Tag Archives: Jury trial right

Sentencing, Sixth Amendment

Case 000476

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

The court may impose a sentence exceeding the middle term only if there are circumstances in aggravation of the crime that justify the upper term. The facts underlying those aggravating circumstances must have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170

Second Holding:

The Sixth Amendment entitles a defendant to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 755–767

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

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

Third Holding:

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

Authority:

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

Fourth Holding:

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775 [To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

Sixth Holding:

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

Authority:

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

Duty of the court, Jury trial

Case: 000405

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in discharging one of only two Black prospective jurors, over defense counsel’s objection, where the prosecutor cited the juror’s multiple family members with criminal records as a basis for the use of peremptory challenge, in violation of Code of Civil Procedure section 231.7. We reverse and remand the matter for a new trial.

First Holding:

Our standard of review for section 231.7 claims is defined by statute as follows: The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under [231.7(c)] and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.”

Authority:

CCP 231.7(j)

Second Holding:

The exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution, as well as a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution.

Authority:

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Third Holding:

Section 231.7(a) prohibits the use of a peremptory challenge to remove a prospective juror on the basis of their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. It sets up a strict procedure for determining whether a peremptory challenge of a jury should be allowed. It lists several nonexclusive factors the court may consider when evaluating the totality, including whether the objecting party is a member of the same perceived cognizable group as the challenged juror. But it also goes on to list circumstances where a peremptory challenge is presumed invalid absent some further showing by the proponent by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s defined protected status.

Authority:

CCP 231.7

Fourth Holding:

To allow a party to bury presumptively invalid reasons under an overarching facially neutral reason without the required findings under section 231.7(f), would render section 231.7(e) ineffective.

Authority:

People v. Uriostegui (2024) 101 Cal.App.5th 271, 280

Juveniles, Sentencing, Sixth Amendment

Case: 000402

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

On January 1, 2022, SB 567 went into effect, amending section 1170. Section 1170 now authorizes a trial court to impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. However, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(3)

Second Holding:

While not directly addressing section 1170, the United States Supreme Court held that, under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. An exception to this allows a trial court to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Third Holding:

In accordance with Erlinger, Wiley held that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The court also addressed two specific aggravating factors specified in the Rules of Court–the increasing seriousness of a defendant’s prior convictions and a defendant’s unsatisfactory performance on probation or parole, and held that each must be found true by a jury before it can be used to justify an upper term sentence.

Authority:

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

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

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

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

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

Fifth Holding:

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

Authority:

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

Sixth Holding:

The determination of whether these prior convictions are of increasing seriousness is a comparative and qualitative one, which makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. A rational juror may not have been persuaded beyond a reasonable doubt. As we cannot conclude beyond a reasonable doubt that a jury would have found this aggravating factor true, the error was not harmless. As the trial court erred and the error was not harmless, we will vacate the sentence and remand the case for a full resentencing.

Authority:

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

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

Seventh Holding:

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

Authority:

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

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

Sentencing, Sixth Amendment

Case: 000387

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 760, 768, 773

Second Holding:

A violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. Accordingly, a defendant is entitled to reversal and remand unless we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt under Chapman as to every aggravating fact the trial court used to justify an upper term sentence. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

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

Appellate Principles, Plea bargains, Sentencing, Sixth Amendment

Case: 000377

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1237.5

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

Second Holding:

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

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

Authority:

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

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

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

Third Holding:

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

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

Authority:

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

Fourth Holding:

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

Authority:

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

Cunningham v. California (2007) 549 U.S. 270, 281 [under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence]

Fifth Holding:

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

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 759 [An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial]

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

Sixth Holding:

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

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

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

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

…

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

…

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

…

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

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

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

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

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

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

Authority:

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

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

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

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

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

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

Abstracts and Minutes, Sentencing, Sixth Amendment

Case: 000373

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

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

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

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Section 1170(b)(3) states that the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

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

Third Holding:

In considering a prior conviction, a judge may do no more than determine what crime, with what elements, the defendant was convicted of. Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor. The defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1086

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

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. A sentence imposed under section 1170(b)] must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

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

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

Fifth Holding:

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

Authority:

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

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

Discretion, Duty of the court, Effective assistance of counsel, Sentencing, Sixth Amendment

Case: 000353

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s Sixth Amendment rights by imposing a sentence based on aggravating circumstances that were neither admitted by him nor tried to a jury. The trial court conducted an inadequate inquiry when the defendant requested that new counsel be substituted.

