factfinding requirement in California

2026(See People v. Dozier 116 Cal.App.5th 700 , 713 [“the plain language of section 1172.75, subdivision (b)(4), creates an exception to the heightened factfinding requirements where the upper term was originally imposed”]; People v. Mathis (2025) 111 Cal.App.5th 359 , 372 [“the heightened factfinding requirement” in section 1172.75, subdivision (d)(2), “does not apply where the defendant originally received an upper term 5 sentence”], review granted Aug. 13, 2025, S291628; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 , 458, 466-467 [section 1172.75, subdivision (d)(4), unambiguously “car

2026(Dozier, at p. 711.) Thus, the latest section 1170, subdivision (b) reemployed the presumption in favor of the midterm, which may only be overcome “ ‘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 6 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.’ ” (Dozier, at p. 711) Nonetheless, Dozier determined that section 1172.75, subdivision (d)(4) created an exception

2022However, “[t]he major participant and reckless indifference findings the trial court made based solely on the record evidence entail the weighing of evidence, drawing of inferences, and assessment of credibility that should be left to the factfinding hearing process contemplated by section 1170.95, subdivision (d).” (People v. Duchine (2021) 60 Cal.App.5th 798 , 816; Drayton, supra, 47 Cal.App.5th at p. 982.) At the prima facie review stage of a section 1170.95 proceeding, such judicial factfinding is prohibited.

2022(People v. Duchine (2021) 60 Cal.App.5th 798 , 816 [“[t]he major participant and reckless indifference findings the trial court made based solely on the record evidence entail[ed] the weighing of evidence, drawing of inferences, and assessment of credibility that should be left to the factfinding hearing process contemplated by section [1172.6], subdivision (d).”]; People v. Drayton (2020) 47 Cal.App.5th 965 , 982 (Drayton).) As the People concede, the trial court erred in making a finding as a matter of law without first conducting an evidentiary hearing.

2022(See People v. Clayton (2021) 66 Cal.App.5th 145 , 154, review denied Sept. 15, 2021 [superior court erred in denying section 1170.95 petition at prima facie stage; “‘The major participant and reckless indifference findings the trial court made based solely on the record evidence entail the weighing of evidence, drawing of inferences, and assessment of credibility that 11 should be left to the factfinding hearing process contemplated by section 1170.95, subdivision (d)’”]; accord, People v. Harrison (2021) 73 Cal.App.5th 429 , 491; People v. Montes (2021) 71 Cal.App.5th 1001 , 1008; Drayton, s

2022(People v. Duchine (2021) 60 Cal.App.5th 798 , 816 [“[t]he major participant and reckless indifference findings the trial court made based solely on the record evidence entail[ed] the weighing of evidence, drawing of inferences, and assessment of credibility that should be left to the factfinding hearing process contemplated by section [1172.6], subdivision (d).”]; People v. Drayton (2020) 47 Cal.App.5th 965 , 982 (Drayton).) As the People concede, the trial court erred in making a finding as a matter of law without first conducting an evidentiary hearing.

2026(Compare People v. Lua (2026) 121 Cal.App.5th 472 , 477-479 [holding § 1172.75, subd. (d)(4) creates an exception to the heightened factfinding requirement of § 1170]; People v. Dozier (2025) 116 Cal.App.5th 700 , 711-716, review granted Feb. 11, 2016, S294597 [same]; Mathis, supra, 111 Cal.App.5th 359 , 369-374 [narrower holding that heightened factfinding is not required when trial court elects to reimpose an upper term sentence that complied with Sixth Amendment when originally imposed]; Brannon-Thompson, supra 104 Cal.App.5th at pp. 466-467 [holding plain language of § 1172.75, subd. (d)(4

2026(See People v. Dozier 116 Cal.App.5th 700 , 713 [“the plain language of section 1172.75, subdivision (b)(4), creates an exception to the heightened factfinding requirements where the upper term was originally imposed”]; People v. Mathis (2025) 111 Cal.App.5th 359 , 372 [“the heightened factfinding requirement” in section 1172.75, subdivision (d)(2), “does not apply where the defendant originally received an upper term 5 sentence”], review granted Aug. 13, 2025, S291628; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 , 458, 466-467 [section 1172.75, subdivision (d)(4), unambiguously “car

