California Court of Appeal Jan 23, 2026 No. E077548AUnpublished
Filed 1/23/26 P. v. Walker CA4/2 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E077548
v. (Super.Ct.No. INF1402616)
FLOYD ROLAND WALKER III, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Reversed and remanded.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Melissa Mandel, Acting Assistant Attorney General, Charles C. Ragland,
Warren Williams and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted defendant and appellant, Floyd Roland Walker III, of inflicting
corporal injury upon a cohabitant. (Pen. Code, § 273.5, subd. (a), count 2.)1 The jury
also found that defendant personally inflicted great bodily injury (GBI) upon the victim,
The jury found defendant guilty of cohabitant abuse (§ 273.5, subd. (a), count 2)
but not guilty of cohabitant abuse resulting in a traumatic condition (§ 273.5, subd. (e)(1),
count 1). The jury deadlocked on the count 3 offense. The jury also found that, in his
commission of the count 2 offense, defendant personally inflicted GBI upon the victim
5
under circumstances involving domestic violence. (§ 12022.7, subd. (e).) (Walker I,
supra, E067404; Walker II, supra, E077548.)
At the bench trial on the prior conviction allegations, the People moved into
evidence two section 969, subdivision (b), packets, which contained certified copies of
defendant’s relevant criminal records. The court found true allegations that defendant had
served two prior prison terms (§ 667.5, subd. (b)), had one prior serious felony conviction
(§ 667, subd. (a)), and had one prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1)). (Walker I, supra, E067404; Walker II, supra, E077548.)
The probation officer’s report reflected that defendant had convictions for 10 prior
misdemeanor offenses and four prior felony convictions, the latter of which included two
prior cohabitant abuse and two prior assault convictions. Defendant had previously had
his probation revoked and had multiple prior parole violations. (Walker II, supra,
E077548.)
Defendant declined to be interviewed for the report. The probation officer
recommended the court sentence defendant to the upper term on count 2. She noted that
there were “no mitigating factors which apply to the defendant or his offense. He has
served multiple prison sentences for domestic violence and assault, and his criminal
history paints a disturbing pattern of violence against women, which needs to end.”
(Walker II, supra, E077548.)
Defense counsel orally moved the court to strike defendant’s prior strike
conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. He
6
argued there were mitigating factors with respect to the instant offense, including that
there was “great provocation.” He pointed to evidence that another hotel guest testified
she heard a woman screaming. Defense counsel argued that “[i]t appeared as if the male
voice was more calm and reserved, whereas the female voice was louder and cursing.”
(Walker II, supra, E077548.)
The People argued, “defendant has a recidivist nature regarding domestic violence
crimes. He has at least four prior felony domestic violence convictions within the last 15
years. He’s been to prison twice in the last 15 years for domestic violence crimes. His
strike prior is for a domestic violence related case.” The court denied the Romero
motion. (Walker II, supra, E077548.)
The court noted that it had read and considered the probation officer’s report,
along with the People’s sentencing memorandum. Defense counsel asked that his
arguments made in support of the motion be incorporated into his arguments regarding
sentencing and argued that the incident “started out as self-defense. I believe that would
be mitigating.” (Walker II, supra, E077548.)
The court then stated the following: “[T]here was no evidence presented that
would support mitigation in this case. None. There’s nothing presented to me through
sworn testimony. There was a lot of just [defendant] making arguments from his chair,[2]
which is not evidence. So there’s nothing to support the idea that there was anything
mitigating in there going on and that because of the GBI, because of his history and his
2 Defendant represented himself at trial.
7
record, I find that the aggravating circumstances far outweigh any mitigation whatsoever
and absolutely support a finding of upper term, especially given all of the prison
sentences he’s had.” (Walker II, supra, E077548.)
The court sentenced defendant to an aggregate term of 17 years of imprisonment,
consisting of the upper term of four years on the substantive offense, doubled due to the
prior strike; the low term of three years on the GBI enhancement; one year on the prior
prison term; and five years on the prior serious felony conviction. The court struck
punishment on the second prison prior. The court dismissed count 3 on the People’s
motion. (Walker I, supra, E067404; Walker II, supra, E077548.)
