SEE CONCURRING AND DISSENTING OPINION

Filed 9/6/22 P. v. Singh CA5

See concurring & dissenting opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

HARMAN PREET SINGH,

Defendant and Appellant.

Consolidated Cases Nos.

F082580 & F082584

(Super. Ct. Nos. MCR060145, 

MCR060560)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, 

Judge.

Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Christopher J. 

Rench, and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Defendant Harman Preet Singh challenges the trial court’s conclusion he violated 

a condition of probation, resulting in a revocation of that probation. Through 

supplemental briefing, defendant also challenges the sentence imposed as violating Penal 

Code1section 1170, following amendments to that provision effective January 1, 2022. 

We affirm.

PROCEDURAL SUMMARY

This opinion addresses two separate appeals from cases brought against defendant 

in the Madera County Superior Court cases Nos. MCR060145 and MCR060560. On this 

court’s own motion, the appeals were consolidated. On August 20, 2018, the Madera 

County District Attorney filed a complaint against defendant in case No. MCR060145, 

alleging defendant committed arson (§ 451, subd. (d); count 1) and attempted to set fire 

to a structure (§ 455; count 2). On September 28, 2018, the Madera County District 

Attorney filed a second amended complaint against defendant in case No. MCR060560, 

alleging he made a criminal threat that was likely to result in death or great bodily injury 

to his mother (§ 422, subd. (a); count 1), made a criminal threat that was likely to result 

in death or great bodily injury to his father (§ 422, subd. (a); count 2), and committed 

misdemeanor battery against his mother (§ 242; count 3). 

On April 22, 2019, defendant pled guilty to count 1 in case No. MCR060560. 

During the same hearing, defendant also pled guilty to count 1 in case No. MCR060145. 

The trial court then suspended imposition of sentence and placed defendant on probation 

for a period of five years for both cases Nos. MCR060145 and MCR060560, and 

dismissed the remaining counts alleged against him. At the time probation was granted, 

various conditions were imposed, including requirements that defendant attend all future 

court appearances and “[r]eport monthly or as directed by the Probation Officer.” 

1 All future statutory references are to the Penal Code unless otherwise noted. 
3.

On September 29, 2019, a petition to revoke defendant’s probation was filed in 

case No. MCR060560. A similar petition was filed in case No. MCR060145 on 

September 30, 2019. While both petitions stated defendant failed to “[r]eport monthly or 

as directed by the Probation Officer,” the petition in case No. MCR060145 also included 

the failure to register as required by section 457.1 (requiring registration after a 

conviction for arson). On August 21, 2020, defendant admitted the violations listed in 

both petitions. On September 21, 2020, the trial court ordered defendant to serve 120 

days in jail in case No. MCR060145, then reinstated the same terms and conditions of 

probation in both cases as set out earlier. 

New petitions to revoke probation were filed on November 13, 2020, alleging 

defendant violated two conditions of probation in each case. Specifically, both petitions 

alleged defendant failed to “[o]bey all laws, federal, state and local,” and did not “[r]eport 

monthly or as directed by the Probation Officer.” Following a contested hearing, 

defendant was found to have violated the probation condition requiring him to report to 

his probation officer as ordered. 

On March 24, 2021, the trial court revoked defendant’s probation and sentenced

him to three years (the upper term) on count 1 in case No. MCR060145 and designated 

this the principal term. The trial court then imposed a consecutive term of eight months 

(one-third the middle term of two years) for count 1 in case No. MCR060560,

2

for a total 

prison term of three years eight months. 

2 The trial court indicated it imposed a sentence on count 2 of case 

No. MCR060560. However, defendant pled guilty to count 1 in case No. MCR060560 

and count 2 was dismissed. Both counts alleged a violation of section 422. Other than 

being imposed on the wrong count, the sentence imposed was consistent with the plea 

agreement. The trial court mistakenly imposed a sentence on count 2 that should have 

been imposed on count 1. Defendant need not be resentenced over what amounts to a 

clerical error. In this situation, we treat as done that the parties agreed to have done and 

which should have been done. (Godfrey v. Witten (1956) 138 Cal.App.2d 610, 615.) We 
4.

On the same date, defendant filed a notice of appeal as to both cases. 

FACTUAL SUMMARY3

Case No. MCR060145

On August 17, 2017, Madera Police Officer Kellom was dispatched to assist “Cal 

Fire” (Department of Forestry and Fire Protection) personnel who were fighting a fire 

near a home. The individual who was seen setting the fire on surveillance footage 

returned to the scene while the firefighters were there. The firefighters pointed out this 

individual, who was later identified as defendant, to Kellom. Kellom reported defendant 

smelled of alcohol, seemed agitated, and tried to leave. Defendant was detained and 

placed in the back of Kellom’s vehicle. A lighter was eventually found in defendant’s 

front pocket. 

Case No. MCR060560

On September 23, 2018, Madera Police Officer Garcia was dispatched to a home 

where he encountered defendant’s brother. Defendant’s brother reported defendant 

threatened to assault their mother after getting angry. His brother also stated defendant 

grabbed an oxygen tank and threatened to “blow up the house and kill his family.” 

Probation Revocation Proceedings

The revocation hearings for both cases Nos. MCR060145 and MCR060560 were 

held concurrently on December 4, 2020. During the hearing, Madera County Probation 

Officer Magallanes testified defendant was required to report to the probation department 

at least monthly, and that he was specifically instructed to report on November 3, 2020. 

Defendant did not meet with Magallanes on November 3. Magallanes also determined 

there were no records showing defendant met with anyone else in the probation 

will direct the trial court to issue an amended abstract of judgment reflecting that the 

eight-month term of imprisonment was imposed on count 1 of case No. MCR060560.

3 The specific facts underlying the charges in our factual summary are found in the 

probation reports. 
5.

department on November 3. Magallanes testified that in the past defendant kept some 

appointments, but not all. 

Defendant testified in his own behalf and admitted knowing he had an 

appointment with probation on November 3, 2020. Defendant testified he called the 

probation department on November 3, and that it was “on [his] phone history.” 

Defendant claimed he was unable to reach anyone in the office because no one picked up 

the phone. During his testimony, defendant mentioned he had been arrested, but 

provided no specific evidence verifying this fact. On cross-examination, defendant 

admitted that his attempt to call probation did not occur until two to three days after 

November 3, 2020. 

At the conclusion of the hearing, the trial court found defendant “violated the 

terms of his probation in failing to contact [the probation department] on the date 

specified,” and that this violation applied to both cases. 

DISCUSSION

I. The Revocation of Probation

Defendant argues the revocation of his probation was improper because the trial 

court permitted the People to prove his state of mind to a lesser standard than that 

required by case law. Specifically, defendant contends the trial court used a strict 

liability test rather than one considering whether his violation of a condition of probation 

was “willful.” Both below and on appeal, defendant appears to suggest the violation of 

the probation condition was “negligent” rather than “willful.” We do not agree with 

defendant’s characterization of the case law on this issue and the distinctions he is 

attempting to draw. 

When an individual is suspected of violating terms or conditions of their 

probation, they may be rearrested and subject to a hearing at which the trial court 

considers whether to revoke probation and impose a sentence. (§ 1203.2.) The

prosecution has the burden of proving the grounds supporting revocation by a 
6.

preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Case 

law has held a decision to revoke probation can be supported by the conclusion it serves 

the “ ‘interests of justice.’ ” (People v. Galvan (2007) 155 Cal.App.4th 978, 981.) While 

the facts supporting revocation may be proven by a preponderance of the evidence, “the 

evidence must support a conclusion the probationer’s conduct constituted a willful 

violation of the terms and conditions of probation.” (Id. at p. 982.) 

Ultimately, the evidence must show a defendant has not complied with the terms 

of probation, justifying the revocation of probation. (People v. Urke (2011) 197 

Cal.App.4th 766, 772 (Urke).) 

“ ‘Probation revocation proceedings are not a part of a criminal 

prosecution, and the trial court has broad discretion in determining whether 

the probationer has violated probation.’ [Citation.] [¶] . . . [A]nd great 

deference is accorded the trial court’s decision, bearing in mind that 

‘[p]robation is not a matter of right but an act of clemency, the granting and 

revocation of which are entirely within the sound discretion of the trial 

court. [Citations.]’ ” (Urke, supra, 197 Cal.App.4th at pp. 772−773.) 

The discretion to revoke probation is analogous to a court’s power to grant 

probation, and should not be disturbed absent abuse or some form of arbitrary action. 

(Urke, supra, 197 Cal.App.4th at p. 773.) We therefore review the trial court’s decision 

to revoke probation for an abuse of discretion. (People v. Butcher (2016) 247 

Cal.App.4th 310, 318.) However, the trial court’s factual findings will be reviewed for 

substantial evidence, and we will not reweigh conflicting evidence or determine 

credibility on appeal. (Ibid.; see People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) 

Magallanes testified defendant had been informed when he was released from jail 

in October 2020, to report to his probation officer on November 3, 2020. Defendant then 

failed to meet with Magallanes on November 3. Magallanes also had no record showing 

defendant attempted to reach her by phone on or around November 3. Magallanes later 
7.

testified that this was not the first time defendant failed to appear for an appointment on a 

designated day.4 

In his own testimony, defendant admitted missing the November 3, 2020

appointment. Defendant claims he was arrested, but provided no details about that arrest. 

Defendant then testified he tried to call his probation officer, but that no one picked up 

the phone. Later in his testimony, defendant acknowledged his attempt to reach his 

probation officer was not until two to three days after his missed appointment. 

Defendant’s primary contention is that his failure to appear for the appointment 

was not “willful” and cannot support the revocation of his probation. Defendant relies 

heavily on the opinion in Galvan to make this point. This reliance on Galvan is 

misplaced, however. In Galvan, the appellant failed to appear for an appointment with 

his probation officer because he had been arrested and deported to Mexico. (People v. 

Galvan, supra, 155 Cal.App.4th at p. 981.) The court concluded this failure to report was 

not willful. (Id. at p. 985.)

Defendant’s reliance on this court’s decision in People v. Zaring (1992) 8 

Cal.App.4th 362, is also misplaced. In Zaring, the defendant was 22 minutes late to court 

due to an unforeseen problem with childcare. (Id. at p. 379.) The trial court revoked 

probation. (Ibid.) This court held the failure to report was not “the result of 

irresponsibility, contumacious behavior or disrespect for the orders and expectations of 

the court,” nor was it a willful violation of the relevant condition of probation. (Ibid.) 

In an effort to analogize his facts to those stated in Galvan and Zaring, defendant

points to his testimony that he was arrested. Defendant specifically testified:

4

In September 2020, defendant faced the risk of losing probation when he failed 

to report for a meeting with probation. Instead, the trial court ordered defendant to serve 

120 days in jail, then reinstated probation. 
8.

