Filed 9/4/26 P. v. Heath CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085778
v. (Super.Ct.No. INF2301459)
DOMINIC ALEXANDER HEATH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles G. Rogers, Judge.
(Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed with directions.
Laura Vavakin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Christopher P. Beesley and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Dominic Alexander Heath was involved in an argument
with his girlfriend. He possessed a shotgun loaded with ammunition, which he was
prohibited from possessing as a convicted felon. He was found guilty of numerous
offenses, including illegally possessing a firearm and ammunition. On appeal, defendant
contends the trial court improperly imposed the upper term on his prohibited possession
of a firearm conviction based on aggravated factors not found true by the jury or court,
and not pled in the information, as required by Penal Code section 1170, subdivision (b).1
We affirm, but will order a new abstract of judgment to be prepared reflecting the upper
term sentence on count 2.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged by the Riverside County District Attorney’s Office with
making criminal threats (§ 422; count 1); being a felon in possession of a firearm
(§ 29800, subd. (a)(1); count 2); illegal possession of ammunition (§ 30305, subd. (a)(1);
count 3); and violation of a criminal protective order (§ 166, subd. (c)(1)). It was further
alleged as to count 1, that he personally used a firearm within the meaning of section
12022.5, subdivision (a), and as to count 2 that he was armed with a deadly weapon
within the meaning of section 667, subdivision (e)(2)(C)(iii). It was also alleged that he
had suffered two prior serious and violent felony convictions (§§ 667, subds. (a), (c) &
(e)(1); 1170.12, subd. (c)(1)). It was alleged as to aggravating factors that defendant was
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
armed with and used a weapon during the commission of the offense (Cal. Rules of
Court, rule 4.421(a)(2)) and had served a prior term in prison or county jail in 2007 (Cal.
Rules of Court, rule 4.421(b)(3)).
Trial on the prior convictions and aggravating factors was bifurcated, and
defendant waived his right to a jury trial on those issues. The jury found defendant not
guilty of count 1, making criminal threats. It found defendant guilty of the remaining
counts 2, 3, and 4. It also found true the allegation for count 2 that defendant was armed
with a firearm during the commission of the crime.
After a court trial, the trial court found the prior convictions true. The People
dismissed the aggravating factor that defendant was armed with and used a weapon
during the commission of the offense (Cal. Rules of Court, rule 4.421(a)(2)), and the
court found true the one aggravating factor that defendant had served a prior term in
prison (Cal. Rules of Court, rule 4.421(b)(3)). At sentencing, the trial court struck some
of the prior convictions and found true the aggravating factor that defendant could have
been sentenced to consecutive sentences but it imposed concurrent sentences within the
meaning of California Rules of Court rule 4.421(a)(7). Defendant was sentenced to the
upper term of six years in state prison.
B. FACTUAL HISTORY
1. PEOPLE’S CASE-IN-CHIEF
In August 2023, Jane Doe and defendant lived together in a one-bedroom
apartment in Desert Hot Springs. They had been romantically involved for several years.
She was pregnant with defendant’s child.
3
On August 9, 2023, Doe and defendant got into an argument about him texting her
cousin. They were both sitting on the couch in Doe’s apartment. Defendant became
angry with her and denied being with her cousin. He was holding a shotgun that he had
brought into the apartment a few days prior to the incident. He threatened to kill Doe, the
baby, and himself. While he threatened her, he pointed the shotgun at her. Doe told
defendant she was going to call the police, so defendant left the apartment. Doe believed
that defendant was going to kill her.
Doe called 911 and asked the police to come to her apartment and retrieve the
shotgun that defendant had left at the apartment. Doe explained they had been in an
argument and defendant threatened to shoot up the apartment. He ran away and left the
shotgun because he was a “felon.” The shotgun was sitting next to the front door. Doe
also stated defendant had previously hit her on the head causing her to have a knot on her
head.
Doe stated at trial that she and defendant had been involved in prior domestic
violence incidents. Just prior to the current incident, Doe claimed that she and defendant
got into an argument in her apartment. He headbutted her, causing her to be unable to
hear out of one ear. She never called the police about this incident. There was another
incident in which defendant and Doe argued about him cheating on her. He got angry,
threatened to kill himself and her, and ran his car through a gate at a Taco Bell. She was
rendered unconscious. She claimed she was pregnant at the time and lost the baby.