Defendant appealed contending that he had received ineffective assistance of
counsel when defense counsel failed to object to the court’s dual use of two sentencing
factors, the GBI and defendant’s criminal history, in imposing the upper term. The
People conceded that the court should not have relied upon the GBI and the two felony
convictions that were the bases of the prior prison conviction and prior serious felony
conviction enhancements to impose the upper term. (Walker I, supra, E067404; Walker
II, supra, E077548.)
We agreed that the court was not permitted to use “the fact” of the GBI
enhancement to impose the upper term. However, we determined that the court relied on
several reasons for imposing the upper term, including “the GBI, [defendant’s] history
and his record [and] all of the prison sentences he’s had.” Thus, it was clear from the
court’s statement of reasons that it did not use “the fact” of defendant’s prior conviction
8
enhancements as aggravating circumstances. Rather, the court relied on defendant’s
“history and his record.” (Walker I, supra, E067404; Walker II, supra, E077548.)
We observed, “In citing defendant’s history, record, and numerous prison
sentences, the court apparently relied on the aggravating factors that defendant’s prior
convictions were numerous and that he served multiple terms in prison or county jail.
[Citation.] His criminal history dates back to 1998 and includes 11 infractions,
10 misdemeanors, and four felony convictions. The felony convictions were for assault
with a deadly weapon [citation] and inflicting corporal injury on a spouse [citation]. The
record shows that defendant has spent numerous days in jail and several years on
probation for his misdemeanor convictions. He has also been sentenced to at least three
prison terms. We further note that the court heard and considered defense counsel’s
argument regarding mitigating circumstances, namely that there was ‘“great
provocation.”’ However, it found no mitigating factors.” (Walker I, supra, E067404;
Walker II, supra, E077548.)
We concluded that defendant could not show prejudice from defense counsel’s
failure to object to the dual use of facts, and that the court properly imposed the upper
term. However, we remanded the matter for resentencing pursuant to Senate Bill
No. 1393 (2017-2018 Reg. Sess.). (Walker I, supra, E067404; Walker II, supra,
E077548.)
On remand from this court, defense counsel filed a sentencing memorandum
inviting the court to strike the prior serious felony enhancement and prior strike
9
conviction. Defense counsel argued the court should exercise its discretion to do so
based largely on defendant’s “exemplary behavior” as a “model inmate.” The People
filed opposition. The People argued, in part, that defendant’s “recidivist history and
public safety concerns” militated against striking any strike or enhancement. (Walker II,
supra, E077548.)
At the hearing on February 7, 2020, the court noted that it had reviewed the
remittitur, the probation report, defense counsel’s resentencing memorandum, the
People’s opposition, and the sentencing transcript. In reviewing the sentencing transcript,
the court stated: “I didn’t see anywhere in there that I made such a statement where I
would say, . . . I realize this is a long time. If I had discretion, I would strike the strike. I
would strike the nickel prior. I would do these things.” “So in looking at the transcript, it
didn’t indicate in there anything about my views [that] it was too much time, [that] I wish
I had discretion on this, nothing of that nature. In fact, it was quite the opposite. I think I
said something like [defendant] fits squarely under three strikes and there was no reason
to grant his Romero motion. I could not say he fell outside of the whole point behind
three strikes.” (Walker II, supra, E077548.)
Defense counsel argued, “the Court has an option to go all the way to striking the
strike and imposing probation if it wanted to take such a leap of faith.” “The defense
simply is saying it really comes down to the weight the Court chooses to give
[defendant’s] behavior over the last three, four years.” (Walker II, supra, E077548.)
10
The court declined to revisit its decision on the Romero issue: “So nothing in my
mind has changed. [Defendant’s] history is still the same. The offense is still the same.
This [victim had] . . . two black eyes with bruising and swelling, bruising to the left side
of her face, pain and bleeding to the nose and felt broken, pain to her jaw, had trouble
talking for a few days following the attack, a cut above her eye, scratches to her face.
Her top teeth felt like they were hurt. [She] felt like they were going to fall out. They
were numb. The ones on her left side felt numb. Her teeth felt numb. She was in a lot of
physical pain, her head was hurting, everything was hurting for several days. The GBI
enhancement was found true.” (Walker II, supra, E077548.)
