Filed 6/30/26 P. v. Robinson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089957
Plaintiff and Respondent,
(Super. Ct. No. PCF397760)
v.
LARRY WAYNE ROBINSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Laura Arnold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, David A. Lowe and
Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and Meehan, J.
INTRODUCTION
This case returns on appeal after appellant Larry Wayne Robinson was
resentenced in May 2025. The trial court reimposed an upper term sentence based on
aggravating circumstances originally found true by the trial court. Shortly after
resentencing, the California Supreme Court decided People v. Wiley (2025) 17 Cal.5th
1069 (Wiley), which clarified the scope of the prior conviction exception to the federal
Constitution’s Sixth Amendment right to a jury trial as to every fact that increases a
penalty for a crime beyond the prescribed statutory maximum. Absent a waiver of the
jury trial right or a stipulation, factors such as the increasing seriousness of prior
convictions or a defendant’s unsatisfactory performance on probation must be found by a
jury, not a judge. (Wiley, supra, at pp. 1082–1083.)
The Attorney General concedes resentencing is required under Wiley because the
trial court imposed an upper term sentence based on aggravating circumstance findings to
which a Sixth Amendment jury trial right attached. As appellant did not personally
waive his jury trial right with respect to those factors, their consideration constitutes a
Sixth Amendment violation. The Attorney General concedes improper consideration of
these factors was prejudicial under a Chapman1 analysis.
Pursuant to Wiley, we accept the Attorney General’s concessions. The sentence is
vacated, and we remand for a full resentencing consistent with this opinion.
FACTUAL BACKGROUND
Based on two separate incidents in May 2020, appellant was charged with two
felony counts of making criminal threats against T.C., his former girlfriend (§ 422;
counts 1, 3); one felony count of making a criminal threat against J.S., another woman
(§ 422; count 4); two misdemeanor counts of contempt of court by violating a protective
order issued pursuant to section 136.2 (§ 166, subd. (c)(1); counts 2, 5); one misdemeanor
1 Chapman v. California (1967) 386 U.S. 18 (Chapman).
2.
count of resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 6); and one
misdemeanor count of possessing drug paraphernalia (Health & Saf. Code, § 11364,
subd. (a); count 7). As to counts 1, 3, and 4, the information alleged defendant suffered
seven prior felony convictions within the meaning of section 1203, subdivision (e)(4);
and suffered a prior conviction under section 422, qualifying as a prior strike offense
within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–
(d)) and a prior serious felony conviction within the meaning of section 667,
subdivision (a)(1). As to counts 3 and 4, the information also alleged defendant
personally used a deadly weapon within the meaning of section 12022,
subdivision (b)(1), during the incident of May 12, 2020
Following trial on these charges, a jury convicted appellant on all counts, but
found not true that defendant personally used a deadly weapon as to counts 3 and 4. In a
bifurcated proceeding, the trial court found appellant suffered a prior conviction for
violation of section 422, qualifying as a strike. The court also determined appellant
suffered six prior felony convictions for purposes of section 1203, subdivision (e)(4).
The trial court found no factors in mitigation, but found at least five factors in
aggravation, articulated as follows:
“I adopt the findings of aggravation—in aggravation listed by
probation.
“[1.] [Appellant] was convicted of other crimes for which
consecutive sentences could have been imposed but for which a concurrent
sentence will be imposed.
“[2.] I find that he has engaged in violent conduct which indicates a
serious danger to society. There are many times when criminal threats
cases are obviously just words, and so I am always aware of taking a close
look—the importance of taking a close look to see whether there are good
reasons to take someone’s word seriously, and [appellant] has not just made
threats in these cases and previously, but he has acted out conduct that
gives me reason to believe that there is a reason to believe him when he
says he might do things like this. [¶] So I find that he does pose a danger,
his age notwithstanding.
3.
“[3.] His prior convictions are numerous.
“[4.] He was on mandatory supervision and summary probation
when the current offenses were committed.
“[5.] His prior performance on probation, parole and mandatory
supervision have all been unsatisfactory.”
Beyond these circumstances identified by the probation officer, and before
pronouncing sentence, the trial court further commented: “[6.] There are crimes of
violence on more than one occasion; threats of violence on more than one occasion in this
case.”
