Case: 000256
[000256 — Gary’s Summary of summary: It was error for the court to impose the upper term based on aggravating factors not stipulated to or proved beyond a reasonable doubt to a jury.]
The defendant argues the sentencing court violated Penal Code section 1170(b)(2) by considering an aggravating circumstance not proven at trial, and the error prejudiced him. We agree, and therefore we will remand for resentencing.
First Holding: The sentencing court’s erroneous reliance on the vulnerable victim circumstance requires reversal and remand for resentencing. Section 1170(b)(2) states that the court may only sentence a defendant to the upper term based on aggravating circumstances the defendant stipulates to or that are found true beyond a reasonable doubt at trial. The error prejudiced the defendant because the trial court relied on the vulnerable victim aggravating circumstance in selecting a sentence. [See] Cunningham v. California (2007) 549 U.S. 270, 281 [Under the Sixth Amendment 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.]; Erlinger v. United States (2024) 602 U.S. 821, 834 [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].
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. [See] People v. Lynch (2024) 16 Cal.5th 730, 768.
Third Holding: Because it constitutes a violation of the Sixth Amendment, the matter must be remanded for resentencing unless the error was harmless beyond a reasonable doubt. 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. [See] People v. Lynch (2024) 16 Cal.5th 730, 761; Chapman v. California (1967) 386 U.S. 18.
Fourth Holding: Though generally, claims–including those involving a court’s failure to properly make or articulate its discretionary sentencing choices–not raised in the trial court may not be raised for the first time on appeal, an appellate court has the authority to decline to apply the forfeiture rule. [See] People v. Gonzalez (2024) 107 Cal.App.5th 312, 326; People v. Coddington (2023) 96 Cal.App.5th 562, 568; People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10 [Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim.].
Fifth Holding: The prosecution elected not to proceed on the vulnerable victim allegation, and thus the defendant had no occasion to bring any evidence contesting this alleged aggravating circumstance. The prosecution introduced no proof relevant to this aggravating circumstance other than the disparity in age between him and the victim and the church setting. In this situation, we cannot conclude beyond a reasonable doubt that the trial court as factfinder would have found the vulnerable victim aggravating circumstance true. For sentences imposed under the former law the record must clearly indicate that the court would have found an upper term justified had it been aware of its more limited discretion. Thus, we assume without deciding that the different posture of the instant case compared to that in Lynch requires an examination of whether the court would have imposed the same sentence in the absence of the error. We conclude the defendant has demonstrated prejudice in this regard, regardless of whether the applicable test is whether the record clearly indicates the court would have imposed the same sentence absent the error, or whether it is reasonably probable the court would have imposed the same sentence. [See] People v. Lynch (2024) 16 Cal.5th 730, 774; People v. Gutierrez (2014) 58 Cal.4th 1354.