The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
NORMAN THOMAS SALAZAR,
Defendant and Appellant.
S275788
Second Appellate District, Division Six
B309803
Ventura County Superior Court
2018027995
November 20, 2023
Justice Groban authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Jenkins, and Evans concurred.
PEOPLE v. SALAZAR
S275788
Opinion of the Court by Groban, J.
After Norman Salazar had been sentenced but while his
appeal was still pending, the Legislature enacted Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate
Bill 567). Though Salazar received a middle term sentence at
the time of his original sentencing, the new statute creates a
presumption that the sentencing court “shall” enter a lower
term sentence when, among other things, a “psychological,
physical, or childhood trauma” contributed to the offense. (Pen.
Code, § 1170, subd. (b)(6) & (A).)1 The sentencing court may
only depart from this lower term presumption if it finds that the
aggravating circumstances outweigh the mitigating
circumstances such that the lower term would be contrary to
“the interests of justice.” (Id., subd. (b)(6).) The parties agree
that this new legislation applies on appeal to Salazar’s nonfinal
case. (See In re Estrada (1965) 63 Cal.2d 740, 745.) The
Attorney General further concedes that the record discloses that
Salazar may have suffered a qualifying trauma, which would
appear to meet the statute’s threshold requirement for
triggering the lower term presumption. (See People v. Frahs
(2020) 9 Cal.5th 618, 638–640 (Frahs).)
In People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez),
we held that, in a case like this one, when a sentencing court
1
Undesignated statutory references are to the Penal Code.
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Opinion of the Court by Groban, J.
was not aware of the full scope of its discretionary powers at the
time the defendant was sentenced, “the appropriate remedy is
to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion
‘even if it had been aware that it had such discretion.’ ” (Id. at
p. 1391.) We granted review to determine whether the Court of
Appeal erred here by finding that the record “ ‘clearly
indicate[s]’ ” the trial court would not have imposed a lower term
sentence if it had been aware of the scope of its discretion. (Ibid.)
We find no clear indication in the record that the sentencing
court would have imposed the same sentence had it been aware
of “ ‘the scope of its discretionary powers’ ” under the current
section 1170. (Gutierrez, at p. 1391.) We therefore reverse the
judgment of the Court of Appeal and remand the case to the
Court of Appeal with instructions to remand the case to the
superior court for resentencing.
I. Background
In 2018, Salazar and M.Q. were in a dating relationship.
On August 12, 2018, after their relationship had ended, M.Q.
knocked on the door to Salazar’s motel room around 2:00 or 3:00
p.m. M.Q. testified that Salazar pulled her inside by the shirt
and punched her in the head, causing her to bleed. Within a few
minutes, he put a desk in front of the door to prevent M.Q. from
leaving.
Salazar accused M.Q. of being followed or bringing people
with her. Even though his motorcycle was in the parking lot,
Salazar repeatedly claimed M.Q. stole it and sold it to someone
who replaced it with a different bike. By 7:00 p.m., Salazar had
punched M.Q. five to ten times and sprayed her with pepper
spray five to 10 times. Around 7:00 p.m., Salazar also
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Opinion of the Court by Groban, J.
threatened to kill M.Q. Later in the evening, Salazar kicked
M.Q. between the thighs, knocking her to the ground. Salazar
ingested five lines of methamphetamine while in the motel
room.
According to M.Q., around 8:00 p.m., Salazar insisted that
she accompany him in her car to purchase more drugs. Before
leaving the motel room, Salazar broke M.Q.’s phone into two and
took keys from her purse. From about 11:00 p.m. until about
9:00 a.m. the next morning, Salazar drove M.Q.’s car while she
sat in the passenger seat. He continued to punch and spray her
with pepper spray and with glass cleaner.
M.Q. testified that at about 9:00 a.m., they returned to the
motel room. At about 10:00 a.m., Salazar drove M.Q.’s car to a
park, with M.Q. following in his truck. Once there, he became
angry that she did not park his truck correctly and bit her face,
making her bleed. Salazar then drove the two of them back to
the motel in his truck, leaving M.Q.’s car behind. They then
returned to the park a second time with M.Q. driving the truck
and Salazar driving his motorcycle. M.Q. and Salazar then both
rode to the motel on Salazar’s motorcycle, leaving the truck
behind at the park.
The two then proceeded on Salazar’s motorcycle to Chase
Bank. When they arrived at the bank, Salazar said “we’re going
to go to the ATM to pull out the $3,000 that [M.Q.] owed him”
for his motorcycle. M.Q. replied that they had to go inside
because ATMs do not give out $3,000. When they went inside,
M.Q. pulled her sunglasses up and asked a bank employee to
call the police. Police responded and arrested Salazar.
