People v. Singh CA5

Filed 9/6/22 P. v. Singh CA5
See concurring & dissenting opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Consolidated Cases Nos.
F082580 & F082584
Plaintiff and Respondent,
(Super. Ct. Nos. MCR060145,
v. MCR060560)

HARMAN PREET SINGH,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Christopher J.
Rench, and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

SEE CONCURRING AND DISSENTING OPINION
 Defendant Harman Preet Singh challenges the trial court’s conclusion he violated
a condition of probation, resulting in a revocation of that probation. Through
supplemental briefing, defendant also challenges the sentence imposed as violating Penal
Code1 section 1170, following amendments to that provision effective January 1, 2022.
We affirm.
PROCEDURAL SUMMARY
This opinion addresses two separate appeals from cases brought against defendant
in the Madera County Superior Court cases Nos. MCR060145 and MCR060560. On this
court’s own motion, the appeals were consolidated. On August 20, 2018, the Madera
County District Attorney filed a complaint against defendant in case No. MCR060145,
alleging defendant committed arson (§ 451, subd. (d); count 1) and attempted to set fire
to a structure (§ 455; count 2). On September 28, 2018, the Madera County District
Attorney filed a second amended complaint against defendant in case No. MCR060560,
alleging he made a criminal threat that was likely to result in death or great bodily injury
to his mother (§ 422, subd. (a); count 1), made a criminal threat that was likely to result
in death or great bodily injury to his father (§ 422, subd. (a); count 2), and committed
misdemeanor battery against his mother (§ 242; count 3).
On April 22, 2019, defendant pled guilty to count 1 in case No. MCR060560.
During the same hearing, defendant also pled guilty to count 1 in case No. MCR060145.
The trial court then suspended imposition of sentence and placed defendant on probation
for a period of five years for both cases Nos. MCR060145 and MCR060560, and
dismissed the remaining counts alleged against him. At the time probation was granted,
various conditions were imposed, including requirements that defendant attend all future
court appearances and “[r]eport monthly or as directed by the Probation Officer.”

1 All future statutory references are to the Penal Code unless otherwise noted.

2.
 On September 29, 2019, a petition to revoke defendant’s probation was filed in
case No. MCR060560. A similar petition was filed in case No. MCR060145 on
September 30, 2019. While both petitions stated defendant failed to “[r]eport monthly or
as directed by the Probation Officer,” the petition in case No. MCR060145 also included
the failure to register as required by section 457.1 (requiring registration after a
conviction for arson). On August 21, 2020, defendant admitted the violations listed in
both petitions. On September 21, 2020, the trial court ordered defendant to serve 120
days in jail in case No. MCR060145, then reinstated the same terms and conditions of
probation in both cases as set out earlier.
New petitions to revoke probation were filed on November 13, 2020, alleging
defendant violated two conditions of probation in each case. Specifically, both petitions
alleged defendant failed to “[o]bey all laws, federal, state and local,” and did not “[r]eport
monthly or as directed by the Probation Officer.” Following a contested hearing,
defendant was found to have violated the probation condition requiring him to report to
his probation officer as ordered.
On March 24, 2021, the trial court revoked defendant’s probation and sentenced
him to three years (the upper term) on count 1 in case No. MCR060145 and designated
this the principal term. The trial court then imposed a consecutive term of eight months
(one-third the middle term of two years) for count 1 in case No. MCR060560,2 for a total
prison term of three years eight months.

2 The trial court indicated it imposed a sentence on count 2 of case
No. MCR060560. However, defendant pled guilty to count 1 in case No. MCR060560
and count 2 was dismissed. Both counts alleged a violation of section 422. Other than
being imposed on the wrong count, the sentence imposed was consistent with the plea
agreement. The trial court mistakenly imposed a sentence on count 2 that should have
been imposed on count 1. Defendant need not be resentenced over what amounts to a
clerical error. In this situation, we treat as done that the parties agreed to have done and
which should have been done. (Godfrey v. Witten (1956) 138 Cal.App.2d 610, 615.) We

3.
 On the same date, defendant filed a notice of appeal as to both cases.
FACTUAL SUMMARY3
Case No. MCR060145
On August 17, 2017, Madera Police Officer Kellom was dispatched to assist “Cal
Fire” (Department of Forestry and Fire Protection) personnel who were fighting a fire
near a home. The individual who was seen setting the fire on surveillance footage
returned to the scene while the firefighters were there. The firefighters pointed out this
individual, who was later identified as defendant, to Kellom. Kellom reported defendant
smelled of alcohol, seemed agitated, and tried to leave. Defendant was detained and
placed in the back of Kellom’s vehicle. A lighter was eventually found in defendant’s
front pocket.
Case No. MCR060560
On September 23, 2018, Madera Police Officer Garcia was dispatched to a home
where he encountered defendant’s brother. Defendant’s brother reported defendant
threatened to assault their mother after getting angry. His brother also stated defendant
grabbed an oxygen tank and threatened to “blow up the house and kill his family.”
Probation Revocation Proceedings
The revocation hearings for both cases Nos. MCR060145 and MCR060560 were
held concurrently on December 4, 2020. During the hearing, Madera County Probation
Officer Magallanes testified defendant was required to report to the probation department
at least monthly, and that he was specifically instructed to report on November 3, 2020.
Defendant did not meet with Magallanes on November 3. Magallanes also determined
there were no records showing defendant met with anyone else in the probation

will direct the trial court to issue an amended abstract of judgment reflecting that the
eight-month term of imprisonment was imposed on count 1 of case No. MCR060560.
3The specific facts underlying the charges in our factual summary are found in the
probation reports.

4.
department on November 3. Magallanes testified that in the past defendant kept some
appointments, but not all.
Defendant testified in his own behalf and admitted knowing he had an
appointment with probation on November 3, 2020. Defendant testified he called the
probation department on November 3, and that it was “on [his] phone history.”
Defendant claimed he was unable to reach anyone in the office because no one picked up
the phone. During his testimony, defendant mentioned he had been arrested, but
provided no specific evidence verifying this fact. On cross-examination, defendant
admitted that his attempt to call probation did not occur until two to three days after
November 3, 2020.
At the conclusion of the hearing, the trial court found defendant “violated the
terms of his probation in failing to contact [the probation department] on the date
specified,” and that this violation applied to both cases.
DISCUSSION
I. The Revocation of Probation
Defendant argues the revocation of his probation was improper because the trial
court permitted the People to prove his state of mind to a lesser standard than that
required by case law. Specifically, defendant contends the trial court used a strict
liability test rather than one considering whether his violation of a condition of probation
was “willful.” Both below and on appeal, defendant appears to suggest the violation of
the probation condition was “negligent” rather than “willful.” We do not agree with
defendant’s characterization of the case law on this issue and the distinctions he is
attempting to draw.
When an individual is suspected of violating terms or conditions of their
probation, they may be rearrested and subject to a hearing at which the trial court
considers whether to revoke probation and impose a sentence. (§ 1203.2.) The
prosecution has the burden of proving the grounds supporting revocation by a

5.
preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Case
law has held a decision to revoke probation can be supported by the conclusion it serves
the “ ‘interests of justice.’ ” (People v. Galvan (2007) 155 Cal.App.4th 978, 981.) While
the facts supporting revocation may be proven by a preponderance of the evidence, “the
evidence must support a conclusion the probationer’s conduct constituted a willful
violation of the terms and conditions of probation.” (Id. at p. 982.)
Ultimately, the evidence must show a defendant has not complied with the terms
of probation, justifying the revocation of probation. (People v. Urke (2011) 197
Cal.App.4th 766, 772 (Urke).)

“ ‘Probation revocation proceedings are not a part of a criminal
prosecution, and the trial court has broad discretion in determining whether
the probationer has violated probation.’ [Citation.] [¶] . . . [A]nd great
deference is accorded the trial court’s decision, bearing in mind that
‘[p]robation is not a matter of right but an act of clemency, the granting and
revocation of which are entirely within the sound discretion of the trial
court. [Citations.]’ ” (Urke, supra, 197 Cal.App.4th at pp. 772−773.)
The discretion to revoke probation is analogous to a court’s power to grant
probation, and should not be disturbed absent abuse or some form of arbitrary action.
(Urke, supra, 197 Cal.App.4th at p. 773.) We therefore review the trial court’s decision
to revoke probation for an abuse of discretion. (People v. Butcher (2016) 247
Cal.App.4th 310, 318.) However, the trial court’s factual findings will be reviewed for
substantial evidence, and we will not reweigh conflicting evidence or determine
credibility on appeal. (Ibid.; see People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
Magallanes testified defendant had been informed when he was released from jail
in October 2020, to report to his probation officer on November 3, 2020. Defendant then
failed to meet with Magallanes on November 3. Magallanes also had no record showing
defendant attempted to reach her by phone on or around November 3. Magallanes later

6.
testified that this was not the first time defendant failed to appear for an appointment on a
designated day.4
In his own testimony, defendant admitted missing the November 3, 2020
appointment. Defendant claims he was arrested, but provided no details about that arrest.
Defendant then testified he tried to call his probation officer, but that no one picked up
the phone. Later in his testimony, defendant acknowledged his attempt to reach his
probation officer was not until two to three days after his missed appointment.
Defendant’s primary contention is that his failure to appear for the appointment
was not “willful” and cannot support the revocation of his probation. Defendant relies
heavily on the opinion in Galvan to make this point. This reliance on Galvan is
misplaced, however. In Galvan, the appellant failed to appear for an appointment with
his probation officer because he had been arrested and deported to Mexico. (People v.
Galvan, supra, 155 Cal.App.4th at p. 981.) The court concluded this failure to report was
not willful. (Id. at p. 985.)
Defendant’s reliance on this court’s decision in People v. Zaring (1992) 8
Cal.App.4th 362, is also misplaced. In Zaring, the defendant was 22 minutes late to court
due to an unforeseen problem with childcare. (Id. at p. 379.) The trial court revoked
probation. (Ibid.) This court held the failure to report was not “the result of
irresponsibility, contumacious behavior or disrespect for the orders and expectations of
the court,” nor was it a willful violation of the relevant condition of probation. (Ibid.)
In an effort to analogize his facts to those stated in Galvan and Zaring, defendant
points to his testimony that he was arrested. Defendant specifically testified:

4 In September 2020, defendant faced the risk of losing probation when he failed
to report for a meeting with probation. Instead, the trial court ordered defendant to serve
120 days in jail, then reinstated probation.

