Filed 7/8/26 P. v. Gordon CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B338942

Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. YA095166-01, 02)
v.

CLIVE GORDON et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los
Angeles County, Kelly M. Kelley, Judge. Reversed with
directions as to both appellants.
Lise M. Breakey, under appointment by the Court of
Appeal, for Defendant and Appellant Clive Gordon.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant Carlos Acosta.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
 Appellants Carlos Acosta and Clive Gordon were
resentenced after their sentences were vacated on direct appeal of
their judgments of conviction. Both allege the trial court abused
its discretion in reimposing the full 10 years for a firearm
enhancement found true by their jury. Gordon separately
challenges the trial court’s finding that he maintained a
leadership role in the offense and his prior adjudications had
increased in number and seriousness. We reverse as to both
appellants.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the trial record and our prior
opinion on direct appeal. On September 13, 2016, robbery
victims Joe Walker, Mercure Washington, and Ronald Taylor
were looking at Taylor’s new Mercedes convertible parked on the
street in front of Walker’s house in Los Angeles. Taylor was in
the driver’s seat with the engine running. When he got out of the
car to join Walker and Washington at the trunk of the car, he left
the engine running and the fob for the keyless ignition in the cup
holder. The car has an “ecosystem” which automatically turns
the car off when it is stopped or when the driver leaves the
vehicle. The car “sometimes . . . will just turn itself back on.”
As they were standing at the back of the car, another trio of
men, about a block away, got out of their car, a Lincoln, and
started walking towards the Mercedes. Appellants Gordon and
Acosta were part of the trio walking towards the Mercedes.
Gordon approached first. Acosta and the third man were
standing six feet back by the sidewalk. Gordon said, “Nice car.”
Taylor thanked him for the comment. Gordon then asked Taylor,
“How much was the car?” Walker jokingly answered, “A hundred
thousand dollars.” At that point Gordon said, “Empty your

2
pockets then.” Taylor looked up and saw Gordon holding a black
semiautomatic handgun. Acosta was pointing a silver
semiautomatic handgun at the three victims. Taylor gave
$140-$160 in cash to Acosta; Washington had no cash on him;
Walker quickly walked to his house without acquiescing.
All of a sudden, the Mercedes, which was off, turned itself
on. Gordon told Acosta, “Get his chain,” referring to a chain
against Washington’s neck. Gordon and the third man jumped
into the Mercedes. Acosta ran past the robbery victims and
either got into the Lincoln down the street or hopped into the
Mercedes. The robbery victims flagged down a police car and
called 911. Gordon, Acosta and the third man were later
arrested. (People v. Gordon (Mar. 9, 2022, B286809) [non pub.
opn.].)1
In 2017, a jury convicted both appellants of carjacking
(count 1), second degree robbery (count 2) and two counts of
attempted robbery (counts 3 and 4). The jury found true that
each defendant personally used a firearm within the meaning of
Penal Code2 section 12022.53, subdivision (b), and that all counts
were committed for the benefit of a criminal street gang within
the meaning of section 186.22, subdivision (b)(1)(C). The court
sentenced Acosta to a term of 25 years to life on the carjacking
count and a determinate term of 37 years and eight months on
the robbery and attempted robbery counts, including three years
and four months for the gang enhancement.

1
On our own motion, we take judicial notice of the appellate
record in People v. Gordon, supra, B286809.
2 Statutory references are to the Penal Code

3
 The court sentenced Gordon to a term of 25 years to life on
the carjacking count and a determinate term of 36 years and four
months on the remaining counts, including three years and four
months for the gang enhancement.
On August 13, 2019, we affirmed the judgments of
conviction with minor sentencing corrections and modifications.
(People v. Gordon (Aug. 13, 2019, B286809) [nonpub. opn].) Both
defendants filed petitions for review with the California Supreme
Court, which were granted and held on November 26, 2019.
On August 25, 2021, the Supreme Court directed us to
vacate our decision and reconsider the cause in light of its
decision in People v. Lemcke (2021) 11 Cal.5th 644. While both
appellants’ cases were pending on remand, Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Assembly Bill 333) went into effect
January 1, 2022. We granted appellants’ request to brief the
impact of Assembly Bill 333 on the section 186.22 gang
allegations. On March 9, 2022, we reversed the true findings on
the section 186.22 gang allegations and remanded both cases for
new trials as to those allegations. (People v. Gordon, supra,
B286809.)
The hearing on remand did not occur until May 16, 2024.
On June 2, 2022, however, the People announced they were
unable to proceed on the gang allegations. The trial court
granted appellants’ motion to dismiss those allegations and set
the matter for resentencing. By then several new ameliorative
sentencing statutes had been enacted into law. On remand, the
People and Acosta filed sentencing memoranda. Specifically,
among other things, Acosta asked the court to exercise its
discretion to dismiss the firearm allegations. Acosta argued:
“The court can now exercise its discretion to [s]trike or reduce the

