# People v. Lynch

> California Supreme Court · August 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10494271

## Case

- **Court:** California Supreme Court
- **Decided:** August 1, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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PEOPLE v. LYNCH
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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PEOPLE v. LYNCH
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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PEOPLE v. LYNCH
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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PEOPLE v. LYNCH
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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PEOPLE v. LYNCH
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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Opinion of the Court by Corrigan, J.

(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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PEOPLE v. LYNCH
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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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Opinion of the Court by Corrigan, J.

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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Opinion of the Court by Corrigan, J.

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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Opinion of the Court by Corrigan, J.

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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PEOPLE v. LYNCH
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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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.

3
PEOPLE v. LYNCH
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,

4
PEOPLE v. LYNCH
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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10494271. Public record. Not legal advice.