Filed 5/10/22
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078841
Plaintiff and Respondent,
v. (Super. Ct. No. INF1701983)
FERNANDO CARLOS LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Dale R. Wells, Judge. Convictions affirmed; sentence vacated and remanded
for resentencing.
Susan K. Shaler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts III.A and III.B.
I.
INTRODUCTION
Defendant Fernando Carlos Lopez appeals from a judgment entered
after a jury found him guilty of premeditated attempted murder, assault with
a semiautomatic firearm, and being a felon in possession of a firearm. In
challenging his convictions, Lopez raises two related contentions. First,
Lopez argues that the trial court abused its discretion in denying his motion
for mistrial. Lopez contends that the prosecution was permitted to elicit
information from a witness that suggested that Lopez was a member of a
gang, and that the prosecutor’s comments about this evidence during closing
arguments implied that Lopez was a gang member, all of which violated a
pretrial ruling prohibiting evidence linking Lopez to a gang. Lopez argues in
the alternative that the court’s decision to admit what Lopez refers to as
“gang evidence” was an abuse of discretion under Evidence Code section 352
because, he asserts, the evidence was more prejudicial than probative. We
conclude that neither of these arguments has merit.
After full briefing on appeal was completed in this matter, Lopez
sought leave to file two supplemental briefs in which he contends that this
court should vacate his sentence and remand for resentencing in light of
recent ameliorative changes to two different sentencing schemes applicable to
his case. We agree with Lopez that he is entitled to resentencing given the
recent changes in the law, which the parties agree apply retroactively to
nonfinal cases.1 We therefore affirm Lopez’s convictions, but vacate his
1 Although the People concede that the recent changes in the law apply
retroactively to nonfinal cases, the People do not concede that remand for
resentencing is necessary in this case. We conclude otherwise, as discussed
in part III.C, post.
2
sentence and remand to allow the trial court to resentence Lopez under
current sentencing laws.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Lopez and Gabriel A., who are cousins, lived near each other in
Coachella. On the morning of November 4, 2017, Lopez and Gabriel drove to
the home of a friend of Gabriel’s mother.2 The friend was not home, so they
decided to visit another cousin, Gilbert R., in Indio.
According to Gilbert’s testimony at trial,3 when Lopez and Gabriel
arrived, all three men used methamphetamine. Gabriel testified that only
Gilbert and Lopez “started doing lines [of methamphetamine].” Gabriel had
brought some cigarettes. Lopez wanted to smoke the last one, but Gabriel
refused to give Lopez the cigarette. Lopez seemed upset that Gabriel did not
want to give Lopez his last cigarette. Gabriel testified that he thought that
he and Lopez “ended up sharing the last [cigarette].”
Gabriel went out to the front yard and began to water the lawn. As he
was watering the lawn, he heard a loud noise and his ears started to ring. He
bent over and “grabbed the back of [his] head”; he “knew something was
wrong.” Gabriel recognized the sound as a gunshot.
Gabriel turned around and saw Lopez standing and “fumbling with” a
nine-millimeter semi-automatic handgun; Gabriel was familiar with guns
2 At the time of these events, Gabriel was on parole and lived with his
mother. He was also a long-time drug user.
3 Gilbert was subpoenaed to testify and was a reluctant witness.
3
and recognized the type of firearm that Lopez was holding. The gun
appeared to be jammed.
Gabriel watched as Lopez made several attempts to clear the jammed
cartridge. Lopez kept looking back and forth between the firearm and
Gabriel; Gabriel thought that Lopez was “getting nervous.” Gabriel asked
Lopez multiple times, “ ‘Why me, primo? What’s going on?’ ” At first Lopez
did not respond to Gabriel, but Lopez eventually locked eyes with Gabriel and
said, “ ‘You better run.’ ”
Gabriel took off running to a nearby house where he knocked on the
door. No one answered. In the meantime, Gilbert had come to the front of
the house after having heard a loud noise that sounded “like a pop.” Gilbert
and Lopez “were actually trying to get [Gabriel] to come back” to Gilbert’s
house, but Gabriel refused, telling Gilbert that Lopez had shot him.
Gabriel ran to another house but there was no answer at that house,
either. Gabriel then saw a vehicle pull into the driveway of a third house,
and he ran there to seek assistance. Someone at that house called the police.
