Category Archives: Sixth Amendment

Amelioration, Sentencing, Sixth Amendment

Case: 000325

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it sentenced the defendant to an upper term sentence without affording him a jury trial on aggravating factors. Remanded for retrial on the factors in aggravation.

First Holding:

Section 1170(b)(2) provides that, in selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when 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. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. Under section 1170(b), 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.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

Cunningham v. California (2007) 549 U.S. 270, 281

Third Holding:

In Erlinger, the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 837

Fourth Holding:

The California Supreme Court applied Erlinger to California’s determinate sentencing scheme. In Wiley, it overruled its prior decisions Black and Towne that had found it constitutionally permissible for a trial court to determine whether a defendant’s crimes were of increasing seriousness or whether the defendant’s performance on probation was unsatisfactory. A trial court’s determination of those aggravating factors without the defendant’s consent violated section 1170(b)(2).

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1084-1086 [expressly overruling People v. Towne (2008) 44 Cal.4th 63 and People v. Black (2007) 41 Cal.4th 799]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with the jury trial requirement 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. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069,1090

Chapman v. California (1967) 386 U.S. 18

Sixth Holding:

Here, the trial court relied on its own files to find that the defendant had two prior felony convictions for which he served prison sentences, and found that his performance on supervision had been unsatisfactory. The California Supreme Court has cautioned against attempting to determine whether a jury would have found true aggravating circumstances that require an imprecise quantitative or comparative evaluation of the facts. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance. To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court. The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. 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 it cannot so conclude, it may impose no more than a middle term.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 777-778

Sentencing, Sixth Amendment, Standard of review

Case: 000314

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term for the attempted murder conviction based on unpleaded and unproven aggravating factors. Accordingly, we will remand for resentencing and otherwise affirm the judgment.

First Holding:

In selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when 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. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. 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. Further the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Third Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) 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. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The Attorney General bears the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18

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

People v. Wiley (2025) 17 Cal.5th 1069, 1090

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Fourth Holding:

The error was not harmless beyond a reasonable doubt. The record does not necessarily reflect that defendant’s convictions were increasing in seriousness. He was subject to a sustained juvenile petition for robbery, and his adult conviction was for unlawful firearm activity. A rational jury could have concluded that his felony conduct was not increasing in seriousness. The trial court’s remaining findings are subjective determinations that go beyond the mere fact of a prior conviction.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767 [The Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term]

Duty of counsel, Effective assistance of counsel, Pleading, Sentencing, Sixth Amendment

Case: 000280

Posted on by Gary McCurdy

Error and/or relief

As to one of the counts the trial court improperly imposed an upper term sentence. The aggravating facts were found true by the judge rather than by the jury. Thus, we shall vacate the upper term sentence. On remand, the People may elect to retry the aggravating facts; if not, the court may proceed to resentencing.

First Holding:

The court may impose a sentence exceeding the middle term only when 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. Trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

Authority:

PEN 1170

Second Holding:

When a trial court imposes an upper term sentence by relying on aggravating facts not proven in compliance with section 1170(b)(2), the sentence must be vacated, and the matter must be remanded for resentencing unless the reviewing court finds that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 744–775

Third Holding:

In this case there was a jury trial, but the aggravating facts were not alleged in the information, they were not found true by the jury, and they were not stipulated to by the defendant. The error was prejudicial under the federal constitutional standard of review. Therefore, we must vacate the upper term sentence as to count six and remand for resentencing.

Authority:

PEN 1170(b)(2)

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Fourth Holding:

The People argue that the defendant forfeited this claim because he did not object to the error during the sentencing hearing. We agree that the defendant has forfeited this claim. However, we will exercise our discretion and not apply the forfeiture rule because it will have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

People v. Jones (2012) 54 Cal.4th 350, 353

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000273

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the upper term based on its own conclusion that the defendant’s prior convictions were numerous and of increasing seriousness, where there was no waiver of a jury or stipulation by the defendant. Defendant was not advised of his right to a jury trial on the aggravating facts, nor did he explicitly waive his right to jury trial on those aggravating facts. The trial court erred in imposing an upper term sentence in the absence of such a waiver.

First Holding:

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. This jury trial right is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. 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.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Erlinger v. United States (2024) 602 U.S. 821

Second Holding:

A sentencing judge may only use the information in the record of conviction for the limited function of determining the fact of a prior conviction and the then-existing elements of that offense. A determination that defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Thus, defendant was entitled to a jury determination on this aggravating factor.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081-1083

Third Holding:

Defendant must personally waive the right to a jury trial 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.

Authority:

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. French (2008) 43 Cal.4th 36, 46