7.
 “I got arrested. Like, I knew I missed the appointment. I was going to call
them back. But it was just only two days in between, like a couple of days,
and this incident happened.”
This was the only mention of an arrest in the record. No document was placed into
evidence memorializing the arrest, and no further testimony was provided. As a result,
the trial court may have been skeptical about the authenticity of this claim.
The burden of demonstrating a trial court abused its discretion rests squarely on
the defendant. (Urke, supra, 197 Cal.App.4th at p. 773.) An appellate court should
interfere with a trial court’s exercise of discretion on denying or revoking probation only
in extreme cases. (Ibid.) “ ‘Many . . . circumstances not warranting a conviction may
fully justify a court in revoking probation granted on a prior offense.’ ” (Ibid.)
We conclude the trial court’s finding that defendant willfully violated a condition
of probation when he failed to appear for his November 3, 2020 appointment with his
probation officer, is supported by substantial evidence. We, therefore, find no abuse of
discretion.

II. The Impact of Senate Bill No. 567 on The Selection of The Upper Term
At the time defendant was sentenced, section 1170 provided the choice between
the lower, middle, and upper term “shall rest within the sound discretion of the court,”
who determines which term “best serves the interests of justice.” (§ 1170, former
subd. (b).) On January 1, 2022, amendments to section 1170 made by Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) went into effect. Defendant
contends his sentence is invalid following these amendments. We conclude that the
factual findings underlying defendant’s sentence are not consistent with the requirements
of section 1170, subdivision (b) as amended, but the error5 was harmless.

5 Throughout our discussion, we refer to section 1170, subdivision (b) “error.”
However, we note that at the time the trial court sentenced defendant, it correctly applied
the then-existing law. Accordingly, while we refer to section 1170, subdivision (b)

8.
 Under the newly amended law, the trial court may impose an upper-term sentence
only where there are circumstances in aggravation that justify the imposition of a term of
imprisonment exceeding the middle term and the facts underlying all the aggravating
circumstances have been stipulated to by the defendant or found true beyond a reasonable
doubt by a jury or by the judge in a court trial. (§ 1170, subd. (b)(1), (2).) However, an
exception is available, allowing a trial judge to rely on certified records of a defendant’s
prior convictions to prove a defendant’s prior convictions without submitting the issue to
a jury. (§ 1170, subd. (b)(3).)
When imposing the sentence after revoking probation, the trial court chose the
upper term for the violation of section 451, subdivision (d) in case No. MCR060145,
stating:

“The Court selected the aggravated term based on the facts that [1]
[defendant’s] prior convictions as an adult are numerous and increasing in
seriousness.[6] [2] He was on probation at the time that he committed the

“error,” we are mindful that the trial court complied with the applicable law at the time of
sentencing.
6 It is not entirely clear which convictions the trial court was relying on in finding
the prior convictions to be numerous or of increasing seriousness. The probation
officer’s pre-plea report recommended the trial court find defendant’s prior convictions
numerous and of increasing seriousness based only on his three misdemeanor Vehicle
Code convictions between 2016 and 2018: driving with a blood-alcohol percentage of
0.08 or higher, driving without a license, and reckless driving.
Defendant’s other convictions, identified in post-plea probation reports, included
misdemeanor vandalism, which occurred prior to the charges at issue in this matter but
for which defendant was not convicted until after the convictions in this matter, and the
arson conviction in count 1 of case No. MCR060145. Regardless of whether the
convictions identified in the post-plea probation report were properly considered “prior
convictions” for purposes of California Rules of Court, rule 4.421(b)(2), the three
misdemeanor Vehicle Code convictions were numerous for purposes of that rule (People
v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three Vehicle Code convictions were
sufficient to be considered “numerous” for purposes of an aggravating circumstance]),
and a defendant’s conduct after commission of the offense for which he is sentenced is

9.
 offense. [3] His performance on probation prior to the conviction was
unsatisfactory, and [4] his performance on probation following the
conviction was likewise unsatisfactory.”
The trial court also considered defendant’s “mental health issues as a factor [in]
mitigation, but even in considering that as a factor in mitigation, the Court f[ound] that
the aggravating factors justif[ied] an imposition of the aggravated term.”
None of the aggravating circumstances were proved to a jury or admitted in full by
defendant. As to the first aggravating circumstance, the People argue that the court was
permitted to rely on “prior convictions to impose an aggravated term” without submitting
the question to a jury. However, the People ignore a significant part of the exception
provided by section 1170, subdivision (b)(3). Namely, the record does not reflect that the
trial court was relying on a “certified record of conviction” to find true defendant’s prior
convictions. (§ 1170, subd. (b)(3).) Indeed, the record does not reflect that a certified
record of conviction was ever admitted into evidence. The record before us does not
demonstrate that requirements of section 1170, subdivision (b)(3) were met. As to the
fourth circumstance, that defendant violated probation, defendant admitted he violated
probation in both cases (MCR060145 & MCR060560) after his convictions on April 22,
2019. A second violation of probation was proved to the trial court in a violation of
probation proceeding—specifically, that defendant failed to report to the probation
officer as directed—however, the fact was not proved beyond a reasonable doubt as
required. (§ 1170, subd. (b)(2).) As noted above, a violation of probation must only be
proved by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d at
p. 447.) Therefore, the facts underlying that conviction were not fully proved as required
by section 1170, subdivision (b).

appropriately considered as an aggravating factor at sentencing (People v. Gonzales
(1989) 208 Cal.App.3d 1170, 1171–1172).

10.
 In sum, none of the aggravating circumstances were established as required by
section 1170, subdivision (b). Unless that error was harmless, we must vacate
defendant’s sentence and remand the matter for resentencing.
This court recently articulated a standard for harmless error in the Senate Bill
No. 567 context in People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn):

“The reviewing court determines (1)(a) beyond a reasonable doubt whether
the jury would have found one aggravating circumstance true beyond a
reasonable doubt[7] and (1)(b) whether there is a reasonable probability that
the jury would have found any remaining aggravating circumstance(s) true
beyond a reasonable doubt. If all aggravating circumstances relied upon by
the trial court would have been proved to the respective standards, any error
was harmless. If not, the reviewing court moves to the second step of
Lopez, (2) whether there is a reasonable probability that the trial court
would have imposed a sentence other than the upper term in light of the
aggravating circumstances provable from the record as determined in the
prior steps. If the answer is no, the error was harmless. If the answer is
yes, the reviewing court vacates the sentence and remands for resentencing
consistent with section 1170, subdivision (b).” (Dunn, supra, 81
Cal.App.5th at pp. 409-410.)
We agree that Dunn articulates the appropriate standard. With that standard in
mind, we turn to the aggravating circumstances relied upon by the trial court. As to the
first aggravating factor, the probation officer’s reports indicate that defendant suffered
prior convictions as follows: in 2016, a misdemeanor conviction for reckless driving
(Veh. Code, § 23103.5); in 2017, a misdemeanor conviction for driving without a license
(Veh. Code, § 12500, subd. (a)); and in 2018, a misdemeanor conviction for driving with
a blood-alcohol percentage of 0.08 or higher (Veh. Code, § 23152, subd. (b)). The

7 “Alternatively, this step is satisfied if the trial court relied upon an aggravating
circumstance that relied only upon the fact of defendant’s prior convictions and a
certified record of defendant’s convictions was admitted, or defendant admitted the facts
underlying an aggravating circumstance. [¶] . . . [S]tep (1)(a) or one of its two
alternatives must be satisfied to avoid offending the Sixth Amendment . . . . If not, the
error is not harmless; the sentence must be vacated and the matter remanded to the trial
court for resentencing consistent with section 1170, subdivision (b).”

11.
probation officer listed the databases and defendant’s identification numbers within each
which served as sources of information for defendant’s prior convictions.8 Defendant did
not dispute the truth of his prior convictions at sentencing and the statement of factors in
mitigation submitted by his defense counsel, he acknowledged that “[t]he majority of
[defendant’s] criminal history is before this [c]ourt. He has been placed on probation
three different times for different types of charges.” That statement in mitigation was
filed after the probation officer identified the above prior convictions. There is no logical
reason that defendant would not have challenged the accuracy of his prior convictions if
not true. Those convictions were sufficient to support the trial court’s finding that
defendant’s prior convictions were numerous. (People v. Searle, supra, 213 Cal.App.3d
at p. 1098.) We conclude beyond a reasonable doubt that a jury would have found true
beyond a reasonable doubt that defendant’s prior convictions were numerous.
As to the second aggravating circumstance, that defendant was on probation at the
time he committed the offenses at issue in this matter, there appears to have been no
dispute. At sentencing, the parties discussed the terms and conditions of defendant’s
probation, the time remaining on defendant’s terms of probation if reinstated, that
defendant was recently found in violation of his probation, and that defendant sought to
be reinstated on probation. Moreover, the court’s own records reflected the dates
defendant was granted probation on his prior convictions. We therefore conclude there is
no reasonable probability a jury would not have found true beyond a reasonable doubt
that defendant was on probation when he committed the offenses at issue in this matter.

8 Specifically, the probation officer provided defendant’s “CII” number (relating
to the state Department of Justice’s Criminal Identification Index database), his “FBI”
number (relating to the Federal Bureau of Investigation’s Criminal Justice Information
Services database), his “CDL” number (his California driver’s license number used to
search the state Department of Motor Vehicles’ database), and his “MDOC” number (his
Madera County Department of Corrections identification number).

