I.

INTRODUCTION

Defendant and appellant Brandon Lewis was sentenced to over 73 years in prison

after a jury convicted him of various offenses associated with his pimping three victims

who were minors. Defendant contends his Sixth Amendment right to confront an accuser

was violated because a computer monitor blocked his view of her face when she testified.

We disagree. Defendant also contends, the People concede, and we agree that a portion

of his sentence was unauthorized. We therefore strike that portion of his sentence.

Finally, defendant argues the case must be remanded for resentencing in light of recently

enacted legislation. We agree, vacate his sentence, and remand for resentencing. In all

other respects, the judgment is affirmed.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A.W. met defendant in Las Vegas when she was 17 years old. She was homeless

at the time and defendant offered her a place to stay so long as she helped him make

money. After living with defendant for about two weeks, A.W. began prostituting herself

for defendant. A.W. eventually moved in with defendant’s girlfriend, T.W., who was

also one of defendant’s “girls.”

During a “date,” a customer began choking T.W., so A.W. physically assaulted

him. The customer reported T.W., A.W., and defendant to the police, stating that they

2 held him against his will. The three of them fled Las Vegas for San Bernardino, where

A.W. and T.W. continued prostituting themselves for defendant.

In the ensuing months, defendant became increasingly violent toward A.W. and

T.W. He also became increasing controlling of A.W. If A.W. did not do as she was told,

defendant used or threatened to use violence. On several occasions, defendant threatened

and hit A.W. with a gun. He repeatedly beat both A.W. and T.W. in front of one another.

He beat A.W. so severely on one occasion that she had to go to the hospital, where

defendant instructed her to lie about what happened. Not long afterwards, defendant

again beat A.W. so badly that she vomited and had to go to the hospital. She told the

police at the hospital that defendant caused her injuries and she was taken to a women’s

shelter. A.W. later moved back in with defendant.

In April 2018, defendant unexpectedly showed up where A.W. was eating and told

her to get in his car. Once she was inside the car, defendant hit her and drove off.

Defendant drove around for over 90 minutes and refused to let A.W. get out of the car.

During that time, defendant poured alcohol on her, punched her in the face at least 15

times, hit her in the face with his gun, told her she was “just a slave,” and threatened to

shoot and kill her.

Defendant eventually stopped in a dark area near a ditch and told A.W. to get out.

He told A.W. he was going to shoot her and leave her in the ditch, while kicking her

repeatedly as she lay on the ground. After he ordered her back in the car, he told her he

and his friends were going to gang rape her. While they were stopped at a red light, A.W.

3 jumped out of the car and ran and hid behind a house. The next day, A.W. reported

defendant’s abuse to law enforcement while at the hospital. A.W. moved back in with

defendant, but eventually left and returned to Las Vegas.

Jane Doe moved from San Bernardino into defendant’s Las Vegas apartment when

she was 16 years old, thinking that they were boyfriend and girlfriend. Within a few

days, however, she realized defendant was planning on pimping her out as a prostitute.

About a year later, Jane Doe began prostituting herself for defendant in San

Bernardino. Jane Doe ended up working for defendant every day for two or three years.

As with A.W., defendant threatened Jane Doe with violence if she did not do what she

was told.

Defendant was arrested and charged with various pimping-related offenses against

T.W., A.W., and Jane Doe. A jury convicted him of human trafficking of A.W. to 2 commit another crime (Pen. Code, §§ 236.1, subd. (b), 266h; count 1) , pimping of A.W.

(§ 266h; count 2), two counts of pandering by procuring prostitution by A.W. and T.W.

(§ 266i, subd. (a)(1); counts 3 & 7), kidnapping of A.W. (§ 207, subd. (a); count 4),

assault with a firearm against A.W. (§ 245, subd. (a)(2); count 5), criminal threats against

A.W. (§ 422, subd. (a); count 6), human trafficking of Jane Doe, a minor (§§ 236.1, subd.

(c)(1), 266h; count 8), and pandering by procuring prostitution by Jane Doe, a minor

(§ 266i, subd. (b)(1); count 9).

2 Unless otherwise indicated, all further statutory references are to the Penal Code.

4 The jury also found true allegations that defendant caused great bodily injury to

A.W. in the commission of count 1 (§ 236.4, subd. (b)), and that he personally used a

firearm in the commission of counts 1, 5, and 6 (§ 12022.5, subd. (a)). The trial court

also found true a prior strike allegation (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

Defendant was sentenced to 73 years, four months in prison.

III.

DISCUSSION

A. Sixth Amendment

Defendant argues his convictions on counts 1 through 7 must be reversed because

he could not see A.W.’s face while she testified, which he claims violated his Sixth 3 Amendment right to confront an accuser. We disagree.

1. Background

Shortly after A.W. took the stand to testify on the first day of trial, defense counsel

asked for a sidebar. During the sidebar, defense counsel told the trial court, “I can’t see

her [A.W.] at all and I’m not sure exactly whether I move or what.” The court told

defense counsel, “you can move over so you can see her.” “We can move him over a

little further and you can move over a little bit . . . to the left. I’m not gonna put her in a

position where she gets stared down. I’m gonna keep an eye on people in the audience.

But I think he needs to at least be able to see her.” Defense counsel and the court then

briefly discussed counsel’s concern that there were police officers “with their vests on” in

3 At oral argument, defendant’s counsel did not challenge our tentative opinion on this issue.

5 the courtroom. The court explained that he could see everyone in the courtroom and that

everyone had behaved appropriately.

