Filed 6/7/24 P. v. Richards CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVEON DESHAWN 

RICHARDS,

Defendant and Appellant.

B324291

(Los Angeles County

Super. Ct. No. TA154855-01)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Ricardo R. Ocampo, Judge. Affirmed in part, 

reversed in part and remanded with directions.

Randy S. Kravis, under appointment by the Court of 

Appeal, for Plaintiff and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Kenneth C. Byrne and Susan S. Kim, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

Armed with a semi-automatic weapon, appellant Traveon 

Deshawn Richards (defendant) followed Jairo Sanchez and his 

girlfriend, Teresa Marin, into a liquor store located in territory 

claimed by defendant’s gang. Outside the store, an exchange took 

place in which Sanchez may have told Richards he belonged to a 

rival gang. Richards followed Sanchez and Marin on foot as they 

walked away. Marin noticed Richards following them and urged 

Sanchez to hurry to which he responded, “stop telling me what to 

do nigga.” After Richards questioned what was said, Marin told 

him Sanchez had not been talking to him. At that point Richards

fired 13 rounds, killing Sanchez.

A jury convicted defendant of one count of first-degree 

murder and one count of assault with a semiautomatic firearm; it

found true two firearm enhancements. The trial court found true 

allegations that appellant had a prior conviction for robbery that 

qualified as both a serious felony and a serious and/or violent 

felony “strike.”

On appeal, appellant argues that the trial court erred in: 

(1) denying his request to instruct the jury on voluntary 

manslaughter as a lesser included offense of murder based on 

sudden quarrel or heat of passion; (2) imposing an upper term 

sentence as to the firearm enhancement for the murder count, 

without complying with the amended statutory mandates of 

Penal Code1 sections 1170 and 1170.1; and (3) doubling his 

sentence as to the two firearm enhancements.

1 Undesignated statutory references are to the Penal Code.
3

We reject appellant’s first contention, finding there was no 

reasonable basis for a voluntary manslaughter instruction. We 

find the trial court failed to comply with the mandates of section 

1170.1 in imposing the upper term sentence as to the firearm 

enhancement for the murder count and we cannot conclude the 

trial court would have imposed the same sentence had it properly 

exercised its discretion. As for appellant’s third contention, the 

Attorney General concedes, and we agree, that the court erred by

doubling appellant’s sentence on the firearm enhancements. We 

remand the matter for resentencing and to correct the abstract of 

judgment as to the two firearm enhancements. In all other 

respects, we affirm the judgment of conviction.

PROCEDURAL BACKGROUND

On December 8, 2021, appellant was charged by 

information with murder (count 1; § 187, subd. (a)) and assault 

with a semiautomatic firearm (count 2; § 245, subd. (b)). As to 

both counts, the information alleged that appellant personally 

used a firearm (§ 12022.5, subd. (a)), had suffered a prior serious 

felony conviction for robbery (§ 667, subd. (a)(1)) and had a prior 

serious and/or violent felony (strike) conviction (§§ 667, subds. 

(b)–(j), 1170.12). Appellant pleaded not guilty to both counts and 

denied the special allegations.

A jury convicted appellant of first degree murder and

assault with a semiautomatic firearm and found true the firearm 

allegations. Appellant waived his right to jury trial on the prior 

conviction allegations. The trial court found appellant had 

suffered a prior serious felony conviction.

Appellant was sentenced to a prison term of 70 years to life, 

as follows: on the murder, 25 years to life, doubled to 50 years to 

life due to the prior strike, plus a consecutive high term of 
4

10 years for the firearm enhancement, doubled to 20 years. On 

the count of assault with a semiautomatic firearm, the sentence 

was three years, doubled to six years, plus three years, doubled to 

six years, for the firearm enhancement, to run concurrently to the 

sentence for murder. This appeal followed.

FACTUAL BACKGROUND

1. The Prosecution’s Case

a. Events Leading to the Shooting

On the evening of June 27, 2021, Marin and Sanchez, 

whom Marin had been dating a few months, walked to the N’Joy

Liquor Store, near the intersection of Wilmington and 109th 

Streets in Los Angeles, to buy snacks and a drink. Neither 

person carried a weapon.

Marin grew up nearby, was a frequent customer of the 

store, and knew the area, claimed by the Ten Line gang, was 

unsafe. Marin and Sanchez were members of the Watts Varrio 

Grape gang, a rival of the Ten Line gang to which defendant

belonged.

Santiago Ramirez worked as a security guard at the liquor 

store. He recognized Marin and Sanchez but did not know their 

names. Ramirez also recognized an African American man he 

knew as “Cyco,” a frequent customer at the store. The man wore 

a white T-shirt and had a gun in his front right pocket when he 

entered the store. Ramirez, who was “scared” to testify at trial, 

said defendant was not the person he knew as Cyco. Shown a 

photograph of several individuals (Peo. Exh. No. 7), Ramirez 

testified he was familiar with Cyco’s friends, cousins, and a 

wheelchair-using uncle, many of whom frequented the liquor 

store.
5

Marin did not notice anything unusual while she and 

Sanchez were inside the liquor store. Sanchez bought a beer and 

left while Marin waited to pay for her items. When she left the 

store Marin saw Sanchez standing within “arm distance” of 

another man. Marin heard the man whisper “something” to 

Sanchez and say “stuff.” As she approached, Marin heard 

Sanchez respond to the man saying, “Watts Varrio Grape Street.”

Sanchez said nothing else to the man and did not look at him. 

The man warned Sanchez not to “come around here no more.” 

Marin told Sanchez to ignore the man, and the couple began to 

slowly walk away. The man followed them.

As they walked away, Marin looked back, saw the man 

following them and noticed a gun in the pocket of his shorts. She 

told Sanchez to “hurry up” because the man “ha[d] a gun.” 

Sanchez replied, “stop telling me what to do, nigga.”2 At that 

point, the man said, “what’d you say,” and Marin responded that 

Sanchez “wasn’t talking to him.” Sanchez said nothing. After 

she and Sanchez had taken a few steps Marin heard the man 

“rack” the gun. She looked back, saw the man holding out the 

gun with both hands and told Sanchez to run. He did not. Marin 

moved to the side.

The man ignored Marin and began shooting at Sanchez 

who fell to the ground. After the shooting stopped, Marin yelled 

at the man who was running back toward the store holding his 

waistband. She then went to help Sanchez, as did a bystander 

who began performing CPR. Ramirez had also heard gunshots, 

2 Marin testified that the “N-word” was a “term of 

endearment” between herself and Sanchez.
6

followed by the sight of the man in the white T-shirt running 

away.

Marin repeatedly answered “no” when asked whether the 

man who shot Sanchez was in the courtroom. She still lived in 

the area and admitted she was “scared to testify in court” for fear 

of something happening to others. Marin identified Sanchez in a 

photo.

Marin was shown photographs from inside the store of a 

man wearing a white T-shirt and shorts, but said she did not 

remember seeing him in the store. She also testified that the 

man who had spoken to Sanchez outside the store was not 

depicted in the photographs. From still shots taken from video 

footage, Marin identified the body on the ground as Sanchez. She 

also identified herself, Sanchez and the shooter wearing a white 

T-shirt from video footage taken inside the store.

b. Crime Scene Evidence and Video Footage

At the time of the shooting, Los Angeles Police Department 

(LAPD) Officers Issac Guevara and Brenda Cortez heard 

gunshots as they patrolled nearby. When they arrived at the 

intersection of 109th and Wilmington at about 7:17 p.m., they 

saw spent casings and a shooting victim lying on the ground. A 

citizen was performing chest compressions on Sanchez who had 

blood all over his shirt, and whose eye was dislodged. The 

officers took over and performed chest compressions on Sanchez. 