“I got arrested. Like, I knew I missed the appointment. I was going to call 

them back. But it was just only two days in between, like a couple of days, 

and this incident happened.” 

This was the only mention of an arrest in the record. No document was placed into 

evidence memorializing the arrest, and no further testimony was provided. As a result, 

the trial court may have been skeptical about the authenticity of this claim. 

The burden of demonstrating a trial court abused its discretion rests squarely on 

the defendant. (Urke, supra, 197 Cal.App.4th at p. 773.) An appellate court should 

interfere with a trial court’s exercise of discretion on denying or revoking probation only 

in extreme cases. (Ibid.) “ ‘Many . . . circumstances not warranting a conviction may 

fully justify a court in revoking probation granted on a prior offense.’ ” (Ibid.) 

We conclude the trial court’s finding that defendant willfully violated a condition 

of probation when he failed to appear for his November 3, 2020 appointment with his 

probation officer, is supported by substantial evidence. We, therefore, find no abuse of 

discretion. 

II. The Impact of Senate Bill No. 567 on The Selection of The Upper Term

At the time defendant was sentenced, section 1170 provided the choice between 

the lower, middle, and upper term “shall rest within the sound discretion of the court,” 

who determines which term “best serves the interests of justice.” (§ 1170, former 

subd. (b).) On January 1, 2022, amendments to section 1170 made by Senate Bill 

No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) went into effect. Defendant 

contends his sentence is invalid following these amendments. We conclude that the 

factual findings underlying defendant’s sentence are not consistent with the requirements 

of section 1170, subdivision (b) as amended, but the error5 was harmless. 

5 Throughout our discussion, we refer to section 1170, subdivision (b) “error.” 

However, we note that at the time the trial court sentenced defendant, it correctly applied 

the then-existing law. Accordingly, while we refer to section 1170, subdivision (b)
9.

Under the newly amended law, the trial court may impose an upper-term sentence 

only where there are circumstances in aggravation that justify the imposition of a term of 

imprisonment exceeding the middle term and the facts underlying all the aggravating 

circumstances have been stipulated to by the defendant or found true beyond a reasonable 

doubt by a jury or by the judge in a court trial. (§ 1170, subd. (b)(1), (2).) However, an 

exception is available, allowing a trial judge to rely on certified records of a defendant’s 

prior convictions to prove a defendant’s prior convictions without submitting the issue to 

a jury. (§ 1170, subd. (b)(3).) 

When imposing the sentence after revoking probation, the trial court chose the 

upper term for the violation of section 451, subdivision (d) in case No. MCR060145, 

stating:

“The Court selected the aggravated term based on the facts that [1] 

[defendant’s] prior convictions as an adult are numerous and increasing in 

seriousness.[6] [2] He was on probation at the time that he committed the 

“error,” we are mindful that the trial court complied with the applicable law at the time of 

sentencing.

6

It is not entirely clear which convictions the trial court was relying on in finding 

the prior convictions to be numerous or of increasing seriousness. The probation 

officer’s pre-plea report recommended the trial court find defendant’s prior convictions 

numerous and of increasing seriousness based only on his three misdemeanor Vehicle 

Code convictions between 2016 and 2018: driving with a blood-alcohol percentage of

0.08 or higher, driving without a license, and reckless driving. 

Defendant’s other convictions, identified in post-plea probation reports, included 

misdemeanor vandalism, which occurred prior to the charges at issue in this matter but 

for which defendant was not convicted until after the convictions in this matter, and the 

arson conviction in count 1 of case No. MCR060145. Regardless of whether the 

convictions identified in the post-plea probation report were properly considered “prior 

convictions” for purposes of California Rules of Court, rule 4.421(b)(2), the three 

misdemeanor Vehicle Code convictions were numerous for purposes of that rule (People 

v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three Vehicle Code convictions were 

sufficient to be considered “numerous” for purposes of an aggravating circumstance]), 

and a defendant’s conduct after commission of the offense for which he is sentenced is 
10.

offense. [3] His performance on probation prior to the conviction was 

unsatisfactory, and [4] his performance on probation following the 

conviction was likewise unsatisfactory.” 

The trial court also considered defendant’s “mental health issues as a factor [in]

mitigation, but even in considering that as a factor in mitigation, the Court f[ound] that 

the aggravating factors justif[ied] an imposition of the aggravated term.” 

None of the aggravating circumstances were proved to a jury or admitted in full by 

defendant. As to the first aggravating circumstance, the People argue that the court was 

permitted to rely on “prior convictions to impose an aggravated term” without submitting 

the question to a jury. However, the People ignore a significant part of the exception 

provided by section 1170, subdivision (b)(3). Namely, the record does not reflect that the 

trial court was relying on a “certified record of conviction” to find true defendant’s prior 

convictions. (§ 1170, subd. (b)(3).) Indeed, the record does not reflect that a certified 

record of conviction was ever admitted into evidence. The record before us does not 

demonstrate that requirements of section 1170, subdivision (b)(3) were met. As to the 

fourth circumstance, that defendant violated probation, defendant admitted he violated 

probation in both cases (MCR060145 & MCR060560) after his convictions on April 22, 

2019. A second violation of probation was proved to the trial court in a violation of 

probation proceeding—specifically, that defendant failed to report to the probation 

officer as directed—however, the fact was not proved beyond a reasonable doubt as 

required. (§ 1170, subd. (b)(2).) As noted above, a violation of probation must only be 

proved by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d at 

p. 447.) Therefore, the facts underlying that conviction were not fully proved as required 

by section 1170, subdivision (b).

appropriately considered as an aggravating factor at sentencing (People v. Gonzales

(1989) 208 Cal.App.3d 1170, 1171–1172).
11.

In sum, none of the aggravating circumstances were established as required by 

section 1170, subdivision (b). Unless that error was harmless, we must vacate 

defendant’s sentence and remand the matter for resentencing.

This court recently articulated a standard for harmless error in the Senate Bill 

No. 567 context in People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn): 

“The reviewing court determines (1)(a) beyond a reasonable doubt whether 

the jury would have found one aggravating circumstance true beyond a 

reasonable doubt[7]and (1)(b) whether there is a reasonable probability that 

the jury would have found any remaining aggravating circumstance(s) true 

beyond a reasonable doubt. If all aggravating circumstances relied upon by 

the trial court would have been proved to the respective standards, any error 

was harmless. If not, the reviewing court moves to the second step of 

Lopez, (2) whether there is a reasonable probability that the trial court 

would have imposed a sentence other than the upper term in light of the 

aggravating circumstances provable from the record as determined in the 

prior steps. If the answer is no, the error was harmless. If the answer is 

yes, the reviewing court vacates the sentence and remands for resentencing 

consistent with section 1170, subdivision (b).” (Dunn, supra, 81

Cal.App.5th at pp. 409-410.)

We agree that Dunn articulates the appropriate standard. With that standard in 

mind, we turn to the aggravating circumstances relied upon by the trial court. As to the 

first aggravating factor, the probation officer’s reports indicate that defendant suffered 

prior convictions as follows: in 2016, a misdemeanor conviction for reckless driving 

(Veh. Code, § 23103.5); in 2017, a misdemeanor conviction for driving without a license 

(Veh. Code, § 12500, subd. (a)); and in 2018, a misdemeanor conviction for driving with 

a blood-alcohol percentage of 0.08 or higher (Veh. Code, § 23152, subd. (b)). The 

7 “Alternatively, this step is satisfied if the trial court relied upon an aggravating 

circumstance that relied only upon the fact of defendant’s prior convictions and a 

certified record of defendant’s convictions was admitted, or defendant admitted the facts 

underlying an aggravating circumstance. [¶] . . . [S]tep (1)(a) or one of its two 

alternatives must be satisfied to avoid offending the Sixth Amendment . . . . If not, the 

error is not harmless; the sentence must be vacated and the matter remanded to the trial 

court for resentencing consistent with section 1170, subdivision (b).” 
12.

probation officer listed the databases and defendant’s identification numbers within each 

which served as sources of information for defendant’s prior convictions.8 Defendant did 

not dispute the truth of his prior convictions at sentencing and the statement of factors in 

mitigation submitted by his defense counsel, he acknowledged that “[t]he majority of 

[defendant’s] criminal history is before this [c]ourt. He has been placed on probation 

three different times for different types of charges.” That statement in mitigation was 

filed after the probation officer identified the above prior convictions. There is no logical 

reason that defendant would not have challenged the accuracy of his prior convictions if 

not true. Those convictions were sufficient to support the trial court’s finding that 

defendant’s prior convictions were numerous. (People v. Searle, supra, 213 Cal.App.3d 

at p. 1098.) We conclude beyond a reasonable doubt that a jury would have found true 

beyond a reasonable doubt that defendant’s prior convictions were numerous.

As to the second aggravating circumstance, that defendant was on probation at the 

time he committed the offenses at issue in this matter, there appears to have been no 

dispute. At sentencing, the parties discussed the terms and conditions of defendant’s 

probation, the time remaining on defendant’s terms of probation if reinstated, that 

defendant was recently found in violation of his probation, and that defendant sought to 

be reinstated on probation. Moreover, the court’s own records reflected the dates 

defendant was granted probation on his prior convictions. We therefore conclude there is

no reasonable probability a jury would not have found true beyond a reasonable doubt 

that defendant was on probation when he committed the offenses at issue in this matter.

8 Specifically, the probation officer provided defendant’s “CII” number (relating 

to the state Department of Justice’s Criminal Identification Index database), his “FBI” 

number (relating to the Federal Bureau of Investigation’s Criminal Justice Information 

Services database), his “CDL” number (his California driver’s license number used to 

search the state Department of Motor Vehicles’ database), and his “MDOC” number (his 

Madera County Department of Corrections identification number). 
13.

As to the third circumstance in aggravation, that defendant’s prior performance on 

probation prior to the convictions at issue was unsatisfactory, the probation report again 

provides a strong basis for the finding. As to defendant’s performance on probation prior 

to the convictions at issue in this matter, defendant was granted a 36-month term of 

misdemeanor probation in September 21, 2016, which he necessarily violated by driving 

without a license in 2017. He also was granted a three-year term of bench probation on 

August 11, 2017, on his driving-without-a-license conviction. Six days later, he 

necessarily violated that probation when he committed the arson offense he was 

convicted of in case No. MCR060145.9 Defendant was also granted a four-year term of 

probation on March 7, 2018, on his driving-with-a-blood-alcohol-percentage-of-0.08-orhigher conviction, which he necessarily violated by committing the September 23, 2018 

criminal threats offense in MCR060560. Additionally, defendant admitted a violation of 

probation in the 2017 driving-without-a-license case on April 22, 2019. Again, there is 

no logical reason defendant would not have challenged his record of convictions and 

grants of probation if they had not been true. Because each violation of probation was 

based on commission of a new offense of which defendant was convicted and because 

defendant admitted one violation of probation, we conclude there is no reasonable 

probability a jury would not have found true beyond a reasonable doubt that defendant’s 

prior performance on probation was unsatisfactory. Defendant completed no grant of 

probation without committing a new offense.