When police and paramedics arrived at the scene, Gabriel was sitting
on a curb holding a towel to the back of his head. A “substantial amount of
blood [was] coming down from his head and neck area.” Gabriel gave a
responding detective a false name; Gabriel was concerned that there might be
an outstanding warrant for his arrest because he was on parole and had
failed to attend required drug classes. Gabriel told a detective that someone
in a red car had driven by and shot him.
Gabriel was transported to a hospital. The detective arrived at the
hospital to speak with him further. While at the hospital, Gabriel repeated
his story about being the victim of a drive-by shooting and told the detective
that he did not want the shooter to be prosecuted. In the meantime, the
4
detective had learned that Gabriel had given him a false name, and he
believed that he knew Gabriel’s real name. The detective confronted Gabriel
with this information. Gabriel admitted that he had lied to the detective
because he was afraid that there was “a parole hold on him.”
When the detective asked Gabriel who had shot him, Gabriel asked for
a notepad and pen. According to the detective, Gabriel appeared to be “a
little reluctant, seemed a little frightened.” Gabriel wrote down Lopez’s name
on the piece of paper; he did not want anyone to hear him say Lopez’s name
because he was “scared” and “afraid of retaliation.” He expressed that he was
reluctant to press charges and “needed to think about it.” At trial, Gabriel
testified that part of his reason for initially lying about the incident was
because he was scared to be labeled a “rat” or a “snitch[ ].” He explained that
the people in his neighborhood, including some gang members, tend to avoid
talking to the police.
Later, a different detective spoke with Gabriel’s mother. She told the
detective that Gilbert had told her that Lopez shot Gabriel. This detective
then spoke with Gabriel, and presented Gabriel with a photographic lineup.
Gabriel identified Lopez as the person who shot him. The detective also
interviewed Gilbert. Gilbert was reluctant to discuss the shooting, but he
eventually told the detective that when he went to his front yard after
hearing a loud pop, he saw Gabriel running to a neighbor’s house; Lopez ran
in the opposite direction, jumped over a wall, and fled. When Gilbert asked
Gabriel later that day what happened, Gabriel said, “ ‘He shot me.’ ” Gilbert
indicated to the detective that he had overheard an argument between Lopez
and Gabriel about cigarettes, and further indicated that his impression was
that Lopez was upset with Gabriel and “took [Gabriel’s comments] as very
disrespectful.”
5
B. Procedural background
An information filed in January 2018 charged Lopez with willful,
deliberate, and premeditated attempted murder (Penal Code,4 §§ 187,
subd. (a), 664; count 1); assault with a semiautomatic firearm (§ 245,
subd. (b); count 2); and being a felon in possession of a firearm. (§ 29800,
subd. (a); count 3). With respect to count 1, the information alleged that
Lopez used a firearm during the commission of the offense (§ 12022.53,
subds. (d) and (e)), and that he personally inflicted great bodily injury on the
victim (§ 12022.7, subd. (a)). With respect to count 2, the information alleged
that Lopez personally used a firearm during the commission of the offense
(§ 12022.5, subd. (a)), and that he inflicted great bodily injury on the victim
(§ 12022.7, subd. (a)). Finally, the information alleged that Lopez had
previously suffered a strike conviction (§ 667, subd. (c)) and a serious felony
conviction (§ 667, subd. (a)), and that he had served five prior prison terms
(§ 667.5, subd. (b)).
On October 7, 2020, a jury convicted Lopez on all three counts. The
jury found true the allegations regarding Lopez’s use of a firearm and the
infliction of great bodily injury. In a bifurcated court trial, the court found
true that Lopez had suffered a prior “strike” conviction and a prior serious
felony conviction (§ 667, subds. (a), (c), & (e)(1)).
The trial court sentenced Lopez to prison for an indeterminate term of
39 years to life, plus a determinate term of 11 years. The 39-years-to-life
term consisted of a term of 14 years to life with respect to count 1, plus an
additional 25 years to life for the related firearm enhancement; the
determinate term consisted of an upper term of 6 years with respect to count
4 Further statutory references are to the Penal Code unless otherwise
indicated.
