People v. Wertz CA1/4 ( 2023 )

Filed 4/28/23 P. v. Wertz CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
A165530
Respondent,
v. (Lake County
JOSHUA WERTZ, Super. Ct. Nos. CR959472,
CR962360-C, CR963398)
Defendant and
Appellant.
Defendant Joshua Wertz (Wertz) challenges the imposition
of an upper term sentence under Penal Code 1 section 1170,
contending that the trial court failed to comply with the statutory
amendments enacted by Senate Bill No. 567. We affirm.
BACKGROUND
The sentencing hearing at issue in this appeal consisted of
a resentencing in case No. CR959472 (case No. 1) and sentencing
on case Nos. CR962360-C (case No. 2) and case No. CR963398
(case No. 3).
All further statutory references are to the Penal Code
1
unless otherwise indicated.
1
In January 2021, the district attorney filed an amended
complaint in case No. 1, charging Wertz with unlawfully taking a
motor vehicle with a qualifying prior conviction (Veh. Code,
§ 10851, subd. (a)), Pen. Code, § 666.5); buying or receiving a
stolen vehicle (§ 496d, subd. (a)); and misdemeanor driving
without a license (Veh. Code, § 12500, subd. (a)).
On September 20, 2021, Wertz pleaded no contest to
unlawfully taking a motor vehicle with a qualifying prior
conviction, agreeing to an upper term sentence of four years in
county jail in exchange for the dismissal of the remaining counts.
The next month, the trial court sentenced Wertz to a split
sentence of three years in county jail prison and one year of
mandatory supervision.
On January 10, 2022, the district attorney filed a complaint
in case No. 2 charging Wertz with grand theft (§ 487, subd. (a))
and making a false statement to obtain aid (Unemp. Ins. Code,
§ 2101, subd. (a)).
On May 4, 2022, the district attorney filed a complaint in
case No. 3 charging Wertz with recklessly evading a peace officer
(Veh. Code, § 2800.2, subd. (a)) and evading a peace officer by
driving in the opposite direction of traffic (Veh. Code, § 2800.4).
On May 16, 2022, Wertz pleaded no contest to making a
false statement to obtain aid in case No. 2 and recklessly evading
a peace officer in case No. 3, agreeing to an eight-month prison
sentence to be served consecutively with his four-year sentence in
2
case No. 1 and an eight-month concurrent sentence.2 The trial
court dismissed the remaining counts at the prosecution’s
request.
At the sentencing hearing on June 13, 2022, the parties
stipulated that the June 2022 probation report prepared for the
sentencing could be received into evidence. Wertz then asserted
that he was entitled to resentencing in case No. 1 and should be
given the middle term based on a change in law making the
middle term the presumptive sentence, and the court received
into evidence an October 2021 probation report submitted for the
initial sentencing in case No. 1. The district attorney argued that
the upper term should be maintained because the parties
stipulated to the sentence and because Wertz had “a substantial
prior record.”
The trial court determined that it had to resentence Wertz
in case No. 1 under the newly amended section 1170.3 The court
agreed with the prosecution that it could consider Wertz’s
criminal history and the fact that Wertz was receiving a
2 The waiver of rights form signed and initialed by Wertz
states that the parties agreed to a state prison sentence of “8
months with [case No. 2] and [case No. 3] to running [sic]
concurrent with each other and consecutive to current term being
served in [case No. 1].”
3 Citing People v. Conatser (2020) 53 Cal.App.5th 1223,
1229, and People v. Lopez (2020) 57 Cal.App.5th 409, 414, the
Attorney General states on appeal that, because the trial court
initially imposed a four-year split sentence pursuant to section
1170, subdivision (h), the judgment in case No. 1 had not become
final before the June 13, 2022 hearing for purposes of retroactive
ameliorative legislation.
3
concurrent sentence rather than a consecutive sentence pursuant
to his plea agreement in case Nos. 2 and 3.
