Tag Archives: Upper term

Abstracts and Minutes, Amelioration, Sentencing, Standard of review

Case 000665

Posted on by Gary McCurdy

Error and/or relief

On remand for resentencing in the earlier appeal, the court erred in refusing to conduct a full resentencing. It was also error for the court to impose the upper term on the gun use enhancement where the aggravating circumstances were not stipulated to or found true by a jury beyond a reasonable doubt. And the abstract of judgment must be amended to show that he was convicted of false imprisonment, not of kidnapping.

First Holding:

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

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

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

Second Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. That the appellate court gave specific directions on remand does not preclude a full resentencing hearing as required by Buycks. Because the judgment is no longer final, new statutes imposing new lighter penalties are deemed to be sufficient to apply upon resentencing.

Authority:

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

People v. Walker (2021) 67 Cal.App.5th 198, 204

People v. Padilla (2022) 13 Cal.5th 152, 160, 163 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence whereupon the trial court may impose any appropriate sentence]

Third Holding:

Where, as here, a statute specifies three possible terms, the presumptive sentence is the middle term unless there are aggravating circumstances justifying imposition of the high term. The aggravating circumstance must be stipulated to by the defendant or found true beyond a reasonable doubt by a jury or, if jury is waived, by the court in a court trial.

The trial court acknowledged that a bifurcated trial would be necessary to find the aggravating circumstances true. Nevertheless it relied on our “very specific instructions” in declining to hold such a trial.

Where, as here, the record reflects no jury finding, no waiver thereof, and no admission by the defendant of the aggravating circumstances, the trial court’s reliance on unproven aggravating factors to impose an upper term sentence violates the Sixth Amendment.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 767–769

Fourth Holding:

The error is harmless only if a reviewing court can conclude beyond a reasonable doubt that a jury would have found true all the aggravating facts relied upon by the sentencing court to justify the upper term. On this record we agree with the parties that we cannot draw such a conclusion.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761, 775

Fifth Holding:

We direct the trial court to issue a corrected abstract of judgment. The defendant was convicted of the offense of false imprisonment, a violation of Penal Code section 237, not kidnapping, a violation of Penal Code section 207.

(GARY Note: The court listed no authority for correction of erroneous abstracts, likely because the error and remedy are so obvious. But I have listed several cases that the court could have relied on.)

Authority:

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 000659

Posted on by Gary McCurdy

Error and/or relief

The court erred by finding true and relying on aggravating circumstances at sentencing without any waiver of the right to jury trial.

First Holding:

Despite the absence of a jury waiver, the court at sentencing found true multiple of the charged aggravating circumstances. The court also imposed the upper term of 10 years for the Penal Code section 12022.5(a) firearm enhancement. The trial court erred by imposing this upper term sentence based on aggravating circumstances that were not stipulated to by the defendant found true beyond a reasonable doubt at trial by the jury, or found true by the judge in a court trial after a waiver of the right to jury trial.

Under the Sixth Amendment, 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.

Authority:

PEN 1170(b)(2)

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

Second Holding:

Several of the aggravating circumstances found true by the trial court were based on what the Supreme Court in Lynch referred to as a somewhat vague or subjective standard. These include that the crime involved great violence, great bodily harm, and other acts showing a high degree of cruelty, viciousness, and callousness and that Guy had engaged in violent conduct that indicates a serious danger to society.

Because these aggravating circumstances are inherently subjective and imprecise, we cannot conclude beyond a reasonable doubt that a jury would have found true all of the aggravating factors relied upon by the trial court to justify an upper term sentence. Moreover, the court could not lawfully have imposed the upper term on the Penal Code section 12022.5(a) enhancement without proper true findings or a stipulation to the truth of circumstances in aggravation that justified the imposition of a term of imprisonment exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768–769, 775–776

Third Holding:

We will therefore vacate the sentence and remand for a full resentencing hearing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing on all counts required when part of sentence is stricken on appeal]

Sentencing

Case 000653

Posted on by Gary McCurdy

Error and/or relief

On remand for full resentencing, it was error for the trial court to impose the upper term on the firearm enhancement where there was no jury determination beyond a reasonable doubt that the factors in aggravation relied on by the court were true.

First Holding:

If an enhancement (such as section 12022.5) 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, unless there are circumstances in aggravation that justify the imposition of the upper term and the facts underlying those cirucmstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury of by the judge in a court trial.

