Category Archives: Sixth Amendment

Sentencing, Sixth Amendment, Standard of review

Case 000515

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in sentencing him to the upper term when no aggravating circumstances were alleged in the information, he did not admit any aggravating circumstances, and no factfinder found any true beyond a reasonable doubt.

First Holding:

Under section 1170(b)(2), the court may impose the upper term only when aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or judge. That procedure was not followed here. A defendant, by entering into a plea agreement that includes the upper term as the maximum sentence, does not implicitly admit that his conduct could support that term. Specifically, while a plea agreement constitutes an admission to all the elements of the admitted offenses, it does not constitute an admission to any aggravating circumstance.

Authority:

PEN 1170(b)(2)

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

People v. Hoffard (1995) 10 Cal.4th 1170, 1177

Second Holding:

Accordingly, the court here erred in sentencing the defendant to the upper term. Given the total absence of any admitted or proven aggravating circumstances, we cannot conclude this error was harmless. A remand for resentencing is thus required.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 000491

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the high term on the firearm enhancement. The sentence on the section 12022.5(a) enhancement is stricken, and the case is remanded for further proceedings as discussed herein.

First 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.

Authority:

PEN 1170

Second Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, 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. 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. In other words, 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. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed. 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1087

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

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

Third Holding:

We presume the court relied on the manner in which the defendant used the firearm, rather than the fact that he used a firearm, because the latter is an element of the section 12022.5(a) enhancement. A court cannot use a fact constituting an element of the offense to aggravate a sentence. However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.

Authority:

PEN 1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court rule 4.420(h) [A fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term]

People v. Scott (1994) 9 Cal.4th 331, 350

People v. Castorena (1996) 51 Cal.App.4th 558, 562

Fourth Holding:

The proper remedy for this type of failure of proof—where aggravating facts were never tried to the jury—is to remand and give the People an opportunity to retry the aggravating facts. This is the correct remedy here. After such a trial, 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 the court cannot so conclude, or if the People elect not to retry the defendant on the aggravating circumstances, the court may impose no more than the middle term on the section 12022.5 enhancement.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 776, 778

Sentencing, Sixth Amendment

Case 000476

Posted on by Gary McCurdy

Error and/or relief

The imposition of the upper term of imprisonment violated the defendant’s Sixth Amendment right to a jury trial and was unauthorized under section 1170, subdivision (b) as he did not expressly waive the right as to the aggravating circumstances relied on by the sentencing court to justify imposing the upper term nor stipulate to their truth.

First Holding:

The court may impose a sentence exceeding the middle term only if there are circumstances in aggravation of the crime that justify the upper term. The facts underlying those aggravating circumstances must 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

Second Holding:

The Sixth Amendment entitles a defendant 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. Lynch (2024) 16 Cal.5th 730, 755–767

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.]

Third Holding:

An express waiver of a federally-derived jury trial right is required even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial. That is, the right to a jury trial on aggravating circumstances, which is guaranteed by the federal constitution, may not be forfeited without an express waiver by the defendant.

Authority:

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

Fourth Holding:

Here, appellant did not expressly waive his right to a jury trial on the aggravating circumstances and therefore has not surrendered his claim. No aggravating circumstances were pled in the complaint; as such, appellant’s plea, and his corresponding waiver of his constitutional rights, did not encompass any aggravating circumstances. A defendant does not waive his right to a jury trial on aggravating sentencing factors by pleading no contest to substantive offenses. Even if forfeiture did apply, we would nevertheless exercise our discretion to reach the issue. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right.

Authority:

People v. French (2008) 43 Cal.4th 36, 50

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

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

Fifth Holding:

We cannot determine from this record beyond a reasonable doubt that a jury would have found every aggravating factor relied on by the trial court properly proven. Several of the factors relied on by the sentencing court were fact-specific, which a reasonable jury could disagree on. Moreover, the sentencing court relied on factual recitations in the police reports, which counsel did not stipulate to admitting into evidence for the purpose of establishing aggravating factors, and which contained hearsay. Additionally, we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.

