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Case Summaries

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Abstracts and Minutes, Duty of counsel, Sentencing

Case: 000161

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to accurately reflect the sentence orally imposed by the court. Here, the abstract incorrectly states that the court imposed an enhancement term of 25 years to life for gang-related firearm enhancements. In fact, those enhancements were not retried; they both must be stricken from the abstract. The abstract also incorrectly states that the enhancement imposed and stayed on count 3 was imposed under both subdivisions (d) and (e)(1) of section 12022.53.

First Holding:

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

A defendant who fails to object before the trial court to a sentence on the ground that it is being imposed in a procedurally or factually flawed manner generally forfeits the right to challenge such error on appeal. The objections must be specifically articulated, to provide the trial court with a meaningful opportunity to evaluate the claims and correct any errors. Appellant did not object when the court stated its reasons for imposing consecutive sentences, nor did he object when given the opportunity to do so at the conclusion of the hearing. We accordingly find these arguments forfeited.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 710

People v. Scott (1994) 9 Cal.4th 331, 354

People v. De Soto (1997) 54 Cal.App.4th 1, 9

Elements of crime, Jury instructions

Case: 000160

Posted on by Gary McCurdy

Error and/or relief

The deadly weapon enhancement attached to the attempted carjacking in count two must be reversed due to instructional error.

First Holding:

The trial court committed error (known as alternative theory error) by presenting the jury with two theories by which it could find a knife to be a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct. Because a knife can be, and usually is, used for innocent purpose, it is not among the few objects that are inherently deadly weapons

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 6

Second Holding:

When alternative theory error occurs, the reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 13

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

Sentencing

Case: 000159

Posted on by Gary McCurdy

Error and/or relief

The defendant was entitled to conduct credits.

Holding:

The defendant was awarded 175 days credit for presentence custody but no conduct credits. Because he was convicted of a violent felony, section 2933.1 limits the conduct credit to 15% of the number of days in actual custody. He thus was entitled to an award of 26 days conduct credit—i.e., 15 percent of 175.

Authority:

PEN 2933.1

Abstracts and Minutes, Amelioration, Sentencing

Case: 000158

Posted on by Gary McCurdy

Error and/or relief

Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.

First Holding:

Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.

Authority:

PEN 1172.6

Second Holding:

A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532

People v. Basler (2022) 80 Cal.App.5th 46, 57

People v. Jackson (2025) 110 Cal.App.5th 128, 150-151

Third Holding:

The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.

Authority:

Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668

Fourth Holding:

Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.

Authority:

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

People v. Nieves (2021) 11 Cal.5th 404, 461

People v. Mendoza (2016) 62 Cal.4th 856, 902

Amelioration, Sentencing

Case: 000157

Posted on by Gary McCurdy

Error and/or relief

In light of the California Supreme Court’s recent decision in Fletcher, we vacate the trial court’s findings that defendant’s 2016 conviction for violating section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposing a prior serious felony conviction enhancement. Defendant’s sentence is vacated and this matter is remanded for further proceedings.

First Holding:

The Legislature enacted AB 333, effective January 1, 2022, to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. As noted, AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22.

Authority:

AB 333

PC 186.22

People v. Fletcher (2025) 18 Cal.5th 576

People v. Rojas (2023) 15 Cal.5th 561

People v. Tran (2022) 13 Cal.5th 1169

Second Holding:

Defendant was convicted of making criminal threats in this case more than two years after the amendment of section 186.22, but for purposes of sentencing under the Three Strikes law and imposition of a prior serious felony conviction enhancement, the trial court found true that in 2016, defendant was convicted of active participation in a criminal street gang, in violation of section 186.22(a), which is a serious felony. Courts of Appeal were split on whether prosecutors were required to prove prior gang convictions under section 186.22 as amended by AB 333 or whether it was sufficient to show a conviction under the statute in effect at the time of the prior conviction.

Based on this split of authority, defendant claimed entitlement to relief from the court’s findings related to his 2016 gang conviction because the conviction must meet the elements of section 186.22(a), as amended by AB 333. The California Supreme Court resolved the split of authority in defendant’s favor and held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Third Holding:

On remand, the People may elect to retry the prior conviction allegations under section 186.22(a) as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Appellate Principles, Sentencing, Standard of review

Case: 000156

Posted on by Gary McCurdy

Error and/or relief

On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.

First Holding:

At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

Second Holding:

Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.

We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

[Gary Note: This opinion was issued in December 2025. Effective 1/1/2025, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58

Third Holding:

We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033

People v. Burke (2023) 89 Cal.App.5th 237, 242

Fourth Holding:

Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]

Fifth Holding:

On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Elements of crime

Case: 000155

Posted on by Gary McCurdy

Error and/or relief

The jury found the defendant guilty of grand theft for his unlawful killing of a mountain lion that had been part of a study conducted by the a state educational institution. The conviction for grand theft must be reversed because there was no substantial evidence that the educational institution owned the mountain lion. We reverse defendant’s conviction for grand theft.

