People v. LynchPeople v. Lynch
The Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment‘s due process clause, “provides that those ‘accused’ of a ‘crime’ have the right to a trial ‘by an impartial jury.’ This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt.” (Alleyne v. United States (2013) 570 U.S. 99, 104 (Alleyne), quoting
Effective January 1, 2022,
aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, “have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (
I. BACKGROUND
Defendant, Deandre Lynch, is Jasmine Doe‘s former boyfriend and the father of her child. Over the course of several months, Lynch physically abused Jasmine daily. At trial, Jasmine vaguely described the details of some assaults and testified that she had no recollection of others.
Jasmine‘s brother, Joseph C., testified about statements Jasmine had made recounting Lynch‘s abuse. On one occasion, she called Joseph crying and out of breath. She said that Lynch had punched her in the face, thrown her to the ground, and beaten her with a metal rod. A few weeks later, Jasmine called Joseph again and tearfully reported that Lynch had kicked her and hit her with an extension cord. Joseph saw looped and straight-line bruises on her arms, shoulder, and back consistent with a metal rod and an extension cord.
On May 24, 2020, Joseph arrived at Jasmine‘s home and heard banging and screaming. Going inside, he saw his sister lying on the floor with her hands raised in defense. Lynch stood over her with his arm drawn back as if to hit her. Joseph intervened and took his sister outside.
A deputy sheriff dispatched to investigate saw multiple bruises on Jasmine‘s body. Jasmine told the deputy that Lynch had hit her with a small wooden table until a leg broke off, then continued to beat her with the detached leg. She also said that he had previously hit her with an extension cord and a metal broom. Jasmine‘s injuries were consistent with her report. Searching the home, the deputy saw a wooden table with a
A jury convicted Lynch of three counts of domestic violence resulting in a traumatic condition. (
The probation report listed prior felony convictions for assault with a firearm (
The report also noted potentially applicable aggravating circumstances set out in California Rules of Court, rule 4.421. At the sentencing hearing, defense counsel challenged three of these aggravating circumstances, arguing that Lynch‘s actions did not rise to the level of a high degree of cruelty, viciousness, or callousness; that the victim was not particularly vulnerable; and that Lynch was not a serious danger to society. Counsel did not object to any of the information about Lynch‘s criminal history in the certified records or the probation report.
In April 2021, the court ordered a prison sentence of 15 years 4 months, imposing the upper term of five years for the first domestic violence conviction, and consecutive terms of one year four months for the remaining two counts. The total was doubled under the Three Strikes law.3 The court cited eight circumstances in aggravation to support imposing the upper term sentence for the principal count: (1) the crimes involved a high degree of cruelty, viciousness, and callousness because Lynch had struck the victim with a table leg, an extension cord, and a broomstick (see
Approximately two months after sentencing, Senate Bill No. 567 (2021–2022 Reg. Sess.), amending
A divided Court of Appeal affirmed the upper term sentence. The Attorney General conceded that the 2022 amendment to
Thereafter, several published cases weighed in on the matter. (See, e.g., People v. Hall (2023) 97 Cal.App.5th 1084, 1104–1108, review granted Feb. 28, 2024, S283530 (Hall); People v. Ruiz (2023) 97 Cal.App.5th 1068, 1076–1078, review granted Mar. 12, 2024, S283504; People v. Falcon (2023) 92 Cal.App.5th 911, 938–951, review granted Sept. 13, 2023, S281242 (Falcon); People v. Butler (2023) 89 Cal.App.5th 953, 960, review granted May 31, 2023, S279633 (Butler); People v. Lewis (2023) 88 Cal.App.5th 1125, 1136–1137, 1142–1143, review granted May 17, 2023, S279147 (Lewis); People v. Ross (2022) 86 Cal.App.5th 1346, 1354, review granted Mar. 15, 2023, S278266 (Ross); People v. Dunn (2022) 81 Cal.App.5th 394, 407, review granted Oct. 12, 2022, S275655 (Dunn); People v. Zabelle (2022) 80 Cal.App.5th 1098, 1110–1113 (Zabelle); People v. Wandrey (2022) 80 Cal.App.5th 962, 981–983 (Wandrey); People v. Lopez (2022) 78 Cal.App.5th 459, 466, 468 (Lopez); People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores).) The Courts of Appeal have uniformly concluded that the 2022 statutory amendment applies retroactively. They have also uniformly concluded that defendants sentenced under the old law are not automatically entitled to a remand, and that some type of prejudice inquiry applies. The courts have reached different conclusions about the extent to which the current statute implicates the Sixth Amendment, and how precisely to articulate the prejudice inquiry in this context.4 We granted review to answer these questions.
A. California‘s Determinate Sentencing Law
We begin with an overview of various changes to California‘s determinate sentencing law during the last 16 years. Resolving this case will involve distinguishing among three versions of
However, Cunningham held that, with the exception of prior conviction allegations, “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury” and “established beyond a reasonable doubt.” (Cunningham, supra, 549 U.S. at p. 281.) The majority
The court observed that, in the wake of its decision, ” ‘[t]he ball . . . lies in [California‘s] court.’ [Citations.] We note that several States have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing. They have done so by calling upon the jury — either at trial or in a separate sentencing proceeding — to find any fact necessary to the imposition of an elevated sentence. As earlier noted, California already employs juries in this manner to determine statutory sentencing enhancements. [Citation.] Other States have chosen to permit judges genuinely ‘to exercise broad discretion . . . within a statutory range,’ which, ‘everyone
In response to Cunningham, the California Legislature amended
However, as of January 1, 2022, the Legislature again amended
” ‘It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.’ [Citations.] The Penal Code provides that ‘[n]o part of it is retroactive, unless expressly so declared.’ (
The Legislature did not expressly declare whether the 2022 amendment to
C. Whether Automatic Reversal or Prejudice Review Is Appropriate
The question remains whether Lynch, and similarly situated appellants, are entitled to an automatic sentencing reversal and remand, or whether the appellate court should review the question under some form of prejudice analysis. “The Estrada rule only answers the question of whether an amended
In the past, when applying ameliorative legislative changes retroactively, we have employed a prejudice analysis to determine whether a new trial is required. People v. Wright (2006) 40 Cal.4th 81 (Wright), for example, held a new law expanding defenses for marijuana possession was properly applied because Wright‘s case was not final on appeal. (Id. at pp. 94–98.) However, we concluded he was not entitled to a new trial because, based on the trial record, the failure to instruct on the new defense was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. 18. (Wright, at pp. 98–99.)7 Likewise, in People v. Tran (2022) 13 Cal.5th 1169 (Tran), a new provision added elements to a gang enhancement allegation. We again held the statutory changes applied retroactively. (Id. at pp. 1206–1207.) We reversed the jury finding as to the gang enhancement and remanded for a retrial on that question. Applying Chapman, we concluded reversal and remand were appropriate because we could not conclude beyond a reasonable doubt that the failure to instruct on the new elements was harmless. (Id. at p. 1207; accord, People v. Cooper (2023) 14 Cal.5th 735, 742, 746 (Cooper).) It bears emphasis that, just as in Wright and Tran, the trial court did not err here. It followed the law in effect at the time of defendant‘s trial. (See Gutierrez, supra, 58 Cal.4th at p. 1390; Wright, supra, 40 Cal.4th at p. 104
Arguing against this approach, Lynch and amicus curiae California Public Defender‘s Association offer four reasons why defendants who were sentenced under the former version of
Lynch first urges that if none of the aggravating facts relied on by the trial court was proved under the current
Next, Lynch contends that failure to submit aggravating facts to the jury as now required by
Lynch argues that a prejudice analysis is inappropriate here because he was not on notice that he would be required to defend against the uncharged aggravating circumstances, in violation of his right to due process.10 According to amicus curiae: “[n]otice is necessary to allow defense counsel to effectively advise his client of his or her maximum permissible sentence, to assess the risk of exercising their Sixth Amendment right to a jury trial, and to decide how to present their case in a way that gives them a reasonable opportunity to be heard.” Lynch and amicus curiae rely on cases holding that due process is violated and reversal required when the prosecution fails to specifically plead an offense or sentencing enhancement. (See, e.g., Presnell v. Georgia (1978) 439 U.S. 14, 14–17 (per curiam) [defendants who were charged with and convicted of kidnapping with bodily injury (sodomy) could not be deemed to have committed kidnapping with bodily injury (forcible rape) for first time on appeal]; Cole v. Arkansas (1948) 333 U.S. 196, 197–202 [defendants who were charged with and convicted of unlawful assemblage could not be deemed to have committed the separate crime of interfering with a lawful vocation by the use of force or violence for first time on appeal]; People v. Mancebo (2002) 27 Cal.4th 735, 742–752 (Mancebo) [defendant could not be
