California Court of Appeal Feb 19, 2025 No. E081601Unpublished
Filed 2/19/25 P. v. Anderson CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081601
v. (Super.Ct.No. RIF2204714)
LEWIS ANDERSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Walter H. Kubelun,
Judge. Convictions affirmed, sentence vacated, and remanded with directions.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Daniel Rodgers and Adrian R. Contreras, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Lewis Anderson challenges his conviction and sentence
on several grounds. We find his stipulations to six aggravating factors were not knowing
1
and intelligent, so his sentence must be vacated and the case remanded for further 1 proceedings. We either reject or decline to consider as moot his other claims.
that appellant had . . . been punished for his prior transgressions substantially mitigates
the kind of prejudice usually associated with the introduction of prior bad act evidence”].)
The trial court was thus well within its discretion to find the probative value of the prior
conviction was not substantially outweighed by any undue prejudice.
Anderson contends that, contrary to what the trial court found, the offense for the
prior domestic violence conviction was dissimilar to the charges in the current case. He
emphasizes that his 2014 crime required a corporal injury—one resulting in a “traumatic
condition”—while his current charges do not. (Compare § 273.5, subd. (a) with §§ 243,
subd. (e)(1), 245, subd. (a)(1).) Given that one of his current charges (battery of an
intimate partner) and his previous conviction (inflicting injury on a domestic partner
resulting in a traumatic condition) both involve physically attacking a domestic partner,
however, it is immaterial whether a traumatic condition resulted from the acts. This is
2 Moreover, the Legislature considered remoteness when enacting Evidence Code section 1109. Since its enactment, the statute has provided that “[e]vidence of acts occurring more than 10 years before the charged offense” is presumptively inadmissible unless the court determines that admission was “in the interest of justice.” (Evid. Code § 1109, subd. (e).)
9
especially so given that even a “minor” physical injury suffices as a traumatic condition.
(§ 273.5, subd. (d); see People v. Reid (2024) 105 Cal.App.5th 446, 457 [“The harm to
the victim required to satisfy the ‘traumatic condition’ element of section 273.5[] is a
lesser degree of harm than what is required under other criminal statutes”].)
Finally, Anderson observes that domestic violence can be perpetuated against any
relative, not necessarily an intimate partner, so he claims there is an insufficient basis to
conclude the prior conviction was sufficiently similar to his actions toward Doe.
However, the 2014 crime applied only to violence against intimate partners. As it read in
2014, section 273.5 applies only “if the victim is or was one or more of the following:
[¶] (1) The offender’s spouse or former spouse. [¶] (2) The offender’s cohabitant or
former cohabitant. [¶] (3) The offender’s fiancé or fiancée, or someone with whom the
offender has, or previously had, an engagement or dating relationship, as defined in
paragraph (10) of subdivision (f) of Section 243. [¶] (4) The mother or father of the
offender’s child.” (former § 273.5, subd. (b); see also People v. Holifield (1988) 205
Cal.App.3d 993, 1000 [“‘cohabiting’ under section 273.5 means an unrelated man and
woman living together in a substantial relationship—one manifested, minimally, by
permanence and sexual or amorous intimacy”].) We therefore conclude the trial court did 3 not err in allowing the jury to hear about Anderson’s prior domestic violence conviction.
3 Anderson contends that admission of the prior domestic violence conviction also violated his right to due process. The contention is based on the same arguments he raised under Evidence Code section 1109, and we reject it for the same reasons as stated above.
10
B. Unanimity Instruction
The prosecution’s trial evidence suggested Anderson may have committed several
criminal acts, but he was charged with only one count of assault with a deadly weapon
and one count of battery of an intimate partner. “[W]hen the evidence suggests more
than one discrete crime, either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act.” (People v. Russo (2001) 25
Cal.4th 1124, 1132.) The prosecution did not elect among the crimes, so the trial court
instructed the jury what it must agree on. Anderson argues that the instruction, modified
from CALCRIM No. 3500, impermissibly allowed the jury to have a single act form the
basis of both charges. We find no error.