2026It is the requirement of additional factfinding that brings the Sixth Amendment into play.’ (Lynch, supra, 16 Cal.5th at p. 759; see Gonzalez, at p. 330.) In light of these constitutional concerns, Gonzalez construed section 1172.75, subdivision (d)(4), to ‘restrict the scope of defendants eligible to receive the upper term at resentencing to those who previously received the upper term, instead of creating a condition or exception independently justifying the imposition of the upper term.’ (Gonzalez, at p. 329.) According to Gonzalez, ‘a defendant would be eligible for the upper term but coul

2025It is the requirement of additional factfinding that brings the Sixth Amendment into play.” (Lynch, supra, 16 Cal.5th at p. 759; see Gonzalez, at p. 330.) In light of these constitutional concerns, Gonzalez construed section 1172.75, subdivision (d)(4), to “restrict the scope of defendants eligible to receive the upper term at resentencing to those who previously received the upper term, instead of creating a condition or exception independently justifying the imposition of the upper term.” (Gonzalez, at p. 329.) According to Gonzalez, “a defendant would be eligible for the upper term but coul

2026(See People v. Dozier 116 Cal.App.5th 700 , 713 [“the plain language of section 1172.75, subdivision (b)(4), creates an exception to the heightened factfinding requirements where the upper term was originally imposed”]; People v. Mathis (2025) 111 Cal.App.5th 359 , 372 [“the heightened factfinding requirement” in section 1172.75, subdivision (d)(2), “does not apply where the defendant originally received an upper term 5 sentence”], review granted Aug. 13, 2025, S291628; People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 , 458, 466-467 [section 1172.75, subdivision (d)(4), unambiguously “car

2026(Dozier, at p. 711.) Thus, the latest section 1170, subdivision (b) reemployed the presumption in favor of the midterm, which may only be overcome “ ‘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 6 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.’ ” (Dozier, at p. 711) Nonetheless, Dozier determined that section 1172.75, subdivision (d)(4) created an exception

1993Rather, the factfinding hearing pits the State directly against the parents.’ (Id. at p. 759 [ 71 L.Ed.2d at p. 610 ].) Until the state has established parental unfitness it cannot assume that the interests of the child and his or her parents diverge and until such time parent and child share an interest in preventing an erroneous termination of the relationship.

1993Rather, the factfinding hearing pits the State directly against the parents.' ( Id. at p. 759 [ 71 L.Ed.2d at p. 610 ].) Until the state has established parental unfitness it cannot assume that the interests of the child and his or her parents diverge and until such time parent and child share an interest in preventing an erroneous termination of the relationship. ( Id. at p. 760 [ 71 L.Ed.2d at p. 611 ].) The Santosky court concluded that the balance of private interests strongly favored heightened procedural protections. ( Ibid. ) "Concerning the second factor, the risk of error in the chose

2022Legislative Policy Elijah S. held the Legislature “was interested in opening up to public view the workings of the entire juvenile court and child protective system for the purpose of exposing deficiencies therein, and thereby enabling their correction.” (Elijah S., supra, 125 Cal.App.4th at p. 1555 ; see maj. opn at p. 26, ante.) The opinion concluded that this legislative purpose “would not be advanced by limiting disclosure of juvenile records to only those generated and maintained by the juvenile court after a minor had already been declared a dependent.” (Id. at p. 1556.) This type of rea

2022Legislative Policy Elijah S. held the Legislature “was interested in opening up to public view the workings of the entire juvenile court and child protective system for the purpose of exposing deficiencies therein, and thereby enabling their correction.” (Elijah S., supra, 125 Cal.App.4th at p. 1555 ; see maj. opn at pp. 15-16, ante.) The opinion concluded that this legislative purpose “would not be advanced by limiting disclosure of juvenile records to only those generated and maintained by the juvenile court after a minor had already been declared a dependent.” (Id. at p. 1556.) This type of

2025(People v. Padilla (2022) 13 Cal.5th 152, 162 .) In accord with most of our sister courts, we find the plain meaning of section 1172.75 to be clear: It creates an exception to the heightened factfinding requirement for imposing upper term sentences.

2025Ameliorative criminal laws are presumed to apply to all nonfinal cases “absent a discernable intent to the contrary.” (People v. Padilla, supra, 13 Cal.5th at p. 162 .) The language of section 1172.75, subdivision (d)(4) evinces a discernable intent not to extend the new heightened factfinding requirement to defendants previously sentenced to an upper term.

