury” ’ would have found in

favor of the defendant on the missing fact, given the jury’s actual

verdict and the state of the evidence, the error may be found

harmless beyond a reasonable doubt.” (In re Lopez (2023) 14

Cal.5th 562, 580, quoting Aledamat, at p. 15, first italics added.)

We may also find the omission harmless if we can conclude

beyond a reasonable doubt “that the omitted [fact] was

he committed the crimes, and (3) his prior performance on

parole was unsatisfactory. We find it unnecessary to address

the scope of the prior conviction exception, either as a statutory

or a constitutional matter, and we express no opinion on it here.

The Attorney General does not challenge the Court of Appeal’s

conclusion on this point; nor is it determinative to the outcome

given our conclusion below that Lynch is entitled to a reversal

and remand based on the trial court’s reliance on other

aggravating facts that clearly must be proven to the jury under

the amended statute.

As noted, the high court recently issued a decision on the

scope of the Almendarez-Torres exception. (Erlinger, supra,

602 U.S. ___ [144 S.Ct. 1840].) We are poised to consider the

issue in People v. Wiley (2023) 97 Cal.App.5th 676, review

granted March 12, 2024, S283326.

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uncontested and supported by overwhelming evidence.” (Neder,

supra, 527 U.S. at p. 17.)

We have cautioned that a prejudice analysis following a

change in the law respecting proof of aggravating circumstances

“can be problematic. The reviewing court cannot assume that

the record reflects all of the evidence that would have been

presented to the jury, or that the defendant had the same

incentive and opportunity at a sentencing hearing to contest the

aggravating circumstance. [Citation.] . . . ‘[T]o the extent a

potential aggravating circumstance at issue in a particular case

rests on a somewhat vague or subjective standard, it may be

difficult for a reviewing court to conclude with confidence that,

had the issue been submitted to the jury, the jury would have

assessed the facts in the same manner as did the trial court.’

[Citation.] . . . ‘Many of the aggravating circumstances

described in the rules require an imprecise quantitative or

comparative evaluation of the facts,’ ” with the victim’s

particular vulnerability being one example. (People v. Boyce

(2014) 59 Cal.4th 672, 728–729, quoting Sandoval, supra, 41

Cal.4th at p. 840.)

Even under the less rigorous Watson standard, the Court

of Appeal held that the omission of a jury trial on facts

underlying three of the aggravating circumstances was

prejudicial: the crimes involved a high degree of cruelty,

viciousness, and callousness; the victim was particularly

vulnerable; and Lynch poses a serious danger to society.

Applying the more rigorous Chapman standard, we likewise

find prejudice. The jury was not asked to make findings beyond

a reasonable doubt on these aggravating facts. The defense

contested the facts supporting each of these circumstances at

the sentencing hearing. It would not have been impossible,

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given the jury’s findings and the evidence, for the jury to have

found in Lynch’s favor on one or more of these aggravating facts.

Indeed, the jury acquitted Lynch of the most serious charge

involving Jasmine Doe, assault with a deadly weapon. Because

we cannot find the omission of a jury trial harmless beyond a

reasonable doubt as to every aggravating fact relied upon by the

trial court to impose an upper term, Lynch’s sentence must be

reversed. “ ‘The proper remedy for this type of failure of proof —

where . . . [aggravating facts] were “never tried” to the jury — is

to remand and give the People an opportunity to retry’ ” the

aggravating facts. (Cooper, supra, 14 Cal.5th at pp. 746–747,

quoting People v. E.H. (2022) 75 Cal.App.5th 467, 480.)

We likewise conclude that Lynch is entitled to a remand

under the Gutierrez standard. We begin with our recent

comments in Salazar. There, we emphasized that “when the

applicable law governing the defendant’s sentence has

substantively changed after sentencing, it is almost always

speculative for a reviewing court to say what the sentencing

court would have done if it had known the scope of its

discretionary powers at the time of sentencing.” (Salazar,

supra, 15 Cal.5th at p. 425.) We further observed that “[m]ere

reliance on the length of the original sentence and attendant

decisions, such as imposing consecutive sentences, imposing

middle or upper term sentences, or declining to strike

enhancements, is not sufficient to provide a clear indication of

what a sentencing court might do on remand” had it been fully

aware of the presumptive lower term sentence for cases

involving the enumerated mitigating circumstances. (Id. at p.

431.) Upon reviewing the record in that case, we concluded that

the trial court’s other rulings, such as its denial of the

defendant’s Romero motion and its imposition of consecutive

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sentences, were not sufficiently aligned with the new factors

such that the record clearly indicated how the court would have

exercised its newfound discretion. (Salazar, at pp. 428–430.)