Defendant was arrested and spent over one year in jail before the case was eventually
dropped. She stayed with defendant after the incident because she loved him.
4
After the incident involving the shotgun, defendant contacted her by phone several
times and came to her apartment despite there being a restraining order keeping him from
contacting her. On January 4, 2024, she spoke with an investigator who was working on
defendant’s case. She told the investigator that defendant never pointed the gun at her
but insisted that defendant had told her to tell this to the investigator. It was not true and
she only said it because she was afraid of defendant.2
Desert Hot Springs Police Officer Johnny Acosta responded to the 911 call from
Doe. He arrived at the apartment at approximately 5:00 p.m. on August 9, 2023. The
shotgun was by the front door. There was also a pair of orange gloves and an unspent
shell casing near the shotgun. There were four casings in the shotgun that Officer Acosta
removed.
Doe spoke with Officer Acosta when he arrived at her apartment; he was wearing
a body camera. She told him that she and defendant got into an argument; defendant said
he would kill her, their unborn baby, and himself. He retrieved a shotgun while she was
in the bathroom. When she came out of the bathroom, he was wearing gloves and
holding the shotgun. He was “clicking it back,” and he threw shells on the ground. He
then said he was not going back to jail, threw the shotgun in the corner, and left the
apartment. At trial, she stated that the entire time that defendant had the shotgun he was
on the couch. Officer Acosta understood from Doe’s statement that defendant did not
have the shotgun while they were sitting on the couch.
2 Doe had a prior domestic violence misdemeanor conviction.
5
Defendant was interviewed on August 9, 2023, at approximately 9:00 p.m. at the
Desert Hot Springs Police Station. Defendant denied that he held the shotgun in the
living room of Doe’s apartment that day. His fingerprints may be on the shotgun because
he had previously touched the shotgun when cleaning the apartment. He denied that he
owned the shotgun. He did not live in Doe’s apartment. He also denied he loaded
ammunition into the shotgun.
When defendant was arrested, he did not possess any weapons and was
cooperative. The shotgun was in working order and could be fired. A criminal protective
order was issued on November 2, 2023, keeping defendant away from Doe.
2. DEFENSE
Gary Adams was an investigator working on defendant’s case. He interviewed
Doe on January 4, 2024, over the phone. Doe told Adams that she had a mental disorder
which made it difficult to recall what had happened on August 9, 2023. She denied that
defendant ever pointed the shotgun at her. She also denied that defendant threatened her.
No one told her to change her story. She claimed she bought the shotgun to protect
herself after a neighbor was killed.
Ashley Casey had known defendant for over three years; he was the father of her
son. The first time she met Doe, they got into a physical fight because Casey was
pregnant with defendant’s baby. Casey did not think that Doe was a very honest person.
Preliminary hearing testimony from Doe’s father with regards to the Taco Bell
incident was presented. Doe told her father that she was intoxicated during the incident,
and she grabbed the wheel of the car, causing it to crash into the gate.
6
Defendant testified on his own behalf. In August 2023, he did not have a stable
home, so he stayed with his grandmother, stepfather, and Doe. On August 9, 2023, he
and Doe got into an argument because she accused him of cheating on her by sleeping
with her cousin. The gloves found in the apartment were his that he used because he
worked as a mover. Defendant obtained the shotgun from his uncle because he wanted it
for protection for Doe since he worked a lot. He kept it by the front door or in the closet
at Doe’s apartment. He knew he was not allowed to possess a firearm because he was a
convicted felon. He knew that it was loaded with ammunition and claimed he taught Doe
how to use it.
While he and Doe were arguing, he received a call from a neighbor asking
defendant to drive him to get food. Defendant left the apartment. When defendant
brought his neighbor back, he decided he did not want to go back into the apartment and
went to his grandmother’s house. He did not know that Doe was accusing him of
threatening her while holding the shotgun until the police arrested him. He did not touch
the shotgun or shells on August 9, 2023.
As for the incident at the Taco Bell, he and Doe got into an argument about him
sleeping with another woman. Doe threatened to run out in the street and kill herself.
She got mad and ripped off the rearview mirror in the car. Defendant started driving and
Doe told him, “If I can’t have you, nobody can.” She grabbed the steering wheel, and
they crashed into a wall. He had never headbutted Doe.