Finally, as to the fourth circumstance in aggravation, that defendant’s performance 

on probation after the April 22, 2019 convictions at issue in this matter, was 

unsatisfactory, the record provides some support that a jury would have found the 

circumstance true beyond a reasonable doubt. As noted above, defendant admitted one 

9 The criminal complaint alleged that the arson offense occurred on or about 

August 17, 2018. In either event, the offense constituted a violation of the three-year 

term of probation granted on August 11, 2017.
14.

violation of probation and a second was proved to the trial court by a preponderance of 

the evidence. As to the second violation of probation, defendant testified that he was 

unable to report as required because he was arrested. No additional evidence was 

provided regarding the purported arrest. He also testified that he attempted to call his 

probation officer two or three days after the date he was required to report but was unable 

to make contact. Defendant’s probation officer testified that defendant had previously 

failed to keep some prior appointments. She also testified that defendant had previously 

reached him by telephone. On this record, we cannot conclude that there is no reasonable 

probability a jury would have found not true that defendant had violated probation a 

second time.

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

the first three aggravating circumstances and that defendant admitted some, but not all, 

facts underlying the fourth aggravating circumstance. Defendant’s admission that he 

violated probation on the offenses at issue in this matter (on the more serious of the two 

violations of probation—the former violation of probation was commission of a new 

offense; the latter was failing to report) was sufficient for the trial court to conclude that 

defendant’s performance on probation in this matter was unsatisfactory even without the 

second violation of probation. Because the jury would have found true three of the four 

aggravating circumstances, the facts underlying the fourth aggravating circumstance that 

were admitted were sufficient to support the aggravating circumstance, and only one 

mitigating circumstance—defendant’s “mental health issues”—was present, we conclude 

there is no reasonable probability the trial court would have imposed a more favorable 

sentence than the upper term. Indeed, in sentencing defendant based on the four 

aggravating circumstances originally found true, the trial court found “that the 

aggravating factors justif[ied] an imposition of the aggravated term.” The error was 

therefore harmless and remand for resentencing is unnecessary.
15.

DISPOSITION

The trial court is directed to issue an amended abstract of judgment reflecting the 

consecutive one-third middle term sentence on count 1 of case No. MCR060560 and no 

sentence on count 2 of the same, and transmit copies thereof to the appropriate entities. 

Defendant’s sentence is affirmed.

DETJEN, J.

I CONCUR:

POOCHIGIAN, Acting P. J.
MEEHAN, J., Concurring and Dissenting.

I. Introduction and Summary

I concur in the majority’s affirmance of the trial court’s revocation of probation in 

part I. of the Discussion. In part II. of the Discussion, the majority applies People v. 

Dunn (2022) 81 Cal.App.5th 394 (opn. mod. and ordered pub. July 20, 2022) (Dunn) and

its invocation of a harmless error analysis to conclude defendant is not entitled to 

resentencing under Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567 or Sen. 

Bill 567). I respectfully decline to join in the majority’s reasoning and conclusions in this 

regard.

Defendant was sentenced to an upper term under former section 1170 of the Penal 

Code.1 The former version of the statute permitted the sentencing court broad discretion 

to select the appropriate term of imprisonment articulated for the crime committed among 

three permissible options: low, middle, or upper. The sentencing court was allowed to 

find and weigh aggravating and mitigating circumstances and, based on the 

circumstances, was free to select any one of the terms it believed best served the interests 

of justice.

Senate Bill 567 significantly altered this sentencing scheme and the new law limits 

a trial court’s discretion to impose an upper term: “the court shall, in its sound discretion, 

order imposition of a sentence not to exceed the middle term ....” (§ 1170, subd. (b)(1).) 

Presumptively, the middle term is now the maximum term that may be imposed and it 

may be exceeded “only when there are circumstances in aggravation of the crime that 

justify imposition of a term of imprisonment exceeding the middle term ....” (Id., 

subd. (b)(2).) In addition, the facts underlying those circumstances must be proven, 

admitted or evidenced in a specific manner not required under the former law. (Ibid.)

1 Further statutory references are to the Penal Code unless otherwise stated.
2.

Presumptions affecting the trial court’s sentencing discretion that are enacted in 

new legislation or by judicial precedent have been recognized as key ameliorative 

changes in the law, including those implemented by Senate Bill 567. Further, the Courts 

of Appeal have uniformly agreed the Legislature intended Senate Bill 567 to be applied 

retroactively. In this situation, similar to other ameliorative and retroactively applied law 

that affects a court’s sentencing discretion, the standard articulated by the California 

Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1358, 1382 (Gutierrez) governs 

and ultimately requires resentencing unless the record clearly indicates the trial court 

would have imposed the upper term had it known of the new presumptive middle term.

In Gutierrez, the Supreme Court considered a retroactive change in the trial 

court’s sentencing discretion based on a presumption that mirrors the one at issue here. 

The Gutierrez court interpreted section 190.5, subdivision (b) (section 190.5(b) or 

§ 190.5(b)), which provided that the penalty for 16- to 17-year-old juveniles convicted of 

special-circumstance murder shall be life without the possibility of parole (LWOP) or 

25 years to life at the court’s discretion. At that time, appellate and trial courts had long 

construed this provision as establishing LWOP as the presumptive term. The Supreme 

Court held that section 190.5(b) contained no such presumption and explained that, 

“Although the trial courts in these cases understood they had some discretion in 

sentencing, the records do not clearly indicate that they would have imposed the same 

sentence had they been aware of the full scope of their discretion. Because the trial 

courts operated under a governing presumption in favor of [LWOP], we cannot say with 

confidence what sentence they would have imposed absent the presumption.” (Gutierrez, 

supra, 58 Cal.4th at p. 1391.)

The Gutierrez court observed that courts previously supporting the LWOP 

presumption believed the statute expressed a preference for LWOP as the “‘generally

mandatory’” punishment and that “‘the court’s discretion is concomitantly circumscribed 

to that extent.’” (Gutierrez, supra, 58 Cal.4th at p. 1370, italics added, quoting People v.
3.

Guinn (1994) 28 Cal.App.4th 1130, 1142.) In Gutierrez, the change in the law 

retroactively expanded the trial court’s sentencing discretion by eliminating a 

presumption in favor of LWOP. Here, the change in the law retroactively restricts the 

sentencing court’s discretion by adding an express presumption in favor of a sentence not 

exceeding the middle term. Directly pertinent here, the high court reasoned “it is one 

thing to say that a court, confronting [three] permissible sentencing options, may impose 

the harsher sentence if it finds that sentence justified by the circumstances. It is quite 

another to say that a court, bound by a presumption [not to exceed the middle term], must 

impose that sentence unless it finds good reason not to do so.” (Gutierrez, supra, at 

p. 1382.)

The trial court in this case made its sentencing decision in the absence of the new 

presumption against exceeding the middle term, and the record does not clearly indicate 

that the court would have imposed the upper term had it been aware of the new constraint 

on its discretion. I believe Gutierrez is binding and the appropriate remedy is to remand 

for the sentencing court to exercise its newly informed and circumscribed discretion in 

the first instance.

The majority’s departure from the Supreme Court’s clear indication test appears to 

be predicated upon the proposition that Senate Bill 567 did not change the trial court’s 

sentencing discretion and only changed the manner in which aggravating circumstances 

must be proved. This approach necessarily is based on what I believe is an unreasonable 

interpretation of the amended version of section 1170, subdivision (b) (section 1170(b) or 

§ 1170(b)), as Senate Bill 567 amended the statute in more than one way. In 

subdivision (b)(1), the Legislature established a clear and express new preference in

sentencing of the type the Supreme Court has explained affects the trial court’s discretion 

that did not exist in the prior version. If the Legislature did not intend to alter the 

sentencing court’s discretion in this manner, it simply could have left intact the language 

articulating the prior standard. Contrary to the rules of statutory interpretation, the 
4.

majority gives no effect to the not-to-exceed language and the change in sentencing 

discretion it manifests. Rather, they bypass subdivision (b)(1) and give effect only to 

how the facts underlying aggravating circumstances must be proved, admitted or 

evidenced under subdivision (b)(2) and (b)(3). The fact is, in the context of upper term 

sentences, no court embracing a harmless error analysis to preclude resentencing under 

Senate Bill 567 acknowledges the extent of the changes in the law, meaningfully 

addresses Gutierrez, or explains their departure from Gutierrez’s governing standard.

I agree that a harmless error analysis may be applied to test an original upper term 

sentence for legal viability under the Sixth Amendment and the new law as it relates to 

how facts underlying the aggravating circumstances are determined. If, in imposing an 

upper term, the trial court relied on aggravating circumstances not admitted or proved as 

Sixth Amendment principles and the amended statute require, reversal may not be 

necessary if one or all of the circumstances are deemed harmlessly considered under a 

prejudicial error analysis.

This analysis, however, is only probative of whether the sentence is invalid and 

remand is mandated, not whether resentencing is precluded. In the event that none of the 

aggravating circumstances are supported by facts properly or harmlessly found, an upper 

term is not even legally viable under the new law and remand is required without the 

necessity of further inquiry. On the other hand, if any or all of the aggravating 

circumstances were properly or harmlessly considered, then the upper term could be 

imposed if the statute’s other provisions are satisfied. But applying a harmless error test 

for this purpose, in my view, cannot resolve whether the trial court would, with the 

benefit of the new presumption against exceeding the middle term, exercise its newly 

circumscribed discretion and nonetheless impose the upper term.

To answer the latter question of what the trial court would do, my colleagues here 

and in Dunn, along with other courts, apply a second harmless error analysis to gauge the 

likelihood of what sentence the trial court would impose on resentencing based on their 
5.

calculation of reasonable probabilities. How a trial court would balance the 

circumstances under a new standard of discretion in the first instance, however, should 

not be a matter of estimating the odds. I agree a second inquiry is necessary, but I would 

apply Gutierrez and ascertain whether the record clearly indicates that the trial court 

would make the same sentencing decision notwithstanding the new constraint on its 

discretion. The clear indication test requires more than a showing that the trial court’s 

original imposition of the upper term simply is supported by one or more of the 

aggravating circumstances properly or harmlessly considered. It requires a new 

evaluation and weighing of the circumstances by the sentencing court that starts with the 

awareness that the new statutory preference bears on its discretion. To do otherwise is to 

conflate this starting preference with the necessary procedural requirements for finding 

aggravating circumstances that justify overcoming it.