Here, the trial court found eight circumstances in

aggravation and none in mitigation. It emphasized, among

other things, that Lynch had committed repeated acts of

violence; his use of multiple weapons in this case involved great

violence, cruelty, viciousness, and callousness; and his criminal

record demonstrated a serious danger to society. He was on

parole when he committed the current crimes. Based on these

findings, the court concluded that an upper term sentence was

“appropriate.” This record certainly supports a finding that the

trial court acted within its discretion in choosing between the

three available terms of punishment under the law as it stood

at the time of sentencing. But it does not necessarily speak to

how the court would have exercised its discretion under the

weight of the presumptive middle term maximum sentence that

currently exists. (See Falcon, supra, 92 Cal.App.5th at pp. 955–

956.) Notably, the court did not make the kind of definitive

statements that we have found to clearly indicate it would not

impose a lesser sentence under any circumstances. (See, e.g.,

People v. Flores (2020) 9 Cal.5th 371, 432 [in finding the

defendant “ ‘deserving [of] the ultimate sentence of death,’ ” trial

court observed that the defendant was “ ‘the worst of the

worst,’ ” that he “ ‘show[ed] absolutely no remorse’ ”and that

“ ‘[i]t’s as if he has no soul’ ”]; Salazar, supra, 15 Cal.5th at p.

431 [positing an example where “the sentencing court

announces that it is aware of forthcoming legislation and then

explains how it would exercise its discretion under that

legislation”].) Rather, this record comes within our general

admonishment in Salazar that “[m]ere reliance on the length of

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the original sentence and attendant decisions, such as imposing

consecutive sentences, imposing middle or upper term

sentences, or declining to strike enhancements, is not sufficient

to provide a clear indication of what a sentencing court might do

on remand if it had been fully aware of the scope of its

discretionary powers.” (Salazar, at p. 431.) In other words, it

would be “speculative” (Salazar, at p. 425) to conclude the trial

court’s finding that an upper term sentence was “appropriate”

in the exercise of its broad discretion, clearly indicates that it

would have found aggravating circumstances sufficiently

weighty to “justify” an upward departure from the legislative

mandate for no more than a middle term sentence. The

reasoning in Gutierrez and Salazar also requires reversal of the

sentence and remand here.

Further proceedings on remand are to be conducted in

accordance with the current statutory requirements and the

defendant given the opportunity for the jury trial, of which he

was deprived. (Cf. Salazar, supra, 15 Cal.5th at p. 432; Cooper,

supra, 14 Cal.5th at pp. 746–747.) On remand, the parties

remain free to introduce at trial all relevant evidence to support

or contest the factual support for the aggravating circumstances

set out in the California Rules of Court. The court may rely on

any properly proven aggravating facts, including prior

convictions or facts necessarily found by the jury to support a

verdict on underlying counts and enhancements. The court

retains its discretion to impose an upper term sentence if it

concludes that one or more properly proved circumstances

justify such a sentence. (§ 1170(b)(2).) If it cannot so conclude,

it may impose no more than a middle term for each of the counts

on which Lynch stands convicted. (Id., subd. (b)(1).)

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III. DISPOSITION

The judgment of the Court of Appeal affirming Lynch’s

sentence is reversed. We remand to the Court of Appeal with

directions that it return the matter to the trial court for further

litigation of the aggravating circumstances and for the court to

exercise its discretion under current section 1170(b) as indicated

here. (Sandoval, supra, 41 Cal.4th at p. 858.)

CORRIGAN, J.

We Concur:

LIU, J.

GROBAN, J.

EVANS, J.

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S274942

Concurring and Dissenting Opinion by Justice Kruger

In its 2022 amendments to California’s determinate

sentencing law, the Legislature instructed that an elevated,

upper term sentence may be imposed only if the court

determines there are aggravating circumstances that justify it.

(Pen. Code, § 1170, subd. (b)(2) (section 1170(b)(2)), as amended

by Stats. 2021, ch. 731, § 1.3.) The Legislature also created a

statutory right to a jury determination of every aggravating fact,

other than the fact of a prior conviction, on which a sentencing

court chooses to rely in imposing an upper term sentence.

(§ 1170(b)(2).) This case requires us to assess the impact of

these new provisions on the class of criminal cases, like Deandre

Lynch’s, in which the law took effect after the defendant was

sentenced but before the judgment had become final on direct

appeal.

Although I agree with much of what the majority says on

this subject, the majority goes too far in holding that a violation

of the new statutory right to a jury finding on each and every

aggravating fact is also, perforce, a violation of the federal

Constitution. That conclusion is contrary to this court’s

precedent addressing effectively the identical constitutional

issue. It also misses the foundational point on which the

precedent rests. The Constitution preserves the historic,

traditional role of the jury in determining criminal liability. As

the United States Supreme Court has repeatedly affirmed, that

traditional role encompasses the facts that the Legislature has

1

PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

made essential to punishment for a crime, but it does not extend

to each and every factor that might inform a sentencing judge’s

determination whether an otherwise statutorily authorized

sentence is justified under the circumstances of the case. (E.g.,

Apprendi v. New Jersey (2000) 530 U.S. 466, 481 (Apprendi); see

People v. Black (2007) 41 Cal.4th 799, 813–814 (Black II); People

v. Sandoval (2007) 41 Cal.4th 825, 838–839 (Sandoval).)

Our precedent certainly does not prevent the Legislature

from expanding the jury right beyond its traditional bounds, as

it has done in the amendments to section 1170(b)(2). But stare

decisis does — or at least should — prevent us from treating this

important legislative innovation as though it were also a matter

of constitutional command.

I nonetheless concur in the judgment because, as I see it,

the majority’s constitutional reasoning is not necessary to its

conclusion. In the end, what matters is that Lynch had a right

to a jury trial on all aggravating facts. Whatever the source of

the right, I do not think we can say that the deprivation of the

right was harmless. Lynch is therefore entitled to further

sentencing proceedings in accordance with the new law.

