Tag Archives: Upper term

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

Sentencing, Sixth Amendment

Case 000785

Posted on by Gary McCurdy

Error and/or relief

On remand from a prior appeal, it was error for the court to impose the upper term based on circumstances in aggravation not presented to a jury for proof beyond a reasonable doubt. The trial court concluded that it could reimpose the upper term because the upper term had been imposed at the original sentencing, before the amendments to section 1170 that required proof beyond a reasonable doubt to a jury.

The court may have mistakenly believed that this resentencing was under section 1172.75, which does contain a provision allowing the reimposition of the upper term if the upper term had been imposed at the original sentencing. This was not a resentencing under section 1172.75, however. It was a resentencing following a remand for resentencing in his prior appeal from the judgment of conviction. The amendments to section 1170 applied.

First Holding:

Section 1170(b)(2) provides 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. The court may, however, 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:

SB 567 (2021-2022 Reg. Sess.), which amended this provision of the statute, became effective January 1, 2022, after defendant’s initial sentencing. The amendment applies retroactively to defendant because his judgment was not final on direct appeal at the time the statute took effect.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 749

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

A criminal defendant has a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

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

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

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

Fourth Holding:

The Attorney General argues defendant forfeited his claims regarding the imposition of the upper term on count four because he interposed no objection during the sentencing hearing. He maintains a statutory right to a jury trial is forfeited by failure to object.

We hold an objection was not required to preserve the issue. In light of the People’s sentencing memorandum in the lower court and the on-the-record discussion between counsel and the court before defendant entered the courtroom for resentencing, everyone understood an admission to an aggravating factor was necessary and the only question was whether defendant would agree to admit an aggravating factor.

Making a formal objection under those circumstances would have added nothing. There was no forfeiture. We need not reach the question of whether a forfeiture cannot stand as a bar to relief because an express waiver of the jury trial right was required.

Authority:

People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]

Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 [The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had]

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

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

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

Fifth Holding:

A court may not use a fact constituting an element of the offense either to aggravate or to enhance a sentence.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 000783

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred by sentencing defendant to the upper term on his robbery conviction.

First Holding:

On January 1, 2022, SB 567 (2021-2022 Reg. Sess.) went into effect, amending section 1170. Section 1170 authorizes a trial court to 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.

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(b)

Second Holding:

In Erlinger, the United States Supreme Court held that, under the Fifth and Sixth Amendments, 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). An exception to this allows a trial court 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.

Authority:

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

Third Holding:

In Wiley, the California Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, we interpret section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, the Wiley court held 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, 1086

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.

Each of the four aggravating factors found true by the trial court required finding true more than the bare fact of a prior conviction and its elements. Accordingly, the court’s reliance on each of the other four aggravating factors (rule 4.421(b)(2)–(5)) was erroneous. Moreover, we cannot conclude that all of these errors were harmless beyond a reasonable doubt.

Authority:

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

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

People v. Lynch (2024) 16 Cal.5th 730, 743 [a sentence imposed under former 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]

Fifth Holding:

Whether a defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2)) is a comparative and qualitative determination which 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, 1090

People v. Lynch (2024) 16 Cal.5th 730, 775 [to the extent a potential aggravating circumstance at issue in a particular case 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]

Sentencing, Sixth Amendment

Case 000782

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing the upper term based on circumstances in aggravation that were not stipulated to nor proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2), prohibits imposition of an upper-term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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.

Authority:

PEN 1170(b)(2)

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

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

Second Holding:

Where the trial court relies on unproven aggravating factors, we assess prejudice under Chapman, which requires us to find prejudice unless we 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. The Chapman standard applies whenever the court has relied on unproven factors, even if some other aggravating facts relied on have been properly established.

Authority:

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

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

Third Holding:

The trial court erred by imposing the upper-term sentence based on five aggravating factors that were not found true by a jury or stipulated to by the defendant. The jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated. We do not know what facts the jury relied on in finding a lack of premeditation and whether those facts would have caused a jury to find not true the allegation that the crime involved planning and professionalism.

The remaining aggravating factors relied on by the court, other than the prior prison term, likewise require factual determinations. As stated in Wiley, even the determination that crimes are of increasing seriousness is comparative and qualitative and must be left to the decision of the jury.

Authority:

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

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that 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.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

People v. Mitchell (2026) 19 Cal.5th 729

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing, Sixth Amendment

Case 000709

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing the high term for certain enhancements. Because the court did so based on aggravating circumstances not found by the jury and to which the defendant did not stipulate, it violated Penal Code section 1170.1 and the defendant’s Sixth Amendment rights. Accordingly, we vacate the sentence and remand for resentencing in a manner consistent with section 1170.1.

First Holding:

If an enhancement is punishable by one of three terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except when there are circumstances in aggravation 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.

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence and 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.

