Daily Archives: September 25, 2026

Sentencing, Sixth Amendment, Standard of review

Case 001040

Posted on by Gary McCurdy

Error and/or relief

The trial court violated Penal Code section 1170(b) by imposing the upper term on one count of shooting at an occupied vehicle based on aggravating circumstances not found true by a jury or admitted by him. We reverse and remand for resentencing.

First Holding:

The Fifth and Sixth Amendments to the United States Constitution require that a jury find beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed statutory maximum. Section 1170(b)(2) codified this requirement by authorizing a court to impose the upper term only when the facts underlying an aggravating circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt.

Authority:

PEN 1170(b)(2)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Cunningham v. California (2007) 549 U.S. 270, 282

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Allegations of prior convictions may be tried by the court alone. But here, the court did not exclusively rely on aggravating circumstances related to prior convictions. Additionally, one of the aggravating circumstances related to prior convictions—the defendant’s prior convictions as an adult and juvenile were numerous and of increasing seriousness—involves more than the permissible factual finding by a court that the convictions were sustained.

Authority:

PEN 1170(b)(3)

People v. Wiley (2025) 17 Cal.5th 1069, 1083

Third Holding:

When the sentencing court relies on an aggravating circumstance not found by a jury, the reviewing court must apply the standard of prejudice under Chapman. We must reverse the sentence unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 742–743

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Fourth Holding:

Whether the defendant was a danger to society is a subjective factual determination. Because the inquiry into the circumstances is comparative and qualitative, we cannot conclude with confidence that the jury would have assessed the facts in the same manner as the trial court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1089-1090

Fifth Holding:

Because the omission of a jury trial was not harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, we must reverse the defendant’s sentence.

On remand, the proceedings must comply with the current statutory requirements and the defendant be given the opportunity for a jury trial. The trial court may rely on any properly proven aggravating facts and retains its discretion to impose an upper term sentence. If the court cannot conclude that one or more properly proved circumstances justifies an upper term sentence, it may impose no more than the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 777-778

Sentencing, Sixth Amendment, Standard of review

Case 001039

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term on the firearm enhancement based on aggravating circumstances which were not pleaded in the information nor found true by the jury. Remanded for resentencing.

First Holding:

The prosecution conceded that no aggravating circumstances were alleged against the defendant to support imposing the upper term on the enhancement. But she asserted that the evidence showed the defendant committed the crime with planning, sophistication, and professionalism, which is a factor in aggravation under California Rules of Court, rule 4.421(a)(8). Over objection by defense counsel, the court found the factors cited by the prosecution true and imposed the upper term on the firearm enhancement. This was error.

Section 1170.1(d)(2) permits a trial court to impose the upper term for a sentencing enhancement only when there are circumstances in aggravation 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.

Authority:

PEN 1170.1(d)(2)

Second Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. The 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, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. On this record, we cannot say the error was harmless beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

Chapman v. California (1967) 386 U.S. 18

Third Holding:

The District Attorney failed to allege any aggravating circumstances against the defendant in the information. The prosecutor merely argued that the evidence supported aggravating facts that she described for the first time at the sentencing hearing.

These aggravating circumstances—the offense was committed with planning, sophistication, and professionalism, and it was coldhearted, ruthless, and committed with disregard for human life—rest on a subjective standard, making it 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.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775

Duty of the court, Probation Parole PRCS, Sentencing

Case 001038

Posted on by Gary McCurdy

Error and/or relief

It was a violation of separation of powers for the trial court to delegate authority to the probation department the decision of which counseling or rehabilitation program deemed appropriate by the probation officer. The trial court is directed to modify the treatment condition by either specifically identifying the type of treatment program(s) or striking the condition altogether.

First Holding:

The California Constitution states that the powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety.

