# People v. Falcon

> California Court of Appeal · July 13, 2023

URL: https://www.frixlaw.com/law-library/cases/9408883

## Case

- **Court:** California Court of Appeal
- **Decided:** July 13, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9408883

## Opinion text

Filed 7/13/23 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F083577
Plaintiff and Respondent,
(Kern Super. Ct. No. BF174596A)
v.

REY ENRIQUE RAMOS FALCON, MODIFICATION OF OPINION
(NO CHANGE IN JUDGMENT)
Defendant and Appellant.

THE COURT:
It is ordered that the published opinion filed herein on June 26, 2023, be modified
as follows:
1. On page 2, in the first and second paragraphs, the text “premediated” is
modified to read “premeditated.”
2. On page 9, in the fifth paragraph, the text “premediated” is modified to read
“premeditated.”
3. On page 44, the citation at the end of the first and only full paragraph is
modified to read “(See Lewis, supra, 88 Cal.App.5th at pp. 1136–1137, review granted
[neither step under Lopez answers whether the trial court would have imposed an upper
term under amended § 1170(b)’s new presumption in favor of a middle term maximum
sentence].)”
Except for the modifications set forth, the opinion previously filed remains
unchanged.
This modification does not effect a change in the judgment.

MEEHAN, Acting P. J.

WE CONCUR:

SNAUFFER, J.

DeSANTOS, J.

2.
Filed 6/26/23 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F083577
Plaintiff and Respondent,
(Super. Ct. No. BF174596A)
v.

REY ENRIQUE RAMOS FALCON, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J.
Valle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After shooting his ex-girlfriend (R.S.) and her boyfriend (C.M.), defendant Rey
Enrique Ramos Falcon was convicted by jury of the following: two counts of
premediated attempted murder (Pen. Code,1 §§ 187, subd. (a), 189, 664; counts 1 & 4);
two counts of assault with a deadly weapon (§ 245, subd. (a)(2); counts 2 & 5); one count
of inflicting corporal injury on a prior dating partner (§ 273.5, subd. (a); count 3); and
one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 6).
The jury also found true multiple enhancement allegations under section 12022.53,
subdivision (d) (counts 1 & 4) (§ 12022.53(d) or section 12022.53(d)); section 12022.53,
subdivision (c) (counts 1 & 4); section 12022.5, subdivision (a) (counts 2, 3, & 5);
section 12022.7, subdivision (a) (counts 4 & 5); and section 12022.7, subdivision (e)
(counts 1, 2 & 3).2 The trial court imposed the following sentence: two consecutive
indeterminate terms of seven years to life for the premediated attempted murder
convictions (counts 1 & 4), plus two additional terms of 25 years to life for the
respectively attached firearm enhancements under section 12022.53(d). All other
enhancements attached to counts 1 and 4 were stayed under section 654. On all
remaining offenses (counts 2, 3, 5, & 6), upper terms were imposed but stayed under
section 654; the sentences for all attached enhancements were likewise stayed under
section 654.
On appeal, defendant argues the sentence should be vacated and remanded for
resentencing under People v. Tirado (2022) 12 Cal.5th 688 (Tirado), Assembly Bill
No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518) and Senate Bill No. 567 (2021–

1 All further statutory references are to the Penal Code unless indicated otherwise.
2 Firearm enhancement allegations under section 12022.53, subdivision (b); the prior
prison term allegations under section 667.5, subdivision (b); and the personal use of a firearm
allegations under section 12022.5, subdivision (a), associated with counts 1 and 4 were dismissed
before the case was submitted to the jury.

4.
2022 Reg. Sess.) (Senate Bill 567). Despite the changes in the law after the sentencing in
this case, the People argue resentencing is both futile and unwarranted. We conclude that
resentencing is required under Senate Bill 567. Therefore, we do not reach defendant’s
contentions under Assembly Bill 518 and Tirado, which may be addressed at the
resentencing hearing.
On counts 2, 3, 5 and 6, the trial court properly sentenced defendant under
section 1170, former subdivision (b), but after this sentencing and before the judgment
was final, Senate Bill 567 was enacted and took effect. Under the former version of
California’s Determinate Sentencing Law (DSL), the trial court had full discretion to
select any of the three terms of imprisonment that it determined best served “the interests
of justice” based on facts the trial court was permitted to find itself from a wide variety of
sources, including a probation report. (§ 1170, former subd. (b).)
Senate Bill 567 significantly altered the DSL, and the amended law now limits a
trial court’s discretion to impose an upper term. (§ 1170, subd. (b)(1) (§ 1170(b)(1) or
section 1170(b)(1)).) Presumptively, the middle term is the maximum term that may be
imposed and it may be exceeded “only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment exceeding the middle
term .…” (Id., subd. (b)(2).) In addition, the facts underlying those circumstances must
be proven, stipulated to by the defendant or evidenced in a specific manner not required
under the former law. (Id., subd. (b)(2), (b)(3).)
While courts uniformly agree Senate Bill 567 applies retroactively to nonfinal
cases, the Courts of Appeal are currently fractured regarding how to assess the need for
resentencing in the context of upper term sentences imposed under section 1170, former
subdivision (b). The majority of courts hold that some type of harmless error analysis
can be applied to determine whether resentencing is unwarranted. There is disagreement
among this majority, however, as to what type of harmless error analysis applies to
determine the constitutionality of an upper term sentence. (Compare, e.g., People v.

5.
Lopez (2022) 78 Cal.App.5th 459 (Lopez) with People v. Dunn (2022) 81 Cal.App.5th
394 (Dunn), review granted Oct. 12, 2022, S275655.)
It is well settled under Sixth Amendment jurisprudence that, “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi v. New Jersey (2000) 530 U.S 466, 490 (Apprendi).) As Senate Bill 567
mandates a sentence not to exceed the middle term and permits upward departure from
this presumptive maximum sentence only when there are additional factual findings that
justify doing so, all additional facts “legally essential” to impose an upper term sentence
must be found in a manner consistent with Sixth Amendment principles. (Blakely v.
Washington (2004) 542 U.S. 296, 313 (Blakely).) Due to this Sixth Amendment
implication, a constitutional harmless error analysis was originally utilized upon
retroactive application of the amended DSL to determine whether an upper term
sentence, supported by aggravating circumstances improperly found by the trial court
rather than a jury, remains viable under the federal constitution after the change in the
law. (See People v. Flores (2022) 75 Cal.App.5th 495, 500–501 (Flores).)
The appellate courts applying this harmless error test then split over which
aggravating-circumstance findings were, as a constitutional matter, legally essential for
imposition of an upper term sentence under the amended law, and how to account for
violations of state law with respect to aggravating-circumstance findings. (Compare
Flores, supra, 75 Cal.App.5th at pp. 500–501 with Lopez, supra, 78 Cal.App.5th at
p. 467 & fn. 11.) Thus, in addition to a constitutional harmless error test (over which
there is disagreement), several courts implemented harmless error analyses under state
law (shaped around the 6th Amend. analysis) to measure the effect of any failure to
comply with the new statutory procedural requirements for aggravated-circumstance
findings supporting an upper term sentence, and to determine whether resentencing is

6.
required. (Compare Lopez, supra, at pp. 465–467 with Dunn, supra, 81 Cal.App.5th at
pp. 409–410, review granted.)
A minority of courts hold that application of any harmless error analysis cannot
dispositively indicate whether resentencing is unwarranted because the amended law
changed more than just the proof requirements for aggravating circumstances for upper
term sentences, it imposed a presumptive sentencing preference that altered the trial
court’s discretion. (People v. Lewis (2023) 88 Cal.App.5th 1125 (Lewis), review granted
May 17, 2023, S279147; see People v. Wandrey (2022) 80 Cal.App.5th 962, 982
(Wandrey), review granted Sept. 28, 2022, S275942 [“we must ask both whether we can
be certain the jury would have found beyond a reasonable doubt the aggravating
circumstances relied on by the court and whether the trial court would have exercised its
discretion in the same way if it had been aware of the statutory presumption in favor of
the middle term”].) Lewis holds that under the new law, resentencing is unwarranted only
if the upper term sentence (1) remains legally valid under federal and state law (which
may involve application of a harmless error analysis); and (2) there is a clear indication
in the record the trial court would have imposed the upper term sentence had it been
aware of its circumscribed discretion under the newly amended sentencing law. (Lewis,
supra, at pp. 1137–1138.)
Having granted review in People v. Lynch (May 27, 2022, C094174) (nonpub.
opn.), review granted August 10, 2022, S274942, the California Supreme Court is now
poised to resolve this split of authority.
We agree that the Sixth Amendment is implicated by the changes to
section 1170(b), and whether an upper term sentence remains constitutionally valid under
the amended law may implicate a harmless error analysis. In our view, however, the
constitutional issue has been examined without any detailed interpretive focus on
amended section 1170(b) itself. Without particularized examination of state law, the
specific analytical basis for the split in authority over the Sixth Amendment issue is

7.
elusive; we find no clear reason to depart from the Sixth Amendment analysis applied by
our high court in People v. Black (2007) 41 Cal.4th 799 (Black II) regarding a former
version of the DSL.3 This analytical neglect of the amended statute has also led, in our
estimation, to the application of a state law harmless error analysis maladapted around the
Sixth Amendment’s jury trial right and not the statute itself. This framing has produced a
harmless error analysis that fails to recognize statutory noncompliance as error and
measure the effect of statutory noncompliance. As we will explain, this adaptation
estimates reasonable probabilities of a more favorable outcome for the appealing party
without removing the error from the calculus. And, in practical effect, this test nullifies
the statute’s new requirements by signaling that statutory compliance, particularly with
respect to prior conviction findings, is unnecessary.
Moreover, no harmless error analysis under federal or state law properly accounts
for how the presumptive middle term maximum sentence affects the trial court’s
sentencing discretion. The statute’s plain language creates an express presumption
against the imposition of an upper term sentence, even when properly proven aggravating
circumstances exist: a trial court must decide whether the existence of properly proven
aggravating circumstances justify, not just the term selected, but upward departure from
the presumptive rule itself. The presumption bears weight in this determination. 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.
Such presumptions affecting the trial court’s sentencing discretion that are enacted
in new legislation or by judicial precedent have been recognized as key ameliorative

3 Black II was decided after the United States Supreme Court reversed and remanded
People v. Black (2005) 35 Cal.4th 1238 for further consideration in light of Cunningham v.
California (2007) 549 U.S. 270 (Cunningham). (Black v. California (2007) 549 U.S. 1190,
1199.)

