Tag Archives: Upper term

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001111

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate defendant’s custody credits and issue an amended abstract of judgment. The argument regarding imposition of the upper term is forfeited for lack of objection in the trial court.

First Holding:

Under California’s determinate sentencing law as it currently stands, 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 and a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmanstandard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Second Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Scott (2015) 61 Cal.4th 363, 406

Third Holding:

Strong policy reasons support this forfeiture rule. 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 law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal

Authority:

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

People v. Salazar (2016) 63 Cal.4th 214, 239–240

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

Fourth Holding:

Even constitutional claims may be forfeited if the issue is not raised below, and discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.

Absent a substantive change in the law that applies retroactively or an extenuating circumstance such as the futility of objecting under the then-governing substantive law, neither of which is at issue here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court during resentencing and then seeks to obtain appellate relief based on an asserted sentencing error that could have been raised at the time of sentencing.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887-888, fn. 7

People v. Salazar (2023) 15 Cal.5th 416, 431–432

People v. Stamps (2020) 9 Cal.5th 685, 698–699

People v. Perez (2020) 9 Cal.5th 1, 7–8

People v. Brooks (2017) 3 Cal.5th 1, 92

People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal]

Fifth Holding:

The restitution fine imposed in 2002 must be vacated under section 1465.9(d), which provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626–627

Sixth Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

We remand for the court to determine the appropriate credit for time served.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody credits correctly calculated]

(Gary note: The court quoted Buckhalter language that did not involve determination of credit for time served up to the original date of sentence. Thus, it is not uncommon to see language citing Buckhalter to mention the actual days in custody, with no mention of conduct time earned under section 4019 prior to the original sentencing. Buckhalter was concerned only with the time between the original sentencing and the resentencing.

(If you are looking for authority regarding recitation of the conduct credits earned prior to the initial sentencing, you may wish to review Sek, which the Court of Appeal did not cite in this case. I do think, however, that it would be valuable to examine the authority Sek relied on for its conclusion that the court must calculate the defendant’s conduct credit earned prior to his original sentencing.)

People v. Sek (2022) 74 Cal.App.5th 657, 673

Amelioration, Duty of the court, Sentencing

Case 001098

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.6, the court may have erred in reimposing criminal gang activity enhancement without examining whether it meets the requirements of section 186.22 as amended by AB 333.

The briefing submitted in conjunction with the ruling on the section 1172.6 proceedings does not adequately address whether the application of AB 333 is retroactive where section 1170.6 is invoked. The matter is remanded for resentencing and the parties may address the question of retroactivity of AB 333 in the superior court proceedings.

First Holding:

When the middle term is applied, appellate courts have held that the plain language and statutory context of section 1170(b) are clear the Legislature did not intend to impose evidentiary or proof requirements or restrictions on the imposition of a middle term sentence.

Authority:

People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1223

Second Holding:

AB 333 applies retroactively to nonfinal judgments. Application of AB 333 here essentially increases the probability defendant’s gang enhancement, imposed prior to the effective date of AB 333, is not supported by substantial evidence.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392

People v. Rojas (2023) 15 Cal.5th 561, 566–567 [Assembly Bill 333 narrowed the definitions of criminal street gang, pattern of criminal activity, and common benefit to a street gang]

Third Holding:

While section 1172.6 clearly provides the unusual remedy of challenging certain final convictions of murder, attempted murder, and manslaughter convictions, and clearly provides that the sentence on all counts (including those other than the murder, attempted murder, and manslaughter convictions) must be based on present law, it is not immediately clear where in the statute the Legislature provided the unusual remedy of challenging all of the petitioner’s other convictions.

The defendant does cite toTrent for the proposition that a defendant is entitled to retroactive application of ameliorative laws after a successful petition under section 1172.6. But the fact that AB 333 applies to nonfinal judgments is clear and undisputed. The question is whether these particular proceedings (i.e., sec. 1172.6) allow for challenges to the convictions (rather than challenges to the prior sentence made at resentencing) on counts or enhancements other than murder, attempted murder, or manslaughter.

Authority:

PEN 1172.6(d)(3)

People v. Trent (2025) 112 Cal.App.5th 251

Fourth Holding:

On remand, the trial court must award defendant 55 days of presentence conduct credits. The Attorney General concedes this issue and we accept the concession.

(Gary note: The court cited no authority for its directive to award presentence conduct credits, undoubtedly because the law is well settled. For your convenience, I have listed authority below that the court could have relied on.)

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

ADD AUTHORITIES HERE

Sentencing, Sixth Amendment, Standard of review

Case 001089

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

Section 1170(b)(2) provides that a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

The statute permits a court to consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2)

Second Holding:

Second Holding:
With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. Under section 1170(b), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The prior conviction exception to the Sixth Amendment does not permit a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

U.S. Const., Sixth Amend.

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

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

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

Third Holding:

Wiley applied Erlinger and overruled previous decisions finding it constitutionally permissible for a trial court to determine whether a defendant’s crimes were of increasing seriousness or whether the defendant’s performance on probation was unsatisfactory.

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

Authority:

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

Fourth Holding:

A trial court’s reliance on aggravating circumstances found in violation of a defendant’s jury trial right is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the question is whether any rational fact finder could have come to the opposite conclusion.

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

Authority:

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

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

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

Fifth Holding:

The California Supreme Court has cautioned about the difficulties in ascertaining whether a jury would have found true an aggravating circumstance that calls for an imprecise quantitative or comparative evaluation of the facts. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance.

To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

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

Sixth Holding:

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

Authority:

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

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

Seventh Holding:

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

On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court.

The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence.

If it cannot so conclude, it may impose no more than a middle term.

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

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 001054

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

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

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

Second Holding:

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

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085 [a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness, and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence]

Third Holding:

While the evidence may have been sufficient to support a finding of increasing seriousness, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion. A rational juror could have reached the opposite conclusion here based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions.

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

Authority:

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

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

Sentencing, Sixth Amendment, Standard of review

Case 001040

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

PEN 1170(b)(2)

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

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

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

Second Holding:

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

Authority:

PEN 1170(b)(3)

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

Third Holding:

When the sentencing court relies on an aggravating circumstance not found by a jury, the reviewing court must apply the standard of prejudice under Chapman. We must reverse the sentence unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

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

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

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

Fourth Holding:

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

Authority:

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

Fifth Holding:

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

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

Authority:

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