A harmless error approach to determine how the trial court would exercise its 

newly informed discretion unnecessarily injects a layer of speculation into the inquiry 

that is out of step with Gutierrez and effectively places the sentencing decision in the 

hands of the appellate court. Importantly, it deprives the defendant of a fair opportunity 

to obtain all of the ameliorative benefits of the new law, and precludes the defendant 

from a sentencing determination made in the exercise of informed discretion. In sum, 

while a harmless error test may be utilized to test an upper term sentence for legal 

viability as a threshold inquiry, Gutierrez guides any subsequent analysis determinative 

of resentencing. When I apply that framework here, defendant is clearly entitled to 

resentencing. Therefore, I respectfully dissent from the majority’s reasoning and 

conclusion in part II. of the Discussion.

II. Applicable Legal Background and Principles

Prior to January 1, 2022, former section 1170(b) provided that “[w]hen a judgment 

of imprisonment is to be imposed and the statute specifies three possible terms, the 

choice of the appropriate term shall rest within the sound discretion of the court.... The 
6.

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

justice....”

Senate Bill 567 amended section 1170(b), and it now provides that “[w]hen a 

judgment of imprisonment is to be imposed and the statute specifies three possible terms, 

the court shall, in its sound discretion, order imposition of a sentence not to exceed the 

middle term, except as otherwise provided in paragraph (2).” (Id., (b)(1).) “The court 

may impose a sentence exceeding the middle term only when there are circumstances in 

aggravation of the crime that justify the imposition of a term of imprisonment exceeding 

the middle term, and the facts underlying those circumstances have been stipulated to by 

the defendant, or have been found true beyond a reasonable doubt at trial by the jury or 

by the judge in a court trial....” (Id., (b)(2).)

The genesis of the harmless error analysis to measure the need for resentencing 

upon retroactive application of Senate Bill 567 appears rooted in how the Sixth 

Amendment is implicated by section 1170(b)(1)’s prohibition on exceeding the middle 

term and the new state law requirements for proving aggravating circumstances. In 

general terms, former section 1170(b) did not restrict a trial court’s discretion to impose 

an upper term, so a Sixth Amendment jury trial right did not attach to the aggravatingcircumstance findings used to support an upper term; the trial court was free to make 

these findings itself without a jury.

In retroactively restricting a court’s discretion to impose the upper term under the 

new law, a jury trial right retroactively attaches to the aggravating-circumstance findings 

made to support that upper term under the former law.2 The new procedural 

requirements in section 1170(b)(2) (which address this Sixth Amendment issue) also 

retroactively attach to the original sentencing decision. The resulting question is whether 

2 As I indicate, post, a Sixth Amendment jury trial right does not attach to the fact of 

a prior conviction or facts the defendant has admitted.
7.

aggravating-circumstance findings made by the court without a jury survive 

constitutional and state law scrutiny. The focus of the harmless error analyses deployed 

to consider retroactive application of Senate Bill 567 revolve exclusively around this 

question, but none accounts for how retroactively limiting the sentencing court’s 

discretion also precludes the original sentencing decision from being a fully informed 

one.

Accordingly, to explicate my position in full context, I begin my analysis with the 

Sixth Amendment and its relevance to Senate Bill 567 and section 1170(b).

A. Sixth Amendment Implications

1. Sixth Amendment and California’s Determinate Sentencing Law (DSL)

“Other than the fact of a prior conviction, any fact that increases the penalty for a 

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

beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 

(Apprendi).) As such, “the Federal Constitution’s [Sixth Amendment] jury-trial 

guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above 

the statutory maximum based on a fact, other than a prior conviction, not found by a jury 

or admitted by the defendant.” (Cunningham v. California (2007) 549 U.S. 270, 274–275 

(Cunningham).) “[T]he relevant ‘statutory maximum’ is not the maximum sentence a 

judge may impose after finding additional facts, but the maximum he may impose 

without any additional findings.” (Blakely v. Washington (2004) 542 U.S. 296, 303–304 

(Blakely).)

California’s DSL in effect from 1977 to 2007 assigned to the trial judge, not a 

jury, the authority to find facts that exposed a defendant to an elevated “upper term” 

sentence. The pre-2007 version of section 1170(b), provided that “the court shall order 

imposition of the middle term, unless there are circumstances in aggravation or 

mitigation of the crime.” (Stats. 1976, ch. 1139, § 273, pp. 5140–5141, as amended by 

Stats. 1977, ch. 165, § 15, pp. 647–649.) The circumstances in aggravation or mitigation 
8.

were to be determined by the court after consideration of the trial record; the probation 

officer’s report; statements in aggravation or mitigation submitted by the parties, the 

victim, or the victim’s family; and any further evidence introduced at the sentencing 

hearing. (Stats 1976, ch. 1139, § 273, pp. 5140–5141; see Cunningham, supra, 549 U.S. 

at p. 277, citing § 1170, former subd. (b).) The California Rules of Court provided that 

“[c]ircumstances in aggravation” were to be “established by a preponderance of the 

evidence.” (Cal. Rules of Court, former rule 4.420(b).)

In 2007, the United States Supreme Court held this sentencing scheme violated the 

Sixth Amendment’s jury-trial guarantee as articulated in Apprendi and Blakely because it 

allowed a sentencing judge to impose a term beyond the statutory maximum based on 

facts not proven to a jury beyond a reasonable doubt or admitted by the defendant. 

(Cunningham, supra, 549 U.S. at p. 293.) The high court explained “California’s DSL, 

and the Rules governing its application, direct the sentencing court to start with the 

middle term, and to move from that term only when the court itself finds and places on 

the record facts—whether related to the offense or the offender—beyond the elements of 

the charged offense.” (Id. at p. 279.) Applying Apprendi and Blakely, the court 

concluded the middle term under California’s DSL was the relevant statutory maximum. 

(Cunningham, supra, at p. 288.) To the extent the DSL allowed a sentencing judge to 

find facts necessary to impose a punishment exceeding the middle term that were neither 

established by the jury’s verdict, the defendant’s admissions, or the defendant’s prior 

convictions, the system did not “withstand measurement against [the court’s] Sixth 

Amendment precedent.” (Cunningham, supra, at p. 293.)

Applying Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II), the 

California Supreme Court addressed whether the imposition of the upper term in the 

circumstances of Black’s case violated the Sixth Amendment. Black argued he had a 

right to a jury trial on all aggravating circumstances that may be considered by the 

sentencing court in imposing the upper term, even if one aggravating circumstance was 
9.

established in accordance with Blakely. (Black II, supra, at p. 814.) This was so, Black 

argued, because selection of the upper term was justified only when the circumstances in 

aggravation outweigh the circumstances in mitigation—thus, a court could not impose the 

upper term unless it determined that any aggravating circumstances were of sufficient 

weight to justify the upper term. (Ibid.) Accordingly, Black asserted, “if only one of 

several aggravating circumstances considered by the trial court has been established 

pursuant to Sixth Amendment requirements, and the upper term sentence is selected, the 

court has imposed ‘punishment that the jury’s verdict alone does not allow, the jury has 

not found all the facts “which the law makes essential to the punishment,” [citation] and 

the judge exceeds his proper authority.’” (Black II, supra, at p. 814, quoting Blakely, 

supra, 542 U.S. at p. 304.)

Our high court rejected this argument. The court observed that “under the line of 

high court decisions beginning with Apprendi, ..., and culminating in Cunningham, ..., 

the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies 

only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at 

p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than 

is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. [281]).” 

(Black II, supra, 41 Cal.4th at p. 812.) “‘The Sixth Amendment question, the Court has 

said, is whether the law forbids a judge to increase [the] defendant’s sentence unless the 

judge finds facts that the jury did not find (and the offender did not concede).’ (Rita v. 

United States (2007) 551 U.S. [338, 352].)” (Ibid.)

Under California’s pre-2007 determinate sentencing scheme, the sentencing court 

was required to order imposition of the middle term unless there were circumstances in 

aggravation or mitigation of the crime. (Black II, supra, 41 Cal.4th at p. 808, citing 

§ 1170, former subd. (b).) Under this framework, the court pointed out, the presence of 

one aggravating circumstance made it lawful for the trial court to impose an upper term 

sentence. (Black II, supra, at p. 813.) So long as one aggravating circumstance was 
10.

established in accordance with the constitutional requirements, the defendant was no 

longer entitled to the middle term, and the upper term became the statutory maximum for 

Sixth Amendment purposes. (Black II, supra, at p. 813.) The court explained further that 

a sentencing court’s “factual findings regarding the existence of additional aggravating 

circumstances may increase the likelihood that it actually will impose the upper term 

sentence, but these findings do not themselves further raise the authorized sentence 

beyond the upper term. No matter how many additional aggravating facts are found by 

the court, the upper term remains the maximum that may be imposed. Accordingly, 

judicial factfinding on those additional aggravating circumstances is not 

unconstitutional.” (Id. at p. 815.)

Based on this, the Black II court held “as long as a single aggravating 

circumstance that renders a defendant eligible for the upper term sentence has been 

established in accordance with the requirements of Apprendi and its progeny, any 

additional factfinding engaged in by the trial court in selecting the appropriate sentence 

among the three available options does not violate the defendant’s right to jury trial.” 

(Black II, supra, 41 Cal.4th at p. 812.)

Applying this reasoning to the facts before it, our high court noted one of the 

aggravating facts the trial court relied on to impose the upper term sentence was that 

force was used against the victim to commit the underlying crime, a fact that was 

necessarily presented to the jury in the form of a special allegation.3 This aggravating 

circumstance, the court reasoned, rendered Black eligible for the upper term under 

section 1170. (Black II, supra, 41 Cal.4th at p. 817.) Beyond that, the trial court had 

relied on Black’s numerous prior convictions as an aggravating circumstance, which the 

3 The jury had found true the allegation that Black had committed the offense by 

means of “‘force, violence, duress, menace, and fear of immediate and unlawful bodily 

injury’” within the meaning of section 1203.066, subdivision (a)(1), which rendered 

Black ineligible for probation. (Black II, supra, 41 Cal.4th at pp. 816–817.)
11.

court held came within the prior conviction exception to which no jury trial right applied. 

(Id. at pp. 818–820.) As Black was eligible for the upper term sentence based on at least 

one aggravating circumstance found in compliance with the Sixth Amendment and the 

prior conviction exception thereto, the court concluded his right to a jury trial was not 

violated by imposition of the upper term sentence. (Black II, supra, at p. 820.)

2. The Harmless Error Test for Sixth Amendment Violations in 

Sentencing under the DSL

On the same day it decided Black II, our high court issued its opinion in People v. 

Sandoval (2007) 41 Cal.4th 825 (Sandoval), which also presented a question of whether 

the imposition of an upper term sentence under the pre-2007 DSL violated the 

defendant’s Sixth Amendment rights. Different from Black II, none of the aggravating 

circumstances found by the trial court for imposing the upper term satisfied the Sixth 

Amendment under Apprendi, Blakely or Cunningham; all were based on the facts 

underlying the crime, none of which had been admitted by the defendant, established by 

the jury’s verdict, or involved a prior conviction. (Sandoval, supra, at pp. 837–838.) The 

court concluded the upper term sentence violated the Sixth Amendment, but then 

proceeded to determine whether that error was harmless. (Id. at pp. 838–843.)