Because Lynch was tried and sentenced under the 2007 version of
Each of the substantive offenses of which Lynch was convicted was charged in the information. The Penal Code gave notice of the applicable sentencing range for each offense. The statutory structure, case law, and California Rules of Court set out the contours of the hearing process. The probation report and the People‘s statement in aggravation advised Lynch of all
People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) is instructive. There, applying the high court‘s holding in Recuenco, we concluded that the absence of a jury trial on aggravating circumstances used to impose the upper term was amenable to prejudice review notwithstanding many of the same arguments Lynch raises here. (Id. at pp. 838–840.) We applied a prejudice analysis in Sandoval. In doing so we emphasized, however, that the court must “take into account the differences between the nature of the errors at issue in the present case and in a case in which the trial court fails to instruct the jury on an element of the crime but where the parties were aware during trial that the element was at issue. In a case such as the present one, the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury” because those circumstances “were not part of the charge and were not directly at issue in the
The factors identified in Sandoval may make it more likely that the absence of jury factfinding on one or more aggravating facts was prejudicial. But that reality does not justify a rule of per se reversal. (People v. Cahill (1993) 5 Cal.4th 478, 503.) Our application of a harmless error review in Sandoval demonstrates that such review is possible, and the omission is not structural. (Sandoval, supra, 41 Cal.4th at pp. 840–843; cf. People v. Anderson (2020) 9 Cal.5th 946, 963–964 [applying harmless error review to an unpled firearm enhancement].)
Finally, amicus curiae argues that using a prejudice analysis to deny individual defendants a remand contravenes the Legislature‘s unarticulated intent to have the new statute
Yet neither the text of the statute nor the legislative history addressed the retroactive application of the amendment, and they say nothing about the appropriate standard of review. While we have accepted the Attorney General‘s concession that the 2022 statutory amendment applies retroactively under Estrada to cases still pending on appeal at the time of its enactment, that point of agreement does not dictate how it should apply in a particular case, or the review standard under which the question is to be addressed. Our precedent demonstrates that not every defendant in this posture is automatically entitled to a remand. (Cooper, supra, 14 Cal.5th at pp. 742–743; Tran, supra, 13 Cal.5th at p. 1207; Wright, supra, 40 Cal.4th at pp. 98–99.)
D. Test for Assessing Prejudice
Having determined that Lynch is not automatically entitled to a remand for resentencing under current
The plain language of
The majority of appellate courts to consider this question have used both federal and state standards to address different
We find this reliance on Black II and Sandoval misplaced, and we reject the secondary reliance on the Watson standard to assess prejudice from the denial of a jury trial on aggravating facts, other than prior convictions, used to justify an upper term sentence. The premise underlying the appellate decisions and our colleagues’ separate opinions is that the current statute before us operates in the same manner as the original version of
The 2022 amendment of
i. Black II and Sandoval
The original version of
As these holdings make clear, the original, pre-Cunningham scheme created a presumption in favor of a middle term. Imposition of an upper or lower term sentence was off limits unless the court, acting as a factfinder, concluded that an aggravating or mitigating factor permitted a deviation from the middle term. Such a finding made the defendant “eligible” for the upper or lower term. Once eligibility was established the court had the authority to consider any and all facts it found to select an appropriate sentence. Importantly, Black II and Sandoval had no occasion to consider the statutory framework currently before us. Indeed, by the time those cases were decided, the Legislature had amended
ii. The Text of Current Section 1170(b)
The 2022 version of
The current statute does not follow the blueprint provided in Black II. It does not speak in terms of a single aggravating factor making the defendant “eligible” for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813.) Nor does it preserve the two-tiered approach discussed in Black II (id. at p. 816) authorizing the trial court to make factual determinations as to aggravating facts (other than prior convictions) to justify an upper term sentence. Absent stipulation or waiver, that factfinding role now resides solely with the jury. Under the current statute, if an aggravating circumstance does not rest on properly proven facts, the circumstance cannot be relied upon when the court exercises its discretion to justify an upper term sentence.
The current statute tracks fairly precisely the test that Cunningham articulated to safeguard the
A prejudice inquiry under Watson is inadequate to assess the effect of a failure to honor the
The high court‘s recent decision in Erlinger, supra, 602 U.S. ___ [144 S.Ct. 1840] confirms this view. There the court interpreted the scope of the prior conviction exception recognized in Almendarez-Torres, supra, 523 U.S. 224. It rejected the argument that the exception “permits a judge to find perhaps any fact related to a defendant‘s past offenses, including whether he committed them on different occasions” within the meaning of the Armed Career Criminal Act. (Erlinger, at p. ___ [144 S.Ct. at p. 1853].) Instead, “a judge may ‘do no more, consistent with the
Our Legislature‘s most recent amendment to
The majority and dissents begin from the same premise: that the
The reliance on Black II falters upon examination of the material differences between the original
The current statute, by contrast, eliminates any purported distinction between eligibility and justification with respect to the finding of aggravating facts by: (1) deleting the stand-alone reference to aggravating circumstances; (2) elevating the word “justify” from an ancillary reference in the statute‘s list of permitted evidence to a substantive requirement; (3) authorizing the court to impose an upper term sentence “only” when the “circumstances in aggravation . . . justify the imposition” of that term; and (4) eliminating the court‘s factfinding authority as to aggravating facts (other than prior
It is true that nothing in
In arguing against this conclusion, the Chief Justice emphasizes that original
An example illustrates the false equivalency of applying Black II‘s holding to the current statutory framework. Suppose the trial court finds based on certified records that the defendant has numerous prior convictions. (
The Chief Justice further reasons that current
Our dissenting colleagues also rely on the high court‘s pronouncements reaffirming the trial court‘s permissible factfinding role in the context of sentencing. (Conc. & dis. opn. of Kruger, J., post, at pp. 2, 4–5, 14; dis. opn. of Guerrero, C. J., post, at pp. 3, 6–7, 9–10, 13, fn. 4, 19–21 & fn. 6.) Apprendi, for example, 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.” (Apprendi, supra, 530 U.S. at p. 481.) And Alleyne
But this premise rests on the assumption that the trial court is authorized to consider unproved, aggravating facts in an exercise of its discretion to impose an upper term sentence. This analysis also fails to honor the distinction between the requirement of properly proven facts and the court‘s exercise of its discretion when determining the significance of those facts. As the high court‘s precedents make clear, a jury trial is required on “fact[s]” that are used to justify a sentence in excess of the middle term. (Apprendi, supra, 530 U.S. at p. 490; see also Blakely, supra, 542 U.S. at p. 305, fn. 8.) However, “[t]he trial court‘s evaluation of the relative weight of aggravating and mitigating circumstances is not equivalent to a factual finding.” (Black II, supra, 41 Cal.4th at p. 814, fn. 4.) Moreover, for reasons we have explained, aggravating facts that “justify” the upper term under the current statute are not merely “fact[s] that influence[] judicial discretion.” (Alleyne, supra, 570 U.S. at p. 116; see conc. & dis. opn. of Kruger, J., post, at p. 4; dis. opn. of Guerrero, C. J., post, at pp. 10, 21, fn. 6.) All such facts are “legally essential to the punishment.” (Blakely, supra, 542 U.S. at p. 313.)
