IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DEANDRE LYNCH,

Defendant and Appellant.

S274942

Third Appellate District

C094174

Sacramento County Superior Court

20FE009532

August 1, 2024

Justice Corrigan authored the opinion of the Court, in which

Justices Liu, Groban, and Evans concurred.

Justice Kruger filed a concurring and dissenting opinion, in 

which Justice Jenkins concurred.

Chief Justice Guerrero filed a dissenting opinion.
1

PEOPLE v. LYNCH

S274942

Opinion of the Court by Corrigan, J.

The Sixth Amendment to the United States Constitution, 

applicable to the States through the Fourteenth Amendment’s 

due process clause, “provides that those ‘accused’ of a ‘crime’

have the right to a trial ‘by an impartial jury.’ This right, in 

conjunction with the Due Process Clause, requires that each 

element of a crime be proved to the jury beyond a reasonable 

doubt.” (Alleyne v. United States (2013) 570 U.S. 99, 104

(Alleyne), quoting U.S. Const., 6th Amend.; accord, Apprendi v. 

New Jersey (2000) 530 U.S. 466, 476 (Apprendi).) In the context 

of California’s determinate sentencing scheme, Cunningham v. 

California (2007) 549 U.S. 270 (Cunningham) held that, “under 

the Sixth Amendment, any fact that exposes a defendant to a 

greater potential sentence must be found by a jury, not a judge, 

and established beyond a reasonable doubt, not merely by a 

preponderance of the evidence.” (Id. at p. 281.) “Inhering in 

that guarantee is an assurance that a guilty verdict will issue 

only from a unanimous jury.” (Erlinger v. United States (2024) 

602 U.S. ___, ___ [144 S.Ct. 1840, 1849] (Erlinger); accord, 

Ramos v. Louisiana (2020) 590 U.S. 83, 90, 92–93 (Ramos).) 

Effective January 1, 2022, Penal Code1section 1170, 

subdivision (b) (hereafter section 1170(b)) was amended to 

prohibit imposition of an upper term sentence unless 

1 All further undesignated statutory references are to the 

Penal Code.
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

2

aggravating circumstances justify that term and the facts 

underlying any such circumstance, other than a prior conviction, 

“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), as amended by Stats. 2021, 

ch. 731, § 1.3.) Allegations of prior convictions may be tried by 

the court alone and proven by certified records of conviction. 

(Id., subd. (b)(3).) The Courts of Appeal have uniformly held, 

and the parties here agree, that this amendment applies 

retroactively to defendants like Lynch whose judgments were 

not final on direct appeal at the time the statute took effect. We 

granted review to decide when a remand for resentencing is 

required under the new law. We hold that a court reviewing a 

case where the former version of section 1170(b) was employed 

must apply the Chapman standard of review. (Chapman v. 

California (1967) 386 U.S. 18 (Chapman).) Accordingly, in a 

case where the judgment is not yet final, a sentence imposed 

under former section 1170(b) must be reversed and remanded 

unless the reviewing court concludes beyond a reasonable doubt 

that a jury, applying that same standard, would have found true 

all of the aggravating facts upon which the court relied to 

conclude the upper term was justified, or that those facts were 

otherwise proved true in compliance with the current statute. 

(§ 1170(b)(2), (3).) Throughout this opinion, any discussion of 

jury findings refers to factual findings made beyond a 

reasonable doubt. Further, similar to the situation in People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1390 (Gutierrez), the 2022

amendment to section 1170(b)(1) and (2) altered the scope of the 

trial court’s discretion. As a result, for sentences imposed under 

the former law the record must clearly indicate that the court

would have found an upper term justified had it been aware of 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

3

its more limited discretion. We reverse the Court of Appeal 

judgment, disapprove contrary Court of Appeal holdings, and 

remand for resentencing. 

I. BACKGROUND

Defendant, Deandre Lynch, is Jasmine Doe’s former 

boyfriend and the father of her child. Over the course of several 

months, Lynch physically abused Jasmine daily. At trial, 

Jasmine vaguely described the details of some assaults and 

testified that she had no recollection of others. 

Jasmine’s brother, Joseph C., testified about statements 

Jasmine had made recounting Lynch’s abuse. On one occasion, 

she called Joseph crying and out of breath. She said that Lynch

had punched her in the face, thrown her to the ground, and 

beaten her with a metal rod. A few weeks later, Jasmine called 

Joseph again and tearfully reported that Lynch had kicked her 

and hit her with an extension cord. Joseph saw looped and 

straight-line bruises on her arms, shoulder, and back consistent 

with a metal rod and an extension cord. 

On May 24, 2020, Joseph arrived at Jasmine’s home and 

heard banging and screaming. Going inside, he saw his sister 

lying on the floor with her hands raised in defense. Lynch stood

over her with his arm drawn back as if to hit her. Joseph 

intervened and took his sister outside. 

A deputy sheriff dispatched to investigate saw multiple 

bruises on Jasmine’s body. Jasmine told the deputy that Lynch

had hit her with a small wooden table until a leg broke off, then 

continued to beat her with the detached leg. She also said that 

he had previously hit her with an extension cord and a metal 

broom. Jasmine’s injuries were consistent with her report. 

Searching the home, the deputy saw a wooden table with a 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

4

missing leg, a power cord, and a broom and mop with metal 

handles. As time went by, Jasmine became less forthcoming to 

the deputy about the details of the assaults and less willing to 

assist in the prosecution. 

A jury convicted Lynch of three counts of domestic violence

resulting in a traumatic condition. (§ 273.5, subd. (a).) It hung 

on one count of assault with a deadly weapon against Joseph C. 

(§ 245, subd. (a)(1).)

2

It acquitted Lynch on a second count of 

assault with a deadly weapon against Jasmine but convicted 

him of simple assault (§ 240) as a lesser offense. Following a 

jury waiver, the court found Lynch had suffered a prior 

conviction for assault with a firearm (§ 245, subd. (a)(2)) within 

the meaning of the Three Strikes law, and a prior conviction for 

domestic violence, which increased the sentencing triad for his 

current domestic violence convictions (§ 273.5, subd. (f)(1)). 

The probation report listed prior felony convictions for 

assault with a firearm (§ 245, subd. (a)(2)); two counts of 

obstructing a law enforcement officer (§ 69); two counts of 

domestic violence (§ 273.5, subd. (a)); unlawful possession for 

sale of a controlled substance (Health & Saf. Code, § 11378);

failure to appear (§ 1320, subd. (b)); unlawful 

transportation/sale of cannabis (Health & Saf. Code, § 11360, 

subd. (a)); and unlawful delivery of cocaine (Oregon) (Or. Rev.

Stat. § 475.880). It also listed six misdemeanor convictions, 

including one count of obstructing a peace officer (§ 148, subd. 

(a)(1)). 

2 This count involved testimony by Joseph about a fight 

during which Lynch allegedly stabbed him. 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

5

The report also noted potentially applicable aggravating 

circumstances set out in California Rules of Court, rule 4.421. 

At the sentencing hearing, defense counsel challenged three of 

these aggravating circumstances, arguing that Lynch’s actions 

did not rise to the level of a high degree of cruelty, viciousness, 

or callousness; that the victim was not particularly vulnerable; 

and that Lynch was not a serious danger to society. Counsel did 

not object to any of the information about Lynch’s criminal 

history in the certified records or the probation report. 

In April 2021, the court ordered a prison sentence of 15 

years 4 months, imposing the upper term of five years for the 

first domestic violence conviction, and consecutive terms of one 

year four months for the remaining two counts. The total was 

doubled under the Three Strikes law.3 The court cited eight 

circumstances in aggravation to support imposing the upper 

term sentence for the principal count: (1) the crimes involved a 

high degree of cruelty, viciousness, and callousness because 

Lynch had struck the victim with a table leg, an extension cord, 

and a broomstick (see Cal. Rules of Court, rule 4.421(a)(1)); 

(2) the victim was particularly vulnerable (id., rule 4.421(a)(3)); 

(3) Lynch used a weapon when committing the crimes (id., rule 

4.421(a)(2)); (4) his conduct and prior record indicate a serious 

danger to society (id., rule 4.421(b)(1)); (5) his prior convictions 

are numerous (id., rule 4.421(b)(2)); (6) he had served prior 

prison terms (id., rule 4.421(b)(3)); (7) he was on parole at the 

time he committed the crimes (id., rule 4.421(b)(4)); and (8) his 

prior performance on parole was unsatisfactory (id., rule 

4.421(b)(5)). The court found no circumstances in mitigation. 

3 The court also imposed but stayed a one-year term for the 

simple assault. (§ 654.) 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

6

Approximately two months after sentencing, Senate Bill 

No. 567 (2021–2022 Reg. Sess.), amending section 1170(b), was 

signed into law. On appeal, Lynch argued that he was entitled 

to reversal of his sentence and a remand because the jury did 

not find any of the facts on which the court relied to support the 

upper term sentence. 

A divided Court of Appeal affirmed the upper term 

sentence. The Attorney General conceded that the 2022

amendment to section 1170(b)(1), (2), and (3) applied 

retroactively to Lynch’s pending appeal under In re Estrada

(1965) 63 Cal.2d 740, 745 (Estrada). The majority concluded, 

however, that reversal was not required. It held that two 

aggravating circumstances, Lynch’s use of a weapon and his 

prior convictions, were proved in compliance with the Sixth 

Amendment guarantees and with the statute as amended. As 

to the remaining aggravating circumstances cited by the trial

court, it ruled that the failure to satisfy the current statute was 

an error of state law, reviewable under the “reasonably 

probable” standard set out in People v. Watson (1956) 46 Cal.2d 

818, 836 (Watson). The majority characterized the Watson test 

as asking: “[W]ould any of the facts underlying the . . . 

improperly found aggravating circumstances have been found 

true beyond a reasonable doubt if submitted to the jury?” And 

“excluding any factors we cannot conclude would have been 

found true in a permissible manner, is there a reasonable 

probability the trial court would have imposed a more lenient 

sentence?” Applying that test, the majority found the absence 

of a jury verdict harmless. Justice Renner, writing in dissent, 

would have found that Lynch suffered prejudice. He pointed out 

that the court’s statement of support for the upper term 

mentioned many circumstances unadjudicated by the jury. 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

7

Accordingly, it was not clear what sentence the court would have 

imposed had it not relied on improperly proven circumstances.

Thereafter, several published cases weighed in on the 

matter. (See, e.g., People v. Hall (2023) 97 Cal.App.5th 1084, 

1104–1108, review granted Feb. 28, 2024, S283530 (Hall);

People v. Ruiz (2023) 97 Cal.App.5th 1068, 1076–1078, review 

granted Mar. 12, 2024, S283504; People v. Falcon (2023) 92 

Cal.App.5th 911, 938–951, review granted Sept. 13, 2023,

S281242 (Falcon); People v. Butler (2023) 89 Cal.App.5th 953, 

960, review granted May 31, 2023, S279633 (Butler); People v. 

Lewis (2023) 88 Cal.App.5th 1125, 1136–1137, 1142–1143,

review granted May 17, 2023, S279147 (Lewis); People v. Ross

(2022) 86 Cal.App.5th 1346, 1354, review granted Mar. 15, 2023, 

S278266 (Ross); People v. Dunn (2022) 81 Cal.App.5th 394, 407, 

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

(2022) 80 Cal.App.5th 1098, 1110–1113 (Zabelle); People v. 

Wandrey (2022) 80 Cal.App.5th 962, 981–983 (Wandrey); People 

v. Lopez (2022) 78 Cal.App.5th 459, 466, 468 (Lopez); People v. 

Flores (2022) 75 Cal.App.5th 495, 500 (Flores).) The Courts of 

Appeal have uniformly concluded that the 2022 statutory 

amendment applies retroactively. They have also uniformly 

concluded that defendants sentenced under the old law are not 

automatically entitled to a remand, and that some type of 

prejudice inquiry applies. The courts have reached different 

conclusions about the extent to which the current statute 

implicates the Sixth Amendment, and how precisely to 

articulate the prejudice inquiry in this context.4 We granted 

review to answer these questions. 

4 We discuss the lower court holdings in greater detail 

below. 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

8

II. DISCUSSION

A. California’s Determinate Sentencing Law

We begin with an overview of various changes to 

California’s determinate sentencing law during the last 16 

years. Resolving this case will involve distinguishing among 

three versions of section 1170: the original approach adopted 

when the Legislature replaced the Indeterminate Sentencing 

Law with the Determinate Sentencing Law (DSL); the 2007 

amendment of section 1170 made in immediate response to 

Cunningham; and the latest amendment in 2022. In 2007, the 

United States Supreme Court invalidated California’s upper 

term sentencing scheme as violative of the Sixth Amendment. 

(Cunningham, supra, 549 U.S. at pp. 274, 288, 293.) The 

original approach of section 1170(b), which governed 

Cunningham’s sentence, required that, when a statute specified

three terms, “the court shall order imposition of the middle 

term, unless there are circumstances in aggravation or 

mitigation of the crime.” (Former § 1170(b); Stats. 1977, ch. 165, 

§ 15, p. 648; Stats. 1998, ch. 926, § 1.5, p. 6207; see Cunningham, 

at pp. 277–278.) Thus, the original statute reflected a 

presumption in favor of the middle term. The accompanying 

rule of court specified that such circumstances had to be proved 

by a preponderance of the evidence. (Cal. Rules of Court, former 

rule 4.420(b).) Under that scheme the trial court, not the jury, 

determined the facts bearing on aggravation or mitigation

employing the lower standard of proof. 

However, Cunningham held that, with the exception of 

prior conviction allegations, “under the Sixth Amendment, any 

fact that exposes a defendant to a greater potential sentence 

must be found by a jury” and “established beyond a reasonable 

doubt.” (Cunningham, supra, 549 U.S. at p. 281.) The majority 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

9

explained: “As this Court’s decisions instruct, the Federal 

Constitution’s 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. 

Apprendi[, supra,] 530 U.S. 466 . . . ; Ring v. Arizona[ (2002)]

536 U.S. 584 . . . ; Blakely v. Washington[ (2004)] 542 U.S. 296 

. . . ; United States v. Booker[ (2005)] 543 U.S. 220 . . . . ‘[T]he

relevant “statutory maximum,” ’ this Court has clarified, ‘is not 

the maximum sentence a judge may impose after finding 

additional facts, but the maximum he may impose without any 

additional findings.’ Blakely, 542 U.S., at 303–304 (emphasis in 

original).” (Cunningham, at pp. 274–275.) In Cunningham’s 

case, “the jury’s verdict alone limited the permissible sentence 

to 12 years. Additional factfinding by the trial judge, however, 

yielded an upper term sentence of 16 years. The California 

Court of Appeal affirmed the harsher sentence.” (Id. at p. 275.) 

Cunningham reversed that disposition “because the four-year 

elevation based on judicial factfinding denied petitioner his 

right to a jury trial.” (Ibid.) 

The court observed that, in the wake of its decision, “ ‘[t]he 

ball . . . lies in [California’s] court.’ [Citations.] We note that 

several States have modified their systems in the wake of 

Apprendi and Blakely to retain determinate sentencing. They 

have done so by calling upon the jury — either at trial or in a 

separate sentencing proceeding — to find any fact necessary to 

the imposition of an elevated sentence. As earlier noted, 

California already employs juries in this manner to determine 

statutory sentencing enhancements. [Citation.] Other States 

have chosen to permit judges genuinely ‘to exercise broad 

discretion . . . within a statutory range,’ which, ‘everyone 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

10

agrees,’ encounters no Sixth Amendment shoal. [Citation.] 

California may follow the paths taken by its sister States or 

otherwise alter its system, so long as the State observes Sixth 

Amendment limitations declared in this Court’s decisions.” 

(Cunningham, supra, 549 U.S. at pp. 293–294, fns. omitted.) 

In response to Cunningham, the California Legislature 

amended section 1170 in 2007 to provide that the choice between 

the lower, middle, and upper terms “shall rest within the sound 

discretion of the court,” with the court “select[ing] the term 

which, in the court’s discretion, best serves the interests of 

justice” and stating reasons for its decision. (Former § 1170(b), 

enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) The amendment 

gave judges “broad discretion in selecting a term within a 

statutory range, thereby eliminating the requirement of a judgefound factual finding to impose an upper term. [Citations.] [It]

amended section 1170 so that (1) the middle term [was] no 

longer the presumptive term absent aggravating or mitigating 

facts found by the trial judge; and (2) a trial judge [had] the 

discretion to impose an upper, middle or lower term based on 

reasons he or she states.” (People v. Wilson (2008) 164 

Cal.App.4th 988, 992 (Wilson).) By enacting this amendment, 

the Legislature selected the second option presented by the high 

court in Cunningham. Lynch was sentenced under the 2007

version of the law. 

However, as of January 1, 2022, the Legislature again 

amended section 1170 to provide that the trial court “shall,” in 

its discretion impose a sentence “not to exceed the middle term” 

(id., subd. (b)(1)) except in the following circumstance: “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” an upper term sentence, and “the facts 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

11

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); 

Stats. 2021, ch. 719, § 2; see also §1170.1, subd. (d)(1), (2) 

[imposing same requirement for enhancements punishable by 

one of three terms]). Notwithstanding these provisions, 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(b)(3).)5 At the defendant’s request, trial on the 

aggravating circumstances alleged in the indictment or 

information “shall be bifurcated from the trial of charges and 

enhancements” unless “evidence supporting an aggravating 

circumstance is admissible to prove or defend against the 

charged offense or enhancement at trial, or it is otherwise 

authorized by law.” (Id., subd. (b)(2).)6 The effect of the 2022 

amendment was to embrace Cunningham’s first option. 

5 This provision is consistent with Apprendi, which 

recognizes an exception to the jury trial right for prior 

convictions. (Apprendi, supra, 530 U.S. at p. 490; see 

Almendarez-Torres v. United States (1998) 523 U.S. 224

(Almendarez-Torres).) Section 1170(b)(3) further provides that 

this exception to the jury trial requirement “does not apply to 

enhancements imposed on prior convictions.” (§ 1170(b)(3).)

6 California Rules of Court, rule 4.420(b) was amended to 

reflect these changes. The CALCRIM instructions likewise have 

been modified to provide guidance on the definitions and 

required findings for the listed aggravating circumstances. 

(CALCRIM Nos. 3224–3251.)
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

12

B. Retroactive Application of 2022 Amended Section 

1170(b)(1), (2) and (3)

“ ‘It is well settled that a new statute is presumed to 

operate prospectively absent an express declaration of 

retrospectivity or a clear indication that the electorate, or the 

Legislature, intended otherwise.’ [Citations.] The Penal Code 

provides that ‘[n]o part of it is retroactive, unless expressly so 

declared.’ (§ 3.)” (People v. Stamps (2020) 9 Cal.5th 685, 698–

699 (Stamps).) 

The Legislature did not expressly declare whether the 

2022 amendment to section 1170 at issue here applies

prospectively or retroactively. The Court of Appeal held that 

amended section 1170(b)(1), (2), and (3) apply to Lynch’s case 

because the effect of the amendment was ameliorative under the 

authority of Estrada, supra, 63 Cal.2d 740 and subsequent 

cases, so as to indicate a legislative intent that the amendment 

be applied retroactively to cases not final on appeal. Other 

appellate courts have uniformly reached the same conclusion. 

(See, e.g., Falcon, supra, 92 Cal.App.5th at p. 924; Butler, supra, 

89 Cal.App.5th at p. 959; Zabelle, supra, 80 Cal.App.5th at pp. 

1108–1109; Lopez, supra, 78 Cal.App.5th at p. 465; People v. 

Garcia (2022) 76 Cal.App.5th 887, 902; Flores, supra, 75 

Cal.App.5th at p. 500.) The Attorney General concedes the point 

in his briefing here and we accept the concession. 

C. Whether Automatic Reversal or Prejudice Review Is 

Appropriate 

The question remains whether Lynch, and similarly 

situated appellants, are entitled to an automatic sentencing 

reversal and remand, or whether the appellate court should 

review the question under some form of prejudice analysis. “The 

Estrada rule only answers the question of whether an amended 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

13

statute should be applied retroactively. It does not answer the 

question of how that statute should be applied.” (Stamps, supra, 

9 Cal.5th at p. 700.)

In the past, when applying ameliorative legislative 

changes retroactively, we have employed a prejudice analysis to 

determine whether a new trial is required. People v. Wright

(2006) 40 Cal.4th 81 (Wright), for example, held a new law 

expanding defenses for marijuana possession was properly 

applied because Wright’s case was not final on appeal. (Id. at 

pp. 94–98.) However, we concluded he was not entitled to a new 

trial because, based on the trial record, the failure to instruct on 

the new defense was harmless beyond a reasonable doubt under 

Chapman, supra, 386 U.S. 18. (Wright, at pp. 98–99.)7 

Likewise, in People v. Tran (2022) 13 Cal.5th 1169 (Tran), a new 

provision added elements to a gang enhancement allegation. 

We again held the statutory changes applied retroactively. (Id. 

at pp. 1206–1207.) We reversed the jury finding as to the gang 

enhancement and remanded for a retrial on that question. 

Applying Chapman, we concluded reversal and remand were 

appropriate because we could not conclude beyond a reasonable 

doubt that the failure to instruct on the new elements was 

harmless. (Id. at p. 1207; accord, People v. Cooper (2023) 14 

Cal.5th 735, 742, 746 (Cooper).) It bears emphasis that, just as 

in Wright and Tran, the trial court did not err here. It followed 

the law in effect at the time of defendant’s trial. (See Gutierrez, 

supra, 58 Cal.4th at p. 1390; Wright, supra, 40 Cal.4th at p. 104 

7 Because we found the Chapman standard was met, it was 

unnecessary to decide whether failure to instruct on the 

affirmative defense violated the defendant’s due process right to 

present a defense or was instead state law error only. (Wright, 

supra, 40 Cal.4th at p. 98.)
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Opinion of the Court by Corrigan, J.

14

(conc. & dis. opn. of Baxter, J.).) In circumstances such as these 

the prejudice analysis provides a mechanism for reviewing 

whether retroactive application of an ameliorative change in the 

law could have a practical effect on the judgment. If, for 

example, the record establishes beyond a reasonable doubt that 

the lack of a jury trial on new elements (Tran/Cooper) or a 

defensive theory (Wright) did not affect the outcome, the

defendant cannot claim to have suffered prejudice even though 

he was not tried under the provisions of the new law. In keeping 

with this approach, and as we discuss in greater detail below, 

we conclude a form of prejudice review is appropriate here as 

well. 

Arguing against this approach, Lynch and amicus curiae 

California Public Defender’s Association offer four reasons why

defendants who were sentenced under the former version of 

section 1170(b) should be afforded a new sentencing hearing 

without an individualized assessment of prejudice. Their 

reasoning is unpersuasive. 

Lynch first urges that if none of the aggravating facts 

relied on by the trial court was proved under the current section 

1170(b)(2) procedure, the failure to comply with the statute is 

structural error and requires reversal without an assessment of 

prejudice.8 The Supreme Court rejected this same argument in 

8 Lynch concedes that this circumstance does not apply to 

him because the trial court properly considered the fact of his

prior convictions that were proved by certified records. (See 

§ 1170(b)(3).) We nonetheless find it appropriate to consider the 

argument, which presents a question of law arising in numerous 

cases that have been granted and held for this lead case. Our 

guidance is therefore warranted. (Cf. In re William M. (1970) 
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Opinion of the Court by Corrigan, J.

15

Washington v. Recuenco (2006) 548 U.S. 212 (Recuenco). There, 

the court held that the failure to submit a sentencing factor to 

the jury, as required under Blakely v. Washington, supra, 542 

U.S. 296 (Blakely), was not structural. It reasoned that, under 

Apprendi, supra, 530 U.S. 466, “elements and sentencing factors 

must be treated the same for Sixth Amendment purposes.” 