After stating that it had read and considered the probation
reports, the court made the following findings in aggravation:
Wertz was convicted of other crimes for which consecutive
sentences could be imposed; his prior convictions as an adult
were numerous and increasing in seriousness; he had served
three prison terms; his prior performance on supervision was
unsatisfactory; and he was in custody when he committed the
offense in case No. 2. The court found in mitigation that Wertz
voluntarily admitted wrongdoing at an early stage of the
proceedings and then it found that the aggravating
circumstances outweighed those in mitigation. The court
imposed the upper term of four years in case No. 1, making it the
principal term. The court imposed a concurrent, lower term
sentence of 16 months in case No. 2, and an eight-month (one-
third of the middle term) subordinate consecutive term in case
No. 3. Wertz timely appealed.4
DISCUSSION
Wertz’s contention on appeal is that, in imposing the upper
term sentence in case No. 1, the trial court failed to comply with
section 1170, as amended by Senate Bill No. 567 (Stats. 2021,
ch. 731, § 1.3). The Attorney General counters that Wertz’s claim
is forfeited, and that this court should affirm for the additional
4 Because the facts underlying the offenses in the pertinent
cases are not relevant to the claims in this appeal, we omit a
factual summary of the offenses.
4
reason that Senate Bill No. 567 affords no relief to a defendant
who agreed to a plea with a stipulated sentence. As set forth
below, we affirm because we find that Wertz forfeited his claim of
error under section 1170, and, to the extent that he asserts a
constitutional claim under the Sixth Amendment to the United
States Constitution, his claim lacks merit.
I. Relevant Law
To contextualize Wertz’s arguments on appeal, we begin
with a brief overview of the history of California’s determinate
sentencing law.
In Cunningham v. California (2007) 549 U.S. 270(Cunningham), the United States Supreme Court considered an
earlier version of section 1170, subdivision (b), which stated “that
‘the court shall order imposition of the middle term, unless there
are circumstances in aggravation or mitigation of the crime,’ ”
and further provided that “ ‘[c]ircumstances in aggravation or
mitigation’ are to be determined by the court after consideration
of several items.” (Cunningham, at p. 277.) The high court held
California’s determinate sentencing law violated a defendant’s
Sixth Amendment right to a trial by jury because it authorized a
judge to find the facts permitting an upper term sentence. (Id. at
pp. 274, 293.) The court explained the law violated “Apprendi’s5
bright-line rule: Except for a prior conviction, ‘any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.’ ” (Cunningham, at pp. 288–289.)
5 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
5
In People v. Sandoval (2007) 41 Cal.4th 825, the California
Supreme Court considered whether an upper term sentence
imposed pursuant to the pre-Cunningham determinate
sentencing law—i.e., imposed over the middle term based on
judicial findings of fact on circumstances in aggravation—was
harmless error under the Sixth Amendment. (Sandoval, at
p. 837.) In Sandoval, the trial court had relied upon multiple
aggravating circumstances, none of which were proven to a jury,
admitted by the defendant, or based on the fact of a prior
conviction. (Id. at pp. 837–838.) The upper term sentence
therefore violated Cunningham. To assess harmless error,
Sandoval articulated the following standard: “[I]f a reviewing
court concludes, beyond a reasonable doubt, that the jury,
applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury, the
Sixth Amendment error properly may be found harmless.”
(Sandoval, at p. 839.) So long as one aggravating circumstance
has been established consistently with Sixth Amendment
principles—by the jury’s verdict, the defendant’s admissions, or
the fact of a prior conviction—the federal constitution does not
prohibit a trial court from relying on additional aggravating
circumstances to impose an upper term sentence. (Sandoval, at
pp. 838–839; People v. Black (2007) 41 Cal.4th 799, 813.)
Since Cunningham, the Legislature has amended
California’s determinate sentencing law with respect to statutory
maximum term twice. First, shortly after Cunningham, the
6
Legislature eliminated the presumptive middle term and allowed
judges broad discretion in selecting a term within a statutory
range to avoid the constitutional infirmity found by Cunningham.
(People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Next,
effective January 1, 2022, the Legislature enacted Senate Bill
No. 567 (Stats. 2021, ch. 731, § 1.3) to reimpose a presumptive
middle term for determinate sentences.
As is relevant here, after Senate Bill No. 567 (Stats. 2021,
ch. 731, § 1.3), section 1170, subdivision (b)(1) states, “[T]he court
shall, in its sound discretion, order imposition of a sentence not to
exceed the middle term, except as otherwise provided in
paragraph (2).” The referenced paragraph 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).) However, “Notwithstanding
paragraphs (1) and (2) [of section 1170, subdivision (b)], 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.”
(§ 1170, subd. (b)(3).)
