Tag Archives: Sentencing

Abstracts and Minutes, Defenses, Sentencing, Sixth Amendment

Case 000827

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1025(b)

PEN 1158

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

Second Holding:

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

Authority:

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

Third Holding:

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

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

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

Authority:

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

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

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

Fourth Holding:

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

Authority:

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

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

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

Appellate Principles, Sentencing, Sixth Amendment

Case 000826

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

The federal Constitution’s Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the Fifth Amendment’s Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. This includes any fact, beyond the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum.

Thus, under California’s determinate sentencing law, any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Authority:

U.S. Const., 6th Amend.

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

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

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

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

Second Holding:

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

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

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

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

Authority:

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

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

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

Third Holding:

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

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

Authority:

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

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

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

Fourth Holding:

A waiver of the right to a jury trial must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct.

Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Here, because appellant did not personally waive his right to a jury trial nor did he admit these sentencing factors, his Sixth Amendment jury trial right was violated.

Authority:

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

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

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

Fifth Holding:

This error was prejudicial. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

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

Numerosity of the prior convictions is a comparative and qualitative factor that makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

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

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

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

Sixth Holding:

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

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

Authority:

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

Sentencing

Case 000823

Posted on by Gary McCurdy

Error and/or relief

It was error to stay the sentence on the use of firearm enhancement and the prior serious felony in an effort to show leniency. The proper procedure requires the court to strike them, not stay them.

Holding:

The trial court imposed and stayed both the remaining section 12022.53(b) and (c) firearm enhancements as to counts 1 and 2, and the serious felony prior enhancement as to count 2. This was an unauthorized sentence. The record indicates that the trial court did not intend to punish the defendant for these additional enhancements. Because a trial court has no authority to stay an enhancement based on its discretion, the court imposed a legally unauthorized sentence. We exercise our authority under section 1260 to modify the judgment by striking this unauthorized sentence.

Authority:

PEN 1260

People v. Bay (2019) 40 Cal.App.5th 126, 139 [The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.]

Amelioration, Sentencing

Case 000822

Posted on by Gary McCurdy

Error and/or relief

On the defendant’s resentencing hearing under section 1172.75, the court erroneously denied the defendant’s petition, concluding that he was not eligible because the now-invalid enhancement for a prior prison term had been imposed but stayed.

Holding:

While this appeal was pending, the Supreme Court issued its opinion in Rhodius, in which it held that a person whose sentence included a now-invalid enhancement for a prior prison term is eligible for resentencing under section 1172.75, even if the enhancement was stayed at the initial sentencing.

Authority:

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

Eighth Amendment, Fines and fees, Sentencing

Case 000820

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering defendant to pay ancillary costs and to reimburse the police department for the SART [Sexual Assault Response Team] examination costs without considering his ability to pay and while the amount of victim reimbursement had yet to be determined. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

Because defendant did not obtain a certificate of probable cause, our review is limited to issues occurring after entry of the plea that do not affect its validity.

Authority:

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)(3)

People v. Mendez (1999) 19 Cal.4th 1084, 1096

Second Holding:

While this appeal was pending, our Supreme Court decided Kopp, which held that (1) a defendant may challenge the imposition of a punitive fine (e.g., restitution fines under Penal Code section 1202.4) under the excessive fines provisions of the United States and California Constitutions; and (2) equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing ancillary costs (e.g., court facilities fees under Government Code section 70373 and court operations fees under section 1465.8).

Because defendant did not have the benefit of Kopp’s specific reasoning at the time of his sentencing, we conclude he must be afforded the opportunity to assert an excessive fine objection and develop a factual record on the considerations relevant to that claim.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Third Holding:

The touchstone of the excessive fines inquiry is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.

Four considerations inform that inquiry: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

Fourth Holding:

As for the $30 court operations fee and the $40 court facilities fee, Kopp held that, in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing ancillary costs in criminal cases.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Fifth Holding:

Here, the trial court erroneously denied defense counsel’s request for an ability to pay hearing. Although some courts have found such error harmless where the record otherwise reflects the defendant’s earning capacity, we decline to do so here, as the People do not contend the record is sufficient to make such a determination in this case.