No weapons from Sanchez or Marin were recovered from the 

crime scene.

LAPD Detective John Jamison arrived at the crime scene 

by 11:00 p.m. the day of the shooting. He recovered 13 spent 

cartridge casings from the sidewalk area on Wilmington near 
7

109th Place. A spent casing is typically expended from a 

semiautomatic firearm.

The jury was shown surveillance video from inside the 

liquor store, and exterior footage from nearby residences which 

captured the shooting itself. The investigating officer, LAPD 

Detective Irma Castillo, reviewed the video surveillance and 

camera footage of the incident for the jury. Based on his tattoos, 

facial hair, clothing, hat and shoes, Detective Castillo believed 

appellant was both the man who had been inside the store 

wearing a white T-shirt and who confronted Sanchez and Marin 

outside. Detective Castillo searched social media accounts 

associated with the Ten Line Crips to try to link the person in the 

surveillance video to defendant. On Instagram Detective Castillo

found an account with the user name “headnigga_rgcyco3.” 

Another Instagram account with the vanity name “Mr. 10Line,” 

contained a photo of a person identified as “Deshawn Da Fliikiid 

Richards,” whom Detective Castillo believed to be defendant, as 

well as videos taken in the area surrounding the N’Joy liquor 

store. A photograph of defendant taken in a holding cell depicts a 

tattoo reading, “Cyco.”

From video footage taken inside the store, Detective 

Castillo described for the jury individuals in the liquor store, 

including Ramirez, Marin (who was in line for the cash register), 

Sanchez (who was smiling and “minding his own business”), and 

defendant (who had tattoos, was wearing a white T-shirt and had 

a hand leaning against his right pocket). The footage showed 

defendant (with the butt of a handgun visibly protruding from his 

right pocket) looking toward Sanchez, and later exiting the store 

with his hand on his right pocket.
8

From portions of video and still photos taken from the 

camera of a residence facing the liquor store, Detective Castillo 

described Sanchez and Marin walking together on the sidewalk, 

followed by defendant. Marin kept turning around, then she and 

Sanchez sped up. The video showed defendant pull a handgun 

from the pocket of his shorts, extend his arm and fire at the 

couple. Marin ducked and Sanchez fell to the ground. Defendant

continued to advance and fire at Sanchez as he lay on the ground.

An autopsy performed on Sanchez revealed he suffered 

11 gunshot wounds. Four shots–one each to his head, neck, chest 

and left thigh–were independently fatal. The cause of death was 

deemed a homicide.

c. Gang Evidence

LAPD Officer Carlos Gonzalez, an expert on criminal street 

gangs, testified about several gangs including the Watts Varrio 

Grape, Grape Street Crips and Ten Line Crips. The Watts Varrio 

Grape gang (which is affiliated with the Mexican Mafia) is 

predominantly Hispanic, and the Grape Street Crips gang is 

predominantly African American. The N’Joy liquor store is 

located in territory claimed by the Ten Line Crips gang. Two 

primary rivals of the Ten Line Crips gang are the Grape Street 

Crips and Watts Varrio Grapes.

Officer Gonzalez testified about violence among and 

between street gangs. If a gang member challenges a member of 

a rival gang to a fight, the person challenged is expected to 

engage and identify his gang. If he fails to do so, he may be 

disciplined by his own gang. It is viewed as disrespectful for a 

gang member to enter a rival gang’s territory, and the intruder 

may be attacked, beaten, shot or killed. Typically, a gang 

member who enters rival gang territory is armed. If not, he 
9

probably does not plan to threaten a rival gang member. When 

someone within his own gang territory “calls out another,” it 

usually results in violence. Witnesses to gang violence who live 

or work in the area generally refuse to cooperate with police, 

fearing retaliation.

2. Defense Evidence

Appellant did not testify.

Detective Castillo testified about her interview of Marin on 

the day of the shooting. Marin told Detective Castillo she had 

been a member of the Watts Varrio Grape gang for several years.

Detective Castillo reviewed the contents of Marin’s cell 

phone, including text messages. A text sent by Marin at 

7:42 p.m. the night of the shooting read: “Hey 911,” “They shot 

Klepto,” (Sanchez’s moniker), and “110” (referring to the Ten Line 

Crips). The recipient responded: “What u mean He got shot,” to 

which Marin had texted in response: “110 did it blk fool and I 

think he’s dead the ambulance took him.” Marin sent additional 

texts that read: “Tell [M]anos I don’t know what to do,” “Im not 

going [to] remember what he look like cuz I got scared,” and “the 

blk fools were mad digging [sic] [looking angrily at] me.” Marin 

received a text telling her, “don’t say nothing,” “Be careful wen 

they let u go,” and “come to my trailer.”

Detective Castillo arrested defendant and searched his 

residence. She did not find a gun on defendant’s person or in his 

residence. Defendant was not wearing a T-shirt or sneakers like 

those worn by the individual depicted in surveillance footage 

from the liquor Store. Detective Castillo identified defendant as 

the man wearing the white T-shirt on the surveillance video.
10

DISCUSSION

1. The Evidence Did Not Warrant an Instruction on 

Voluntary Manslaughter Based on Heat of Passion.

Defendant maintains that his murder conviction must be 

reversed because the record comprises substantial evidence from 

which a reasonable juror could conclude he shot Sanchez out of 

heat of passion. He insists the trial court erred in refusing his 

request to have the jury instructed on the lesser included offense 

of voluntary manslaughter based on sudden quarrel or heat of 

passion. He is mistaken.

a. Procedural Background

During a conference on instructions, defense counsel asked 

the court to instruct the jury on voluntary manslaughter “under 

the heat of passion lesser included” (CALCRIM No. 570). 