Defense counsel replied, “And if you can just say something. I’ll push my client

over so – just so I can see her.” The trial court then asked a courtroom employee to ask

A.W. to “slide over a couple of inches” so that defense counsel “can see her.” The bailiff

explained, “I think I can just move this monitor here,” to which the court said, “[Defense

counsel] can’t see. I want [defense counsel] to be able to see.” Defense counsel thanked

the court and the trial proceeded with A.W. testifying for the rest of the day without any

objection about defendant or his counsel not being able to see A.W.

The next day of trial began with A.W. testifying. Before she started testifying,

however, defense counsel objected that he could not see her when she previously

testified. Counsel explained: “[A.W.] sort of sat behind a screen that is up on the witness

stand. And it was – I assume it was done so that she wouldn’t have to look at my client

or see my client. And I approached a couple times unfortunately in front of the jury. But

I did approach a couple times just to try to address it because I couldn’t see her on several

occasions. [¶] I would ask that we take the computer down so that my client can see her

and she can see my client. I do believe under the Sixth Amendment he has a right to see

her. I would certainly ask to see her. I would note for the record that we had a couple

sessions on Tuesday I believe. And I didn’t see her. So I physically got up and sat in the

District Attorney’s seat for several portions of that witness’ testimony sitting in between

Detective Hernandez and the jury just so that I could see her. [¶] I don’t believe that

6 there have been any allegations of threats that -- I think the one issue on the bus that we

had had to do with a different witness which is [redacted] I believe. And so that would

be the request, that we remove that and that both my client and myself be able to see her.”

The trial court ruled as follows: “So it is the Court’s ruling that counsel will be

able to see her. We will fix the screen so counsel can see her from where you are. I

don’t necessarily -- for the witness’ comfort, given the nature of the offenses alleged,

given the nature of the defendant’s demeanor, her ability to testify and provide

information and provide candid information the Court thinks was helped by her not

looking directly at the defendant. There are many situations in which witnesses can be

screened off entirely or testify via remote television. The defendant’s right to confront

and cross-examine witnesses is for counsel. So if counsel can see her, she does not have

to look at the defendant given what the Court has seen as far as her testimony, how she

started off speaking very softly and hesitantly. And once she realized that -- once she got

more comfortable, she became firmer in her testimony. We were better able to hear her.

[¶] So I think I am going to just keep it the same way for now because I think it is

important that we all hear what she has to say. So we will make sure that counsel can see

her. And that will be the Court’s ruling.” A.W. then testified.

2. Forfeiture

The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him . . . .” This provision

7 “guarantees the defendant a face-to-face meeting with witnesses appearing before the

trier of fact.” (Coy v. Iowa (1988) 487 U.S. 1012, 1016.) This guarantee, however, is not

absolute and may yield to important policy concerns so long as the witness’s reliability

remains assured. (See People v. Arredondo (2019) 8 Cal.5th 694, 700-701, citing

Maryland v. Craig (1990) 497 U.S. 836, 840 (Craig).) A defendant may also forfeit the

constitutional right to confront a witness by failing to object. (People v. Arredondo,

supra, at p. 710 [“We have applied this rule numerous times to find forfeiture of a

constitutional right of confrontation claim.”].)

Although defense counsel stated that he could not see A.W.’s face and objected on

that basis before A.W. began testifying on the first day of trial, defense counsel never

objected during the first day of A.W.’s testimony on the ground that defendant could not

see A.W.’s face. It was not until the beginning of A.W.’s second day of testifying that

defense counsel objected on the ground that defendant could not see A.W.’s face. By

failing to object until the second day of A.W.’s testimony, defendant forfeited his

objection that his inability to see A.W.’s face while she testified on the first day of trial

violated the Confrontation Clause.

Defendant claims his failure to object should be excused because any objection

would have been futile given that the trial court overruled his objection before A.W.

testified on the second day of trial. We disagree. Our Supreme Court has “never

expanded the futility exception to encompass a situation where, as here, the defendant

made a belated objection after forgoing multiple earlier opportunities to object.” (People

8 v. Bonilla (2007) 41 Cal.4th 313, 336.) Like that court, “we decline to do so here.”

(Ibid.)

Regardless, we cannot determine on this record whether an objection before A.W.

began testifying on the first day of trial would have been futile. The trial court overruled

defendant’s objection before she began testifying on the second day of trial in part

because of what the court observed during A.W.’s testimony on the first day of trial.

According to the trial court, A.W. “started off speaking very softly and hesitantly,” but

“became firmer in her testimony” as she grew “more comfortable” on the stand. In the

court’s view, this was because A.W. realized she did not have to look at defendant as she

testified. It is thus unclear how the trial court would have ruled on defendant’s

Confrontation Clause challenge had he objected when A.W. first began testifying on the

first day of trial.

Defendant alternatively argues that his trial counsel was ineffective for failing to

object on the first day of A.W.’s testimony. We reject the ineffective assistance of

counsel (IAC) claim.

To prevail on an IAC claim, the defendant must show that (1) counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is

a reasonable probability that, but for counsel’s failings, the result would have been more

favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694;

9 accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see People v. Mbaabu (2013)

213 Cal.App.4th 1139, 1148.)

“[R]arely will an appellate record establish ineffective assistance of counsel.”

(People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on

counsel’s actions, the claim must be rejected unless no satisfactory explanation exists or

counsel was asked for an explanation and failed to provide one. (People v. Mendoza

Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistance of counsel

“unless there could be no conceivable reasonable for counsel’s acts or omissions.”

(People v. Weaver (2001) 26 Cal.4th 876, 926.)