Furthermore, an ability to pay hearing is also required under section 1203.1h [regarding the cost of medical examinations incurred by law enforcement for the collection and preservation of evidence in sexual assault cases].

Authority:

PEN 1203.1h(b)

People v. Aviles (2019) 39 Cal.App.5th 1055, 1075–1077

People v. Johnson (2019) 35 Cal.App.5th 134, 139–140

Effective assistance of counsel, Sentencing, Standard of review

Case 000819

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This opinion actually contained no relief for the defendant because there was no harm, therefore no foul. I.e., Harmless error. But I have included for some important principles that the defendant prevailed on, save the need to show prejudice.)

The firearm and great bodily injury findings on the defendant’s murder convictions must be reversed, though it does not affect his sentence because the court did not impose sentence on those enhancements. His counsel was ineffective for failing to object to the dual use of facts at sentencing, but the error was harmless because the court cited and relied on several other properly established factors in aggravation and made it clear that the court intended to impose the upper term.

First Holding:

The jury found the defendant personally inflicted great bodily harm within the meaning of section 12022.7(a) when he committed each of the counts of murder. But section 12022.7 specifically states that it does not apply to the crime of murder. We reverse those findings, but the sentence remains unaffected because the court did not impose punishment for those enhancements.

Authority:

PEN 12022.7(g)

Second Holding:

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his counsel’s performance was deficient, and that the deficiency prejudiced the defense. On direct appeal, a finding of deficient performance is warranted where (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Johnsen (2021) 10 Cal.5th 1116, 1165

Third Holding:

A trial court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.

We agree with the defendant that there is no conceivable reason for his counsel to have failed to raise this point in the trial court.

The law prohibiting the dual use of facts for an enhancement and to aggravate a sentence is clear, and the People do not dispute that it barred the court from relying on the firearm and great bodily injury aggravating circumstances to impose the upper term on count 10. The defendant had nothing to lose by raising this point and could only face a longer sentence by allowing the court to consider more aggravating circumstances than were proper.

Authority:

PEN 1170(b)(5)

Rules of Court, rule 4.420(g)

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

Fourth Holding:

Establishing prejudice for a claim of ineffective assistance of counsel requires a defendant to demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

The defendant fails to establish prejudice because the record clearly indicates that the trial court could and would have imposed the same sentence even without the additional aggravating circumstances. A trial court may impose an upper-term sentence based on even a single aggravating factor.

Because the trial court made every possible choice to lengthen the term of the defendant’s sentence, well beyond the limit of what the defendant could be physically capable of serving [more than 200 years], the trial court left no doubt that it would have imposed the same upper term on count 10 even without two of the aggravating circumstances.circumstance.

Authority:

In re Gay (2020) 8 Cal.5th 1059, 1086

People v. Lynch (2024) 16 Cal.5th 730, 764

Sentencing, Sixth Amendment, Standard of review

Case 000818

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

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

When the constitutional right to jury trial is involved, there must be an express waiver. It is undisputed that appellant made no such express waiver in this case. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

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

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1087

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

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

Second Holding:

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

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

Authority:

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

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

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

Third Holding:

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

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

Authority:

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

Fourth Holding:

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

Authority:

PEN 4019(f)

Juveniles, Sentencing

Case 000816

Posted on by Gary McCurdy

Error and/or relief

Given that the minor was not removed from his home, it was error for the court to set the maximum term of confinement.

Holding:

When a minor is removed from the physical custody of a parent or guardian, a juvenile court must specify the maximum term of confinement. But the statute authorizes the juvenile court to specify the maximum confinement term only when a minor is removed from parental custody. Because the juvenile court did not remove the minor from his mother’s custody, the maximum confinement term should be stricken.

