1

Filed 3/28/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RAHSAAN WAYNE BUTLER,

Defendant and Appellant.

E078235

(Super.Ct.No. FVI20003519)

OPINION

APPEAL from the Superior Court of San Bernardino County. Shannon Faherty, 

Judge. Affirmed in part; sentence vacated and remanded with directions.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Adrian R. 

Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
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In November 2021, a jury convicted Rahsaan Wayne Butler of one count of 

attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664; count 1), among 

other offenses, and found true related allegations that he personally used a firearm

(Pen. Code, § 12022.5, subd. (a)) and caused great bodily injury (Pen. Code, § 12022.7, 

subd. (a)). (Undesignated statutory references are to the Penal Code.) The trial court 

sentenced him to the upper term for the conviction and the firearm enhancement. 

On appeal, Butler contends that he is entitled to resentencing because (1) the trial 

court erred by impermissibly relying on the same facts that formed the basis of the 

enhancements to sentence him to the upper term, and (2) he is entitled to the ameliorative 

benefits of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which became 

effective while his appeal was pending. Senate Bill 567 amended the Penal Code to 

prohibit a trial court from imposing the upper term for a conviction or an enhancement 

unless certain conditions are satisfied. The People concede that the legislation applies 

retroactively to Butler’s nonfinal judgment but argue that remand is not necessary 

because sentencing Butler under the applicable law at the time was harmless. There 

currently is a split of authority concerning the applicable harmlessness standard. (See 

People v. Flores (2022) 75 Cal.App.5th 495, 500-501 (Flores); People v. Lopez (2022) 

78 Cal.App.5th 459, 465-468 (Lopez); People v. Dunn (2022) 81 Cal.App.5th 394, 409-

410 (Dunn), review granted Oct. 12, 2022, S275655.) We adopt the approach set forth in 

Lopez and remand for resentencing.
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BACKGROUND

One night in November 2020, Butler got into a fight in a motel parking lot with his 

friend Robert H. Robert swung at Butler first. Video recordings of the incident were

played for the jury. Butler told law enforcement that Robert hit him in the head with 

brass knuckles. 

Butler took an object resembling a firearm out of his waistband or front pocket and 

turned away from Robert. Butler then turned around and apparently tried to shoot

Robert, but the gun did not fire. Robert tackled Butler, and the two men wrestled on the 

ground. Robert got up, and Butler shot him in the chest. 

A bystander drove Robert to the hospital. Robert was then transported via 

helicopter to another hospital that specialized in traumatic injuries. Robert was in critical 

but stable condition and underwent surgery. Robert later told law enforcement that he 

could not remember what happened that night. 

Butler left the scene before law enforcement arrived, because he was afraid of 

going back to jail. At trial, the parties stipulated that Butler had been convicted of the 

following four felonies: (1) in 2005, a violation of section 476; (2) in 2011, a violation of 

section 290.011, subdivision (b); and (3) in 2014 and 2019, violations of section 69. The 

jury was not told what the offenses were. 

Butler gave the firearm he had that night to a gunsmith, who melted it down. 

Butler called a detective sometime after the incident. Butler told the detective he acted in 

self-defense, which he reiterated in a later interview. Butler admitted that he had a .22-

caliber firearm on him that night.
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There were several inconsistencies between Butler’s description of the events and 

the recording of the incident, and a law enforcement officer explained those

inconsistencies to the jury. Law enforcement did not find brass knuckles at the motel, in 

Robert’s van, or at the initial hospital to which he was taken.

The jury convicted Butler of one count of attempted voluntary manslaughter 

(§§ 192, subd. (a), 664; count 1), one count of assault with a firearm (§ 245, subd. (a)(2); 

count 2), and one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1); 

count 3). For the manslaughter and assault convictions, the jury found true allegations 

that Butler personally used a firearm (§ 12022.5, subd. (a)) and as to the manslaughter 

conviction also found true the allegation that Butler inflicted great bodily injury 

(§ 12022.7, subd. (a)). 

Considering the aggravating factors set forth in rule 4.421 of the California Rules 

of Court for sentencing, the probation officer found the following aggravating 

circumstances to exist: (1) “The crime involved great violence and great bodily harm and 

other acts disclosing a high degree of cruelty, viciousness and callousness,” (2) Butler 

had “engaged in violent conduct that indicate[d] a serious danger to society,” (3) Butler’s 

“prior convictions as an adult and sustained petitions in juvenile delinquency proceedings 

[were] numerous and of increasing seriousness,” (4) Butler had “served prior prison 

terms,” and (5) Butler’s “prior performance on probation and parole was unsatisfactory.” 

