Supreme Court of California Justia
Docket No. S148917
People v. Sandoval

7/19/07 (This opn. follows companion case, S126182, also filed 7/19/07)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S148917
v.
Ct.App. 2, Div. 4 B187977
AIDA SANDOVAL,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA280950

We granted review to determine whether defendant’s Sixth Amendment
rights as defined in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856]
(Cunningham) were violated by the imposition of an upper term sentence and, if
so, the remedy to which she is entitled. In Cunningham, the United States
Supreme Court disagreed with this court’s decision in People v. Black (2005) 35
Cal.4th 1238 (Black I) and held that California’s determinate sentencing law
(DSL) violates a defendant’s federal constitutional right to a jury trial under the
Sixth and Fourteenth Amendments to the United States Constitution by assigning
to the trial judge, rather than to the jury, the authority to find the facts that render a
defendant eligible for an upper term sentence. We conclude that defendant’s Sixth
Amendment right to a jury trial was violated and, although harmless error analysis
applies to such violations, the error in the present case was not harmless beyond a
reasonable doubt and the case must be remanded for resentencing. For the reasons
1


explained below, we also conclude that upon remand, the trial court may exercise
its discretion to impose any of the three terms available for defendant’s offense.
I.
Defendant was charged with the premeditated murders of Belen Dircio and
Rolando Rojas (Pen. Code, § 187, subd. (a))1 and with the attempted premeditated
murder of Salvador Ramirez (§§ 664 and 187, subd. (a)). The information alleged
that the murders were committed by lying in wait, a special circumstance.
(§ 190.2, subd. (a)(15).) The information also alleged that a principal was armed
with a firearm in the commission of all three offenses. A jury convicted defendant
of the lesser included offenses of two counts of voluntary manslaughter and one
count of attempted voluntary manslaughter. It returned “not true” findings on the
allegations that a principal was armed with a firearm in the commission of each
offense. The trial court sentenced defendant to the upper term of 11 years on
count one (involving the victim Dircio), a consecutive term of two years on count
two (involving the victim Rojas), and a consecutive term of 18 months on count
three (involving the victim Ramirez), for a total sentence of 14 years six months.
On appeal defendant argued, among other points, that the trial court’s
imposition of the upper term sentence on count one violated her federal
constitutional right to a jury trial. The Court of Appeal rejected that claim in an
unpublished decision, relying upon this court’s decision in Black I, supra, 35
Cal.4th 1238. Concluding that the trial court incorrectly calculated the term on
count three, the appellate court modified the judgment to reflect a sentence of one
year on that count, in other respects affirming the judgment. While defendant’s

1
All further statutory references are to the Penal Code unless otherwise
indicated.
2


petition for review was pending in this court, the United States Supreme Court
rendered its decision in Cunningham, supra, __ U.S. __ [127 S.Ct. 856].
II.
Early in the morning of Tuesday, February 4, 2003, defendant Aida
Sandoval and codefendant Yessenia Romero (who is not a party to this appeal)
were employed at the El Dorado bar in Los Angeles and became involved in an
altercation with two other women. Witness Ericka Arellano, who resided nearby,
heard screaming and proceeded to the parking lot adjoining the El Dorado, where
a crowd had formed. There she observed her uncle, Rolando Rojas, attempt to
stop defendant and Romero from fighting with the other women. Defendant was
injured in the fight, suffering bruises and cuts to her face. According to Arellano,
after the altercation ended defendant blamed Rojas and declared she would
summon a gang to kill him.
The next evening, on Wednesday, February 5, 2003, defendant and Romero
drove to the El Dorado bar in a van, accompanied by several individuals, including
Juan Negrete, Miguel Del Rio, and Romero’s friend, Mary Gonzales.
That same evening, the victims Rolando Rojas, Salvador Ramirez, and
Belen Dircio also were at the bar. All three were wearing hats. From the window
of her apartment, Arellano observed defendant and Romero, together with a man,
standing near a pay phone outside the front of the El Dorado. About the same
time, Los Angeles Police Officer Cesar Guitron was on motorcycle patrol near the
El Dorado. Driving past the bar, he noticed defendant and Romero near the front
door with some men, including Rojas. While defendant was speaking with Rojas,
Negrete approached the group, raised a gun, and fired several shots at Rojas,
killing him. Defendant, Romero, and Negrete fled toward the van, which was
parked down the street.
3
When Ramirez and Dircio heard the gunshots outside the bar, they left
through the back door. As the two walked through an alley behind the bar, Del
Rio shot Dircio and then Ramirez with a rifle. Arellano, who had gone to a pay
phone near the El Dorado to call 911, observed this shooting. Dircio died of two
gunshot wounds to the head, and Ramirez was hospitalized and treated for his
injuries. Investigating officers later found a .22-caliber handgun placed atop the
tire of a car parked near the van, and a rifle inside the van.
Defendant and Romero were arrested near the scene of the crime while
attempting to enter a taxi. They were interviewed by investigating officers, and
the ensuing recorded conversations were played to the jury. In their statements
both defendant and Romero admitted that they wanted to have Rojas beaten up.
On Wednesday, they had discussed with a gang member their intention to return to
the bar. That individual and several of his associates volunteered to join them.
Romero told the police that defendant had asked one young man, who was a
relative of defendant’s, to obtain a gun from defendant’s house. Both defendant
and Romero stated they did not intend that firearms be used unless necessary for
defensive purposes; both believed that at least one of the regular patrons of the bar
was armed with a gun. The men initially stayed in the van while defendant,
Romero, and Mary entered the bar. Romero admitted in the interview that after
observing Rojas in the bar, she sent Mary outside to inform the others that Rojas
was the individual who was wearing a hat. Both defendant and Romero told the
police that defendant confronted Rojas concerning his role in the altercation that
had occurred the previous night. As defendant and Romero were speaking to
Rojas in the doorway of the bar, Negrete suddenly appeared with a gun.
Defendant shouted “no” just before Negrete shot Rojas, and the two women ran
off. As they were running, they heard additional gunshots.
4
At the trial, it was stipulated that Negrete and Del Rio had been convicted
of the murders of Rojas and Dircio and the attempted murder of Ramirez.
Defendant did not testify, but Romero testified on her own behalf, providing the
following account of the events. She and defendant were employed at the El
Dorado, where they were paid to speak to customers, dance with them, and
encourage them to buy drinks. According to Romero, the initial altercation on
Tuesday began when a woman pulled defendant out of the bar by her hair. While
that woman was fighting with defendant on the ground, Romero observed Rojas
standing over defendant. Based on his movements and on a wound she
subsequently observed on defendant’s face, Romero believed that Rojas had struck
defendant with a screwdriver. Romero helped defendant to stand up, and Arellano
then joined the fight. When they left, defendant’s face was swollen and blood was
dripping from her neck. The following morning, defendant and Romero decided
to return to the El Dorado to recover money that the owner owed Romero and —
in the event they encountered the women involved in the altercation with
defendant — to fight with them.
Romero testified that as she was attempting to locate the father of her son to
accompany her and defendant, she encountered an individual she knew. When he
was told about the earlier fight and defendant’s and Romero’s plan to return to the
bar, he and several of his associates volunteered to accompany the two women.
Romero did not know all of these individuals, and although she was aware there
were guns in the vehicle, she and defendant made it clear that no one was to use a
gun. According to Romero, she hoped she could recover the money owed to her
and leave the El Dorado without any trouble, but if she and defendant encountered
the women involved in the previous altercation the two of them were prepared to
fight the others. Romero also denied that defendant ever had mentioned anything
about “jumping” Rojas.
5
Romero further testified that when she and defendant arrived at the El
Dorado, the owner declined to pay them the money owed to her and defendant,
and attempted to persuade them to remain at the bar and work. She denied telling
Mary to inform the others that Rojas was the man wearing a hat; instead she
simply identified Rojas to Mary. Subsequently, defendant and Rojas spoke
outside the front door of the El Dorado while Romero stood nearby. Negrete then
approached Rojas and told him not to move. When Rojas reached for his pocket,
Negrete shot him. Romero denied that she or defendant intended or expected that
anyone would be killed.
As noted above, at the conclusion of the trial the jury rejected the
prosecution’s theory that defendant was guilty of first degree murder and
attempted murder, and convicted defendant of two counts of voluntary
manslaughter and one count of attempted voluntary manslaughter. As is relevant
to the sentencing issue raised in this case, on the count of voluntary manslaughter
involving the victim Dircio, the trial court imposed an upper term of 11 years.
III.
In Cunningham, the United States Supreme Court, applying principles
established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466,
490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely),
concluded that California’s DSL does not comply with a defendant’s right to a
jury trial. “[U]nder the Sixth Amendment, any fact that exposes a defendant to a
greater potential sentence must be found by a jury, not a judge, and established
beyond a reasonable doubt, not merely by a preponderance of the evidence.”
(Cunningham, supra, ___ U.S. at pp. ___ [127 S.Ct. at pp. 863-864].) In its prior
decision in Apprendi, the high court held unconstitutional a law that provided for
an enhanced sentence, above the maximum term specified by statute for the
underlying offense, where the sentencing judge determined that the offense was a
6
hate crime. Apprendi stated, “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi,
supra, 530 U.S. at p. 490, italics added.)
In Blakely, the high court extended the rule established in Apprendi to the
State of Washington’s determinate sentencing law, under which a sentence within
the “ ‘standard range’ ” must be imposed unless the trial court finds aggravating
factors that justify an “ ‘exceptional sentence.’ ” (Blakely, supra, 542 U.S. at p.
299.) Although an exceptional sentence, under Washington law, still was within
the maximum term specified by statute for the offense, the high court concluded
that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” (Id. at p. 303.) Because Washington law permitted
imposition of an exceptional term only if an aggravating factor had been found,
the high court held in Blakely that the top of the standard range was the
“ ‘statutory maximum’ ” sentence that could be imposed in the absence of a jury
finding of an aggravating factor. (Id. at pp. 303-304.)
Under California’s DSL, three terms of imprisonment are specified by
statute for most offenses. At the time of defendant’s offense, the DSL specified
that “the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.” (§ 1170, subd. (b).)2
The facts relevant to this sentencing choice are to be determined by the court and

