by Douglas Ankney

In a matter of first impression, the California Court of Appeal, Second Appellate District, held that a trial court must permit a defendant who exercises the right to a jury trial on aggravating circumstances under Penal Code § 1170(b)(2) the opportunity to argue to the jury what findings it should make on those alleged circumstances. The Court ruled that refusing defense counsel’s request to address the jury on the aggravating factors violated the Sixth Amendment right to the assistance of counsel, and the People failed to prove the error harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). Thus, the Court reversed the jury’s aggravating-circumstance findings and vacated the upper-term sentence on a firearm enhancement.

Background

On the evening of April 15, 2022, Jose Bustamant Cardenas met a buyer at a Long Beach community center to sell a cellphone for $500. The buyer, 15-year-old Joshua Simmons, grabbed the phone and ran. Surveillance footage captured Cardenas emptying his semiautomatic handgun’s magazine at the fleeing Simmons, who was struck six times and died at the scene. Cardenas testified that the area was dark, that he believed Simmons was reaching toward his waistband for a weapon, that he thought Simmons was in his 20s, and that he feared Simmons was not alone. He called 911 shortly after the shooting and agreed to meet police at a nearby gas station.

The jury acquitted Cardenas of murder, convicted him of voluntary manslaughter, and found true a personal firearm-use allegation under § 12022.5(a). Cardenas then asserted his statutory right to a jury trial on three alleged aggravating factors: (1) great violence and callousness, (2) weapon use, and (3) victim vulnerability. Neither party offered additional evidence in the second phase. The trial court denied defense counsel’s request to argue the aggravating factors, instructed the jury, and sent it to deliberate without either side addressing how the instructions applied to the evidence. The jury found all three factors true. The court imposed the middle term of six years for manslaughter but selected the 10-year upper term on the enhancement, relying expressly on the finding that the victim was particularly vulnerable.

Analysis

The Court began its analysis by noting that Senate Bill 567, effective in 2022, rewrote § 1170(b) to permit an upper-term sentence “only when there are circumstances in aggravation of the crime” whose underlying facts have been stipulated to or found true beyond a reasonable doubt by a jury or by a judge in a court trial. People v. Lynch, 552 P.3d 877 (Cal. 2024). The Court stated that because the jury-trial right on aggravating circumstances is so new, no decision had yet addressed whether counsel may argue those factors to the jury.

The Court answered this novel issue by extending a settled principle. Under both Penal Code § 1093(e) and the Sixth Amendment, defense counsel is entitled “to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.” Herring v. New York, 422 U.S. 853 (1975). The Court explained that there is no principled reason to withhold that right from a jury proceeding on aggravating circumstances, and the People offered none.

The People instead invoked the trial court’s broad latitude to control the duration and scope of summation in cases such as People v. Marshall, 919 P.2d 1280 (Cal. 1996), and People v. Simon, 375 P.3d 1 (Cal. 2016). The Court explained that those cases were inapposite because each upheld restrictions that still allowed counsel to make the central point. None endorsed eliminating argument entirely on a subject the jury had to decide. Just as a court could not bar all argument on an element of an offense or an enhancement allegation, it cannot bar all argument on aggravating sentencing factors, the Court ruled.

Cardenas argued that the error was structural, requiring automatic reversal. The Court reviewed the relevant caselaw. Herring reversed without a prejudice inquiry where counsel was denied any summation, and In re William F., 520 P.2d 986 (Cal. 1974), treated the complete denial of closing argument as tantamount to a complete denial of counsel. The Court observed that the Ninth Circuit has gone further, finding structural error where counsel was merely barred from arguing a specific theory. United States v. Miguel, 338 F.3d 995 (9th Cir. 2003); Conde v. Henry, 198 F.3d 734 (9th Cir. 1999). On the other hand, Glebe v. Frost, 574 U.S. 21 (2014), declined in the federal habeas context to hold that Herring clearly established a structural-error rule for the complete denial of closing argument, and People v. Bonin, 758 P.2d 1217 (Cal. 1988), cautioned that error affecting argument short of total denial does not necessarily infringe the right to counsel.

The Court stated that under Lynch, a Sixth Amendment violation concerning aggravating factors “is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence.” The People could not carry that burden. The Court stated that although Simmons was 15, unarmed, and fleeing, those facts may not have been apparent to Cardenas, who testified that the setting was dark, that he believed Simmons was armed and older, and that he feared accomplices. The manslaughter verdict, based on either heat of passion or imperfect self-defense, showed the jurors credited his testimony at least in part and might have been receptive to argument that Simmons was not particularly vulnerable. Thus, the Court concluded that because “there is a reasonable doubt that argument on the aggravating circumstances might have led to a different result, the error in denying Cardenas’s attorney an opportunity to argue the aggravating circumstances was not harmless under Chapman.”

Conclusion

Accordingly, the Court reversed the jury’s findings on the aggravating circumstances and vacated the upper-term sentence on the firearm enhancement. On remand, the People may retry the aggravating circumstances or accept a middle-term sentence on the enhancement. See: People v. Cardenas, 120 Cal. App. 5th 828 (2026).  

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