Filed 8/30/22 P. v. Lacy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

ERIC TYRONE LACY,

Defendant and Appellant.

F082128

(Super. Ct. No. F16904373)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge.

Erin J. Radekin, 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, Darren K. Indermill and 

Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-

* Before Franson, Acting P. J., Smith, J. and Snauffer, J.
2.

Defendant Eric Tyrone Lacy contends he is entitled to a remand for resentencing 

under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which took 

effect during the pendency of this appeal. The People agree with Lacy that Senate Bill 

No. 567 applies retroactively to this case. The People, however, assert the sentencing 

court did not err under Senate Bill No. 567, or any error with respect to Senate Bill No. 

567 was harmless, and therefore remand for resentencing is not required. We conclude 

the trial court erred under Senate Bill No. 567 and the error was not harmless. We 

remand for resentencing but otherwise affirm the judgment. 

PROCEDURAL HISTORY

On January 2, 2018, a second amended information (information) was filed in the 

Fresno County Superior Court, charging defendant Eric Tyrone Lacy, in count 1, with 

violating Penal Code1section 273.5, subdivision (a), by inflicting corporal injury upon 

his spouse, Jane Doe, resulting in a traumatic condition (a felony); and in count 2 with 

violating section 148, subdivision (a)(1), by resisting, obstructing, or delaying a peace 

officer or EMT (a misdemeanor). The information alleged, as a sentence enhancement in 

relation to count 1, that Lacy personally inflicted great bodily injury upon Jane Doe, 

within the meaning of section 12022.7, subdivision (e) (which applies to domestic 

violence offenses). The information further alleged that Lacy had suffered two prior 

convictions that counted as prior strikes under the three strikes law and also triggered a 

five-year prior serious felony sentence enhancement. (§§ 667, subds. (b)-(i), 1170.12, 

subds. (a)-(d), 667, subd. (a)(1).) The two prior serious or violent felony convictions—

one was for rape (section 261, subdivision (a)(2)) and other was for dissuading a witness 

(section 136.1, subdivision (c))—arose in the same case and dated to 1986. Finally, the 

information alleged that Lacy had suffered a prison prior within the meaning of section 

667.5, subdivision (b). 

1 Subsequent statutory references are to the Penal Code, unless otherwise specified. 
3.

On January 3, 2018, Lacy pleaded “straight-up” to the charges and enhancement 

allegations set forth in the information (there was no plea agreement). On March 9, 2018, 

Lacy was sentenced based on his “straight-up” plea. At the sentencing hearing, the court 

noted: “The Court has read and considered the probation report dated February 6th, 

2018, as well as the statement in mitigation and the invitation to strike the serious 

[felony] prior convictions, as well as the People’s sentencing brief.” The court struck one 

of Lacy’s prior strikes pursuant to section 1385, subdivision (a), and People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497. The court sentenced Lacy to an aggregate term 

of 18 years in state prison. 

During the sentencing hearing, the court observed: “I told Mr. Lacy at the time he 

entered his plea that I would be fair when reviewing his history and determining what is 

appropriate in this case. And the Court believes it is appropriate to strike one of the two 

serious felony priors.” The court noted that Lacy’s “serious felony priors” arose “some 

time ago” and “in a single case.” The court concluded: “For that reason, the Court is 

going to strike one of the serious felony priors. And that would be the conviction for 

[dissuading a witness]. That will be stricken for sentencing purposes only in this 

particular case.” 