M.Q. went to the hospital for treatment. The treating
physician found that she had a fractured cheek bone, a closed
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Opinion of the Court by Groban, J.
head injury, swelling around her eye, and an injury consistent
with a bite mark on her face.
The jury acquitted Salazar of kidnapping but found him
guilty of the lesser included offense of false imprisonment by
violence or menace (§§ 236, 237, subd. (a)). The jury also found
Salazar guilty of infliction of corporal injury on a person with
whom he had a current or former dating relationship (§ 273.5,
subd. (a)). The jury acquitted Salazar of attempted robbery
(§§ 664, 211). The jury did not reach agreement on an allegation
that Salazar personally inflicted great bodily injury (§ 12022.7,
subd. (e)), and this charge was subsequently dismissed pursuant
to section 1383. Salazar admitted a prior strike (§§ 667, subds.
(c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1)).
At Salazar’s sentencing hearing in November 2020, the
court considered a probation report, a defense sentencing
memorandum, and the prosecution’s statement in aggravation.
The defense sentencing memorandum reported that Salazar’s
father was an alcoholic and strictly disciplined him. According
to Salazar, he first tried alcohol, smoked marijuana, and snorted
cocaine when he was 13. From the age of 13 to 20, he used
psychedelic drugs such as LSD frequently, sometimes daily.
Arrest records reflect that Salazar used methamphetamine.
The sentencing memorandum also indicates that Salazar
was diagnosed with paranoid schizoaffective disorder, anxiety,
and claustrophobia, his mother and sister were diagnosed with
bipolar disorder, and his father was diagnosed with paranoid
schizophrenia. In 2011, Salazar’s father passed away, and in
2013, his mother died of pancreatic cancer.
In November 2009, at the age of 36 years old, Salazar was
admitted to the Ventura County Psychiatric Unit. According to
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Opinion of the Court by Groban, J.
the intake form, Salazar stated he had tried to kill himself, he
thought his mother’s boyfriend was trying to kill him, and he
had a history of self-harm and suicidal ideations. In December
2009, at a subsequent adult services assessment, Salazar
exhibited paranoid ideation and reported hallucinations.
Salazar reported that he drank seven to eight beers daily and
occasionally used cocaine.
A Ventura County Behavior Health Client Assessment
Form, dated December 2011, states that prior records indicate
that Salazar was diagnosed with schizoaffective disorder,
depressed type, in May 2010 and had a history of paranoia and
depression since he was 10 years old. During the December
2011 client assessment, Salazar further reported that his father
was physically abusive beginning at age five. He reported visual
hallucinations since childhood. The client assessment form
states that Salazar has symptoms of posttraumatic stress
disorder (PTSD), including flashbacks of rapes/physical assaults
when in prison, as well as symptoms of attention deficit
hyperactivity disorder (ADHD) that “were likely related to
trauma in childhood.” The client assessment form concluded
that Salazar meets the criteria for schizoaffective disorder,
major depressive disorder, and dysthymic disorder.
The prosecution also filed a statement in aggravation. The
statement details Salazar’s prior criminal history, which
includes a misdemeanor conviction for assault with a deadly
weapon in 1997 (§ 245); a conviction for battery on a spouse in
1998 (§ 243, subd. (e)); a misdemeanor conviction for inflicting
injury on a spouse in 1998 (§ 273.5, subd. (a)); a conviction for
possessing a stolen vehicle from 2009 (§ 496d, subd. (a)); a
conviction for battery from 2009 (§ 242); a conviction for evading
police with willful disregard for safety from 2012 (§ 2800.2,
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Opinion of the Court by Groban, J.
subd. (a)); and a conviction for evading police with willful
disregard for safety from 2014 (§ 2800.2, subd. (a)). The
prosecution’s statement notes that after Salazar was arrested
for the present case, six new cases had been filed against him.
The statement also notes that Salazar has been committed to
the Department of Corrections and Rehabilitation 11 times
since 2001.
