People v. Taylor CA1/1 ( 2024 )

Filed 10/22/24 P. v. Taylor CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A168306
v.
MATTHEW ANTHONY TAYLOR, (Del Norte County
Super. Ct. No. CRF 23-9077)
Defendant and Appellant.
A jury convicted defendant Matthew Anthony Taylor of, as relevant
here, felony burglary (Pen. Code, § 459).1 The trial court conducted a bench
trial on aggravating factors and sentenced Taylor to the upper term of three
years. Taylor argues the court prejudicially erred by imposing the upper
term without submitting aggravating factors to the jury pursuant to
amended section 1170, subdivision (b) (section 1170(b)). We disagree and
affirm.
1 Undesignated statutory references are to the Penal Code.
1
I. BACKGROUND2
In 2023, the People charged Taylor with felony second degree burglary
(§ 459) and misdemeanor resisting, delaying, or obstructing a peace officer
(§ 148, subd. (a)(1)). On the burglary charge, the People alleged three
aggravating factors set out in California Rules of Court,3 rule 4.421(b): the
defendant’s prior convictions are numerous or of increasing seriousness
(rule 4.421(b)(2)); the defendant has served a prior term in prison or county
jail under section 1170, subdivision (h) (rule 4.421(b)(3)); and the defendant’s
prior performance on probation, mandatory supervision, post release
community supervision, or parole was unsatisfactory (rule 4.421(b)(5)). A
jury found Taylor guilty of both charges. After the verdict was read and
outside the presence of the jury, the trial court and the parties discussed how
to proceed on the aggravating factors. Taylor requested a jury trial. Initially,
the court agreed with him. The prosecutor objected, arguing Taylor did not
have a right to a jury trial.
After a recess, the trial court and the parties continued to discuss
whether a jury trial on the aggravating factors was required. Defense
counsel stated that pursuant to section 1170, subdivision (b)(2) and (b)(3), she
did not believe Taylor was entitled to a jury trial on the aggravating factors.
Agreeing, the prosecutor argued that the court could consider Taylor’s prior
convictions pursuant to section 1170, subdivision (b)(3) without submitting
the matter to the jury. To avoid proceeding on an allegation that “would be
for the jury,” the People dismissed the aggravating factor that the
defendant’s prior performance on probation, mandatory supervision, post
2 We summarize only those facts necessary to resolve the sentencing
issues raised on appeal.
3 Further references to rules are to the California Rules of Court.
2
release community supervision, or parole was unsatisfactory. Still, the court
explained that it could not impose the upper term relying on the two
remaining aggravating factors and indicated a jury trial was required. The
prosecutor disagreed, and defense counsel reiterated that Taylor requested a
jury trial.
During another recess, the trial court reviewed Cunningham v.
California (2007) 549 U.S. 270 [127 S.Ct. 856], Apprendi v. New Jersey (2000)
530 U.S. 466 [120 S.Ct. 2348], and Blakely v. Washington (2004) 542 U.S. 296[124 S.Ct. 2531]. The court explained that based on those decisions, as well
as the language of section 1170, subdivision (b)(3), it could rely on the
certified records of prior convictions. As to rule 4.421(b)(2), the court stated,
“I assume you can probably show prior convictions that are numerous . . . .
. . . That can be done, it appears to me, by the prior record. Then—and not
necessarily seriousness. That appears to me to be a factual finding.” As to
rule 4.421(b)(3), the court stated that whether the defendant had served a
prior prison or county jail term can be shown by a certified record of
conviction. The prosecutor confirmed the request for a bench trial. Defense
counsel stated, “Obviously, there’s some ambiguity, but I’m comfortable
moving forward with a bench trial as well.”
Thereafter, the trial court conducted a bench trial on the aggravating
factors. The prosecutor submitted nine certified records of prior convictions.
As to rule 4.421(b)(2)—that the defendant’s prior convictions are numerous or
of increasing seriousness—the prosecutor limited her argument to the
numerosity component. She stated that Taylor “has convictions as an adult
that are numerous” and referenced his nine prior convictions. As to
rule 4.421(b)(3)—that the defendant served a prior term in prison or county
jail under section 1170, subdivision (h)—the prosecutor relied on Taylor’s
3
most recent conviction stemming from an incident in April 2022, where
Taylor pleaded no contest to a single count of burglary and was sentenced to
16 months in county jail.
