Category Archives: Sixth Amendment

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000673

Posted on by Gary McCurdy

Error and/or relief

The defense attorney provided ineffective assistance of counsel by failing to object to this inadmissible opinion testimony. On this unusual record, the defendant has established both deficient performance and prejudice under the Strickland standard for ineffective assistance. Accordingly, we reverse the judgment and remand for a new trial.

[Gary note: It is highly unusual for a court on direct appeal to find that counsel prejudicially provided ineffective assistance. Normally such challenges are denied on appeal, with the court perhaps mentioning that the defendant could pursue the claim through habeas corpus. I have chosen to include extensive passages, because even though any case is fact-specific, the principles announced along with the facts may be of value, should you at some point need to consider raising an IAC claim on direct appeal.]

First Holding:

The defendant’s evidentiary objections are forfeited because defense counsel did not object to any of the testimony that Seevers now challenges on appeal. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.

Accordingly, it is generally the case that a defendant forfeits an argument on appeal where he fails to object at all to the evidence in the trial court.

Authority:

EVID 353

People v. Flinner (2020) 10 Cal.5th 686, 726

Second Holding:

We must therefore decide the defendant’s alternative claim of ineffective assistance of counsel. To prevail on his ineffective assistance claim under the Sixth Amendment, the defendant must establish that (1) his counsel’s performance was deficient, and (2) he was prejudiced as a result.

Deficient performance is established by showing that the attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Under Strickland’s prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694

Third Holding:

In assessing whether an attorney’s performance was deficient, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.

Further, competent counsel may often choose to forgo even a valid objection. In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.  Thus, a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Nonetheless, deference to counsel’s performance is not the same as abdication. It must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. We may conclude, on direct appeal, that counsel’s performance was deficient if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Riel (2000) 22 Cal.4th 1153, 1197

People v. Centeno (2014) 60 Cal.4th 659, 675

People v. Jasso (2025) 17 Cal.5th 646, 676

Fourth Holding:

A lay witness may offer opinion testimony if it is rationally based on the witness’ perception and helpful to a clear understanding of the witness’s testimony.However, lay opinion about the veracity of particular statements by another is inadmissible on that issue.

Authority:

EVID 800

People v. Jones (2017) 3 Cal.5th 583, 602

People v. Melton (1988) 44 Cal.3d 713, 744

Fifth Holding:

A lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence, nor does it bear on any of the other matters listed by statute as most commonly affecting credibility. Thus, such an opinion has no tendency in reason to disprove or prove the veracity of the statements. A lay witness may not express an opinion about the veracity of another person’s statement because the statement’s veracity is for the jury to decide.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1221

Sixth Holding:

A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. The reason for employing this rule is not because guilt is the “ultimate issue of fact” to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case.

Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.

Authority:

People v. Duong (2020) 10 Cal.5th 36, 60

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77

Seventh Holding:

The same rationale that prohibits the witness from expressing an opinion on the meaning of statutory terms or the guilt of the defendant also prohibits the witness from expressing an opinion as to whether a crime has been committed.

Authority:

People v. Torres (1995) 33 Cal.App.4th 37, 47 [witness improperly expressed the opinion the crimes committed were robberies]

Eighth Holding:

Our inquiry is whether a witness has offered testimony that is tantamount to expressing an opinion as to defendant’s guilt.

Authority:

People v. Ward (2005) 36 Cal.4th 186, 210

People v. Vang (2011) 52 Cal.4th 1038, 1048

People v. Duong (2020) 10 Cal.5th 36, 61

Ninth Holding:

The investigator improperly expressed an opinion on the defendant’s guilt throughout his testimony. By asking the investigator whether any evidence exonerated the defendant, the prosecutor improperly elicited testimony that commented on the strength of the case against the defendant and the issue of whether he was guilty of the victim’s murder. By responding that he found no exonerating evidence, the investigator improperly expressed his personal opinion on evidence a factfinder could have viewed as exonerating.

Authority:

People v. Spence (2012) 212 Cal.App.4th 478

Tenth Holding:

Having determined that portions of the investigator’s testimony were objectionable because they either opined on witness credibility or opined on the defendant’s guilt, we conclude that there simply could be no satisfactory explanation for the failure of defense counsel to object.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 676

Eleventh Holding:

The investigator’s testimony opining on the defendant’s guilt and on the witnesses credibility was so central to the issues at trial and so damaging to the defense that any competent counsel would have objected.

