Tag Archives: Standard of review

Amelioration, Discretion, Duty of the court, Retroactivity, Sentencing, Sixth Amendment, Standard of review

Case 000842

Posted on by Gary McCurdy

Error and/or relief

In the prior appeal, the appellate court reversed the denial of the defendant’s petition for recall of sentence under section 1172.6 and ordered the trial court to grant the petition. On remand, the trial court granted the motion and redesignated the offense as three counts, and imposed the upper term.

It was error to resurrect and redesignate for sentencing counts that were dismissed in the original plea negotiations. It was also error to impose the upper term on circumstances in aggravation that were not submitted to a jury for proof beyond a reasonable doubt.

First Holding:

When the trial court granted the defendant’s petition for resentencing under section 1172.6, his judgment became nonfinal and was subject to the retroactive application of AB 333. AB 333 made changes to the law on gang enhancements and narrowed the definition of a criminal street gang.

The defendant’s admission under the former law does not satisfy the elements now required under the current law. The stipulation at the preliminary hearing that the [named gang] was an ongoing street gang that engages in a pattern of criminal activity pursuant to section 186.22(f) is insufficient under any standard to prove either the gang enhancement or the gang offense under current law.

Authority:

People v. Trent (2025) 112 Cal.App.5th 251, 262–263 [once petition for resentencing under sec. 1172.6 is granted, judgment is no longer final]

People v. Lopez (2025) 17 Cal.5th 388, 393 [AB 333 is retroactive to nonfinal judgments]

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

People v. Silva (2021) 72 Cal.App.5th 505, 526–527

Second Holding:

When a murder or attempted murder conviction is set aside under section 1172.6, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the murder or attempted murder was charged generically, and the target offense was not charged.

Authority:

PEN 1172.6(e)

Third Holding:

Section 1172.6 does not define what constitutes an underlying felony or target offense, but our high court in Arellano held that the meaning of these terms is clear—an underlying felony refers to the felony underlying a felony-murder theory, and the target offense refers to the offense the natural and probable consequence of which was murder.

Authority:

People v. Arellano (2024) 16 Cal.5th 457

People v. Lara (2025) 108 Cal.App.5th 1005 [the trial court erred by resurrecting counts dismissed in the parties’ plea agreement on resentencing]

Fourth Holding:

Application of the trial court’s resentencing discretion under section 1172.6(e) here is circumscribed by the prosecution’s exercise of charging discretion in the original proceeding. Here, that limitation is the district attorney’s election to dismiss all charges involving [victim 1] as well as the substantive gang count in return for the defendant’s plea to a single count of attempted second degree murder of [victim 2].

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 476 [deeming it unlikely the Legislature intended to allow the prosecution to effectively revisit its charging decisions  every time a petitioner succeeds in setting aside a  conviction under section 1172.6]

People v. Lara (2025) 108 Cal.App.5th 1005, 1026

Fifth Holding:

There is no dispute that there is no qualifying felony for which the prosecutor could have proceeded under a theory of felony murder in this case.

Thus when resentencing the defendant, the trial court was required to redesignate his offense as a target offense—the offense of which the natural and probable consequence was the attempted murder.

In this case, conviction for attempted murder of [victim 2] was properly redesignated as assault with a semiautomatic firearm on [victim 2]. We conclude that the trial court erred by resurrecting counts stemming from conduct that the district attorney plainly chose to dismiss as part of the negotiated settlement.

These dismissed counts cannot form the predicate for relief for the defendant’s petition for resentencing. Because the defendant did not plead to any other offenses than the attempted murder of [victim 2], the target offense underlying the attempted murder of one named person is not two assaults with a firearm on two persons. Courts may not impose uncharged and unproven sentence allegations or enhancements when resentencing a successful petitioner under section 1172.6e).

Authority:

People v. Arellano (2024) 16 Cal.5th 457, 475, 477

People v. Lara (2025) 108 Cal.App.5th 1005, 1027

Sixth Holding:

Though not applicable here, had the prosecution alleged and proved a target offense in addition to the attempted murder, on successful petition under section 1172.6, the court would be limited to sentencing the defendant on the charged target offenses that were proved. The trial court under section 1172.6(d)(3) would not have been otherwise entitled to resentence the defendant on charges that could have been [but were not] established by the evidence.

Authority:

PEN 1172.6(d)(3)

People v. Arellano (2024) 16 Cal.5th 457, 470

Seventh Holding:

The trial court erred by imposing an upper term for the count of assault with a semiautomatic firearm on [victim 2] without holding a jury trial as requested.

Under section 1170(b), when a statute specifies three possible terms, the trial court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, unless circumstances in aggravation that justify an upper term sentence have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a trial by the jury or by the judge in a court trial.