(Undesignated rule references are to the California Rules of Court.) The only mitigating 

factor the probation officer found was that the victim had been the aggressor.
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At the sentencing hearing in December 2021, the trial judge indicated that he had 

read and considered both the probation officer’s report and a sentencing brief filed by the 

prosecutor. The court offered the prosecutor and defense counsel an opportunity to 

present argument concerning sentencing. Defense counsel argued that contrary to the 

probation officer’s account, Butler demonstrated remorse for shooting Robert when he 

cried during his postarrest interview with law enforcement. Counsel argued that Butler 

should be sentenced to the low term for the attempted voluntary manslaughter conviction,

and counsel otherwise submitted. The prosecutor submitted on the sentencing brief.

The court sentenced Butler to the upper term of five years and six months for the 

attempted voluntary manslaughter conviction (§§ 193, subd. (a), 664, subd. (a)), the 

upper term of 10 years for the related firearm enhancement (§ 12022.5, subd. (a)), and 

three years for the related great bodily injury enhancement for that offense (§ 12022.7, 

subd. (a)), all to run consecutively. For the assault conviction, the court stayed the 

sentences imposed for that conviction and the related enhancements under section 654. 

For the firearm possession conviction, the court sentenced Butler to eight months (onethird the midterm) to run consecutively. Butler was thus sentenced to a total term of 19 

years and two months.

The court provided the following reasoning for imposing the sentence: As to 

“circumstances in aggravation pursuant to [rule] 4.421 that are outlined in the probation 

report, specifically the violence and great bodily harm, the defendant’s acts of having—

I’m sorry, engaging in violent conduct, prior convictions of an increasing seriousness, 

prior prison terms, and four prior performances on probation or parole, I do adopt these. 
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[¶] I will also adopt the one factor in mitigation that the victim may have been the 

aggressor in this case.” 

DISCUSSION

Butler argues that we should remand for resentencing because he is entitled to the 

ameliorative benefits of Senate Bill 567, which took effect while his appeal was pending 

and affects the circumstances under which a trial court can impose the upper term for a 

conviction or an enhancement. We agree.

Attempted voluntary manslaughter is punishable by one and one-half years, three 

years, or five years and six months in state prison. (§§ 193, subd. (a), 664, subd. (a).) A 

“person who personally uses a firearm in the commission of a felony or attempted felony 

shall be punished by an additional and consecutive term of imprisonment in the state 

prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” 

(§ 12022.5, subd. (a).)

Before Senate Bill 567 amended sections 1170 and 1170.1 effective January 1,

2022, if a statute prescribed a sentencing triad for a conviction or an enhancement, the 

court had discretion to choose any one of the three terms. (Stats. 2021, ch. 731; Former 

§ 1170, subd. (b) [applied to offenses]; Former § 1170.1, subd. (d) [applied to 

enhancements].) Section 1170 now provides that the upper term shall be imposed “only 

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

term of imprisonment exceeding the middle term” (id., subd. (b)(2)) and the 

circumstances are (1) stipulated to by the defendant, (2) found true by the trier of fact 

beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified 
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record of conviction (id., subd. (b)(2)-(3)). Section 1170.1 likewise now provides that the 

court may impose the upper term for an enhancement “only when there are circumstances 

in aggravation that justify the imposition of a term of imprisonment exceeding the middle 

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

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

the judge in a court trial.” (Id., subd. (d)(2).) The People concede that Senate Bill 567 

applies retroactively to this appeal because Butler’s judgment of conviction is not final, 

and we agree. (See, e.g., Flores, supra, 75 Cal.App.5th at p. 500; People v. Garcia

(2022) 76 Cal.App.5th 887, 902.) 

When sentencing Butler, the trial court cited as aggravating circumstances that 

Butler’s prior convictions were of increasing seriousness (rule 4.421(b)(2)), that he had 

served four prior prison terms (rule 4.421(b)(3)), and that he had four prior performances 

on parole or probation that were unsatisfactory (rule 4.421(b)(5)). In addition, the court 

noted that Butler had engaged in violent conduct indicating that he was “a serious danger 

to society” (rule 4.421(b)(1)) and inflicted great bodily harm (rule 4.421(a)(1)). None of 

those aggravating circumstances was proved to a jury beyond a reasonable doubt,

admitted by Butler, or based on prior convictions proved by certified records of 

convictions. The parties agree and we concur that Butler’s sentence to the upper term on 

count 1 and the related firearm enhancement does not satisfy the new requirements of 

section 1170, subdivision (b), and section 1170.1, subdivision (d)(2).

