Senate Bill No. 567 (2021-2022 Reg. Sess.), which generally limits the trial court’s ability to impose an upper term sentence unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by the trier of fact, took effect in the interim between appellant’s original sentencing and his resentencing following appeal. The Court of Appeal held the resentencing court abused its discretion in reimposing the upper term.
Because all parties and the resentencing court understood that SB 567’s provisions applied and the court expressly considered appellant’s request to impose the middle or lower term rather than the upper term, appellant did not forfeit his objection to the reimposition of the upper term, nor did he forfeit any objection that the court failed to impose a low term sentence.
In reimposing the upper term, the court failed to apply the correct legal standards. First, it stated that because the aggravating factors did not involve Apprendi v. New Jersey (2000) 530 U.S. 466, they did not have to be proven to the trier of fact beyond a reasonable doubt or stipulated to by defendant. However, regardless of Apprendi, the court’s reasoning is contrary to the requirements of SB 567. Second, in light of evidence that appellant suffered from past psychological trauma that may have contributed to the offense, the court did not find that circumstances in aggravation outweighed circumstances in mitigation such that the presumptive low term would be contrary to the interests of justice. Finally, the resentencing court unnecessarily deferred to the original sentencing court’s choices rather than conducting a full resentencing based on the new statutory requirements and the information then before the resentencing court.
The errors were not harmless. First, the aggravating circumstances set forth in the probation report were not found to have been substantiated by adequate proof or stipulation. Second, although the jury did find beyond a reasonable doubt that appellant inflicted great bodily injury and personally used a firearm during the offense, the court could not rely on these factors to impose the upper term on the same count where it also imposed great bodily injury and firearm enhancements. Finally, the record did not establish that the court would have chosen the upper term if it could rely only on appellant’s prior conviction, as the court alluded to multiple aggravating factors but did not state which factor, or combination of factors, compelled it to select the upper term.
The Court of Appeal remanded the matter for resentencing and further ordered the trial court to consider all applicable legislation, including, but not limited to, Senate Bill No. 81 and Assembly Bill No. 518.