Tag Archives: Prior convictions

Sentencing, Sixth Amendment

Case: 000150

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

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

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

Second Holding:

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

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

Authority:

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

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

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

Third Holding:

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

Authority:

PEN 1025

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

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

Fourth Holding:

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

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

Authority:

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

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

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

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Amelioration, Sentencing, Statutory interpretation

Case: 000119

Posted on by Gary McCurdy

Error and/or relief

Because punishments on his prison priors were stricken, the trial court ruled that the defendant was ineligible for relief under section 1172.75. We reverse and remand for resentencing.

Holding:

A pre-Rhodius case on point convincingly concluded that section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing. We agree with the Espino majority that there is no sound reason to differentiate between section 667.5 enhancements that have been stayed and those that have been stricken for purposes of sentencing. In each of these cases, the judgment still contains a now-invalid enhancement for a prior prison term.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133

Amelioration, Sentencing, Statutory interpretation

Case: 000116

Posted on by Gary McCurdy

Error and/or relief

The defendant petitioned for recall and resentencing pursuant to section 1172.75. The question before us is whether section 1172.75 entitles the defendant to a resentencing hearing even though the prior prison term enhancements were stricken for the purposes of sentencing. We agree with defendant that he is entitled to resentencing pursuant to section 1172.75.

First Holding:

Section 1172.75 applies to enhancements that were stricken at sentencing, not just those that are imposed but stayed at sentencing.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050

People v. Espino (2024) 104 Cal.App.5th 188, 193, review granted Oct. 23, 2024, S286987 [Gary note: The case on review in the Supreme Court was argued and deemed submitted on May 6, 2026. The opinion will likely be rendered within 90 days of that date, or by August 4, 2026]

People v. Cota (2025) 112 Cal.App.5th 1118, 1133

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case: 000092

Posted on by Gary McCurdy

Error and/or relief

The clerk of the superior court is directed to correct the abstract of judgment to reflect that the court did not impose any prior-prison-term enhancements under section 667.5, subdivision (b). The clerk of the superior court is directed to forward copies of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

First Holding:

As the judge did not orally impose any prior-prison-term enhancements, section 1172.5 does not come into play, despite a reference to the priors in the abstract of judgment.

Authority:

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

Second Holding:

Effective January 1, 2020, SB 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, sec. 1) amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses (sec. 667.5(b)).

Authority:

PEN 667.5(b)

People v. Garcia (2024) 101 Cal.App.5th 848, 854

Third Holding:

Effective January 1, 2022, SB 483 made the change retroactive to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

Fourth Holding:

Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050

Fifth Holding:

An appellate court reviews the trial court’s ruling, not its reasoning, and will affirm on any correct ground.

Authority:

People v. Battle (2021) 11 Cal.5th 749, 800

Sixth Holding:

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

Authority:

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

Seventh Holding:

The abstract may be corrected at any time when it does not reflect the oral pronouncements.

Authority:

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

 

Amelioration, Duty of the court, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000088

Posted on by Gary McCurdy

Error and/or relief

The trial court made several errors in resentencing under Penal Code section 1172.5. It failed to strike the now-invalid priors, if failed to consider the impact of AB 333 on gang aspects; it imposed of repealed $10 admin fee. On remand the court must also recalculate credits and correct the abstract of judgment. [GARY NOTE: The opinion also provided extensive discussion of the application of section 1385, regarding dismissals in the furtherance or interest of justice, touching on abuse of discretion, etc., that were resolved against the defendant on appeal. I have provided a few principles and authorities on those points for educational reasons, even though they did not support relief for the defendant in this instance.]

First Holding:

Section 1172.75 declares legally invalid all one-year prior prison term enhancements except those for sexually violent offenses described in WI Code section 6600(b). Because the defendant’s two priors are not sexually violent offenses, they were legally invalid and should have been stricken.

Authority:

PEN 1172.75

Second Holding:

Assembly Bill No. 333 (2021-2022 Reg. Sess.) (AB 333) modified the gang enhancement by adding new requirements that did not previously exist. Because AB 333 retroactively applies to people, like defendant, who have been granted a resentencing hearing, the trial court erred in not assessing whether the jury’s findings in this case otherwise addressed the new requirements or whether the jury’s failure to do so was harmless beyond a reasonable doubt.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 395-396

Third Holding:

The trial court imposed a $10 administrative screening fee ostensibly under section 1463.07 in November 2018. This is unenforceable because our Legislature in 2021 repealed that section and nullified prior fees imposed under that section.

Authority:

PEN 1465.9

Fourth Holding:

It was not necessary for the trial court to respond to all of the defendant’s contentions at the sentencing hearing. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules.