The court further explained its sentencing decision: “So for the felony violation 

of Penal Code section 273.5 (a), committing corporal injury to a cohabitant resulting in a 

traumatic condition, the Court is selecting as the appropriate sentencing option the 

aggravated term of four years. The Court is imposing that term based on the fact that the 

defendant was on parole at the time ... the offense was committed. And ... based on the 

fact the defendant engaged in violent conduct, which indicates he is a serious danger to 

society. At least as to the victim in this case. That term will be further enhanced under 

Penal Code section 12022.7(e), where the Court is again selecting the aggravated term of 

five years. And the Court is selecting that term for the same reasons. [¶] The [count 1] 

term will be further enhanced under Penal Code section 667(a)(1), given that [the instant] 
4.

crime and the prior crime were each serious and/or violent felonies. The Court will 

exercise its discretion and strike the [section] 667.5(b) prior for purposes of sentencing in 

this case only. [¶] For a total commitment for the conduct in this case of 18 years.”2 

Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate 

Bill No. 1393) amended sections 667, subdivision (a) and 1385, subdivision (b), to allow 

sentencing courts to strike a prior serious felony conviction for purposes of the five-year 

sentence enhancement under section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, 

§§ 1-2.) Upon Lacy’s appeal of his sentence to this court, we remanded the matter for the 

sentencing court to exercise its discretion in light of Senate Bill No. 1393.3 On remand, a 

resentencing hearing was held on October 15, 2020. At the resentencing hearing, the 

court asked the parties whether they had anything to add to their arguments and briefing 

from the original sentencing hearing, “specifically concerning the [section] 667(a) 

allegation.” Both parties then supplemented their arguments from the initial sentencing 

hearing with comments directed to the section 667, subdivision (a)(1) sentence 

enhancement and whether the court should impose it or not. The sentencing court noted 

it had read the appellate court opinion and the transcript from the original sentencing 

hearing, and “reread” the original probation report. The court reimposed the original 

sentence, reiterating precisely the same reasons it had articulated during the original 

sentencing. 

Thus, the court said it would “strike one of the serious felony priors,” that is, “the 

[section] 136 conviction,” because it “occurred at the same time as the rape conviction” 

and “in the same case.” The court again selected “the aggravated term of four years” for 

the section 273.5 conviction because Lacy “was on parole at the time that the offense was 

2 The court imposed a one-year county jail term on count 2, to run concurrently with 

the sentence on count 1. 

3 As requested by Lacy, we take judicial notice of our opinion in Lacy’s prior 

appeal, People v. Lacy (Mar. 20, 2020, F077146 [nonpub. opn.]).
5.

committed, also based on the fact that [he] engaged in violent conduct which indicates 

that he was a serious danger to society, at least as to this particular victim.” The 

aggravated term of four years was doubled on account of the prior strike. The court 

observed: “And the term will be further enhanced pursuant to Penal Code section 

12022.7(e) for the personal infliction of great bodily injury, where the Court is selecting 

as the appropriate term[,] the aggravated term of five years. And the Court is selecting 

that five-year term for the same reasons that the Court selected the aggravated term as to 

the underlying offense.” As for the five-year serious felony enhancement pursuant to 

section 667, subdivision (a)(1), the court added, “[t]he term [on count 1] will be enhanced 

pursuant to Penal Code section 667 (a)(1).” The court noted it understood it had the 

discretion to not impose the section 667, subdivision (a)(1), enhancement but declined 

not to impose it. In imposing sentence, the court did not consider Lacy’s conduct in 

prison following his original sentencing, which took place over two and half years 

previously. 

DISCUSSION

I. Lacy is Entitled to Resentencing Pursuant to Senate Bill No. 567

Lacy argues on appeal: “Senate Bill 567 amended section 1170, affecting a trial 

court’s sentencing discretion, including its ability to impose the upper term for a 

conviction. (Stats. 2021, ch. 731, § 1.3.) The legislation limits the trial court’s ability to 

impose the upper term unless certain circumstances have been stipulated to by the 

defendant or found true beyond a reasonable doubt. The amendments took effect January 

1, 2022, while this appeal was still pending. (Ibid.) [¶] It is appellant’s position that he 

is entitled to remand for resentencing in light of Senate Bill 567.” The People agree with 

Lacy that Senate Bill No. 567 applies retroactively to this case, but argue that remand is 

unnecessary and any error by the sentencing court in failing to comply with the 

amendments wrought by Senate Bill No. 567 was harmless. As explained below, we 

agree with Lacy and will remand the matter for resentencing in light of Senate Bill 567 
6.

and other applicable amendments to the sentencing laws that took effect during the 

pendency of this appeal.