2
In response to Cunningham, the California Legislature recently amended
the DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3.)
Unless otherwise noted, our references to section 1170 are to the statute as it read
prior to those amendments.
7


need be proved only by a preponderance of the evidence. (§ 1170, subd. (b); Cal.
Rules of Court, rule 4.420(b).)3 “The court shall set forth on the record the facts
and reasons for imposing the upper or lower term.” (§ 1170, subd. (b).) As
summarized in Cunningham, supra, ___ U.S. at p. ___ [127 S.Ct. at page 862],
“California’s DSL, and the rules governing its application, direct the sentencing
court to start with the middle term, and to move from that term only when the
court itself finds and places on the record facts — whether related to the offense or
the offender — beyond the elements of the charged offense.” The high court
concluded in Cunningham that for Sixth Amendment purposes, the middle term
under the DSL is the maximum term that may be imposed on the basis of the
jury’s verdict alone. (Id. at p. ___ [127 S.Ct. at p. 868].)
The United States Supreme Court has recognized two exceptions to a
defendant’s Sixth Amendment right to a jury trial on an aggravating fact that
renders him or her eligible for a sentence above the statutory maximum. First, a
fact admitted by the defendant may be used to increase his or her sentence beyond
the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at
p. 303.) Second, the right to jury trial and the requirement of proof beyond a
reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at
p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United
States (1998) 523 U.S. 224, 239-244.)
In the present case, we address the question whether the trial court’s
imposition of the upper term sentence violated defendant’s Sixth Amendment

3
In response to the Legislature’s amendment of the DSL, the Judicial
Council amended the sentencing rules effective May 23, 2007. Unless otherwise
noted, all references to the California Rules of Court are to the rules as they read
prior to those amendments.
8


rights as established in Cunningham.4 The trial court gave the following reasons
for its decision to impose an upper term: “It is a crime involving a great amount
of violence. This was also incredibly callous behavior. Miss Sandoval had no
concern about the consequences of her action. The victims were particularly
vulnerable in that they were unarmed, each of them, and as to the Dircio brothers,
that they were taken by surprise by ambush from behind. They were inebriated,
unable to defend themselves. Clearly Miss Sandoval also was the motivating

4
The Attorney General contends that defendant forfeited her Sixth
Amendment claim because she failed in the trial court to object to the sentencing
proceedings. In People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ (Black
II
) we hold that in a case in which the trial and sentencing occurred prior to the
high court’s decision in Blakely, the defendant’s Sixth Amendment claim is not
forfeited on appeal even though he or she did not raise an objection in the trial
court. (Black II, supra, ___ Cal.4th at p. ___ [at pp. 8-11].) That conclusion is
based upon the rule that, although challenges to evidence or procedures normally
are forfeited unless timely raised in the trial court, the decision in Blakely changed
the law “so unforeseeably that it is unreasonable to expect trial counsel to have
anticipated the change.” (People v. Turner (1990) 50 Cal.3d 668, 703.)

The present case, however, is in a different posture. Here, the trial and the
sentencing proceedings took place after the high court’s decision in Blakely and
after this court’s decision in Black I. The Attorney General contends counsel in
many other cases understood, even after Black I and before the high court granted
certiorari in Cunningham, that the constitutionality of California’s DSL remained
an unsettled question and, accordingly, those counsel raised this issue in the trial
court.

Nonetheless, we agree with the Court of Appeal’s conclusion that the claim
was not forfeited. An objection in the trial court is not required if it would have
been futile. (See People v. Welch (1993) 5 Cal.4th 228, 237-238.) As the
Attorney General concedes, our decision in Black I was binding on the lower
courts until it was overruled by the high court. (Auto Equity Sales, Inc. v. Superior
Court
(1962) 57 Cal.2d 450, 455.) Had defendant requested a jury trial on
aggravating circumstances, that request clearly would have been futile, because
the trial court would have been required to follow our decision in Black I and deny
the request.
9


