Full Opinion

Filed 10/26/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) THE PEOPLE, C103080 Plaintiff and Respondent, (Super. Ct. No. 20FE011961) v. MOSES ALEXANDER HIRSCHFIELD, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Sacramento County, Shelleyanne Wai Ling Chang, Judge. Reversed. Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberly A. Donohue, Senior Assistant Attorney General, Darren K. Indermill, Supervising Deputy Attorney General, Caely E. Fallini, Deputy Attorney General, for Plaintiff and Respondent. Defendant Moses Alexander Hirschfield shot and killed Christopher T. on June 21, 2020. A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)) (statutory section references that follow are to the Penal Code unless otherwise stated) in Count I and being a felon in possession of a firearm (§ 29800, subd. (a)(1)) in Count II. As to the murder count, the jury found true that defendant personally discharged a firearm causing death. (§ 12022.53, subd. (d).) The jury also found three aggravating circumstances to be true including that the crime involved great violence, bodily harm, or other acts disclosing a high degree of 1 cruelty, viciousness, or callousness; that defendant was armed with or used a weapon at the time of the commission of the crime; and that defendant had engaged in violent conduct that indicates a serious danger to society. The trial court also found additional aggravating factors to be true in a bifurcated proceeding. Defendant was sentenced to the upper term of three years for the felon in possession of a firearm conviction and two indeterminate terms of 25 years to life each for the murder and firearm enhancement. Defendant challenges this sentence on appeal. First, he claims that the trial court abused its discretion by declining to dismiss the firearm enhancement under section 1385. Second, defendant contends that the trial court prejudicially erred by imposing an upper term sentence for the felon in possession conviction based upon improper aggravating factors. We agree with defendant’s second point and remand for a full resentencing. FACTS AND HISTORY OF THE PROCEEDINGS Murder of Christpher T. Christopher T., a Sacramento-based rap artist known as “Bris,” drove with his girlfriend and a few other people to an AM/PM to get food late in the evening of June 20, 2020. Defendant was already inside the AM/PM when Christopher T. and the others arrived. After taking a few steps inside the store, Christopher T. quickly turned around and returned to his car. Defendant left the store shortly after and got into the driver’s side of a silver Acura. Christopher T. sped off in his car and defendant followed him at speeds of up to 113 miles per hour. A few minutes later, Christpher T. crashed into a power line. He and his girlfriend got out of the car and ran in opposite directions by a nearby drive-thru restaurant. 2 Defendant passed Christpher T.’s crashed car and then made a U-turn near the restaurant where Christpher T. and his girlfriend were running. Defendant parked the car in the road and chased Christpher T. on foot. Defendant shot Christpher T. as he was running. Defendant ran back to his car and drove away. Law enforcement was sent to the location of the shooting around 12:43 a.m. on June 21, 2020. Christpher T. died from a gunshot wound to the head. Defendant was arrested several months later on September 14, 2020. Defendant’s Trial A jury found defendant guilty of first degree murder (§ 187, subd. (a)) in Count I and being a felon in possession of a semiautomatic firearm (§ 29800, subd. (a)(1)) in Count II. As to the murder count, the jury found true that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)). The jury also found the following aggravating factors to be true: (1) that the crime involved great violence, bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) that defendant was armed with or used a weapon at the time of the commission of the crime (rule 4.421(a)(2)); and (3) that defendant had engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)). In a bifurcated proceeding, the trial court also found the following aggravating factors to be true: (1) that defendant sustained prior convictions that are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); (2) that defendant was on felony probation when the underlying murder occurred (rule 4.421(b)(4)); and (3) that defendant’s prior performance on probation, mandatory supervision, post release community supervision or parole was unsatisfactory (rule 4.421(b)(5)). 3 Sentencing Defense counsel asked the trial court to exercise its discretion under section 1385 to strike the firearm enhancement. He also requested that the court impose the lower term for the felon in possession of a firearm conviction due to the mitigating circumstances of defendant’s age and childhood trauma. The trial court “considered and weighed” the mitigating circumstance of defendant’s youth against all six aggravating factors found true by the jury and trial court. The court found that the mitigating factor was outweighed by the aggravating factors. Consequently, the trial court imposed the upper term of three years for the felon in possession conviction. The court also declined to exercise its discretion under section 1385 to strike the firearm enhancement. Defendant was sentenced to a total determinate term of three years plus an indeterminate term of 50 years to life comprised of the upper term of three years for the felon in possession conviction and indeterminate consecutive terms of 25 years to life each for the murder conviction and firearm enhancement. Defendant timely appealed. DISCUSSION I Sentencing Defendant raises two sentencing issues on appeal. First, he argues that the trial court abused its discretion by declining to dismiss or strike his firearm enhancement under section 1385. Second, defendant contends that the trial court prejudicially erred by imposing the upper term sentence for the felon in possession of a firearm conviction because it relied on improper aggravating factors. As we shall explain, we agree with defendant’s second claim. 