12.
 As to the third circumstance in aggravation, that defendant’s prior performance on
probation prior to the convictions at issue was unsatisfactory, the probation report again
provides a strong basis for the finding. As to defendant’s performance on probation prior
to the convictions at issue in this matter, defendant was granted a 36-month term of
misdemeanor probation in September 21, 2016, which he necessarily violated by driving
without a license in 2017. He also was granted a three-year term of bench probation on
August 11, 2017, on his driving-without-a-license conviction. Six days later, he
necessarily violated that probation when he committed the arson offense he was
convicted of in case No. MCR060145.9 Defendant was also granted a four-year term of
probation on March 7, 2018, on his driving-with-a-blood-alcohol-percentage-of-0.08-or-
higher conviction, which he necessarily violated by committing the September 23, 2018
criminal threats offense in MCR060560. Additionally, defendant admitted a violation of
probation in the 2017 driving-without-a-license case on April 22, 2019. Again, there is
no logical reason defendant would not have challenged his record of convictions and
grants of probation if they had not been true. Because each violation of probation was
based on commission of a new offense of which defendant was convicted and because
defendant admitted one violation of probation, we conclude there is no reasonable
probability a jury would not have found true beyond a reasonable doubt that defendant’s
prior performance on probation was unsatisfactory. Defendant completed no grant of
probation without committing a new offense.
Finally, as to the fourth circumstance in aggravation, that defendant’s performance
on probation after the April 22, 2019 convictions at issue in this matter, was
unsatisfactory, the record provides some support that a jury would have found the
circumstance true beyond a reasonable doubt. As noted above, defendant admitted one

9The criminal complaint alleged that the arson offense occurred on or about
August 17, 2018. In either event, the offense constituted a violation of the three-year
term of probation granted on August 11, 2017.

13.
violation of probation and a second was proved to the trial court by a preponderance of
the evidence. As to the second violation of probation, defendant testified that he was
unable to report as required because he was arrested. No additional evidence was
provided regarding the purported arrest. He also testified that he attempted to call his
probation officer two or three days after the date he was required to report but was unable
to make contact. Defendant’s probation officer testified that defendant had previously
failed to keep some prior appointments. She also testified that defendant had previously
reached him by telephone. On this record, we cannot conclude that there is no reasonable
probability a jury would have found not true that defendant had violated probation a
second time.
We have concluded that a jury would have found true beyond a reasonable doubt
the first three aggravating circumstances and that defendant admitted some, but not all,
facts underlying the fourth aggravating circumstance. Defendant’s admission that he
violated probation on the offenses at issue in this matter (on the more serious of the two
violations of probation—the former violation of probation was commission of a new
offense; the latter was failing to report) was sufficient for the trial court to conclude that
defendant’s performance on probation in this matter was unsatisfactory even without the
second violation of probation. Because the jury would have found true three of the four
aggravating circumstances, the facts underlying the fourth aggravating circumstance that
were admitted were sufficient to support the aggravating circumstance, and only one
mitigating circumstance—defendant’s “mental health issues”—was present, we conclude
there is no reasonable probability the trial court would have imposed a more favorable
sentence than the upper term. Indeed, in sentencing defendant based on the four
aggravating circumstances originally found true, the trial court found “that the
aggravating factors justif[ied] an imposition of the aggravated term.” The error was
therefore harmless and remand for resentencing is unnecessary.

14.
 DISPOSITION
The trial court is directed to issue an amended abstract of judgment reflecting the
consecutive one-third middle term sentence on count 1 of case No. MCR060560 and no
sentence on count 2 of the same, and transmit copies thereof to the appropriate entities.
Defendant’s sentence is affirmed.

DETJEN, J.
I CONCUR:

POOCHIGIAN, Acting P. J.

15.
MEEHAN, J., Concurring and Dissenting.
I. Introduction and Summary
I concur in the majority’s affirmance of the trial court’s revocation of probation in
part I. of the Discussion. In part II. of the Discussion, the majority applies People v.
Dunn (2022) 81 Cal.App.5th 394 (opn. mod. and ordered pub. July 20, 2022) (Dunn) and
its invocation of a harmless error analysis to conclude defendant is not entitled to
resentencing under Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567 or Sen.
Bill 567). I respectfully decline to join in the majority’s reasoning and conclusions in this
regard.
Defendant was sentenced to an upper term under former section 1170 of the Penal
Code.1 The former version of the statute permitted the sentencing court broad discretion
to select the appropriate term of imprisonment articulated for the crime committed among
three permissible options: low, middle, or upper. The sentencing court was allowed to
find and weigh aggravating and mitigating circumstances and, based on the
circumstances, was free to select any one of the terms it believed best served the interests
of justice.
Senate Bill 567 significantly altered this sentencing scheme and the new law limits
a trial court’s discretion to impose an upper term: “the court shall, in its sound discretion,
order imposition of a sentence not to exceed the middle term .…” (§ 1170, subd. (b)(1).)
Presumptively, the middle term is now the maximum term that may be imposed and it
may be exceeded “only when there are circumstances in aggravation of the crime that
justify imposition of a term of imprisonment exceeding the middle term .…” (Id.,
subd. (b)(2).) In addition, the facts underlying those circumstances must be proven,
admitted or evidenced in a specific manner not required under the former law. (Ibid.)

1 Further statutory references are to the Penal Code unless otherwise stated.
 Presumptions affecting the trial court’s sentencing discretion that are enacted in
new legislation or by judicial precedent have been recognized as key ameliorative
changes in the law, including those implemented by Senate Bill 567. Further, the Courts
of Appeal have uniformly agreed the Legislature intended Senate Bill 567 to be applied
retroactively. In this situation, similar to other ameliorative and retroactively applied law
that affects a court’s sentencing discretion, the standard articulated by the California
Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1358, 1382 (Gutierrez) governs
and ultimately requires resentencing unless the record clearly indicates the trial court
would have imposed the upper term had it known of the new presumptive middle term.

In Gutierrez, the Supreme Court considered a retroactive change in the trial
court’s sentencing discretion based on a presumption that mirrors the one at issue here.
The Gutierrez court interpreted section 190.5, subdivision (b) (section 190.5(b) or
§ 190.5(b)), which provided that the penalty for 16- to 17-year-old juveniles convicted of
special-circumstance murder shall be life without the possibility of parole (LWOP) or
25 years to life at the court’s discretion. At that time, appellate and trial courts had long
construed this provision as establishing LWOP as the presumptive term. The Supreme
Court held that section 190.5(b) contained no such presumption and explained that,
“Although the trial courts in these cases understood 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 [LWOP], we cannot say with
confidence what sentence they would have imposed absent the presumption.” (Gutierrez,
supra, 58 Cal.4th at p. 1391.)
The Gutierrez court observed that courts previously supporting the LWOP
presumption believed the statute expressed a preference for LWOP as the “‘generally
mandatory’” punishment and that “‘the court’s discretion is concomitantly circumscribed
to that extent.’” (Gutierrez, supra, 58 Cal.4th at p. 1370, italics added, quoting People v.

2.
Guinn (1994) 28 Cal.App.4th 1130, 1142.) In Gutierrez, the change in the law
retroactively expanded the trial court’s sentencing discretion by eliminating a
presumption in favor of LWOP. Here, the change in the law retroactively restricts the
sentencing court’s discretion by adding an express presumption in favor of a sentence not
exceeding the middle term. Directly pertinent here, the high court reasoned “it is one
thing to say that a court, confronting [three] permissible sentencing options, may impose
the harsher sentence if it finds that sentence justified by the circumstances. It is quite
another to say that a court, bound by a presumption [not to exceed the middle term], must
impose that sentence unless it finds good reason not to do so.” (Gutierrez, supra, at
p. 1382.)
The trial court in this case made its sentencing decision in the absence of the new
presumption against exceeding the middle term, and the record does not clearly indicate
that the court would have imposed the upper term had it been aware of the new constraint
on its discretion. I believe Gutierrez is binding and the appropriate remedy is to remand
for the sentencing court to exercise its newly informed and circumscribed discretion in
the first instance.
The majority’s departure from the Supreme Court’s clear indication test appears to
be predicated upon the proposition that Senate Bill 567 did not change the trial court’s
sentencing discretion and only changed the manner in which aggravating circumstances
must be proved. This approach necessarily is based on what I believe is an unreasonable
interpretation of the amended version of section 1170, subdivision (b) (section 1170(b) or
§ 1170(b)), as Senate Bill 567 amended the statute in more than one way. In
subdivision (b)(1), the Legislature established a clear and express new preference in
sentencing of the type the Supreme Court has explained affects the trial court’s discretion
that did not exist in the prior version. If the Legislature did not intend to alter the
sentencing court’s discretion in this manner, it simply could have left intact the language
articulating the prior standard. Contrary to the rules of statutory interpretation, the

3.
majority gives no effect to the not-to-exceed language and the change in sentencing
discretion it manifests. Rather, they bypass subdivision (b)(1) and give effect only to
how the facts underlying aggravating circumstances must be proved, admitted or
evidenced under subdivision (b)(2) and (b)(3). The fact is, in the context of upper term
sentences, no court embracing a harmless error analysis to preclude resentencing under
Senate Bill 567 acknowledges the extent of the changes in the law, meaningfully
addresses Gutierrez, or explains their departure from Gutierrez’s governing standard.
I agree that a harmless error analysis may be applied to test an original upper term
sentence for legal viability under the Sixth Amendment and the new law as it relates to
how facts underlying the aggravating circumstances are determined. If, in imposing an
upper term, the trial court relied on aggravating circumstances not admitted or proved as
Sixth Amendment principles and the amended statute require, reversal may not be
necessary if one or all of the circumstances are deemed harmlessly considered under a
prejudicial error analysis.
This analysis, however, is only probative of whether the sentence is invalid and
remand is mandated, not whether resentencing is precluded. In the event that none of the
aggravating circumstances are supported by facts properly or harmlessly found, an upper
term is not even legally viable under the new law and remand is required without the
necessity of further inquiry. On the other hand, if any or all of the aggravating
circumstances were properly or harmlessly considered, then the upper term could be
imposed if the statute’s other provisions are satisfied. But applying a harmless error test
for this purpose, in my view, cannot resolve whether the trial court would, with the
benefit of the new presumption against exceeding the middle term, exercise its newly
circumscribed discretion and nonetheless impose the upper term.
To answer the latter question of what the trial court would do, my colleagues here
and in Dunn, along with other courts, apply a second harmless error analysis to gauge the
likelihood of what sentence the trial court would impose on resentencing based on their