A. Senate Bill No. 567

When the trial court sentenced Lacy, both at the original sentencing in March 2018 

and the subsequent sentencing in October 2020, section 1170 provided that, at 

sentencing, the selection of the lower, middle, or upper term “shall rest within the sound 

discretion of the court,” based on which term “best serves the interests of justice.” In 

making its selection, the court could consider “the record in the case, the probation 

officer’s reports, other reports, ... and statements in aggravation or mitigation submitted 

by the prosecution, the defendant, or the victim, or the family of the victim if the victim 

[was] deceased, and any further evidence introduced at the sentencing hearing.” (Former 

§ 1170, subd. (b).) The court was required to specify the reasons for its sentencing 

decision. (Former § 1170, subd. (b).) The courts rely on aggravating and mitigating 

circumstances listed in the California Rules of Court, rules 4.421 & 4.423, and “any other 

factor reasonably related to the sentencing decision” (Cal. Rules of Court, rule 4.420(b)). 

Effective January 1, 2022, Senate Bill No. 567 amended section 1170, restricting a 

trial court’s sentencing discretion, including its ability to impose the upper term for a 

conviction. (Stats. 2021, ch. 731, § 1.3.) Pursuant to Senate Bill No. 567, section 1170 

now precludes a trial court from imposing a sentence exceeding the middle term for any 

offense with a sentencing triad, unless “there are circumstances in aggravation of the 

crime that justify the imposition of a term of imprisonment exceeding the middle term, 

and the facts underlying those circumstances have been stipulated to by the 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), italics added.) In other words, Senate Bill No. 567 

provides for a presumptive middle term absent the presence of circumstances in 

aggravation, the facts underlying which have either been stipulated to by the defendant or 

proven beyond a reasonable doubt at trial. (§ 1170, subds. (b)(1) & (2); People v. Lopez
7.

(2022) 78 Cal.App.5th 459, 464 (Lopez).) Notwithstanding this limitation, “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.” 

(§ 1170, subd. (b)(3).) Section 1170, as amended by Senate Bill No. 567 further 

provides, in pertinent part: “The court shall set forth on the record the facts and reasons 

for choosing the sentence imposed. 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.” 

(§ 1170, subd. (b)(5), italics added.)

B. Amendments to Section 1170 Apply Retroactively

The parties agree, as do we, that Senate Bill No. 567’s amendments to section 

1170, subdivision (b), make ameliorative changes to the law, that apply retroactively to 

all cases not yet final as of January 1, 2022. (See Lopez, supra, 78 Cal.App.5th at pp. 

464-465.) The amended statute is ameliorative because it potentially limits punishment 

by requiring the imposition of the middle term absent the applicability of aggravating 

circumstances, the facts underlying which must either be stipulated to by the defendant or 

proven beyond a reasonable doubt. (§ 1170, subd. (b)(1), (2).) Lacy’s case was not final 

on January 1, 2022; accordingly, the amendments to section 1170 apply retroactively to 

his case. As relevant here, Senate Bill No. 567 affected the trial court’s discretion to 

impose upper term sentences on count one and the great bodily injury enhancement 

attached to count 1, respectively. 

C. The Sentencing Court Did Not Comport with the Requirements of Senate 

Bill No. 567 in Imposing Upper Terms on Count 1 and the Great Bodily 

Injury Enhancement Attached to Count 1, Respectively

The parties disagree on whether resentencing is necessary pursuant to section 

1170, as amended by Senate Bill No. 567. 

Lacy maintains resentencing is the appropriate remedy: the trial court imposed the 

upper term based on aggravating factors that did not include prior convictions, were not 
8.

stipulated to by Lacy, or found true beyond a reasonable doubt at trial by a jury or the 

court in a court trial. Lacy contends the trial court must resentence him within the new 

parameters of section 1170, subdivision (b). 

