Category Archives: Sixth Amendment

Sentencing, Sixth Amendment, Standard of review

Case 001039

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term on the firearm enhancement based on aggravating circumstances which were not pleaded in the information nor found true by the jury. Remanded for resentencing.

First Holding:

The prosecution conceded that no aggravating circumstances were alleged against the defendant to support imposing the upper term on the enhancement. But she asserted that the evidence showed the defendant committed the crime with planning, sophistication, and professionalism, which is a factor in aggravation under California Rules of Court, rule 4.421(a)(8). Over objection by defense counsel, the court found the factors cited by the prosecution true and imposed the upper term on the firearm enhancement. This was error.

Section 1170.1(d)(2) permits a trial court to impose the upper term for a sentencing enhancement only when there are circumstances in aggravation 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 1170.1(d)(2)

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. 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. On this record, we cannot say the error was harmless beyond a reasonable doubt.

Authority:

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

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

Third Holding:

The District Attorney failed to allege any aggravating circumstances against the defendant in the information. The prosecutor merely argued that the evidence supported aggravating facts that she described for the first time at the sentencing hearing.

These aggravating circumstances—the offense was committed with planning, sophistication, and professionalism, and it was coldhearted, ruthless, and committed with disregard for human life—rest on a subjective standard, making it 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

Amelioration, Discretion, Sentencing, Sixth Amendment, Standard of review

Case 001036

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court misunderstood its discretion to reduce a 10-year section 12022.53(b) firearm enhancement and impose a lesser uncharged enhancement. The court violated the defendant’s constitutional rights by imposing an upper term sentence without a jury determination of aggravating factors. Accordingly, we will remand so the People may have an opportunity to retry the aggravating factors and for the court to exercise its sentencing discretion.

First Holding:

A sentencing court, in the interest of justice pursuant to section 1385, may strike or dismiss an enhancement otherwise required to be imposed under section 12022.53. This discretion includes imposing a lesser included, uncharged enhancement under statutes other than section 12022.53, such as section 12022.5(a).

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 701

People v. McDavid (2024) 15 Cal.5th 1015, 1020-1021

People v. Tirado (2022) 12 Cal.5th 688, 692 [The statutory framework of section 12022.53 permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead]

Second Holding:

A court unaware of its discretionary powers cannot exercise informed discretion. In this circumstance, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.

Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Salazar (2023) 15 Cal.5th 416, 431

Third Holding:

As a matter of constitutional right, absent a stipulation or waiver, any aggravating fact other than a prior conviction relied upon to support an upper term sentence must be found true by a jury beyond a reasonable doubt.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 739

People v. Wiley (2025) 17 Cal.5th 1069 [Under the federal Constitution’s Fifth and Sixth Amendments, 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.]

Fourth Holding:

Determinations that a defendant’s prior convictions are of increasing seriousness and his or her unsatisfactory performance on probation require a jury determination of those facts before they can be used to justify an upper term sentence. Finding increasing seriousness of prior convictions requires a qualitative assessment of the offenses’ time, location, character, and purpose.

A defendant’s probation performance could involve consideration of evidence of misconduct not previously adjudicated in a criminal trial; and it would also involve proving the defendant was ordered to serve a term of probation and remained on probation at the time of the new offense. Thus, the determination involves circumstances clearly going beyond the fact of prior conviction and its elements.

Authority:

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

Erlinger v. United States (2024) 602 U.S. 821, 840

Fifth Holding:

A California trial court’s reliance on information in a probation department presentence report to impose an upper term sentence is now precluded.

Authority:

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

Sixth Holding:

Under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). A narrow exception permits judges to find only the fact of a prior conviction. Under that exception, 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, 843

Seventh Holding:

A trial court has discretion to reconsider the entire sentence on a remand for resentencing. Because we remand for resentencing here, the proper course is to permit the court to exercise its discretion as to the entire sentence and all of its sentencing choices, including whether to strike or dismiss the defendant’s enhancements under section 1385(c).