4.
calculation of reasonable probabilities. How a trial court would balance the
circumstances under a new standard of discretion in the first instance, however, should
not be a matter of estimating the odds. I agree a second inquiry is necessary, but I would
apply Gutierrez and ascertain whether the record clearly indicates that the trial court
would make the same sentencing decision notwithstanding the new constraint on its
discretion. The clear indication test requires more than a showing that the trial court’s
original imposition of the upper term simply is supported by one or more of the
aggravating circumstances properly or harmlessly considered. It requires a new
evaluation and weighing of the circumstances by the sentencing court that starts with the
awareness that the new statutory preference bears on its discretion. To do otherwise is to
conflate this starting preference with the necessary procedural requirements for finding
aggravating circumstances that justify overcoming it.
A harmless error approach to determine how the trial court would exercise its
newly informed discretion unnecessarily injects a layer of speculation into the inquiry
that is out of step with Gutierrez and effectively places the sentencing decision in the
hands of the appellate court. Importantly, it deprives the defendant of a fair opportunity
to obtain all of the ameliorative benefits of the new law, and precludes the defendant
from a sentencing determination made in the exercise of informed discretion. In sum,
while a harmless error test may be utilized to test an upper term sentence for legal
viability as a threshold inquiry, Gutierrez guides any subsequent analysis determinative
of resentencing. When I apply that framework here, defendant is clearly entitled to
resentencing. Therefore, I respectfully dissent from the majority’s reasoning and
conclusion in part II. of the Discussion.
II. Applicable Legal Background and Principles
Prior to January 1, 2022, former section 1170(b) provided that “[w]hen a judgment
of imprisonment is to be imposed and the statute specifies three possible terms, the
choice of the appropriate term shall rest within the sound discretion of the court.… The

5.
court shall select the term which, in the court’s discretion, best serves the interests of
justice.…”
Senate Bill 567 amended section 1170(b), and it now provides that “[w]hen a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall, in its sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).” (Id., (b)(1).) “The court
may impose a sentence exceeding the middle term only when 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 defendant, or have been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial….” (Id., (b)(2).)
The genesis of the harmless error analysis to measure the need for resentencing
upon retroactive application of Senate Bill 567 appears rooted in how the Sixth
Amendment is implicated by section 1170(b)(1)’s prohibition on exceeding the middle
term and the new state law requirements for proving aggravating circumstances. In
general terms, former section 1170(b) did not restrict a trial court’s discretion to impose
an upper term, so a Sixth Amendment jury trial right did not attach to the aggravating-
circumstance findings used to support an upper term; the trial court was free to make
these findings itself without a jury.
In retroactively restricting a court’s discretion to impose the upper term under the
new law, a jury trial right retroactively attaches to the aggravating-circumstance findings
made to support that upper term under the former law.2 The new procedural
requirements in section 1170(b)(2) (which address this Sixth Amendment issue) also
retroactively attach to the original sentencing decision. The resulting question is whether

2 As I indicate, post, a Sixth Amendment jury trial right does not attach to the fact of
a prior conviction or facts the defendant has admitted.

6.
aggravating-circumstance findings made by the court without a jury survive
constitutional and state law scrutiny. The focus of the harmless error analyses deployed
to consider retroactive application of Senate Bill 567 revolve exclusively around this
question, but none accounts for how retroactively limiting the sentencing court’s
discretion also precludes the original sentencing decision from being a fully informed
one.
Accordingly, to explicate my position in full context, I begin my analysis with the
Sixth Amendment and its relevance to Senate Bill 567 and section 1170(b).

A. Sixth Amendment Implications
1. Sixth Amendment and California’s Determinate Sentencing Law (DSL)
“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 v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi).) As such, “the Federal Constitution’s [Sixth Amendment] jury-trial
guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above
the statutory maximum based on a fact, other than a prior conviction, not found by a jury
or admitted by the defendant.” (Cunningham v. California (2007) 549 U.S. 270, 274–275
(Cunningham).) “[T]he relevant ‘statutory maximum’ is not the maximum sentence a
judge may impose after finding additional facts, but the maximum he may impose
without any additional findings.” (Blakely v. Washington (2004) 542 U.S. 296, 303–304
(Blakely).)
California’s DSL in effect from 1977 to 2007 assigned to the trial judge, not a
jury, the authority to find facts that exposed a defendant to an elevated “upper term”
sentence. The pre-2007 version of section 1170(b), provided that “the court shall order
imposition of the middle term, unless there are circumstances in aggravation or
mitigation of the crime.” (Stats. 1976, ch. 1139, § 273, pp. 5140–5141, as amended by
Stats. 1977, ch. 165, § 15, pp. 647–649.) The circumstances in aggravation or mitigation

7.
were to be determined by the court after consideration of the trial record; the probation
officer’s report; statements in aggravation or mitigation submitted by the parties, the
victim, or the victim’s family; and any further evidence introduced at the sentencing
hearing. (Stats 1976, ch. 1139, § 273, pp. 5140–5141; see Cunningham, supra, 549 U.S.
at p. 277, citing § 1170, former subd. (b).) The California Rules of Court provided that
“[c]ircumstances in aggravation” were to be “established by a preponderance of the
evidence.” (Cal. Rules of Court, former rule 4.420(b).)
In 2007, the United States Supreme Court held this sentencing scheme violated the
Sixth Amendment’s jury-trial guarantee as articulated in Apprendi and Blakely because it
allowed a sentencing judge to impose a term beyond the statutory maximum based on
facts not proven to a jury beyond a reasonable doubt or admitted by the defendant.
(Cunningham, supra, 549 U.S. at p. 293.) The high court explained “California’s DSL,
and the Rules governing its application, direct the sentencing court to start with the
middle term, and to move from that term only when the court itself finds and places on
the record facts—whether related to the offense or the offender—beyond the elements of
the charged offense.” (Id. at p. 279.) Applying Apprendi and Blakely, the court
concluded the middle term under California’s DSL was the relevant statutory maximum.
(Cunningham, supra, at p. 288.) To the extent the DSL allowed a sentencing judge to
find facts necessary to impose a punishment exceeding the middle term that were neither
established by the jury’s verdict, the defendant’s admissions, or the defendant’s prior
convictions, the system did not “withstand measurement against [the court’s] Sixth
Amendment precedent.” (Cunningham, supra, at p. 293.)
Applying Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II), the
California Supreme Court addressed whether the imposition of the upper term in the
circumstances of Black’s case violated the Sixth Amendment. Black argued he had a
right to a jury trial on all aggravating circumstances that may be considered by the
sentencing court in imposing the upper term, even if one aggravating circumstance was

8.
established in accordance with Blakely. (Black II, supra, at p. 814.) This was so, Black
argued, because selection of the upper term was justified only when the circumstances in
aggravation outweigh the circumstances in mitigation—thus, a court could not impose the
upper term unless it determined that any aggravating circumstances were of sufficient
weight to justify the upper term. (Ibid.) Accordingly, Black asserted, “if only one of
several aggravating circumstances considered by the trial court has been established
pursuant to Sixth Amendment requirements, and the upper term sentence is selected, the
court has imposed ‘punishment that the jury’s verdict alone does not allow, the jury has
not found all the facts “which the law makes essential to the punishment,” [citation] and
the judge exceeds his proper authority.’” (Black II, supra, at p. 814, quoting Blakely,
supra, 542 U.S. at p. 304.)
Our high court rejected this argument. The court observed that “under the line of
high court decisions beginning with Apprendi, …, and culminating in Cunningham, …,
the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies
only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at
p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than
is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. [281]).”
(Black II, supra, 41 Cal.4th at p. 812.) “‘The Sixth Amendment question, the Court has
said, is whether the law forbids a judge to increase [the] defendant’s sentence unless the
judge finds facts that the jury did not find (and the offender did not concede).’ (Rita v.
United States (2007) 551 U.S. [338, 352].)” (Ibid.)
Under California’s pre-2007 determinate sentencing scheme, the sentencing court
was required to order imposition of the middle term unless there were circumstances in
aggravation or mitigation of the crime. (Black II, supra, 41 Cal.4th at p. 808, citing
§ 1170, former subd. (b).) Under this framework, the court pointed out, the presence of
one aggravating circumstance made it lawful for the trial court to impose an upper term
sentence. (Black II, supra, at p. 813.) So long as one aggravating circumstance was

9.
established in accordance with the constitutional requirements, the defendant was no
longer entitled to the middle term, and the upper term became the statutory maximum for
Sixth Amendment purposes. (Black II, supra, at p. 813.) The court explained further that
a sentencing 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. No matter how many additional aggravating facts are found by
the court, the upper term remains the maximum that may be imposed. Accordingly,
judicial factfinding on those additional aggravating circumstances is not
unconstitutional.” (Id. at p. 815.)
Based on this, the Black II court held “as long as a single aggravating
circumstance that renders a defendant eligible for the upper term sentence has been
established in accordance with the requirements of Apprendi and its progeny, any
additional factfinding engaged in by the trial court in selecting the appropriate sentence
among the three available options does not violate the defendant’s right to jury trial.”
(Black II, supra, 41 Cal.4th at p. 812.)
Applying this reasoning to the facts before it, our high court noted one of the
aggravating facts the trial court relied on to impose the upper term sentence was that
force was used against the victim to commit the underlying crime, a fact that was
necessarily presented to the jury in the form of a special allegation.3 This aggravating
circumstance, the court reasoned, rendered Black eligible for the upper term under
section 1170. (Black II, supra, 41 Cal.4th at p. 817.) Beyond that, the trial court had
relied on Black’s numerous prior convictions as an aggravating circumstance, which the

3 The jury had found true the allegation that Black had committed the offense by
means of “‘force, violence, duress, menace, and fear of immediate and unlawful bodily
injury’” within the meaning of section 1203.066, subdivision (a)(1), which rendered
Black ineligible for probation. (Black II, supra, 41 Cal.4th at pp. 816–817.)

10.
court held came within the prior conviction exception to which no jury trial right applied.
(Id. at pp. 818–820.) As Black was eligible for the upper term sentence based on at least
one aggravating circumstance found in compliance with the Sixth Amendment and the
prior conviction exception thereto, the court concluded his right to a jury trial was not
violated by imposition of the upper term sentence. (Black II, supra, at p. 820.)