We can conceive of no satisfactory explanation for defense counsel’s failure to object. The defendant has therefore satisfied the deficient performance prong of the Strickland standard.

Authority:

People v. Yates (2018) 25 Cal.App.5th 474, 488 [finding on direct appeal no conceivable satisfactory explanation for defense counsel’s failure to object to every instance in which prosecution experts related as true case-specific facts contained in hearsay statements]

Twelfth Holding:

Given the investigator’s lead role and extensive participation in the investigation and presence in court during the trial, his opinions on witness credibility, the absence of any exonerating evidence, and the conclusions to be drawn from the defendant’s statement were likely to hold special weight for the jury and created a risk that the jury would abdicate its role as the arbiter of credibility and guilt.

Authority:

People v. Rouston (2024) 99 Cal.App.5th 997, 1012

Thirteenth Holding:

The case against the defendant was weak because it rested primarily on the inconsistent testimony of witnesses with motives to be untruthful, no physical evidence corroborated any of their stories or otherwise implicated the defendant, no body was ever found, and no crime scene was ever identified.

Although, in certain circumstances, an investigating officer’s opinion on the defendant’s guilt may not have influenced the verdict in light of the overwhelming evidence against defendant, that situation is not present here. Because the case against the defendant was based on such a precarious foundation, jurors could well have been influenced by the investigator’s personal opinions as an experienced law enforcement officer who had spent countless hours on the investigation.

It is therefore reasonably probable that the defendant would have obtained a more favorable result at trial if defense counsel had objected to the investigator’s improper testimony opining on the veracity of the two witnesses’ statements, identifying the defendant as the person who committed the homicide, assuring the jurors he knew he had the right person, and concluding that no evidence exonerated the defendant.

Authority:

In re Edward S. (2009) 173 Cal.App.4th 387, 418 [the case must be considered a close one because there was no eyewitness or physical evidence and the matter turned almost entirely on credibility]

People v. Riggs (2008) 44 Cal.4th 248, 301

Appellate Principles, Sentencing, Sixth Amendment

Case 000669

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously stated that all of the aggravating factors had been found true by the jury. The only aggravating factor alleged, and found true by the jury was that the victims were particularly vulnerable. The sentence is reversed and the court is directed to consider the sentence in light of the only aggravating factor found true by the jury. Further, the court must consider the defendant’s ability to pay the restitution fines and ancillary fees.

First Holding:

In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.

Authority:

In re Reno (2012) 55 Cal.4th 428, 483

Second Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless 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.

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.

The violation 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:

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

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

Third Holding:

To the extent a potential aggravating circumstance at issue in a particular case 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.

The determination of whether the crime involved sophistication and planning rests on a vague and subjective standard. Accordingly, we cannot conclude beyond a reasonable doubt that the jury would have found true the two remaining aggravating factors upon which the court relied to conclude the upper term was justified.

We therefore reverse the sentence and remand for the trial court to hold a new sentencing hearing during which it shall only consider aggravating factors that were found true by the jury as part of its analysis of whether to impose an upper term sentence.

Authority:

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

Fourth Holding:

Where a trial court imposes fines exceeding the statutory minimum of $300 under section 1202.4(b), and section 1202.45, it must consider the defendant’s ability to pay. Before imposing ancillary costs pursuant to section 1465.8(a)(1) and Government Code section 70373, equal protection principles require the trial court to, on defendant’s request, consider a defendant’s inability to pay such costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

Sentencing, Sixth Amendment, Standard of review

Case 000666

Posted on by Gary McCurdy

Error and/or relief

Imposition of the upper term based on judge-found facts, without the defendant’s express waiver of his jury trial right, violated the Sixth Amendment and California law, and the error was not harmless. Accordingly, we reverse.

First Holding:

The court found true the rule 4.421(b)(2) aggravating factor regarding numerous or increasingly serious prior convictions or adjudications, explaining only that the defendant has not only the prior strike, he has a substantial amount of convictions on his RAP sheet.

The trial court may impose an upper term sentence 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.

The record does not reflect that the defendant ever waived his right to a jury trial on the aggravating factors.

Authority:

PEN 1170(b)(2)

Second Holding:

The right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence is not merely a state law entitlement, but is constitutionally required by the Sixth Amendment. Any waiver of this right must be express. Absent waiver or stipulation, a jury must determine whether the particular details of a defendant’s criminal history demonstrate convictions of increasing seriousness, before a trial court can rely on that fact to justify an upper term sentence.

