1

Filed 12/28/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY KEVIN ROSS,

Defendant and Appellant.

 A163242

 (Del Norte County Super. Ct.

 No. CRPB19-5129)

Defendant Anthony Kevin Ross appeals after a jury convicted him of 

battery on a non-confined person by a prisoner (Pen. Code, § 4501.5)1 and

found true two prior “strike” convictions (§ 667, subds. (b)–(i)). On appeal, he

argues: (1) his attorney violated his Sixth Amendment rights by conceding 

his guilt; and (2) the matter should be remanded for resentencing due to 

Senate Bill No. 567. In the unpublished portion of this opinion, we reject 

defendant’s Sixth Amendment challenge. But in the published portion, we 

agree that a remand for resentencing is required due to postsentencing 

statutory amendments made by Senate Bill No. 567.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of part A of the 

Discussion.

1 All further statutory references are to the Penal Code unless otherwise 

indicated.
2

FACTUAL AND PROCEDURAL BACKGROUND

The People charged defendant with one count of battery on a nonconfined person (here, a correctional counselor) by a prisoner (§ 4501.5). The 

People also alleged defendant had two prior strike convictions. (§ 667, 

subds. (b)–(i).)

Initially, attorney George Mavris represented defendant. In November 

2020, weeks before the initial date set for trial, Mavris filed a motion to 

withdraw as counsel, citing “ ‘irreconcilable conflict.’ ” The court held a 

Marsden2 hearing, relieved Mavris as counsel, then appointed James 

Fallman. Trial was continued and eventually took place in July 2021. The 

jury ultimately found defendant guilty of the section 4501.5 count and found 

the two prior strike allegations true. The following summarizes some of the 

relevant trial evidence.

Correctional counselor B.B. testified as follows. B.B. works at Pelican 

Bay State Prison, which is a “level four” prison, meaning generally that it has 

more security and houses prisoners with higher “classification points.” 

Classification points are based on various factors, such as sentence length, 

age, and behavior. In July 2018, B.B. met with defendant, a level four 

prisoner, in his office. Defendant did not have the classification points 

necessary to be placed in a level three facility, and B.B. refused defendant’s 

request to recommend an “override” to the committee responsible for

placement decisions. When B.B. told defendant he could ask the committee 

himself, defendant cursed and yelled at B.B. and demanded a new counselor. 

B.B. told defendant he was “acting childish” and to calm down, and 

defendant cursed and continued yelling. B.B.—who remained calm and 

seated behind his desk—then told defendant, “why don’t you act like a man 

2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3

and show some respect?” In response, defendant stood and charged B.B.

saying, “I am a man.” Defendant punched B.B. in the eye while he was still 

seated. B.B. yelled at him to “get down”—a phrase correctional officers use 

when there is an issue with an inmate. Defendant repeatedly struck B.B.’s 

face and body and scratched his head and arms. B.B. put up an arm to block 

defendant, then started punching back. B.B. could not escape the office they 

were in.

About 30 seconds later, other correctional officers arrived and used 

pepper spray, but defendant did not stop striking B.B. Defendant resisted 

being handcuffed and struck at the correctional officers around him. B.B.

suffered multiple scratches and bruises. 

Two of the responding correctional officers corroborated B.B.’s account 

of the attack. One of the officers described defendant’s punches as being like 

“windmills.” The hearing officer at defendant’s rule violation report (RVR)

hearing testified that defendant pleaded guilty to the administrative charge 

of battering B.B. Evidence was introduced that defendant wrote in an 

intercepted outgoing letter3 that “I got stuck in the hole again for taking off 

on my CC I [(correctional counselor I)] because he called me a [sic] lame.”

After the People rested, the defense presented no evidence. The parties 

and the trial court then discussed jury instructions. Upon receiving some of 

the instructions, the court said: “I’m in receipt of simple battery 960,

Element 2, is typically not given unless there is evidence of self-defense.” 

Defense counsel Fallman responded, “That’s fine. I just brought the form.” 