The court explained the denial of a Sixth Amendment jury trial right was reviewed 

under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 

(Chapman). (Sandoval, supra, 41 Cal.4th at p. 838.) However, the relevant question 

regarding the failure to submit a sentencing factor to a jury was not whether the error 

contributed to the verdict; rather, the question was whether the jury’s verdict would have 

authorized the upper term sentence had the aggravating circumstance been submitted to 

the jury. (Ibid.) Reiterating its reasoning in Black II that only one aggravating 

circumstance renders a defendant eligible for an upper term sentence and tailoring the 

Chapman error standard to the context, Sandoval held that “[i]f a reviewing court 

concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-
12.

doubt standard, unquestionably would have found true at least a single aggravating 

circumstance had it been submitted to the jury,” the error is harmless. (Sandoval, supra,

at p. 839.)

3. Retroactive Application of Senate Bill 567 Implicates the Sixth 

Amendment

Meanwhile, in response to Cunningham, California’s Legislature amended the 

DSL through urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) The 

amended DSL did away with a presumptive middle term and left “the choice of the 

appropriate term” to the “sound discretion of the court.” (Stats. 2007, ch. 3, § 2.) The 

jury’s verdict alone was sufficient to render a defendant eligible for an upper term 

sentence, making the upper term the relevant statutory maximum for purposes of the 

Sixth Amendment, remedying the DSL’s constitutional infirmity. (See generally 

Apprendi, supra, 530 U.S. at p. 481 [observing nothing in the common law history 

pertaining to jury trial right in criminal cases “suggests that it is impermissible for judges 

to exercise discretion—taking into consideration various factors relating both to offense 

and offender—in imposing a judgment within the range prescribed by statute”].)

Under the changes effected by Senate Bill 567, a trial court imposing a sentence 

may no longer select any of the three terms that best serves the interests of justice, but 

must impose a sentence that does not exceed the middle term, except as provided in 

section 1170 (b)(2). As elements of the offense being punished may not be used to 

impose an upper term (Cal. Rules of Court, rule 4.420(h)), a defendant is not eligible for 

an upper term sentence based solely on a conviction on the substantive offense—only the 

presence of an additional aggravating circumstance proved, admitted or evidenced in 

conformity with all the requirements of section 1170(b)(2) and (b)(3) will render a 

defendant eligible for an upper term.

Senate Bill 567 addressed the potential Sixth Amendment issue regarding upper 

term sentences by requiring aggravating circumstances be found, admitted or evidenced 
13.

in conformity with Sixth Amendment principles. But when Senate Bill 567 is applied 

retroactively to sentencings occurring under section 1170, former subdivision (b), the 

issue is whether the aggravating circumstances found by the sentencing judge and relied 

on to impose the upper term now comply with the Sixth Amendment and the new state 

law.4

B. Courts Applying a Harmless Error Analysis to Assess the Need for 

Resentencing on Retroactive Application of Senate Bill 567

Apparently to address this potential issue, the Court of Appeal in Flores extended 

the harmless error test applied in Sandoval to assess whether an upper term sentence 

imposed under the former DSL required resentencing upon retroactive application of the 

new law. (Flores, supra, 75 Cal.App.5th at p. 500.) There, to impose the upper term 

under section 1170, former subdivision (b), the sentencing court relied on aggravating 

circumstances that included the defendant’s numerous prior convictions and sustained 

juvenile delinquency petitions, and the defendant’s unsatisfactory performance while on 

probation—he was on probation when he committed his current offenses. (Flores, supra, 

at p. 500.) To the extent these aggravating circumstances were not stipulated or found 

true by a jury beyond a reasonable doubt, the court applied Sandoval and concluded that, 

“beyond a reasonable doubt, the jury would have found true at least one aggravating 

circumstance.” (Flores, supra, at p. 521.) The court summarily concluded remand for 

resentencing under the new law was unnecessary.

The appellate court in Lopez disagreed with Flores that Sandoval was dispositive 

4 The Courts of Appeal have uniformly concluded Senate Bill 567 is an ameliorative 

change in the law that applies retroactively. (People v. Flores (2022) 73 Cal.App.5th 

1032, 1039; accord, People v. Flores (2022) 75 Cal.App.5th 495, 500–501 (Flores); 

People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez); People v. Zabelle (2022) 80 

Cal.App.5th 1098, 1109 (Zabelle); Dunn, supra, 81 Cal.App.5th at p. 403; see People v. 

Wandrey (2022) 80 Cal.App.5th 962, 981 (Wandrey) [accepting parties’ concession Sen. 

Bill 567 is ameliorative and applies retroactively]; see also People v. Salazar (2022) 80 

Cal.App.5th 453, 462 [same].)
14.

as to resentencing in the context of Senate Bill 567, and fashioned a different harmless 

error analysis: “The question of prejudice under retroactive application of the revised 

triad system involves a two-step process, neither of which includes a determination as to 

whether the trial court relied on a single, or even a few, permissible factors in selecting an 

upper term. Rather, under the new version of the triad system set forth in section 1170, 

the initial relevant question for purposes of determining whether prejudice resulted from 

failure to apply the new version of the sentencing law is whether the reviewing court can 

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

doubt all of the aggravating factors on which the trial court relied in exercising its 

discretion to select the upper term. If the answer to the question is ‘yes,’ then the 

defendant has not suffered prejudice from the court’s reliance on factors not found true 

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

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

the degree required by People v. Watson (1956) 46 Cal.2d 818, 836, that the trial court 

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

recognized that it could permissibly rely on only a single one of the aggravating factors, a 

few of the aggravating factors, or none of the aggravating factors, rather than all of the 

factors on which it previously relied.” (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.)

The trial court in Lopez had imposed an upper term sentence for one of the 

defendant’s offenses based on nine aggravating factors that related to the nature of the 

crimes, how they were committed, and the danger to society the defendant posed; 

numerous prior convictions increasing in seriousness; a prior prison term served; and 

unsatisfactory performance on probation, mandatory supervision and postrelease 

community supervision or parole. (Lopez, supra, 78 Cal.App.5th at p. 464, fn. 8.) Most 

of these factors were not found true beyond a reasonable doubt by a jury, nor were they 

admitted by the defendant.
15.

On appeal, the court concluded that upon retroactive application of Senate 

Bill 567, the improper consideration of aggravating circumstances could not be deemed 

harmless unless it could be determined beyond a reasonable doubt that a jury would have 

found true beyond a reasonable doubt every aggravating circumstance on which the court 

relied in imposing the upper term—the adapted Chapman harmless error test articulated 

in Sandoval for Sixth Amendment jury-trial right violations. (Lopez, supra, 78 

Cal.App.5th at pp. 465–466.) The court rejected the People’s suggestion that 

resentencing was unnecessary because the trial court had relied on one permissible 

circumstance. (Id. at pp. 466–467 & fn. 10.) The court reasoned that while 

“unquestionably the trial court may still rely on any single permissible aggravating factor 

to select an upper term sentence under the newly revised triad system” (id. at p. 467), 

state law required all aggravating circumstances to be found true by a jury beyond a 

reasonable doubt, admitted by the defendant, or constitute a prior conviction (id. at 

p. 466). From the facts before it, the court found several aggravating circumstances did 

not pass scrutiny under the adapted Chapman harmless error test. (Lopez, supra, at 

pp. 465–468.)

The court reasoned that when not all aggravating circumstances could be deemed 

harmlessly considered, a second relevant prejudice question must be addressed: whether 

the court would have exercised its discretion to impose the upper term on less than all the 

aggravating circumstances originally relied upon. (Lopez, supra, 78 Cal.App.5th at 

p. 467.) Notably applying Gutierrez, the court remanded for resentencing under the new 

law because the record did not clearly indicate the trial court would have exercised its 

discretion to impose an upper term based solely on a single permissible aggravating 

circumstance or some constellation of permissible aggravating circumstances less than all 

it had originally relied upon. (Lopez, supra, at pp. 467–468.)

Somewhat differently in Wandrey, the court concluded that, to determine whether 

resentencing is warranted under the new law, the harmless error test under Sandoval did 
16.

not encompass the separate variable that Senate Bill 567 posed in “changing the 

framework within which the trial court exercises its discretion by specifying a 

legislatively determined presumptive sentence.” (Wandrey, supra, 80 Cal.App.5th at 

p. 982.) Thus, instead of relying on Sandoval exclusively to determine whether 

resentencing was necessary, the court cited Lopez and applied a slightly modified 

resentencing test, assessing whether it was “certain the jury would have found beyond a 

reasonable doubt the aggravating circumstances relied on by the court and whether the 

trial court would have exercised its discretion in the same way if it had been aware of the 

statutory presumption in favor of the middle term.” (Wandrey, supra, at p. 982.) 

Applying this framework, the court remanded for resentencing, reasoning it would 

require “[s]ome degree of speculation” to conclude the jury would have agreed with the 

court’s evaluation of the aggravating circumstances relied upon or that the trial court 

would have exercised its sentencing discretion the same way if it had taken the statutory 

presumption of the middle term into account. (Id. at p. 983.)

In Dunn, a panel of this court recently adopted Lopez’s analysis, but altered it 

slightly to incorporate a Watson5 harmless error test into the first prong. (Dunn, supra,

81 Cal.App.5th at pp. 409–410.) Like Lopez, the court in Dunn concluded that if all 

aggravating circumstances relied on by the trial court were permissibly or harmlessly 

considered, then resentencing is not warranted. (Dunn, supra, at p. 410.) However, 

Dunn disagreed with Lopez’s conclusion that a Chapman-style harmless error test applied 

to evaluate all of the aggravating circumstances in making this determination. (Dunn, 

supra, at pp. 409–410.) The court reasoned that if a single aggravating circumstance is 

relied on in accordance with Sixth Amendment principles, or was harmlessly relied upon 

as articulated in Sandoval, the upper term sentence is constitutionally viable under the 

new law. (Dunn, supra, at p. 409.)

5 People v. Watson (1956) 46 Cal.2d 818 (Watson).
17.

As such, Dunn reasoned, whether any other aggravating circumstances were 

permissibly considered to impose the upper term implicates an issue of state law only 

(Dunn, supra, 81 Cal.App.5th at pp. 409–410); thus, if additional circumstances were not 

considered in compliance with the new requirements under section 1170(b)(2) and (b)(3), 

then Watson provides the applicable harmless error test as to those circumstances, rather 

than the Chapman-style harmless error test applied in Lopez. (Dunn, supra, at pp. 409–

410.) If all aggravating circumstances were proven to the respective standards, the court 

concluded any error is harmless and resentencing is not warranted. (Dunn, supra, at 

p. 410; see Zabelle, supra, 80 Cal.App.5th at p. 1112 [articulating same two-part 

harmless error test and considering aggravating circumstances under Sandoval and 

Watson to evaluate need for resentencing under Sen. Bill 567].) If not, Dunn explained, a 

second step is necessary to determine whether, under Watson, there is a reasonable 

probability that the trial court would have imposed a sentence other than the upper term 

in light of the aggravating circumstances provable from the record as determined in the 

prior steps of the analysis. (Dunn, supra, at p. 410.)