force behind these actions. Her actions showed planning, premeditation . . .
specifically how the bar was approached, where the car was parked.”
None of the aggravating circumstances cited by the trial court come within
the exceptions set forth in Blakely. Defendant had no prior criminal convictions.
All of the aggravating circumstances cited by the trial court were based upon the
facts underlying the crime; none were admitted by defendant or established by the
jury’s verdict. We conclude, accordingly, that defendant’s Sixth Amendment
rights were violated by the imposition of an upper term sentence.
IV.
The denial of the right to a jury trial on aggravating circumstances is
reviewed under the harmless error standard set forth in Chapman v. California
(1967) 386 U.S. 18 (Chapman), as applied in Neder v. United States (1999) 527
U.S. 1. In Neder, the United States Supreme Court held an erroneous jury
instruction that omits an element of the offense is subject to harmless error
analysis. (Id. at pp. 8-15.) The court stated that such an omission “does not
necessarily render a criminal trial fundamentally unfair or . . . unreliable.” (Id. at
p. 9.) Such an error is reviewed to determine whether it appears “beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” (Chapman, supra, 386 U.S. at p. 24; Neder, supra, 527 U.S. at p. 15.)
The reviewing court must “ask[] whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted element.” (Neder,
supra, 527 U.S. at p. 19.) In Neder, the court concluded that the trial court’s
failure to submit to the jury an element of the offense was harmless, because the
evidence supporting the element was “uncontested.” (Id. at p. 17.)
In Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546], the high
court held that a similar harmless error analysis applies to the failure to submit a
sentencing factor to a jury, finding no distinction, for purposes of harmless error
10
analysis of Sixth Amendment violations, between a sentencing factor that must be
submitted to a jury and an element of a crime.
In the context of the present case, the question is not whether the error
“contribute[d] to the verdict obtained” (Chapman, supra, 386 U.S. at p. 24),
because the jury’s verdict on the charged offense is not at issue. Rather, we must
determine whether, if the question of the existence of an aggravating circumstance
or circumstances had been submitted to the jury, the jury’s verdict would have
authorized the upper term sentence. In Black II, supra, ___ Cal.4th ___, we hold
that there is no Sixth Amendment error in a case in which one or more aggravating
circumstances have been established in accordance with Sixth Amendment
requirements. As we explain in Black II, “the constitutional requirement of a jury
trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally
essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any
fact that exposes a defendant to a greater potential sentence’ than is authorized by
the jury’s verdict alone (Cunningham, supra, ___ U.S. at p. ___ [127 S.Ct. at p.
863]).” (Black II, supra, ___ Cal.4th at p. ___ [at p. 11]; see Rita v. United States
(June 21, 2007, No. 06-5754) ___ U.S. ___ [2007 WL 1772146, at p.* 10].)
“Accordingly, so long as a defendant is eligible for the upper term by virtue of
facts that have been established consistently with Sixth Amendment principles, the
federal Constitution permits the trial court to rely upon any number of aggravating
circumstances in exercising its discretion to select the appropriate term by
balancing aggravating and mitigating circumstances, regardless of whether the
facts underlying those circumstances have been found to be true by a jury.” (Id. at
p. ___ [at p. 12].) By the same reasoning, if 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
11
circumstance had it been submitted to the jury, the Sixth Amendment error
properly may be found harmless.
In applying harmless error analysis in this context, we must take into
account the differences between the nature of the errors at issue in the present case
and in a case in which the trial court fails to instruct the jury on an element of the
crime but where the parties were aware during trial that the element was at issue.
In a case such as the present one, the reviewing court cannot necessarily assume
that the record reflects all of the evidence that would have been presented had
aggravating circumstances been submitted to the jury. Although the aggravating
circumstances found by the trial court were based upon the evidence presented at
trial, they were not part of the charge and were not directly at issue in the trial.
Aggravating circumstances are based upon facts that are not elements of the crime.
(Cal. Rules of Court, rule 4.420(d).) Defendant thus did not necessarily have
reason — or the opportunity — during trial to challenge the evidence supporting
these aggravating circumstances unless such a challenge also would have tended
to undermine proof of an element of an alleged offense.
Furthermore, although defendant did have an incentive and opportunity at
the sentencing hearing to contest any aggravating circumstances mentioned in the
probation report or in the prosecutor’s statement in aggravation, that incentive and
opportunity were not necessarily the same as they would have been had the
aggravating circumstances been tried to a jury. First, the standard of proof at the
sentencing hearing was lower; the trial court was required to make a finding of one
or more aggravating circumstances only by a preponderance of the evidence. (Cal.
Rules of Court, rule 4.420(b).) Second, because the trial court had broad
discretion in imposing sentence, a finding by the court concerning whether or not
any particular aggravating circumstance existed reasonably might have been
viewed by defense counsel as less significant than the court’s overall assessment
12
of defendant’s history and conduct. Counsel’s strategy might have been different
had the aggravating circumstances been tried under a beyond-a-reasonable-doubt
standard of proof to a trier of fact that was responsible only for determining
whether such circumstances were proved (and not for making the ultimate
sentencing decision). Accordingly, a reviewing court cannot always be confident
that the factual record would have been the same had aggravating circumstances
been charged and tried to the jury.
Additionally, to the extent a potential aggravating circumstance at issue in a
particular case rests on a somewhat vague or subjective standard, it may be
difficult for a reviewing court to conclude with confidence that, had the issue been
submitted to the jury, the jury would have assessed the facts in the same manner as
did the trial court. The sentencing rules that set forth aggravating circumstances
were not drafted with a jury in mind. Rather, they were intended to “provid[e]
criteria for the consideration of the trial judge.” (§ 1170.3, subd. (a).) It has been
recognized that, because the rules provide criteria intended to be applied to a broad
spectrum of offenses, they are “framed more broadly than” criminal statutes and
necessarily “partake of a certain amount of vagueness which would be
impermissible if those standards were attempting to define specific criminal
offenses.” (People v. Thomas (1979) 87 Cal.App.3d 1014, 1023, 1024.) Many of
the aggravating circumstances described in the rules require an imprecise
quantitative or comparative evaluation of the facts. For example, aggravating
circumstances set forth in the sentencing rules call for a determination as to
whether “[t]he victim was “particularly vulnerable,” whether the crime “involved
. . . a taking or damage of great monetary value,” or whether the “quantity of
contraband” involved was “large” (Cal. Rules of Court, rule 4.421(a)(3), (9) &
(10), italics added). In addition, the trial court may consider aggravating
circumstances not set forth in rules or statutes. Such aggravating circumstances
13
need only be “reasonably related to the decision being made.” (Id., rule 4.408(a).)
Aggravating circumstances considered by the trial court that are not set out in the
rules are not subject to clear standards, and often entail a subjective assessment of
the circumstances rather than a straightforward finding of facts.
With these considerations in mind, we address the Attorney General’s
contention that we should conclude, beyond a reasonable doubt, that each of the
aggravating circumstances cited by the trial court in imposing the upper term
sentence in the present case would have been found true by the jury beyond a
reasonable doubt because each was supported by “largely uncontested or
overwhelming evidence.” As noted earlier, the trial court cited the following
circumstances as aggravating factors: (1) the crime involved a great amount of
violence; (2) defendant engaged in callous behavior; (3) defendant lacked any
concern regarding the consequences of her actions; (4) the victims were
particularly vulnerable because they were unarmed, inebriated, and ambushed
from behind; (5) defendant was the “motivating force” behind the crimes; and (6)
defendant’s actions reflected planning and premeditation.
The trial court’s conclusions regarding items (2), (3), and (6) — that
defendant was “callous,” that defendant had no concern regarding the
consequences of her actions, and that the offense involved “planning and
premeditation” — entail findings relating to defendant’s state of mind. Although
the basic facts underlying the killings were not in dispute, defendant’s state of
mind was hotly contested at trial. The prosecution attempted to establish that
defendant recruited several individuals, including Negrete and Del Rio, with the
premeditated intent of ambushing and killing victim Rojas. One prosecution
witness who observed the initial fight at the bar testified that defendant threatened
to return and kill Rojas. The prosecution’s alternative theory was that even if
defendant recruited these individuals only to assault Rojas, the use of guns in that
14
situation was a natural and probable consequence of the planned assault, making
her liable for first degree murder.
Codefendant Romero testified, on the other hand, that she and defendant
returned to the bar to collect money owed to them, that defendant intended to fight
with two women who had been involved in the previous altercation, but that
Romero and defendant did not intend to attack Rojas unless it became necessary as
a matter of self-defense. Romero also testified she believed some of the patrons at
the bar were armed. According to Romero, both she and defendant were aware
there were guns in the van but defendant made it clear to the others she did not
want the guns to be used. The intent behind defendant’s actions, including
whether she intended that guns be used or appreciated the possibility they might
be used, clearly was a matter in dispute.
Evidently, the jury rejected the prosecution’s view of the evidence, finding
defendant guilty with reference to the count in question only of the lesser included
offense of voluntary manslaughter. In view of the verdict and the state of the
evidence, we cannot conclude with any degree of confidence, much less beyond a
reasonable doubt, that the jury would have found that defendant demonstrated
callous behavior and a lack of concern for the consequences of her actions, or that
the offense was planned and premeditated.
In imposing the upper term sentence, the trial court also concluded the
victims were particularly vulnerable in that they were unarmed and taken by
surprise. The record, however, does not reflect such a clear-cut instance of victim
vulnerability that we confidently can conclude the jury would have made the same
findings, as might be the case if, for example, the victims had been elderly, very
young, or disabled, or otherwise obviously and indisputably vulnerable. The
evidence was contested as to whether defendant — who had been injured two days
earlier at the bar — planned to take the victims by surprise, or instead had brought
15
Negrete and Del Rio along for the purpose of self-defense and herself was
surprised when they initiated an attack. In addition, both defendant and Romero
told the officers, during their interviews, that they believed some of the patrons at
the bar were armed, and Romero testified to that effect at trial. Accordingly, the
evidence that the victims were particularly vulnerable cannot be characterized as
overwhelming or uncontested.
The trial court’s findings that the offense involved a great amount of
violence and that defendant was the “motivating force” behind the crime present
closer questions. Nevertheless, the record does not support the conclusion, beyond
a reasonable doubt, that the jury would have found these aggravating
circumstances to be true had the issues been submitted to that body.
There is no doubt the crimes here at issue involved great violence. The
immediate facts of the shooting themselves were not in dispute. The jury learned
that the shooters, Negrete and Del Rio, had been convicted of first degree murder
and attempted murder for these crimes. Victim Rojas died after being shot once in
the head as he spoke with defendant and four more times after he fell. Victim
Dircio died after suffering three gunshot wounds, one in the back and two more to
the head, one at close range. Victim Ramirez was shot once and was hospitalized
for two weeks.
We may assume the court intended to refer to the following aggravating
circumstance described in California Rules of Court, rule 4.421(a)(1): “The crime
involved great violence, great bodily harm, threat of great bodily harm, or other
acts disclosing a high degree of cruelty, viciousness, or callousness.” This
assumption is based upon the language employed by the court, as well as the
circumstance that this aggravating circumstance was listed in the probation report
16
as one of two that were applicable to defendant’s case.5 Had this circumstance
been submitted to the jury, it would have been instructed to determine whether
“[t]he crime involved great violence . . . or other acts disclosing a high degree of
cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).) The jury reasonably
could have concluded that this factor did not apply to defendant because, although
the crime involved great violence on the part of others, that violence did not
evidence a “high degree of cruelty, viciousness, or callousness” (ibid.) on
defendant’s part. Defendant’s level of personal culpability for the violent acts of
Negrete and Del Rio was, as discussed above, an issue disputed at trial. That the
jury found defendant guilty only of manslaughter, rather than murder,
demonstrates that the jury found her to be less culpable than the shooters. We are
not convinced, beyond a reasonable doubt, that had the jury been instructed on this
point it would have found this aggravating circumstance to be true.
As to the trial court’s finding that defendant was the “motivating force”
behind the crimes, “motivating force” is not a factor listed in the sentencing rules
and it is not clear how this aggravating circumstance would have been defined for
the jury had it been submitted to them. There was ample evidence that defendant
set in motion a chain of events that culminated in the shootings, but the issue of
the motivations of the actual killers was not fully litigated at trial. In view of these
uncertainties, it is impossible for this court to conclude beyond a reasonable doubt
that the jury would have found defendant to be the motivating force behind the
shootings.