The prosecutor said she saw no evidence of self-defense, and the court agreed.

3 All outgoing nonlegal mail by the prisoners is monitored. If the 

contents of mail are deemed “not allowable,” the mail is “stopped” and 

returned to the inmate. 
4

Defendant interjected, saying, “Man, you are fired” and “I will represent 

myself.” The court initially continued to talk about the instructions, asking if 

it was acceptable to the parties to “just remove Element 2,” and both 

attorneys affirmed it was. Defendant then cursed, saying: “Hey, why don’t 

you f[***] up your son, so what?” When the court tried to interrupt him, 

defendant continued to curse at the court and the prosecutor, and made other 

incoherent statements. The court had him removed from the courtroom, 

indicating he could return when he could behave appropriately. 

The court took a short recess so that Fallman could speak with 

defendant. Upon returning, Fallman told the court that he tried to talk with 

defendant, but that defendant refused and simply repeated his desire to fire

Fallman. The court asked Fallman to speak with defendant again and see if 

he wanted to come back for a Marsden hearing. Fallman did as instructed, 

but defendant only said he wanted to go back to his cell. The court stated for 

the record that it had “nothing to hang [its] hat on why or what [defendant]

purports Marsden to be,” and it asked Fallman if he had anything to add. 

(Italics added.) Fallman said: “No. I just think there comes a point where he 

tries to get rid of his attorney. He already got rid of Mr. Mavris, who I note to 

be an excellent attorney before me on this same case. So I don’t know. I 

think it’s probably provocation. There is no reason for it.” The court then 

denied Marsden relief, finding no basis for it and confirming again that 

Fallman also saw no basis for it. 

The trial continued with defendant in absentia. The court instructed 

the jury on the section 4501.5 count and the lesser included offense of simple 

battery. During closing argument, Fallman admitted defendant touched B.B.

willingly, in a harmful or offensive manner, but argued there was no preplanning or weapon involved. Fallman asked the jury to find defendant 
5

guilty of the lesser included offense of misdemeanor battery, arguing such 

result was fair because defendant already suffered consequences as a result 

of the RVR and, had this incident happened on the streets, it would have

been a misdemeanor. Fallman suggested that defendant overreacted because 

of the things B.B. said to him, and because he is an inmate on a level four 

yard who did not want to be perceived as a “wimp.” 

The jury found defendant guilty of the section 4501.5 count. In a 

bifurcated trial, the jury found both prior strike allegations true. 

During sentencing, defendant was invited to make a statement but 

declined to do so. Upon finding six aggravating factors true and no 

mitigating factors, the trial court sentenced defendant to the upper term of 

four years for the section 4501.5 count, doubled to eight years under the 

Three Strike Law. Defendant appealed. 

DISCUSSION

A. Defense counsel’s concession during closing argument

Citing McCoy v. Louisiana (2018) 584 U.S. __ [138 S.Ct. 1500] (McCoy),

defendant argues that Fallman violated his Sixth Amendment right to 

assistance of counsel by conceding his guilt of battery.

In McCoy, a capital defendant’s trial counsel concluded that the 

evidence against the defendant was overwhelming, and that absent a 

concession as to guilt, a death sentence would be impossible to avoid at the 

penalty phase. (McCoy, supra, 138 S.Ct. at p. 1506.) Prior to trial, counsel 

told the defendant he would concede guilt, and the defendant vociferously 

objected. (Ibid.) During his opening statement at the guilt phase, counsel 

conceded guilt anyway, causing the defendant to protest and accuse counsel

of “ ‘selling [him] out.’ ” (Id. at pp. 1506–1507.) During trial, the defendant 

took the stand and pressed an alibi defense, but during closing argument, 
6

defense counsel again conceded guilt. (Id. at p. 1507.) The jury ultimately 

returned three death verdicts and the defendant appealed, arguing the trial 

court violated his rights by allowing defense counsel to concede guilt. (Ibid.)