6
3, and a consecutive term of 5 years with respect to the serious felony
enhancement. The court imposed but stayed the sentence as to count 2 and
its enhancements, pursuant to section 654.
Lopez filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not abuse its discretion in denying Lopez’s motion
for mistrial
Lopez contends that the trial court erred in denying his motion for
mistrial, which was based on the ground that the prosecutor introduced
“gang evidence” at trial and made references to this evidence during closing
argument, in violation of a pretrial ruling that such evidence would be
excluded.
1. The ruling on the motions in limine
Prior to trial, Lopez filed a motion in limine requesting that any gang
evidence be excluded. The prosecution filed a motion in limine seeking the
admission of evidence regarding Lopez’s association with a gang; according to
the prosecution, the case involved gang-related matters.
During argument on the issue, the prosecutor contended that evidence
regarding Lopez’s gang involvement was admissible to explain why Gabriel
initially lied to the police about who had shot him. The trial court ruled that
gang evidence would be excluded on the ground that such evidence was more
prejudicial than probative under Evidence Code section 352, but stated that
the court could revisit the issue, depending on how the presentation of
evidence evolved at trial.
Later, the trial court held an Evidence Code section 402 hearing
regarding the scope of admissibility of references to gangs in the context of
7
explaining Gabriel’s initial statements to police. At that hearing, Gabriel
testified about the shooting. Gabriel acknowledged that he had been a
member of a gang but had dropped out of the gang approximately four years
prior to the shooting. At the conclusion of the hearing, the court ruled that,
with respect to Gabriel’s initial false story to police about the circumstances
of the shooting, evidence regarding the fact that Gabriel’s family and friends
may have had connections to a gang would be admissible to explain Gabriel’s
concern about police involvement. However, evidence that the shooting was
somehow gang-related, including evidence that Gabriel had been in a gang
but dropped out, would not be admitted. The court expressly stated that the
prosecutor would not be permitted to elicit information regarding Lopez’s
involvement in a gang, and would also not be permitted to connect Lopez to a
gang to explain why the shooting took place.
2. The evidence elicited at trial
The evidence elicited at trial demonstrated that Gabriel initially
provided police with a false story about the circumstances of the shooting,
stating that it had been a drive-by shooting and that he did not know who
had shot him. Gabriel explained that he gave police the false story because
he was worried about being labeled a “rat” or a “snitch[ ].” Gabriel was
permitted to explain that people in his neighborhood, which included gang
members, do not like the police and are not cooperative with them. When
asked why he had been afraid to identify Lopez as the shooter when he was
being questioned at the hospital, Gabriel testified, over a defense motion to
strike, that he had been afraid “because I know what type of person he is.”
3. Closing arguments and the motion for mistrial
During closing arguments, the prosecutor commented on Gabriel’s
testimony regarding his reluctance to tell police the truth about the shooting:
8
“He told us about his walk of life, living in the streets as he
put it. He told us about how cooperating with law
enforcement when you’re one of the people in this sort of
community who lives in the streets will put him at risk of
physical harm. It’s kind of the code of the streets that he
be labeled as a rat.
“It’s kind of like the phrase most of us have heard snitches
get stitches. Kind of told us about that walk of life. He
came in here and told [it] like it was. He told us about his
familial relationship with the defendant, Mr. Lopez, them
being cousins, that they grew up together. That he has
known Mr. Lopez his entire life. That he was close to his
cousin. Close until that one day. Close until November
4th, 2017, when the defendant shot him.”
The prosecutor also specifically addressed Gabriel’s false story:
“But that statement was also in front of other people.
People from the community, people from his family right in
front of as – [Gabriel] referred to him Gibby, Gilbert . . . as
he’s being interviewed by Detective Longoria.
“We heard from [Gabriel] that his family and friends in
that sort of community don’t want anything to do with law
enforcement or their sort of business, that his family and
friends are in gangs, that by testifying or cooperating with
law enforcement puts your life in danger. This is a guy who
was just shot in the back of the [head]. His life is already
in danger at this point. And his concern about his life
continuing to be in danger, how is that not reasonable in
that situation? Then he goes to the hospital. At the
hospital he does give Detective Longoria his real name.
And he does tell the truth about what occurred.”