We can think of several conceivable reasons why defense counsel may not have

objected that defendant could not see A.W.’s when she testified. For one, defendant and

defense counsel may not have been initially concerned that defendant could not see A.W.

so long as defense counsel could see her. It is conceivable that defendant decided that he

wanted to be able to see A.W. after she testified for a day. Defense counsel also may

have thought it was in defendant’s best interest that he not look at A.W. because he may

have done so in an intimidating manner. As the trial court noted, the court would not

“put [A.W.] in a position where she gets stared down” and overruled defense counsel’s

objection to the computer monitor covering her face in part because of “defendant’s

demeanor.” Because defense counsel may have reasonably decided not to object that

defendant could not see A.W.’s face on the first day of trial, we reject defendant’s IAC

claim.

10 3. A.W.’s First Day of Testimony

A.W.’s testimony on the first day of trial was sufficient for the jury to find

defendant guilty beyond a reasonable doubt on counts 1 through 7. A.W. testified that

defendant trafficked her from Las Vegas to San Bernardino in order to pimp her. She

explained that defendant repeatedly threatened her, used violence, assaulted her with his

gun, and detained her against her will, all to coerce her into prostituting herself for him.

A.W. also testified that T.W. prostituted herself and gave her earnings to defendant.

A.W.’s testimony on the first day of trial thus allowed the jury to find defendant

guilty of trafficking A.W. to commit another crime (prostitution) (§§ 236.1, subd. (b),

266h; count 1), pimping A.W. (§ 266h; count 2), pandering by procuring for prostitution

A.W. and T.W. (§ 266i, subd. (a)(1); counts 3 & 7); kidnapping A.W. (§ 207, subd. (a);

count 4), assaulting A.W. with a firearm (§ 245, subd. (a)(2); count 5), and making

criminal threats against A.W. (§ 422, subd. (a); count 6). We therefore need not address

whether the trial court properly overruled defendant’s Confrontation Clause objection

immediately before A.W. began testifying on the second day of trial that he could not see

her face.

B. Sentence Imposed on Count 9

Defendant contends, and the People concede, that the trial court erroneously

imposed a 16-year term on count 9, pandering by procuring for prostitution a minor over

16 years old. (§ 266, subd. (b)(1).) We agree.

11 The trial court imposed the 16-year term by imposing an upper term of eight years

for count 9, doubled for defendant’s strike prior. The upper term for the offense,

however, is six years. (§ 266, subd. (b)(1).) The upper term thus should have been six

years, doubled for the prior strike, for a total of 12 years. We therefore modify the

sentence on count 9 from a 16-year to a 12-year term. (See People v. Guillen (1994) 25

Cal.App.4th 756, 764.)

C. Senate Bill No. 567

The trial court imposed upper term sentences on counts 1, 2, 3, 4, 6, and 9. The

court also imposed the upper term on the firearm enhancements in connection with

counts 1, 5, and 6, and imposed the upper term on the great-bodily-injury enhancement in

connection with count 1. Defendant contends the matter must be remanded for

resentencing under recently enacted legislation so that the trial court can decide whether

to impose these upper terms. We agree.

The court explained that it intended to impose the maximum term possible given

the nature of defendant’s offenses, the number of victims, and the length of time that he

abused them. The court found that there were no mitigating factors, while there were

three aggravating factors: (1) the victims were “particularly vulnerable,” (2) the manner

defendant carried out the offenses indicated “criminal sophistication and

professionalism,” and (3) he engaged in violent conduct that indicated a serious danger to

society. (Cal. Rules of Court, rule 4.421(a)(3), (a)(8), (b)(1).)

12 “While this appeal was pending, Senate Bill No. 567 (2021-2022 Reg. Sess.)

amended section 1170, subdivision (b), making the middle term of imprisonment the

presumptive sentence. (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1, effective Jan. 1,

2022.) A trial court may impose an upper term sentence only where there are aggravating

circumstances in the crime and the defendant has either stipulated to the facts underlying

those circumstances or they have been found true beyond a reasonable doubt. (§ 1170,

subd. (b)(1)-(2).)” (People v. Flores (2022) 75 Cal.App.5th 495, 500, fn. omitted, review

denied June 15, 2022 (Flores).)

The parties agree, as do we, that these ameliorative amendments apply

retroactively to defendant’s non-final case. (Flores, supra, 75 Cal.App.5th at p. 500;

People v. Lopez (2022) 78 Cal.App.5th 459, 2022, review denied July 20, 2022 (Lopez);

People v. Zabelle (2022) 80 Cal.App.5th 1098 (Zabelle).) The parties disagree, however,

on the appropriate remedy. Defendant argues the case must be remanded so that the trial

court may exercise its discretion under amended section 1170, subdivision (b) and decide

whether to impose the middle or upper terms on the six counts at issue. The People argue

any error was harmless because any reasonable jury would have found at least one of the

aggravating circumstances true beyond a reasonable doubt and thus the trial court

properly imposed the upper terms.

Courts are split on how to assess harmlessness in these circumstances. (See

Lopez, supra, 78 Cal.App.5th at p. 497, fn. 11.) In Flores, Division Three of the First

District held that remand for resentencing under amended section 1170, subdivision (b)

13 was unnecessary because any error in the trial court’s imposing an upper term (instead of

the presumptive middle term required by Senate Bill No. 567) was harmless. (Flores,

supra, at p. 500.) The Flores court held reviewing courts may affirm an upper term, even

if the defendant is entitled to the retroactive application of Senate Bill No. 567, so long as

a reasonable jury would have found true “‘at least a single aggravating circumstance’”

justifying an upper term true beyond a reasonable doubt. (Ibid., quoting People v.

Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval).) The Flores court affirmed the

defendant’s upper term because a reasonable jury would have found true beyond a

reasonable doubt the aggravating circumstances that he had “numerous convictions” and

committed the underlying offense while on probation. (Id. at p. 501.)

Our colleagues in Division One recently disagreed with Flores. (Lopez, supra, 78

Cal.App.5th at p. 467, fn. 11.) The Lopez court held that assessing harmlessness in the

context of retroactive application of Senate Bill No. 567 requires a two-step analysis.

(Ibid.) The first question we ask is whether we “can conclude beyond reasonable doubt

that a jury would have found true beyond a reasonable doubt all of the aggravating

factors on which the trial court relied in exercising its discretion to select the upper term.”

(Ibid.) The Lopez court reasoned that section 1170, subdivision (b)(2) “requires that

every factor on which a court intends to rely in imposing an upper term, with the

14 exception of factors related to a defendant’s prior conviction(s), have been admitted by 4 the defendant or proven to a jury.” (Id. at p. 466.)

If the answer to the first question is “yes,” then the trial court’s “reliance on

factors not found true by a jury in selecting the upper term” was harmless. (Lopez, supra,

78 Cal.Ap.5th at p. 467, fn. 11.) But if the answer to that question is “no,” then the

reviewing court must ask if it is reasonably probable that the trial court still would have

imposed the upper term “if it had recognized that it could permissibly rely on only a

single one of the aggravating factors, a few of the aggravating factors, or none of the

aggravating factors, rather than all of the factors on which it previously relied.” (Ibid.) If

it is not reasonably probable that the trial court would have imposed an upper term, then

the reviewing court must remand the case for resentencing under amended section 1170,

subdivision (b). (Ibid.)

In fashioning its test for harmlessness, the Flores court relied entirely on our

Supreme Court’s opinion in Sandoval. (See Flores, supra, 75 Cal.App.5th at p. 467.)

But Sandoval was based on former section 1170, subdivision (b)’s language mandating

4 Amended section 1170, subdivision (b)(2) provides in full: “The court may impose a sentence exceeding the middle term 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. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

15 sentencing courts to impose the middle term “unless there are circumstances in

aggravation.” Sandoval held that a sentencing court’s finding of aggravating

circumstances justifying an upper term was harmless if a jury would have found a single

aggravating circumstance true beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th

at p. 839.)

But, as amended by Senate Bill No. 567, section 1170, subdivision (b) now

provides that the sentencing court may impose an upper term “only when there are

circumstances in aggravation of the crime that justify the imposition of a term of

imprisonment exceeding the middle term.” (§ 1170, subd. (b)(2).) “As a result of this

change, it may no longer be true that ‘the existence of a single aggravating circumstance

is legally sufficient to make the defendant eligible for the upper term.’” (Flores, supra,

75 Cal.App.5th at p. 501 [conc. Statement of J. Liu].) Rather, an upper term is

appropriate only if the aggravating circumstances “‘justify the imposition’ of that term

under all of the circumstances, which may include evidence both in aggravation and in

mitigation.” (Ibid.)

The Lopez court correctly identified this change in the law by concluding that

amended section 1170, subdivision (b) now “requires that every factor on which a court

intends to rely in imposing an upper term, with the exception of factors related to a

defendant’s prior conviction(s), have been admitted by the defendant or proven to a jury.”

(Lopez, supra, 78 Cal.App.5th at p. 466, italics added.) The Flores court, on the other

hand, relied on case law interpreting an outdated version of the statute, which allowed the

16 sentencing court to impose an upper term if the jury would have found at least one

aggravating circumstance true beyond a reasonable doubt.

But under amended section 1170, subdivision (b), the sentencing court may

impose the upper term only if all of the circumstances, including aggravating and

mitigating circumstances, “justify the imposition” of that term. A single aggravating

circumstance thus may be insufficient for a sentencing court to conclude that the upper

term is justified under amended section 1170, subdivision (b). We therefore respectfully 5 disagree with Flores. (See People v. Wandrey (2022) 80 Cal.App.5th 962, 982

(Wandrey) [disagreeing with Flores and following Lopez]; Zabelle, supra, 80

Cal.App.5th at pp. 1113-1114 [agreeing with Lopez but “fram[ing] the issue somewhat

differently” while noting “[b]oth our approach and the Lopez court’s approach are the

same in terms of outcomes”]; People v. Dunn (2022) 81 Cal.App.5th 394 (Dunn)

[disagreeing with Flores], review granted Oct. 12, 2022, S275655.)

Wandrey, citing Lopez, stated the appropriate test slightly differently. (Wandrey,

supra, 80 Cal.App.5th at p. 982.) The reviewing court asks whether it was “certain the

jury would have found beyond a reasonable doubt the aggravating circumstances relied

on by the court and whether the trial court would have exercised its discretion in the same

way if it had been aware of the statutory presumption in favor of the middle term.”

(Ibid.)

5 We also note that a different panel from the Flores court later declined to follow Flores and followed Lopez. (People v. Ross (2022) 86 Cal.App.5th 1346, 1354.)

17 In Zabelle, the Third District explained it “agree[d] in principle” with Lopez but

had a “very minor” “quibble” with its test: “[S]imilar to Lopez, we also apply a two-step

process when evaluating for prejudice in these circumstances, with the first step 6 7 evaluating for Chapman error[ ] . . . and the second step evaluating for Watson[ ] error.