7
Defendant admitted that there was a no-contact order issued in November 2023
and that he contacted Doe in violation of that order. Defendant admitted he had two prior
felony convictions and was prohibited from possessing a firearm.
DISCUSSION
A. UPPER TERM SENTENCE
Defendant contends the trial court erred by imposing the upper term sentence on
his conviction of being a felon in possession of a firearm because it relied on aggravating
factors not properly pled or proven beyond a reasonable doubt by a jury or court.
Defendant claims the error cannot be proven harmless beyond a reasonable doubt even
though there was one properly pled and proven aggravating factor, his prior conviction,
as the trial court relied on other improperly pled and proven factors in sentencing him to
the upper term. Defendant requests that the matter be remanded for resentencing and the
trial court instructed to only rely on those properly established aggravating factors at
resentencing.
1. ADDITIONAL FACTUAL HISTORY
The People filed a sentencing brief. They noted the single aggravating factor
pursuant to California Rules of Court, rule 4.421(b)(3), that defendant had served a prior
prison term. The People argued there were no mitigating factors related to the crime. As
for factors relating to defendant in mitigation, the probation report provided defendant
experienced childhood trauma that factored into the commission of the crime and that the
crime was connected to his childhood trauma (Cal. Rules of Court, rule 4.423 (b)(3),
8
(b)(4)). The People argued that the trial court should not strike the prior convictions.
The upper term was required based upon the aggravating factor being found true.
The probation report recommended, if the prior strikes applied, that defendant be
sentenced to 25 years to life on count 2. If the trial court decided to strike the prior
convictions, the midterm of two years should be imposed based on the aggravating and
mitigating factors.
The court trial on the aggravating factors and prior convictions was held together.
The People dismissed the aggravating factor that defendant was armed with a shotgun
within the meaning of California Rules of Court, rule 4.421(a)(2). The People presented
certified records for a conviction suffered by defendant in 2007 for attempted voluntary
manslaughter. The trial court found the prior conviction true. The People also presented
records that defendant suffered an assault with a deadly weapon charge as a juvenile.
The trial court found this prior conviction true.
The People then addressed the aggravating factor that defendant had served a term
in state prison within the meaning of California Rules of Court, rule 4.421(b)(3). As
proof, the People presented certified copies of the conviction of attempted voluntary
manslaughter. The trial court found the aggravating factor true.
At sentencing on February 7, 2025, the trial court first noted that it had read the
probation report and the People’s sentencing brief. Defendant at this hearing pleaded
guilty to another misdemeanor case suffered while in custody.
9
The trial court noted it had to consider whether to strike the prior convictions
based on defendant’s Romero3 motion, and if it did, defendant would be sentenced under
the determinate sentencing law. The trial court would have to consider whether to run the
sentences on the multiple counts consecutive or concurrent. It also had to consider
whether to stay the convictions pursuant to section 654. It dismissed the two prior strike
allegations pursuant to section 667, subdivision (a), and one of the prior strike allegations
under sections 667, subdivision (e)(2)(C)(iii), that defendant suffered as a juvenile
pursuant to Romero based on the age of the prior case, defendant was a juvenile when the
prior was committed, and the circumstances and nature of the prior conviction.
The trial court chose not to strike the 2007 prior conviction based on the use of the
gun in the crime, and even though it was over five years old, defendant was in prison for
15 years on the offense. In declining to strike the 2007 prior, the trial court looked at
defendant’s background and prospects. Based on the strike, probation could not be
granted.
The trial court chose count 2 as the principal term. The People requested the
upper term. Defendant requested the lower term based on the circumstance in mitigation
that defendant had childhood trauma. Further, defendant had good prospects of working
if released from prison.
The court noted that it must impose the midterm sentence unless aggravating
factors were admitted or found true by the jury. It stated, “Also, the amendments to
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
10
1170(b)(6) urge the Court to go to the lower term when there are certain specified factors
which the Court finds to be contributing to the offense.” Further, the aggravating factors
must outweigh the mitigating factors, and there must be a consideration of public safety.
The trial court stated, “So there is a Rule of Court that defines aggravating factors.