Authority:

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

Sixth Holding:

One court has held that the rule 4.421(c) residual clause [which was relied on in part by the trial court here, and lists as a potential factor in aggravation “Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed” exceeds the legislative delegation in section 1170.3 and thus violates the separation of powers clause of the California Constitution. It reasoned that because the 4.421(c) residual clause specifies no criteria for its use in jury factfinding, it supplies prosecutors unrestricted authority to make fundamental policy decisions on an ad hoc basis by letting prosecutors draft aggravating factors to submit to the jury not based on any statute or rule in order to expose the defendant to increased penalty. The court held that rule 4.421(c) is no longer appropriate under the current determinate sentencing law.

Authority:

Lovelace v. Superior Court (2025) 108 Cal.App.5th 1081, 1099

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000464

Posted on by Gary McCurdy

Error and/or relief

We conclude the prosecutor prejudicially misstated the law in closing arguments and defense counsel was ineffective for failing to object. We therefore reverse the judgment as to the murder conviction and accompanying sentence. The prosecutor prejudicially misstated the law during closing arguments, andt defense counsel’s failure to object to the prosecutor’s misstatements constituted ineffective assistance of counsel. However, because we additionally conclude that substantial evidence supported the conviction, the defendant may be retried.

First Holding:

The defendant forfeited any objection to the jury instructions by failing to object in the trial court. Generally, failure to object to a jury instruction forfeits a claim of error on appeal. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. The defendant’s failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. The defendant’s claims are forfeited.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471

People v. Centeno (2014) 60 Cal.4th 659, 674

Second Holding:

The defendant also asserts that his trial attorney’s failure to object to the instruction or the prosecutor’s argument constituted ineffective assistance of counsel. We therefore address the underlying claims of error in the context of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the right to the effective assistance of counsel at trial. The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.

Authority:

People v. Lopez (2008) 42 Cal.4th 960, 966 [a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate]

In re Lucas (2004) 33 Cal.4th 682, 721

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

People v. Ledesma (1987) 43 Cal.3d 171, 215

In re Long (2020) 10 Cal.5th 764, 773

Third Holding:

To prevail on his claim, the defendant must show that defense counsel’s omission fell below an objective standard of reasonableness in light of the professional norms prevailing when the representation took place. The defendant must also show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. It is enough to show a probability sufficient to undermine confidence in the outcome.

The standard for judging counsel’s representation is a most deferential one. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. Accordingly, we must reconstruct the circumstances of counsel’s challenged conduct, and evaluate the conduct from counsel’s perspective at the time.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 688, 689, 693-694

In re Long (2020) 10 Cal.5th 764, 773-774

Fourth Holding:

Where the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is a reasonable likelihood the jury understood or applied the prosecutor’s remarks in an improper or erroneous manner. We objectively examine how a reasonable juror would likely interpret the prosecutor’s remarks, bearing in mind that we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

Authority:

People v. Collins (2021) 65 Cal.App.5th 333, 340

Fifth Holding:

Where the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is a reasonable likelihood the jury understood or applied the prosecutor’s remarks in an improper or erroneous manner. We objectively examine how a reasonable juror would likely interpret the prosecutor’s remarks, bearing in mind that we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

Authority:

People v. Collins (2021) 65 Cal.App.5th 333, 340

Sixth Holding:

Defense counsel did not object to the prosecutor’s repeated misstatements of the law. In general, if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected.

Moreover, because, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct. Additionally, the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one and a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Here, however, we are constrained to conclude that there could be no satisfactory explanation for defense counsel’s failure to object to the prosecutor’s repeated misstatements of the law during closing arguments. The defendant has established that defense counsel’s failure to object fell short of prevailing professional standards of reasonableness. We also conclude that he has demonstrated a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Authority:

People v. Wilson (1992) 3 Cal.4th 926, 936

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

People v. Stratton (1988) 205 Cal.App.3d 87, 93

Appellate Principles, Discretion, Sixth Amendment, Standard of review

Case 000462

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially violated the Confrontation Clause (U.S. const., amend. VI) by overly restricting defendant’s cross-examination of two sheriff’s deputies, whose testimony was the only prosecution evidence presented on counts 2 and 4. And although our reversal on counts 2 and 4 likewise moots defendant’s Pitchess request, we exercise our discretion to address the issue and find that the trial court should have ordered the production of two civilian complaints.

Given this disposition, we need not address defendant’s claim that the abstract of judgment is incorrect, since the trial court must enter a new judgment on remand. Defendant’s sentence is therefore vacated. On remand, if the People do not timely retry defendant on counts 2 and 4, the trial court shall resentence him on counts 1, 3, and 5 accordingly. If the People timely retry defendant on counts 2 and 4, the trial court is directed to disclose the Pitchess records consistent with this opinion and afford defendant a reasonable opportunity to investigate the disclosed material before retrial.

