92 Cal.App.5th 911
Cal. Ct. App.2023Background
- Rey Enrique Ramos Falcon shot his ex-girlfriend (R.S.) and her boyfriend (C.M.) on Nov. 22, 2018; both victims identified him and he was convicted by jury of multiple counts including two counts of premeditated attempted murder and related weapon and prior-offender offenses.
- At sentencing (Sept. 29, 2021) the court imposed consecutive indeterminate terms for the attempted murders plus 25-to-life firearm enhancements and imposed upper terms on counts 2, 3, 5, and 6 (those upper terms and some enhancements were stayed under § 654).
- While the appeal was pending, Senate Bill 567 (effective Jan. 1, 2022) amended § 1170(b) to make the middle term the presumptive maximum and to require that facts justifying an upper term be stipulated or jury-found beyond a reasonable doubt (with a certified-records exception for prior convictions).
- The parties agreed SB 567 applies retroactively to nonfinal cases; the dispute concerned which test governs whether resentencing is required (various Courts of Appeal adopt divergent harmless-error and remedial frameworks).
- The Court of Appeal held that (1) harmless-error analysis alone cannot resolve whether resentencing is required because SB 567 materially circumscribes sentencing discretion; and (2) under People v. Gutierrez the proper remedy is remand for resentencing unless the record clearly indicates the trial court would have imposed the same upper term knowing the new presumption in favor of the middle term. The judgment of conviction was affirmed; the sentence was vacated and the case remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 567's amendments require resentencing of upper-term sentences imposed under former §1170(b) or whether harmless-error review can avoid resentencing | Harmless-error approaches (Chapman/Sandoval then Watson) show any statutory or Sixth Amendment errors are harmless; resentencing therefore unnecessary | SB 567 changed the sentencing presumption and proof rules; resentencing required because the trial court did not decide under the new presumption and no clear indication it would have imposed upper terms | Resentencing required; harmless-error tests cannot conclusively obviate resentencing because SB 567 altered the court's discretion—Gutierrez clear-indication test controls (remand unless record clearly shows same result would follow) |
| Whether aggravating facts relied on at original sentencing were legally proven (Sixth Amendment / §1170(b)(2)/(3)) so the upper terms remain lawful | The aggravating facts (largely prior-conviction/prison-term matters) were supported by certified records or by the trial record, so the upper terms remain lawful without remand | Many aggravating findings were based on probation report material and not proved in the manner SB 567 requires; thus the sentencing decision is not valid under the amended statute | Even if at least one aggravating circumstance (a prior prison term) arguably was established and could sustain the upper term under Apprendi/Cunningham/Black II, that only addresses legality—not whether the trial court would have imposed the upper term under the new middle-term presumption; remand is required because the record lacks the clear indication required by Gutierrez |
| Whether enhancements (upper terms on enhancements) are affected by SB 567 and require resentencing | Not fully developed below; People argued existing findings suffice | Defendant sought remand to present all relevant arguments (including new statutes) | Issue is moot now that resentencing is ordered; note §1170.1 as amended contains similar middle-term presumption but no prior-conviction exception, so enhancements must be considered under §1170.1 at resentencing |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact other than prior conviction that increases penalty beyond statutory maximum must be jury-found beyond reasonable doubt)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (distinguishes facts that are "legally essential" to punishment for Sixth Amendment)
- Cunningham v. California, 549 U.S. 270 (U.S. 2007) (California's pre-2007 DSL violated Sixth Amendment by letting judge find facts to exceed middle term)
- People v. Black, 41 Cal.4th 799 (Cal. 2007) (so long as one aggravating circumstance qualifying under Sixth Amendment exists, judge may rely on additional aggravating facts when selecting among terms)
- People v. Sandoval, 41 Cal.4th 825 (Cal. 2007) (applies Chapman harmless-error standard to Sixth Amendment sentencing-factor errors; requires certainty jury would have found at least one aggravator beyond a reasonable doubt)
- People v. Gutierrez, 58 Cal.4th 1354 (Cal. 2014) (when a change limits sentencing discretion via a presumption, remand is required unless record clearly indicates the court would have imposed same sentence aware of new discretion)
- People v. Lopez, 78 Cal.App.5th 459 (Cal. Ct. App. 2022) (applies two-step harmless-error approach to retroactive SB 567 review)
- People v. Dunn, 81 Cal.App.5th 394 (Cal. Ct. App. 2022) (advocates different two-step test focusing on one constitutionally necessary aggravator, then state-law harmlessness)
- People v. Flores, 75 Cal.App.5th 495 (Cal. Ct. App. 2022) (earlier approach focusing on constitutional harmlessness for retroactive application)
- People v. Lewis, 88 Cal.App.5th 1125 (Cal. Ct. App. 2023) (joins view that Gutierrez clear-indication test is required after constitutional viability is assessed)
- People v. Zabelle, 80 Cal.App.5th 1098 (Cal. Ct. App. 2022) (adopts two-step analysis and considers state-law harmlessness)