The People contend that “[i]n imposing the upper term sentence in count one here, 

the trial court properly found that Lacy was on parole at the time of the crimes and that 

those crimes established that he had engaged in violent conduct that indicated that he was 

a serious danger to society.” First, citing section 1170, subdivision (b)(3), and authorities 

that predate Senate Bill No. 567, the People argue the sentencing court could properly 

rely on certified records of conviction to find that Lacy was on parole at the time he was 

convicted on count 1, and therefore the facts underlying the parole aggravating 

circumstance were not required to be proven beyond a reasonable doubt to a jury or the 

court at a trial. The People next argue that because “Lacy admitted to the minimum 

elements of count one and the great bodily injury enhancement when he pled no contest 

to the crime and admitted the truth of the enhancement ... [t]he trial court’s finding that 

‘Mr. Lacy engaged in violent conduct which indicates that he was a serious danger to 

society, at least as to this particular victim’ is thus supported by Lacy’s own admissions.” 

The People posit that “because Lacy admitted the minimum elements of the crime and the 

enhancement, a court or jury finding was not required to comport with Senate Bill No. 

567.” (See § 1170, subd. (b)(1), (2).) 

The People’s arguments do not pass scrutiny. First, as to the sentencing court’s 

reliance on the aggravating circumstance that Lacy was on parole when he committed the 

instant felony offense (see Cal. Rules of Court, rule 4.421(b)(4)), the People do not 

dispute that the facts underlying this aggravating circumstance were not stipulated to by 

the defendant, nor were they found true beyond a reasonable doubt by a jury or the court. 

Moreover, even were we to accept the People’s argument that a defendant’s parole status 

is exempt from the requirements of section 1170, subdivision (b)(2) and may properly be 

established with reference to the certified record of a defendant’s prior convictions 
9.

pursuant to section 1170, subdivision (b)(3), here the record did not contain any certified 

records related to Lacy’s prior convictions and the court did not rely on any such records. 

Rather, in concluding Lacy was on parole when he committed the instant offense, the 

sentencing court relied on the probation report. To the extent the People cite authorities 

that predate Senate Bill No. 567 for the proposition that the sentencing court could 

properly rely on the probation report in this regard, this concept is no longer valid in light 

of Senate Bill No. 567’s amendments to section 1170, subdivision (b). In sum, the 

court’s imposition of the upper terms on count one and the great bodily injury 

enhancement on grounds that Lacy was on parole at the time of the instant offense was 

erroneous under section 1170, subdivision (b), as amended by Senate Bill No. 567. 

As noted above, the People further argue the court properly imposed the upper 

terms on count 1 and on the great bodily injury enhancement based on the aggravating 

circumstance that Lacy had engaged in violent conduct that indicates a serious danger to 

society. (See Cal. Rules of Court, rule 4.421(b)(1).) In this regard, the People posit that 

because “Lacy admitted the minimum elements of the crime and the enhancement,” the 

facts underlying the aggravating circumstance were “supported by Lacy’s own 

admissions,” and, in turn, “a court or jury finding was not required to comport with 

Senate Bill No. 567.” 

To the extent Lacy’s straight-up plea meant he “admitted the minimum elements 

of the crime and the enhancement,” his bare plea did not automatically establish all the 

requisite facts underlying the aggravated circumstance at issue here (i.e., that he had 

engaged in violent conduct indicating a serious danger to the public or his wife). Lacy 

notes he did not stipulate his conduct indicated he was a serious danger to society; rather, 

at sentencing, defense counsel emphasized that Lacy’s commission of the instant offense 

was “aberrant,” and highlighted various facts in support of this contention (for example, 

counsel represented that Lacy had been with his wife for 27 years, married for 21 of those 

years, and his wife had reported this was the first instance of domestic violence in that 
10.

entire time, and it occurred at a time when Lacy and his wife were going through a 

divorce). 