The court further explicated, defendant’s “history of domestic violence dates back
to 2001 when he was initially granted probation out of San Bernardino for a DV case, a
273.5. He then promptly violates that probation because he picked up a 245(a)(1)
wherein he was sent to prison for two years. He gets paroled and then violates his parole
at least six times in 2005. [¶] He’s then charged in 2007. And then in 2007, guess what
happens? He gets convicted of another 273.5 and a 245(a)(1). And he’s sent to prison
for four years. He gets paroled and then violates his parole at least three times. He gets
discharged in 2012. He commits this case, this violation in 2014. Not even two years
goes by and he commits another act of violence against another woman causing great
bodily injury. [¶] This is not a person that I’m going to show mercy to, that I’m going to
give them a break, that I’m going to wash away the strike prior or the prison priors. They
have not earned that. I’ll do it if I think the person’s earned it. I’ve got no problem doing
11
it, but [his] . . . history speaks for itself. And the case in chief speaks for itself.” “This
type of history to me indicates a fundamental systematic . . . issue with the defendant’s
behavior that requires a lengthy sentencing not only to give him time to work on that, but
to protect the public from this ever happening again.” The court declined to exercise its
newfound discretion to strike the nickel prior. (Walker II, supra, E077548.)
Subsequently, defendant personally argued at length that his efforts in programs to
better himself since reaching prison warranted an exercise of the court’s discretion to
strike the nickel prior. Defendant contested the court’s finding that he had multiple
parole violations, asserting that he was “never convicted of a single violation.” (Walker
II, supra, E077548.)
The court noted that it was just going off what was contained in the probation
officer’s report and that, regardless, “[i]t still doesn’t wash away the 11-year history of
domestic violence.” The court continued, “if what I’m doing here is balancing those
against the history that you have displayed for 11 years leading up to the instant offense
. . . it is not something that . . . causes me to find that it is in the interest of justice to strike
the nickel prior. Okay. It is too lengthy. Too many victims. Too many severely injured
people, women, too many times in prison.” Nonetheless, pursuant to Senate Bill No. 136,
the court struck both of defendant’s prior prison term enhancements, resulting in a one-
year reduction in defendant’s sentence. (Walker II, supra, E077548.)
Defendant appealed. We held that it was not reasonably probable the court would
have imposed a sentence more favorable to defendant in the absence of its reliance on the
12
improper GBI factor. We noted the evidence in support of the court’s properly relied
upon aggravating factor, defendant’s criminal history, was “‘overwhelming and
uncontested, and there is no “evidence that could rationally lead to a contrary finding.”’”
We held that the court or the jury, “‘applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single aggravating circumstance,’”
specifically defendant’s criminal history, such that any error in not submitting that factor
to a jury or court trial was harmless. (Walker II, supra, E077548.)
II. DISCUSSION
Defendant contends that the matter should be remanded for a full resentencing
hearing because the trial court unconstitutionally relied upon its own factfinding to
impose the upper term on defendant’s conviction, and the error is not harmless beyond a
reasonable doubt. We agree.
On “January 1, 2022, the Legislature . . . amended section 1170 to provide that the
trial court ‘shall,’ in its discretion impose a sentence ‘not to exceed the middle term’
[citation] except in the following circumstance: ‘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’ an upper term sentence, 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.’ [Citations.]
Notwithstanding these provisions, the court ‘may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
13
submitting the prior convictions to a jury.’ [Citation.]” (Lynch, supra, 16 Cal.5th at
p. 748, fn. omitted.)
“[T]he trial court’s factfinding role as to a defendant’s prior convictions [is]
specifically exempted from the Sixth Amendment jury trial right. [Citation.]” (Lynch,
supra, 16 Cal.5th at p. 767.) However, “any fact, beyond the bare fact of a prior
conviction, that exposes a defendant to harsher punishment, must be found by a jury
beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury
trial.” (Wiley, supra, 17 Cal.5th at p. 1084.) For example, a defendant is “entitled to
have a jury determine whether his prior convictions were of increasing seriousness and
whether he had performed unsatisfactorily on probation, before the court could rely on
those aggravating facts to find justification for an upper term sentence.” (Id. at p. 1085.)
Likewise, a court’s determination that a defendant has suffered prior criminal
convictions on separate occasions, that the offenses were close in time, and that they were
similar or intertwined in purpose and character runs afoul of constitutional proscriptions
and must be resolved by a unanimous jury beyond a reasonable doubt. (Wiley, supra, 17
Cal.5th pp. 1082-1083 [Error for court to impose additional time based on its “qualitative
assessment of the offenses’ ‘time, location, character, and purpose’”], quoting Erlinger v.
