The defendant was entitled to conduct credits.
The defendant was awarded 175 days credit for presentence custody but no conduct credits. Because he was convicted of a violent felony, section 2933.1 limits the conduct credit to 15% of the number of days in actual custody. He thus was entitled to an award of 26 days conduct credit—i.e., 15 percent of 175.
PEN 2933.1
Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.
Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.
PEN 1172.6
A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.
People v. Quan (2023) 96 Cal.App.5th 524, 532
People v. Basler (2022) 80 Cal.App.5th 46, 57
People v. Jackson (2025) 110 Cal.App.5th 128, 150-151
The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.
Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668
Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.
Chapman v. California (1967) 386 U.S. 18, 24
People v. Nieves (2021) 11 Cal.5th 404, 461
People v. Mendoza (2016) 62 Cal.4th 856, 902
In light of the California Supreme Court’s recent decision in Fletcher, we vacate the trial court’s findings that defendant’s 2016 conviction for violating section 186.22(a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposing a prior serious felony conviction enhancement. Defendant’s sentence is vacated and this matter is remanded for further proceedings.
The Legislature enacted AB 333, effective January 1, 2022, to narrow the definition of criminal street gang in order to focus on true gang-related crimes, having determined that in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. The Legislature in AB 333 redefined the term criminal street gang so as to truly target the population of criminals for which an enhanced punishment is warranted. As noted, AB 333 made significant changes to the elements of gang offenses and enhancements as defined in section 186.22.
AB 333
PC 186.22
People v. Fletcher (2025) 18 Cal.5th 576
People v. Rojas (2023) 15 Cal.5th 561
People v. Tran (2022) 13 Cal.5th 1169
Defendant was convicted of making criminal threats in this case more than two years after the amendment of section 186.22, but for purposes of sentencing under the Three Strikes law and imposition of a prior serious felony conviction enhancement, the trial court found true that in 2016, defendant was convicted of active participation in a criminal street gang, in violation of section 186.22(a), which is a serious felony. Courts of Appeal were split on whether prosecutors were required to prove prior gang convictions under section 186.22 as amended by AB 333 or whether it was sufficient to show a conviction under the statute in effect at the time of the prior conviction.
Based on this split of authority, defendant claimed entitlement to relief from the court’s findings related to his 2016 gang conviction because the conviction must meet the elements of section 186.22(a), as amended by AB 333. The California Supreme Court resolved the split of authority in defendant’s favor and held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies 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.
People v. Fletcher (2025) 18 Cal.5th 576, 583
On remand, the People may elect to retry the prior conviction allegations under section 186.22(a) as amended by AB 333.
People v. Fletcher (2025) 18 Cal.5th 576, 608
On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.
At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.
People v. Lopez (2025) 17 Cal.5th 388, 396
Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.
We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.
[Gary Note: This opinion was issued in December 2025. Effective 1/1/2025, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]People v. Stamps (2020) 9 Cal.5th 685, 707-708
People v. Superior Court (1982) 131 Cal.App.3d 256
Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58
We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.
People v. Walker (2024) 16 Cal.5th 1024, 1033
People v. Burke (2023) 89 Cal.App.5th 237, 242
Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.
The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.
PEN 1385(c)(1)
People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]
On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.
People v. Walker (2024) 16 Cal.5th 1024
The sentencing court violated Penal Code section 1170(b)(2) by considering an aggravating circumstance not proven at trial, and the error was prejudicial.
The sentencing court’s erroneous reliance on the vulnerable victim circumstance requires reversal and remand for resentencing. Section 1170(b)(2) states that the court may only sentence a defendant to the upper term based on aggravating circumstances the defendant stipulates to or that are found true beyond a reasonable doubt at trial. The error prejudiced the defendant because the trial court relied on the vulnerable victim aggravating circumstance in selecting a sentence.
PEN 1170(b)(2)
Cunningham v. California (2007) 549 U.S. 270, 281 [Under the Sixth Amendment 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.]
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]
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.
People v. Lynch (2024) 16 Cal.5th 730, 768
Because it constitutes a violation of the Sixth Amendment, the matter must be remanded for resentencing unless the error was harmless beyond a reasonable doubt. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed.
People v. Lynch (2024) 16 Cal.5th 730, 761
Chapman v. California (1967) 386 U.S. 18
Though generally, claims–including those involving a court’s failure to properly make or articulate its discretionary sentencing choices–not raised in the trial court may not be raised for the first time on appeal, an appellate court has the authority to decline to apply the forfeiture rule.
People v. Gonzalez (2024) 107 Cal.App.5th 312, 326
People v. Coddington (2023) 96 Cal.App.5th 562, 568
People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10 [Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim.]
