THE PEOPLE, Plaintiff and Respondent, v. REY ENRIQUE RAMOS FALCON, Defendant and Appellant.
F083577 (Super. Ct. No. BF174596A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 6/26/23
CERTIFIED FOR PUBLICATION
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.
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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 (
The jury also found true multiple enhancement allegations under
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–
On counts 2, 3, 5 and 6, the trial court properly sentenced defendant under
Senate Bill 567 significantly altered the DSL, and the amended law now limits a trial court‘s discretion to impose an upper term. (
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
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
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
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
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
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
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.
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
DISCUSSION
I. Senate Bill 567
The trial court sentenced defendant on September 29, 2021. Under
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
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
A. Overview of Amendments to Section 1170(b)
Among other things, Senate Bill 567 materially revised the determinate sentencing scheme under
“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. (
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
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
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
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
Nevertheless, an overview of the Sixth Amendment‘s relevance to amended
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. 83 [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).)
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
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,
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
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
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
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
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
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
Under
When amended
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
The first line of these published cases, which includes Lopez, Ross, and Butler, effectively conclude that under amended
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
In that context, the trial court exceeds its legal authority to impose a full, separate consecutive sentence under
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
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
To explain this conclusion and our critique of the harmless error approach in this regard, we must return to
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
Senate Bill 567 meaningfully altered this framework by amending
Also newly added,
This is further reflected by
To that end, there was no need for the Legislature to include
a. Gutierrez Confirms Statutory Interpretation
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
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
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
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
While a harmless error test is appropriate for Sixth Amendment purposes, it is not conclusive of whether resentencing is required in light of amended
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
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
To avoid unnecessary speculation about what a sentencing court would do in the exercise of its informed discretion in the first instance under amended
In sum, whether resentencing of an upper term sentence is the appropriate remedy on retroactive application of amended
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 (
1. Whether the Upper Term Sentences Could Be Legally Imposed
We begin with whether the upper term sentences remain lawful under amended
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
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
The trial court also found that defendant had served a prior prison term under
There is no indication the Flowers court was presented with any argument about whether a prior prison term imposed under
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
Yet, the continuing legality of the sentence indicates nothing about how the trial court would have sentenced defendant under amended
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
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
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
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
Under Senate Bill 567,
II. Remaining Arguments
As the matter is being remanded for resentencing under amended
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.