In applying this framework, the Dunn court concluded from the record before it 

that two aggravating circumstances relied on by the sentencing court were found in 

compliance with Sixth Amendment principles and in compliance with the new state law. 

(Dunn, supra, 81 Cal.App.5th at p. 410.) As to one other aggravating circumstance not 

found in compliance with the new state law, the court applied Watson and concluded any 

error in relying on that circumstance was harmless. (Dunn, supra, at pp. 410–411.) As 

all the aggravating circumstances considered by the sentencing court were either 

permissibly or harmlessly relied upon, the court held any error in imposing an upper term 

sentence under the new law was harmless, no analysis at the second step was necessary, 

and resentencing was not warranted. (Id. at p. 411.)
18.

C. Limited Applicability of Harmless Error Test

1. Harmless Error Test Cannot Preclude Resentencing

Regardless of the variance in the harmless error tests articulated in the cases 

above, two questions have emerged as the relevant inquiry to determine whether upper 

term sentences imposed under section 1170, former subdivision (b), require resentencing 

under section 1170(b) as amended by Senate Bill 567. First, there is a question whether, 

in light of the aggravating circumstances relied on to originally impose an upper term 

sentence, the upper term could still be legally imposed under federal and state law. The 

second relevant question, as articulated in Lopez, Dunn and Wandrey, involves an 

evaluation of whether a trial court would impose an upper term sentence under the new 

law.

While I generally agree with this basic framework, no application of the harmless 

error test can be properly employed to preclude resentencing. The Flores court’s 

evaluation of aggravating circumstances under Sandoval is relevant to whether 

resentencing is mandated as a constitutional matter: if, on retroactive application of the 

new law, improper consideration of aggravating circumstances in imposing an upper term 

prejudicially violates a defendant’s jury trial right under the Sixth Amendment, then 

resentencing would be required. But the inverse proposition, as Flores applied the test, is 

not truly conclusive of the need for resentencing: an upper term sentence that passes

muster under a Sixth Amendment harmless error test (Sandoval) informs only whether 

the sentence could be legally imposed under the Sixth Amendment given the aggravating 

circumstances relied upon.

As I will explain below, this fails to consider whether a trial court would exercise 

its newly circumscribed discretion under section 1170 to impose an upper term in the first 

instance. Recognizing this issue, Wandrey held that application of the Sandoval harmless 

error test as applied in Flores is not necessarily dispositive of the need for resentencing 

under Senate Bill 567. (Wandrey, supra, 80 Cal.App.5th at p. 982 [harmless error test for 
19.

6th Amend. does not take into account the changed framework under which the court 

now exercises its discretion under Sen. Bill 567].)

In this regard, the Lopez analysis suffers a shortcoming similar to Flores. Lopez 

states that if all the aggravating circumstances were properly considered under the new 

law or harmlessly considered under a Chapman-style harmless error test,6then the 

defendant has suffered no prejudice, and the second question is not relevant—i.e., no 

resentencing is warranted. (Lopez, supra, 78 Cal.App.5th at pp. 466–467, fns. 10 & 11.) 

Although applying a modified harmless error analysis at this first step, Dunn too 

concludes that if all aggravating circumstances were properly or harmlessly considered 

under federal and state law, then resentencing is unwarranted. Yet, similar to Flores, the 

fact that aggravating circumstances were permissibly or harmlessly considered reveals 

only that the upper term could be imposed under federal and new state law given the 

aggravating circumstances considered, not whether a court would still impose an upper 

term in light of the court’s now curtailed sentencing discretion to do so.7

These approaches focus exclusively on the new procedural requirements for 

6 Lopez relied on the Sixth Amendment harmless error test articulated in People v. 

French (2008) 43 Cal.4th 36, which, in turn, relied on Sandoval. (People v. French, 

supra, at p. 53.)

7 For this reason, I am skeptical that Lopez applied a Chapman-style harmless error 

test to all aggravating circumstances not proven, admitted or evidenced because it 

believed it was a constitutional prerequisite to imposing an upper term. For one thing, 

Lopez did not articulate any doubts that Sandoval and Black II’s application of Apprendi 

(only one aggravating circumstance found in compliance with the 6th Amend., or 

impermissibly but harmlessly found by the sentencing court, is required to pass 

constitutional scrutiny) remained viable under the new sentencing framework. But, more 

importantly, Lopez indicated that if all the aggravating circumstances could not pass 

through the harmless error test (meaning, some were harmfully considered), only then 

would a second prejudice test be necessary. (Lopez, supra, 78 Cal.App.5th at p. 466, fn. 

10.) Logically, if all of the aggravating circumstances must pass scrutiny under the Sixth 

Amendment or the relevant harmless error test, the fact that some of them cannot meet 

those standards means the sentence is no longer constitutionally sound, and there would 

be no need to consider the second question because resentencing would be required.
20.

aggravating circumstances, giving no effect or consideration to section 1170(b)(1) or the 

language employed in section 1170(b)(2). Determining the best method to assess the 

effects of a changed law requires an examination of what actually changed; to do that, we 

must turn to the statute itself.

2. Section 1170(b) Circumscribes Trial Court’s Sentencing 

Discretion

“The proper interpretation of a statute is a question of law we review de novo.” 

(People v. Lewis (2021) 11 Cal.5th 952, 961.) In cases involving statutory interpretation, 

our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s 

purpose, and courts begin by examining the statute’s words, giving them a plain and 

commonsense meaning. (Ibid.) “‘“[W]e look to ‘the entire substance of the statute ... in 

order to determine the scope and purpose of the provision .... [Citation.]’ [Citation.] 

That is, we construe the words in question ‘“in context, keeping in mind the nature and 

obvious purpose of the statute ....” [Citation.]’ [Citation.] We must harmonize ‘the 

various parts of a statutory enactment ... by considering the particular clause or section in 

the context of the statutory framework as a whole.’”’” (Ibid.)

The former version of section 1170(b) provided as follows:

“When a judgment of imprisonment is to be imposed and the statute 

specifies three possible terms, the choice of the appropriate term shall rest 

within the sound discretion of the court. At least four days prior to the time 

set for imposition of judgment, either party or the victim, or the family of 

the victim if the victim is deceased, may submit a statement in aggravation 

or mitigation. In determining the appropriate term, the court may consider 

the record in the case, the probation officer’s report, other reports, including 

reports received pursuant to Section 1203.03, and statements in aggravation 

or mitigation submitted by the prosecution, the defendant, or the victim, or 

the family of the victim if the victim is deceased, and any further evidence 

introduced at the sentencing hearing. The court shall select the term which, 

in the court’s discretion, best serves the interests of justice. The court shall 

set forth on the record the reasons for imposing the term selected and the 

court may not impose an upper term by using the fact of any enhancement 

upon which sentence is imposed under any provision of law. A term of 
21.

imprisonment shall not be specified if imposition of sentence is 

suspended.” (§ 1170, former subd. (b).)

Senate Bill 567 significantly altered this framework. The Legislature amended 

section 1170(b) and added newly enumerated section 1170(b)(1), which states,

“When a judgment of imprisonment is to be imposed and the statute 

specifies three possible terms, the court shall, in its sound discretion, order 

imposition of a sentence not to exceed the middle term, except as otherwise 

provided in paragraph (2).” (§ 1170(b)(1).)

Section 1170(b)(1) supplies the court with full discretion to select either the lower 

or the middle term, but it plainly and expressly commands the court “not to exceed” the 

middle term—a definite and clear phrase meaning not to surpass. This prohibition is 

new, and it is a sea change from former section 1170(b), which allowed the court full 

discretion to select an upper term so long as it best served the interests of justice. This 

limitation circumscribes the sentencing court’s discretion to exceed a middle term in 

exactly the manner described in Gutierrez. (Gutierrez, supra, 58 Cal.4th at p. 1382 [a 

statutory preference in favor of a particular sentence does not eliminate a court’s 

discretion, but it does circumscribe it].) The majority’s analysis gives no effect to 

section 1170(b)(1); rather, it focuses solely on section 1170(b)(2) and the procedural 

requirements for proving aggravating factors.

Section 1170(b)(2) states, in relevant part,

“The court may impose a sentence exceeding the middle term only 

when there are circumstances in aggravation of the crime that justify the 

imposition of a term of imprisonment exceeding the middle term, and the 

facts underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at trial by the 

jury or by the judge in a court trial.....” (§ 1170(b)(2).)8

8 Some aspects of former section 1170(b) were unchanged and simply renumbered 

under the new law, including that statements in aggravation and mitigation may be 

submitted before judgment is imposed, the records the court may consider (§1170(b)(4)), 

the court’s obligation to set forth on the record the facts and reasons for choosing the 

sentence imposed (§ 1170(b)(5)); and the preclusion from imposing an upper term using 
22.

This is fully consistent with section 1170(b)(1). Section 1170(b)(1)’s proscription 

on exceeding the middle term is not followed in section 1170(b)(2) by a discretionary 

option to select an upper term sentence if, in the court’s discretion, such a sentence is 

warranted based on aggravating circumstances. There is no in-the-court’s-discretion

language prefacing this exception. It is not framed electively as an unless or an or option, 

but as an exception that may occur “only when” aggravating circumstances “justify” it. 

(§ 1170(b)(2).)

The statute does not simply allow a court to select an upper term because it best 

serves the interests of justice or because it appears warranted or supported. Instead, in 

distinct contrast with the former sentencing scheme, the court’s decision to impose an 

upper term is now expressly framed around whether circumstances justify invoking the 

exception to the rule that the middle term is the default maximum sentence. Contrary to 

the majority’s approach, section 1170(b)(1)’s words directing the sentencing court “not to 

exceed the middle term” are not rendered superfluous under section 1170(b)(2).

Far from undercutting section 1170(b)(1)’s rule, section 1170(b)(2) underscores 

that the middle term is the presumptive maximum term. In contrast to former 

section 1170(b), there must be justifying reasons and facts to exceed the middle term—

the court no longer has full discretion to impose an upper term. Those reasons and facts 

must be proven to the new standards articulated in section 1170(b)(2), or involve a prior 

conviction as articulated in section 1170(b)(3). Section 1170(b)(2) focuses on these two 

aspects in equal measure—one is the justification necessary to overcome the default 

middle term maximum, and the other is how that justification is to be proven and/or 

established.

the fact of any enhancement upon which sentence is imposed under any provision of law 

(ibid).
23.