It’s 4.421(a)(7), which allows the Court to consider as an aggravating factor the fact that
the defendant was convicted of other crimes for which a consecutive sentence could
conceivably be imposed but which is not being imposed.” The trial court felt that the law
allowed it to impose consecutive sentences on counts 3 and 4 and there was no section
654 problem. It found, “”I think that under Rule 4.421(a)(7) and the other circumstances
I’ve described, the upper term is appropriate. I choose the upper term of three years for
Count 2 and the strike is remaining in place, so that term is doubled for a total term of six
years.” The trial court ran counts 3 and 4 concurrently to each other and count 2.
2. AGGRAVATING FACTORS RELIED ON BY THE TRIAL COURT
Defendant contends remand for resentencing is necessary because the trial court
relied on aggravating factors not found true by a jury in sentencing him to the upper term.
Defendant claims the trial court relied on three aggravating factors, only one of which,
the prior conviction aggravating factor (Cal. Rules of Court, rule 4.421(b)(3)), was
properly pled and proven. It “presumably” improperly relied on California Rules of
Court, rule 4.421(b)(2), that his prior convictions were increasing in seriousness, and that
the trial court could have imposed consecutive sentences under California Rules of Court
rule 4.421(a)(7).
11
On “January 1, 2022, the Legislature ... amended section 1170 to provide that the
trial court ‘shall,’ in its discretion impose a sentence ‘not to exceed the middle term’
[citation] except in the following circumstance: ‘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’ 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 by the jury or by the judge in a court trial.’ [Citations.]
Notwithstanding these provisions, 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.’ ” (People v. Lynch (2024) 16 Cal.5th 730, 748
(Lynch), fn. omitted.)
The California Supreme Court recently decided People v. Wiley (2025) 17 Cal.5th
1069 (Wiley), in which it found that aggravating factors must be found by a jury,
including the increasing seriousness of prior convictions and unsatisfactory performance
on probation, to be true beyond a reasonable doubt in order to support the imposition of
the upper term. (Id. at pp. 1082, 1084-1085.) In making its decision, it noted that the
United States Supreme Court in Erlinger v. United States (2024) 602 U.S. 821, held that
“ ‘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).’ ” (Wiley, at pp. 1080-1081, citing
Erlinger, at p. 834.)
12
The Wiley court set forth the procedure for finding the aggravating factors as
follows, “Defendants may assert the right to a jury trial, may waive jury in favor of a
court trial, or may waive trial altogether. Subject to the standard rules of evidence both
parties may stipulate to the admission of probation reports or other evidence bearing on a
defendant’s social and educational history, as well as other information relevant to
sentencing, including criminal history. The burden is on the People to prove beyond a
reasonable doubt the facts relied on to justify an upper term sentence. If those facts are
properly proven, the court may take them into account and exercise its discretion under
section 1170(b) to determine what sentence to impose, keeping in mind the statutory
limits on upward departures from the midterm and the requirement for stating its reasons
on the record.” (Wiley, supra, 17 Cal.5th at p. 1086.)
The trial court imposed the upper term in this case stating, “I think that under Rule
4.421(a)(7) and the other circumstances I’ve described, the upper term is appropriate.”
The trial court relied on two aggravating factors in reaching its decision on the upper
term. “[T]he facts supporting every aggravating circumstance upon which the trial court
relies to ‘justify’ imposition of the upper term must be properly proven as the statute
requires.” (Lynch, supra, 16 Cal.5th at p. 757.) Defendant does not dispute that the trial
court properly relied on the aggravating factor that defendant had a prior conviction (Cal.
Rules of Court, rule 4.421(b)(3)). It remains whether other aggravating factors relied on
by the trial court were proper aggravating factors considered in imposing the upper term.
Defendant complains the trial court relied on the aggravating factor that
defendant’s crimes were increasing in seriousness “presumably” relying on California
13
Rules of Court rule 4.421(b)(2). However, defendant does not provide a citation to the
record supporting that the trial court relied on this factor. The trial court reviewed
defendant’s criminal history in determining whether to grant defendant’s Romero motion.
Still, in choosing whether to impose the upper term, it never referred to the aggravating
factor in California Rules of Court rule 4.421(b)(2). The record does not support that the
trial court relied on this aggravating factor in imposing the upper term.
The trial court specifically relied on the aggravating factor that defendant could
have been sentenced to consecutive sentences but instead was sentenced to concurrent
sentences under California Rules of Court, rule 4.421(a)(7). Defendant contends this
factor was not properly proven and found true beyond a reasonable doubt.