“‘If a jury instruction is ambiguous, we inquire whether there is a reasonable
likelihood that the jury misunderstood and misapplied the instruction.’ [Citations.]
‘“‘“[T]he correctness of jury instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a particular
instruction.”’”’ [Citations.] The reviewing court also must consider the arguments of
counsel in assessing the probable impact of the instruction on the jury.” (People v. Young
diminished by the parties’ closing arguments.’” (People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1220, abrogated on another ground by People v. Rangel (2016) 62 Cal.4th
1192, 1216.) We review the claim of instructional error de novo. (People v. Mitchell
(2019) 7 Cal.5th 561, 579.)
11
The trial court gave the following written instruction for unanimity: “The
defendant is charged in Count 1—assault with a deadly weapon, and Count 2—battery
against a person with whom the defendant currently has, or previously had, a dating
relationship, or the mother of his child, sometime during the period of September 10th,
2022. [¶] The People have presented evidence of more than one act to prove that the
defendant committed this offense. You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one of these acts
and you all agree on which act he committed.”
Anderson focuses on the instruction listing two counts before referring to “this 4 offense.” On his view, the instruction did not clearly tell the jury the People had to
prove at least one act for each offense, so there was a reasonable likelihood the jury
believed a single act could form the basis for both charges. However, Anderson views
the instruction in isolation. When the instruction is read in context with closing
argument, we see no reasonable likelihood that the jury would have misunderstood it in
the way Anderson describes.
In recounting trial testimony during closing argument, the People referred to only
Anderson’s attempts to hit Doe with the van as an assault and to only Anderson’s
4 The trial court’s oral instructions to the jury stated “these offenses” instead of “this offense.” However, “[t]he written version of jury instructions governs any conflict with oral instructions.” (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113.) We therefore focus only on the written instructions, which stated that “[t]he People have presented evidence of more than one act to prove that the defendant committed this offense.”
12
punches as battery. After describing the initial events, the prosecutor said, “[s]o this is
the first assault with the car that the defendant took.” He then described Anderson’s
second attempt to hit Doe with the van: “Then we get to the second assault. Immediately
thereafter, after Jane Doe jumped out of the way, Jane Doe starts running away eastbound
on Massachusetts. And what does the defendant do? He immediately makes that U-turn
with his car and starts driving straight towards her.”
When the prosecutor described Anderson’s punches to Doe’s face, he called them
battery and not assault: “[The assistant manager] told us about how Jane Doe’s face
would move back after each swing. [He] told us about those thugs [sic] he heard each
time the defendant made contact with her face. [The staff supervisor] told us about how
he heard Jane Doe screech after each punch to the face. [¶] Now, there’s no visible
injury. And, ladies and gentlemen of the jury, law enforcement arrived immediately after
the scene. They took photos. You’re going to have those exhibits back there. But when
you see those exhibits, Jane Doe has a very dark complexion. Injuries aren’t going to
show up that quickly. So we don’t have injuries to follow up from the day after, but the
charges in this case is simple battery, domestic violence. The defendant is not charged
with causing an injury, simply that he caused a harmful or offensive contact, and we’ll
talk about that in a little more detail in a bit.”
Later, when discussing the van again, the prosecutor went back to the term
“assault”: “So at this point [the staff supervisor] had observed what was going on. He
saw that screeching and the roaring of the engine and saw that second assault. He then
13
told us about the argument that ensued for a little bit, followed by the third assault with
the car.”
Still later during closing argument, the prosecutor made clear that the assault
charge related to the attempted vehicular strikes because Anderson tried but failed to hit
Doe: “So what does an assault mean? It basically means an attempt to hit someone. [¶]
So in sports there’s baseball. Basically, someone takes a swing and a miss. That’s what
an assault is. Someone tried to make contact, but they missed. And in this case, the
defendant tried to hit Jane Doe three times with his car, but each time he missed because
Jane Doe jumped out of the way to avoid being hit.”