I.

A.

I begin with the constitutional issue. The Sixth

Amendment to the federal Constitution provides that “[i]n all

criminal prosecutions, the accused” has “the right to a speedy

and public trial, by an impartial jury.” (U.S. Const., 6th amend.)

Meanwhile, the due process clauses of the Fifth and Fourteenth

Amendments guarantee “for criminal defendants those

procedural protections well established at common law,

including the ‘ancient rule’ that the government must prove to a

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PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

jury every one of its charges beyond a reasonable doubt.”

(Erlinger v. United States (2024) 602 U.S. ___ [144 S.Ct. 1840,

1849] (Erlinger).) Taken together, these provisions entitle a

criminal defendant “to ‘a jury determination that [he] is guilty

of every element of the crime with which he is charged, beyond

a reasonable doubt.’ ” (Apprendi, supra, 530 U.S. at p. 477.) But

what qualifies as an “element” that must be so proved?

Tracing the historical understanding of the scope of the

jury guarantee, the court in Apprendi concluded the inquiry is

not controlled by labels but by function. Whether the

Legislature calls a particular fact an “element” of the offense, or

a “sentencing factor,” or something else entirely, the rule is the

same: The right to jury trial in a criminal prosecution

encompasses every fact, other than the fact of a prior offense,

that the Legislature has made essential to the punishment of a

charged offense. (Apprendi, supra, 530 U.S. at p. 490; see id. at

pp. 488–490 [discussing the exception for prior offenses based on

the holding of Almendarez-Torres v. United States (1998) 523

U.S. 224].)1 Applying this rule, the court in Apprendi struck

down a 12-year sentence exceeding the otherwise applicable 10-

year statutory maximum where the enhancement was based on

a judge’s finding, by a preponderance of the evidence, that the

defendant’s crime was motivated by racial bias. (Apprendi, at

p. 490.)

1

This rule initially applied only to facts necessary to impose

a sentence exceeding an otherwise applicable statutory

maximum. (Apprendi, supra, 530 U.S. at p. 490.) In Alleyne v.

United States (2013) 570 U.S. 99, 116 (Alleyne), the court

concluded the same rule applies to facts necessary to the

imposition of a mandatory minimum.

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Kruger, J., concurring and dissenting

In elaborating the rule, the court in Apprendi was careful

to avoid suggesting that the jury right extends to every fact that

might ultimately affect the sentence a defendant receives. The

high court made a point of distinguishing between the right to a

jury determination of facts that alter the maximum sentence

prescribed by law, and facts relevant to a judge’s selection of an

appropriate sentence within a legally authorized range. The

court explained: “We should be clear that nothing in this history

suggests that it is impermissible for judges to exercise

discretion — taking into consideration various factors relating

both to offense and offender — in imposing a judgment within

the range prescribed by statute. We have often noted that judges

in this country have long exercised discretion of this nature in

imposing sentence within statutory limits in the individual case.

See, e.g., Williams v. New York, 337 U.S. 241, 246 (1949) (‘[B]oth

before and since the American colonies became a nation, courts

in this country and in England practiced a policy under which a

sentencing judge could exercise a wide discretion in the sources

and types of evidence used to assist him in determining the kind

and extent of punishment to be imposed within limits fixed by

law’ (emphasis added)).” (Apprendi, supra, 530 U.S. at p. 481.)

The point, the court emphasized, was that the court’s discretion

is necessarily “bound by the range of sentencing options

prescribed by the legislature” that has the power to define

crimes and their punishment. (Ibid.)

In the years since Apprendi, the high court has continued

to refine the important rule it announced. But the court has also

continued to reaffirm the limits of that rule. (See, e.g., Alleyne,

supra, 570 U.S. at p. 116 [“Our ruling today does not mean that

any fact that influences judicial discretion must be found by a

jury. We have long recognized that broad sentencing discretion,

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Kruger, J., concurring and dissenting

informed by judicial factfinding, does not violate the Sixth

Amendment.”]; Dillon v. United States (2010) 560 U.S. 817, 828–

829 [“ ‘[J]udges in this country have long exercised discretion of

this nature in imposing sentence within [established] limits in

the individual case,’ and the exercise of such discretion does not

contravene the Sixth Amendment even if it is informed by judge-

found facts.”]; see also, e.g., Erlinger, supra, 602 U.S. at p. ___

[144 S.Ct. at p. 1879] (dis. opn. of Jackson, J.) [“A sentencing

judge today remains free, consistent with Apprendi, to impose

any punishment within a prescribed sentencing range based on

whatever facts she deems relevant.”].) In sum: “[T]here is a

fundamental difference, one underpinning [the high court’s]

entire Apprendi jurisprudence, between facts that must be found

in order for a sentence to be lawful, and facts that individual

judges choose to make relevant to the exercise of their discretion.

The former, but not the latter, must be found by the jury beyond

a reasonable doubt in order ‘to give intelligible content to the

right of jury trial.’ ” (Rita v. United States (2007) 551 U.S. 338,

373 (conc. opn. of Scalia, J.) (Rita).)

B.