Though recognizing that trial management is a lawyer’s province, the 

McCoy court concluded that some decisions—including the autonomy to 

decide that the objective of the defense is to assert innocence—are reserved 

for the client. (McCoy, supra, 138 S.Ct at p. 1508.) Thus, “[w]hen a client 

expressly asserts that the objective of ‘his defence’ is to maintain innocence of 

the charged criminal acts, his lawyer must abide by that objective and may 

not override it by conceding guilt.” (Id. at p. 1509, original italics omitted and 

italics added.) Furthermore, violation of a defendant’s “Sixth Amendmentsecured autonomy” is structural error. (Id. at p. 1511.)

The McCoy court distinguished the case from Florida v. Nixon (2004) 

543 U.S. 175, which held defense counsel did not negate the defendant’s 

autonomy where the defendant “complained about the admission of his guilt 

only after trial” but was “ ‘generally unresponsive’ during discussions of trial 

strategy and ‘never verbally approved or protested’ counsel’s proposed 

approach.” (McCoy, supra, 138 S.Ct. at p. 1509.) As the court explained: “If 

a client declines to participate in his defense, then an attorney may 

permissibly guide the defense pursuant to the strategy she believes to be in 

the defendant’s best interest. Presented with express statements of the 

client’s will to maintain innocence, however, counsel may not steer the ship 

the other way.” (Ibid., italics added.)

In California cases applying McCoy, the McCoy rule barring 

concessions of guilt “applies only where defendant actively opposes counsel’s 

concession.” (People v. Villa (2020) 55 Cal.App.5th 1042, 1056; see, e.g., 

People v. Franks (2019) 35 Cal.App.5th 883, 891 [under McCoy, “a defendant 
7

must make his intention to maintain innocence clear to his counsel, and 

counsel must override that objective by conceding guilt”]; People v. Lopez

(2019) 31 Cal.App.5th 55, 66 [finding no authority extending McCoy’s holding 

“to a situation where the defendant does not expressly disagree with a 

decision relating to his right to control the objective of his defense”]; People v. 

Burns (2019) 38 Cal.App.5th 776, 784.) 

Here, there appears no dispute Fallman conceded that defendant, who 

indisputably was a prisoner, committed battery on B.B., who indisputably 

was a nonprisoner. But the record does not reflect that defendant ever 

expressly objected to Fallman’s strategy of conceding guilt in order to 

persuade the jury that the lesser included offense of misdemeanor battery

better reflected the circumstances of the case. Nor does the record disclose a 

clear statement from defendant to Fallman that defendant wanted to 

maintain his innocence.

Defendant’s briefing on appeal acknowledges that when he tried to 

remove Fallman as counsel mid-trial he “did not explicitly state that the 

ground for removal was that he wished to pursue a self-defense claim and 

counsel was not honoring that aim.” Defendant suggests, however, that his 

desire to maintain innocence was sufficiently clear because: (1) before trial, 

he had Mavris removed due to Mavris’s refusal to pursue a self-defense claim,

which meant Fallman and the court were aware of his desire to pursue a selfdefense strategy and not concede guilt; and (2) during trial, when Fallman 

agreed with the court that the evidence was insufficient to justify a selfdefense instruction, defendant sought to have Fallman removed. We are 

unpersuaded.

As a preliminary matter, we note that defendant provides no citation to 

the record showing that he had Mavris removed over Mavris’s refusal to 
8

pursue a self-defense claim. To the contrary, the record reflects that Mavris 

himself moved to withdraw citing “ ‘irreconcilable conflict’ ” and provided a 

number of circumstances supporting his withdrawal at the November 2020 

Marsden hearing. Though defendant appears to claim that Mavris knew 

defendant wanted to maintain innocence, the record does not clearly support

that. Nor does the record reflect that defendant expressed opposition to a 

concession of guilt as the defendant did in McCoy.4 (McCoy, supra, 138 S.Ct. 

at p. 1506.)