Then, when explaining the elements of the battery charge to the jury, the
prosecutor stated: “So what’s the proof in this case? He willfully touched Jane Doe in a
harmful or offensive manner. Again, from the testimony of the three witnesses yesterday,
without question they saw what they saw. That was the defendant hitting Jane Doe in the
face.”
Finally, during rebuttal argument, the prosecutor again linked the assault charge to
Anderson’s actions with the van: “[Anderson] did in fact follow [Doe] at points slowly
going about five miles per hour, but I asked each of the witnesses about the differences
between following her and trying to assault her with his van, and they told us that driving
was much different.”
Anderson’s closing argument also distinguished between the assault charge based
on trying to hit Doe with the van and the battery charge based on punches. When arguing
14
for acquittal on the assault with a deadly weapon charge (and effectively conceding guilt
on the battery charge), Anderson’s counsel stated: “Mr. Anderson was just trying to get
[Doe] in the car, if you believe that’s true, then you can’t find him guilty in this case of
assault with a deadly weapon. [¶] Now, the battery on the spouse, that’s a totally
different charge. You’ve got to examine these two charges different [sic]. Just because
Mr. Anderson may have hit his girlfriend, don’t hold that against him, and, you know,
he’s a horrible person, I want to hammer this guy.”
Thus, when the written unanimity instruction is read along with the parties’
closing arguments, we see no reasonable likelihood that the jury would have thought any
single act could have formed the basis for both the assault with a deadly weapon charge,
which both sides discussed in context with the van, and the charge for battery of an
intimate partner, which both sides discussed in context with the face punches. We
accordingly find no instructional error.
C. Stipulation to Aggravating Factors
Anderson argues his stipulation to six aggravating factors was ineffective because
it was not knowing or intelligent. We find that the contention has merit.
1. Additional Background
The first amended information alleged three aggravating factors: Anderson’s prior
convictions were numerous or of increasing seriousness (rule 4.421(b)(2)), he had served
a prior prison term or county jail (rule 4.421(b)(3)), and his prior performance on
probation or parole was unsatisfactory (rule 4.421(b)(5)). Anderson moved to bifurcate
15
trial so that the jury would determine Anderson’s guilt on the charged offenses before any
trial on the alleged aggravating factors (as well as alleged priors) commenced. Granting
the unopposed motion, the court stated: “Mr. Anderson, now that that is bifurcated, you
have to have a discussion with your attorney on whether you want the jury to hear all
those factors and those charges against you after they decide on the current charges, or if
you’re willing to stipulate to those, or if you want the People to prove it simply by the
certified prior packets, or have this Court decide those factors upon presentation of
evidence.”
a. Jury Trial Waiver
Before opening arguments began, outside the jury’s presence, the trial court stated:
“We had a brief chambers conference on the remaining issue of the bifurcated priors. [¶]
Mr. Anderson, it’s my understanding that you are allowing or want a court trial on your
prior and aggravating factors; is that correct?” Anderson replied yes, and the court asked
to confirm whether he wanted to waive a jury trial for that process, to which Anderson
also replied yes. The court then stated: “I will make a determination, then, should you be
convicted. It only becomes relevant should you be convicted. We’ll have that trial.”
b. Stipulation on Prior Prison Term Aggravating Factor
While the jury was deliberating, Anderson agreed to stipulate that he had a prior
conviction for which he spent time in prison:
“THE COURT: We’ll go back on the record in People versus Anderson,
RIF2204714. Both counsel are present. Mr. Anderson is present. Jurors and alternates
16
have left, and the jury is deliberating. [¶] We now have the issue of the prison priors.
