Error and/or relief
The court made several sentencing errors. The strike based on a violation of section 186.22 requires examination whether the elements found true at the time of conviction meet the heightened requirements of the amendments under AB 333.
The court imposed the upper term on several counts despite there being no jury trial waiver nor stipulation by the defendant to the aggravating factors. Further, the court relied on factors in aggravation that were also the basis of enhancements, violating the prohibition against dual use.
The court erred in imposing two full terms consecutively for two counts, as consecutive determinate (subordinate) terms are limited to one-third the middle term.
The court miscalculated the credit for time served.
First Holding:
AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of “benefit” to mean “to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a prior serious felony.
We remand to permit the prosecution the opportunity to establish that the prior conviction (from more than 15 years ago) constitutes a strike and a prior serious felony conviction under current law. conviction.
Authority:
PEN 186.22(g)
People v. Fletcher (2025) 18 Cal.5th 576, 586–587
Second Holding:
Section 1170(b)(1) provides that 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). Under subdivision (b)(2), the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.
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. A defendant is entitled to have a jury determine the facts justifying an upper term based on the “increasing seriousness” of a defendant’s prior convictions.
Authority:
PEN 1170(b)
Cal. Rules of Court, rule 4.421(b)(2)
People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1085-1086 [increasing seriousness of a crime required a jury determination]
People v. Lynch (2024) 16 Cal.5th 730, 759–760
Third Holding:
The court erred in relying on two factors in aggravation that formed the basis of enhancements for which punishment was imposed. This was error because of the prohibition against the dual use of facts to impose an upper term sentence based on the facts of an enhancement.
Authority:
PEN 1170(b)(5)
People v. Scott (1994) 9 Cal.4th 331, 350
Fourth Holding:
The court imposed two consecutive 18-year terms for each of the attempted murder counts, which consisted of the upper term of nine years double for the prior strike. This was error. The trial court may the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court may impose only one-third of the middle term’for subordinate terms.
Authority:
PEN 1170.1(a)
People v. Felix (2000) 22 Cal.4th 651, 655
Fifth Holding:
The court erred in its calculation of credit for time served, and on remand the court shall ensure that the abstract of judgment be amended to reflect the proper credits.
Authority:
PEN 2900.5