Moreover, the trial court relieved Mavris as counsel and appointed 

Fallman in November 2020, then trial was continued for months to July 

2021. Fallman was not present at the 2020 Marsden hearing. There is no 

indication Fallman knew in any detail what was said at that hearing. Nor 

does defendant point to any evidence that his claimed desire to maintain 

innocence to the exclusion of all other defense strategies was ever 

communicated to Fallman or the trial court.

4 At the November 2020 Marsden hearing, Mavris explained he was 

moving to withdraw because: (1) defendant was talking nonsensically to him 

about Mavris allegedly sitting next to defendant’s girlfriend in court; (2) at 

one meeting, defendant told Mavris he assaulted the victim, but at another 

meeting he said it was self-defense, and gave a different version of the facts, 

which made Mavris concerned about perjury; and (3) Mavris expressed 

concern that defendant was going to attack him and said he did not want to 

sit next to him.

That Mavris reported defendant’s mention of self-defense on this one 

occasion presents a very different situation than in McCoy, where McCoy 

became furious prior to trial at his attorney’s mention of conceding guilt, 

directed his attorney not to concede guilt, and the record showed that

McCoy’s attorney knew McCoy was completely opposed to conceding guilt. 

(McCoy, supra, 138 S.Ct. at p. 1506.) And unlike the present case, McCoy 

told the judge during trial that his attorney was “ ‘selling [him] out’ ” by 

conceding guilt, and McCoy himself testified and maintained innocence. (Id.

at pp. 1506–1507.)
9

We are not persuaded that defendant’s position on innocence was 

sufficiently clear because of the timing of his request to remove Fallman as 

counsel during trial. Defendant’s reliance on what might be implied from the 

circumstances simply fails to satisfy McCoy, which requires express

statements of the client’s will to maintain innocence. Ultimately, defendant 

never actually stated he was trying to remove Fallman because he wanted to

maintain his innocence based on self-defense. Instead, defendant just cursed, 

told Fallman he wanted him fired, and said incomprehensible things.

Similarly, when Fallman spoke with defendant after his outbursts to see if he 

wanted to return to court for a Marsden hearing, defendant said only that he 

wanted Fallman fired and to return to his cell. Notably, when considering

the Marsden issue in defendant’s absence, the court and Fallman both 

indicated they had no idea what defendant’s grounds for a Marsden removal 

would be. 

Defendant’s reliance on People v. Eddy (2019) 33 Cal.App.5th 472 is 

unavailing. In Eddy, the defense attorney claimed during his opening 

statement that the defendant was innocent and suggested that another 

person committed the murder at issue. (Id. at p. 477.) The defense failed to 

present an affirmative defense case, then defense counsel conceded during 

closing argument that the defendant committed voluntary manslaughter but

maintained the defendant was not guilty of murder. (Ibid.) At a Marsden

hearing held around the time of sentencing, the defense attorney told the 

trial court that prior to his closing argument concession, he knew the 

defendant had wanted to maintain his innocence and argue another person 

committed the murder. (Id. at p. 478.) The defendant himself also told the 

court he wanted to maintain his innocence from the outset. (Id. at pp. 478–

479.) The defense attorney did not deny making the closing argument 
10

concession despite the defendant’s desire to maintain innocence. (Id. at 

p. 479.) Relying on this record, the Eddy court found the defendant’s Sixth 

Amendment right to maintain his innocence under McCoy was violated. (Id.

at pp. 481–483.) Eddy does not aid defendant’s case, as the facts in Eddy

bear no resemblance to those here.

On the record before us, defendant’s claim of error under McCoy fails.

