P. v. Lopez
In People v. French (2008) 43 Cal.4th 36, 52-55, our Supreme Court explained in some detail the problems with finding harmless error in a determinate sentencing case when an accused pleads guilty or no contest, receives the upper term, but the aggravating factors are found by a judge and not a jury. In French, our Supreme Court found that the failure to have a jury find the aggravating factors after the defendant pled no contest was not harmless beyond a reasonable doubt. (Id. at pp. 42, 52-55.) Faced with a materially different showing, Court conclude that the trial courts decision to impose the upper term based on two aggravating circumstances which were not found to exist by a jury was harmless beyond a reasonable doubt.
Comments on P. v. Lopez