8.
changes in the law, including those implemented by Senate Bill 567. In this situation,
similar to other ameliorative and retroactively applied law that affects a court’s
sentencing discretion, the standard articulated by the California Supreme Court in People
v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) governs the remedy determination and
ultimately requires resentencing unless the record clearly indicates the trial court would
have imposed the upper term had it known of the new presumptive middle term. (Id. at
p. 1391.)
Based on our interpretation of the statute, an upper term sentence that remains
legal under federal and state law must still be evaluated under Gutierrez’s clear indication
test. We, therefore, join Lewis and hold that upon retroactive application of Senate
Bill 567 to upper term sentences imposed under section 1170, former subdivision (b),
resentencing is unwarranted only if two requirements are met: (1) the upper term
sentence remains legally valid under federal and state law, and (2) there is a clear
indication the trial court would have imposed the upper term sentences had it been aware
of its circumscribed discretion under the newly amended sentencing law. (Lewis, supra,
88 Cal.App.5th at pp. 1137–1138, review granted.) The trial court in this case made its
sentencing decision in the absence of the new presumption against exceeding the middle
term, and the record does not clearly indicate that the court would have imposed upper
term sentences had it been aware of the new constraint on its discretion. We believe
Gutierrez is binding and the appropriate remedy is to remand for the sentencing court to
exercise its newly informed and circumscribed discretion in the first instance.
FACTUAL BACKGROUND
Defendant and R.S. began dating around 2011, but they broke up in 2014 or 2015.
In 2015 or 2016, although she was still romantically involved “[o]n and off” with
defendant, R.S. began dating C.M. R.S. continued her sexual involvement with both men
until October 2018. At some point in October 2018, R.S. went to the residence where
defendant lived with his mother; R.S. and defendant had an argument about her cell

9.
phone, and an altercation ensued where defendant shoved R.S., took her phone and her
car keys, and left the residence. He eventually returned the items to R.S. later that night,
but R.S. had no further contact with him for about a month, until November 22, 2018.
In the early morning of Thursday, November 22, 2018, C.M. was sleeping over at
R.S.’s house where she and her two young sons lived. Around 3:00 a.m., a motion
detector around the carport outside alerted and awoke both C.M. and R.S. C.M. walked
to the kitchen window, turned on the porch light, saw someone outside in the driveway
and tapped on the glass to scare the person away. C.M. told R.S. to call the police
because there was a man outside, and she used her cell phone to call 911. R.S. told the
dispatcher she could see a person outside her house, and R.S. went to the back door and
opened it to see if that person was still outside. C.M. was standing behind her when R.S.
opened the back door, and he opened the door a little bit more. At that point, a man
appeared by the wooden fence near the carport. The man said, “‘What’s up,’” and C.M.
responded, “‘What’s up.’” At that point, both R.S. and C.M. recognized defendant, who
was wearing a sweatshirt with the hood up and had on eyeglasses. Although C.M. had
never met defendant in person, he recognized defendant from photos he had seen
previously.
As soon as C.M. responded to defendant, both C.M. and R.S. saw defendant pull
out a gun from the front pocket of his sweatshirt, point it, step forward and start shooting
at them. When R.S. and C.M. heard the gunshots, they closed the door as shots continued
to be fired through the door; R.S. was still on the phone with the 911 dispatcher. R.S.
went to her sons’ bedroom and told her oldest son to call his maternal grandmother,
which he did. When she shut the door to the boys’ room, she discovered she had been
shot. When she went back to check on C.M. in the kitchen, she found him leaning
against the cabinet holding his stomach as he too had been shot and suffered wounds to
his abdomen, thigh and leg. R.S. was shot near her right hip.

10.
When the police arrived, R.S. told them her ex-boyfriend, defendant, had shot both
her and C.M. She described defendant’s car as a gold-colored Chevrolet Monte Carlo.
C.M. also identified defendant as the shooter and said that he had been shot three or four
times while he was standing in the hallway looking out the door. He described defendant
as wearing a gray sweatshirt, a hat and reading glasses. C.M. got the best look at
defendant when R.S. opened the door and saw that he had a black handgun.
Police found two bullets inside the hallway near the north door exit of the
residence, which were both .380-caliber. In the driveway, they found four spent shell
casings, also .380-caliber. A neighbor reported hearing five gunshots, saw someone
running, and saw that person get into a “[g]oldish” colored four-door Chrysler and drive
away. The neighbor thought there were more people inside the car, but the windows
were tinted.
R.S. and C.M. were interviewed by police again at the hospital and both again
identified defendant as the shooter; C.M. picked defendant out of a photographic lineup,
and identified defendant again at trial.
Defendant’s mother testified that on the night of the shooting, defendant was
living at her house, had gone to bed around 10:30 p.m. that night, and she saw him the
next morning around 7:00 a.m. She had no reason to believe defendant left the home at
any point that night because her four dogs “get exasperated very easily” and would bark
at any noise. She testified the car defendant was driving at that time was a gold-colored,
two-door Monte Carlo.
The jury convicted defendant on all charged counts and found true all special
enhancement allegations. The trial court imposed the following sentence: two
consecutive terms of seven years to life for the premediated attempted murders, plus two
terms of 25 years to life for the attached firearm enhancements under section 12022.53(d)
(counts 1 & 4). The court imposed upper terms on each of the remaining counts 2, 3, 5
and 6, but stayed the punishments under section 654. As for all the remaining

11.
enhancements, the court imposed upper five-year term sentences under section 12022.7,
subdivision (e) (counts 1, 2 & 3) and the upper 10-year term sentences under
section 12022.5, subdivision (a) (counts 2, 3, & 5). The court also imposed three-year
terms for the enhancements under section 12022.7, subdivision (a) (counts 4 & 5), and
terms of 20 years to life under section 12022.53, subdivision (c) (counts 1 & 4). Each of
the terms for these remaining enhancements was stayed under section 654.
DISCUSSION
I. Senate Bill 567
The trial court sentenced defendant on September 29, 2021. Under section 1170,
former subdivision (b) and section 1170.1, the trial court imposed upper term sentences
on counts 2, 3, 5 and 6, and imposed the upper term on certain enhancements. Effective
January 1, 2022, and while this appeal was pending, section 1170, former subdivision (b),
and section 1170.1 were significantly amended by Senate Bill 567.
The parties agree, as do we, that the amendments under Senate Bill 567 apply
retroactively to nonfinal cases such as this. (Lewis, supra, 88 Cal.App.5th at p. 1131,
review granted; Flores, supra, 75 Cal.App.5th at p. 500; Lopez, supra, 78 Cal.App.5th at
p. 465; People v. Zabelle (2022) 80 Cal.App.5th 1098, 1108–1109 (Zabelle).)
Nevertheless, the parties dispute how these amendments affect the upper term sentences
the trial court imposed under section 1170, former subdivision (b), and whether
application of the amended law requires resentencing. These arguments implicate the
issues over which we have noted the Courts of Appeal are presently split.
To best contextualize the parties’ specific arguments and the fractured approach
courts are employing to resolve these matters, we begin with an overview of the changes
Senate Bill 567 made to the determinate sentencing scheme in contrast to the former
version. This overview will be followed by an explanation of the parties’ arguments, and
a summary of the legal background that led to the current split of authority in applying
the amended law retroactively. From this background, we will proceed to consider the

12.
various harmless error analyses in light of our interpretation of amended section 1170(b);
frame what is, in our view, the appropriate analysis to determine the need for
resentencing in retroactive application cases; and apply that analytical structure to the
facts presented here.
A. Overview of Amendments to Section 1170(b)
Among other things, Senate Bill 567 materially revised the determinate sentencing
scheme under section 1170(b). Under the former version of the statute, determinate
sentences were to be imposed as follows:

“When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. At least four days prior to the time
set for imposition of judgment, either party or the victim, or the family of
the victim if the victim is deceased, may submit a statement in aggravation
or mitigation. In determining the appropriate term, the court may consider
the record in the case, the probation officer’s report, other reports, including
reports received pursuant to Section 1203.03, and statements in aggravation
or mitigation submitted by the prosecution, the defendant, or the victim, or
the family of the victim if the victim is deceased, and any further evidence
introduced at the sentencing hearing. The court shall select the term which,
in the court’s discretion, best serves the interests of justice. The court shall
set forth on the record the reasons for imposing the term selected and the
court may not impose an upper term by using the fact of any enhancement
upon which sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.” (§ 1170, former subd. (b).)
The trial court had discretion to select from among any of the three terms of
punishment provided by a statute and, in selecting from among the terms, the court was
free to find facts in mitigation and aggravation based on a wide range of information,
including a probation report. (Cal. Rules of Court, former rule 4.420(d).)
Senate Bill 567 significantly altered this framework. (§ 1170(b)(1).) Specifically,
newly enumerated section 1170(b)(1) states, “When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court shall, in its sound

13.
discretion, order imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).” In newly enumerated section 1170(b)(2), the statue
provides that “The court may impose a sentence exceeding the middle term only when
there are circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, 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.…” In reaching its sentencing
decision, the court may consider prior convictions based on certified records of
conviction without first submitting the prior convictions to a jury. (Id., (b)(3).)
The plain language of this new configuration creates a presumption that the middle
term is the default maximum sentence, and this new presumption bears weight on how
the trial court may exercise its discretion to depart from the presumptive rule. (See
Wandrey, supra, 80 Cal.App.5th at p. 982, review granted [noting new law specifies a
statutory presumption in favor of the middle term].) Unlike its predecessor, the statute
does not allow a court to select an upper term simply because it appears warranted and
supported by aggravating circumstances. Instead, in distinct contrast with the former
sentencing scheme, the court’s decision to impose an upper term is now expressly framed
around whether properly proven or established aggravating circumstances justify
invoking the exception to the rule that the middle term is the default maximum sentence.
Senate Bill 567’s legislative history is express that section 1170(b)(1) was
intended to create a presumption: “[Senate Bill] 567 creates a presumption of sentencing
judgement [sic] not to exceed the middle terms .…” (Sen. Com. on Public Safety,
Analysis of Sen. Bill 567, as amended Mar. 9, 2021, p. 3 [quoting bill’s author’s
comments].) Comments by the bill’s author, which were incorporated into a subsequent
bill analysis, indicate this new presumption in section 1170(b)(1) coupled with the
aggravating-circumstance proof requirements in section 1170(b)(2) were aimed to
“‘ensure that the harshest sentences receive the greatest scrutiny and justification before

14.
they are meted out.’” (Assem. Floor Analysis, 3d reading analysis of Sen. Bill 567, as
amended July 1, 2021, p. 2 [incorporating bill’s author’s comments into bill analysis
report]; see In re Jennings (2004) 34 Cal.4th 254, 264 [considering author’s comments
that were incorporated into the bill’s subsequent analysis with no contrary statements of
intent in the legislative history].)
Such a statutory presumption in favor of a particular term has a limiting effect on
the trial court’s discretion. (Gutierrez, supra, 58 Cal.4th at p. 1382 [a statutory
preference in favor of a particular sentence circumscribes a court’s discretion].)
Defendants are entitled to sentencing decisions made in the exercise of informed
discretion, and a court that is unaware of the scope of its discretionary powers can “‘no
more exercise that “informed discretion” than one whose sentence is or may have been
based on misinformation regarding a material aspect of a defendant’s record.’” (Id. at
p. 1391.) Gutierrez teaches that applying retroactive changes to a trial court’s sentencing
discretion will require resentencing unless the record clearly indicates the trial court
would have imposed the same sentence had it known about the limits to its discretion.
(Ibid.) With this basic framework in mind, we turn to a summary of the parties’
arguments.
B. Parties’ Arguments
The sentencing in this case occurred under the prior version of the statute, before
Senate Bill 567 became effective. In retroactively applying the amended law, the parties
disagree whether the trial court’s imposition of upper term sentences was proper given
the new proof requirements for aggravating circumstances, and whether the new law
altered the court’s sentencing discretion in a manner that warrants resentencing.
Defendant argues the case should be remanded for resentencing because the
aggravating circumstances supporting the upper term were not properly proven or
established under the new state law requirements and, even if there was compliance with
the proof requirements, the original sentence was still not imposed in the exercise of

15.
informed discretion under the amended statute. With no clear indication the trial court
would impose the upper term sentences had it been aware of its circumscribed sentencing
discretion, defendant argues resentencing is mandated.
The People maintain all of the aggravating circumstances relied on to impose the
upper term under the prior version of the statute were based on, or related to, defendant’s
prior convictions, and there were certified records related to his prior convictions
admitted during trial, including a certified copy of defendant’s rap sheet. Thus, the
People argue the aggravating circumstances relied on to impose upper term sentences
were not found in violation of defendant’s Sixth Amendment right to a jury trial or in
violation of newly amended section 1170(b). Alternatively, the People argue that even if
one or more of these circumstances were improperly considered under amended
section 1170(b), the error was not prejudicial under the harmless error standard
articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) as adapted and applied in
Dunn and Zabelle.
These arguments directly implicate the split in authority over application of a
harmless error analysis to determine the need for resentencing on retroactive application
of the amended statute.
C. Applicable Legal Background
In the context of upper term sentences imposed under section 1170, former
subdivision (b), most courts have employed some type of harmless error analysis to
determine whether resentencing is unnecessary under the new law. (Lopez, supra, 78
Cal.App.5th at p. 467 & fn. 11; Wandrey, supra, 80 Cal.App.5th at p. 982, review
granted; Dunn, supra, 81 Cal.App.5th at p. 408, review granted; Zabelle, supra, 80
Cal.App.5th at p. 1113; People v. Ross (2022) 86 Cal.App.5th 1346, 1354–1355 (Ross),
review granted Mar. 24, 2023, S278266; People v. Butler (2023) 89 Cal.App.5th 953,
959–960 (Butler), review granted May 31, 2023, S279633.) The application of these
various harmless error analyses appears rooted in how the Sixth Amendment is