Counsel argued that Sanchez’s use of the “N-word,” coupled with 

his possible affiliation with a rival gang, was sufficient to justify 

a juror’s conclusion that appellant reasonably shot Sanchez out of 

heat of passion.3

3 CALCRIM No. 570 states: “A killing that would otherwise 

be murder is reduced to voluntary manslaughter if the defendant 

killed someone because of a sudden quarrel or in the heat of 

passion. [¶] The defendant killed someone because of a sudden 

quarrel or in the heat of passion if: [¶] 1. The defendant was 

provoked; [¶] 2. As a result of the provocation, the defendant 

acted rashly and under the influence of intense emotion that 

obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The 

provocation would have caused a person of average disposition to 

act rashly and without due deliberation, that is, from passion 

rather than from judgment. [¶] Heat of passion does not require 

anger, rage, or any specific emotion. It can be any violent or 
11

The People argued it would be more appropriate for the 

court to give CALCRIM No. 522, regarding provocation to reduce 

murder from first to second degree. Notwithstanding the “racial 

epithet that may have been uttered,” the People argued the 

evidence indicated premeditation and deliberation by appellant 

who entered the store with a gun in his pocket, then followed the 

victims after they left before firing at them multiple times. The 

People argued it would be “misplaced to try to suggest uttering 

the N-word would suggest a response of emptying a magazine of 

ten rounds at people on the street, if we’re going to suggest that 

intense emotion that causes a person to act without due 

deliberation and reflection. [¶] In order for heat of passion to 

reduce a murder to voluntary manslaughter, the defendant must 

have acted under the direct and immediate influence of 

provocation as I have defined it. While no specific type of 

provocation is required, slight or remote provocation is not 

sufficient. Sufficient provocation may occur over a short or long 

period of time. [¶] It is not enough that the defendant simply was 

provoked. The defendant is not allowed to set up (his/her) own 

standard of conduct. You must decide whether the defendant 

was provoked and whether the provocation was sufficient. In 

deciding whether the provocation was sufficient, consider

whether a person of average disposition, in the same situation 

and knowing the same facts, would have reacted from passion 

rather than from judgment. [¶] [If enough time passed between 

the provocation and the killing for a person of average disposition 

to ‘cool off’ and regain his or her clear reasoning and judgment, 

then the killing is not reduced to voluntary manslaughter on this 

basis. [¶] The People have the burden of proving beyond a 

reasonable doubt that the defendant did not kill as the result of a 

sudden quarrel or in the heat of passion. If the People have not 

met this burden, you must find the defendant not guilty of 

murder.”
12

this isn’t a gang-related heat of passion but rather a racial 

epithet, neither apply.”

The trial court acknowledged that, based on the order in 

which the victims’ statements were made, the shooter could have 

believed the racial slur was directed at him. Nevertheless, the 

court declined to instruct the jury on manslaughter based on heat 

of passion, explaining:

“[I]n order to give instructions on it, the court has to 

find substantial evidence. And in this case with regards to 

heat of passion, we look at . . . three things, the testimony 

. . . , and then I look at the description of what heat of 

passion is. [¶] And if you see the video, I recall the video 

being that the two individuals, victim 1 and victim 2 go 

right along the sidewalk, the so-called encounter is finished 

with. They pass in the direction that they go to, and only 

after that is when the shooter follows. The shooter follows, 

and then suddenly, just opens fire at them. There’s no heat 

of passion. [¶] Now the prov[o]cative conduct by the victim 

may be . . . verbal. But the conduct must be sufficiently 

prov[o]cative that it would cause an—and this the key 

word—ordinary person of average disposition to act rashly 

or without due deliberation or reflection. And that’s under 

People [v.] Lee [(1999)] 20 Cal.4th 47. [¶] And this is far 

from it. This is not an ordinary person of average 

disposition that’s acted rashly. So the court is not going to 

instruct on the heat of passion. [¶] However, the court 

agrees that the provocation, as [defense counsel] put it, and 

as I think the People concede . . . the provocation effect on 

the degree of murder is something that [the jury] should 

consider. So the court will give [CALCRIM No.] 522. It 

says, provocation may reduce murder from first degree to 

second degree . . . .”
13

The court’s instructions to the jury included CALCRIM 

No. 522.4

b. Controlling Law and the Standard of Review

A trial court must instruct the jury on general principles of 

law relevant to issues raised by the evidence. (People v. Mitchell

(2019) 7 Cal.5th 561, 586.) This duty includes the duty to 

instruct on “ ‘lesser included offenses when the evidence raises a 

question as to whether all of the elements of the charged offense 

were present.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154

(Breverman), disapproved on another ground by People v. 

Schuller (2023) 15 Cal.5th 237, 260 (Schuller).) If substantial 

evidence exists that would support a conclusion that the lesser 

and not the charged offense was committed, the court has a duty 

to instruct even if the instruction was not requested. (People v. 

Kruse (2020) 56 Cal.App.5th 1034, 1045–1046.) If a reasonable 

juror could find that the lesser included offense, but not the 

greater, was committed, the court must instruct on the lesser 

offense. (People v. Cruz (2008) 44 Cal.4th 636, 664.)

We review the issue de novo and independently determine 

whether a lesser included offense instruction should have been 

given. (People v. Avila (2009) 46 Cal.4th 680, 705.) We resolve 

all doubts as to the sufficiency of evidence to warrant such an 

instruction in favor of the defendant, and do not weigh witness 

4 CALCRIM No. 522 states: “Provocation may reduce a 

murder from first degree to second degree. The weight and 

significance of the provocation, if any, are for you to decide. [¶] If 

you conclude that the defendant committed murder but was 

provoked, consider the provocation in deciding whether the crime 

was first or second degree murder.”
14

credibility. (See also id. at p. 712.; People v. Manriquez (2005) 

37 Cal.4th 547, 584 (Manriquez) [appellate court determines 

independently whether an instruction on lesser included offense 

of voluntary manslaughter should have been given].)

“California law separates criminal homicide into two 

classes: the greater offense of murder and the lesser offense of 

manslaughter. [Citation.] Murder is defined as ‘the unlawful 

killing of a human being . . . with malice aforethought’ (§ 187, 

subd. (a)), while manslaughter is defined as ‘the unlawful killing 

of a human being without malice’ (§192). Thus the 

‘distinguishing feature [between the two offenses] is that murder 

includes, but manslaughter lacks, the element of malice.’ 

[Citation.] Malice exists when ‘an unlawful homicide was 

committed with the “intention unlawfully to take away the life of 

a fellow creature” (§188), or with awareness of the danger and a 

conscious disregard for life.’ ” (Schuller, supra, 15 Cal.5th at 

p. 252.)

“ ‘Generally, the intent to unlawfully kill constitutes 

malice.’ ” (Schuller, supra, 15 Cal.5th at p. 252.) As relevant 

here, “California law recognizes [a] circumstance[] where ‘a 

finding of malice may be precluded, and the offense limited to 

manslaughter, even when an unlawful homicide was committed 

with intent to kill,’ ” specifically “when a person kills ‘ “ ‘in a 

“sudden quarrel or heat of passion.” ’ ” ’ ” (Ibid.) Such 

“ ‘mitigating circumstances reduce an intentional, unlawful 

killing from murder to voluntary manslaughter “by negating the 

element of malice that otherwise inheres in such a homicide.” ’ ” 

(Ibid.)
15

“A killing committed in a heat of passion on sufficient 

provocation is voluntary manslaughter.” (People v. Rountree

(2013) 56 Cal.4th 823, 855.) “ ‘Heat of passion is a mental state 

that precludes the formation of malice and reduces an unlawful 

killing from murder to manslaughter.’ ” (People v. Vargas (2020) 

9 Cal.5th 793, 827 (Vargas).) “Heat of passion killing is distinct 

from malice murder because thought in some form is necessary 

‘to form either an intent to kill or a conscious disregard for 

human life.’ ” (Id. at pp. 827–828.) “A heat of passion killing . . . 

is one caused by an unconsidered reaction to provocation rather 

than the result of rational thought,” and “[i]f reason ‘ “ ‘was 

obscured or disturbed by passion’ ” ’ to so great a degree that an 

ordinary person ‘ “ ‘would act rashly and without deliberation and 

reflection,” it has been concluded that such a “killing arose from 

passion rather than from judgment.’ ” ’ ” (Id. at p. 828; see People 

v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)

“A heat of passion theory of manslaughter has both an 

objective and a subjective component.” (People v. Moye (2009) 

47 Cal.4th 537, 549.) The subjective component looks to the 

defendant’s state of mind to see whether, in fact, he acted in the 

heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1252

(Steele).) The provocation must be initiated by the victim. 