Defendant was sentenced to an aggregate determinate term of 12 years 4 months.
The trial court imposed the upper term of three years on count 1 (§§ 422, 1170,
subd. (h)(1)), doubled to six years for the prior strike (§§ 667, subd. (e)(1), 1170.12,
subd. (c)(1)). On count 3, the trial court imposed eight months (one-third the two-year
middle term), doubled to 16 months for the prior strike (§ 667, subd. (e)(1)), to be served
consecutive to count 1 (§ 1170.12, subd. (a)(6)). On count 4, the court imposed the upper
term of three years (§§ 422, 1170, subd. (h)(1)), doubled to six years for the prior strike
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), to be served concurrent with count 1. The
court also imposed an additional five years for the prior serious felony conviction
enhancement (§ 667, subd. (a)). No time was imposed on the misdemeanor counts 2, 5,
6, and 7.2
A panel of this court affirmed the judgment (People v. Robinson (Sept. 8, 2022,
F082378,) [nonpub. opn.]) (Robinson I), but upon review granted by our Supreme Court,
the matter was transferred back to us for reconsideration of the opinion pursuant to
People v. Lynch (2024) 16 Cal.5th 730 (Lynch). Upon reconsideration, this court struck
2 These current offenses were committed while appellant was on mandatory supervision
after pleading no contest to a violation of section 273.6, subdivision (d), and receiving a two-year
split sentence under section 1170, subdivision (h). At the sentencing hearing, appellant’s
mandatory supervision was terminated, and he was ordered to serve concurrently the time
remaining on his previously imposed two-year sentence.
4.
three of the six sentencing factors pursuant to Lynch as improperly considered, vacated
appellant’s sentence due to prejudicial error, remanded for a full resentencing, but
otherwise affirmed the judgment. (People v. Robinson (Dec. 27, 2024, F082378,)
[nonpub. opn.] (Robinson II).)
Upon resentencing, the trial court commented the “aggravating factors that were
found true originally that remain valid at this point [after appeal] are [(1)] three
concurrent sentences being imposed where a consecutive sentence could have been
imposed[;] [¶] [(2)] [appellant’s] prior record which was based on the … rap sheet[;]
and [(3)] the fact of prior or current acts of violence or threats of violence the court found
true .…” The court characterized the “primary aggravating factor” to be “the length,
nature of [appellant’s] criminal record.”
Based upon these factors, the court imposed the upper term of six years on
count 1; a consecutive 16-month term (one-third the middle term) on count 3; and a
concurrent four-year middle term on count 4. The court also imposed a consecutive five
years for the prior serious felony conviction enhancement under section 667,
subdivision (a). No time was imposed on the other counts. Appellant did not personally
waive his jury trial right with respect to the sentencing factors.
Following resentencing, the California Supreme Court decided Wiley. In Wiley,
consistent with the United States Supreme Court’s recent decision in Erlinger v. United
States (2024) 602 U.S. 821 (Erlinger), the court held that under the federal Constitution’s
Fifth and Sixth Amendments, “a defendant is entitled to a jury trial on all aggravating
facts, other than the bare fact of a prior conviction and its elements, that expose the
defendant to imposition of a sentence more serious than the statutorily provided
midterm.” (Wiley, supra, 17 Cal.5th at p. 1086, fn. omitted.)
Appellant appeals from the resentencing, arguing that the aggravating
circumstance findings did not authorize imposition of the upper term on count 1.
5.
DISCUSSION
I. Parties’ Arguments
A. Appellant’s Arguments
Appellant makes a variety of arguments challenging the aggravating
circumstances findings supporting the upper term imposed on count 1. Citing the text of
section 1170, subdivision (b)(2) and (3), he argues the first aggravating circumstance
(consecutive sentences could have been imposed, but were not) under California Rules of
Court, rule 4.421(a)(7)3 is predicated on an act of judicial sentencing discretion, for
which there is no exception under section 1170, subdivision (b) (section 1170(b)), not an
admission by a defendant or a finding by a jury. Moreover, appellant argues, even if this
remained an appropriate sentencing factor under the amended determinate sentencing
law, its application here is arbitrary and capricious because it resulted in a lengthier
sentence than if no concurrent sentence was imposed.