[GARY NOTE: The unpublished opinion lays out several observations that it characterizes as possibly arguable deficiencies in counsel’s performance that would support a finding that it would be necessary to substitute new counsel as the defendant requested. Many of the specifics have been redacted from the filed opinion itself, as the Marsden hearing is a confidential inquiry conducted outside the presence of the prosecution and the public, and the matters stated by any participants (the defendant, the attorney for the defendant, the court) at the hearing are not subject to public disclosure.]

First Holding:

The defendant is entitled to resentencing because the trial court violated his Sixth Amendment rights by relying on aggravating circumstances based on facts that had not been admitted or tried to a jury. Although the defendant did not preserve this claim in the trial court, his failure to do so does not forfeit his Sixth Amendment right to a jury trial.

Authority:

People v. French (2008) 43 Cal.4th 36, 47-48

Second Holding:

In Cunningham, the United States Supreme Court held that, except for prior conviction allegations, the Sixth Amendment requires any fact that exposes a defendant to a greater potential sentence to be found by a jury beyond a reasonable doubt. The sentencing scheme in effect in California at the time violated the Sixth Amendment right to a jury trial because it allowed a defendant’s prison sentence to be increased beyond the statutory maximum based on facts that had not been found true beyond a reasonable doubt by a jury or admitted by the defendant. The statutory maximum, for Sixth Amendment purposes, is the maximum sentence the court may impose without finding any additional facts beyond those necessary to support the verdict. Cunningham explained that California could comply with the Sixth Amendment either by requiring jury findings for any facts necessary to impose an aggravated sentence or, alternatively, by authorizing sentencing courts to exercise broad discretion within a statutory range.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281, 294

People v. Lynch (2024) 16 Cal.5th 730, 746-747

Third Holding:

California’s current sentencing scheme (in effect at the time of the defendant’s sentencing) adopts the first option Cunningham outlined. Under section 1170(b), when a statute specifies three possible terms, the court must order imposition of a sentence not to exceed the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. After revoking the defendant’s probation, the court found in aggravation that the crime involved great violence, great bodily harm, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. But this aggravating factor was not admitted or otherwise proved to the trier of fact.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 294

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

Fourth Holding:

We apply the rigorous Chapman standard of review to determine whether the trial court’s reliance on unproven aggravating circumstances was prejudicial. Under that standard, the violation is prejudicial unless we can conclude, beyond a reasonable doubt, that a jury would have found true all the aggravating facts upon which the challenged sentence was based. The defendant is entitled to a remand for resentencing unless the appellate court can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence. Put another way, the defendant is entitled to a remand unless no reasonable jury would have found in favor of the defendant as to any of the aggravating facts relied upon by the trial court. In conducting this analysis, moreover, we may not assume that the record contains all the evidence that would have been presented had the aggravating circumstances been tried to a jury.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

Fifth Holding:

Further, because the court imposed an enhancement for great bodily injury under section 12022.7, it was improper to also rely on great bodily injury as a factor in aggravation for purposes of imposing the upper term, although that error is subject to harmless error analysis. The court could, without running afoul of section 1170(b)(5), rely on other aggravating circumstances independent of the great bodily injury enhancement, such as a finding that the offense involved great violence or reflected a high degree of cruelty, viciousness, or callousness.

Authority:

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

Rules of Court, rule 4.421(a)(1)

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

Sixth Holding:

When a defendant requests that his appointed counsel be relieved and new counsel be appointed under Marsden, the trial court must give the defendant an opportunity to explain his concerns about his counsel’s performance and provide examples of deficiencies. The defendant is entitled to substitute counsel when the record clearly shows that the appointed counsel is not providing adequate representation. The trial court abuses its discretion when the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. The trial court also abuses its discretion if it does not conduct an adequate inquiry into the defendant’s motion. When the defendant has identified shortcomings by counsel, the court must obtain counsel’s response and conduct any further inquiry that is needed to determine whether counsel had adequate explanations for all of the defendant’s complaints.