Not long after Apprendi was decided, the United States

Supreme Court began to apply its rule to various determinate

sentencing schemes, including Washington’s Sentencing Reform

Act (Blakely v. Washington (2004) 542 U.S. 296), the then-

mandatory federal sentencing guidelines (United States v.

Booker (2005) 543 U.S. 220), and, most directly pertinent here,

California’s former determinate sentencing law (Cunningham v.

California (2007) 549 U.S. 270 (Cunningham)).

Cunningham considered the constitutionality of a former

version of California’s determinate sentencing law (what the

5

PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

majority refers to as the “original statute”). (See maj. opn., ante,

at p. 8.) At the time, Penal Code former section 1170,

subdivision (b) provided: “When a judgment of imprisonment is

to be imposed and the statute specifies three possible terms, the

court shall order imposition of the middle term, unless there are

circumstances in aggravation or mitigation of the crime. . . . In

determining whether there are circumstances that justify

imposition of the upper or lower term, the court may consider

the record in the case, the probation officer’s report, other

reports including reports received pursuant to Section 1203.03

and statements in aggravation or mitigation submitted by the

prosecution, the defendant, or the victim, or the family of the

victim if the victim is deceased, and any further evidence

introduced at the sentencing hearing. The court shall set forth

on the record the facts and reasons for imposing the upper or

lower term.” The California Rules of Court, adopted at the

direction of the Legislature, further specified that “ ‘[t]he middle

term shall be selected unless imposition of the upper or lower

term is justified by circumstances in aggravation or

mitigation,’ ” and set out a nonexhaustive list of factors for a

sentencing court to consider in making this determination.

(Cunningham, supra, 549 U.S. at p. 278, quoting Cal. Rules of

Court, rule 4.420(a); see also Cunningham, at p. 278, citing Cal.

Rules of Court, rule 4.421(a)–(c).) The United States Supreme

Court concluded that this scheme violated Apprendi because it

permitted the judge to find facts necessary to satisfy the

statutory aggravation requirement, and thus legally necessary

to impose an elevated upper term sentence. (Cunningham, at

pp. 274–275.)

In the immediate wake of Cunningham, this court had to

determine what relief to order in cases in which a sentencing

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PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

court had imposed an upper term sentence in reliance on this

former version of the determinate sentencing law. To decide this

remedial question, the court had to consider the precise scope of

the constitutional right at issue. Examining the Apprendi line

of cases, this court in Black II concluded the jury-trial

requirement “applies only to a fact that is ‘legally essential to

the punishment’ [citation], that is, to ‘any fact that exposes a

defendant to a greater potential sentence’ than is authorized by

the jury’s verdict alone.” (Black II, supra, 41 Cal.4th at p. 812.)

We explained that this requirement is satisfied “as long as a

single aggravating circumstance that renders a defendant

eligible for the upper term sentence has been established in

accordance with the requirements of Apprendi and its progeny.”

(Ibid.; accord, Sandoval, supra, 41 Cal.4th at p. 839.) That is to

say, once the jury has found — or the defendant has admitted —

facts that authorize an upper term sentence, “the federal

Constitution permits the trial court to rely upon any number of

aggravating circumstances in exercising its discretion to select

the appropriate term by balancing aggravating and mitigating

circumstances, regardless of whether the facts underlying those

circumstances have been found to be true by a jury.” (Black II,

at p. 813.) This conclusion, we explained, is consistent with the

traditional discretion afforded sentencing courts in the

American system. (Ibid., citing Rita, supra, 551 U.S. at p. 352.)

The decision was also, as we observed, consistent with the

conclusions of other state high courts that had addressed similar

issues and had likewise concluded that the Constitution

required a jury finding (or else a finding exempt from the jury

requirement) only as to a single aggravating circumstance.

(Black II, at p. 813, fn. 3, citing, inter alia, Lopez v. People (Colo.

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PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

2005) 113 P.3d 713, 731; cf. Cunningham, supra, 549 U.S. at

p. 294, fn. 17 [citing Lopez with approval].)

Black II and Sandoval addressed what was then a

transitional issue; by the time the cases were decided, the

Legislature had already amended the determinate sentencing

law to cure the constitutional infirmity identified in

Cunningham by committing the selection of the lower, middle,

or upper term to the full discretion of the sentencing court. (See

Sandoval, supra, 41 Cal.4th at p. 845, citing Stats. 2007, ch. 3.)

But the Legislature’s 2022 amendments to section 1170(b)(2),

which mark a return to a system of constrained authority to

impose upper term sentences, bring the holdings of Black II and

Sandoval to the fore.

C.

As the majority notes, most of the Courts of Appeal to

consider the effect of the 2022 amendments have followed our

holdings in Black II and Sandoval. They have concluded that

the Legislature’s return to a regime resembling the pre-2007 law

means that the federal Constitution now requires a jury to find

at least one circumstance in aggravation as a prerequisite to an

upper term sentence. But they have also concluded, in line with

Black II and Sandoval, that the Constitution otherwise permits

sentencing courts to make additional findings in deciding

whether an upper term sentence is appropriate under the

circumstances of the case. To be sure, section 1170(b)(2) now

requires that these findings, too, be made by a jury beyond a

reasonable doubt. But this is because the Legislature has

chosen to impose this requirement as a matter of state law; it is

not because the Constitution demands it.