4
firearm enhancement, or even to apply the enhancement to only a
portion of the uncharged crimes. Prior to January 1, 2018, the
court had no discretion to strike or reduce the firearm
enhancement in any way. People v. Tirado (2022) 12 Cal.5th 688,
addresses the ability of the Court to reduce the enhancement.”
Acosta also presented letters and favorable prison evaluations in
mitigation of punishment. Gordon made a similar argument.
The resentencing hearing went forward on May 16, 2024.
As to both defendants, the court declined to strike the firearm
enhancements, stating, “In terms of resentencing, the court is
required to take into account changes in the law since the time of
the original sentencing and [defendants] are entitled to any
benefits based on those changes in the law. [¶] One of those
changes was pursuant to Penal Code section 12022.53(h) which
allows the court the discretion to strike the gun allegation that
was found true by the jury. Although Penal Code section
12022.53(h) was not the status of the law on the date of
sentencing which was December 5th, 2017, it appears that Judge
Brandlin contemplated that forthcoming change in the law when
he was sentencing the defendants. He indicated, quote, ‘Motion
to strike the allegation pursuant to Penal Code section 1385 is
denied. The court finds it is not appropriate based on the
circumstances of this case now or in the future,’ unquote. [¶] The
court joins in Judge Brandlin’s assessment and has specifically
considered the court’s discretion but is exercising my discretion
not to dismiss the gun allegation pursuant to Penal Code section
12022.53(h). [¶] The court further considered the change in law
pursuant to Penal Code section 1385(c). [¶] With regard to Penal
Code section 1385(c) the court finds that it is not in furtherance
of justice to strike the gun enhancement in this case. The court

5
finds that striking the firearm enhancement in this matter would
endanger public safety as contemplated in Penal Code section
1385(c)(2).”
Notably the court did not address the issue of whether
reducing (as opposed to striking) the enhancement terms was
appropriate.
The trial court resentenced Acosta to 21 years in state
prison. The sentence included a three-year low term for
carjacking plus 10 years for the firearm enhancement. On the
remaining counts, the court imposed an aggregate consecutive
term of eight years, consisting of four years four months
concurrent on count 2; four years consecutive on count 3; and four
years consecutive on count 4. The court awarded additional
sentencing credit and ordered the Department of Corrections and
Rehabilitation to calculate his conduct credit. Acosta timely
appealed.
The trial court resentenced Gordon to 23 years eight
months in state prison. It imposed the upper term of nine years
plus 10 years for the firearm enhancement on the carjacking
count. On the other three counts, the court imposed an aggregate
consecutive term of four years eight months, consisting of four
years four months concurrent on count 2; eight months
consecutive on count 3; and four years consecutive on count 4. It
awarded additional sentencing credit and directed the
Department of Corrections and Rehabilitation to calculate his
conduct credit. Gordon timely appealed.
DISCUSSION
Acosta raises one issue. He contends that in exercising its
discretion not to dismiss the firearm pursuant to section
12022.53, the trial court did not appear to understand it had

6
discretion to impose lesser uncharged enhancements under
section 12022.5.
Gordon raises the same issue and another. He separately
contends that the trial court erred in imposing the upper term
sentence for carjacking based upon his prior juvenile
adjudications, the increasing seriousness and number of his prior
adjudications, and his “leadership role” in committing the
offenses, disputed factors he did not stipulate to and which were
not found true by a jury or by a court after a jury trial waiver.
I. Firearm Enhancement: Applicable Law and
Standard of Review
Section 12022.5, subdivision (a) provides that “any person
who personally uses a firearm in the commission of a felony or
attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for 3, 4, or
10 years, unless use of a firearm is an element of that offense.”
(§ 12022.5, subd. (a).) Section 12022.53, created a “tiered system
of sentencing enhancements for specified felonies involving
firearms.” (People v. Tirado, supra, 12 Cal.5th at p. 692
(Tirado).) Section 12022.53, subdivision (b) mandates imposition
of a 10-year enhancement for personal use of a firearm in the
commission of the specific felonies of which Acosta was convicted.
(See § 12022.53, subd. (b).)
Until January 1, 2018, section 12022.53, former subdivision
(h) provided: “Notwithstanding Section 1385 or any other
provision of law, the court shall not strike an allegation under
this section or a finding bringing a person within the provisions
of this section.” (§ 12022.53, former subd. (h).) Effective January
1, 2018, subdivision (h) was amended to read: “The court may, in
the interest of justice pursuant to Section 1385 and at the time of