2. The Harmless Error Test for Sixth Amendment Violations in
Sentencing under the DSL
On the same day it decided Black II, our high court issued its opinion in People v.
Sandoval (2007) 41 Cal.4th 825 (Sandoval), which also presented a question of whether
the imposition of an upper term sentence under the pre-2007 DSL violated the
defendant’s Sixth Amendment rights. Different from Black II, none of the aggravating
circumstances found by the trial court for imposing the upper term satisfied the Sixth
Amendment under Apprendi, Blakely or Cunningham; all were based on the facts
underlying the crime, none of which had been admitted by the defendant, established by
the jury’s verdict, or involved a prior conviction. (Sandoval, supra, at pp. 837–838.) The
court concluded the upper term sentence violated the Sixth Amendment, but then
proceeded to determine whether that error was harmless. (Id. at pp. 838–843.)
The court explained the denial of a Sixth Amendment jury trial right was reviewed
under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18
(Chapman). (Sandoval, supra, 41 Cal.4th at p. 838.) However, the relevant question
regarding the failure to submit a sentencing factor to a jury was not whether the error
contributed to the verdict; rather, the question was whether the jury’s verdict would have
authorized the upper term sentence had the aggravating circumstance been submitted to
the jury. (Ibid.) Reiterating its reasoning in Black II that only one aggravating
circumstance renders a defendant eligible for an upper term sentence and tailoring the
Chapman error standard to the context, Sandoval held that “[i]f a reviewing court
concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-

11.
doubt standard, unquestionably would have found true at least a single aggravating
circumstance had it been submitted to the jury,” the error is harmless. (Sandoval, supra,
at p. 839.)

3. Retroactive Application of Senate Bill 567 Implicates the Sixth
Amendment
Meanwhile, in response to Cunningham, California’s Legislature amended the
DSL through urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) The
amended DSL did away with a presumptive middle term and left “the choice of the
appropriate term” to the “sound discretion of the court.” (Stats. 2007, ch. 3, § 2.) The
jury’s verdict alone was sufficient to render a defendant eligible for an upper term
sentence, making the upper term the relevant statutory maximum for purposes of the
Sixth Amendment, remedying the DSL’s constitutional infirmity. (See generally
Apprendi, supra, 530 U.S. at p. 481 [observing nothing in the common law history
pertaining to jury trial right in criminal cases “suggests that it is impermissible for judges
to exercise discretion—taking into consideration various factors relating both to offense
and offender—in imposing a judgment within the range prescribed by statute”].)
Under the changes effected by Senate Bill 567, a trial court imposing a sentence
may no longer select any of the three terms that best serves the interests of justice, but
must impose a sentence that does not exceed the middle term, except as provided in
section 1170 (b)(2). As elements of the offense being punished may not be used to
impose an upper term (Cal. Rules of Court, rule 4.420(h)), a defendant is not eligible for
an upper term sentence based solely on a conviction on the substantive offense—only the
presence of an additional aggravating circumstance proved, admitted or evidenced in
conformity with all the requirements of section 1170(b)(2) and (b)(3) will render a
defendant eligible for an upper term.
Senate Bill 567 addressed the potential Sixth Amendment issue regarding upper
term sentences by requiring aggravating circumstances be found, admitted or evidenced

12.
in conformity with Sixth Amendment principles. But when Senate Bill 567 is applied
retroactively to sentencings occurring under section 1170, former subdivision (b), the
issue is whether the aggravating circumstances found by the sentencing judge and relied
on to impose the upper term now comply with the Sixth Amendment and the new state
law.4

B. Courts Applying a Harmless Error Analysis to Assess the Need for
Resentencing on Retroactive Application of Senate Bill 567
Apparently to address this potential issue, the Court of Appeal in Flores extended
the harmless error test applied in Sandoval to assess whether an upper term sentence
imposed under the former DSL required resentencing upon retroactive application of the
new law. (Flores, supra, 75 Cal.App.5th at p. 500.) There, to impose the upper term
under section 1170, former subdivision (b), the sentencing court relied on aggravating
circumstances that included the defendant’s numerous prior convictions and sustained
juvenile delinquency petitions, and the defendant’s unsatisfactory performance while on
probation—he was on probation when he committed his current offenses. (Flores, supra,
at p. 500.) To the extent these aggravating circumstances were not stipulated or found
true by a jury beyond a reasonable doubt, the court applied Sandoval and concluded that,
“beyond a reasonable doubt, the jury would have found true at least one aggravating
circumstance.” (Flores, supra, at p. 521.) The court summarily concluded remand for
resentencing under the new law was unnecessary.
The appellate court in Lopez disagreed with Flores that Sandoval was dispositive

4 The Courts of Appeal have uniformly concluded Senate Bill 567 is an ameliorative
change in the law that applies retroactively. (People v. Flores (2022) 73 Cal.App.5th
1032, 1039; accord, People v. Flores (2022) 75 Cal.App.5th 495, 500–501 (Flores);
People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez); People v. Zabelle (2022) 80
Cal.App.5th 1098, 1109 (Zabelle); Dunn, supra, 81 Cal.App.5th at p. 403; see People v.
Wandrey (2022) 80 Cal.App.5th 962, 981 (Wandrey) [accepting parties’ concession Sen.
Bill 567 is ameliorative and applies retroactively]; see also People v. Salazar (2022) 80
Cal.App.5th 453, 462 [same].)

13.
as to resentencing in the context of Senate Bill 567, and fashioned a different harmless
error analysis: “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 the 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.” (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.)
The trial court in Lopez had imposed an upper term sentence for one of the
defendant’s offenses based on nine aggravating factors that related to the nature of the
crimes, how they were committed, and the danger to society the defendant posed;
numerous prior convictions increasing in seriousness; a prior prison term served; and
unsatisfactory performance on probation, mandatory supervision and postrelease
community supervision or parole. (Lopez, supra, 78 Cal.App.5th at p. 464, fn. 8.) Most
of these factors were not found true beyond a reasonable doubt by a jury, nor were they
admitted by the defendant.

14.
 On appeal, the court concluded that upon retroactive application of Senate
Bill 567, the improper consideration of aggravating circumstances could not be deemed
harmless unless it could be determined beyond a reasonable doubt that a jury would have
found true beyond a reasonable doubt every aggravating circumstance on which the court
relied in imposing the upper term—the adapted Chapman harmless error test articulated
in Sandoval for Sixth Amendment jury-trial right violations. (Lopez, supra, 78
Cal.App.5th at pp. 465–466.) The court rejected the People’s suggestion that
resentencing was unnecessary because the trial court had relied on one permissible
circumstance. (Id. at pp. 466–467 & fn. 10.) The court reasoned that while
“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” (id. at p. 467),
state law required all aggravating circumstances to be found true by a jury beyond a
reasonable doubt, admitted by the defendant, or constitute a prior conviction (id. at
p. 466). From the facts before it, the court found several aggravating circumstances did
not pass scrutiny under the adapted Chapman harmless error test. (Lopez, supra, at
pp. 465–468.)
The court reasoned that when not all aggravating circumstances could be deemed
harmlessly considered, a second relevant prejudice question must be addressed: whether
the court would have exercised its discretion to impose the upper term on less than all the
aggravating circumstances originally relied upon. (Lopez, supra, 78 Cal.App.5th at
p. 467.) Notably applying Gutierrez, the court remanded for resentencing under the new
law because the record did not clearly indicate the trial court would have exercised its
discretion to impose an upper term based solely on a single permissible aggravating
circumstance or some constellation of permissible aggravating circumstances less than all
it had originally relied upon. (Lopez, supra, at pp. 467–468.)
Somewhat differently in Wandrey, the court concluded that, to determine whether
resentencing is warranted under the new law, the harmless error test under Sandoval did

15.
not encompass the separate variable that Senate Bill 567 posed in “changing the
framework within which the trial court exercises its discretion by specifying a
legislatively determined presumptive sentence.” (Wandrey, supra, 80 Cal.App.5th at
p. 982.) Thus, instead of relying on Sandoval exclusively to determine whether
resentencing was necessary, the court cited Lopez and applied a slightly modified
resentencing test, assessing whether it was “certain the jury would have found beyond a
reasonable doubt the aggravating circumstances relied on by the court and whether the
trial court would have exercised its discretion in the same way if it had been aware of the
statutory presumption in favor of the middle term.” (Wandrey, supra, at p. 982.)
Applying this framework, the court remanded for resentencing, reasoning it would
require “[s]ome degree of speculation” to conclude the jury would have agreed with the
court’s evaluation of the aggravating circumstances relied upon or that the trial court
would have exercised its sentencing discretion the same way if it had taken the statutory
presumption of the middle term into account. (Id. at p. 983.)
In Dunn, a panel of this court recently adopted Lopez’s analysis, but altered it
slightly to incorporate a Watson5 harmless error test into the first prong. (Dunn, supra,
81 Cal.App.5th at pp. 409–410.) Like Lopez, the court in Dunn concluded that if all
aggravating circumstances relied on by the trial court were permissibly or harmlessly
considered, then resentencing is not warranted. (Dunn, supra, at p. 410.) However,
Dunn disagreed with Lopez’s conclusion that a Chapman-style harmless error test applied
to evaluate all of the aggravating circumstances in making this determination. (Dunn,
supra, at pp. 409–410.) The court reasoned that if a single aggravating circumstance is
relied on in accordance with Sixth Amendment principles, or was harmlessly relied upon
as articulated in Sandoval, the upper term sentence is constitutionally viable under the
new law. (Dunn, supra, at p. 409.)