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Kruger, J., concurring and dissenting

The majority opines that the Courts of Appeal have been

mistaken to think Black II and Sandoval have anything to do

with this case, because the law now is not the same as it was

then. The majority goes on to conclude that under the current

version of section 1170(b)(2), the federal Constitution — not just

state statutory law — requires a jury finding as to every

aggravating circumstance on which a trial court relies in

imposing an upper term sentence. (Maj. opn., ante, at pp. 25–

26.)

On this point, I think the Courts of Appeal have gotten it

right. The constitutional question we confront here is

essentially identical to the question we decided in Black II and

Sandoval, so stare decisis requires us to give the same answer.

True, the Legislature did not reenact the determinate

sentencing law in precisely the same form as at the time those

cases were decided. But the Legislature did not alter the statute

in any way that matters to the constitutional inquiry. The basis

for Black II’s holding was that an upper term sentence is legally

authorized so long as there exists at least one aggravating

circumstance found in a “constitutionally compliant” manner

(that is, by a jury beyond a reasonable doubt, or else concerning

the fact of a prior conviction, or else admitted by the defendant

as part of a plea). As the majority acknowledges (maj. opn., ante,

at pp. 36–37), following the 2022 amendments, it is still true

that an upper term sentence is statutorily authorized so long as

there exists at least one aggravating circumstance established

in accordance with Apprendi. It is also true that a court may, in

its discretion, consider a wider array of factors to determine

whether that statutorily authorized upper term sentence is

justified under the circumstances. It follows that only a single

circumstance need be established in accordance with Sixth

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PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

Amendment jury factfinding requirements; any further

requirement that the jury find additional aggravating

circumstances beyond a reasonable doubt is a creature of state

statutory law rather than a matter of constitutional mandate.

In concluding otherwise, the majority makes much of the

fact that amended section 1170(b)(2) permits a trial court to

impose an upper term sentence “ ‘only’ when circumstances in

aggravation ‘justify’ that term.” (Maj. opn., ante, at p. 29.) But

as the majority acknowledges, this “justification” condition is

not new to the law; the same condition existed in 2007, when

Black II and Cunningham were decided. The former version of

the determinate sentencing law spoke of “determining whether

there are circumstances that justify imposition of the upper or

lower term” (Pen. Code, former § 1170, subd. (b), italics added),

and the California Rules of Court repeated the requirement

more explicitly, providing that “ ‘[t]he middle term shall be

selected unless imposition of the upper or lower term is justified

by circumstances in aggravation or mitigation’ ” (Cunningham,

supra, 549 U.S. at p. 278, quoting Cal. Rules of Court, rule

4.420(a), italics added).

Black II made clear that the use of the term “justify” does

not mean that each and every fact that might inform a judge’s

sentencing discretion somehow becomes statutorily

“ ‘ “essential” ’ ” to an upper term sentence. (Black II, supra, 41

Cal.4th at p. 814; see Erlinger, supra, 602 U.S. at p. ___

[144 S.Ct. at p. 1850].) In a statutory scheme in which a judge

is permitted to impose an upper term sentence based on a single

aggravating circumstance, this is a logical impossibility. The

phrase simply conveys that, once a qualifying aggravator has

“raise[d] the maximum permissible sentence from the middle

term to the upper term,” the sentencing court must exercise “its

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Kruger, J., concurring and dissenting

discretion in selecting the appropriate term from among those

authorized for the defendant’s offense,” and decide whether the

legally authorized upper term is warranted under the

circumstances. (Black II, supra, 41 Cal.4th at p. 816.) This is

how the statute operated then, and it is still how it operates now.

The majority does not dispute any of this, but argues that

various changes in the amended statutory language “reanimate”

the argument we rejected in Black II about the constitutional

significance of the statutory reference to aggravating facts

“justif[ying]” an upper term sentence. (Maj. opn., ante, at p. 36.)

These minute adjustments in wording make no functional

difference. In the end, the only pertinent difference between the

law at issue in Black II and Sandoval and current law is that

the latter requires a jury trial on all aggravating circumstances

on which a sentencing court relies in finding an upper term

sentence justified, while the former does not. (See maj. opn.,

ante, at pp. 35–36.) The fact that a statute may require

something does not, of course, necessarily mean that the federal

Constitution requires it, too. But this is essentially what the

majority holds when it reads the new statutory jury right on

aggravating facts into the federal Constitution.

The majority’s reasoning based on the statutory jury right

appears to go something like this: The federal Constitution

requires jury trial only as to facts that function like elements of

the offense, in that they are legally essential to the punishment.

In the amended determinate sentencing law, the Legislature

has decided to require jury trial on all aggravating facts — that

is, whatever facts the trial court deems relevant to its decision

to impose the upper term sentence. Therefore, the Legislature

must have intended to make all of these aggravating facts

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Kruger, J., concurring and dissenting

legally essential to the punishment and for them to “effectively

function like elements of a crime.” (Maj. opn., ante, at p. 31.)