7
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” (Id., subd. (h).) The basis for this change was
Senate Bill No. 620 (2017–2018 Reg. Sess.). (Stats. 2017, ch. 682,
§ 2.)
Subsequently, in Tirado, the California Supreme Court
held that when an accusatory pleading alleges and the jury finds
true the facts supporting a greater firearm enhancement, the
court may impose a lesser included, uncharged statutory
enhancement. (Tirado, supra, 12 Cal.5th. at pp. 697, 700.)
People v. McDavid (2024) 15 Cal.5th 1015, extended Tirado’s
reasoning, explicitly holding that a trial court may strike a
defendant’s enhancement under section 12022.53 and impose a
lesser uncharged enhancement authorized elsewhere in the Penal
Code, that is, outside of section 12022.53. (Id. at p. 1030.) For
Acosta, this meant he was eligible to be resentenced under
section 12022.5, subdivision (a)’s lower terms of three or four
years instead of the 10 years mandated by section 12022.53,
subdivision (b).
We consider a trial court’s sentencing decisions under an
abuse of discretion standard. (People v. Moseley (2004) 105
Cal.App.5th 870, 874.) A court abuses its discretion when it
makes an arbitrary or capricious decision by applying the wrong
legal standard or bases its decision on express or implied factual
findings not supported by substantial evidence. (People v.
Qualkinbush (2022) 79 Cal.App.5th 879, 887.) A ruling otherwise
within the trial court’s power will nonetheless be set aside where
it appears from the record that in issuing the ruling the court
failed to exercise the discretion vested in it by law. (Tirado,

8
supra, 12 Cal.5th at p. 694.) “Unless the record affirmatively
demonstrates otherwise, the trial court is deemed to have
considered all the relevant sentencing factors.” (People v. Parra
Martinez (2022) 78 Cal.App.5th 317, 322.) A silent record does
not demonstrate a lack of awareness of the court’s full sentencing
discretion. (People v. Knowles (2024) 105 Cal.App.5th 757, 765.)
Even if the sentencing court was unaware of its discretion,
remand is not necessary when 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.’ ” (People
v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
A. Acosta: Analysis
It appears the trial court deferred to the original trial
court’s statement that it would not “strike” the firearm “now or in
the future.” But, at the time the original trial court made that
prefatory ruling, it apparently anticipated that the new
amendments would be binary: the trial court would be authorized
to either strike or not strike enhancements. Tirado’s later third
option, that is, to reduce or modify the term of the enhancement,
did not appear to be within the original trial court’s
consideration. Given the resentencing court’s remarks that it
was inclined to go with the original trial court’s ruling, we
conclude the resentencing court did not consider the full scope of
its new discretion to choose between several alternatives: to
strike, not to strike, or to reduce the enhancement from 10 years
to three or four years. (§ 12022.53, subd. (a); People v. McDavid,
supra, 15 Cal.5th at p. 1030.)
Our conclusion is buttressed by the trial court’s reference to
section 12022.53, subdivision (h) which by its terms addresses
only the trial court’s discretion to strike (as opposed to reduce) an

9
enhancement term. We recognize a silent record does not
demonstrate a lack of awareness of the court’s full sentencing
discretion. However, the court’s reference to section 12022.53,
subdivision (h) leads us to conclude the record is not merely
silent. The court’s comments indicate to us that the trial court
simply was not open to going so far as to strike the firearm
enhancements altogether. It does not indicate to us that, had it
recognized the full scope of its discretion, the trial court would
also have been closed to a reduction of the 10-year enhancement.
(In this regard we also note that McDavid, which further
extended Tirado, was issued just 18 days before the resentencing
hearing.)
We cannot say that the record clearly indicates the trial
court would have reached the same conclusion if it had been
aware of the full scope of its discretion. The trial court adopted
and relied upon several mitigating factors when it chose a low
term sentence for carjacking, the principal count. The trial court
compared both defendants and specifically found Acosta played a
smaller part in the offenses (Gordon was the “shot caller”); had no
prior criminal record; and hurt no one during the commission of
the offenses. We find it significant that despite the court’s
findings that Acosta played a smaller part in the offenses, Gordon
had a long criminal record while Acosta had no record, and
Gordon was directing the actions of his cohorts, the ultimate
sentences imposed on each defendant differed by only two years.
Given the court’s embrace of Acosta’s mitigating circumstances,
finding they outweighed the aggravating circumstances, and had
the court known it could also reduce, not just strike, the
enhancement terms, we find it reasonably probable the court