First Holding:

Defendants have a Sixth Amendment right to cross-examine witnesses. But they have a right only to reasonable cross-examination. Trial courts therefore have wide discretion in determining the appropriate scope of cross-examination.

Authority:

People v. Royal (2019) 43 Cal.App.5th 121, 149

Olden v. Kentucky (1988) 488 U.S. 227, 231

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

Second Holding:

Although trial courts may reasonably limit a defendant’s cross-examination of a witness’s bias, the Sixth Amendment’s Confrontation Clause restricts the court’s discretion. A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.

The trial court’s restrictions on a defendant’s cross-examination of a witness for bias does not violate the Sixth Amendment unless the defendant shows that a reasonable jury might have received a significantly different impression of the witness had the defendant been permitted to pursue his proposed line of cross-examination. However, excluding evidence of marginal impeachment value generally does not violate the Confrontation Clause.

Authority:

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

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

People v. Quartermain (1997) 16 Cal.4th 600, 623

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Third Holding:

We review the trial court’s order restricting defendant’s cross-examination of the deputies for an abuse of discretion. We likewise review the trial court’s denial of defendant’s motion for a new trial for an abuse of discretion.

Authority:

People v. Peoples (2016) 62 Cal.4th 718, 765

People v. Hoyt (2020) 8 Cal.5th 892, 957

Fourth Holding:

The tactical decision (which was defendant’s to make) has no bearing on whether the trial court properly limited defendant’s cross-examination of the deputies. The issue is whether defendant had a reasonable opportunity to cross-examine the deputies’ potential bias, not whether that cross-examination might benefit the prosecution.

Authority:

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

Fifth Holding:

That defendant could have asked other witnesses about the 2015 incident to attack the deputies’ credibility is beside the point. Defendant had a Sixth Amendment right to reasonably probe the deputies’ credibility by cross-examining the deputies. The issue here is, again, whether the trial court’s limitation on defendant’s cross-examination of the deputies violated the Confrontation Clause, not whether defendant had other available means to explore the deputies’ bias beyond cross-examining them.

Authority:

People v. Smith (2007) 40 Cal.4th 483, 513 [Confrontation Clause allows appropriate cross-examination designed to show a prototypical form of bias on the part of the witness]

People v. Quartermain (1997) 16 Cal.4th 600, 623 [The right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility]

Sixth Holding:

The testimony of the deputies was effectively the only evidence presented on the assault on an officer and felony evading charges, since they were the only witnesses to those offenses. Evidence about the deputies’ knowledge of the earlier incident was thus not of marginal impeachment value, nor was it not relevant, as the trial court incorrectly concluded. This was the only evidence that showed the deputies might have been biased against defendant, despite their denials, and could have influenced the jury’s view of their testimony.

Given that defendant’s guilt on the two counts hinged on the deputies’ testimony, their credibility was a critical issue on those counts. The trial court’s ruling allowed defendant to ask the deputies only whether they knew defendant and whether they were biased against him. When both deputies said they were not biased against him, defendant could not then probe any potential bias stemming from the 2015 incident, even though the jury might have reasonably found that the incident gave the deputies a motive for favoring the prosecution. In our view, the trial court’s ruling made defendant’s cross-examination of the deputies an exercise in futility.

Authority:

United States v. Abel (1984) 469 U.S. 45, 52 [Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony]

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1280-1282[Bias has traditionally been viewed as especially powerful.]

Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 52 [Impeachment of a witness can make the difference between acquittal and conviction, especially where credibility is the major issue in a case and evidence at trial will consist of opposing stories presented by the defense and the prosecution witnesses.]

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [“blanket” ruling prohibiting all inquiry into a witness’s potential bias violated Confrontation Clause]

Seventh Holding:

The second step of the analysis asks whether a reasonable jury might have received a significantly different impression of the challenged witness’s credibility if the proposed line of cross-examination had been permitted. This requires us to focus on the witness’s cross-examination rather than the outcome of the trial as a whole, examining whether the defense had other means of impeachment of the witness during cross-examination. We review the issue de novo.

Authority:

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Eighth Holding:

In Davis, the United States Supreme Court reasoned: “While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why the witness might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness.”