B. Senate Bill No. 567

In sentencing defendant, the trial court selected the upper term for the 

section 4501.5 conviction. The court found true the two crime-based 

aggravating factors set out in California Rules of Court, rule 4.421(a)(1) and 

(a)(3),5 namely, that “(1) [t]he crime involved great violence, great bodily 

harm, threat of great bodily harm, or other acts disclosing a high degree of 

cruelty, viciousness, or callousness” and “(3) [t]he victim was particularly 

vulnerable.” With regard to the rule 4.421(a)(3) factor, the court indicated 

that B.B. was particularly vulnerable because he was alone in his office with 

defendant, without being behind glass or any type of protection. The court

also found true the following four aggravating factors set forth in rule 

4.421(b): “(1) The defendant has engaged in violent conduct that indicates a

serious danger to society; [¶] (2) The defendant’s prior convictions as an adult 

or sustained petitions in juvenile delinquency proceedings are numerous or of 

increasing seriousness; [¶] (3) The defendant has served a prior term in 

prison or county jail under section 1170(h); [¶] . . . ; and [¶] (5) The 

defendant’s prior performance on probation, mandatory supervision, 

postrelease community supervision, or parole was unsatisfactory.”

(Rule 4.421(b)(1)–(3), (5).) The court found no factors in mitigation and 

5 All further rule references are to the California Rules of Court. 
11

concluded the aggravating factors “far outweigh[ed]” those in mitigation, 

justifying the upper term. 

While this appeal was pending, the Legislature enacted Senate Bill 

No. 567 (Senate Bill 567), which amended section 1170, subdivision (b), to 

require that when a statute specifies three potential terms of imprisonment, 

a court must presumptively impose the middle term. (§ 1170, subd. (b)(1), as 

amended by Stats. 2021, ch. 731, § 1.3.) Moreover, a court may not impose 

the upper term unless aggravating circumstances “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, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) 

Under section 1170, subdivision (b)(3), however, “the court may consider the 

defendant’s prior convictions in determining sentencing based on a certified 

record of conviction without submitting the prior convictions to a jury.”

Defendant presently argues he must be resentenced pursuant to Senate 

Bill 567 because “the trial court imposed the upper term of four years without 

any consideration of whether the aggravating factors were true beyond a 

reasonable doubt.” In response, the People properly concede that Senate 

Bill 567 is retroactive under In re Estrada (1965) 63 Cal.2d 740, and that it

applies here to defendant’s nonfinal judgment. (People v. Zabelle (2022) 80 

Cal.App.5th 1098, 1109 (Zabelle).) The People also acknowledge the trial 

court relied on some aggravating factors that were neither stipulated to by 

defendant nor found true by the jury beyond a reasonable doubt. 

Nevertheless, the People contend resentencing is unnecessary because the 

court properly relied on defendant’s criminal history to justify imposition of 
12

the upper term (rule 4.421(b)) and the court “unquestionably” would have 

found true the remaining crime-based aggravating factors (rule 4.421(a)). 

Initially, we note there appears to have been no error as to the court’s 

reliance on the aggravating factors articulated in rule 4.421(b), even under 

the changes made by Senate Bill 567. Notably, in finding defendant guilty of 

the section 4501.5 count, the jury necessarily found beyond a reasonable 

doubt that defendant was a prison inmate, an element of the charged offense, 

and also found beyond a reasonable doubt that defendant had two prior strike 

convictions, one for second degree robbery in 2015 and one for assault with a 

deadly weapon in 2007. 

Moreover, section 1170, subdivision (b)(3), explicitly permits a trial 

court to “consider the defendant’s prior convictions in determining sentencing 

based on a certified record of conviction without submitting the prior 

convictions to a jury.” Here, the record on appeal includes certified records of 

defendant’s prior convictions which support the court’s consideration of the

rule 4.421(b)(1), (2), (3) and (5) aggravating factors. Specifically, the certified 

records document defendant’s conviction of multiple crimes—robbery, 

burglary, assault with a deadly weapon, drug possession—over the last 

decade and a half, as well as the prior prison sentences he served. (People v. 

Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are 

“ ‘numerous’ ”].) According to the certified records, defendant not only

absconded on parole but he committed new offenses while on parole and

probation. Thus, to the extent the trial court made its sentencing decision 

based on the aggravating circumstances set forth in rule 4.421(b), no error 

appears.

