Category Archives: Sixth Amendment

Sentencing, Sixth Amendment

Case: 000150

Posted on by Gary McCurdy

Error and/or relief

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.

Authority:

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

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

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

Authority:

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(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.

Authority:

PEN 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.

Authority:

People v. Epps (2001) 25 Cal.4th 19, 29

Appellate Principles, Sentencing, Sixth Amendment

Case: 000141

Posted on by Gary McCurdy

Error and/or relief

The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).

First Holding:

It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant. 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 defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

PEN 1170

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

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

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

People v. Wiley (2025) 17 Cal.5th 1069, 1085

Second Holding:

Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, 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, 838

Third Holding:

Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 352–353

People v. McCullough (2013) 56 Cal.4th 589, 593

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

Fourth Holding:

An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right. Here, the defendant initially requested a jury trial. Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury. Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. McCullough, (2013) 56 Cal.4th 589, 593

Fifth Holding:

But even assuming the forfeiture rule applies, we exercise our discretion to address the issue. Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions]

Sixth Holding:

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, a sentence must be reversed 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, or that those facts were otherwise proved true in compliance with the current statute. 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.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Fines and fees, Sixth Amendment, Standard of review

Case: 000127

Posted on by Gary McCurdy

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

Sentencing, Sixth Amendment

Case: 000099

Posted on by Gary McCurdy

Error and/or relief

We find the trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s right to a jury trial on the alleged aggravating factors. We vacate the sentence and remand the matter for litigation of the alleged aggravating circumstances and full resentencing. During the bench trial on the prior convictions, the trial court specifically noted that it was not convinced beyond a reasonable doubt that the prior convictions were true. It was therefore error for the court to rely on them.

Holding:

The trial court committed prejudicial error in not obtaining a personal waiver of the defendant’s constitutional right to a jury trial on the alleged aggravating factors.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

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

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

Sentencing, Sixth Amendment, Standard of review

Case 000082

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170(b). We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First 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.

Authority:

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

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

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.

Authority:

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

Third Holding:

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. 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, 837-838

Fourth Holding:

The aggravating circumstances were not proven in accordance with section 1170(b)(2) and the prior conviction exception would not apply to them.e

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [We understand Erlinger to require that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt]

Fifth 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.

Authority:

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

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

Sixth Holding:

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 People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1090 [deciding it could not conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness]

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