You were found guilty of more than one charge, and now the judge is talking about the upper term. That is the highest of the three prison terms California sets for many crimes. Can the judge give you that top number based on facts the jury found about a different charge?
A new California appeals court ruling says no. In People v. Hirschfield, filed October 26, 2026, the court held that a judge cannot impose an upper term sentence for one crime based on aggravating factors found true for a different crime. The facts that justify a higher sentence have to be proven for the count being sentenced.
What the Upper Term Means in California
Many California crimes carry three possible terms: a lower term, a middle term, and an upper term. The law starts in the middle. Penal Code section 1170, subdivision (b)(1), says the court “shall, in its sound discretion, order imposition of a sentence not to exceed the middle term,” unless an exception applies.
The exception is in subdivision (b)(2). A judge “may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime” that justify it. The facts behind those circumstances must be “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.” In other words, you agreed to them, or a jury (or a judge, if you chose a trial without a jury) found them true under the highest standard of proof.
Aggravating Factors Are the Facts That Push a Sentence Up
An aggravating factor is a fact that makes a crime look more serious than usual. California Rules of Court, rule 4.421, lists many of them. A few examples from that rule:
- The crime involved great violence, great bodily harm, or a high degree of cruelty, viciousness, or callousness.
- The defendant was armed with or used a weapon at the time of the crime.
- The victim was particularly vulnerable.
- The crime showed planning, sophistication, or professionalism.
Some of these factors are fairly simple to prove. Others depend on judgment calls, like whether conduct was “callous” or whether a person is a “serious danger to society.” That difference mattered in this case.
What Happened in People v. Hirschfield
A Sacramento County jury convicted the defendant of first degree murder and of being a felon in possession of a firearm. The jury also found three aggravating factors true. But the jury instructions and the verdict form tied those three factors to the murder count only. The jury was told it could consider them only if it first found the defendant guilty of murder.
At sentencing, the trial judge relied on those three jury findings, at least in part, to give the upper term of three years on the separate gun possession count. The defendant appealed. The Court of Appeal, Third Appellate District, agreed with him in a published opinion by Justice Hull, with Presiding Justice Earl and Justice Robie concurring.
Why One Charge’s Findings Cannot Carry Over to Another
The court read section 1170 closely. The statute speaks of “circumstances in aggravation of the crime.” The court read that to mean the crime being sentenced. In the court’s words, “a trial court cannot impose an upper term sentence for one crime based upon aggravating factors found to be true for a different crime.”
The court also pointed out a second problem. First degree murder is not sentenced under the three-term system at all, so the court said the aggravating factors “should not have been connected to the murder charge at all.” The result was a set of jury findings that could not support the higher term on either count.
The Error Was Not Harmless
A sentencing mistake does not always lead to a new hearing. The appeals court asks whether the mistake made a difference. Here, the court applied the test from the California Supreme Court’s decision in People v. Lynch (2024) 16 Cal.5th 730. As the Hirschfield opinion describes it, the error is prejudicial unless the appeals court can conclude beyond a reasonable doubt that a jury would have found true every aggravating fact the trial judge relied on.
The court could not say that. The jury never decided these factors for the gun count. Two of them, great violence or cruelty and serious danger to society, rest on what the court called a “somewhat vague or subjective standard.” Guessing how a jury would have decided them would take “some degree of speculation.” So the court reversed and sent the case back for a full resentencing.
What a Full Resentencing Does and Does Not Mean
A full resentencing is a new sentencing hearing on all counts. It is not a promise of a shorter sentence. The Hirschfield court gave the prosecution a chance to retry the aggravating facts as they relate to the gun count. On remand, the trial court may also rely on properly proven aggravating facts, including prior convictions or facts the jury necessarily found.
The defendant had also asked the court to strike a firearm enhancement under Penal Code section 1385. Because the whole sentence goes back to the trial court, the appeals court did not decide that issue. The opinion says he may raise it again at the new hearing. If you want a broader look at when a judge can revisit a sentence, our post on partial versus full resentencing explains a related California Supreme Court ruling.
Practical Steps if You Are Facing Sentencing on Several Counts
This ruling gives people a specific question to ask before and during sentencing. These steps are general information, not advice about any one case:
- Read the charging document. See which aggravating factors the prosecution alleged, and for which counts.
- Read the jury instructions and the verdict form. Check whether each factor was tied to the specific count the judge plans to sentence on the upper term.
- Listen to the reasons the judge gives on the record. Section 1170, subdivision (b)(5), requires the court to “set forth on the record the facts and reasons for choosing the sentence imposed.”
- Raise the objection at sentencing. In Hirschfield, no objection was made, and the court reached the issue only because the defendant also argued his lawyer was ineffective for not raising it. Do not count on that path.
Some facts also push the other way. Under section 1170, subdivision (b)(6), the court generally must choose the lower term if childhood or other trauma, youth, or being a victim of intimate partner violence or human trafficking was “a contributing factor in the commission of the offense,” unless the court finds the aggravating circumstances outweigh the mitigating ones so that the lower term “would be contrary to the interests of justice.”
Common Questions About Upper Term Sentences
Can the judge use my prior record without a jury?
Often, yes. Section 1170, subdivision (b)(3), lets the court consider prior convictions “based on a certified record of conviction without submitting the prior convictions to a jury.” That paragraph does not apply to enhancements based on prior convictions.
Does this ruling apply to plea deals?
The case came from a jury trial. The statute also allows an upper term when the defendant stipulated to the facts, which can happen in a plea. Whether a stipulation in a given plea covers a given count depends on the exact words of that plea, so read it carefully.
Is this ruling final?
The opinion was certified for publication, so other California courts can cite it. A party can still ask the California Supreme Court to review it. Check its status before relying on it. Judges can also recall and resentence in some situations, and prosecutors sometimes challenge a judge who offers an indicated sentence, so sentencing law keeps moving.
When to Call Mines Law Firm
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Sources: People v. Hirschfield (Cal. Ct. App., Third Dist., No. C103080, filed October 26, 2026); Penal Code section 1170; California Rules of Court, rule 4.421. Checked November 12, 2026.
ATTORNEY ADVERTISING. This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and prior results do not guarantee a similar outcome. Responsible attorney: Jasmine Mines (State Bar No. 331135), Mines Law Firm, 468 N. Camden Drive, Suite 200, Beverly Hills, CA 90210.