To trigger Penal Code section 1170, subdivision (b)(6)(B)’s presumption in favor of a lower term sentence for defendants under 26, there must be an initial showing that defendant’s youth was a contributing factor in the commission of the underlying offense. Defendant was sentenced to the middle term for a felony offense committed when she was 23. She appealed, arguing that given her age, the trial court abused its discretion in failing to treat the lower term as the presumptive sentence under section 1170(b)(6)(B). Held: Affirmed. When evaluating a trial court’s failure to expressly apply a sentencing presumption, the record must affirmatively show compliance with a statutory sentencing mandate whenever the mandate has been “triggered” by an “initial showing” of the applicability of the statute. Here, section 1170(b)(6)(B) does not mandate a presumption in favor of the lower term in every case where the defendant is under 26. Rather, there must be some initial showing that the defendant’s youth was a contributing factor, and only then must the record affirmatively show compliance with the statute. Here, there was no indication in the record that defendant’s youth contributed to the commission of the offense. Accordingly, the trial court was not required to make an express finding regarding section 1170(b)(6)(B). [Editor’s Notes: (1) The court independently reviewed the record for any evidence that defendant’s youth was a contributing factor, observing that she had not forfeited the benefit of section 1170(b)(6)(B)’s presumption by not raising it below. “Notably, the initial showing need not be made by the defendant; the showing could be made by the prosecution or by facts or recommendations in a probation officer’s report. And the defendant need not specifically request application of the lower term presumption if the record shows youth contributed to commission of the underlying offense.” (2) The court concluded that because the record contained no indication that defendant’s youth was a contributing factor, defendant could not demonstrate ineffective assistance of counsel on direct appeal. However, the court noted that if there is extra-record information to this effect, defendant may pursue her claims through habeas.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A164803.PDF