California Rules of Court, rule 4.421(a)(7) provides, “The defendant was
convicted of other crimes for which consecutive sentences could have been imposed but
for which concurrent sentences are being imposed.” We have not found any cases
discussing whether such factor must be found true by a jury beyond a reasonable doubt.
It is inconceivable how this factor could be considered by a jury in that it could only be
determined at the time of sentencing, which occurs after the jury has been discharged. It
is not clear that a determination by a jury beyond a reasonable doubt applies to this
factor, but we also note that “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).” (Erlinger v. United
States, supra, 602 U.S. at p. 834; Wiley, supra, 17 Cal.5th at pp. 1080-1081.) We need
not decide this issue, as even if the factor should have been found true beyond a
14
reasonable doubt by the jury,4 the factor would have been found true beyond a reasonable
doubt.
“ ‘[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.’ [Citations.] Lack of a jury trial is not
harmless under Chapman [v. California (1967) 386 U.S. 18] if ‘the record contains
evidence that could rationally lead to a contrary finding’ with respect to the aggravating
fact at issue.” (Wiley, supra, 17 Cal.5th at p. 1087.)
We conclude beyond a reasonable doubt that the jury would have found true the
aggravating factor that defendant could have been sentenced to consecutive sentences,
but concurrent sentences were imposed. The trial court determined that it could impose
consecutive sentences on counts 3 and 4, but the trial court decided to impose a
concurrent sentence. There was no dispute that the trial court could impose consecutive
4 Defendant waived his right to a jury trial on the aggravating factors. The
aggravating factor under California Rules of Court, rule 4.421(a)(7) was not alleged in
the information at the time defendant waived his right to a jury trial. We address whether
this violated defendant’s due process rights, post, but for purposes of prejudice, we will
consider whether a jury would have found the aggravating factor true beyond a
reasonable doubt without deciding whether such waiver applied to aggravating factors
not alleged in the information.
15
sentences. The jury would have necessarily found the aggravating factor under
California Rules of Court, rule 4.421(a)(7) to be true in this case.5
Defendant makes no argument that the two aggravating factors did not outweigh
the mitigating factors. He only claims that a single aggravating factor would not have
justified the upper term, and that the trial court relied on an improper aggravating factor,
which we have found the trial court only relied on the two aggravating factors that
properly support the upper term sentence on count 2. This court finds the trial court
properly relied on two aggravating factors in imposing the upper term.
3. AGGRAVATING FACTORS IN THE ACCUSATORY PLEADING
This court must still consider defendant’s argument that the aggravating factor of
California Rules of Court rule 4.421(a)(7) was not properly pled in the information in
violation of his due process rights. He claims that the Fifth, Sixth, and Fourteenth
Amendments, and California law, require that aggravating factors under section 1170
must be pled in the information.
In In re Varnell (2003) 30 Cal.4th 1132, 1141-1142, the California Supreme Court
acknowledged that pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, 490, “any
fact that increases the penalty for a crime beyond the statutory maximum prescribed for
5 At oral argument, defendant’s counsel argued that this aggravating factor could
be tried to a jury by having the jury determine if the defendant was convicted of multiple
counts, whether consecutive sentences could be imposed on those counts and the trial
court could give an indicated sentence that it intends to impose concurrent sentences.
Counsel insisted that a jury could conceivably find the aggravating factor not true. We
do not determine whether such process is appropriate, but nonetheless, it is inconceivable
under the facts of this case that the jury would have found that the aggravating factor
under California Rules of Court, rule 4.421(a)(7) was not true.
16
that crime must be submitted to a jury and proved beyond a reasonable doubt.”
Nonetheless, the Varnell court found there is no due process right to notice in the
accusatory pleading with respect to a sentencing factor. It provided that “A ‘sentencing
factor’ is ‘a circumstance, which may be either aggravating or mitigating in character,
that supports a specific sentence within the range authorized by the jury’s finding that the
defendant is guilty of a particular offense.’ ” (Varnell, at p. 1135 & fn. 3.)