Authority:

WIC 726(d)(1)

In re Matthew A. (2008) 165 Cal.App.4th 537, 541

 

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case 000815

Posted on by Gary McCurdy

Error and/or relief

It was error to impose a condition of probation that the defendant must submit to chemical testing for the use of alcohol at any time as directed by probation officer or other law enforcement officer.

First Holding:

As an initial matter, we address and reject the Attorney General’s argument that the defendant’s failure to object to the alcohol testing condition forfeited the issue on appeal. Neither forfeiture nor application of the forfeiture rule is automatic, and appellate courts have discretion to review otherwise forfeited challenges. Here, we exercise our right to decide the appeal on its merits, in order to eliminate the need to address the defendant’s alternative ineffective assistance of counsel claim. We now turn to the reasonableness of condition

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

In re Victor L. (2010) 182 Cal.App.4th 902, 928

Second Holding:

The defendant challenges the imposition of probation condition 13, which required him to submit to alcohol testing, as unreasonable under Lent. He contends the condition does not make sense because the trial court struck condition 12 that prohibited him from consuming or possessing alcohol.

Authority:

People v. Lent (1975) 15 Cal.3d 481

Third Holding:

We review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Fourth Holding:

A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120

Fifth Holding:

Notably, when asked to strike the condition requiring the defendant to abstain from drinking alcohol, the sentencing court freely did so without any apparent reservation. This striking shows the court was not concerned that the defendant’s alcohol consumption had the potential for abuse or was likely to lead to future criminality.

As such, because the defendant was allowed to possess and consume alcohol, there was no rational need to test the defendant for alcohol consumption as a condition of probation. Therefore, we conclude the testing condition here has no deterrent effect on the defendant’s future criminality and is unreasonable.

Authority:

People v. Kiddoo (1990) 225 Cal.App.3d 922, 928, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 236–237 [court struck a probation condition that appellant not possess or consume alcohol or frequent places where alcohol was sold because there was no factual indication in the record that the proscribed behavior is reasonably related to future criminal behavior]

Sixth Holding:

Because the court’s imposition of condition 13 was therefore an abuse of discretion, we order it stricken.

Authority:

In re Malik J. (2015) 240 Cal.App.4th 896, 901 [In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified]

Sentencing, Sixth Amendment, Standard of review

Case 000814

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on the aggravating circumstance that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness, without either a true finding by a jury or the defendant’s admission.

First Holding:

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

Authority:

PEN 1170(b)(2)

Second Holding:

This trial right is not merely a state law entitlement, but is constitutionally required. Under the Fifth and Sixth Amendments to the United States Constitution, 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.

Authority:

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

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

Erlinger v. United States (2024) 602 U.S. 821, 834 [Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).]

Third Holding:

The only exception to this rule is the fact of a prior conviction. 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. Allegations of prior convictions may be tried by the court alone and proven by certified records of conviction. However, this exception is narrow. 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. Wiley (2025) 17 Cal.5th 1069, 1079, 1083, 1084 [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]

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

People v. Lynch (2024) 16 Cal.5th 730, 742, 757 [Excluding 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.]

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

Fourth Holding:

Two aggravating factors under the rules of court—the increasing seriousness of a defendant’s prior convictions (rule 4.421(b)(2)) and unsatisfactory performance on probation (rule 4.421(b)(5))—involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Accordingly, a defendant is entitled to a jury trial on those two factors before the factors can be used to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1085

Fifth 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 standard of review under Chapman. 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.

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

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

Sixth Holding:

The facts supporting every aggravating circumstance upon which the trial court relies to justify imposition of the upper term must be properly proven.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 000813

Posted on by Gary McCurdy

Error and/or relief

In imposing the upper term the trial court erroneously relied on circumstances in aggravation that were not stipulated to nor submitted to a jury for proof beyond a reasonable doubt.

First Holding:

In support of the upper term, the court identified several circumstances in aggravation that it concluded did not need to be submitted to the jury. The trial court proceeded to find true that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness; that the defendant has served a prior term in prison or county jail under section 1170(h); and that the defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed.