5 People v. Watson (1956) 46 Cal.2d 818 (Watson).

16.
 As such, Dunn reasoned, whether any other aggravating circumstances were
permissibly considered to impose the upper term implicates an issue of state law only
(Dunn, supra, 81 Cal.App.5th at pp. 409–410); thus, if additional circumstances were not
considered in compliance with the new requirements under section 1170(b)(2) and (b)(3),
then Watson provides the applicable harmless error test as to those circumstances, rather
than the Chapman-style harmless error test applied in Lopez. (Dunn, supra, at pp. 409–
410.) If all aggravating circumstances were proven to the respective standards, the court
concluded any error is harmless and resentencing is not warranted. (Dunn, supra, at
p. 410; see Zabelle, supra, 80 Cal.App.5th at p. 1112 [articulating same two-part
harmless error test and considering aggravating circumstances under Sandoval and
Watson to evaluate need for resentencing under Sen. Bill 567].) If not, Dunn explained, a
second step is necessary to determine whether, under Watson, there is a reasonable
probability that the trial court would have imposed a sentence other than the upper term
in light of the aggravating circumstances provable from the record as determined in the
prior steps of the analysis. (Dunn, supra, at p. 410.)
In applying this framework, the Dunn court concluded from the record before it
that two aggravating circumstances relied on by the sentencing court were found in
compliance with Sixth Amendment principles and in compliance with the new state law.
(Dunn, supra, 81 Cal.App.5th at p. 410.) As to one other aggravating circumstance not
found in compliance with the new state law, the court applied Watson and concluded any
error in relying on that circumstance was harmless. (Dunn, supra, at pp. 410–411.) As
all the aggravating circumstances considered by the sentencing court were either
permissibly or harmlessly relied upon, the court held any error in imposing an upper term
sentence under the new law was harmless, no analysis at the second step was necessary,
and resentencing was not warranted. (Id. at p. 411.)

17.
 C. Limited Applicability of Harmless Error Test
1. Harmless Error Test Cannot Preclude Resentencing
Regardless of the variance in the harmless error tests articulated in the cases
above, two questions have emerged as the relevant inquiry to determine whether upper
term sentences imposed under section 1170, former subdivision (b), require resentencing
under section 1170(b) as amended by Senate Bill 567. First, there is a question whether,
in light of the aggravating circumstances relied on to originally impose an upper term
sentence, the upper term could still be legally imposed under federal and state law. The
second relevant question, as articulated in Lopez, Dunn and Wandrey, involves an
evaluation of whether a trial court would impose an upper term sentence under the new
law.

While I generally agree with this basic framework, no application of the harmless
error test can be properly employed to preclude resentencing. The Flores court’s
evaluation of aggravating circumstances under Sandoval is relevant to whether
resentencing is mandated as a constitutional matter: if, on retroactive application of the
new law, improper consideration of aggravating circumstances in imposing an upper term
prejudicially violates a defendant’s jury trial right under the Sixth Amendment, then
resentencing would be required. But the inverse proposition, as Flores applied the test, is
not truly conclusive of the need for resentencing: an upper term sentence that passes
muster under a Sixth Amendment harmless error test (Sandoval) informs only whether
the sentence could be legally imposed under the Sixth Amendment given the aggravating
circumstances relied upon.
As I will explain below, this fails to consider whether a trial court would exercise
its newly circumscribed discretion under section 1170 to impose an upper term in the first
instance. Recognizing this issue, Wandrey held that application of the Sandoval harmless
error test as applied in Flores is not necessarily dispositive of the need for resentencing
under Senate Bill 567. (Wandrey, supra, 80 Cal.App.5th at p. 982 [harmless error test for

18.
6th Amend. does not take into account the changed framework under which the court
now exercises its discretion under Sen. Bill 567].)
In this regard, the Lopez analysis suffers a shortcoming similar to Flores. Lopez
states that if all the aggravating circumstances were properly considered under the new
law or harmlessly considered under a Chapman-style harmless error test,6 then the
defendant has suffered no prejudice, and the second question is not relevant—i.e., no
resentencing is warranted. (Lopez, supra, 78 Cal.App.5th at pp. 466–467, fns. 10 & 11.)
Although applying a modified harmless error analysis at this first step, Dunn too
concludes that if all aggravating circumstances were properly or harmlessly considered
under federal and state law, then resentencing is unwarranted. Yet, similar to Flores, the
fact that aggravating circumstances were permissibly or harmlessly considered reveals
only that the upper term could be imposed under federal and new state law given the
aggravating circumstances considered, not whether a court would still impose an upper
term in light of the court’s now curtailed sentencing discretion to do so.7
These approaches focus exclusively on the new procedural requirements for

6 Lopez relied on the Sixth Amendment harmless error test articulated in People v.
French (2008) 43 Cal.4th 36, which, in turn, relied on Sandoval. (People v. French,
supra, at p. 53.)
7 For this reason, I am skeptical that Lopez applied a Chapman-style harmless error
test to all aggravating circumstances not proven, admitted or evidenced because it
believed it was a constitutional prerequisite to imposing an upper term. For one thing,
Lopez did not articulate any doubts that Sandoval and Black II’s application of Apprendi
(only one aggravating circumstance found in compliance with the 6th Amend., or
impermissibly but harmlessly found by the sentencing court, is required to pass
constitutional scrutiny) remained viable under the new sentencing framework. But, more
importantly, Lopez indicated that if all the aggravating circumstances could not pass
through the harmless error test (meaning, some were harmfully considered), only then
would a second prejudice test be necessary. (Lopez, supra, 78 Cal.App.5th at p. 466, fn.
10.) Logically, if all of the aggravating circumstances must pass scrutiny under the Sixth
Amendment or the relevant harmless error test, the fact that some of them cannot meet
those standards means the sentence is no longer constitutionally sound, and there would
be no need to consider the second question because resentencing would be required.

19.
aggravating circumstances, giving no effect or consideration to section 1170(b)(1) or the
language employed in section 1170(b)(2). Determining the best method to assess the
effects of a changed law requires an examination of what actually changed; to do that, we
must turn to the statute itself.

2. Section 1170(b) Circumscribes Trial Court’s Sentencing
Discretion
“The proper interpretation of a statute is a question of law we review de novo.”
(People v. Lewis (2021) 11 Cal.5th 952, 961.) In cases involving statutory interpretation,
our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s
purpose, and courts begin by examining the statute’s words, giving them a plain and
commonsense meaning. (Ibid.) “‘“[W]e look to ‘the entire substance of the statute … in
order to determine the scope and purpose of the provision .… [Citation.]’ [Citation.]
That is, we construe the words in question ‘“in context, keeping in mind the nature and
obvious purpose of the statute .…” [Citation.]’ [Citation.] We must harmonize ‘the
various parts of a statutory enactment … by considering the particular clause or section in
the context of the statutory framework as a whole.’”’” (Ibid.)
The former version of section 1170(b) provided as follows:

“When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. At least four days prior to the time
set for imposition of judgment, either party or the victim, or the family of
the victim if the victim is deceased, may submit a statement in aggravation
or mitigation. In determining the appropriate term, the court may consider
the record in the case, the probation officer’s report, other reports, including
reports received pursuant to Section 1203.03, and statements in aggravation
or mitigation submitted by the prosecution, the defendant, or the victim, or
the family of the victim if the victim is deceased, and any further evidence
introduced at the sentencing hearing. The court shall select the term which,
in the court’s discretion, best serves the interests of justice. The court shall
set forth on the record the reasons for imposing the term selected and the
court may not impose an upper term by using the fact of any enhancement
upon which sentence is imposed under any provision of law. A term of

20.
 imprisonment shall not be specified if imposition of sentence is
suspended.” (§ 1170, former subd. (b).)
Senate Bill 567 significantly altered this framework. The Legislature amended
section 1170(b) and added newly enumerated section 1170(b)(1), which states,

“When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound discretion, order
imposition of a sentence not to exceed the middle term, except as otherwise
provided in paragraph (2).” (§ 1170(b)(1).)
Section 1170(b)(1) supplies the court with full discretion to select either the lower
or the middle term, but it plainly and expressly commands the court “not to exceed” the
middle term—a definite and clear phrase meaning not to surpass. This prohibition is
new, and it is a sea change from former section 1170(b), which allowed the court full
discretion to select an upper term so long as it best served the interests of justice. This
limitation circumscribes the sentencing court’s discretion to exceed a middle term in
exactly the manner described in Gutierrez. (Gutierrez, supra, 58 Cal.4th at p. 1382 [a
statutory preference in favor of a particular sentence does not eliminate a court’s
discretion, but it does circumscribe it].) The majority’s analysis gives no effect to
section 1170(b)(1); rather, it focuses solely on section 1170(b)(2) and the procedural
requirements for proving aggravating factors.
Section 1170(b)(2) states, in relevant part,
“The court may impose a sentence exceeding the middle term only
when 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
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial…..” (§ 1170(b)(2).)8

8 Some aspects of former section 1170(b) were unchanged and simply renumbered
under the new law, including that statements in aggravation and mitigation may be
submitted before judgment is imposed, the records the court may consider (§1170(b)(4)),
the court’s obligation to set forth on the record the facts and reasons for choosing the
sentence imposed (§ 1170(b)(5)); and the preclusion from imposing an upper term using

21.
 This is fully consistent with section 1170(b)(1). Section 1170(b)(1)’s proscription
on exceeding the middle term is not followed in section 1170(b)(2) by a discretionary
option to select an upper term sentence if, in the court’s discretion, such a sentence is
warranted based on aggravating circumstances. There is no in-the-court’s-discretion
language prefacing this exception. It is not framed electively as an unless or an or option,
but as an exception that may occur “only when” aggravating circumstances “justify” it.
(§ 1170(b)(2).)
The statute does not simply allow a court to select an upper term because it best
serves the interests of justice or because it appears warranted or supported. Instead, in
distinct contrast with the former sentencing scheme, the court’s decision to impose an
upper term is now expressly framed around whether circumstances justify invoking the
exception to the rule that the middle term is the default maximum sentence. Contrary to
the majority’s approach, section 1170(b)(1)’s words directing the sentencing court “not to
exceed the middle term” are not rendered superfluous under section 1170(b)(2).
Far from undercutting section 1170(b)(1)’s rule, section 1170(b)(2) underscores
that the middle term is the presumptive maximum term. In contrast to former
section 1170(b), there must be justifying reasons and facts to exceed the middle term—
the court no longer has full discretion to impose an upper term. Those reasons and facts
must be proven to the new standards articulated in section 1170(b)(2), or involve a prior
conviction as articulated in section 1170(b)(3). Section 1170(b)(2) focuses on these two
aspects in equal measure—one is the justification necessary to overcome the default
middle term maximum, and the other is how that justification is to be proven and/or
established.

the fact of any enhancement upon which sentence is imposed under any provision of law
(ibid).