(Recuenco, at p. 220.) That is to say that, absent a waiver,

sentencing factors must be proven beyond a reasonable doubt to 

the jury. However, “an instruction that omits an element of the

offense does not necessarily render a criminal trial 

fundamentally unfair or an unreliable vehicle for determining 

guilt or innocence.” (Neder v. United States (1999) 527 U.S. 1, 9

(Neder).) The omission is not prejudicial if the reviewing court 

concludes beyond a reasonable doubt that “a rational jury would 

have found the defendant guilty” upon proper instruction. (Id. 

at p. 18.) The court in Recuenco rejected attempts to 

characterize the error as “the equivalent of a directed verdict of 

guilt” (Recuenco, at p. 221), or the complete absence of a jury 

finding under Sullivan v. Louisiana (1993) 508 U.S. 257

(Recuenco, at p. 222, fn. 4; accord, People v. French (2008) 43 

Cal.4th 36, 52 & fn. 8 (French)). The same logic applies where 

multiple elements are omitted, so long as the omission does not 

vitiate all of the jury’s findings. (People v. Merritt (2017) 2 

Cal.5th 819, 827–831 (Merritt).) Here, Lynch received a jury 

trial on the elements of the substantive offenses. The lack of a

jury trial on aggravating facts therefore did not amount to a 

total depravation of a jury trial, nor did it vitiate all of the jury’s 

3 Cal.3d 16, 23 [court will decide an issue despite mootness 

when it presents “an issue of broad public interest that is likely 

to recur”].)
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Opinion of the Court by Corrigan, J.

16

findings. The prejudice analysis here is triggered by a 

retroactive application of an amended state statute. Because 

omission of the jury trial right with regard to elements of an 

offense or enhancement is not automatically grounds for 

reversal, the same analysis applies when assessing the omission 

involved here. 

Next, Lynch contends that failure to submit aggravating 

facts to the jury as now required by section 1170(b)(2) results in 

an “unauthorized sentence” that is not amenable to a prejudice

analysis. Again the argument fails. The unauthorized sentence 

rule is an exception to the waiver doctrine. It permits a 

challenge to an unauthorized sentence on appeal even if the 

defendant failed to object below. (In re G.C. (2020) 8 Cal.5th 

1119, 1129.) There is no issue of forfeiture or waiver here. The 

new statute went into effect after Lynch’s trial and sentencing. 

The sentence was authorized when it was imposed. It continues 

to be permissible under the current statute so long as the 

aggravating facts are either stipulated to by the defendant or 

found true by a jury beyond a reasonable doubt. Lynch is 

pursuing a legitimately filed appeal with regard to his sentence 

and, indeed, will receive the remand remedy he is seeking. His

reliance on precedent governing unauthorized sentences is 

misplaced.9 We disapprove language to the contrary in People 

v. Falcon, supra, 92 Cal.App.5th 911, 942–943. 

9 Lynch cites In re Birdwell (1996) 50 Cal.App.4th 926, but 

that case is distinguishable. It involved the jury’s failure to 

designate the degree of murder as required under section 1157, 

an omission different in kind from that presented here. 

Moreover, in finding noncompliance with section 1157, the 

Birdwell court relied heavily on People v. McDonald (1984) 
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Opinion of the Court by Corrigan, J.

17

Lynch argues that a prejudice analysis is inappropriate 

here because he was not on notice that he would be required to 

defend against the uncharged aggravating circumstances, in 

violation of his right to due process.

10 According to amicus 

curiae: “[n]otice is necessary to allow defense counsel to 

effectively advise his client of his or her maximum permissible 

sentence, to assess the risk of exercising their Sixth Amendment 

right to a jury trial, and to decide how to present their case in a 

way that gives them a reasonable opportunity to be heard.” 

Lynch and amicus curiae rely on cases holding that due process 

is violated and reversal required when the prosecution fails to 

specifically plead an offense or sentencing enhancement. (See, 

e.g., Presnell v. Georgia (1978) 439 U.S. 14, 14–17 (per curiam) 

[defendants who were charged with and convicted of kidnapping 

with bodily injury (sodomy) could not be deemed to have 

committed kidnapping with bodily injury (forcible rape) for first 

time on appeal]; Cole v. Arkansas (1948) 333 U.S. 196, 197–202 

[defendants who were charged with and convicted of unlawful 

assemblage could not be deemed to have committed the separate 

crime of interfering with a lawful vocation by the use of force or 

violence for first time on appeal]; People v. Mancebo (2002) 27 

Cal.4th 735, 742–752 (Mancebo) [defendant could not be 

37 Cal.3d 351. (Birdwell, at pp. 928–930.) We subsequently 

disapproved McDonald on this point when the charge involves 

first degree felony murder. (People v. Mendoza (2000) 23 Cal.4th 

896, 908–924.) 

10 A similar argument was made in Recuenco. (Recuenco, 

supra, 548 U.S. at p. 220, fn. 3.) The defendant there had argued 

that Neder did not apply because this was a “case of charging 

error, rather than of judicial factfinding.” (Ibid.) The court 

declined to address the claim, noting that “the Supreme Court 

of Washington treated the error as one of the latter type.” (Ibid.)
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Opinion of the Court by Corrigan, J.

18

sentenced under the One Strike law for sex crimes against 

multiple victims when that circumstance was not alleged in the 

accusatory pleading]; People v. Lohbauer (1981) 29 Cal.3d 364, 

368–373 [defendant charged with residential burglary could not 

be convicted of unauthorized entry, a nonincluded lesser 

offense]; People v. Hernandez (1988) 46 Cal.3d 194, 204–211 

[defendant’s sentence could not be enhanced for kidnapping for 

purposes of rape when that enhancement was not pled and 

proved].) Mancebo observed that the defendant “has a 

cognizable due process right to fair notice of the specific sentence 

enhancement allegations that will be invoked to increase 

punishment for his crimes.” (Mancebo, at p. 747.) When a 

statute includes specific pleading and proof requirements, “the 

People’s failure to include a multiple-victim-circumstance 

allegation must be deemed a discretionary charging decision” 

which “restrict[s] the trial court to this application.” (Id. at p. 

749; accord, In re Vaquera (2024) 15 Cal.5th 706, 721–724.) 

Because Lynch was tried and sentenced under the 2007

version of section 1170, this case does not directly present issues 

of pleading and notice. Accordingly, it is not necessary for us to 

decide exactly what the statute and the federal Constitution 

demand in this context. But to the extent pleading and notice 

issues bear on whether a prejudice analysis is appropriate, we 

find the situation here to be different from those in the cited 

cases, rendering them distinguishable. 

Each of the substantive offenses of which Lynch was 

convicted was charged in the information. The Penal Code gave 

notice of the applicable sentencing range for each offense. The 

statutory structure, case law, and California Rules of Court set 

out the contours of the hearing process. The probation report 

and the People’s statement in aggravation advised Lynch of all 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

19

the aggravating circumstances that the court could rely upon to 

impose the upper sentence. All the aggravating circumstances 

actually relied on by the court have long been set out in the 

Rules of Court. (Cal. Rules of Court, rule 4.421.) Parties 

regularly discuss their presence or absence during plea 

negotiations and consider them in preparation for a sentencing 

hearing. In short, Lynch had notice of potentially aggravating 

circumstances, had the opportunity to contest them at the 

sentencing hearing, and actually did contest three of the factors. 

Moreover, because the previous sentencing structure did not 

require that aggravating circumstances be set out in the 

charging document, the People’s failure to plead and prove them 

cannot be “deemed a discretionary charging decision.” 

(Mancebo, supra, 27 Cal.4th at p. 749.) 

People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) is 

instructive. There, applying the high court’s holding in 

Recuenco, we concluded that the absence of a jury trial on 

aggravating circumstances used to impose the upper term was 

amenable to prejudice review notwithstanding many of the 

same arguments Lynch raises here. (Id. at pp. 838–840.) We 

applied a prejudice analysis in Sandoval. In doing so we

emphasized, however, that the court must “take into account the 

differences between the nature of the errors at issue in the 

present case and in a case in which the trial court fails to 

instruct the jury on an element of the crime but where the 

parties were aware during trial that the element was at issue. 

In a case such as the present one, the reviewing court cannot 

necessarily assume that the record reflects all of the evidence 

that would have been presented had aggravating circumstances 

been submitted to the jury” because those circumstances “were 

not part of the charge and were not directly at issue in the 
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Opinion of the Court by Corrigan, J.

20

trial. . . . Defendant thus did not necessarily have reason — or 

the opportunity — during trial to challenge the evidence 

supporting these aggravating circumstances unless such a 

challenge also would have tended to undermine proof of an 

element of an alleged offense.” (Id. at p. 839.) We further 

observed that “although defendant did have an incentive and 

opportunity at the sentencing hearing to contest any 

aggravating circumstances mentioned in the probation report or 

in the prosecutor’s statement in aggravation, that incentive and 

opportunity were not necessarily the same as they would have 

been had the aggravating circumstances been tried to a jury.” 

(Ibid.) This is so because the standard of proof at the sentencing 

hearing was lower and the trial court had broad discretion in 

imposing a sentence. We recognized that “[c]ounsel’s strategy 

might have been different had the aggravating circumstances 

been tried under a beyond-a-reasonable-doubt standard of proof 

to a trier of fact that was responsible only for determining 

whether such circumstances were proved (and not for making 

the ultimate sentencing decision).” (Id. at p. 840.) 

The factors identified in Sandoval may make it more likely 

that the absence of jury factfinding on one or more aggravating 

facts was prejudicial. But that reality does not justify a rule of 

per se reversal. (People v. Cahill (1993) 5 Cal.4th 478, 503.) Our 

application of a harmless error review in Sandoval

demonstrates that such review is possible, and the omission is 

not structural. (Sandoval, supra, 41 Cal.4th at pp. 840–843; cf. 

People v. Anderson (2020) 9 Cal.5th 946, 963–964 [applying 

harmless error review to an unpled firearm enhancement].)

Finally, amicus curiae argues that using a prejudice 

analysis to deny individual defendants a remand contravenes 

the Legislature’s unarticulated intent to have the new statute
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Opinion of the Court by Corrigan, J.

21

apply retroactively to all persons whose sentences are not final 

on direct appeal. In amending section 1170(b)(1) through (3), 

the Legislature expressed its intent to codify the Supreme 

Court’s holding in Cunningham. The bill’s author explained 

that the 2007 legislative amendment to section 1170 was a 

“ ‘temporary’ ” measure in response to Cunningham, and that 

the statute’s sunset provision had been extended multiple times. 

(Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 567 

(2021–2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2.) The 

author urged that “ ‘[i]t is time for us to revisit the determinate 

sentencing structure [that has been] in place for the last 11 

years to actively decide what of it is desirable, and serves the 

general welfare and the interest of justice.’ ” (Ibid.) According 

to the author, “ ‘[i]t is important, proper, and constitutionally 

conforming to change the law to ensure that aggravating facts 

are presented to the jury before a judge imposes a maximum 

sentence as decided in Cunningham v. California.’ ” (Ibid.) 

Yet neither the text of the statute nor the legislative 

history addressed the retroactive application of the amendment,

and they say nothing about the appropriate standard of review. 

While we have accepted the Attorney General’s concession that 

the 2022 statutory amendment applies retroactively under 

Estrada to cases still pending on appeal at the time of its 

enactment, that point of agreement does not dictate how it

should apply in a particular case, or the review standard under 

which the question is to be addressed. Our precedent 

demonstrates that not every defendant in this posture is 

automatically entitled to a remand. (Cooper, supra, 14 Cal.5th 

at pp. 742–743; Tran, supra, 13 Cal.5th at p. 1207; Wright, 

supra, 40 Cal.4th at pp. 98–99.) 
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Opinion of the Court by Corrigan, J.

22

As we have done before, we emphasize that determining 

legislative intent with respect to retroactive application of a 

statute “can be a difficult, divisive, and time-consuming one for 

courts, which have to discern intent from sometimes opaque 

sources.” (People v. Prudholme (2023) 14 Cal.5th 961, 979.) 

Given these “ ‘interpretative difficulties’ ” and the “ ‘sheer 

volume of nonfinal criminal cases in this state,’ ” courts will 

greatly benefit from the Legislature’s specificity on these 

matters. (Id. at p. 980, quoting People v. Flores (2022) 77 

Cal.App.5th 420, 452–453.) “We urge the Legislature . . . to 

consider the retroactive application of new laws and to regularly 

express their intent regarding if and how they should be applied 

retroactively.” (Prudholme, at p. 980.)

D. Test for Assessing Prejudice 

Having determined that Lynch is not automatically 

entitled to a remand for resentencing under current section 

1170(b)(1), (2) and (3), we turn to the appropriate test for 

assessing prejudice in this circumstance. Watson and Chapman

articulate two different tests for determining prejudice. Which 

test is appropriate depends on the nature of the error and the 

right impinged upon. We apply the Watson test to errors of state 

law that do not rise to the level of federal constitutional error. 

(People v. Hendrix (2022) 13 Cal.5th 933, 942; Watson, supra, 46 

Cal.2d at p. 836.) Under the Watson test, an error is harmless 

unless it is “reasonably probable” the outcome would have been 

different in the absence of the error. (Watson, at p. 836.) “ ‘In 

contrast, we evaluate the harmlessness of violations of the 

federal Constitution under the standard set forth in 

Chapman[, supra,] 386 U.S. 18.’ [Citation.] This ‘stricter’ 

standard of review requires reversal unless the error is 

‘harmless beyond a reasonable doubt.’ ” (Hendrix, at p. 942.) 
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Opinion of the Court by Corrigan, J.

23

The failure to afford a jury trial on every element of a criminal 

offense is subject to Chapman review. (Ibid.; Merritt, supra, 2 

Cal.5th at p. 824; Neder, supra, 527 U.S. at p. 10.) This is so 

because the federal Constitution requires “criminal convictions 

to rest upon a jury determination that the defendant is guilty of 

every element of the crime with which he is charged, beyond a 

reasonable doubt.” (United States v. Gaudin (1995) 515 U.S. 

506, 510.) 

The plain language of section 1170(b)’s current version 

now requires that, excepting prior convictions and in the 

absence of a waiver or stipulation, aggravating facts relied upon 

to justify an upper term must be resolved by the jury beyond a 

reasonable doubt. What we must decide is the extent to which

this right is tethered to the Sixth Amendment or is simply a 

state law entitlement. Resolution of that question dictates the 

appropriate standard of review. Although the question has 

constitutional implications, it is primarily one of statutory 

interpretation and legislative intent. It is up to the Legislature 

to define what facts are necessary to impose an upper term 

sentence. (Cf. Patterson v. New York (1977) 432 U.S. 197, 211, 

fn. 12.) Relatedly, it is squarely within the Legislature’s 

purview to decide how to remedy the constitutional violation 

identified in Cunningham, supra, 549 U.S. 270. (See id. at pp. 

293–294; cf. United States v. Booker, supra, 543 U.S. at p. 246 

[“We answer the remedial question by looking to legislative 

intent”].) Accordingly, in this context, what the Sixth 

Amendment requires is necessarily informed by what the state

statutory scheme requires. “[T]he relevant inquiry is one not of 

form, but of effect . . . .” (Apprendi, supra, 530 U.S. at p. 494.)

The majority of appellate courts to consider this question 

have used both federal and state standards to address different 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

24

aspects of the analysis. They have held that omission of a jury 

trial is harmless so long as a reviewing court, applying 

Chapman, can conclude beyond a reasonable doubt that at least 

one aggravating fact would have been found true by the jury. 

(Falcon, supra, 92 Cal.App.5th at pp. 938–939; Butler, supra, 89 

Cal.App.5th at pp. 959–960; Lewis, supra, 88 Cal.App.5th at p. 

1137; Ross, supra, 86 Cal.App.5th at pp. 1353–1355; Dunn,

supra, 81 Cal.App.5th at pp. 408–410; Zabelle, supra, 80 

Cal.App.5th at pp. 1110–1113; Lopez, supra, 78 Cal.App.5th at 

p. 467, fn. 11; Flores, supra, 75 Cal.App.5th at p. 500.)11 Those 

opinions rely on People v. Black (2007) 41 Cal.4th 799 (Black II)

and Sandoval, supra, 41 Cal.4th 825, which were decided before 

the 2022 amendment to section 1170.12 Courts relying on 

Black II and Sandoval reason that, so long as a single 

aggravating fact was either proved in compliance with the 

11 Lopez, Ross, and Butler refer to finding “all” aggravating 

facts upon which the trial court relied to impose the upper term 

harmless beyond a reasonable doubt. (Butler, supra, 89 

Cal.App.5th at p. 960; Ross, supra, 86 Cal.App.5th at p. 1354; 

Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) But those cases 

go on to apply a Watson harmless error standard if the Chapman

standard is not satisfied. This demonstrates, in effect, that 

those opinions deem the Sixth Amendment error harmless by 

the finding of a single aggravating fact. Were it otherwise, the 

courts would have reversed if Chapman was not satisfied as to 

all facts, and would have had no reason to resort to a second 

level prejudice inquiry. (See Falcon, supra, 92 Cal.App.5th at p. 

939.) 

12 Black II was decided on remand from the high court

following its decision in Cunningham. (Black v. California

(2007) 549 U.S. 1190, vacating and remanding People v. Black

(2005) 35 Cal.4th 1238 (Black I).) Sandoval was granted review 

after Cunningham was decided and was filed as a companion 

case to Black II. 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

25

current statute, or would have been found true by the jury 

applying the Chapman standard, the trial court’s reliance on 

other facts not proved in compliance with the statute is state

error only. (Falcon, at pp. 938–939; Lewis, at p. 1137; Ross, at 

pp. 1353–1354; Dunn, at pp. 408–410; Zabelle, at pp. 1111–

1112.) Applying the less stringent Watson standard, they have 

gone on to affirm the judgment if they can conclude, to a 

reasonable probability, that the remaining facts would have 

been found true by the jury; or alternatively, that the trial court 

would have imposed the same sentence without relying on those 

facts. (Butler, at pp. 961–962; Ross, at pp. 1353–1355; Dunn, at 

pp. 408–410; Zabelle, at p. 1112; Lopez, at p. 467 & fn. 11.) Our

dissenting colleagues likewise adopt this approach. (Conc. & 

dis. opn. of Kruger, J., post, at pp. 8–10, 15–16; dis. opn. of 

Guerrero, C. J., post, at pp. 2–4, 7–9, 14–19, 31–32, 35.) 

We find this reliance on Black II and Sandoval misplaced, 

and we reject the secondary reliance on the Watson standard to 

assess prejudice from the denial of a jury trial on aggravating 

facts, other than prior convictions, used to justify an upper term 

sentence. The premise underlying the appellate decisions and 

our colleagues’ separate opinions is that the current statute 

before us operates in the same manner as the original version of 

section 1170 that Cunningham invalidated. That argument 

fails at the threshold. The current version of 1170 is not the 

same as the original pre-Cunningham version. 

The 2022 amendment of section 1170(b)(1) and (2) has 

overtaken the viability of Black II and Sandoval on this issue. 

As we explain below, under the current statute the facts 

supporting every aggravating circumstance upon which the trial 

court relies to “justify” imposition of the upper term must be 

properly proven as the statute requires. (§ 1170(b)(2).) The 
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Opinion of the Court by Corrigan, J.

26

current statute specifically empowers the court to choose an 

upper term only if the facts supporting each aggravating 

circumstance on which it relies have been resolved by the jury 

or otherwise established as the statute allows. In other words,

unlike the original statute at issue in Black II, the defendant is 

no longer “eligible” for the upper term simply because an 

aggravating fact exists. Instead, the defendant may be properly 

sentenced to an upper term only if the jury finds facts that, in 

the trial court’s view, “justify” an upper term sentence. The 

2022 amendment of section 1170(b)(1) and (2) effectively codifies 

the holding in Cunningham and goes on to adopt the first option 

it presented. Excluding properly proven prior convictions or a 

defense stipulation, a jury finding is now required for all facts 

actually relied on to impose an upper term. (See Cunningham, 

supra, 549 U.S. at pp. 281, 288–289.) 

i. Black II and Sandoval

The original version of section 1170 at issue in Black II

provided that “[w]hen a judgment of imprisonment is to be 

imposed and the statute specifies three possible terms, the court 

shall order imposition of the middle term, unless there are 

circumstances in aggravation or mitigation of the crime.” (Pen. 

Code, former § 1170, subd. (b).) Considering Black’s case on a 

Supreme Court remand after Cunningham, we explained that 

“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’ [citation], that is, to ‘any fact that exposes a 

defendant to a greater potential sentence’ than is authorized by 

the jury’s verdict alone [citation].” (Black II, supra, 41 Cal.4th

at p. 812.) “Accordingly, so long as a defendant is eligible for the 

upper term by virtue of facts that have been established 

consistently with Sixth Amendment principles, the federal 
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Opinion of the Court by Corrigan, J.

27

Constitution permits the trial court to rely upon any number of 

aggravating circumstances in exercising its discretion to select 

the appropriate term by balancing aggravating and mitigating 

circumstances, regardless of whether the facts underlying those 

circumstances have been found to be true by a jury.” (Id. at p. 

813.) Applying these principles to the original section 1170(b), 

Black II reasoned that “the existence of a single aggravating 

circumstance [was] legally sufficient to make the defendant 

eligible for the upper term. [Citation.] Therefore, if one 

aggravating circumstance [was] established in accordance with 

the constitutional requirements set forth in Blakely, the 

defendant [was] not ‘legally entitled’ to the middle term 

sentence, and the upper term sentence [was] the ‘statutory 

maximum.’ ” (Black II, at p. 813.) Under this interpretation of 

the former statute, “aggravating circumstances serve[d] two 

analytically distinct functions in California’s . . . determinate 

sentencing scheme. One function [was] to raise the maximum 

permissible sentence from the middle term to the upper term. 

The other function [was] to serve as a consideration in the trial 

court’s exercise of its discretion in selecting the appropriate 

term from among those authorized for the defendant’s offense. 

Although the DSL does not distinguish between these two 

functions, in light of Cunningham it is now clear that we must 

view the federal Constitution as treating them differently. 

Federal constitutional principles provide a criminal defendant 

the right to a jury trial and require the prosecution to prove its 

case beyond a reasonable doubt as to factual determinations 

(other than prior convictions) that serve the first [eligibility] 

function, but leave the trial court free to make factual 

determinations that serve the second [discretionary] function.” 

(Id. at pp. 815–816.) 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

28

Black II concluded that there is no error under the Sixth 

Amendment so long as one or more aggravating circumstances 

“has been found to exist by the jury, has been admitted by the 

defendant, or is justified based upon the defendant’s record of 

prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) 

Sandoval considered the related question of how to assess 

prejudice when none of the aggravating circumstances was 

proved in compliance with the federal Constitution’s jury trial 

guarantee. Applying Black II’s logic, Sandoval held that “if 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 

Sixth Amendment error properly may be found harmless.” 

(Sandoval, supra, 41 Cal.4th at p. 839.)

As these holdings make clear, the original, preCunningham scheme created a presumption in favor of a middle 

term. Imposition of an upper or lower term sentence was off 

limits unless the court, acting as a factfinder, concluded that an 

aggravating or mitigating factor permitted a deviation from the 

middle term. Such a finding made the defendant “eligible” for 

the upper or lower term. Once eligibility was established the 

court had the authority to consider any and all facts it found to 

select an appropriate sentence. Importantly, Black II and 

Sandoval had no occasion to consider the statutory framework 

currently before us. Indeed, by the time those cases were 

decided, the Legislature had amended section 1170(b) in 2007 to 

eliminate the middle term presumption and instead give the 

trial court authority to select among any of the three terms as a 

matter of discretion and without any judicial factfinding. 

(Sandoval, supra, 41 Cal.4th at p. 845; Wilson, supra, 164
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Opinion of the Court by Corrigan, J.

29

Cal.App.4th at p. 992.) This post-Cunningham change 

effectively eliminated the requirement of a jury trial which 

would otherwise have been required under the Sixth 

Amendment. (Cunningham, supra, 549 U.S. at p. 294.) 

ii. The Text of Current Section 1170(b)

The 2022 version of section 1170(b) functions differently 

than the pre-Cunningham statute analyzed in Black II and 

Sandoval. Paragraph (1) now provides that “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).) Paragraph (2) provides that “[t]he 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., subd. (b)(2).) Under the current statute the middle 

term is the maximum term that can be imposed unless 

additional factual determinations are made. It is the 

requirement of additional factfinding that brings the Sixth 

Amendment into play. (Cunningham, supra, 549 U.S. at pp. 

