People v. Hirschfield
CourtCalifornia Court of Appeal
Date FiledOctober 26, 2026
DocketC103080
StatusPublished
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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
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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.
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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)).
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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.
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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).”
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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
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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.)
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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
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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
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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
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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.
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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.
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