There are significant problems with this logic, beginning

with the fact that it does not reflect how the statute actually

works. As was true of the original statute considered in

Cunningham, the amended determinate sentencing law does

not specify what aggravating circumstances a sentencing court

may rely on — indeed, it does not specify what constitutes an

aggravating circumstance at all. (See § 1170(b)(2).) Rather, the

California Rules of Court, adopted by the Judicial Council, sets

out a nonexhaustive list of factors that may be considered

circumstances in aggravation, while permitting judges broad

discretion to find any other factors, as long as they are

“reasonably relate[d] to the defendant or the circumstances

under which the crime was committed.” (Cal. Rules of Court,

rule 4.421(c).) And more importantly, the law does not specify

how many of these aggravating circumstances, beyond one, a

sentencing court must cite to justify a particular upper term

sentence.

The majority is, of course, correct that a sentencing judge

may determine in a particular case that an upper term is not

justified by a particular aggravating circumstance. (Maj. opn.,

ante, at pp. 38–39.) But that does not change the reality that a

judge is statutorily authorized to impose an upper term sentence

if a single aggravating fact is found. Whether that aggravating

fact alone suffices, or whether additional facts are needed, is a

matter left to the sentencing court’s discretion. Again, if the

court can exercise its discretion to impose an upper term

sentence based on a single aggravating fact, it simply cannot be

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Kruger, J., concurring and dissenting

said that the Legislature has made additional aggravating facts

essential to the sentence.2

And while the majority is correct that the statute now

requires that all aggravating facts be pleaded and proved in the

same way as elements of an offense — that is, to a jury, beyond

a reasonable doubt — they are not actually elements in the

sense that matters to the Sixth Amendment right to a jury

determination of guilt for a crime. That is to say, section

1170(b)(2) does not create a crime whose elements consist of

some indeterminate set of aggravating facts — any facts at all —

but only so long as those facts have been found by a jury and are

deemed pertinent by a judge. If I am wrong about this, and

section 1170(b)(2) has in fact created such a crime, then the

Legislature has yielded to judges a truly impressive amount of

its power to define crimes and their punishment. (But see

Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 [“ ‘ “[T]he

power to define crimes and fix penalties is vested exclusively in

the legislative branch.” ’ ”]; In re Brown (1973) 9 Cal.3d 612, 624,

2

Even accepting, for a moment, the majority’s premise that

the Sixth Amendment jury right attaches to any fact the

sentencing court (as opposed to the Legislature) regards as

dispositive in justifying an upper term sentence, the majority

does not explain why other, nondispositive aggravating facts

must also be submitted to the jury. (Maj. opn., ante, at pp. 38–

39.) A trial court may cite many aggravating circumstances in

imposing an upper term — indeed, here, the trial court cited

eight — without regarding any individual fact as critical to its

exercise of discretion. The majority never explains why these

aggravating facts, too, must be regarded as “legally necessary”

to the sentence, and thus subject to the Sixth Amendment jury

trial requirement.

13

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Kruger, J., concurring and dissenting

citing Pen. Code, § 6 [“Only the Legislature and not the courts

may make conduct criminal.”].)

But the central flaw with the majority’s logic is that it

never meaningfully addresses the point underlying our prior

decisions in Black II and Sandoval: That “there is a

fundamental difference, one underpinning [the high court’s]

entire Apprendi jurisprudence, between facts that must be found

in order for a sentence to be lawful, and facts that individual

judges choose to make relevant to the exercise of their

discretion.” (Rita, supra, 551 U.S. at p. 373 (conc. opn. of Scalia,

J.).) Case after case has made clear that the Sixth Amendment

jury right is designed to secure the historic role of the jury in

determining the facts the Legislature has made essential to

criminal punishment. But in the American legal tradition, the

right of jury trial has not traditionally been thought to extend to

the types of discretionary judicial determinations at issue in this

case, regarding what sort of circumstances justify the imposition

of an otherwise legally authorized sentence. (See, e.g.,

Apprendi, supra, 530 U.S. at p. 481, citing Williams v. New

York, supra, 337 U.S. at p. 246; Alleyne, supra, 570 U.S. at

p. 116.) Indeed, as we explained in Sandoval, in California, the

inquiry into aggravating circumstances has historically

included various kinds of cross-case comparative judgments —

how serious is the defendant’s crime relative to other violations

of the same statute? How vulnerable was the victim? How

concerning is the defendant’s criminal history compared to

others’? — that juries have not traditionally been tasked with,

nor thought “well suited” to make. (Sandoval, supra, 41 Cal.4th

at p. 849.)

The Legislature is of course not bound to conform to this

tradition; it is entitled to take a different approach. But we

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Kruger, J., concurring and dissenting

should recognize the Legislature’s statutory innovation for what

it is — a legislative expansion of the jury right as it has

traditionally been understood — rather than attempting to

squeeze it into a constitutional framework that does not fit with

binding precedent.

In sum, I think the appellate courts had understood our

precedent correctly: The extension of a jury right in section

1170(b)(2) as to every aggravating circumstance upon which a

trial court relies in imposing an upper term sentence goes

further than the Sixth Amendment requires. As long as a single

aggravating circumstance would have been found true by the

jury or admitted to by the defendant, the Sixth Amendment is

satisfied. The Legislature was, of course, free to extend such a

right beyond the constitutional floor. But to the extent the

statute exceeds constitutional requirements, the failure to

submit a particular aggravating fact to the jury is error of state

law, not a violation of the federal Constitution.

II.

