Filed 6/23/26 P. v. Love CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B340995
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA460994)
TIMOTHY LOVE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, George G. Lomeli, Judge. Affirmed in part,
vacated in part, and remanded.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Timothy Love (defendant) appeals
from a resentencing held in accordance with this court’s
directions in a prior appeal. (People v. Atlas (May 19, 2022,
B306982) [nonpub. opn.] (Atlas I).) We consider whether the trial
court erred in imposing an upper term sentence on one count of
conviction without any aggravating facts having been admitted
by defendant or found true by a jury.1
I. BACKGROUND
A. Offense Conduct2
On September 13, 2017, defendant, his co-defendant
Jeremiah Atlas (Atlas), Jailen Yoakum (Yoakum), and another
man drove into the territory of a rival criminal street gang; a
woman, Dasha Goldston (Goldston), was also with them. At some
point during the drive, defendant and the other men in the
vehicle pulled out guns.
At around 4:30 a.m., the vehicle with defendant and the
others stopped near an intersection and the men got out and
began shooting at another vehicle. The gunfire lasted for
approximately five minutes, and during that time, all four men
yelled “Main Street.” A man in the other vehicle later identified
as Ontario Courtney (Courtney) was shot and killed, but the
other two occupants of the other vehicle survived.
Defendant and the others drove away from the scene of the
shooting, but they were chased by police and apprehended after
1
Undesignated statutory references that follow are to the
Penal Code.
2
This summary is drawn from the background discussion in
Atlas I.
2
they crashed. The police recovered two firearms inside their
vehicle and two others outside and nearby. A firearms analyst
determined 37 shots were fired by the recovered guns: 11 shots
each from two different firearms, 10 shots from a third, and five
shots from the fourth. A slew of bullet impacts were observed on
the shooting victims’ car.
B. Charges, Conviction, and Original Sentence
By an amended information filed in February 2020,
defendant and Atlas were charged with one count of murder
(count one), two counts of willful, deliberate, and premeditated
attempted murder (counts two and three), and one count of
willful, unlawful, and malicious discharge of a firearm at an
occupied motor vehicle (§ 246) (count four).3
As to each of these counts, the information alleged the
crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to
promote, further, or assist in criminal conduct by gang members.
The information additionally alleged as to all four counts that
defendant and Atlas personally and intentionally discharged a
handgun causing Courtney’s death (plus subsidiary section
12022.53 allegations). The information further alleged as to all
four counts that a principal (§ 12022.53, subd. (e)) personally and
intentionally discharged a firearm causing great bodily injury
and death (plus subsidiary section 12022.53 allegations).
The jury convicted defendant and Atlas of first degree
murder and shooting at an occupied motor vehicle (counts one
3
Atlas was also charged with additional counts that were
separately tried.
3
and four). In connection with the murder conviction, the jury also
found true the allegations that a principal personally and
intentionally discharged a handgun causing Courtney’s death
(and found true the subsidiary allegations). In connection with
the conviction for shooting at an occupied vehicle, the jury found
true allegations, as to both defendant and Atlas, that defendant
and Atlas personally and intentionally discharged a handgun
causing Courtney’s death (and the subsidiary allegations). The
jury also found the gang allegation true in connection with both
convictions. The jury acquitted defendant and Atlas of the two
charged attempted murders.
At defendant’s first sentencing hearing, the trial court
identified three circumstances in aggravation: that defendant’s
crimes involved great violence, indicating a high degree of
cruelty; that defendant’s victims were particularly vulnerable;
and that defendant induced others to participate in the crimes.
The trial court sentenced defendant to 25 years to life for murder
plus an additional term of 25 years to life under section 12022.53,
subdivisions (d) and (e) based on the jury’s firearm and gang
enhancement true findings. The court sentenced defendant to a
consecutive term of 15 years to life for the shooting at an occupied
vehicle conviction (the minimum term imposed pursuant to
section 186.22, subdivision (b)(4)) plus an additional term of 20
years to life for the section 12022.53, subdivision (c) personal
discharge of a firearm enhancement (the court did not impose the
25-year sentence for the personal discharge of a firearm causing
death enhancement).
4
C. Direct Appeal
Defendant appealed the judgment of conviction and argued,
among other things, that the components of his sentence imposed
for the gang enhancement true finding—and for the related
“principal armed” firearm enhancement true findings—must be
vacated pursuant to the intervening enactment of Assembly Bill
No. 333 (2021-2022 Reg. Sess.) (AB 333). Specifically, defendant
argued he should benefit from the amendment to section 186.22
that prevents the prosecution from using the offense for which
the defendant is being tried to prove a pattern of criminal gang
activity. (Stats. 2021, ch. 699, § 3 [adding § 186.22, subdivision
(e)(2): “The currently charged offense shall not be used to
establish the pattern of criminal gang activity”].)
In an unpublished opinion, we concluded the amendments
AB 333 made to the definition of a “pattern of criminal gang
activity” in section 186.22 applied retroactively to defendant and
rendered the prosecution’s evidence of predicate acts insufficient.
We accordingly vacated the gang enhancement true findings, and
the associated firearm enhancement true findings, and remanded
with directions to permit the People to retry the enhancements if
they so elected. We also instructed the trial court to resentence
defendant whether or not the vacated enhancements were
retried. In all other respects, we affirmed the judgment.
