Mar. 2, 2023 – People v. Lewis (4th Dist., Div. 2, E076449)

The Court of Appeal sets out a new prejudice test for SB 567 error. First, the court must determine whether the upper term could be lawfully imposed, which requires the court to assess whether the record shows beyond a reasonable doubt that the jury would have found at least one aggravating circumstance true. Second, if the answer to this question is yes, the court “must apply [People v. Gutierrez (2014) 58 Cal.4th 1358] and ask whether the record clearly indicates that the trial court would have imposed the same sentence under the new law.” The concurring opinion disagrees with the second step. 

Note: This issue is currently pending in the California Supreme Court in People v. Lynch (S274942).