Filed 8/27/26 P. v. Allen CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
THE PEOPLE, C103390
Plaintiff and Respondent,
(Super. Ct. Nos. 25CF00133,
v. 24CF00147)
BRYCE JAMES ALLEN,
Defendant and Appellant.
Defendant Bryce James Allen contends the trial court prejudicially erred when it
sentenced him to an upper term sentence without affording him a jury trial on aggravating
factors. The People assert the appeal should be dismissed because defendant failed to
obtain a certificate of probable cause. We agree with the People and dismiss the appeal.
I. BACKGROUND
In January 2024, defendant had an altercation with a female in which he grabbed
her, forced her to the ground, and bit her breasts. Defendant was subsequently charged in
case No. 24CF00147 (case No. 147) with corporal injury. (Pen. Code, § 273.5, subd.
(a).)1 Defendant agreed to plead guilty and also admitted to violating probation and a
protective order in two other cases in exchange for a recommendation of probation. The
1 Undesignated statutory references are to the Penal Code.
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trial court later suspended imposition of sentence and placed defendant on three years of
formal probation. The court also imposed probation or concurrent sentences in three
misdemeanor cases not at issue in this appeal.
In December 2024, officers responded to a victim’s call alleging that defendant
violated a restraining order by yelling and arguing. The next month, defendant held a
blanket over his crying three-year old child’s mouth. Defendant was charged in case No.
25CF00133 (case No. 133) with child abuse (§ 273a, subd. (a)—count 01) and violating a
domestic relations court order (§ 273.6, subd. (a)—count 02). The complaint did not
allege any aggravating factors.
Defendant agreed to plead guilty to child abuse and admitted three probation
violations, including in case No. 147, in exchange for dismissal of the restraining order
violation count. In the parties’ written plea agreement, defendant stipulated the court
could take a factual basis for his plea from the probable cause declaration, police reports,
and probation report. Defendant acknowledged the court could not impose a sentence
exceeding the middle term unless aggravating factors justified the upper term, and he
waived his right to a jury or court trial on aggravating factors. Defendant agreed the
court could find aggravating factors based on the probable cause declaration, police
reports, and probation report, and he acknowledged the court could impose the lower,
middle, or upper term. Defendant also acknowledged that he could submit evidence of
mitigating factors.
The trial court accepted defendant’s plea to child abuse and dismissed the
remaining count with a Harvey waiver.2 During the plea colloquy, the court discussed
defendant’s rights to a jury trial, subpoena witnesses, and present evidence but did not
2 People v. Harvey (1979) 25 Cal.3d 754.
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address these rights in connection with any aggravating factors. Counsel also stipulated
that the court could draw a factual basis from the probation report.
Prior to sentencing, the probation department submitted a report recommending a
seven-year aggregate sentence, including the upper term of six years on the child abuse
conviction in case No. 133. The probation department found in aggravation that the
crime involved great bodily harm, the victim was particularly vulnerable, the defendant’s
behavior presented a serious danger to society, the defendant had numerous prior
convictions based on a prior felony and four prior misdemeanors, he was on probation in
three cases at the time of the offense, and his prior performance on probation was
unsatisfactory. (Cal. Rules of Court, rule 4.421.)3 The probation department found in
mitigation that defendant admitted his actions to officers the night of the crime. (Rule
4.423.)
At sentencing, the trial court looked to factors in aggravation and mitigation,
stating: “The defendant did stipulate to the existence of aggravating factors. In
reviewing [rules] 4.421 and 4.423, this court does find aggravating circumstances
outweigh the mitigating circumstances; therefore, the upper[ ]term will be imposed based
on [the] following factors:
“In aggravation, defendant’s prior conviction[s] as an adult are increasing in
seriousness and nature [and] defendant’s prior performance on probation has been
unsatisfactory. This crime involved great violence, great bodily harm, threat of great
bodily harm or other acts of high degree of cruelty, viciousness or callousness[,] and the
victim was vulnerable. In mitigation, the defendant has a minimal prior record of
criminal conduct and did acknowledge wrongdoing in at any early stage of proceedings.”