288–289, 292–293.) As the Court clarified in Blakely, supra, 542 

U.S. at page 304, the maximum available sentence is that 

available “without any additional findings.” An upper term 

sentence may be imposed “only” when circumstances in 

aggravation “justify” that term, and “only” when the facts 

underlying “those” justifying circumstances have been 

stipulated to by the defendant or found true beyond a reasonable 

doubt at a jury or court trial. By referring to aggravating 

circumstances “that justify the imposition of” an upper term 
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Opinion of the Court by Corrigan, J.

30

sentence (§ 1170(b)(2)), the statute contemplates all of the 

aggravating circumstances that the court actually relies on to 

justify the sentence, not some subset of those circumstances. 

(Cf. Hudec v. Superior Court (2015) 60 Cal.4th 815, 826.) It then 

specifies that the facts underlying “those circumstances,” i.e., 

the same circumstances the trial court relies on to “justify the 

imposition of” an upper term sentence, must be proven as the 

statute requires. (§ 1170(b)(2), italics added.) 

The current statute does not follow the blueprint provided

in Black II. It does not speak in terms of a single aggravating 

factor making the defendant “eligible” for an upper term 

sentence. (Black II, supra, 41 Cal.4th at p. 813.) Nor does it 

preserve the two-tiered approach discussed in Black II (id. at p. 

816) authorizing the trial court to make factual determinations 

as to aggravating facts (other than prior convictions) to justify 

an upper term sentence. Absent stipulation or waiver, that 

factfinding role now resides solely with the jury. Under the 

current statute, if an aggravating circumstance does not rest on 

properly proven facts, the circumstance cannot be relied upon 

when the court exercises its discretion to justify an upper term 

sentence. 

The current statute tracks fairly precisely the test that 

Cunningham articulated to safeguard the Sixth Amendment 

jury trial guarantee: “any fact that exposes a defendant to a 

greater potential sentence must be found by a jury, not a judge, 

and established beyond a reasonable doubt, not merely by a 

preponderance of the evidence.” (Cunningham, supra, 549 U.S. 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

31

at p. 281, italics added.)13 Under the current statute, the 

aggravating facts that would “justify” an upper term sentence 

(§ 1170, subd. (b)(2)) are the same facts that “expose” the 

defendant to imposition of that sentence in the trial court’s 

discretion. (Cunningham, at p. 281.) Stated another way, under 

the current statute the aggravating facts used to “justify” an 

upper term sentence are “necessary to [its] imposition,” (id. at 

p. 294) and effectively function like elements of a crime

(Recuenco, supra, 548 U.S. at p. 220). 

A prejudice inquiry under Watson is inadequate to assess 

the effect of a failure to honor the Sixth Amendment’s jury trial 

right. The trial court’s substitution of its own factfinding for 

that of a jury, and its application of a lower standard of proof, 

are not mere state statutory errors. They are errors that run 

counter to the high court’s interpretation of the federal 

constitution. Neither are they mere errors affecting the court’s 

exercise of discretion.14 This is true even if the court might have 

imposed the same sentence based on fewer aggravating 

circumstances than those it cites on the record. When the trial 

court actually relies on improperly proven aggravating facts to 

“justify” an upper term sentence, a Sixth Amendment violation 

occurs and Chapman must be satisfied. That is to say the 

13 Notably, Cunningham nowhere uses the words “eligible” 

or “eligibility.” Those concepts were introduced by Black II and 

Sandoval. (Black II, supra, 41 Cal.4th at pp. 806, 812–813, 820; 

Sandoval, supra, 41 Cal.4th at pp. 832, 836, 839.) 

14 Compare with People v. Price (1991) 1 Cal.4th 324, 492

(“When a trial court has given both proper and improper reasons 

for a sentence choice, a reviewing court will set aside the 

sentence only if it is reasonably probable that the trial court 

would have chosen a lesser sentence had it known that some of 

its reasons were improper”). 
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Opinion of the Court by Corrigan, J.

32

reviewing court must be able to conclude beyond a reasonable 

doubt that the jury would have found the unproven aggravating 

facts to be true had it been properly instructed. This prejudice 

inquiry does not allow us to uphold the trial court’s imposition 

of an upper term sentence based on some subset of aggravating 

facts. As Cunningham aptly put it: “Asking whether a 

defendant’s basic jury-trial right is preserved, though some facts 

essential to punishment are reserved for determination by the 

judge, we have said, is the very inquiry Apprendi’s ‘bright-line 

rule’ was designed to exclude.” (Cunningham, supra, 549 U.S. 

at p. 291.) Under this circumstance, “[i]t is no answer to say 

that the defendant could have received the same sentence with 

or without that fact.” (Alleyne, supra, 570 U.S. at p. 115.) 

The high court’s recent decision in Erlinger, supra, 602

U.S. ___ [144 S.Ct. 1840] confirms this view. There the court 

interpreted the scope of the prior conviction exception 

recognized in Almendarez-Torres, supra, 523 U.S. 224. It 

rejected the argument that the exception “permits a judge to 

find perhaps any fact related to a defendant’s past offenses, 

including whether he committed them on different occasions” 

within the meaning of the Armed Career Criminal Act. 

(Erlinger, at p. ___ [144 S.Ct. at p. 1853].) Instead, “a judge may 

‘do no more, consistent with the Sixth Amendment, than 

determine what crime, with what elements, the defendant was 

convicted of.’ ” (Id. at p. ___ [144 S.Ct. at p. 1854], quoting 

Mathis v. United States (2016) 579 U.S. 500, 511–512.) In so 

concluding, the court reaffirmed Apprendi’s basic rationale in 

the face of arguments by the dissent and amicus curiae that, 

historically, “[w]hen exercising their sentencing authority, 

judges were also presumed to have the power to find and 

consider nearly any fact deemed relevant to the penalty.” 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

33

(Erlinger, at p. ___ [144 S.Ct. at p. 1876] (dis. opn. of Jackson, 

J.); see also id. at p. ___ [144 S.Ct. at pp. 1856–1857]

[summarizing amicus curiae’s argument that “the Fifth and 

Sixth Amendments’ original meaning and ‘deep’ common-law 

traditions authorize judges at sentencing to find all manner of 

facts about an offender’s past crimes”].) The court emphasized 

that, while the government has flexibility to experiment with 

sentencing practices, such experiments “must remain within the 

Fifth and Sixth Amendments’ guardrails.” (Id. at p. ___ [144 

S.Ct. at p. 1850].) In the face of “a variety of . . . recent 

sentencing innovations” (id. at p. ___ [144 S.Ct. at p. 1851]), the 

court has “come to the same conclusion in one decision after 

another” (id. at p. ___ [id. at p. 1857]). “Virtually ‘any fact’ ” that 

increases “a defendant’s exposure to punishment . . . must ‘be 

submitted to a jury’ and found unanimously and beyond a 

reasonable doubt.” (144 S.Ct. at p. ___ [Id. at p. 1851].) 

Our Legislature’s most recent amendment to section 

1170(b) closely follows those teachings. But the separate 

opinions here do not. The dissents take issue with our 

interpretation of both the high court’s precedent and the current 

version of section 1170(b). In doing so, they embrace the

declarations in Black II and Sandoval applying the high court’s 

precedent to a different version of the DSL that was found 

unconstitutional in Cunningham. Respectfully, we find that 

analysis unpersuasive.

The majority and dissents begin from the same premise: 

that the Sixth Amendment jury trial right is triggered by section 

1170(b)’s substantive requirements governing imposition of an 

upper term sentence. (Conc. & dis. opn. of Kruger, J., post, at 

pp. 9–13; dis. opn. of Guerrero, C. J., post, at pp. 8, 14.) But we 

part ways in our interpretation of what the current statute 
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Opinion of the Court by Corrigan, J.

34

requires. The dissents reason that, under section 1170(b)’s 

current provisions, only one aggravating circumstance is legally 

required to make a defendant eligible for an upper term 

sentence, and therefore, only one aggravating circumstance 

must be proved in compliance with the Sixth Amendment. 

(Conc. & dis. opn. of Kruger, J., post, at pp. 7, 9–10, 12, 15; dis. 

opn. of Guerrero, C. J., post, at pp. 2, 8, 17, citing Black II, supra, 

41 Cal.4th at p. 813 and People v. Osband (1996) 13 Cal.4th 622, 

728 (Osband).) Thus, they reason, additional judicial 

factfinding beyond the first aggravator falls squarely with in the 

trial court’s broad discretion to select a term within the 

permissible range. (Conc. & dis. opn. of Kruger, J., post, at pp. 

2, 4–5, 14; dis. opn. of Guerrero, C. J., post, at pp. 3, 6–7, 9–10,

13, fn. 4, 17, 19–21 & fn. 6.) Our dissenting colleagues do not 

dispute our reading of the statute to require a jury trial as to all

aggravating circumstances, other than prior convictions, used to 

justify an upper term sentence. But they reason that this is a 

matter of state procedure, rather than one of constitutional 

substance. (Conc. & dis. opn. of Kruger, J., post, at pp. 1–2, 8, 

11, 15; dis. opn. of Guerrero, C. J., post, at pp. 12–14, 21, 24.) 

The reliance on Black II falters upon examination of the 

material differences between the original section 1170(b) and 

the current version. The original statute set forth a single 

requirement to depart from the middle term: that “there are 

circumstances in aggravation or mitigation of the crime.” 

(Former § 1170(b); Stats. 1977, ch. 165, § 15, p. 648.) In a 

separate discussion, the statute listed sources of information 

that the court, as factfinder, could rely on “[i]n determining 

whether there are circumstances that justify imposition of the 
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Opinion of the Court by Corrigan, J.

35

upper or lower term.” (Ibid.)

15

 The accompanying rule of court 

provided that “[t]he middle term must be selected unless 

imposition of the upper or lower term is justified by 

circumstances in aggravation or mitigation.” (Cal. Rules of 

Court, former rule 4.420(a).) Based on this statutory structure,

Black II reasoned that “the existence of a single aggravating 

circumstance is legally sufficient to make the defendant eligible 

for the upper term” (41 Cal.4th at p. 813) and “aggravating 

circumstances serve two analytically distinct functions” (id. at 

p. 815), namely to raise the maximum permissible term and to 

serve as a consideration in the trial court’s exercise of discretion 

(id. at pp. 815–816, citing former § 1170(b) and Osband, supra, 

13 Cal.4th at p. 728). 

The current statute, by contrast, eliminates any purported 

distinction between eligibility and justification with respect to

the finding of aggravating facts by: (1) deleting the stand-alone 

reference to aggravating circumstances; (2) elevating the word 

“justify” from an ancillary reference in the statute’s list of 

permitted evidence to a substantive requirement;

(3) authorizing the court to impose an upper term sentence 

“only” when the “circumstances in aggravation . . . justify the 

imposition” of that term; and (4) eliminating the court’s 

factfinding authority as to aggravating facts (other than prior 

15 Although the statute has undergone numerous revisions 

over the decades, the quoted language remained unchanged at 

the time of Cunningham’s sentence in 2003 and when the high 

court decided Cunningham in 2007. (Stats. 1998, ch. 926, § 1.5, 

pp. 6207–6208; Stats. 2004, ch. 747, § 1, pp. 5808–5809.) 
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Opinion of the Court by Corrigan, J.

36

convictions). (§ 1170(b).)16 Examination of these differences 

undermines our colleagues’ assertion that the current statute is 

materially indistinguishable from the original statute

considered in Black II and Cunningham. (Conc. & dis. opn. of 

Kruger, J., post, at pp. 9–11; dis. opn. of Guerrero, C. J., post, at 

pp. 19–20.) Nor are these changes merely procedural in nature. 

(Dis. opn. of Guerrero, C. J., post, at pp. 12–14.) They convey 

substantive sentencing requirements. These statutory 

differences reanimate and give force to the defense argument, 

rejected in Black II, that the existence of a single aggravating 

circumstance does not satisfy Apprendi’s jury trial requirement 

because the trial court must justify imposition of that sentence. 

(Black II, supra, 41 Cal.4th at p. 814.) In so concluding, we heed 

the high court’s caution not to ignore the constitutional 

significance of the statutory scheme our Legislature has 

adopted. (Cunningham, supra, 549 U.S. at pp. 289–293 & fn. 

16.)

It is true that nothing in section 1170(b)(2) prohibits the 

court from imposing an upper term sentence based on a single, 

properly proven aggravating circumstance if, in the court’s 

discretion, that circumstance alone justifies a sentence 

exceeding the middle term. We do not read the current statute’s 

16 California Rules of Court, former rule 4.420(b) is distinct 

from current section 1170(b) as well. The former rule provided 

that an upper term sentence is “justified only if, after a 

consideration of all the relevant facts, the circumstances in 

aggravation outweigh the circumstances in mitigation” (Cal. 

Rules of Court, former rule 4.420(b)), rather than “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” are properly 

proven (§ 1170(b)(2)).
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Opinion of the Court by Corrigan, J.

37

reference to “circumstances” in the plural as requiring a 

different conclusion. (§ 1170(b)(2); see § 7, subd. (a) [as used in 

the Penal Code, “[w]ords used in the singular number includes 

the plural, and the plural the singular”]; accord, Hall, supra, 97 

Cal.App.5th at pp. 1105–1106; Falcon, supra, 92 Cal.App.5th at 

p. 955; Lopez, supra, 78 Cal.App.5th at p. 467.) But under the 

current statute, the court may do so “only” if it determines “in 

its sound discretion,” that a single aggravating circumstance 

“justif[ies]” the upper term. (§ 1170(b)(1), (2).) This 

requirement is functionally different from the abstract concept 

of eligibility discussed in Black II. (Black II, supra, 41 Cal.4th 

at p. 812.) Accordingly, unlike our colleagues, we do not consider 

the relevant inquiry under current section 1170(b) to be simply 

whether a single aggravating fact is “ ‘legally sufficient’ ” or 

“ ‘required’ ” to impose the upper term (dis. opn. of Guerrero, 

C. J., post, at pp. 2, 8, quoting Black II, supra, 41 Cal.4th at p. 

813 and Osband, supra, 13 Cal.4th at p. 728); or whether “an 

upper term sentence is legally authorized so long as there exists 

at least one aggravating circumstance found in a 

‘constitutionally compliant’ manner . . .” (conc. & dis. opn. of 

Kruger, J., post, at p. 9, italics added). (See also discussion, post, 

at pp. 38–39.)

In arguing against this conclusion, the Chief Justice 

emphasizes that original section 1170(b) discussed in Black II

also did not speak in terms of eligibility. (Dis. opn. of Guerrero, 

C. J., post, at pp. 19–20.) She urges instead that the concept 

comes from the “substantive requirements of California 

sentencing law.” (Id., post, at p. 20.) It is not clear what these 

“substantive requirements” would be, beyond section 1170(b) 

and the accompanying California Rules of Court. Black II did 

not provide much explication of its own on this point. It cited 
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Opinion of the Court by Corrigan, J.

38

section 1170(b) and Osband. (Black II, supra, 41 Cal.4th at pp. 

813, 815.) Osband, supra, 13 Cal.4th at page 728 had mentioned

a Court of Appeal case, People v. Castellano (1983) 140 

Cal.App.3d 608, 614–615. Castellano cited People v. Burney

(1981) 115 Cal.App.3d 497, 504–505, which, in turn, cited People 

v. Covino (1980) 100 Cal.App.3d 660. Covino stated, without 

citation to authority, that “[t]here is no authority for appellant’s 

position that the court may not act upon the finding of only one 

of several circumstances in aggravation, and such a proposition 

would be unreasonable.” (Id. at p. 670.) Given that section 

1170(b) has been significantly amended since Black II, we find 

it unnecessary to probe this line of analysis further. Suffice it 

to say that the fact the original section 1170(b) did not reference 

an eligibility “floor” is not a compelling justification for 

importing such a concept into the current statute. If anything, 

it calls Black II’s eligibility “gloss” into question. 

An example illustrates the false equivalency of applying 

Black II’s holding to the current statutory framework. Suppose 

the trial court finds based on certified records that the defendant 

has numerous prior convictions. (§ 1170(b)(3).) But the court 

finds this circumstance does not justify an upper term sentence 

because the convictions are decades old and the defendant has 

lived a law-abiding life in the interim. Instead, the court finds 

that a different aggravating circumstance, a victim’s particular 

vulnerability, justifies an upper term sentence. If the facts 

underlying that circumstance were not found by a jury, the court 

cannot rely on it. (§ 1170(b)(2).) Nonetheless, under the logic of 

Black II, there is no Sixth Amendment violation because the 

defendant’s numerous prior convictions made him “eligible” for 

an upper term sentence, even though they did not justify 

imposition of the upper term. Or, as Justice Kruger otherwise 
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Opinion of the Court by Corrigan, J.

39

puts it, the existence of the defendant’s numerous prior 

convictions means that “an upper term sentence is legally 

authorized” under the Sixth Amendment. (Conc. & dis. opn. of 

Kruger, J., post, at p. 9.) But this cannot be so. The Sixth 

Amendment cannot be satisfied where the statute’s substantive 

requirements are not. Under the current statute, if a properly 

proven aggravating circumstance does not justify an upper term 

sentence, the defendant is not eligible for such a sentence. The 

result does not change because the trial court finds that a 

different unproven aggravating circumstance justifies such a 

sentence.

The Chief Justice further reasons that current section 

1170(b) “does not identify any particular aggravating fact, or 

any number of aggravating facts, that must be found in order to 

impose an upper term sentence.” (Dis. opn. of Guerrero, C. J., 

post, at p. 11.) Similarly, Justice Kruger urges that “section 

1170(b)(2) does not create a crime whose elements consist of 

some indeterminate set of aggravating facts — any facts at all —

but only so long as those facts have been found by a jury and are 

deemed pertinent by a judge.” (Conc. & dis. opn. of Kruger, J., 

post, at p. 13.) They reason that the lack of particularized 

identification, or numerical requirement, “distinguishes 

aggravating facts in this context from the elements of a criminal 

offense, each of which is essential.” (Dis. opn. of Guerrero, C. J., 

post, at p. 2; accord, conc. & dis. opn. of Kruger, J., post, at pp. 

11–13.) Justice Kruger also observes, “if the court can exercise 

its discretion to impose an upper term sentence based on a single 

aggravating fact, it simply cannot be said that the Legislature 

has made additional aggravating facts essential to the 

sentence.” (Conc. & dis. opn. of Kruger, J., post, at pp. 12–13.) 

It is true that section 1170(b) does not enumerate an exclusive 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

40

list of aggravating facts, all of which must be proved before the 

court can impose an upper term sentence. But it is also true 

that, under the statute, no single aggravating fact is necessarily

sufficient. (See discussion, ante, at pp. 36–37.) The dissenters’ 

reliance on such absolutes is misplaced in this context. Our high 

court has made clear that a sentencing scheme need not set out 

a mandatory list of aggravating facts that must be proved in 

every case in order for Apprendi’s protections to apply. 

(Cunningham, supra, 549 U.S. at p. 284; Blakely, supra, 542 

U.S. at p. 305 & fn. 8.) Rather, in the context of discretionary 

sentencing schemes, the Supreme Court’s precedent speaks of

the right to a jury trial on “any fact that exposes a defendant to 

a greater potential sentence.” (Cunningham, at p. 281, italics 

added.) The high court has “treated sentencing factors, like 

elements, as facts that have to be tried to the jury and proved 

beyond a reasonable doubt.” (Recuenco, supra, 548 U.S. at p. 

220.) That the trial court retains “broad discretion to decide 

what facts may support an enhanced sentence, or to determine 

whether an enhanced sentence is warranted in any particular 

case, does not shield a sentencing system from the force of” 

Apprendi and its progeny. (Cunningham, at p. 290.)

Our dissenting colleagues also rely on the high court’s 

pronouncements reaffirming the trial court’s permissible 

factfinding role in the context of sentencing. (Conc. & dis. opn. 

of Kruger, J., post, at pp. 2, 4–5, 14; dis. opn. of Guerrero, C. J., 

post, at pp. 3, 6–7, 9–10, 13, fn. 4, 19–21 & fn. 6.) Apprendi, for 

example, observed that “nothing in this history 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.” (Apprendi, supra, 530 U.S. at p. 481.) And Alleyne
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41

observed that “[j]uries must find any facts that increase either 

the statutory maximum or minimum because the Sixth 

Amendment applies where a finding of fact both alters the 

legally prescribed range and does so in a way that aggravates 

the penalty. Importantly, this is distinct from factfinding used 

to guide judicial discretion in selecting a punishment ‘within 

limits fixed by law.’ [Citation.] While such findings of fact may 

lead judges to select sentences that are more severe than the 

ones they would have selected without those facts, the Sixth 

Amendment does not govern that element of sentencing.” 

(Alleyne, supra, 570 U.S. at p. 113, fn. 2, second italics added.)17 

Relying on these and other authorities, the Chief Justice 

reasons that the Sixth Amendment’s protections do not apply 

when a statute confers discretion on the trial court to determine 

17 The Chief Justice also quotes from Justice Jackson’s 

dissenting opinion in Erlinger, supra, 602 U.S. at page ___ [144 

S.Ct. at p. 1880]: “Even after Apprendi, a sentencing judge can 

still find and consider any fact — including sentencing factors 

defined by the legislature — so long as the consequence of that 

fact is not mandatory but rather left to the judge’s discretion.” 

(See dis. opn. of Guerrero, C. J., post, at p. 11.) Justice Jackson 

offered this comment in service of her criticism of Apprendi’s 

rule: “Apprendi’s distinction between permissible and 

impermissible judicial factfinding therefore neither aligns with 

the doctrine’s rationale nor achieves its stated goals. As a result, 

the Apprendi rule does little actual work.” (Erlinger, at p. __ 

[144 S.Ct. at p. 1880].) No other member of the court signed the 

dissent or embraced the views it expressed.

Justice Kruger likewise places particular emphasis on 

language appearing in a concurring opinion in a case that 

addressed whether a federal Court of Appeals may apply a 

presumption of reasonableness to sentences falling within a 

properly calculated sentencing guidelines range. (Conc. & dis. 

opn. of Kruger, J., post, at pp. 5, 14, quoting Rita v. United States

(2007) 551 U.S. 338, 373 (conc. opn. of Scalia, J.).) 
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Opinion of the Court by Corrigan, J.

42

the significance of additional aggravating facts. (Dis. opn. of 

Guerrero, C. J., post, at pp. 9, 11, 13, fn. 4.) 

But this premise rests on the assumption that the trial 

court is authorized to consider unproved, aggravating facts in 

an exercise of its discretion to impose an upper term sentence. 

This analysis also fails to honor the distinction between the 

requirement of properly proven facts and the court’s exercise of 

its discretion when determining the significance of those facts. 

As the high court’s precedents make clear, a jury trial is 

required on “fact[s]” that are used to justify a sentence in excess 

of the middle term. (Apprendi, supra, 530 U.S. at p. 490; see 

also Blakely, supra, 542 U.S. at p. 305, fn. 8.) However, “[t]he 

trial court’s evaluation of the relative weight of aggravating and 

mitigating circumstances is not equivalent to a factual finding.” 

(Black II, supra, 41 Cal.4th at p. 814, fn. 4.) Moreover, for 

reasons we have explained, aggravating facts that “justify” the 

upper term under the current statute are not merely “fact[s] 

that influence[] judicial discretion.” (Alleyne, supra, 570 U.S. at 

p. 116; see conc. & dis. opn. of Kruger, J., post, at p. 4; dis. opn. 

of Guerrero, C. J., post, at pp. 10, 21, fn. 6.) All such facts are 

“legally essential to the punishment.” (Blakely, supra, 542 U.S. 

at p. 313.) 

Notwithstanding these observations, it remains true that 

the current statute preserves the trial court’s factfinding role as 

to a defendant’s prior convictions, which are specifically 

exempted from the Sixth Amendment jury trial right.

(§ 1170(b)(3); Apprendi, supra, 530 U.S. at p. 490; AlmendarezTorres, supra, 523 U.S. 224; but see Erlinger, supra, 602 U.S. at 

p. ___ [144 S.Ct. at p. 1854]; fn. 20, post.) In addition, the court 

is free to determine facts that, in its judgment, call for a 

reduction of sentence to the lower available term. The current
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Opinion of the Court by Corrigan, J.