At the sentencing hearing, the court denied Salazar’s
request to dismiss the prior strike conviction. (See People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.) Before doing
so, the court praised Salazar’s courtroom conduct, stating: “You
presented yourself very well. You could not have been more
respectful, both to your counsel and to [the prosecutor] and to
me and to the jury.” The court was “hopeful that once this is
done, that you can become the best version of yourself, like your
sister is indicating.” The court added that “it seems to me like
you have more that you could offer.” The court denied the
Romero motion though because Salazar had a “long and
continuous criminal history” and the strike was a “serious
offense.” The court noted that Salazar had been arrested six
times since the offenses in this case were committed and had a
23-year criminal history from 1995 to 2018, plus a juvenile
offense in 1991. The court found that “a lot” of that criminal
history “is drug related, and a lot of it may be because of
suffering from your father’s death, and then I think it was a
couple years later, your mother’s death. And it sounds like you
were very much involved in your mother’s last few months of
life, and you and she were lucky to have that opportunity. But
I simply cannot, based on that history, strike the strike.”
The court also denied Salazar’s request to stay sentencing
on the false imprisonment conviction pursuant to section 654
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Opinion of the Court by Groban, J.
because “I cannot find that this is an ongoing singular
continuous course of conduct. I think that there were breaks.”
“Based on everything that I’ve said,” the court then also denied
the defense request to impose concurrent sentences on false
imprisonment and inflicting corporal injury, and instead
imposed consecutive sentences.2
Ultimately, the court imposed the middle term of three
years on inflicting corporal injury, doubled because of the prior
strike, plus a consecutive eight months for false imprisonment
(one-third the middle term), doubled because of the prior strike,
for a total prison sentence of seven years and four months. The
court explained: “I’m going to select not the high term, but the
mid term, and that’s based on having heard the evidence and
based on the fact that the last seven years or so, the defendant’s
criminal history has been drug related.” The court found “that
defendant has a history of drug abuse and/or alcohol abuse and
recommend[ed] that he participate in a treatment program.”
The court also issued a criminal protective order, protecting
M.Q. from Salazar for ten years.
Effective January 1, 2022 and while Salazar’s appeal was
pending, Senate Bill 567 amended section 1170 to provide that
“unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the
lower term would be contrary to the interests of justice, the court
2
The decision to grant a stay in this context is contingent
upon section 654, which generally prohibits a defendant from
being punished for “multiple offenses based on the same course
of conduct.” (People v. Lopez (2020) 9 Cal.5th 254, 268, fn. 5.)
The decision to impose a consecutive or concurrent sentence
similarly takes into account whether the offenses involved the
same or separate conduct. (See Cal. Rules of Court, rule 4.425.)
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Opinion of the Court by Groban, J.
shall order imposition of the lower term if,” among other things,
the defendant “has experienced psychological, physical, or
childhood trauma,” and this trauma “was a contributing factor
in the commission of the offense.” (§ 1170, subd. (b)(6) & (A).)3
The Court of Appeal asked the parties to submit supplemental
briefing discussing the application of the new legislation, if any,
to the case. In a supplemental brief, Salazar argued he was
entitled to resentencing pursuant to these amendments to
section 1170. In a divided opinion, the Court of Appeal declined
to remand for resentencing in light of the new law. (People v.
Salazar (2022) 80 Cal.App.5th 453, 464 (Salazar).) The
majority concluded “the record ‘ “clearly indicate[s]” ’ the trial
court would not have imposed the low term had it been aware of
its discretion to do so under Senate Bill 567.” (Ibid.) The
majority reasoned (1) the probation report identified multiple
aggravating factors; (2) the trial court denied Salazar’s Romero
motion and request for probation, highlighting his lengthy
criminal history; (3) the trial court imposed consecutive
sentences instead of concurrent sentences; (4) “the current
offenses were aggravated, sadistic, and extended over the course
of 20 hours”; and (5) the trial court imposed a criminal protective
order against Salazar and the probation report indicated he had
a record of violence against other women. (Id. at p. 464; id. at
p. 463.) In contrast, the dissent would have remanded the case
3
Senate Bill 567 and Assembly Bill No. 124 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 695) both concerned amendments to
section 1170 and were both passed by the Legislature in
September 2021 and approved by the Governor and filed with
the Secretary of State on October 8, 2021. Senate Bill 567
expressly incorporated Assembly Bill 124 and bears the highest
chapter number and so is presumed to be the last of the two
approved by the Governor. (Gov. Code, § 9510.)
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Opinion of the Court by Groban, J.
for resentencing. (Id. at p. 466 (dis. opn. of Tangeman, J.).) The
dissent believed the record is not clear that the court would have
found “ ‘the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.’ ” (Ibid.) The dissent noted
that by selecting the middle term, “the trial court impliedly
found the aggravating factors were not sufficient to warrant
imposition of the high term.” (Ibid.) The dissent concluded that
the “majority’s approach of substituting its judgment for that of
the trial court contravenes our Supreme Court’s holding that
remand is required ‘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.” ’ ” (Ibid.) We
granted review.