First Holding:

An essential element for grand theft was that the educational institution had a proprietary or possessory interest in the mountain lion. Although wild animals are collectively owned by the people of California generally, the state does not have a possessory interest in wild animals for purposes of the theft statutes.

Authority:

CIV 656 [Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued.]

People v. Brady (1991) 234 Cal.App.3d 954, 957. [The well-settled rule in California is that no one holds a personal property right in wild animals or fish unless captured, tamed or otherwise reduced to possession.]

Second Holding:

The educational institution’s temporary capture and release of the mountain lion into the wild with a tracking collar did not vest the educational institution with an interest in the mountain lion protectable by the theft statutes of this state

Authority:

Moerman v. State of California (1993) 17 Cal.App.4th 452, 457-458 [state did not own for purposes of inverse condemnation tule elk captured, tagged, relocated, and monitored as part of state program]

Due process

Case: 000154

Posted on by Gary McCurdy

Error and/or relief

After the preliminary hearing, the defendant failed to appear at a trial readiness conference. The trial court then allowed the prosecution to amend the information to add a fourth charge for willful failure to appear on felony charges. The case proceeded to trial and a jury found the defendant guilty of all four counts. The court’s ruling violated section 1009 and impinged upon his constitutional due process rights because the new charge was not supported by evidence from the preliminary hearing.

First Holding:

The court may allow amendment of the accusatory pleading to correct or make more specific the factual allegations of the offense charged at any stage of the proceeding, up to and including the close of trial, if there would be no prejudice to the defendant.

Authority:

People v. Graff (2009) 170 Cal.App.4th 345, 361

Second Holding:

Section 1009 provides that an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.

Authority:

People v. Rogers (2016) 245 Cal.App.4th 1353, 1360 [Section 1009 prohibits amending an information to charge an offense not shown by evidence taken at the preliminary hearing, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges.]

People v. Peyton (2009) 176 Cal.App.4th 642, 654 [In enacting section 1009, the Legislature determined that an accusatory pleading cannot be amended based on evidence not taken at the preliminary hearing]

People v. Winters (1990) 221 Cal.App.3d 997, 1007 [Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at the preliminary hearing.]

Third Holding:

The trial court’s accession to an amendment to the information, including the addition of counts, is reviewed for abuse of discretion. The trial court abused its discretion by permitting the amendment at issue. The preliminary hearing was held before the defendant committed the acts giving rise to the new charge of failure to appear. Therefore, the new charge was not based on evidence from that hearing. By allowing the prosecution to add the new charge, the court violated section 1009 and exceeded the bounds of its discretion

Authority:

People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581

Fourth Holding:

Case law has recognized that reversal is automatic where, as here, a defendant is convicted of an offense that was not based on evidence taken at a preliminary hearing. It is as a matter of law irrelevant whether a defendant is prejudiced by being prosecuted for an offense not shown by the evidence at the preliminary hearing. Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to preliminary examination. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial. To say that he was accorded a fair trial upon an information filed against him without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. Such an argument would apply with equal force to the validity of the conviction upon an information filed by the district attorney in a case where no preliminary examination at all had been held. Such practice would result, in legal effect, in wiping out all provisions of the Constitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his judgment he might consider guilty of crime.

Authority:

People v. Burnett (1999) 71 Cal.App.4th 151, 177

People v. Winters (1990) 221 Cal.App.3d 997, 1007

Fifth Holding:

A defendant’s conviction of a charge that was improperly added to a charging instrument is unquestionably prejudicial.

Authority:

People v. Dominguez (2008) 166 Cal.App.4th 858, 868

Probation Parole PRCS, Statutory interpretation

Case: 000153

Posted on by Gary McCurdy

Error and/or relief

After petitioner admitted to parole violations, the superior court revoked petitioner’s parole and remanded him to the custody of the Department of Corrections and Rehabilitation (CDCR) pursuant to section 3000.08(h). He should not have been remanded to state prison under section 3000.08(h), but instead confined to county jail for no more than 180 days pursuant to section 3000.08(f) and (g)

First Holding:

For all inmates released from prison on parole on or after July 1, 2020, notwithstanding any other law, any inmate sentenced to a life term shall be released on parole for a period of three years. Therefore, it is section 3000.01 and not section 3000.1 that applies to convicted murderers who, like petitioner, are paroled after July 1, 2020. Because section 3000.1 does not apply to petitioner, he is not subject to section 3000.08(h), remanding him to the custody of CDCR. The trial court is directed to vacate its order remanding petitioner to the custody of the CDCR and hold further proceedings to determine what penalties to impose for petitioner’s parole violation, as provided by section 3000.08(f) and (g

Authority:

PEN 3000.01(b)(2) [subject to two exceptions not relevant here, under subdivision (d)]

Second Holding:

By using the phrase “notwithstanding any other law,” the Legislature signaled its intent for the later-enacted statute–section 3000.01–to preempt the conflicting, preexisting statute in section 3000.1

Authority:

APeople v. Reed (2024) 103 Cal.App.5th 43, 53

Appellate Principles, Sentencing, Sixth Amendment

Case: 000152

Posted on by Gary McCurdy

Error and/or relief

The sentencing court violated Penal Code section 1170(b)(2) by considering an aggravating circumstance not proven at trial, and the error was prejudicial.