4 Additional Background In the amended information filed on October 16, 2023, the prosecutor alleged that defendant murdered Christopher T. on June 21, 2020, in Count I and also unlawfully possessed a firearm on the same date in Count II. The prosecutor further alleged eight aggravating factors as to the “above offense(s)” as follows: “(1) That the crime involved great violence, great bodily harm threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness, within the meaning of Penal Code Section 1170 and California Rule of Court 4.42 l(a)(l); (2) The defendant was armed with or used a weapon at the time of the commission of the crime within the meaning of Penal Code Section 1170 and California Rule of Court 4.42l(a)(2); (3) That the victim was particularly vulnerable, within the meaning of Penal Code Section 1170 and California Rule of Court 4.42l(a)(3); (4) The defendant took advantage of a position of trust or confidence to commit the offense, within the meaning of Penal Code Section 1170 and California Rule of Court 4.42l(a)(11); (5) That the defendant has engaged in violent conduct that indicates a serious danger to society, within the meaning of Penal Code Section 1170 and California Rule of Court 4.42l(b)(l); (6) That the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness, within the meaning of Penal Code Section 1170 and California Rule of Court 4.421 (b )(2); (7) That the defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed within the meaning of Penal Code Section 1170 and California Rule of Court 4.421 (b)(4); and (8) That the defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory within the meaning of Penal Code Section 1170 and California Rule of Court 4.421 (b)(5).” 5 Aggravating factors one, two and five were tried to a jury and factors six through eight were considered by the trial court in a bifurcated proceeding. It does not appear from the record that aggravating factors three or four were considered by the jury or the trial court. In relevant part, the jury was instructed on these aggravating factors as follows: “If you find the defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation that the crime in Count One involved great violence, great bodily harm, or acts revealing a high degree of cruelty, viciousness, or callousness” (CALCRIM No. 3224); “If you find the defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation that the defendant was armed with or used a weapon, namely: a .45 caliber semi-automatic handgun, during commission of the crime in Count One” (CALCRIM No. 3225); and “If you find the defendant guilty of the crime charged in Count One, you must then decide whether the People have proved the additional allegation that [defendant] has engaged in violent conduct, namely: Murder, which indicates he is a serious danger to society” (CALCRIM No. 2324). The verdict form for the aggravating factors permitted the jury to find any or all of the three factors true if it first found defendant guilty of murder. The jury found all three aggravating factors to be true, and the trial court relied upon them, at least in part, to impose the upper term for the felon in possession of a firearm conviction. Forfeiture As a threshold matter, we note—and both parties acknowledge—that defendant failed to object to the trial court’s sentencing choice that included reliance upon improper aggravating factors. Defendant argues against forfeiture, claiming he did not have to 6 object below because this issue raises an important question of constitutional law that this court should exercise its discretion to consider. However, because defendant alternatively contends that his attorney rendered ineffective assistance by failing to raise this issue in the trial court, we exercise our discretion to reach the merits of whether the trial court abused its discretion in imposing the upper term sentence for the felon in possession conviction. (People v. Hardy (1992) 2 Cal.4th 86, 209.) Legal Principles and Standard of Review Under section 1170, subdivision (b)(1), “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).” Paragraph (2) provides, as relevant here, “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.” (§ 1170, subd. (b)(2).) “We review a court’s sentencing choices for abuse of discretion. [Citation.] A defendant is entitled to a sentencing decision made in the exercise of informed discretion, and a court that is unaware of the scope of its discretion cannot exercise informed discretion. [Citation.] We presume the court knows and applies the applicable law, absent evidence to the contrary. [Citations.] The burden is on the party attacking the sentence to show the court misunderstood its sentencing authority.” (People v. Nielsen (2026) 119 Cal.App.5th 816, 823; see People v. Knowles (2024) 105 Cal.App.5th 757, 764-765; People v. Fredrickson (2023) 90 Cal.App.5th 984, 988.) 7 Abuse of Discretion Defendant contends that the trial court erred when it relied upon the three aggravating factors found true by the jury to impose the upper term sentence for the felon in possession count because the jury “made those findings only in connection with the murder count.” According to defendant, the jury was instructed to consider the aggravating circumstances “only in connection with the murder count” and the verdict form “expressly stated that the jury’s findings pertained to only the murder charge.” As a result, defendant concludes that the trial court could not use those aggravating factors to impose the upper term for the different crime of being a felon in possession of a firearm. Although the charging document appears to have alleged the aggravating factors as to both murder and felon in possession of a firearm, neither the jury instructions nor the verdict form connected the aggravating factors to the felon in possession count. Indeed, the jury instructions expressly told the jury to consider whether the murder involved great violence, great bodily harm, or acts revealing a high degree of cruelty, viciousness, or callousness (CALCRIM No. 3224); whether defendant was armed with or used a weapon during the commission of the murder (CALCRIM No. 