The trial court found “by proof beyond a reasonable doubt the following:
That the defendant’s prior convictions as an adult are numerous and do
appear to be of increasing seriousness as well and that the defendant has
served a prior prison term, all pursuant to [r]ule 4.421(b)(2) and (b)(3).” The
court relied on certified records of seven4 prior convictions: misdemeanor
petty theft in 2013; misdemeanor domestic violence in 2013; a misdemeanor
weapons conviction in 2016; misdemeanor vandalism in 2019; two felony
second degree burglary convictions in 2021; misdemeanor petty theft and
resisting arrest in 2021; and felony second degree burglary in 2022. Taylor
had been sentenced to county prison for the prior burglary convictions. Based
on this, the court stated, “So it does appear to be a plethora of evidence of
multitude of convictions that are various. So you’ve met your burden in that,
as well as two convictions for local county jail that meet your burden as well
by proof beyond a reasonable doubt.”
At the sentencing hearing the following month, the prosecutor
discussed the aggravating factors, stating, “Two [aggravating factors] were
found beyond a reasonable doubt relating to the defendant’s criminal history,
increasing seriousness, numerous convictions as well as serving a prior
prison—county prison sentence.” The prosecutor argued there were no
factors in mitigation and requested the court impose the upper term of three
years. Defense counsel did not argue that any mitigating factors existed.
4 The prosecutor admitted nine certified records of convictions, but the
trial court explained two of them were inapplicable because they were
dismissals.
4
The trial court proceeded to discuss the aggravating factors. It found true the
rule 4.421(b)(2) aggravating factor, stating, “[B]ased on his record, that he
does have what appears to be numerous, increasing in seriousness and, like I
mentioned, the four felonies in the past four years, since 2019.” As to
rule 4.421(b)(3), the court stated, “And then he has just recently served a
prior prison term as noted in that record for the same kind of violation.”
After discussing those two aggravating factors, the court stated that Taylor’s
prior performance on probation was “unsatisfactory as he continues to
commit felonies upon the school,” pertaining to rule 4.421(b)(5). The
prosecutor clarified that the People were only proceeding on rule 4.421(b)(2)
and (b)(3) and requested the court to strike any reliance on rule 4.421(b)(5).
The court then stated, “So we have two circumstances in aggravation, none in
mitigation. Clearly, circumstances in aggravation still outweigh mitigation.”
As relevant here, the court sentenced Taylor to county jail for the upper term
of three years on the burglary conviction.
II. DISCUSSION
Taylor contends the trial court prejudicially erred in imposing the
upper term without submitting the aggravating factors to the jury.
Specifically, he argues that pursuant to section 1170(b), the finding that his
prior convictions were of increasing seriousness needed to have been
determined by the jury.
A. Legal Principles
This appeal involves changes to California’s determinate sentencing
law. Effective January 1, 2022, section 1170(b) was amended by Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) “to prohibit imposition of an
upper term sentence unless aggravating circumstances justify that term and
the facts underlying any such circumstance, other than a prior conviction,
5
‘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), as amended by Stats. 2021, ch. 731, § 1.3.) Allegations of prior
convictions may be tried by the court alone and proven by certified records of
conviction. (§ 1170[, subd. ](b)(3).)” (People v. Lynch (2024) 16 Cal.5th 730,
742 (Lynch).)5
The California Supreme Court recently considered the extent to which
section 1170(b) implicates the Sixth Amendment to the federal Constitution.
(Lynch, supra, 16 Cal.5th at p. 746.) The court explained that under
section 1170(b), “[T]he middle term is the maximum term that can be
imposed unless additional factual determinations are made. It is the
requirement of additional factfinding that brings the Sixth Amendment into
play.” (Lynch, at p. 759.) As explained by the United States Supreme Court
in Cunningham v. California, supra, 549 U.S. 270, “ ‘[U]nder the Sixth
Amendment, any fact that exposes a defendant to a greater potential
sentence must be found by a jury’ and ‘established beyond a reasonable
doubt.’ ” (Lynch, at p. 747.) The constitutional jury trial right does not apply
to prior conviction allegations. (Ibid.) Similarly, amended section 1170,
subdivision (b)(3) “preserves this distinction.” (People v. Pantaleon (2023)
89 Cal.App.5th 932, 938 (Pantaleon).)
Rule 4.421 sets out factors a court may consider as aggravating
circumstances. As relevant here, recidivism-related aggravating factors
include that the “defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of increasing
5 Lynch, supra, 16 Cal.5th 730 and Erlinger v. United States (2024)
602 U.S. 821 [144 S.Ct. 1840] (Erlinger) were decided while this appeal was
pending. We invited the parties to submit, and both parties did submit,
supplemental briefing addressing these decisions.