43

statute also preserves the trial court’s discretion to determine 

whether an upper term sentence is in fact justified.

iii. Legislative History

Even if we were to conclude that the current statutory 

language is ambiguous (see In re A.N. (2020) 9 Cal.5th 343, 351–

352), the legislative history and purpose of the 2022 statutory 

amendment confirm our understanding that the Sixth 

Amendment jury trial right attaches to every aggravating fact, 

other than a prior conviction, used to justify imposition of the 

upper term. The Legislature was acting to remedy a Sixth 

Amendment violation. Cunningham gave the Legislature a 

choice. It could (1) “call[] upon the jury — either at trial or in a 

separate sentencing proceeding — to find any fact necessary to 

the imposition of an elevated sentence” or (2) permit “judges 

genuinely ‘to exercise broad discretion . . . within a statutory 

range.’ ” (Cunningham, supra, 549 U.S. at p. 294.) In 2007, in 

the immediate wake of Cunningham, the California legislature 

adopted the second approach. (Former § 1170(b), enacted by 

Stats. 2007, ch. 3, § 2, pp. 6−7.) In 2022, it changed course and

adopted Cunningham’s first provided alternative; requiring 

juror factfinding in the absence of waiver or stipulation. A 

statement by the bill’s author, which appears in materials 

presented to the Legislature as a whole, recognized the need to

“ ‘revisit the determinate sentencing structure’ ” that was 

adopted in response to Cunningham, and emphasized that “ ‘[i]t 

is important, proper, and constitutionally conforming to change 

the law to ensure that aggravating facts are presented to the 

jury before a judge imposes a maximum sentence as decided in 

Cunningham v. California.’ ” (Assem. Floor Analysis, 3d 

reading analysis of Sen. Bill No. 567 (2021–2022 Reg. Sess.) as 

amended Sept. 3, 2021, p. 2, italics added.) The statutory 
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Opinion of the Court by Corrigan, J.

44

language, informed by the context in which it was passed, 

demonstrates the Legislature’s intent to conform with 

Cunningham’s interpretation of the Sixth Amendment, rather 

than create a purely state law right.

The Chief Justice argues that this legislative history is

irrelevant because the Legislature cannot dictate what the Sixth 

Amendment requires. (Dis. opn. of Guerrero, C. J., post, at pp. 

23–24.) But these statements of legislative intent can and do 

inform us of the statute’s substantive requirements, which in 

turn guide our Sixth Amendment inquiry. The relevant 

legislative history confirms our understanding that current 

section 1170(b) operates in such a manner as to trigger the Sixth 

Amendment jury trial right with respect to every aggravating 

fact (other than a prior conviction) the trial court uses to justify 

an upper term sentence. 

iv. Assessing Prejudice Under Chapman

We hold that under the current statute a Sixth 

Amendment violation occurs when the trial court relies on

unproven aggravating facts to impose an upper term sentence, 

even if some other aggravating facts relied on have been 

properly established. The violation is prejudicial unless an 

appellate court can conclude beyond a reasonable doubt that a 

jury would have found true all of the aggravating facts relied 

upon by the trial court to justify an upper term sentence, or that 

those facts were otherwise proved true in compliance with the

current statutory requirements. If the reviewing court cannot 

so determine, applying the Chapman standard of review, the 

defendant is entitled to a remand for resentencing. We 

disapprove People v. Hall, supra, 97 Cal.App.5th 1101, 1104–

1108, People v. Ruiz, supra, 97 Cal.App.5th 1068, 1076–1078,
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Opinion of the Court by Corrigan, J.

45

People v. Falcon, supra, 92 Cal.App.5th 911, 938–939, People v. 

Butler, supra, 89 Cal.App.5th 953, 960, People v. Lewis, supra,

88 Cal.App.5th 1125, People v. Ross, supra, 86 Cal.App.5th 

1346, People v. Dunn, supra, 81 Cal.App.5th 394, 407, People v. 

Zabelle, supra, 80 Cal.App.5th 1098, 1110–1113, People v. 

Lopez, supra, 78 Cal.App.5th 459, 467, footnote 11, and People 

v. Flores, supra, 75 Cal.App.5th 495, 500, to the extent they are 

inconsistent with today’s opinion.

18

We also clarify what potential issues we do not decide 

here. 

18 The Chief Justice questions why we do not adopt a secondtier prejudice analysis that considers whether the record shows 

beyond a reasonable doubt that the trial court would have 

imposed the same sentence based on a subset of aggravating 

facts that were either properly proven or that we can conclude 

would have been found true by the jury beyond a reasonable 

doubt. (Dis. opn. of Guerrero, C. J., post, at pp. 32–34, fn. 8; see 

also conc. & dis. opn. of Kruger, J., post, at p. 13, fn. 2 [similarly 

suggesting a reviewing court should consider whether the 

individual facts a trial court relies on to justify an upper term 

sentence were actually necessary to the trial court’s exercise of 

its discretion].) But when a defendant is deprived of the Sixth 

Amendment’s jury trial right, the high court has consistently 

looked to whether the record demonstrates beyond a reasonable 

doubt that the jury would have made the required finding, and 

no further. (Neder, supra, 527 U.S. at pp. 16–19; Recuenco, 

supra, 548 U.S. at pp. 220–221 [harmless error inquiry for 

Apprendi violation is governed by Neder]; see also Erlinger, 

supra, 602 U.S. at p. ___ [144 S.Ct. at pp. 1866–1867] (dis. opn. 

of Kavanaugh, J.).) If the answer to that question is yes, we may 

find the omission harmless. If the answer is no, we will not 

engage in an additional hypothetical inquiry into whether we 

can conclude, to some degree of certainty, that the trial court 

would have exercised its discretion in the same manner based 

on a lesser subset of aggravating facts than those it actually 

relied on to justify an upper term sentence. 
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Opinion of the Court by Corrigan, J.

46

Because Lynch was tried and sentenced before section 

1170(b)’s latest amendment, this case does not directly present 

issues of pleading and notice. Accordingly, it is not necessary 

for us to decide exactly what the statute and the federal 

Constitution demand in this context. 

Under the posture of this case, Lynch was not asked to 

expressly waive jury trial on aggravating circumstances. Nor 

did he stipulate to the facts underlying any of the aggravating 

circumstances listed by the trial court in support of its upper 

term sentence. We have no occasion here to address the 

conditions applicable to waiver and stipulation. (See generally 

French, supra, 43 Cal.4th at pp. 46–52.) 

Because Lynch did not receive a jury trial under the 

provisions of current section 1170(b)(2), we have no occasion to 

opine on the correctness of the CALCRIM jury instructions that 

have been drafted to guide the jury’s deliberations. (CALCRIM 

Nos. 3224–3251.) Nor need we examine the contours of the 

unanimity requirement in this context. (See Erlinger, supra, 

602 U.S. at p. ___ [144 S.Ct. at pp. 1849, 1851]; Ramos, supra,

590 U.S. at pp. 90, 92–93.) 

Finally, we decline to consider the interplay between 

section 1170(b)’s jury trial requirement and the current 

reference in the California Rules of Court to “a nonexhaustive 

list of factors that may be considered circumstances in 

aggravation.” (Conc. & dis. opn. of Kruger, J., post, at p. 12; see 

also ibid. [observing that Cal. Rules of Court, rule 4.421(c) 

“permit[s] judges broad discretion to find any other factors, as 

long as they are ‘reasonably relate[d] to the defendant or the 

circumstances under which the crime was committed’ ”].) We

likewise do not here examine the practical differences, if any, 
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Opinion of the Court by Corrigan, J.

47

between the jury’s factfinding role and the description of 

aggravating circumstances that appears in the Rules of Court. 

(See Cal. Rules of Court, rule 4.421.) We simply offer the 

following observations: The Rules of Court in existence at the 

time Cunningham was decided deemed aggravating 

circumstances to be “ ‘facts.’ ” (Cunningham, supra, 549 U.S. at 

p. 278 &. fns. 7, 8, quoting Cal. Rules of Court, former rules 

4.405(d) & 4.421(a), (b).) When section 1170(b) was amended in 

2007 to give the trial court broad sentencing authority, the 

corresponding Rules of Court were redrafted to refer to 

aggravating circumstances as “factors,” but the substantive 

descriptions remained unchanged. The text of section 1170(b)(2)

itself “arguably allows for a distinction to be drawn between 

‘circumstances in aggravation’ that can justify the imposition of 

the upper term and ‘the facts underlying those circumstances’ 

that the jury must find true beyond a reasonable doubt.” 

(Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 85, 

fn. 4, quoting § 1170(b)(2).) Notwithstanding this terminology, 

Chavez Zepeda held that “section 1170(b)(2) unambiguously 

conveys the Legislature’s intent to have the jury make findings 

about the truth of aggravating factors in rule 4.421 . . . .” 

(Chavez Zepeda, at p. 77; see also id. at p. 85, fn. 4.) The 

CALCRIM instructions likewise instruct the jury to make 

findings such as whether: the victim was particularly 

vulnerable (CALCRIM No. 3226); the defendant acted with

planning, sophistication, or professionalism (CALCRIM No. 

3230); or the defendant poses a serious danger to society 

(CALCRIM No. 3234). The parties before us have not urged a 

distinction between aggravating circumstances considered by 

the trial court and the facts the jury must find true beyond a 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

48

reasonable doubt. Accordingly, we treat them the same for 

purposes of this opinion without taking a position on the issue. 

E. Application of the Gutierrez “ ‘Clearly Indicate[s]’ ” 

Standard

Gutierrez, supra, 58 Cal.4th 1354 considered the 

appropriate remedy when the trial court was not aware of the 

full scope of its discretionary powers at the time of the 

defendant’s sentencing. That case involved a presumptive 

sentence having to do with sentencing of minors convicted of 

murder. We disapproved the longstanding interpretation that 

when a minor defendant was tried as an adult and convicted of 

a special circumstance murder, section 190.5 made life without 

parole the presumptive sentence. (Gutierrez, at pp. 1370, 1387.) 

We clarified that “the trial court must consider all relevant 

evidence bearing on the ‘distinctive attributes of youth’ 

discussed in Miller[ v. Alabama (2012) 567 U.S. 460] and how 

those attributes ‘diminish the penological justifications for 

imposing the harshest sentences on juvenile offenders.’ ” 

(Gutierrez, at p. 1390, quoting Miller, at p. 472.) We noted that 

the trial courts in the consolidated Gutierrez cases had imposed 

an LWOP sentence under the presumption favoring that term. 

(Gutierrez, at p. 1390.) Accordingly, “neither court made its 

sentencing decision with awareness of the full scope of discretion 

conferred by section 190.5(b) or with the guidance set forth in 

Miller and this opinion for the proper exercise of its discretion.” 

(Id. at pp. 1390–1391.) In this situation, “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.’ ” (Id. at p. 1391, quoting People v. Belmontes (1983) 

34 Cal.3d 335, 348, fn. 8 [clarifying that trial court has 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

49

discretion to choose whether to sentence under § 667.6 or 

§ 1170.1].) We further concluded that remand was necessary on 

the record before us: “[a]lthough the trial courts . . . understood 

that 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.” (Gutierrez, at p. 1391.) 

Subsequently, People v. Salazar (2023) 15 Cal.5th 416

(Salazar) applied the Gutierrez remand standard to a 

resentencing under amended section 1170, subdivision (b)(6). 

(Salazar, at pp. 419, 424–426, 431–432; see Stats. 2021, ch. 731, 

§§ 1.3, 3, subd. (c).) The amended statute provides that the trial

court “shall” enter a lower term sentence when any of the 

following factors contributed to the offense: “psychological, 

physical, or childhood trauma;” the offender’s “youth,” at the 

time of the commission of the offense; or the offender “is or was 

a victim of intimate partner violence or human trafficking.” 

(§ 1170(b)(6)(A), (B), (C).) The court may only deviate from the 

lower term if it “finds that the aggravating circumstances 

outweigh the mitigating circumstances [so] that imposition of 

the lower term would be contrary to the interests of justice.” 

(Id., subd. (b)(6).) Salazar held that these changes create a 

presumption that affects the scope of the trial court’s 

discretionary sentencing authority. (Salazar, at pp. 419, 426–

427, 429–430.) Accordingly, when there is evidence in the record 

meeting the statute’s threshold requirement for triggering the 

lower term presumption, a defendant is entitled to a 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.” ’ ” (Id. at p. 425, 

quoting Gutierrez, supra, 58 Cal.4th at p. 1391.) Upon reviewing 
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Opinion of the Court by Corrigan, J.

50

the record in that case, we concluded that a remand was

warranted. The trial court’s other rulings, such as its denial of 

the defendant’s Romero motion19 and its imposition of 

consecutive sentences, were not sufficiently aligned with the 

new factors such that the record clearly indicated how the court 

would have exercised its newfound discretion. (Salazar, at pp. 

428–430.) 

Several Courts of Appeal have held that the latest 

amendment to section 1170(b)(1) and (2) did more than codify 

the holding in Cunningham; it also fundamentally altered the 

trial court’s sentencing discretion in a manner similar to 

Gutierrez and Salazar. (Falcon, supra, 92 Cal.App.5th at p. 921;

Lewis, supra, 88 Cal.App.5th at pp. 1136–1138; Wandrey, supra, 

80 Cal.App.5th at pp. 981–982.) They focus on the amended

statute’s presumption in favor of a low or middle term sentence 

that may only be overcome when aggravating circumstances 

“justify” an upper term sentence. (§ 1170(b)(1), (2); see Falcon, 

at pp. 918, 925–926, 944–945, Wandrey, at p. 981.) “As a result, 

the trial court no longer has full discretion to impose an upper 

term sentence without the weight of any presumption against it, 

as it did under the former version of the DSL.” (Falcon, at p. 

921.) The appellate courts have concluded that, for sentences 

imposed before the effective date of section 1170’s latest 

amendment, the standard for reversal articulated in Gutierrez

applies and must be satisfied in addition to a finding of 

harmlessness regarding any omitted factual finding. (Falcon, at 

pp. 921, 938, 949; Lewis, at pp. 1134–1138; Wandrey, at p. 982.) 

This is so because neither a Chapman nor a Watson review “can 

adequately indicate that resentencing is unnecessary upon 

19 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

51

retroactive application of amended section 1170(b).” (Falcon, at 

p. 938.) Instead, applying Gutierrez in this context, Falcon

articulated the following test: “to properly conclude that 

resentencing is unwarranted upon retroactive application of 

amended section 1170(b), an upper term sentence must remain 

legal under federal and state law; and it must pass Gutierrez’s 

clearly indicated test.” (Id. at p. 943; accord, Wandrey, at p. 982; 

Lewis, at pp. 1136–1138.) The Court of Appeal in this case took 

a different view, holding that the latest amendment to section 

1170(b)(1) and (2) did not alter the scope of the trial court’s 

sentencing discretion. It reasoned that, under the amended 

statute, “trial courts apply their discretion to the same set of 

aggravating circumstances to decide whether to impose an 

upper term sentence, but the facts underlying those 

circumstances now may only be found in one of the permissible 

ways.” Accordingly, it found the Gutierrez standard 

inapplicable. 

We conclude that the amendment at issue did alter the 

trial court’s sentencing discretion. At the time Lynch was 

sentenced, former section 1170(b) gave a sentencing court broad 

discretion to select among three terms and impose a sentence 

that in its judgment served the interests of justice. (Former 

§ 1170(b), enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) The 

current statute narrows that authority by creating a 

presumption against the upper term, which may be overcome

only if the required facts are properly proven and the court 

concludes that term is justified. These changes circumscribe the 

trial court’s previously broad discretion to select whichever of 

the three terms of imprisonment serves the interests of justice. 

As a result, the Gutierrez standard applies to sentences imposed 

before the statute’s 2022 amendment, or when the record 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

52

otherwise indicates that the court has not exercised its 

“ ‘ “informed discretion.” ’ ” (Gutierrez, supra, 58 Cal.4th at p. 

1391.)

Relying on Sandoval, supra, 41 Cal.4th 825, the Chief 

Justice argues that the Gutierrez standard does not apply 

because the change in the trial court’s discretion brought about 

by the current statutory amendment is “ ‘not substantial.’ ” (Dis. 

opn. of Guerrero, C. J., post, at p. 29, quoting Sandoval, at p. 

850.) She would allow for review under Gutierrez only in “ ‘the 

rarest of cases’ (Sandoval, . . . at p. 850) in which the new 

maximum middle term presumption would materially affect the 

trial court’s decision to impose the upper term.” (Dis. opn. of 

Guerrero, C. J., post, at p. 37, fn. 9.) But again, we conclude

reliance on our past precedent is misplaced.

Sandoval considered how to conduct proceedings on 

remand for defendants whose sentences were reversed after a 

finding of constitutional error under Cunningham. (Sandoval,

supra, 41 Cal.4th at pp. 843–844.) Specifically, the court 

considered whether it should fashion a sentencing procedure 

which allowed for a jury trial on aggravating circumstances or, 

alternatively, direct that those defendants be resentenced under 

the same procedure that the Legislature had subsequently 

enacted to remedy the Cunningham violation, namely, allowing 

the trial court to choose between the three available terms in its 

discretion. (Id. at pp. 844–852.) In opting for the latter 

approach, the court observed: “[I]t is both accurate and realistic 

to recognize that, in practical terms, the difference between the 

pre-Cunningham provision of the DSL enacted by the 

Legislature [which included a middle term presumption] and a 

statutory scheme in which the trial court has broad discretion 

to select among the three available terms is not substantial. It 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

53

seems likely that in all but the rarest of cases the level of 

discretion afforded the trial court under the Attorney General’s 

proposal [which allowed selection among the three terms] would 

lead to the same sentence as that which would have been 

imposed under the DSL as initially enacted.” (Sandoval, at p. 

850.)

This point loses its salience in the inverse situation 

presented here. In Sandoval, the trial court had already 

sentenced the defendant under a scheme that included a 

presumption in favor of the middle term. Despite that 

presumption, the trial court had imposed the upper term. (See 

Sandoval, supra, 41 Cal.4th at p. 855 [“as applied to cases such 

as this one, in which defendant already has been sentenced to 

the upper term under the version of the DSL in place at the time 

she committed the offense, application of the revised sentencing 

scheme never could result in a harsher sentence”].) It was 

therefore no leap to conclude that, if given broad discretion to 

choose among the triad terms, a court would impose the same 

sentence. 

The same logic does not hold true here. The court 

sentenced Lynch to the upper term when it had broad discretion 

to select among the three terms; but under the current law, it is 

constrained by a presumption against the upper term. It is this 

constraint on the trial court’s discretion that triggers the 

Gutierrez standard because “ ‘[a] court which is unaware of the 

scope of its discretionary powers [cannot] exercise that 

“informed discretion” . . . .’ ” (Gutierrez, supra, 58 Cal.4th at p. 

1391.) In this circumstance, “it is almost always speculative for 

a reviewing court to say what the sentencing court would have 

done if it had known the scope of its discretionary powers at the 

time of sentencing.” (Salazar, supra, 15 Cal.5th at p. 431.) 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

54

Sandoval did not consider or apply the Gutierrez standard. 

Its inquiry into how “substantial” the change is (Sandoval, 

supra, 41 Cal.4th at p. 850) may inform a Watson harmless error 

inquiry, i.e. whether it is reasonably probable that the trial court 

would have reached the same outcome even under the new law. 

But we made clear in Salazar, supra, 15 Cal.5th at page 425 

that Gutierrez’s clearly indicates standard is not equivalent to 

Watson. 

In short, the posture in Sandoval differs from the situation 

we confront here, and that context matters. The logic of 

Gutierrez and Salazar govern in this circumstance and support 

our conclusion that the clearly indicates standard governs here 

as well. 

F. Lynch Is Entitled to a Remand for Resentencing

Applying the standards articulated above, we conclude 

Lynch is entitled to a remand for resentencing.

The trial court cited eight circumstances in aggravation to 

support imposing the upper term sentence for the principal 

count. (See ante, at p. 5.) The Court of Appeal held that two 

aggravating circumstances, Lynch’s numerous prior convictions 

and his use of a weapon during the commission of the offenses, 

were proven in compliance with current section 1170(b), but the 

remaining six aggravating circumstances were not.20 The 

Attorney General does not dispute these findings here. 

20 In reaching this conclusion, the Court of Appeal held 

that section 1170(b)(2) and (3) require a jury trial on the facts 

underlying three aggravating circumstances related to Lynch’s 

criminal history: (1) he had served prior prison terms, (2) he 

had just been released from prison and was on parole at the time 
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Opinion of the Court by Corrigan, J.

55

As explained, Chapman provides the proper standard of 

review in this case. Lynch is entitled to a reversal and remand 

for resentencing unless, after examining the entire cause, 

including the evidence as to all relevant circumstances (People 

v. Aledamat (2019) 8 Cal.5th 1, 13), we can conclude that the 

omission of a jury trial was harmless beyond a reasonable doubt 

as to every aggravating fact the trial court used to justify an 

upper term sentence. In making this determination, we may 

“ ‘examine[] what the jury necessarily did find and ask[] whether 

it would be impossible, on the evidence, for the jury to find that

without also finding the missing fact as well.’ [Citation.] In 

other words, if ‘ “[n]o reasonable jury” ’ would have found in 

favor of the defendant on the missing fact, given the jury’s actual 

verdict and the state of the evidence, the error may be found 

harmless beyond a reasonable doubt.” (In re Lopez (2023) 14 

Cal.5th 562, 580, quoting Aledamat, at p. 15, first italics added.) 

We may also find the omission harmless if we can conclude 

beyond a reasonable doubt “that the omitted [fact] was 

he committed the crimes, and (3) his prior performance on 

parole was unsatisfactory. We find it unnecessary to address 

the scope of the prior conviction exception, either as a statutory 

or a constitutional matter, and we express no opinion on it here. 

The Attorney General does not challenge the Court of Appeal’s 

conclusion on this point; nor is it determinative to the outcome 

given our conclusion below that Lynch is entitled to a reversal 

and remand based on the trial court’s reliance on other 

aggravating facts that clearly must be proven to the jury under 

the amended statute. 

As noted, the high court recently issued a decision on the 

scope of the Almendarez-Torres exception. (Erlinger, supra, 

602 U.S. ___ [144 S.Ct. 1840].) We are poised to consider the 

issue in People v. Wiley (2023) 97 Cal.App.5th 676, review 

granted March 12, 2024, S283326. 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

56

uncontested and supported by overwhelming evidence.” (Neder, 

supra, 527 U.S. at p. 17.)

We have cautioned that a prejudice analysis following a 

change in the law respecting proof of aggravating circumstances 

“can be problematic. The reviewing court cannot assume that 

the record reflects all of the evidence that would have been 

presented to the jury, or that the defendant had the same 

incentive and opportunity at a sentencing hearing to contest the 

aggravating circumstance. [Citation.] . . . ‘[T]o 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.’ 

[Citation.] . . . ‘Many of the aggravating circumstances 

described in the rules require an imprecise quantitative or 

comparative evaluation of the facts,’ ” with the victim’s 

particular vulnerability being one example. (People v. Boyce

(2014) 59 Cal.4th 672, 728–729, quoting Sandoval, supra, 41 

Cal.4th at p. 840.)

Even under the less rigorous Watson standard, the Court 

of Appeal held that the omission of a jury trial on facts 

underlying three of the aggravating circumstances was 

prejudicial: the crimes involved a high degree of cruelty, 

viciousness, and callousness; the victim was particularly

vulnerable; and Lynch poses a serious danger to society. 

Applying the more rigorous Chapman standard, we likewise 

find prejudice. The jury was not asked to make findings beyond 

a reasonable doubt on these aggravating facts. The defense 

contested the facts supporting each of these circumstances at 

the sentencing hearing. It would not have been impossible, 
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Opinion of the Court by Corrigan, J.

57

given the jury’s findings and the evidence, for the jury to have 

found in Lynch’s favor on one or more of these aggravating facts. 

