Tag Archives: Upper term

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000273

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the upper term based on its own conclusion that the defendant’s prior convictions were numerous and of increasing seriousness, where there was no waiver of a jury or stipulation by the defendant. Defendant was not advised of his right to a jury trial on the aggravating facts, nor did he explicitly waive his right to jury trial on those aggravating facts. The trial court erred in imposing an upper term sentence in the absence of such a waiver.

First Holding:

The trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime 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 a jury or court trial. This jury trial right is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. 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:

PEN 1170

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

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

Second Holding:

A sentencing judge may only use the information in the record of conviction for the limited function of determining the fact of a prior conviction and the then-existing elements of that offense. A determination that defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Thus, defendant was entitled to a jury determination on this aggravating factor.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081-1083

Third Holding:

Defendant must personally waive the right to a jury trial in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

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

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

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

Duty of the court, Jury trial, Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000263

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not holding a hearing under Marsden when the defendant attempted to have substitute counsel. The trial court erred in imposing the upper term based on its own conclusion that the defendant’s prior convictions that are numerous and of increasing seriousness. The matter is remanded for the trial court to hold a proper Marsden hearing. If the court grants the motion, the court must appoint new counsel to represent her and conduct a new trial. If the court denies the motion, the court is to reinstate the convictions. The judgment is reversed, and the trial court is directed to give the People an opportunity to prove applicable aggravating circumstances beyond a reasonable doubt to a jury (or the court, if if the defendant waives her right to a jury trial on aggravating circumstances) and to resentence the defendant.

First Holding:

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. A proper and formal’ Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of appointed counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 572

People v. Wilson (2023) 14 Cal.5th 839, 863-864

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

Second Holding:

The trial court erred in not holding a Marsden hearing when the defendant said she wanted to fire her court-appointed attorney. While stating a desire to fire one’s court-appointed attorney, without more, may not be sufficient to require a Marsden hearing, the trial court interrupted the defendant after she said “I feel like” and did not allow her to say more. And though the defendant never said she wanted to replace her current attorney with a different court-appointed attorney, that’s because, when the defendant began to explain why she did not want her current attorney to represent her, the court did not give her the chance to state her reasons.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 90 [if at any time during criminal proceedings, a defendant requests substitute counsel, the trial court is obligated, pursuant to Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney]

People v. Chavez (1980) 26 Cal.3d 334, 346 [refusal by the trial court to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion]

Third Holding:

The trial court’s concern that the defendant’s request during jury selection was a delay tactic was legitimate, but it did not justify refusing to hold a Marsden hearing that would allow the court to hear her reasons and weigh them against the effects of delaying the trial.

Authority:

People v. Williams (2021) 61 Cal.App.5th 627, 652 [delay in resolving a Marsden motion is a significant factor that the court is obligated to consider in evaluating the timeliness of the defendant’s request to substitute counsel]

Fourth Holding:

The court also erred in ruling that the defendant’s only choices were to retain an attorney or represent herself. Those were not her only two choices. She also had the right to make a showing under Marsden, if she could, she was entitled to substitute counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 573 [defendant may request substitute counsel at any time during criminal proceedings]

People v. Sanchez (2011) 53 Cal.4th 80, 90 [same]

Fifth Holding:

The standard for prejudice regarding a denied Marsden motion is under Chapman. Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

Authority:

People v. Loya (2016) 1 Cal.App.5th 932, 945

People v. Taylor (2010) 48 Cal.4th 574, 601

People v. Cutting (2019) 42 Cal.App.5th 344, 349

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

Sixth Holding:

The court imposed the upper term based on the court’s finding that the defendant’s prior convictions and adjudications were numerous and of increasing seriousness. The 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 aggravating circumstance the trial court relied on here in imposing the upper term, increasing seriousness of the defendant’s prior convictions, was not found true beyond a reasonable doubt by a jury (or by the court after a jury trial waiver).

Authority:

PEN 1170

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

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

Seventh Holding:

Such an error 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.

Here, the court relied on only one aggravating circumstance: prior convictions that are numerous and of increasing seriousness. Determining whether that allegation is true, however, requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. While the evidence may have been sufficient to support a finding of increasing seriousness, a rational juror could have reached the opposite conclusion based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions. Because a rational juror could find the defendant’s convictions were not of increasing seriousness, the error is not harmless under Chapman.

Authority:

AD

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

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

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

Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000259

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a full resentencing hearing because the trial court unconstitutionally relied upon its own factfinding to impose the upper term on defendant’s conviction, and the error is not harmless beyond a reasonable doubt.

