Tag Archives: Jury trial right

Duty of the court, Jury trial, Sentencing, Standard of review

Case 000993

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to properly advise the defendant of his right to a jury trial on certain aggravating factors, and that his admissions to those factors were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s sentence and remand the matter for a full resentencing.

Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through (5). During the admission colloquy, the trial court advised appellant that he only had the right to a court trial on the truth of the allegations. We agree with the defendant that this advisement was incorrect, and that the record does not establish that his admissions were knowing, intelligent, and voluntary.

The factors in question under rule 4.421(b) are, in essence:
(2) The defendant’s prior convictions are numerous and of increasing seriousness;
(3) The defendant has served prior terms in prison;
(4) The defendant was on probation or parole when he committed the alleged offenses; and
(5) The defendant’s prior performance on probation and parole was unsatisfactory.

First Holding:

A criminal defendant has the right to a jury trial on the facts underlying aggravating factors used to justify imposition of an upper term sentence under section 1170(b). That right is not merely a state law entitlement, but is constitutionally required for all aggravating facts.

Authority:

PEN 1170(b)

People v. Lynch (2024) 16 Cal.5th 730, 757

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

Second Holding:

Section 1170(b)(3) provides a limited exception for prior convictions, permitting the court to consider them based on a certified record of conviction without submitting the prior convictions to a jury.

Our Supreme Court has clarified, however, that the exception is narrowly limited to the bare fact of a prior conviction and its elements.

Applying this principle, Wiley held that jury findings were required for aggravating factors based on increasingly serious prior convictions and unsatisfactory prior performance on probation or parole.

Authority:

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

Third Holding:

Because the Sixth Amendment affords a defendant the right to a jury trial on alleged aggravating factors, a valid admission to those factors requires the same advisements and waivers required for a stipulation to a prior conviction.

This includes advisement and waiver of the defendant’s Boykin-Tahl rights: the right to a jury trial, the right to confront adverse witnesses, and the privilege against self-incrimination.  A defendant must also be advised of the penal consequences of the admission.

If the trial court fails to properly advise the defendant of these rights or consequences, reversal is required unless the record affirmatively shows, under the totality of the circumstances, that the admission was knowing, intelligent, and voluntary.

Authority:

People v. Kinnear (2025) 116 Cal.App.5th 1116, 1127

People v. Mitchell (2026) 19 Cal.5th 729, 745–746

Boykin v. Alabama (1969) 395 U.S. 238

In re Tahl (1969) 1 Cal.3d 122

People v. Cross (2015) 61 Cal.4th 164, 170

People v. Mosby (2004) 33 Cal.4th 353, 361–365

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

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

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so 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(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

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

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

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

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

Almendarez-Torrez v. United States (1998) 523 U.S. 224

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

Fifth Holding:

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, except for the fact of a prior conviction.

Authority:

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

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

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

Authority:

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

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

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

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

Eighth Holding:

The Sixth Amendment is violated 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

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver 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]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848

Amelioration, Plea bargains, Sentencing, Sixth Amendment

Case 000963

Posted on by Gary McCurdy

Error and/or relief

Having been found in violation of probation and the previously imposed but suspended prison term having been ordered executed, the defendant is entitled to challenge the upper term that he agreed to in 2021 before section 1170 was amended to provide that the upper term may be imposed only on aggravating factor stipulated to or found true beyond a reasonable doubt by a jury.

If the prosecution or court are not satisfied with the resulting modification, the plea shall be set aside and the parties shall be restored to their status prior to the plea agreement.

First Holding:

Effective 1/1/2022, SB 567 amended section 1170 to make the middle term the presumptive sentence and permit a trial court to 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 and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt.

Authority:

PEN 1170

Second Holding:

In Mitchell, the California Supreme Court resolved the effect of section 1170(b) on negotiated dispositions, holding that SB 567’s amendments to the statute apply retroactively to sentences imposed pursuant to stipulated plea agreements in cases that were not final on appeal.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 737–738

Third Holding:

We therefore reverse the judgment because the facts relied on to justify the upper term were not stipulated to or proven beyond a reasonable doubt at a jury or court trial. The defendantl may reaffirm the bargain and waive the requirements now applicable under section 1170(b), or he may withdraw his plea and return the parties to a pre-plea posture, with the prosecutor bearing its burden of proof. What he may not do, however, is unilaterally obtain a reduction of his agreed-upon upper term sentence to the middle term.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 749

Gary note:

(The opinion made no mention of Penal Code section 1171, effective 1/1/2025, even though the Mitchell opinion made an observation in a footnote. There are several unpublished cases that have held that section 1171 will NOT result in a rescission of the plea agreement, in light of the language in 1171(c)(3) that says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” (You can search for the unpublished opinions I have posted, where I may have added additional commentary.  Maybe try the search term “1171” or “PEN 1171” with or without quotation marks.)