Authority:

People v. Trammel (2023) 97 Cal.App.5th 415, 435 [a resentencing court is permitted to reconsider all of its discretionary sentencing choices]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

People v. Hill (1986) 185 Cal.App.3d 831, 834 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.]

Sentencing, Sixth Amendment, Standard of review

Case 001034

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s right to a jury trial on the aggravating circumstances it used to impose upper term sentences.

First Holding:

In a bifurcated proceeding, the trial court found true the existence of aggravating factors under California Rules of Court, rule 4.421(b)(2) and (4). The court conducted a bench trial on these factors because, at the time, it was believed that they did not need to be tried to a jury. The trial court found that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous within the meaning of rule 4.421(b)(2). It also found defendant was on probation when the crimes at issue in this appeal were committed. (Rule 4.421(b)(4).

Based on Wiley, the trial court improperly determined facts beyond the mere existence of his prior conviction and its elements, and relied on its conclusions in choosing an upper term sentence.

Authority:

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

People v. Wright (2025) 113 Cal.App.5th 832, 847 [The error here was that the defendant was entitled to, but did not receive (or waive), trial by jury on the aggravating factor of whether he had suffered numerous convictions in the past]

Second Holding:

A defendant has a statutory and constitutional right to a jury trial on all aggravating facts, other than a prior conviction, that are relied upon to justify an upper term. In Wiley, our Supreme Court overruled its prior authority construing the prior conviction exception to include other related issues concerning a defendant’s criminal history or recidivism such as unsatisfactory performance on probation and the increasing seriousness of a defendant’s prior convictions.

The court held that 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, 1076, 1078, 1084, 1086

Third 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 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.

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

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

Fourth 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.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 840

Amelioration, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Vicarious liability

Case 001033

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to deny the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for the court to conduct an evidentiary hearing.

First Holding:

Section 189, as amended, limits liability under a felony-murder theory principally to actual killers and those who, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—that is, the statute defining the felony-murder special circumstance.

Authority:

PEN 189

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced. The petition must allege the petitioner was:

(1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) convicted of murder, attempted murder, or manslaughter; and

(3) could not presently be convicted of murder because of changes to sections 188 or 189.

Authority:

PEN 1172.6

Third Holding:

Where the petition complies with the three requirements, the superior court proceeds to section 1172.6c), to assess whether the petitioner has made a prima facie showing for relief. The prima facie inquiry is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the superior court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960, 971

People v. Strong (2022) 13 Cal.5th 698, 708

Fourth Holding:

A denial at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. This is a purely legal conclusion, which we review de novo.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fifth Holding:

To be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also aid or abet the actual killer in the lethal act, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires aiding the commission of the perpetrator’s life-endangering act]

Sixth Holding:

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony, the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Bocanegra (2026) 122 Cal.App.5th 481

Sentencing, Sixth Amendment, Standard of review

Case 001028

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating facts that were not stipulated to or submitted to a jury for proof beyond a reasonable doubt. Remanded for a full resentencing.

First Holding:

Effective January 1, 2022, SB 567 amended Penal Code section 1170(b)(2) to provide that, when a statute specifies three possible terms of imprisonment, the trial court cannot impose a sentence exceeding the middle term unless it finds that a longer sentence is justified by circumstances in aggravation of the crime and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury at trial.

Authority:

PEN 1170(b)(2)

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 70

Second Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements. 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.

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. Wiley (2025) 17 Cal.5th 1069, 1086-1087

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

Third Holding:

The determination that a 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. The defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness before the court could rely on this aggravating fact to find justification for an upper term sentence.

Applying the Chapman standard of review, we conclude that failure to afford the defendant a jury trial on whether his prior convictions were of increasing seriousness was prejudicial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1085

People v. Lynch (2024) 16 Cal.5th 730, 776 [Because we cannot find the omission of a jury trial harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, the defendant’s sentence must be reversed]