5
The second circumstance listed in the probation report was that the crime
involved multiple victims, a circumstance that has been deleted from the rule to
avoid the suggestion that the existence of “multiple victims” is an appropriate
aggravating circumstance in cases, such as this one, in which each count involves
a single victim. (See Advisory Com. com., Cal. Rules of Court, rule 4.421.)
17


We do not find the Sixth Amendment error in this case to be harmless.
Accordingly, the imposition of the upper term sentence on count one must be
reversed and the case remanded to the trial court for resentencing in a manner
consistent with the Sixth Amendment as interpreted in Cunningham.
V.
A.
The remaining question is how the resentencing of defendant should
proceed on remand. Defendant contends the trial court’s options should be limited
to imposition of the middle or lower term, because the DSL does not authorize a
jury trial on aggravating factors.
The Attorney General has urged this court to reform section 1170 to afford
the trial court “broad discretion” in selecting among the three terms specified by
statute for the offense, subject to the requirements that the court consider the
aggravating and mitigating circumstances as set out in statutes and rules and that
reasons be stated for the choice of sentence. Under the Attorney General’s
proposed reformation, an upper term sentence would be authorized by the jury’s
verdict without any requirement of additional factfinding by the judge.
This reformation of the DSL would cure the constitutional defect in the
statute, because the United States Supreme Court repeatedly has made clear in the
line of decisions culminating in Cunningham that it “ha[s] never doubted the
authority of a judge to exercise broad discretion in imposing a sentence within a
statutory range. [Citations.] . . . For when a trial judge exercises his discretion to
select a specific sentence within a defined range, the defendant has no right to a
jury determination of the facts that the judge deems relevant.” (United States v.
Booker (2005) 543 U.S. 220, 233; see Cunningham, supra, ___ U.S. at p. ___ [127
S.Ct at p. 871] [noting that California has the option of complying with Sixth
Amendment requirements by allowing sentencing courts “ ‘to exercise broad
18
discretion . . . within a statutory range’ ”].)6 The Attorney General contends that
this reformed version of the DSL may be applied to all future sentencing hearings,
including those conducted on remand in any case in which error under the holding
of Cunningham has been found to be prejudicial.
Our decisions in Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607,
626-662 (Kopp), and People v. Roder (1983) 33 Cal.3d 491, 499-502 (Roder),
make clear that we have the authority to revise the DSL in a manner that avoids
constitutional problems, if we conclude that the Legislature’s intent clearly would
be furthered by application of the revised version rather than by the alternative of
invalidation.7

6
The Attorney General urges that the following changes would render the
DSL constitutional:

(1) The language in section 1170, subdivision (b), providing that when a
statute specifies three possible terms, “the court shall order imposition of the
middle term, unless there are circumstances in aggravation or mitigation of the
crime,” should be changed to “the trial court has discretion to impose any of the
three terms.”

(2) In the portion of section 1170, subdivision (b) that specifies the
material the judge is to consider, the phrase, “In determining whether there are
circumstances that justify imposition of the upper or lower term . . . .” should be
replaced with “In determining the appropriate term . . . .”

(3) The requirement in section 1170, subdivision (b) that the trial court “set
forth on the record the facts and reasons for imposing the upper or lower term,”
should be revised to require that the court “set forth on the record the reasons for
imposing the term selected.”

(4) Section 1170.3, subdivision (a)(2), which authorizes the Judicial
Council to adopt rules providing criteria relating to the judge’s decision to
“[i]mpose the lower or upper prison term” should be revised to refer to the
decision to “impose the lower, middle, or upper term.”
7
In Roder, we held that section 496 created an unconstitutional presumption
that relieved the prosecution of its burden of proving every element of the offense
beyond a reasonable doubt. (Roder, supra, 33 Cal.3d at p. 504.) We accepted the
Attorney General’s argument that, for the purposes of future prosecutions, section
496 should be interpreted to create only a permissive inference rather than a
(footnote continued on next page)
19


In the present case, however, it is unnecessary for us to decide whether the
statute should be judicially reformed to render it constitutional because, while this
case was pending, the California Legislature amended the DSL in substantially the
same manner proposed by the Attorney General. (Stats. 2007, ch. 3.)
Accordingly, we need determine only what type of resentencing proceedings must
be conducted in those cases, like the present case, in which a Sixth Amendment
error requires reversal of an upper term sentence and a remand for resentencing.
It is unclear whether the Legislature intended the recent amendments of the
DSL to apply to resentencing hearings in cases like the present one. Criminal
statutes presumptively apply only prospectively. (See Tapia v. Superior Court
(1991) 53 Cal.3d 282, 287; § 3 [“No part of [the Penal Code] is retroactive, unless
expressly so declared.]”) The bill that amended the DSL does not contain any
language regarding retroactivity. (Stats. 2007, ch. 3, enacting Sen. Bill No. 40

(footnote continued from previous page)
mandatory presumption. (Roder, at pp. 505-506.) Although we recognized that
this interpretation “require[d] some creative statutory construction,” we concluded
that “it appears more in keeping with the overall legislative intent for courts to
pare down existing statutory presumptions to constitutionally permissible limits,
rather than to abrogate them altogether.” (Ibid.)

As we subsequently explained in Kopp, “a reviewing court may, in
appropriate circumstances, and consistently with the separation of powers
doctrine, reform a statute to conform it to constitutional requirements in lieu of
simply declaring it unconstitutional and unenforceable.” (Kopp, supra, 11 Cal.4th
at p. 615.) In Kopp, reviewing prior cases in which such power had been
exercised, we rejected any distinction between cases in which the court “simply
placed a saving ‘construction’ on the statutory language, thereby constricting the
reach of the statute,” and a case in which the court found it necessary “to
disregard language and to substitute reformed language.” (Id. at p. 646.) This
“distinction . . . suggests a difference of degree, not kind. . . . In practical effect, in
all of these cases, we ‘rewrote’ each statute in order to preserve its
constitutionality.” (Ibid., fn. omitted.)
20


(2007-2008 Reg. Sess.).) A change in substantive criminal law is retroactive if
applied to cases in which the crime occurred before its enactment, but a change in
procedural law is not retroactive when applied to proceedings that take place after
its enactment. (Tapia v. Superior Court, supra, 53 Cal.3d 282 at p. 289 [“a law
governing the conduct of trials is being applied ‘prospectively’ when it is applied
to a trial occurring after the law’s effective date, regardless of when the underlying
crime was committed”].) It is arguable that the amendments to the DSL should be
viewed as coming within the latter category and that they are, therefore, applicable
to any sentencing proceedings conducted after the effective date of those
amendments.
We need not decide that issue, however, because even if we assume that the
recently enacted legislation does not, by its own terms, apply to cases that are
remanded for resentencing, this court would have the responsibility and authority
to fashion a constitutional procedure for resentencing in cases in which
Cunningham requires a reversal of an upper term sentence. For the reasons
explained below, we conclude that it is appropriate for resentencing in such cases
to proceed under the procedure proposed by the Attorney General and adopted
independently by the Legislature. (See, e.g., In re Hawthorne (2005) 35 Cal.4th
40 [establishing postconviction procedures to implement constitutional prohibition
of execution of mentally retarded persons]; People v. Calderon (1994) 9 Cal.4th
69 [permitting bifurcation of trial of enhancement allegations from trial of
underlying crime in order to preserve defendant’s right to a fair trial, even though
no statute authorized such a procedure].)
If we assume that the new legislation does not apply directly to cases
pending on appeal that are remanded for resentencing, our task in deciding the
appropriate sentencing procedure to be applied by a trial court on remand is
somewhat analogous to what we faced in In re Hawthorne, supra, 35 Cal.4th 40.
21
There, the Legislature enacted a statute intended to implement the United States
Supreme Court’s decision in Atkins v. Virginia (2002) 536 U.S. 304, which held
that the federal Constitution prohibits execution of the mentally retarded. (See In
re Hawthorne, supra, 35 Cal.4th at p. 44.) The legislation, however, did not
provide for cases in which the death penalty already had been imposed. (In re
Hawthorne, supra, 35 Cal.4th at p. 45.) In such a situation, “[t]he task thus falls to
this court to formulate appropriate procedures for resolving postconviction
claims.” (Ibid.)
In Hawthorne, we adopted procedures for postconviction claims that
tracked the statute “as closely as logic and practicality permit,” in order “to
maintain consistency with our own [state’s] legislation . . . and to avoid due
process and equal protection implications.” (In re Hawthorne, supra, 35 Cal. 4th
at p. 47.) Likewise, in the present case, we direct that sentencing proceedings to
be held in cases that are remanded because the sentence imposed was determined
to be erroneous under Cunningham, supra, ___ U.S. ___ [127 S.Ct. 856], are to be
conducted in a manner consistent with the amendments to the DSL adopted by the
Legislature.
The Judicial Council already has amended the sentencing rules to conform
to the current version of the DSL,8 and these same rules will provide guidance for
trial courts in proceedings conducted on remand. (See former § 1170.3, as
amended by Stats. 2004, ch. 747, § 1; and see § 1170.3, as amended by Stats.
2007, ch. 3, § 4; see former Cal. Rules of Ct., rule 4.409; and see rule 4.409, as
amended May 23, 2007.) The trial court will be required to specify reasons for its