6
seriousness” (rule 4.421(b)(2)), and that the “defendant has served a prior
term in prison or county jail under section 1170[, subdivision ](h)”
(rule 4.421(b)(3)). In Lynch, the California Supreme Court held that under
section 1170(b), “[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.)
“Excluding properly proven prior convictions or a defense stipulation, a jury
finding is now required for all facts actually relied on to impose an upper
term.” (Ibid.) If the trial court relies “on improperly proven aggravating
facts to ‘justify’ an upper term sentence, a Sixth Amendment violation
occurs.” (Id. at p. 761.)
We review a trial court’s selection of a sentencing term for abuse of
discretion. (People v. Salazar (2023) 15 Cal.5th 416, 428, fn. 8.)
B. Analysis
Here, the trial court relied on two aggravating factors in imposing the
upper term—Taylor’s prior convictions as an adult are numerous or of
increasing seriousness (rule 4.421(b)(2)), and Taylor served a prior prison or
county jail term under section 1170, subdivision (h) (rule 4.421(b)(3)). As to
rule 4.421(b)(2), the court found Taylor’s prior convictions were both
numerous and of increasing seriousness.6 As explained in Lynch, “[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.) On appeal, Taylor
does not challenge the court’s conclusions that his prior convictions are
6 We reject the People’s contention that the trial court did not rely on
the “increasing seriousness” component of rule 4.421(b)(2) in imposing the
upper term. The record demonstrates otherwise.
7
numerous or that he served a prior term in prison or county jail under
section 1170, subdivision (h). He contends the court’s finding of increasing
seriousness was not properly proven pursuant to section 1170(b) because that
aggravating factor was required to be submitted to a jury and, therefore, the
court erred. Taylor argues the increasing seriousness factor involves a
subjective value judgment. Depending on how one looks at it, Taylor asserts,
one might regard his felony convictions as showing a pattern of repeating the
same type of crime, rather than a pattern of increasing seriousness.
We recently considered and rejected this argument in People v. Morgan
(2024) 103 Cal.App.5th 488, review granted Oct. 2, 2024, S286493. There,
the defendant argued the trial court could not determine that his prior
convictions were numerous or of increasing seriousness (rule 4.421(b)(2)), or
that he performed poorly on prior grants of probation (rule 4.421(b)(5)).
(Morgan, at p. 517.) We repeat our discussion here.
“In People v. Wiley (2023) 97 Cal.App.5th 676, 686 (Wiley), review
granted March 12, 2024, S283326, the court considered and rejected this
same argument, observing that the appellate courts are divided on the import
of amended section 1170, subdivision (b)(3), which states, in pertinent part,
‘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).)
“ ‘Some courts have treated the prior conviction exception under
section 1170, subdivision (b)(3) as having the same scope as the exception
under the Sixth Amendment. (. . . Pantaleon[, supra,] 89 Cal.App.5th [at
p. ]938 [under 6th Amend. and § 1170, subd. (b)(3), “the fact of a prior
8
conviction includes ‘other related issues that may be determined by
examining the records of the prior convictions’ ”]; accord, People v. Ross
(2022) 86 Cal.App.5th 1346, 1353, review granted Mar. 15, 2023, S278266
[under § 1170, subd. (b)(3), trial court could rely on certified conviction
records to consider recidivism-based aggravating factors under rule 4.421(b),
including the defendant’s multiple offenses, prior prison term, and poor
performance on parole and probation; trial court committed Senate Bill 567
error, however, by relying on “crime-based aggravating factors” set forth in
rule 4.421(a)]; People v. Flowers (2022) 81 Cal.App.5th 680, 685–686, review
granted Oct. 12, 2022, S276237.)’ (Wiley, supra, 97 Cal.App.5th at p. 684,
review granted.)
“ ‘Other courts have suggested that, under section 1170,
subdivision (b)(3), such factors as the increasing seriousness of a defendant’s
convictions must (at least in some circumstances) be submitted to a jury
rather than determined by the court from a certified record of convictions.