Authority:

PEN 1170.1

Second Holding:

Where the court imposes the upper term based on factors that have not been stipulated to or found true beyond a reasonable doubt by a jury, the defendant is entitled to a reversal and remand for resentencing unless, after examining the entire cause, including the evidence as to all relevant circumstances, the appellate court 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.

In making this determination, we may examine what the jury necessarily did find and ask whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well. In other words, if no reasonable jury would have found in favor of the defendant on the missing fact, given the jury’s actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt. We may also find the omission harmless if we can conclude beyond a reasonable doubt that the omitted fact was uncontested and supported by overwhelming evidence.

Authority:

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

Third Holding:

Whether the defendant has engaged in violent conduct that indicates a serious danger to society or the crime involved athreat of great bodily harm are subjective factual determinations. 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.

Authority:

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

Discretion, Sentencing, Sixth Amendment, Standard of review

Case 000641

Posted on by Gary McCurdy

Error and/or relief

The trial improperly relied on factors in aggravation that were not submitted to the jury for proof beyond a reasonable doubt.

First Holding:

In general, we review a trial court’s sentencing decisions for abuse of discretion. An abuse of discretion is found where the court relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 323

Second Holding:

In 2022, section 1170(b) was amended to prohibit 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. In Erlinger, the United States Supreme Court rejected an argument that the jury trial exception regarding prior convictions also permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he committed them on different occasions within the meaning of the federal sentencing statute at issue. Instead, the Court held that 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. Lynch (2024) 16 Cal.5th 730, 742

Erlinger v. United States (2024) 602 U.S. 821, 837, 838

Mathis v. United States (2016) 579 U.S. 500, 511–512

Third Holding:

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. This jury trial guarantee retains its vitality even if the inquiry is straightforward. There is no efficiency exception to the Fifth and Sixth Amendments.

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. A jury–not the judge, absent a jury waiver or stipulation–must determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts 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:

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1083–1084, 1086

Fourth Holding:

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

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

People v. Gonzalez (2024) 107 Cal.App.5th 312, 331-333

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

Sentencing, Sixth Amendment

Case 000637

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by finding the aggravating factors true and imposing an upper term sentence without a jury finding on these factors.

First Holding:

Before the jury rendered its verdict, the defendant waived his right to a jury trial on the allegation of a prior strike conviction, but he declined to waive a jury trial on the rule 4.421 aggravating factor allegations. Nevertheless, the trial court stated it would conduct a court trial on the aggravating factor allegations relating to the defendant’s prior convictions increasing in seriousness and his prior prison term because it believed these aggravating factors were not subject to the jury’s consideration.

No aggravating factors were submitted to the jury. The court found true the aggravating factors that the defendant had prior convictions that are numerous and of increasing seriousness. This was error. A defendant is constitutionally entitled to a jury finding as to the increasing seriousness of a defendant’s prior convictions. This is because the inquiry requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness, i.e., 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, 1082

Second Holding:

The Sixth Amendment guarantees the right to a jury trial on any fact that exposes a defendant to a greater potential sentence. Under California’s triad sentencing scheme, 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.

Accordingly, the Sixth Amendment right to a jury trial extends to any aggravating facts justifying an upper term sentence under section 1170(b)(2). If a trial court relies on unproven aggravating facts to impose an upper term sentence, and the defendant has not waived his right to a jury trial or stipulated to the aggravating facts, this is constitutional error.

Authority:

PEN 1170

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

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

People v. Lynch (2024) 16 Cal.5th 730, 760, 768

Third Holding:

Our review is de novo.

Authority:

In re Taylor (2015) 60 Cal.4th 1019, 1035

People v. Frazier (2020) 55 Cal.App.5th 858, 864

Fourth Holding:

If constitutional error occurred, 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. This prejudice inquiry does not allow us to uphold the trial court’s imposition of an upper term sentence based on some subset of aggravating facts.

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:

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

People v. Lynch (2024) 16 Cal.5th 730, 761, 768

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

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

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

Effective assistance of counsel, Sentencing, Standard of review

Case 000573

Posted on by Gary McCurdy

Error and/or relief

A remand for resentencing is required because the defendant received ineffective assistance of counsel by reason of defense counsel’s failure to raise his mental health issues as a mitigating factor at the time of sentencing, despite there having been considerable evidence introduced during pretrial proceedings that the defendant had mental health issues, including a finding under section 1372 that he was incompetent to stand trial, whereupon he was committed to a state hospital until his competency was deemed restored three months later.