Notwithstanding these observations, it remains true that the current statute preserves the trial court‘s factfinding role as to a defendant‘s prior convictions, which are specifically exempted from the Sixth Amendment jury trial right. (
iii. Legislative History
Even if we were to conclude that the current statutory language is ambiguous (see In re A.N. (2020) 9 Cal.5th 343, 351–352), the legislative history and purpose of the 2022 statutory amendment confirm our understanding that the Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term. The Legislature was acting to remedy a Sixth Amendment violation. Cunningham gave the Legislature a choice. It could (1) “call[] upon the jury — either at trial or in a separate sentencing proceeding — to find any fact necessary to the imposition of an elevated sentence” or (2) permit “judges genuinely ‘to exercise broad discretion . . . within a statutory range.’ ” (Cunningham, supra, 549 U.S. at p. 294.) In 2007, in the immediate wake of Cunningham, the California legislature adopted the second approach. (Former § 1170(b), enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) In 2022, it changed course and adopted Cunningham‘s first provided alternative; requiring juror factfinding in the absence of waiver or stipulation. A statement by the bill‘s author, which appears in materials presented to the Legislature as a whole, recognized the need to ” ‘revisit the determinate sentencing structure’ ” that was adopted in response to Cunningham, and emphasized that ” ‘[i]t is important, proper, and constitutionally conforming to change the law to ensure that aggravating facts are presented to the jury before a judge imposes a maximum sentence as decided in Cunningham v. California.’ ” (Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 567 (2021–2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2, italics added.) The statutory
The Chief Justice argues that this legislative history is irrelevant because the Legislature cannot dictate what the Sixth Amendment requires. (Dis. opn. of Guerrero, C. J., post, at pp. 23–24.) But these statements of legislative intent can and do inform us of the statute‘s substantive requirements, which in turn guide our Sixth Amendment inquiry. The relevant legislative history confirms our understanding that current
iv. Assessing Prejudice Under Chapman
We hold that under the current statute a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. We disapprove People v. Hall, supra, 97 Cal.App.5th 1101, 1104–1108, People v. Ruiz, supra, 97 Cal.App.5th 1068, 1076–1078,
We also clarify what potential issues we do not decide here.
Under the posture of this case, Lynch was not asked to expressly waive jury trial on aggravating circumstances. Nor did he stipulate to the facts underlying any of the aggravating circumstances listed by the trial court in support of its upper term sentence. We have no occasion here to address the conditions applicable to waiver and stipulation. (See generally French, supra, 43 Cal.4th at pp. 46–52.)
Because Lynch did not receive a jury trial under the provisions of current
Finally, we decline to consider the interplay between
E. Application of the Gutierrez ” ‘Clearly Indicate[s]’ ” Standard
Gutierrez, supra, 58 Cal.4th 1354 considered the appropriate remedy when the trial court was not aware of the full scope of its discretionary powers at the time of the defendant‘s sentencing. That case involved a presumptive sentence having to do with sentencing of minors convicted of murder. We disapproved the longstanding interpretation that when a minor defendant was tried as an adult and convicted of a special circumstance murder,
Subsequently, People v. Salazar (2023) 15 Cal.5th 416 (Salazar) applied the Gutierrez remand standard to a resentencing under amended
Several Courts of Appeal have held that the latest amendment to section 1170(b)(1) and (2) did more than codify the holding in Cunningham; it also fundamentally altered the trial court‘s sentencing discretion in a manner similar to Gutierrez and Salazar. (Falcon, supra, 92 Cal.App.5th at p. 921; Lewis, supra, 88 Cal.App.5th at pp. 1136–1138; Wandrey, supra, 80 Cal.App.5th at pp. 981–982.) They focus on the amended statute‘s presumption in favor of a low or middle term sentence that may only be overcome when aggravating circumstances “justify” an upper term sentence. (
We conclude that the amendment at issue did alter the trial court‘s sentencing discretion. At the time Lynch was sentenced, former section 1170(b) gave a sentencing court broad discretion to select among three terms and impose a sentence that in its judgment served the interests of justice. (Former § 1170(b), enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) The current statute narrows that authority by creating a presumption against the upper term, which may be overcome only if the required facts are properly proven and the court concludes that term is justified. These changes circumscribe the trial court‘s previously broad discretion to select whichever of the three terms of imprisonment serves the interests of justice. As a result, the Gutierrez standard applies to sentences imposed before the statute‘s 2022 amendment, or when the record
Relying on Sandoval, supra, 41 Cal.4th 825, the Chief Justice argues that the Gutierrez standard does not apply because the change in the trial court‘s discretion brought about by the current statutory amendment is ” ’not substantial.’ ” (Dis. opn. of Guerrero, C. J., post, at p. 29, quoting Sandoval, at p. 850.) She would allow for review under Gutierrez only in ” ‘the rarest of cases’ (Sandoval, . . . at p. 850) in which the new maximum middle term presumption would materially affect the trial court‘s decision to impose the upper term.” (Dis. opn. of Guerrero, C. J., post, at p. 37, fn. 9.) But again, we conclude reliance on our past precedent is misplaced.
Sandoval considered how to conduct proceedings on remand for defendants whose sentences were reversed after a finding of constitutional error under Cunningham. (Sandoval, supra, 41 Cal.4th at pp. 843–844.) Specifically, the court considered whether it should fashion a sentencing procedure which allowed for a jury trial on aggravating circumstances or, alternatively, direct that those defendants be resentenced under the same procedure that the Legislature had subsequently enacted to remedy the Cunningham violation, namely, allowing the trial court to choose between the three available terms in its discretion. (Id. at pp. 844–852.) In opting for the latter approach, the court observed: “[I]t is both accurate and realistic to recognize that, in practical terms, the difference between the pre-Cunningham provision of the DSL enacted by the Legislature [which included a middle term presumption] and a statutory scheme in which the trial court has broad discretion to select among the three available terms is not substantial. It
This point loses its salience in the inverse situation presented here. In Sandoval, the trial court had already sentenced the defendant under a scheme that included a presumption in favor of the middle term. Despite that presumption, the trial court had imposed the upper term. (See Sandoval, supra, 41 Cal.4th at p. 855 [“as applied to cases such as this one, in which defendant already has been sentenced to the upper term under the version of the DSL in place at the time she committed the offense, application of the revised sentencing scheme never could result in a harsher sentence“].) It was therefore no leap to conclude that, if given broad discretion to choose among the triad terms, a court would impose the same sentence.
