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Did Court of Appeal Err by Finding Trial Court Would Not Have Imposed a Low Term Sentence Under Newly-Added Penal Code section 1170(b)(6)

Case Name: People v. Salazar (2022) 80 Cal.App.5th 453, review granted 10/12/2022
Case #: S275788/B309803
Last Updated: November 20, 2023

Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Remand was required where the sentencing court did not clearly indicate that it would have imposed the same sentence even if it had been aware of the scope of its discretionary powers under the current version of Penal Code section 1170. Defendant was sentenced to the middle term of three years for inflicting corporal injury plus a consecutive eight months for false imprisonment, with both terms doubled for a prior strike. While his appeal was pending, the Legislature enacted Senate Bill No. 567, which amended section 1170 to require a low term sentence if a qualifying trauma was a contributing factor in the commission of the offense, unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. (§ 1170(b)(6).) Although the parties agreed the new legislation applied retroactively to defendant’s nonfinal case, the Court of Appeal (in a divided opinion) declined to remand for resentencing. The California Supreme Court granted review. Held: Reversed and remanded. People v. Gutierrez (2014) 58 Cal.4th 1354 held that when a court has not exercised its informed sentencing discretion, remand is the default unless the record “clearly indicates” that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing; thus, Watson does not apply. Further, mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers. Here, the sentencing court’s discussion of defendant’s lengthy criminal history, its refusal to strike his prior strike, and its decision to impose a consecutive sentence are not dispositive. SB 567’s creation of a low term presumption for qualifying trauma is a marked departure from prior law. Given the People’s concession that there is at least an affirmative indication in the record that Salazar may have suffered a qualifying trauma and that such qualifying trauma may have been a contributing factor to the offense, and in light of the various mitigating factors referenced by the trial court and that it did not impose the high term, there is no clear indication that the sentencing court would impose the same sentence even under the new law. Remand is required.

This case was decided on 11/20/2023. Justice Groban authored the opinion of the court (unanimous).

Review on this issue was also granted with briefing deferred in:

First District

  • People v. Lopez (A164096) [nonpub. opn.], review granted 5/31/2023 (S279685)

Second District

  • People v. Rodriguez (B316391) [nonpub. opn.], review granted 11/22/2022 (S276889)
  • People v. Brasuell (B308124) [nonpub. opn.], review granted 11/30/2022 (S277048)
  • People v. Barocio, (B317635) [nonpub. opn.], review granted 1/11/2023 (S277577)
  • People v. Ortez (B311885) [nonpub. opn.], review granted 3/1/2023 (S278072)
  • People v. Wheeler (B314403) [nonpub. opn.], review granted 4/26/2023 (S279176)
  • People v. Johnson (B314999) [nonpub. opn.], review granted 6/14/2023 (S279871)
  • People v. Fleming (B315836) [nonpub. opn.], review granted 7/12/2023 (S280148)
  • People v. Graham (2021) 64 Cal.App.5th 827, review granted 9/1/2021 (S269509/B300167)
  • People v. Evans (B320205) [nonpub. opn.], review granted 12/13/2023 (S282261)

Third District

  • People v. Siackasorn (C094024) [nonpub. opn.], review granted 11/16/2022 (S276818)
  • People v. Cooper (C095245) [nonpub. opn.], review granted 12/28/2022 (S277431) (review dismissed 6/14/2023 at the request of the petitioner)
  • People v. Donohoe (C096067) [nonpub. opn.], review granted 11/21/2023 (S282276)
  • People v. Serpas (C095167) [nonpub. opn.], review granted 12/20/2023 (S282694)

Fourth District

  • People v. Yzararraz (D080924) [nonpub. opn.], review granted 6/28/2023 (S280178)
  • People v. Gregg (G060803) [nonpub. opn.], review granted 8/9/2023 (S280799)
  • People v. Greer (E076749) [nonpub. opn.], review granted 12/13/2023 (S282601)

Fifth District

  • People v. Watkins (F080436) [nonpub. opn.], review granted 1/18/2023 (S277573)
  • People v. Orellana (F082699) [nonpub. opn.], review granted 4/12/2023 (S278797)
  • People v. Brewer (F082631) [nonpub. opn.], review granted 7/26/2023 (S280503)

Sixth District

  • People v. Johnson (H049257) [nonpub. opn.], review granted 10/11/2023 (S281697)
  • People v. Bass (H049528) [nonpub. opn.], review granted 11/29/2023 (S282420)
  • People v. Samayoa (H047865) [nonpub. opn.], review granted 12/13/2023 (S282535)
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