So too here. Because we conclude the trial court’s ruling violated defendant’s Confrontation Clause right to cross-examine the deputies, we must reverse the convictions on counts 2 and 4 unless the People show the error was harmless beyond a reasonable doubt. The People have not done so.

Authority:

Davis v. Alaska (1974) 415 U.S. 308, 317-318

Delaware v. Van Arsdall (1986) 475 U.S. 673, 684

Ninth Holding:

A review of the Pitchess materials reveals that complaints had previously been filed against the deputies. Those materials should have been released to the defendant. The fact that the complaints were found by the internal police investigation to be unfounded is immaterial because unsustained complaints are discoverable. This is because “the burden for preparing a criminal defendant’s case rests with his counsel, not with the police department. That burden cannot be properly discharged unless counsel has direct access to potential witnesses, for it is counsel who must decide if they can aid his client, not the police department’s internal affairs division, however sincere and well motivated the latter may be.

Authority:

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Gaines (2009) 46 Cal.4th 172, 182

People v. Zamora (1980) 28 Cal.3d 88, 93 fn. 1, 101

Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829

Amelioration, Duty of the court, Sentencing, Sixth Amendment

Case 000450

Posted on by Gary McCurdy

Error and/or relief

In 2024, the defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Without conducting a full resentencing hearing, the trial court struck the defendant’s prior prison term enhancements. No party was present, including counsel for the defendant. The sentence must be vacated and the matter remanded for a full resentencing hearing consistent with section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required a court to impose a one-year sentence enhancement for each separate prior prison term served for a nonviolent felony, unless the defendant remained free from custody for at least five years. Effective January 1, 2022, the Legislature retroactively invalidated prior prison term enhancements imposed under section 667.5(b) prior to January 1, 2020, unless the term was served for certain sexually violent offenses. The Legislature also created procedures, in what is now section 1172.75, for sentencing courts to recall and resentence defendants who were serving prison terms on judgments that included the now invalid enhancement.

Authority:

PEN 667.5

PEN 1172.75

Second Holding:

Under section 1172.75, if a trial court determines a defendant is serving a sentence that includes a now invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. At the resentencing hearing, the court must eliminate the repealed prior prison term enhancement. But that is not the only thing the court is required to do. Section 1172.75 provides specific instructions for the resentencing. The court shall appoint counsel for the defendant and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Section 1172.75 also permits courts to consider postconviction factors in the resentencing inquiry, including evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Carter (2023) 97 Cal.App.5th 960, 966

Third Holding:

Here, the defendannt was eligible for relief under section 1172.75 as his prior convictions used for the prior prison term enhancements were not for a sexually violent offense. The trial court struck his prior prison term enhancements. The court, however, was required to conduct a full resentencing hearing, during which the defendant had the opportunity to be present and represented by appointed counsel. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 668, 673–674 [remanding for new hearing under sec. 1172.75 because defendant was not present at hearing and did not waive his presence]

People v. Cutting (2019) 42 Cal.App.5th 344, 346 [defendant’s absence from resentencing hearing constitutes federal constitutional error]

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Carter (2023) 97 Cal.App.5th 960, 968, 972 [defendant eligible for relief under sec. 1172.75 is entitled to full resentencing hearing to argue for further relief under other ameliorative changes]

People v. Coddington (2023) 96 Cal.App.5th 562, 568 [same]

Fourth Holding:

Upon resentencing the defendant, the court shall recalculate his custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40–41 [upon remand, trial court responsible for calculating all days defendant spent in custody prior to resentencing and presentence conduct credits prior to original sentencing]

Discretion, Jury trial, Sixth Amendment, Statutory interpretation

Case: 000407

Posted on by Gary McCurdy

Error and/or relief

Although the defendant initially decided not to testify at his trial, he changed his mind just before oral argument, after the court granted the prosecution’s motion to dismiss one of the counts and denied the defense motion for acquittal. As the People concede, it was error for the court to deny his request.

