People v. FalconPeople v. Falcon
OPINION
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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INTRODUCTION
After shooting his ex-girlfriend (R.S.) and her boyfriend (C.M.), defendant Rey Enrique Ramos Falcon was convicted by jury of the following: two counts of premediated attempted murder (
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 (2021–2022 Reg. Sess.) (Senate Bill 567). Despite the changes in the law after the sentencing in this case, the People argue resentencing is both futile and unwarranted. We conclude that resentencing is required under Senate Bill 567. Therefore, we do not reach defendant‘s contentions under Assembly Bill 518 and Tirado, which may be addressed at the resentencing hearing.
On counts 2, 3, 5 and 6, the trial court properly sentenced defendant under
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
It is well settled under Sixth Amendment jurisprudence that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S 466, 490 (Apprendi).) As Senate Bill 567 mandates a sentence not to exceed the middle term and permits upward departure from this presumptive maximum sentence only when there are additional factual findings that justify doing so, all additional facts “legally essential” to impose an upper term sentence must be found in a manner consistent with Sixth Amendment principles. (Blakely v. Washington (2004) 542 U.S. 296, 313 (Blakely).) Due to this Sixth Amendment implication, a constitutional harmless error analysis was originally utilized upon retroactive application of the amended DSL to determine whether an upper term sentence, supported by aggravating circumstances improperly found by the trial court rather than a jury, remains viable under the federal constitution after the change in the law. (See People v. Flores (2022) 75 Cal.App.5th 495, 500–501 (Flores).)
The appellate courts applying this harmless error test then split over which aggravating-circumstance findings were, as a constitutional matter, legally essential for imposition of an upper term sentence under the amended law, and how to account for violations of state law with respect to aggravating-circumstance findings. (Compare Flores, supra, 75 Cal.App.5th at pp. 500–501 with Lopez, supra, 78 Cal.App.5th at p. 467 & fn. 11.) Thus, in addition to a constitutional harmless error test (over which there is disagreement), several courts implemented harmless error analyses under state law (shaped around the 6th Amend. analysis) to measure the effect of any failure to comply with the new statutory procedural requirements for aggravated-circumstance findings supporting an upper term sentence, and to determine whether resentencing is required. (Compare Lopez, supra, at pp. 465–467 with Dunn, supra, 81 Cal.App.5th at pp. 409–410, review granted.)
A minority of courts hold that application of any harmless error analysis cannot dispositively indicate whether resentencing is unwarranted because the amended law changed more than just the proof requirements for aggravating
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
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 changes in the law, including those implemented by Senate Bill 567. In this situation, similar to other ameliorative and retroactively applied law that affects a court‘s sentencing discretion, the standard articulated by the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) governs the remedy determination and ultimately requires resentencing unless the record clearly indicates the trial court would have imposed the upper term had it known of the new presumptive middle term. (Id. at p. 1391.)
Based on our interpretation of the statute, an upper term sentence that remains legal under federal and state law must still be evaluated under Gutierrez‘s clear indication test. We, therefore, join Lewis and hold that upon retroactive application of Senate Bill 567 to upper term sentences imposed under
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
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.
When the police arrived, R.S. told them her ex-boyfriend, defendant, had shot both her and C.M. She described defendant‘s car as a gold-colored Chevrolet Monte Carlo. C.M. also identified defendant as the shooter and said that he had been shot three or four times while he was standing in the hallway looking out the door. He described defendant as wearing a gray sweatshirt, a hat and reading glasses. C.M. got the best look at defendant when R.S. opened the door and saw that he had a black handgun.
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
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 various harmless error analyses in light of our interpretation of amended
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).)
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 informed discretion under the amended statute. With no clear indication the trial court would impose the upper term sentences had it been aware of its circumscribed sentencing discretion, defendant argues resentencing is mandated.
The People maintain all of the aggravating circumstances relied on to impose the upper term under the prior version of the statute were based on, or related to, defendant‘s prior convictions, and there were certified records related to his prior convictions admitted during trial, including a certified copy of defendant‘s rap sheet. Thus, the People argue the aggravating circumstances relied on to impose upper term sentences were not found in
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
“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).)
The United States Supreme Court explained in Apprendi the existence of these rights is not predicated on a distinction between elements of a crime and sentencing factors (Apprendi, supra, 530 U.S. at pp. 478, 494), but on whether a required finding exposes the defendant to a greater punishment than that authorized by the jury‘s verdict (id. at p. 494). “While a court may properly exercise its discretion to impose any sentence within the statutory range for a defendant‘s offense once that range is determined by facts found by the jury, judicial factfinding that ‘exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone’ violates the Sixth Amendment. (Apprendi, at p. 483.)” (Catarino, supra, 14 Cal.5th at p. 754.)
Based on this reasoning, Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) As such, “the Federal Constitution‘s [Sixth Amendment] jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at pp. 274–275.) “[T]he relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303–304.)