8
See California Rules of Court, rules 4.405 through 4.452, as amended May
23, 2007.
22


sentencing decision, but will not be required to cite “facts” that support its
decision or to weigh aggravating and mitigating circumstances. (See § 1170,
subd. (c), as amended by Stats. 2007, ch. 3, § 2; § 1170.3 as amended by Stats.
2007, ch. 3, § 4; compare former Cal. Rules of Court, rule 4.420 with rule 4.420 as
amended May 23, 2007.)
Under the former scheme, the trial court was required to state reasons for
imposing the upper or lower term, but not the middle term. (Cal. Rules of Court,
rule 4.406(b)(4).) Under the amended scheme, a statement of reasons is required
even if the middle term is imposed. (See § 1170, subd. (b), as amended by Stats.
2007, ch. 3, § 2.) The reasons, however, no longer must “include a concise
statement of the ultimate facts which the trial court deemed to constitute
circumstances in aggravation or mitigation.” (Cal. Rules of Court, rule 4.420(e) as
amended May 23, 2007, italics added; compare § 1170, subd. (b), as amended by
Stats. 2007, ch. 3, § 2 [“[t]he court shall set forth on the record the reasons for
imposing the term selected”] with former § 1170, subd. (b), as amended by Stats.
2004, ch. 747, § 1 [“[t]he court shall set forth on the record the facts and reasons
for imposing the upper or lower term”].)9
Even with the broad discretion afforded a trial court under the amended
sentencing scheme, its sentencing decision will be subject to review for abuse of
discretion. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-
977 [trial court’s decision whether to reduce a “wobbler” offense to a
misdemeanor under § 17, subd. (b) is reviewable for abuse of discretion]; People
v. Russel (1968) 69 Cal.2d 187, 195 [“all exercises of legal discretion must be

9
A requirement that reasons be stated to support a sentencing decision
facilitates appellate review and “imposes an intellectual discipline that may lead to
better reasoned decisions.” (People v. Martin (1986) 42 Cal.3d 437, 450.)
23


grounded in reasoned judgment and guided by legal principles and policies
appropriate to the particular matter at issue”].) The trial court’s sentencing
discretion must be exercised in a manner that is not arbitrary and capricious, that is
consistent with the letter and spirit of the law, and that is based upon an
“individualized consideration of the offense, the offender, and the public interest.”
(Alvarez, supra, 14 Cal.4th at p. 978.) As under the former scheme, a trial court
will abuse its discretion under the amended scheme if it relies upon circumstances
that are not relevant to the decision or that otherwise constitute an improper basis
for decision. (See, e.g., People v. Colds (1981) 125 Cal.App.3d 860, 863 [it is
improper to consider a waiver of jury trial in mitigation, or an exercise of the right
to jury trial as aggravation]; People v. Johnson (1988) 205 Cal.App.3d 755, 758
[“defendant’s alienage is not a proper factor when considering the length of his
term”].) A failure to exercise discretion also may constitute an abuse of
discretion. (See, e.g., People v. Crandell (1988) 46 Cal.3d 833, 861; People v.
Benn (1972) 7 Cal.3d 530, 535.)
Resentencing under such a discretionary scheme is preferable to the
alternative of maintaining the requirement that the middle term be imposed in the
absence of aggravating or mitigating factors but permitting a jury trial on
aggravating circumstances. Although such a process would comply with the
constitutional requirements of Cunningham, engrafting a jury trial onto the
sentencing process established in the former DSL would significantly complicate
and distort the sentencing scheme. Neither the DSL nor the Judicial Council’s
sentencing rules were drafted in contemplation of a jury trial on aggravating
circumstances. It is unclear how prosecutors might determine which aggravating
circumstances should be charged and tried to a jury, because no comprehensive
list of aggravating circumstances exists. Under the DSL, a trial court is free to
base an upper term sentence upon any aggravating circumstance that the court
24
deems significant, subject to specific prohibitions. (See, e.g., Cal. Rules of Court,
rule 4.420(c) [fact underlying an enhancement may not be used to impose the
upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact that is
an element of the crime may not be used to impose the upper term].) The court’s
discretion to identify aggravating circumstances is otherwise limited only by the
requirement that they be “reasonably related to the decision being made.” (Cal.
Rules of Court, rule 4.408(a).)10
The Legislature authorized the trial court — not the prosecutor — to make
the determination “whether there are circumstances that justify imposition of the
upper or lower term,” and to do so by considering the record of the trial, the
probation officer’s report, and statements submitted by the defendant, the
prosecutor, and the victim or victim’s family. (§ 1170, subd. (b).) If the
prosecutor were to decide which circumstances of the offense justify an upper
term and thereby charge defendant accordingly, the prosecutor would be
exercising a form of discretion that the Legislature intended to be exercised by the
court. To avoid that problem, a prosecutor might be limited to charging
aggravating factors specified in rules or statutes, but that approach would distort
the process in a different way — the scope of potentially aggravating
circumstances would be severely limited.
Moreover, as noted above (ante, pp. 12-13), the aggravating circumstances
listed in the rules were drafted for the purpose of guiding judicial discretion and
not for the purpose of requiring factual findings by a jury beyond a reasonable

10
The Advisory Committee Comment to California Rules of Court, rule 4.408
notes: “The variety of circumstances presented in felony cases is so great that no
listing of criteria could claim to be all-inclusive. [Citation.] [¶] The relative
significance of various criteria will vary from case to case. This, like the question
of applicability of various criteria, will be decided by the sentencing judge.”
25