The same logic does not hold true here. The court sentenced Lynch to the upper term when it had broad discretion to select among the three terms; but under the current law, it is constrained by a presumption against the upper term. It is this constraint on the trial court‘s discretion that triggers the Gutierrez standard because ” ‘[a] court which is unaware of the scope of its discretionary powers [cannot] exercise that “informed discretion” . . . .’ ” (Gutierrez, supra, 58 Cal.4th at p. 1391.) In this circumstance, “it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.” (Salazar, supra, 15 Cal.5th at p. 431.)
In short, the posture in Sandoval differs from the situation we confront here, and that context matters. The logic of Gutierrez and Salazar govern in this circumstance and support our conclusion that the clearly indicates standard governs here as well.
F. Lynch Is Entitled to a Remand for Resentencing
Applying the standards articulated above, we conclude Lynch is entitled to a remand for resentencing.
The trial court cited eight circumstances in aggravation to support imposing the upper term sentence for the principal count. (See ante, at p. 5.) The Court of Appeal held that two aggravating circumstances, Lynch‘s numerous prior convictions and his use of a weapon during the commission of the offenses, were proven in compliance with current
As explained, Chapman provides the proper standard of review in this case. Lynch is entitled to a reversal and remand for resentencing unless, after examining the entire cause, including the evidence as to all relevant circumstances (People v. Aledamat (2019) 8 Cal.5th 1, 13), we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence. In making this determination, we may ” ‘examine[] what the jury necessarily did find and ask[] whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well.’ [Citation.] In other words, if ’ “[n]o reasonable jury” ’ would have found in favor of the defendant on the missing fact, given the jury‘s actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt.” (In re Lopez (2023) 14 Cal.5th 562, 580, quoting Aledamat, at p. 15, first italics added.) We may also find the omission harmless if we can conclude beyond a reasonable doubt “that the omitted [fact] was
We have cautioned that a prejudice analysis following a change in the law respecting proof of aggravating circumstances “can be problematic. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance. [Citation.] . . . ‘[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.’ [Citation.] . . . ‘Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts,’ ” with the victim‘s particular vulnerability being one example. (People v. Boyce (2014) 59 Cal.4th 672, 728–729, quoting Sandoval, supra, 41 Cal.4th at p. 840.)
Even under the less rigorous Watson standard, the Court of Appeal held that the omission of a jury trial on facts underlying three of the aggravating circumstances was prejudicial: the crimes involved a high degree of cruelty, viciousness, and callousness; the victim was particularly vulnerable; and Lynch poses a serious danger to society. Applying the more rigorous Chapman standard, we likewise find prejudice. The jury was not asked to make findings beyond a reasonable doubt on these aggravating facts. The defense contested the facts supporting each of these circumstances at the sentencing hearing. It would not have been impossible,
We likewise conclude that Lynch is entitled to a remand under the Gutierrez standard. We begin with our recent comments in Salazar. There, we emphasized that “when the applicable law governing the defendant‘s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.” (Salazar, supra, 15 Cal.5th at p. 425.) We further observed that “[m]ere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand” had it been fully aware of the presumptive lower term sentence for cases involving the enumerated mitigating circumstances. (Id. at p. 431.) Upon reviewing the record in that case, we concluded that the trial court‘s other rulings, such as its denial of the defendant‘s Romero motion and its imposition of consecutive
Here, the trial court found eight circumstances in aggravation and none in mitigation. It emphasized, among other things, that Lynch had committed repeated acts of violence; his use of multiple weapons in this case involved great violence, cruelty, viciousness, and callousness; and his criminal record demonstrated a serious danger to society. He was on parole when he committed the current crimes. Based on these findings, the court concluded that an upper term sentence was “appropriate.” This record certainly supports a finding that the trial court acted within its discretion in choosing between the three available terms of punishment under the law as it stood at the time of sentencing. But it does not necessarily speak to how the court would have exercised its discretion under the weight of the presumptive middle term maximum sentence that currently exists. (See Falcon, supra, 92 Cal.App.5th at pp. 955–956.) Notably, the court did not make the kind of definitive statements that we have found to clearly indicate it would not impose a lesser sentence under any circumstances. (See, e.g., People v. Flores (2020) 9 Cal.5th 371, 432 [in finding the defendant ” ‘deserving [of] the ultimate sentence of death,’ ” trial court observed that the defendant was ” ‘the worst of the worst,’ ” that he ” ‘show[ed] absolutely no remorse’ “and that ” ‘[i]t‘s as if he has no soul’ “]; Salazar, supra, 15 Cal.5th at p. 431 [positing an example where “the sentencing court announces that it is aware of forthcoming legislation and then explains how it would exercise its discretion under that legislation“].) Rather, this record comes within our general admonishment in Salazar that “[m]ere reliance on the length of
Further proceedings on remand are to be conducted in accordance with the current statutory requirements and the defendant given the opportunity for the jury trial, of which he was deprived. (Cf. Salazar, supra, 15 Cal.5th at p. 432; Cooper, supra, 14 Cal.5th at pp. 746–747.) On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court. The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. (
The judgment of the Court of Appeal affirming Lynch‘s sentence is reversed. We remand to the Court of Appeal with directions that it return the matter to the trial court for further litigation of the aggravating circumstances and for the court to exercise its discretion under current
CORRIGAN, J.
We Concur:
LIU, J.
GROBAN, J.
EVANS, J.
In its 2022 amendments to California‘s determinate sentencing law, the Legislature instructed that an elevated, upper term sentence may be imposed only if the court determines there are aggravating circumstances that justify it. (
Although I agree with much of what the majority says on this subject, the majority goes too far in holding that a violation of the new statutory right to a jury finding on each and every aggravating fact is also, perforce, a violation of the federal Constitution. That conclusion is contrary to this court‘s precedent addressing effectively the identical constitutional issue. It also misses the foundational point on which the precedent rests. The Constitution preserves the historic, traditional role of the jury in determining criminal liability. As the United States Supreme Court has repeatedly affirmed, that traditional role encompasses the facts that the Legislature has
Our precedent certainly does not prevent the Legislature from expanding the jury right beyond its traditional bounds, as it has done in the amendments to
I nonetheless concur in the judgment because, as I see it, the majority‘s constitutional reasoning is not necessary to its conclusion. In the end, what matters is that Lynch had a right to a jury trial on all aggravating facts. Whatever the source of the right, I do not think we can say that the deprivation of the right was harmless. Lynch is therefore entitled to further sentencing proceedings in accordance with the new law.
I.
A.
I begin with the constitutional issue. The Sixth Amendment to the federal Constitution provides that “[i]n all criminal prosecutions, the accused” has “the right to a speedy and public trial, by an impartial jury.” (
Tracing the historical understanding of the scope of the jury guarantee, the court in Apprendi concluded the inquiry is not controlled by labels but by function. Whether the Legislature calls a particular fact an “element” of the offense, or a “sentencing factor,” or something else entirely, the rule is the same: The right to jury trial in a criminal prosecution encompasses every fact, other than the fact of a prior offense, that the Legislature has made essential to the punishment of a charged offense. (Apprendi, supra, 530 U.S. at p. 490; see id. at pp. 488–490 [discussing the exception for prior offenses based on the holding of Almendarez-Torres v. United States (1998) 523 U.S. 224].)1 Applying this rule, the court in Apprendi struck down a 12-year sentence exceeding the otherwise applicable 10-year statutory maximum where the enhancement was based on a judge‘s finding, by a preponderance of the evidence, that the defendant‘s crime was motivated by racial bias. (Apprendi, at p. 490.)