First Holding:

Defense counsel should have pointed out that there was evidence suggesting that, at least at the time of the offense, he was struggling with mental health issues. Under rule 4.423, mental illness is a mitigating factor at sentencing. Section 1385(c)(5) defines mental illness as a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

That subdivision further provides that a court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.

The Diagnostic and Statistical Manual of Mental Disorders (5th ed. text rev. 2022) defines an overarching new category of substance use disorders—with the specific substance used defining the specific disorders. It states that the essential feature of a substance use disorder is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.

Authority:

Rules of Court, rule 4.423

PEN 1385(c)(5)

Second Holding:

Despite considerable evidence, defense counsel remained silent at the sentencing hearing when the trial court remarked that no mitigating circumstances had been presented.

To demonstrate ineffective assistance of counsel, the defendant must show counsel’s performance was deficient and resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

We can conceive of no reasonable tactical purpose for defense counsel’s failure to argue rule 4.423(b)(2) and (b)(4) applied in this case. We further conclude defense counsel’s omission was prejudicial. For the trial court to impose the upper term the court was required to find that there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term.

Had defense counsel raised the applicability of rule 4.423(b)(2) and (b)(4), there is a reasonable probability the court would have balanced the mitigating factors against those in aggravation and would not have imposed the upper term.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Centeno (2014) 60 Cal.4th 659, 675–676 [where there was no conceivable reasonable tactical purpose for defense counsel’s omission, defense counsel’s failure to object to prosecutorial misconduct was ineffective]

Third Holding:

Defense counsel inexplicably made no arguments regarding any mitigating factors” when arguing the Romero motion to strike his prior convictions. On remand, the defendant is free to make the arguments he believes counsel should have made.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029 [both aggravating and mitigating circumstances are relevant considerations in determining whether to strike a prior strike conviction]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [on remand for resentencing, full resentencing is appropriate]

People v. Ramirez (2019) 35 Cal.App.5th 55, 64 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme]

Sentencing

Case 000566

Posted on by Gary McCurdy

Error and/or relief

It was error to rely on the same facts to impose an enhancement and the upper term.

First Holding:

Generally, error occurs when the same facts are considered both to aggravate the base term and to impose an enhancement.

Authority:

1170(b)(5) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

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

Second Holding:

Where there is an improper dual or overlapping use of facts, remand is required if it is reasonably probable the defendant would obtain a more favorable result absent the error.

Authority:

People v. Barker (1986) 182 Cal.App.3d 921, 941

Third Holding:

A trial court may impose an upper term sentence based on a single, properly proven aggravating circumstance only, if, in the court’s discretion, that circumstance alone justifies a sentence exceeding the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 764

Sentencing, Sixth Amendment, Standard of review

Case 000539

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it found the aggravating factors true and sentenced him to the upper term without first obtaining an express waiver of his right to a jury trial or a stipulation to the aggravating factors.

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 trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

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

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

Second Holding:

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:

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

Third Holding:

In 2022, the Legislature amended section 1170(b) to limit a court’s discretion to impose the upper term of a sentencing triad. Under the current version of section 1170, 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.

Authority:

PEN 1170(b)(2)

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

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

Fourth Holding:

Section 1170(b)(3) provides that 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. This provision is considered the state counterpart to the exception the United States Supreme Court recognized in Almendarez-Torres for findings regarding a defendant’s prior convictions. Recently, the United States Supreme Court clarified in Erlinger that the Almendarez-Torres exception to the jury trial requirement permits a judge to make findings regarding the fact of a defendant’s prior conviction and the elements of the offense alone, nothing else.

Authority:

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

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

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

Fifth Holding:

Virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously and beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward. Therefore, unless a defendant waives the right to a jury trial or stipulates that the aggravating factors are true, under section 1170(b), the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1084, 1086

Erlinger v. United States (2024) 602 U.S. 821, 842

Sixth Holding:

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. The inquiry into whether defendant’s prior convictions were extensive or numerous is a comparative and qualitative one. The qualitative and comparative nature of the inquiry, which could allow a jury to focus on different aspects of defendant’s history than the trial court did, makes it difficult to conclude with confidence that the jury would have assessed the facts in the same manner as did the trial court. Thus, we find the error to be not harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085, 1090

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000527

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose the upper term based on factors that were not proven to a jury beyond a reasonable doubt.