16.
implicated by section 1170(b)(1)’s prohibition on exceeding the middle term and the new
state law requirements for proving or establishing aggravating circumstances under
section 1170(b)(2) and (b)(3). Indeed, these courts are split on how the Sixth
Amendment applies to the amended statute and which type of harmless error analysis
should be applied. (Compare Lopez, supra, at pp. 465–467 with Zabelle, supra, at
pp. 1111–1112.) This constitutional focus, while important, has largely overshadowed
detailed consideration of the amended statute itself. This has left important questions of
state law unanswered, including whether a state law harmless error analysis is ever
appropriate in a retroactive context to assess the need for resentencing under the amended
law.
Nevertheless, an overview of the Sixth Amendment’s relevance to amended
section 1170(b) is necessary to adequately preface our discussion of the case authority
noted ante and our interpretation of the amended state law. This overview will be
followed by a summary of the various federal and state law harmless-error analyses
courts have implemented to assess the need for resentencing under amended
section 1170(b), our concerns about how these tests have been adapted and applied, and
our own analysis of amended section 1170(b) and its application to the circumstances of
this case.
1. Sixth Amendment and California’s DSL
“The Sixth Amendment protects the right of a criminal defendant to a trial by jury,
and under the Fourteenth Amendment, this protection applies to state criminal
proceedings. (Ramos v. Louisiana (2020) 590 U.S.__ [140 S.Ct. 1390, 1395–1397].)
Among the specific protections included in the jury trial guarantee are the right to have
every element of the crime found by a jury (United States v. Gaudin (1995) 515 U.S. 506,
511) and the right to have the jury make those findings beyond a reasonable doubt (In re
Winship (1970) 397 U.S. 358, 364).” (People v. Catarino (2023) 14 Cal.5th 748, 754
(Catarino).)

17.
The United States Supreme Court explained in Apprendi the existence of these
rights is not predicated on a distinction between elements of a crime and sentencing
factors (Apprendi, supra, 530 U.S. at pp. 478, 494), but on whether a required finding
exposes the defendant to a greater punishment than that authorized by the jury’s verdict
(id. at p. 494). “While a court may properly exercise its discretion to impose any
sentence within the statutory range for a defendant’s offense once that range is
determined by facts found by the jury, judicial factfinding that ‘exposes the criminal
defendant to a penalty exceeding the maximum he would receive if punished according to
the facts reflected in the jury verdict alone’ violates the Sixth Amendment. (Apprendi, at
p. 483.)” (Catarino, supra, 14 Cal.5th at p. 754.)
Based on this reasoning, Apprendi held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi, supra, 530 U.S. at p. 490.) As such, “the Federal Constitution’s [Sixth
Amendment] 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.” (Cunningham, supra, 549
U.S. at pp. 274–275.) “[T]he relevant ‘statutory maximum’ is not the maximum sentence
a judge may impose after finding additional facts, but the maximum he may impose
without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303–304.)
California’s DSL in effect from 1977 to 2007 assigned to the trial judge, not a
jury, the authority to find facts that exposed a defendant to an elevated upper term
sentence. The pre-2007 version of section 1170(b), provided that “the court shall order
imposition of the middle term, unless there are circumstances in aggravation or
mitigation of the crime.” (See Stats. 1976, ch. 1139, § 273, pp. 5140–5141, as amended
by Stats. 1977, ch. 165, § 15, pp. 647–649.) The circumstances in aggravation or
mitigation were to be determined by the court after consideration of the trial record; the

18.
probation officer’s report; statements in aggravation or mitigation submitted by the
parties, the victim, or the victim’s family; and any further evidence introduced at the
sentencing hearing. (Stats. 1976, ch. 1139, § 273, pp. 5140–5141; see Cunningham,
supra, 549 U.S. at p. 277, citing § 1170, former subd. (b).) The California Rules of Court
provided that “circumstances in aggravation” were to be “established by a preponderance
of the evidence.” (Cal. Rules of Court, former rule 4.420(b).)
In 2007, the United States Supreme Court held this sentencing scheme violated the
Sixth Amendment’s jury trial guarantee as articulated in Apprendi and Blakely because it
allowed a sentencing judge to impose a term beyond the statutory maximum based on
facts not proven to a jury beyond a reasonable doubt or admitted by the defendant.
(Cunningham, supra, 549 U.S. at p. 293.) The high court explained “California’s DSL,
and the Rules governing its application, direct the sentencing court to start with the
middle term, and to move from that term only when the court itself finds and places on
the record facts—whether related to the offense or the offender—beyond the elements of
the charged offense.” (Id. at p. 279.) Applying Apprendi and Blakely, the court
concluded the middle term under California’s DSL was the relevant statutory maximum.
(Cunningham, supra, at p. 288.) To the extent the DSL allowed a sentencing judge to
find facts necessary to impose a punishment exceeding the middle term that were neither
established by the jury’s verdict, the defendant’s admissions, or the defendant’s prior
convictions, the system did not “withstand measurement against [the high court’s] Sixth
Amendment precedent.” (Cunningham, supra, at p. 293, fn. omitted.)
Applying Cunningham in Black II, the California Supreme Court addressed
whether the imposition of the upper term in the circumstances of Black’s case violated
the Sixth Amendment. Pursuant to the pre-2007 version of the DSL under which he was
sentenced, Black argued he had a right to a jury trial on all aggravating circumstances
that may be considered by the sentencing court in imposing the upper term, even if one
aggravating circumstance was established in accordance with Blakely. (Black II, supra,

19.
41 Cal.4th at p. 814.) This was so, Black argued, because selection of the upper term was
justified only when the circumstances in aggravation outweigh the circumstances in
mitigation—thus, a court could not impose the upper term unless it determined that any
aggravating circumstances were of sufficient weight to justify the upper term. (Ibid.)
Accordingly, Black asserted, “if only one of several aggravating circumstances
considered by the trial court has been established pursuant to Sixth Amendment
requirements, and the upper term sentence is selected, the court has imposed ‘punishment
that the jury’s verdict alone does not allow, the jury has not found all the facts “which the
law makes essential to the punishment,” [citation] and the judge exceeds his proper
authority.’” (Ibid., quoting Blakely, supra, 542 U.S. at p. 304.)
Our high court rejected this argument. The court observed that “under the line of
high court decisions beginning with Apprendi …, and culminating in Cunningham …, 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’ (Blakely, supra, 542 U.S. at
p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than
is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. [281]).”
(Black II, supra, 41 Cal.4th at p. 812.) Black II explained that Apprendi had “examined
the right to jury trial in criminal cases as it existed at common law, [and] recogniz[ed] an
‘historic link between verdict and judgment and the consistent limitation on judges’
discretion to operate within the limits of the legal penalties.’” (Ibid., quoting Apprendi,
supra, 530 U.S. at p. 482.)
Yet, at the same time, Black II pointed out, Apprendi had also 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.’” (Black II,
supra, 41 Cal.4th at p. 812, quoting Apprendi, supra, 530 U.S. at p. 481.) Following
Apprendi, the United States Supreme Court in Blakely had “explicitly recognized the

20.
legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge
may ‘implicitly rule on those facts he deems important to the exercise of his sentencing
discretion.’” (Black II, supra, at pp. 812–813, quoting Blakely, supra, 542 U.S. at
p. 309.) Based on this, Black II reasoned, “so long as a defendant is eligible for the upper
term by virtue of facts that have been established consistently with Sixth Amendment
principles, [which effectively makes the upper term the statutory maximum for Sixth
Amendment purposes,] the federal Constitution permits the trial court to rely upon any
number of aggravating circumstances in exercising its discretion to select the appropriate
term … regardless of whether the facts underlying those circumstances have been found
to be true by a jury.” (Black II, supra, at p. 813.)
Under California’s pre-2007 determinate sentencing scheme, the sentencing court
was required to order imposition of the middle term unless there were circumstances in
aggravation or mitigation of the crime. (Black II, supra, 41 Cal.4th at p. 808, quoting
§ 1170, former subd. (b).) Under this framework, the Black II court pointed out, the
presence of one aggravating circumstance made it lawful for the trial court to impose an
upper term sentence. (Black II, supra, at p. 813.) So long as one aggravating
circumstance was established in accordance with the constitutional requirements, the
defendant was no longer entitled to the middle term, and the upper term became the
statutory maximum for Sixth Amendment purposes. (Black II, supra, at p. 813.) The
court explained further that a sentencing court’s “factual findings regarding the existence
of additional aggravating circumstances may increase the likelihood that it actually will
impose the upper term sentence, but these findings do not themselves further raise the
authorized sentence beyond the upper term. No matter how many additional aggravating
facts are found by the court, the upper term remains the maximum that may be imposed.
Accordingly, judicial factfinding on those additional aggravating circumstances is not
unconstitutional.” (Id. at p. 815.)

21.
Based on this, the Black II court held “as long as a single aggravating
circumstance that renders a defendant eligible for the upper term sentence has been
established in accordance with the requirements of Apprendi and its progeny, any
additional factfinding engaged in by the trial court in selecting the appropriate sentence
among the three available options does not violate the defendant’s right to jury trial.”
(Black II, supra, 41 Cal.4th at p. 812.)
Applying this reasoning to the facts before it, our high court noted one of the
aggravating facts the trial court relied on to impose the upper term sentence was that
force was used against the victim to commit the underlying crime, a fact that was
necessarily presented to the jury in the form of a special allegation. This aggravating
circumstance, the court reasoned, rendered Black eligible for the upper term under
section 1170. (Black II, supra, 41 Cal.4th at p. 817.) Beyond that, the trial court had
relied on Black’s numerous prior convictions as an aggravating circumstance, which the
court held came within the prior conviction exception to which no jury trial right applied.
(Id. at pp. 818–820.) As Black was eligible for the upper term sentence based on at least
one aggravating circumstance found in compliance with the Sixth Amendment and the
prior conviction exception thereto, the court concluded his right to a jury trial was not
violated by imposition of the upper term sentence. (Black II, supra, at p. 820.)

2. The Harmless Error Test For Sixth Amendment Violations in
Sentencing Under the DSL
On the same day it decided Black II, our high court issued its opinion in People v.
Sandoval (2007) 41 Cal.4th 825 (Sandoval), which also presented a question of whether
the imposition of an upper term sentence under the pre-2007 DSL violated the
defendant’s Sixth Amendment rights. Different from Black II, none of the aggravating
circumstances found by the trial court for imposing the upper term satisfied the Sixth
Amendment under Apprendi, Blakely or Cunningham; all were based on the facts
underlying the crime, none of which had been admitted by the defendant, established by

22.
the jury’s verdict, or involved a prior conviction. (Sandoval, supra, at pp. 837–838.) The
court concluded the upper term sentence violated the Sixth Amendment, but then
proceeded to determine whether that error was harmless. (Sandoval, supra, at pp. 838–
843.)
The court explained the denial of a Sixth Amendment jury trial right was reviewed
under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18
(Chapman). (Sandoval, supra, 41 Cal.4th at p. 838.) However, the relevant question
regarding the failure to submit a sentencing factor to a jury was not whether the error
contributed to the verdict; rather, the question was whether the jury’s verdict would have
authorized the upper term sentence had the aggravating circumstance been submitted to
the jury. (Ibid.) Reiterating its reasoning in Black II that only one aggravating
circumstance renders a defendant eligible for an upper term sentence and tailoring the
Chapman error standard to the context, 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 error is harmless. (Sandoval, supra,
at p. 839.)