Authority:

Rules of Court, rule 4.409 [sentencing factors will be deemed to have been considered unless the record affirmatively reflects otherwise]

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322

People v. Brugman (2021) 62 Cal.App.5th 608, 637

Fifth Holding:

We review the exercise of sentencing discretion for an abuse of discretion but recognize that a trial court’s reliance on an incorrect legal standard constitutes such an abuse. Application of the wrong test in determination of whether a defendant poses a danger to public safety is an abuse of discretion.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Sixth Holding:

Despite the use of the phrase “shall be dismissed,” section 1385’s provisions that require a court to give great weight in favor of dismissal do not apply where a trial court finds that dismissal of the enhancements would endanger public safety.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

People v. Mazur (2023) 97 Cal.App.5th 438, 444-446

People v. Cota (2023) 97 Cal.App.5th 318, 335-337

People v. Renteria (2023) 96 Cal.App.5th 1276, 1284-1290

People v. Anderson (2023) 88 Cal.App.5th 233, 238-241

People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21

Sentencing, Sixth Amendment, Standard of review

Case 000082

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170(b). We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First 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.

Authority:

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

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

Second Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Third Holding:

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. 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, 837-838

Fourth Holding:

The aggravating circumstances were not proven in accordance with section 1170(b)(2) and the prior conviction exception would not apply to them.e

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [We understand Erlinger to require that 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]

Fifth 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.

Authority:

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

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

Sixth Holding:

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 People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1090 [deciding it could not conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness]

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

Amelioration, Sentencing

Case 000080

Posted on by Gary McCurdy

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former sec. 667.5(b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, we therefore reverse the trial court’s order denying defendant a resentencing hearing, and remand for the court to hold that hearing.

Holding:

A defendant is eligible for resentencing under Penal Code section 1172.75 (pertaining to recent legislation that eliminated enhancement for certain prior convictions that resulted in prison terms) where the enhancement for the prior conviction had been imposed but stayed or stricken.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Amelioration, Sentencing, Sixth Amendment

Case 000073

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed upper term sentences on Counts 1 and 3, and the matter must therefore be remanded for resentencing. We agree that the defendant’s trial rights notwithstanding, the court’s reliance on his prior criminal history to impose aggravated terms was prejudicial error.

First Holding:

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.

Authority:

PEN 1170(b)

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

Second Holding:

Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. Thus, 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:

People v. Lynch (2024) 16 Cal.5th 730, 742, 748

Third Holding:

Except for properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception to prior convictions permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions, within the meaning of the federal sentencing statute at issue. Instead, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. In doing so, the court reaffirmed the basic rationale of Apprendi and rejected the arguments made by the dissent and amicus curiae that, historically, when exercising their sentencing authority, judges were also presumed to have the power to find and consider nearly any fact deemed relevant to the penalty.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 843

Mathis v. United States (2016) 579 U.S. 500, 511–512

Fourth Holding:

Since Erlinger, the California Supreme Court has gone further to make it clear that Erlinger requires that 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. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083–1084 [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]

Amelioration, Retroactivity, Sentencing

Case 000068

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded again, this time for retrial of the section 667(a) enhancement in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (AB 333), which narrowed liability for gang-related crimes.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22 to change the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements under section 667(a). Whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607

Third Holding:

Assembly Bill No. 333 is retroactive under Estrada, meaning it applies to cases like this one where the judgment is not yet final.

Authority:

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

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Fourth Holding:

In this instance, the appellate court filed a memorandum opinion under California Standards of Judicial Administration, section 8.1(1). The Courts of Appeal should dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion. Such causes could include: (1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or (3) An appeal raising factual issues that are determined by the substantial evidence rule. [Gary note: I included this tidbit simply to raise awareness of a Court of Appeals options in how opinions may be crafted.]

Authority:

California Standards of Judicial Administration, section 8.1(1)

 

Amelioration, Sentencing

Case 000066

Posted on by Gary McCurdy

Error and/or relief

We will find that the trial court’s denial was bottomed on its reliance on defendant’s abstract of judgment from which the enhancement qualifying him for resentencing relief had been erroneously removed. Accordingly, we will reverse the trial court’s order and remand this matter with instructions to hold a resentencing pursuant to section 1172.75.

First Holding:

An abstract of judgment is not the judgment of conviction and does not control if it is different from the trial court’s oral pronouncement of judgment. When an abstract of judgment does not reflect the actual sentence imposed by the trial court in its oral pronouncement, the reviewing court has inherent power to correct such clerical error on appeal.

Authority:

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

People v. Jones (2012) 54 Cal.4th 1, 89

Second Holding:

In 2019, the Legislature amended section 667.5(b) to eliminate prior prison term enhancements unless the prior prison term was for specific sexually violent offenses. If that court determines a defendant’s current judgment includes the enhancement, it must recall the sentence and resentence the defendant.

Authority:

PEN 667.5(b)

PEN 1172.75

Abstracts and Minutes, Sentencing

Case 000062

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938