Indeed, the jury acquitted Lynch of the most serious charge

involving Jasmine Doe, assault with a deadly weapon. Because 

we cannot find the omission of a jury trial harmless beyond a 

reasonable doubt as to every aggravating fact relied upon by the 

trial court to impose an upper term, Lynch’s sentence must be 

reversed. “ ‘The proper remedy for this type of failure of proof —

where . . . [aggravating facts] were “never tried” to the jury — is 

to remand and give the People an opportunity to retry’ ” the 

aggravating facts. (Cooper, supra, 14 Cal.5th at pp. 746–747, 

quoting People v. E.H. (2022) 75 Cal.App.5th 467, 480.) 

We likewise conclude that Lynch is entitled to a remand 

under the Gutierrez standard. We begin with our recent 

comments in Salazar. There, we emphasized that “when the 

applicable law governing the defendant’s sentence has 

substantively changed after sentencing, it is almost always 

speculative for a reviewing court to say what the sentencing 

court would have done if it had known the scope of its 

discretionary powers at the time of sentencing.” (Salazar, 

supra, 15 Cal.5th at p. 425.) We further observed that “[m]ere 

reliance on the length of the original sentence and attendant 

decisions, such as imposing consecutive sentences, imposing 

middle or upper term sentences, or declining to strike 

enhancements, is not sufficient to provide a clear indication of 

what a sentencing court might do on remand” had it been fully 

aware of the presumptive lower term sentence for cases 

involving the enumerated mitigating circumstances. (Id. at p. 

431.) Upon reviewing the record in that case, we concluded that 

the trial court’s other rulings, such as its denial of the 

defendant’s Romero motion and its imposition of consecutive 
PEOPLE v. LYNCH

Opinion of the Court by Corrigan, J.

58

sentences, were not sufficiently aligned with the new factors 

such that the record clearly indicated how the court would have 

exercised its newfound discretion. (Salazar, at pp. 428–430.) 

Here, the trial court found eight circumstances in 

aggravation and none in mitigation. It emphasized, among 

other things, that Lynch had committed repeated acts of 

violence; his use of multiple weapons in this case involved great 

violence, cruelty, viciousness, and callousness; and his criminal 

record demonstrated a serious danger to society. He was on 

parole when he committed the current crimes. Based on these 

findings, the court concluded that an upper term sentence was 

“appropriate.” This record certainly supports a finding that the 

trial court acted within its discretion in choosing between the 

three available terms of punishment under the law as it stood 

at the time of sentencing. But it does not necessarily speak to 

how the court would have exercised its discretion under the 

weight of the presumptive middle term maximum sentence that 

currently exists. (See Falcon, supra, 92 Cal.App.5th at pp. 955–

956.) Notably, the court did not make the kind of definitive 

statements that we have found to clearly indicate it would not 

impose a lesser sentence under any circumstances. (See, e.g., 

People v. Flores (2020) 9 Cal.5th 371, 432 [in finding the 

defendant “ ‘deserving [of] the ultimate sentence of death,’ ” trial 

court observed that the defendant was “ ‘the worst of the 

worst,’ ” that he “ ‘show[ed] absolutely no remorse’ ”and that 

“ ‘[i]t’s as if he has no soul’ ”]; Salazar, supra, 15 Cal.5th at p. 

431 [positing an example where “the sentencing court 

announces that it is aware of forthcoming legislation and then 

explains how it would exercise its discretion under that 

legislation”].) Rather, this record comes within our general 

admonishment in Salazar that “[m]ere reliance on the length of 
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Opinion of the Court by Corrigan, J.

59

the original sentence and attendant decisions, such as imposing 

consecutive sentences, imposing middle or upper term 

sentences, or declining to strike enhancements, is not sufficient 

to provide a clear indication of what a sentencing court might do 

on remand if it had been fully aware of the scope of its 

discretionary powers.” (Salazar, at p. 431.) In other words, it 

would be “speculative” (Salazar, at p. 425) to conclude the trial 

court’s finding that an upper term sentence was “appropriate” 

in the exercise of its broad discretion, clearly indicates that it 

would have found aggravating circumstances sufficiently 

weighty to “justify” an upward departure from the legislative 

mandate for no more than a middle term sentence. The 

reasoning in Gutierrez and Salazar also requires reversal of the 

sentence and remand here.

Further proceedings on remand are to be conducted in 

accordance with the current statutory requirements and the 

defendant given the opportunity for the jury trial, of which he 

was deprived. (Cf. Salazar, supra, 15 Cal.5th at p. 432; Cooper, 

supra, 14 Cal.5th at pp. 746–747.) On remand, the parties 

remain free to introduce at trial all relevant evidence to support 

or contest the factual support for the aggravating circumstances 

set out in the California Rules of Court. The court may rely on 

any properly proven aggravating facts, including prior 

convictions or facts necessarily found by the jury to support a 

verdict on underlying counts and enhancements. The court 

retains its discretion to impose an upper term sentence if it 

concludes that one or more properly proved circumstances 

justify such a sentence. (§ 1170(b)(2).) If it cannot so conclude, 

it may impose no more than a middle term for each of the counts 

on which Lynch stands convicted. (Id., subd. (b)(1).) 
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Opinion of the Court by Corrigan, J.

60

III. DISPOSITION

The judgment of the Court of Appeal affirming Lynch’s 

sentence is reversed. We remand to the Court of Appeal with 

directions that it return the matter to the trial court for further

litigation of the aggravating circumstances and for the court to 

exercise its discretion under current section 1170(b) as indicated 

here. (Sandoval, supra, 41 Cal.4th at p. 858.) 

CORRIGAN, J.

We Concur:

LIU, J.

GROBAN, J.

EVANS, J.
1

PEOPLE v. LYNCH

S274942

Concurring and Dissenting Opinion by Justice Kruger

In its 2022 amendments to California’s determinate 

sentencing law, the Legislature instructed that an elevated, 

upper term sentence may be imposed only if the court 

determines there are aggravating circumstances that justify it. 

(Pen. Code, § 1170, subd. (b)(2) (section 1170(b)(2)), as amended 

by Stats. 2021, ch. 731, § 1.3.) The Legislature also created a 

statutory right to a jury determination of every aggravating fact, 

other than the fact of a prior conviction, on which a sentencing 

court chooses to rely in imposing an upper term sentence. 

(§ 1170(b)(2).) This case requires us to assess the impact of 

these new provisions on the class of criminal cases, like Deandre 

Lynch’s, in which the law took effect after the defendant was 

sentenced but before the judgment had become final on direct 

appeal. 

Although I agree with much of what the majority says on 

this subject, the majority goes too far in holding that a violation 

of the new statutory right to a jury finding on each and every 

aggravating fact is also, perforce, a violation of the federal 

Constitution. That conclusion is contrary to this court’s 

precedent addressing effectively the identical constitutional 

issue. It also misses the foundational point on which the 

precedent rests. The Constitution preserves the historic, 

traditional role of the jury in determining criminal liability. As 

the United States Supreme Court has repeatedly affirmed, that 

traditional role encompasses the facts that the Legislature has 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

2

made essential to punishment for a crime, but it does not extend 

to each and every factor that might inform a sentencing judge’s 

determination whether an otherwise statutorily authorized 

sentence is justified under the circumstances of the case. (E.g., 

Apprendi v. New Jersey (2000) 530 U.S. 466, 481 (Apprendi); see 

People v. Black (2007) 41 Cal.4th 799, 813–814 (Black II); People 

v. Sandoval (2007) 41 Cal.4th 825, 838–839 (Sandoval).) 

Our precedent certainly does not prevent the Legislature 

from expanding the jury right beyond its traditional bounds, as 

it has done in the amendments to section 1170(b)(2). But stare 

decisis does — or at least should — prevent us from treating this 

important legislative innovation as though it were also a matter 

of constitutional command. 

I nonetheless concur in the judgment because, as I see it, 

the majority’s constitutional reasoning is not necessary to its 

conclusion. In the end, what matters is that Lynch had a right 

to a jury trial on all aggravating facts. Whatever the source of 

the right, I do not think we can say that the deprivation of the 

right was harmless. Lynch is therefore entitled to further 

sentencing proceedings in accordance with the new law.

I.

A.

I begin with the constitutional issue. The Sixth 

Amendment to the federal Constitution provides that “[i]n all 

criminal prosecutions, the accused” has “the right to a speedy 

and public trial, by an impartial jury.” (U.S. Const., 6th amend.) 

Meanwhile, the due process clauses of the Fifth and Fourteenth 

Amendments guarantee “for criminal defendants those 

procedural protections well established at common law, 

including the ‘ancient rule’ that the government must prove to a 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

3

jury every one of its charges beyond a reasonable doubt.” 

(Erlinger v. United States (2024) 602 U.S. ___ [144 S.Ct. 1840, 

1849] (Erlinger).) Taken together, these provisions entitle a 

criminal defendant “to ‘a jury determination that [he] is guilty 

of every element of the crime with which he is charged, beyond 

a reasonable doubt.’ ” (Apprendi, supra, 530 U.S. at p. 477.) But 

what qualifies as an “element” that must be so proved? 

Tracing the historical understanding of the scope of the 

jury guarantee, the court in Apprendi concluded the inquiry is 

not controlled by labels but by function. Whether the 

Legislature calls a particular fact an “element” of the offense, or 

a “sentencing factor,” or something else entirely, the rule is the 

same: The right to jury trial in a criminal prosecution 

encompasses every fact, other than the fact of a prior offense,

that the Legislature has made essential to the punishment of a 

charged offense. (Apprendi, supra, 530 U.S. at p. 490; see id. at 

pp. 488–490 [discussing the exception for prior offenses based on 

the holding of Almendarez-Torres v. United States (1998) 523 

U.S. 224].)

1

 Applying this rule, the court in Apprendi struck 

down a 12-year sentence exceeding the otherwise applicable 10-

year statutory maximum where the enhancement was based on 

a judge’s finding, by a preponderance of the evidence, that the 

defendant’s crime was motivated by racial bias. (Apprendi, at 

p. 490.)

1 This rule initially applied only to facts necessary to impose 

a sentence exceeding an otherwise applicable statutory 

maximum. (Apprendi, supra, 530 U.S. at p. 490.) In Alleyne v. 

United States (2013) 570 U.S. 99, 116 (Alleyne), the court 

concluded the same rule applies to facts necessary to the 

imposition of a mandatory minimum.
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

4

In elaborating the rule, the court in Apprendi was careful 

to avoid suggesting that the jury right extends to every fact that

might ultimately affect the sentence a defendant receives. The 

high court made a point of distinguishing between the right to a 

jury determination of facts that alter the maximum sentence

prescribed by law, and facts relevant to a judge’s selection of an 

appropriate sentence within a legally authorized range. The 

court explained: “We should be clear that nothing in this history 

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. We have often noted that judges 

in this country have long exercised discretion of this nature in 

imposing sentence within statutory limits in the individual case. 

See, e.g., Williams v. New York, 337 U.S. 241, 246 (1949) (‘[B]oth 

before and since the American colonies became a nation, courts 

in this country and in England practiced a policy under which a 

sentencing judge could exercise a wide discretion in the sources 

and types of evidence used to assist him in determining the kind 

and extent of punishment to be imposed within limits fixed by 

law’ (emphasis added)).” (Apprendi, supra, 530 U.S. at p. 481.) 

The point, the court emphasized, was that the court’s discretion 

is necessarily “bound by the range of sentencing options 

prescribed by the legislature” that has the power to define 

crimes and their punishment. (Ibid.)

In the years since Apprendi, the high court has continued 

to refine the important rule it announced. But the court has also 

continued to reaffirm the limits of that rule. (See, e.g., Alleyne, 

supra, 570 U.S. at p. 116 [“Our ruling today does not mean that 

any fact that influences judicial discretion must be found by a 

jury. We have long recognized that broad sentencing discretion, 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

5

informed by judicial factfinding, does not violate the Sixth 

Amendment.”]; Dillon v. United States (2010) 560 U.S. 817, 828–

829 [“ ‘[J]udges in this country have long exercised discretion of 

this nature in imposing sentence within [established] limits in 

the individual case,’ and the exercise of such discretion does not 

contravene the Sixth Amendment even if it is informed by judgefound facts.”]; see also, e.g., Erlinger, supra, 602 U.S. at p. ___ 

[144 S.Ct. at p. 1879] (dis. opn. of Jackson, J.) [“A sentencing 

judge today remains free, consistent with Apprendi, to impose 

any punishment within a prescribed sentencing range based on 

whatever facts she deems relevant.”].) In sum: “[T]here is a 

fundamental difference, one underpinning [the high court’s]

entire Apprendi jurisprudence, between facts that must be found 

in order for a sentence to be lawful, and facts that individual 

judges choose to make relevant to the exercise of their discretion.

The former, but not the latter, must be found by the jury beyond 

a reasonable doubt in order ‘to give intelligible content to the 

right of jury trial.’ ” (Rita v. United States (2007) 551 U.S. 338, 

373 (conc. opn. of Scalia, J.) (Rita).) 

B.

Not long after Apprendi was decided, the United States 

Supreme Court began to apply its rule to various determinate 

sentencing schemes, including Washington’s Sentencing Reform 

Act (Blakely v. Washington (2004) 542 U.S. 296), the thenmandatory federal sentencing guidelines (United States v. 

Booker (2005) 543 U.S. 220), and, most directly pertinent here, 

California’s former determinate sentencing law (Cunningham v. 

California (2007) 549 U.S. 270 (Cunningham)). 

Cunningham considered the constitutionality of a former 

version of California’s determinate sentencing law (what the 
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Kruger, J., concurring and dissenting

6

majority refers to as the “original statute”). (See maj. opn., ante,

at p. 8.) At the time, Penal Code former section 1170, 

subdivision (b) provided: “When a judgment of imprisonment is 

to be imposed and the statute specifies three possible terms, the 

court shall order imposition of the middle term, unless there are 

circumstances in aggravation or mitigation of the crime. . . . In 

determining whether there are circumstances that justify 

imposition of the upper or lower 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 set forth

on the record the facts and reasons for imposing the upper or 

lower term.” The California Rules of Court, adopted at the 

direction of the Legislature, further specified that “ ‘[t]he middle 

term shall be selected unless imposition of the upper or lower 

term is justified by circumstances in aggravation or 

mitigation,’ ” and set out a nonexhaustive list of factors for a 

sentencing court to consider in making this determination. 

(Cunningham, supra, 549 U.S. at p. 278, quoting Cal. Rules of 

Court, rule 4.420(a); see also Cunningham, at p. 278, citing Cal. 

Rules of Court, rule 4.421(a)–(c).) The United States Supreme 

Court concluded that this scheme violated Apprendi because it 

permitted the judge to find facts necessary to satisfy the 

statutory aggravation requirement, and thus legally necessary 

to impose an elevated upper term sentence. (Cunningham, at 

pp. 274–275.) 

In the immediate wake of Cunningham, this court had to 

determine what relief to order in cases in which a sentencing 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

7

court had imposed an upper term sentence in reliance on this

former version of the determinate sentencing law. To decide this 

remedial question, the court had to consider the precise scope of 

the constitutional right at issue. Examining the Apprendi line 

of cases, this court in Black II concluded the jury-trial 

requirement “applies only to a fact that is ‘legally essential to 

the punishment’ [citation], that is, to ‘any fact that exposes a 

defendant to a greater potential sentence’ than is authorized by 

the jury’s verdict alone.” (Black II, supra, 41 Cal.4th at p. 812.) 

We explained that this requirement is satisfied “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.” 

(Ibid.; accord, Sandoval, supra, 41 Cal.4th at p. 839.) That is to 

say, once the jury has found — or the defendant has admitted —

facts that authorize an upper term sentence, “the federal 

Constitution permits the trial court to rely upon any number of 

aggravating circumstances in exercising its discretion to select 

the appropriate term by balancing aggravating and mitigating 

circumstances, regardless of whether the facts underlying those 

circumstances have been found to be true by a jury.” (Black II,

at p. 813.) This conclusion, we explained, is consistent with the 

traditional discretion afforded sentencing courts in the 

American system. (Ibid., citing Rita, supra, 551 U.S. at p. 352.) 

The decision was also, as we observed, consistent with the 

conclusions of other state high courts that had addressed similar 

issues and had likewise concluded that the Constitution 

required a jury finding (or else a finding exempt from the jury 

requirement) only as to a single aggravating circumstance. 

(Black II, at p. 813, fn. 3, citing, inter alia, Lopez v. People (Colo. 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

8

2005) 113 P.3d 713, 731; cf. Cunningham, supra, 549 U.S. at 

p. 294, fn. 17 [citing Lopez with approval].)

Black II and Sandoval addressed what was then a 

transitional issue; by the time the cases were decided, the 

Legislature had already amended the determinate sentencing 

law to cure the constitutional infirmity identified in 

Cunningham by committing the selection of the lower, middle, 

or upper term to the full discretion of the sentencing court. (See 

Sandoval, supra, 41 Cal.4th at p. 845, citing Stats. 2007, ch. 3.) 

But the Legislature’s 2022 amendments to section 1170(b)(2), 

which mark a return to a system of constrained authority to 

impose upper term sentences, bring the holdings of Black II and 

Sandoval to the fore.

C.

As the majority notes, most of the Courts of Appeal to 

consider the effect of the 2022 amendments have followed our 

holdings in Black II and Sandoval. They have concluded that 

the Legislature’s return to a regime resembling the pre-2007 law 

means that the federal Constitution now requires a jury to find 

at least one circumstance in aggravation as a prerequisite to an 

upper term sentence. But they have also concluded, in line with 

Black II and Sandoval, that the Constitution otherwise permits 

sentencing courts to make additional findings in deciding 

whether an upper term sentence is appropriate under the 

circumstances of the case. To be sure, section 1170(b)(2) now 

requires that these findings, too, be made by a jury beyond a 

reasonable doubt. But this is because the Legislature has 

chosen to impose this requirement as a matter of state law; it is 

not because the Constitution demands it.
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

9

The majority opines that the Courts of Appeal have been 

mistaken to think Black II and Sandoval have anything to do 

with this case, because the law now is not the same as it was 

then. The majority goes on to conclude that under the current 

version of section 1170(b)(2), the federal Constitution — not just 

state statutory law — requires a jury finding as to every 

aggravating circumstance on which a trial court relies in 

imposing an upper term sentence. (Maj. opn., ante, at pp. 25–

26.)

On this point, I think the Courts of Appeal have gotten it 

right. The constitutional question we confront here is 

essentially identical to the question we decided in Black II and 

Sandoval, so stare decisis requires us to give the same answer.

True, the Legislature did not reenact the determinate 

sentencing law in precisely the same form as at the time those 

cases were decided. But the Legislature did not alter the statute 

in any way that matters to the constitutional inquiry. The basis 

for Black II’s holding was that an upper term sentence is legally 

authorized so long as there exists at least one aggravating

circumstance found in a “constitutionally compliant” manner

(that is, by a jury beyond a reasonable doubt, or else concerning 

the fact of a prior conviction, or else admitted by the defendant 

as part of a plea). As the majority acknowledges (maj. opn., ante, 

at pp. 36–37), following the 2022 amendments, it is still true

that an upper term sentence is statutorily authorized so long as 

there exists at least one aggravating circumstance established 

in accordance with Apprendi. It is also true that a court may, in 

its discretion, consider a wider array of factors to determine 

whether that statutorily authorized upper term sentence is 

justified under the circumstances. It follows that only a single 

circumstance need be established in accordance with Sixth 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

10

Amendment jury factfinding requirements; any further 

requirement that the jury find additional aggravating 

circumstances beyond a reasonable doubt is a creature of state 

statutory law rather than a matter of constitutional mandate. 

In concluding otherwise, the majority makes much of the 

fact that amended section 1170(b)(2) permits a trial court to 

impose an upper term sentence “ ‘only’ when circumstances in 

aggravation ‘justify’ that term.” (Maj. opn., ante, at p. 29.) But

as the majority acknowledges, this “justification” condition is 

not new to the law; the same condition existed in 2007, when 

Black II and Cunningham were decided. The former version of 

the determinate sentencing law spoke of “determining whether 

there are circumstances that justify imposition of the upper or 

lower term” (Pen. Code, former § 1170, subd. (b), italics added), 

and the California Rules of Court repeated the requirement 

more explicitly, providing that “ ‘[t]he middle term shall be 

selected unless imposition of the upper or lower term is justified

by circumstances in aggravation or mitigation’ ” (Cunningham, 

supra, 549 U.S. at p. 278, quoting Cal. Rules of Court, rule 

4.420(a), italics added). 

Black II made clear that the use of the term “justify” does 

not mean that each and every fact that might inform a judge’s 

sentencing discretion somehow becomes statutorily 

“ ‘ “essential” ’ ” to an upper term sentence. (Black II, supra, 41 

Cal.4th at p. 814; see Erlinger, supra, 602 U.S. at p. ___

[144 S.Ct. at p. 1850].) In a statutory scheme in which a judge 

is permitted to impose an upper term sentence based on a single 

aggravating circumstance, this is a logical impossibility. The 

phrase simply conveys that, once a qualifying aggravator has 

“raise[d] the maximum permissible sentence from the middle 

term to the upper term,” the sentencing court must exercise “its 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

11

discretion in selecting the appropriate term from among those 

authorized for the defendant’s offense,” and decide whether the 

legally authorized upper term is warranted under the 

circumstances. (Black II, supra, 41 Cal.4th at p. 816.) This is 

how the statute operated then, and it is still how it operates now.

The majority does not dispute any of this, but argues that 

various changes in the amended statutory language “reanimate” 

the argument we rejected in Black II about the constitutional 

significance of the statutory reference to aggravating facts 

“justif[ying]” an upper term sentence. (Maj. opn., ante, at p. 36.) 

These minute adjustments in wording make no functional 

difference. In the end, the only pertinent difference between the 

law at issue in Black II and Sandoval and current law is that 

the latter requires a jury trial on all aggravating circumstances

on which a sentencing court relies in finding an upper term 

sentence justified, while the former does not. (See maj. opn., 

ante, at pp. 35–36.) The fact that a statute may require 

something does not, of course, necessarily mean that the federal 

Constitution requires it, too. But this is essentially what the 

majority holds when it reads the new statutory jury right on 

aggravating facts into the federal Constitution. 

The majority’s reasoning based on the statutory jury right 

appears to go something like this: The federal Constitution 

requires jury trial only as to facts that function like elements of 

the offense, in that they are legally essential to the punishment. 

In the amended determinate sentencing law, the Legislature 

has decided to require jury trial on all aggravating facts — that 

is, whatever facts the trial court deems relevant to its decision 

to impose the upper term sentence. Therefore, the Legislature 

must have intended to make all of these aggravating facts 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

12

legally essential to the punishment and for them to “effectively 

function like elements of a crime.” (Maj. opn., ante, at p. 31.) 

There are significant problems with this logic, beginning 

with the fact that it does not reflect how the statute actually 

works. As was true of the original statute considered in 

Cunningham, the amended determinate sentencing law does 

not specify what aggravating circumstances a sentencing court 

may rely on — indeed, it does not specify what constitutes an 

aggravating circumstance at all. (See § 1170(b)(2).) Rather, the 

California Rules of Court, adopted by the Judicial Council, sets 

out a nonexhaustive list of factors that may be considered 

circumstances in aggravation, while permitting judges broad 

discretion to find any other factors, as long as they are 

“reasonably relate[d] to the defendant or the circumstances 

under which the crime was committed.” (Cal. Rules of Court, 

rule 4.421(c).) And more importantly, the law does not specify 

how many of these aggravating circumstances, beyond one, a 

sentencing court must cite to justify a particular upper term 

sentence. 

The majority is, of course, correct that a sentencing judge 

may determine in a particular case that an upper term is not 

justified by a particular aggravating circumstance. (Maj. opn., 

ante, at pp. 38–39.) But that does not change the reality that a 

judge is statutorily authorized to impose an upper term sentence 

if a single aggravating fact is found. Whether that aggravating 

fact alone suffices, or whether additional facts are needed, is a 

matter left to the sentencing court’s discretion. Again, if the 

court can exercise its discretion to impose an upper term 

sentence based on a single aggravating fact, it simply cannot be 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

13

said that the Legislature has made additional aggravating facts 

essential to the sentence.

