by Sam Rutherford

The California Supreme Court held that the 2022 amendments to Penal Code § 1170, which limits a trial court’s ability to impose an upper-term sentence unless it finds aggravating factors justify the sentence and also requires that those aggravating factors either be stipulated to by the defendant or proven to a jury beyond a reasonable doubt, apply retroactively to cases on direct appeal. The Court further held that sentences imposed in violation of the amended statutory provision must be reversed unless the reviewing court can say that the sentencing error was harmless beyond a reasonable doubt and that the record clearly indicates the sentencing court would have imposed the same sentence had it been aware of the amended statute’s limitations on its sentencing discretion.

Background

Deandre Lynch was convicted by a jury of three counts of domestic violence resulting in a traumatic condition and one count of simple assault, all committed against his former girlfriend. Following the verdict, a presentence report was prepared that listed Lynch’s extensive criminal history. The report also noted that numerous aggravating circumstances set out in Cal. Rules of Court 4.421 might apply to Lynch’s sentence.

In April 2021, the trial court imposed a total sentence of 15 years and four months in prison. The court arrived at this sentence by imposing an upper-term sentence of five years on the first domestic violence conviction and consecutive one year, four-month sentences on the remaining two convictions. The sentence was then doubled under California’s Three Strikes law.

The trial court relied on eight aggravating factors to justify the upper term sentence: (1) the crimes involved a high degree of cruelty, viciousness, and callousness (Rule 4.421(a)(1)); (2) the victim was particularly vulnerable (Rule 4.421(a)(3)); (3) Lynch used a weapon when committing the crimes (Rule 4.421(a)(2)); (4) his conduct and prior record indicate a serious danger to society (Rule 4.421(b)(1)); (5) his prior convictions were numerous (Rule 4.421(b)(2)); (6) he had served prior prison terms (Rule 4.421(b)(3)); (7) he was on parole at the time he committed the crimes (Rule 4.421(b)(4)); and (8) his prior performance on parole was unsatisfactory (Rule 4.421(b)(5)). The court found no circumstances in mitigation.

In Cunningham v. California, 549 U.S. 270 (2007), the U.S. Supreme Court held the Sixth Amendment requires that any fact potentially increasing a defendant’s sentence under California’s determinate sentencing scheme “must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Two months after Lynch’s sentencing hearing, Cal. Penal Code § 1170(b) was amended to prohibit imposition of an upper-term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, “have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” Cal. Penal Code § 1170(b)(2) (as amended by Stats. 2021, ch. 731, § 1.3.).

On appeal, Lynch argued that he was entitled to resentencing under this amendment because the jury did not find any of the facts that the trial court relied on to impose an upper-term sentence. In a 2-1 opinion, the California Court of Appeal affirmed. It held that two of the eight aggravating factors, Lynch’s use of a weapon and his prior convictions, were proved in compliance with the Sixth Amendment and the amended version of § 1170(b). The Court of Appeal ruled that the failure to prove the remaining six aggravating factors in compliance with the amended statute was an error of state law subject to harmless error review under the “reasonably probable” standard set forth in People v. Watson, 299 P.2d 243 (Cal. 1956), and that under this standard, it was likely that Lynch would have received the same sentence even if the trial court relied only on the two appropriately proven aggravators.

The California Supreme Court granted Lynch’s petition for discretionary review.

Analysis

The Court addressed two issues on appeal. First, it had to decide whether 2022 statutory amendments to California’s determinate sentencing scheme applied retroactively to Lynch’s case. And second, if the answer to the first question was yes, then what standard of harmless error review applies to sentences imposed in violation of the amended statutes.

Turning to the retroactivity question, the Court recognized that the California Legislature amended § 1170 “‘so that (1) the middle term [is] no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge [has] the discretion to impose an upper, middle or lower term based on reasons he or she states.’” Quoting People v. Wilson, 164 Cal. App. 4th 988 (2008). However, effective January 1, 2022, the Legislature again amended § 1170 to provide that a trial court “shall,” in its discretion, impose a sentence “not to exceed the middle term.” § 1170(b)(1). Trial courts may impose an upper-term sentence only if aggravating circumstances justify the sentence, and the facts underlying the circumstances have either been stipulated to by the defendant or proven to a jury beyond a reasonable doubt. § 1170(b)(2). A defendant’s prior convictions are exempt from this requirement. § 1170(b)(3). These amendments were made so that California’s determinate sentencing law would comply with Cunningham.

