Skip to content
Name: People v. Hall (2023) 97 Cal.App.5th 1084
Case #: A165406
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 12/13/2023

Senate Bill No. 567’s amendments to Penal Code section 1170(b)(1) do not require the prosecution to “plead” aggravating factors that it intends to urge at sentencing. In 2022, defendant pleaded no contest to two counts of committing lewd or lascivious acts on a child under the age of 14 years (§ 288(a)). At sentencing, the court found no mitigating factors and seven aggravating factors set forth in California Rules of Court, rule 4.421, and sentenced defendant to 10 years in prison, which included the upper term on one of the two counts. On appeal, defendant argued the aggravating factors found by the trial court were not pleaded. Held: Affirmed. The court agreed with People v. Pantaleon (2023) 89 Cal.App.5th 932, 939–941, that there is a significant distinction between “enhancements,” which section 1170.1(e) requires “shall be alleged in the accusatory pleading,” and “circumstances in aggravation” addressed by section 1170(b), which does not contain a like mandate. Defendant’s sentence was not constitutionally or statutorily infirm due to failure to allege sentencing factors in aggravation.

On this record, defendant’s jury trial wavier was constitutionally sufficient, including as to the facts supporting the upper term sentence. On appeal, defendant argued that the aggravated term was unlawful because he did not waive his constitutional right to a jury trial on the facts underlying the aggravating factors, as required by Cunningham and Blakely. The court disagreed. Defendant’s plea form expressly waived his right to a jury trial not only as to each charge, but also as to any “special allegation and/or sentence enhancement I admit to be true.” In open court, he expressly confirmed that the court would consider all aggravating factors set forth in rule 4.421, and he went on to expressly confirm he was giving up his right to a jury trial. There is a distinction between what is constitutionally required for a valid jury waiver and what may be statutorily required under state law. A knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right, but there is no additional constitutional requirement that a defendant be specifically advised of the specific charges, enhancements, allegations, or other issues to which a general jury waiver will apply. Absent unusual circumstances not present here, where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury. Given the clarity of the record here that defendant knowingly and voluntarily waived his right to jury trial generally and did so fully advised and personally agreeing in open court that the negotiated disposition included that the court would consider all aggravating circumstances, defendant’s jury waiver was constitutionally sufficient.

Defendant’s prior section 288(c) conviction and prior DUI convictions support the trial court’s reliance on the recidivist factor set forth in rule 4.421(b)(2) to justify the upper term sentence. Before imposing the upper term at sentencing, the trial court indicated defendant had four prior DUIs at the time of his conviction, as well as a prior misdemeanor conviction under section 288(c). Although the prior 288 conviction was admitted into evidence at the preliminary hearing, the four DUIs were identified in the probation department presentencing report. On appeal, defendant argued that none of these convictions were based on a certified record of conviction as required by amended section 1170(b)(3). The court found this issue forfeited, as the amended version of section 1170 went into effect four months prior to the sentencing hearing and defendant made no objection. In any event, the section 288(c) conviction alone was enough to support the trial court’s invocation of the recidivist factor. Although rule 4.421(b)(2) refers to prior “convictions,” it is apparent from the advisory committee’s comment that the Judicial Council’s intent was that a court may consider one conviction as an aggravating factor. Further, it would seem an absurd result if the trial court could not consider defendant’s prior 288(c) conviction as an aggravating factor in this case, given his current conviction for two counts of violating section 288(a).

Because at least one factor in aggravation—recidivism under rule 4.421(b)(2)—was established in a permissible manner, the trial court’s finding of additional factors in aggravation did not violate defendant’s Sixth Amendment right. In People v. Black (2007) 41 Cal.4th 799, 816 (Black II), the California Supreme Court recognized that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” Here, the court considered the amendments to section 1170—which created a rule limiting a trial court’s discretion to impose the upper term in cases where no aggravating factor has been proven beyond a reasonable doubt, stipulated to by the defendant, or established by certified record—and determined that these amendments did not change the law that one aggravating circumstance can justify imposition of the upper term, particularly in a case like this one, where the trial court finds no mitigating factors.