In People v. Pantaleon (2023) 89 Cal.App.5th 932 (Pantaleon), disapproved of on
other grounds in Wiley, supra, 17 Cal.5th at pp. 1085-1086,6 the appellate court rejected a
similar argument raised by defendant in this case that due process requires courts to
imply a pleading requirement for aggravating sentencing factors. (Pantaleon, at pp. 940-
941.) The court first rejected that the language of section 1170, subdivision (b)(2),
required aggravating factors be pled in the information. It stated, “Defendant argues
section 1170, subdivision (b)(2)’s reference to ‘circumstances in aggravation alleged in
the indictment or information’ indicates the Legislature ‘expects’ aggravating factors ‘to
be pled and proven consistent with the requirements of a traditional enhancement.’ In
relevant part, this provision states, ‘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,
6 The court in Wiley disapproved of Pantaleon to the extent it was inconsistent
with the high court’s holding in Lynch that only the fact of a prior conviction does not
require a jury finding beyond a reasonable doubt. Other related matters such as success
on probation or numerous and increasing seriousness of the crimes, must be found true
beyond a reasonable doubt which Pantaleon held otherwise. (Wiley, supra, 17 Cal.5th at
pp. 1085-1086.)
17
trial on the circumstances in aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements.’ [Citation.] The statute requires
bifurcation of trial on certain circumstances in aggravation that are alleged in an
indictment or information but does not itself require that any circumstances in
aggravation be alleged in an indictment or information. ‘ “ ‘[W]hen a pleading and proof
requirement is intended, the Legislature knows how to specify the requirement.’ ” ’
[Citation.] Here, it did not do so. Defendant’s assertion that his sentencing violated a
statutory pleading requirement is without merit.” (Pantaleon, at p. 940.)
The Pantaleon court further noted, “imbedded in defendant’s statutory claim is an
argument that he has a due process right to fair notice that requires us to imply a pleading
requirement.” (Pantaleon, supra, 89 Cal.App.5th at p. 940.) It concluded, “defendant's
constitutional theory of error is foreclosed by binding authority. In In re Varnell (2003)
30 Cal.4th 1132 ..., our Supreme Court held there is no due process right to notice in the
accusatory pleading with respect to sentencing factors. [Citation.] ‘A “sentencing
factor” is “a circumstance, which may be either aggravating or mitigating in character,
that supports a specific sentence within the range authorized by the jury’s finding that the
defendant is guilty of a particular offense.” ’ ” (Id. at p. 941.)7
Further, in Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, the court
addressed the defendant’s argument that the aggravating factors found true against him at
7 Defendant, in his reply brief, criticizes Pantaleon for failing to consider the
constitutional implications of pleading aggravating factors in the information. This is not
supported by the case.
18
trial must be set aside because they were not supported by the evidence presented at the
preliminary hearing. (Id. at p. 92.) It found “Unlike penalty provisions and
enhancements, the finding of an aggravating factor by a jury does not require or prescribe
an added penalty; it merely authorizes the sentencing court to impose the upper term.”
(Id. at p. 95.) “ ‘[N]either the Legislature nor the courts have ever deemed aggravating
facts used to impose the upper term as being equivalent to statutory sentencing
“enhancements” ... that must be alleged in the accusatory pleading and proved at the
preliminary hearing.’ ” (Id. at p. 93, fn. omitted.)
In Lynch, supra, 16 Cal.5th 730, the court declined to address the issue of pleading
aggravating factors in the information, finding, “Because Lynch was tried and sentenced
before section 1170(b)’s latest amendment, this case does not directly present issues of
pleading and notice. Accordingly, it is not necessary for us to decide exactly what the
statute and the federal Constitution demand in this context.” (Lynch, at p. 769.)
Until the California Supreme Court decides the issue, we agree with the reasoning
in Pantaleon and will not impose a requirement that is not included in the statutory
language of section 1170 that aggravating factors be pled in the accusatory pleading. The
trial court could properly rely on the aggravating factor in California Rules of Court rule
4.421(a)(7).
B. ABSTRACT OF JUDGMENT
Defendant contends, and the People agree, that the abstract of judgment should be
amended to reflect the proper restitution fine pursuant to section 1202.4, subdivision (b).
The parties also agree that the abstract of judgment should be modified to reflect that the
19
upper term was imposed on count 2 rather than the middle term as stated in the abstract
of judgment. Based on a review of the record, modifying the abstract of judgment is not
appropriate as to the restitution fine. We will direct the trial court to prepare a new
abstract of judgment for the sentence on count 2.