Appellant characterizes the second and third aggregating factors as a single factor
related to the nature of his prior and current convictions as involving crimes of violence
or threats of violence. Appellant maintains this factor was not established properly
because, other than the 2010 conviction under section 422, it was based on a rap sheet
rather than a certified record of conviction as required under section 1170(b)(3).
Additionally, appellant contends, his current convictions under section 422 and the prior
2010 conviction under section 422 cannot be violated without making a threat of
violence, thus an element of the current offenses (and one of the prior offenses) was used
to impose an aggravated term. Appellant argues this violates well-settled authority
holding that a circumstance that is an element of the substantive offense cannot be used
as a factor in aggravation. (See, e.g., People v. Wilks (1978) 21 Cal.3d 460, 470 [a
circumstance which is an element of the substantive offense cannot be used as a factor in
3 Further references to rules are to the California Rules of Court.
6.
aggravation]; see also rule 4.420(h) [“[a] fact that is an element of the crime on which
punishment is being imposed may not be used to impose a particular term”].)
Moreover, appellant argues, the 2010 section 422 conviction was already used to
impose the prior serious felony enhancement under section 667, subdivision (a), and
considering it again to impose an aggravated sentence is impermissible dual use of this
conviction under section 1170(b)(5).
Finally, in a footnote, appellant argues that even if this aggravating circumstance
factor could be split into a separate aggregating circumstance regarding the numerosity of
appellant’s prior convictions, under Wiley only the bare fact of a prior conviction can be
determined by the trial court. Appellant maintains a finding that prior convictions are
numerous must be submitted to a jury.
B. Attorney General’s Arguments
The Attorney General construes appellant’s brief as targeting the upper term
sentence because the court failed to obtain his personal waiver of the right to a jury trial
on the aggravating circumstances. The Attorney General maintains the second and third
aggravating circumstances (dealing with the length and nature of appellant’s criminal
record, which appellant characterizes as one factor) require factual findings outside the
scope of the prior conviction exception under section 1170(b)(3), as articulated in Wiley,
and the failure to obtain appellant’s personal jury trial waiver on those factors was
prejudicial. On this basis, the Attorney General concedes remand for resentencing is
required. In light of this concession, the Attorney General does not address appellant’s
remaining contentions, including appellant’s challenge to the first aggravating factor.
II. No Personal Waiver of Jury Trial Right at Resentencing
A. Legal Principles
As amended effective January 1, 2022, California’s determinate sentencing law
under section 1170(b) now provides as follows in relevant part:
7.
“(b) [¶] (1) When a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the middle term,
except as otherwise provided in paragraph (2).
“(2) The 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 by the
jury or by the judge in a court trial. Except where evidence supporting an
aggravating circumstance is admissible to prove or defend against the
charged offense or enhancement at trial, or it is otherwise authorized by
law, upon request of a defendant, trial on the circumstances in aggravation
alleged in the indictment or information shall be bifurcated from the trial of
charges and enhancements. The jury shall not be informed of the bfurcated
allegations until there has been a conviction of a felony offense.
“(3) Notwithstanding paragraphs (1) and (2), the court may consider
the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a
jury. This paragraph does not apply to enhancements imposed on prior
convictions.”
The federal Constitution’s Sixth Amendment provides that those accused of a
crime have the right to a trial by an impartial jury. (U.S. Const., 6th Amend.) “‘This
right, in conjunction with the [Fifth Amendment’s] Due Process Clause, requires that
each element of a crime be proved to the jury beyond a reasonable doubt.’” (Lynch,
supra, 16 Cal.5th at p. 742.) This includes any fact, beyond the fact of a prior conviction,
that increases the penalty for a crime beyond the prescribed statutory maximum.
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Thus, under California’s
determinate sentencing law, “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.… Only when
aggravating facts have been proven as the Constitution requires may the court then rely
on them to conclude, in its discretion, that those facts justify an upper term.” (Wiley,
supra, 17 Cal.5th at p. 1084.)
8.