Butler and the People do not agree, however, about whether remand for 

resentencing is required. There currently is a split of authority concerning the applicable 
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harmlessness standard when a defendant was sentenced to an upper term before Senate 

Bill 567 became effective based on aggravating circumstances that were not found true 

by the trier of fact beyond a reasonable doubt, stipulated to by the defendant, or based on 

prior convictions evidenced by a certified record of conviction. (See Flores, supra, 75 

Cal.App.5th at p. 500 [error is harmless if a reviewing court concludes beyond a 

reasonable doubt that a jury “would have found true [beyond a reasonable doubt] at least 

a single aggravating circumstance”]; Lopez, supra, 78 Cal.App.5th at pp. 465-468

[applying a two-step approach with a beyond a reasonable doubt standard at the first step 

and state law harmlessness at the second step]; Dunn, supra, 81 Cal.App.5th at pp. 409-

410 [applying a two-step approach with state law harmlessness incorporated into both 

steps].) The same court that articulated the standard in Flores has reconsidered the issue 

and found the rationale in Lopez “for adding a state law harmless error component both 

logical and compelling.” (People v. Ross (2022) 86 Cal.App.5th 1346, 1354.) We too 

agree with the approach set forth in Lopez.

Lopez adopted the following two-step method for determining harmlessness when 

a defendant was sentenced to an upper term before Senate Bill 567 became effective: 

“[T]he 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 this question is ‘yes,’

then the defendant has not suffered prejudice from the court’s reliance on factors not 
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found true by a jury in selecting the upper term.” (Lopez, supra, 78 Cal.App.5th at 

p. 467, fn. 11.) If, however, the answer to the question is “no,” then we apply the 

harmlessness standard in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), to the 

trial court’s reliance on impermissible factors. (Lopez, at pp. 467 & fn. 11, 468.) That is, 

we ask whether it is reasonably probable that the trial court would have imposed a shorter 

sentence if the trial court had relied only on factors that we are convinced beyond a 

reasonable doubt would have been found by a jury beyond a reasonable doubt. (Ibid.; 

Watson, supra, 46 Cal.2d at p. 836.) If the answer to that question is “yes,” then we 

remand the matter to the trial court for resentencing. (Lopez, at p. 467, fn. 11.) (If there 

are no factors that we are convinced beyond a reasonable doubt would have been found 

by a jury beyond a reasonable doubt, then the error is prejudicial and requires remand for 

resentencing. (People v. Sandoval (2007) 41 Cal.4th 825, 838-839 (Sandoval).)1

We agree with Lopez’s approach and thus adopt Lopez’s two-step method for

determining the harmlessness of the trial court’s reliance on aggravating factors that were 

1

In People v. Lewis (March 2, 2023, E076449) __ Cal.App.5th __ [2023 Cal.App. 

Lexis 150], remand was necessary because the court was not persuaded beyond a 

reasonable doubt that a jury would have found at least one of the aggravating factors

relied on by the trial court true beyond a reasonable doubt. (Id. at pp. *20, *23-*24.) 

Lewis also contains a discussion of the second step of the analysis (id. at p. *24), but that 

discussion is not necessary to the decision and is therefore dicta (Hubbard v. Superior 

Court (1997) 66 Cal.App.4th 1163, 1168).
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not proved to a jury beyond a reasonable doubt, admitted by the defendant, or based on 

prior convictions proved by certified records of conviction.

2

Applying that analytical framework, we are persuaded beyond a reasonable doubt 

that the trial court relied on at least one aggravating factor that would still be permissible: 

Butler’s four prior prison terms could have been proven by certified records of 

conviction. However, we cannot conclude beyond a reasonable doubt that a jury would 

have found true beyond a reasonable doubt all of the remaining aggravating factors on 

which the trial court relied in exercising its discretion to select the upper terms. (Lopez, 

supra, 78 Cal.App.5th at p. 467, fn. 11.)

In particular, it is not clear whether a jury would have found beyond a reasonable 

doubt that Butler’s four admitted prior convictions were of “increasing seriousness.” 

(Rule 4.421(b)(2).) Butler stipulated that he had been convicted of the following four 

felonies, in chronological order: forgery (§ 476), being a transient who failed to register 

as a sex offender (§ 290.011, subd. (b)), and two convictions for resisting an officer 

2

In contrast to Lopez, supra, 78 Cal.App.5th 459, Dunn holds that as long as we are 

convinced beyond a reasonable doubt that one aggravating factor would have been found 

by a jury beyond a reasonable doubt, we evaluate any remaining factors under Watson—

that is, we ask whether it is reasonably probable that a jury would not have found the 

remaining factors beyond a reasonable doubt. (Dunn, supra, 81 Cal.App.5th at p. 409.) 