However, a trial court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)

Eighth Holding:

After the defendant’s resentencing, the California Supreme Court decided Wiley. Relying on Erlinger, our high court held that the Sixth Amendment requires a jury determination on aggravating factors related to a defendant’s criminal history, such as whether a defendant’s convictions were of increasing seriousness under rule 4.421(b)(2), and whether the defendant’s prior performance on probation was unsatisfactory under rule 4.421(b)(5).

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

Authority:

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

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]

Ninth Holding:

where a defendant was deprived of a jury trial on aggravating factors used at sentencing, we must apply the harmless beyond a reasonable doubt standard in Chapman.

Under this standard, we must reverse the judgment unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1087

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

Tenth Holding:

The trial court relied on the defendant’s rap sheet to determine that the crimes were of increasing seriousness and were numerous under rule 4.421(b)(2). According to defendant’s rap sheet, he had a juvenile adjudication in 2007 [for specified offenses], 2010 juvenile adjudications for [different offenses] and a 2014 conviction for [a different offense].  

Based on these series of offenses, a rational jury could have disagreed as to whether it demonstrated criminal conduct of increasing seriousness. Likewise, a rational jury could have also found that the defendant’s prior convictions were not particularly numerous. The failure to submit these aggravating factors to the jury was not harmless beyond a reasonable doubt, and the defendant is entitled to reversal of the upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1089

People v. Wright (2025) 113 Cal.App.5th 832, 848

 

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing, Standard of review

Case 000838

Posted on by Gary McCurdy

Error and/or relief

Because the court did not follow the required procedures for adjudicating the petition brought under section 1170.91, we reverse and remand for further proceedings. We also direct the superior court to correct a clerical error in the abstract of judgment.

First Holding:

We interpret the requirements of section 1170.91 de novo.

Authority:

People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 237

Second Holding:

Section 1170.91(b)(1) provides that a person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service was not considered as a factor in mitigation at the time of sentencing.

Authority:

PEN 1170.91

Third Holding:

If the trial court finds the defendant satisfies the criteria for relief, the court may, in the interest of justice, do either of the following: (1) reduce the defendant’s term of imprisonment by modifying the sentence; or (2) vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecution.

Authority:

PEN 1170.91(b)(3)(A)–(B)

Fourth Holding:

Upon receiving a section 1170.91 petition for resentencing, the trial court must hold a public hearing to determine whether the defendant satisfies the statutory criteria for relief. The prosecution, the defense, and any victim must be given at least 15 days’ notice of the hearing. At that hearing, the prosecution shall have an opportunity to be heard on the defendant’s eligibility and suitability for resentencing. The trial court erred by denying the defendant’s petition for resentencing without holding a properly noticed public hearing as required by section 1170.91(b)(3).

Authority:

PEN 1170.91(b)(3)

People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 239

Fifth Holding:

Though the original version of section 1170.91 limited its application to those serving a determinate sentence, the Legislature amended the section in 2022 to remove the limitation.

Authority:

People v. Sherman (2023) 91 Cal.App.5th 325, 330 [In 2022, the Legislature amended

again. The 2022 amendment expanded subdivisions (a) and (b) to include those serving indeterminate sentences]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1154 [same]

Sixth Holding:

There is a clerical error in the abstract of judgment. It states that the defendant was convicted of grand theft of a vehicle pursuant to section 487h(a), when in fact he was convicted of the lesser included offense of unlawful driving of a vehicle pursuant to Vehicle Code section 10851(a).

If not already done, the abstract of judgment must be amended to correct this error.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 000837

Posted on by Gary McCurdy

Error and/or relief

On resentencing following the defendant’s earlier appeal, the court misunderstood the scope of discretion with regard to striking or reducing the term imposed for firearm enhancements.

It also erred in imposing the upper term based on circumstances in aggravation that should have been, but were not, either stipulated to by the defendant or submitted to a jury for determination beyond a reasonable doubt.

First Holding:

When an accusatory pleading alleges and the jury finds true the facts supporting a greater firearm enhancement, the court may impose a lesser included, uncharged statutory enhancement. Further, a trial court may strike a defendant’s enhancement under section 12022.53 and impose a lesser uncharged enhancement authorized elsewhere in the Penal Code, that is, outside of section 12022.53.

Authority:

People v. Tirado (2022) 12 Cal.5th 688, 697, 700

People v. McDavid (2024) 15 Cal.5th 1015, 1030

Second Holding:

We consider a trial court’s sentencing decisions under an abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings not supported by substantial evidence.

A ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.

Authority:

People v. Moseley (2004) 105 Cal.App.5th 870, 874

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

People v. Tirado (2022) 12 Cal.5th 688, 694

Third Holding:

Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors. A silent record does not demonstrate a lack of awareness of the court’s full sentencing discretion.

Even if the sentencing court was unaware of its discretion, remand is not necessary when the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

It appears from the record in this case that the court believed that its only choices were to impose the section 12022.53 enhancement or to strike it entirely. It appears that the court was unaware that it also had the option to impose a firearm enhancement under a lesser statute, section 12022.5.