2019Code, § 6305, subd. (a)(1), (2).) “Permitting courts to avoid making the required findings . . . risks undermining central policies behind the factfinding requirement . . . ensuring courts do not issue mutual orders as a matter of expediency, or simply because an abused party, in order to get their own protection, yields to their abuser’s request for a mutual order.” (Melissa G., at p. 372.) If the court, however, enters mutual restraining orders “without making the required factual findings, it acts in excess of its jurisdiction and the order is voidable.” (Melissa G., supra, 27 Cal.App.5th a

2019Code, § 6305, subd. (a)(1), (2).) "Permitting courts to avoid making the required findings ... risks undermining central policies behind the factfinding requirement ... ensuring courts do not issue mutual orders as a matter of expediency, or simply because an abused party, in order to get their own protection, yields to their abuser's request for a mutual order." ( Melissa G., at p. 372, 238 Cal.Rptr.3d 127 .) If the court, however, enters mutual restraining orders "without making the required factual findings, it acts in excess of its jurisdiction and the order is voidable." ( Melissa G., sup

2025(E.g., Mathis, supra, 111 Cal.App.5th at p. 374; Brannon-Thompson, supra, 104 Cal.App.5th at p. 466; People v. Bravo (2025) 107 Cal.App.5th 1144 , 1159 [“the trial court was permitted to select upper terms . . . pursuant to section 1172.75(d)(4) because Bravo’s original sentence included upper terms for those counts”]; cf. Gonzalez, supra, 107 Cal.App.5th at p. 333 (conc. opn. of Bromberg, J.).) The opening clause — “[u]nless the court originally imposed the upper term” — states an exception from the rest of the provision, which supplies the general rule that an upper term may be imposed only

2025(See People v. Padilla (2022) 13 Cal.5th 152, 162-163 (Padilla).) But the Legislature is also free to “write statutes that provide for a different or more limited form of retroactivity, or for no retroactivity at all,” and it may “disclaim the application of a new ameliorative law to proceedings that occur after a defendant’s conviction or sentence has been vacated.” (Id., at p. 162; see also Terwilligar, supra, 109 Cal.App.5th at p. 602.) Section 1172.75, subdivision (d)(4), does exactly that.

2025(See People v. Padilla (2022) 13 Cal.5th 152, 162-163 (Padilla).) But the Legislature is also free to “write statutes that provide for a different or more limited form of retroactivity, or for no retroactivity at all,” and it may “disclaim the application of a new ameliorative law to proceedings that occur after a defendant’s conviction or sentence has been vacated.” (Id., at p. 162; see also Terwilligar, supra, 109 Cal.App.5th at p. 602.) Section 1172.75, subdivision (d)(4), does exactly that.

2022(See People v. Clayton (2021) 66 Cal.App.5th 145 , 154, review denied Sept. 15, 2021 [superior court erred in denying section 1170.95 petition at prima facie stage; “‘The major participant and reckless indifference findings the trial court made based solely on the record evidence entail the weighing of evidence, drawing of inferences, and assessment of credibility that 11 should be left to the factfinding hearing process contemplated by section 1170.95, subdivision (d)’”]; accord, People v. Harrison (2021) 73 Cal.App.5th 429 , 491; People v. Montes (2021) 71 Cal.App.5th 1001 , 1008; Drayton, s

2020(See People v. Anthony (2019) 32 Cal.App.5th 1102, 1156-1157 [no Sixth Amendment right to a jury trial in proceedings under section 1170.95].) Its interpretation of the nature of the factfinding hearing to determine ineligibility, however, was correct.

2007(In re Jonique W. (1994) 26 Cal.App.4th 685, 690-691 [ 31 Cal.Rptr.2d 601 ].) In addition, the court must conduct a contested hearing to resolve factual disputes and determine whether the allegations of the supplemental petition are true.

2007(In re Jonique W. (1994) 26 Cal.App.4th 685, 690-691 [ 31 Cal.Rptr.2d 601 ].) In addition, the court must conduct a contested hearing to resolve factual disputes and determine whether the allegations of the supplemental petition are true.

2002Factfinding error must be minimized when such drastic consequences are at stake." ( Id at p. 178, 167 Cal.Rptr. 854 , 616 P.2d 836 .) The burden of proof is not at issue here, but the reasoning of the cases discussing that issue applies equally to the question of the test for harmless error, and is so applied in California decisions.

2002Factfinding error must be minimized when such drastic consequences are at stake." ( Id at p. 178, 167 Cal.Rptr. 854 , 616 P.2d 836 .) The burden of proof is not at issue here, but the reasoning of the cases discussing that issue applies equally to the question of the test for harmless error, and is so applied in California decisions.