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“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 (Stats. 2024, ch. 964, § 2) 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.” (§ 1171, subd. (a).) 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.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

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

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Amelioration, Plea bargains, Sentencing

Case 000919

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to consideration for resentencing under section 1172.75 even though she stipulated to the upper term in her original plea agreement. The matter is remanded.

Under Mitchell, the defendant is free to raise the issue of whether section 1171 precludes the setting aside of her plea if the court modifies the sentence to something less than the stipulated sentence.

First Holding:

The defendant is entitled to the retroactive benefit of section 1170(b)’s provisions notwithstanding her agreement to a specified term as part of a plea bargain.

Authority:

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

Second Holding:

The proper remedy is to remand this case and permit the defendant to pursue relief under the new benefit that SB 567 confers. On remand, the defendant may either waive or invoke the requirements of section 1170(b). If she reaffirms her acceptance of the plea bargain and enters a new waiver of section 1170(b)’s requirements, the court shall reinstate the original sentence as negotiated by the parties.

If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea agreement to specify a midterm sentence. If the court also accepts the modification it shall sentence the defendant accordingly. If no such agreement is reached and approved, the defendant’s remedy is to withdraw her assent to the bargain. In that case the court shall set aside the plea, the matter shall proceed as to the defendant as if no plea had been entered, and the case shall be set for trial.

In keeping with footnote 9 of Mitchell, however, on our remand to the trial court, the defendant may present her argument that section 1171, enacted effective 1/1/25, provides that any modification of her sentence under ameliorative provisions shall not result in setting aside her plea.

Authority:

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

Sentencing, Sixth Amendment

Case 000897

Posted on by Gary McCurdy

Error and/or relief

On remand following the defendant’s earlier appeal, the trial court imposed an upper term based on impermissible aggravating recidivism factors.

Holding:

Under the Sixth Amendment, 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.

Here, the court imposed the upper term based on the aggravating facts that the defendant’s prior convictions were numerous and of increasing seriousness and his performance on probation was unsatisfactory.

Because the defendant did not stipulate to these facts, which go beyond the bare fact of his prior convictions and their elements, he was entitled to a jury trial on them. That he did not receive one renders the sentence unauthorized.

Accordingly, we vacate the sentence and remand the matter to give the People an opportunity to retry the aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1091

People v. Lynch (2024) 16 Cal.5th 730, 776 [proper remedy where aggravating facts were not tried to a jury is to remand and give the People an opportunity to retry the aggravating facts]

 

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sentencing, Sixth Amendment, Standard of review

Case 000890

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating factors that were not presented to a jury for proof beyond a reasonable doubt.

First Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Section 1170(b)(2) provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

Rule 4.421 of the California Rules of Court provides a list of aggravating circumstances that must be stipulated to by the defendant or determined beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Notwithstanding section 1170(b)(1) and (2), 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)(2) and (3)

Rules of Court, rule 4.421

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

People v. Lynch (2024) 16 Cal.5th 730, 748, 759-760

Second Holding:

These provisions are subject to constitutional limitations under the Sixth Amendment. Specifically, 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.

For example, the Wiley court held that the defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085-1086

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

Third Holding:

A defendant may waive his right to a jury trial on the aggravating factors, provided he does so personally and expressly. To be valid, the record must show the defendant’s waivers of the right to a jury are knowing, intelligent, and voluntary. In making such a determination, we examine the totality of the circumstances unique to each case.

In this case, we determine that the colloquy between the court and the defendant did not adequately inform him of what the aggravating factors were. Without a clear explanation that defendant was entitled to have a jury decide the truth of the specific aggravating factors that the court intended to use against him, or even notice of those aggravating factors, it cannot be said that he knowingly or intelligently waived his right to have a jury decide the truth of those specific aggravating factors, of which he was never made aware.