(People v. Carasi (2008) 44 Cal.4th 1263, 1306.) No specific type 

of provocation is required, and “the passion aroused need not be 

anger or rage but can be any ‘ “ ‘[v]iolent, intense, high-wrought 

or enthusiastic emotion.’ ” ’ ” (Breverman, supra, 19 Cal.4th at 

p. 163.) The objective component requires the victim’s behavior 

to have been provocative enough to cause an ordinary person of 

average disposition to act rashly or without deliberating or 

reflecting. (People v. Enraca (2012) 53 Cal.4th 735, 759 (Enraca); 
16

see Beltran, supra, 56 Cal.4th at p. 949 [The question is not 

whether a reasonable ordinary person of average disposition 

would be moved to kill, but whether a reasonable ordinary person 

of average disposition would react].)

“ ‘To be adequate, the provocation must be one that would 

cause an emotion so intense that an ordinary person would 

simply react without reflection,’ ” and the “ ‘anger or other 

passion must be so strong that the defendant’s reaction bypassed 

his thought process to such an extent that judgment could not 

and did not intervene.’ ” (People v. Beck and Cruz (2019) 

8 Cal.5th 548, 650, italics omitted (Beck and Cruz; Beltan, supra, 

56 Cal.4th at p. 949.) A defendant may not “set up his own 

standard of conduct.” (People v. Cole (2004) 33 Cal.4th 1158, 

1215–1216.) “No instruction on lesser included offenses is 

required if there is no evidence that there was any offense less 

than that charged.” (Vargas, supra, 9 Cal.5th at p. 827.)

“Instructing the jury on a lesser included offense is not 

required when the evidence supporting such an instruction is 

weak, but ‘ “ ‘whenever evidence that the defendant is guilty only 

of the lesser offense is “substantial enough to merit 

consideration” by the jury,’ ” ’ such an instruction is required.” 

(Vargas, supra, 9 Cal.5th at p. 827.) “Whether the evidence is 

substantial is tested by considering whether a jury would 

conclude the lesser but not the greater offense was committed.” 

(Ibid.) “Manslaughter instructions are warranted when 

substantial evidence exists to support a jury’s determination that 

the killing was committed in the heat of passion and thus does 

not constitute a first-degree murder.” (Ibid.)
17

“[W]hen provocation [is] at issue, the prosecution is 

compelled to disprove those circumstances beyond a reasonable 

doubt.” (Schuller, supra, 15 Cal.5th at p. 254.) “California’s 

standard jury instructions on voluntary manslaughter include 

this requirement.” (Ibid.) An erroneous failure to instruct on 

this theory when supported by substantial evidence is subject to 

review under Chapman v. California (1967) 386 U.S. 18. (See 

Schuller, at pp. 260–261.)

c. No Instructional Error Occurred Because the Record 

Lacks Substantial Evidence of Sudden Quarrel/Heat 

of Passion.

Considering the evidence here, as we must, in the light 

most favorable to defendant, we conclude the record lacks 

sufficient evidence that he was subjectively and objectively 

provoked to kill Sanchez.

First, the trial court was required to instruct on voluntary 

manslaughter (based on sudden quarrel/heat of passion) only if a 

reasonable jury could have found that appellant was subjectively

provoked by Sanchez’s use of the word “nigga” to act rashly and 

without due deliberation and reflection. (See Beck and Cruz, 

supra, 8 Cal.5th at p. 650.)

Defendant contends the record includes substantial 

evidence to support a juror’s conclusion that he was subjectively 

provoked into a state in which he experienced a violent, intense, 

highly-wrought or enthusiastic emotion to Sanchez’s use of a 

highly charged racial slur. Defendant concedes that he followed 

Sanchez and Marin as they walked away from the liquor store. 

But he maintains that the fact that the gun remained in his 

pocket as he followed the couple, demonstrates he did not intend 

to shoot Sanchez, but wanted only for him to leave Ten Crips 
18

territory. Defendant’s state of mind changed markedly only after 

he heard Sanchez utter the word “nigga.” Only at this point did 

defendant pull the gun from his pocket and shoot Sanchez. 

Defendant insists the fact that he shot Sanchez so many times, 

even after the man fell to the ground is indicative of and 

“consistent with the intensely emotional state of mind that he 

was in.” In short, the fact that he fired many more shots than 

would have been necessary to kill Sanchez demonstrates that he 

was in a state of heat of passion that negated malice.

Even if we assume defendant satisfied the subjective 

component of this test, he failed to satisfy the objective 

component. Appellant acknowledges that numerous courts have 

found that a victim’s verbal taunts, or offensive and insulting 

words are insufficient to satisfy the “objectively reasonable” 

component of provocation. For example, in People v. Najera

(2006) 138 Cal.App.4th 212, 226, the victim taunted defendant by 

calling him a “faggot.” The court found this was “insufficient to 

cause an ordinary person to lose reason and judgment under an 

objective standard.” (Ibid.) Similarly, in Manriquez, the victim 

“called defendant a ‘mother fucker’ and . . . taunted defendant, 

repeatedly asserting that if defendant had a weapon, he should 

take it out and use it.” (Manriquez, supra, 37 Cal.4th at p. 586.) 

The Supreme Court found such taunts “insufficient to cause an 

average person to become so inflamed as to lose reason and 

judgment.” (Ibid.; see also Enraca, supra, 53 Cal.4th at p. 759 

[rejecting argument “that insults or gang-related challenges 

would induce sufficient provocation in an ordinary person to 

merit an instruction on voluntary manslaughter”].)

So, too, here. To warrant an instruction on heat of passion, 

the defendant must actually have killed in the heat of passion, 
19

and the circumstances that gave rise to the passion must be such 

that they would arouse such passion in the mind of a reasonable 

person. (Steele, supra, 27 Cal.4th at pp. 1252–1253.) Ample case 

law and our independent review of the record supports the trial 

court’s conclusion that Sanchez’s single use of a racial slur was 

insufficiently objectively provocative to warrant a voluntary 

manslaughter instruction. (People v. Gutierrez (2009) 45 Cal.4th 

789, 826–827 [insufficient provocation for voluntary 

manslaughter existed when the defendant and the victim 

engaged in a verbal argument shortly before the killing, during 

which the defendant testified that he told the victim “ ‘[g]et off 

me, you f . . . ing bitch’ ” and the victim “ ‘cuss[ed] back at’ ” 

him].) The record lacks sufficient evidence that defendant acted 

under an objectively reasonable and intense surge of passion 

when he fired 13 shots at Sanchez who was both unarmed and 

walking away. The trial court did not err in refusing to instruct 

the jury on voluntary manslaughter with CALCRIM No. 570.

2. The Trial Court’s Error in Imposing the Upper Term 

Sentence on the Firearm Enhancement as to Count 1 

Based on Aggravating Factors Not Found True 

Beyond a Reasonable Doubt Requires Remand for 

Resentencing.

Defendant argues that remand for resentencing is required 

because the trial court erred in imposing the upper term sentence 

on the firearm enhancement attached to the murder conviction 

based on seven aggravating factors to which he did not stipulate, 

and which a jury or court did not find true beyond a reasonable 

doubt.