The critical factual inquiry in a Marsden hearing will often involve whether counsel consulted sufficiently with their client, adequately investigated the facts, and properly prepared for the relevant hearing. When the trial court’s inquiry is deficient, we remand the case for a new Marsden hearing. On this record, the trial court lacked an adequate basis to determine whether counsel had properly investigated and prepared the defendant’s mitigation case for the sentencing hearing. Likewise, we lack an adequate record to review the trial court’s denial of Marsden relief. On remand, the trial court should conduct a Marsden hearing to determine whether the defendant is entitled to substitute counsel for purposes of his resentencing.

Authority:

People v. Marsden (1970) 2 Cal.3d 118, 123-124

People v. Taylor (2010) 48 Cal.4th 574, 599

People v. Carter (2024) 15 Cal.5th 1092, 1099, 1102-1104

People v. Ng (2022) 13 Cal.5th 448, 500

People v. Abilez (2007) 41 Cal.4th 472, 488

People v. Ivans (1992) 2 Cal.App.4th 1654, 1666 [stating the trial court must make a careful inquiry before it can intelligently rule on the Marsden motion]

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000348

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for resentencing because the trial court determined one of the factors in aggravation against the defendant in violation of his constitutional right to a jury and relied on such determination in increasing his sentence. [Not error to fail to instruct on section 148 as lesser of section 69 because the jury necessarily relied on the force element of PC 69.]

First Holding:

It was error for the court to impose the upper term based on its own conclusion that the defendant’s prior convictions are numerous or of increasing seriousness. The right to a jury on any fact that increases the normal punishment for an offense derives from the Sixth Amendment to the United States Constitution.

Authority:

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

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

Second Holding:

A criminal defendant does not waive his constitutional right to a jury trial by failing to object when a court resolves issues to which the right attaches without first obtaining the requisite waivers. As to whether the error was harmless, because the right to a jury trial on the aggravating factors derives from the United States Constitution, we assess prejudice under the standard set forth in Chapman. Under the Chapman 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. French (2008) 43 Cal.4th 36, 47

People v. Holmes (1960) 54 Cal.2d 442, 443–444

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

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

People v. Lynch (2024) 16 Cal.5th 730, 761 [When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and Chapman must be satisfied.]

Third Holding:

Because a reasonable jury could have concluded the defendant’s convictions were not of increasing seriousness, we remand for resentencing without the need to consider their numerosity. Even if we were to reach the issue, we would likely have reasonable doubt a jury would have concluded the defendant’s prior convictions were numerous. Whether prior convictions are “numerous” for purposes of rule 4.421(b)(2) is not further defined in the California Rules of Court. A reasonable jury might consider numerosity in terms of the number of criminal episodes resulting n convictions, not in the number of convictions alone.

Authority:

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

Fourth Holding:

We review the trial court’s failure to instruct on a lesser included offense de novo considering the evidence in the light most favorable to the defendant.

Authority:

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

Fifth Holding:

A trial court is obligated to instruct the jury on an uncharged lesser offense included in one charged if there is substantial evidence from which a reasonable juror could conclude the defendant committed the lesser, but not the greater, offense. Because this is a sua sponte obligation, a defendant may raise it for the first time on appeal. This instructional requirement prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than the evidence merits.

Authority:

People v. DePriest (2007) 42 Cal.4th 1, 50

People v. Brothers (2015) 236 Cal.App.4th 24, 29-30, 33, fn. 6

Sixth Holding:

The most significant difference between the lesser offense described in section 148(a)(1) and the greater offense described in section 69(a) is that a defendant may be convicted of the lesser offense even if he did not use force or violence to effectuate the resistance. Accordingly, the trial court was required to instruct on the lesser offense of section 148(a)(1) resisting if substantial evidence supported a finding that the defendant did not use force or violence when he resisted the deputies.

Authority:

People v. Brown (2016) 245 Cal.App.4th 140, 153

Seventh Holding:

Resisting an officer by force or violence under section 69(a) does not require either a threshold quantum of force or violence, or the use of force or violence upon the person of the officer. The statutory language does not, in other words, require the defendant to have actual physical contact with the officer. Thus, forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer. Here, there is no evidence the defendant did not use force in resisting arrest by the deputies. Under the facts here, there is no substantial evidence to show that only the lesser crime was committed. No reasonable juror could conclude the defendant’s physical resistance amounted to a violation of section 148(a)(1) but not of section 69(a). Therefore, the trial court was correct not to instruct the jury on section 148(a)(1).