In the years since Apprendi, the high court has continued to refine the important rule it announced. But the court has also continued to reaffirm the limits of that rule. (See, e.g., Alleyne, supra, 570 U.S. at p. 116 [“Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion,
B.
Not long after Apprendi was decided, the United States Supreme Court began to apply its rule to various determinate sentencing schemes, including Washington‘s Sentencing Reform Act (Blakely v. Washington (2004) 542 U.S. 296), the then-mandatory federal sentencing guidelines (United States v. Booker (2005) 543 U.S. 220), and, most directly pertinent here, California‘s former determinate sentencing law (Cunningham v. California (2007) 549 U.S. 270 (Cunningham)).
Cunningham considered the constitutionality of a former version of California‘s determinate sentencing law (what the
In the immediate wake of Cunningham, this court had to determine what relief to order in cases in which a sentencing
Black II and Sandoval addressed what was then a transitional issue; by the time the cases were decided, the Legislature had already amended the determinate sentencing law to cure the constitutional infirmity identified in Cunningham by committing the selection of the lower, middle, or upper term to the full discretion of the sentencing court. (See Sandoval, supra, 41 Cal.4th at p. 845, citing Stats. 2007, ch. 3.) But the Legislature‘s 2022 amendments to
C.
As the majority notes, most of the Courts of Appeal to consider the effect of the 2022 amendments have followed our holdings in Black II and Sandoval. They have concluded that the Legislature‘s return to a regime resembling the pre-2007 law means that the federal Constitution now requires a jury to find at least one circumstance in aggravation as a prerequisite to an upper term sentence. But they have also concluded, in line with Black II and Sandoval, that the Constitution otherwise permits sentencing courts to make additional findings in deciding whether an upper term sentence is appropriate under the circumstances of the case. To be sure,
On this point, I think the Courts of Appeal have gotten it right. The constitutional question we confront here is essentially identical to the question we decided in Black II and Sandoval, so stare decisis requires us to give the same answer. True, the Legislature did not reenact the determinate sentencing law in precisely the same form as at the time those cases were decided. But the Legislature did not alter the statute in any way that matters to the constitutional inquiry. The basis for Black II‘s holding was that an upper term sentence is legally authorized so long as there exists at least one aggravating circumstance found in a “constitutionally compliant” manner (that is, by a jury beyond a reasonable doubt, or else concerning the fact of a prior conviction, or else admitted by the defendant as part of a plea). As the majority acknowledges (maj. opn., ante, at pp. 36–37), following the 2022 amendments, it is still true that an upper term sentence is statutorily authorized so long as there exists at least one aggravating circumstance established in accordance with Apprendi. It is also true that a court may, in its discretion, consider a wider array of factors to determine whether that statutorily authorized upper term sentence is justified under the circumstances. It follows that only a single circumstance need be established in accordance with Sixth
In concluding otherwise, the majority makes much of the fact that amended
Black II made clear that the use of the term “justify” does not mean that each and every fact that might inform a judge‘s sentencing discretion somehow becomes statutorily ” ’ “essential” ’ ” to an upper term sentence. (Black II, supra, 41 Cal.4th at p. 814; see Erlinger, supra, 602 U.S. at p. ___ [144 S.Ct. at p. 1850].) In a statutory scheme in which a judge is permitted to impose an upper term sentence based on a single aggravating circumstance, this is a logical impossibility. The phrase simply conveys that, once a qualifying aggravator has “raise[d] the maximum permissible sentence from the middle term to the upper term,” the sentencing court must exercise “its
The majority does not dispute any of this, but argues that various changes in the amended statutory language “reanimate” the argument we rejected in Black II about the constitutional significance of the statutory reference to aggravating facts “justif[ying]” an upper term sentence. (Maj. opn., ante, at p. 36.) These minute adjustments in wording make no functional difference. In the end, the only pertinent difference between the law at issue in Black II and Sandoval and current law is that the latter requires a jury trial on all aggravating circumstances on which a sentencing court relies in finding an upper term sentence justified, while the former does not. (See maj. opn., ante, at pp. 35–36.) The fact that a statute may require something does not, of course, necessarily mean that the federal Constitution requires it, too. But this is essentially what the majority holds when it reads the new statutory jury right on aggravating facts into the federal Constitution.
The majority‘s reasoning based on the statutory jury right appears to go something like this: The federal Constitution requires jury trial only as to facts that function like elements of the offense, in that they are legally essential to the punishment. In the amended determinate sentencing law, the Legislature has decided to require jury trial on all aggravating facts — that is, whatever facts the trial court deems relevant to its decision to impose the upper term sentence. Therefore, the Legislature must have intended to make all of these aggravating facts
There are significant problems with this logic, beginning with the fact that it does not reflect how the statute actually works. As was true of the original statute considered in Cunningham, the amended determinate sentencing law does not specify what aggravating circumstances a sentencing court may rely on — indeed, it does not specify what constitutes an aggravating circumstance at all. (See
The majority is, of course, correct that a sentencing judge may determine in a particular case that an upper term is not justified by a particular aggravating circumstance. (Maj. opn., ante, at pp. 38–39.) But that does not change the reality that a judge is statutorily authorized to impose an upper term sentence if a single aggravating fact is found. Whether that aggravating fact alone suffices, or whether additional facts are needed, is a matter left to the sentencing court‘s discretion. Again, if the court can exercise its discretion to impose an upper term sentence based on a single aggravating fact, it simply cannot be
And while the majority is correct that the statute now requires that all aggravating facts be pleaded and proved in the same way as elements of an offense — that is, to a jury, beyond a reasonable doubt — they are not actually elements in the sense that matters to the Sixth Amendment right to a jury determination of guilt for a crime. That is to say,
But the central flaw with the majority‘s logic is that it never meaningfully addresses the point underlying our prior decisions in Black II and Sandoval: That “there is a fundamental difference, one underpinning [the high court‘s] entire Apprendi jurisprudence, between facts that must be found in order for a sentence to be lawful, and facts that individual judges choose to make relevant to the exercise of their discretion.” (Rita, supra, 551 U.S. at p. 373 (conc. opn. of Scalia, J.).) Case after case has made clear that the Sixth Amendment jury right is designed to secure the historic role of the jury in determining the facts the Legislature has made essential to criminal punishment. But in the American legal tradition, the right of jury trial has not traditionally been thought to extend to the types of discretionary judicial determinations at issue in this case, regarding what sort of circumstances justify the imposition of an otherwise legally authorized sentence. (See, e.g., Apprendi, supra, 530 U.S. at p. 481, citing Williams v. New York, supra, 337 U.S. at p. 246; Alleyne, supra, 570 U.S. at p. 116.) Indeed, as we explained in Sandoval, in California, the inquiry into aggravating circumstances has historically included various kinds of cross-case comparative judgments — how serious is the defendant‘s crime relative to other violations of the same statute? How vulnerable was the victim? How concerning is the defendant‘s criminal history compared to others‘? — that juries have not traditionally been tasked with, nor thought “well suited” to make. (Sandoval, supra, 41 Cal.4th at p. 849.)