I’ve been handed the certified packet from the People. I’ve reviewed that packet. I’ve
had an opportunity to speak with Mr. Anderson with the presence of his counsel, and
indicated that the only thing that we’re asking him to do is stipulate that he does have
these priors from 2000, as set forth in the packet, that he is not admitting guilt from that
time, that these were convictions by a jury, and that he actually spent time in prison for
those convictions. If he does that, then those will be considered by the Court and
probation and looking towards getting a probation report and sentencing, but if, and only
if, this jury comes back as guilty. If not, the stipulation will be known, but it will not be
used in any way, shape, or form, only if there’s a guilty verdict. [¶] So, Mr. Anderson,
with that said, it appears that in – the note was in 2000. It says, ‘Date of sentence
pronounced.’ On October 20th, 2000, it appears that you were sentenced to prison on
these priors. I have the packet here, which is dated October 12, 2022, and that was for
mayhem and 245(a)(1). [¶] Is that correct?
“DEFENDANT ANDERSON: Yes, sir.
“THE COURT: And do you stipulate to those convictions?
“DEFENDANT ANDERSON: Yes, sir.
“THE COURT: And counsel join?
“[DEFENSE COUNSEL]: I join, Your Honor.
“THE COURT: And, People, any comments?
“[PROSECUTOR]: No.
17
“THE COURT: So I do find those priors stipulated to. And the Court has
indicated, and will indicate again, that those will only be used in determining the Court’s
sentencing. The Court will allow all parties to file motions and briefs to discuss
sentencing, but if, and only if, the jury returns a verdict of guilty.”
The trial court then asked Anderson if he had any questions, and Anderson
appeared to ask whether one of his prior convictions was in fact a crime: “From my
understanding, the 245(a)(1) did not have room for a crime, because it’s an element of the
offense and it can’t be a crime, from my understanding.” The court responded: “Well,
what’s going to happen is any issue like that – like I said, the only reason we did this is
only if the jury comes back with a guilty verdict. If there’s any technical issues or legal
issues, your attorney will be able to file a motion regarding that.” After some more
discussion about Romero motions, the court stated: “All right. I think we got it. [¶] We
still have the factors in aggravation. One of them was, obviously, the priors, but that’s it.
But you have two others, but I think we can discuss that if, and only if, the jury returns a
guilty verdict.”
c. Stipulation on Other Aggravating Factors and Sentencing
Once the jury had rendered its verdict and been discharged, the parties and the trial
court engaged in the following colloquy, in which the court asked Anderson to stipulate
to the remaining aggravating factors, Anderson asked what that meant, and the court
offered an explanation:
18
“THE COURT: All right. The jury has spoken in this case, and so we do have to
do a couple of housekeeping matters. [¶] We do need to set a sentencing date. I’m
agreeable as long as the defendant is willing to waive time to whatever date. I do them
on Fridays, so any Friday is agreeable. The 24th I already have three, so March 24th
would not be it. [¶] I believe the People have also alleged two other aggravating 5 factors.[ ] [¶] So, [defense counsel], we need to speak about those. If your client is
willing to stipulate that those can be considered at sentencing, I’ll simply just consider
that, and then everyone can argue them. If you want to handle it some other way, I’m
more than happy to do that. It’s really your pleasure on how you want to go about that.
“[DEFENSE COUNSEL]: Sentencing would be fine, Your Honor.
“THE COURT: So, Mr. Anderson, the People alleged two – here’s the way I
sentence. I consider factors in mitigation and aggravating factors, okay? [¶] For
example, there could be something, the remoteness of time of the prior convictions, that
would be a factor in mitigation, so to speak, or something else. There’s a bunch of them.
And so what I’d like to do is get you to stipulate to argue all of those at sentencing.
People will say all their factors in aggravation. Defense will say all their factors in
5 The two aggravating factors were that the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)) and that the defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory (rule 4.421(b)(5)).
19
mitigation. I’ll look at them all, and then I’ll make my decision. [¶] So, are you okay
with that?
“DEFENDANT ANDERSON: I’m cool with it.
“THE COURT: Okay. So you’ll stipulate that I can consider the factors in
aggravation as well as the factors in mitigation?
“DEFENDANT ANDERSON: I don’t understand that question.
“THE COURT: So, can I consider everything at the time of sentencing?
“DEFENDANT ANDERSON: Yes, sir.
“THE COURT: So that’s basically what I’m asking.