But unlike the Lopez court, we find a reviewing court must always evaluate for Watson

error before concluding that the trial court’s error was harmless.” (Zabelle, supra, 80

Cal.App.5th at p. 1113.)

The Fifth District agreed with Lopez’s two-step analysis, but disagreed on the

appropriate standard of review at the first step. (Dunn, supra, 81 Cal.App.5th at p. 408.)

The court was “unconvinced that the Chapman standard of harmless error—applicable to

errors implicating federal constitutional rights—must be applied to all aggravating

circumstances in the Lopez court’s first step.” (Ibid.) The court noted that only one

aggravating circumstance must be proved beyond a reasonable doubt under Sandoval and

that Lopez relied on only section 1170, subdivision (b) as authority for its holding that

“Chapman applies to every factor.” (Ibid.)

Dunn thus found that “Flores sets too low a standard for harmlessness and Lopez

too high” and thus adopted “a version of the standard articulated in Lopez, modified to

6 See Chapman v. California (1967) 386 U.S. 18 (Chapman) [an error of federal law require reversal unless it is harmless beyond a reasonable doubt].) 7 See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [errors of state law require reversal only if it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].)

18 incorporate Watson in the first step.” (Dunn, supra, 81 Cal.App.5th at p. 409.) Dunn

articulated the appropriate test as follows: “The reviewing court determines (1)(a)

beyond a reasonable doubt whether the jury would have found one aggravating

circumstance true beyond a reasonable doubt and (1)(b) whether there is a reasonable

probability that the jury would have found any remaining aggravating circumstance(s)

true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial

court would have been proved to the respective standards, any error was harmless. If not,

the reviewing court moves to the second step of Lopez, (2) whether there is a reasonable

probability that the trial court would have imposed a sentence other than the upper term

in light of the aggravating circumstances provable from the record as determined in the

prior steps. If the answer is no, the error was harmless. If the answer is yes, the

reviewing court vacates the sentence and remands for resentencing consistent with

section 1170, subdivision (b).” (Dunn, supra, at pp. 409-410, fn. omitted.)

In our view, the problem with these cases is that they do not properly account for

our Supreme Court’s decision in People v. Gutierrez (2014) 58 Cal.4th 1358, 1382

(Gutierrez), a case defendant’s counsel relied on heavily at oral argument. Although

Lopez cited and purportedly applied Gutierrez, we conclude below that it did not do so

properly. (See Lopez, supra, 78 Cal.App.5th at p. 467.) The other cases did not cite

Gutierrez.

In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the United States Supreme

Court held that mandatory life without parole (LWOP) sentences for minors violate the

19 Eighth Amendment. In Gutierrez, our Supreme Court considered whether a judicially

created presumption that juvenile offenders convicted of special circumstance murder

should receive LWOP sentences under section 190.5, subdivision (b), remained valid in

light of Miller. (Gutierrez, supra, 58 Cal.4th at p. 1360.) Before Gutierrez, the

presumption created a preference for an LWOP sentence, thereby limiting the trial court’s

discretion to impose a more lenient sentence. (Id. at pp. 1381-1381.)

Our Supreme Court concluded there was no such presumption in section 190.5,

subdivision (b), but found that the statute remained constitutional after Miller.

(Gutierrez, supra, 58 Cal.4th at pp. 1360-1361.) The court went on to explain that

sentencing courts had discretion to impose an LWOP sentence on juvenile offenders

convicted of special circumstances murder under section 190.5, “with no presumption in

favor” of an LWOP sentence, but that the court had to consider various circumstances

outlined in Miller. (Ibid.)

The court then considered the proper disposition given that this change in the law

applied retroactively and the two defendants in Gutierrez had been sentenced when the

purported presumption in section 190.5, subdivision (b) was the “prevailing authority.”

(Gutierrez, supra, 58 Cal.4th at p. 1390.) The Gutierrez court explained that sentencing

decisions must be made with the sentencing court’s “‘informed discretion,’” and a court

that is unaware of the scope of its discretion cannot exercise “‘informed discretion.’”

(Ibid.) Our Supreme Court held that remand is appropriate “[i]n such circumstances”

unless the record “‘clearly indicate[s]’” that the sentencing court would have imposed the

20 same sentence even if it knew of and exercised its informed discretion. (Ibid.) The

record did not clearly indicate that the sentencing courts “would have imposed the same

sentence had they been aware of the full scope of their discretion” and knew that there

was no presumption in favor of an LWOP sentence in section 190.5, subdivision (b).

(Ibid.) As a result, the Gutierrez court remanded for resentencing. (Ibid.)

S.B. 567’s amendments to section 1170 present a situation analogous to the one in

Gutierrez. As amended, section 1170, subdivision (b)(1) and (b)(2) expressly provide a

presumption in favor of a middle term. Like the presumption at issue in Gutierrez, these

statutory amendments circumscribe the sentencing court’s discretion. They mandate a

middle term unless certain conditions apply, just like the presumption disapproved of by

Gutierrez limited the sentencing court’s discretion to impose a sentence other than an

LWOP term.

The various tests articulated above do not properly consider Gutierrez. Flores

says any S.B. 567 error is harmless if the jury would have found at least one aggravating

circumstance that the trial court relied on to impose an upper term true beyond a

reasonable doubt. While rejecting Flores, the first step of Lopez’s two-part test says any

S.B. 567 error is harmless if a jury would have found true beyond a reasonable doubt all

of the aggravating circumstances the trial court relied on in imposing the upper term.

Dunn modified this first step and says any S.B. 567 error is harmless if the jury would

have found one aggravating circumstance true beyond a reasonable doubt and it is

reasonably probable the jury would have found any other aggravating circumstances true.