2

And while the majority is correct that the statute now 

requires that all aggravating facts be pleaded and proved in the 

same way as elements of an offense — that is, to a jury, beyond 

a reasonable doubt — they are not actually elements in the 

sense that matters to the Sixth Amendment right to a jury 

determination of guilt for a crime. That is to say, section 

1170(b)(2) does not create a crime whose elements consist of 

some indeterminate set of aggravating facts — any facts at all —

but only so long as those facts have been found by a jury and are 

deemed pertinent by a judge. If I am wrong about this, and 

section 1170(b)(2) has in fact created such a crime, then the 

Legislature has yielded to judges a truly impressive amount of 

its power to define crimes and their punishment. (But see

Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 [“ ‘ “[T]he 

power to define crimes and fix penalties is vested exclusively in 

the legislative branch.” ’ ”]; In re Brown (1973) 9 Cal.3d 612, 624, 

2 Even accepting, for a moment, the majority’s premise that 

the Sixth Amendment jury right attaches to any fact the 

sentencing court (as opposed to the Legislature) regards as 

dispositive in justifying an upper term sentence, the majority 

does not explain why other, nondispositive aggravating facts 

must also be submitted to the jury. (Maj. opn., ante, at pp. 38–

39.) A trial court may cite many aggravating circumstances in 

imposing an upper term — indeed, here, the trial court cited 

eight — without regarding any individual fact as critical to its 

exercise of discretion. The majority never explains why these 

aggravating facts, too, must be regarded as “legally necessary” 

to the sentence, and thus subject to the Sixth Amendment jury 

trial requirement.
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

14

citing Pen. Code, § 6 [“Only the Legislature and not the courts 

may make conduct criminal.”].)

But the central flaw with the majority’s logic is that it 

never meaningfully addresses the point underlying our prior 

decisions in Black II and Sandoval: That “there is a 

fundamental difference, one underpinning [the high court’s]

entire Apprendi jurisprudence, between facts that must be found 

in order for a sentence to be lawful, and facts that individual 

judges choose to make relevant to the exercise of their 

discretion.” (Rita, supra, 551 U.S. at p. 373 (conc. opn. of Scalia, 

J.).) Case after case has made clear that the Sixth Amendment 

jury right is designed to secure the historic role of the jury in 

determining the facts the Legislature has made essential to 

criminal punishment. But in the American legal tradition, the 

right of jury trial has not traditionally been thought to extend to 

the types of discretionary judicial determinations at issue in this 

case, regarding what sort of circumstances justify the imposition 

of an otherwise legally authorized sentence. (See, e.g.,

Apprendi, supra, 530 U.S. at p. 481, citing Williams v. New 

York, supra, 337 U.S. at p. 246; Alleyne, supra, 570 U.S. at 

p. 116.) Indeed, as we explained in Sandoval, in California, the 

inquiry into aggravating circumstances has historically 

included various kinds of cross-case comparative judgments —

how serious is the defendant’s crime relative to other violations 

of the same statute? How vulnerable was the victim? How 

concerning is the defendant’s criminal history compared to 

others’? — that juries have not traditionally been tasked with, 

nor thought “well suited” to make. (Sandoval, supra, 41 Cal.4th 

at p. 849.)

The Legislature is of course not bound to conform to this

tradition; it is entitled to take a different approach. But we 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

15

should recognize the Legislature’s statutory innovation for what 

it is — a legislative expansion of the jury right as it has 

traditionally been understood — rather than attempting to

squeeze it into a constitutional framework that does not fit with 

binding precedent. 

In sum, I think the appellate courts had understood our 

precedent correctly: The extension of a jury right in section 

1170(b)(2) as to every aggravating circumstance upon which a 

trial court relies in imposing an upper term sentence goes 

further than the Sixth Amendment requires. As long as a single 

aggravating circumstance would have been found true by the 

jury or admitted to by the defendant, the Sixth Amendment is 

satisfied. The Legislature was, of course, free to extend such a 

right beyond the constitutional floor. But to the extent the 

statute exceeds constitutional requirements, the failure to 

submit a particular aggravating fact to the jury is error of state 

law, not a violation of the federal Constitution. 

II.

Despite my disagreement with the majority’s 

constitutional analysis, I concur in the judgment. In my view, 

the characterization of the jury right in section 1170(b)(2) is not 

determinative of the outcome of this case.

Regardless of the source of the right, the fact is that 

California law now guarantees a defendant the right to a jury 

finding on every aggravating fact cited in support of an upper 

term sentence. The only reason the source of the jury right has 

any relevance here is because California law and federal law 

prescribe different standards for determining whether an error 

in the proceedings requires reversal of the judgment. We have 

said that violations of state law require reversal if it is 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

16

“reasonably probable” the outcome would have been different in 

the absence of the error (People v. Watson (1956) 46 Cal.2d 818, 

836), while violations of the federal Constitution require 

reversal if the error was not “harmless beyond a reasonable 

doubt” (Chapman v. California (1967) 386 U.S. 18, 24).

Although it is often said that the former standard is “less 

stringent” than the former (e.g., People v. Hendrix (2022) 13 

Cal.5th 933, 944 (Hendrix)), it is a mistake to suppose that the 

two standards are defined by their opposition to one another. It 

is equally a mistake to suppose that these prejudice standards 

mean that the requirements of state law should, as a rule, be 

taken less seriously than the requirements of federal law. 

The application of the Watson “reasonable probability” 

standard naturally varies with the nature of the error. Here, 

the error is the absence of a finding “beyond a reasonable doubt.” 

(§ 1170(b)(2).) A reviewing court must therefore determine if it 

is reasonably probable that a jury would have found each 

additional aggravating circumstance true beyond a reasonable 

doubt, and if not, whether it is reasonably probable that the 

judge would have imposed the same sentence anyway. “ ‘ “ ‘[A]

“probability” in this context does not mean more likely than not, 

but merely a reasonable chance, more than an abstract 

possibility.’ ” ’ ” (Hendrix, supra, 13 Cal.5th at p. 944.) 

Here, as the majority notes, the trial court cited eight 

circumstances in aggravation when sentencing Lynch to the 

upper term: “(1) the crimes involved a high degree of cruelty, 

viciousness, and callousness because Lynch had struck the 

victim with a table leg, an extension cord, and a broomstick (see 

Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was 

particularly vulnerable (id., rule 4.421(a)(3)); (3) Lynch used a 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

17

weapon when committing the crimes (id., rule 4.421(a)(2)); 

(4) his conduct and prior record indicate a serious danger to 

society (id., rule 4.421(b)(1)); (5) his prior convictions are 

numerous (id., rule 4.421(b)(2)); (6) he had served prior prison 

terms (id., rule 4.421(b)(3)); (7) he was on parole at the time he 

committed the crimes (id., rule 4.421(b)(4)); and (8) his prior 

performance on parole was unsatisfactory (id., rule 4.421(b)(5)).” 

(Maj. opn., ante, at p. 5.) Applying the Watson standard of 

review, the Court of Appeal held that it could not “say with 

confidence” that a jury would find that Lynch’s crimes involved 

a high degree of cruelty, that Lynch poses a serious danger to 

society, and that his victim was particularly vulnerable. I 

agree — and, indeed, although my colleagues disagree on other 

points, there is no dispute as to this one. As the Court of Appeal 

noted, these three aggravating circumstances involve 

“complicated, subjective determinations,” which makes it 

difficult to say that there is no reasonable probability that a jury 

would have not found these aggravating circumstances true 

beyond a reasonable doubt.

The Court of Appeal found that as to the remaining five 

aggravating circumstances, there either was no error in proof 

under Penal Code section 1170, subdivision (b) or that the error 

was harmless under the Watson standard. Because there is at 

least one aggravating fact proved in compliance with the Sixth 

Amendment, there is no federal constitutional issue; the 

question of harmlessness depends entirely on application of 

Watson’s reasonable probability standard. The Court of Appeal 

concluded, and the Chief Justice agrees (dis. opn. of Guerrero, 

C. J., post, at p. 38), that there was not a reasonable probability 

that the trial court would have selected a lesser sentence based 

on these five aggravating circumstances. 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

18

I take a different view of how Watson applies in this 

context. As an initial matter, we must be careful about relying 

on a factual record made when the defendant may not have had 

the same “incentive and opportunity” to contest aggravating 

circumstances that he would have had if section 1170(b)(2) had 

been in effect at the time of his trial and sentencing. (Sandoval, 

supra, 41 Cal.4th at p. 839; see id. at pp. 839–840.) But even 

assuming that all five of the aggravating circumstances the trial 

court cited in this case remain valid under current law, I do not 

think we can say with confidence that the trial court would have 

imposed the same sentence had it been aware of the law’s new 

instructions for the exercise of its sentencing discretion. The 

trial court, operating under the former law, cited an array of 

circumstances to support its decision to impose the upper term. 

We have no way of knowing whether the trial court would have 

imposed the same sentence based solely on the subset of 

aggravating facts that are exempt from jury-trial requirements 

or as to which the deprivation of a jury trial could reliably be 

said to be harmless. This is particularly so because the amended 

law creates a presumption against the upper term, whereas the 

trial court at the time of Lynch’s sentencing had broad discretion 

to select among the three terms. (See maj. opn., ante, at pp. 10–

11, 51.) Certainly the trial court could have imposed the same 

sentence. But would it? Perhaps so, but if there is a reasonable 

chance that it would not, then the error is not harmless.

As the Chief Justice notes, the trial court “specifically 

emphasized” Lynch’s parole status and numerous prior 

convictions, both of which remain valid aggravating 

circumstances given the evidence introduced at trial. (Dis. opn.

of Guerrero, C. J., post, at p. 37.) But it also cited all eight 

aggravating circumstances when stating the upper term was 
PEOPLE v. LYNCH

Kruger, J., concurring and dissenting

19

appropriate. Absent a more definitive indication of intent from 

the trial court — for example, specifying that it would have 

imposed the upper term sentence based on those two 

aggravating circumstances alone — I do not think we can say 

there is no reasonable probability that the court would have

exercised its discretion differently had it been aware of the law 

now in effect.

3

 

For this reason, I agree with the majority’s ultimate 

conclusion that the Court of Appeal’s judgment must be 

reversed. But because I do not join in its conclusion that every 

violation of section 1170(b)(2)’s jury trial guarantee is also a 

violation of the federal Constitution, I concur in the judgment 

only.

 KRUGER, J.

I Concur:

JENKINS, J.

3 Even in cases that raise no concerns about which 

aggravating facts the sentencing court could have relied on in 

imposing an upper term sentence, I agree with the majority that 

People v. Gutierrez (2014) 58 Cal.4th 1354, 1390–1391 requires 

reversal where the record contains no clear indication that the 

trial court would have imposed the same upper term sentence 

had it been aware of the new legislative presumption against 

the upper term. (Maj. opn., ante, at pp. 53–54.) 
1

PEOPLE v. LYNCH

S274942

Dissenting Opinion by Chief Justice Guerrero

After a jury convicted defendant Deandre Lynch of three 

counts of domestic violence and one count of assault against his 

former girlfriend, the trial court found multiple aggravating 

facts and sentenced Lynch to an upper term of imprisonment. 

The aggravating facts found by the court were Lynch’s 

numerous prior criminal convictions; his prior prison terms; his 

status on parole at the time of the offenses; his poor performance 

on parole; the existence of a particularly vulnerable victim; 

Lynch’s use of a weapon; the presence of a high degree of cruelty, 

viciousness, and callousness; and violent conduct that reflects a 

serious danger to society. The court found no facts in mitigation.

The majority concludes that, under California’s current 

determinate sentencing law (DSL; Pen. Code, § 1170),1each of 

the aggravating facts found by the trial court was “ ‘necessary’ ” 

to the imposition of the upper term sentence on Lynch, and each 

is therefore covered by the Sixth Amendment’s right to a jury 

trial. (Maj. opn., ante, at p. 31.) I respectfully disagree.

The Sixth Amendment guarantees a criminal defendant 

the right to a jury trial on any fact, except a prior conviction, 

that is “necessary to the imposition of an elevated sentence.” 

(Cunningham v. California (2007) 549 U.S. 270, 294 

1 Subsequent undesignated statutory references are to the 

Penal Code.
PEOPLE v. LYNCH

Guerrero, C. J., dissenting

2

(Cunningham).) In other words, “every defendant has the right

to insist that the prosecutor prove to a jury all facts legally 

essential to the punishment.” (Blakely v. Washington (2004) 

542 U.S. 296, 313 (Blakely), second italics added.)

Under the current DSL, as the majority confirms, “[o]nly 

a single aggravating factor is required to impose the upper 

term.” (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband); 

see maj. opn., ante, at pp. 36–37, 59.) In other words, “the 

existence of a single aggravating circumstance is legally 

sufficient to make the defendant eligible for the upper term.” 

(People v. Black (2007) 41 Cal.4th 799, 813 (Black II).) Nothing 

in the current DSL requires the existence of multiple 

aggravating facts in order to impose an upper term of 

imprisonment. Even if one (or more) of the aggravating facts 

here had not been proven, the trial court would still have been 

able to legally impose the upper term on Lynch based on the 

remaining aggravating facts. This circumstance distinguishes 

aggravating facts in this context from the elements of a criminal 

offense, each of which is essential. The majority errs by 

conflating the two.

This court comprehensively explored these issues less 

than two decades ago in two companion cases, Black II, supra,

41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825 

(Sandoval). We held that “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[2] and its progeny, any additional 

factfinding engaged in by the trial court in selecting the 

2 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
PEOPLE v. LYNCH

Guerrero, C. J., dissenting

3

appropriate sentence among the three available options does not 

violate the defendant’s right to jury trial.” (Black II, at p. 812.) 

We expressly rejected the argument that the Sixth Amendment 

was implicated by any additional aggravating facts used by the 

trial court to “justify” the upper term. (Black II, at p. 814.) The 

United States Supreme Court has likewise confirmed that the 

Sixth Amendment does not apply to factual findings made by a 

court in the course of selecting among available alternatives: 

“While such findings of fact may lead judges to select sentences 

that are more severe than the ones they would have selected 

without those facts, the Sixth Amendment does not govern that 

element of sentencing.” (Alleyne v. United States (2013) 

570 U.S. 99, 113, fn. 2 (Alleyne).)

The majority asserts that the requirements of the current 

DSL “ha[ve] overtaken the viability of Black II and Sandoval on 

this issue” (maj. opn., ante, at p. 25), but the current DSL does 

not change which facts are required to impose an upper term 

sentence. It does not, for example, identify any specific fact or 

any threshold number of facts that must be established. 

Instead, the current DSL changes the manner by which such 

facts must be proved. This change is significant, and it confers 

an important new right on criminal defendants in California. 

But it does not implicate the Sixth Amendment because it does 

not affect the facts necessary to impose an upper term. Just as 

in Black II and Sandoval, only a single aggravating fact is 

necessary under the current DSL for a trial court to impose an 

upper term. Thus, only a single aggravating fact must be proved 

in compliance with the Sixth Amendment. The majority 

provides no persuasive reason to depart from these precedents.

I would therefore conclude that a trial court errs under the 

federal Constitution only if it imposes an upper term sentence 
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Guerrero, C. J., dissenting

4

and no aggravating facts have been proved in accordance with 

the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at pp. 837–

838.) If one aggravating fact has been properly proved under 

the Sixth Amendment, and a trial court relies on additional 

aggravating facts in imposing an upper term that do not meet 

the requirements of the current DSL, the trial court has erred, 

but the error implicates only state law. (See People v. Epps 

(2001) 25 Cal.4th 19, 29 (Epps) [denial of a state right to jury 

trial does not implicate the federal Constitution].) I disagree 

with the majority that the failure to adhere to the current DSL’s 

jury trial requirement is automatically error under the federal 

Constitution as well.

An error under state law is normally reviewed under the 

familiar standard in People v. Watson (1956) 46 Cal.2d 818, 836 

(Watson). For example, “When a trial court has given both 

proper and improper reasons for a sentence choice, a reviewing 

court will set aside the sentence only if it is reasonably probable 

that the trial court would have chosen a lesser sentence had it 

known that some of its reasons were improper.” (People v. Price

(1991) 1 Cal.4th 324, 492 (Price).)

The majority concludes that the Watson standard is

inadequate here because the current DSL identifies the middle 

term as the statutory maximum, absent any aggravating facts, 

and thereby alters the scope of the trial court’s sentencing 

discretion. (Maj. opn., ante, at pp. 48–52.) The majority asserts 

that reversal is required in cases to which the current DSL 

retroactively applies unless the record clearly indicates the trial 

court would have imposed the same sentence had it been aware 

of this new constraint. The “clearly indicates” standard 

normally applies where there has been a substantial or dramatic 

change in the trial court’s discretion. (See People v. Salazar
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Guerrero, C. J., dissenting

5

(2023) 15 Cal.5th 416, 426 (Salazar); People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391 (Gutierrez).) Here, by contrast, we have 

already held that an analogous change in discretion was “not 

substantial” and would result in the same sentence “in all but 

the rarest of cases.” (Sandoval, supra, 41 Cal.4th at p. 850.) 

The “clearly indicates” standard does not apply. The majority’s 

embrace of this standard is unwarranted and will result in 

numerous remands and unnecessary sentencing proceedings 

where, as here, there is no reasonable probability of a different 

result.

For these reasons, and as explained further below, I would 

affirm the judgment of the Court of Appeal. Lynch concedes that 

one aggravating fact — his numerous prior convictions — was 

proved in accordance with the Sixth Amendment and the 

current DSL. The Court of Appeal therefore correctly held that 

no federal constitutional error had occurred. It further held that 

any state law error was harmless under Watson because the jury 

did or would have found four additional aggravating facts: 

Lynch’s weapons use, his status on parole at the time of offenses, 

his poor performance on parole, and his prior prison terms. 

Given these facts, and the trial court’s remarks at sentencing, 

the Court of Appeal found it was not reasonably probable the 

court would have selected a lesser sentence if it had applied the 

current DSL. I agree, and I therefore respectfully dissent from 

the majority’s conclusion to reverse.

I. THE SIXTH AMENDMENT AND

CALIFORNIA’S CURRENT DSL

The Sixth Amendment, as applied to the states under the 

due process clause of the Fourteenth Amendment, guarantees 

the right of a criminal defendant to a trial by an impartial jury. 
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Guerrero, C. J., dissenting

6

(Duncan v. Louisiana (1968) 391 U.S. 145, 149.) “Taken 

together,” these amendments “indisputably entitle a criminal 

defendant to ‘a jury determination that [he] is guilty of every 

element of the crime with which he is charged, beyond a 

reasonable doubt.’ ” (Apprendi, supra, 530 U.S. at p. 477; 

accord, Erlinger v. United States (2024) 602 U.S. ___, ___

[144 S.Ct. 1840, 1849] (Erlinger).)

Apprendi held that the federal right to a jury trial extends

not only to the elements that determine a defendant’s guilt or 

innocence of the crime, but to any fact (except a prior conviction) 

that increases the potential penalty for a crime. “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, supra, 530 U.S. at p. 490.) “[T]he relevant inquiry is 

one not of form, but of effect — does the required finding expose 

the defendant to a greater punishment than that authorized by 

the jury’s guilty verdict?” (Id. at p. 494.)

The relevant statutory maximum is the maximum 

sentence a judge “may impose without any additional findings. 

When a judge inflicts 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.” (Blakely, supra, 542 U.S. at 

p. 304; accord, Erlinger, supra, 144 S.Ct. at p. 1850.)

However, when a judge selects among alternatives, each 

of which is authorized by the jury’s verdict, the Sixth 

Amendment is not implicated even if the judge is persuaded by 

additional facts to select the harshest available punishment. In 

that situation, a judge “may implicitly rule on those facts he 
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Guerrero, C. J., dissenting

7

deems important to the exercise of his sentencing discretion. 

But the facts do not pertain to whether the defendant has a legal 

right to a lesser sentence — and that makes all the difference 

insofar as judicial impingement upon the traditional role of the 

jury is concerned.” (Blakely, supra, 542 U.S. at p. 309; accord, 

Alleyne, supra, 570 U.S. at p. 113, fn. 2.)

Under the current DSL, where a statute prescribes three 

possible terms of imprisonment, “the court shall, in its sound 

discretion, order imposition of a sentence not to exceed the 

middle term, except as otherwise provided” in the following 

subdivision. (§ 1170, subd. (b)(1).) That following subdivision 

explains, “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., 

subd. (b)(2).) The statute goes on to exempt a court’s 

consideration of “the defendant’s prior convictions in 

determining sentencing based on a certified record of conviction” 

from the jury trial requirement. (Id., subd. (b)(3).)

I agree with the majority that “[u]nder the current statute 

the middle term is the maximum term that can be imposed 

unless additional factual determinations are made. It is the 

requirement of additional factfinding that brings the Sixth 

Amendment into play.” (Maj. opn., ante, at p. 29.) If no 

aggravating facts have been proved in accordance with the Sixth 

Amendment, it is error under the federal Constitution for a trial 

court to impose a sentence exceeding the middle term. (Blakely, 

supra, 542 U.S. at p. 304.) Such an error is reviewable under 
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Guerrero, C. J., dissenting

8

the Chapman standard for prejudice applicable to federal 

constitutional errors. (Washington v. Recuenco (2006) 548 U.S. 

212, 220; see Neder v. United States (1999) 527 U.S. 1, 4 (Neder); 

Chapman v. California (1967) 386 U.S. 18, 23 (Chapman).)

The nature of this additional factfinding is determined by 

California sentencing law, which dictates what is legally 

required for a court to impose the upper term. “[T]he essential 

Sixth Amendment inquiry is whether a fact is an element of the 

crime. When a finding of fact alters the legally prescribed 

punishment so as to aggravate it, the fact necessarily forms a 

constituent part of a new offense and must be submitted to the 

jury.” (Alleyne, supra, 570 U.S. at pp. 114–115.)

Under California law, as the majority affirms, “[o]nly a 

single aggravating factor is required to impose the upper term.” 

(Osband, supra, 13 Cal.4th at p. 728; see maj. opn., ante, at 

pp. 36–37, 59.) Thus, if a single aggravating fact has been 

proved in accordance with the Sixth Amendment (for example, 

by jury trial), all of the facts legally required for the upper term 

have been established, and the statutory maximum penalty is 

the upper term. A trial court that imposes the upper term in 

this situation does not run afoul of the Sixth Amendment 

because the upper term is authorized by the jury’s finding of an 

aggravating fact. The upper term does not exceed “the 

maximum sentence a judge may impose solely on the basis of 

the facts reflected in the jury verdict or admitted by the 

defendant.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) 

The court has not “inflict[ed] punishment that the jury’s verdict 

alone does not allow.” (Id. at p. 304.)

In other words, if one aggravating fact has been found in 

compliance with the Sixth Amendment, the jury (or judge) has 
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Guerrero, C. J., dissenting

9

made all of the essential factual findings required to support an 

upper term sentence. (See Erlinger, supra, 144 S.Ct. at p. 1850.) 

The defendant has no “legal right to a lesser sentence” under 

California law “and that makes all the difference insofar as 

judicial impingement upon the traditional role of the jury is 

concerned.” (Blakely, supra, 542 U.S. at p. 309.)

The majority attempts to minimize the significance of a

single aggravating fact by emphasizing that such a fact is only 

sufficient “if, in the court’s discretion, that circumstance alone

justifies a sentence exceeding the middle term.” (Maj. opn., ante, 

at p. 36.) But this statement simply confirms that, under the 

current DSL, proof of a single aggravating fact exposes a 

defendant to the prospect of the upper term. The statute does 

not require any additional showing. It leaves the significance of 

any additional aggravating facts to the discretion of the trial 

court.

Because the existence of a single properly proved 

aggravating fact exposes a defendant to the upper term under 

the current DSL, the trial court’s reliance on one or more 

additional aggravating facts to support the upper term sentence 

does not implicate the Sixth Amendment. Such reliance does 

not “increase[] the penalty for a crime beyond the prescribed 

statutory maximum.” (Apprendi, supra, 530 U.S. at p. 490.) 