3. Retroactive Application of Amended Section 1170(b) Implicates
the Sixth Amendment
Meanwhile, in response to Cunningham, California’s Legislature amended the
DSL through urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2,
pp. 5–8.) The amended DSL did away with a presumptive middle term and left “the
choice of the appropriate term” to the “sound discretion of the court.” (Stats. 2007, ch. 3,
§ 2, pp. 5–8.) The jury’s verdict alone was sufficient to render a defendant eligible for an
upper term sentence, making the upper term the relevant statutory maximum for purposes
of the Sixth Amendment, remedying the prior DSL’s constitutional infirmity. (See
Apprendi, supra, 530 U.S. at p. 481 [observing nothing in the common law history

23.
pertaining to jury trial right in criminal cases “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”]; see also
Cunningham, supra, 549 U.S. at p. 294, fn. omitted [noting some states “have chosen to
permit judges genuinely ‘to exercise broad discretion … within a statutory range,’ which,
‘everyone agrees,’ encounters no Sixth Amendment shoal.”].)
As of January 1, 2022, under the changes effected by Senate Bill 567, a trial court
imposing a sentence may no longer select any of the three terms that best serves the
interests of justice, but must impose a sentence that does not exceed the middle term,
except as provided in section 1170(b)(2). As elements of the offense being punished may
not be used to impose an upper term (Cal. Rules of Court, rule 4.420(h)), a defendant is
not eligible for an upper term sentence based solely on the jury’s guilty verdict for the
substantive offense. Thus, the middle term is once again the statutory maximum sentence
for Sixth Amendment purposes.
Under section 1170(b)(2), to increase the punishment beyond this middle term
maximum, a trial court must now rely on separate aggravating-circumstance findings that
it concludes justify upward departure from the presumptive maximum middle term.
(Ibid.) As additional factfinding is required to exceed the middle term maximum
sentence, Sixth Amendment jury-trial-right principles attach to all facts legally essential
to imposing an increased sentence. (Blakely, supra, 542 U.S. at p. 313 [the constitutional
requirement of a jury trial and proof beyond a reasonable doubt applies to a fact that is
“legally essential to the punishment”].) Amended section 1170(b)(2) incorporates this
jury trial right by requiring that all aggravating-circumstance findings relied on to impose
a sentence beyond the middle term be found true by a jury beyond a reasonable doubt.
The statute also recognizes two types of facts excepted from this constitutional jury trial
right, and provides that aggravating facts stipulated to by the defendant may be
considered without a jury finding (Ibid.; see Blakely, supra, 542 U.S. at p. 303 [facts

24.
admitted by the defendant excepted]) and the sentencing court may also consider prior
convictions based on certified records (§ 1170(b)(2), (b)(3); Apprendi, supra, 530 U.S. at
pp. 489–490 [fact of a prior conviction excepted]).
When amended section 1170(b) is applied retroactively to sentencings occurring
under section 1170, former subdivision (b), the issue is whether the aggravating
circumstances found by the sentencing judge, as the former scheme allowed, and relied
on to impose the upper term in the absence of the presumption, now comply with the
Sixth Amendment and the amended state law.
As noted, the Courts of Appeal have fractured in their approaches for making
these determinations, and we turn to those decisions now.

D. Courts Applying a Harmless Error Analysis to Assess the Need For
Resentencing on Retroactive Application of Amended Section 1170(b)
A majority of courts considering retroactive application of the amended statute to
an upper term sentence imposed under section 1170, former subdivision (b), have applied
a two-step approach. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11; Wandrey, supra, 80
Cal.App.5th at p. 982, review granted; Dunn, supra, 81 Cal.App.5th at p. 408, review
granted; Zabelle, supra, 80 Cal.App.5th at p. 1113; Ross, supra, 86 Cal.App.5th at
pp. 1354–1355, review granted; Butler, supra, 89 Cal.App.5th at p. 960, review granted;
Lewis, supra, 88 Cal.App.5th at p. 1137, review granted; but see Flores, supra, 75
Cal.App.5th at p. 500 [need for resentencing of upper term sentence upon retroactive
application of amended § 1170(b) determined solely under Sandoval harmless error test
for 6th Amend. violations].4) These approaches incorporate various iterations of
harmless error analyses to determine whether resentencing is required when a trial court

4 Two of the three justices on the panel that decided Flores subsequently reasoned in Ross
that, upon reflection and further developments in the case law, a two-part test was appropriate
and adopted Lopez’s two-step harmless error analysis. (Ross, supra, 86 Cal.App.5th at pp. 1354–
1355, review granted.)

25.
has imposed an upper term sentence under section 1170, former subdivision (b), in a
manner that now violates the Sixth Amendment and/or amended section 1170(b) by
finding and relying on circumstances not found true by a jury, stipulated to by the
defendant, or that involve a prior conviction based on certified records.
The first line of these published cases, which includes Lopez, Ross, and Butler,
effectively conclude that under amended section 1170(b), every aggravating-
circumstance finding relied on by the trial court to impose an upper term sentence is
legally essential to increase the punishment beyond the statutory maximum for Sixth
Amendment purposes—i.e., the middle term; thus, all aggravating circumstances relied
on to impose the upper term must be found in conformity with Sixth Amendment
principles.5 (Blakely, supra, 542 U.S. at p. 313 [constitutional jury trial right applies to
facts that are “legally essential to the punishment”]; Cunningham, supra, 549 U.S. at
p. 281 [constitutional jury trial right applies to “any fact that exposes a defendant to a
greater potential sentence” than is authorized by the jury’s verdict alone].)

5 None of these cases provide an express constitutional analysis of amended
section 1170(b), but because they all conclude the Chapman harmless error test applies to each
aggravating circumstance in the first step of their analysis, we presume they find each relied
upon aggravating circumstance “legally essential” to increase the punishment above the middle
term under the amended statute. (Blakely, supra, 542 U.S. at p. 313.) One analytical basis for
this position may relate to the fact that we cannot know how each individual aggravating
circumstance ultimately influences a trial court’s decision to impose an upper term sentence, at
least in cases where there is more than one circumstance relied upon. Based on this premise, an
argument can be made that all the relied upon aggravating circumstances together should be
considered legally essential to the imposition of an upper term sentence, and Sixth Amendment
principles are thus applicable to the facts underlying each aggravating circumstance. (See
generally People v. Flores (June 15, 2022, S274232), conc. statement of Liu, J. [noting “it may
no longer be true that ‘the existence of a single aggravating circumstance is legally sufficient to
make the defendant eligible for the upper term’”].) On the other hand, defendant is still eligible
under the amended statute for an upper term sentence based on a single circumstance—i.e., the
trial court could legally impose the upper term based on one aggravating circumstance. (See
Black II, supra, 41 Cal.4th at p. 815 [“The issue to be determined in each case is whether the trial
court’s factfinding increased the sentence that otherwise could have been imposed, not whether it
raised the sentence above that which otherwise would have been imposed.”].)

26.
To measure the need for resentencing on retroactive application of amended
section 1170(b) to upper term sentences imposed under section 1170, former
subdivision (b), these courts apply a two-step harmless error approach. In the first step,
these courts determine under the Chapman harmless error test (as adapted in Sandoval)
whether it can be concluded beyond a reasonable doubt that a jury would have found true
beyond a reasonable doubt every factor on which the court relied to impose the upper
term. If all the factors relied on were properly found under Sixth Amendment principles
or can successfully withstand the Chapman harmless error test, then these courts
conclude the defendant has not suffered any prejudice from the sentencing court’s
reliance on factors not submitted to a jury and no resentencing is necessary. (Lopez,
supra, 78 Cal.App.5th at pp. 465–466; Ross, supra, 86 Cal.App.5th at pp. 1354–1355,
review granted; Butler, supra, 89 Cal.App.5th at p. 960, review granted.)
On the other hand, if one or more of the circumstances relied on do not
successfully pass this initial harmless error analysis under Chapman, then a second step is
necessary under Watson.6 The Watson harmless error analysis considers whether “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) Although
Butler frames its adapted Watson harmless error test at this second step slightly
differently than Lopez and Ross, in essence these courts all ask whether the trial court
would have imposed a lesser sentence in the absence of the factors that could not be
deemed harmlessly considered at the first step.7 (Compare Lopez, supra, 78 Cal.App.5th

6 Wandrey agreed with Lopez regarding application of Chapman, but recognized that
constitutional soundness alone did not preclude the need for resentencing. Wandrey held a
reviewing court must ask whether it is “certain the jury would have found beyond a reasonable
doubt the aggravating circumstances relied on by the court and whether the trial court would
have exercised its discretion in the same way if it had been aware of the statutory presumption in
favor of the middle term.” (Wandrey, supra, 80 Cal.App.5th at p. 982, review granted.)
7 Lopez’s and Ross’s adaptation of Watson considers the reasonable probability the trial
court would do the same thing again—i.e., impose the upper term, which is not a result more

27.
at p. 467, fn. 11 [“whether a reviewing court can be certain, to the degree required by …
Watson[, supra,] 46 Cal.2d [at p. ]836, that the trial court would nevertheless have
exercised its discretion to select the upper term if it had recognized that it could … rely
on only [permissible factors], … rather than all of the factors on which it previously
relied”] with Butler, supra, 89 Cal.App.5th at p. 962, review granted [asking “whether it
is reasonably probable that the trial court would have imposed a shorter sentence if it had
relied only on permissible factors”].)
A second line of published cases, which includes Dunn and Zabelle, also imposes
a two-part test, but differs at the first step regarding the Sixth Amendment issue. These
courts conclude that only one aggravating-circumstance finding is necessary under the
amended statute to render a defendant eligible for an upper term sentence, and thus only
one aggravating circumstance needs to be found in a manner that comports with Sixth
Amendment principles for the upper term sentence to remain constitutionally sound.8
According to these courts, whether any remaining circumstances were properly proven or
established is an issue of state law only, to which an adapted Watson harmless error test
applies. Thus, under Dunn and Zabelle, a reviewing court first determines beyond a
reasonable doubt whether the jury would have found one aggravating circumstance true
beyond a reasonable doubt, and then whether there is a reasonable probability a jury
would not have found the remaining aggravating circumstance(s) true beyond a
reasonable doubt. If all the aggravating circumstances relied on by the trial court would

favorable to the appealing party. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11; Ross, supra, 86
Cal.App.5th at pp. 1354–1355, review granted.) As Lopez framed the test around Watson, we
presume it meant to ask the reasonable probability the court would impose a lesser term in the
absence of the impermissibly considered circumstances.
8 See Black II, supra, 41 Cal.4th at page 813 (“[S]o 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 Constitution permits the trial court to rely upon any number of aggravating
circumstances in exercising its discretion to select the appropriate term … regardless of whether
the facts underlying those circumstances have been found to be true by a jury.”)