First Holding:

On January 1, 2022, the Legislature amended section 1170 to provide that the trial court shall, in its discretion impose a sentence not to exceed the middle term except in the following circumstance: The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the 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 by the jury or by the judge in a court trial. Notwithstanding these provisions, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

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

Second Holding:

The trial court’s factfinding role as to a defendant’s prior convictions is specifically exempted from the Sixth Amendment jury trial right. However, 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. For example, 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.

Authority:

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

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

Third Holding:

A court’s determination that a defendant has suffered prior criminal convictions on separate occasions, that the offenses were close in time, and that they were similar or intertwined in purpose and character runs afoul of constitutional proscriptions and must be resolved by a unanimous jury beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083 [Error for court to impose additional time based on its qualitative assessment of the offenses time, location, character, and purpose]

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

Fourth 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. 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, 1086 [error not harmless where a rational jury could have concluded that the People failed to prove beyond a reasonable doubt that the defendant’s convictions were of increasing seriousness]

People v. Lynch (2024) 16 Cal.5th 730,742-743, 760-761, 768, 775 [We may find the omission harmless if we can conclude beyond a reasonable doubt ‘that the omitted fact was uncontested and supported by overwhelming evidence]

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

Sentencing, Sixth Amendment, Standard of review

Case: 000252

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s right to a jury trial by imposing the upper term without an express waiver of his right to a jury trial on the aggravating factors. The trial court’s finding that the defendant had consistently violated the law is a decision that goes beyond the bare fact of the prior conviction and its elements and therefore exceeds the scope of the statutory exception to the jury trial right for prior conviction that appears in section 1170(b)(3). Absent a waiver the defendant was entitled to a jury trial on the aggravating factors. The error was not harmless beyond a reasonable doubt.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b) unless we conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

Second Holding:

In 2022, the Legislature amended section 1170, subdivision (b) to limit a trial court’s discretion to impose the upper term of a sentencing triad. Under the current version of the statute, trial courts may impose a sentence that exceeds 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. However, the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 773

Third Holding:

In Erlinger, the United States Supreme Court clarified that the court in Almendarez-Torres v. United States permitted a judge to undertake the job of finding the fact of a prior conviction—and that job alone. The question before the Erlinger court was whether a judge may decide that a defendant’s past offenses were committed on separate occasions or whether the Fifth and Sixth Amendments required a jury to make that determination beyond a reasonable doubt. In holding that Erlinger was entitled to a jury determination on the issue, the court stated that deciding whether those past offenses occurred on three or more different occasions is a fact-laden task, and judges may not assume the jury’s factfinding function for themselves.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 825, 834, 837

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

Fourth Holding:

The California Supreme Court confirmed that virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously beyond a reasonable doubt. Unless the defendant waives the right to a jury trial or stipulates that the aggravating factors are true, the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

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

Fifth Holding:

The Wiley court held that an inquiry of whether a defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. A defendant is entitled to a jury determination 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. The was 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.

Authority:

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

Sixth Holding:

Based on our review of the defendant’s prior record—including his CLETS certified rap sheet, certified records of his convictions, and the probation officer’s report—the sentences imposed for his conviction, the age of his felony convictions, and the nature of his recent offenses could lead a jury to conclude that the defendant’s convictions were not of increasing seriousness. On this record, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found these aggravating factors true. Because it is possible a jury could reach the opposite conclusion on one of the aggravating factors the court may have relied on to impose the upper term, the omission of the defendant’s right to a jury trial on the aggravating factors was not harmless beyond a reasonable doubt. We, therefore, reverse his sentence and remand for a trial on the aggravating factors.

Authority:

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

 

Amelioration, Sentencing, Sixth Amendment

Case: 000250

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred at sentencing when it relied on aggravating circumstances to increase the defendant’s punishment without obtaining a waiver of his right to a jury trial on those circumstances.

First Holding:

The trial court erred by sentencing the defendant to an upper term absent the defendant’s (a) stipulation to the aggravating facts the trial court relied on or (b) waiving a jury trial on those aggravating facts.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided middle term]

Second Holding:

We cannot conclude beyond a reasonable doubt that a jury would have found true the facts underlying the aggravating circumstance that the defendant’s prior convictions as an adult are numerous. This aggravating circumstance rests on a somewhat vague and subjective standard, which makes it difficult 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.

For example, we cannot confidently say where the jury would have drawn the line for numerous, how the jury would have weighed felonies or misdemeanors, or how the jury might have considered the passage of time and discounted older convictions. We are also mindful that we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. For example, had the defense told the jury more details about the offenses, the jury could have been more likely to count convictions as minor and thus less likely to add up to the numerous standard. Having determined that the facts underlying one aggravating circumstance do not meet the standard for harmless error, we must vacate the defendant’s sentence and remand for resentencing.

Authority:

PEN 1170

People v. Sandoval (2007) 41 Cal.4th 825, 840

People v. Wiley (2025) 17 Cal.5th 1069, 1091