doubt. Many of those circumstances are not readily adaptable to the latter
purpose, because they include imprecise terms that implicitly require comparison
of the particular crime at issue to other violations of the same statute, a task a jury
is not well-suited to perform. For example, without some basis for comparing the
instant offense to others, it would be difficult for a jury to determine whether
“[t]he victim was particularly vulnerable,” or whether the crime “involved . . .
taking or damage of great monetary value” or “a large quantity of contraband.”
(Cal. Rules of Court, rule 4.421(a)(3), (9) & (10), italics added.) Some
aggravating factors may not be identifiable until after the trial, such as whether the
defendant “unlawfully prevented or dissuaded witnesses from testifying . . . or in
any other way illegally interfered with the judicial process.” (Cal. Rules of Court,
rule 4.421(a)(6).) In that situation, such circumstances would have to be tried
separately, after the jury returns its verdict on the charged offenses.
The Legislature’s action in amending the DSL makes it unnecessary for us
to decide whether to take the “comparatively drastic alternative” of judicially
reforming the statute with regard to its application for all future cases. (Arp v.
Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 395, 407.) To the extent, however,
that our holding might be characterized as a limited reformation of the statute with
regard to its application in resentencing proceedings, such a reformation is
appropriate. When considering whether a statute should be judicially reformed to
preserve its constitutionality, “[t]he guiding principle is consistency with the
Legislature’s intent.” (Kopp, supra, 11 Cal.4th at p. 615.) The power to rewrite a
statute to “remedy a constitutional defect” should be exercised “only when the
result achieved by such a course is more consistent with legislative intent than
[the] result that would attend outright invalidation. [Citations.]” (Arp, supra, at
pp. 407-408.) “[A] court may reform a statute . . . if it can conclude with
confidence that (i) it is possible to [do so] in a manner that closely effectuates
26
policy judgments clearly articulated by the enacting body, and (ii) the enacting
body would have preferred such a reformed version of the statute to invalidation
of the statute.” (Kopp, supra, 11 Cal.4th at p. 615.) Applying this test in Kopp,
we declined to reform statutes that regulated individual contributions to political
candidates, because “it would be impossible to determine with confidence that the
electorate would have preferred the reformation proposed . . . over invalidation.”
(Id. at p. 670)
With respect to the first portion of the test set out in Kopp, we believe that
the Attorney General’s proposed procedure would “closely effectuate[] policy
judgments” articulated in the DSL. (Kopp, supra, 11 Cal.4th at p. 615.) When it
adopted the DSL, the Legislature explicitly found that its goal of punishment “is
best served by terms proportionate to the seriousness of the offense with provision
for uniformity in the sentences of offenders committing the same offense under
similar circumstances. . . . [T]he elimination of disparity and the provision of
uniformity of sentences can best be achieved by determinate sentences fixed by
statute in proportion to the seriousness of the offense as determined by the
Legislature to be imposed by the court with specified discretion.” (§ 1170, subd.
(a)(1).)
Eliminating the explicit requirement that the middle term be imposed in the
absence of any aggravating or mitigating circumstances may afford the trial court
somewhat greater discretion to select the upper or lower term than it had under
the former scheme, but we do not believe such discretion in any way would
undermine the legislative goals of establishing proportionate sentences and
reducing disparity. As we recognized in Black I, “section 1170, subdivision (b)’s
requirement that the middle term be imposed unless an aggravating factor is found
preserves the traditional broad range of judicial sentencing discretion. Although
subdivision (b) is worded in mandatory language, the requirement that an
27
aggravating factor exist is merely a requirement that the decision to impose the
upper term be reasonable.” (Black I, supra, 35 Cal.4th at p. 1255, fn. omitted.)
The United States Supreme Court subsequently concluded in Cunningham that the
statutory requirement that the middle term be imposed unless an aggravating
circumstance is found signifies that the DSL cannot be categorized as a
discretionary scheme for purposes of applying the high court’s “bright-line rule.”
(Cunningham, supra, ___ U.S. at p. ___ [127 S.Ct. at p. 868].) Nevertheless, we
believe it is both accurate and realistic to recognize that, in practical terms, the
difference between the pre-Cunningham provision of the DSL enacted by the
Legislature and a statutory scheme in which the trial court has broad discretion to
select among the three available terms is not substantial. It seems likely that in all
but the rarest of cases the level of discretion afforded the trial court under the
Attorney General’s proposal would lead to the same sentence as that which would
have been imposed under the DSL as initially enacted.
Even prior to its recent amendment, the DSL permitted the trial court a
comparable level of broad discretion regarding other sentencing choices that affect
the length of the term of imprisonment. The prior requirement that an aggravating
or mitigating circumstance be found applied only to the decision to impose the
upper or lower term. (§ 1170, subd. (b).) The trial judge had (and continues to
have) discretion to make numerous other sentencing choices, such as whether to
grant or deny probation, impose consecutive sentences, or strike the punishment
for an enhancement. (See Cal. Rules of Court, rule 4.406(b).) In making such
sentencing choices, the trial court need only “state [its] reasons” (§ 1170, subd,
(c)); it is not required to identify aggravating and mitigating factors, apply a
preponderance of the evidence standard, or specify the “ultimate facts” that
“justify the term selected.” (Compare Cal. Rules of Court, rule 4.420(e) with rule
4.406(a).) Rather, the court must “state in simple language the primary factor or
28
factors that support the exercise of discretion.” (Cal. Rules of Court, rule
4.406(a).) The Legislature apparently did not believe that affording the trial court
broad discretion on such matters — which in some instances may have an impact
on the length of the sentence imposed greater than the decision to select the upper
term — would substantially interfere with its goal of reducing disparity in
sentencing.
Furthermore, the Legislature’s basic goal of reducing sentencing disparity
will be attained under such a discretionary sentencing scheme, to no small degree,
by the provisions of the DSL that remain fully applicable upon remand. First and
foremost, the range in which the trial court can exercise sentencing discretion is
limited. The Legislature’s specification of an upper, middle, or lower term for
each offense in itself serves to reduce the disparities in the time that was served for
similar crimes under the prior indeterminate system. In exercising its discretion,
the trial court will continue to be guided by the criteria set out in the Rules of
Court, including those that specify the general policy objectives in sentencing
(Cal. Rules of Court, rule 4.410) as well as those that specify aggravating and
mitigating circumstances (Cal. Rules of Court, rules 4.421, 4.423.) Accordingly,
we conclude that directing trial courts to apply the proposed procedure on remand
would not undermine the policy judgments of the Legislature that originally
enacted the DSL.
With respect to the second portion of the test set out in Kopp, it is apparent
to us that the Legislature “would have preferred such a reformed version of the
statute to invalidation of the statute” — a result that would render the upper term
unavailable and make the middle term the maximum that may be imposed in any
case. (Kopp, supra, 11 Cal.4th at p. 615.) Such a result seriously would impede
the Legislature’s goal that sentences be imposed “proportionate to the seriousness
of the offense.” (§ 1170, subd. (a)(1).) Furthermore, we believe that the
29
Legislature that originally enacted the DSL would have preferred a fully
discretionary sentencing scheme to the alternative of requiring a jury trial on
aggravating circumstances, which, as discussed above (ante, at pp. 23-25), would
complicate and distort the sentencing scheme adopted by the Legislature.11
The circumstance that the United States Supreme Court adopted a remedy
similar to the one we adopt here after the high court held that application of the
federal sentencing statutes, as written, violated the Sixth Amendment, provides

11
The legislative history brought to our attention on this point does not appear
dispositive. The Attorney General contends the Legislature has expressed a
preference for a sentencing scheme that does not involve a formal trial on
aggravating and mitigating factors. The first version of the DSL permitted the trial
court to impose the upper or lower term only after an evidentiary hearing. (See
Stats. 1976, ch. 1139, § 273, pp. 5140-5141, adding § 1170, subd. (b).) After this
original version of the DSL was enacted, the Legislature amended it on an urgency
basis, before it went into effect. (Stats. 1977, ch. 165, pp. 639-680.) Among other
changes, the procedure by which aggravating and mitigating factors were to be
established was simplified and made less formal, permitting the trial court to base
its decision upon the probation report and other relevant materials, rather than
upon evidence formally introduced at a hearing. (§ 1170, subd. (b), as amended
by Stats. 1977, ch. 165, § 15, p. 648.)

Defendant contends, on the other hand, that the Legislature considered and
rejected the version of the DSL now proposed by the Attorney General. As
originally introduced, the bill that enacted the DSL permitted trial courts to
sentence a defendant to any of the three terms. (Sen. Bill No. 42 (1975-1976 Reg.
Sess.) § 273.) It was amended in the Assembly to add subdivision (b) to section
1170, providing that the middle term must be imposed absent additional findings
with regard to aggravating or mitigating circumstances. (Assem. Amend. to Sen.
Bill. No. 42 (1975-1976 Reg. Sess.) Aug. 7, 1975, pp. 111-113.)

The history discussed above establishes no more than that the Legislature
preferred an informal sentencing hearing over a formal one, and that it preferred to
specify that the middle term sentence be imposed in the absence of any
aggravating or mitigating circumstances. This history does not provide a clear
indication of the kind of adjustments to the sentencing law the Legislature would
have preferred in the event its statutory formulation were to be found inconsistent
with the requirements of the Sixth Amendment.
30


