Author: Gary

Case:  000257

[000257 — Gary’s Summary of summary:    For a defendant’s parole revocation, the defendant should have been remanded to the custody of the local county jail rather than to the Department of Corrections and Rehabilitation.]

After petitioner admitted to parole violations, the superior court revoked petitioner’s parole and remanded him to the custody of the Department of Corrections and Rehabilitation (CDCR) pursuant to section 3000.08(h).  He should not have been remanded to state prison under section 3000.08(h), but instead confined to county jail for no more than 180 days pursuant to section 3000.08(f) and (g).

First Holding:  For all inmates released from prison on parole on or after July 1, 2020, notwithstanding any other law, any inmate sentenced to a life term shall be released on parole for a period of three years.  Therefore, it is section 3000.01 and not section 3000.1 that applies to convicted murderers who, like petitioner, are paroled after July 1, 2020.  Because section 3000.1 does not apply to petitioner, he is not subject to section 3000.08(h), remanding him to the custody of CDCR.  The trial court is directed to vacate its order remanding petitioner to the custody of the CDCR and hold further proceedings to determine what penalties to impose for petitioner’s parole violation, as provided by section 3000.08(f) and (g). [See] Penal Code section 3000.01(b)(2) [subject to two exceptions not relevant here, under subdivision (d)].

Second Holding:  By using the phrase “notwithstanding any other law,” the Legislature signaled its intent for the later-enacted statute–section 3000.01–to preempt the conflicting, preexisting statute in section 3000.1. [See] People v. Reed (2024) 103 Cal.App.5th 43, 53.

Case:  000256

[000256 — Gary’s Summary of summary:    It was error for the court to impose the upper term based on aggravating factors not stipulated to or proved beyond a reasonable doubt to a jury.]

The defendant argues the sentencing court violated Penal Code section 1170(b)(2) by considering an aggravating circumstance not proven at trial, and the error prejudiced him.  We agree, and therefore we will remand for resentencing.  

First Holding:  The sentencing court’s erroneous reliance on the vulnerable victim circumstance requires reversal and remand for resentencing. Section 1170(b)(2) states that the court may only sentence a defendant to the upper term based on aggravating circumstances the defendant stipulates to or that are found true beyond a reasonable doubt at trial.  The error prejudiced the defendant because the trial court relied on the vulnerable victim aggravating circumstance in selecting a sentence. [See] Cunningham v. California (2007) 549 U.S. 270, 281 [Under the Sixth Amendment 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.]; Erlinger v. United States (2024) 602 U.S. 821, 834 [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].

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

Third Holding:  Because it constitutes a violation of the Sixth Amendment, the matter must be remanded for resentencing unless the error was harmless beyond a reasonable doubt.  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. [See] People v. Lynch (2024) 16 Cal.5th 730, 761; Chapman v. California (1967) 386 U.S. 18.

Fourth Holding:  Though generally, claims–including those involving a court’s failure to properly make or articulate its discretionary sentencing choices–not raised in the trial court may not be raised for the first time on appeal, an appellate court has the authority to decline to apply the forfeiture rule. [See] People v. Gonzalez (2024) 107 Cal.App.5th 312, 326; People v. Coddington (2023) 96 Cal.App.5th 562, 568; People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10 [Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim.].

Fifth Holding:  The prosecution elected not to proceed on the vulnerable victim allegation, and thus the defendant had no occasion to bring any evidence contesting this alleged aggravating circumstance.  The prosecution introduced no proof relevant to this aggravating circumstance other than the disparity in age between him and the victim and the church setting.  In this situation, we cannot conclude beyond a reasonable doubt that the trial court as factfinder would have found the vulnerable victim aggravating circumstance true.  For sentences imposed under the former law the record must clearly indicate that the court would have found an upper term justified had it been aware of its more limited discretion.  Thus, we assume without deciding that the different posture of the instant case compared to that in Lynch requires an examination of whether the court would have imposed the same sentence in the absence of the error.  We conclude the defendant has demonstrated prejudice in this regard, regardless of whether the applicable test is whether the record clearly indicates the court would have imposed the same sentence absent the error, or whether it is reasonably probable the court would have imposed the same sentence. [See] People v. Lynch (2024) 16 Cal.5th 730, 774; People v. Gutierrez (2014) 58 Cal.4th 1354.

Case:  000255

[000255 –Gary’s Summary of summary:    The unpaid balance of the restitution fine must be stricken after 10 years from the date it was originally imposed.]

Though the court affirmed the other orders of the trial court regarding the resentencing conducted under Penal Code section 1172.75, the restitution fine, ordered more than 10 years earlier, must be stricken.