Authority:

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

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

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

The court erred in imposing the upper term based on a circumstance in aggravation that was not submitted to a jury for determination beyond a reasonable doubt, that the defendant’s (specifically, that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness).

Authority:

PEN 1170

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

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

Fifth Holding:

A trial court’s sentencing decisions are reviewed for abuse of discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

Sixth Holding:

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

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

Authority:

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

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

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000833

Posted on by Gary McCurdy

Error and/or relief

The trial court’s true findings on three of the four strike priors and three of the four prior serious felony enhancements must be vacated and the matter remanded to the court for any retrial of these allegations, because there is insufficient evidence to support the finding defendant’s three 2016 convictions qualify as serious or violent felonies for purposes of three of the four strike priors and three of the four prior serious felony enhancements under the 2022 amendments to section 186.22 enacted by AB 333.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: if a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7 defines “serious felony” to include, among other things, any felony offense that would also constitute a felony violation of section 186.22.

Authority:

PEN 1170.12

PEN 1192.7(c)(28)

Second Holding:

Section 186.22(a) makes it unlawful to actively participate in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and to willfully promote, further, or assist in felonious criminal conduct by members of that gang.

Section 186.22(b) provides for enhancements if a person commits a felony for the benefit of such a gang. Section 186.22 also defines the terms criminal street gang and pattern of criminal gang activity as well as benefitting a gang.

Authority:

PEN 186.22

Third Holding:

Effective January 1, 2022, AB 333 narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas former section 186.22(f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a ‘criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offense commonly benefitted a criminal street gang and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

PEN 186.22

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

Fourth Holding:

Fletcher 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.

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, 583, 607

Fifth Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1067

Sixth Holding:

The inquiry concerning whether a prior conviction qualifies as a serious felony is a determination regarding the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. McGee (2006) 38 Cal.4th 682, 706

People v. Delgado (2008) 43 Cal.4th 1059, 1065 (superseded by statute on another ground, as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795)

Duty of the court, Jury trial, Standard of review

Case 000829

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. Reversed and remanded for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception.

Authority:

U.S. Const., 6th Amend.

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

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

Second Holding:

Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of circumstances.]

People v. Daniels (2017) 3 Cal.5th 961, 992

Third Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.

We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

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

Fourth Holding:

Our Supreme Court has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver. That said, it has emphasized the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial.

The Supreme Court has recommended that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will make the decision.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

Fifth Holding:

The Supreme Court has also recommended that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails.

A trial judge may do so in any number of ways—among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived.

Ultimately, a court must consider the defendant’s individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.

(Gary note: The court then analyzed record in this case and concluded that the jury trial waiver was not knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay–that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.)

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

People v. Jones (2018) 26 Cal.App.5th 420, 428

Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

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

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

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

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000825

Posted on by Gary McCurdy

Error and/or relief

We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding the defendant unsuitable for diversion.

(Gary note: I have set out the various holdings and authorities below that represent the applicable law and principles, but I have not recited the court’s analysis of the facts in this case on which it based there was no substantial evidence to support the court’s conclusion that the defendant was a danger to the community. Suffice it to say, the appellate court found the court’s reasoning inadequate to support denial of the request for mental health diversion.)

First Holding:

Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. The stated purpose of the diversion statute is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. However, if after diversion is granted, a qualified mental health expert concludes the defendant is performing unsatisfactorily in the assigned program, the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified.

Authority:

PEN 1001.36

PEN 1001.35

People v. Williams (2021) 63 Cal.App.5th 990, 995

People v. Frahs (2020) 9 Cal.5th 618, 626

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150

Second Holding:

Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program. A defendant is eligible if they meet two criteria: first, the defendant must have been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, within the last five years, by a qualified mental health expert.

Second, the disorder must be a significant factor in the commission of the charged offense. The court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36(b)

Third Holding:

This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688–689

Fourth Holding:

If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the diagnosis eligibility requirement, the first of these relies on input from a medical professional, in this instance the opinion of a qualified mental health expert, that the symptoms of defendant’s mental disorder would respond to mental health treatment.

The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding, to wit, that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–894

Fifth Holding:

Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18(c) and 667(e)(2)(C)(iv), an unreasonable risk to public safety means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.

The listed felonies are colloquially known as “super strikes.” Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. We note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense.

Authority:

PEN 1001.36(c)(4)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Moine (2011) 62 Cal.App.5th 440, 450

People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310

Sixth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendant will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Seventh Holding:

Finally, even if a defendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered; it must be exercised consistent with the principles and purpose of the governing law. Where the court chooses to exercise that residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet these goals.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Eighth Holding:

We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. Under this deferential standard of review, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Ninth Holding:

We review the trial court’s ultimate decision whether to grant mental health diversion for an abuse of discretion. By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

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)

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