With proof of one aggravating fact, the statutory maximum is 

already the upper term. Judicial factfinding regarding 

additional aggravating facts cannot increase the maximum 

beyond that. As the high court has advised, “the relevant 

inquiry is one not of form, but of effect — does the required 

finding expose the defendant to a greater punishment than that 

authorized by the jury’s guilty verdict?” (Id. at p. 494.) Where 

the jury’s verdict (or other Sixth Amendment-compliant 
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Guerrero, C. J., dissenting

10

proceeding) reflects at least one aggravating fact, the trial 

court’s consideration of additional aggravating facts does not 

expose the defendant to any greater punishment than already 

authorized, so it does not run afoul of the Sixth Amendment. As 

the high court recently confirmed, it is only “ ‘[a] fact that 

increases’ a defendant’s exposure to punishment, whether by 

triggering a higher maximum or minimum sentence,” that

“must ‘be submitted to a jury’ and found unanimously and 

beyond a reasonable doubt.” (Erlinger, supra, 144 S.Ct. at 

p. 1851, first italics added.)3

While additional facts may make it more likely a trial 

court will impose the upper term, the United States Supreme 

Court has held that such a likelihood does not create a Sixth 

Amendment concern. “While such findings of fact may lead 

judges to select sentences that are more severe than the ones 

they would have selected without those facts, the Sixth 

Amendment does not govern that element of sentencing.” 

(Alleyne, supra, 570 U.S. at p. 113, fn. 2.) The high court has 

never held that “any fact that influences judicial discretion must 

be found by a jury. [It has] long recognized that broad 

sentencing discretion, informed by judicial factfinding, does not 

violate the Sixth Amendment.” (Id. at p. 116.)

Indeed, despite the additional procedural requirements in 

the current DSL to prove aggravating facts, the statute 

3 The majority is mistaken to the extent it implies Erlinger

“confirms [its] view” of the current DSL. (Maj. opn., ante, at 

p. 32.) As relevant here, Erlinger reiterates the “firmly 

entrenched” principles in “Apprendi and Alleyne,” as well as

other Sixth Amendment precedents. (Erlinger, supra, 144 S.Ct. 

at p. 1851.) The high court’s precedents, including Erlinger, do 

not support the majority’s conclusions.
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Guerrero, C. J., dissenting

11

continues to confer broad discretion on the trial court to 

determine the significance of those facts. The current DSL does 

not identify any particular aggravating fact, or any number of 

aggravating facts, that must be found in order to impose an 

upper term sentence. It therefore remains the case that only a 

single aggravating fact must be found in order for a trial court 

to impose the upper term. Because the current DSL does not 

identify any required fact beyond that single aggravating fact, 

no further showing is necessary to expose a defendant to the 

upper term in accordance with the Sixth Amendment.

The majority argues that “a sentencing scheme need not 

set out a mandatory list of aggravating facts that must be proved 

in every case in order for Apprendi’s protections to apply.” (Maj. 

opn., ante, at p. 40.) It is true that a “list” is not necessary, but 

the scheme must identify the consequences of a given factual 

finding (in general or in specific) to trigger the Sixth 

Amendment. If a scheme leaves the consequences to the 

discretion of the trial court, such findings are not akin to 

elements of an offense and the Sixth Amendment is not 

implicated. (See Erlinger, supra, 144 S.Ct. at p. 1880 (dis. opn. 

of Jackson, J.) [“Even after Apprendi, a sentencing judge can 

still find and consider any fact — including sentencing factors 

defined by the legislature — so long as the consequence of that 

fact is not mandatory but rather left to the judge’s discretion”].)

The majority asserts that, under the current DSL, “the 

aggravating facts that would ‘justify’ an upper term sentence 

(§ 1170, subd. (b)(2)) are the same facts that ‘expose’ the 

defendant to imposition of that sentence in the trial court’s 

discretion. [Citation.] Stated another way, under the current 

statute the aggravating facts used to ‘justify’ an upper term 

sentence are ‘necessary to [its] imposition,’ [citation] and 
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Guerrero, C. J., dissenting

12

effectively function like elements of a crime.” (Maj. opn., ante, 

at p. 31.) These assertions are contradicted by the majority’s 

recognition that a single aggravating fact exposes a defendant 

to the upper term. They confuse the available punishment with 

the setting of the punishment actually imposed. But, as the high 

court has emphasized, “ ‘[E]stablishing what punishment is 

available by law and setting a specific punishment within the 

bounds that the law has prescribed are two different things.’ ” 

(Alleyne, supra, 570 U.S. at p. 117.) The upper term is available 

by virtue of a single aggravating fact. Setting the specific 

punishment within that statutory maximum is a matter of state 

law only.

The majority emphasizes that the statute requires that 

“all of the aggravating circumstances that the court actually 

relies on to justify the sentence” must be “proven as the statute 

requires.” (Maj. opn., ante, at p. 30.) It makes much of the fact 

that the current DSL does not “authorize[]” a trial court to 

consider aggravating facts not found in compliance with its 

terms. (Maj. opn., ante, at p. 41.) These statements merely 

reiterate the statute’s procedural requirements. If a state 

requirement for a jury trial on a fact, rather than the existence 

of a fact itself, were sufficient to implicate the Sixth 

Amendment, the violation of every state jury trial right would 

automatically violate the Sixth Amendment. But it does not. 

For example, criminal defendants in California enjoy a statutory 

right to a jury trial on the fact of prior convictions alleged as part 

of a sentencing enhancement or the “Three Strikes” law. 

(§§ 1025, 1158.) Thus, under California law, a court may not use 

those prior conviction allegations at sentencing unless they were 

admitted by the defendant or proven at trial — just like a court 

cannot use an aggravating fact at sentencing that was not 
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Guerrero, C. J., dissenting

13

admitted or proven at trial under the current DSL. But, if a 

court nonetheless uses the prior conviction allegation at 

sentencing, the error is one of state law only. (Epps, supra, 

25 Cal.4th at p. 29.) The same holds true for additional 

aggravating facts under the current DSL.4

It is important to recognize that the Sixth Amendment 

right to a jury trial exists separately from state procedural rules. 

The Sixth Amendment right is triggered not by a state statute

that provides a jury right, but by the substantive factual 

showing necessary to impose a given punishment (here, the 

upper term). That is, the Sixth Amendment guarantees a jury 

trial on all necessary facts, regardless of whether the state 

4 To support its analysis, the majority offers an example

that it believes shows how a trial court would violate the Sixth 

Amendment by imposing the upper term, even where one 

aggravating fact was proved in accordance with the Sixth 

Amendment. (Maj. opn., ante, at p. 38.) In the majority’s

example, despite the existence of one properly proved 

aggravating fact, the trial court determines that the upper term 

is only justified by the existence of a second aggravating fact not 

proved in accordance with the Sixth Amendment. (Maj. opn., 

ante, at p. 38.) The majority’s example does not establish a 

Sixth Amendment violation. It is undisputed that such a court 

could have imposed the upper term given the properly proved 

fact. Nothing in the current DSL requires the existence of a 

second properly proved fact. Any such requirement is purely a 

matter of the trial court’s discretion. Because the statute leaves 

the requirement of additional aggravating facts in the discretion 

of the trial court, they are not akin to the elements of a criminal 

offense and proof of such facts does not implicate the Sixth 

Amendment. (Erlinger, supra, 144 S.Ct. at p. 1850; Alleyne, 

supra, 570 U.S. at p. 113, fn. 2; id. at p. 117; Blakely, supra, 

542 U.S. at p. 309.) Contrary to the majority’s bald assertion

(maj. opn., ante, at p. 39), the Sixth Amendment absolutely can 

be satisfied where the statute is not.
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Guerrero, C. J., dissenting

14

provides such a jury trial. If the state does not provide a jury 

trial right on a fact necessary to impose an upper term, the Sixth 

Amendment will still require it. (See, e.g., Cunningham, supra,

549 U.S. at pp. 288–289 [discussed below].) But, conversely, if 

the state does provide a jury trial right, it is not necessarily 

required by the Sixth Amendment. (See, e.g., Epps, supra, 

25 Cal.4th at p. 29.) The majority errs by looking to California’s

procedural requirements, rather than its substantive law, to 

determine the sweep of the Sixth Amendment under the current 

DSL.

II. BLACK II AND SANDOVAL

Although the foregoing discussion is based on United 

States Supreme Court precedents, as noted this court came to 

the same conclusions in Black II, supra, 41 Cal.4th 799, and 

Sandoval, supra, 41 Cal.4th 825. Black II and Sandoval cannot 

be reconciled with the majority’s reasoning in this matter. 

Among other things, they specifically foreclose the majority’s 

reliance on the requirement in the current DSL that the facts 

“justify” an upper term sentence (§ 1170, subd. (b)(2)) to find a 

Sixth Amendment violation whenever a trial court relies on a 

noncompliant fact. (Black II, at pp. 814–815; see Sandoval, at 

pp. 850–851.)

This court decided Black II and Sandoval in the wake of 

Cunningham, supra, 549 U.S. 270, in which the high court held 

that California’s original DSL violated the Sixth Amendment. 

The original DSL, like the current DSL, identified the middle 

term of imprisonment as the statutory maximum: “When a 

judgment of imprisonment is to be imposed and the statute 

specifies three possible terms, the court shall order imposition 

of the middle term . . . .” (Former § 1170, subd. (b); Stats. 2004, 
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Guerrero, C. J., dissenting

15

ch. 747, § 1.) The original DSL allowed a court to depart from 

the middle term only if “there are circumstances in aggravation 

or mitigation of the crime.” (Former § 1170, subd. (b).) It 

identified various sources of information that a court could 

consider “[i]n determining whether there are circumstances that 

justify imposition of the upper or lower term.” (Ibid.) The 

original DSL empowered the trial court, rather than a jury, to 

find circumstances in aggravation or mitigation.

Former rule 4.420 of the California Rules of Court 

reiterated these requirements.5 It confirmed, “The middle term 

must be selected unless imposition of the upper or lower term is 

justified by circumstances in aggravation or mitigation.” 

(Former rule 4.420(a).) “Circumstances in aggravation and 

mitigation must be established by a preponderance of the 

evidence. Selection of the upper term is justified only if, after a 

consideration of all the relevant facts, the circumstances in 

aggravation outweigh the circumstances in mitigation. . . . 

Selection of the lower term is justified only if, considering the 

same facts, the circumstances in mitigation outweigh the 

circumstances in aggravation.” (Former rule 4.420(b).)

Cunningham reviewed these provisions and provided the 

following summary: “In sum, 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 

5

“The rules have the force of statute to the extent that they 

are not inconsistent with legislative enactments and 

constitutional provisions.” (In re Richard S. (1991) 54 Cal.3d 

857, 863.) Subsequent rule references are to the California 

Rules of Court.
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Guerrero, C. J., dissenting

16

related to the offense or the offender — beyond the elements of 

the charged offense.” (Cunningham, supra, 549 U.S. at p. 279.)

Cunningham went on to explain why the original DSL 

violated the Sixth Amendment’s right to a jury trial: “Under 

California’s DSL, an upper term sentence may be imposed only 

when the trial judge finds an aggravating circumstance. . . . In 

accord with Blakely, therefore, the middle term prescribed in 

California’s statutes, not the upper term, is the relevant 

statutory maximum. [Citation.] Because circumstances in 

aggravation are found by the judge, not the jury, and need only 

be established by a preponderance of the evidence, not beyond a 

reasonable doubt [citation], the DSL violates Apprendi’s brightline rule: Except for 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.’ ” (Cunningham, supra, 549 U.S. at pp. 288–

289.)

Black II and Sandoval considered the consequences of 

Cunningham’s Sixth Amendment holding for defendants 

sentenced under the original DSL. In Black II, we summarized 

the pertinent principles from the United States Supreme Court’s 

precedents: “[U]nder the line of high court decisions beginning 

with Apprendi, supra, 530 U.S. 466, and culminating in 

Cunningham, supra, 549 U.S. 270 . . . , 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’ 

[citation], that is, to ‘any fact that exposes a defendant to a 

greater potential sentence’ than is authorized by the jury’s 

verdict alone [citation]. ‘The Sixth Amendment question, the 

Court has said, is whether the law forbids a judge to increase 

defendant’s sentence unless the judge finds facts that the jury 
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Guerrero, C. J., dissenting

17

did not find (and the offender did not concede).’ ” (Black II, 

supra, 41 Cal.4th at p. 812; accord, Sandoval, supra, 41 Cal.4th 

at pp. 838–839.)

“Accordingly, so long as a defendant is eligible for the 

upper term by virtue of facts that have been established 

consistently with Sixth Amendment principles, the federal 

Constitution permits the trial court to rely upon any number of

aggravating circumstances in exercising its discretion to select 

the appropriate term by balancing aggravating and mitigating 

circumstances, regardless of whether the facts underlying those 

circumstances have been found to be true by a jury.” (Black II, 

supra, 41 Cal.4th at p. 813; accord, Sandoval, supra, 41 Cal.4th 

at p. 839.) “The facts upon which the trial court relies in 

exercising discretion to select among the terms available for a 

particular offense ‘do not pertain to whether the defendant has 

a legal right to a lesser sentence — and that makes all the 

difference insofar as judicial impingement upon the traditional 

role of the jury is concerned.’ ” (Black II, at p. 813, quoting 

Blakely, supra, 542 U.S. at p. 309.)

Black II cited the long-standing rule, affirmed by the 

majority again today, that “the existence of a single aggravating 

circumstance is legally sufficient to make the defendant eligible 

for the upper term.” (Black II, supra, 41 Cal.4th at p. 813.) It 

went on to directly answer the question presented here: 

“Therefore, if one aggravating circumstance has been 

established in accordance with the constitutional requirements 

set forth in Blakely, the defendant is not ‘legally entitled’ to the 

middle term sentence, and the upper term sentence is the 

‘statutory maximum.’ ” (Ibid.)
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Guerrero, C. J., dissenting

18

As noted, the majority acknowledges that a single 

aggravating fact empowers a court to impose an upper term 

sentence, but it contends that “[w]hen the trial court actually 

relies on improperly proven aggravating facts to ‘justify’ an 

upper term sentence, a Sixth Amendment violation occurs and 

Chapman must be satisfied.” (Maj. opn., ante, at p. 31.) The 

defendant in Black II made the same argument, since the 

original DSL, like the current DSL, allowed imposition of an 

upper term only if the facts in aggravation justified the upper 

term. It was soundly rejected.

Specifically, the Black II defendant argued that “the 

existence of a single aggravating circumstance does not make a 

defendant eligible for the upper term under [the original DSL], 

because ‘[s]election of the upper term is justified only if, after a 

consideration of all the relevant facts, the circumstances in 

aggravation outweigh the circumstances in mitigation.’ 

([Former] rule 4.420(b).) Although a single aggravating 

circumstance may warrant an upper term in some cases, 

defendant argues, a court cannot impose the upper term unless 

it determines that any aggravating circumstances are of 

sufficient weight to justify the upper term and outweigh any 

mitigating circumstances, and unless the court makes this 

determination by considering all of the aggravating 

circumstances. . . . Thus, defendant argues, 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, 41 Cal.4th at p. 814.)
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Guerrero, C. J., dissenting

19

We rejected this argument because the high court’s 

precedents “do not prohibit a judge from making the factual 

findings that lead to the selection of a particular sentence.” 

(Black II, supra, 41 Cal.4th at p. 814.) “The issue to be 

determined in each case is whether the trial court’s factfinding 

increased the sentence that otherwise could have been imposed, 

not whether it raised the sentence above that which otherwise 

would have been imposed.” (Id. at p. 815.)

We explained that “under the DSL the presence of one 

aggravating circumstance renders it lawful for the trial court to 

impose an upper term sentence. [Citations.] The 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.” (Black II, supra, 41 Cal.4th at p. 815.)

The same holds true under the current DSL. A single 

aggravating fact is sufficient to expose a defendant to the upper 

term. If such a fact has been proved in accordance with the 

Sixth Amendment, the trial court’s actual reliance on additional 

facts to justify the upper term does not expose the defendant to 

any greater punishment than the upper term, so the trial court’s 

use of such facts does not violate the Sixth Amendment.

The majority attempts to distinguish Black II on several 

grounds, but none is persuasive. First, the majority states, “The 

current statute does not follow the blueprint provided in 

Black II. It does not speak in terms of a single aggravating 

factor making the defendant ‘eligible’ for an upper term 

sentence.” (Maj. opn., ante, at p. 30.) But the original DSL did 

not speak in such terms either. The concepts described in 
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Guerrero, C. J., dissenting

20

Black II flow from the substantive requirements of California 

law regarding a single aggravating fact, which the majority 

acknowledges are unchanged. On this point, the majority claims 

that the current statute “is functionally different” from the 

original DSL because under the current statute “the court may 

[impose the upper term] ‘only’ if it determines ‘in its sound 

discretion,’ that a single aggravating circumstance ‘justif[ies]’ 

the upper term.” (Maj. opn., ante, at p. 37.) But the original 

DSL operated in the same way. A court could impose the upper 

term only if it was justified by the aggravating facts. (Black II, 

supra, 41 Cal.4th at p. 814; former § 1170, subd. (b); Stats. 2004, 

ch. 747, § 1; former rule 4.420(a)–(b).) The high court itself 

recognized this requirement. (Cunningham, supra, 549 U.S. at 

p. 278.) It does not distinguish the original DSL from the 

current DSL, and it does not undermine Black II’s Sixth 

Amendment holding.

The majority also asserts that the current DSL does not 

“preserve the two-tiered approach discussed in Black II

[citation] authorizing the trial court to make factual 

determinations as to aggravating facts (other than prior 

convictions) to justify an upper term sentence. Absent 

stipulation or waiver, that factfinding role now resides solely 

with the jury.” (Maj. opn., ante, at p. 30.) Again, the original 

DSL did not set forth a two-tiered approach either. It was and 

is a function of the substantive requirements of California 

sentencing law. The first aggravating fact has a significance 

that additional aggravating facts do not. Crucially, this 

circumstance is not some quirk of California law. The United 

States Supreme Court has repeatedly distinguished between 

facts that are legally required to expose a defendant to a given 

punishment and additional facts that increase the likelihood 
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Guerrero, C. J., dissenting

21

that such a punishment is imposed. The Sixth Amendment 

right to a jury trial attaches to the former, but not the latter. 

(Alleyne, supra, 570 U.S. at p. 113, fn. 2; id. at pp. 116–117; 

Blakely, supra, 542 U.S. at p. 309; Apprendi, supra, 530 U.S. at 

p. 481; see Dillon v. United States (2010) 560 U.S. 817, 828–

829.)6

It is true that the current DSL requires a jury finding on 

both the first and any additional aggravating facts used to 

justify the imposition of an upper term, but this requirement 

merely reflects the current DSL’s new jury trial right. It is 

undisputed that the current DSL creates such a right. The 

question is whether such a right is required by the federal 

Constitution as well. It is not.

III. CUNNINGHAM AND LEGISLATIVE INTENT

To support its conclusion that “the Sixth Amendment jury 

trial right attaches to every aggravating fact, other than a prior 

conviction, used to justify imposition of the upper term,” the 

majority looks to the legislative history of the current DSL. 

6 The majority claims that “the high court’s precedents 

make clear” that “a jury trial is required on ‘fact[s]’ that are used 

to justify a sentence in excess of the middle term.” (Maj. opn., 

ante, at p. 42.) But, as detailed above, the high court’s 

precedents are directly to the contrary. The high court has 

disclaimed the principle that “any fact that influences judicial 

discretion must be found by a jury.” (Alleyne, supra, 570 U.S. at 

p. 116.) Once a defendant is eligible for a given sentence, a trial 

court may rely on additional facts to justify its decision to impose 

the sentence without violating the Sixth Amendment. “While 

such findings of fact may lead judges to select sentences that are 

more severe than the ones they would have selected without 

those facts, the Sixth Amendment does not govern that element 

of sentencing.” (Alleyne, at p. 113, fn. 2.)
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Guerrero, C. J., dissenting

22

(Maj. opn., ante, at p. 43.) It quotes a statement by the bill’s 

author that “ ‘[i]t is important, proper, and constitutionally 

conforming to change the law to ensure that aggravating facts 

are presented to the jury before a judge imposes a maximum 

sentence as decided in Cunningham v. California.’ ” (Assem. 

Floor Analysis, 3d reading analysis of Sen. Bill No. 567 (2021–

2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2.) The majority 

emphasizes the phrase “ ‘ “constitutionally conforming” ’ ” in its 

quotation (maj. opn., ante, at p. 43), but it does not have the 

significance the majority attributes to it. The majority appears 

to believe that “[t]he Legislature was acting to remedy a Sixth 

Amendment violation” with the current DSL. (Maj. opn., ante, 

at p. 43.) But the prior DSL, which was in existence when Lynch 

was sentenced, did not violate the Sixth Amendment. Moreover, 

it is undisputed that the current DSL is “constitutionally 

conforming,” i.e., it does not violate the Sixth Amendment. The 

question is whether it goes beyond the requirements of the Sixth 

Amendment to establish a purely state law jury trial right on 

additional aggravating facts. The phrase “constitutionally 

conforming” does not speak to that question.

The majority also highlights the bill author’s reference to 

Cunningham. (Maj. opn., ante, at pp. 43–44.) After finding 

California’s original DSL unconstitutional, the high court left 

open the appropriate remedy. (Cunningham, supra, 549 U.S. at 

p. 293.) It noted that other states had “modified their systems 

in the wake of Apprendi and Blakely to retain determinate 

sentencing. They have done so by calling upon the jury — either 

at trial or in a separate sentencing proceeding — to find any fact 

necessary to the imposition of an elevated sentence. As earlier 

noted, California already employs juries in this manner to 

determine statutory sentencing enhancements. [Citation.] 
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Guerrero, C. J., dissenting

23

Other States have chosen to permit judges genuinely ‘to exercise 

broad discretion . . . within a statutory range,’ which, ‘everyone 

agrees,’ encounters no Sixth Amendment shoal. [Citation.] 

California may follow the paths taken by its sister States or 

otherwise alter its system, so long as the State observes Sixth 

Amendment limitations declared in this Court’s decisions.” (Id. 

at p. 294, fns. omitted.)

The majority characterizes the prior DSL, in effect at the 

time of Lynch’s sentencing, as reflecting Cunningham’s second 

option, “permit[ting] judges genuinely ‘to exercise broad 

discretion . . . within a statutory range.’ ” (Cunningham, supra, 

549 U.S. at p. 294; see maj. opn., ante, at p. 43.) Under the prior 

DSL, the trial court had broad discretion to impose the lower, 

middle, or upper term. The prior DSL did not require the 

finding of any aggravating fact to impose the upper term. The 

jury’s verdict on the underlying offense was sufficient.

By contrast, the majority characterizes the current DSL 

as reflecting Cunningham’s first option, “calling upon the 

jury — either at trial or in a separate sentencing proceeding —

to find any fact necessary to the imposition of an elevated 

sentence.” (Cunningham, supra, 549 U.S. at p. 294; see maj. 

opn., ante, at p. 43.) I agree, but this recognition does not resolve 

the matter. It merely raises again the primary issue in dispute: 

What is “any fact necessary to the imposition of an elevated 

sentence” under the current DSL? (Cunningham, at p. 294, 

italics added.)

I have no doubt that the Legislature in the current DSL 

intended to require a jury trial (or other Sixth Amendmentcompliant proceeding) on every aggravating fact used to justify 

an upper term sentence. But this intent does not and cannot 
PEOPLE v. LYNCH

Guerrero, C. J., dissenting

24

determine whether such a right is mandated by the federal 

Constitution as well. The Sixth Amendment right to a jury trial 

is implicated only by the facts legally required to expose a 

defendant to an upper term sentence. (Cunningham, supra, 

549 U.S. at p. 281; Blakely, supra, 542 U.S. at p. 313.) Under 

California law, any single aggravating fact is sufficient. It is 

therefore only a single aggravating fact that must be proved in 

accordance with the Sixth Amendment. Additional aggravating 

facts must be proved in accordance with the current DSL, but a 

court’s failure to adhere to its requirements is an error under 

state law only.