22.
 The plain language of this framework bakes in a presumption the middle term is
the default maximum sentence. (See Wandrey, supra, 80 Cal.App.5th at p. 982 [noting
new law specifies a statutory presumption in favor of the middle term]; see also People v.
Flores, supra, 73 Cal.App.5th at p. 1038 [one ameliorative benefit of Sen. Bill 567 is
presumptive middle term maximum].) Senate Bill 567’s legislative history is express as
to the existence of this presumption: “SB 567 creates a presumption of sentencing
judg[]ment not to exceed the middle terms ….” (Sen. Rules Com., Office of Sen. Floor
Analyses, voting on Sen. Bill 567 (2020–2021 Reg. Sess.) as amended Sept. 3, 2021, p. 4
[quoting bill author’s comments].)9
Had the Legislature been concerned only with the burden and method of proof of
aggravating circumstances to impose an upper term, it could have retained the post-2007
sentencing structure allowing the trial court to select any of the three terms in its
discretion, and simply required the circumstances supporting an upper term be proven to
the standards articulated in Senate Bill 567. Instead, it chose to expressly bind a
sentencing court to a middle-term maximum sentence to be exceeded “only when”
aggravating circumstances justify it. (§ 1170(b)(2).) How extensively the court’s
sentencing discretion has been limited by this embedded presumption is a question only

9 The author’s comments that Senate Bill 567 created a presumption of sentencing
judgment not to exceed the middle terms was followed by the phrase “unless there are
circumstances in aggravation of a crime that justify the imposition of the upper term.”
(Sen. Rules Com., Office of Sen. Floor Analyses, voting on Sen. Bill 567 (2020–2021
Reg. Sess.) as amended Sept. 3, 2021, p. 4 [quoting bill author’s comments].) The
enacted version of the law states that a “court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle term .…” (§ 1170(b)(2).)
The statute’s wording emphasizes the presumptive nature of a sentence not exceeding the
middle term that was expressly intended: it is not just that a court may impose a sentence
not exceeding the middle term unless it concludes, in its discretion, an upper term is
justified by aggravating circumstances; rather, it is that a court, bound not to exceed the
middle term, may conclude this presumptive rule is overcome “only when” (ibid.) there
are justifying aggravating circumstances.

23.
of degree; the fact that the court’s discretion has been meaningfully circumscribed is
patent under the language of the statute.
This new presumption under section 1170(b) is squarely analogous to the one
addressed in Gutierrez. There, in light of Miller v. Alabama (2012) 567 U.S 460 (Miller),
the court examined a judicially construed presumption under section 190.5(b) that
favored a sentence of LWOP for 16- to 17-year-old juvenile offenders convicted of
special circumstance murder.10 (Gutierrez, supra, 58 Cal.4th at pp. 1360–1361.) In
disapproving this presumption, the court explained that although a rule in favor of LWOP
did not eliminate a trial court’s discretion to make an individualized sentencing decision
required under Miller, the presumption expressed a preference for LWOP and
circumscribed the trial court’s discretion to that extent. (Gutierrez, supra, at pp. 1381–
1382.)
The court reasoned, “[i]t is one thing to say that a court, confronting two
permissible sentencing options, may impose the harsher sentence if it finds that sentence
justified by the circumstances. It is quite another to say that a court, bound by a
presumption in favor of the harsher sentence, must impose that sentence unless it finds
good reasons not to do so.” (Gutierrez, supra, 58 Cal.4th at p. 1382.) Because of the
presumption’s effect on the trial court’s discretion to select the lesser sentence, its
imputation would create a serious constitutional question under Miller, and our high court

10 In Miller, “the United States Supreme Court ruled that ‘mandatory [LWOP] for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on “cruel and unusual punishments,”’ relying extensively on differences
between juveniles and adults with regard to their culpability and capacity for change.”
(Gutierrez, supra, 58 Cal.4th at p. 1360.) In examining section 190.5(b) under Miller, the
California Supreme Court in Gutierrez held that because the sentencing regime created
by section 190.5(b) authorized and required consideration of the distinctive attributes of
youth highlighted in Miller, there was “no constitutional infirmity with section 190.5(b)
once it is understood not to impose a presumption in favor of [LWOP].” (Gutierrez,
supra, at p. 1361.)

24.
declined to interpret section 190.5(b), to include it. (Gutierrez, supra, at p. 1382 [given
Miller’s conception of a proper individualized sentencing inquiry, a “serious
constitutional concern would arise” if § 190.5(b) were interpreted to include a rule
circumscribing the court’s discretion by presuming in the first instance LWOP is the
appropriate sentence for special circumstance murder committed by 16- or 17-year-old
juvenile].)
The court ultimately concluded that LWOP sentences imposed in this context
while the presumption was legally in effect could not reflect an exercise of the sentencing
court’s informed discretion. (Gutierrez, supra, 58 Cal.4th at pp. 1390–1391.) The
necessary remedy was to remand for resentencing unless the record clearly indicated the
trial court would have reached the same conclusion even if it had been aware of the scope
of its discretion. (Id. at p. 1391.)
The reasoning in Gutierrez applies with equal force to Senate Bill 567’s
presumptive middle term maximum that can be exceeded only when aggravating
circumstances are deemed to justify it. Newly enacted section 1170(b)(1) and (b)(2) state
an explicit preference for a middle term maximum sentence that was merely inferable
about LWOP from the language of section 190.5(b). These two subdivisions of
section 1170(b) circumscribe the court’s discretion by creating an express rule that, in the
first instance, the middle term is the maximum appropriate sentence just as the interpreted
rule in favor of the harsher sentence in Gutierrez limited the trial court’s discretion by
presuming, in the first instance, LWOP was the appropriate sentence. (Gutierrez, supra,
58 Cal.4th at p. 1382.) Both presumptions place weight on the scale in the direction of
the sentence they favor before any surrounding circumstances are even considered.
Any weighing of aggravating circumstances must occur under the lens of this new
rule favoring the middle term as the maximum sentence. For example, suppose a trial
court imposed an upper term sentence based on one aggravating circumstance of prior
convictions. If that circumstance was deemed properly considered under Apprendi and

25.
properly (or harmlessly) considered under the new state law requirements, a sentencing
court might very well yet conclude under the new sentencing scheme that the exception
for exceeding the now-presumptive middle term maximum is not justified on that single
aggravating circumstance. (See Gutierrez, supra, 58 Cal.4th at p. 1382 [“When the
choice between two sentences must be made by weighing intangible factors, a
presumption in favor of one sentence can be decisive in many cases.”].)
For this reason, any prejudice analysis applied to the aggravating circumstances
originally considered addresses only whether the upper term could be legally imposed
under the new law. Even if all of the aggravating circumstances could be deemed
permissibly considered or harmlessly so under a harmless error test (whether that is a
Chapman-style test or a Watson-style test or a combination of the two), we are still left
with the question of whether a sentencing court would impose an upper term under the
newly altered sentencing framework. (Gutierrez, supra, 58 Cal.4th at pp. 1367, 1391
[sentencing court’s statement that it had “‘thought long and hard about what punishment
is appropriate’” and was “‘absolutely convinced’” that LWOP was the “‘only thing that
the Court can do that could redress’” violence inflicted in the case did not clearly indicate
LWOP would again be imposed in the absence of the judicially construed statutory
preference for LWOP].)
In light of this new presumptive maximum middle term, Flores, Lopez and Dunn
do not explain how proper consideration (let alone harmless consideration) of one or all
of the aggravating circumstances under the new law reflects a sentencing decision made
in the exercise of informed discretion or how it ensures a defendant has had a fair
opportunity to obtain the ameliorative benefit of the law. All defendants are entitled to
the former (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8), and defendants whose
judgments of conviction are not final for Estrada purposes are entitled to the latter
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307).

26.
 Consistent with my interpretation of section 1170(b) and application of Gutierrez,
the imposition of an upper term under the former sentencing scheme cannot reflect an
exercise of informed discretion under the new law. As a result, any harmless error
approach is inadequate to measure the effect of the new presumption on the original
sentencing decision. (Gutierrez, supra, 58 Cal.4th at pp. 1381–1382, 1390–1391.)

At best, all that can be ascertained in a threshold application of the harmless error
analysis is whether a court could legally impose an upper term sentence under the new
law given the circumstances considered, not that it would do so in the exercise of its
informed discretion in the first instance.

3. Once Upper Term is Deemed Legally Viable Under the New
Law, the Need for Resentencing Must Be Assessed Under
Gutierrez, Not Another Harmless Error Analysis
When not all of the aggravating circumstances relied on at the original sentencing
hearing were properly or harmless considered under the new law, courts such as Lopez
and Dunn invoke a second harmless error analysis to ascertain whether there is a
reasonable probability the sentencing court would have imposed a lesser term had it not
considered the improper circumstances. For the same reasons articulated above, I depart
from Lopez and Dunn and their adoption of Watson to guide this inquiry.
The harmless error test under Watson has indeed been applied in cases where a
sentencing court considered improper sentencing factors. (See People v. Price (1991) 1
Cal.4th 324, 492 (Price); see also People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos).)
But, in those cases, the underlying sentencing scheme had not changed in the interim.
The sentencing court revealed its sentencing choice under a particular sentencing scheme,
and the reviewing court decided whether there was a reasonable probability the court’s
lawful exercise of its discretion on remand would lead it to make a different choice under
the same sentencing framework.
While improperly considered sentencing factors may be involved in retroactive

27.
application of Senate Bill 567, that is not the only concern. As explained above, the new
sentencing scheme has meaningfully altered the scope of the trial court’s discretion with
the new presumption. When a trial court is unaware of the full scope of its sentencing
discretion because, for example, legal presumptions have shifted (Gutierrez, supra, 58
Cal.4th at p. 1391) or different discretionary sentencing choices exist, “an application of
the ‘reasonable probability standard’ [under Watson] requires the reviewing court to
decide what choice the trial court is likely to make in the first instance, not whether the
court is likely to repeat a choice it already made.” (People v. McDaniels (2018) 22
Cal.App.5th 420, 427.)
Different from cases such as Price and Avalos, where the sole issue involved in
application of Watson was improperly considered sentencing factors, determining what
sentencing choice a trial court would make in the first instance pursuant to Senate
Bill 567 becomes a far more speculative proposition under a harmless error test. Trying
to assess probabilities under Watson in the context of Senate Bill 567 effectively recasts
the reviewing court into the role of sentencing court, weighing for the first time whether
particular aggravating circumstances justify exceeding the presumptive maximum middle
term. Prognosticating this way carries the risk of denying a defendant one of the primary
ameliorative benefits of the new law that contributes to its retroactive application in the
first place, effectively thwarting the Legislature.
To avoid unnecessary speculation about what a sentencing court would do in the
exercise of its informed discretion in the first instance under Senate Bill 567, 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.’” (Gutierrez, supra, 58 Cal.4th at p. 1391.)11

