Filed 6/29/26 P. v. Lyons CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B344662
(Los Angeles County Super.
Plaintiff and Respondent, Ct. No. 24AVCF00055)
v.
THOMAS KEVIN LYONS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa M. Strassner, Judge. Reversed and
remanded.
Richard B. Lennon, 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, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Thomas Kevin Lyons appeals from a judgment after he
pleaded no contest to possession of a firearm by a felon and the
court sentenced him to the upper term of three years. Lyons’s
court-appointed appellate counsel filed a brief finding no
arguable issues and asking this court to conduct an independent
review of the record under People v. Wende (1979) 25 Cal.3d 436.
After reviewing the record, we ordered supplemental briefing on
whether the trial court prejudicially erred in imposing the upper
term based on the aggravating circumstance under California
Rules of Court, rule 4.421(b)(2)1 that a “defendant’s prior
convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing
seriousness,” without either a true finding by a jury or Lyons’s
admission. We conclude the court erred and the error was
prejudicial. Accordingly, we reverse the judgment and remand
the matter to the trial court for resentencing.
PROCEDURAL BACKGROUND2
In 2024 the People charged Lyons with second degree
burglary (Pen. Code,3 § 459; count 1), possession of a firearm by a
felon (§ 29800, subd. (a)(1); count 2), unlawful possession of
ammunition (§ 30305, subd. (a)(1); count 3), custodial possession
of a weapon (§ 4502, subd. (a); count 4), and misdemeanor
1 Further rule references are to the California Rules of
Court.
2 We do not recite the facts of the case because they are not
relevant to the issue before us.
3 Further undesignated statutory references are to the Penal
Code.
2
vandalism (§ 594, subd. (a); count 5). As to counts 1 through 4,
the People alleged a circumstance in aggravation that Lyons had
served a prior term in prison or county jail under section 1170,
subdivision (h), within the meaning of rule 4.421(b)(3).4
At Lyons’s arraignment, Lyons pleaded no contest to the
firearm charge (count 2) and admitted the circumstance in
aggravation under rule 4.421(b)(3) that he had served a prior
term in prison or county jail. Lyons also entered a so-called
“Cruz waiver”5 in exchange for his release from custody pending
sentencing. The parties agreed that if Lyons appeared at the
scheduled sentencing hearing, the court would sentence him to a
middle term sentence of two years on count 2 and dismiss the
remaining charges. If Lyons did not appear for sentencing, “the
judge [could] sentence [him] all the way up to” the “high term
maximum.”
Lyons failed to appear at the sentencing hearing, and the
court issued a bench warrant for Lyons’s arrest. A year later,
Lyons was arrested on the bench warrant and appeared in court
before Judge Lisa M. Strassner, who did not handle Lyons’s plea.
4 The People did not allege the circumstance in aggravation
that Lyons’s prior convictions are “numerous or of increasing
seriousness” under rule 4.421(b)(2).
5 Under section 1192.5, a defendant has several plea-
bargaining rights, including the right to withdraw a guilty plea if
the trial court later disapproves of the plea. (See § 1192.5,
subd. (c); People v. Cruz (1988) 44 Cal.3d 1247, 1249.) But “a
defendant fully advised of his or her rights under section 1192.5
may … expressly waive those rights, such that if the defendant
willfully fails to appear for sentencing the trial court may …
impose a sentence in excess of the bargained-for term.” (Cruz, at
p. 1254, fn. 5.)
3
Although the reporter’s transcript of Lyons’s arraignment shows
Lyons admitted an aggravating factor under rule 4.421(b)(3), the
minute order does not. Thus, without the benefit of the reporter’s
transcript, the trial court was unaware that Lyons had previously
admitted an aggravating factor under rule 4.421(b)(3).
The court found Lyons willfully failed to appear for
sentencing. The court stated its intention to find true that
Lyons’s “convictions are numerous and of increasing seriousness”
under rule 4.421(b)(2) and to impose the upper term of three
years. The court then noted that its finding was based on Lyons’s
certified rap sheet from the California Law Enforcement
Telecommunications System (CLETS), which was 46 pages long
and contained “all of his convictions.”