The plain language of this framework bakes in a presumption the middle term is 

the default maximum sentence. (See Wandrey, supra, 80 Cal.App.5th at p. 982 [noting 

new law specifies a statutory presumption in favor of the middle term]; see also People v. 

Flores, supra, 73 Cal.App.5th at p. 1038 [one ameliorative benefit of Sen. Bill 567 is 

presumptive middle term maximum].) Senate Bill 567’s legislative history is express as 

to the existence of this presumption: “SB 567 creates a presumption of sentencing 

judg[]ment not to exceed the middle terms ....” (Sen. Rules Com., Office of Sen. Floor 

Analyses, voting on Sen. Bill 567 (2020–2021 Reg. Sess.) as amended Sept. 3, 2021, p. 4 

[quoting bill author’s comments].)9

Had the Legislature been concerned only with the burden and method of proof of 

aggravating circumstances to impose an upper term, it could have retained the post-2007 

sentencing structure allowing the trial court to select any of the three terms in its 

discretion, and simply required the circumstances supporting an upper term be proven to 

the standards articulated in Senate Bill 567. Instead, it chose to expressly bind a 

sentencing court to a middle-term maximum sentence to be exceeded “only when”

aggravating circumstances justify it. (§ 1170(b)(2).) How extensively the court’s 

sentencing discretion has been limited by this embedded presumption is a question only 

9 The author’s comments that Senate Bill 567 created a presumption of sentencing 

judgment not to exceed the middle terms was followed by the phrase “unless there are 

circumstances in aggravation of a crime that justify the imposition of the upper term.” 

(Sen. Rules Com., Office of Sen. Floor Analyses, voting on Sen. Bill 567 (2020–2021 

Reg. Sess.) as amended Sept. 3, 2021, p. 4 [quoting bill author’s comments].) The

enacted version of the law states that a “court may impose a sentence exceeding the 

middle term only when there are circumstances in aggravation of the crime that justify 

the imposition of a term of imprisonment exceeding the middle term ....” (§ 1170(b)(2).) 

The statute’s wording emphasizes the presumptive nature of a sentence not exceeding the 

middle term that was expressly intended: it is not just that a court may impose a sentence 

not exceeding the middle term unless it concludes, in its discretion, an upper term is 

justified by aggravating circumstances; rather, it is that a court, bound not to exceed the

middle term, may conclude this presumptive rule is overcome “only when” (ibid.) there 

are justifying aggravating circumstances.
24.

of degree; the fact that the court’s discretion has been meaningfully circumscribed is 

patent under the language of the statute.

This new presumption under section 1170(b) is squarely analogous to the one 

addressed in Gutierrez. There, in light of Miller v. Alabama (2012) 567 U.S 460 (Miller), 

the court examined a judicially construed presumption under section 190.5(b) that 

favored a sentence of LWOP for 16- to 17-year-old juvenile offenders convicted of 

special circumstance murder.10 (Gutierrez, supra, 58 Cal.4th at pp. 1360–1361.) In 

disapproving this presumption, the court explained that although a rule in favor of LWOP 

did not eliminate a trial court’s discretion to make an individualized sentencing decision 

required under Miller, the presumption expressed a preference for LWOP and 

circumscribed the trial court’s discretion to that extent. (Gutierrez, supra, at pp. 1381–

1382.)

The court reasoned, “[i]t is one thing to say that a court, confronting two 

permissible sentencing options, may impose the harsher sentence if it finds that sentence 

justified by the circumstances. It is quite another to say that a court, bound by a 

presumption in favor of the harsher sentence, must impose that sentence unless it finds 

good reasons not to do so.” (Gutierrez, supra, 58 Cal.4th at p. 1382.) Because of the 

presumption’s effect on the trial court’s discretion to select the lesser sentence, its 

imputation would create a serious constitutional question under Miller, and our high court 

10 In Miller, “the United States Supreme Court ruled that ‘mandatory [LWOP] for 

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s 

prohibition on “cruel and unusual punishments,”’ relying extensively on differences 

between juveniles and adults with regard to their culpability and capacity for change.” 

(Gutierrez, supra, 58 Cal.4th at p. 1360.) In examining section 190.5(b) under Miller, the 

California Supreme Court in Gutierrez held that because the sentencing regime created 

by section 190.5(b) authorized and required consideration of the distinctive attributes of 

youth highlighted in Miller, there was “no constitutional infirmity with section 190.5(b) 

once it is understood not to impose a presumption in favor of [LWOP].” (Gutierrez, 

supra, at p. 1361.)
25.

declined to interpret section 190.5(b), to include it. (Gutierrez, supra, at p. 1382 [given 

Miller’s conception of a proper individualized sentencing inquiry, a “serious 

constitutional concern would arise” if § 190.5(b) were interpreted to include a rule 

circumscribing the court’s discretion by presuming in the first instance LWOP is the 

appropriate sentence for special circumstance murder committed by 16- or 17-year-old 

juvenile].)

The court ultimately concluded that LWOP sentences imposed in this context 

while the presumption was legally in effect could not reflect an exercise of the sentencing 

court’s informed discretion. (Gutierrez, supra, 58 Cal.4th at pp. 1390–1391.) The 

necessary remedy was to remand for resentencing unless the record clearly indicated the 

trial court would have reached the same conclusion even if it had been aware of the scope 

of its discretion. (Id. at p. 1391.)

The reasoning in Gutierrez applies with equal force to Senate Bill 567’s 

presumptive middle term maximum that can be exceeded only when aggravating 

circumstances are deemed to justify it. Newly enacted section 1170(b)(1) and (b)(2) state 

an explicit preference for a middle term maximum sentence that was merely inferable 

about LWOP from the language of section 190.5(b). These two subdivisions of 

section 1170(b) circumscribe the court’s discretion by creating an express rule that, in the 

first instance, the middle term is the maximum appropriate sentence just as the interpreted 

rule in favor of the harsher sentence in Gutierrez limited the trial court’s discretion by 

presuming, in the first instance, LWOP was the appropriate sentence. (Gutierrez, supra, 

58 Cal.4th at p. 1382.) Both presumptions place weight on the scale in the direction of 

the sentence they favor before any surrounding circumstances are even considered.

Any weighing of aggravating circumstances must occur under the lens of this new 

rule favoring the middle term as the maximum sentence. For example, suppose a trial 

court imposed an upper term sentence based on one aggravating circumstance of prior 

convictions. If that circumstance was deemed properly considered under Apprendi and 
26.

properly (or harmlessly) considered under the new state law requirements, a sentencing 

court might very well yet conclude under the new sentencing scheme that the exception 

for exceeding the now-presumptive middle term maximum is not justified on that single 

aggravating circumstance. (See Gutierrez, supra, 58 Cal.4th at p. 1382 [“When the 

choice between two sentences must be made by weighing intangible factors, a 

presumption in favor of one sentence can be decisive in many cases.”].)

For this reason, any prejudice analysis applied to the aggravating circumstances 

originally considered addresses only whether the upper term could be legally imposed 

under the new law. Even if all of the aggravating circumstances could be deemed 

permissibly considered or harmlessly so under a harmless error test (whether that is a 

Chapman-style test or a Watson-style test or a combination of the two), we are still left 

with the question of whether a sentencing court would impose an upper term under the 

newly altered sentencing framework. (Gutierrez, supra, 58 Cal.4th at pp. 1367, 1391 

[sentencing court’s statement that it had “‘thought long and hard about what punishment 

is appropriate’” and was “‘absolutely convinced’” that LWOP was the “‘only thing that 

the Court can do that could redress’” violence inflicted in the case did not clearly indicate 

LWOP would again be imposed in the absence of the judicially construed statutory 

preference for LWOP].)

In light of this new presumptive maximum middle term, Flores, Lopez and Dunn 

do not explain how proper consideration (let alone harmless consideration) of one or all

of the aggravating circumstances under the new law reflects a sentencing decision made 

in the exercise of informed discretion or how it ensures a defendant has had a fair 

opportunity to obtain the ameliorative benefit of the law. All defendants are entitled to 

the former (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8), and defendants whose 

judgments of conviction are not final for Estrada purposes are entitled to the latter 

(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307).
27.

Consistent with my interpretation of section 1170(b) and application of Gutierrez,

the imposition of an upper term under the former sentencing scheme cannot reflect an 

exercise of informed discretion under the new law. As a result, any harmless error 

approach is inadequate to measure the effect of the new presumption on the original 

sentencing decision. (Gutierrez, supra, 58 Cal.4th at pp. 1381–1382, 1390–1391.)

At best, all that can be ascertained in a threshold application of the harmless error 

analysis is whether a court could legally impose an upper term sentence under the new 

law given the circumstances considered, not that it would do so in the exercise of its 

informed discretion in the first instance.

3. Once Upper Term is Deemed Legally Viable Under the New 

Law, the Need for Resentencing Must Be Assessed Under 

Gutierrez, Not Another Harmless Error Analysis

When not all of the aggravating circumstances relied on at the original sentencing 

hearing were properly or harmless considered under the new law, courts such as Lopez 

and Dunn invoke a second harmless error analysis to ascertain whether there is a 

reasonable probability the sentencing court would have imposed a lesser term had it not 

considered the improper circumstances. For the same reasons articulated above, I depart 

from Lopez and Dunn and their adoption of Watson to guide this inquiry.

The harmless error test under Watson has indeed been applied in cases where a 

sentencing court considered improper sentencing factors. (See People v. Price (1991) 1 

Cal.4th 324, 492 (Price); see also People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos).) 

But, in those cases, the underlying sentencing scheme had not changed in the interim. 

The sentencing court revealed its sentencing choice under a particular sentencing scheme, 

and the reviewing court decided whether there was a reasonable probability the court’s 

lawful exercise of its discretion on remand would lead it to make a different choice under 

the same sentencing framework.

While improperly considered sentencing factors may be involved in retroactive 
28.

application of Senate Bill 567, that is not the only concern. As explained above, the new 

sentencing scheme has meaningfully altered the scope of the trial court’s discretion with 

the new presumption. When a trial court is unaware of the full scope of its sentencing 

discretion because, for example, legal presumptions have shifted (Gutierrez, supra, 58 

Cal.4th at p. 1391) or different discretionary sentencing choices exist, “an application of

the ‘reasonable probability standard’ [under Watson] requires the reviewing court to 

decide what choice the trial court is likely to make in the first instance, not whether the 

court is likely to repeat a choice it already made.” (People v. McDaniels (2018) 22 

Cal.App.5th 420, 427.)