After the prosecutor concluded his argument, Lopez’s attorney moved
for a mistrial, arguing that the prosecutor had “described the neighborhood
as gang related or gang infested or gang influenced,” which, he contended,
violated the trial court’s pretrial ruling regarding the limitation as to what
9
would be a permissible reference to gangs. The trial court denied the motion,
stating, “[T]he ruling was that they were not to draw a line between
defendant and gangs, and they didn’t. He didn’t.” Lopez’s attorney continued
to argue that the prosecutor’s comments implied that Lopez was a gang
member, but the court reiterated that it had ruled that there could be no
reference to the shooting having been in retaliation for Gabriel dropping out
of a gang, or to Lopez’s gang membership; the court determined that the
prosecutor’s comments had not violated either prohibition.
4. Analysis
We review a trial court’s ruling on a motion for a mistrial for an abuse
of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.) “ ‘ “[A] mistrial
should be granted if the court is apprised of prejudice that it judges incurable
by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court
is vested with considerable discretion in ruling on mistrial motions.” ’ ”
(People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Lopez’s argument with respect to the purported “gang evidence” is
based on the premise that “the evidence and argument of the prosecutor
regarding gangs went beyond what was permissible under the trial court’s
pretrial ruling.” Lopez contends that the trial court ruled pretrial that the
prosecution could not link Lopez to a gang, and that despite this ruling, “[t]he
jury obviously learned Lopez had gang connections.” According to Lopez,
“[t]he only reasonable inference the jury could make from [Gabriel’s]
testimony about ‘rats’ and ‘snitches,’ gang members in the neighborhood, and
[Gabriel] knowing ‘what type of person [Lopez] is,’ [citation], was that Lopez
had gang connections.” We disagree with the premise of Lopez’s argument.
10
The trial court’s pretrial ruling was that Gabriel could explain that he
did not want the police involved because he had family members and friends
who were involved in a gang, but that the prosecutor could not link Lopez to a
gang. The evidence that the prosecutor elicited from Gabriel was consistent
with the trial court’s ruling. Further, the prosecutor’s comments about
Gabriel’s explanation as to why he initially gave a false story to police
similarly hewed to the trial court’s ruling. None of the statements made by
Gabriel, and none of the prosecutor’s comments about Gabriel’s story, linked
Lopez to a gang. Nor did this evidence imply that Lopez was a gang member
and that it was Lopez’s gang membership that caused Gabriel to be fearful of
him. Gabriel testified that there were gang members in his neighborhood,
generally. This does not suggest that Lopez is a gang member; in fact, one
could reasonably infer from this testimony that Lopez was not in a gang,
given the mention of there being gang members in both the neighborhood and
in Gabriel’s family, and no testimony suggesting that Lopez was in a gang.
Further, Gabriel’s reference to knowing “what type of person” Lopez is did
not suggest that Lopez is a gang member. Rather, as the facts of the case
demonstrate, Lopez is the “type of person” who would shoot someone in the
back of the head over an argument about a cigarette. Thus, this comment
from Gabriel, even in the context of the generic references to knowing that
there were gang members in his neighborhood, did not suggest that Lopez
was a gang member.
The trial court reasonably concluded that the evidence elicited from
Gabriel and the prosecutor’s comments about this evidence did not suggest a
connection between Lopez and a gang, and that the evidence and the
prosecutor’s comments about the evidence were consistent with the trial
court’s pretrial in limine ruling. Given our conclusion that there was no
11
violation of the trial court’s pretrial ruling, there could not have been
incurable prejudice to Lopez. Thus, the trial court clearly did not abuse its
discretion in denying Lopez’s motion for mistrial.5
B. The trial court did not abuse its discretion in allowing the prosecutor to
elicit evidence, including a reference to gangs, to explain why Gabriel
initially provided a false story to police
In a second, related argument, Lopez contends that the trial court
abused its discretion in not prohibiting all references to gangs or gang
members at trial. He argues that “the trial court’s pretrial ruling was not
sufficiently broad and should have excluded all references to gangs to avoid
undue prejudice to Lopez and a fundamentally unfair trial.” According to
Lopez, the trial court’s ruling permitting Gabriel to discuss gangs in the
context of explaining why he initially provided police with a false story
constituted an abuse of discretion under Evidence Code section 352 because it
“had marginal relevance to [Gabriel’s] credibility,” and was “inevitably
destined to [cause] the jury [to] conclud[e] Lopez had a gang association.”