Defense counsel objected to the court’s finding on the
aggravated circumstance under rule 4.421(b)(2), arguing it was
not proven to a jury beyond a reasonable doubt. Further, defense
counsel, who was not present at Lyons’s plea, mistakenly told the
court that Lyons “did not admit an aggravating factor at the time
of his plea,” even though Lyons had admitted the factor under
rule 4.421(b)(3).
The prosecutor, who similarly was not present at Lyons’s
plea, failed to correct defense counsel’s mistake. The prosecutor
stated, “I have not seen the plea transcript, but based on the
People’s notes I believe it was the intention that he admit a factor
in aggravation. I understand that that did not happen.” The
prosecutor argued the upper term was justified because Lyons
“was advised that if he didn’t show up for a sentencing he’d be
looking at the maximum sentence.”
After both sides argued, the court determined that while
“the vast majority of factors in aggravation” need to be proven to
4
a jury or admitted by the defendant, the aggravating factor under
rule 4.421(b)(2), which the court referred to as “prior convictions
of increasing seriousness and numerous,” was an “exception.” As
the court explained, it could find the circumstance true “as long
as [there is] a certified” record. The court then concluded that
based on the “numerous convictions” in Lyons’s certified rap
sheet, “dating back to 1977 … the court does find that factor in
aggravation to be true.”
Lyons timely appealed. On appeal, court-appointed
appellate counsel for Lyons filed an opening brief setting forth
the facts of the case and requesting that this court review the
record and determine whether there are any arguable issues on
appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel also
advised Lyons of his right to file a supplemental brief within 30
days from the date the opening brief was filed. More than 30
days elapsed, and Lyons did not file such a brief.
Following our review of the record, we requested briefing
from the parties on the arguable issues whether (1) it was “error
for the trial court to sentence Lyons to the upper term based on
the circumstance in aggravation under … rule 4.421(b)(2) that
Lyons’s prior convictions were numerous or of increasing
seriousness, without either a true finding by a jury or Lyons’s
admission,” and (2) any error was harmless.
DISCUSSION
Lyons contends the sentencing court found true that
Lyons’s prior convictions were both numerous and of increasing
seriousness within the meaning of rule 4.421(b)(2). Lyons
contends the court’s reliance on this finding to impose the upper
term was erroneous and not harmless. The People argue the
5
court found only that Lyons’s prior convictions were numerous.
The People concede this finding was erroneous but contend the
error was harmless. We agree with Lyons.
A. Applicable Law
Section 1170, subdivision (b)(2), provides that the trial
court may impose a sentence exceeding the middle term only
when aggravating circumstances justify imposition of an upper
term sentence, and “the facts underlying those circumstances
have been stipulated to by the defendant or have been found true
beyond a reasonable doubt at trial.”
This “trial right is not merely a state law entitlement, but
is constitutionally required.” (People v. Wiley (2025) 17 Cal.5th
1069 (Wiley); see People v. Lynch (2024) 16 Cal.5th 730, 755-767
(Lynch).) “Under the Fifth and Sixth Amendments to the United
States Constitution, ‘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.’ ” (Wiley, at p. 1078; accord,
Erlinger v. United States (2024) 602 U.S. 821, 834 [“Virtually ‘any
fact’ that ‘ “increase[s] the prescribed range of penalties to which
a criminal defendant is exposed” ’ must be resolved by a
unanimous jury beyond a reasonable doubt (or freely admitted in
a guilty plea).”]; Lynch, at p. 760.)
The only exception to this rule is “ ‘the fact of a prior
conviction.’ ” (Wiley, supra, 17 Cal.5th at p. 1079, quoting
Apprendi v. New Jersey (2000) 530 U.S. 466, 490; see Lynch,
supra, 16 Cal.5th at p. 757 [“Excluding properly proven prior
convictions or a defense stipulation, a jury finding is now
required for all facts actually relied on to impose an upper
term.”].) A court may “ ‘consider the defendant’s prior convictions
6
in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.’ ”
(Wiley, at p. 1079, quoting § 1170, subd. (b)(3); see Lynch, at
p. 742 [“Allegations of prior convictions may be tried by the court
alone and proven by certified records of conviction.”].) However,
this exception is “narrow.” (Wiley, at p. 1083.) “[A] judge may ‘do
no more, consistent with the Sixth Amendment, than determine
what crime, with what elements, the defendant was convicted
of.’ ” (Erlinger v. United States, supra, 602 U.S. at p. 838; see
Wiley, at p. 1084 [“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”].)