First Holding:  As a result of amendments effective January 1, 2025, the restitution fine must be stricken, because it has been more than 10 years since it was originally imposed.  Penal Code section 1465.9 provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.  Not only is the unpaid portion now uncollectible, the court must vacate the portion of the judgment imposing it. [See] People v. Greeley (2021) 70 Cal.App.5th 609, 626-627; People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953.

Second Holding:  Though the People argue that the 10 years has not passed, because he was resentenced only a few years ago, the People do not identify any legal authority or develop any substantive reasoning supporting the proposition that a component of a defendant’s punishment starts over at resentencing.  We therefore need not consider that argument.  However, the plain language of the statute does not support their interpretation and the result they advocate for is in tension with clearly expressed legislative intent to eliminate fees and fines that deepen the poverty cycle for offenders without meeting the financial needs of crime survivors.  We find the People’s position untethered from the plain language of the statute and the underlying legislative intent, and in advancing the proposition that the restitution fine was “reimposed” at the resentencing hearing such that the clock affording defendant ameliorative relief from a component of his punishment restarted, they fail to elucidate the point or acknowledge any of the issues such an interpretation necessarily implicates.  Therefore, we give effect to the plain language of subdivision (d) of section 1465.9 providing that any portion of a judgment imposing a restitution fine under section 1202.4 shall be vacated 10 years after imposition. [See] People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [If a party’s briefs do not provide legal argument and citation to authority on each point raised, the court may treat it as waived, and pass it without consideration.].

Case:  000254 (This is the first of one case, one post)

[000254 — Gary’s Summary of summary  It was error for the court to impose the upper term based on aggravating factors not stipulated to or proved beyond a reasonable doubt to a jury.  As it constitutes violation of a constitutional right, prejudice is examined under Chapman.  It may also have been error to proceed without a jury on whether the defendant had a strike prior conviction, but any error on that statutory right to a jury was harmless under Watson.]

The trial court erred by not obtaining the defendant’s personal waiver of his right to a jury trial on the aggravating circumstance allegations and the prior strike allegation.  The People concede, and we agree.  The error was prejudicial only as to the aggravating circumstances, not as to the prior strike.  The record does not reflect that the defendant had ever waived jury trial on either the prior strike or aggravating factors.

First Holding:  There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.  A waiver of this right must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. [See] People v. Wiley (2025) 17 Cal.5th 1069, 1078; Cal. Const., art. I, sec. 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166.

Second Holding:  Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.  When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.  Under that standard, reversal and remand are required unless the reviewing court concludes 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.  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.  We accept the People’s concession that a rational jury could have reached a different conclusion with respect to the defendant’s prior performance on probation.  The probation report noted that he had satisfactorily completed two prior grants of probation, although he failed on two other grants.  The report listed his past successes on probation as a mitigating factor and his failures as an aggravating factor.  This mixed view of performance on probation is what leads us to conclude that a rational jury could have disagreed with the trial court’s finding that his prior performance on probation was unsatisfactory.  Therefore, the error here with respect to this allegation was prejudicial under Chapman. [See] Washington v. Recuenco (2006) 548 U.S. 212; People v. Wiley (2025) 17 Cal.5th 1069, 1087; Chapman v. California (1967) 386 U.S. 18.

Third Holding:  The right to have the jury decide the truth of a prior conviction allegation stems from section 1025, subdivision (b), not from the jury trial provision of article I, section 16 of the California Constitution or the Sixth Amendment of the United States Constitution.  Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffective waiver of the right to jury trial of prior prison term allegations.   Here, by failing to object, the defendant forfeited any claim that the trial court improperly denied him his right to a jury trial by failing to take his express waiver of that right. [See] PC 1025; People v. Vera (1997) 15 Cal.4th 269, 277; People v. Grimes (2016) 1 Cal.5th 698, 737–738 [defendant forfeited a claim of involuntary waiver of jury trial on prior conviction allegations based on failure to object in the trial court].

Fourth Holding:  But even assuming an error with respect to his right to a jury trial on the prior strike allegation, the error is subject to the harmless error analysis under the Watson standard.  The question under this standard is whether it is reasonably probable that a different result would have obtained had the prior strike allegation been tried before a jury.  There is no such probability here.  To prove the prior strike conviction, the People produced as evidence his certified RAP sheet, a certified printout of the docket showing his conviction for that offense, the complaint associated with that prior, the waiver of rights and plea form, and the probation terms related to that conviction.  For his part, the defendant never claimed he did not commit the offense, and he presented no evidence regarding this allegation.  There is no reasonable probability the jury would have failed to find the allegation true under the evidence presented.  Accordingly, we reject his claim that the trial court’s true finding on the prior strike allegation must be vacated. [See] People v. Epps (2001) 25 Cal.4th 19, 29; People v. Watson (1956) 46 Cal.2d 818.