Different from cases such as Price and Avalos, where the sole issue involved in 

application of Watson was improperly considered sentencing factors, determining what 

sentencing choice a trial court would make in the first instance pursuant to Senate 

Bill 567 becomes a far more speculative proposition under a harmless error test. Trying 

to assess probabilities under Watson in the context of Senate Bill 567 effectively recasts 

the reviewing court into the role of sentencing court, weighing for the first time whether 

particular aggravating circumstances justify exceeding the presumptive maximum middle 

term. Prognosticating this way carries the risk of denying a defendant one of the primary 

ameliorative benefits of the new law that contributes to its retroactive application in the 

first place, effectively thwarting the Legislature.

To avoid unnecessary speculation about what a sentencing court would do in the 

exercise of its informed discretion in the first instance under Senate Bill 567, the 

appropriate remedy is to remand for resentencing unless the record “‘clearly indicate[s]’ 

that the trial court would have reached the same conclusion ‘even if it had been aware 

that it had such discretion.’” (Gutierrez, supra, 58 Cal.4th at p. 1391.)11

11 Notably, although Lopez expressly indicated the second prong of its framework 

was to be assessed under Watson (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11), the 

court actually conducted its analysis under Gutierrez and concluded the record did not 
29.

In sum, whether resentencing of an upper term sentence is the appropriate remedy 

on retroactive application of Senate Bill 567 involves two relevant questions. The first is 

whether, given the aggravating circumstances considered, the upper term sentence could

still be legally imposed under federal and state law. The answer to that question lies in 

the application of Apprendi and the new state law requirements under Senate Bill 567. 

But even if an upper term sentence could still be legally imposed given the set of 

aggravating circumstances relied upon, resentencing then hinges on whether a sentencing 

court would impose an upper term sentence under the new law. As the trial court’s 

discretion to impose an upper term sentence has been circumscribed under the new 

sentencing framework, that inquiry must be made under Gutierrez.

III. Remand for Resentencing is Warranted

Turning to application of the foregoing, the relevant first question is whether, 

given the aggravating circumstances considered, the upper term could still be legally 

imposed under federal and state law. Defendant was sentenced to the upper three-year 

term for violation of section 451, subdivision (d), in Madera Superior Court case 

No. MCR060145, and a consecutive eight months for violation of section 422, 

subdivision (a), in Madera Superior Court case No. MCR060560. The trial court 

imposed the upper term based on the following: (1) prior convictions as an adult are 

numerous and increasing in seriousness; (2) defendant was on probation when he 

committed these offenses; (3) his performance on probation prior to the conviction was 

poor; and (4) his performance on probation following the conviction was unsatisfactory.

Applying Black II and Sandoval, because a defendant remains eligible for an 

upper term sentence based on a single aggravating circumstance under the new law, only 

one aggravating circumstance needs to be proven in conformity with Sixth Amendment 

“clearly indicate” the trial court would have exercised its discretion to reimpose an upper 

term (Lopez, supra, at p. 468).
30.

principles (or harmlessly considered as articulated in Sandoval) for an upper term 

sentence to pass constitutional scrutiny. (Black II, supra, 41 Cal.4th at p. 812; Sandoval, 

supra, 41 Cal.4th at pp. 838–839; see Flores, supra, 75 Cal.App.5th at pp. 500–501, 

review denied.)12 For the same reason, one aggravating circumstance found harmless 

under Sandoval necessarily means the circumstance was harmless under the less stringent 

Watson standard, and, as a matter of state law, the trial court could legally impose an 

upper term sentence under section 1170(b)(2) based solely on that circumstance.

Assuming for the sake of argument that one of the aggravating circumstances the 

trial court found and relied on here is viable for Sixth Amendment purposes under the 

Sandoval harmless error test, and, thus, that an upper term sentence also remains legally 

viable under state law, resentencing is still required under Gutierrez.

Even if all of the aggravating circumstances were found in accordance with 

section 1170(b)(2) and (b)(3), the record still does not clearly indicate the trial court 

would impose the upper term had it been aware of the presumptive middle term 

maximum sentence. At bottom, defendant was sentenced to the upper term based on 

three prior misdemeanor convictions and poor performance on probation. Without 

weighing these circumstances under the lens of the presumptive middle term maximum, 

the resulting upper term was not imposed in an exercise of the trial court’s informed 

discretion. Other than reciting the aggravating circumstances, the trial court said nothing 

at sentencing that clearly reflects it would impose an upper term again based on these 

same circumstances under the new presumptive middle term maximum.

12 To date, no court has concluded Black II and Sandoval are inapplicable in the 

context of Senate Bill 567 to assess constitutional error, and our Supreme Court declined 

to depublish Flores in denying review. Lopez applied the higher Chapman standard to 

assess whether the trial court’s reliance on all aggravating circumstances was harmless, 

but did not explain why other than pointing to the state law requirements under section

1170(b)(2). With no argument here that the holdings in Black II and Sandoval are 

inapplicable in the context of Senate Bill 567, I do not reach that issue.
31.

Added to this, defendant’s prior convictions are limited to three misdemeanors, all 

of which were committed when defendant was a youth under the age of 26.13 Even his 

current offenses were committed just one month after defendant turned 26.14 Had the 

current offenses been committed just a few weeks earlier, defendant would have been 

entitled to sentencing consideration under section 1170(b)(6), which creates a 

presumption of a low term sentence if the person was under the age of 26 years at the 

time of the offense. (§ 1170, subd. (b)(6)(B).) This, too, is new law under Senate Bill 

567. (Stats. 2021, ch. 731, § 1.3, p. 27.) While defendant’s age at the time of the current 

offenses does not require consideration of section 1170(b)(6), it is an important aspect of 

the new sentencing scheme the trial court might take into account as a second mitigating 

factor in determining whether upward departure from the middle term is truly justified in 

this case. This record does not clearly indicate the upper term would be imposed again 

had the court been aware of the presumptive middle term maximum, and the appropriate 

remedy is to remand for resentencing under Gutierrez.

This conclusion is based on the assumption all the aggravating factors were 

properly considered under the new law. In actuality, because the trial court did not have 

the benefit of the new law, none of the aggravating circumstances were found in 

accordance with the requirements under section 1170(b)(2) or (b)(3). When the factual 

findings underlying the aggravating circumstances are examined in light of these new 

procedural requirements and the harmless error test employed by the majority, the need 

for resentencing becomes even more strikingly clear.

13 These misdemeanor offenses were committed in December 2015, July 2016, and 

August 2017. Defendant did not turn 26 years old until 2018.

14 Although the narrative portion of the pre-plea probation report recites that the 

arson offense in Madera Superior Court case No. MCR060145 took place on August 17, 

2017, the criminal complaint alleges this offense occurred on August 17, 2018—when 

defendant was 26 years old, not 25 years old.
32.

The first aggravating circumstance the trial court relied on was that defendant’s 

prior convictions were both numerous “and increasing in seriousness.” As the majority 

correctly points out, it is unclear exactly which convictions the trial court considered in 

making these findings.15 The post-plea probation reports’ recitation of defendant’s 

criminal record include a misdemeanor vandalism conviction entered after the conviction 

for defendant’s current offense, and lists the current conviction in count 1 of Madera 

Superior Court case No. MRC060145 for arson (§ 451, subd. (d)). Only three of the 

convictions listed are actually prior convictions, and they are all misdemeanors.

While a judicial finding of three prior convictions has been upheld in a different 

context as sufficiently numerous to support such an aggravating circumstance (see People 

v. Searle (1989) 213 Cal.App.3d 1091, 1098), I do not share the majority’s beyondreasonable-doubt certainty a jury would assess this aggravating circumstance the same 

way as the trial court might. (See Sandoval, supra, 41 Cal.4th at p. 840 [imprecise 

quantitative evaluations of the facts may make it difficult for reviewing court to conclude 

with confidence the jury would assess facts the same way as trial court].) This is 

especially so since the trial court also found the prior convictions were increasing in 

seriousness—a feature of this circumstance the majority does not examine and one that is 

highly subjective. (Ibid. [aggravating circumstance resting on subjective standard may be 

difficult for reviewing court to conclude with confidence jury would assess facts the same 

way as trial court].) Parsing the court’s aggravating circumstance finding to assume a 

jury would conclude three prior convictions are numerous is more akin to a search for 

substantial evidence to support the aggravating circumstance finding than a harmless 

15 The fact that we do not know with certainty which convictions the trial court 

considered in reaching this finding highlights the practical necessity of proving prior 

convictions with certified records of conviction rather than a probation report. Moreover, 

everything we think we know about the prior convictions in this case is built on only an 

assumption there is extra-record evidence that actually supports the double hearsay 

recited in either the pre- or post-plea probation reports.
33.

error analysis, particularly under Chapman. (See People v. Sek (2022) 74 Cal.App.5th 

657, 668 [“it is not enough” under Chapman “to show that substantial or strong evidence 

existed to support a conviction under the correct instructions”].)

As to the fourth aggravating circumstance—defendant’s unsatisfactory 

performance on probation following his conviction—the majority concludes only one 

violation of probation (rather than two violations) was properly considered in making this 

aggravating circumstance finding. Thus, as with the prior convictions considered, some 

facts underlying this aggravating circumstance were improperly found by the trial court.

What ultimately remains is an upper term based on two aggravating circumstances 

improperly but harmlessly considered, a prior convictions aggravating circumstance 

based on facts and a record so unclear we do not know what the trial court actually 

weighed in that analysis (or how a jury would evaluate the two factual aspects underlying 

this circumstance), and one aggravating circumstance (performance on probation 

following conviction) for which half the supporting facts were prejudicially considered. 

Even trying to resuscitate some of the aggravating circumstance findings under a 

harmless error rubric, the factual support underpinning them is significantly eroded.

Setting aside my doubt the first aggravating circumstance could be held 

harmlessly considered, since the record does not offer any insights into how the trial 

court weighed the numerosity and seriousness aspects of the prior convictions 

circumstance against each other (or generally in relation to the other aggravating 

circumstances), it is impossible to conclude to any degree of certainty or probability how 

the court would evaluate that circumstance, especially after sheering off some of the 

underlying facts and findings as the majority does. The same is true of the fourth 

aggravating circumstance. This highlights the inadequacies of the harmless error analysis 

in this context, and, here, really amounts only to guesswork about how the trial court 

might weigh a different compilation of facts under a different sentencing scheme. 

Through no fault of the trial court, when I stack up the factually gutted version of these 
34.

aggravating circumstances in view of the presumptive middle term maximum, it is all the 

more apparent the original upper term sentence does not reflect an exercise of informed 

discretion under the new law.

This record provides no clear indication the trial court would find upward 

departure from the new presumptive middle term was justified under the existing 

aggravating circumstances, let alone some factually weakened version of those 

circumstances. As such, resentencing is required and I would remand for that purpose. 

(Gutierrez, supra, 58 Cal.4th at p. 1391.) For these reasons, I respectfully dissent from 

the majority’s reasoning and conclusions in part II. of the Discussion.

MEEHAN, J.