At the sentencing hearing, the trial court also mentioned finding true a fourth aggravating factor, that the defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. This was error.

In Wiley, the Supreme Court recognized that, under the Sixth Amendment and section 1170(b), 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. This right to a jury trial extends to the aggravating factor that a defendant’s prior convictions were of increasing seriousness. It also extends to the aggravating factor that a defendant’s prior performance on probation or parole was unsatisfactory.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1083, 1086

Second Holding:

We apply the Chapman standard of review to determine if the error was prejudicial. A defendant is entitled to a reversal and remand for resentencing unless, after examining the entire cause, including the evidence as to all relevant circumstances, we 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.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1087

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

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

Abstracts and Minutes, Sentencing, Standard of review

Case 000812

Posted on by Gary McCurdy

Error and/or relief

Intro The defendant pled guilty to felon in possession of a firearm, and unlawfully carrying a firearm with intent to commit a felony. The trial court sentenced defendant to two years state prison on each count, with the terms to be run concurrently. The sentence violates Penal Code section 654, as both counts arise from the same act of possessing and carrying a firearm. On resentencing, the abstract of judgment needs to be corrected to reflect the actual oral pronouncement of judgment.
blurb here

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Authority:

PEN 654

Second Holding:

Both Count 1 and Count 2 are premised on the same act by defendant of owning, possessing, and carrying a firearm on or about [the date in question] and a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357

Third Holding:

Where, as here, the facts are undisputed, we review de novo the application of section 654 as a question of law.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 312

Fourth Holding:

The record is inadequate for us to determine which sentence the trial court would have stayed if it considered section 654, making section 1260 relief inappropriate. We will remand to the trial court so that it may exercise its discretion to determine which sentence to stay.

Authority:

PEN 1260

People v. Braxton (2004) 34 Cal.4th 798, 818–819 [A limited remand is appropriate under section 1260 for the exercise of any discretion that is vested by law in the trial court]

Fifth Holding:

Section 1260 provides in relevant part that the appellate court may reverse, affirm, or modify a judgment or order appealed from and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order. Although section 1260 provides this court with the broad ability to modify judgments or proceedings, we exercise this power sparingly for the trial court’s articulated discretion is, generally speaking, controlling.

Authority:

People v. Humphrey (1997) 58 Cal.App.4th 809, 813

Sixth Holding:

Where the reviewing court finds an error in the exercise of sentencing discretion, the ordinary remedy is to reverse and remand to the trial court for resentencing, during which the trial court will have a new opportunity to exercise its discretion. The law respects the substantial discretion vested in the trial court to determine the appropriate sentence in light of the facts and circumstances of the individual case. Modification of the judgment instead of remand for resentencing matters would be appropriate when a trial court’s intention is clear.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 261

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Seventh Holding:

Although the previous version of section 654 provided that an act or omission shall be punished under the longest potential term of imprisonment, effective January 1, 2022, section 654 was revised to provide the trial court with discretion to impose and execute the sentence of either term. Thus, where section 654 applies, “after determining which sentence to execute, courts must impose a sentence on the other count to which Penal Code section 654 applies and then stay execution of that sentence.

[Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, restoring to the court the discretion to choose on which count punishment should be imposed and executed.]

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379-380

Eighth Holding:

In this instance, the record does not present any indication as to which sentence the trial court would have stayed if it had considered the effect of section 654. It is true, as the People note, that the [date of original sentence], minute order states “Principal Count Deemed to be Count 01.” The [date probation was revoked and sentence was executed] minute order states the same, as does the abstract of judgment. The reporter’s transcript, however, contains no record of such a designation of a principal count by the trial court. Where a conflict exists between the court’s oral pronouncement and the minute order or abstract of judgment, the oral pronouncement controls. Following resentencing, the abstract of judgment must be corrected to reflect the actual oral judgment.

Authority:

People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3