First Holding:

Section 1170(b)(2) states that when a statute 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 the upper term. Rule 4.421(b) sets out several aggravating factors relating to a defendant: (1) The defendant has engaged in violent conduct that indicates a serious danger to society; (2) The defendant’s prior convictions are numerous or of increasing seriousness; (4) The defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (5) The defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. The court stated that it found beyond a reasonable doubt that the defendant showed an increasing and violent criminal history, he posed a danger to society, and he does not perform well in probation or on parole.

Authority:

PEN 1170(b)

Rules of Court, rule 4.421

Second Holding:

Subsequent to the date of sentencing, the United State Supreme Court decided Erlinger, holding that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed—including certain details relating to prior convictions—must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. Thus, in sentencing 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, 824

Third Holding:

Under the reasoning of Erlinger, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1079-1080, 1086,

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

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

Fourth Holding:

Whether a defendant’s crimes showed increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. Those factors must be assessed by a jury; such a finding involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them, which is the limitation on a court’s power under the reasoning of Erlinger.

The same is true for a finding that a defendant’s performance on probation had been unsatisfactory, because even where a finding of unsatisfactory probation performance is based on conviction of a new offense, it is not strictly limited to that fact. Rather, it must be proven that the defendant was ordered to serve a term of probation and remained on probation at the time he or she committed the new offense. These facts, too, go beyond the mere existence of a prior conviction and its elements. It cannot be shown that a rational juror could conclude that the prosecution has failed to prove beyond a reasonable doubt that these facts constitute factors in aggravation.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083, 1089-1091

Amelioration, Plea bargains, Sentencing

Case 000518

Posted on by Gary McCurdy

Error and/or relief

While defendant was on probation with an upper term suspended sentence, section 1170 was amended to preclude imposition of the upper term in the absence of aggravating factors found true beyond a reasonable doubt by a jury or by stipulation. On revocation, the court ordered execution of the upper term sentence. The sentence is reversed and the matter remanded for further proceedings at which the defendant may waive or invoke the requirements of section 1170(b). If he invokes its requirements, and the court is unable to impose the upper term in compliance with 1170, and the people or the court do not acquiesce to a term lower than the upper, the court must set aside the plea restore the parties to the status quo.

(Gary note: In this opinion, the court notes that there was a stipulated sentence as part of the plea agreement, and alludes to the Stamp rule that if the court and prosecutor are not happy with the resentencing, the plea should be set aside, restoring the parties to their status quo ante. But section 1171, effective 1/1/2025, may put the kibosh on Stamps and that line of reasoning. It was not discussed in this case. I have run across at least one unpublished opinion that seems to agree with me, which I have summarized as Case 000792, but it’s not due for posting yet. In that case, the district attorney apparently did not file a petition for review, but has asked the Supreme Court to grant review on its own motion.

(I’m not sure why the DA did not file a petition for review, because its request for the Supreme Court to grant review on its own motion was filed well before the deadline for filing a petition for review. (Any petition must be served and filed within 10 days after the Court of Appeal opinion is final, per rule 8.500(e)(1), which is normally 30 days after the opinion is filed. So while there are exceptions when there is a shorter period for finality, the deadline for filing a petition for review is 40 days after the date of the opinion. But even if no party files a petition for review within the time allowed, the Supreme Court can grant review on its own motion within a later deadline–within 30 days after the opinion in the lower court becomes final, per rule 8.512(c).) As of the writing of this summary, the Supreme Court has extended its deadline to October 21, 2026.

(Essentially, though, the court in Case 000792 said that Penal Code section 1171 [effective 1/1/2025] does not bar modification of plea agreements in resentencing, and modification of the sentence does not require setting aside the plea bargain. To the contrary, the section expressly authorizes modification after a plea. It states that, absent a more specific statutory rule, in a postconviction proceeding to modify a sentence pursuant to an ameliorative statute the court has jurisdiction to modify every aspect of the defendant’s sentence, including if it was imposed after a guilty plea.

(In the context of dealing with ameliorative provisions (including but not limited to “sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75”), section 1171(c)(3) says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” Thus, section 1171 expressly authorizes trial courts to modify sentences imposed after a plea bargain and prohibits rescission of bargains based on such modification. The appellate court in Case 000792 held that the trial court erred in ruling that section 1171 barred resentencing because of the defendant’s plea agreement.)

First Holding:

SB 567 amended section 1170 to limit the trial court’s ability to impose the upper term by making the middle term the presumptive prison term unless specified circumstances exist. 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 section 1170(b)(2). 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.