The Attorney General maintains defendant forfeited his 

claim of sentencing error as to the court’s imposition of the upper 

term for the firearm enhancement for count 1 by failing to raise 
20

the issue at the time of sentencing. Alternatively, the Attorney 

General argues resentencing as to firearm enhancement is not 

necessary because at least one of seven aggravating factors on 

which the trial court relied to impose the upper term was found 

true beyond a reasonable doubt. Finally, the Attorney General 

asserts if there was trial court error, it was harmless.

a. Controlling Law

As explained in People v. Falcon (2023) 92 Cal.App.5th 911, 

review granted September 13, 2023, S281242 (Falcon), Senate 

Bill No. 567 (2021–2022 Reg. Sess.) (Sen. Bill No. 567), which 

became effective in January 2022, “materially revised the 

determinate sentencing scheme under section 1170[, former 

subdivision] (b)” (Falcon, at p. 924) “and the amended law now 

limits a trial court’s discretion to impose an upper term.” (Id. at 

p. 918, citing § 1170, subd. (b)(1)). “Presumptively, the middle 

term is the maximum term that may be imposed, and it may be 

exceeded ‘only when there are circumstances in aggravation of 

the crime that justify the imposition of a term of imprisonment 

exceeding the middle term . . . .’ [Citation.] In addition, the facts 

underlying those circumstances must be proven, stipulated to by 

the defendant or evidenced in a specific manner not required 

under the former law.” (Id. at p. 918.)

“The plain language of this new configuration creates a 

presumption that the middle term is the default maximum 

sentence, and this new presumption bears weight on how the 

trial court may exercise its discretion to depart from the 

presumptive rule. [Citation.] Unlike its predecessor, the statute 

does not allow a court to select an upper term simply because it 

appears warranted and supported by aggravating circumstances. 

Instead, in distinct contrast with the former sentencing scheme, 
21

the court’s decision to impose an upper term is now expressly 

framed around whether properly proven or established 

aggravating circumstances justify invoking the exception to the 

rule that the middle term is the default maximum sentence.” 

(Falcon, supra, 92 Cal.App.5th at p. 925, review granted.)

Under section 1170 as amended, “the court may consider 

the defendant’s prior convictions in determining sentencing based 

on a certified record of conviction without submitting the prior 

convictions to a jury.” (§ 1170, subd. (b)(3).) Otherwise, “ ‘[t]he 

court may impose a sentence exceeding the middle term only 

when there are circumstances in aggravation of the crime that 

justify the imposition of a term of imprisonment exceeding the 

middle term, and the facts underlying those circumstances have 

been stipulated to by the defendant, or have been found true 

beyond a reasonable doubt at trial by the jury or by the judge in a 

court trial. . . .’ ” (Falcon, supra, 92 Cal.App.5th at p. 925, review 

granted; § 1170, subd. (b)(2).)

Similar principles apply to section 1170.1 which governs 

sentencing for enhancements:

“(1) When the court imposes a sentence for a felony 

pursuant to Section 1170 or subdivision (b) of Section 1168, the 

court shall also impose, in addition and consecutive to the offense 

of which the person has been convicted, the additional terms 

provided for any applicable enhancements. If an enhancement is 

punishable by one of three 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).

“(2) The court may impose a sentence exceeding the middle 

term only when there are circumstances in aggravation that 

justify the imposition of a term of imprisonment exceeding the 
22

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.” (§ 1170.1, subd. (d), italics added.)

b. No Forfeiture

As a threshold matter, relying on People v. Flowers (2022) 

81 Cal.App.5th 680, review granted October 12, 2022, S276237

(Flowers), the Attorney General argues appellant forfeited his 

claim of error by failing to raise any Senate Bill No. 567 issues at 

the time of his sentencing hearing. (See Flowers, at pp. 683–684 

[defendant forfeited his claim that trial court erred in imposing 

upper term punishment pursuant to former section 1170].) As 

noted above, the applicable versions of sections 1170 and 1170.1 

became effective in January 2022. Defendant was sentenced on 

October 24, 2022.

Defendant insists his claim remains cognizable on appeal 

notwithstanding his counsel’s failure to object because, in 

imposing the upper term sentence as to the enhancement, the 

trial court failed to comply with explicit sentencing mandates of 

the current version of section 1170.1, subdivision (b)(2), and thus, 

the sentence is unauthorized. (See People v. Panozo (2021) 

59 Cal.App.5th 825, 839 [rejecting forfeiture argument despite 

absence of objection because the claim related to trial court’s 

misapprehension of statutory sentencing obligations]; People v. 

Scott (1994) 9 Cal.4th 331, 354 (Scott).)

The Attorney General’s reliance on Flowers is misplaced. 

Flowers involved a challenge to an upper term sentence under the 

former version of section 1170, which gave the trial court 

discretion to impose any of three prescribed terms. Since the 

court’s decision to impose an upper term sentence was purely 
23

within its discretion, the defendant’s failure to object at the time 

of sentencing forfeited the issue on appeal. (Flowers, supra, 

81 Cal.App.5th at pp. 683–684, review granted.)

This matter involves application of amended section 1170.1, 

which expressly limits the trial court’s discretion to impose an 

upper term sentence as to enhancements. The question is close. 

We acknowledge defendant was sentenced several months after 

the new rule became effective. It is also true that the trial court 

may lawfully have imposed the upper term had it complied with 

the statutory requirements in effect at the time of sentencing. 

Neither party addressed the new requirements in their 

sentencing memoranda, nor were the requirements discussed in 

the probation report the court reviewed. The court did not 

discuss any facts underlying the aggravating factors on which it 

relied for sentencing as to the enhancement on count 1.

We are mindful of the Supreme Court’s admonition that 

ameliorative changes to criminal sentencing law are applied 

broadly. (Cf., People v. Superiour Court (Lara), (2018) 4 Cal.5th 

299, 308 [absent indications to the contrary, the Legislature 

ordinarily intends for ameliorative changes to the criminal law to 

extend as broadly as possible, distinguishing only as necessary 

between sentences that are final and sentences that are not].) 

For reasons explained below, we cannot conclusively determine 

there is no reasonable probability the trial court would have 

adopted amended section 1170.1’s presumption in favor of using 

the middle term, and that its failure to adhere to statutory 

mandates may have resulted in an unauthorized sentence. 

Accordingly, we find no forfeiture.
24

c. Relevant Factual Background

The trial court cited seven aggravating factors in choosing 

to impose the high term sentence for the firearm enhancement 

attached to the murder conviction: (1) Appellant’s crimes involved 

great violence, great bodily harm, threat of great bodily harm, or 

other acts disclosing a high degree of cruelty, viciousness or 

callousness within the meaning of California Rules of Court, 

rule 4.421(a)(1);5 (2) Appellant was armed with or used a weapon 

at the time of the commission of the crime within the meaning of 

rule 4.421(a)(2); (3) The victim was particularly vulnerable 

within the meaning of rule 4.421(a)(3); (4) The manner in which 

the crime was carried out indicated planning, sophistication, or 

professionalism within the meaning of rule 4.421(a)(8); 

(5) Appellant was engaged in violent conduct that indicated a 

serious danger to society within the meaning of rule 4.421(b)(1); 

(6) Appellant’s prior convictions were numerous and increasing in 

seriousness within the meaning of rule 4.421(b)(2); and 

(7) Appellant served a prior prison term under rule 4.421(b)(3). 