II. Discussion
The Attorney General argues that the record clearly
indicates that the trial court would have imposed the same
middle term sentence even if it had been aware of the current
section 1170 lower term presumption. We disagree.
“ ‘Defendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court.
(See United States v. Tucker (1972) 404 U.S. 443, 447 [30
L.Ed.2d 592, 596, 92 S.Ct. 589]; Townsend v. Burke (1948)
334 U.S. 736, 741 [92 L.Ed. 1690, 1693, 68 S.Ct. 1252].) A court
which is unaware of the scope of its discretionary powers can no
more exercise that “informed discretion” than one whose
sentence is or may have been based on misinformation
regarding a material aspect of a defendant’s record.’ (People v.
Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [193 Cal.Rptr. 882,
667 P.2d 686].) In such circumstances, we have held that the
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Opinion of the Court by Groban, J.
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;
accord, People v. Mataele (2022) 13 Cal.5th 372, 437; People v.
Flores (2020) 9 Cal.5th 371, 431–432 (Flores).)
In Gutierrez, we disapproved case law establishing a
presumption in favor of life without parole for juveniles
convicted of special circumstance murder. (Gutierrez, supra,
58 Cal.4th at p. 1390.) We had consolidated two cases under
review on our own motion. (Id. at p. 1361.) We then remanded
the two cases for resentencing, even though the trial courts in
each case had made statements indicating that life without
parole was the appropriate sentence. (Id. at p. 1364 [noting the
trial court’s statement that defendant Moffett’s actions and
criminal history “ ‘do not support, in my opinion, this Court
exercising [its] discretion and sentencing him to a determinate
term of twenty-five years to life. I do not find that sentence
appropriate in this particular case under the circumstances of
this case’ ”]; see id. at p. 1367 [noting the other trial court’s
statement, regarding defendant Gutierrez’s sentence, that it
was “ ‘absolutely convinced at this stage of the proceedings that
life without the possibility of parole is the only thing that the
Court can do that could redress the amount of violence that was
inflicted in this case’ ”].) We reasoned that, while “the trial
courts in these cases understood that they had some discretion
in sentencing, the records do not clearly indicate that they would
have imposed the same sentence had they been aware of the full
scope of their discretion. Because the trial courts operated
under a governing presumption in favor of life without parole,
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Opinion of the Court by Groban, J.
we cannot say with confidence what sentence they would have
imposed absent the presumption.” (Id. at p. 1391.)
The Court of Appeal here emphasized that “[t]he
California Constitution admonishes our appellate judiciary not
to reverse any trial court judgment unless there has been a
miscarriage of justice. There should only be a reversal where it
is reasonably probable that a more favorable outcome will result
upon reversal. (Cal. Const., art. VI, § 13; People v. Watson (1956)
46 Cal.2d 818, 836 [299 P.2d 243] . . . .)” (Salazar, supra,
80 Cal.App.5th at p. 462.) However, the Court of Appeal was
mistaken to suggest that Watson provides the applicable
standard. Indeed, “there is a practical difference in assessing
the effect of an error when the court has not articulated whether
a discretionary decision was made in the first place, as compared
to when there were errors in a decision the court actually
rendered.” (In re F.M. (2023) 14 Cal.5th 701, 716.) Where, as
here, the sentencing court was not aware of the scope of its
discretionary powers at sentencing, Watson does not properly
take into consideration the “more speculative inquiry” of what
choice the court is likely to make in the first instance. (Ibid.;
accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 426.)
Indeed, when the applicable law governing the defendant’s
sentence has substantively changed after sentencing, it is
almost always speculative for a reviewing court to say what the
sentencing court would have done if it had known the scope of
its discretionary powers at the time of sentencing. Accordingly,
when, as here, a sentencing court was not fully aware of the
scope of its discretionary powers, “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.’ ”
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Opinion of the Court by Groban, J.
(Gutierrez, supra, 58 Cal.4th at p. 1391; see also People v.