28.
have been proven to these respective standards (or were found properly in conformity
with 6th Amend. principles and amended § 1170(b)), any error is harmless and
resentencing is not warranted.
If not, the reviewing court moves to the second step and asks whether there is a
reasonable probability that the trial court would have imposed a sentence other than the
upper term in light of the aggravating circumstances provable from the record as
determined in the prior steps. If the answer is no, the error is harmless and resentencing
is not required. If the answer is yes, the reviewing court must vacate the sentence and
remand for resentencing consistent with amended section 1170(b). (Dunn, supra, 81
Cal.App.5th at pp. 409–410 & fns. 12, 13, review granted; Zabelle, supra, 80
Cal.App.5th at pp. 1113, 1114.)
Finally, a third approach is articulated in Lewis. Lewis also adopts a two-step
approach, which embraces the constitutional analysis endorsed in Dunn and Zabelle; if
the sentence is found to be constitutionally sound at this first step, Lewis then applies
Gutierrez at a second mandatory step. Lewis first asks “whether a defendant could still
lawfully be sentenced to an upper term under federal and state law. This requires [the
court] to conclude that the jury would have found at least one aggravating circumstance
true beyond a reasonable doubt. (See Sandoval, supra, 41 Cal.4th at pp. 838–839;
Zabelle, supra, 80 Cal.App.5th at pp. 1111–1112.) If the answer to that question is no,
then the sentence is invalid and must be vacated, and the matter remanded for
resentencing. (See Sandoval, supra, at pp. 838–839; Zabelle, supra, at pp. 1111–1112.)
But if the answer to that question is yes, [the reviewing court] ask[s] whether the trial
court would impose the same sentence in its informed discretion under amended
section 1170, subdivision (b). To answer that question, [the reviewing court] must apply
Gutierrez and ask whether the record clearly indicates that the trial court would have
imposed the same sentence under the new law.” (Lewis, supra, 88 Cal.App.5th at
pp. 1137–1138, review granted.) In applying this test to the facts before it, Lewis

29.
ultimately concluded none of the aggravating circumstances relied on to impose the upper
term sentences were found in conformity with Sixth Amendment principles or passed
scrutiny under the Chapman harmless error test as articulated in Sandoval; thus, the upper
term sentence was legally invalid and resentencing was required. (Lewis, supra, at
pp. 1138–1139.)
E. Applicability of Any Harmless Error Analysis
Turning back to the parties’ arguments in this case and the question of whether
any of these approaches should be applied here, defendant maintains the aggravating-
circumstance findings relied on to impose upper term sentences do not comport with the
requirements of amended section 1170(b); and, in any event, amended section 1170(b)
altered the trial court’s discretion to impose an upper term such that the clearly indicated
test applies and mandates resentencing.
The People contend that all of the circumstances relied on to impose upper term
sentences were found in conformity with the Sixth Amendment and amended
section 1170(b); but if not, the People argue, the harmless error analysis adopted in Dunn
and Zabelle should be applied, any error should be found harmless, and resentencing
should not be permitted.
To determine whether the aggravating circumstances here were found in
compliance with federal and state law and what analysis governs the need for
resentencing, we first consider the various approaches outlined above. Regardless of the
variance in the tests articulated by the decisions summarized, two questions have
emerged as the relevant inquiry to determine whether upper term sentences imposed
under section 1170, former subdivision (b) require resentencing under section 1170(b) as
amended by Senate Bill 567. First, in light of the aggravating circumstances relied on to
originally impose an upper term sentence, the question is whether the upper term still
could be legally imposed under state and federal law. The second relevant question, as
articulated in Lopez, Dunn, Wandrey, Zabelle, Ross, Butler and Lewis, involves an

30.
evaluation of whether a trial court would impose an upper term sentence under the new
law. (Lewis, supra, 88 Cal.App.5th at pp. 1137–1138, review granted.)
While we agree generally with this basic two-step framework, we are unpersuaded
that any harmless error approach, applied at either step of the inquiry, can adequately
indicate that resentencing is unnecessary upon retroactive application of amended
section 1170(b). Rather, like Lewis, we conclude resentencing is unwarranted in
retroactive cases only when the upper term remains legal under state and federal law at
the first step; and, if so, pursuant to Gutierrez at a mandatory second step, the record
clearly indicates the trial court would impose the upper term had it known the middle
term was the presumptive maximum sentence. (Lewis, supra, 88 Cal.App.5th at
pp. 1137–1138, review granted.)

1. Concerns Regarding the Harmless Error Analysis Employed at
the First Step
a. Concerns Regarding the Lopez Line of Cases
As an initial matter, we are unpersuaded by the Lopez line of cases regarding the
constitutional issue and how those courts apply the Chapman harmless error test to
determine the need for resentencing at the first step. As to the Sixth Amendment jury
trial right, Black II highlighted the importance of recognizing “that, under the line of high
court decisions beginning with Apprendi, supra, 530 U.S. 466, and culminating in
Cunningham, supra, 549 U.S. 270, 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’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a
defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone
(Cunningham, supra, 549 U.S. at p.[ 281.])” (Black II, supra, 41 Cal.4th at p. 812.)
As explained above, unlike the former version of the statute, amended
section 1170(b) now provides that the sentencing court “shall … order imposition of a
sentence not to exceed the middle term,” except when, and “only when[,] there are

31.
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term .…” (Id., (b)(1), (b)(2).) The constitutional
question under the amended statute is what aggravating-circumstance findings are legally
essential to increase the sentence beyond this new middle term statutory maximum:
(1) all of those relied on to find exceeding the middle term justified; or (2) only one
circumstance because the trial court could have legally imposed the upper term based on
one circumstance properly found or established and thus making a defendant eligible for
an upper term based on that single fact. (Black II, supra, 41 Cal.4th at p. 813 [“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 Constitution permits the trial
court to rely upon any number of aggravating circumstances in exercising its discretion to
select the appropriate term … regardless of whether the facts underlying those
circumstances have been found to be true by a jury”].)
Lopez subjected all aggravating-circumstance findings to the harmless error
analysis under Chapman (as that prejudice test was adapted in Sandoval), suggesting it
had concluded all were legally essential to the imposition of the upper term, but the court
never engaged in a constitutional analysis of the amended statute, nor did it expressly
hold that all aggravating circumstances relied on by the trial court constitute facts that are
legally essential to the imposition of the upper term for Sixth Amendment purposes.
Lopez also did not explain why Black II’s reasoning regarding eligibility for an upper
term sentence was inapplicable to the new sentencing framework, especially in light of
Lopez’s recognition that “unquestionably the trial court may still rely on any single
permissible aggravating factor to select an upper term sentence under the newly revised
triad system.” (Lopez, supra, 78 Cal.App.5th at p. 467.) In the absence of any specific
constitutional analysis of amended section 1170(b) in Lopez—or in Ross or Butler—and
because neither party here asserts the Lopez line of cases is correct in its application of
the Sixth Amendment to the amended statute, we are presently disinclined to adopt these

32.
courts’ apparent conclusions on the constitutional issue—i.e., that every single
aggravating circumstance relied on by the court to impose the upper term is legally
essential to increase the punishment above the middle term.
Additionally, Lopez, Ross and Butler each hold that if any of the aggravating-
circumstance findings cannot pass the Chapman test in the first step of the analysis, a
second prejudice test is necessary under Watson. (Lopez, supra, 78 Cal.App.5th at p. 467,
fn. 11; Ross, supra, 86 Cal.App.5th at pp. 1354–1355, review granted; Butler, supra, 89
Cal.App.5th at pp. 960–962, review granted.) Logically, however, if all aggravating
circumstances relied on are legally essential to increase the punishment beyond the
middle term, as these cases appear to hold, then every single one of those aggravating
circumstances must be found or established in a manner that comports with Sixth
Amendment principles or, alternatively, passes muster under the Chapman harmless error
test. If any facts improperly found cannot survive the Chapman/Sandoval harmless error
test, then the upper term sentence prejudicially violates the defendant’s Sixth Amendment
right to a jury trial, and a second prejudice test under Watson is moot—resentencing is
required based on the first step of the analysis.
Thus, even if we agreed with the Lopez line of cases as to which facts are legally
essential to increase the punishment beyond the middle term for purposes of the Sixth
Amendment, we cannot concur with the conclusions these cases draw upon application of
this harmless error analysis. At best, Lopez’s first step is dispositive only of whether
resentencing is mandatory because the sentence is unconstitutional—it cannot establish
that resentencing is unwarranted. As we will explain, even if an upper term sentence
does not violate the Sixth Amendment, that conclusion indicates nothing about whether a
court would impose an upper term again under the newly revised DSL in view of the new
presumptive middle term maximum.

33.
b. Concerns Regarding the Dunn Line of Cases
Similar complications arise under the test articulated in Dunn and Zabelle. Even
to the degree we are persuaded by their Sixth Amendment approach under amended
section 1170(b), we question their adaptation of the Watson harmless error test as a
dispositive means to measure the need for resentencing. The harmless error test under
Watson asks whether “it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.” (Watson, supra, 46
Cal.2d at p. 836.) Once the error is isolated by considering the reasonable probability of
a more favorable result in its absence, the effect of that error on the outcome can be
meaningfully measured. As the Watson test is adapted by the Dunn line of cases at the
first step, however, the question asked is not the reasonable probability of a more
favorable result to the appealing party in the absence of the error, it is the reasonable
probability the aggravating circumstances would not have been found true by a jury
beyond a reasonable doubt.9 Yet, the state law error at issue is not simply that an
aggravating circumstance was not presented to a jury and found true—many potential
aggravating circumstances (beyond stipulations by the defendant or prior convictions) are
not considered by a jury and found true. Rather, in finding upward departure from the
presumptive rule is justified, it is the trial court’s reliance on aggravating circumstances
not found true beyond a reasonable doubt, stipulated to by the defendant, or properly
established under section 1170(b)(3) that is error under the amended statute.
Moreover, a jury finding on any specific aggravating circumstance is not the
ultimate outcome at issue as it is in the Sixth Amendment context—the ultimate outcome
for state law purposes is the trial court’s determination that exceeding the middle term is
justified and imposing the increased sentence. Under this adapted Watson harmless error

9 The phrasing of a reasonable probability of what a jury would not find true perhaps
requires some mental gymnastics, but that is an adapted description of a result more favorable to
the defendant as to the aggravated-circumstance finding itself.

34.
test, when there is no reasonable probability that a circumstance would not have been
found true beyond a reasonable doubt, the trial court’s impermissible reliance on that
circumstance is transformed into a nonerror under the Dunn and Zabelle test. The
reasonable probability a trial court would impose a lesser sentence in the absence of that
impermissible reliance is never calculated. The additional reasonable probability test
applied at the second step also treats the trial court’s impermissible reliance on that
circumstance as proper. As a result, neither step of this analysis measures how the
ultimate outcome is affected by the trial court’s erroneous reliance on such
circumstances—i.e., both analyses are conducted without calculating the reasonable
probabilities a lesser sentence would be imposed in the absence of the error.
Traditionally, when reviewing courts examine improperly considered sentencing
factors under the Watson harmless error analysis, the question posed is whether, in the
absence of the improperly considered sentencing factor(s), there is a reasonable
probability of a more favorable outcome for the appealing party—i.e., the imposition of a
lesser sentence. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos).) Courts do
not first calculate the reasonable probabilities that what made the factor impermissible
would not be cured under alternative circumstances, such as a more fully developed
record or hypothetical evidence that might be presented to a jury. The adapted Watson
analysis in the retroactive application context also tends to work an unfairness: it tests
reasonable probabilities about jury findings regarding facts to which defendant never
knew a jury trial right attached or had an informed opportunity to dispute or offer
evidence concerning. While this is a concern in the Sixth Amendment harmless error
context (Sandoval, supra, 41 Cal.4th at p. 839), it is more pronounced in a state law
harmless error analysis because Watson is a less stringent standard than Chapman.
In practical effect, this adaptation of Watson sweeps away the statutory
requirements necessary to invoke the trial court’s discretion to impose a sentence
exceeding the middle term. This is particularly true as to reliance on aggravating

35.
circumstances involving prior convictions. Under the Dunn analysis, reliance on
recitations in a probation report, for example, in lieu of legally required proof of prior
convictions under section 1170(b)(3) may be excused under the harmless error test based
on a presumption that this information could be easily and readily provable by certified
records. It could also be used to make assumptions about what a jury would find true
based on the existence of hypothetical extra-record information that might be admitted.
Not only does this type of harmless error test support speculation and broad assumptions
about what extra-record evidence might show, it indicates the trial court’s improper
reliance solely on a probation report to determine prior convictions or related facts will
always be harmless and nullifies the statutory requirements. In other words, a trial court
will never be required to rely on certified records in considering prior convictions, nor
will a jury ever have to determine the truth of prior convictions, when the failure to
properly establish or prove prior convictions is not assessed as an error under the Watson
test because there is a probation report to rely upon. Had the Legislature deemed
probation reports sufficient to establish prior convictions, it would not have eliminated
their use, as permitted under the prior version of the statute, and required certified records
under section 1170(b)(3).
Moreover, it is unclear whether any type of state law harmless error analysis
should apply in cases where not a single aggravating-circumstance finding properly
complies with the statutory requirements—for example, where all aggravating
circumstances relied on to impose the upper term involve prior convictions that are not
based on certified records of conviction as required under section 1170(b)(3).10 The
circumstances presented in such a situation are analogous to an unauthorized sentence

10 For purpose of this example, we presume prior conviction findings made from a
probation report would remain constitutionally sound. (See People v. Towne (2008) 44 Cal.4th
63, 76, 82 (Towne) [10 prior convictions found from a probation report used to support
aggravating circumstance that prior convictions were numerous].)