The court found no mitigating circumstances.

The trial court did not discuss the facts underlying its 

findings as to any aggravating circumstance. Nor, as in People v. 

Zabelle (2022) 80 Cal.App.5th 1098 (Zabelle), did the court 

indicate that it afforded any “particular weight to any of its listed 

aggravating circumstances[, or] whether its decision to impose 

the upper term was (or was not) a close call.” (Id. at p. 1115; see 

People v. Lopez (2022) 78 Cal.App.5th 459, 468 (Lopez) [“trial 

court offered no indication that it would have selected an upper 

5 Undesignated rule references are to the California Rules of 

Court.
25

term sentence even if only a single aggravating factor or some 

subset of permissible factors were present”]; cf. People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez) [remand for 

resentencing proper if record does not clearly indicate the court 

would have imposed the same sentence under different 

sentencing presumption].)

Defendant argues his upper term sentence as to the 

enhancement is unauthorized because he never stipulated to the 

underlying circumstances, nor did the jury or trial court find any 

aggravating factor true “beyond a reasonable doubt.”

The Attorney General maintains that resentencing is not 

required because one aggravating factor–that appellant served a 

prior prison term–may be deemed to have been found true beyond 

a reasonable doubt by virtue of the court’s reliance on a certified 

record of that factor. Accordingly, because this aggravating 

circumstance upon which the court relied in sentencing appellant 

presumably was found true beyond a reasonable doubt, there was 

no violation of appellant’s Sixth Amendment right to a jury, nor 

any violation of section 1170.1, subdivision (d).

The Attorney General is mistaken. Section 1170, 

subdivision (b)(3) provides for an exception to the proof 

requirements for aggravating factors based on a prior conviction: 

“Notwithstanding paragraphs (1) and (2), the court may consider 

the defendant’s prior convictions in determining sentencing based 

on a certified record of conviction without submitting the prior 

convictions to a jury.” However, this paragraph “does not apply to 

enhancements imposed on prior convictions.” (§ 1170, 

subd. (b)(3), italics added.) Section 1170.1, subdivision (d)(1), (2) 

contain no “prior conviction exception” to the imposition of the 

upper term for enhancements with triads. Rule 4.420(c) also 
26

expressly provides that, “the court may consider the fact of the 

defendant’s prior convictions based on a certified record of 

conviction without it having been stipulated to by the defendant 

or found true beyond a reasonable doubt at trial by a jury or the 

judge in a court trial. This exception does not apply to the use of 

the record of a prior conviction in selecting the upper term of an 

enhancement.” The plain language of these provisions requires 

that either defendant stipulate to the fact or a trier of fact find 

the fact beyond a reasonable doubt.

d. The Standard of Review

The parties dispute the standard of review when a 

sentencing court imposes an upper term sentence in partial 

reliance on an aggravating circumstance not found true by the 

jury. (E.g., compare Lopez, supra, 78 Cal.App.5th at pp. 465–466, 

[error is harmless only if appellate court concludes a jury would 

have found true beyond a reasonable doubt every factor on which 

the court relied], and People v. Dunn (2022) 81 Cal.App.5th 394, 

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

Flores (2022) 75 Cal.App.5th 495, 500–501 [harmless error so 

long as appellate court finds the jury would have found at least a 

single aggravating circumstance true beyond a reasonable 

doubt].)

More recent authorities have suggested a hybrid standard 

of review which we find applicable.6 Under this standard, there 

are two inquiries. First, to satisfy federal constitutional 

requirements, we must conclude beyond a reasonable doubt that 

6 The Supreme Court is set to resolve this split. (See People 

v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted 

August 10, 2022, S274942.)
27

a jury–also applying the beyond a reasonable doubt standard–

would have found true at least a single aggravating 

circumstance. (Zabelle, supra, 80 Cal.App.5th at p. 1112; see also 

Dunn, supra, 81 Cal.App.5th at p. 401, review granted; see People 

v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) Second, the 

appellate court must determine, under the California Watson

standard (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)), 

whether the trial court would have imposed the upper term 

regardless of the error. This examination involves two steps. “In 

particular, we must consider whether it is reasonably probable 

that the trial court would have chosen a lesser sentence in the 

absence of the error. [Citation.] Resolving this issue entails two 

layers of review. We must first, for each aggravating fact, 

consider whether it is reasonably probable that the jury would 

have found the fact not true. We must then, with the

aggravating facts that survive this review, consider whether it is 

reasonably probable that the trial court would have chosen a 

lesser sentence had it considered only those aggravating facts.” 

(Zabelle, at p. 1112.)

Applying this analytical framework, it may be said that, by 

virtue of its verdicts, the jury necessarily and implicitly found the 

first two aggravating circumstances cited by the court established 

beyond a reasonable doubt. Clearly, the crime of murder involves 

great bodily injury. (Rule 4.421(a)(1).) Similarly, the second 

factor—that appellant was armed with a weapon—is inherent in 

the firearm enhancement itself. (Rule 4.421(a)(2).) Reliance on 

these factors to impose the upper term as to the firearm 

enhancement may constitute an impermissible dual or 

overlapping use of facts. (People v. Moberly (2009) 

176 Cal.App.4th 1191, 1197; Scott, supra, 9 Cal.4th at p. 350
28

[Generally a court “may [not] use a fact constituting an element 

of the offense either to aggravate or to enhance a sentence.”]; 

People v. Barker (1986) 182 Cal.App.3d 921, 941 [Where there is 

an improper dual or overlapping use of facts, remand is required 

if it is reasonably probable the defendant would obtain a more 

favorable result].)

Defendant did not object to the court’s use of overlapping 

aggravating factors at the time of sentencing. Nothing in Senate 

Bill No. 567 relieved him of the obligation to object to the court’s 

dual use of facts to preserve that claim on appeal. Accordingly, 

he forfeited any appellate challenge to an improper dual use of 

facts. (See People v. de Soto (1997) 54 Cal.App.4th 1, 9 [failure to 

specifically object to the court’s dual use of facts in sentencing 

forfeited the issue on appeal]; People v. Gonzalez (2003) 

31 Cal.4th 745, 755 [same].)

The Attorney General contends that the seventh 

aggravating factor on which the court relied—appellant served a 

prior prison term—was properly relied upon as proven beyond a 

reasonable doubt, because it was established by certified records. 

Not so. As discussed above, section 1170.1 does not include a 

“prior conviction exception” to the imposition of the upper term 

for firearm enhancements with triads. (§ 1170.1, subd. (d)(1), (2); 

rule 4.420(c).)

Because the jury may have found at least one aggravating 

circumstance true beyond a reasonable doubt, there is no Sixth 

Amendment violation. A sentencing court may impose a sentence 

higher than the statutory maximum based on one aggravating 

circumstance found true by the jury. (See Dunn, supra, 

81 Cal.App.5th at p. 409, review granted [“A fact that is necessary

to impose a sentence above the statutory maximum must be 
29

proved to a jury beyond a reasonable doubt. . . . [W]hen multiple 

aggravating circumstances not proved to the jury are relied upon 

by a trial court in imposing the upper term, the reviewing court 

must only conclude beyond a reasonable doubt that one of those 

circumstances would have been found true by the jury beyond a

reasonable doubt to avoid offending the Sixth Amendment”].)