Under Evidence Code section 352, “[t]he court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “ ‘ “Evidence is not prejudicial . . . merely because it
undermines the opponent’s position or shores up that of the proponent. The
ability to do so is what makes evidence relevant. The code speaks in terms of
5 Nor did the trial court’s denial of Lopez’s motion for mistrial result in
the denial of due process, as Lopez argues. As we have explained, the
evidence that the trial court admitted did not imply that Lopez was a gang
member; the denial of Lopez’s motion for mistrial therefore did not render his
trial fundamentally unfair.
12
undue prejudice. Unless the dangers of undue prejudice, confusion, or time
consumption ‘ “substantially outweigh” ’ the probative value of relevant
evidence, [an Evidence Code] section 352 objection should fail. [Citation.]
‘ “The ‘prejudice’ referred to in [the statute] applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying
[Evidence Code] section 352, ‘prejudicial’ is not synonymous with
‘damaging.’ ” [Citation.]’ [Citation.] [¶] The prejudice that [the statute] ‘ “is
designed to avoid is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.” [Citations.] “Rather, the
statute uses the word in its etymological sense of ‘prejudging’ a person or
cause on the basis of extraneous factors. [Citation.]” [Citation.]’ [Citation.]
In other words, evidence should be excluded as unduly prejudicial when it is
of such nature as to inflame the emotions of the jury, motivating them to use
the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors’ emotional reaction. In
such a circumstance, the evidence is unduly prejudicial because of the
substantial likelihood the jury will use it for an illegitimate purpose.” ’ ”
(People v. Scott (2011) 52 Cal.4th 452, 490–491.)
We review a trial court’s evidentiary rulings for an abuse of discretion.
(People v. Valdez (2004) 32 Cal.4th 73, 108.)
It is clear that the trial court did not abuse its discretion in ruling that
evidence regarding Gabriel’s understanding that his neighbors, and even his
friends and family, some of whom were affiliated with gangs, would not
approve of him cooperating with police, was more probative than prejudicial
under Evidence Code section 352, despite the fact that this evidence would
indicate that Gabriel was aware of gangs in his social sphere. This evidence
13
was probative to explain why Gabriel initially provided a false story to police;
the question of Gabriel’s credibility was particularly relevant in this case
because the defense’s theory was that Gabriel was lying at trial, and that his
initial story that he had been shot in a drive-by shooting was true.
Further, there was no prejudice to Lopez from the admission of
Gabriel’s explanation for his initial false story, even if that explanation
included an oblique reference to gangs. Lopez’s argument regarding
prejudice arising from the admission of the purported “gang evidence”
connected to Gabriel’s explanation of his false story to police rests on the
same faulty presumption that his argument regarding the denial of his
motion for a mistrial rested: Lopez presumes that Gabriel’s reference to
there being gang members in his neighborhood and family was the equivalent
of evidence linking Lopez to a gang.6 However, as we have previously
explained, we disagree with the suggestion that the jury would conclude that
Lopez was a gang member as a result of Gabriel’s testimony that some people
in his neighborhood and family were affiliated with gangs. Because we reject
the presumption that Gabriel’s testimony regarding why he initially provided
a false story to police linked Lopez to a gang, we also reject Lopez’s argument
that the trial court should have concluded that such evidence was more
prejudicial than probative under Evidence Code section 352.7
6 For example, Lopez asserts in this argument section that “[i]t was a
certainty the jury would attribute [Gabriel’s] fear and initial false statement
to Lopez’s gang status once any hint of gangs was admitted into evidence.”
7 To the extent that Lopez also argues that the trial court’s evidentiary
ruling violated due process, we reject this contention, as well. (See People v.