D. Resentencing
Although the People initially advised the court they
intended to retry the gang allegations, they reconsidered their
position and opted not to retry the gang allegations. In advance
of sentencing, the People’s sentencing memorandum asked the
court to sentence defendant to 25 years to life on the murder
5
conviction and the high term of seven years, consecutive, on the
count four conviction for shooting at an occupied vehicle. The
People’s memorandum acknowledged defendant would have to
admit a factor in aggravation to justify their requested upper
term sentence on count four and indicated they would accordingly
ask defendant to admit he was armed with or used a weapon at
the time of the commission of the crime.
The court held a hearing to resentence both defendant and
Atlas. Before defendant and Atlas were brought into the
courtroom, the court had a conversation with counsel. During the
conversation, counsel for Atlas asked if the court could make a
finding of an aggravating factor. The court said some statutes
allowed the court to resentence a defendant to the high term if
the court originally sentenced the defendant to a high term.
Counsel for defendant indicated the court had imposed the high
term originally. The court acknowledged that but said it was
unsure if the principle applied in defendant’s case. The court also
stated the only aggravating circumstance it could find was a
criminal record. The court eventually stated, “They were in
possession of a weapon under Penal Code Section 246. Someone
had a gun. But I can’t make that finding. They have to admit
it. [¶] . . . [¶] You know what the court is going to do? I’m going
to impose the high term because it was originally imposed, and if
they send it back, it will be cut down to midterm, and that’s it.”
The court then proceeded with resentencing with defendant
present in court. The court stated it understood the People had
elected not to retry the enhancements and asked if that was
correct. The People responded, “Yes, based on our understanding
that there is an admission to an aggravating circumstance in this
case.” The court said defendant would have to be asked if he
6
wanted to do that. Counsel conferred with defendant off the
record and advised the court an admission would not be
forthcoming. The court then said, “As the court originally
imposed the high term, I’m going to impose the high term.” The
court then resentenced defendant to 25 years to life on count one
and imposed the high term of seven years on count four.
II. DISCUSSION
The only arguments the Attorney General makes to avoid
reversal for resentencing are claims of forfeiture and harmless
error; he concedes there was People v. Lynch (2024) 16 Cal.5th
730 error on the merits. Because the forfeiture doctrine does not
apply and the error cannot be deemed harmless on this record,
we shall vacate defendant’s sentence and remand for
resentencing.
Section 1170, subdivision (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 . . . .”4 (§ 1170, subd. (b)(2).) The court
may, however, “consider the defendant’s prior convictions in
4
Senate Bill 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. (See Lynch,
supra, 16 Cal.5th at 749; In re Estrada (1965) 63 Cal.2d 740,
745.)
7
determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” (§ 1170, subd.
(b)(3).)
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. [Citation.]”
(People v. Wiley (2025) 17 Cal.5th 1069, 1078.) Any waiver of this
jury trial right must be an express waiver by the defendant and
counsel in open court. (People v. Sivongxxay (2017) 3 Cal.5th 151,
166; People v. French (2008) 43 Cal.4th 36, 47.)
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 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.5 (See generally
People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of
5
Because we decide there was no forfeiture under the
circumstances, 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. (See, e.g., Wiley,
supra, 17 Cal.5th at 1078; Lynch, supra, 16 Cal.5th at 768;
French, supra, 43 Cal.4th at 46.)
8
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 . . .”’”’”].) There was no forfeiture.
The Attorney General concedes that if the claim was not
forfeited, the court erred in imposing the upper term. However,
the Attorney General additionally contends any error was
harmless beyond a reasonable doubt. He argues the court
imposed the upper term on count four based on the single
aggravating factor that defendant was armed with or used a
weapon, and it is clear beyond a reasonable doubt a jury would
have found that factor true.
The record does not support the Attorney General’s
argument. Though the trial court asked defendant if he would
admit to having been in possession of a weapon when he
committed the crime, defendant declined. The trial court did not
then say it was nevertheless relying on that aggravating
circumstance. The court instead stated it was going to reimpose
the high term solely on the ground that it had imposed the high
term originally—adding that this court would remand if it was
not permitted to do that.6 It is not permitted, and we are
remanding accordingly.7
6
The trial court may have mistakenly believed the
resentencing was being held pursuant to section 1172.75 rather
than pursuant to our directions in Atlas I. (See generally
§ 1172.75, subd. (d)(4) [“Unless the court originally imposed the
upper term, the court may not impose a sentence exceeding the
9
DISPOSITION
The judgment of conviction is affirmed. Defendant’s
sentence is vacated and the matter is remanded to the trial court
for resentencing in accordance with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
HOFFSTADT, P. J.
MOOR, J.
middle term unless there are circumstances in aggravation that
justify the imposition of a term of imprisonment exceeding the
middle term, and those facts 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”], italics added.)
7
We therefore need not decide whether reliance on the
aggravating factor of firearm use during commission of the
offense to demonstrate harmlessness would violate “dual use”
prohibitions. (See generally People v. Scott (1994) 9 Cal.4th 331,
350 [a court may not “use a fact constituting an element of the
offense either to aggravate or to enhance a sentence”].)
10