United States (2024) 602 U.S. 821.)
“When a defendant is deprived of a jury trial on aggravating facts used to justify
imposition of an upper term sentence, the reviewing court must apply the Chapman
14
standard of review. [Citations.] Under that standard, ‘a sentence imposed under . . .
section 1170(b) must be reversed and remanded unless the reviewing court concludes
beyond a reasonable doubt that a jury, applying that same standard, would have found
true all of the aggravating facts upon which the court relied to conclude the upper term
was justified, or that those facts were otherwise proved true in compliance with the
current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman if ‘the
record contains evidence that could rationally lead to a contrary finding’ with respect to
the aggravating fact at issue.’ [Citations.]” (Wiley, supra, 17 Cal.5th at p. 1086 [error
not harmless where a rational jury could have concluded that the People failed to prove
beyond a reasonable doubt that the defendant’s convictions were of increasing
seriousness]; accord, Lynch, supra, 16 Cal.5th at pp. 742-743, 760-761, 768, 775 [“We
may . . . find the omission harmless if we can conclude beyond a reasonable doubt ‘that
the omitted [fact] was uncontested and supported by overwhelming evidence’”].)
It is notable here that the sentencing court, on remand from this court’s first
opinion, did conduct a qualitative and quantitative analysis of defendant’s criminal
history: “It is too lengthy. Too many victims. Too many severely injured people,
women, too many times in prison.” (Walker II, supra, E077548.) However, contrary to
defendant’s implication,{DSupp 9} the court’s reasoning there was not used to support
imposition of the upper term; in fact, the court on remand was not considering whether to
impose the middle or upper term; rather, it was considering only whether to strike the
15
prior strike conviction and prior serious felony enhancement. Thus, its reasoning was not
constitutionally improper.
However, the court, when originally sentencing defendant, effectually relied upon
two factors in imposing the upper sentence: (1) the GBI; and (2) defendant’s prior
convictions. A jury found the former factor true; however, as discussed in our previous
opinion, the court erred in relying on that factor in imposing the upper term.
Nonetheless, we held the error harmless beyond a reasonable doubt because any jury
unquestionably would have found true the latter factor, and we were assured that the trial
court would have exercised its discretion to impose the upper term based on just that
factor. (Walker II, supra, E077548.)
The latter factor remains proper for consideration by a court in imposing an
aggravated term without a jury determination when made upon a certified record.
(Lynch, supra, 16 Cal.5th at pp. 748, 767; Wiley, supra, 17 Cal.5th at p. 1084; § 1170,
subd. (b)(3).) We discern no opacity in the sentencing court’s reliance on defendant’s
“history and his record,” and “all the prison sentences he’s had.” Like the People at oral
argument, we agree that the court was clearly describing defendant’s prior convictions.3
Nonetheless, in abundance of caution, we find that the latter portion of the court’s
statement, “all the prison sentences he’s had,” is capable of being interpretated as a
3 Indeed, in his first appeal, defendant contended the court erred in impermissibly relying on two aggravating factors: (1) the GBI; and (2) defendant’s “prior criminal history.” (Walker I, supra, E067404.)
16
forbidden quantitative assessment. Indeed, we previously observed, “In citing
defendant’s history, record, and numerous prison sentences, the court apparently relied on
the aggravating factors that defendant’s prior convictions were numerous and that he
served multiple terms in prison or county jail.” (Walker I, supra, E067404; Walker II,
supra, E077548, italics added.) Thus, any reliance on the numerosity of defendant’s
convictions was required to have been determined by a jury beyond a reasonable doubt or
to have been stipulated to by defendant, neither of which occurred here.
The court here admitted certified records of defendant’s prior criminal history into
evidence at the court trial on defendant’s prior convictions. Those records reflect that in
2001, defendant pled guilty to assault with a deadly weapon (§ 245, subd. (a)(1)) and
infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)). They further reflect that
in 2007, a jury convicted defendant of infliction of corporal injury on a cohabitant
(§ 273.5, subd. (a)) and assault with a weapon (§ 245, subd. (a)(1)). Still further, they
reflect that in 2016, a jury found defendant guilty of infliction of corporal injury on a
spouse. (§ 273.5, subd. (a).)