persuasive authority for our decision. The high court concluded that if a jury trial
requirement were to be engrafted onto the federal sentencing system, “the
requirement would so transform the scheme that Congress created that Congress
likely would not have intended the Act as so modified to stand.” (United States v.
Booker, supra, 543 U.S. at p. 249.) Accordingly, the court chose to make the
federal sentencing guidelines advisory rather than mandatory. Although much of
the reasoning in Booker is based upon the intent of Congress in adopting the
federal sentencing laws, and is not directly applicable to the question of the
California Legislature’s intent in adopting the DSL, a significant factor in the high
court’s decision was its conclusion that “the sentencing statutes, read to include
the Court’s Sixth Amendment requirement, would create a system far more
complex than Congress could have intended.” (Id. at p. 254.)
Similarly, we conclude that attempting to engraft a jury trial on the issue of
aggravating circumstances onto the California sentencing scheme would create a
sentencing system far different from — and far more complex than — the one
intended by the California Legislature. In contrast, affording the trial court
discretion to select among the three available terms, without requiring a finding of
aggravating and mitigating circumstances, would change the sentencing system in
a manner that would eliminate the constitutional defect identified in Cunningham,
supra, ___ U.S. ___ [127 S.Ct. 856], but that as a practical matter would not
substantially alter the DSL as initially adopted by the Legislature.
B.
Defendant argues that resentencing her under a scheme in which the trial
court has discretion to impose any of the three terms would deny her due process
of law and violate the prohibition against ex post facto laws. Defendant relies
upon Miller v. Florida (1987) 482 U.S. 423 (Miller), in which the United States
Supreme Court held that a change to Florida’s sentencing guidelines that raised the
31
presumptive sentence range for the defendant’s offense could not be applied to the
defendant because his offense was committed prior to the effective date of the new
guidelines. Under the Florida sentencing scheme, a score was calculated based
upon the offense of which the defendant was convicted, the defendant’s prior
record and legal status at the time of the offense, and the injury inflicted on the
victim. (Miller, supra, 484 U.S. at pp. 425-426.) A presumptive sentencing range
was established for each score. If the trial court imposed a sentence within the
presumptive range, the court was not required to provide reasons for its decision,
which was not reviewable. (Id. at p. 426.) The trial court could deviate from the
presumptive range, but only if clear and convincing evidence warranted such a
departure. (Ibid.) A sentence outside the presumptive range required a statement
of reasons and was reviewable on appeal. (Ibid.)
In the Miller case, at the time of the defendant’s offense, the presumptive
range for an offender with his score was between three and a half and four and a
half years’ imprisonment. (Miller, supra, 482 U.S. at p. 424.) At the time of his
sentencing hearing, the presumptive range for an offender with his score was
between five and a half and seven years’ imprisonment. (Ibid.) The trial court
applied the guideline in effect at the time of sentencing and imposed a sentence of
seven years. (Ibid.)
The high court reversed, concluding that retroactive application of the
revised sentencing guidelines to the defendant’s case violated the ex post facto
clause of the federal Constitution. (Miller, supra, 482 U.S. at pp. 435-436.) That
provision states that “No state shall . . . pass any . . . ex post facto law . . . .” (U.S.
Const., art. I, § 10, cl. 1.) A law violates the ex post facto clause only if it is
retroactive — that is, if it applies to events occurring before its enactment — and
if its application disadvantages the offender. (Miller, supra, 482 U.S. at p. 430.)
A retroactive law does not violate the ex post facto clause if it “does not alter
32
‘substantial personal rights’ but merely changes ‘modes of procedure which do not
affect matters of substance.’ ” (Ibid., quoting Dobbert v. Florida (1977) 432 U.S.
282, 293.) The high court concluded the change in the presumptive sentencing
range at issue in Miller was not merely procedural. (Miller, supra, 482 U.S. at p.
433.) Furthermore, the change in law “ ‘substantially disadvantaged’ ” the
defendant because, under the prior law, the judge could not have sentenced him to
a seven-year term without providing reasons for his decision and the defendant
would have had the opportunity to challenge the sentence on appeal. (Id. at p.
432.) Under the new guidelines, the defendant could not challenge a seven-year
term on appeal.
Defendant argues that the revision of the DSL’s sentencing process that we
would have the trial court apply upon remand is analogous to the change in the law at
issue in Miller. Defendant contends she is disadvantaged by application of the revised
scheme, because she will lose the benefit of section 1170’s requirement that the
middle term be imposed in the absence of any aggravating or mitigating
circumstances, just as the defendant in Miller would have lost the benefit of a lower
presumptive range.
The United States Supreme Court has emphasized that the question of
whether a change in the law that might have some effect on a defendant’s term of
imprisonment violates the ex post facto clause is a “matter of ‘degree.’”
(California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 509.) In
Morales, the high court considered an ex post facto challenge to legislation that
changed the law to permit the California Board of Prison Terms, after denying
parole, to delay the subsequent parole suitability hearing under specified
circumstances for up to three years, rather than one. The court rejected the
argument that “any legislative change that has any conceivable risk of affecting a
prisoner’s punishment” violates the ex post facto clause. (Id. at p. 508.) It
33
concluded that the amendment at issue “creates only the most speculative and
attenuated possibility of producing the prohibited effect of increasing the measure
of punishment for covered crimes, and such conjectural effects are insufficient
under any threshold we might establish under the Ex Post Facto Clause.” (Id. at p.
509.)
Because the question of whether a change in the sentencing process violates
the ex post facto clause depends on the significance of its impact, this case is
distinguishable from Miller. Under the Florida sentencing scheme at issue in Miller,
the presumptive range of punishment for certain sex offenders, from which a
sentencing judge could not depart absent findings supported by clear and convincing
evidence, was revised upward. The court made clear in the Miller opinion that unlike
previous cases in which the “ ‘totality of the procedural changes wrought by the new
statute . . . did not work an onerous application of an ex post facto change,’ ” in that
case the state’s attorney “ha[d] not been able to identify any feature of the revised
guidelines law that could be considered ameliorative.” (Miller, supra, 482 U.S. at pp.
431-432.) The court further concluded that “the sole reason for the increase [in the
presumptive range of punishment] was to punish sex offenders more heavily: the
amendment was intended to, and did increase the ‘quantum of punishment’ for [sex
offender] crimes.” (Id. at pp. 433-434.)
In the present case, the removal of the provision calling for imposition of
the middle term in the absence of any aggravating or mitigating circumstance is
not intended to — and would not be expected to — have the effect of increasing
the sentence for any particular crime. Indeed, as applied to cases such as this one,
in which defendant already has been sentenced to the upper term under the version
of the DSL in place at the time she committed the offense, application of the
revised sentencing scheme never could result in a harsher sentence and affords the
defendant the opportunity to attempt to convince the trial court to exercise its
34
discretion to impose a lower sentence. To the extent the removal of the
requirement that the middle term be imposed in the absence of aggravating or
mitigating circumstances may be viewed as granting the trial court greater
discretion to impose the upper term, the revision would afford the court an equally
increased discretion to impose the lower term. Moreover, as noted above, the
difference in the amount of discretion exercised by the trial court in selecting the
upper term under the former DSL, as compared to the scheme we adopt for
resentencing proceedings, is not substantial. In contrast, a sentencing judge’s
discretion to depart downward from the presumptive sentencing range under the
Florida scheme considered in Miller was substantially limited.
Furthermore, Miller does not control the present case, because the prohibition
on ex post facto laws applies only to statutory enactments, not to judicial decisions.
By its terms, the ex post facto clause “is a limitation upon the powers of the
Legislature [citation] and does not of its own force apply to the Judicial Branch of
government.” (Marks v. United States (1977) 430 U.S. 188, 191.) Although
“limitations on ex post facto judicial decisionmaking are inherent in the notion of due
process,” the due process clause does not require the application of strict ex post facto
principles in the context of judicial decisionmaking. (Rogers v. Tennessee (2001) 532
U.S. 451, 456 (Rogers).) Rather, judicial decisions are reviewed under “core due
process concepts of notice, foreseeability, and, in particular, the right to fair warning.”
(Id. at p. 459.)
Rogers explains the difference between a challenge made to a statute
directly under the ex post facto clause and an ex post facto challenge made under
the due process clause to a change in the law that is accomplished by judicial
decision. In Rogers, the defendant was convicted of second degree murder.
(Rogers, supra, 532 U.S. at p. 454.) He had stabbed the victim, who went into a
coma and died from a kidney infection 15 months later. (Ibid.) On appeal, the
35
defendant argued that his conviction violated the Tennessee common law rule that
a defendant can be found guilty of murder only if the victim dies within a year and
a day after the fatal wound was inflicted. (Ibid.) The Tennessee Supreme Court
affirmed his conviction, abolishing the common law rule because the court
concluded there no longer was justification for the rule’s existence. (Id. at pp.
454-455.)
In the United States Supreme Court, the defendant asserted that his
conviction violated due process principles. He argued that retroactive application
of the state court’s decision to abolish the common law rule in his case should be
evaluated under the same standards that would apply under the ex post facto
clause had the Legislature abolished the rule. The high court rejected that
argument, explaining that to hold otherwise would circumvent the clear text of the
ex post facto clause, which “does not apply to courts.” (Rogers, supra, 532 U.S. at
p. 460.) In addition, particularly in the context of common law doctrines such as
the rule at issue in Rogers, “there often arises a need to clarify or even to
reevaluate prior opinions as new circumstances and fact patterns present
themselves. Such judicial acts, whether they be characterized as ‘making’ or
‘finding’ the law, are a necessary part of the judicial business in States in which
the criminal law retains some of its common law elements. Strict application of ex
post facto principles in that context would unduly impair the incremental and
reasoned development of precedent that is the foundation of the common law
system. The common law, in short, presupposes a measure of evolution that is
incompatible with stringent application of ex post facto principles.” (Rogers,
supra, 532 U.S. at p. 461.)12 Also concluding that the state court’s abolition of the

12
Justice Harlan, in his concurring and dissenting opinion in James v. United
States (1961) 366 U.S. 213, 247, explained that “the decisions of a court interpreting
(footnote continued on next page)
36


year-and-a-day rule did not violate due process principles, the high court explained
that, because at the time of the defendant’s crime the “rule had only the most
tenuous foothold as part of the criminal law of the [s]tate” (Rogers, supra, 532
U.S. at p. 464), its abolition was not “ ‘unexpected and indefensible.’ ” (Id. at p.
466.)
Relying upon the principles established in Rogers, every federal court that
has considered the issue has rejected the argument that application of the United
States Supreme Court’s “remedial interpretation” of the federal sentencing statutes
in United States Booker, supra, 543 U.S. at page 268, to cases pending on appeal
would deny due process of law. (See U. S. v. Vaughn (2d Cir. 2005) 430 F.3d 518
(Vaughn); U.S. v. Dupas (9th Cir. 2005) 419 F.3d 916 (Dupas); U.S. v. Jamison
(7th Cir. 2005) 416 F.3d 538 (Jamison); U.S. v. Lata (1st Cir. 2005) 415 F.3d 107
(Lata); U.S. v. Scroggins (5th Cir. 2005) 411 F.3d 572 (Scroggins).) In Booker,
the high court did not address the question whether retroactive application of its
decision would violate due process principles, but it did state that its “remedial
interpretation” of the federal sentencing laws must be applied to all cases on direct
review. (Booker, supra, 543 U.S. at p. 268.)
The appellate court in Lata, supra, 415 F.3d at pages 110-112, addressed
the defendant’s argument that his eight-year sentence for bank robbery violated