Authority:

Calif. Const., art. III, sec. 3

PEN 1203.1

People v. Anderson (2010) 50 Cal.4th 19, 26

Second Holding:

But no statutory provision sanctions a delegation of unlimited discretion to a probation officer to implement or interpret probationary terms. These determinations are essentially judicial functions. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

The defendant’s treatment condition delegates unlimited discretion to his probation officer to determine and implement the nature and amount of treatment that the defendant may be required to complete, including whether a program is residential or outpatient. Because the treatment condition does not identify the type of counseling or treatment that he is required to complete, the trial court’s imposition of the condition is an improper delegation of authority.

Authority:

People v. Cervantes (1984) 154 Cal.App.3d 353, 358

People v. Smith (2022) 79 Cal.App.5th 897, 902

Amelioration, Retroactivity, Sentencing

Case 001037

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding the defendant was not eligible for resentencing under section 1172.75 because his prior prison term enhancement had been stayed. Remanded for full resentencing.

First Holding:

Effective January 1, 2020, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. The amendment was retroactive to any case in which the judgment was not final. In 2022, what is now section 1172.75(a) became effective and made the change retroactive to now-invalid prior prison term enhancements imposed before January 1, 2020.

Authority:

PEN 667.5(b)

PEN 1172.75

People v. Lopez (2019) 42 Cal.App.5th 337, 340-342

Second Holding:

The statute requires the Department of Corrections and Rehabilitation (CDCR) to prepare a list of inmates serving a term that included imposition of a now-invalid prior prison term enhancement, and notify the appropriate sentencing court. Upon receiving names from CDCR, the sentencing court must review each person’s current judgment to confirm that it includes a qualifying enhancement and, if it does, it must recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(c)

Third Holding:

The trial court concluded that the defendant was not eligible for relief because the execution of the imposition of sentence on the now-invalid prison term enhancement had been stayed, and thus he was not serving a sentence so enhanced. Since then, however, the Supreme Court has clarified that such individuals are not ineligible for resentencing under section 1172.75.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1068 [Where a qualifying prison prior was imposed and stayed, the defendant is entitled to a section 1172.75 resentencing hearing]

Amelioration, Discretion, Sentencing, Sixth Amendment, Standard of review

Case 001036

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court misunderstood its discretion to reduce a 10-year section 12022.53(b) firearm enhancement and impose a lesser uncharged enhancement. The court violated the defendant’s constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors and for the court to exercise its sentencing discretion.

First Holding:

A sentencing court, in the interest of justice pursuant to section 1385, may strike or dismiss an enhancement otherwise required to be imposed under section 12022.53. This discretion includes imposing a lesser included, uncharged enhancement under statutes other than section 12022.53, such as section 12022.5(a).

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 701

People v. McDavid (2024) 15 Cal.5th 1015, 1020-1021

People v. Tirado (2022) 12 Cal.5th 688, 692 [The statutory framework of section 12022.53 permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead]

Second Holding:

A court unaware of its discretionary powers cannot exercise informed discretion. In this circumstance, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Salazar (2023) 15 Cal.5th 416, 431

Third Holding:

As a matter of constitutional right, absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 739

People v. Wiley (2025) 17 Cal.5th 1069 [Under the federal Constitution’s Fifth and Sixth Amendments, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.]

Fourth Holding:

Determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. Finding increasing seriousness of prior convictions requires a qualitative assessment of the offenses’ time, location, character, and purpose.

A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. Thus, the determination involves circumstances clearly going beyond the fact of prior conviction and its elements.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083

Erlinger v. United States (2024) 602 U.S. 821, 840

Fifth Holding:

A California trial court’s reliance on information in a probation department presentence report to impose an upper term sentence is now precluded.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081, fn. 5

Sixth Holding:

Under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). A narrow exception permits judges to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Seventh Holding:

A trial court has discretion to reconsider the entire sentence on a remand for resentencing. Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss the defendant’s enhancements under section 1385(c).

Authority:

People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a resentencing court is permitted to reconsider all of its discretionary sentencing choices]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

People v. Hill (1986) 185 Cal.App.3d 831, 834 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.]