We agree with Lopez on that point and disagree with Dunn. Appellate review of all of 

the aggravating factors should be under the beyond-a-reasonable-doubt standard of 

Chapman v. California (1967) 386 U.S. 18, 24, rather than the reasonable-probability 

standard of Watson, because the federal right to a jury trial “has always been dependent 

on how a State defines the offense that is charged in any given case.” (Patterson v. New 

York (1977) 432 U.S. 197, 211, fn.12; see People v. Rivera (2019) 7 Cal.5th 306, 333

[federal constitutional right to jury determination on each element charged].) Even 

though it is state law that now requires jury findings on aggravating factors, the failure to 

submit those factors to a jury is not merely state law error. 
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(§ 69). When Butler committed the forgery offense, it was “punishable by imprisonment 

in the county jail for not more than one year, or in the state prison.” (Former § 476a, 

subd. (a).) Failure to register as a transient is punishable by imprisonment in state prison 

for 16 months, two years, or three years. (§§ 290.011, subd. (b), 290.018, subd. (b).) 

Because Butler is required to register as a sex offender, the resisting offenses are also 

punishable by imprisonment in state prison for 16 months, two years, or three years. 

(§§ 69, subd. (a), 1170, subd. (h)(1), (3).) The last three convictions were subject to the 

same possible punishment, and the last two offenses were identical. Absent any 

information about the resisting offenses other than the statutes that were violated, it is not 

possible to ascertain whether one was more serious than the other. None of the offenses 

is so strikingly more serious than any other by the nature of the offense or the punishment 

that we can conclude beyond a reasonable doubt that a jury would conclude beyond a 

reasonable doubt that the convictions were of increasing seriousness. (Cf. People v. 

Searle (1989) 213 Cal.App.3d 1091, 1098; People v. Kellett (1982) 134 Cal.App.3d 949, 

962.) 

There may be additional aggravating factors that we could not conclude beyond a 

reasonable doubt would be found by a jury beyond a reasonable doubt. For example, the 

trial court found that Butler was a “serious danger to society.” But it is not clear beyond 

a reasonable doubt that a jury would make the same finding after hearing evidence and 

argument, especially given the trial court’s acknowledgement that the victim may have 

been the aggressor. (See Sandoval, supra, 41 Cal.4th at pp. 839-843 [noting that the 

factual record may not be the same if the aggravating circumstances were tried to a jury, 
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and that for those factors with a “somewhat vague or subjective standard, it may be 

difficult for a reviewing court” to conclude a jury would reach the same conclusion as the 

trial court].)

Because not all aggravating factors survive the first step of the harmlessness 

analysis, we next ask whether it is reasonably probable that the trial court would have 

imposed a shorter sentence if it had relied only on permissible factors. (Lopez, supra, 78 

Cal.App.5th at p. 467, fn. 11.) We conclude that it is.

We assume for the sake of argument that all of the aggravating factors other than 

increasing seriousness of the four priors would have been found true by a jury beyond a 

reasonable doubt. The trial court adopted the aggravating factors from the probation 

officer’s report but did not indicate whether it considered any particular factor to have 

greater weight than any other. The court also did not indicate that it would sentence 

Butler to the upper term based on a single aggravating factor alone. Nor did the court 

state that it found the nature of the crime to be especially heinous or reprehensible. On 

the contrary, the court found in mitigation that the victim may have been the aggressor. 

The trial court also did not state that Butler’s criminal history was so troubling as to

warrant imposition of upper-term sentences. 

On this record, we cannot conclude that there is no reasonable probability that the 

trial court would have imposed a more lenient sentence had it been left with only the

aggravating circumstances that we assume a jury would have found true beyond a 

reasonable doubt. We consequently conclude that remand for resentencing is necessary.
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Because we are vacating Butler’s sentences on count 1 and the related 

firearm enhancement, Butler is entitled to a full resentencing. (People v. Gerson

(2022) 80 Cal.App.5th 1067, 1096.) Under the full resentencing rule, “when part 

of a sentence is stricken on review, on remand for resentencing ‘a full resentencing 

as to all counts is appropriate, so the trial court can exercise its sentencing 

discretion in light of the changed circumstances.’” (People v. Buycks (2018) 5 

Cal.5th 857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) The 

sentence imposed on resentencing may not exceed the original aggregate sentence. 

(People v. Jones (1994) 24 Cal.App.4th 1780, 1783-1784; People v. Hanson

(2000) 23 Cal.4th 355, 357-358.) Because we are vacating Butler’s sentence, we 

do not address Butler’s other claimed error about sentencing.

DISPOSITION

We vacate Butler’s sentence and remand for resentencing. In all other respects, 

the judgment is affirmed.

CERTIFIED FOR PUBLICATION

MENETREZ

J.

We concur:

FIELDS

Acting P. J.

RAPHAEL

J.