“DEFENDANT ANDERSON: Yes, sir.
“THE COURT: So the People are going to say, well, he has a prison prior, which
the jury heard. I should consider that as a factor in aggravation. In other words,
therefore, you should get more time. [¶] And then your defense is going to come and
say, well, yeah, but that was like super old, so you shouldn’t consider it, right? So all of
those can be argued at sentencing. And so rather than go through them all now, we’ll go
through them at the time of sentencing and let everyone brief them. [¶] So you’re okay
with that?
“DEFENDANT ANDERSON: Yes, sir.
“THE COURT: And, Counsel, you join?
“[DEFENSE COUNSEL]: I join.
“THE COURT: So you join the stipulation. People, any comments on that?
20
“[PROSECUTOR]: Yes. [¶] Just to verify, because the – I know we preceded
bench trial on the aggravating factors. Does the Court need to make a finding of the two
aggravating factors in this case?
“THE COURT: Well, I’m going to save that for sentencing.
“[PROSECUTOR]: Okay.
“THE COURT: So what I’m going to do is I’m going to allow probation to
consider them and put them in the report, and then I will make my decision whether the
Court considers those or uses those in his sentencing.
“[PROSECUTOR]: Okay.”
At sentencing, the trial court found seven aggravating factors true, including the prior
prison term aggravating factor Anderson stipulated to during the jury’s deliberation, two
other aggravating factors that were alleged in the information (those under rule
4.421(b)(2) and 4.421(b)(5)), and four others that were not alleged in the information but
included in the probation officer’s sentencing recommendation (those under rule
4.421(a)(1), 4.421(a)(2), 4.421(a)(3) and 4.421(b)(1)).
2. Applicable Law and Analysis
“In [Boykin v. Alabama (1969) 395 U.S. 238 (Boykin),] the United Stated Supreme
Court held that it could not be presumed from a silent record that a guilty plea was
voluntarily made with the necessary concomitant, knowing and intelligent waiver of
constitutional rights which were forfeited by a plea of guilty. [Citations.] This emphasis
on the necessity of an affirmative showing of waiver was grounded on the recognition
21
that a guilty plea, ‘. . . is more than a confession which admits that the accused did
various acts; it is itself a conviction; nothing remains but to give judgment and determine
punishment.’” (In re Yurko (1974) 10 Cal.3d 857, 861 (Yurko).)
In In re Tahl (1969) 1 Cal.3d 122 (Tahl), the California Supreme Court “construed
Boykin to require more than an inferential showing from the record that an accused
waived his constitutional rights to confront accusers, to trial by jury, and against
compulsory self-incrimination.” (Yurko, supra, 10 Cal.3d at p. 861, second italics
added.) Tahl held that “the court itself must ‘specifically and expressly’ enumerate each
of the rights, ‘employ the time necessary to explain adequately and to obtain express
waiver of the rights involved’ prior to acceptance of a guilty plea, and ensure that an
adequate record be available for possible review.” (Yurko, supra, at p. 861, citing Tahl,
supra, at p. 132.)
“The prophylactic Boykin-Tahl requirements are not limited to pleas of guilty.”
(People v. Adams (1993) 6 Cal.4th 570, 576 (Adams).) “A defendant’s agreement to
submit the case on the record of the preliminary hearing in circumstances tantamount to a
plea of guilty is also subject to those requirements [citations] as is an admission of an
allegation made in the information or indictment for the purpose of increasing the
punishment otherwise applicable to the offense.” (Ibid.; see Yurko, supra, 10 Cal.3d at p.
863 [“Boykin and Tahl require, before a court accepts an accused’s admission that he has
suffered prior felony convictions, express and specific admonitions as to the
constitutional rights waived by an admission”].) As relevant here, if a stipulation admits
22
“every fact necessary” to impose additional punishment, such as an aggravating factor,
Boykin-Tahl advisements are required. (Adams, supra, at p. 580; see § 1170, subd. (b)(2)
[“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”].) “A stipulation may establish
every fact necessary to support an increased punishment even if the trial court decides not
to impose that punishment.” (People v. Cross (2015) 61 Cal.4th 164, 175.)