Authority:

People v. Collins (2001) 26 Cal.4th 297, 308

People v. Morelos (2022) 13 Cal.5th 722, 753

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

People v. Daniels (2017) 3 Cal.5th 961, 990, 991 [a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent]

Fourth Holding:

Because defendant was deprived of a jury trial on the aggravating facts used to justify imposition of the upper term sentence, and there was no knowing or intelligent waiver, we must determine whether he was prejudiced by that error under the Chapman standard.

(Gary note: the court then reviewed the specific facts of the defendant’s criminal record and performance on probation or parole, details of which are case specific and would not add to this summary of an unpublished opinion that cannot be cited.)

Since we cannot conclude the lack of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify the upper term sentence, defendant is entitled to a reversal and remand for resentencing.

Authority:

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

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

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

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

In re Estrada (1965) 63 Cal.2d 740

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial 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)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

Wiley concluded that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. 

Authority:

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

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]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude 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, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Duty of the court, Jury trial, Standard of review

Case 000829

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. Reversed and remanded for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception.

Authority:

U.S. Const., 6th Amend.

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

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

Second Holding:

Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of circumstances.]

People v. Daniels (2017) 3 Cal.5th 961, 992

Third Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.

We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Fourth Holding:

Our Supreme Court has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver. That said, it has emphasized the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial.

The Supreme Court has recommended that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will make the decision.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

Fifth Holding:

The Supreme Court has also recommended that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails.

A trial judge may do so in any number of ways—among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived.

Ultimately, a court must consider the defendant’s individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.

(Gary note: The court then analyzed record in this case and concluded that the jury trial waiver was not knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay–that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.)

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

People v. Jones (2018) 26 Cal.App.5th 420, 428

Abstracts and Minutes, Defenses, Sentencing, Sixth Amendment

Case 000827

Posted on by Gary McCurdy

Error and/or relief

The Three Strikes sentence is unauthorized because the prior strike allegation was never admitted or found true by the jury or court.

First Holding:

A defendant has a statutory right to a jury trial on the issue of whether he suffered an alleged prior conviction. He may waive that right and submit to a court trial or admit the truth of the prior conviction allegation. Here, there is nothing in the record showing there was any trial on the prior strike. After returning their verdicts on the substantive offenses, the jurors were discharged without considering the strike.

Authority:

PEN 1025(b)

PEN 1158

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

Second Holding:

Had the matter been brought to the attention of the court, the court could have convened a new jury to try the prior conviction allegation.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court improvidently discharged the jurors before they decided prior conviction allegations, and the defense failed to timely object, double jeopardy did not bar trial of the allegations before a new jury]

Third Holding:

There are cases in which the reviewing court has determined the trial court impliedly found true an enhancement allegation by imposing the enhancement at sentencing. But in such cases, the trial court was at least presented evidence supporting the allegation.

The same is not true here. While the prosecutor at one point represented that he had the certified 969b packet for the prior, there is no indication he presented those documents, or any other evidence, to the court.

And although the minute order of sentencing reflects a true finding by the court on the prior strike, we cannot rely on those entries because there is no oral record of the court making those findings.

Authority:

People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17

People v. Chambers (2002) 104 Cal.App.4th 1047

People v. Zackery (2007) 147 Cal.App.4th 380, 385–386

Fourth Holding:

There is no constitutional or procedural bar precluding the prosecution from retrying a prior strike allegation following appellate reversal for insufficient evidence.

Authority:

People v. Barragan (2004) 32 Cal.4th 236, 239 [constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions do not bar retrial of prior strike allegation]

People v. Monge (1997) 16 Cal.4th 826, 829 [state and federal prohibitions against double jeopardy do not bar retrial of a prior conviction allegation in a noncapital case]

Monge v. California (1998) 524 U.S. 721

Appellate Principles, Sentencing, Sixth Amendment

Case 000826

Posted on by Gary McCurdy

Error and/or relief

Resentencing is required because the trial court imposed an upper term sentence based on aggravating circumstance findings to which a Sixth Amendment jury trial right attached. As appellant did not personally waive his jury trial right with respect to those factors, their consideration constitutes a Sixth Amendment violation.

First Holding:

The federal Constitution’s 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 Fifth Amendment’s Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. This includes any fact, beyond the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum.

Thus, under California’s determinate sentencing law, 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.

Authority:

U.S. Const., 6th Amend.

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

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

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

Second Holding:

Wiley addressed just how broadly the concept of the fact of a prior conviction is to be understood and the extent of the Almendarez-Torres exception. Wiley examined this question under Erlinger.