Banner (2022) 77 Cal.App.5th 226, 242; People v. Gerson (2022)
80 Cal.App.5th 1067, 1096; People v. Fuller (2022)
83 Cal.App.5th 394, 400.)4
Here, the sentencing court did not clearly indicate that it
would have imposed the same sentence even if it had been aware
of the scope of its discretionary powers under the current section
1170. The Attorney General concedes that the record supports
that Salazar may have suffered a qualifying trauma that would
meet the statute’s threshold requirement for triggering the
lower term presumption.5 (See Frahs, supra, 9 Cal.5th at
4
The Court of Appeal further found that our court’s order
in People v. Flores (2022) 75 Cal.App.5th 495, “denying the
request for depublication and review is a cue that Flores is the
standard governing appellate review.” (Salazar, supra,
80 Cal.App.5th at p. 465.) To the contrary, and as we have
reiterated, an order granting or denying a petition for review or
granting or denying a request for depublication is not an
expression of opinion on the merits of the case. (See Camper v.
Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679, 689, fn. 8; Cal.
Rules of Court, rule 8.1125(d).)
5
The Attorney General argues that drug addiction, mental
health issues, or death of a parent may not qualify as “trauma”
within the meaning of the current section 1170, subdivision
(b)(6)(A). The Attorney General also argues that, given the
thorough presentation that was already made in this case,
Salazar would likely not have presented further evidence of
qualifying trauma if the amended statute had been in effect at
the time of his sentencing. We do not reach these issues here
because the Attorney General concedes there is at least an
affirmative indication in the record that Salazar may have
suffered a qualifying trauma and that such qualifying trauma
may have been a contributing factor to the offense.
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Opinion of the Court by Groban, J.
pp. 638–640.) Instead, the Attorney General argues that the
record clearly indicates that even if the sentencing court was
aware that it was required to impose the lower term unless “the
aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice” (§ 1170, subd. (b)(6)), it still
would have refused to impose the lower term. We disagree.
First, the Attorney General points to Salazar’s “long and
continuous criminal history,” that includes six additional
offenses after the commission of the present offenses. The
Attorney General also cites to the particularly aggravated facts
of the present case, including the fact that Salazar repeatedly
struck the victim and sprayed her with pepper spray over a
prolonged period, causing her significant injuries. However,
even though the offenses in this case were certainly abhorrent
and the sentencing court did note Salazar’s “long and continuous
criminal history,” this does not constitute a clear indication that
it would have imposed the middle term under the new law.
Under the former law, section 1170 vested the court with
“sound discretion” to simply weigh circumstances in aggravation
or mitigation, and any other relevant factors, and then impose
any of the three prescribed terms (low, middle, or high) it found
to “best serve[] the interests of justice.” (§ 1170, former subd.
(b).) The new law dramatically restrains that discretion to
impose the middle or upper term, now requiring the court to
impose the lower term if a qualifying trauma was a contributing
factor in the commission of the offense “unless the court finds
that the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6).)
Accordingly, under the new law, the presumption is that the
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Opinion of the Court by Groban, J.
court “shall order imposition of the lower term” whenever the
defendant has a qualifying trauma. (Ibid., italics added.)
Here, the facts that the offenses were violent and occurred
over an extended period and that the sentencing court noted
Salazar had an extensive criminal history does not suffice to
provide a clear indication the court would have departed from
this presumptive lower term in the “interests of justice.”
(§ 1170, subd. (b)(6).) With respect to the nature of the crime, it
is notable that the sentencing court did not even mention the
nature of the crime as part of its sentencing determination,
other than to agree that the People’s estimate that the crime
lasted “20 hours is probably pretty accurate.”6 The Court of
Appeal stated that the current offenses were “aggravated,
sadistic” and “akin to torture.” (Salazar, supra, 80 Cal.App.5th
at p. 464.) However, the sentencing court never made any
similar statements about the nature of the crime and the Court
of Appeal may not substitute its own view of the offenses for the
sentencing court’s in determining whether remand is
appropriate.
As to Salazar’s criminal history, though the sentencing
court referenced his extensive criminal history, it also noted
several mitigating factors in conjunction with that history. As
mentioned above, the sentencing court found that “a lot” of
Salazar’s criminal history “is drug related, and a lot of it may be
because of suffering from your father’s death, and then I think
it was a couple years later, your mother’s death.” The
6
Furthermore, the court’s reference to “20 hours” was not
even made in reference to determining which term to impose.
Instead, the comment was made in connection with Salazar’s
request to stay his false imprisonment conviction.