IV. GUTIERREZ AND SALAZAR

An error under state law normally requires reversal only 

when a reviewing court concludes “it is reasonably probable that 

a result more favorable to the appealing party would have been 

reached in the absence of the error.” (Watson, supra, 46 Cal.2d 

at p. 836.) “ ‘ “ ‘We have made clear that a “probability” in this 

context does not mean more likely than not, but merely a 

reasonable chance, more than an abstract possibility.’ ” ’ ” 

(People v. Hendrix (2022) 13 Cal.5th 933, 944.)

We have held that the Watson inquiry may be inadequate 

where an ameliorative statute or intervening judicial decision 

confers new or significantly altered discretion on a sentencing 

court to select among available sentencing options. For 

example, in Gutierrez, supra, 58 Cal.4th 1354, this court 

considered the scope of a trial court’s discretion to impose a 

sentence of life imprisonment without parole on juvenile 

defendants under section 190.5, subdivision (b). We overturned 

the established understanding of the statute, which “[f]or two 

decades, the Courts of Appeal [had] uniformly interpreted . . . as 
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Guerrero, C. J., dissenting

25

establishing a presumption in favor of life without parole for 

juvenile offenders who were 16 years of age or older when they 

committed special circumstance murder.” (Gutierrez, at 

p. 1369.) We concluded that under recent United States

Supreme Court precedent regarding the punishment of juvenile 

defendants, “a sentence of life without parole under 

section 190.5(b) would raise serious constitutional concerns if it 

were imposed pursuant to a statutory presumption in favor of 

such punishment.” (Id. at p. 1379.) We therefore held that 

courts should exercise their discretion under the statute “with 

no presumption in favor of life without parole.” (Id. at p. 1387.) 

In addition, “the trial court must consider all relevant evidence 

bearing on the ‘distinctive attributes of youth’ . . . and how those 

attributes ‘diminish the penological justifications for imposing 

the harshest sentences on juvenile offenders’ ” under the high 

court’s precedents. (Id. at p. 1390.)

Because Gutierrez significantly departed from the prior 

understanding of a trial court’s discretion, this court determined 

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.’ [Citations.] Although the trial courts in 

these cases understood that 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 life without parole, 

we cannot say with confidence what sentence they would have 

imposed absent the presumption.” (Gutierrez, supra, 58 Cal.4th 

at p. 1391.)
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Guerrero, C. J., dissenting

26

We applied this “clearly indicates” standard more recently 

in Salazar, supra, 15 Cal.5th 416. The defendant in Salazar had 

been sentenced under the same version of the DSL in effect 

when Lynch was sentenced, which conferred broad discretion on 

a trial court to select among the lower, middle, or upper terms 

of imprisonment for an offense. (Salazar, at p. 426.) A new 

statute “dramatically restrains that discretion to impose the 

middle or upper term, now requiring the court to impose the 

lower term if a qualifying trauma was a contributing factor in 

the commission of the offense ‘unless the court finds that the 

aggravating circumstances outweigh the mitigating 

circumstances [so] that imposition of the lower term would be 

contrary to the interests of justice.’ [Citation.] Accordingly, 

under the new law, the presumption is that the court ‘shall order 

imposition of the lower term’ whenever the defendant has a 

qualifying trauma.” (Id. at pp. 426–427, quoting § 1170, 

subd. (b)(6).) We held that because the Salazar defendant may 

have suffered a qualifying trauma, and the sentencing court 

“was not fully aware of the scope of its discretionary powers, ‘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.” ’ ” (Salazar, at p. 425.)

The majority reviews Gutierrez and Salazar and examines 

several opinions from the Courts of Appeal that have applied the 

“clearly indicates” standard to the retrospective application of 

the current DSL. (Maj. opn., ante, at pp. 48–51.) The majority 

observes that, contrary to these opinions, the Court of Appeal 

below declined to apply Gutierrez. (Id. at p. 51.) The majority 

concludes that was error. In a brief discussion, the majority 

states that “the amendment at issue did alter the trial court’s 
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Guerrero, C. J., dissenting

27

sentencing discretion” because its “changes circumscribe the 

trial court’s previously broad discretion to select whichever of 

the three terms of imprisonment serves the interests of justice.” 

(Id. at p. 51.) The majority therefore concludes the Gutierrez

standard applies. (Id. at pp. 51–52.)

The majority’s reasoning is not persuasive. Gutierrez and 

Salazar involved such substantial shifts in discretion that it was 

truly speculative to ask what a trial court might have done in 

response. Gutierrez eliminated a decades-long presumption in 

favor of life imprisonment without parole and announced new 

factors based on the federal Constitution that a trial court must 

consider before imposing such a sentence. (Gutierrez, supra, 

58 Cal.4th at pp. 1390–1391.) Salazar interpreted a new law 

that “dramatically restrain[ed]” the trial court’s sentencing 

discretion by imposing a new presumption in favor of the lower 

term, unless the imposition of the lower term was contrary to 

the interests of justice. (Salazar, supra, 15 Cal.5th at p. 426.)

The current DSL’s effect on a trial court’s discretion is 

comparatively quite minor. It does not involve the same 

qualitative shifts as in Gutierrez and Salazar. Under the prior 

DSL, in force when Lynch was sentenced, a trial court had broad 

discretion to impose the lower, middle, or upper term. (Former 

§ 1170, subd. (b), enacted by Stats. 2007, ch. 3, § 2, pp. 6−7.) 

The court was empowered to “select the term which, in the 

court’s discretion, best serve[d] the interests of justice.” (Ibid.) 

The applicable Rules of Court advised, “In exercising his or her 

discretion in selecting one of the three authorized terms of 

imprisonment referred to in section 1170(b), the sentencing 

judge may consider circumstances in aggravation or mitigation, 

and any other factor reasonably related to the sentencing 

decision.” (Former rule 4.420(b).) The current DSL allows the 
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Guerrero, C. J., dissenting

28

same consideration of circumstances in aggravation or 

mitigation, it establishes a presumption in favor of the middle 

or lower term, and it allows imposition of the upper term “only 

when there are circumstances in aggravation of the crime that 

justify” the upper term. (§ 1170, subd. (b)(2); id., subd. (b)(1).)

In Sandoval, supra, 41 Cal.4th 825, this court considered 

the significance of a nearly identical change, but in reverse. As 

discussed, the original DSL established a presumption in favor 

of the middle term and allowed imposition of the upper term 

only if justified by the circumstances in aggravation. (The 

original DSL also allowed the imposition of the lower term only 

if justified by the circumstances in mitigation.) Sandoval

considered a shift from the original DSL to a fully discretionary 

sentencing scheme, akin to the prior DSL that was in effect 

when Lynch was sentenced.7

Although the middle term presumption in the original 

DSL was “ ‘worded in mandatory language, the requirement 

that an aggravating factor exist is merely a requirement that 

the decision to impose the upper term be reasonable.’ ” 

(Sandoval, supra, 41 Cal.4th at p. 850.) Thus, although the 

prior DSL in effect when Lynch was sentenced eliminated this 

7 To be precise, the fully discretionary scheme this court 

considered in Sandoval was the Attorney General’s proposal to 

reform the original DSL in light of Cunningham, but “the 

California Legislature amended the DSL in substantially the 

same manner proposed by the Attorney General,” so its 

reasoning applies equally to the prior, post-Cunningham DSL 

applied by the trial court below. (Sandoval, supra, 41 Cal.4th 

at p. 845.) Sandoval explicitly equated “the procedure proposed 

by the Attorney General” with the post-Cunningham DSL 

“adopted independently by the Legislature.” (Sandoval, at 

p. 846.)
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Guerrero, C. J., dissenting

29

presumption, Sandoval held that, “in practical terms, the 

difference between the pre-Cunningham provision of the DSL 

enacted by the Legislature and a statutory scheme in which the 

trial court has broad discretion to select among the three 

available terms is not substantial. It seems likely that in all but 

the rarest of cases the level of discretion afforded the trial court 

under [a fully discretionary scheme] would lead to the same 

sentence as that which would have been imposed under the DSL 

as initially enacted.” (Sandoval, at p. 850, italics added.) We 

later reiterated the same point: “[A]s noted above, the difference 

in the amount of discretion exercised by the trial court in 

selecting the upper term under the [original] DSL, as compared 

to [a fully discretionary scheme] is not substantial.” (Id. at 

p. 855.)

The same logic holds true here, where the shift is from a 

fully discretionary sentencing scheme to the current DSL’s 

maximum middle term presumption. Under the prior DSL’s 

fully discretionary scheme, the trial court was tasked with 

considering the aggravating and mitigating facts and imposing

a reasonable sentence. Where, as here, a trial court imposes the 

upper term, the trial court believes the upper term is more 

appropriate in light of those facts than the middle or lower term. 

Likewise, under the current DSL, a trial court may impose the 

upper term only if it believes one or more circumstances in 

aggravation justify the upper term. The calculus for the trial 

court in each circumstance is almost identical.

Indeed, the transcript of the sentencing proceedings in 

this case reflects that the trial court considered the middle term 

to be the default, in the same manner as the current DSL 

instructs. The court weighed the circumstances in aggravation 

against the lack of circumstances in mitigation and found that 
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Guerrero, C. J., dissenting

30

the upper term was “appropriate.” The court disagreed with 

Lynch’s counsel that “there’s no cause to deviate upward from 

the mid term in this case.” Under these circumstances, the 

presumption not to exceed the middle term in the current DSL 

would have little effect on a court’s discretionary decision to 

impose the upper term. The majority’s bare reliance on this 

presumption, without considering its significance, elevates form 

over substance, and it is unpersuasive.

This matter does not involve a situation where “the 

sentencing court was not aware of the scope of its discretionary 

powers at sentencing.” (Salazar, supra, 15 Cal.5th at p. 425; 

see Gutierrez, supra, 58 Cal.4th at pp. 1390–1391.) Nor is this 

a situation where no “ ‘discretionary decision was made in the 

first place.’ ” (Salazar, at p. 425.) A trial court imposing the 

upper term under the prior DSL has exercised its discretion and 

selected the most appropriate sentence in light of the 

aggravating and mitigating factors. A trial court imposing the 

upper term under the current DSL has made essentially the 

same discretionary choice. It has concluded the upper term is 

justified by one or more aggravating factors.

Because any differences between the two schemes are “not 

substantial” and they will result in the same sentence “in all but 

the rarest of cases” (Sandoval, supra, 41 Cal.4th at p. 850), the 

Watson standard appropriately balances the interest in 

identifying such rare cases against the interest in avoiding the 

delay and expense of unnecessary resentencing proceedings. In 

those cases where a reviewing court believes there is a 

reasonable probability the trial court would have exercised its 

discretion differently under the current DSL, it should reverse 

and remand for resentencing. But if there is no reasonable 

probability of a different result, a reviewing court should affirm.
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Guerrero, C. J., dissenting

31

V. LYNCH’S APPEAL

As noted at the outset, the trial court here found eight 

aggravating facts and no mitigating facts. Based on these 

findings, the court sentenced Lynch to an upper term of 

imprisonment. At the sentencing hearing, the court specifically 

emphasized two aggravating facts as the basis for imposing the 

upper term: Lynch’s parole status at the time of the offenses 

and his numerous prior adult convictions.

Because the current DSL was not yet in effect at the time 

of Lynch’s sentencing, the trial court did not comply with its 

provisions. The consequences of this noncompliance — the

retrospective “error” — depend on the nature of the right of 

which Lynch was deprived. If an error affects only Lynch’s 

rights under California law, its prejudicial effect is generally 

reviewed under Watson. But if an error affects Lynch’s rights 

under the federal Constitution, the harmless error standard in 

Chapman applies. (See maj. opn., ante, at pp. 22–23.)

Lynch concedes that one aggravating fact, his numerous 

prior convictions, was proved in accordance with the Sixth 

Amendment and the current DSL. Based on the jury’s verdict 

and this aggravating fact, the trial court had the discretion to 

sentence Lynch to the upper term under the current DSL. The 

upper term is the statutory maximum for purposes of Apprendi 

because it was legally available based on facts established in 

compliance with the Sixth Amendment. (See Blakely, supra, 

542 U.S. at p. 303.) The trial court did not violate the Sixth 

Amendment by sentencing Lynch to this statutory maximum. 

Nor did the trial court violate the Sixth Amendment by 

considering additional facts to justify the imposition of the upper 

term. While these factual findings may have persuaded the 
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Guerrero, C. J., dissenting

32

court to impose the upper term, “the Sixth Amendment does not 

govern that element of sentencing” because the upper term was 

already available based on facts properly proved. (Alleyne, 

supra, 570 U.S. at p. 113, fn. 2.) In my view, therefore, Lynch’s 

concession that one aggravating fact was proved in accordance 

with the Sixth Amendment forecloses any claim of error under 

the federal Constitution. Because Lynch has not shown any 

federal constitutional error, there is no need to consider 

harmlessness under Chapman.

8

8

If no aggravating facts had been proved in accordance with 

the Sixth Amendment, the statutory maximum under the 

current DSL would be the middle term. The trial court would 

violate the Sixth Amendment by imposing the upper term based 

on facts not properly established under the federal Constitution. 

In Sandoval, this court discussed the application of the 

Chapman harmless error test in this context. Because 

California law requires only a single aggravating fact to 

authorize an upper term sentence, the federal harmless error 

inquiry focuses on the possibility of proper proof of that fact: 

“[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 

Sixth Amendment error properly may be found harmless.” 

(Sandoval, supra, 41 Cal.4th at p. 839.)

I note that, even under the majority’s view that every fact 

used to justify an upper term sentence must be proved in 

accordance with the Sixth Amendment, its application of 

Chapman appears incomplete. The majority states, “Lynch is 

entitled to a reversal and remand for resentencing unless, after 

examining the entire cause, including the evidence as to all 

relevant circumstances (People v. Aledamat (2019) 8 Cal.5th 1, 

13), we can conclude that the omission of a jury trial was 

harmless beyond a reasonable doubt as to every aggravating fact 
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Guerrero, C. J., dissenting

33

the trial court used to justify an upper term sentence.” (Maj. 

opn., ante, at p. 55; see id. at p. 44.)

While I agree that such a conclusion would render any 

error harmless, the majority does not explain why this harmless 

error inquiry must cover every aggravating fact. Unlike the 

elements of a crime at issue in Aledamat, an upper term 

sentence does not require proof of every aggravating fact 

identified by the trial court. The trial court could legally impose 

the upper term based on a subset of aggravating facts. As the 

majority acknowledges, “The court retains its discretion to 

impose an upper term sentence if it concludes that one or more

properly proved circumstances justify such a sentence.” (Maj. 

opn., ante, at p. 59, italics added.) In my view, even under the 

majority’s conception of the Sixth Amendment, any federal 

constitutional error would also be harmless if (1) a reviewing 

court could conclude beyond a reasonable doubt that the trial 

court would still have imposed the upper term if the improperly 

proved aggravating facts were excluded or (2) a reviewing court 

could conclude beyond a reasonable doubt that one or more of 

the improperly proved aggravating facts would have been found 

by a jury and the trial court would still have imposed the upper 

term based on those facts, combined with any properly proved 

aggravating facts.

The majority responds by analogizing the absence of a jury 

finding on an aggravating fact to the absence of a jury finding 

on an element of an offense. (See maj. opn., ante, at p. 45, fn. 18, 

citing Neder, supra, 527 U.S. at pp. 16–19.) But, as explained 

above, the majority provides no justification for such 

equivalence. Even if one aggravating fact is absent, a court may 

still impose the upper term based on one or more remaining 

aggravating facts. The same is not true for elements of an 

offense. Any harmless error analysis must account for this 

difference, even under the majority’s conception of the Sixth 

Amendment’s requirements.

Although the majority rejects Lynch’s bid for automatic 

reversal, it sets up a standard of review that would require 

reversal even if a reviewing court is confident beyond a 
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Guerrero, C. J., dissenting

34

Like the Court of Appeal below, I conclude the aggravating 

fact of weapons use was also proved in compliance with the Sixth 

Amendment and the current DSL. The instructions provided to 

the jury identified each offense by date and the weapon used by 

Lynch to commit the offense. The instructions cautioned, 

“Evidence that the defendant may have committed the alleged 

offense on another day or in another manner is not sufficient for 

you to find him guilty of the offense charged.” The instructions 

therefore required the jury to find that Lynch committed the 

offenses in the “manner” described in the instructions, and the 

jury’s guilty verdicts show it necessarily found that each offense 

“result[ed] from the use of” the weapon specified.

The Court of Appeal found the remaining six aggravating 

facts had not been proved in accordance with the Sixth 

Amendment and the current DSL. Three of these facts were 

related to Lynch’s recidivism: his prior prison terms; his status 

on parole at the time of offenses; and his poor performance on 

parole. This court has held that such recidivism-related facts 

fall within the prior conviction exception to the Sixth 

Amendment jury trial right. (People v. Towne (2008) 44 Cal.4th 

63, 79, 82.) As the majority explains, we will examine the scope 

of this exception in the context of the current DSL in People v. 

Wiley (2023) 97 Cal.App.5th 676, review granted March 12, 

2024, S283326. (Maj. opn., ante, at p. 55, fn. 20.) Such an 

examination is unnecessary here because, even assuming the 

prior conviction exception does not apply, I agree with the Court 

reasonable doubt that the Sixth Amendment error would not 

affect the trial court’s ultimate sentencing decision. This unduly 

strict view is unwarranted and unsupported.
PEOPLE v. LYNCH

Guerrero, C. J., dissenting

35

of Appeal that any error in not submitting the six remaining 

aggravating facts to the jury was harmless.

Again, because at least one (and actually two) aggravating 

facts were proved in accordance with the Sixth Amendment, the 

trial court’s selection of the upper term — even based on 

additional aggravating facts — was not an error under the 

federal Constitution. The current DSL requires a jury trial (or 

other Sixth Amendment-compliant proceeding) on the 

additional aggravating facts, but that right is founded in state 

law only. “When a state need not provide a jury trial at all, it 

follows that the erroneous denial of that right does not implicate 

the federal Constitution. [Citations.] Moreover, because the 

error is purely one of state law, the Watson harmless error test 

applies.” (Epps, supra, 25 Cal.4th at p. 29.)

As noted, under Watson, reversal is required only if “it is 

reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the 

error.” (Watson, supra, 46 Cal.2d at p. 836.) The relevant result 

here is the imposition of the upper term. Thus, reversal is not 

required unless it is reasonably probable that the trial court 

would have imposed the middle or lower term if it had followed 

the current DSL and afforded Lynch a jury trial right on the six 

remaining aggravating facts. In this context, a reviewing court 

must undertake two related inquiries. First, it must assess the 

likelihood that a jury would have made a different finding on the 

aggravating circumstance if it had been submitted to the jury 

for decision. (Cf. Epps, supra, 25 Cal.4th at p. 29.) Second, it 

must assess the consequences of the trial court’s reliance on any 

circumstance a jury would not have found. (Cf. Price, supra, 

1 Cal.4th at p. 492.)
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Guerrero, C. J., dissenting

36

Some courts have described these two inquiries using 

Watson’s “reasonably probable” language. For example, one 

Court of Appeal held that the first inquiry should ask “whether 

there is a reasonable probability that the jury would have found 

any remaining aggravating circumstance(s) true beyond a 

reasonable doubt” and the second inquiry should ask “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.” (People v. Dunn (2022) 

81 Cal.App.5th 394, 410, review granted Oct. 12, 2022, 

S275655.) While this framework may be useful as a starting 

point, it risks missing the proverbial forest for the trees. The 

first inquiry, covering what a jury would have found, cannot be 

viewed in isolation, with its results simply providing the basis 

for the second inquiry. The relative likelihood that the 

aggravating fact would be found must carry through to the end. 

An aggravating fact strongly supported by the evidence will 

carry more weight when considering the overall outcome than 

an aggravating fact weakly supported by the evidence, even if in 

both cases there may be no reasonable probability the jury 

would have rejected it outright. Courts should also keep in mind 

the difficulty in assessing how a hypothetical jury trial would 

play out. (See Sandoval, supra, 41 Cal.4th at pp. 839–840.)

Here, however, it is unnecessary to delve too deeply into 

these nuances. As the Court of Appeal found, the three 

remaining recidivism-related aggravating facts were supported 

by strong and undisputed evidence: “Defendant’s prior prison 

terms were established by certified records of prior convictions, 

and defendant’s parole status and poor performance on parole 

were established by the probation report, based on official 
PEOPLE v. LYNCH

Guerrero, C. J., dissenting

37

records. [Citation.] Defendant did not challenge these facts, 

despite having the opportunity to mitigate his sentence by doing 

so. Had the official records been wrong, there would have been 

no strategic reason for defendant not to point out the error.”

Even assuming a jury would not have found true the final 

three aggravating facts (the existence of a particularly 

vulnerable victim; the presence of a high degree of cruelty, 

viciousness, and callousness; and violent conduct that reflects a 

serious danger to society), there is no reasonable probability the 

trial court would have imposed the lower or middle term if it had 

complied with the current DSL and those facts had been 

rejected. Five aggravating facts remain, all either found in 

compliance with the current DSL or supported by strong and 

undisputed evidence, and there are no mitigating facts. The two 

aggravating facts that the trial court specifically emphasized at 

sentencing (parole status and numerous prior convictions) 

remain valid. There is no reasonable probability that the 

absence of three of the eight aggravating facts considered by the 

trial court would have changed the court’s conclusion that the 

upper term was appropriate. Any error under the current DSL 

in failing to provide Lynch the right to a jury trial on these 

aggravating facts was therefore harmless.9

9

In addition, the record does not suggest that this case is 

one of “the rarest of cases” (Sandoval, supra, 41 Cal.4th at 

p. 850) in which the new maximum middle term presumption 

would materially affect the trial court’s decision to impose the 

upper term. As noted, the trial court already treated the middle 

term as the default, and it disagreed with defense counsel that 

“there’s no cause to deviate upward from the mid term in this 

case.” It found the upper term “appropriate” in light of the 

substantial aggravating facts and lack of any mitigating facts.
PEOPLE v. LYNCH

Guerrero, C. J., dissenting

38

The concurring and dissenting opinion expresses 

uncertainty regarding how the trial court would have applied 

the current DSL. (Conc. & dis. opn., ante, at pp. 18–19.) While 

nothing is certain, I believe the salient aspects of the record —

five strong aggravating facts, no mitigating facts, and the 

sentencing hearing transcript — show there is no reasonable 

probability the trial court would have sentenced Lynch to 

anything other than the upper term. Remand is therefore 

unwarranted.

In sum, applying the current DSL retroactively to Lynch’s 

sentencing, the trial court did not err under the Sixth 

Amendment in selecting the upper term because every fact 

necessary under California law to expose Lynch to the upper 

term had been proved in compliance with the Sixth Amendment. 

To the extent the court erred under the current DSL by not 

providing Lynch with the right to a jury trial on the six 

aggravating facts not proved in compliance with the current 

DSL, any error was harmless because Lynch has not shown a 

reasonable probability that the trial court would have selected 

the middle or lower term if it had submitted those facts to a jury 

and sentenced Lynch thereafter. I would therefore affirm the 

judgment of the Court of Appeal, which reached the same 

conclusions.

GUERRERO, C. J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Lynch

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) XX NP opn. filed 5/27/22 – 3d Dist.

Rehearing Granted

__________________________________________________________

Opinion No. S274942

Date Filed: August 1, 2024

__________________________________________________________

Court: Superior

County: Sacramento

Judge: Geoffrey A. Goodman

__________________________________________________________

Counsel:

Jacquelyn Larson, under appointment by the Supreme Court, and Joy 

A. Maulitz, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Molly O’Neal, Public Defender (Santa Clara), David Epps, Alternate 

Public Defender, Brian Matthews, Deputy Alternate Public Defender,

Ellen McDonnell, Public Defender (Contra Costa), and Gilbert Rivera, 

Deputy Public Defender, for California Public Defenders Association as 

Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Michael P. Farrell, Assistant Attorney General, 

Darren K. Indermill, Catherine Chatman, Rachelle A. Newcomb and 

Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent. 
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Jacquelyn Larson

Attorney at Law

2150 River Plaza Drive, Suite 300

Sacramento, CA 95833

(916) 441-3792

Erin Doering

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 95814

(916) 210-7341