In Wiley, our high court addressed whether certain aggravating circumstance
findings made under section 1170(b)(3) come within the scope of the jury trial right
exception for prior convictions recognized in Almendarez-Torres v. United States (1998)
523 U.S. 224 (Almendarez-Torres). Wiley explained that the exception to the federal
constitutional right to a jury trial for “‘the fact of a prior conviction’ has long been
recognized” under the United States Supreme Court’s jurisprudence. (Wiley, supra, at 17
Cal.5th at p. 1079, quoting Apprendi v. New Jersey, supra, 530 U.S. at p. 490 & citing
Almendarez-Torres, supra, at pp. 243–244.) Wiley addressed “just how broadly the
concept of ‘the fact of a prior conviction’ is to be understood and the extent of the
Almendarez-Torres exception.” (Wiley, supra, at p. 1079.) Wiley examined this question
under Erlinger, a recent United States Supreme Court decision. In Erlinger, the high
court considered a trial court’s authority to find whether a defendant’s convictions had
occurred on separate occasions. The high court described the Almendarez-Torres prior
conviction exception as narrow, and one that permitted judges to find only the fact of a
prior conviction: “Under that exception, a judge may ‘do no more, consistent with the
Sixth Amendment, than determine what crime, with what elements, the defendant was
convicted of.’” (Erlinger, supra, 602 U.S. at p. 838.) The high court observed that
determining whether offenses were committed on different occasions may be a “fact-
laden task” involving whether the offenses were committed close in time, location, and
whether they were intertwined in purpose and character. (Id. at pp. 834, 835.) Thus, in
determining whether convictions occurred on separate occasions, the high court observed
the trial court would have to “do more than identify [the defendant’s] previous
convictions and the legal elements required to sustain them,” which is “more than
Almendarez-Torres allows.” (Id. at pp. 838–839.)
Based on the principles and reasoning articulated in Erlinger, the court in Wiley
concluded that an aggravating circumstance finding that the defendant’s prior convictions
are of increasing seriousness, and that the defendant’s performance on probation had
9.
been unsatisfactory requires a jury determination as to their truth. (Wiley, supra, 17
Cal.5th at p. 1082.) Determining the increasing seriousness of a prior conviction requires
a “qualitative assessment of the offenses’ ‘time, location, character, and purpose.’” (Id.
at p. 1083, quoting Erlinger, supra, 602 U.S. at p. 840.) As to performing
unsatisfactorily on probation, that could involve consideration of evidence of misconduct
that was not previously adjudicated in a criminal trial; and it would also involve proving
the defendant was ordered to serve a term of probation and remained on probation at the
time of the new offense. (Wiley, supra, at p. 1083.) Thus, this determination involved
“circumstances clearly go[ing] beyond the fact of prior conviction and its elements.”
(Ibid.)
B. Analysis
At the resentencing hearing, the trial court found three aggravating circumstances
remained valid based on our opinion in Robinson II, and reimposed an upper term on
count 1 based on these circumstances: (1) a concurrent sentence was imposed where
consecutive sentences could have been imposed (rule 4.421(a)(7)); (2) appellant’s prior
record based on a rap sheet (rule 4.421(b)(2)); and (3) the “fact of prior or current acts of
violence or threats of violence” (rule 4.421(c)).
Understood in the context of Robinson II and the trial court’s original aggravating-
circumstance findings, the trial court’s reference to appellant’s prior record as one of the
three sentencing factors not stricken in Robinson II related to the numerosity of
appellant’s prior convictions—consistent with the trial court’s original findings. In
commenting that these sentencing factors remained, the trial court separated the
numerosity factor from a third sentencing factor regarding the nature of appellant’s prior
and current convictions as involving multiple crimes of violence and multiple threats of
10.
violence. In Robinson II, we construed this latter factor as encompassed under
rule 4.421(c), the “catchall” residual factor.4
Regarding the numerosity of appellant’s prior offenses and the nature of
appellant’s prior and current offenses, the Attorney General maintains these two factors
do not come within the prior conviction exception as articulated in Wiley because they are
outside the “bare fact” of a prior conviction. (Wiley, supra, 17 Cal.5th at p. 1086.) In the
absence of appellant’s personal waiver of his jury trial right or his admission to these
sentencing factors, the Attorney General concedes their truth was subject to a jury
determination. According to the Attorney General, the inquiry into numerosity (similar
to the increasing seriousness inquiry that was addressed in Wiley) and the inquiry into
whether prior offenses constituted violent crimes “involves something more than a
narrow factual finding that the convictions were sustained and what elements were
required to prove them.” (Id. at p. 1082.)
