Filed 3/21/23 P. v. Sanchez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL FUENTES SANCHEZ,

Defendant and Appellant.

 H049354

 (Santa Cruz County

 Super. Ct. No. 19CR01173)

Daniel Fuentes Sanchez pleaded guilty to two felony charges and no contest to one 

felony charge after a jury failed to reach a verdict. On appeal, Sanchez contends that his 

case should be reversed and remanded for resentencing in light of recent amendments to 

Penal Code section 1170, subdivision (b)1 by Senate Bill No. 567 (2020-2021 Reg. Sess.)

(Stats. 2021, ch. 731, § 1.3). The Attorney General argues that remand is unwarranted 

because any error was harmless. We reverse the judgment and remand for further 

proceedings under the newly-amended section 1170.

I. Procedural Background2

On October 6, 2020, the Santa Cruz County District Attorney filed an amended 

information charging Sanchez with evading an officer (Veh. Code, § 2800.2, subd. (a); 

count 1); hit and run driving resulting in injury to another person (Veh. Code, § 20001, 

1 Undesignated statutory references are to the Penal Code. 

2 We have omitted the facts of the offense because they are not relevant to the 

analysis and disposition of this appeal. 
2

subd. (b)(1); count 2); driving under the influence of a drug causing injury (Veh. Code,

§ 23153, subd. (f); count 3); resisting, delaying or obstructing an officer (§ 148, 

subd. (a)(1); count 4); possession of paraphernalia (Health & Saf. Code, § 11364, 

subd. (a); count 5); and possession of a controlled substance (Health & Saf. Code,

§ 11377; count 6). The amended information also alleged a prior prison term under 

section 667.5, subdivision (b), and a prior strike conviction under section 667, 

subdivisions (b) through (i). 

The case proceeded to a jury trial, after which the jury found Sanchez guilty of 

count 4 and not guilty of counts 5 and 6. The jury failed to reach a verdict on counts 1, 2, 

and 3, and the court declared a mistrial as to those counts. Before his scheduled re-trial 

on the unresolved charges, the trial court indicated that it would grant a Romero3 motion 

to dismiss the strike allegation and sentence Sanchez to a suspended three-year upper 

term on count 1. As a result, Sanchez pleaded guilty to counts 1 and 2, and he pleaded no 

contest to count 3. He also admitted his prior strike conviction, and the court struck the 

alleged prior prison term enhancement. 

At the sentencing hearing, in the context of its ruling on the Romero motion, the 

court discussed Sanchez’s criminal record, as well as the positive changes that Sanchez 

made in his life over the course of this case. The trial court granted Sanchez’s Romero

motion to dismiss the strike allegation, over the opposition of the prosecution. The court 

then sentenced Sanchez to the upper term of three years for count 1, but the court ordered 

execution of that sentence suspended and ordered Sanchez placed on formal felony 

probation for two years. The court also imposed concurrent 90-day jail terms for counts 

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (a trial court 

retains jurisdiction under § 1385 to dismiss a prior strike conviction if it finds that doing 

so would serve the interests of justice).
3

2, 3, and 4, and deemed that time served based on custody credits. In imposing the 

sentence, the court did not identify or discuss any aggravating or mitigating factors. 

Sanchez timely appealed.4

II. Discussion

Sanchez argues that he is entitled to remand for resentencing in light of Senate Bill 

No. 567, which amended section 1170, subdivision (b). The Attorney General contends 

that although Senate Bill No. 567’s amendments to section 1170, subdivision (b) apply 

retroactively here, remand is not warranted because any error was harmless. 

A. Senate Bill No. 567 Applies to Sanchez Retroactively

At the time of Sanchez’s sentencing, section 1170, subdivision (b) provided that 

the choice between sentencing a defendant to the lower, middle, or upper term “shall rest 

within the sound discretion of the court.” (See former § 1170, subd. (b), as amended by 

Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, Senate Bill No. 567 amended 

section 1170 to make the middle term the presumptive sentence. (People v. Flores

(2022) 75 Cal.App.5th 495, 500 (Flores); § 1170, subd. (b)(1).) As amended by Senate 

Bill No. 597, section 1170, subdivision (b)(2) provides that the trial 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 

4 After this case was fully briefed, we requested supplemental briefing on: (1) the 

effect, if any, of an order of vacatur and remand because of the trial court’s application of 

section 1170, subdivision (b) as amended by Senate Bill No. 567, upon the trial court’s 

ruling in the Romero motion; (2) the application of People v. Mitchell (2022) 83 

Cal.App.5th 1051, review granted December 14, 2022, S277314 (Mitchell) and People v.

Berdoll (2022) 85 Cal.App.5th 159 to this case; and (3) the standard that governs the 

harmlessness inquiry as to any error that occurred in the trial court’s failure to apply the 

amendments to section 1170, subdivision (b). We have considered that briefing in our 

analysis here. 
4

the judge in a court trial.” Section 1170, subdivision (b)(3) additionally provides that 

“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.”