(See People v. Butler (2023) 89 Cal.App.5th 953, 959, 961, 955, review
granted May 31, 2023, S279633 [in analyzing prejudice from Senate Bill 567
error, appellate court stated (1) prior prison terms “could have been proven
by certified records of conviction,” but (2) it was “not clear whether a jury
would have found beyond a reasonable doubt that Butler’s four admitted
prior convictions were of ‘increasing seriousness’ ”]; People v. Falcon (2023)
92 Cal.App.5th 911, 952, fn. 12, 953–955, review granted Sept. 13, 2023,
S281242 (Falcon) [noting “amended section 1170(b) now effectively
incorporates Sixth Amendment principles,” but questioning whether § 1170,
subd. (b)(3) has the same scope as the constitutional exception for prior
convictions, and ultimately declining to resolve that question]; see also People
v. Dunn (2022) 81 Cal.App.5th 394, 404–405 & fn. 8, review granted Oct. 12,
9
2022, S275655 [some aggravating factors were proved by certified record of
conviction or by defendant’s admission; that defendant was on probation at
time of charged offense was not proved by those methods, so upper term
sentence was erroneous due to retroactive application of Senate Bill 567].)’
(Wiley, supra, 97 Cal.App.5th at pp. 684–685, review granted.)
“After a thorough analysis of the Sixth Amendment and amended
section 1170, subdivision (b)(3)—which ‘ “preserves [the] distinction” ’ in
Sixth Amendment jurisprudence establishing ‘ “ ‘the right to a jury trial does
not apply to the fact of a prior conviction’ ” ’—Wiley agreed with those courts
concluding ‘the prior conviction exception in section 1170, subdivision (b)(3)
includes both the fact of a prior conviction and “other related issues”
[citation] that may be determined from a certified record of conviction. (See
[People v.] Gallardo (2017) 4 Cal.5th [120,] 138 [“Our precedent instructs that
determinations about the nature of prior convictions are to be made by the
court, rather than a jury, based on the record of conviction.”].)’ (Wiley, supra,
97 Cal.App.5th at p. 685, review granted, quoting . . . Pantaleon, supra,
89 Cal.App.5th at p. 938.) Wiley further agreed that ‘these related issues
include the two factors [defendant] contends the trial court should not have
considered—the increasing seriousness of [his] convictions (rule 4.421(b)(2))
and his poor prior performance on probation (rule 4.421(b)(5)).’ (Wiley, supra,
at pp. 683–685.)
“We agree with Wiley and reach the same conclusion here.” (People v.
Morgan, supra, 103 Cal.App.5th at pp. 517–518.)
Taylor contends that Erlinger, supra, 602 U.S. 821 demonstrates that
an examination of the conduct involved in a defendant’s prior offenses—
which he asserts is involved in determining increasing seriousness under
rule 4.421(b)(2)—does not fall within the prior conviction exception. In
10
Erlinger, the United States Supreme Court considered a federal statute
which imposes mandatory prison terms on defendants who have three prior
convictions for violent felonies or serious drug offenses which were
“ ‘committed on occasions different from one another.’ ” (Erlinger, at p. 825.)
The court held that the separate occasions inquiry must be resolved by a jury.
(Id. at p. 835.) In doing so, the court interpreted the scope of the prior
conviction exception recognized in Almendarez-Torres v. United States (1998)
523 U.S. 224 [118 S.Ct. 1219], which “permitted a judge to undertake the job
of finding the fact of a prior conviction—and that job alone.” (Erlinger, at
p. 837.) The court confirmed that Almendarez-Torres is a “ ‘narrow
exception,’ ” under which a “judge may ‘do no more, consistent with the Sixth
Amendment, than determine what crime, with what elements, the defendant
was convicted of.’ ” (Id. at p. 838; accord, Lynch, supra, 16 Cal.5th at p. 761.)
Under the Sixth Amendment, a judge may not use information in prior
conviction records “to decide ‘what the defendant . . . actually d[id],’ or the
‘means’ or ‘manner’ in which he committed his offense.” (Erlinger, at
pp. 839–840.) The court explained that deciding whether the past offenses
occurred on different occasions under the governing statute “is a fact-laden
task” which required more than merely identifying the defendant’s “previous
convictions and the legal elements required to sustain them.” (Id. at pp. 834,
838.)