First Holding:

It cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 49

Second Holding:

After a litigant rests their case, the trial court has wide discretion to reopen a criminal matter to receive additional evidence. When this court reviews a trial court’s decision to preclude the defense from reopening the case to present additional evidence, we must consider four factors: (1) The stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. The trial court’s denial of the defendant’s request to testify is subject to the harmless beyond a reasonable doubt standard enunciated in Chapman.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 66

People v. Masters (2016) 62 Cal.4th 1019, 1069

Chapman v. California (1967) 386 U.S. 18, 24

People v. Allen (2008) 44 Cal.4th 843, 871–872

Third Holding:

With respect to the first factor, the state of the proceeding, when the defendant has recently rested his case, closing argument has not begun, and the jury has not been instructed, granting defendant’s request does not entail any great inconvenience. Only 25 minutes passed between when the defense rested and when the defendant expressed that he wished to testify.

Authority:

People v. Carter (1957) 48 Cal.2d 737, 757

Fourth Holding:

As to the defendant’s diligence, the trial court asserted it could not reopen the case because the defense had moved for acquittal, and the prosecution had dismissed count 2. This rationale is not supported by the law. Section 1118.1 provides, in relevant part, that if a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right. Here, the court took the defendant’s waiver and allowed the defense to rest before hearing its motion for acquittal. Thus, when the defendant decided to testify, the defense had to make a motion to reopen, which the court denied. Under section 1118.1, the court should have ruled on both the motion for acquittal and the prosecutor’s motion to dismiss before inquiring about the defendant’s decision to testify. Had this procedure been followed, the defendant would have had the opportunity to offer evidence after the denial of the motion for judgment of acquittal.

Authority:

PEN 1118.1

Fifth Holding:

The third factor is whether reopening the case will cause the jury to give undue emphasis to the new evidence. A jury may accord undue weight to evidence which is admitted close to the time deliberations begin. Here, at the time the defendant changed his mind, the jury had not been told whether he intended to testify. Further, although the court had advised the jury that the presentation of evidence was complete, that advisement occurred only shortly before the defendant changed his mind. For these reasons, we have no reason to believe that the jury would have afforded undue weight to his testimony if the court had reopened the defense case and this factor also shows an abuse of discretion.

Authority:

People v. Funes (1994) 23 Cal.App.4th 1506, 1521

Sixth Holding:

The final factor, the significance of the evidence, also shows error by the trial court. The most important witness for the defense in many criminal cases is the defendant himself. This was not a lopsided case with overwhelming and incontrovertible evidence of guilt, as demonstrated by the jury’s acquittal on count 1. Courts must evaluate whether the interests served by restricting a defendant’s right to testify justify the limitation imposed on this most basic right of a defendant in a criminal case—to present his own version of events in his own words. Here, the trial was relatively short and involved a single defendant, and the jury instructions and closing arguments had not yet occurred at the time Mendoza made his request. The defendant’s testimony may have been highly significant and could have altered the outcome of the case. Under this four-factor test, the court’s decision constituted an abuse of its discretion.

Authority:

Rock v. Arkansas (1987) 483 U.S. 44, 51-52, 56

Seventh Holding:

Finally, as the parties agree, the error was not harmless beyond a reasonable doubt. The jury deliberated for over three hours and acquitted the defendant of count 1, suggesting it entertained doubts about at least certain aspects of the prosecution’s case. It cannot be said that the jury necessarily would have reached the same result if the court had permitted the defendant to testify.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

Juveniles, Sentencing, Sixth Amendment

Case: 000402

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 1170 and the defendant’s right to a jury trial by relying on aggravating factors that were not proven to a jury beyond a reasonable doubt or stipulated to under to section 1170(b). And the court must conduct a Franklin hearing.

First Holding:

On January 1, 2022, SB 567 went into effect, amending section 1170. Section 1170 now authorizes a trial court to 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. However, 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.

Authority:

PEN 1170(b)(3)

Second Holding:

While not directly addressing section 1170, the United States Supreme Court held that, 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. An exception to this allows a trial court 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, 834, 838

Third Holding:

In accordance with Erlinger, Wiley 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. The court also addressed two specific aggravating factors specified in the Rules of Court–the increasing seriousness of a defendant’s prior convictions and a defendant’s unsatisfactory performance on probation or parole, and held that each must be found true by a jury before it can be used to justify an upper term sentence.

Authority:

Rules of Court rules 4.421(b)(2) and (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1082-108

Fourth 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.

Authority:

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

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

Fifth Holding:

In selecting the upper term on count 5, the trial court relied on the defendant’s extensive serious record. While the court did not refer to any specific aggravating factor, it appears the court relied on, at the very least, the increasing seriousness of his prior convictions or sustained juvenile petitions. However, a jury determination is required before a court can rely on this aggravating factor to justify an upper term sentence. Here, there was no jury trial, stipulation, or jury trial waiver on this factor in aggravation. Accordingly, the court’s reliance on this factor to impose an upper term sentence was error.