3225); and whether defendant engaged in violent conduct, “namely: Murder, which indicates he is a serious danger to society” (CALCRIM No. 3234, italics added). Likewise, the verdict form related the aggravating factors only to the murder charge. Indeed, the jury was instructed that it could only consider the aggravating circumstances if it first found defendant guilty of the murder. On this record, we agree with defendant that the instructions and verdict form required the jury to assess the aggravating factors as to the murder charge only. There are several problems with this. First, aggravating factors do not apply to the sentencing scheme for first degree murder. Indeed, section 1170, subdivision (b)(1) applies “[w]hen a judgment of 8 imprisonment is to be imposed and the statute specifies three possible terms,” at which point, “the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided….” (Italics added.) A sentence for first degree murder does not fall under this rule. Instead, first degree murder is punishable by death, life without the possibility of parole or an indeterminate term of 25 years to life, and the applicable penalty “shall be determined as provided in” sections 190.1 through 190.5. (§ 190, subdivision (a).) Thus, the aggravating circumstances should not have been connected to the murder charge at all. Second, even assuming the aggravating factors were properly pled and proven as to the murder charge, they could not separately be used by the trial court to impose an upper term sentence for the different crime of being a felon in possession of a firearm. Section 1170, subdivision (b)(2) permits a trial court to 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….” We read the plain language of this statute to permit a trial court to impose an upper term sentence when aggravating circumstances have been proven as to the crime at issue for the sentencing. Consequently, a trial court cannot impose an upper term sentence for one crime based upon aggravating factors found to be true for a different crime. Here, the trial court imposed the upper term sentence of three years for the felon in possession conviction based upon three aggravating factors that had not been proven to a jury beyond a reasonable doubt as to that crime. Accordingly, we find that the trial court abused its discretion. Prejudicial Error In People v. Lynch (2024) 16 Cal.5th 730, the Supreme Court provided new guidance on the standard for harmless error pertaining to improperly proven aggravating factors. Lynch held that “when the trial court relies on unproven aggravating facts to 9 impose an upper term sentence, ... [t]he violation 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.” (Id. at pp. 768-769.) Lynch also “cautioned that a prejudice analysis ... ‘can be problematic. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance[s].... “[T]o 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.” ... “Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts.” ’ ” (Id., supra, 16 Cal.5th at pp. 775-776.) Applying this standard, Lynch affirmed that “the omission of a jury trial on facts underlying three of the aggravating circumstances was prejudicial: the crimes involved a high degree of cruelty, viciousness, and callousness; the victim was particularly vulnerable; and [defendant] poses a serious danger to society.” (Id. at p. 776.) Here, the trial court imposed the upper term sentence for the felon in possession of a firearm conviction based, in part, on all three aggravating factors found true by the jury including that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; that defendant was armed with or used a weapon at the time of the commission of the crime; and that defendant has engaged in violent conduct that indicates a serious danger to society. However, the jury did not find any of these factors true as to the felon in possession of a firearm charge, nor can we say whether a jury could have found these 10 aggravating factors to be true as to that crime beyond a reasonable doubt. Indeed, two of these factors “ ‘ “rest[ ] on a somewhat vague or subjective standard” ’ ” of “great violence,” “high degree of cruelty” and “serious danger to society.” (Lynch, supra, 16 Cal.5th at pp. 775-777 [concluding these two aggravating factors were not established]; People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [“examination of aggravating ... factors necessarily involves subjective determinations based upon objectively demonstrated facts”].) Rather, “[s]ome degree of speculation would necessarily be required for us to conclude the jury would have agreed with the trial court’s evaluation.” (People v. Wandrey (2022) 80 Cal.App.5th 962, 983; see People v. Sandoval (2007) 41 Cal.4th 825, 841 [noting aggravating factor of “ ‘callous[ness]’ ” entailed “findings relating to defendant’s state of mind ... [which] was hotly contested at trial”], superseded by statute as stated in Lynch, supra, 16 Cal.5th at p. 756; see Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 71, 89 [aggravating factor of “serious danger to society” requires the jury to determine “whether the manner of the crime’s commission was distinctively worse ‘when compared to other ways in which such a crime could be committed’ ”].) For these reasons, we conclude that the trial court prejudicially erred by imposing the upper term. Accordingly, we vacate defendant’s sentence and remand for a full resentencing, giving “ ‘ “the People an opportunity to retry” ’ the aggravating facts” and noting “[t]he court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury” on remand. (Lynch, supra, 16 Cal.5th at pp. 776-778; see People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”].) Because the trial court will conduct a full resentencing, we do not reach defendant’s challenge under section 1385, which he may assert on remand. 11 DISPOSITION The judgment is reversed. The matter is remanded for a full resentencing and for further litigation of the aggravating circumstances as they pertain to the conviction of felon in possession of a firearm in Count II. /s/ HULL, J. We concur: /s/ EARL, P. J. /s/ ROBIE, J. 12