Authority:

Rules of Court rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1082-1084

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

People v. French (2008) 43 Cal.4th 36, 47–48

Third Holding:

When such an error occurs, we determine whether it was prejudicial under the Chapman standard of review, under which we must reverse and remand unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found the aggravating factor true.

Authority:

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

Sentencing, Sixth Amendment

Case 000659

Posted on by Gary McCurdy

Error and/or relief

The court erred by finding true and relying on aggravating circumstances at sentencing without any waiver of the right to jury trial.

First Holding:

Despite the absence of a jury waiver, the court at sentencing found true multiple of the charged aggravating circumstances. The court also imposed the upper term of 10 years for the Penal Code section 12022.5(a) firearm enhancement. The trial court erred by imposing this upper term sentence based on aggravating circumstances that were not stipulated to by the defendant found true beyond a reasonable doubt at trial by the jury, or found true by the judge in a court trial after a waiver of the right to jury trial.

Under the Sixth Amendment, 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, unless the defendant stipulates to its truth or waives a jury trial.

Authority:

PEN 1170(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Second Holding:

Several of the aggravating circumstances found true by the trial court were based on what the Supreme Court in Lynch referred to as a somewhat vague or subjective standard. These include that the crime involved great violence, great bodily harm, and other acts showing a high degree of cruelty, viciousness, and callousness and that Guy had engaged in violent conduct that indicates a serious danger to society.

Because these aggravating circumstances are inherently subjective and imprecise, we cannot conclude beyond a reasonable doubt that a jury would have found true all of the aggravating factors relied upon by the trial court to justify an upper term sentence. Moreover, the court could not lawfully have imposed the upper term on the Penal Code section 12022.5(a) enhancement without proper true findings or a stipulation to the truth of circumstances in aggravation that justified the imposition of a term of imprisonment exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768–769, 775–776

Third Holding:

We will therefore vacate the sentence and remand for a full resentencing hearing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing on all counts required when part of sentence is stricken on appeal]

Discretion, Sentencing, Sixth Amendment, Standard of review

Case 000641

Posted on by Gary McCurdy

Error and/or relief

The trial improperly relied on factors in aggravation that were not submitted to the jury for proof beyond a reasonable doubt.

First Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception regarding prior convictions also permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions within the meaning of the federal sentencing statute at issue. Instead, the Court held that 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, 742

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

Mathis v. United States (2016) 579 U.S. 500, 511–512

Third Holding:

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, unless the defendant stipulates to its truth or waives a jury trial. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments.

Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term. A jury–not the judge, absent a jury waiver or stipulation–must determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts 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:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1083–1084, 1086

Fourth 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. The violation 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:

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

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 331-333

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

Sentencing, Sixth Amendment

Case 000637

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by finding the aggravating factors true and imposing an upper term sentence without a jury finding on these factors.

First Holding:

Before the jury rendered its verdict, the defendant waived his right to a jury trial on the allegation of a prior strike conviction, but he declined to waive a jury trial on the rule 4.421 aggravating factor allegations. Nevertheless, the trial court stated it would conduct a court trial on the aggravating factor allegations relating to the defendant’s prior convictions increasing in seriousness and his prior prison term because it believed these aggravating factors were not subject to the jury’s consideration.

No aggravating factors were submitted to the jury. The court found true the aggravating factors that the defendant had prior convictions that are numerous and of increasing seriousness. This was error. A defendant is constitutionally entitled to a jury finding as to the increasing seriousness of a defendant’s prior convictions. This is because the inquiry requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness, i.e., something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Second Holding:

The Sixth Amendment guarantees the right to a jury trial on any fact that exposes a defendant to a greater potential sentence. Under California’s triad sentencing scheme, 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.

Accordingly, the Sixth Amendment right to a jury trial extends to any aggravating facts justifying an upper term sentence under section 1170(b)(2). If a trial court relies on unproven aggravating facts to impose an upper term sentence, and the defendant has not waived his right to a jury trial or stipulated to the aggravating facts, this is constitutional error.

Authority:

PEN 1170

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

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lynch (2024) 16 Cal.5th 730, 760, 768

Third Holding:

Our review is de novo.