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Opinion of the Court by Groban, J.
sentencing court further praised Salazar’s courtroom conduct,
explaining: “You presented yourself very well. You could not
have been more respectful, both to your counsel and to [the
prosecutor] and to me and to the jury.” The court explained that
it was “hopeful that once this is done, that you can become the
best version of yourself, like your sister is indicating.” The court
added that “it seems to me like you have more that you could
offer.” The Attorney General concedes that the parties and the
court below all acknowledged that Salazar’s “criminality
appeared to be primarily bound up with his drug addiction and
mental health issues, and possibly the effects of losing his
parents several years before the current offenses.” Notably,
under the former law the sentencing court had “sound
discretion” (§ 1170, former subd. (b)) to impose any term, but did
not use that “sound discretion” (ibid.) to impose an upper term.7
This is simply not the kind of record upon which we can
conclude that there is a clear indication that the sentencing
court would have exercised its discretion under the current
section 1170 to impose the same middle term as before. Here,
the court emphasized how drug use affected Salazar’s criminal
history, underscored the impact that Salazar’s parents’ deaths
had on him, noted how respectful Salazar had been in court, and
expressed hope that he would have an opportunity for
rehabilitation and become the best version of himself. On this
7
We have granted review in People v. Lynch (May 27, 2022,
C094174) (nonpub. opn.), review granted August 10, 2022,
S274942, to decide what prejudice standard applies on appeal
when determining whether a case with an upper term sentence
should be remanded for resentencing under Senate Bill 567. We
do not address that issue here.
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Opinion of the Court by Groban, J.
record, we cannot say that simply because the sentencing court
made a cursory reference to the extended duration of the crime
and mentioned Salazar’s long criminal history that this provides
a clear indication that the court would have concluded that “the
aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6).)8
The Attorney General next argues that we can glean a
clear indication of the sentencing court’s intent from its denial
of Salazar’s Romero motion. However, a Romero motion, which
is utilized by defendants facing a prison sentence under
California’s Three Strikes law, requires the sentencing court to
utilize a different legal standard with a different presumption
than would be applied under the current section 1170. “ ‘[T]he
Three Strikes law does not offer a discretionary sentencing
choice, as do other sentencing laws, but establishes a sentencing
requirement to be applied in every case where the defendant has
at least one qualifying strike, unless the sentencing court
8
The Court of Appeal concluded that “[a]s a matter of law,
(1) the aggravating circumstances are overwhelming and
outweigh any theoretical mitigating circumstances, and (2)
selection of the low term would be ‘contrary to the interests of
justice.’ ” (Salazar, supra, 80 Cal.App.5th at p. 464.)
Discretionary sentencing decisions, such as whether “the
aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice” (§ 1170, subd. (b)(6)) are
reviewed for an abuse of discretion. (See, e.g., People v.
Sandoval (2007) 41 Cal.4th 825, 847; People v. Williams (1998)
17 Cal.4th 148, 162 (Williams).) For the reasons detailed above,
it would not be an abuse of a trial court’s broad sentencing
discretion to leave Salazar’s sentence unchanged, nor for it to
grant Salazar the benefit of the recent ameliorative legislation.
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“conclud[es] that an exception to the scheme should be made
because, for articulable reasons which can withstand scrutiny
for abuse, this defendant should be treated as though he
actually fell outside the Three Strikes scheme.” ’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 377.) In ruling on a Romero
motion, the court must consider whether “the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and
hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.”
(Williams, supra, 17 Cal.4th at p. 161.) Thus, the Three Strikes
law establishes a “strong presumption” in favor of a harsher
sentence and requires the court to explicitly articulate its
reasoning if it is to depart from a harsher sentence by granting
the Romero motion. (Carmony, at p. 378.) In contrast, the
current section 1170 does just the opposite: In cases where the
defendant can establish certain qualifying attributes, such as
psychological, physical, or childhood trauma that contributed to
the offense, the statute now creates a presumption in favor of a
more lenient, lower term sentence. This lower term
presumption under section 1170 can then only be departed from
if “the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6).) As
explained in People v. Bell (2020) 47 Cal.App.5th 153, “[a]s for
the court’s statement about [the defendant’s] Romero motion, it
is only a ‘clear indication’ of its views on that particular
sentencing decision. We cannot speculate from the court’s
statements and decision as to one sentencing issue to divine
what the court would have done if it had broadened discretion
on another sentencing issue.” (Id. at p. 200.) Accordingly, the
fact that the sentencing court denied Salazar’s Romero motion
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PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
tells us little about what it would have done if given the
opportunity to exercise its discretion on another sentencing
issue under the current section 1170.