In Erlinger, the United States Supreme Court considered a trial court’s authority to find whether a defendant’s convictions had occurred on separate occasions. The high court described the Almendarez-Torres prior conviction exception as narrow, and one that permitted judges to find only the fact of a prior conviction: Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

The high court observed that determining whether offenses were committed on different occasions may be a fact-laden task involving whether the offenses were committed close in time, location, and whether they were intertwined in purpose and character.

Thus, in determining whether convictions occurred on separate occasions, the high court observed the trial court would have to do more than identify the defendant’s previous convictions and the legal elements required to sustain them, which is more than Almendarez-Torres allows.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079

Almendarez-Torres v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 821, 834-835, 838

Third Holding:

Wiley concluded that an aggravating circumstance finding that the defendant’s prior convictions are of increasing seriousness, and that the defendant’s performance on probation had been unsatisfactory requires a jury determination as to their truth.

Determining the increasing seriousness of a prior conviction requires a qualitative assessment of the offenses time, location, character, and purpose. Although the law is still developing, the numerosity of prior convictions is a factor for which a jury trial right under Wiley has been recognized.

Authority:

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

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

People v. Wright (2025) 113 Cal.App.5th 832, 847 [recognizing the defendant was entitled to a trial by jury on the aggravating factor of whether he had suffered numerous prior convictions]

Fourth Holding:

A waiver of the right to a jury trial 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. Here, because appellant did not personally waive his right to a jury trial nor did he admit these sentencing factors, his Sixth Amendment jury trial right was violated.

Authority:

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

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

People v. French (2008) 43 Cal.4th 36, 46

Fifth Holding:

This error was prejudicial. 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.

Numerosity of the prior convictions is a comparative and qualitative factor that 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.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 743, 775

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

Sixth Holding:

The defendant raised other arguments regarding selection of the upper term that we need not address, as he may take them up in the trial court on remand. He did not raise them at hearing from which this appeal was taken. The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Notwithstanding any forfeiture at the 2025 sentencing hearing, however, appellant will have an opportunity to raise these claims upon remand for resentencing so that the trial court may consider them in the first instance.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

Sentencing, Sixth Amendment, Standard of review

Case 000818

Posted on by Gary McCurdy

Error and/or relief

The trial court impermissibly and prejudicially relied on aggravating factors not found true by a jury to sentence the defendant to the upper term on the assault count. The defendant is also entitled to conduct credts in addition to his actual presentence time in custody.

First Holding:

The People presented certified documents of five prior felony convictions. The certified documents showed that appellant had served a prison term for the 2002 convictions. The trial court found the People proved two aggravating factors beyond a reasonable doubt: that appellant’s prior convictions were numerous or of increasing seriousness, and that appellant had served a prior prison term. At sentencing, the trial court relied on these two factors in imposing the upper term on the assault count.

This was error, as the proposed aggravating factors should have been presented to a jury for proof beyond a reasonable doubt, if not stipulated to by the defendant.

Under the federal constitution, 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.

When the constitutional right to jury trial is involved, there must be an express waiver. It is undisputed that appellant made no such express waiver in this case. 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, 1086, 1087

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

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

Second Holding:

With respect to numerosity, appellant was convicted of five offenses over a period of 18 years, with an additional 22 years elapsing between the most recent prior offense and the instant offense. Appellant was [more than 60] years old at the time of trial. We cannot conclude beyond a reasonable doubt that a jury would have found appellant’s prior crimes numerous.

While the evidence may have been sufficient to support a finding that the aggravating factor was true, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [Three robberies in the course of 49 years of life may strike some jurors as an obviously numerous number of convictions, but we are unsure 12 people unanimously would agree with this evaluation beyond a reasonable doubt]

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

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

Third Holding:

As for increasing seriousness, under current case law, the determination that a defendant’s prior convictions are of increasing seriousness may be made by reference to the range of punishment provided by statute for each offense. Or it may be determined by a comparison of the offenses respective elements.

While a jury certainly could find increasing seriousness, we are not persuaded beyond a reasonable doubt that they would have, particularly in light of our Supreme Court’s recent caution regarding increasing seriousness that the determination is a comparative and qualitative one. These realities make it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

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

Fourth Holding:

The defendant is entitled to 166 days of presentence conduct credit in addition to the 167 days of actual credit awarded by the trial court.

Authority:

PEN 4019(f)