Further, the People’s arguments are also not persuasive because, under the 

rationale posited by the People, any time a defendant pleads guilty or no contest to a 

charge under section 273.5 and admits an associated great bodily injury enhancement 

allegation, it would automatically justify the imposition of the upper term with reference 

to the aggravating circumstance at issue here (i.e., that the defendant had engaged in 

violent conduct that indicates a serious danger to society), regardless of the factual 

circumstances. In addition, the People’s contentions conflict with section 1170, 

subdivision (b)(5), which provides, “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.” 

Amended section 1170 creates a presumption that the defendant will be sentenced 

to the middle term, absent the presence of aggravating circumstances, the facts 

underlying which have either been stipulated to by the defendant or proven beyond a 

reasonable doubt at a trial before a jury or the court. Since Lacy did not stipulate to all 

the facts relevant to the aggravating circumstance (i.e., that he had engaged in violent 

conduct that indicated a serious danger to society), and nor were such facts found true 

beyond a reasonable doubt by a jury or the court, the court erred, under Senate Bill No. 

567, in relying on this aggravating circumstance to impose the upper terms on count 1 

and the related great bodily injury enhancement, respectively. 

D. The Sentencing Court’s Errors in Imposing the Upper Terms on Count 1 

and on the Great Bodily Injury Enhancement Were Not Harmless

The People contend any errors on the part of the sentencing court under the 

amendments effected by Senate Bill No. 567, were harmless. We disagree. 

As discussed above, the sentencing court did not have the benefit of the 

amendments to section 1170 when it sentenced Lacy to the upper terms on count 1 and 
11.

the related great bodily injury enhancement, respectively. However, to the extent the 

sentencing court erred with regard to the requirements of amended section 1170, “ ‘[s]uch 

an error does not require reversal if the reviewing court determines it was harmless 

beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 

386 U.S. 18.’ ” (Lopez, supra, 78 Cal.App.5th at p. 465 [where a sentencing factor must 

be found true by a jury and the court fails to ensure that it is, the error does not require 

reversal if determined on appeal to be harmless beyond a reasonable doubt under the test 

set forth in Chapman v. California, supra, 386 U.S. 18].) The error may be found 

harmless if the evidence supporting the factor in question is “ ‘overwhelming and 

uncontested, and there is no “evidence that could rationally lead to a contrary 

finding.” ’ ” (Lopez, supra, at p. 465.) “In order to conclude that the trial court’s 

reliance on improper factors ... was not prejudicial, we would have to conclude beyond a 

reasonable doubt that [a jury or the court] would have found true beyond a reasonable 

doubt every factor on which the court relied.” (Ibid.) 

Even assuming a jury or the court would certainly have found true beyond a 

reasonable doubt that Lacy was on parole when he committed the instant offense, here 

the court, in imposing the upper terms on count 1 and the related great bodily injury 

enhancement, also considered that Lacy engaged in violent conduct that indicated he was 

a “serious danger to society”—a fact not stipulated to by Lacy or found true beyond a 

reasonable doubt by a trier of fact. 

The issue whether Lacy’s conduct made him “a serious danger to society” was 

hotly contested at sentencing. Defense counsel argued that Lacy’s criminal history did 

not include any violent offense for over 30 years, and his only prior violent conduct had 

occurred in 1986 when he was 21 years old (Lacy was 54 years old at the time of 

sentencing). Counsel noted Lacy’s recent prior felony conduct amounted to petty thefts 

that were “now misdemeanors.” Counsel also argued that “the circumstances of this 

particular case are quite unusual, in the sense that there [have] been no reports of any 
12.

domestic violence throughout [Lacy and his wife’s] 21 years, or 27 years of being 

together and then 21 years of marriage.... This was the first occasion ... that has 

occurred.” The prosecutor, for her part, countered: “There had been no reported prior 

incidents of domestic violence, but the victim did testify at the preliminary hearing of 

prior instances of emotional abuse that she went through throughout this relationship.” 