The Legislature is of course not bound to conform to this tradition; it is entitled to take a different approach. But we
In sum, I think the appellate courts had understood our precedent correctly: The extension of a jury right in
II.
Despite my disagreement with the majority‘s constitutional analysis, I concur in the judgment. In my view, the characterization of the jury right in
Regardless of the source of the right, the fact is that California law now guarantees a defendant the right to a jury finding on every aggravating fact cited in support of an upper term sentence. The only reason the source of the jury right has any relevance here is because California law and federal law prescribe different standards for determining whether an error in the proceedings requires reversal of the judgment. We have said that violations of state law require reversal if it is
Although it is often said that the former standard is “less stringent” than the former (e.g., People v. Hendrix (2022) 13 Cal.5th 933, 944 (Hendrix)), it is a mistake to suppose that the two standards are defined by their opposition to one another. It is equally a mistake to suppose that these prejudice standards mean that the requirements of state law should, as a rule, be taken less seriously than the requirements of federal law.
The application of the Watson “reasonable probability” standard naturally varies with the nature of the error. Here, the error is the absence of a finding “beyond a reasonable doubt.” (
Here, as the majority notes, the trial court cited eight circumstances in aggravation when sentencing Lynch to the upper term: “(1) the crimes involved a high degree of cruelty, viciousness, and callousness because Lynch had struck the victim with a table leg, an extension cord, and a broomstick (see Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was particularly vulnerable (id., rule 4.421(a)(3)); (3) Lynch used a
The Court of Appeal found that as to the remaining five aggravating circumstances, there either was no error in proof under
As the Chief Justice notes, the trial court “specifically emphasized” Lynch‘s parole status and numerous prior convictions, both of which remain valid aggravating circumstances given the evidence introduced at trial. (Dis. opn. of Guerrero, C. J., post, at p. 37.) But it also cited all eight aggravating circumstances when stating the upper term was
For this reason, I agree with the majority‘s ultimate conclusion that the Court of Appeal‘s judgment must be reversed. But because I do not join in its conclusion that every violation of
KRUGER, J.
I Concur:
JENKINS, J.
The majority concludes that, under California‘s current determinate sentencing law (DSL;
The
Under the current DSL, as the majority confirms, “[o]nly a single aggravating factor is required to impose the upper term.” (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband); see maj. opn., ante, at pp. 36–37, 59.) In other words, “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (People v. Black (2007) 41 Cal.4th 799, 813 (Black II).) Nothing in the current DSL requires the existence of multiple aggravating facts in order to impose an upper term of imprisonment. Even if one (or more) of the aggravating facts here had not been proven, the trial court would still have been able to legally impose the upper term on Lynch based on the remaining aggravating facts. This circumstance distinguishes aggravating facts in this context from the elements of a criminal offense, each of which is essential. The majority errs by conflating the two.
This court comprehensively explored these issues less than two decades ago in two companion cases, Black II, supra, 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We held that “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 Apprendi2 and its progeny, any additional factfinding engaged in by the trial court in selecting the
The majority asserts that the requirements of the current DSL “ha[ve] overtaken the viability of Black II and Sandoval on this issue” (maj. opn., ante, at p. 25), but the current DSL does not change which facts are required to impose an upper term sentence. It does not, for example, identify any specific fact or any threshold number of facts that must be established. Instead, the current DSL changes the manner by which such facts must be proved. This change is significant, and it confers an important new right on criminal defendants in California. But it does not implicate the
I would therefore conclude that a trial court errs under the federal Constitution only if it imposes an upper term sentence
An error under state law is normally reviewed under the familiar standard in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). For example, “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492 (Price).)
The majority concludes that the Watson standard is inadequate here because the current DSL identifies the middle term as the statutory maximum, absent any aggravating facts, and thereby alters the scope of the trial court‘s sentencing discretion. (Maj. opn., ante, at pp. 48–52.) The majority asserts that reversal is required in cases to which the current DSL retroactively applies unless the record clearly indicates the trial court would have imposed the same sentence had it been aware of this new constraint. The “clearly indicates” standard normally applies where there has been a substantial or dramatic change in the trial court‘s discretion. (See People v. Salazar (2023) 15 Cal.5th 416, 426 (Salazar); People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) Here, by contrast, we have already held that an analogous change in discretion was “not substantial” and would result in the same sentence “in all but the rarest of cases.” (Sandoval, supra, 41 Cal.4th at p. 850.) The “clearly indicates” standard does not apply. The majority‘s embrace of this standard is unwarranted and will result in numerous remands and unnecessary sentencing proceedings where, as here, there is no reasonable probability of a different result.
For these reasons, and as explained further below, I would affirm the judgment of the Court of Appeal. Lynch concedes that one aggravating fact — his numerous prior convictions — was proved in accordance with the
I. THE SIXTH AMENDMENT AND CALIFORNIA‘S CURRENT DSL
The
Apprendi held that the federal right to a jury trial extends not only to the elements that determine a defendant‘s guilt or innocence of the crime, but to any fact (except a prior conviction) that increases the potential penalty for a crime. “Other 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.) “[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” (Id. at p. 494.)
The relevant statutory maximum is the maximum sentence a judge “may impose without any additional findings. When a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at p. 304; accord, Erlinger, supra, 144 S.Ct. at p. 1850.)
However, when a judge selects among alternatives, each of which is authorized by the jury‘s verdict, the
Under the current DSL, where a statute prescribes three possible terms of imprisonment, “the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided” in the following subdivision. (
I agree with the majority that “[u]nder the current statute the middle term is the maximum term that can be imposed unless additional factual determinations are made. It is the requirement of additional factfinding that brings the
The nature of this additional factfinding is determined by California sentencing law, which dictates what is legally required for a court to impose the upper term. “[T]he essential
Under California law, as the majority affirms, “[o]nly a single aggravating factor is required to impose the upper term.” (Osband, supra, 13 Cal.4th at p. 728; see maj. opn., ante, at pp. 36–37, 59.) Thus, if a single aggravating fact has been proved in accordance with the
In other words, if one aggravating fact has been found in compliance with the
The majority attempts to minimize the significance of a single aggravating fact by emphasizing that such a fact is only sufficient ”if, in the court‘s discretion, that circumstance alone justifies a sentence exceeding the middle term.” (Maj. opn., ante, at p. 36.) But this statement simply confirms that, under the current DSL, proof of a single aggravating fact exposes a defendant to the prospect of the upper term. The statute does not require any additional showing. It leaves the significance of any additional aggravating facts to the discretion of the trial court.