Authority:

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

Sixth Holding:

The determination of whether these prior convictions are of increasing seriousness is a comparative and qualitative one, which makes 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. A rational juror may not have been persuaded beyond a reasonable doubt. As we cannot conclude beyond a reasonable doubt that a jury would have found this aggravating factor true, the error was not harmless. As the trial court erred and the error was not harmless, we will vacate the sentence and remand the case for a full resentencing.

Authority:

People v. Wiley [(2025)] 17 Cal.5th 1069, 1087, 1090

People v. Buycks (2018) 5 Cal.5th 857, 893

Seventh Holding:

The trial court also misunderstand its responsibility to conduct a Franklin hearing itself, believing that it was a parole matter to be handled by the Parole Board. A Franklin proceeding gives an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Parole] Board, years later, may properly discharge its obligation to give great weight to youth-related factors in determining whether the offender is fit to rejoin society. On remand, the court must conduct a Franklin hearing.

Authority:

In re Cook (2019) 7 Cal.5th 439, 449

People v. Franklin (2016) 63 Cal.4th 261

Sentencing, Sixth Amendment

Case: 000387

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in using aggravating factors that were neither found true beyond a reasonable doubt by a trier of fact nor admitted by the defendant.

First Holding:

Section 1170(b)(1) through (3) provides the court may impose the upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term. As amended, section 1170(b) altered the trial court’s sentencing discretion and created a presumption against the upper term, which may be overcome only if the required facts are properly proven and the trial court concludes the term is justified. Unless a defendant stipulates to the facts, or waives his or her jury trial right, that aggravating factfinding role now resides solely with the jury The trial court may also consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction. 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, 760, 768, 773

Second Holding:

A 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. Accordingly, a defendant is entitled to reversal and remand unless we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt under Chapman as to every aggravating fact the trial court used to justify an upper term sentence. 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, 768, 775

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

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

Appellate Principles, Plea bargains, Sentencing, Sixth Amendment

Case: 000377

Posted on by Gary McCurdy

Error and/or relief

In exchange for the defendant’s plea, the People dismissed nine other counts and the parties stipulated to a sentence between the range of five and 13 years in prison. On appeal, the defendant contends the trial court prejudicially erred by imposing the upper term sentence of 13 years based on aggravating factors that he did not stipulate to and were not found true beyond a reasonable doubt at a trial. We agree and reverse the judgment and remand for resentencing. The defendant may stipulate to the factors in aggravation. If he chooses not to stipulate, he may demand a trial by jury or court, at which the prosecution must prove beyond a reasonable doubt the aggravating factors. Unless the defendant stipulates to the factors in aggravation, if the prosecution does not prove them at trial, the court must impose a sentence no greater than the middle term.

First Holding:

Although the failure to obtain a certificate of probable cause generally bars an appeal following a guilty plea, a certificate of probable cause is not required to raise on appeal a claim, such as the one the defendant presents here, regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 790–791

Second Holding:

A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. Thus, a waiver of appeal rights does not apply to possible future error, including sentencing error, that is outside the defendant’s contemplation and knowledge at the time the waiver is made.

Waiver is ordinarily a question of fact. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. There is no dispute that when the defendant entered his plea he gave up his right to appeal any sentence stipulated in the plea agreement. Such a waiver may preclude an appellate challenge to the trial court’s imposition of a specific prison term that was stipulated in the plea agreement. What we must determine here, however, is whether the scope of such a waiver also includes a challenge to a trial court’s choice of a sentencing term from a stipulated range.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 940–941

People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662

People v. Panizzon (1996) 13 Cal.4th 68, 72–73, 85–86

Third Holding:

Buttram is instructive on the issue of waiver of the right to appeal. In considering this issue, the court distinguished Buttram’s case from cases involving plea agreements stipulating to a specified sentence, and found persuasive the argument that a negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings, in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain.