36.
imposed under section 667.6, subdivision (c). Under that statute, the sentencing court
may, in its discretion, impose a full, separate and consecutive term sentence in lieu of the
sentence provided under section 1170.1 for each violation of an offense specified in
section 667.6, subdivision (e), if the crimes involve the same victim on the same
occasion. (§ 667.6, subd. (c).)
In that context, the trial court exceeds its legal authority to impose a full, separate
consecutive sentence under section 667.6, subdivision (c), if all of the necessary
prerequisites for such a discretionary choice are not met. (See People v. Goodliffe (2009)
177 Cal.App.4th 723, 726, 732 [vacating as unlawful trial court’s discretionary election to
impose fully consecutive sentence under § 667.6, subd. (c), because the requirements for
that sentencing choice were not satisfied]; see also People v. Maharaj (2012) 204
Cal.App.4th 641, 650 [finding fully consecutive sentences were not unauthorized because
although § 667.6, subd. (c) requirements were not met, the requirements of § 667.6,
subd. (d) were and that statute mandated fully consecutive sentences].) Because
section 1170(b)(1) now precludes the imposition of a term exceeding the middle term
except when, and “only when” (id., (b)(2), specific prerequisites are met, an upper term
sentence imposed in the absence of any essential prerequisites is arguably an
unauthorized sentence to which a harmless error analysis does not apply. (See In re
Birdwell (1996) 50 Cal.App.4th 926, 930 [“An unauthorized sentence is just that. It is
not subject to a harmless error.”]; see also People v. Cabrera (2018) 21 Cal.App.5th 470,
478 [harmless error doctrine does not apply to an unauthorized sentence].) We are
skeptical that an upper term sentence imposed without a single properly established
aggravating circumstance necessary to invoke any discretion to impose an upper term can
be deemed a harmless sentencing error, and we question whether an adapted Watson
harmless error test adequately addresses whether an upper term sentence could be
lawfully imposed under amended section 1170(b) in such a circumstance.

37.
c. Neither Dunn Nor Lopez Line of Cases Account For
Altered Scope of Sentencing Discretion or Gutierrez
Yet even if we set these concerns aside, the Dunn and Zabelle harmless error
analysis suffers the same fatal deficiency as that of the Lopez line of cases: it does not
adequately assess whether the upper term imposed under the former statute would be
imposed again under the amended statute. Amended section 1170(b) significantly revised
the triad system that had been in place under the former version of the DSL. The newly
amended DSL imposes a presumptive middle term maximum sentence the trial court has
no discretion to exceed without the existence of aggravating circumstances, proven or
established in a particular manner, which justify exceeding the middle term. This change
in the law had a crucial limiting effect on the trial court’s discretion to impose an upper
term sentence. As upper term sentences imposed under section 1170, former
subdivision (b), were not made under the lens of this new presumptive middle term
maximum sentence, such sentencing decisions were not made in the exercise of informed
discretion under amended section 1170(b) as required. (Gutierrez, supra, 58 Cal.4th at
pp. 1382, 1391 [a change in mandatory sentencing presumption alters the sentencing
court’s discretion and the need for resentencing is ascertained under the clearly indicated
test].)
We share Lewis’s view that none of the various harmless error approaches
adequately account for the altered scope of the trial court’s discretion to impose an upper
term, nor do they give effect to our Supreme Court’s decision in Gutierrez. (Lewis,
supra, 88 Cal.App.5th at p. 1134, review granted [“In our view, the problem with these
cases is that they do not properly account for our Supreme Court’s decision in
[Gutierrez].”].) No harmless error analysis may rightly preclude the need for
resentencing at the first or the second step. Rather, to properly conclude that
resentencing is unwarranted upon retroactive application of amended section 1170(b), an

38.
upper term sentence must remain legal under federal and state law; and it must pass
Gutierrez’s clearly indicated test.
To explain this conclusion and our critique of the harmless error approach in this
regard, we must return to section 1170(b). When we examine the statute’s language,
particularly in light of our high court’s reasoning in Gutierrez, it compels the conclusion
that the presumptive middle term maximum sentence provided in section 1170(b)(1)
meaningfully alters the scope of the trial court’s discretion to impose an upper term
sentence because it places weight on the scale in favor of the middle term that was not
present under the prior version of the statute. In our estimation, any interpretation of the
statute that does not give effect to section 1170(b)(1)’s proscription on exceeding the
middle term is unreasonable and cannot be squared with Gutierrez’s discussion regarding
the effect sentencing presumptions have on the scope of the trial court’s discretion.
2. Amended Section 1170(b) Narrows Sentencing Discretion That
Is Not Accounted For By Any Harmless Error Analysis
“The proper interpretation of a statute is a question of law we review de novo.”
(People v. Lewis (2021) 11 Cal.5th 952, 961.) In cases involving statutory interpretation,
our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s
purpose, and courts begin by examining the statute’s words, giving them a plain and
commonsense meaning. (Ibid.) “‘“[W]e look to ‘the entire substance of the statute … in
order to determine the scope and purpose of the provision .… [Citation.]’ [Citation.]
That is, we construe the words in question “‘in context, keeping in mind the nature and
obvious purpose of the statute .…” [Citation.]’ [Citation.] We must harmonize ‘the
various parts of a statutory enactment … by considering the particular clause or section in
the context of the statutory framework as a whole.’”’” (Ibid.)
We begin our statutory analysis by recognizing again how significantly Senate
Bill 567 revised the existing determinate sentencing scheme under the DSL. Under the
former version of section 1170(b), when a statute specified three possible terms, the

39.
choice of the appropriate term (lower, middle or upper) rested “within the sound
discretion of the court.” (§ 1170, former subd. (b).) The trial court was permitted to find
all facts in aggravation and could make these findings based on a wide array of
documents and evidence, including probation reports, and could select the term that “best
serve[d] the interests of justice.” (Ibid.) There were no statutory sentencing preferences
among the three terms, and there were no proof requirements for aggravating
circumstances relied upon to impose any particular term of imprisonment. (Ibid.)
Senate Bill 567 meaningfully altered this framework by amending section 1170(b)
and adding newly enumerated section 1170(b)(1), which states, “When a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, 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).” Section 1170(b)(1) supplies the
court with full discretion to select either the lower or the middle term, but it plainly and
expressly commands the court “not to exceed” the middle term. This prohibition is new,
and it is sea change from section 1170, former subdivision (b), which allowed the court
full discretion to select an upper term so long as it served the best interests of justice.
This new sentencing presumption circumscribes the sentencing court’s discretion to
impose an upper term because the statute now states a preference for a term of
imprisonment not exceeding the middle term. (Gutierrez, supra, 58 Cal.4th at p. 1382 [a
statutory preference in favor of a particular sentence circumscribes a trial court’s
discretion].)
Also newly added, section 1170(b)(2) states, in relevant part, “The court may
impose a sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, 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.…”

40.
This exception is fully consistent with section 1170(b)(1)’s presumptive rule.
Section 1170(b)(1)’s proscription from exceeding the middle term is not followed in
section 1170(b)(2) by a discretionary option to select an upper term sentence if, in the
court’s discretion, such a sentence is warranted due to aggravating circumstances. The
exception is not framed electively with an unless or an or option, but as an exception that
may occur “only when” aggravating circumstances “justify” it. (Ibid.) This wording
reflects that a court may not simply select an upper term because it appears justified by
aggravating circumstances; rather, it is that a court, bound not to exceed the middle term,
may conclude this presumptive rule is overcome “only when” (ibid.) there are
aggravating circumstances to justify upward departure from it. In distinct contrast with
the former sentencing scheme, the court’s decision to impose an upper term is now
expressly framed around whether circumstances justify departing from the rule that the
middle term is the default maximum sentence.
This is further reflected by section 1170(b)(2)’s phrasing. Section 1170(b)(2)
allows the court to “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 .…” The word “justify” is followed by
repetition of the phrase “the imposition of a term of imprisonment exceeding the middle”
(ibid.) that tracks the wording of section 1170(b)(1)’s presumptive rule that a trial court
“order imposition of a sentence not to exceed the middle term .…” This language choice
emphasizes there must be circumstances that not only justify an upper term sentence, but
that justify upward departure from the presumptive rule. Thus, when a court weighs
aggravating circumstances under the revised statutory scheme, it does so under the
weight of a new statutory preference in favor of “a sentence not to exceed the middle
term,” and the trial court’s discretion to impose an upper term is circumscribed to that
extent. (Ibid.)

41.
Any contrary interpretation that fails to recognize how this presumption affects the
trial court’s discretion to impose an upper term under section 1170(b)(2) is unreasonable.
This is so because such an interpretation would require recasting the plain language of
section 1170(b)(1)’s presumptive preference into an equally free discretionary choice
between the upper and middle terms so long as properly proven aggravating
circumstances exist. This effectively excises section 1170(b)(1) from the statute and
functionally allows the court the same discretion to select any of the three terms as under
the prior version of the statute. Interpreting section 1170(b)(1) in such a manner subverts
longstanding statutory construction rules, which demand that we “take ‘the language …
as it was passed into law, and [we] must, if possible without doing violence to the
language and spirit of the law, interpret it so as to harmonize and give effect to all its
provisions.’” (People v. Valencia (2017) 3 Cal.5th 347, 409–410.) We cannot
interpretively refashion section 1170(b)(1) out of existence: if section 1170(b)(1)’s clear
presumptive preference has no effect on how the trial court exercises its discretion to
depart from that rule under section 1170(b)(2), then section 1170(b)(1) serves no purpose
except to implicate the Sixth Amendment. (People v. Fontenot (2019) 8 Cal.5th 57, 73
[“whenever reasonably possible, courts avoid reading statutes in a way that renders
‘meaningless’ language the Legislature has chosen to enact”].)
To that end, there was no need for the Legislature to include section 1170(b)(1)
merely to trigger Sixth Amendment protections with respect to aggravating-circumstance
findings and incorporate them into the statute. The Legislature could have retained the
post-2007 sentencing structure allowing the trial court to select any of the three terms in
its discretion, and simply required the circumstances supporting an upper term be proven
to the standards articulated in Senate Bill 567. Instead, it chose to expressly bind a
sentencing court to a middle-term maximum sentence to be exceeded “only when”
aggravating circumstances justify upward departure from that presumptive rule.
(§ 1170(b)(2).) This comports with Senate Bill 567’s author’s comments, incorporated

42.
into a subsequent bill analysis, reflecting strong concerns about the counterproductive
effects of long sentences and the need to ensure that the harshest sentences receive not
only the greatest scrutiny but also the greatest justification before they are imposed.
(Assem. Floor Analysis, 3d reading analysis of Sen. Bill 567, as amended July 1, 2021,
p. 2; see In re Jennings, supra, 34 Cal.4th at p. 264 [considering author’s comments that
were incorporated into the bill’s subsequent analysis with no contrary statements of intent
in the legislative history].)

