Error and/or relief
Remand is necessary for resentencing because the trial court determined one of the factors in aggravation against the defendant in violation of his constitutional right to a jury and relied on such determination in increasing his sentence. [Not error to fail to instruct on section 148 as lesser of section 69 because the jury necessarily relied on the force element of PC 69.]
First Holding:
It was error for the court to impose the upper term based on its own conclusion that the defendant’s prior convictions are numerous or of increasing seriousness. The right to a jury on any fact that increases the normal punishment for an offense derives from the Sixth Amendment to the United States Constitution.
Authority:
People v. Wiley (2025) 17 Cal.5th 1069, 1082
Erlinger v. United States (2024) 602 U.S. 821, 840
Second Holding:
A criminal defendant does not waive his constitutional right to a jury trial by failing to object when a court resolves issues to which the right attaches without first obtaining the requisite waivers. As to whether the error was harmless, because the right to a jury trial on the aggravating factors derives from the United States Constitution, we assess prejudice under the standard set forth in Chapman. Under the Chapman standard, a sentence imposed under section 1170(b) must be reversed and remanded 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, or that those facts were otherwise proved true in compliance with the current statute.
Authority:
People v. French (2008) 43 Cal.4th 36, 47
People v. Holmes (1960) 54 Cal.2d 442, 443–444
Chapman v. California (1967) 386 U.S. 18
People v. Wiley (2025) 17 Cal.5th 1069, 1087
People v. Lynch (2024) 16 Cal.5th 730, 761 [When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and Chapman must be satisfied.]
Third Holding:
Because a reasonable jury could have concluded the defendant’s convictions were not of increasing seriousness, we remand for resentencing without the need to consider their numerosity. Even if we were to reach the issue, we would likely have reasonable doubt a jury would have concluded the defendant’s prior convictions were numerous. Whether prior convictions are “numerous” for purposes of rule 4.421(b)(2) is not further defined in the California Rules of Court. A reasonable jury might consider numerosity in terms of the number of criminal episodes resulting n convictions, not in the number of convictions alone.
Authority:
People v. Wright (2025) 113 Cal.App.5th 832, 847
Fourth Holding:
We review the trial court’s failure to instruct on a lesser included offense de novo considering the evidence in the light most favorable to the defendant.
Authority:
People v. Wright (2025) 113 Cal.App.5th 832, 847
Fifth Holding:
A trial court is obligated to instruct the jury on an uncharged lesser offense included in one charged if there is substantial evidence from which a reasonable juror could conclude the defendant committed the lesser, but not the greater, offense. Because this is a sua sponte obligation, a defendant may raise it for the first time on appeal. This instructional requirement prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than the evidence merits.
Authority:
People v. DePriest (2007) 42 Cal.4th 1, 50
People v. Brothers (2015) 236 Cal.App.4th 24, 29-30, 33, fn. 6
Sixth Holding:
The most significant difference between the lesser offense described in section 148(a)(1) and the greater offense described in section 69(a) is that a defendant may be convicted of the lesser offense even if he did not use force or violence to effectuate the resistance. Accordingly, the trial court was required to instruct on the lesser offense of section 148(a)(1) resisting if substantial evidence supported a finding that the defendant did not use force or violence when he resisted the deputies.
Authority:
People v. Brown (2016) 245 Cal.App.4th 140, 153
Seventh Holding:
Resisting an officer by force or violence under section 69(a) does not require either a threshold quantum of force or violence, or the use of force or violence upon the person of the officer. The statutory language does not, in other words, require the defendant to have actual physical contact with the officer. Thus, forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer. Here, there is no evidence the defendant did not use force in resisting arrest by the deputies. Under the facts here, there is no substantial evidence to show that only the lesser crime was committed. No reasonable juror could conclude the defendant’s physical resistance amounted to a violation of section 148(a)(1) but not of section 69(a). Therefore, the trial court was correct not to instruct the jury on section 148(a)(1).
Authority:
People v. Morgan (2024) 103 Cal.App.5th 488, 508, disapproved on another ground in People v. Wiley (2025) 17 Cal.5th 1069, 1087
People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986 [where uncontradicted evidence was that the defendant struggled forcefully against arrest, instruction on section 148(a)(1) was unnecessary because there was no evidence on which a jury could conclude the defendant resisted without violating section 69(a)]