Although the Legislature did not expressly state whether the 2022 amendments apply retroactively to sentences handed down before the statute’s effective date, numerous California Courts of Appeal have held that the amendments are “ameliorative” under the decision in In re Estrada, 408 P.2d 948 (Cal. 1965), and therefore apply to any cases pending on direct appeal on the day the 2022 amendments became law. (Collecting cases). The Attorney General did not dispute these holdings in Lynch’s case, and the Court accepted the concession. Thus, the Court held that the amended version of § 1170 applied to Lynch’s sentence.

The next issue was what standard of review applies to sentences imposed in violation of § 1170, as amended. Lynch argued that such sentences should automatically result in a new sentencing hearing without an individualized assessment of prejudice, but the Court rejected this approach, reasoning that the sentences imposed in violation of the Sixth Amendment jury trial guarantee are subject to harmless error review. See Washington v. Recuenco, 548 U.S. 212 (2006) (rejecting this same argument, holding the failure to submit a sentencing factor to the jury is not a structural error). The Court saw no reason to depart from this settled precedent despite Lynch’s arguments to the contrary.

But the question remained as to the appropriate test for harmlessness. The Court of Appeal affirmed Lynch’s sentence under Watson’s “reasonably probable” harmless error standard applicable to non-constitutional errors, reasoning that a violation of the amended version of § 1170 is a violation of California statutory law. The Court rejected this approach because the “2022 amendment of section 1170(b)(1) and (2) effectively codifies the holding in Cunningham” and the failure to comply with its requirements is in essence a violation of the U.S. Constitution. Consequently, the Court determined that a “prejudice inquiry under Watson is inadequate to assess the effect of a failure to honor the Sixth Amendment’s jury trial right.”

Instead, the Court explained that Sixth Amendment violations under Cunningham, like all federal constitutional errors, must be reviewed under the familiar harmless error standard announced in Chapman v. California, 386 U.S. 18 (1967). “This ‘stricter’ standard of review requires reversal unless the error is ‘harmless beyond a reasonable doubt.’” People v. Hendrix, 515 P.3d 22 (Cal. 2022) (quoting People v. Dominguez, 140 P.3d 866 (Cal. 2006)).

In assessing prejudice under Chapman, the Court held: “[U]nder the current statute, a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.” The Court instructed that a defendant is entitled to resentencing whenever this test is not met. In doing so, it expressly overturned several cases that are inconsistent with the Court’s opinion. (See opinion for citations.)

The Court went one step further for cases like Lynch’s where the trial court imposed an upper term based on some valid and some invalid aggravating factors prior to the amended version of § 1170 taking effect. Relying on its previous decisions in People v. Gutierrez, 324 P.3d 245 (Cal. 2014), and People v. Salazar, 538 P.3d 688 (Cal. 2023), the Court held that resentencing is required unless the record “clearly indicates” the trial court would have imposed the same sentence had it understood the limited nature of its sentencing discretion to impose an upper-term sentence under the amended version of § 1170.

Applying both of these standards to Lynch’s case required resentencing, the Court stated. First, the failure to prove all eight of the aggravating factors in compliance with the amended version of § 1170 required resentencing under Chapman because the Court could not “find the omission of a jury trial harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term.”

Lynch was likewise entitled to resentencing under the Gutierrez standard because the record did “not necessarily speak to how the court would have exercised its discretion under the weight of the presumptive middle term maximum sentence that currently exists.” While the record showed that the trial court thought an upper-term sentence was “appropriate” when it believed it had unbridled discretion to impose any sentence under the statutory maximum under the prior statute, the Court stated that it was “speculative” to suggest the trial court would have found the aggravating factors sufficient to “justify” departing from the legislatively mandated middle-term sentence under the amended statute.

The Court therefore held that Lynch must be resentenced under the amended version of § 1170 and that “proceedings on remand are to be conducted in accordance with the current statutory requirements and the defendant given the opportunity for the jury trial, of which he was deprived.” The Court also clarified that “the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court. The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence.”

Conclusion

Accordingly, the Court reversed Lynch’s sentence and remanded the case to the trial court for further proceedings in accordance with its opinion. See: People v. Lynch, 552 P.3d 877 (Cal. 2024).

Editor’s note: Anyone interested in the issues discussed in this case is strongly encouraged to read the Court’s full opinion, which thoroughly and meticulously examines the issues in far greater detail than is possible in a brief summary of the opinion.   

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