10
would have done so. Having said that, we express no opinion on
the trial court’s ultimate decision on remand.
B. Gordon: Analysis
We do not arrive at the same conclusion for Gordon. We
are not convinced the record clearly indicates a reasonable
probability the trial court would have imposed a lesser sentence
on Gordon had it been aware of the full scope of its discretion to
reduce, rather than strike, the firearm enhancement terms. The
court determined that Gordon had a more prominent role in the
offense, calling him the “shot caller.” It also noted Gordon’s more
extensive prior criminal record. The court repeatedly contrasted
the two defendants and negatively remarked on Gordon’s prior
criminal record and his conduct during the commission of the
offenses. Indeed, it is reasonably probable to us, indeed likely,
that the trial court would have reached the same conclusion. We
therefore reject Gordon’s contention on this issue.
II. Use of Prior Juvenile Adjudications Found by the
Court to be Numerous and Increasing in Seriousness
Gordon separately contends that the trial court erred in
finding that his prior juvenile adjudications were “numerous and
of increasing seriousness” and then using that finding as a basis
to impose the upper term of nine years on the carjacking count.
Based on Supreme Court caselaw promulgated after Gordon’s
sentencing, we agree.
A. Applicable Law
Section 1170, subdivision (b) provides: “When a judgment
of imprisonment is to be imposed and the statute specifies three
possible terms, the court shall, in its sound discretion, order

11
imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (2).” (§ 1170, subd. (b)(1).)
Section 1170, subdivision (b)(2) in turn provides: “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.” (§ 1170, subd. (b)(2).)
Section 1170 subdivision (b)(3) creates an exception to this
evidentiary requirement: “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.” (§ 1170, subd.
(b)(3); People v. Lynch (2024) 16 Cal.5th 730, 748 [aggravating
facts that must go to the jury exclude prior convictions proven by
a certified record of conviction].)
In sentencing, the trial court must apply the sentencing
rules of the Judicial Council. (§ 1170, subd. (a)(3).) California
Rules of Court,3 rule 4.421(b)(2) provides as an aggravating
circumstance that “[t]he defendant’s prior convictions as an adult
or sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness.” (Rule 4.421(b)(2).)
During the pendency of Gordon’s appeal, our Supreme
Court decided People v. Wiley (2025) 17 Cal.5th 1069 (Wiley). In
Wiley, the court concluded the trial court violated defendant
Wiley’s “federal constitutional right to a jury trial by adjudicating

3
Rule references are to the California Rules of Court.

12
underlying facts related to his prior convictions and improperly
relying on its conclusion in choosing to impose an upper term
sentence.” (Id. at p. 1076.)
The facts in Wiley materially mirror Gordon’s. The trial
court sentenced Wiley to an upper term sentence for making
criminal threats. “To justify the upper term, the trial court cited
Wiley’s ‘prior convictions, [his] poor performance on probation,
and the fact that the charges are becoming more serious.’ ”
(Wiley, supra, 17 Cal.5th at p. 1077.) The Court of Appeal
affirmed, holding that the trial judge was permitted to make
those determinations without a jury determination because they
related to Wiley’s recidivism. (Ibid.)
In reversing the judgment, the court considered Erlinger v.
United States (2024) 602 U.S. 821, and concluded that the high
court’s “analysis of the federal Constitution’s jury trial right
requires that a jury determine whether the particular details of a
defendant’s criminal history establish an unsatisfactory
probation performance or demonstrate convictions of increasing
seriousness, before a trial court can rely on those facts to justify
an upper term sentence.” (Wiley, supra, 17 Cal.5th at p. 1078.)
In so holding, the Wiley court disapproved prior caselaw which
permitted trial courts to rely not only on the fact that a defendant
had suffered prior convictions, but also on the particular details
of recidivism-based aggravating factors. (Id. at p. 1086.) “In
sum, 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.” (Ibid., fn.
omitted.)

