Opinion
S274232
06-15-2022
PEOPLE v. FLORES (GUSTAVO MEDINA)
A164257 First Appellate District, Div. 3.
The request for an order directing depublication of the opinion in the above-entitled appeal is denied. The court declines to review this matter on its own motion. The matter is now final.
Concurring Statement
Liu, Justice
In Apprendi v. New Jersey(2000) 530 U.S. 466, the high court held that any fact except a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) The sentencing court in this case imposed an upper term sentence for one of defendant Gustavo Medina Flores's offenses based on its own finding of aggravating circumstances. The Court of Appeal held this error harmless under the standard we announced in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval): "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond a reasonable doubt standard, unquestionably would have found true at least a single aggravating circumstance, the Sixth Amendment error properly may be found harmless." (Id. at p. 839.)
Our holding in Sandoval was based on our interpretation of the language of the determinate sentencing law as it existed at the time. At that point, the law instructed in relevant part that when a statute specifies three possible terms of imprisonment, "the court shall order imposition of the middle term, unless there are circumstances in aggravation." (Pen. Code, former § 1170, subd. (b).) Because of that language, we reasoned in People v. Black (2007) 41 Cal.4th 799 (Black) - issued the same day as Sandoval- that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (Black, at p. 813.) On that basis, we held that findings of additional aggravating circumstances by the sentencing court do not increase the penalty for the defendant's offense and therefore do not violate Apprendi. (Black, at p. 813.) Accordingly, we determined in Sandoval that if "a single aggravating circumstance" would unquestionably have been found by the jury, any further finding of aggravating circumstances by the sentencing court is harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) altered the language on which Black and Sandoval relied. The determinate sentencing law now says that a sentence higher than the middle term may be imposed "only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term." (Pen. Code, § 1170, subd. (b)(2), italics added.) As a result of this change, it may no longer be true that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (Black, supra, 41 Cal.4th at p. 813.) Instead, it appears a defendant is subject to an upper term sentence only if the aggravating circumstances are sufficient to "justify the imposition" of that term under all of the circumstances, which may include evidence both in aggravation and in mitigation. (Pen. Code, § 1170, subd. (b)(2); id., subd. (b)(4).)
It is unclear how Apprendi applies to the determinate sentencing law after this recent amendment. That question has prompted a split of authority in the Courts of Appeal. (Compare People v. Flores (2022) 75 Cal.App.5th 495, 500-501 with People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11.) In an appropriate case, I suggest revisiting our decisions in Black and Sandoval in light of the changes to the determinate sentencing law.