Authority:

PEN 1170(b)

Second Holding:

The only question before us is an issue currently pending before the California Supreme Court: whether a defendant whose sentence was imposed pursuant to a stipulated plea agreement may seek relief under Senate Bill No. 567. This is an issue that has split the Courts of Appeal, including divisions within this court.

[Gary note:  The Mitchell case cited by the Court of Appeal as shown in Authority as on review was decided In May 2026, People v. Mitchell (2026) 19 Cal.5th 729.  The Supreme Court remanded the case to the Court of Appeal (which recently remanded it to the trial court) to allow the defendant to take advantage of the amelioration despite his stipulated sentence, but it followed its decision in Stamps that if the prosecution or the lower court is not happy with the modified judgment, the plea must be set aside and the parties restored to their status prior to the plea bargain.  

[But the Supreme Court’s Mitchell decision contains a footnote, which I lay out here:  “Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (sec.1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

[Section 1171 expressly applies to ameliorative statutes, and does not identify section 1170 as an ameliorative section, but it says its list of “such as” statutes is not a limitation to its application.  I suspect–and that’s ALL it is, just pure speculation–that the Supreme Court was not ready to deal with section 1171 so late in the Mitchell appeal, and would prefer to see it battled out in the superior courts and Courts of Appeal before it takes on the issue.  That way it would have the benefit of perhaps many different approaches before it has to reach the proper conclusion.]

Authority:

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand]

People v. Sallee (2023) 88 Cal.App.5th 330, 334, review granted Apr. 26, 2023, S278690 [same]

People v. Todd (2023) 88 Cal.App.5th 373, 376, review granted Apr. 26, 2023, S279154 [defendant entitled to remand]

People v. Fox (2023) 90 Cal.App.5th 826, 830 [same]

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1056, review granted Feb. 21, 2024, S283452 [same]

Third Holding:

We independently review issues of statutory construction. As ever in statutory interpretation, w]e begin with the text of the relevant provisions. If the text is unambiguous and provides a clear answer, we need go no further. If the language supports multiple readings, we may consult extrinsic sources, including but not limited to the legislative history and administrative interpretations of the language.

Authority:

People v. Fox (2023) 90 Cal.App.5th 826, 831 (review granted)

People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057 (review granted) [Gary note: see my note in Second Holding]

Fourth Holding:

That the parties enter into a plea agreement does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them. A plea bargain that requires a defendant to generally waive unknown future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may occur after the date of the plea is not knowing and intelligent.

A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy. These statutory provisions are best understood as only prohibiting the court from unilaterally modifying the terms of the bargain without affording an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.

Authority:

PEN 1016.8

People v. Stamps (2020) 9 Cal.5th 685, 701

Fifth Holding:

The relevant question here is not whether the sentencing judge is bound by the parties’ stipulated sentence, but whether the defendant is entitled to the ameliorative effect of SB 567’s new sentencing provisions. The defendant is entitled to the benefit of the change in the law under section 1170. But because he agreed to the upper term in his plea bargain, if the court were to reduce his sentence to any lesser sentence, the People will have been denied the benefit of its bargain.

A limited remand is appropriate to allow the court to determine whether it may impose the upper term in compliance with the new provisions of section 1170. If it determines that it may, then the sentence of six years may be imposed. Otherwise, if the defendant declines to stipulate to factors in aggravation supporting the upper term, the plea bargain must be set aside and the parties restored to their status quo, unless the prosecution and the court are willing to accept the lower sentence.

Authority:

People v. Todd (2023) 88 Cal.App.5th 373, 380-382, review granted Apr. 26, 2023, S279154

People v. Stamps (2020) 9 Cal.5th 685, 707

Sentencing, Sixth Amendment, Standard of review

Case 000515

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in sentencing him to the upper term when no aggravating circumstances were alleged in the information, he did not admit any aggravating circumstances, and no factfinder found any true beyond a reasonable doubt.

First Holding:

Under section 1170(b)(2), the court may impose the upper term only when aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by a jury or judge. That procedure was not followed here. A defendant, by entering into a plea agreement that includes the upper term as the maximum sentence, does not implicitly admit that his conduct could support that term. Specifically, while a plea agreement constitutes an admission to all the elements of the admitted offenses, it does not constitute an admission to any aggravating circumstance.

Authority:

PEN 1170(b)(2)

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

People v. Hoffard (1995) 10 Cal.4th 1170, 1177

Second Holding:

Accordingly, the court here erred in sentencing the defendant to the upper term. Given the total absence of any admitted or proven aggravating circumstances, we cannot conclude this error was harmless. A remand for resentencing is thus required.

Authority:

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