13
 B. Standard of Review
A trial court’s sentencing decisions are reviewed for abuse
of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371.)
C. Analysis of Substantive Error
In resentencing Gordon, the trial court admitted into
evidence as Court’s Exhibit 1 Gordon’s certified juvenile rap sheet
and then considered the progression of his prior juvenile
adjudications as aggravating factors for sentencing without
submitting the issues to a jury. The certified rap sheet proved up
the following criminal history: 1) sustained petition for graffiti
vandalism and minor in possession of spray paint, August 13,
2014; 2) sustained petition for petty theft and resisting a peace
officer, July 20, 2016; 3) sustained petition for possessing a
concealable firearm and resisting a peace officer, January 1,
2016; 4) sustained petition for robbery, assault, carrying a
concealed dirk or dagger, and attempted robbery, October 6,
2014; 5) instant crimes committed on September 13, 2016, while
on juvenile probation after release from Camp Community
Placement sentence; 6) arrest on October 21, 2016, for carrying a
switchblade knife, arraignment pending.
The trial court asked Gordon if he objected to the admission
of the certified rap sheet. Gordon’s counsel responded: “No
objection.”
The trial court found Gordon was the “shot-caller on this
particular mission into opposing gang turf,” “was a more active
participant in the robbery,” and “appeared to take a leadership
role in this robbery.” Gordon was the only one of the three
robbers to speak and told the victims to “empty your pockets.”
Gordon then instructed Acosta to get Taylor’s money and

14
Washington’s chain. The trial court also found that Gordon was
in fact on juvenile probation, having just been released from his
camp community placement sentence.” The trial court found:
“Further, as the court just indicated, Mr. Gordon has a
substantial prior criminal record, while Mr. Acosta had no prior
criminal record, as demonstrated in what has now been received
as Court’s Exhibit 1 which is a certified record of conviction. [¶]
Mr. [Gordon] sustained a juvenile petition for Penal Code section
594 on April 26th, 2013. This was for vandalism. Within two
weeks of that first arrest, on May 5th of 2013 Mr. Gordon was
arrested for Penal Code section 148(a)(1), resisting, obstructing or
delaying a peace officer; that crime is more serious than his first
arrest for vandalism. And then Mr. Gordon subsequently
sustained an arrest and sustained juvenile petition for Penal
Code section 664-211, attempted robbery, on October 6th of 2014.
[¶] He was in fact still on juvenile probation at the time that he
picked up this case, having been released from his camp
community placement sentence. [¶] The court finds that pursuant
to Penal Code section 1170(b)(3), as it relates to Mr. Gordon,
although factors in aggravation were not proved and found true
beyond a reasonable doubt by a jury, based on the certified record
of defendant’s prior convictions the court is taking that into
account in terms of Mr. Gordon’s sentence. [¶] The court finds
that based on this certified record of conviction, again marked as
Court’s Exhibit 1, that the factor in aggravation pursuant to
[Rule] 4.421(b)(2) has been proved beyond a reasonable doubt,
that being that the defendant’s prior convictions as an adult or
sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness. The court finds that
based on Mr. Gordon’s young age at the time of this crime, that

15
his prior criminal history is substantial, and also that the
sustained juvenile petitions are of increasing seriousness leading
up to this very serious crime that he committed shortly after
becoming an adult. [¶] Based on that factor in aggravation being
found true by the court beyond a reasonable doubt, the court’s
tentative is to impose high-term as to Mr. Gordon for the
principal count as discussed with the attorneys just prior to going
on the record.”
Wiley, decided while this appeal was pending, directly
controls the outcome of this appeal. We conclude, based on the
trial court’s comments, that it engaged in factfinding deemed
unconstitutional in Wiley as to Gordon’s leadership role in the
offenses, the number of adjudications, and the increasing
seriousness of Gordon’s prior juvenile adjudications.
Here we pause to note the People contend Gordon forfeited
his challenge to the factors in aggravation because he failed to
object to the court’s admission into evidence of the certified rap
sheet and failed to object to the court’s reliance upon the juvenile
adjudications as aggravating factors warranting a high term.
(See People v. Scott (1994) 9 Cal.4th 331, 351–354.) We disagree.
Although Gordon’s counsel told the court he had no objection to
the admission of Gordon’s juvenile rap sheet, he made absolutely
clear in his argument that he was insisting that a jury make any
factual determination about those prior adjudications. At
resentencing, Gordon’s counsel argued that “pursuant to changes
in the law requiring that any high-term that is imposed . . . there
must be a finding that the aggravating circumstances or factors
be found true by a jury or that defendant stipulated to such
findings, because . . . a jury did not find those aggravating factors
or circumstances and because Mr. Gordon did not stipulate to