Thus, we turn to state law and apply the harmless error 

standard set forth in Watson: “[T]he question posed is whether, in 

the absence of the improperly considered sentencing factor(s), 

there is a reasonable probability of a more favorable outcome for 

the appealing party—i.e., the imposition of a lesser sentence.” 

(Falcon, supra, 92 Cal.App.5th at p. 941, review granted; see 

People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos); People v. 

Price (1991) 1 Cal.4th 324, 492 (Price).) Although a single 

aggravating factor might be sufficient to satisfy the Sixth 

Amendment (Zabelle, supra, 80 Cal.App.5th at pp. 1111–1112), 

the same cannot be said under Senate Bill No. 567. (Zabelle, at 

p. 1115.) In Zabelle, as here, the court alluded to multiple 

aggravating factors but did not state which factor, or combination 

of factors, compelled it to select the upper term. (Ibid.)

Setting aside the dual use of the first two aggravating 

factors, the trial court improperly cited five remaining 

aggravating circumstances. The sentencing court did not suggest 

that it had considered any aggravating circumstance more 

heavily than any other. However, it appears reasonably likely 

that the aggravating circumstance that defendant served a prior 

prison term influenced the court to impose the upper term on the 

enhancement. If so, such reliance was inappropriate. Section 

1170, subdivision (b)(3)’s exception for reliance on a certified 

record of conviction without submission to a jury does not apply 
30

to enhancements imposed on prior convictions. (See §§ 1170, 

subd, (b)(3), 1170.1, subd. (d)(1), (2); rule 4.420(c).)

Turning to the remaining aggravating factors, the 

sentencing court found that Sanchez was “particularly 

vulnerable.” That conclusion is debatable. Courts have found 

that “ ‘a “particularly vulnerable” victim is one who is vulnerable 

“in a special or unusual degree, to an extent greater than in other 

cases.” ’ ” (People v. Esquibel (2008) 166 Cal.App.4th 539, 558.) 

“ ‘Particularly . . . means in a special or unusual degree, to an 

extent greater than in other cases. Vulnerability means 

defenseless, unguarded, unprotected, accessible, assailable, one 

who is susceptible to the defendant’s criminal act.’ ” (People v. 

Loudermilk (1987) 195 Cal.App.3d 996, 1007; People v. DeHoyos

(2013) 57 Cal.4th 79, 154.)

For two reasons, we conclude it is reasonably probable that 

a jury would not have found this circumstance true beyond a 

reasonable doubt. First, as explained by the prosecution’s gang 

expert, Sanchez, an adult member of the Watts Varrio Grape 

gang, voluntarily chose to assume the well-known risk of violence 

associated with entry into rival gang territory. Second, whether 

Sanchez may be said to have been particularly vulnerable is a 

comparative standard; it requires speculation as to whether a 

jury would have concluded the circumstances surrounding these 

crimes rendered him more vulnerable than other victims. (See 

People v. Wandrey (2022) 80 Cal.App.5th 962, 983, review 

granted Sept. 28. 2022, S275942, review dism. Aug. 30, 2023

[finding harmless error in the court’s reliance on particular 

vulnerability would require some degree of speculation, given the 

quantitative standard].)
31

Although Sanchez was vulnerable in the sense that he was 

unarmed and walking away from the store, the evidence suggests 

he was not “particularly vulnerable.” Sanchez was outside, in an 

open public space, not cornered or in a confined space. He was in 

territory claimed by a rival gang. Sanchez was vulnerable to the 

extent anyone being followed by an armed man is vulnerable, but 

that alone did not render him “particularly” vulnerable. From 

this evidence, a reasonable jury could conceivably conclude that 

Sanchez was not unusually defenseless. Thus, it is reasonably 

probable that a jury might not have found beyond a reasonable 

doubt that Sanchez was a particularly vulnerable victim. (See 

Sandoval, supra, 41 Cal.4th at p. 841 [remanding in part because 

the record did not “reflect such a clear-cut instance of victim 

vulnerability that we confidently can conclude the jury would 

have made the same findings”].)

Similarly questionable is the court’s finding that the 

shooting was carried out in a manner indicating planning, 

sophistication, or professionalism. Defendant was armed when 

he entered the liquor store after Sanchez and Marin but did not 

shoot until after the couple left the store, after Sanchez identified 

his gang membership and after defendant heard Sanchez utter 

the word “nigga.” The fact that defendant was armed from the 

outset and followed the couple as they walked away lends itself to 

a conclusion that the shooting was planned. However, a 

reasonable jury could conceivably conclude that firing 13 shots 

(four of which were fatal) in a surveilled public area and even 

after Sanchez fell to the ground, was neither sophisticated nor 

professional. The murder was committed by brute force and 

violence, not by a particularly sophisticated method. Sadly, this 

case involves the relatively routine act of severe violence by a 
32

gang member against a suspected rival. A jury could rationally 

find that defendant’s conduct did not exhibit criminal 

sophistication or professionalism.

Although less ambiguous, it is nevertheless questionable 

whether the jury would have concluded beyond a reasonable 

doubt that defendant’s prior convictions were “numerous and 

increasing in seriousness’ ” as the trial court found. According to 

te probation report, defendant had four juvenile adjudications 

between 2005 and 2007,7 and a single prior conviction for armed 

robbery (when he was age 16 but treated as an adult) in 2009. 

That conviction occurred 12 years before the crimes at issue, and 

appellant remained in prison until 14 months before Sanchez was 

murdered. There is no question defendant has a criminal record, 

which has (mostly) increased in severity. It is less clear, 

however, that a jury would have found beyond a reasonable doubt 

that his aged convictions were “numerous.” Determining 

numerosity or the increasing seriousness of prior crimes involves 

subjective factfinding and may be subject to reasonable dispute in 

a given case.

The final aggravating factor cited by the court was that 

defendant was engaged in violent conduct that indicated a 

serious danger to society. A reasonable jury likely would find 

that factor proven beyond a reasonable doubt. However, no such 

finding was made here by the jury or by the trial court, and we 

cannot make that finding definitively on this record.

7 According to his probation report, defendant’s first juvenile 

adjudication in 2005 (at age 12) was for robbery. He had two 

adjudications 2006 for burglary and grand theft, and one in 2007 

for possession of marijuana.
33

The trial court relied on seven aggravating circumstances 

to conclude the high term was appropriate for the enhancement. 

Under current law, the court’s reliance on at least five of those 

factors was improper.8 Under these circumstances, we conclude 

it is reasonably probable the court may have imposed a lesser 

sentence but for its failure to adhere to the explicit mandates of 

newly amended section 1170.1.

e. The Sentencing Error Was Not Harmless

The parties discuss a variety of harmless error approaches 

taken by appellate courts in recent cases when trial courts 

impose upper term sentences based on aggravating 

circumstances not properly determined under amended sections 

1170 and 1170.1, an issue currently pending before the California 

Supreme Court in People v. Lynch. We need not weigh in on the 

split of authority, because, unlike this case, those cases involved 

the retroactive application of the new law. (See Lopez, supra, 

78 Cal.App.5th at p. 465; Zabelle, supra, 80 Cal.App.5th at 

p. 1109; Dunn, supra, 81 Cal.App.5th at p. 403; Falcon, supra, 

92 Cal.App.5th at pp. 921, 950–951, review granted.) The 

amendments to section 1170.1 were in effect for many months at 

the time of sentencing, and we must presume the trial court was 

aware of the change in the law. Because the trial court is 

presumed to have known about the limits imposed on its 

sentencing discretion, application of the state law standard for 

harmless error under Watson, supra, 46 Cal.2d at p. 836 is 

8 Based on the prohibition against dual or overlapping use, 

the court also improperly relied on the first two factors it cited. 