We accept the Attorney General’s concession under Wiley. Although the law is
still developing, the numerosity of prior convictions is a factor for which a jury trial right
under Wiley has been recognized. (See, e.g., People v. Wright (2025) 113 Cal.App.5th
832, 847 [recognizing the defendant was entitled to a trial by jury on the aggravating
factor of whether he had suffered numerous prior convictions].) As to the nature of
appellant’s prior convictions as involving crimes of violence, appellant has suffered prior
4 In doing so, Robinson II noted the fact appellant had committed multiple crimes of
violence is not an aggravating circumstance specifically identified by rule 4.421. We observed
the trial court’s comment may have simply been a further justification for its second aggravating
circumstance finding (crimes reflecting a serious danger to society), it may also have been an
explanation of the first aggravating circumstance finding, or it may have been a separate
circumstance the trial court believed reasonably related to the circumstances under which the
crime was committed such that it was appropriately considered under rule 4.421(c). As it was
not clear, we treated the court’s statement as an articulation of a sixth aggravating factor. At the
resentencing hearing, the trial court did not further clarify this aggravating-circumstance finding,
and thus we continue to construe this sentencing factor as one under rule 4.421(c). (Robinson II,
supra, F082378.)
11.
convictions that involved, as an element of the offense, causing injury to another person.
Under Wiley, whether a crime is one of violence involves factfinding regarding the
circumstances of the crime, and the nature of any injury caused. Such facts go beyond
the mere existence of the prior conviction and its elements, which puts the determination
outside the scope of the prior conviction exception. (Wiley, supra, 17 Cal.5th at
pp. 1083–1084.) We accept the Attorney General’s concession that appellant was
entitled to a jury determination on these factors.
A waiver of the right to a jury trial must be personally expressed by the defendant
in open court. (Cal. Const., art. I, § 16.) The waiver must be explicit “‘and will not be
implied from a defendant’s conduct.’” (People v. Sivongxxay (2017) 3 Cal.5th 151, 166.)
Therefore, “a ‘[d]efendant’s failure to object also would not preclude his asserting on
appeal that he was denied his constitutional right to a jury trial.’” (People v. French
(2008) 43 Cal.4th 36, 46.) Here, because appellant did not personally waive his right to a
jury trial nor did he admit these sentencing factors, his Sixth Amendment jury trial right
was violated.
We also accept the Attorney General’s concession this 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 Chapman
standard of review.” (Wiley, supra, 17 Cal.5th at p. 1087; accord, Lynch, supra, 16
Cal.5th at p. 760.) “‘[A] sentence imposed under … section 1170(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.’” (Wiley, supra, at p. 1087;
Lynch, supra, at p. 743.)
In this case, the Attorney General contends numerosity of the prior convictions is a
comparative and qualitative factor that “make it ‘“‘difficult for a reviewing court to
12.
conclude with confidence that, had the issue been submitted to the jury, the jury would
have assessed the facts in the same manner as did the trial court.’”’” (Wiley, supra, 17
Cal.5th at p. 1090, quoting Lynch, supra, 16 Cal.5th at p. 775.) The court found true
appellant suffered six prior felony convictions for purposes of section 1203,
subdivision (e)(4),5 and a certified rap sheet showed appellant had many additional prior
misdemeanor convictions. Several of appellant’s prior felony and misdemeanor
convictions occurred on the same date, suggesting several of these overlapping
convictions may have arisen out of the same occurrences. That presents a factual
uncertainty about the number and character of appellant’s prior conviction history that
may influence whether a jury would construe his prior convictions as numerous, leaving
it difficult to determine with confidence what a jury would conclude beyond a reasonable
doubt. (People v. Wright, supra, 113 Cal.App.5th at p. 848 [citing Erlinger, supra, 602
U.S. at p. 835 for the proposition that whether convictions arose on separate occasions
can require examining many facts, including temporal proximity, geographic propinquity,
and whether the purposes and character of the offenses were similar].)