The Attorney General also argues that the sentencing
court’s rejection of Salazar’s request to impose concurrent
sentences on the false imprisonment and inflicting corporal
injury charges and the court’s corresponding statement provide
a clear indication that it would have imposed the middle term
even if it had been aware of its discretion under the current
section 1170. However, a review of the record again shows that
the sentencing court was focused on a very different inquiry
here. The sentencing court’s statement that it was imposing
consecutive sentences “[b]ased on everything that I’ve said”
appears to refer to its denial of Salazar’s request to stay
sentencing on the false imprisonment conviction because “there
were breaks” between offenses, rather than “an ongoing
singular continuous course of conduct.” In deciding whether to
impose consecutive sentences, the sentencing court here,
consistent with well-settled law, was considering whether the
“crimes were committed at different times or separate places,
rather than being committed so closely in time and place as to
indicate a single period of aberrant behavior.” (Cal. Rules of
Court, rule 4.425(a)(3).) The court’s decision to impose
consecutive sentences based upon its determination that the
conduct at issue was not continuous is a wholly distinct inquiry
from whether a lower term would be contrary to “the interests
of justice.” (§ 1170, subd. (b)(6).)
The Attorney General responds by noting that because
the sentencing court may also consider aggravating
circumstances as part of its decision to impose consecutive
sentences, this “ ‘clearly indicate[s]’ ” that it would not have
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PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
imposed the lower term under the current section 1170.
(Gutierrez, supra, 58 Cal.4th at p. 1391; see Cal. Rules of Court,
rule 4.425.) “In deciding whether to impose consecutive terms,
the trial court may consider aggravating and mitigating
factors.” (People v. Black (2007) 41 Cal.4th 799, 822.) However,
“there is no requirement that, in order to justify the imposition
of consecutive terms, the court find that an aggravating
circumstance exists.” (Ibid.; see also Cal. Rules of Court, rule
4.425.) Thus, the sentencing court is not required to find that
any aggravating circumstances exist before imposing
consecutive sentences and, notably, the court here did not
specifically articulate any aggravating circumstances in
conjunction with its imposition of consecutive terms. By
contrast, under section 1170, in order to depart from the lower
term after the lower term presumption is triggered, the court
must make a specific finding that “the aggravating
circumstances outweigh the mitigating circumstances [so] that
imposition of the lower term would be contrary to the interests
of justice.” (§ 1170, subd. (b)(6).) Consequently, the court’s
decision to impose consecutive sentences cannot be a clear
indication of its intent to impose the middle term under the
current section 1170. 9
9
In finding a clear indication of the sentencing court’s
intent, the Court of Appeal also relied upon the facts that the
sentencing court imposed a criminal protective order against
Salazar and the probation report indicated he had a record of
violence against other women. However, the Attorney General
does not rely upon these facts, and for good reason. The
sentencing court made no mention whatsoever of the record of
violence against women and the court merely recited the terms
of the protective order without any explanation as to why a
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PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
Finally, the Attorney General argues that a clear
indication of the sentencing court’s intent is shown by the
statement that “I’m going to select not the high term, but the
mid term, and that’s based on having heard the evidence, and
based on the fact that the last seven years or so, the defendant’s
criminal history has been drug related.” The Attorney General
emphasizes that the court did not indicate here or elsewhere
that it was contemplating the lower term as an appropriate
sentence. However, the court never had the opportunity to
consider the new lower term presumption for qualifying
offenders. The fact that the court did not expressly indicate that
it was considering imposing the lower term reveals very little,
as the newly enacted presumption in favor of the lower term did
not exist at the time of Salazar’s sentencing. In Gutierrez we
remanded the cases for resentencing even though the sentencing
courts made statements indicating that a lengthier sentence
was appropriate. (Gutierrez, supra, 58 Cal.4th at pp. 1364,
1367.) In fact, we remanded in Gutierrez even though the
sentencing court provided a much more forceful justification for
imposing a lengthy sentence than the sentencing court did here.
(See id. at p. 1367 [the sentencing court stated it was
“ ‘absolutely convinced’ ” that life without the possibility of
parole was “ ‘the only thing that the Court can do that could
redress the amount of violence that was inflicted in this case’ ”].)
The Attorney General’s framing here would flip the “clearly
indicate” standard on its head: the sentencing court’s mere
silence about whether it was considering the lower term cannot
constitute a clear indication that it would not have imposed a
protective order was being imposed. These facts do little to
impart a clear indication from the sentencing court.
20
PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
lower term even if it were applying the new law. If anything,
“[b]y selecting the middle term [under the former law], the trial
court impliedly found the aggravating factors were not sufficient
to warrant imposition of the high term.” (Salazar, supra,
80 Cal.App.5th at p. 466 (dis. opn. of Tangeman, J.).)
Indeed, the record is very different from the circumstances
in which we have previously found a clear indication that the
sentencing court would have imposed the same sentence had it
been aware of the scope of its discretionary powers. For
example, in Flores, the sentencing court stated, “ ‘I think Mr.
