Remand for resentencing required under SB 467 after imposition of upper term where case was not final

THE PEOPLE, Plaintiff and Respondent, v. BRANDON RIO SHERMAN, Defendant and Appellant. (Cal. Ct. App., Dec. 15, 2022, No. A162766) 2022 WL 17726696, at *1

Summary: Sherman was convicted of kidnapping, assault by means of force likely to produce great bodily injury, and preventing or dissuading a victim or witness from reporting a crime. The trial court sentenced him to 11 years in prison. On appeal, Sherman argued  (1) there was insufficient evidence to support the conviction for dissuading a victim or witness, and (2) the case must be remanded for resentencing due to a change in the law governing determinate sentencing. The Court of Appeal rejected Sherman’s challenge to the dissuasion conviction, but agreed to remand for resentencing.

In May 2021, the court sentenced Sherman to 11 years in prison. The court imposed the upper term of eight years for the count 1 kidnapping conviction (§ 208, subd. (a)), plus consecutive terms of one year on count 5 (assault) (§ 245, subd. (a)(4)) (one-third the midterm) and two years on count 7 (dissuading a witness) (§§ 18, 136.1, subd. (b), 1170.15) (a full middle term as authorized for certain dissuasion convictions).

Sherman appealed.

The Upper Term Sentence for the Count 1 Kidnapping Conviction

Sherman contends a remand for resentencing is necessary due to the enactment of Senate Bill No. 567, which took effect on January 1, 2022, and amended the standards for imposing an upper-term sentence under section 1170, subdivision (b).

Senate Bill 567 amended section 1170, subdivision (b), to specify that, when a sentencing court chooses a term from a statutory triad, the chosen term shall not exceed the middle term, unless the facts supporting the aggravating circumstances are (1) established by the defendant’s stipulation to them, (2) proven to a jury (or to a court, if jury is waived) beyond a reasonable doubt, or (3) based on prior convictions evidenced by a certified record of conviction.

At the sentencing hearing in May 2021, the court, applying the pre-Senate Bill 567 version of section 1170, subdivision (b), imposed the upper term of eight years for the count 1 kidnapping conviction. In selecting the upper term, the court found six aggravating factors set forth in California Rules of Court, rule 4.421 applied; the court found no mitigating factors. As to aggravating factors, the court first considered factors relating to the crime and found the crime involved a high degree of cruelty; the victim was particularly vulnerable; and the crime involved some planning.

The court found Sherman had engaged in violent conduct that indicates a serious danger to society.

The court noted Sherman had several prior misdemeanor convictions and had prior probation violations on the misdemeanors.

Sherman, whose convictions are not final, is entitled to retroactive application of the ameliorative changes effected by Senate Bill 567. (People v. Jones, supra, 79 Cal.App.5th at p. 45.) Sherman contends the error is prejudicial and requires reversal and remand. The Court of Appeal agreed with Sherman that a remand for resentencing is necessary.

Standard for assessing prejudice

The Courts of Appeal are divided on the applicable standard for assessing prejudice in this situation, and the issue is pending before our Supreme Court.9(People v. Lynch (May 27, 2022, C094174) The primary disagreement is between People v. Flores (2022) 75 Cal.App.5th 495, a decision by Division Three of this court, and People v. Lopez (2022) 78 Cal.App.5th 459, a decision by Division One of the Fourth District Court of Appeal. Flores concluded a remand for resentencing is unnecessary if the reviewing court can determine beyond a reasonable doubt that the jury would have found true at least one aggravating factor,  and Lopez concluded a remand is necessary unless the reviewing court can (1) determine beyond a reasonable doubt that the jury would have found true all the aggravating factors the trial court cited, or (2) conclude, “to the degree required by People v. Watson (1956) 46 Cal.2d 818, 836,” that the trial court would have reached the same decision even if it knew it could not properly rely on all the factors it did.

Dunn described the standard for assessing prejudice as follows: “The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is [no] reasonable probability that the jury would [not] have found any remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless. If not, the reviewing court moves to the second step of Lopez, (2) whether there is a reasonable probability that the trial court would have imposed a sentence other than the upper term in light of the aggravating circumstances provable from the record as determined in the prior steps. If the answer is no, the error was harmless. If the answer is yes, the reviewing court vacates the sentence and remands for resentencing ….” (Dunn, supra, 81 Cal.App.5th at pp. 409–410, fn. omitted.)

Applying this standard here, a remand is required. At least three of the aggravating factors found true by the court—that the crime involved a “high degree of cruelty” (rule 4.421(a)(1)), that Doe was “particularly vulnerable” (rule 4.421(a)(3)), and that Sherman poses a “serious danger to society” (rule 4.421(b)(1))—involve subjective, qualitative determinations. The Court cannot conclude with confidence that the jury would have reached the same conclusions on these points as the trial court did.

Because the Court  cannot conclude with sufficient certainty that some of the aggravating factors on which the trial court relied (that the crime involved a high degree of cruelty, that Doe was particularly vulnerable, and that Sherman poses a serious danger to society) would have been found true if submitted to the jury, the Court proceeded to the second step of the prejudice analysis. (See Dunn, supra, 81 Cal.App.5th at p. 410.) The court appeared to give significant weight to these factors, particularly its conclusion Sherman poses a serious danger to society. In these circumstances, we believe “there is a reasonable probability that the … court would have imposed a sentence other than the upper term” if it had realized it could not rely on these factors. (Ibid.) A remand for resentencing is therefore required.