Tag Archives: Prejudice

Sentencing, Sixth Amendment, Standard of review

Case 001089

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. Based on the probation report, the court found that the defendant had numerous prior convictions as an adult, had served prior prison terms, and was on postrelease community supervision at the time of the current offenses.

First Holding:

Section 1170(b)(2) provides that 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.

The statute permits a court to 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)

Second Holding:

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.

The prior conviction exception to the Sixth Amendment does not permit 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:

U.S. Const., Sixth Amend.

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

Third Holding:

Wiley applied Erlinger and overruled previous decisions finding 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.

Wiley explained that, under Erlinger, the Sixth Amendment entitles a defendant to a jury determination before a court may rely on those aggravating facts to find justification for an upper term sentence, unless the defendant stipulates to their truth or waives a jury trial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1084-1085

Fourth Holding:

A trial court’s reliance on aggravating circumstances found in violation of a defendant’s jury trial right 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 question is whether any rational fact finder could have come to the opposite conclusion.

(Gary note: The court discuss circumstances specific to this defendant and concluded that the error was prejudicial under Chapman.)

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 747, 768, 743 [reversal and remand required unless reviewing court concludes beyond a reasonable doubt that a jury would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified]

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

Fifth Holding:

The California Supreme Court has cautioned about the difficulties in ascertaining whether a jury would have found true an aggravating circumstance that calls for 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

Sixth Holding:

Though Wiley declined to address whether defendants are entitled to have a jury determine if their prior convictions are numerous, we accept the positions of the People that, under the holdings and logic of Erlinger and Wiley, a jury finding on this aggravating fact is required (absent waiver or stipulation), as the question whether a defendant has suffered “numerous” convictions (rule 4.421(b)(2)) involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.

Authority:

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

People v. Wright (2025) 113 Cal.App.5th 832, 847 [error to deny trial by jury on whether defendant suffered ‘numerous’ convictions in the past]

Seventh Holding:

Further proceedings on remand are to be conducted in accordance with the current statutory requirements and the defendant given the opportunity for the jury trial, of which he was deprived.

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.

The matter is remanded for a full resentencing consistent with this opinion.

Authority:

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

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review, Vicarious liability

Case 001077

Posted on by Gary McCurdy

Error and/or relief

Because there was a change in the statutory or case law, previous petitions under section 1172.6 are not a bar to a petition filed in reliance on the change in the law. It was error to summarily deny the petition.

First Holding:

Neither the express language of section 1172.6 nor the stated purpose of the legislation supports limiting access to relief under section 1172.6 where the subsequent petition rested on new legal authority that challenged the basis for the superior court’s summary denial of the previous petition. Enactment of SB 775 constituted new legal authority that entitled the defendant to file a new petition.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 946-947

Second Holding:

A defendant whose resentencing petition is denied before an order to show cause issues must demonstrate there is a reasonable probability that in the absence of the error the defendant would have obtained a more favorable result.

The record of conviction here fails to establish that defendant was ineligible for resentencing under section 1172.6 as a matter of law. Accordingly, it is apparent that but for the trial court’s error, defendant would have obtained a more favorable result.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 974

Third Holding:

The jury was instructed that an aider and abettor must have intended to commit, or aid and abet the felony of robbery (in this case) before or at the time that she caused the death. This was error. Under section 189(e)(2), a nonkiller must intend to kill and must assist the actual killer in the lethal act itself to be guilty of felony murder.

The instructions did not require the jury to make that finding. Thus, the record of conviction does not establish that the defendant is ineligible for relief as a matter of law and the trial court’s error in dismissing her petition for resentencing as an invalid, successive petition was not harmless. The order denying defendant’s petition for resentencing under section 1172.6 is reversed and the matter is remanded for further proceedings.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 678, 693

Sentencing, Sixth Amendment, Standard of review

Case 001054

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by relying on an aggravating factor—namely that the defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2))—that was not found true by a jury nor did the defendant stipulate to its truth.

First Holding:

A sentencing court may not impose a determinate upper term sentence unless there are circumstances in aggravation of the crime that justify its imposition, and the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial.

Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior 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:

PEN 1170(b)(1), (b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

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

Second Holding:

The aggravating circumstance described in rule 4.421(b)(2) of the Rules of Court (prior convictions are numerous or of increasing seriousness), though related to the facts of prior convictions, must be submitted to a jury to determine beyond a reasonable doubt, in the absence of a stipulation or jury trial waiver.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085 [a defendant is 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]

Third Holding:

While the evidence may have been sufficient to support a finding of increasing seriousness, 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. A rational juror could have reached the opposite conclusion here based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions.

Accordingly, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness. The judgment is reversed, the sentence is vacated, and the matter is remanded for a full resentencing under current law. The prosecution may retry the factors in aggravation, if it wishes to.

Authority:

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

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

Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

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

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

People v. Mesa (1975) 14 Cal.3d 466, 471

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

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Sentencing, Sixth Amendment, Standard of review

Case 001040

Posted on by Gary McCurdy

Error and/or relief

The trial court violated Penal Code section 1170(b) by imposing the upper term on one count of shooting at an occupied vehicle based on aggravating circumstances not found true by a jury or admitted by him. We reverse and remand for resentencing.

First Holding:

The Fifth and Sixth Amendments to the United States Constitution require that a jury find beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed statutory maximum. Section 1170(b)(2) codified this requirement by authorizing a court to impose the upper term only when the facts underlying an aggravating circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt.

Authority:

PEN 1170(b)(2)

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

Cunningham v. California (2007) 549 U.S. 270, 282

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

Second Holding:

Allegations of prior convictions may be tried by the court alone. But here, the court did not exclusively rely on aggravating circumstances related to prior convictions. Additionally, one of the aggravating circumstances related to prior convictions—the defendant’s prior convictions as an adult and juvenile were numerous and of increasing seriousness—involves more than the permissible factual finding by a court that the convictions were sustained.

Authority:

PEN 1170(b)(3)

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

Third Holding:

When the sentencing court relies on an aggravating circumstance not found by a jury, the reviewing court must apply the standard of prejudice under Chapman. We must reverse the sentence 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. 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:

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

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

Fourth Holding:

Whether the defendant was a danger to society is a subjective factual determination. Because the inquiry into the circumstances is comparative and qualitative, we cannot conclude with confidence that the jury would have assessed the facts in the same manner as the trial court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1089-1090

Fifth Holding:

Because the omission of a jury trial was not harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, we must reverse the defendant’s sentence.

On remand, the proceedings must comply with the current statutory requirements and the defendant be given the opportunity for a jury trial. The trial court may rely on any properly proven aggravating facts and retains its discretion to impose an upper term sentence. If the court cannot conclude that one or more properly proved circumstances justifies an upper term sentence, it may impose no more than the middle term.

Authority:

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