The court further reasoned that, when the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. Finally, in determining Buttram’s appeal challenging the imposition of the maximum sentence was not precluded by his guilty plea, the court reasoned that an agreement for something other than a specified sentencing term, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 782, 785, 790–791

Fourth Holding:

Here, the defendant stipulated to a sentencing range that set both the minimum and the maximum sentence but did not specify the exact sentence to be imposed. Nothing in the plea agreement dictates the terms by which the trial court would determine what sentence to impose from within the stipulated range. And nothing in the plea agreement stipulates that the trial court, in making its sentencing decision, would not be bound by section 1170(b), or the Sixth Amendment to the United States Constitution, which limit the ability of a trial court to impose an upper term sentence absent sufficient proof of aggravating factors.

Authority:

PEN 1170(b)(1) and (2)

Cunningham v. California (2007) 549 U.S. 270, 281 [under the Sixth Amendment, 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]

Fifth Holding:

Section 1170(b) generally provides that a sentence may not exceed the middle term, except when it finds aggravating circumstances justify a higher sentence. Both section 1170(b) and the Sixth Amendment require that these aggravating factors be stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. A court does not have discretion to impose an upper term sentence unless all the aggravating factors on which it relies have been sufficiently proven.

Authority:

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

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

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

Sixth Holding:

The Courts of Appeal have split on the issue of whether a defendant, who stipulated to an upper term sentence pursuant to a plea agreement, is entitled to remand for consideration of the aggravating factors under section 1170, subdivision (b)(2), and the Supreme Court has granted review on this issue.

Gary LONG note: In this Sixth Holding, the appellate court is alluding to People v. Stamps (2020) 9 Cal.5th 685, although it does not actually mention Stamps. Stamps holds that if a defendant insists on taking advantage of ameliorative provisions in a case where the plea bargain specified the sentence, and the trial court changes the sentence based on those ameliorative provisions, either the prosecution or the court may set aside the original plea bargain entirely if not satisfied with the new sentence. But given a new statute, I wonder whether Stamps is still good law. (That is a “wonder if,” not a “statement of law.”) Effective 1/1/2025, section 1171 was enacted to give courts guidance on how to handle various amerliorative statutes.

Take a look at the excerpt from 1171(c)(3):

Penal Code section 1171(a): For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.

…

(c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.

…

(e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.

…

(f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.

On 5/18/2026, Mitchell (shown in this list of authorities relied on in the case) was decided by the Supreme Court. People v. Mitchell (2026) 19 Cal.5th 729. The Supreme Court did not rely on section 1171, but instead remanded for the procedure it outlined in Stamps–if the defendant gets what he wants, and the DA or the court is not happy with the modification, then the plea must be set aside. In its footnote 9, however, it stated,

“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 … sets forth procedures governing a ‘postconviction proceeding,’ which the statute defines as ‘a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.’ … At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

I suspect the Supreme Court wanted to see how the lower courts are treating section 1171 before it chooses to weigh in. While I do not know if that IS what the Supreme Court had in mind, I think there is value in that approach from the perspective of establishing the law. When major issues are briefed by multiple attorneys in several different cases, and Courts of Appeal arrive at their decisions through their own means of arriving at a legal conclusion, it gives the broadest perspective for the Supreme Court to decide what makes the most sense. I repeat, that’s just my opinion.

I also want to point out that In People v. Montgomery (no longer a published opinion, but it was originally published at 100 Cal.App.5th 768 before the Supreme Court granted review and ultimately ordered the opinion to be depublished), the Supreme Court had before it a question on whether Stamps applied. The Court of Appeal had concluded that relief under section 1172.75 would not permit the DA or trial court from vacating the plea agreement (i.e., a NON-Stamps approach). In December 2024, just before section 1171 was to go in effect on January 1, 2025, the Supreme Court transferred the case back to the Court of Appeal in light of section 1171. Subsequently, the Court of Appeal issued an unpublished opinion in which it essentially affirmed its previous result–modification under section 1172.75 would not result in the plea being set aside in light of section 1171.

And if I may quote from Paul Harvey, “And now you know … the rest of the story.”

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted Apr. 26, 2023, S279154 [same]

People v. Fox (2023) 90 Cal.App.5th 826, 831 [same]

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 340–341, review granted Apr. 26, 2023, S278690 [same]

People v. Kelly (2022) 87 Cal.App.5th 1, 4, review granted Mar. 22, 2023, S278503 [same]

Abstracts and Minutes, Sentencing, Sixth Amendment

Case: 000373

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed the upper term based on aggravating facts that did not conform with the jury trial requirements under section 1170(b).

