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Name: People v. Falcon (2023) 92 Cal.App.5th 911
Case #: F083577
Court: CA Court of Appeal
Opinion Date: 06/26/2023
Subsequent History: Opn. modified 7/13/2023

Resentencing for noncompliance with revised Penal Code section 1170(b) is unwarranted only where the sentence remains legally valid under federal and state law, and the record clearly indicates the trial court would have imposed the upper term had it know of its circumscribed sentencing discretion. Falcon was convicted of attempted murder and other offenses. His sentence included some upper terms, which he challenged on appeal. Held: Remanded for resentencing. Senate Bill No. 567 amended Penal Code section 1170(b) to limit a trial court’s discretion to impose an upper term sentence by creating a presumptive sentencing preference for the middle term. The law requires that circumstances in aggravation that justify an upper term, except a prior established by certified record, be proven beyond a reasonable doubt or by stipulation. While courts agree the law retroactively applies to nonfinal cases, they are split on how the Sixth Amendment applies to the amended statute and which type of harmless error analysis to use. The Court of Appeal analyzed the Sixth Amendment, California’s determinate sentencing law, section 1170(b), and the split in authority on the appropriate harmless error test. The court concluded that noncompliance with the mandates of section 1170(b) is error that warrants resentencing unless the upper term remains legal under state and federal law, and the record clearly shows the trial court would impose the upper term had it known the middle term was the presumptive maximum sentence. Here there was no clear indication in the record that the trial court would again find the upper terms justified in view of the presumptive middle term maximum sentence. [Editor’s Notes: (1) The question of the prejudice standard to apply in the retroactive application of SB 567 is pending in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted 8/10/2022 (S274942). (2) Because the court concluded that resentencing is required under SB 567, it did not reach defendant’s contentions under Assembly Bill No. 518 and Tirado, which may be addressed at the resentencing hearing.]