(footnote continued from previous page)
the acts of a legislature have never been subject to the same limitations which are
imposed on legislatures themselves.” The policy behind the ex post facto clause
was a concern that the legislature “may be acting with a purpose not to prevent
dangerous conduct generally but to impose by legislation a penalty against specific
persons or classes of persons. That this policy is inapplicable to decisions of the
courts seems obvious: their opportunity for discrimination is more limited than the
legislature’s, in that they can only act in construing existing law in actual litigation.”
(Id. at p. 247, fn. 3 (conc. & dis. opn. of Harlan, J.).)
37


due process principles. The maximum sentence provided by statute for that
offense was 20 years, but under the guidelines the range for his offense was 70 to
87 months. (Id. at p. 109.) The trial court, foreseeing the high court’s later
decision in Booker, deemed the mandatory guidelines unconstitutional and treated
them as discretionary, sentencing the defendant to a term of 96 months. (Ibid.)
Applying the test established in Rogers, the appellate court upheld the sentence,
explaining that “[a]n after-the-offense enlargement of the contours of the crime or
maximum sentence by judicial construction can raise due process objections based
on lack of fair warning but only where the alteration is ‘unexpected and
indefensible’ by reference to the case law that had been expressed prior to the
offense.” (Lata, supra, 415 F.3d at pp. 110-111, italics added.) The appellate
court in Lata concluded that the appropriate question was not whether the decision
in Booker was “ ‘unexpected,’ ” but whether the particular sentence imposed on
the defendant “so far disappoints reasonable expectations as to raise due process
concerns.” (Lata, at p. 111.) The court concluded that the provision in the statute
specifying a maximum sentence afforded the defendant sufficient warning, for due
process purposes, that he could be sentenced to a term of up to 20 years. (Id. at p.
112; accord, Vaughn, supra, 430 F.3d at pp. 524-525; Dupas, supra, 419 F.3d at
pp. 919-921; Jamison, supra, 416 F.3d at p. 539; Scroggins, supra, 411 F.3d at p.
576.)
We similarly conclude that the federal Constitution does not prohibit the
application of the revised sentencing process explained above to defendants whose
crimes were committed prior to the date of our decision in the present case.
Defendant was put on notice by section 193 that she could receive the upper term
for her offense: the statute specifies that “[v]oluntary manslaughter is punishable
by imprisonment in the state prison for 3, 6, or 11 years.” (§ 193, subd. (a).) That
notice satisfies the requirements of due process.
38
VI.
For the reasons stated above, we reverse the decision of the Court of
Appeal insofar as it affirmed the upper term sentence imposed on count one and
remand to the Court of Appeal with directions to remand the case to the trial court
for resentencing in accordance with this opinion.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

39



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sandoval
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 11/14/06 – 2d Dist., Div. 4
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S148917
Date Filed: July 19, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Lance A. Ito

__________________________________________________________________________________

Attorneys for Appellant:

Donna L. Harris, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Kyle S. Brodie,
Kristofer Jorstad, Steven D. Matthews, Lance E. Winters, Lawrence M. Daniels, David E. Madeo and
Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

Albert C. Locher, Assistant Chief Deputy District Attorney (Sacramento) for California District Attorneys
Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Donna L. Harris
Cannon & Harris
6046 Cornerstone Court West, Suite 141
San Diego, CA 92121-4733
(619) 392-2937

Chung L. Mar
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4925


Opinion Information
Date:Docket Number:
Thu, 07/19/2007S148917

Parties
1Sandoval, Aida (Defendant and Appellant)
Valley State Prison for Women
Represented by Donna L. Harris
Cannon & Harris
6046 Cornerstone Court West, Suite 141
San Diego, CA

2Sandoval, Aida (Defendant and Appellant)
Valley State Prison for Women
Represented by California Appellate Project - La
520 S. Grand Avenue, Suite 400
520 S. Grand Avenue, Suite 400
Los Angeles, CA

3The People (Plaintiff and Respondent)
Represented by David Elgin Madeo
Office of the Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA

4The People (Plaintiff and Respondent)
Represented by Chung L. Mar
Office of the Attorney General
300 S. Spring Street
Los Angeles, CA

5California District Attorneys Association (Amicus curiae)
Represented by Albert C. Locher
Office of the District Attorney
731 "K" Street, Third Floor
Sacramento, CA

6Criminal Justice Legal Foundation (Amicus curiae)
Represented by Kent S. Scheidegger
Criminal Justice Legal Foundation
2131 "L" Street
Sacramento, CA


Disposition
Jul 19 2007Opinion: Reversed

Dockets
Dec 20 2006Petition for review filed
  Aida Sandoval, Defendant and Appellant. Donna L. Harris, counsel
Dec 20 2006Record requested
 
Dec 21 2006Received Court of Appeal record
 
Feb 7 2007Petition for review granted (criminal case)
  To facilitate expedited consideration and resolution of the issues presented, the court establishes the following briefing schedule: The opening brief on the merits shall be served and filed in the San Francisco office of the Supreme Court on or before February 28, 2007. Within 21 days after the opening brief on the merits is filed, the answer brief on the merits shall be served and filed in the San Francisco office of the Supreme Court. Within 7 days after the answer brief on the merits is filed, a reply brief may be served and filed in the San Francisco office of the Supreme Court. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, by March 21, 2007. Any amicus curiae brief accepted for filing will be considered by the court in reviewing each of the cases presenting issues related to the effect of the decision in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. __ [2007 WL 135687] and multiple copies of amicus briefs need not and should not be submitted in each case. Because it is important for the administration of justice that the trial courts of California be provided timely guidance, the court notes that its action in this case is not intended to dissuade the Legislature from promptly revising the existing California sentencing statutes in light of the United States Supreme Court's decision in Cunningham v. California, supra. Votes: George, C. J., Kennard, Baxter, Wedegar, Chin, Moreno and Corrigan, JJ.
Feb 9 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Donna Harris is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before February 28, 2007.
Feb 22 2007Record requested
  remaining volume of record
Feb 22 2007Received Court of Appeal record
 
Mar 2 2007Opening brief on the merits filed
  Aida Sandoval, Defendant and Appellant. Donna L. Harris, counsel. (CRC, rule 8.25 - priority mail)
Mar 21 2007Received application to file Amicus Curiae Brief
  California District Attorneys Associaiton in support of respondent, The People
Mar 22 2007Received application to file Amicus Curiae Brief
  Criminal Justice Legal Foundation, amicius in support of respondent. Kent S. Scheidegger, counsel
Mar 22 2007Application filed to:
  file an answer brier on the merits in excess of 14,000 words ***GRANTED ****
Mar 22 2007Answer brief on the merits filed
  The People, Plaintiff and Respondent David E. Madeo, Deputy Attornery General **** filed w/permission ****
Mar 22 2007Permission to file amicus curiae brief granted
  The application of California District Attorneys Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed in the San Francisco office of the Supreme Court within ten (10) days from the date of this order.
Mar 22 2007Amicus curiae brief filed
  Calfiornia District Attorneys Association in support of respondent, The People Albert C. Locher, Asst. Deputy District Attorney
Mar 23 2007Permission to file amicus curiae brief granted
  The application of Criminal Justice Legal Foundation for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed in the San Francisco office of the Supreme Court within ten (10) days from the date of this order.
Mar 23 2007Amicus curiae brief filed
  Criminal Justice Legal Foundation in support of respondent. Kent S. Scheidegger, counsel
Apr 2 2007Reply brief filed (case fully briefed)
  Aida Sandoval, Defendant and Appellant Donna L. Harris, counsel (CRC, rule 8.25 - priority mail) (filed w/permission - exceeds 4200 words.)
Apr 2 2007Request for judicial notice filed (granted case)
  Aida Sandoval, Defendant and Respondent Donna L. Harris, counsel
May 2 2007Case ordered on calendar
  to be argued on Tuesday, May 29, at 9:00 a.m., in San Francisco
May 17 2007Request for Extended Media coverage Filed
  by James Gualtieri of the California Channel.
May 17 2007Request for Extended Media coverage Granted
  The request for extended media coverage, filed May 17, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
May 21 2007Received:
  Appellant Aida Sandoval's additional authority for oral argument Donna L. Harris, counsel
May 29 2007Cause argued and submitted
 
Jul 16 2007Request for judicial notice granted
  Petitioner's Request for Judicial Notice, filed April 2, 2007, is granted except with respect exhibit A, as to which it is denied. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45-46, fn. 9 and People v. Cruz (1996) 13 Cal.4th 764, 780, fn. 9.)
Jul 18 2007Notice of forthcoming opinion posted
 
Jul 19 2007Opinion filed: Judgment reversed
  Opinion By: George, C.J. Joined By: Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 22 2007Remittitur issued (criminal case)
 
Aug 22 2007Returned record
  to 2CA4
Aug 30 2007Received:
  Receipt for remittitur from 2CA4
Apr 16 2008Compensation awarded counsel
  Atty Harris

Briefs
Mar 2 2007Opening brief on the merits filed
 
Mar 22 2007Answer brief on the merits filed
 
Mar 22 2007Amicus curiae brief filed
 
Mar 23 2007Amicus curiae brief filed
 
Apr 2 2007Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website