Authority:

PEN 1170.1(d)(1)–(2)

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

Second Holding:

Here, the jury did not find any aggravating circumstances, nor did the defendant stipulate to any. The court nevertheless concluded that there a significant number of aggravating factors supported imposing upper term sentences on the firearm enhancements. But because the court did not specify which ones, we cannot determine whether a jury necessarily would have found these factors true. Accordingly, this error is prejudicial.

Authority:

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

Appellate Principles, Sentencing, Sixth Amendment

Case 000705

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1170.1, the trial court erred in relying on factors in aggravation that were not presented to a jury for proof beyhond a reasonable doubt.

First Holding:

A trial court generally loses resentencing jurisdiction once execution of the sentence has begun. Because of this rule precluding postjudgment motions, a trial court generally lacks jurisdiction to hear one unless the Legislature has expressly authorized the motion. Effective January 1, 2024, the Legislature amended section 1172.1 to expand the court’s ability to recall and resentence a defendant on its own motion.

Now, a court still may recall a sentence on its own motion within 120 days of commitment for any reason rationally related to lawful sentencing. But it also may recall the sentence on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

This recall-and-resentencing may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. Section 1172.1 permits a trial court to apply changes in law even where the Legislature has not made a change retroactive. Yet the law does not allow a court to recall-and-resentence where the applicable sentencing laws have not changed since the last sentencing.

If the court can and does resentence, though, the proceeding is not limited to the change in the law. Rather, the defendant is resentenced in the same manner as if they had not previously been sentenced provided the new sentence, if any, is no greater than the initial sentence. As in most postconviction proceedings, the court has jurisdiction to modify every aspect of the defendant’s sentence. As in any sentencing, the prosecution has a right to oppose relief. A victim of the crime has the chance to be heard.

Authority:

PEN 1172.1

People v. Faustinos (2025) 109 Cal.App.5th 687, 694–695

Second Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Effective January 1, 2022, section 1170 was amended to limit a court’s discretion to impose the upper term of a sentencing triad.

Under amended section 1170, 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.

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).

Authority:

PEN 1170

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

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

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

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

Third Holding:

Assuming, without deciding, forfeiture applies, we nevertheless choose to exercise our discretion to reach defendant’s Sixth Amendment challenge given our Supreme Court’s recent opinions in Lynch and Wiley clarifying the scope of the right to jury trial with respect to aggravating factors.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fourth Holding:

In imposing the upper term sentence, the court identified as aggravating factors, including that the defendant’s prior convictions are numerous and the fact that he was on parole when the charged crimes were committed. (The court’s references to rule 4.421 were somewhat unclear, as the court’s statements did not match the rules cited.) Regardless of the confusion as to its rule of court references, it is clear the trial court erred in finding defendant was on parole when the charged crimes were committed.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

Fifth Holding:

There is one exception to the mandate that all facts underlying an aggravated sentence must be found by a jury or stipulated to by the defendant. 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, per Almendarez-Torres.

In Erlinger, the United States Supreme Court recently reemphasized the narrowness of the Almendarez-Torres exception, stating that it has reiterated, to the point of downright tedium, that a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of, and nothing else.

Authority:

PEN 1170(b)(3)

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

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

Sixth Holding:

Wiley declined to decide whether trial court’s “numerical tally” of the defendant’s prior convictions—“at least four prior felonies”—falls within the Almendarez-Torres exception. It appears that one of the two aggravating factors the trial court relied on here was the extent of defendant’s criminal record, or stated another way, simply the numerical tally of his convictions.

In our view, this aggravating factor entails only a narrow factual finding that the convictions were sustained and does not entail any imprecise quantitative or comparative evaluation of the facts, and therefore can be permissibly found by a trial court under subdivision (b)(3) of section 1170.

Authority:

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

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

Seventh Holding:

Aggravating factors based on the “increasing seriousness” of a defendant’s prior convictions and “unsatisfactory performance on probation” involve something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, and thus these aggravating factors cannot be considered by the sentencing court unless found true by a jury or stipulated to by the defendant.

The trial court therefore erred in finding as an aggravating factor that defendant was on parole at the time he committed the offenses of which he was convicted. And in light of this error, the new sentence violates defendant’s Sixth Amendment jury trial right.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1085

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

Eighth Holding:

A Sixth Amendment sentencing 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 current statutory requirements.

Otherwise, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given the lack of evidentiary citations to the record in this case, we cannot conclude beyond a reasonable doubt that a jury would have found the unproven aggravating factors true beyond a reasonable doubt.

Authority:

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

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

 

 

Appellate Principles, Effective assistance of counsel, Sentencing, Sixth Amendment

Case 000702

Posted on by Gary McCurdy

Error and/or relief

Defendant’s sentence is vacated, and the matter is remanded for resentencing with directions that the trial court exercise its sentencing discretion without considering aggravating factors that were not found true by the jury.

First Holding:

The court relied on circumstances in aggravation that were not submitted to the jury. The trial court’s authority to impose an upper term sentence is addressed in section 1170(b), which authorizes an upper 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 by the jury or by the judge in a court trial.