21 In short, all three tests allow reviewing courts to find S.B. 567 error harmless only

if the trial court could have lawfully imposed an upper term based on what a jury might

have found true. But because amended section 1170, subdivision (b) affected the scope

of a sentencing court’s discretion, reviewing courts must determine whether the trial

court would have imposed the same sentence in light of its narrowed discretion imposed

by the new statute. (See Gutierrez, supra, 58 Cal.4th at p. 1391.)

Lopez seemingly recognized this principle when discussing and applying the

second part of its test. (Lopez, supra, 78 Cal.App.5th at p. 467.) The court remanded for

resentencing because the record did not “clearly indicate that the trial court would have

exercised its discretion to impose an upper term based on an aggravating factor relating to

Lopez’s prior convictions.” (Id. at p. 468.) But that is a different, more demanding

standard than the second part of Lopez’s test, which asks only whether it is reasonably

probable that the trial court would have imposed the same sentence “if it had recognized

that it could permissibly rely on only a single one of the aggravating factors, a few of the

aggravating factors, or none of the aggravating factors, rather than all of the factors on

which it previously relied.” (Id. at p. 467, fn. 11.)

In short, reviewing the trial court’s sentencing decisions for prejudice under

Watson at Lopez’s step two does not answer whether the trial court would have imposed

an upper term under amended section 1170, subdivision (b). This cannot be answered by

determining whether the trial court’s reliance on one or more aggravating circumstances

was harmless. Whether a jury would have found true all of the aggravated circumstances

22 the trial court relied on true beyond a reasonable doubt (Lopez step one) does not answer

whether the trial court would have imposed an upper term under amended section 1170,

subdivision (b)’s new presumption in favor of a middle term. It answers only whether the

sentence is constitutionally valid. (See Sandoval, supra, 41 Cal.4th at pp. 838-839; see

also People v. Black (2007) 41 Cal.4th 799, 812.) Nor does asking at Lopez step two

“whether we can be assured that the trial court would have exercised its discretion to

impose the upper term based on a single permissible aggravating factor, or even two or

three permissible aggravating factors . . . the court originally relied on both permissible

and impermissible factors in selecting the upper term.” (Lopez, supra, 78 Cal.App.5th at

p. 467.)

As Gutierrez teaches, we may find that a sentencing court would have imposed an

upper term under amended section 1170, subdivision (b)’s presumption for the middle

term (and thus affirm the sentence without remanding) only if the record clearly indicates

that the court would have imposed an upper term under its new, circumscribed discretion.

Lopez thus did not ask the right question when, applying Gutierrez, it concluded

reviewing courts must determine whether the record clearly indicates that the trial court

would have imposed an upper term based on one or more aggravating factors that a jury

would have found true beyond a reasonable doubt. (Lopez, supra, 78 Cal.App.5th at pp.

467-468.)

Defendants are entitled to sentencing decisions made in the “informed discretion”

of the trial court. This requires a sentencing court to be aware of the full scope of its

23 discretion. A change in a mandatory sentencing presumption alters the sentencing court’s

discretion. For instance, the Gutierrez decision expanded a trial court’s discretion to

impose a sentence other than LWOP on certain juvenile offenders by eliminating a

judicially imposed presumption that those offenders should receive an LWOP term.

Amended section 1170, subdivision (b) restricts a trial court’s discretion to impose an

upper term in a way that did not exist under the former version of the statute. The

imposition of an upper term under former section 1170, subdivision (b) thus does not

constitute an exercise of the trial court’s informed discretion under amended section

1170, subdivision (b). Gutierrez thus directs us to remand for resentencing unless the

record clearly indicates that the trial court would have imposed the same sentence under

the new law.

To summarize, there are two questions the reviewing court must ask to determine

whether remanding for resentencing under amended section 1170, subdivision (b) is

appropriate. First, we must ask whether a defendant could still lawfully be sentenced to

an upper term under federal and state law. This requires us to conclude that the jury

would have found at least one aggravating circumstance true beyond a reasonable doubt.

(See Sandoval, supra, 41 Cal.4th at pp. 838-839; Zabelle, supra, 80 Cal.App.5th at pp.

1111-1112.) If the answer to that question is no, then the sentence is invalid and must be

vacated, and the matter remanded for resentencing. (See Sandoval, supra, at pp. 838-

839; Zabelle, supra, at pp. 1111-1112.) But if the answer to that question is yes, we ask

whether the trial court would impose the same sentence in its informed discretion under

24 amended section 1170, subdivision (b). To answer that question, we must apply

Gutierrez and ask whether the record clearly indicates that the trial court would have

imposed the same sentence under the new law.

Applying this two-part test here, we conclude remand is appropriate. The trial

court found there were no mitigating circumstances while finding there were three

aggravating circumstances: (1) the victims were “particularly vulnerable,” (2) the manner

defendant carried out the offenses indicated “criminal sophistication and

professionalism,” and (3) he engaged in violent conduct that indicated a serious danger to

society. (Cal. Rules of Court, rule 4.421(a)(3), (a)(8), (b)(1).) We cannot find beyond a

reasonable doubt that a jury would have found any of these three true beyond a

reasonable doubt.

“‘[A] “particularly vulnerable” victim is one who is vulnerable “in a special or

unusual degree, to an extent greater than in other cases.”’” (People v. Esquibel (2008)

166 Cal.App.4th 539, 558.) “‘Vulnerability means defenseless, unguarded, unprotected,

accessible, assailable, one who is susceptible to the defendant’s criminal act.’” (People v.