7
II. Analysis
Wertz contends that his upper term sentence in case No. 1
was improperly imposed under section 1170 because he did not
stipulate to any circumstances in aggravation, no aggravating
factors were found true beyond a reasonable doubt by a jury, and
no certified records of his prior convictions were introduced at the
resentencing. But, as the Attorney General points out, Wertz did
not object on these grounds even though he was resentenced
nearly six months after Senate Bill No. 567 (Stats. 2021, ch. 731,
§ 1.3) went into effect. Wertz responds that his failure to object
cannot result in forfeiture because the right he is asserting is a
constitutional right to jury trial under the Sixth Amendment and
Apprendi, supra, 530 U.S. 466, and Cunningham, supra, 549 U.S.
270. As set forth below, we agree with the Attorney General with
respect to Wertz’s state statutory claim of error, and we find no
basis to reverse under the Sixth Amendment.
Here, the record shows that Wertz forfeited his section
1170 claim. At the resentencing hearing, defense counsel, the
prosecutor, and the trial court were aware of Senate Bill No. 567
(Stats. 2021, ch. 731, § 1.3), and the trial court resentenced Wertz
under the newly amended law. The trial court stated on the
record that it could find certain factors in aggravation based on
Wertz’s prior criminal record without a stipulation and without a
jury, and then the court made those findings. Wertz could have,
but did not, object that the court’s imposition of the upper term
sentence did not comport with section 1170. His failure to object
prevents him from pursuing his claim of state law error under
8
section 1170 on appeal. (People v. Anderson (2023) 88
Cal.App.5th 233, 242; see also People v. Scott (1994) 9 Cal.4th
331, 353, 356 [complaints about court’s failure to properly make
or articulate its discretionary sentencing choices cannot be raised
for the first time on appeal]; People v. Garcia (2010) 185
Cal.App.4th 1203, 1218 [“ ‘Claims of error relating to sentences
“which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner” are waived on appeal if
not first raised in the trial court’ ”], italics omitted; People v.
French (2008) 43 Cal.4th 36, 46–48 [statutory right to jury trial
can be waived by failing to object whereas constitutional right
requires express waiver].)
As for any Sixth Amendment claim, although not forfeited
by failure to object (People v. French, supra, 43 Cal.4th at pp. 47–
48), Wertz fails to establish reversible error.6 The parties
stipulated that the June 2022 probation report could be received
6 Wertz cites Article I, section 16, of the California
Constitution in addition to the Sixth Amendment when arguing
that he has not forfeited his argument that the resentencing
violated his constitutional right to a jury trial. Wertz, however,
offers no substantive argument or authority in support of a claim
that his resentencing violated the California Constitution. We
perceive no separate claim under the California Constitution, and
we do not address that claim, if, indeed, Wertz is asserting it.
(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An
appellate court is not required to examine undeveloped claims,
nor to make arguments for parties.”]; Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784–785 [“When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.”].)
9
into evidence, and that report lists at least eight of Wertz’s prior
convictions, including five misdemeanors and three felonies.
Three prior convictions, including misdemeanors, are considered
numerous (People v. Searle (1989) 213 Cal.App.3d 1091, 1098; see
also People v. Black, supra, 41 Cal.4th at p. 818), and, under the
Sixth Amendment, the trial court can determine the fact of a
prior conviction (People v. Towne (2008) 44 Cal.4th 63, 81–82;
People v. Black, at p. 813; People v. Gallardo (2017) 4 Cal.5th
120, 138). Thus, for purposes of defendant’s Sixth Amendment
claim, the court properly found the aggravating factor that
Wertz’s prior convictions were numerous.7 (People v. Black, at
p. 813.) And, even if there were Sixth Amendment error in not
submitting that factor to a jury, on this record—which includes
the parties’ stipulation that the June 2022 probation report could
be received into evidence and which lacks any challenge from
Wertz to the evidence of the convictions set forth therein—we
may conclude, beyond a reasonable doubt, that the jury would
have found true this aggravating circumstance.8
DISPOSITION
The judgment is affirmed.
7 Under California Rules of Court, rule 4.421(b)(2), an
aggravating factor exists if “defendant’s prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings
are numerous or of increasing seriousness.” (Italics added.)
8 Given our disposition, we need not reach the Attorney
General’s alternative argument that Senate Bill No. 567
(Stats. 2021, ch. 731, § 1.3)affords no relief to a defendant who
agreed to a plea with a stipulated sentence.
10
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
WHITMAN, J.
People v. Wertz (A165530)
Judge of the Superior Court of California, County of
Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
11