Defense counsel argued the domestic violence was aberrant in that it arose from a 

confluence of unusually stressful circumstances in Lacy’s life, including the fact that he 

and his wife were going through a divorce. 

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court. [Citations.] A court which is unaware of 

the scope of its discretionary powers can no more exercise that “informed discretion” 

than one whose sentence is or may have been based on misinformation regarding a 

material aspect of a defendant’s record.’ [Citation.] In such circumstances, [our 

Supreme Court has] held that the appropriate remedy is to remand for resentencing unless 

the record ‘clearly indicate[s]’ that the trial court would have reached the same 

conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez

(2014) 58 Cal.4th 1354, 1391.)

We cannot conclude the record before us clearly indicates the court would have

imposed the upper terms absent its consideration of this disputed factor. We also cannot 

conclude that remand for resentencing is unnecessary because a jury or court surely 

would have found this aggravating circumstance true beyond a reasonable doubt. In 

other words, it is possible, in light of Lacy’s lack of a history of domestic violence and 

the circumstances surrounding the offense, that a trier of fact could disagree as to whether 

Lacy’s conduct indicated he posed a serious danger to the public. 

Because the record before us does not clearly establish the court would have 

imposed the same sentence without considering the aggravating circumstance that Lacy 

had engaged in violent conduct such that he was a serious danger to society, we agree 
13.

with Lacy that remand is appropriate so the sentencing court may exercise its informed 

discretion in sentencing him in line with the new legislative changes. 

Before resentencing, the court must give the People an opportunity to elect 

whether to accept resentencing on the current record or seek upper term sentences in 

compliance with newly amended section 1170, subdivision (b). Either way, the court 

shall conduct a “ ‘full resentencing’ ” on remand. (See People v. Buycks (2018) 5 Cal.5th 

857, 893.) At resentencing, the court shall also consider other applicable amendments to 

sentencing laws that became effective during the pendency of this appeal, including on 

January 1, 2022. At resentencing, the court will be entitled to consider evidence of 

Lacy’s “postsentencing conduct in prison.” (People v. Yanaga (2020) 58 Cal.App.5th 

619, 627-628.) We express no view as to how the trial court should exercise its 

discretion. 

II. Lacy is Entitled to a Supplemental Probation Report at Resentencing

Lacy notes he was originally sentenced in March 2018, and that was when his 

probation report was prepared. Lacy asks us to “direct the trial court to order preparation 

of [a] supplemental probation report and allow the parties to provide additional 

information to the court to inform the court’s sentencing choices at the resentencing 

proceeding.” Lacy contends these measures are necessary in order to provide the court 

with postsentencing information and information relevant to amended section 1170. 

Lacy cites California Rules of Court, rule 4.411(a)(2) [the court shall order a 

supplemental probation officer’s report in preparation for sentencing proceedings that 

occur a significant period of time after the original report was prepared] and People v. 

Dobbins (2005) 127 Cal.App.4th 176, 180-181 [trial court erred by proceeding to 

sentencing hearing without ordering a supplemental or updated probation report where 

more than six months had elapsed between preparation of the probation report and 

sentencing].) The People do not dispute that “six months may be a significant period of 

time warranting a supplemental report”; here, over four years will have elapsed between 
14.

the time the original probation report was prepared and sentencing. The People urge the 

trial court should decide, in the first instance, whether to order a supplemental probation 

report. The People do not cite persuasive authority in support of their position. Under 

California Rules of Court, rule 4.411(a)(2), in the circumstances that apply here, the trial 

court is required to obtain a supplemental probation report. Accordingly, we will direct 

the trial court to order a supplemental probation report ahead of resentencing.

DISPOSITION

The sentence is vacated, and the matter is remanded for resentencing consistent 

with this opinion and in compliance with section 1170 as amended by Senate Bill No. 

567. The judgment is otherwise affirmed.