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State Supreme Court Extends Jury Trial Rights in Sentencing
Opinion Overrules Prior Case Law, Says Analysis of Recent U.S. Supreme Court Case Demands That Jurors Decide if Convict’s Record Proves Violation of Probation, Commission of Increasingly Serious Crimes
By Kimber Cooley, associate editor
A defendant is entitled to have a jury determine any factors in aggravation other than the bare fact of a past conviction, including whether or not the accused performed unsatisfactorily on probation based on incurring new charges or has engaged in a pattern of increasing seriousness in criminal activities, the California Supreme Court held yesterday.
At issue is the scope of the right to a trial by jury guaranteed by the U.S. Constitution, a protection generally applicable as to any fact that exposes a defendant to a greater potential sentence. A judicially created exception to this principle exists as to prior convictions, which may be proven by submitting certain criminal records to the court.
Penal Code §1170(b)(2), as amended in 2022, provides that a trial court may impose a sentence exceeding the middle term only when circumstances in aggravation justify a higher penalty and specifies that “the facts underlying those circumstances” must have been “found true beyond a reasonable doubt at a trial by jury” absent a contrary stipulation by the parties.
Subdivision (b)(3) recognizes the exception for prior convictions, saying that they may be considered “based on a certified record of conviction without submitting the prior convictions to a jury.”
Yesterday’s opinion, authored by Justice Carol Corrigan and joined in by Justices Goodwin H. Liu, Joshua P. Groban, and Kelli Evans, overrules previous decisions by the court holding that the prior conviction exception encompasses other related issues, such as the increasing seriousness of the defendant’s criminal history or unsatisfactory probation performance, such that a judge could consider these factors based solely on the records.
Prosecutors seeking to rely on those circumstances in aggravation must now submit the matter to a jury as to whether the factors exist in the defendant’s case, absent a waiver or stipulation to a court trial on the issue.
Erlinger Decision
Corrigan said that the change in course is mandated by last year’s U.S. Supreme Court decision in Erlinger v. United States, in which the high court held that a defendant has a constitutional right to a trial by jury as to whether prior convictions for burglaries, committed over several days, constituted separate offenses or a singular criminal enterprise. She wrote:
“Although Erlinger involved a different sentencing consideration, its 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.”
She declared that §1170(b)(3)’s exception for prior convictions is of the “same scope” as that applicable under Fifth and Sixth Amendment jurisprudence.
The question arose after Eric Wiley pled guilty to being a felon in possession of a firearm, in violation of Penal Code §29800(a)(1), in 2020. At the time he was found with the gun, he was on felony probation for making a criminal threat.
High Term Imposed
Following the plea to the possession charge, Humboldt Superior Court Judge Kaleb V. Cockrum revoked Wiley’s probation and sentenced him to the high term of three years in prison on the criminal threat case and added a consecutive term of eight months for the firearm charge. To justify the upper term sentence, Cockrum cited Wiley’s “prior convictions, [his] poor performance on probation, and the fact that the charges are becoming more serious.”
Div. Four of the First District Court of Appeal affirmed, rejecting the assertion that Cockrum had engaged in impermissible factfinding exceeding the scope of the exceptions to the jury trial right under the Constitution and §1170(b)(3). Yesterday’s opinion reverses the judgment.
Justice Leondra Kruger, joined by Justice Martin J. Jenkins, penned a concurring opinion, arguing that “Wiley’s right to a jury determination on these aggravators stems not from the Fifth or Sixth Amendment” but from the “Legislature’s considered decision to expand the jury right beyond its traditional bounds.”
Narrow Exception
Corrigan pointed out that the Erlinger court characterized the prior conviction exception to the federal constitutional right to a trial by jury as a “narrow” one, permitting judges to do no more than determine what crime, with what elements, the defendant had violated.
To make this determination, the U.S. Supreme Court acknowledged that a sentencing court may consult a restricted set of materials that include judicial records, plea agreements, and colloquies between a judge and the defendant. However, the court said that the determination as to whether the defendant’s crime spree was made up of multiple offenses was a factual one reserved for a jury.
Applying this analysis to the increased seriousness factor, Corrigan wrote:
“[T]he inquiry requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.”
She continued:
“We reach a similar conclusion with respect to the aggravating fact that the defendant performed unsatisfactorily on probation….[E]ven where a finding of unsatisfactory probation performance is based on conviction of a new offense, it is not strictly limited to that fact. Rather, it must be proven that the defendant was ordered to serve a term of probation and remained on probation at the time he or she committed the new offense. These facts, too, go beyond the mere existence of a prior conviction and its elements.”
All Aggravating Facts
Corrigan explained:
“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….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…evidence…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.”
The justice added:
“This conclusion requires us to overrule our contrary holdings in [People v. Black (2007)]…and [People v. Towne (2008)]…, which predate Erlinger’s clarification by nearly two decades. Those decisions broadly construed [the] exception to the jury trial right for ‘the fact of a prior conviction’…to encompass ‘other related issues’…concerning a ‘defendant’s criminal history’….”
As to the scope of the statutory exception to the jury trial right for prior convictions that appears in section 1170(b)(3), she said the court agrees with the “[t]he majority of appellate courts to consider this issue” that the scope of the exemption is the same as that applicable under the federal Constitution.
She rejected the argument that no rational jury could have made a contrary finding to the determination made by Cockrum, saying “we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found Wiley’s criminal convictions were of increasing seriousness” or that he performed “unsatisfactorily” on probation, pointing to a report indicating a “mixed” review of his behavior while under supervision.
Kruger’s Opinion
Kruger wrote:
“I agree with the majority that Wiley was entitled to a jury determination on these questions. But…I do not think this is a constitutional issue.”
She opined:
“[T]he high court has distinguished between the right to have a jury determine (1) facts that increase the sentence range prescribed by statute, and (2) facts that a judge may rely on in exercising its discretion to select the appropriate sentence within the statutorily prescribed range. These two functions are ‘analytically distinct’…and the high court has consistently made clear that the constitutional jury right attaches only to the former.”
Saying that “Erlinger…preserves this essential distinction” by reiterating that a jury must make all factual determinations that expose a defendant to increased penalties, she commented:
“In this case, the aggravating circumstances we’re concerned with—Wiley’s poor probation performance and the increasing seriousness of his offenses—did not increase the prescribed range of penalties to which Wiley was exposed. That is because there was at least one other aggravating circumstance that independently rendered him eligible for an upper-term sentence: the simple fact of his prior convictions.”
However, she reasoned:
“Even if the Constitution does not guarantee a jury trial on the full range of aggravating circumstances that might inform an exercise of sentencing discretion, statutory law certainly does: The current version of Penal Code section 1170, subdivision (b)(2) unquestionably extends a statutory jury right to every aggravating circumstance upon which a trial court relies in imposing an upper-term sentence.”
The case is People v. Wiley, 2025 S.O.S. 1807.
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