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Name: People v. Wiley (2023) 97 Cal.App.5th 676
Case #: A165613
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 11/29/2023

Trial court did not err under Penal Code section 1170 (as amended by Senate Bill No. 567) in imposing an upper term sentence after finding that certified records of convictions showed defendant’s crimes were increasing in seriousness and that he was not successful on probation. Wiley was on probation for a criminal threats conviction and committed a new offense. In sentencing, the trial court relied on certified rap sheets, finding that, beyond the mere fact of the convictions, the rap sheets showed two aggravating factors: that his crimes were increasing in seriousness and that he had failed to succeed on probation in the current offense. On appeal, Wiley argued the trial court erred under federal and state law because in selecting the upper term it relied in part on aggravating factors that were not admitted by Wiley or found true by a jury beyond a reasonable doubt. Held: Affirmed. The Sixth Amendment right to a jury trial permits the trial court to make factual findings about a defendant’s prior convictions and about factors related to those convictions, like the increasing seriousness of his offenses. Section 1170(b)(3) governs the use of prior convictions in imposing sentence and limits the court to the consideration of certified records. The Court of Appeal concluded that “the most reasonable construction of section 1170, subdivision (b)(3) is that, once a defendant’s prior convictions are properly established by a certified record, a trial court may ‘consider’ those convictions in determining whether related aggravating factors apply, as is the case under the constitutional prior conviction exception.” The trial court did not violate section 1170 in imposing an upper term sentence based on factors related to Wiley’s criminal history. [Editor’s Note: The Court of Appeal noted a split of authority on this issue. Some courts have treated the prior conviction exception under section 1170(b)(3) as having the same scope as the exception under the Sixth Amendment. Other courts have suggested that, under section 1170(b)(3), such factors as the increasing seriousness of a defendant’s convictions must (at least in some circumstances) be submitted to a jury rather than determined by the court from a certified record of convictions.]