Lapenias (2021) 67 Cal.App.5th 162, 174 [“Generally, a court’s compliance
with the rules of evidence does not violate a defendant’s right to due
process”].) We also conclude that Lopez’s contention that the “admission of
14
C. Changes to sentencing laws that took effect while this case was pending
At the time Lopez was sentenced, the trial court had broad discretion to
determine whether imposition of the lower, middle, or upper term with
respect to count 3 “best serve[d] the interests of justice.” (Former § 1170,
subd. (b).) Consistent with the law at that time, the trial court identified a
number of factors in aggravation and no factors in mitigation, and it
ultimately chose to impose an upper term sentence on count 3 based on these
aggravating factors.8
While Lopez’s appeal was pending, the Governor signed Senate Bill
No. 567 (Stats. 2021, ch. 731), which made significant changes to section 1170
and became effective on January 1, 2022. Pursuant to Senate Bill No. 567,
section 1170, subdivision (b) has been amended to make the middle term the
presumptive sentence for a term of imprisonment; a court now must impose
the middle term for any offense that provides for a sentencing triad unless
“there are circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term, and the
facts underlying those circumstances have been stipulated to by the
gang evidence . . . deprived Lopez of his right to an accurate jury
determination of the facts” is without merit.
8 The trial court noted the following factors in aggravation at sentencing:
(1) the crime involved great violence and cruelty, viciousness or callousness;
(2) the defendant was armed with a weapon at the time of the crime; (3) the
victim was particularly vulnerable; (4) the crime indicated
sophistication/planning; (5) the defendant took advantage of a position of
trust; (6) the defendant’s violent conduct indicates a serious danger to society;
(7) the defendant’s prior convictions are numerous and of increasing
seriousness; (8) the defendant served a prior prison term; and (9) the
defendant’s prior performance on probation, mandatory supervision, post
release community supervision or parole was unsatisfactory. (Cal. Rules of
Court, rule 4.421(a)(1), (a)(2), (a)(3), (a)(8), (a)(11), (b)(1), (b)(2), (3), & (b)(5).)
15
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(1) & (2).)
The People properly concede that Senate Bill No. 567’s ameliorative
amendments to section 1170, subdivision (b) apply retroactively to all cases
not yet final as of January 1, 2022. (See People v. Flores (2022)
73 Cal.App.5th 1032, 1039, citing People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 308.) The People argue, however, that despite the retroactive
application of Senate Bill No. 567’s provisions to Lopez’s case, remand for
resentencing is not required because (a) the record demonstrates that if a
jury had been asked to make a finding on the aggravating factors, it would
have found one or more of them true beyond a reasonable doubt, and/or
(b) the trial court’s reliance on at least one aggravating factor that was not
required to be found true by a jury means that the court’s selection of the
upper term was permissible and may be affirmed.
With respect to the first of these contentions as to why remand is
unnecessary, the People assert that Lopez cannot demonstrate that the fact
that the new law did not apply to Lopez at the time of sentencing was
prejudicial because, according to the People, the record demonstrates that a
jury would have found true, beyond a reasonable doubt, the aggravating
factors on which the trial court relied in selecting the upper term with respect
to count 3.9
We agree with the People’s contention that where a sentencing factor
must be found true by a jury beyond a reasonable doubt and the court fails to
9 According to the People, “it is beyond a reasonable doubt that a jury
would have found true at least one, if not all, of the other aggravating factors
noted by the court in support of the upper term given the violent nature of
the offense, and the vulnerability of the victim when appellant shot him in
the back of the head.”
16
submit that factor to the jury, the error in the court’s reliance on that fact
may be subject to harmless error review as to whether the lack of a finding by
the jury was prejudicial: “ ‘Failure to submit a sentencing factor to the jury,
like failure to submit an element [of the crime] to the jury, is not structural
error.’ [Citation.] Such an error does not require reversal if the reviewing
court determines it was harmless beyond a reasonable doubt, applying the
test set forth in Chapman v. California (1967) 386 U.S. 18 . . . .
[Citation.] . . . The failure to submit a sentencing factor to a jury may be
found harmless if the evidence supporting that factor is overwhelming and
uncontested, and there is no ‘evidence that could rationally lead to a contrary
finding.’ (Neder [v. United States (1999)] 527 U.S. [1,] 19 . . .)” (People v.
French (2008) 43 Cal.4th 36, 52–53 (French), fn. omitted.)