The California Supreme Court in Wiley recently clarified
that two aggravating factors under the rules of court—the
“increasing seriousness” of a defendant’s prior convictions (rule
4.421(b)(2)) and “unsatisfactory” performance on probation (rule
4.421(b)(5))—involve “something more than a narrow factual
finding that the convictions were sustained and what elements
were required to prove them.” (Wiley, supra, 17 Cal.5th at
pp. 1082-1083.) Accordingly, the court held that a defendant is
entitled to a jury trial on those two factors before the factors can
be used to justify an upper term sentence. (Id. at pp. 1082, 1085.)
The court expressly did not decide whether a defendant is
entitled to have a jury determine that a defendant’s prior
convictions are “numerous” under rule 4.421(b)(2). (Wiley, at
p. 1085, fn. 9 [concluding it was unnecessary to consider whether
a trial court’s “numerical tally” of a defendant’s prior convictions
for purposes of the numerosity factor under rule 4.421(b)(2)
exceeds the scope of the exception for prior convictions].)
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B. The Trial Court Erred When It Relied on Aggravating
Factors That Were Neither Admitted to by Lyons nor Found
True by a Jury
1. The court found Lyons’s prior convictions are
“numerous” and “of increasing seriousness”
To justify the upper term, the trial court relied on the
aggravating factor set forth in rule 4.421(b)(2), which provides:
“The defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness.” As the plain language illustrates, this
factor contains a disjunctive: “numerous or of increasing
seriousness.” (Rule 4.421(b)(2), emphasis added.) Thus, a trier of
fact has several options: it may find the defendant’s prior
convictions were “numerous”; “of increasing seriousness”; or both
“numerous” and “of increasing seriousness.” (See People v.
Wright (2025) 113 Cal.App.5th 832, 838, 847 (Wright) [trial court
imposed upper term based only on a finding of “numerous” prior
convictions]; see also Wiley, supra, 17 Cal.5th at p. 1085 fn. 9
[treating numerosity of convictions as an aggravating factor
distinct from the “of increasing seriousness” factor within same
rule 4.421(b)(2)].)
Lyons argues that the court found his prior convictions
were both numerous and of increasing seriousness when
imposing the upper term. He points to multiple instances in the
record where the court referred to rule 4.421(b)(2) as such. The
People argue the court only made a finding as to numerosity,
highlighting the court’s concluding remarks where the court
discussed Lyons’s “numerous convictions.” We are persuaded by
Lyons’s argument.
8
The court explicitly stated three different times that it
found Lyons’s convictions were both numerous “and” of
increasing seriousness. The single reference to Lyons’s
“numerous convictions” in the court’s concluding remarks does
not negate or conflict with the court’s earlier findings. Therefore,
we agree with Lyons that the court relied on both the numerosity
and seriousness factors when imposing the upper term.
2. The court was not permitted to sentence Lyons to the
upper term based on Lyons’s convictions being
“numerous” and “of increasing seriousness” without
Lyons’s admission or a jury finding
As noted, the court in Wiley held a defendant is entitled to
a jury trial on the “increasing seriousness” of his or her prior
convictions before that factor can be used to justify an upper term
sentence. (Wiley, supra, 17 Cal.5th at p. 1082.) Thus, the trial
court here erred in imposing the upper term based on that factor
without a jury determination or admission by Lyons. (Ibid.)
Wiley expressly did not decide whether a defendant is
entitled to have a jury determine if his or her convictions are
“numerous.” (Wiley, supra, 17 Cal.5th at p. 1085, fn. 5.) The
People concede that Lyons was entitled to a jury determination of
whether his prior convictions were numerous, and we accept their
concession. The court’s reasoning and holding in Wiley lead us to
conclude that the numerosity aggravating factor implicates a
defendant’s jury trial right. (See id. at pp. 1082-1086.)
