Error and/or relief
The trial court improperly imposed the high term on the firearm enhancement. The sentence on the section 12022.5(a) enhancement is stricken, and the case is remanded for further proceedings as discussed herein.
First Holding:
Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless 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.
Authority:
PEN 1170
Second Holding:
Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. 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. In other words, 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. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.
Authority:
People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1087
People v. Lynch (2024) 16 Cal.5th 730, 761, 768
Chapman v. California (1967) 386 U.S. 18
Third Holding:
We presume the court relied on the manner in which the defendant used the firearm, rather than the fact that he used a firearm, because the latter is an element of the section 12022.5(a) enhancement. A court cannot use a fact constituting an element of the offense to aggravate a sentence. However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.
Authority:
PEN 1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]
Rules of Court rule 4.420(h) [A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term]
People v. Scott (1994) 9 Cal.4th 331, 350
People v. Castorena (1996) 51 Cal.App.4th 558, 562
Fourth Holding:
The proper remedy for this type of failure of proof—where aggravating facts were never tried to the jury—is to remand and give the People an opportunity to retry the aggravating facts. This is the correct remedy here. After such a trial, the court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If the court cannot so conclude, or if the People elect not to retry the defendant on the aggravating circumstances, the court may impose no more than the middle term on the section 12022.5 enhancement.
Authority:
People v. Lynch (2024) 16 Cal.5th 730, 776, 778