Our conclusion here is in line with Almendarez-Torres and Erlinger. To
make a finding of increasing seriousness, a trial judge needs do no “more
than identify [the defendant’s] previous convictions and the legal elements
required to sustain them.” (Erlinger, supra, 602 U.S. at p. 838.)
Additionally, the California Supreme Court has determined that a court may
determine whether a defendant’s prior convictions are numerous or of
11
increasing seriousness. (People v. Black (2007) 41 Cal.4th 799, 818–820,
superseded by statute on other grounds as stated in Lynch, supra, 16 Cal.5th
at p. 757.)7 The “determinations whether a defendant has suffered prior
convictions, and whether those convictions are ‘numerous or of increasing
seriousness’ [citation], require consideration of only the number, dates, and
offenses of the prior convictions alleged. The relative seriousness of these
alleged convictions may be determined simply by reference to the range of
punishment provided by statute of each offense.” (Black, at pp. 819–820.)
We “find no basis to ignore [People v.] Black,” a decision “from our state’s high
court that address[es] the precise issue presented here, [has] not been
overruled [on this ground], and . . . [is] binding on this court.” (Wiley, supra,
97 Cal.App.5th at p. 683, review granted.) Therefore, the trial court did not
err in making a finding on the increasing seriousness aggravating factor
under rule 4.421(b)(2) rather than submitting it to the jury.8
C. Additional Arguments
We reject Taylor’s additional claims of error. First, he argues the trial
court failed its “independent duty to protect” his rights under section 1170(b),
asserting the court was aware the law was unsettled regarding the statute
7 While Lynch involved amended section 1170(b), there the California
Supreme Court made clear it was “unnecessary to address the scope of the
prior conviction exception, either as a statutory or a constitutional matter,
and we express no opinion on it here.” (Lynch, supra, 16 Cal.5th at p. 775,
fn. 20.) The court noted that in Erlinger, the United States Supreme Court
had “recently issued a decision on the scope of the Almendarez-Torres
exception,” and the court explained it is “poised to consider the issue” in
Wiley. (Lynch, at p. 775, fn. 20.)
8 Because we conclude the court did not err by considering the
increasing seriousness aggravating factor, we need not, and do not, address
the parties’ arguments about (1) whether Taylor forfeited his claim of error,
and (2) whether the alleged error was prejudicial.
12
and therefore should have submitted the aggravating factors to the jury
instead of asking the parties to decide how to proceed. Taylor cites no
authority supporting his contention, and therefore his argument is waived.
(See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956
[when an appellant fails to support a point with reasoned argument and
citations to authority, we treat the point as waived].) In any event, because
we conclude the court did not err by not submitting the aggravating factors to
the jury, Taylor’s argument fails.
Second, Taylor argues the trial court’s cumulative errors require
reversal and remand for resentencing. He contends the court improperly
relied on the aggravating factor under rule 4.421(b)(5)—defendant’s prior
performance on probation, mandatory supervision, postrelease community
supervision, or parole was unsatisfactory—which cumulatively adds to the
errors. We disagree. The record demonstrates the court did not rely on this
aggravating factor. At the sentencing hearing, after the trial court discussed
the aggravator factors under rule 4.421(b)(2) and (b)(3), it also mentioned
that Taylor’s prior performance on probation was unsatisfactory
(rule 4.421(b)(5)). The prosecutor immediately clarified that the People were
proceeding only on the factors set out in rule 4.421(b)(2) and (b)(3), and he
requested the court strike any reliance on rule 4.421(b)(5).9 The court did so
and imposed sentence based on the two aggravating factors enumerated in
rule 4.421(b)(2) and (b)(3), which it found outweighed any mitigating
circumstances.
III. DISPOSITION
The judgment is affirmed.
9 The trial court had previously granted the People’s request to dismiss
the rule 4.421(b)(5) allegation.
13
LANGHORNE WILSON, J.
I CONCUR:
HUMES, P. J.
A168306
People v. Taylor
14
BANKE, J., CONCURRING
In Erlinger v. United States (2024) 602 U.S. 821 (Erlinger), the United
States Supreme Court considered the Armed Career Criminal Act (the Act of
1984; Pub.L. No. 98-473 (Oct. 12, 1984) 98 Stat. 2185), which “imposes
lengthy mandatory prison terms on certain defendants who have previously
committed three violent felonies or serious drug offenses on separate
occasions.” (Erlinger, at p. 825.) The specific issue before the high court was
whether a defendant is entitled to have a jury determine whether three such
felonies were committed “on separate occasions.” (Ibid.) As the court pointed
out, it has long been established “that a unanimous jury ordinarily must find
beyond a reasonable doubt any fact that increases a defendant’s exposure to
punishment.” (Id. at p. 836.)