11 Notably, although Lopez expressly indicated the second prong of its framework
was to be assessed under Watson (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11), the
court actually conducted its analysis under Gutierrez and concluded the record did not

28.
 In sum, whether resentencing of an upper term sentence is the appropriate remedy
on retroactive application of Senate Bill 567 involves two relevant questions. The first is
whether, given the aggravating circumstances considered, the upper term sentence could
still be legally imposed under federal and state law. The answer to that question lies in
the application of Apprendi and the new state law requirements under Senate Bill 567.
But even if an upper term sentence could still be legally imposed given the set of
aggravating circumstances relied upon, resentencing then hinges on whether a sentencing
court would impose an upper term sentence under the new law. As the trial court’s
discretion to impose an upper term sentence has been circumscribed under the new
sentencing framework, that inquiry must be made under Gutierrez.
III. Remand for Resentencing is Warranted
Turning to application of the foregoing, the relevant first question is whether,
given the aggravating circumstances considered, the upper term could still be legally
imposed under federal and state law. Defendant was sentenced to the upper three-year
term for violation of section 451, subdivision (d), in Madera Superior Court case
No. MCR060145, and a consecutive eight months for violation of section 422,
subdivision (a), in Madera Superior Court case No. MCR060560. The trial court
imposed the upper term based on the following: (1) prior convictions as an adult are
numerous and increasing in seriousness; (2) defendant was on probation when he
committed these offenses; (3) his performance on probation prior to the conviction was
poor; and (4) his performance on probation following the conviction was unsatisfactory.
Applying Black II and Sandoval, because a defendant remains eligible for an
upper term sentence based on a single aggravating circumstance under the new law, only
one aggravating circumstance needs to be proven in conformity with Sixth Amendment

“clearly indicate” the trial court would have exercised its discretion to reimpose an upper
term (Lopez, supra, at p. 468).

29.
principles (or harmlessly considered as articulated in Sandoval) for an upper term
sentence to pass constitutional scrutiny. (Black II, supra, 41 Cal.4th at p. 812; Sandoval,
supra, 41 Cal.4th at pp. 838–839; see Flores, supra, 75 Cal.App.5th at pp. 500–501,
review denied.)12 For the same reason, one aggravating circumstance found harmless
under Sandoval necessarily means the circumstance was harmless under the less stringent
Watson standard, and, as a matter of state law, the trial court could legally impose an
upper term sentence under section 1170(b)(2) based solely on that circumstance.
Assuming for the sake of argument that one of the aggravating circumstances the
trial court found and relied on here is viable for Sixth Amendment purposes under the
Sandoval harmless error test, and, thus, that an upper term sentence also remains legally
viable under state law, resentencing is still required under Gutierrez.
Even if all of the aggravating circumstances were found in accordance with
section 1170(b)(2) and (b)(3), the record still does not clearly indicate the trial court
would impose the upper term had it been aware of the presumptive middle term
maximum sentence. At bottom, defendant was sentenced to the upper term based on
three prior misdemeanor convictions and poor performance on probation. Without
weighing these circumstances under the lens of the presumptive middle term maximum,
the resulting upper term was not imposed in an exercise of the trial court’s informed
discretion. Other than reciting the aggravating circumstances, the trial court said nothing
at sentencing that clearly reflects it would impose an upper term again based on these
same circumstances under the new presumptive middle term maximum.

12 To date, no court has concluded Black II and Sandoval are inapplicable in the
context of Senate Bill 567 to assess constitutional error, and our Supreme Court declined
to depublish Flores in denying review. Lopez applied the higher Chapman standard to
assess whether the trial court’s reliance on all aggravating circumstances was harmless,
but did not explain why other than pointing to the state law requirements under section
1170(b)(2). With no argument here that the holdings in Black II and Sandoval are
inapplicable in the context of Senate Bill 567, I do not reach that issue.

30.
 Added to this, defendant’s prior convictions are limited to three misdemeanors, all
of which were committed when defendant was a youth under the age of 26.13 Even his
current offenses were committed just one month after defendant turned 26.14 Had the
current offenses been committed just a few weeks earlier, defendant would have been
entitled to sentencing consideration under section 1170(b)(6), which creates a
presumption of a low term sentence if the person was under the age of 26 years at the
time of the offense. (§ 1170, subd. (b)(6)(B).) This, too, is new law under Senate Bill
567. (Stats. 2021, ch. 731, § 1.3, p. 27.) While defendant’s age at the time of the current
offenses does not require consideration of section 1170(b)(6), it is an important aspect of
the new sentencing scheme the trial court might take into account as a second mitigating
factor in determining whether upward departure from the middle term is truly justified in
this case. This record does not clearly indicate the upper term would be imposed again
had the court been aware of the presumptive middle term maximum, and the appropriate
remedy is to remand for resentencing under Gutierrez.
This conclusion is based on the assumption all the aggravating factors were
properly considered under the new law. In actuality, because the trial court did not have
the benefit of the new law, none of the aggravating circumstances were found in
accordance with the requirements under section 1170(b)(2) or (b)(3). When the factual
findings underlying the aggravating circumstances are examined in light of these new
procedural requirements and the harmless error test employed by the majority, the need
for resentencing becomes even more strikingly clear.

13 These misdemeanor offenses were committed in December 2015, July 2016, and
August 2017. Defendant did not turn 26 years old until 2018.
14 Although the narrative portion of the pre-plea probation report recites that the
arson offense in Madera Superior Court case No. MCR060145 took place on August 17,
2017, the criminal complaint alleges this offense occurred on August 17, 2018—when
defendant was 26 years old, not 25 years old.

31.
 The first aggravating circumstance the trial court relied on was that defendant’s
prior convictions were both numerous “and increasing in seriousness.” As the majority
correctly points out, it is unclear exactly which convictions the trial court considered in
making these findings.15 The post-plea probation reports’ recitation of defendant’s
criminal record include a misdemeanor vandalism conviction entered after the conviction
for defendant’s current offense, and lists the current conviction in count 1 of Madera
Superior Court case No. MRC060145 for arson (§ 451, subd. (d)). Only three of the
convictions listed are actually prior convictions, and they are all misdemeanors.
While a judicial finding of three prior convictions has been upheld in a different
context as sufficiently numerous to support such an aggravating circumstance (see People
v. Searle (1989) 213 Cal.App.3d 1091, 1098), I do not share the majority’s beyond-
reasonable-doubt certainty a jury would assess this aggravating circumstance the same
way as the trial court might. (See Sandoval, supra, 41 Cal.4th at p. 840 [imprecise
quantitative evaluations of the facts may make it difficult for reviewing court to conclude
with confidence the jury would assess facts the same way as trial court].) This is
especially so since the trial court also found the prior convictions were increasing in
seriousness—a feature of this circumstance the majority does not examine and one that is
highly subjective. (Ibid. [aggravating circumstance resting on subjective standard may be
difficult for reviewing court to conclude with confidence jury would assess facts the same
way as trial court].) Parsing the court’s aggravating circumstance finding to assume a
jury would conclude three prior convictions are numerous is more akin to a search for
substantial evidence to support the aggravating circumstance finding than a harmless

15 The fact that we do not know with certainty which convictions the trial court
considered in reaching this finding highlights the practical necessity of proving prior
convictions with certified records of conviction rather than a probation report. Moreover,
everything we think we know about the prior convictions in this case is built on only an
assumption there is extra-record evidence that actually supports the double hearsay
recited in either the pre- or post-plea probation reports.

32.
error analysis, particularly under Chapman. (See People v. Sek (2022) 74 Cal.App.5th
657, 668 [“it is not enough” under Chapman “to show that substantial or strong evidence
existed to support a conviction under the correct instructions”].)
As to the fourth aggravating circumstance—defendant’s unsatisfactory
performance on probation following his conviction—the majority concludes only one
violation of probation (rather than two violations) was properly considered in making this
aggravating circumstance finding. Thus, as with the prior convictions considered, some
facts underlying this aggravating circumstance were improperly found by the trial court.
What ultimately remains is an upper term based on two aggravating circumstances
improperly but harmlessly considered, a prior convictions aggravating circumstance
based on facts and a record so unclear we do not know what the trial court actually
weighed in that analysis (or how a jury would evaluate the two factual aspects underlying
this circumstance), and one aggravating circumstance (performance on probation
following conviction) for which half the supporting facts were prejudicially considered.
Even trying to resuscitate some of the aggravating circumstance findings under a
harmless error rubric, the factual support underpinning them is significantly eroded.
Setting aside my doubt the first aggravating circumstance could be held
harmlessly considered, since the record does not offer any insights into how the trial
court weighed the numerosity and seriousness aspects of the prior convictions
circumstance against each other (or generally in relation to the other aggravating
circumstances), it is impossible to conclude to any degree of certainty or probability how
the court would evaluate that circumstance, especially after sheering off some of the
underlying facts and findings as the majority does. The same is true of the fourth
aggravating circumstance. This highlights the inadequacies of the harmless error analysis
in this context, and, here, really amounts only to guesswork about how the trial court
might weigh a different compilation of facts under a different sentencing scheme.
Through no fault of the trial court, when I stack up the factually gutted version of these

33.
aggravating circumstances in view of the presumptive middle term maximum, it is all the
more apparent the original upper term sentence does not reflect an exercise of informed
discretion under the new law.
This record provides no clear indication the trial court would find upward
departure from the new presumptive middle term was justified under the existing
aggravating circumstances, let alone some factually weakened version of those
circumstances. As such, resentencing is required and I would remand for that purpose.
(Gutierrez, supra, 58 Cal.4th at p. 1391.) For these reasons, I respectfully dissent from
the majority’s reasoning and conclusions in part II. of the Discussion.

MEEHAN, J.

34.