The determination that a defendant’s prior convictions are
numerous can require more than a mere numerical tally of the
convictions on a CLETS rap sheet. As illustrated in Wright, this
determination can be made by reference to the character of the
convictions. (Wright, supra, 113 Cal.App.5th at p. 847.) For
9
example, in Wright, the defendant had 13 convictions, but 11 of
the 13 arose from a single case (one robbery at one establishment
involving 11 victims). (Ibid.) As our colleagues in Division Eight
explained, “a reasonable jury might have treated his one …
robbery as a single aggregated signifier of culpability.” (Ibid.)
Moreover, a finding of numerosity may be made by reference to
the defendant’s criminal history. For instance, in Wright, the
court concluded the defendant’s three robberies over his 49 years
of life may not strike some jurors as an obviously “numerous”
number of convictions. (Id. at p. 848.)
As these examples illustrate, the numerosity inquiry
requires a qualitative assessment of the convictions. It involves
something more than a narrow factual finding that the
convictions were sustained and that they had certain elements.
Thus, the trial court also erred in imposing the upper term based
on the finding that Lyons had “numerous” convictions when that
fact was not decided by a jury or admitted by Lyons. (Wright,
supra, 113 Cal.App.5th at p. 847 [defendant “was entitled to, but
did not receive (or waive), trial by jury on the aggravating factor
of whether he had suffered ‘numerous’ convictions in the past”];
cf. Wiley, supra, 17 Cal.5th at pp. 1082-1083 [determination that
a defendant’s prior convictions are of “increasing seriousness”
“requires a qualitative assessment of the offenses” and thus
exceeds the scope of the narrow exception for prior convictions].)
C. The Error Was Prejudicial
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 standard of review under
Chapman v. California (1967) 386 U.S. 18. (Wiley, supra,
17 Cal.5th at p. 1087.) Under that standard, a sentence imposed
10
under section 1170, subdivision (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.’ [Citations.] Lack of a jury trial is not harmless under
Chapman if ‘the record contains evidence that could rationally
lead to a contrary finding’ with respect to the aggravating fact at
issue.” (Wiley, at p. 1087.)
Had the trial court relied only on the numerosity factor to
justify the upper term sentence, we could conclude that the
failure to afford Lyons a jury trial on whether his prior
convictions were numerous was harmless. Lyons does not
dispute that he has 27 convictions in total from 1980 to 2019. His
criminal history reveals the following convictions: a 1980
conviction for possession of marijuana for sale (Health & Saf.
Code, § 11359); a 1982 conviction for disturbing the peace (Pen.
Code, § 415); 1987, 2003, 2007, 2011, and 2012 convictions for
possession of a controlled substance (Health & Saf. Code,
§ 11377); 1987 and 1989 convictions for battery (Pen. Code,
§ 242); a 1989 conviction for trespassing (Pen. Code, § 602,
subd. (j)); a 1989 conviction for possession of property with serial
number removed (Pen. Code, § 537e, subd. (a)); a 1990
misdemeanor conviction for domestic violence with corporal
injury (Pen. Code, § 273.5); 1997 and 2003 convictions for
possession of a firearm by a felon (former Pen. Code, § 12021,
subd. (a)(1)); 2000 and 2002 convictions for driving with a
suspended license (Veh. Code, § 14601.1, subd. (a)); a 2003
conviction for petty theft (Pen. Code, § 488); 2003, 2004, and 2006
11
felony convictions for vehicle theft (Veh. Code, § 10851, subd. (a));
a 2008 conviction for possession of a concealable firearm (former
Pen. Code, § 12022.1, subd. (a)); a 2009 conviction for vehicle
theft with a prior (Pen. Code, § 666.5); a 2011 conviction for
possession of drug paraphernalia (Health & Saf. Code, § 11364); a
2012 conviction for receiving stolen property (Pen. Code, § 496,
subd. (a)); a 2013 conviction for possession of a controlled
substance for sale (Health & Saf. Code, § 11378); a 2017
conviction for transportation or sale of a controlled substance
(Health & Saf. Code, § 11379, subd. (a)); and a 2019 conviction for
attempted burglary (Pen. Code, §§ 664, 459).6 Based on that
record, no rational juror would conclude that 27 convictions are
not numerous.