There is an exception—which the court “announced” in Almendarez-
Torres v. United States (1998) 523 U.S. 224—that permits a sentencing judge
to consider “ ‘the fact of a prior conviction.’ ” (Erlinger, supra, 602 U.S. at
p. 838, quoting Alleyne v. United States (2013) 570 U.S. 99, 111, fn. 1.) That
is, the judge may “ ‘determine what crime, with what elements, the defendant
was convicted of.’ ” (Erlinger, at p. 838, quoting Mathis v. United States
(2016) 579 U.S. 500, 511–512 (Mathis).)
In Erlinger, the court did not revisit this exception. (Erlinger, supra,
602 U.S. at p. 838.) “[N]o one in this case has asked us to revisit Almendarez-
Torres. Nor is there need to do so today. In the years since that decision, this
Court has expressly delimited its reach.” (Ibid.) Rather, the high court
applied this exception to the specifics of the case at hand and concluded the
sentencing court had transgressed the bounds of the Almendarez-Torres
exception. (Erlinger, at pp. 838–839.)
1
Under Supreme Court precedent, deciding whether past offenses for
purposes of the Act “occurred on three or more different occasions is a fact-
laden task. Were the crimes ‘committed close in time’? [Citation.] How
about the ‘[p]roximity’ of their ‘location[s]’? [Citation.] Were the offenses
‘similar or intertwined’ in purpose and character? [Citation.] All these
questions . . . ‘may be relevant’ to determining whether the offenses were
committed on one occasion or separate ones—and all require facts to be found
before [the Act’s] more punitive mandatory minimum sentence may be
lawfully deployed.” (Erlinger, supra, 602 U.S. at p. 834.) Thus, “[t]o
determine whether Mr. Erlinger’s prior convictions triggered [the Act’s]
enhanced penalties, the district court had to do more than identify his
previous convictions and the legal elements required to sustain them. It had
to find that those offenses occurred on at least three separate occasions. And,
in doing so, the court did more than Almendarez-Torres allows.” (Id. at
pp. 838–839.)
California Rules of Court, rule 4.421(b)(2) is unlike the federal Act and
does not require a sentencing court to consider more than “ ‘what crime, with
what elements, the defendant was convicted of.’ ” (Erlinger, supra, 602 U.S.
at p. 838, quoting Mathis, supra, 579 U.S. at pp. 511–512.)
This is the point made in People v. Wiley (2023) 97 Cal.App.5th 676,
687, review granted March 12, 2024, S283326. As the Court of Appeal
explained, as to the increasing seriousness of Wiley’s convictions (Cal. Rules
of Court, rule 4.421(b)(2)), the trial court “could properly conclude, based on
the record of convictions, that [his] recent conviction for making a criminal
threat ([Pen. Code,] § 422), a statutorily designated serious felony ([Id.,] §
1192.7, subd. (c)(38)), was more serious than his prior convictions, which
were for drug offenses, driving under the influence (DUI), and possession of
2
ammunition. . . . [T]his determination did not require the court to engage in
factfinding about the specifics of the offenses or to make subjective value
judgments as to the relative seriousness of similar crimes.” (Wiley, at p. 687.)
So, too, here. The certified record of convictions shows defendant
sustained the following: In August 2013, a misdemeanor theft conviction
(Pen. Code, §§ 484, subd. (a), 488); in September 2013, a misdemeanor
violation of a domestic violence restraining order (id., § 273.6); in May 2016, a
misdemeanor weapons conviction (id., § 22210); in November 2019, a
misdemeanor vandalism conviction (id., § 594, subd. (a)(2)); in February
2021, two felony burglary convictions (id., § 459); in March 2021,
misdemeanor convictions for theft (id., §§ 484, subd. (a), 488) and resisting
arrest (id., § 148, subd. (a)(1)); and in June 2022, a felony second degree
burglary conviction (id., § 459).
In other words, the records of defendant’s convictions, alone, show a
chronology of increasing seriousness. Accordingly, the trial court did not
transgress defendant’s right to a jury trial in determining such and taking
into account this recidivist sentencing factor.
BANKE, J.
3