Despite my disagreement with the majority’s

constitutional analysis, I concur in the judgment. In my view,

the characterization of the jury right in section 1170(b)(2) is not

determinative of the outcome of this case.

Regardless of the source of the right, the fact is that

California law now guarantees a defendant the right to a jury

finding on every aggravating fact cited in support of an upper

term sentence. The only reason the source of the jury right has

any relevance here is because California law and federal law

prescribe different standards for determining whether an error

in the proceedings requires reversal of the judgment. We have

said that violations of state law require reversal if it is

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Kruger, J., concurring and dissenting

“reasonably probable” the outcome would have been different in

the absence of the error (People v. Watson (1956) 46 Cal.2d 818,

836), while violations of the federal Constitution require

reversal if the error was not “harmless beyond a reasonable

doubt” (Chapman v. California (1967) 386 U.S. 18, 24).

Although it is often said that the former standard is “less

stringent” than the former (e.g., People v. Hendrix (2022) 13

Cal.5th 933, 944 (Hendrix)), it is a mistake to suppose that the

two standards are defined by their opposition to one another. It

is equally a mistake to suppose that these prejudice standards

mean that the requirements of state law should, as a rule, be

taken less seriously than the requirements of federal law.

The application of the Watson “reasonable probability”

standard naturally varies with the nature of the error. Here,

the error is the absence of a finding “beyond a reasonable doubt.”

(§ 1170(b)(2).) A reviewing court must therefore determine if it

is reasonably probable that a jury would have found each

additional aggravating circumstance true beyond a reasonable

doubt, and if not, whether it is reasonably probable that the

judge would have imposed the same sentence anyway. “ ‘ “ ‘[A]

“probability” in this context does not mean more likely than not,

but merely a reasonable chance, more than an abstract

possibility.’ ” ’ ” (Hendrix, supra, 13 Cal.5th at p. 944.)

Here, as the majority notes, the trial court cited eight

circumstances in aggravation when sentencing Lynch to the

upper term: “(1) the crimes involved a high degree of cruelty,

viciousness, and callousness because Lynch had struck the

victim with a table leg, an extension cord, and a broomstick (see

Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was

particularly vulnerable (id., rule 4.421(a)(3)); (3) Lynch used a

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Kruger, J., concurring and dissenting

weapon when committing the crimes (id., rule 4.421(a)(2));

(4) his conduct and prior record indicate a serious danger to

society (id., rule 4.421(b)(1)); (5) his prior convictions are

numerous (id., rule 4.421(b)(2)); (6) he had served prior prison

terms (id., rule 4.421(b)(3)); (7) he was on parole at the time he

committed the crimes (id., rule 4.421(b)(4)); and (8) his prior

performance on parole was unsatisfactory (id., rule 4.421(b)(5)).”

(Maj. opn., ante, at p. 5.) Applying the Watson standard of

review, the Court of Appeal held that it could not “say with

confidence” that a jury would find that Lynch’s crimes involved

a high degree of cruelty, that Lynch poses a serious danger to

society, and that his victim was particularly vulnerable. I

agree — and, indeed, although my colleagues disagree on other

points, there is no dispute as to this one. As the Court of Appeal

noted, these three aggravating circumstances involve

“complicated, subjective determinations,” which makes it

difficult to say that there is no reasonable probability that a jury

would have not found these aggravating circumstances true

beyond a reasonable doubt.

The Court of Appeal found that as to the remaining five

aggravating circumstances, there either was no error in proof

under Penal Code section 1170, subdivision (b) or that the error

was harmless under the Watson standard. Because there is at

least one aggravating fact proved in compliance with the Sixth

Amendment, there is no federal constitutional issue; the

question of harmlessness depends entirely on application of

Watson’s reasonable probability standard. The Court of Appeal

concluded, and the Chief Justice agrees (dis. opn. of Guerrero,

C. J., post, at p. 38), that there was not a reasonable probability

that the trial court would have selected a lesser sentence based

on these five aggravating circumstances.

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Kruger, J., concurring and dissenting

I take a different view of how Watson applies in this

context. As an initial matter, we must be careful about relying

on a factual record made when the defendant may not have had

the same “incentive and opportunity” to contest aggravating

circumstances that he would have had if section 1170(b)(2) had

been in effect at the time of his trial and sentencing. (Sandoval,

supra, 41 Cal.4th at p. 839; see id. at pp. 839–840.) But even

assuming that all five of the aggravating circumstances the trial

court cited in this case remain valid under current law, I do not

think we can say with confidence that the trial court would have

imposed the same sentence had it been aware of the law’s new

instructions for the exercise of its sentencing discretion. The

trial court, operating under the former law, cited an array of

circumstances to support its decision to impose the upper term.

We have no way of knowing whether the trial court would have

imposed the same sentence based solely on the subset of

aggravating facts that are exempt from jury-trial requirements

or as to which the deprivation of a jury trial could reliably be

said to be harmless. This is particularly so because the amended

law creates a presumption against the upper term, whereas the

trial court at the time of Lynch’s sentencing had broad discretion

to select among the three terms. (See maj. opn., ante, at pp. 10–

11, 51.) Certainly the trial court could have imposed the same

sentence. But would it? Perhaps so, but if there is a reasonable

chance that it would not, then the error is not harmless.