First Holding:

The Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the due process clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Authority:

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

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

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

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. Section 1170(b)(3) states 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.

Authority:

PEN 1170

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

Third Holding:

In considering a prior conviction, a judge may do no more than determine what crime, with what elements, the defendant was convicted of. 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. 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.

Absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor. The 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, 1083-1086

Erlinger v. United States (2024) 602 U.S. 82

Fourth 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. 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, 1087

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

Fifth Holding:

Although the minute order indicates defendant entered into a valid waiver to a jury trial, the reporter’s transcript does not reflect that the trial court advised defendant of his right to a jury trial and did not obtain a valid and informed waiver of that right. The People concede the court erred by not obtaining defendant’s waiver to a jury trial or stipulation to the aggravating facts. We agree that the court erred when it found both aggravating facts true without obtaining defendant’s stipulation or waiver of his right to a jury trial.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169 [defendant’s waiver of the right to jury trial must be expressed in words and will not be implied from a defendant’s conduct]

People v. Washington (1949) 95 Cal.App.2d 454, 458–459 [a defendant’s waiver of the right to jury trial must be personally expressed in open court; an entry in the clerk’s minutes is not enough]

Sentencing, Sixth Amendment, Standard of review

Case: 000365

Posted on by Gary McCurdy

Error and/or relief

We affirm the conviction. The defendant is entitled to remand for resentencing under AB 518 because of the amendment to section 654, which formerly required the trial court to select as the principal term the offense with the longest potential sentence; and under SB 567 because the trial court imposed an upper term for the attempted murder of the victim based on unpleaded and unproven aggravating factors.

First Holding:

In addressing a claim of insufficient evidence to support a conviction, this court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. Reversal for insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. We review the sufficiency of the evidence to support a firearm enhancement using the same standard we apply to a conviction.

Authority:

People v. Jackson (2016) 1 Cal.5th 269, 345

People v. Campbell (2020) 51 Cal.App.5th 463, 484

People v. Manriquez (2005) 37 Cal.4th 547, 577

People v. Bryant (2011) 191 Cal.App.4th 1457, 1472

Second Holding:

The ameliorative changes effected by AB 518 and SB 567 apply retroactively to defendant’s nonfinal judgment on appeal.

Authority:

People v. Fugit (2023) 88 Cal.App.5th 981, 995-996

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

Effective January 1, 2022, AB 518 amended section 654 to authorize trial courts to punish an act or omission that is punishable in different ways by different provisions of law under either of such provisions. Before the enactment of Assembly Bill No. 518, and when the trial court sentenced defendant, section 654 required the court to punish an act that was punishable in different ways by different laws only under the provision that provides for the longest potential term of imprisonment.

Thus, section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Because the court imposed the sentence on count three on the basis that it had a longer maximum exposure than that of count four, as was required by section 654 at the time of sentencing, we will vacate the sentence and remand for a full resentencing hearing based on current law.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Fourth Holding:

Effective January 1, 2022, section 1170(b) was amended by SB 567. The amended statute created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense. Section 1170(b)(6) provides that unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of specified factors was a contributing factor in the commission of the offense, including that the person is a youth, or was a youth as defined under section 1016.7(b) at the time of the commission of the offense.

Authority:

PEN 1170(b)(6)

PEN 1016.7

People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039

Fifth Holding:

Additionally, SB 567 amended section 1170(b)(2) to provide that 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. 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

Sixth Holding:

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, but the prior conviction exception to the Sixth Amendment permits a trial court to do no more than determine of what crime, with what elements, defendant was convicted

Authority:

PEN 1170(b)(3)

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

Seventh Holding:

Because the court did not apply the presumption in favor of a low term due to defendant’s youth, and imposed the upper term based on aggravating factors that had not been pleaded or found true beyond a reasonable doubt at trial by the jury, the court’s imposition of the upper term was improper. As we are already remanding for a full resentencing, we need not and do not consider whether the error was harmless beyond a reasonable doubt. But 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.

Authority:

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

Eighth Holding:

At resentencing, the trial court must revisit all its sentencing choices in light of all applicable legislation. That includes, but is not limited to, AB 518, SB 567, and SB 81 (2021-2022 Reg. Sess.), which became effective January 1, 2022, and amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice.

Authority:

PEN 654

PEN 1170

PEN 1385

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Sek (2022) 74 Cal.App.5th 657, 674