California‘s DSL in effect from 1977 to 2007 assigned to the trial judge, not a jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The pre-2007 version of
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, 41 Cal.4th at p. 814.) This was so, Black argued, because selection of the upper term was justified only when the circumstances in aggravation outweigh the circumstances in mitigation—thus, a court could not impose the upper term unless it determined that any aggravating circumstances were of sufficient weight to justify the upper term. (Ibid.) Accordingly, Black asserted, “if only one of several aggravating circumstances considered by the trial court has been established pursuant to Sixth Amendment requirements, and the upper term sentence is selected, the court has imposed ‘punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts “which the law
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 legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge may ‘implicitly rule on those facts he deems important to the exercise of his sentencing discretion.‘” (Black II, supra, at pp. 812–813, quoting Blakely, supra, 542 U.S. at p. 309.) Based on this, Black II reasoned, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, [which effectively makes the upper term the statutory maximum for Sixth Amendment purposes,] the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term ... regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, at p. 813.)
Under California‘s pre-2007 determinate sentencing scheme, the sentencing court was required to order imposition of the middle term unless
Based on this, the Black II court held “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant‘s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
Applying this reasoning to the facts before it, our high court noted one of the aggravating facts the trial court relied on to impose the upper term sentence was that force was used against the victim to commit the underlying crime, a fact that was necessarily presented to the jury in the form of a special allegation. This aggravating circumstance, the court reasoned, rendered Black eligible for the upper term under
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 jury‘s verdict, or involved a prior conviction.
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 pertaining to jury trial right in criminal cases “suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute“]; see also Cunningham, supra, 549 U.S. at p. 294, fn. omitted [noting some states “have chosen to permit judges genuinely ‘to exercise broad discretion … within a statutory range,’ which, ‘everyone agrees,’ encounters no Sixth Amendment shoal.“].)
As of January 1, 2022, under the changes effected by Senate Bill 567, a trial court imposing a sentence may no longer select any of the three terms that best serves the interests of justice, but must impose a sentence that does not exceed the middle term, except as provided in
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
To measure the need for resentencing on retroactive application of 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 at p. 467, fn. 11 [“whether a reviewing court can be certain, to the degree required by … Watson[, supra,] 46 Cal.2d [at p. ]836, that the trial court would nevertheless have exercised its discretion to select the upper term if it had recognized that it could … rely on only [permissible factors], … rather than all of the factors on which it previously
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 have been proven to these respective standards (or were found properly in conformity with 6th Amend. principles and amended
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
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
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.
b. Concerns Regarding the Dunn Line of Cases
Similar complications arise under the test articulated in Dunn and Zabelle. Even to the degree we are persuaded by their Sixth Amendment approach under amended
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
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 circumstances involving prior convictions. Under the Dunn analysis, reliance on recitations in a probation report, for example, in lieu of legally required proof of prior convictions under
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
c. Neither Dunn Nor Lopez Line of Cases Account For Altered Scope of Sentencing Discretion or Gutierrez
Yet even if we set these concerns aside, the Dunn and Zabelle harmless error analysis suffers the same fatal deficiency as that of the Lopez line of cases: it does not adequately assess whether the upper term imposed under the former statute would be imposed again under the amended statute. Amended
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
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 exception is fully consistent with
This is further reflected by
Any contrary interpretation that fails to recognize how this presumption affects the trial court‘s discretion to impose an upper term under
To that end, there was no need for the Legislature to include
into a subsequent bill analysis, reflecting strong concerns about the counterproductive effects of long sentences and the need to ensure that the harshest sentences receive not only the greatest scrutiny but
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 presumption in favor of the harsher sentence, must impose that sentence unless it finds good reasons not to do so.” (Gutierrez, supra, 58 Cal.4th at p. 1382.) Because of the presumption’s effect on the trial court’s discretion to select the lesser sentence, its imputation would create a serious constitutional question under Miller, and our high court declined to interpret
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].)
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 decision made in the exercise of informed discretion or how it ensures a defendant has had a fair opportunity to obtain the ameliorative benefit of the law. All defendants are entitled to the former (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8), and defendants whose judgments of conviction are not final for purposes under In re Estrada (1965) 63 Cal.2d 740, 745, are entitled to the latter (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307). Neither the Dunn nor the Lopez line of cases give any effect to
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
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
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 test is inadequate to measure the need for resentencing because its adaptation under Watson is flawed, it has the practical effect of nullifying the requirements of the amended statute and it fails to account for Gutierrez.14
2. No Clear Indication Trial Court Would Impose the Upper Term
In examining the clear indication test under Gutierrez, we note that the trial court elected to impose an upper term sentence on each conviction on counts 2, 3, 5 and 6; refused to strike the greater firearm enhancements under
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
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,
The parties did not address the changes Senate Bill 567 effected with respect to the imposition of upper terms on enhancements, and as resentencing is required, this additional issue is moot. However, we note there is no prior conviction exception under state law for imposing an upper term on applicable enhancements. (Compare
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.