Flores does fall into the category of the worst of the worst
offenders thereby deserving the ultimate sentence of death.’ ”
(Flores, supra, 9 Cal.5th at p. 432.) The sentencing court noted
the defendant, “ ‘show[ed] absolutely no remorse’; ‘[i]t’s as if he
has no soul.’ ” (Ibid.) In the sentencing court’s “ ‘opinion[,]
justice will be served’ by a death sentence.” (Ibid.) Given that
the sentencing court explicitly said it thought it “ ‘just[ ]’ ” for
the defendant to receive a death sentence — “the most severe
sentence available under California law” — we found it clear the
sentencing court would not have exercised its newly conferred
discretion to eliminate firearm enhancements “ ‘in the interest
of justice.’ ” (Ibid.) However, we emphasized that “[w]e express
no opinion” on the utility of remand in light of the newly
conferred discretion to eliminate firearm enhancements “where
the record shows the trial court approved of a high sentence
short of the death penalty.” (Id. at p. 432, fn. 16.) Flores is thus
distinct from the present case, which does not involve a death
sentence and where the sentencing court’s comments are not at
all comparable to those in Flores. This case also does not present
the circumstances in which the sentencing court announces that
it is aware of forthcoming legislation and then explains how it
21
PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
would exercise its discretion under that legislation. The
sentencing court’s statements here do not provide this type of
clear indication of intent.
In sum, in Gutierrez, we established that when a court has
not exercised its informed discretion, remand is the default
“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.) We emphasize that principle again: unless there is a
clear indication from the sentencing court that it would be idle
to do so, remand for resentencing is required. When the
applicable law governing the defendant’s sentence has
substantively changed after sentencing, it is almost always
speculative for a reviewing court to say what the sentencing
court would have done if it had known the scope of its
discretionary powers at the time of sentencing. Mere reliance
on the length of the original sentence and attendant decisions,
such as imposing consecutive sentences, imposing middle or
upper term sentences, or declining to strike enhancements, is
not sufficient to provide a clear indication of what a sentencing
court might do on remand if it had been fully aware of the scope
of its discretionary powers. (See, e.g., People v. Almanza (2018)
24 Cal.App.5th 1104, 1110–1111.) Given the Attorney General’s
concession that there is at least an affirmative indication in the
record that Salazar may have suffered a qualifying trauma and
that such qualifying trauma may have been a contributing
factor to the offense; given that the sentencing court expressly
referenced various mitigating factors in its ruling; and given
that the sentencing court declined to impose the high term, we
find no clear indication that the sentencing court would impose
the same sentence even under the new law. The current section
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PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
1170 is an ameliorative law that requires the sentencing court
to impose the low term in cases where a qualifying trauma
contributed to the offense and permits the sentencing court to
depart from the lower term only in specific circumstances. This
is a marked departure from the prior law under which Salazar
was sentenced. The record must, accordingly, be clear before a
reviewing court declines to remand and precludes the
sentencing court from exercising discretion that it never knew it
had. On this record, “we cannot say with confidence what
sentence [the court] would have imposed” if it were applying
Senate Bill 567 in the first instance. (Gutierrez, at p. 1391.) The
Legislature has created a procedure for a defendant to seek
resentencing and the parties agree that Salazar, whose case is
not yet final on appeal, is entitled to its application in this case.
Having reviewed the record under the standard enunciated in
Gutierrez, we conclude the appropriate remedy is to remand the
matter to allow the sentencing court to exercise its discretion in
the first instance. We express no view as to how the court should
resolve that question.
III. Disposition
We reverse the judgment of the Court of Appeal and
remand the case to the Court of Appeal with instructions to
remand the case to the superior court for resentencing.
23
PEOPLE v. SALAZAR
Opinion of the Court by Groban, J.
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
24
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Salazar
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 80 Cal.App.5th 453
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S275788
Date Filed: November 20, 2023
__________________________________________________________
Court: Superior
County: Ventura
Judge: Anthony J. Sabo
__________________________________________________________
Counsel:
Arielle Bases, under appointment by the Supreme Court, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Chung L. Mar, Steven D. Matthews and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Arielle Bases
Bases & Bases, APC
16633 Ventura Boulevard, Suite 500
Encino, CA 91436
(818) 905-1144
David F. Glassman
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 269-6207