Because the existence of a single properly proved aggravating fact exposes a defendant to the upper term under the current DSL, the trial court‘s reliance on one or more additional aggravating facts to support the upper term sentence does not implicate the
While additional facts may make it more likely a trial court will impose the upper term, the United States Supreme Court has held that such a likelihood does not create a
Indeed, despite the additional procedural requirements in the current DSL to prove aggravating facts, the statute
The majority argues that “a sentencing scheme need not set out a mandatory list of aggravating facts that must be proved in every case in order for Apprendi‘s protections to apply.” (Maj. opn., ante, at p. 40.) It is true that a “list” is not necessary, but the scheme must identify the consequences of a given factual finding (in general or in specific) to trigger the
The majority asserts that, under the current DSL, “the aggravating facts that would ‘justify’ an upper term sentence (
The majority emphasizes that the statute requires that “all of the aggravating circumstances that the court actually relies on to justify the sentence” must be “proven as the statute requires.” (Maj. opn., ante, at p. 30.) It makes much of the fact that the current DSL does not “authorize[]” a trial court to consider aggravating facts not found in compliance with its terms. (Maj. opn., ante, at p. 41.) These statements merely reiterate the statute‘s procedural requirements. If a state requirement for a jury trial on a fact, rather than the existence of a fact itself, were sufficient to implicate the
It is important to recognize that the
II. BLACK II AND SANDOVAL
Although the foregoing discussion is based on United States Supreme Court precedents, as noted this court came to the same conclusions in Black II, supra, 41 Cal.4th 799, and Sandoval, supra, 41 Cal.4th 825. Black II and Sandoval cannot be reconciled with the majority‘s reasoning in this matter. Among other things, they specifically foreclose the majority‘s reliance on the requirement in the current DSL that the facts “justify” an upper term sentence (
This court decided Black II and Sandoval in the wake of Cunningham, supra, 549 U.S. 270, in which the high court held that California‘s original DSL violated the
Former
Cunningham reviewed these provisions and provided the following summary: “In sum, 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
Cunningham went on to explain why the original DSL violated the
Black II and Sandoval considered the consequences of Cunningham‘s
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with
Black II cited the long-standing rule, affirmed by the majority again today, that “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (Black II, supra, 41 Cal.4th at p. 813.) It went on to directly answer the question presented here: “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Ibid.)
Specifically, the Black II defendant argued that “the existence of a single aggravating circumstance does not make a defendant eligible for the upper term under [the original DSL], because ‘[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation.’ ([Former]
We explained that “under the DSL the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court‘s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term.” (Black II, supra, 41 Cal.4th at p. 815.)
The same holds true under the current DSL. A single aggravating fact is sufficient to expose a defendant to the upper term. If such a fact has been proved in accordance with the
The majority attempts to distinguish Black II on several grounds, but none is persuasive. First, the majority states, “The current statute does not follow the blueprint provided in Black II. It does not speak in terms of a single aggravating factor making the defendant ‘eligible’ for an upper term sentence.” (Maj. opn., ante, at p. 30.) But the original DSL did not speak in such terms either. The concepts described in
The majority also asserts that the current DSL does not “preserve the two-tiered approach discussed in Black II [citation] authorizing the trial court to make factual determinations as to aggravating facts (other than prior convictions) to justify an upper term sentence. Absent stipulation or waiver, that factfinding role now resides solely with the jury.” (Maj. opn., ante, at p. 30.) Again, the original DSL did not set forth a two-tiered approach either. It was and is a function of the substantive requirements of California sentencing law. The first aggravating fact has a significance that additional aggravating facts do not. Crucially, this circumstance is not some quirk of California law. The United States Supreme Court has repeatedly distinguished between facts that are legally required to expose a defendant to a given punishment and additional facts that increase the likelihood
It is true that the current DSL requires a jury finding on both the first and any additional aggravating facts used to justify the imposition of an upper term, but this requirement merely reflects the current DSL‘s new jury trial right. It is undisputed that the current DSL creates such a right. The question is whether such a right is required by the federal Constitution as well. It is not.
III. CUNNINGHAM AND LEGISLATIVE INTENT
To support its conclusion that “the
The majority also highlights the bill author‘s reference to Cunningham. (Maj. opn., ante, at pp. 43–44.) After finding California‘s original DSL unconstitutional, the high court left open the appropriate remedy. (Cunningham, supra, 549 U.S. at p. 293.) It noted that other states had “modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing. They have done so by calling upon the jury — either at trial or in a separate sentencing proceeding — to find any fact necessary to the imposition of an elevated sentence. As earlier noted, California already employs juries in this manner to determine statutory sentencing enhancements. [Citation.]
The majority characterizes the prior DSL, in effect at the time of Lynch‘s sentencing, as reflecting Cunningham‘s second option, “permit[ting] judges genuinely ‘to exercise broad discretion . . . within a statutory range.’ ” (Cunningham, supra, 549 U.S. at p. 294; see maj. opn., ante, at p. 43.) Under the prior DSL, the trial court had broad discretion to impose the lower, middle, or upper term. The prior DSL did not require the finding of any aggravating fact to impose the upper term. The jury‘s verdict on the underlying offense was sufficient.
By contrast, the majority characterizes the current DSL as reflecting Cunningham‘s first option, “calling upon the jury — either at trial or in a separate sentencing proceeding — to find any fact necessary to the imposition of an elevated sentence.” (Cunningham, supra, 549 U.S. at p. 294; see maj. opn., ante, at p. 43.) I agree, but this recognition does not resolve the matter. It merely raises again the primary issue in dispute: What is “any fact necessary to the imposition of an elevated sentence” under the current DSL? (Cunningham, at p. 294, italics added.)
I have no doubt that the Legislature in the current DSL intended to require a jury trial (or other
IV. GUTIERREZ AND SALAZAR
An error under state law normally requires reversal only when a reviewing court concludes “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.) ” ’ ” ‘We have made clear that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ ” ’ ” (People v. Hendrix (2022) 13 Cal.5th 933, 944.)
We have held that the Watson inquiry may be inadequate where an ameliorative statute or intervening judicial decision confers new or significantly altered discretion on a sentencing court to select among available sentencing options. For example, in Gutierrez, supra, 58 Cal.4th 1354, this court considered the scope of a trial court‘s discretion to impose a sentence of life imprisonment without parole on juvenile defendants under
Because Gutierrez significantly departed from the prior understanding of a trial court‘s discretion, this court determined that “the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.] Although the trial courts in these cases understood that they had some discretion in sentencing, the records do not clearly indicate that they would have imposed the same sentence had they been aware of the full scope of their discretion. Because the trial courts operated under a governing presumption in favor of life without parole, we cannot say with confidence what sentence they would have imposed absent the presumption.” (Gutierrez, supra, 58 Cal.4th at p. 1391.)
The majority reviews Gutierrez and Salazar and examines several opinions from the Courts of Appeal that have applied the “clearly indicates” standard to the retrospective application of the current DSL. (Maj. opn., ante, at pp. 48–51.) The majority observes that, contrary to these opinions, the Court of Appeal below declined to apply Gutierrez. (Id. at p. 51.) The majority concludes that was error. In a brief discussion, the majority states that “the amendment at issue did alter the trial court‘s
The majority‘s reasoning is not persuasive. Gutierrez and Salazar involved such substantial shifts in discretion that it was truly speculative to ask what a trial court might have done in response. Gutierrez eliminated a decades-long presumption in favor of life imprisonment without parole and announced new factors based on the federal Constitution that a trial court must consider before imposing such a sentence. (Gutierrez, supra, 58 Cal.4th at pp. 1390–1391.) Salazar interpreted a new law that “dramatically restrain[ed]” the trial court‘s sentencing discretion by imposing a new presumption in favor of the lower term, unless the imposition of the lower term was contrary to the interests of justice. (Salazar, supra, 15 Cal.5th at p. 426.)
