Error and/or relief
The defendant is entitled to a jury trial on two of the aggravating factors the trial court found to be true in the present case. He entitled to resentencing due to prejudicial error, and we remand the matter for that purpose.
First Holding:
The trial court erroneously imposed the upper term by relying on its own determination that the defendant’s two prior convictions were numerous. The defendant was entitled to have a jury decide that issue beyond a reasonable doubt.
Authority:
People v. Lynch (2024) 16 Cal.5th 730, 742-743
People v. Wiley (2025) 17 Cal.5th 1069, 1076
People v. Berry (1981) 117 Cal.App.3d 184, 191 [two prior convictions cannot be numerous]
Second Holding:
In assessing a defendant’s ability to pay, a court may consider a defendant’s past income-earning capacity. Moreover, a court may consider whether a defendant has the ability to satisfy the fine and assessments through prison wages and future earnings after release from custody.
Authority:
People v. Johnson (2019) 35 Cal.App.5th 134, 139
People v. Aviles (2019) 39 Cal.App.5th 1055, 1076