DeHoyos (2013) 57 Cal.4th 79, 154.) A victim is considered particularly vulnerable

“where the age or physical characteristics of the victim, or the circumstances under which

the crime is committed, make the defendant’s act especially contemptible.” (People v.

Bloom (1983) 142 Cal.App.3d 310, 321-322.)

“In the jargon of football players,” an attack on a particularly vulnerable victim is

“a cheap shot.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.) Examples of

25 “particularly vulnerable victims” thus include individuals attacked while asleep (People

v. Loudermilk (1987) 195 Cal.App.3d 996) or unconscious (People v. Ramirez (2006) 143

Cal.App.4th 1512), elderly victims who live alone attacked at home (People v. Alvarado

(2001) 87 Cal.App.4th 178), and victims of gross vehicular manslaughter (People v.

Nicolas (2017) 8 Cal.App.5th 1165).

Although the People highlight evidence suggesting that A.W., T.W., and Jane Doe

were particularly vulnerable victims, there was also evidence suggesting that they were

not. After meeting defendant, A.W. engaged in prostitution for another pimp and for

herself. Jane Doe denied that she worked for any pimp, including defendant. T.W.

similarly testified that she engaged in prostitution for herself only, not defendant, and

denied that she ever gave him money she earned from her sex work. From this evidence,

a reasonable jury could conceivably conclude that A.W., T.W., and Jane Doe were not

unusually defenseless against defendant, but rather voluntarily engaged in prostitution.

As the trial court put it, the victims were “streetwise.” It is thus reasonably probable that

a jury might not have found beyond a reasonable doubt that they were particularly

vulnerable victims. (See Sandoval, supra, 41 Cal.4th at p. 841 [remanding in part

because the record did not “reflect such a clear-cut instance of victim vulnerability that

we confidently can conclude the jury would have made the same findings . . . .”];

Wandrey, supra, 80 Cal.App.5th at pp. 982-983 [remanding in part because jury could

find that sexually abused 12-year-old girl was not particularly vulnerable].)

26 We are unaware of any published case that considers the aggravated circumstance

that a defendant’s conduct exhibited “criminal sophistication and professionalism.”

Although some evidence suggested that defendant acted “professionally” in that he

organized and directed the victims’ schedules and daily quotas, nothing about his conduct

was particularly sophisticated. Defendant committed his offenses almost entirely by use

of force and violence, not sophisticated methods. As defense counsel argued at

sentencing, this was a relatively routine pimping case. A jury therefore could rationally

find that defendant’s conduct did not exhibit criminal sophistication or professionalism.

We are likewise unaware of any published case that meaningfully considers the

aggravated circumstance of a defendant engaged in “violent conduct that indicated a

serious danger to society.” This uncertainty is compounded by the fact that what

constitutes “violent conduct that indicated a serious danger to society” is vague and

subjective. (See People v. Sherman (2022) 86 Cal.App.5th 402 [finding the circumstance

requires a “subjective, qualitative determination[]”].) Our Supreme Court has observed

that “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.” (Sandoval, supra, 41

Cal.4th at p. 840.) Given the ambiguity inherent in this aggravated circumstance, we

cannot conclude beyond a reasonable doubt that the jury would have found it true beyond

a reasonable doubt.

27 Because we are uncertain that a jury would have found any of the aggravated

circumstances the trial court relied on true beyond a reasonable doubt, defendant’s

sentence is invalid under amended section 1170, subdivision (b). (See Sandoval, supra,

41 Cal.4th at p. 838; Zabelle, supra, 80 Cal.App.5th at p. 1111.) As a result, we need not

turn to the second part of our test, but we elect to do so.

The court prefaced its ruling by stating that it intended to sentence defendant “to

the maximum time permitted by law” and had “no problem” with doing so. The court

described defendant as “a rather vicious predator who was proud of his profession,” who

showed an “absolute disregard for the physical, mental, and emotional well-being of the

girls involved.” In the court’s view, defendant treated the victims “as nothing more than

objects to be used for his financial enrichment and his own pleasure.” The court was thus

“shocked” at defendant’s domination and “utter control” over the victims, as well as his

treating them “without any care . . . other than with what they could do for him” for an

extended period of time. His behavior, according to the trial court, was “beyond the

bounds of a decent society” and showed that he was a “serious danger to society.”

The court also found that there were no factors in mitigation, particularly given

that there was “nothing that indicates” that defendant “had remorse for what happened to

these girls,” he tried to “get them to recant their testimony,” and he “did everything he

could to try to get out of trouble.” The trial court thus found that the upper terms were

“appropriate.”

28 Although the trial court prefaced its ruling by stating that it intended to sentence

defendant “to the maximum time permitted by law” and had “no problem” with doing so,

nothing in the trial court’s statements clearly indicates that it would have imposed an

upper term under amended section 1170, subdivision (b), even if a jury found all three

aggravated circumstances true. The trial court imposed an upper term based on three

aggravated circumstances, but it did not expressly give any particular weight to any of

them. And although the trial court expressed serious disdain for defendant’s conduct, we

cannot say for certain that the court would have imposed the same sentence under

amended section 1170, subdivision (b)’s presumption for a middle term. “Some degree

of speculation would necessarily be required for us to conclude . . . that the trial court

would have exercised its sentencing discretion in the same way if it had taken the

statutory presumption in favor of the middle term into account.” (Wandrey, supra, 80

Cal.App.5th at p. 983.) Because the record does not clearly indicate that the trial court

would have imposed the same sentence under amended section 1170, subdivision, we

conclude remand for resentencing under that statute is appropriate.

IV.

