SB 567 Upper Term

Name: People v. Keene
Case #: A172821
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 08/03/2026

Court's reliance on aggravating sentencing factors not proven beyond a reasonable doubt was harmless error. Keene pled open but did not stipulate to factors in aggravation per PC 1170(b)(2). The trial court erred in finding certain aggravating factors true and imposing the upper term. However, the court of appeal found beyond a reasonable doubt that no reasonable trier of fact would have found that Keene's 20+ prior convictions were not numerous nor that his 4+ violations of mandatory supervision were satisfactory prior performance on supervised release.

The full opinion is available on the court’s website here:

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Name: People v. Lua
Case #: E084432
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/26/2026
Subsequent History: Review granted 9/16/26 (S297581)

PC 1172.75 (d)(4) creates an exception permitting resentencing courts to reimpose an original upper term without a stipulation or jury finding on aggravating factors under PC 1170(b), even where the court considers additional or different aggravating factors. The Court further held there was no Sixth Amendment violation because appellant's original upper term was imposed under the 2007 version of PC 1170(b), which gave trial courts broad discretion to select any term within the triad and conformed with Apprendi.

[Editor's note: This issue is currently on review in the California Supreme Court in People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review…

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Name: People v. Bustillos
Case #: B337951
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 06/11/2026

SB 567’s changes to PC 1170(b) apply retroactively to sentences imposed pursuant to stipulated plea agreements in nonfinal cases. Defendant pled to a stipulated upper term sentence in 2020, which was suspended, and defendant was placed on probation. Defendant admitted a probation violation in 2024 and was sentenced to the upper term. The reviewing court reversed, applying People v. Mitchell (May 18, 2026, S277314), which held that SB 567 applies retroactively to all sentences imposed to stipulated plea agreements in nonfinal cases. The majority expressed concern that the holding was contrary to moral imperative as the delay in finality was…

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Name: People v. Cardenas
Case #: B341680
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 05/26/2026

The statutory and constitutional right to make a closing argument to the jury applies to a jury finding on aggravating circumstances under PC 1170(b)(2). A trial court must allow a defendant who exercises his right to a jury trial under PC 1170(b)(2) the opportunity to argue to the jury what findings it should make as to alleged aggravating circumstances. The trial court may impose reasonable limitations on argument, but may not eliminate it altogether. Analytically, it appears that the error is not structural error, but the Court of Appeal need not decide that here because even under Chapman, the error…

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Name: People v. Mitchell
Case #: S277314
Court: CA Supreme Court
Opinion Date: 05/18/2026

Defendant who agreed to an upper term sentence pursuant to a plea bargain may invoke the retroactive benefit of SB 567's changes to PC 1170(b) regarding her nonfinal judgment. SB 567 was enacted during defendant's direct appeal from a guilty plea. The appropriate remedy is a remand where the defendant may invoke or waive current PC 1170(b) requirements. Invoking PC 1170(b) entitles defendant to a reduced middle term sentence only with prosecution and court agreement; without agreement, a defendant invoking PC 1170(b) may withdraw her plea and return to pre-plea status quo.

The full opinion is available on the court’s website…

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Name: People v. Bradley
Case #: D083989
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/08/2026

It was not a dual use of facts to use the aggravated circumstance of rape to impose the upper term on a robbery conviction and to also make that conviction consecutive to two convictions of forcible rape. However, the sentences under both the One Strike law and Habitual Sexual Offender law were unauthorized. These laws represent alternative sentencing schemes, not enhancements, and as such, the court may not impose sentences under both, even if one is stayed.

The full opinion is available on the court’s website here:

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Name: People v. Gonzalez
Case #: F084952
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/26/2026

After a bifurcated court trial on aggravated factors, the trial court had authority to impose upper term sentences based on factors related to the defendant. The appellate court rejected appellant’s argument that the court may only rely on factors in aggravation related to the crime. Additionally, the appellate court rejected the argument that interpreting PC 1170(b) as referring to factors listed in Rule 4.421 violated the nondelegation doctrine (citing People v. Wright (1982) 30 Cal.3d 705).

The full opinion is available on the court’s website here:

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Name: People v. Kinnear
Case #: B338040
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 12/10/2025

The trial court erred in failing to advise defendant of his Boykin/Tahl rights on prior convictions and aggravating factors before accepting defendant’s stipulation. Because nothing in the record affirmatively showed that defendant was aware of his rights, under the totality of the circumstances, defendant did not provide a knowing and voluntary waiver. The same requirements for advisement and waiver that apply to a defendant’s stipulation to a prior conviction apply to aggravating factors.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B338040.PDF

The trial court erred in failing to advise defendant of his Boykin/Tahl rights on prior convictions and aggravating factors before accepting defendant’s stipulation. Because nothing in the record affirmatively showed that defendant was aware of his rights, under the totality of the circumstances, defendant did not provide a knowing and voluntary waiver. The same requirements for advisement and waiver that apply to a defendant’s stipulation to a prior conviction apply to aggravating factors.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B338040.PDF

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Name: People v. Wright
Case #: B336249
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 08/20/2025

Although it was error to use “specific intent” in the voluntary intoxication jury instruction in this robbery case, any error was harmless.  The voluntary intoxication instruction given incorrectly identified the mental state that intoxication could negate as “specific intent” when it should have used “intent to deprive the owner of the property permanently,” which is the mental state required in the robbery instruction. Because there was not strong evidence of intoxication, the error was harmless under any standard.

The trial court erred by imposing multiple punishments for convictions of felon in possession of a firearm and illegal possession…

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Name: People v. Fleming – Depublished
Case #: B315836
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/05/2025
Subsequent History: Depublished 10/29/25 (S292640)

Voluntary manslaughter (PC 192(a)) based on conscious disregard for life does not require that the defendant’s act carry a high degree of probability that it will result in death. The court rejected appellant’s position that he was convicted under an implied malice theory as the “concept of malice has nothing to do with voluntary manslaughter.” The holding in People v. Reyes (2023) 14 Cal.5th 981, requiring a “high degree of probability” of death applies only to implied malice murder and therefore is not applicable to appellant's voluntary manslaughter conviction. The court rejected several of appellant’s arguments that relied on the…

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