As to whether appellant suffered multiple prior convictions that constitute crimes
of violence also hinges on how a jury assesses the nature of the prior convictions. For
example, at least two of appellant’s prior misdemeanor convictions are for battery or
assault offenses (§§ 243, subd. (c) [battery to emergency personnel causing injury in
1997], 273.5, subd. (a) [infliction of corporal injury on a partner in 2010]) that had as an
element causing injury to another person. A jury might conclude the character of these
prior convictions did not make them violent crimes, depending on the facts of those
offenses and whether or what type of injury was caused to a victim. (Wiley, supra, 17
Cal.5th at p. 1090 [a factor involving a qualitative or comparative determination makes
5 We do not consider either the 2010 conviction also found true for purposes of the prior
serious felony enhancement under section 667, subdivision (a), nor do we consider the 1992
conviction under section 666, which the trial court could not determine was a felony.
13.
“‘“‘it difficult for a reviewing court to conclude with confidence that, had the issue been
submitted to the jury, the jury would have assessed the facts in the same manner as did
the trial court’”’”].)6 As a result, we are constrained to agree the error is prejudicial, and
resentencing is required. The prosecution may elect to seek a jury trial on any of the
aggravating factors to the extent appellant does not personally waive his jury trial right or
admit the factors.
III. Remaining Sentencing Error Claims
Appellant makes a variety of additional arguments challenging the aggravating
circumstance findings supporting the upper term imposed on count 1. Citing the text of
section 1170(b)(2) and (3), he argues the first aggravating circumstance (consecutive
sentences could have been imposed, but were not) under rule 4.421(a)(7) is predicated on
an act of judicial sentencing discretion, not an admission by a defendant or a finding by a
jury, for which there is no exception under section 1170(b). Moreover, appellant argues,
even if it were still an appropriate sentencing factor under the current determinate
sentencing law, its application here is arbitrary and capricious because it results in a
lengthier sentence than if no concurrent sentence was imposed.
As noted, appellant characterizes the second and third aggregating factors as a
single factor related to the nature of his prior and current convictions as involving acts or
threats of violence. Appellant maintains this factor was not established properly because,
other than the 2010 conviction under section 422, it was based on a rap sheet rather than a
certified record of conviction as required under section 1170(b)(3). Additionally,
appellant contends, his current convictions under section 422 and the prior 2010
conviction under section 422 cannot be violated without making a threat of violence, thus
6 Although it does not inform our decision that resentencing is required under Wiley, we
note that since our decision in Robinson II, a panel of the First District Court of Appeal, Division
Four, has concluded the catchall residual factor under rule 4.421(c) is a violation of the
separation of powers doctrine under the California Constitution. (Lovelace v. Superior Court
(2025) 108 Cal.App.5th 1081, 1089.)
14.
an element of the current offenses (and one of the prior offenses) was improperly used to
impose an aggravated term. Appellant argues this violates well-settled authority holding
that a circumstance that is an element of the substantive offense cannot be used as a
factor in aggravation. (See People v. Wilks, supra, 21 Cal.3d at p. 470 [a circumstance
which is an element of the substantive offense cannot be used as a factor in aggravation];
see also rule 4.420(h) [“[a] fact that is an element of the crime on which punishment is
being imposed may not be used to impose a particular term”].)
Moreover, appellant argues, the 2010 conviction under section 422 was already
used to establish the prior serious felony enhancement under section 667, subdivision (a),
and considering it again to aggravate the sentence is an impermissible dual use of this
conviction under section 1170(b)(5).
Due to the need for resentencing, we do not reach these additional claims of error.
We note, however, none of these arguments were raised to the trial court at the 2025
resentencing hearing. “The forfeiture doctrine is a ‘well-established procedural principle
that, with certain exceptions, an appellate court will not consider claims of error that
could have been—but were not—raised in the trial court.’” (People v. Stowell (2003) 31
Cal.4th 1107, 1114.) Notwithstanding any forfeiture at the 2025 sentencing hearing,
however, appellant will have an opportunity to raise these claims upon remand for
resentencing so that the trial court may consider them in the first instance. We offer no
opinion as to the vitality of any of these claims.
DISPOSITION
The sentence is vacated, and the matter is remanded for a full resentencing
consistent with this opinion.
15.