“[E]rror[s] involving Boykin/Tahl admonitions should be reviewed under the test
used to determine the validity of guilty pleas under the federal Constitution.” (People v.
Howard (1992) 1 Cal.4th 1132, 1175.) “Under that test, a plea is valid if the record
affirmatively shows that it is voluntary and intelligent under the totality of the
circumstances.” (Ibid.) “[I]f the transcript does not reveal complete advisements and
waivers, the reviewing court must examine the record of ‘the entire proceeding’ to
assess” whether an admission subject to Boykin/Tahl was intelligent and voluntary in
light of the totality of circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 361
(Mosby).) In making such an assessment, the focus is on whether the admission or
waiver was “given with an understanding of the rights waived.” (Ibid.)
In the section of his opening brief addressing the issue, Anderson describes only
the colloquy that took place after the jury had been discharged—that is, the colloquy
23
concerning only Anderson’s stipulation of the remaining aggravating factors. Prior to
that point, Anderson had both waived jury trial on the aggravating factors in favor of a
court trial and stipulated to the prior prison term aggravating factor under rule
4.421(b)(3). Anderson’s opening brief mentions the prior prison term stipulation only in
passing in his “Statement of the Case” section, and he never mentions waiver of jury trial
in favor of court trial at all.
Accordingly, we construe Anderson’s argument here as encompassing only the
stipulation to the six aggravating factors that took place after the jury had been
discharged. To the extent Anderson seeks relief based on his prior prison term stipulation
or jury trial waiver, the issue has been forfeited. (Golden Door Properties, LLC v.
Superior Court of San Diego County (2020) 53 Cal.App.5th 733, 786 [“issues not
addressed as error in a party’s opening brief with legal analysis and citation to authority
are forfeited”].)
Anderson argues that his stipulation to the six aggravating factors was not
knowing or intelligent. We agree. From the colloquy, it was not clear that Anderson
understood he was stipulating to the truth of those aggravating factors at all. The trial
court first asked Anderson to agree to allow the trial court to “consider” aggravating
factors: “If your client is willing to stipulate that those [aggravating factors] can be
considered at sentencing, I’ll simply just consider that, and then everyone can argue
them.” It then framed the issue as having Anderson stipulate to “arguing” them: “And so
what I’d like to do is get you to stipulate to argue all of those at sentencing.”
24
When Anderson said he did not understand, the trial court asked again whether it
could “consider everything”: “So, can I consider everything at the time of sentencing?”
It then said it would allow the parties to “brief” the issue of aggravating factors: “So all
of those can be argued at sentencing. And so rather than go through them all now, we’ll
go through them at the time of sentencing and let everyone brief them.”
At no time up through this point did the trial court ever make clear that it was
asking Anderson to stipulate that the aggravating factors were true. To the contrary, it
suggested that stipulating to the factors was the way for Anderson to dispute them, as that
would be how the parties could “brief” the issue and have the trial court “consider
everything.”
What happened next did not help matters. After Anderson and his counsel agreed
to the stipulation, the prosecutor asked the court for clarification: “Does the Court need
to make a finding of the two aggravating factors in this case?” The trial court responded:
“Well, I’m going to save that for sentencing.” It thus specifically reserved on making a
finding on at least some of the factors.