3 Undesignated rule references are to the California Rules of Court.
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The court imposed the upper term of six years on the child abuse count in case No.
133 and one year consecutive (one-third the middle term) on the corporal injury count in
case No. 147, for an aggregate sentence of seven years in state prison. The court imposed
concurrent six-month jail terms for probation violations in three other cases not at issue in
this appeal.
Defendant timely appealed in case No. 133. Defendant did not file a notice of
appeal in case No. 147, but we granted defendant’s request for an order deeming the
notice of appeal filed in case No. 133 to include case No. 147. However, defendant does
not claim any error in case No. 147. The appeal was fully briefed on June 9, 2026, and
assigned to this panel shortly thereafter. We granted defendant’s request for calendar
preference on June 15, 2026.
II. DISCUSSION
Defendant contends the trial court’s reliance on aggravating factors to sentence
him to the upper term was error because he did not have proper notice of the aggravating
factors, he did not properly waive his right to a trial on those factors, and those factors
were not properly proven. We agree with the People that defendant challenges the
validity of the plea agreement, and therefore his appeal must be dismissed because he
failed to obtain a certificate of probable cause.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) added
section 1170, subdivision (b) to limit the trial court’s discretion to impose a sentence
exceeding the middle term. (Stats. 2021, ch. 731, § 1.3.) To impose a sentence beyond
the middle term, at least one aggravating factor must justify the term, and facts
underlying the aggravating factor must be found true beyond a reasonable doubt at trial
by the jury or a judge at a court trial, with the exception of a defendant’s prior
convictions, which may be determined without submission to a jury based on a certified
record of conviction. (§ 1170, subd. (b)(1)-(3).) However, a defendant may waive the
right to a jury or court trial on aggravating factors. (People v. Wiley (2025) 17 Cal.5th
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1069, 1086; see also People v. Lynch (2024) 16 Cal.5th 730, 755 [§ 1170, subd. (b)
requires aggravating facts relied upon to justify an upper term be resolved by a jury “in
the absence of a waiver or stipulation”].)
In the plea agreement, defendant expressly waived the right to a jury or court trial
for the determination of aggravating factors and authorized the trial court to find
aggravating factors based on the probation report. At sentencing, the trial court noted
that defendant had stipulated to the existence of aggravating factors. In imposing the
upper term on count 01 in case No. 133, the court found, among other things, that
defendant’s prior convictions were numerous and of increasing seriousness (rule
4.421(b)(2)); his prior performance on probation was unsatisfactory (rule 4.421(b)(5));
the victim was vulnerable (rule 4.421(a)(3)); and the crime involved great violence, great
bodily harm, the threat of great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness (rule 4.421(a)(1)).
Defendant’s failure to obtain a certificate of probable cause prevents this court
from considering his contention that the stipulation to aggravating factors in the plea
agreement was invalid, or his related arguments that he did not have proper notice of the
aggravating factors and such factors were not properly proven. A criminal defendant
appealing a guilty or no contest plea without obtaining a certificate of probable cause can
only challenge the denial of a motion to suppress (§ 1538.5, subd. (m)) or raise grounds
arising after the entry of the plea that do not affect the validity of the plea. (People v.
Johnson (2009) 47 Cal.4th 668, 676-677; rule 8.304(b).) Defendant’s claims do not fall
into these categories. (§ 1237.5; People v. Cole (2001) 88 Cal.App.4th 850, 860.) “Even
when a defendant purports to challenge only the sentence imposed, a certificate of
probable cause is required if the challenge goes to an aspect of the sentence to which the
defendant agreed as an integral part of a plea agreement.” (Johnson, supra, at p. 678.)
Defendant’s waiver of a jury trial on aggravating factors and stipulation that the trial
court could consider aggravating factors based on the probation report were integral parts
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of his plea agreement. Accordingly, because defendant failed to obtain a certificate of
probable cause, we must dismiss the appeal.4
III. DISPOSITION
The appeal is dismissed.
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
FEINBERG, J.
4 Because we conclude that defendant’s appeal must be dismissed, we do not address the
parties’ other arguments.
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