As the Chief Justice notes, the trial court “specifically

emphasized” Lynch’s parole status and numerous prior

convictions, both of which remain valid aggravating

circumstances given the evidence introduced at trial. (Dis. opn.

of Guerrero, C. J., post, at p. 37.) But it also cited all eight

aggravating circumstances when stating the upper term was

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Kruger, J., concurring and dissenting

appropriate. Absent a more definitive indication of intent from

the trial court — for example, specifying that it would have

imposed the upper term sentence based on those two

aggravating circumstances alone — I do not think we can say

there is no reasonable probability that the court would have

exercised its discretion differently had it been aware of the law

now in effect.3

For this reason, I agree with the majority’s ultimate

conclusion that the Court of Appeal’s judgment must be

reversed. But because I do not join in its conclusion that every

violation of section 1170(b)(2)’s jury trial guarantee is also a

violation of the federal Constitution, I concur in the judgment

only.

KRUGER, J.

I Concur:

JENKINS, J.

3

Even in cases that raise no concerns about which

aggravating facts the sentencing court could have relied on in

imposing an upper term sentence, I agree with the majority that

People v. Gutierrez (2014) 58 Cal.4th 1354, 1390–1391 requires

reversal where the record contains no clear indication that the

trial court would have imposed the same upper term sentence

had it been aware of the new legislative presumption against

the upper term. (Maj. opn., ante, at pp. 53–54.)

19

PEOPLE v. LYNCH

S274942

Dissenting Opinion by Chief Justice Guerrero

After a jury convicted defendant Deandre Lynch of three

counts of domestic violence and one count of assault against his

former girlfriend, the trial court found multiple aggravating

facts and sentenced Lynch to an upper term of imprisonment.

The aggravating facts found by the court were Lynch’s

numerous prior criminal convictions; his prior prison terms; his

status on parole at the time of the offenses; his poor performance

on parole; the existence of a particularly vulnerable victim;

Lynch’s use of a weapon; the presence of a high degree of cruelty,

viciousness, and callousness; and violent conduct that reflects a

serious danger to society. The court found no facts in mitigation.

The majority concludes that, under California’s current

determinate sentencing law (DSL; Pen. Code, § 1170),1 each of

the aggravating facts found by the trial court was “ ‘necessary’ ”

to the imposition of the upper term sentence on Lynch, and each

is therefore covered by the Sixth Amendment’s right to a jury

trial. (Maj. opn., ante, at p. 31.) I respectfully disagree.

The Sixth Amendment guarantees a criminal defendant

the right to a jury trial on any fact, except a prior conviction,

that is “necessary to the imposition of an elevated sentence.”

(Cunningham v. California (2007) 549 U.S. 270, 294

1

Subsequent undesignated statutory references are to the

Penal Code.

1

PEOPLE v. LYNCH

Guerrero, C. J., dissenting

(Cunningham).) In other words, “every defendant has the right

to insist that the prosecutor prove to a jury all facts legally

essential to the punishment.” (Blakely v. Washington (2004)

542 U.S. 296, 313 (Blakely), second italics added.)

Under the current DSL, as the majority confirms, “[o]nly

a single aggravating factor is required to impose the upper

term.” (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband);

see maj. opn., ante, at pp. 36–37, 59.) In other words, “the

existence of a single aggravating circumstance is legally

sufficient to make the defendant eligible for the upper term.”

(People v. Black (2007) 41 Cal.4th 799, 813 (Black II).) Nothing

in the current DSL requires the existence of multiple

aggravating facts in order to impose an upper term of

imprisonment. Even if one (or more) of the aggravating facts

here had not been proven, the trial court would still have been

able to legally impose the upper term on Lynch based on the

remaining aggravating facts. This circumstance distinguishes

aggravating facts in this context from the elements of a criminal

offense, each of which is essential. The majority errs by

conflating the two.

This court comprehensively explored these issues less

than two decades ago in two companion cases, Black II, supra,

41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825

(Sandoval). We held that “as long as a single aggravating

circumstance that renders a defendant eligible for the upper

term sentence has been established in accordance with the

requirements of Apprendi[2] and its progeny, any additional

factfinding engaged in by the trial court in selecting the

2

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

2

PEOPLE v. LYNCH

Guerrero, C. J., dissenting

appropriate sentence among the three available options does not

violate the defendant’s right to jury trial.” (Black II, at p. 812.)

We expressly rejected the argument that the Sixth Amendment

was implicated by any additional aggravating facts used by the

trial court to “justify” the upper term. (Black II, at p. 814.) The

United States Supreme Court has likewise confirmed that the

Sixth Amendment does not apply to factual findings made by a

court in the course of selecting among available alternatives:

“While such findings of fact may lead judges to select sentences

that are more severe than the ones they would have selected

without those facts, the Sixth Amendment does not govern that

element of sentencing.” (Alleyne v. United States (2013)

570 U.S. 99, 113, fn. 2 (Alleyne).)

The majority asserts that the requirements of the current

DSL “ha[ve] overtaken the viability of Black II and Sandoval on

this issue” (maj. opn., ante, at p. 25), but the current DSL does

not change which facts are required to impose an upper term

sentence. It does not, for example, identify any specific fact or

any threshold nu

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