Nonetheless, to the extent the trial court’s imposition of the upper term

was based on its own findings of fact regarding the crime-based aggravating 
13

factors in rule 4.421(a)(1) and (a)(3), then it committed error under Senate 

Bill 567. That is because, contrary to the dictates of the new law, defendant 

had not stipulated to the facts underlying these factors, nor were the facts

found true beyond a reasonable doubt by a jury or by a judge in a court trial.

Courts, however, have concluded this type of error is subject to 

harmless error review. In People v. Flores (2022) 75 Cal.App.5th 495 (Flores), 

this court recently articulated the following standard for harmless error: 

“ ‘[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, 

applying the beyond-a-reasonable-doubt standard, unquestionably would 

have found true at least a single aggravating circumstance had it been 

submitted to the jury,’ the error is harmless.” (Id. at p. 500.) In setting out 

that standard, we relied on People v. Sandoval (2007) 41 Cal.4th 825

(Sandoval), which set forth the standard for Sixth Amendment error under 

Cunningham v. California (2007) 549 U.S. 270. (Flores, at p. 500.)6

Subsequent to Flores, several courts have additionally considered

“whether it is reasonably probable that the trial court would have chosen a 

lesser sentence in the absence of the error,” thus incorporating a state law 

Watson7 component to their harmless error analysis. (Zabelle, supra, 80 

Cal.App.5th at p. 1112; People v. Dunn (2022) 81 Cal.App.5th 394, 408, 

review granted Oct. 12, 2022, S275655 (Dunn); People v. Wandrey (2022) 80 

Cal.App.5th 962, 982, review granted Sept. 28, 2022, S275942 (Wandrey); 

People v. Lopez (2022) 78 Cal.App.5th 459, 467 (Lopez)). Upon reflection, we 

find the rationale for adding a state law harmless error component both 

logical and compelling: “ ‘ “[D]efendants are entitled to sentencing decisions 

6 The California Supreme Court denied a request for depublication of 

Flores and also declined to review the matter on its own motion. (People v. 

Flores (June 15, 2022, S274232).)

7 People v. Watson (1956) 46 Cal.2d 818 (Watson).
14

made in the exercise of the ‘informed discretion’ of the sentencing court. 

[Citations.] A court which is unaware of the scope of its discretionary powers 

can no more exercise that ‘informed discretion’ than one whose sentence is or 

may have been based on misinformation regarding a material aspect of a 

defendant’s record.” ’ ” (Lopez, at p. 467.) In situations where a trial court 

imposed a sentence without exercising informed discretion, “ ‘the appropriate 

remedy is to remand for resentencing unless the record “clearly indicate[s]”

that the trial court would have reached the same conclusion “even if it had 

been aware that it had such discretion.” ’ ” (Ibid.; Zabelle, at p. 1113; 

Wandrey, at p. 982; Dunn, at p. 408.) 

Accordingly, we will apply the two-step harmless error standard

articulated in Lopez. To determine whether prejudice resulted from a trial 

court’s failure to apply the new version of the sentencing law, we first ask 

“whether the reviewing court can conclude beyond reasonable doubt that a 

jury would have found true beyond a reasonable doubt all of the aggravating 

factors on which the trial court relied in exercising its discretion to select the 

upper term. If the answer to this question is ‘yes,’ then the defendant has not 

suffered prejudice from the court’s reliance on factors not found true by a jury 

in selecting the upper term. However, if the answer to the question is ‘no,’ we 

then consider the second question, which is whether a reviewing court can be 

certain, to the degree required by People v. Watson . . . , that the trial court 

would nevertheless have exercised its discretion to select the upper term if it 

had recognized that it could permissibly rely on only a single one of the 

aggravating factors, a few of the aggravating factors, or none of the 

aggravating factors, rather than all of the factors on which it previously 

relied. If the answer to both of these questions is ‘no,’ then it is clear that 
15