Sanchez’s case was not final when the amendments to section 1170 effectuated by 

Senate Bill No. 567 took effect. We agree with the parties that Sanchez is entitled to 

retroactive application of the amended statute because it is an ameliorative change in the 

law and there is nothing to indicate that the Legislature intended the change to apply only 

prospectively. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039; In re Estrada (1965) 

63 Cal.2d 740, 745.) While Mitchell held that a defendant who receives an upper-term 

sentenced based upon a plea agreement to a stipulated sentence is ineligible for relief 

under amended section 1170, subdivision (b), neither party contends that relief is 

unavailable where, as here, the defendant pleaded guilty and was sentenced pursuant to 

an indicated sentence. (See Mitchell, supra, 83 Cal.App.5th at pp. 1058-1059.) We 

agree with that assessment. 

B. Prejudice

The parties dispute the issue of prejudice. The Attorney General contends that we 

should apply the test from Flores, supra, 75 Cal.App.5th 495. In Flores, the court

determined that remand was unnecessary on the record before it, holding that “ ‘[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, quoting People v. Sandoval (2007) 41 Cal.4th 825, 838.) 

The Attorney General asserts that under Flores, remand is not necessary here 

because a jury would have found true at least one of the aggravating factors listed in the 

probation report. Specifically, the Attorney General contends that these aggravated 

circumstances are tied to Sanchez’s criminal history, and they could have been proved by 
5

certified records of his prior convictions and prison commitments, rendering any error

harmless. The Attorney General additionally argues that Sanchez’s admission to the 

prior strike was effectively a stipulation to an aggravating factor. 

Sanchez contends that aggravating factors relied upon by the Attorney General are 

unconstitutional and therefore not available for use in felony sentencing. Sanchez also 

argues that there is no certainty as to how the sentencing court would have ruled had the 

middle term presumption been in effect. 

With regard to the standard for determining harmlessness, Sanchez contends that

we should apply the two-pronged test set forth in People v. Lopez (2022) 78 Cal.App.5th 

459 (Lopez) instead of following the Flores test. At the first step of the Lopez analysis, 

the court, applying the standard set forth in Chapman v. California (1967) 386 U.S. 18, 

decides whether “to conclude beyond a reasonable doubt that a jury would have found 

true beyond a reasonable doubt every factor on which the court relied, because the 

amended statute requires that every factor on which a court intends to rely in imposing an 

upper term, with the exception of factors related to a defendant’s prior conviction(s), 

have been admitted by the defendant or proven to a jury.” (Lopez, supra, at p. 466.) If 

so, then the error is not prejudicial. (Ibid.) If not, then the analysis proceeds to the 

second step, where “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” those aggravating factors that it could permissible consider, “rather than all of the 

factors on which it previously relied.” (Id. at p. 467, fn. 11.) If not, “then it is clear that 

remand to the trial court for resentencing is necessary.” (Ibid.)

Lopez requires the reviewing court to evaluate every factor on which the court 

relied, and we read Flores to require at least one aggravating factor that the trial court 

actually relied upon to withstand Chapman scrutiny. (See Lopez, supra, 78 Cal.App.5th 

at p. 466; Flores, supra, 75 Cal.App.5th at pp. 500-501.) Here, the court did not cite any 
6

aggravating or mitigating factors when it imposed the upper-term sentence, and to the 

extent that the court referred to the content of the probation report at the sentencing

hearing, it did so solely within the context of explaining its decision on the Romero

motion. 

Under either test, we determine that the matter must be remanded for resentencing 

because on the record before us we are unable to evaluate whether the jury would have 

found even a single aggravating factor relied upon by the court to be true beyond a 

reasonable doubt, given that the court did not cite any aggravating factors when it 

imposed the upper-term sentence here. Because we cannot resolve the question based on 

the record before us, we conclude that remand is required for the court to resentence 

Sanchez under amended section 1170, subdivision (b).

C. Remand

The Attorney General contends that if this case were remanded, the trial court 

could reconsider its Romero ruling. Sanchez argues that even if the trial court is 

permitted to reconsider its Romero ruling, under People v. Mustafaa (1994) 22 

Cal.App.4th 1305 (Mustafaa), double jeopardy principles would bar the court from 

imposing a higher sentence on remand. 

Because the original sentence was legal and authorized at the time it was imposed, 

we agree with Sanchez that on remand the trial court “may not impose a total sentence 

more severe than the sentence originally imposed” as a result of this appeal. (Mustafaa,

supra, 22 Cal.App.4th at p. 1312; see also People v. Torres (2008) 163 Cal.App.4th 1420,

1432-1433.) 

III. Disposition

The judgment is reversed and the matter is remanded for resentencing under Penal 

Code section 1170, subdivision (b), as amended by Senate Bill No. 567 and in 

accordance with this opinion. 
___________________________________

Wilson, J.

WE CONCUR:

______________________________________

 Greenwood, P.J.

______________________________________

Danner, J.

People v. Sanchez

H049354