DISPOSITION

The sentence on count 9 is ordered reduced to a 12-year term. As modified, the

judgment of conviction is affirmed. Defendant’s sentence is vacated and the matter for

resentencing consistent with amended section 1170, subdivision (b). After resentencing

defendant, the clerk of the superior court is directed to prepare an amended abstract of

29 judgment and forward a certified copy of the amended abstract to the Department of

Corrections and Rehabilitation.

CODRINGTON

J.

I concur:

MILLER

Acting P. J.

30 [People v. Lewis, E076449]

RAPHAEL, J., Concurring.

I respectfully concur separately because I would follow People v. Lopez (2022) 78

Cal.App.5th 459 (Lopez) in remanding for resentencing. I join the opinion and its result

except for the portions of section III.C that apply analysis deviating from Lopez.

When Brandon Edward Lewis was sentenced, it was within the trial court’s

“sound discretion” to choose a sentence among the lower, middle, and upper term that

“best serves the interests of justice.” (Penal Code § 1170, former subd. (b).) Also, a

defendant had no right to a jury determination of the facts that the court relied on in

choosing the upper term. (People v. Sandoval (2007) 41 Cal.4th 825, 844, 847.) The

court sentenced Lewis to the upper terms for some of his crimes after finding three

aggravating factors listed in California Rules of Court, rule 4.421.

Later, Senate Bill No. 567, effective January 1, 2022, made the middle-term

sentence presumptive and required jury findings (or stipulated facts) for each aggravating

factor that a trial court relies on to select an upper-term sentence. (Penal Code § 1170,

subd. (b)(2).) A court may still find the fact of a prior conviction without a jury. (Ibid.)

The change in law applies retroactively, so we must determine whether it was

harmless for the court to apply the upper term without jury findings on the underlying

facts and without treating the middle-term as presumptive. Lopez correctly holds that we

must first decide whether we can “conclude beyond a reasonable doubt that a jury would

have found true beyond a reasonable doubt every factor on which the court relied. . . .”

(Lopez, supra, 78 Cal.App.5th at p. 466.)

1 Lopez’s first step is correct because, now that our state requires a jury finding for

any fact that the trial court relies on to impose an upper-term sentence, the federal

constitutional right to a jury determination attaches to every such finding. (See Patterson

v. New York (1977) 432 U.S. 197, 211, fn.12 [federal jury right “has always been

dependent on how a State defines the offense that is charged in any given case”]; People

v. Rivera (2019) 7 Cal.5th 306, 333 [federal jury right on each element charged].) As the

law, applied retroactively, makes it constitutional error for the trial court to have relied on

facts not found by a jury, Chapman v. California (1967) 386 U.S. 18 requires that we

determine beyond a reasonable doubt whether each error was harmless.

The majority correctly holds that we cannot conclude beyond a reasonable doubt

that any of the three factors would be found by a jury. (Maj. opn., ante, at pp. 25-28.)

We thus reverse, as we cannot be sufficiently certain that the jury will provide any factual

basis to select an upper term. That ends this matter here. The People may prove

aggravating factors to a jury on remand. If they succeed, the trial court may consider

whether to base upper-term sentences on the factors that the jury found.

We need not discuss Lopez’s second step. The second step addresses what the

trial court would have done, not what a jury would find. We would need to reach the

second step if we concluded that a jury would have found any of the aggravating factors.

Then, we could uphold the sentence if we could find that “the trial court would

nevertheless have exercised its discretion to select the upper term if it had recognized that

it could permissibly rely on” only the factors that we could conclude would have been

found by a jury, with the middle term presumptive. (See Lopez, supra, 78 Cal.App.5th at

2 p. 467, fn.11). Consistent with how we review most non-constitutional errors, Lopez

applies to this determination the familiar People v. Watson (1956) 46 Cal.2d 818, 836

(Watson) standard that asks whether the result more favorable to the defendant is

“reasonably probable.” (Lopez, at pp. 467 & 467 fn.11.)

The majority opinion applies a different two-part test than Lopez applies. It

couches the second step in a manner guided by People v. Gutierrez (2014) 58 Cal.4th

1354 (Gutierrez) and asks “whether the record clearly indicates that the trial court would

have imposed the same sentence under the new law.” (Maj. opn., ante, at p. 25.)

The “clear indication” standard applies when a trial court makes a sentencing

decision without “awareness of the full scope of discretion” that it has. (Gutierrez, supra,

58 Cal.4th 1354, 1391.) That standard would apply when a retroactive change in law

bestows new sentencing discretion on a trial court, such as the discretion to strike an

enhancement. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) In that

situation, the appellate court may have no relevant record to review, as the trial court

would not yet have exercised its discretion. The clear indication standard consequently

requires an affirmance to be grounded in record evidence, rather than in speculation.

In contrast, Senate Bill No. 567 applies retroactively to trial courts that did

exercise discretion. Because of the change of law, these trial courts may have relied to

some extent on an improper factor. When a defendant claims that a trial court relied on

inapplicable factors in support of a sentencing choice, the “reasonable probability”

standard applies. (People v. Scott (1994) 9 Cal.4th 331, 354-355; see People v.

McDaniels (2018) 22 Cal.App.5th 420, 426 [clear indication standard inapplicable to

3 deciding whether a court “is likely to repeat a choice it already made”].) Like most

harmlessness inquiries, this review of a court ruling is inherently an analysis of what the

record indicates. Lopez correctly applies the Watson “reasonable probability” standard to

its second-step determination, though we need not reach that step here because reversal is

required after the first step.

RAPHAEL

J.

4