There was no objection, and the upper term sentence could have been imposed based on only the aggravating factors of victim vulnerability and taking advantage of a position of trust, which were found true by the jury. Therefore, the upper term is not a sentence that could not lawfully be imposed under any circumstance in the particular case.

Thus, the unauthorized sentence exception to the forfeiture rule may not apply under the facts in this case. However, to forestall a future claim of ineffective assistance of counsel, we exercise our discretion to excuse any possible forfeiture and address defendant’s claim on the merits.

Authority:

PEN 1170

People v. Scott (1994) 9 Cal.4th 331, 354, 355–356 [holding defendant waived claim that trial court abused its discretion in aggravating his sentence based on factors that were inapplicable, duplicative, and improperly weighed]

People v. Achane (2023) 92 Cal.App.5th 1037, 1043

People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6

Second Holding:

Section 1170(b) triggers the Sixth Amendment jury trial right with respect to every aggravating factor (other than a prior conviction) the trial court uses to justify an upper term sentence, and under the current statute 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:

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

Third Holding:

Such a 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 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 Chapmn standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Fourth Holding:

Applying these principles, we find the trial court erred in relying on the defendant’s continuing failure to take accountability for his actions. This additional aggravating factor was not decided by the jury but, rather, was a conclusion made by the trial court based on both defendant’s trial testimony and his continuing claim of innocence at sentencing.

Although the jury did not believe defendant’s testimony as to six of the nine counts charged, it was never asked to decide the issue of his lack of accountability, and since the jury was excused before sentencing, it obviously could not have made a finding that defendant continued to fail to take accountability. 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:

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

Fifth Holding:

The People did not prove, and could not have proved, a lack of remorse or lack of accountability without burdening defendant’s constitutional right to testify at trial and maintain his innocence.

Authority:

People v. Key (1984) 153 Cal.App.3d 888, 900 [lack of remorse may not be used as aggravating factor when defendant denies guilt and evidence is conflicting]

People v. Bonilla (2007) 41 Cal.4th 313, 356 [at penalty phase of capital crime prosecutor may properly comment on a defendant’s lack of remorse as relevant to whether remorse is present as a mitigating circumstance but may not suggest that lack of remorse is an aggravating factor]

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

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 midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Appellate Principles, Sentencing, Sixth Amendment

Case 000669

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously stated that all of the aggravating factors had been found true by the jury. The only aggravating factor alleged, and found true by the jury was that the victims were particularly vulnerable. The sentence is reversed and the court is directed to consider the sentence in light of the only aggravating factor found true by the jury. Further, the court must consider the defendant’s ability to pay the restitution fines and ancillary fees.

First Holding:

In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.

Authority:

In re Reno (2012) 55 Cal.4th 428, 483

Second Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless 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.

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 Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

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

Third Holding:

To the extent a potential aggravating circumstance at issue in a particular case 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.

The determination of whether the crime involved sophistication and planning rests on a vague and subjective standard. Accordingly, we cannot conclude beyond a reasonable doubt that the jury would have found true the two remaining aggravating factors upon which the court relied to conclude the upper term was justified.

We therefore reverse the sentence and remand for the trial court to hold a new sentencing hearing during which it shall only consider aggravating factors that were found true by the jury as part of its analysis of whether to impose an upper term sentence.

Authority:

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

Fourth Holding:

Where a trial court imposes fines exceeding the statutory minimum of $300 under section 1202.4(b), and section 1202.45, it must consider the defendant’s ability to pay. Before imposing ancillary costs pursuant to section 1465.8(a)(1) and Government Code section 70373, equal protection principles require the trial court to, on defendant’s request, consider a defendant’s inability to pay such costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

Sentencing, Sixth Amendment, Standard of review

Case 000666

Posted on by Gary McCurdy

Error and/or relief

Imposition of the upper term based on judge-found facts, without the defendant’s express waiver of his jury trial right, violated the Sixth Amendment and California law, and the error was not harmless. Accordingly, we reverse.

First Holding:

The court found true the rule 4.421(b)(2) aggravating factor regarding numerous or increasingly serious prior convictions or adjudications, explaining only that the defendant has not only the prior strike, he has a substantial amount of convictions on his RAP sheet.

The trial court may impose an upper term sentence 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 record does not reflect that the defendant ever waived his right to a jury trial on the aggravating factors.

Authority:

PEN 1170(b)(2)

Second Holding:

The right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence is not merely a state law entitlement, but is constitutionally required by the Sixth Amendment. Any waiver of this right must be express. Absent waiver or stipulation, a jury must determine whether the particular details of a defendant’s criminal history demonstrate convictions of increasing seriousness, before a trial court can rely on that fact to justify an upper term sentence.

Authority:

Rules of Court rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1082-1084

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

People v. French (2008) 43 Cal.4th 36, 47–48

Third Holding:

When such an error occurs, we determine whether it was prejudicial under the Chapman standard of review, under which we must reverse and remand unless we conclude beyond a reasonable doubt that a jury, applying that same standard, would have found the aggravating factor true.

Authority:

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