The current DSL‘s effect on a trial court‘s discretion is comparatively quite minor. It does not involve the same qualitative shifts as in Gutierrez and Salazar. Under the prior DSL, in force when Lynch was sentenced, a trial court had broad discretion to impose the lower, middle, or upper term. (Former
In Sandoval, supra, 41 Cal.4th 825, this court considered the significance of a nearly identical change, but in reverse. As discussed, the original DSL established a presumption in favor of the middle term and allowed imposition of the upper term only if justified by the circumstances in aggravation. (The original DSL also allowed the imposition of the lower term only if justified by the circumstances in mitigation.) Sandoval considered a shift from the original DSL to a fully discretionary sentencing scheme, akin to the prior DSL that was in effect when Lynch was sentenced.7
Although the middle term presumption in the original DSL was ” ‘worded in mandatory language, the requirement that an aggravating factor exist is merely a requirement that the decision to impose the upper term be reasonable.’ ” (Sandoval, supra, 41 Cal.4th at p. 850.) Thus, although the prior DSL in effect when Lynch was sentenced eliminated this
The same logic holds true here, where the shift is from a fully discretionary sentencing scheme to the current DSL‘s maximum middle term presumption. Under the prior DSL‘s fully discretionary scheme, the trial court was tasked with considering the aggravating and mitigating facts and imposing a reasonable sentence. Where, as here, a trial court imposes the upper term, the trial court believes the upper term is more appropriate in light of those facts than the middle or lower term. Likewise, under the current DSL, a trial court may impose the upper term only if it believes one or more circumstances in aggravation justify the upper term. The calculus for the trial court in each circumstance is almost identical.
Indeed, the transcript of the sentencing proceedings in this case reflects that the trial court considered the middle term to be the default, in the same manner as the current DSL instructs. The court weighed the circumstances in aggravation against the lack of circumstances in mitigation and found that
This matter does not involve a situation where “the sentencing court was not aware of the scope of its discretionary powers at sentencing.” (Salazar, supra, 15 Cal.5th at p. 425; see Gutierrez, supra, 58 Cal.4th at pp. 1390–1391.) Nor is this a situation where no ” ‘discretionary decision was made in the first place.’ ” (Salazar, at p. 425.) A trial court imposing the upper term under the prior DSL has exercised its discretion and selected the most appropriate sentence in light of the aggravating and mitigating factors. A trial court imposing the upper term under the current DSL has made essentially the same discretionary choice. It has concluded the upper term is justified by one or more aggravating factors.
Because any differences between the two schemes are “not substantial” and they will result in the same sentence “in all but the rarest of cases” (Sandoval, supra, 41 Cal.4th at p. 850), the Watson standard appropriately balances the interest in identifying such rare cases against the interest in avoiding the delay and expense of unnecessary resentencing proceedings. In those cases where a reviewing court believes there is a reasonable probability the trial court would have exercised its discretion differently under the current DSL, it should reverse and remand for resentencing. But if there is no reasonable probability of a different result, a reviewing court should affirm.
As noted at the outset, the trial court here found eight aggravating facts and no mitigating facts. Based on these findings, the court sentenced Lynch to an upper term of imprisonment. At the sentencing hearing, the court specifically emphasized two aggravating facts as the basis for imposing the upper term: Lynch‘s parole status at the time of the offenses and his numerous prior adult convictions.
Because the current DSL was not yet in effect at the time of Lynch‘s sentencing, the trial court did not comply with its provisions. The consequences of this noncompliance — the retrospective “error” — depend on the nature of the right of which Lynch was deprived. If an error affects only Lynch‘s rights under California law, its prejudicial effect is generally reviewed under Watson. But if an error affects Lynch‘s rights under the federal Constitution, the harmless error standard in Chapman applies. (See maj. opn., ante, at pp. 22–23.)
Lynch concedes that one aggravating fact, his numerous prior convictions, was proved in accordance with the
Like the Court of Appeal below, I conclude the aggravating fact of weapons use was also proved in compliance with the
The Court of Appeal found the remaining six aggravating facts had not been proved in accordance with the
Again, because at least one (and actually two) aggravating facts were proved in accordance with the
As noted, under Watson, reversal is required only if “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.) The relevant result here is the imposition of the upper term. Thus, reversal is not required unless it is reasonably probable that the trial court would have imposed the middle or lower term if it had followed the current DSL and afforded Lynch a jury trial right on the six remaining aggravating facts. In this context, a reviewing court must undertake two related inquiries. First, it must assess the likelihood that a jury would have made a different finding on the aggravating circumstance if it had been submitted to the jury for decision. (Cf. Epps, supra, 25 Cal.4th at p. 29.) Second, it must assess the consequences of the trial court‘s reliance on any circumstance a jury would not have found. (Cf. Price, supra, 1 Cal.4th at p. 492.)
Here, however, it is unnecessary to delve too deeply into these nuances. As the Court of Appeal found, the three remaining recidivism-related aggravating facts were supported by strong and undisputed evidence: “Defendant‘s prior prison terms were established by certified records of prior convictions, and defendant‘s parole status and poor performance on parole were established by the probation report, based on official
Even assuming a jury would not have found true the final three aggravating facts (the existence of a particularly vulnerable victim; the presence of a high degree of cruelty, viciousness, and callousness; and violent conduct that reflects a serious danger to society), there is no reasonable probability the trial court would have imposed the lower or middle term if it had complied with the current DSL and those facts had been rejected. Five aggravating facts remain, all either found in compliance with the current DSL or supported by strong and undisputed evidence, and there are no mitigating facts. The two aggravating facts that the trial court specifically emphasized at sentencing (parole status and numerous prior convictions) remain valid. There is no reasonable probability that the absence of three of the eight aggravating facts considered by the trial court would have changed the court‘s conclusion that the upper term was appropriate. Any error under the current DSL in failing to provide Lynch the right to a jury trial on these aggravating facts was therefore harmless.9
In sum, applying the current DSL retroactively to Lynch‘s sentencing, the trial court did not err under the
GUERRERO, C. J.
Notes
If no aggravating facts had been proved in accordance with the
I note that, even under the majority‘s view that every fact used to justify an upper term sentence must be proved in accordance with the
While I agree that such a conclusion would render any error harmless, the majority does not explain why this harmless error inquiry must cover every aggravating fact. Unlike the elements of a crime at issue in Aledamat, an upper term sentence does not require proof of every aggravating fact identified by the trial court. The trial court could legally impose the upper term based on a subset of aggravating facts. As the majority acknowledges, “The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence.” (Maj. opn., ante, at p. 59, italics added.) In my view, even under the majority‘s conception of the
The majority responds by analogizing the absence of a jury finding on an aggravating fact to the absence of a jury finding on an element of an offense. (See maj. opn., ante, at p. 45, fn. 18, citing Neder, supra, 527 U.S. at pp. 16–19.) But, as explained above, the majority provides no justification for such equivalence. Even if one aggravating fact is absent, a court may still impose the upper term based on one or more remaining aggravating facts. The same is not true for elements of an offense. Any harmless error analysis must account for this difference, even under the majority‘s conception of the
Although the majority rejects Lynch‘s bid for automatic reversal, it sets up a standard of review that would require reversal even if a reviewing court is confident beyond a
Justice Kruger likewise places particular emphasis on language appearing in a concurring opinion in a case that addressed whether a federal Court of Appeals may apply a presumption of reasonableness to sentences falling within a properly calculated sentencing guidelines range. (Conc. & dis. opn. of Kruger, J., post, at pp. 5, 14, quoting Rita v. United States (2007) 551 U.S. 338, 373 (conc. opn. of Scalia, J.).)
As noted, the high court recently issued a decision on the scope of the Almendarez-Torres exception. (Erlinger, supra, 602 U.S. ___ [144 S.Ct. 1840].) We are poised to consider the issue in People v. Wiley (2023) 97 Cal.App.5th 676, review granted March 12, 2024, S283326.