The colloquy was unlike when, during jury deliberations, the trial court asked
Anderson to stipulate to the prior prison term aggravating factor. There, the trial court
made it clear it was asking Anderson to stipulate to the truth of the aggravating factor:
“On October 20th, 2000, it appears that you were sentenced to prison on these priors. I
have the packet here, which is dated October 12, 2022, and that was for mayhem and
245(a)(1). [¶] Is that correct?” It is also unlike colloquies in cases where a stipulation or
25
waiver has been upheld. In Mosby, after the defendant was convicted in a jury trial, he
waived trial on a prior conviction and later challenged the waiver as not intelligent and
knowing. (Mosby, supra, 33 Cal.4th at pp. 356-359.) Our Supreme Court held that the
waiver was valid even though the defendant did not expressly waive his right to remain
silent or confront adverse witnesses because, among other considerations, “defendant,
who was represented by counsel, had just undergone a jury trial at which he did not
testify.” (Id. at p. 364.) Here, the People rely heavily on Mosby, noting that this case
also involves a waiver of trial on additional facts after conclusion of a jury trial. But in
Mosby, the trial court expressly informed the defendant that the waiver meant the court
could determine the truth of the prior conviction. (Id. at p. 358 [“‘The Court: Mr.
Mosby . . . you already waived having the jury determine the truth of this prior felony
conviction of yours that’s alleged. You are . . . entitled to have the court hear the matter,
as well, to make a determination. [¶] ‘Do you understand that? [¶] . . . [¶] Do you
waive and give up your right to have the court make the determination?’”].) As noted,
the trial court made no such statement here.
Other parts of the record also suggest the stipulations were not knowing and
intelligent. In none of the instances involving jury waiver or aggravating factor
stipulations does the record show that Anderson initiated the request. (See People v.
Sivongxxay (2017) 3 Cal.5th 151, 167 [upholding jury waiver in part because the
“defense initiated the request for a court trial”] (Sivongxxay); People v. Daniels (2017) 3
Cal.5th 961, 993 (conc. & dis. opn. of Cuéllar, J.) (“He did not ask about waiving a jury.
26
In fact, it was the judge who broached the issue.”].) Specifically as to the six stipulations,
the trial court broached the possibility of stipulation before offering the alternative of
“handl[ing] it some other way.” The lack of initiation further suggests Anderson did not
understand what he was being asked to do.
The People note Anderson’s “substantial experience and familiarity with a
criminal jury trial” based on his prior convictions. Experience with the criminal justice
system is no doubt a relevant factor. (See Sivongxxay, supra, 3 Cal.5th at p. 167; Parke
v. Raley (1992) 506 U.S. 20, 37 [“evidence of a defendant’s prior experience with the
criminal justice system” is “relevant to the question whether [a defendant] knowingly
waived constitutional rights”].) But also relevant is that, prior to 2022, aggravating
factors were not facts that needed to be found beyond a reasonable doubt by a jury unless 6 waived. Whatever experience Anderson had with criminal trials in general, that
6 Prior to 2007, the determinate sentencing law required that “when a statute specified three terms, ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.’” (People v. Lynch (2024) 16 Cal.5th 730, 746 (Lynch), citing former § 1170, subd. (b).) The law “reflected a presumption in favor of the middle term,” and aggravating and mitigating circumstances “had to be proved by a preponderance of the evidence.” (Lynch, supra, at p. 746.) “Under that scheme the trial court, not the jury, determined the facts bearing on aggravation or mitigation employing the lower standard of proof.” (Ibid.) However, “[i]n 2007, the United States Supreme Court found this sentencing scheme unconstitutional on the ground that ‘under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’” (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 74 (Chavez Zepeda), citing Cunningham v. California (2007) 549 U.S. 270, 281 (Cunningham).) In response, the Legislature amended the determinate sentencing law “to give ‘trial judges broad
27
experience did not extend to ones where the jury trial right extended to aggravating
factors.