Authority:

People v. Morgan (2024) 103 Cal.App.5th 488, 508, disapproved on another ground in People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986 [where uncontradicted evidence was that the defendant struggled forcefully against arrest, instruction on section 148(a)(1) was unnecessary because there was no evidence on which a jury could conclude the defendant resisted without violating section 69(a)]

Jury trial, Sentencing, Sixth Amendment

Case: 000340

Posted on by Gary McCurdy

Error and/or relief

The defendant was committed to the Department of State Hospitals nearly 50 years ago after being found not guilty by reason of insanity of robbery and assault. He challenges the order recommitting him for two years. The record fails to establish that he knowingly and voluntarily waived his rights to a jury trial and we therefore reverse.

First Holding:

Where a criminal defendant has been found to have been insane at the time the offense was committed, unless it appears to the trial court that the sanity of the defendant has been recovered fully, the court may order the defendant committed to the Department of State Hospitals (DSH) or any other appropriate facility for care and treatment. The commitment order must specify the maximum term of commitment, which is defined as the longest term of imprisonment which could have been imposed for the offense of which the person was convicted.

Authority:

PEN 1026(a)

People v. K.P. (2018) 30 Cal.App.5th 331, 338

Second Holding:

A person committed to DSH who completes the maximum term of commitment must be released unless, prior to the expiration of that term, the prosecution files a petition seeking to extend the commitment by two years and demonstrates that the person, by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others. Upon the filing of such a petition, the person is entitled to a jury trial, unless that right is waived by both the person and the prosecuting attorney.

To proceed with a bench trial instead of a jury trial in a recommitment proceeding, the trial court must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision. Here, neither party contends that the defendant lacked the capacity to knowingly and voluntarily waive his right to a jury, so the only question before us is whether he personally waived it.

Authority:

PEN 1026.5(b)

People v. Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 661–662

People v. Tran (2015) 61 Cal.4th 1160, 1163

Third Holding:

We uphold a jury-trial waiver only 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.

The denial of a defendant’s right to a jury trial in a recommitment proceeding, including through the acceptance of an invalid jury trial waiver is not susceptible to ordinary harmless error analysis and automatically requires reversal.

We cannot be certain on this record that the court and the defendant were ever, in the court’s words, on the same page regarding his desire to waive his right to a jury trial. And because we cannot be confident that the defendant actually waived the right, we do not ascribe much significance to his final indication that he did not have any questions about waiving the right. Under the totality of the circumstances, the record does not affirmatively demonstrate that the defendant knowingly and voluntarily waived his right to a jury.

As a result, the order extending his commitment to DSH cannot stand.

Authority:

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

People v. Tran (2015) 61 Cal.4th 1160, 1169

Amelioration, Sentencing, Sixth Amendment

Case: 000325

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it sentenced the defendant to an upper term sentence without affording him a jury trial on aggravating factors. Remanded for retrial on the factors in aggravation.

First Holding:

Section 1170(b)(2) provides that, in selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. Under section 1170(b), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

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

Third Holding:

In Erlinger, the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Fourth Holding:

The California Supreme Court applied Erlinger to California’s determinate sentencing scheme. In Wiley, it overruled its prior decisions Black and Towne that had found it constitutionally permissible for a trial court to determine whether a defendant’s crimes were of increasing seriousness or whether the defendant’s performance on probation was unsatisfactory. A trial court’s determination of those aggravating factors without the defendant’s consent violated section 1170(b)(2).

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1084-1086 [expressly overruling People v. Towne (2008) 44 Cal.4th 63 and People v. Black (2007) 41 Cal.4th 799]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with the jury trial requirement is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion.

Authority:

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

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

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

Sixth Holding:

Here, the trial court relied on its own files to find that the defendant had two prior felony convictions for which he served prison sentences, and found that his performance on supervision had been unsatisfactory. The California Supreme Court has cautioned against attempting to determine whether a jury would have found true aggravating circumstances that require an imprecise quantitative or comparative evaluation of the facts. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance. To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court. The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If it cannot so conclude, it may impose no more than a middle term.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 777-778

Sentencing, Sixth Amendment, Standard of review

Case: 000314

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term for the attempted murder conviction based on unpleaded and unproven aggravating factors. Accordingly, we will remand for resentencing and otherwise affirm the judgment.