remand to the trial court for resentencing is necessary.” (Lopez, supra, 78 

Cal.App.5th at p. 467, fn. 11, italics omitted.)8

Starting with Lopez’s first inquiry, we cannot conclude beyond 

reasonable doubt that a jury would have found true beyond a reasonable 

doubt the aggravating factors concerning the crime as set out in rule 

4.421(a)(1) and (a)(3). Indeed, our Supreme Court has cautioned that “to the 

extent a potential aggravating circumstance at issue in a particular case 

rests on a somewhat vague or subjective standard, it may be difficult for a 

reviewing court to conclude with confidence that, had the issue been 

submitted to the jury, the jury would have assessed the facts in the same 

manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.) Here, 

the crime-based rule 4.421(a)(1) and (a)(3) aggravating factors are precisely of 

this nature, requiring a subjective evaluation as to whether the victim was 

8 Lopez’s analysis aligns with the thoughts expressed by Justice Liu in 

his concurring statement to the Supreme Court’s denial of depublication and 

review in Flores. Noting that Senate Bill 567 amended section 1170, 

subdivision (b), to provide the upper term may be imposed “ ‘only when there 

are circumstances in aggravation of the crime that justify the imposition of a 

term of imprisonment exceeding the middle term,’ ” Justice Liu queried 

whether “it may no longer be true that ‘the existence of a single aggravating 

circumstance is legally sufficient to make the defendant eligible for the upper 

term’ ” and whether any aggravating fact (except a prior conviction) relied on 

by a trial court “ ‘that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.’ ” (People v. Flores (June 15, 2022, S274232), conc. 

statement of Liu, J., italics omitted.)

Thus, we concur in the Lopez analysis, which asks at the first step 

whether a reviewing court can conclude beyond a reasonable doubt that a 

jury would have found true beyond a reasonable doubt all of the aggravating 

factors the trial court relied on, not simply at least one aggravating factor. 

(Lopez, supra, 78 Cal.App.5th at pp. 466–467 & fns. 10–11; but see Dunn, 

supra, 81 Cal.App.5th at pp. 409–410 [rejecting this approach and applying

the Watson standard at the first step].)
16

particularly vulnerable, and whether the crime involved great violence, great 

bodily harm, threat of great bodily harm, or other acts disclosing a high 

degree of cruelty, viciousness, or callousness. (Rule 4.421(a)(1) & (3); see 

Sandoval, at p. 840 [indicating the rule 4.421(a)(3) aggravating factor 

required “an imprecise quantitative or comparative evaluation of the facts”].) 

In other words, “[s]ome degree of speculation would necessarily be required 

for us to conclude the jury would have agreed with the trial court’s 

evaluation.” (Wandrey, supra, 80 Cal.App.5th at p. 983.)

We turn to Lopez’s second inquiry, which asks whether we can be 

certain, to the degree required by Watson, supra, 46 Cal.2d 818, 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 few 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.) We cannot answer 

this inquiry in the affirmative. This case involved a crime by an inmate 

offender where the sentence was already enhanced by strike priors that were 

pleaded and proved. We cannot conclude it is reasonably probable that the 

trial court, in the face of Senate Bill 567’s new presumption in favor of the 

middle term, would have exercised its discretion the same way had it known 

it could not rely on the rule 4.421(a)(1) and (a)(3) aggravating factors. 

(Watson, at p. 836.) In order to give Senate Bill 567 its full effect, a remand 

for resentencing is appropriate.

DISPOSITION

The matter is remanded for resentencing in light of section 1170, 

subdivision (b), as amended by Senate Bill 567. In all other respects, the 

judgment is affirmed.
17

FUJISAKI, ACTING P.J. 

WE CONCUR: 

PETROU, J. 

RODRÍGUEZ, J.

People v. Ross (A163242)
18

Trial Court: Del Norte County Superior Court

Trial Judge: Hon. J. Darren McElfresh

Counsel: Law Offices of Lillian Hamrick, Lillian Hamrick, under 

appointment by the First District Appellate Project, for 

Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E. 

Winter, Chief Assistant Attorney General, Jeffrey M. 

Laurence, Senior Assistant Attorney General, Eric D. 

Share, Supervising Deputy Attorney General, and 

Viktoriya Chebotarev, Deputy Attorney General for 

Plaintiff and Respondent