In order to conclude that the trial court’s reliance on improper factors
that were not found true by a jury or admitted by Lopez was not prejudicial,
we would have to conclude beyond a reasonable doubt that a jury would have
found true beyond a reasonable doubt every factor on which the court relied,
because the amended statute requires that every factor on which a court
intends to rely in imposing an upper term, with the exception of factors
related to a defendant’s prior conviction(s), have been admitted by the
defendant or proven to a jury (see § 1170, subd. (b)).10 We disagree with the
10 Although the People assert with respect to this argument that this
court can conclude beyond a reasonable doubt that a jury would have found
true beyond a reasonable doubt all of the aggravating factors (unrelated to
Lopez’s prior convictions) on which the trial court relied in imposing the
upper term, the People also suggest that we could conclude that at least one
aggravating factor would have been found true beyond a reasonable doubt,
and that the presence of a single valid factor would be sufficient to obviate
the need to remand the case for resentencing. However, the presence of a
single valid aggravating factor is insufficient to permit a reviewing court to
affirm a sentence imposed in violation of the revised version of section 1170,
17
People’s suggestion that this test is met in this case. Because the prior
version of the Determinate Sentencing Law did not require the prosecution to
present evidence directly related to the aggravating factors at trial, the
evidence in the record does not permit us to assess whether a jury would have
found these factors true beyond a reasonable doubt. Further, Lopez would
have had no reason to present evidence that might have contradicted
evidence supporting truth of the facts underlying the aggravating factors
relied on by the trial court. As a result, we cannot say that as to every factor
“the evidence supporting that factor is overwhelming and uncontested, and
there is no ‘evidence that could rationally lead to a contrary finding.’
[Citation.]” (French, supra, 43 Cal.4th at pp. 52–53, fn. omitted.) It would be
entirely speculative for us to presume, based on a record that does not
directly address the aggravating factors, what a jury would have found true
in connection with these factors. We therefore cannot affirm Lopez’s sentence
on this basis.
We also reject the People’s suggestion that we need not remand for
resentencing because the trial court relied on at least one permissible
factor—i.e., a factor related to Lopez’s record of prior convictions—that does
not require an admission or a true finding under the amended version of the
statute. Pursuant to subdivision (b)(3) of section 1170, a trial court “may
consider the defendant’s prior convictions in determining sentencing based on
subdivision (b). Rather, as we explain in more detail in the next paragraph
in the text, a determination by a reviewing court that a jury would have
found true only some subset of the aggravating factors on which the trial
court relied in selecting an upper term sentence (or that the record reflects
the presence of one or more otherwise valid factors based on a defendant’s
prior convictions) would require the reviewing court to conduct a second
prejudice inquiry, i.e., whether there is a reasonable probability that the trial
court would have selected a term other than the upper term if it had relied
solely on a subset of the original factors on which it previously relied.
18
a certified record of conviction without submitting the prior convictions to a
jury.” The People contend that because the court could have relied on the fact
that Lopez had prior convictions without submitting that fact to the jury, the
trial court’s imposition of the upper term sentence on count 3 may be
affirmed. However, as we previously noted, the second question regarding
the possible prejudice to a defendant in this situation is not whether the trial
court could have relied on the single aggravating factor of Lopez’s recidivism
to impose the upper term sentence; 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. Rather, the second relevant
prejudice question is whether we can be assured that the trial court would
have exercised its discretion to impose the upper term based on a single
permissible aggravating factor, or even two or three permissible aggravating
factors, related to the defendant’s prior convictions, when the court originally
relied on both permissible and impermissible factors in selecting the upper
term. When a trial court increases a defendant’s sentence by relying on
factors that are inapplicable, duplicative, or improperly weighed, a reviewing
court assesses the prejudice to the defendant by determining whether it is
reasonably probable that a more favorable sentence would have otherwise
been imposed absent the trial court’s improper reliance on such factors.
(People v. Scott (1994) 9 Cal.4th 331, 355.) This is because “ ‘[d]efendants are
entitled to sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed
discretion” than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant’s record.’
[Citation.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see People v.
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Marquez (1983) 143 Cal.App.3d 797, 803 [“an erroneous understanding by the
trial court of its discretionary power is not a true exercise of discretion”].)