However, “the facts supporting every aggravating
circumstance upon which the trial court relies to ‘justify’
imposition of the upper term must be properly proven.” (Lynch,
supra, 16 Cal.5th at p. 757.) We cannot conclude beyond a
reasonable doubt that the jury would have found true that
Lyons’s prior convictions were of increasing seriousness. Lyons’s
criminal history spans almost four decades and includes both
misdemeanors and felonies. The felonies are scattered among the
misdemeanors, and none of the felonies is “strikingly more
serious than the others, either by reference to the nature of the
offense or the punishment.” (Wiley, supra, 17 Cal.5th at p. 1089.)
“[W]hile the evidence may have been sufficient to support a
finding of increasing seriousness, that is not the proper inquiry ...
under Chapman. [Citation.] Instead, we must ask ‘whether any
6 We derived this information from Lyons’s probation report
because the CLETS rap sheet was not in the record on appeal.
12
rational fact finder could have come to the opposite conclusion.’ ”
(Wiley, supra, 17 Cal.5th at p. 1090.) Because a rational juror
could have reached the opposite conclusion here based on the
totality of Lyons’s criminal conduct, we conclude the failure to
afford Lyons a jury trial on whether his prior convictions were of
increasing seriousness was prejudicial.
The People also contend Lyons is not entitled to remand for
resentencing because the record “clearly indicates” that the trial
court would have imposed the upper term based on the
aggravating factor under rule 4.421(b)(3) if it had been aware
that Lyons had already admitted that factor. We agree it is
highly likely the court would have relied on this factor to impose
the upper term had it known of Lyons’s earlier admission of it.
At the sentencing hearing, the court stated, “[Lyons] was
supposed to appear on February 7, 2024, for a surrender and
sentencing. He failed to appear and was picked up about a year
later, February 4th of 2025. And so what we have is a Cruz
waiver violation. … [I]n this situation it is my intent, based upon
the Cruz waiver violation, to give him three years in state prison,
which is the high term.” The court plainly wished to impose the
upper term, and given Lyons had admitted the aggravating factor
under 4.421(b)(3), the court easily and properly could have relied
on that factor.
In arguing that the error was harmless because the record
“clearly indicates” the court would have relied on the aggravating
factor under 4.421(b)(3) had it known of Lyons’s admission, the
People rely on People v. Gutierrez (2014) 58 Cal.4th 1354, in
which the Supreme Court “considered the appropriate remedy
when the trial court was not aware of the full scope of its
discretionary powers at the time of the defendant’s sentencing.”
13
(Lynch, supra, 16 Cal.5th at pp. 770-771.) “In this situation, ‘the
appropriate remedy is to remand for resentencing unless the
record “clearly indicate[s]” that the trial court would have
reached the same conclusion “even if it had been aware that it
had such discretion.” ’ ” (Id. at p. 771, quoting Gutierrez, at
p. 1391.) In Lynch, the court held the Gutierrez “clearly
indicates” standard applies where the trial court sentenced the
defendant to the upper term at a point in time when the law
afforded it broad discretion to select among the triad of three
terms, but the law changed to impose a presumption against the
upper term before the case was final. (Lynch, at p. 774.) The
Supreme Court determined “[i]t is this constraint on the trial
court’s discretion that triggers the Gutierrez standard because
‘ “[a] court which is unaware of the scope of its discretionary
powers [cannot] exercise that ‘informed discretion’ ....” ’ ” (Ibid.)
The “clearly indicates” standard of Gutierrez is inapplicable
here, where the issue is not that the court was unaware of its
discretion under the law but rather was not aware of Lyons’s
admission. We cannot conclude that the error was harmless
under the rationale that, had the trial court known of the
admission to the aggravating circumstance under rule
4.421(b)(3), it surely would have relied on it and imposed the
upper term based on that aggravating factor.
///
///
14
DISPOSITION
We reverse the judgment and remand to the trial court for
resentencing.
STONE, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
15