People v. Barragan CA2/8

facts supporting every aggravating circumstance upon which the trial court relies to justify imposition of the upper term must be properly proven as the statute requires. . . . [T]he defendant is no longer eligible for the upper term simply because an aggravating fact exists. Instead, the defendant may be properly sentenced to an upper term only if the jury finds facts that, in the trial court’s view, justify an upper term sentence.” (Lynch, supra, 16 Cal.5th at p. 757, italics added and quotation marks omitted.) The prosecution acknowledges the trial court’s error but argues it was harmless.

3 We cannot say the omission of jury findings was harmless beyond a reasonable doubt as to every aggravating fact used to justify this upper term sentence. (See Lynch, supra, 16 Cal.5th at pp. 768, 775, 776.) A reasonable jury might conclude this victim was not particularly vulnerable. (See Lynch, supra, 16 Cal.5th at pp. 775–776 [vulnerable victim aggravating circumstance requires an imprecise quantitative or comparative evaluation of the facts, which may make it difficult to conclude with confidence how a jury would have resolved this question].) “A victim is considered particularly…