Therefore, where a trial court cannot have acted with “ ‘ “informed
discretion,” ’ ” “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.]” (Gutierrez, at p. 1391.)11
11 Given this analysis, we respectfully disagree with a recent opinion by
Division Three of the First Appellate District in People v. Flores (2022)
75 Cal.App.5th 495. The Flores court concluded that even where a defendant
is entitled to retroactive effect of Senate Bill No. 567 on appeal, an upper
term may be affirmed without remanding for resentencing as long as the
reviewing court is satisfied, beyond a reasonable doubt, that “the jury would
have found true at least one aggravating circumstance.” (Flores, at
pp. 500−501, citing People v. Sandoval (2007) 41 Cal.4th 825, 839.) The
question of prejudice under retroactive application of the revised triad system
involves a two-step process, neither of which includes a determination as to
whether the trial court relied on a single, or even a few, permissible factors in
selecting an upper term. Rather, under the new version of the triad system
set forth in section 1170, the initial relevant question for purposes of
determining whether prejudice resulted from failure to apply the new version
of the sentencing law is whether the reviewing court can conclude beyond
reasonable doubt that a jury would have found true beyond a reasonable
doubt all of the aggravating factors on which the trial court relied in
exercising its discretion to select the upper term. If the answer to this
question is “yes,” then the defendant has not suffered prejudice from the
court’s reliance on factors not found true by a jury in selecting the upper
term. However, if the answer to the question is “no,” we then consider the
second question, which is whether a reviewing court can be certain, to the
degree required by People v. Watson (1956) 46 Cal.2d 818, 836, that the trial
court would nevertheless have exercised its discretion to select the upper
term if it had recognized that it could permissibly rely on only a single one of
the aggravating factors, a few of the aggravating factors, or none of the
aggravating factors, rather than all of the factors on which it previously
relied. If the answer to both of these questions is “no,” then it is clear that
remand to the trial court for resentencing is necessary.
20
The record does not clearly indicate that the trial court would have
exercised its discretion to impose an upper term based on an aggravating
factor relating to Lopez’s prior convictions, particularly given that the court
relied on a long list of aggravating factors in selecting the upper term. The
trial court offered no indication that it would have selected an upper term
sentence even if only a single aggravating factor or some subset of
permissible factors were present. Because we cannot conclude that the trial
court would have selected an upper term sentence based on a single
permissible aggravating factor or on some constellation of permissible
aggravating factors, we conclude that remand is required to allow the trial
court the opportunity to exercise its discretion to make its sentencing choice
in light of the recent amendments to section 1170.
On remand, the People may elect to proceed under the requirements of
the newly-amended version of section 1170, subdivision (b), which would
permit the People to prove the existence of aggravating factors beyond a
reasonable doubt to a jury, unless the defendant waives the right to a jury
and agrees to have the factors decided by the court beyond a reasonable
doubt; alternatively, the People may accept resentencing on the record as it
stands.
In a separate supplemental brief, Lopez contends that he is entitled to
resentencing pursuant to the revised version of Penal Code section 654,
which was amended by Assembly Bill No. 518 (Stats. 2021, ch. 441), effective
January 1, 2022. Assembly Bill No. 518 amended Penal Code section 654 to
remove the requirement that a court impose the longest sentence when a
defendant is convicted of more than one offense arising from the same
conduct, such that a court now has discretion to select a longer or shorter
sentence when Penal Code section 654 applies. (See § 654, subd. (a).)
21
Because we have concluded that we must vacate Lopez’s sentence and
remand for resentencing, on remand the trial court may revisit all of its prior
sentencing decisions in light of all new legislation, including Assembly Bill
No. 518. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [“[T]he full
resentencing rule allows a court to revisit all prior sentencing decisions when
resentencing a defendant”]; accord, People v. Buycks (2018) 5 Cal.5th 857,
893.)
IV.
DISPOSITION
Lopez’s convictions are affirmed; his sentence is vacated. On remand,
with respect to count 3, the People may elect to proceed by meeting the
requirements of the amended version of section 1170, subdivision (b)(2)
regarding the requirement that true findings on facts underlying aggravating
circumstances other than a prior conviction be found by a jury or admitted by
the defendant, or alternatively, to have the court resentence Lopez on the
record as it stands. After the People make this election, and after the court
conducts any further proceedings that may be necessary, the trial court is
directed to resentence Lopez consistent with current applicable sentencing
laws.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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