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.

Authority:

PEN 1170(b)(2)

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.

Authority:

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.

Authority:

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.

Authority:

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.

Authority:

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

People v. Gutierrez (2014) 58 Cal.4th 135

Appellate Principles, Fines and fees

Case: 000151

Posted on by Gary McCurdy

Error and/or relief

Though the court affirmed the other orders of the trial court regarding the resentencing conducted under Penal Code section 1172.75, the restitution fine, ordered more than 10 years earlier, must be stricken.

First Holding:

As a result of amendments effective January 1, 2025, the restitution fine must be stricken, because it has been more than 10 years since it was originally imposed. Penal Code section 1465.9 provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Not only is the unpaid portion now uncollectible, the court must vacate the portion of the judgment imposing it.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626-627

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953

Second Holding:

Though the People argue that the 10 years has not passed, because he was resentenced only a few years ago, the People do not identify any legal authority or develop any substantive reasoning supporting the proposition that a component of a defendant’s punishment starts over at resentencing. We therefore need not consider that argument.

However, the plain language of the statute does not support their interpretation and the result they advocate for is in tension with clearly expressed legislative intent to eliminate fees and fines that deepen the poverty cycle for offenders without meeting the financial needs of crime survivors. We find the People’s position untethered from the plain language of the statute and the underlying legislative intent, and in advancing the proposition that the restitution fine was “reimposed” at the resentencing hearing such that the clock affording defendant ameliorative relief from a component of his punishment restarted, they fail to elucidate the point or acknowledge any of the issues such an interpretation necessarily implicates. Therefore, we give effect to the plain language of section 1465.9(d) providing that any portion of a judgment imposing a restitution fine under section 1202.4 shall be vacated 10 years after imposition.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [If a party’s briefs do not provide legal argument and citation to authority on each point raised, the court may treat it as waived, and pass it without consideration.]

Sentencing, Sixth Amendment

Case: 000150

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining the defendant’s personal waiver of his right to a jury trial on the aggravating circumstance allegations and the prior strike allegation. The People concede, and we agree. The error was prejudicial only as to the aggravating circumstances, not as to the prior strike. The record does not reflect that the defendant had ever waived jury trial on either the prior strike or aggravating factors.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of this right must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

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

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

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

Second Holding:

Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, reversal and remand are required unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

We accept the People’s concession that a rational jury could have reached a different conclusion with respect to the defendant’s prior performance on probation. The probation report noted that he had satisfactorily completed two prior grants of probation, although he failed on two other grants. The report listed his past successes on probation as a mitigating factor and his failures as an aggravating factor. This mixed view of performance on probation is what leads us to conclude that a rational jury could have disagreed with the trial court’s finding that his prior performance on probation was unsatisfactory. Therefore, the error here with respect to this allegation was prejudicial under Chapman

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

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

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

Third Holding:

The right to have the jury decide the truth of a prior conviction allegation stems from section 1025(b), not from the jury trial provision of article I, section 16 of the California Constitution or the Sixth Amendment of the United States Constitution. Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffective waiver of the right to jury trial of prior prison term allegations. Here, by failing to object, the defendant forfeited any claim that the trial court improperly denied him his right to a jury trial by failing to take his express waiver of that right.

Authority:

PEN 1025

People v. Vera (1997) 15 Cal.4th 269, 277

People v. Grimes (2016) 1 Cal.5th 698, 737–738 [defendant forfeited a claim of involuntary waiver of jury trial on prior conviction allegations based on failure to object in the trial court]

Fourth Holding:

But even assuming an error with respect to his right to a jury trial on the prior strike allegation, the error is subject to the harmless error analysis under the Watson standard. The question under this standard is whether it is reasonably probable that a different result would have obtained had the prior strike allegation been tried before a jury. There is no such probability here.

To prove the prior strike conviction, the People produced as evidence his certified RAP sheet, a certified printout of the docket showing his conviction for that offense, the complaint associated with that prior, the waiver of rights and plea form, and the probation terms related to that conviction. For his part, the defendant never claimed he did not commit the offense, and he presented no evidence regarding this allegation. There is no reasonable probability the jury would have failed to find the allegation true under the evidence presented. Accordingly, we reject his claim that the trial court’s true finding on the prior strike allegation must be vacated.

Authority:

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