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REMAND: Firearm Enhancement Finding Not Harmless

California v. Butler Docket: E078235 (Fourth Appellate District), Opinion Date: March 28, 2023. In November 2021, a jury convicted Rahsaan Butler of one count of attempted voluntary manslaughter and other offenses, and found true related allegations that he personally used a firearm and caused great bodily injury. The trial court sentenced him to the upper term for the conviction and the firearm enhancement. On appeal, Butler contended he was entitled to resentencing because: (1) the trial court erred by impermissibly relying on the same facts that formed the basis of the enhancements to sentence him to the upper term; and (2) he was entitled to the ameliorative benefits of Senate Bill No. 567 (2021-2022 Reg. Sess.), which became effective while his appeal was pending. The State conceded the legislation applied retroactively to Butler’s nonfinal judgment but argued that remand was not necessary because sentencing Butler under the applicable law at the time was harmless. The Court of Appeal found there was a split of authority concerning the applicable harmlessness standard. The Court adopted the approach in California v. Lopez, 78 Cal.App.5th 459 (2022) and remanded for resentencing.

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