16
those aggravating circumstances he is requesting that he be
sentenced to the low-term for all four counts.” We conclude
Gordon did not forfeit his contention that the trial court engaged
in and relied on improper factfinding to impose the upper term
nine-year sentence.
D. Analysis of Prejudice
“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[4]
standard of review.” (Wiley, supra, 17 Cal.5th at p. 1087.)
“Under that standard, ‘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.’ ” (Ibid.)
We turn again to our Supreme Court’s analysis in Wiley.
There, as here, a certified rap sheet listing all of Wiley’s prior
convictions was admitted into evidence. (Wiley, supra, 17 Cal.5th
at p. 1087.) The People argued the progression of Wiley’s offenses
over time from misdemeanors to felonies demonstrated a clear
trend from less serious offenses towards more serious ones.
Acknowledging that could be the case, the court otherwise noted
that “a rational juror may not have been persuaded beyond a
reasonable doubt by that fact alone. Given that Wiley’s criminal
record began as a young adult and spanned two decades, we

4 Chapman v. California (1967) 386 U.S. 18.

17
cannot discount the possibility that, in making the determination
as to increasing seriousness, a rational juror could have either
placed greater emphasis on his felony offenses, or on his more
recent criminal history.” (Id. at p. 1089.)
Here, Gordon’s juvenile adjudications included graffiti,
minor in possession of spray paint, vandalism, petty theft,
resisting a peace officer, possession of a concealed weapon, and
attempted robbery. Perhaps that evidence may have been
sufficient to support a finding of increasing seriousness. But
Wiley tells us “that is not the proper inquiry when assessing
prejudice under Chapman.” (Wiley, supra, 17 Cal.5th. at
p. 1090.) “Instead, we must ask ‘whether any rational fact finder
could have come to the opposite conclusion.’ A rational juror
could have reached the opposite conclusion here based on the
totality of Wiley’s criminal conduct and the applicable sentences
for those transgressions. Accordingly, we cannot conclude beyond
a reasonable doubt that a properly instructed jury would have
found Wiley’s criminal convictions were of increasing
seriousness.” (Ibid.)
We reach a similar conclusion here. We are unable to
conclude beyond a reasonable doubt that a properly-instructed
jury would have found Gordon’s juvenile adjudications were of
increasing seriousness. A rational juror might altogether
discount several of his earliest adjudications for vandalism,
graffiti, possession of spray paint, and resisting a peace officer
when it comes to assessing the numerosity and progression of
Gordon’s “criminality.” The attempted robbery is similar to the
current convictions. Whether it is more or less serious or the
same level of seriousness may depend on the jurors’ comparisons
of the facts involved in each offense. A juror might deem the

18
carjacking offense a less serious offense of opportunity given the
spontaneous startup of the Mercedes. As the Wiley court held,
“determination [of increasing seriousness] is a comparative and
qualitative one. These realities make 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.’ ” ’ ” (Wiley,
supra, 17 Cal.5th at p. 1090.)
Similarly, the trial court’s finding that Gordon was a
“leader” in orchestrating the offense because he gave orders to his
robber companions is not cut and dried. In a contested jury trial
on this factor, Gordon may have presented live testimony that
may have affected the jury’s determination. (See Wiley, supra,
17 Cal.5th at p. 1091.) That he did not do so during the trial on
the substantive charges does not mean that such evidence was
not available. Indeed, in all likelihood, the trial court reasonably
would have ruled it inadmissible as the fact of “leadership” was
not relevant to the underlying charges and Wiley had not yet
been decided.
Finally, Gordon argues on appeal that because Welfare and
Institutions Code section 203 states that “[a]n order adjudging a
minor to be a ward of the juvenile court shall not be deemed a
conviction of a crime for any purpose,” prior juvenile
adjudications can never be used in any way as aggravating
factors to justify imposition of an upper term sentence. In light of
our disposition, this argument is moot. Further the issue was
neither raised nor briefed by Gordon below, so we do not have the
benefit of the trial court’s consideration and analysis of the issue
and any further evidence that may be presented on remand.

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 DISPOSITION
The judgments are reversed and remanded to the trial
court with directions to convene resentencing hearings in
accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.

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