Thus, to the extent the court relied solely on the bare fact of defendant’s prior
convictions, the court properly found that the upper term was warranted, because that is
precisely the sort of bare fact a court is permitted to determine itself based on a certified
record. (Lynch, supra, 16 Cal.5th at pp. 749, 767; § 1170, subd. (b)(3).) However, as
noted ante, because the court’s characterization of defendant’s prior convictions is
susceptible to being characterized as positing on their numerosity, that portion of the
17
court’s reasoning for imposing the upper term was required to be determined by a jury
beyond a reasonable doubt.
Neither can we find any error harmless. Guided by Lynch and Wiley’s
determinations that the errors in those cases were not harmless, we cannot say that a
properly instructed jury would necessarily have found defendant’s convictions
“numerous.”
In Wiley, the court could not find harmless the court’s imposition of the upper
term without a jury determination based on its finding that the defendant’s prior
convictions were of increasing seriousness, where the defendant’s criminal history began
with an infraction in 1998; a felony conviction in 1998; eight misdemeanor convictions
between 1998 and 2018; and additional felony convictions in 2005, 2009, 2015, 2016,
and 2020. (Wiley, supra, 17 Cal.5th at pp. 1087-1090 [“we cannot conclude beyond a
reasonable doubt that a properly instructed jury would have found Wiley’s criminal
convictions were of increasing seriousness”].)
Likewise, the Wiley court could not find harmless the court’s imposition of the
upper term without a jury determination based on its finding that the defendant performed
unsatisfactorily on probation, where the defendant had once successfully completed
probation, twice violated probation and had his probation revoked due to his arrest and
conviction on new misdemeanor and felony offenses, and violated the terms of his post
release community supervision, when he was convicted of a new misdemeanor offense.
18
(Wiley, supra, 17 Cal.5th at pp. 1090-1091 [Court could not “discount the possibility that
a rational jury could have disagreed as to whether the People had proved that Wiley’s
overall performance on probation was unsatisfactory”].) Thus, the matter must be
reversed and remanded.
“Further proceedings on remand are to be conducted in accordance with the
current statutory requirements . . . . [Citation.] On remand, the parties remain free to
introduce at trial all relevant evidence to support or contest the factual support for the
aggravating circumstances set out in the California Rules of Court. The court may rely
on any properly proven aggravating facts, including prior convictions or facts necessarily
found by the jury to support a verdict on underlying counts and enhancements. The court
retains its discretion to impose an upper term sentence if it concludes that one or more
properly proved circumstances justify such a sentence. [Citation.] If it cannot so
conclude, it may impose no more than a middle term for each of the counts on which
[defendant] stands convicted. [Citation.]” (Lynch, supra, 16 Cal.5th at pp. 777-778.)
In other words, the People may either concede to the resentencing of defendant to
the midterm or attempt to prove the aggravated term by one of several methods, including
alleging, on a certified record, that the bare fact defendant’s prior criminal convictions
warrant imposition of the upper term. (Lynch, supra, 16 Cal.5th at pp. 748, 767; Wiley,
supra, 17 Cal.5th at pp. 1084-1085; § 1170, subd. (b)(3).)
19
III. DISPOSITION
“The judgment . . . affirming [defendant’s] sentence is reversed. We remand to
the . . . trial court for further litigation of the aggravating circumstances[,] and for the
court to exercise its discretion under current section 1170(b) as indicated here.
[Citation.]” (Lynch, supra, 16 Cal.5th at p. 778.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
MENETREZ J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court's reliance on the numerosity of the defendant's prior convictions to impose an upper term sentence violated the defendant's Sixth Amendment rights, as such findings must be made by a jury beyond a reasonable doubt. Because the sentencing court's reasoning was susceptible to being interpreted as an impermissible qualitative or quantitative assessment of the defendant's criminal history, the error was not harmless.
Issues
Whether the trial court's reliance on the numerosity of the defendant's prior convictions to impose an upper term sentence constitutes unconstitutional factfinding under People v. Lynch and People v. Wiley.
Whether the error in relying on the numerosity of prior convictions for sentencing is harmless beyond a reasonable doubt.
Disposition. Reversed and remanded.
Quotations verified verbatim against the opinion
“any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt”
“any reliance on the numerosity of defendant’s convictions was required to have been determined by a jury beyond a reasonable doubt or to have been stipulated to by defendant, neither of which occurred here.”