Error and/or relief
The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.
First Holding:
After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.
The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.
The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.
Authority:
Cal. Rules of Court, rule 4.421(b)(1)
People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]
Second Holding:
We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.
Authority:
People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]
Third Holding:
A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.
Authority:
People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262
Fourth Holding:
The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.
Authority:
People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]
Fifth Holding:
A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.
Authority:
In re Peter F. (2005) 132 Cal.App.4th 877, 881
Sixth Holding:
The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.
Authority:
People v. Codinha (2023) 92 Cal.App.5th 976
Seventh Holding:
The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.
Authority:
People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]