Between the trial court’s confusing comments getting Anderson to stipulate to
“considering” or “arguing” the aggravating factors, its disclaimer to the prosecutor that it
was not going to make a finding on some of the factors until sentencing, the lack of any
statement that it was asking Anderson to stipulate to the truth of the factors, the absence
of any initiative on Anderson’s part to stipulate, and his lack of experience with criminal
trials where aggravating factors must be found beyond a reasonable doubt, we conclude
that Anderson’s stipulation was not knowing and intelligent. Waivers in this context are
discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term.’” (Chavez Zepeda, supra, at p. 74.) Under the determinate sentencing law post-Cunningham, the middle term was “‘no longer the presumptive term absent aggravating or mitigating facts found by the trial judge,’” and the trial judge had “‘discretion to impose an upper, middle or lower term’” based on the “‘“best . . . interests of justice.”’” (Chavez Zepeda at p. 74.) Aggravating factors went from facts having to be found by a preponderance of the evidence to sentencing factors merely “considered by trial courts in exercising their discretion.” (People v. Black (2007) 41 Cal.4th 799, 813, superseded by statute on other grounds as stated in Lynch, supra, 16 Cal.5th at p. 757; Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [“the term ‘sentencing factor’” “describes 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”], italics omitted.) Following amendments to the determinate sentencing law effective January 1, 2022, aggravating factors are no longer facts to be found by a preponderance of the evidence or sentencing factors considered in the exercise of judicial discretion. As it now stands, aggravating factors must “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); Stats. 2021, ch. 695, § 5.) The 2022 amendments reflect the fact that an aggravating factor “exposes a defendant to a greater potential sentence.” (Cunningham, supra, 549 U.S. at p. 281.)
28
knowing and intelligent if they are “given with an understanding of the rights waived.”
(Mosby, supra, 33 Cal.4th at p. 361.) But we cannot say a defendant understands what
rights he is waiving if we cannot be confident he understands what the court asks of him
to begin with. We therefore vacate Anderson’s sentence and remand for a court trial on 7 the six aggravating factors unless Anderson validly stipulates to them.
D. Remaining Sentencing Claims
Anderson’s remaining claims concern other aspects of his sentencing. He argues
the trial court engaged in “dual use” of facts by finding true aggravating factors that were
also elements of the assault with a deadly weapon charge. (See rule 4.420(h) [“A fact
that is an element of the crime on which punishment is being imposed may not be used to
impose a particular term”].) Anderson also argues the sentence on his misdemeanor
charge should have been stayed under section 654 because both crimes were part of a
single course of conduct. (See § 654, subd. (a) [“An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision”]; People v. Fuentes (2022) 78 Cal.App.5th 670, 680 [§ 654 “applies not only
to a single act violating multiple code provisions, but also to an indivisible ‘“‘course of
conduct’”’ violating several statutes”].) However, because we are vacating Anderson’s
7 We decline to address as forfeited Anderson’s claim, made for the first time in his reply brief, that he did not receive “due process notice” of the four unalleged aggravating factors. (See Golden Door Properties, LLC v. Superior Court of San Diego County, supra, 53 Cal.App.5th at p. 786.)
29
sentence, any other purported errors stemming from it are now moot. We therefore
decline to address these arguments, and Anderson may raise them, as necessary, when he 8 is resentenced.
III. DISPOSITION
The convictions are affirmed, the sentence is vacated, and the matter is remanded.
If the People elect to proceed on aggravating factors other than the one alleged under rule
4.421(b)(3), the court shall conduct a trial unless Anderson validly stipulates to the
aggravating factors. Otherwise, the trial court shall resentence Anderson.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
CODRINGTON Acting P. J.
MENETREZ J.
8 For the same reason, we decline to address the People’s argument that the abstract of judgment and minute order erroneously reflect a shorter sentence than is reflected in the trial court’s oral pronouncement of judgment.
30
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's stipulations to six aggravating factors were not knowing and intelligent because the colloquy failed to clarify that the defendant was admitting to the truth of those factors. Consequently, the sentence was vacated and the case remanded for further proceedings.
Issues
Whether the trial court abused its discretion by admitting evidence of a prior domestic violence conviction under Evidence Code section 1109.
Whether the unanimity instruction was erroneous by potentially allowing a single act to form the basis for both charged counts.
Whether the defendant's stipulations to six aggravating factors were knowing and intelligent.
Disposition. Convictions affirmed, sentence vacated, and remanded with directions.
Quotations verified verbatim against the opinion
“We agree, as the colloquy did not make clear Anderson knew he was being asked to stipulate to the truth of the aggravating factors.”