a. Gutierrez Confirms Statutory Interpretation
Section 1170(b)(1)’s clear presumptive sentencing preference meaningfully
circumscribes the trial court’s discretion to impose an upper term under
section 1170(b)(2), and we find no other reasonable interpretation. While the statute’s
plain language compels this conclusion, our high court’s decision in Gutierrez confirms
it. Gutierrez addressed a presumption that is squarely analogous to section 1170(b)(1)
and explained how such a sentencing preference circumscribes the trial court’s discretion.
There, in light of Miller v. Alabama (2012) 567 U.S. 460 (Miller), the court examined a
judicially construed presumption under section 190.5, subdivision (b), that favored a
sentence of life without parole (LWOP) for 16- to 17-year-old juvenile offenders
convicted of special circumstance murder. (Gutierrez, supra, 58 Cal.4th at pp. 1360–
1361.) In disapproving this presumption, the court explained that although a rule in favor
of LWOP did not eliminate a trial court’s discretion to make an individualized sentencing
decision required under Miller, the presumption expressed a preference for LWOP and
circumscribed the trial court’s discretion to that extent. (Gutierrez, supra, at pp. 1381–
1382.)
The court reasoned, “[i]t is one thing to say that a court, confronting two
permissible sentencing options, may impose the harsher sentence if it finds that sentence
justified by the circumstances. It is quite another to say that a court, bound by a

43.
presumption in favor of the harsher sentence, must impose that sentence unless it finds
good reasons not to do so.” (Gutierrez, supra, 58 Cal.4th at p. 1382.) Because of the
presumption’s effect on the trial court’s discretion to select the lesser sentence, its
imputation would create a serious constitutional question under Miller, and our high court
declined to interpret section 190.5, subdivision (b), to include it. (Gutierrez, supra, at
p. 1382 [given Miller’s conception of a proper individualized sentencing inquiry, a
“serious constitutional concern would arise” if § 190.5, subd. (b) were interpreted to
include a rule circumscribing the court’s discretion by presuming in the first instance
LWOP is the appropriate sentence for special circumstance murder committed by 16- or
17-year-old juvenile].)
The court ultimately concluded that LWOP sentences imposed in this context
while the presumption was legally in effect could not reflect an exercise of the sentencing
court’s informed discretion. (Gutierrez, supra, 58 Cal.4th at pp. 1390–1391.) The
necessary remedy was to remand for resentencing unless the record clearly indicated the
trial court would have reached the same conclusion even if it had been aware of the scope
of its discretion. (Id. at p. 1391.)
The reasoning in Gutierrez applies with equal force to amended
section 1170(b)(1)’s presumptive middle term maximum that can be exceeded only when
aggravating circumstances justify doing so. Newly amended section 1170(b)(1) and
section 1170(b)(2) state an explicit preference for a middle term maximum sentence that
was merely inferable about LWOP from the language of section 190.5, subdivision (b).
These two subdivisions of section 1170(b) circumscribe the court’s discretion by creating
an express rule that, in the first instance, the middle term is the maximum appropriate
sentence just as the interpreted rule in favor of the harsher sentence in Gutierrez limited
the trial court’s discretion by presuming, in the first instance, LWOP was the appropriate
sentence. (Gutierrez, supra, 58 Cal.4th at p. 1382.) Both presumptions place weight on

44.
the scale in the direction of the sentence they favor before any surrounding circumstances
are even considered.
The discretionary limitation means any weighing of aggravating circumstances
must occur under the weight of the new rule favoring the middle term as the maximum
sentence. For example, suppose a trial court imposed an upper term sentence based on
one aggravating circumstance of prior convictions. If that circumstance was deemed
properly considered under Apprendi and under the new state law requirements, a
sentencing court might very well yet conclude under the new sentencing scheme that the
exception for exceeding the now presumptive middle term maximum is not justified by
that single aggravating circumstance. (See Gutierrez, supra, 58 Cal.4th at p. 1382
[“When the choice between two sentences must be made by weighing intangible factors,
a presumption in favor of one sentence can be decisive in many cases.”].)
For this reason, any prejudice analysis applied to the aggravating circumstances
originally considered at best addresses only whether the upper term could be legally
imposed under the new law. Even if all of the aggravating circumstances could be
deemed permissibly considered, we are still left with the question of whether a sentencing
court would impose an upper term under the newly altered sentencing framework.
(Gutierrez, supra, 58 Cal.4th at pp. 1367, 1391 [sentencing court’s statement that it had
“‘thought long and hard about what punishment is appropriate’” and was “‘absolutely
convinced’” that LWOP was the “‘only thing that the Court can do that could redress’”
violence inflicted in the case did not clearly indicate LWOP would again be imposed in
the absence of the judicially construed statutory preference for LWOP].)
b. Conclusion: No Harmless Error Analysis May
Dispositively Preclude Resentencing at the First Step
In light of this new presumptive maximum middle term, neither the Dunn nor the
Lopez line of cases explain how proper consideration (let alone harmless consideration)
of one or all of the aggravating circumstances under the new law reflects a sentencing

45.
decision made in the exercise of informed discretion or how it ensures a defendant has
had a fair opportunity to obtain the ameliorative benefit of the law. All defendants are
entitled to the former (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8), and
defendants whose judgments of conviction are not final for purposes under In re Estrada
(1965) 63 Cal.2d 740, 745, are entitled to the latter (People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 307). Neither the Dunn nor the Lopez line of cases give any effect
to section 1170(b)(1); rather, they focus solely on section 1170(b)(2) and the procedural
requirements for proving aggravating factors. (Dunn, supra, 81 Cal.App.5th at pp. 407–
410, review granted; Lopez, supra, 78 Cal.App.5th at pp. 467–469.)
At best, all that can be ascertained at any of these courts’ threshold step is whether
a court could legally impose an upper term sentence under the new law given the
circumstances considered, not that it would do so in the exercise of its informed
discretion in the first instance. (See Lewis, supra, 88 Cal.App.5th at pp. 1136–1137,
review granted [neither step under Lopez answers whether the trial court would have
imposed an upper term under amended § 1170(b)’s new presumption in favor a of a
middle term maximum sentence].)
While a harmless error test is appropriate for Sixth Amendment purposes, it is not
conclusive of whether resentencing is required in light of amended section 1170(b)(1)’s
sentencing presumption. That requires a necessary second step assessed under Gutierrez.
Moreover, the adapted Watson harmless error test does not appear to meaningfully
measure the effect of any error on the outcome, nor does the test adequately account for
section 1170(b)(1)’s new middle term maximum presumption or our high court’s
decision in Gutierrez. We are also concerned that Watson’s adaptation and application in
this retroactive context eviscerates amended section 1170(b)’s new proof requirements,
and could be applied inappropriately to find harmless what is actually an unauthorized
sentence. We conclude that the adapted Watson test serves no meaningful purpose in
assessing whether an upper term could be legally imposed under amended

46.
section 1170(b) or, as discussed below, whether such a sentence would be legally
imposed again under the amended statute.
3. No Harmless Error Analysis Should Be Applied at the Second
Step
Moving to the second step of the analysis, when not all of the aggravating
circumstances relied on at the original sentencing hearing were properly or harmlessly
considered under the new law, courts such as Lopez and Dunn invoke a second harmless
error analysis to ascertain whether there is a reasonable probability the sentencing court
would have imposed a lesser term had it not considered the improper circumstances. For
the same reasons articulated above, we join the Lewis majority opinion and respectfully
depart from Lopez and Dunn and their adaptation of Watson to guide this inquiry at the
second step.
The harmless error test under Watson has indeed been applied in cases where a
sentencing court considered improper sentencing factors. (See People v. Price (1991) 1
Cal.4th 324, 492 (Price); see also Avalos, supra, 37 Cal.3d at p. 233 [improper dual use
of facts].) But, in those cases, the underlying sentencing scheme had not changed in the
interim. The sentencing court revealed its sentencing choice under a particular
sentencing scheme, and the reviewing court decided whether there was a reasonable
probability the court’s lawful exercise of its discretion on remand would lead it to make a
different choice under the same sentencing framework.11
While improperly considered sentencing factors may be involved in retroactive
application of amended section 1170(b), that is not the only concern. As explained
above, the new sentencing scheme has meaningfully altered the scope of the trial court’s

11 Even this application of Watson in Avalos came with a caveat: because the pre-2007
DSL contained a presumptive middle term sentence coupled with the requirement that
aggravating circumstances must outweigh mitigating circumstances before imposition of the
upper term was proper, reviewing courts were also required to reverse when it could not be
determined whether the improper factor was determinative for the sentencing court in weighing
the circumstances and imposing an upper term. (Avalos, supra, 37 Cal.3d at p. 233.)

47.
discretion with the new presumption. When a trial court is unaware of the full scope of
its sentencing discretion because, for example, legal presumptions have shifted
(Gutierrez, supra, 58 Cal.4th at p. 1391) or different discretionary sentencing choices
exist, “an application of the ‘reasonable probability’ standard [under Watson] requires the
reviewing court to decide what choice the trial court is likely to make in the first instance,
not whether the court is likely to repeat a choice it already made.” (People v. McDaniels
(2018) 22 Cal.App.5th 420, 426.)
Different from cases such as Price and Avalos, where the primary issue involved
in application of Watson was improperly considered sentencing factors under an
unchanged sentencing scheme, determining what sentencing choice a trial court would
make in the first instance pursuant to amended section 1170(b) becomes a far more
speculative proposition under a harmless error test. Trying to assess probabilities under
Watson in the context of amended section 1170(b) effectively recasts the reviewing court
into the role of sentencing court, weighing for the first time whether particular
aggravating circumstances justify exceeding the presumptive maximum middle term.
Prognosticating this way carries the risk of denying a defendant one of the primary
ameliorative benefits of the new law that contributes to its retroactive application in the
first place, effectively thwarting the Legislature.
To avoid unnecessary speculation about what a sentencing court would do in the
exercise of its informed discretion in the first instance under amended section 1170(b),
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.’” (Gutierrez, supra, 58 Cal.4th at p. 1391.)
In sum, whether resentencing of an upper term sentence is the appropriate remedy
on retroactive application of amended section 1170(b) involves two relevant questions.
(Lewis, supra, 88 Cal.App.5th at p. 1137, review granted.) The first is whether, given the
aggravating circumstances considered, the upper term sentence could still be legally

48.
imposed under federal and state law. (Ibid.) The answer to that question lies in the
application of Apprendi and the new state law requirements under amended
section 1170(b). But even if an upper term sentence could still be legally imposed given
the set of aggravating circumstances relied upon at this step, resentencing then hinges on
whether a sentencing court would impose an upper term sentence under the new law.
(Lewis, supra, at p. 1138.) As the trial court’s discretion to impose an upper term
sentence has been circumscribed under the new sentencing framework, that inquiry must
be made under Gutierrez. (Lewis, supra, at p. 1138.) Under this analytical structure, we
examine the trial court’s imposition of upper term sentences upon retroactive application
of amended section 1170(b).
F. Remand For Resentencing Is Warranted
Records of defendant’s prior convictions, which include a certified California Law
Enforcement Telecommunications System (CLETS) report and certified docket reports
from the California Justice Information Services (CJIS), show a prior felony conviction
on June 22, 2012, for reckless driving while fleeing from police (Veh. Code, § 2800.2)
and a felony conviction on October 6, 2016, for driving under the influence (DUI) of
alcohol within 10 years of another DUI conviction (Id., §§ 23152, subd. (a), 23550,
subd. (a).) These records were admitted at trial in connection with count 6—felon in
possession of a firearm. To convict defendant on this charge, the jury was required to
find true that defendant suffered at least one prior felony conviction. (CALCRIM
No. 2510 [previous conviction of a felony a necessary element under Pen. Code, § 29800,
subd. (a)(1)].) The jury made no specific findings as to which (or both) of these
convictions it found true in rendering its guilty verdict on count 6, but, as defendant was
convicted, the jury necessarily found the fact of one of these prior convictions true
beyond a reasonable doubt. Other than these records, a probation report was submitted to
the trial court in conjunction with sentencing.