The prosecution elected not to proceed on the vulnerable victim allegation, and thus the defendant had no occasion to bring any evidence contesting this alleged aggravating circumstance. The prosecution introduced no proof relevant to this aggravating circumstance other than the disparity in age between him and the victim and the church setting. In this situation, we cannot conclude beyond a reasonable doubt that the trial court as factfinder would have found the vulnerable victim aggravating circumstance true.
For sentences imposed under the former law the record must clearly indicate that the court would have found an upper term justified had it been aware of its more limited discretion. Thus, we assume without deciding that the different posture of the instant case compared to that in Lynch requires an examination of whether the court would have imposed the same sentence in the absence of the error. We conclude the defendant has demonstrated prejudice in this regard, regardless of whether the applicable test is whether the record clearly indicates the court would have imposed the same sentence absent the error, or whether it is reasonably probable the court would have imposed the same sentence.
People v. Lynch (2024) 16 Cal.5th 730, 774
People v. Gutierrez (2014) 58 Cal.4th 135
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.
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.
Cal. Const., art. I, sec. 16
People v. Wiley (2025) 17 Cal.5th 1069, 1078
People v. Sivongxxay (2017) 3 Cal.5th 151, 166
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
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
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.
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]
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.
People v. Epps (2001) 25 Cal.4th 19, 29
Where the sentence is life without the possibility of parole, it was improper to impose a parole revocation fine, and it must be stricken.
A parole revocation fine may not be imposed for a term of LWOP, as the statute is expressly inapplicable where there is no period of parole. Moreover, our Supreme Court recently recognized that the parole revocation fine statute does not apply where a defendant is given both an LWOP sentence and an indeterminate term.
PEN 1202.45
People v. Jenkins (2006) 140 Cal.App.4th 805, 819
People v. Alvarez (2025) 18 Cal.5th 387, 485–486
Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.
In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).
PEN 1202.4(b)(1)
PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]
The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true.
The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR. We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.
Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true, we presume the omission was deliberate and the trial court’s silence operates as a not true finding. In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries.
In evaluating the effect of the omission, our high court explained that admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge.
In re Candelario (1970) 3 Cal.3d 702
The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment. Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony.
In re Candelario (1970) 3 Cal.3d 702
People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]
People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]
People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]
People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true]
Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding. As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment.
People v. Karaman (1992) 4 Cal.4th 335, 344
People v. Howard (1997) 16 Cal.4th 1081, 1089
The exceptions to the rule are limited and do not apply here. This was not a clerical error that could be corrected at any time. This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence). Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction.
People v. Farias (2023) 92 Cal.App.5th 619, 635-636
People v. Codinha (2023) 92 Cal.App.5th 976, 1120 [holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]
People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]
People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]
People v. Singleton (2025) 113 Cal.App.5th 783, 797
A defendant is entitled to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. The court is directed to recalculate the amount of custody credit he should receive.
Section 2900.5 entitles a defendant to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate.
PEN 2900.5
People v. Duff (2010) 50 Cal.4th 787, 793
People v. Herrera (2001) 88 Cal.App.4th 1353, 1365
A sentence for possession of specified weapons while confined in (or being conveyed to or from) any penal institution is to be served consecutively.
PEN 4502
Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.
PEN 2900.5
Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.
The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error.
People v. Cruz (1988) 44 Cal.3d 1247, 1249
When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.
PEN 1192.5
A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.
People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5
A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.
People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224
Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.
People v. Silva (2016) 247 Cal.App.4th 578, 589
People v. Walker (1991) 54 Cal.3d 1013, 1024-1025
People v. Cruz (2013) 219 Cal.App.4th 61, 65
A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required.
People v. Vargas (2007) 148 Cal.App.4th 644, 651
The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).
It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant. With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. A 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.
PEN 1170
People v. Lynch (2024) 16 Cal.5th 730, 747
Erlinger v. United States (2024) 602 U.S. 821
Cunningham v. California (2007) 549 U.S. 270
People v. Wiley (2025) 17 Cal.5th 1069, 1085
Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.
Erlinger v. United States (2024) 602 U.S. 821, 838
Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.
People v. Scott (1994) 9 Cal.4th 331, 352–353
People v. McCullough (2013) 56 Cal.4th 589, 593
People v. French (2008) 43 Cal.4th 36, 46
An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right. Here, the defendant initially requested a jury trial. Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury. Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal.
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6
In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7
People v. McCullough, (2013) 56 Cal.4th 589, 593
But even assuming the forfeiture rule applies, we exercise our discretion to address the issue. Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture.
People v. Gonzalez (2024) 107 Cal.App.5th 312, 327
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6
People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions]
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 must be reversed 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, 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.
People v. Lynch (2024) 16 Cal.5th 730, 742–743
Chapman v. California (1967) 386 U.S. 18
People v. Wiley (2025) 17 Cal.5th 1069, 1087