Ameliorative changes to Penal Code 1170 favoring lower or middle term apply retroactively

People v. Zabelle (Cal. Ct. App., July 11, 2022, No. C093173) 2022 WL 2663754, at *1

Summary: Zabelle was convicted of second degree robbery. The jury found true the allegation that he inflicted great bodily injury during the commission of the robbery.

On appeal, Zabelle asserts his case should be remanded to the trial court for resentencing consistent with a recent amendment to Penal Code section 1170 that became effective January 1, 2022,

Section 1170 and recent amendments

At the time of sentencing section 1170, subdivision (b) stated: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” But subsequently, with Senate Bill No. 567 the Legislature amended the statute to limit the sentencing discretion of trial courts.  As amended, the statute generally requires a court to “order imposition of a sentence not to exceed the middle term,” except in certain circumstances. (§ 1170, subd. (b)(1).) Defendant contends he is entitled to the ameliorative benefit of this statute on remand. The court agreed.

Retroactive application of 1170

“[U]nder [In re Estrada (1965) 63 Cal.2d 740], ‘ “[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date”,  unless the enacting body “clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.” ’ ” (People v. Lara (2019) 6 Cal.5th 1128, 1134; see also People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 [“a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed”].)

This presumption favors retroactive application of section 1170’s new language in this case. Senate Bill No. 567 potentially lesser punishment for defendants sentenced to the upper term on an offense. Although section 1170 once granted trial courts broad discretion to choose whether to impose the lower, middle, or upper term for an offense, it now, as mentioned, favors imposition of the lower or middle term. It generally requires a court to “order imposition of a sentence not to exceed the middle term” (§ 1170, subd. (b)(1)), and it allows a higher sentence “only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2); but see § 1170, subd. (b)(3) [allowing a court to “consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury”].)

Section 1170’s current statutory language applies retroactively in all non-final cases, including in this case. All published cases to consider this issue have found likewise. (See, e.g., People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [“the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal”]; People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores) [“[t]hese amendments [to section 1170] apply retroactively to [defendant] because his conviction was not final when this legislation took effect”].)

 Trial court improperly relied on facts not found true in accordance with 1270

Here, the trial court relied on facts that were not found true in the manner section 1170 now prescribes.

The trial court’s error violated defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. The Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) demonstrates as much. The court there considered an earlier version of section 1170, which “provide[d] that ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime,’ ” and added that “ ‘[c]ircumstances in aggravation or mitigation’ are to be determined by the court after consideration of several items.” (Cunningham, supra, at p. 277.) The Supreme Court found this scheme violated the Sixth Amendment. Under the Sixth Amendment, the court explained, “any fact [other than a prior conviction] 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.” But former section 1170, the court concluded, defied this rule. It allowed a trial court to impose an upper term sentence only if aggravating circumstances existed, but it then improperly assigned to the trial court, not the jury, the task of determining whether such circumstances existed. The court explained that “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (

At sentencing, the trial court found eight factors in aggravation but did not do so consistent with section 1170. Zabelle did not stipulate to these these facts. Nor did a jury find any of these facts to be true beyond a reasonable doubt. And although a “court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury” (1170(b)(3), the court here relied on the probation report for its findings concerning defendant’s criminal history, not any certified record of conviction.

Sixth Amendment error was harmless-but state law error was not

Here, the Sixth Amendment error was plainly harmless. The Court found  “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 had it been submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.) The  state law error  was not harmles. Although, the jury would have found true at least four of the listed aggravating circumstances had it been asked to consider these matters, the court was not  convinced the trial court would have found these circumstances alone sufficient to warrant imposition of the upper term sentence. The trial court gave no particular weight to any of its listed aggravating circumstances. Nor did it indicate whether its decision to impose the upper term was (or was not) a close call. It simply laid out the various factors in aggravation and mitigation and then stated that, “for all those reasons, I give him the upper term [sentence].” On this record, we cannot determine whether the trial court would have issued the same sentence had it been left with only these four aggravating circumstances, so it reversed. (See People v. Avalos (1984) 37 Cal.3d 216, 233 [reviewing court must “reverse where it cannot determine whether the improper factor was determinative for the sentencing court”].


The conviction is affirmed and the sentence is vacated. The matter is remanded to the trial court for resentencing consistent with the recent amendment to section 1170.

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