However, as stated above, appellant forfeited this argument by 

failing to raise it at sentencing.
34

straightforward. (See, e.g., Falcon, at p. 950 [noting Watson

harmless error test has been applied when a sentencing court 

considered improper sentencing factors under statutory scheme 

that had not changed in interim].)

“When a trial court has given both proper and improper 

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

sentence only if it is reasonably probable that the trial court 

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

its reasons were improper.” (Price, supra, 1 Cal.4th at p. 492.) A 

reasonable probability of a more favorable result exists where the 

improper factor or factors was or were determinative for the 

sentencing court or where the reviewing court cannot make that 

determination. (Avalos, supra, 37 Cal.3d at p. 233; see People v. 

McDaniels (2018) 22 Cal.App.5th 420, 426 [“When a trial court 

has abused its discretion in choosing among available sentencing 

options, such as by relying on an improper sentencing factor, a 

reviewing court must still affirm unless ‘the error complained of 

has resulted in a miscarriage of justice.’ [Citation.] In these 

situations, the trial court has revealed which sentencing choice it 

prefers, and the reviewing court must decide whether there is a 

reasonable probability that the trial court’s lawful exercise of 

discretion on remand will lead it to make a different choice.”]; In 

re F.M. (2023) 14 Cal.5th 701, 715 [Watson standard has been 

applied to sentencing error in adult criminal cases where trial 

court is aware of its discretion at sentencing].)

Although the trial court cited the appropriate rules, its 

sentencing determination does not reflect that it fully appreciated 

the significance of the newly adopted presumptive middle term. 

After finding, without any analysis of the underlying facts, that it 

could rely on seven aggravating circumstances and then finding 
35

no mitigating circumstances, the court imposed the upper 

sentence as to the enhancement at issue. The court’s cursory 

recitation of aggravating factors failed to acknowledge that the 

discretionary limitation imposed by Senate Bill No. 567 “means 

any weighing of aggravating circumstances must occur under the 

weight of the new rule favoring the middle term as the maximum 

sentence.” (Falcon, supra, 92 Cal.App.5th at p. 948, review 

granted.) As it appears the trial court was not fully cognizant of 

(or failed to apply) limitations on its sentencing discretion, 

resentencing is required. The record does not “clearly indicate[] 

the trial court would have imposed the same sentence” if it had 

known not only that most of the aggravating circumstances it 

relied on were improper but also that “the middle term was the 

presumptive maximum sentence.” (Id. at pp. 926, 938; People v. 

Lewis (2022) 88 Cal.App.5th 1125, 1137–1138, review granted 

May 17, 2023, S279147; Gutierrez, supra, 58 Cal.4th at p. 1391.)

The Attorney General’s analysis is too superficial. He 

considers only the existence of aggravating circumstances 

without evaluating their significance as justification for 

departing from the presumption favoring a middle term. The 

trial court expressed no opinion that appellant deserved the most 

severe punishment. Nor does the record provide an adequate 

basis for us to conclude the court would have concluded the 

aggravating circumstances justified an upper term had it 

included the weight of the presumptive middle term in its 

analysis.

Because not all aggravating factors survive the first step of 

the harmlessness analysis, the question is whether it is 

reasonably probable that the trial court would impose a shorter 

sentence had it relied only on permissibly proven factors. We can 
36

only speculate as to how the court might have viewed the 

aggravating circumstances it relied on if it considered whether 

those circumstances justified imposition of the upper term 

bearing the presumptive middle term in mind. Critically, in

addition to the impermissible factfinding, the record is devoid of 

indication that appellant was afforded the benefit of the newer 

middle-term presumption. As explained in Falcon, “[t]he 

statute’s plain language creates an express presumption against 

the imposition of an upper term sentence, even when properly 

proven aggravating circumstances exist: a trial court must decide 

whether the existence of properly proven aggravating 

circumstances justify, not just the term selected, but upward 

departure from the presumptive rule itself. The presumption 

bears weight in this determination. As a result, the trial court no 

longer has full discretion to impose an upper term sentence 

without the weight of any presumption against it, as it did under 

the former version of the [determinate sentencing law].” (Falcon, 

supra, 92 Cal.App.5th at p. 921, review granted.)

“[T]o the extent a potential aggravating circumstance at 

issue in a particular case rests on a somewhat vague or subjective 

standard, it may be difficult for a reviewing court to conclude 

with confidence that, had the issue been submitted to the jury, 

the jury would have assessed the facts in the same manner as did 

the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.) The 

aggravating factors on which the court relied here are of this 

nature, requiring “an imprecise quantitative or comparative 

evaluation of the facts.” (Ibid.)

Some degree of speculation would necessarily be required 

for us to conclude the jury would have agreed with the trial 

court’s evaluation, or that the court would have exercised its 
37

recently limited sentencing discretion in the same way had it 

taken into account the statutory presumption in favor of the 

middle term. On this record, we cannot conclude 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. Appellant is entitled to a sentencing 

decision reached through the exercise of the court’s informed 

discretion. This requires a sentencing decision that affords 

weight to the middle-term presumption, and any upward 

departure must comport with the factfinding limitations 

applicable to the firearm enhancement under section 1170.1.

(See Falcon, supra, 92 Cal.App.5th at pp. 921, 925, review 

granted.) On this record we conclude resentencing is in order.

3. The Trial Court Erred in Doubling the Firearm 

Enhancements as to Counts 1 and 2.

As to count 1, the trial court imposed the upper term 

sentence of 10 years for the firearm enhancement (§ 12022.5), 

doubled to 20 years (§ 1170.12). On the concurrent count 2, the 

court imposed the low term of three years for the firearm 

enhancement (§ 12022.5), doubled to six years (§ 1170.12). The 

parties agree, as do we, that the trial court erred in doubling the 

two firearm enhancements for counts 1 and 2.

Where, “as here, a defendant has one prior strike conviction 

that has been pleaded and either proved or admitted, the 

determinate term for the current felony offense is twice the term 

otherwise provided as punishment. [Citations.] However, 

enhancements are added after the determination of the base term 

and are not doubled. [Citations.]” (People v. Sok (2010) 

181 Cal.App.4th 88, 93–94, fn. omitted; see also People v. Hardy
38

(1999) 73 Cal.App.4th 1429, 1433 [“In sentencing a defendant 

who has one prior strike, the court may not double any 

enhancements it imposes”].)

Because we are vacating appellant’s sentence as to the 

firearm enhancement on count 1, and its mistaken doubling of 

the firearm enhancements as to both counts, appellant is entitled 

to a full resentencing. (People v. Gerson (2022) 80 Cal.App.5th 

1067, 1096.) “[W]hen 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.)

DISPOSITION

Appellant’s sentences as to the enhancements attached to 

counts one and two are vacated and this matter is remanded for 

full resentencing in accordance with sections 1170 and 1170.1, 

and subsequent correction of the abstract of judgment. The 

judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J. WILEY, J.