First Holding:

In selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. 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. Further the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

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

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

Third Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The Attorney General bears the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

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

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

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

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Fourth Holding:

The error was not harmless beyond a reasonable doubt. The record does not necessarily reflect that defendant’s convictions were increasing in seriousness. He was subject to a sustained juvenile petition for robbery, and his adult conviction was for unlawful firearm activity. A rational jury could have concluded that his felony conduct was not increasing in seriousness. The trial court’s remaining findings are subjective determinations that go beyond the mere fact of a prior conviction.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767 [The Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term]

Amelioration, Plea bargains, Sentencing

Case: 000282

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed an upper term sentence without an appropriate factual finding or stipulation as to an aggravating factor, as required by Penal Code section 1170(b). We conclude that the defendant may raise this issue even though he stipulated to the sentence as part of a plea bargain.

First Holding:

When the defendant entered his plea in 2020, the choice to impose a lower, middle, or upper term sentence was committed to the sound discretion of the court. But when the court ultimately entered judgment in 2024, following the passage of SB 567, a trial court was permitted to impose an upper term sentence only when aggravating 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. The defendant argues that, although he agreed to the sentence in his plea agreement, the change in the law renders his agreement to an upper term sentence invalid in the absence of an appropriate finding of or stipulation to aggravating circumstances. The circumstances in French differ from those here in potentially meaningful ways. Nonetheless, in light of the significant uncertainty in this area and the potential Sixth Amendment implications, we deem it appropriate to exercise our discretion to reach the merits of the defendant’s arguments.

Authority:

PEN 1170

People v. French (2008) 43 Cal.4th 36 [defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances]

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326–327 [exercising discretion to forgive forfeiture because the application of amended section 1170, subdivision (b) implicates a constitutional right, as recognized in People v. Lynch (2024) 16 Cal.5th 730]

Second Holding:

With respect to the merits, the People argue that because the defendant agreed to a specific term of imprisonment as part of his plea bargain, section 1170(b)’s sentencing procedures are irrelevant. As we have noted, this issue has been addressed in multiple Court of Appeal decisions and is now before the Supreme Court. We therefore dispense with offering significant additional analysis, except to say we are persuaded by the logic of the courts that have allowed defendants subject to stipulated sentences to seek the benefits of Senate Bill 567. Among other things, we think this best comports with Stamps, which is the leading authority on what relief is available under ameliorative sentencing legislation that takes effect after a defendant enters a plea agreement for a stipulated sentence.

Authority:

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

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

People v. Stamps (2020) 9 Cal.5th 685

Third Holding:

In keeping with Stamps, if the defendant waives the requirements of amended section 1170(b), the trial court shall reinstate his original sentence. If he invokes the requirements of section 1170(b), he must state whether he stipulates to the facts underlying an aggravating circumstance justifying the imposition of the upper term on count 1 and the enhancement, or whether he desires a jury or bench trial on any aggravating circumstances alleged by the People. If he stipulates to the facts underlying an aggravating circumstance justifying the upper-term sentence, the trial court shall find that the upper term may be imposed on count 1. If he requests a trial, the People will have the burden proving beyond a reasonable doubt the truth of any alleged aggravating circumstance justifying the imposition of the upper term. If the factfinder finds an aggravating circumstance true, and the trial court determines the upper term can be imposed on count 1, the court shall reinstate the original sentence. If the People fail to prove the truth of an aggravating circumstance, the trial court shall find that the sentence on count 1 cannot exceed the middle term. At that point, if the court does not approve of the plea agreement with the reduced sentence or if the People do not agree to the reduced sentence, the court shall vacate the plea in toto and return the parties to their status quo ante.

Authority:

People v. Stamps (2020) 9 Cal.5th 685

(Gary note: Is Stamps still good law? Effective 1/1/2025, section 1171 was enacted to give courts guides on how to handle various amerliorative statutes. Take a look at 1171(c)(3) in this partial rendition of section 1171 (bold and italics by me):

(Penal Code section 1171[(a) For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.
(…
((c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.
(…
((e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.
((f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.)