Authority:

In re Taylor (2015) 60 Cal.4th 1019, 1035

People v. Frazier (2020) 55 Cal.App.5th 858, 864

Fourth Holding:

If constitutional error occurred, we assess prejudice under Chapman, which requires us to find prejudice unless we 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. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

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:

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

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

Amelioration, Sentencing, Sixth Amendment

Case 000612

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to resentence the defendant under section 1172.75 in his absence where there was no waiver of his presence.

First Holding:

Reversal is required for a new hearing at which defendant may be present or validly waive his presence. Nothing in the record at the resentencing hearing reflected a valid waiver, nor similarly was there evidence that the defendant or his attorney previously entered a valid waiver on the record. We cannot say the error was harmless given that section 1172.75(d)(3) calls for consideration of the postconviction factors defendant enumerated in his brief, but the defendant was deprived of his right to address these factors personally if he chose to do so or to aid his attorney in doing so. The error thus was not harmless beyond a reasonable doubt.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Quan (2023) 96 Cal.App.5th 524, 535

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

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

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

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Sentencing, Sixth Amendment, Standard of review

Case 000539

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it found the aggravating factors true and sentenced him to the upper term without first obtaining an express waiver of his right to a jury trial or a stipulation to the aggravating factors.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b), unless we 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.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

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

Second Holding:

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, not merely by a preponderance of the evidence.

Authority:

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

Third Holding:

In 2022, the Legislature amended section 1170(b) to limit a court’s discretion to impose the upper term of a sentencing triad. Under the current version of section 1170, trial courts may impose a sentence that exceeds 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.

Authority:

PEN 1170(b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

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

Fourth Holding:

Section 1170(b)(3) provides that the 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. This provision is considered the state counterpart to the exception the United States Supreme Court recognized in Almendarez-Torres for findings regarding a defendant’s prior convictions. Recently, the United States Supreme Court clarified in Erlinger that the Almendarez-Torres exception to the jury trial requirement permits a judge to make findings regarding the fact of a defendant’s prior conviction and the elements of the offense alone, nothing else.

Authority:

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

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

Fifth Holding:

Virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously and beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward. Therefore, unless a defendant waives the right to a jury trial or stipulates that the aggravating factors are true, under section 1170(b), the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

People v. Wiley (2025) 17 Cal.5th 1069, 1084, 1086

Erlinger v. United States (2024) 602 U.S. 821, 842

Sixth Holding:

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. The inquiry into whether defendant’s prior convictions were extensive or numerous is a comparative and qualitative one. The qualitative and comparative nature of the inquiry, which could allow a jury to focus on different aspects of defendant’s history than the trial court did, makes it difficult to conclude with confidence that the jury would have assessed the facts in the same manner as did the trial court. Thus, we find the error to be not harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085, 1090

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000527

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose the upper term based on factors that were not proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2) states that when a statute allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of the upper term. Rule 4.421(b) sets out several aggravating factors relating to a defendant: (1) The defendant has engaged in violent conduct that indicates a serious danger to society; (2) The defendant’s prior convictions are numerous or of increasing seriousness; (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (5) The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. The court stated that it found beyond a reasonable doubt that the defendant showed an increasing and violent criminal history, he posed a danger to society, and he does not perform well in probation or on parole.

Authority:

PEN 1170(b)

Rules of Court, rule 4.421

Second Holding:

Subsequent to the date of sentencing, the United State Supreme Court decided Erlinger, holding that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed—including certain details relating to prior convictions—must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. Thus, in sentencing 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, 824

Third Holding:

Under the reasoning of Erlinger, 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. 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 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. Wiley (2025) 17 Cal.5th 1069, 1079-1080, 1086,

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

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

Fourth Holding:

Whether a defendant’s crimes showed increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. Those factors must be assessed by a jury; such a finding involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, which is the limitation on a court’s power under the reasoning of Erlinger.

The same is true for a finding that a defendant’s performance on probation had been unsatisfactory, because even where a finding of unsatisfactory probation performance is based on conviction of a new offense, it is not strictly limited to that fact. Rather, it must be proven that the defendant was ordered to serve a term of probation and remained on probation at the time he or she committed the new offense. These facts, too, go beyond the mere existence of a prior conviction and its elements. It cannot be shown that a rational juror could conclude that the prosecution has failed to prove beyond a reasonable doubt that these facts constitute factors in aggravation.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1089-1091