49.
From these records, the trial court imposed upper term sentences on counts 2, 3, 5,
and 6 based on the following aggravated-circumstance findings: defendant had
“numerous” prior convictions (Cal. Rules of Court, rule 4.421(b)(2)), he had served a
prior prison term imposed under section 1170, subdivision (h) (Cal. Rules of Court,
rule 4.421(b)(3)), and defendant had performed unsatisfactorily on misdemeanor
probation and state parole (id., (b)(5)).
1. Whether the Upper Term Sentences Could Be Legally Imposed
We begin with whether the upper term sentences remain lawful under amended
section 1170(b).12 Defendant first argues that while a trial court may consider his prior
convictions under section 1170(b)(3), certified records were not submitted to substantiate
this aggravating circumstance. The People maintain certified records were admitted at
trial showing that defendant’s prior convictions as an adult were numerous.
Defendant does not articulate an argument that the certified CLETS report and
certified CJIS docket reports do not qualify as certified records of conviction under
section 1170(b)(3), and thus we do not reach that issue. Assuming these admitted records
qualify as certified records of conviction, they contain evidence of only two prior
convictions: one in 2012 for reckless driving while fleeing from police and one in 2016
for a DUI within 10 years of another DUI conviction. Of these two prior convictions, one
was necessarily found true by the jury in connection with the conviction on count 6 (felon
in possession of a firearm) and constituted an element of that crime; that prior conviction

12 As the requirements under state law frame how the Sixth Amendment applies, and
because amended section 1170(b) now effectively incorporates Sixth Amendment principles, it is
likely better to consider state law viability before moving to the constitutional analysis—this is
particularly true if, as we have questioned, the lack of any properly proven or established
aggravating circumstances signals an unauthorized sentence under state law. If a circumstance is
properly established under the amended law, it almost certainly satisfies Sixth Amendment
principles. And, if there are no properly proven circumstances, and this constitutes an
unauthorized sentence under state law, then there is no need to consider the constitutional
question because resentencing would be required.

50.
could not be used again as a fact to aggravate the sentence on count 6. (Cal. Rules of
Court, rule 4.421(h) [“A fact that is an element of the crime on which punishment is
being imposed may not be used to impose a particular term.”].) At best, only two prior
convictions were properly established and considered by the court under
section 1170(b)(3), but only one of those could be considered to aggravate the term on
count 6. The probation report indicates defendant had other prior convictions beside
these two felonies, but a probation report is not a certified record. (Dunn, supra, 81
Cal.App.5th at p. 403, review granted.) We are unaware of any published authority
holding one or two prior convictions qualify as “numerous” for purposes of California
Rules of Court, rule 4.421(b)(2). (Cf. People v. Searle (1989) 213 Cal.App.3d 1091,
1098 [three prior DUI convictions are “‘numerous’”].)
Similarly, the aggravated circumstance of defendant’s unsatisfactory performance
on probation and parole was not found true by a jury beyond a reasonable doubt or
stipulated to by defendant. Even assuming, arguendo, this tangential fact comes within
the scope of the prior conviction exception outlined in section 1170(b)(3), certified
records do not establish that defendant’s performance on probation or parole was
unsatisfactory. The certified records show only the 2012 and 2016 convictions
themselves. All that can be gleaned from these records is that the three-year probation
imposed as a result of the 2012 conviction would have been completed before the 2016
conviction. Absent additional certified records, there is no factual basis to conclude
defendant performed poorly on probation.
The trial court also found that defendant had served a prior prison term under
section 1170, subdivision (h) (section 1170(h) or § 1170(h)). Certified records of
defendant’s 2016 DUI conviction show a sentence under section 1170(h) was imposed
for that offense. Defendant argues section 1170(b)(3) relates only to “prior convictions”
and this sentencing fact does not come within the limited scope of that exception.
Without discussion of the statute, the People dispute defendant’s contention by citing the

51.
California Rules of Court and People v. Flowers (2022) 81 Cal.App.5th 680 (Flowers),
review granted October 12, 2022, S276237, which summarily held that prior performance
on probation and prior prison terms were properly established by certified records and
thus appropriately considered by the trial court under section 1170(b)(3). (Flowers,
supra, at p. 685.)
There is no indication the Flowers court was presented with any argument about
whether a prior prison term imposed under section 1170(h) is a fact that fits within the
scope of section 1170(b)(3). (Flowers, supra, 81 Cal.App.5th at p. 685, review granted.)
Without an interpretation issue squarely before it, Flowers performed no statutory
analysis and merely reached a summary conclusion about section 1170(b)(3) based on
California Supreme Court cases concluding that facts about prior prison terms and
probation performance come within the constitutional exception for prior convictions.
(Flowers, supra, at p. 685.) Flowers offers no persuasive support for the People’s
position.
Nevertheless, even if the People are correct, this single aggravating circumstance
properly proven establishes only that the upper term sentence remains legally viable
under both state and federal law. Specifically, under amended section 1170(b)(2), a trial
court may still impose an upper term sentence based on one aggravating circumstance the
trial court concludes justifies upward departure from the presumptive middle term
maximum—the trial court here could have imposed upper terms on counts 2, 3, 5 and 6
based on that single circumstance. (§ 1170(b)(2), (b)(3).) Moreover, facts regarding
prior prison terms have been held not to implicate a constitutional right to a jury under
Sixth Amendment principles. (See Towne, supra, 44 Cal.4th at p. 81 [“trial court’s
conclusion that the charged offense was committed while the defendant was on probation
or parole, like a finding of a prior conviction, does not require judicial factfinding”];
Black II, supra, 41 Cal.4th at pp. 819–820 [prior conviction exception applies to the
circumstance that the defendant had served a prior prison term]; People v. Scott (2015) 61

52.
Cal.4th 363, 405 (Scott) [relying on Black II and Towne to hold that prior conviction
exception extends to facts about numerosity or seriousness of prior convictions and
performance on probation or parole].)13 Under this jurisprudence, the fact of a prior
sentence imposed under section 1170(h) was found without violating the Sixth
Amendment, and the sentence also remains constitutionally valid under federal law.
Yet, the continuing legality of the sentence indicates nothing about how the trial
court would have sentenced defendant under amended section 1170(b), and fails to
account for Gutierrez. Even if defendant’s prior sentence imposed under section 1170(h)
is a fact that falls within the scope of section 1170(b)(3), resentencing is unwarranted
only if the record clearly indicates the trial court would have imposed the upper term
sentences had it known of its more narrowed discretion to impose an upper term under
the amended statute. As discussed below, since there is no such clear indication in the
record here, resolving the parties’ dispute about the scope of section 1170(b)(3) is
unnecessary.
Finally, the People argue the probation report supports the trial court’s findings
with respect to the numerosity of defendant’s prior convictions and his performance on
probation and parole. According to the People, this allows for a conclusion that any
reliance on these improperly proven facts was harmless, and resentencing is unnecessary.
We decline to apply the adapted harmless error analysis under state law. As noted, this

13 In reaching its conclusion in Towne, our high court relied heavily on its decision in
People v. McGee (2006) 38 Cal.4th 682, and the factors Apprendi pointed to that distinguish
recidivism from other matters employed to enhance punishment. (Towne, supra, 44 Cal.4th at
pp. 79–80.) As Towne explained, it had previously rejected a narrow or literal application of the
United States Supreme Court’s reference to “‘the fact of a prior conviction’” in McGee. (Towne,
supra, at p. 79.) McGee, however, was disapproved in 2017 by our high court in People v.
Gallardo (2017) 4 Cal.5th 120, 124–125 in consideration of the United State Supreme Court’s
more recent decisions in Descamps v. United States (2013) 570 U.S. 254 and Mathis v. United
States (2016) 579 U.S. 500. Whether Gallardo’s basis for disapproving McGee undercuts the
reasoning in Towne, Black II and Scott with respect to the scope of the prior conviction exception
may be debatable.

53.
test is inadequate to measure the need for resentencing because its adaptation under
Watson is flawed, it has the practical effect of nullifying the requirements of the amended
statute and it fails to account for Gutierrez.14
2. No Clear Indication Trial Court Would Impose the Upper Term
In examining the clear indication test under Gutierrez, we note that the trial court
elected to impose an upper term sentence on each conviction on counts 2, 3, 5 and 6;
refused to strike the greater firearm enhancements under section 12022.53(d); and elected
to impose consecutive rather than concurrent sentences. Additionally, the trial court
indicated the circumstances in aggravation significantly outweighed any circumstances in
mitigation.
These facts alone, however, are insufficient to demonstrate a clear indication the
trial court would impose the upper term again under the weight of the presumptive
middle term maximum sentence, particularly when only a single aggravating
circumstance relied upon was even arguably properly considered under the amended law.
There is nothing in the sentencing record that indicates which aggravating circumstance,
if any individually, were determinative to imposition of an upper term, nor is there any
signal how heavily the trial court weighed the individual circumstances. There is simply
no clear indication in the record that, based on one aggravating circumstance that may or
may not have been particularly weighty, or even all the circumstances considered

14 With respect to the probation report as a means of proving prior convictions and related
facts, we decline to conclude the probation report could contain no mistakes or oversights under
the presumption that an official duty is presumed regularly performed, as the People urge us to
do. (See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed.”].)
We also decline the People’s invitation to speculate under a harmless error analysis whether
these circumstances could be established by extra-record evidence. Even if we believed the
harmless error analysis were an appropriate measure of the need for resentencing, we would still
decline to apply it in the manner requested. (Zabelle, supra, 80 Cal.App.5th at p. 1115, fn. 6 [“If
the record is insufficient to support a trial court’s findings about a defendant’s criminal history,
we will not presume the existence of extrarecord materials, however likely they are to exist, to
address this insufficiency.’].)

54.
together, the trial court would again find the upper terms justified in view of the
presumptive middle term maximum sentence. (See Gutierrez, supra, 58 Cal.4th at
p. 1391 [“Because the trial courts operated under a governing presumption in favor of
[LWOP], we cannot say with confidence what sentence they would have imposed absent
the presumption.”].) Through no fault of the trial court, without this clear indication, we
cannot confidently conclude no miscarriage of justice resulted from the uninformed
sentencing discretion exercised under section 1170, former subdivision (b).
G. Upper Term Sentences on Enhancements Under Section 1170.1,
Subdivision (d)(2)
We note the trial court also imposed upper terms on the enhancements found true
by the jury under section 12022.5, subdivision (a) (counts 2, 3 & 5), and section 12022.7,
subdivision (e) (counts 1, 2 & 3) based on the same aggravating circumstances as the
substantive offenses, all of which related to prior convictions. As noted, with respect to
jury findings on these aggravating circumstances, the jury was asked to consider two
prior convictions in association with count 6. As the verdict form did not require the jury
to delineate which of those convictions (or both) it found true, only one was necessarily
found true by the jury as a required element on count 6. There were no other jury
findings as to any other prior convictions or related facts.
Under Senate Bill 567, section 1170.1, subdivision (d)(1), now provides that “If an
enhancement is punishable by one of three terms, 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).” Section 1170.1, subdivision (d)(2), in turn, provides “the
court may impose a sentence exceeding the middle term only when there are
circumstances in aggravation that justify imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated 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.”

55.
The parties did not address the changes Senate Bill 567 effected with respect to the
imposition of upper terms on enhancements, and as resentencing is required, this
additional issue is moot. However, we note there is no prior conviction exception under
state law for imposing an upper term on applicable enhancements. (Compare
§ 1170(b)(3) with § 1170.1, subd. (d)(1) & (d) (2).) As amended by Senate Bill 567,
section 1170.1, subdivision (d)(1) and (d)(2) are now effective, and absent any further
relevant change in the law, they must be applied at resentencing.
II. Remaining Arguments
As the matter is being remanded for resentencing under amended section 1170(b),
defendant’s arguments under Tirado and Assembly Bill 518 are moot. The parties may
present these and all other relevant sentencing arguments, including the amendments to
section 1385 effective January 1, 2022, upon resentencing.
DISPOSITION
The judgment is affirmed, but the sentence is vacated. The matter is remanded to
the trial court for a resentencing hearing where further evidence and argument may be
received regarding the sentence to be imposed.

MEEHAN, Acting P. J.
WE CONCUR:

SNAUFFER, J.

DeSANTOS, J.

56.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9408883. Public record. Not legal advice.