Defendant contends the trial court imposed and stayed a $300 restitution fine
under section 1202.4, subdivision (b), finding he did not have an ability to pay, but the
abstract of judgment reflects that the fine was imposed. The People agree that the
abstract of judgment does not accurately reflect the trial court’s decision to stay the
restitution fine.
Based on a reading of the reporter’s transcript, it does appear that the trial court
stayed the restitution fine under section 1202.4, subdivision (b), based on defendant’s
inability to pay. The trial court stated, “I impose a minimum restitution fine of $300. It
could go up to $10,000. I’m not doing that. I am doing 300. I do this in part to aid in his
rehabilitation so that if he does have a job while he’s in corrections, he gets to keep part
of the money from that. Moreover, because of the collection of such fines is up in the air
before the Supreme Court, People versus Kopp, I stay collection of the $300 restitution
fine pending further order of the court.” It then addressed the assessments, “I find he has
no ability to pay that. I’m not going to order those. I’m not staying them. I’m not
ordering them at all. I’m striking them.” It appears this applies only to the assessments.
The abstract of judgment reflects that the $300 restitution fine under section 1202.4,
subdivision (b), was imposed, and that the parole revocation fine was suspended. “Where
there is a discrepancy between the oral pronouncement of judgment and the minute order
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or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007)
147 Cal.App.4th 380, 385.)
Defendant was sentenced on February 7, 2025. On December 29, 2025, the
California Supreme Court decided People v. Kopp (2025) 19 Cal.5th 1 (Kopp). The court
first noted that “A restitution fine under section 1202.4 constitutes punishment.
[Citation.] It is required in ‘every case where a person is convicted of a crime’ unless the
court ‘finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.’ [Citation.] For felony convictions, the required fine is not less
than $300 and not more than $10,000.” (Kopp, supra, 19 Cal.5th at p. 13, italics & fn.
omitted.) The California Supreme Court found that although a “ ‘defendant’s inability to
pay shall not be considered a compelling and extraordinary reason not to impose a
restitution fine’ set at the statutory minimum, the court ‘shall consider’ a defendant’s
inability to pay in setting the amount of the fine in excess of the $300 minimum for
felonies. [Citation.] Once the court determines what the appropriate restitution fine
would have been, it should impose the parole revocation fine in that amount, which ‘shall
be suspended unless the person’s parole ... is revoked.’ ” (Id. at p. 30.) The Kopp court
also held that the inability to pay does not need to be considered if the $300 minimum
restitution fine under section 1202.4, subdivision (b), is imposed. (Kopp, at pp. 23, 30.)
The Kopp court also stated in its decision that “[o]n remand, defendant may challenge the
imposition of any fine as constitutionally excessive under the federal and state
Constitutions.” (Id. at p. 30)
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In a concurring opinion, Justice Liu opined that “[t]oday’s opinion ... recognizes
that on remand defendant ... can bring an excessive fines challenge to the imposed
restitution fine of $10,000. I would hold that in the event the court determines that
amount is excessive, the court must then evaluate whether imposing a lesser amount,
including the $300 minimum fine, is also excessive. Specifically, if [defendant] contends
that he is unable to pay the minimum restitution fine, the court must consider whether it
is excessive before imposing it.” (Kopp, supra, 19 Cal.5th at p. 32, conc. opn. of Liu, J.)
The trial court did not have the benefit of the decision in Kopp when it chose to
stay the mandatory restitution fine based on defendant’s inability to pay. Based on the
majority and concurring opinions in Kopp, the majority opinion does not provide for the
trial court to consider whether the minimum statutory $300 restitution fine is excessive,
and the inability to pay does not excuse the imposition of the mandatory restitution fine
under section 1202.4, subdivision (b). Accordingly, the abstract of judgment reflects the
proper sentence on the restitution fines after Kopp. No modification of the abstract of
judgment is necessary as to the restitution fines.
However, the abstract of judgment should be modified to reflect that defendant
was sentenced to the upper term of six years on count 2, instead of the currently reflected
middle term. We will order a new abstract of judgment to be prepared reflecting the
upper term sentence on count 2.
DISPOSITION
The trial court is directed to prepare a new abstract of judgment reflecting the
upper term was imposed on count 2 and shall forward such abstract to the California
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Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
MILLER
J.
We concur:
McKINSTER
Acting P. J.
LEE
J.
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