People v. Ferguson CA5

Filed 11/3/26 P. v. Ferguson CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F089562 Plaintiff and Respondent, (Super. Ct. Nos. BF198882A, v. BF193805A) BRANDEN FERGUSON, OPINION Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Tiffany Organ- Bowles, Judge. Robert N. Treiman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Before Franson, Acting P. J., Snauffer, J. and Harrell, J.  Defendant Branden Ferguson contends on appeal that: (1) the sentence on count 1 in case No. BF198882A (case 2) must be vacated because the trial court prejudicially erred by failing to obtain a personal waiver from defendant of his right to a jury trial on the aggravating circumstances found true by the trial court; and (2) the revocation of probation in case No. BF193805A (case 1) must be reversed and the sentence on count 1 in case 1 vacated. The People concede that the sentence on count 1 in case 2 must be vacated because the court prejudicially erred in failing to obtain a personal waiver from defendant of his right to a jury trial on the aggravating circumstances and contend the matter must be remanded for either a jury trial on the aggravating circumstances, resentencing, or for the court to obtain a personal waiver of a jury trial. However, the People do not agree that the revocation of probation must be reversed. 1 We vacate the sentences on both count 1 in case 2 and count 1 in case 1 and remand the matter for either a jury trial on the aggravating circumstances, resentencing, or for the court to obtain a personal waiver of a jury trial. In all other respects, the judgment is affirmed. PROCEDURAL SUMMARY Case No. BF193805A (Case 1) On October 5, 2023, in case 1, defendant was convicted of assault with a semi- automatic firearm (Pen. Code, 2 § 245, subd. (b); count 1). The trial court imposed a term of 80 days in county jail and two years of felony probation. Case No. BF198882A (Case 2) On August 30, 2024, in case 2, the Kern County District Attorney filed an information charging defendant with being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 1); and an infraction for failure to stop at a red light (Veh. Code, 1 The People do not address whether the sentence on count 1 in case No. BF1938405A should be vacated. 2 All further statutory references are to the Penal Code, unless otherwise stated. 2. § 21453, subd. (a); count 2). As to count 1, it was further alleged that defendant suffered a prior serious or violent felony and prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) for his conviction on count 1 in case 1. Four aggravating factors were also alleged pursuant to California Rules of Court, 3 rule 4.421: defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); defendant had prior convictions that are numerous or of increasing seriousness (rule 4.421(b)(2)); defendant was on probation when the crime occurred (rule 4.421(b)(4)); and defendant’s performance on probation was unsatisfactory (rule 4.421(b)(5)). On September 9, 2024, defendant pled not guilty to the charges and denied the special allegations. On February 11, 2025, defendant waived his right to a jury trial on the prior conviction allegations. On February 13, 2025, the trial court empaneled a jury. On February 18, 2025, the jury found defendant guilty of count 1. The trial court dismissed count 2 in the interest of justice pursuant to section 1385. Defendant waived his right to a jury trial regarding the prior strike allegation and the aggravating circumstance alleged pursuant to rule 4.421(b)(1). The court found defendant guilty of violating the terms of probation in case 1. The court found true the prior strike allegation. At a bifurcated proceeding, the trial court found not true the aggravating factor alleged pursuant to rule 4.421(b)(1). It found true the aggravating factors alleged pursuant to rules 4.421(b)(2), 4.421(b)(4), and 4.421(b)(5). On March 18, 2025, the trial court held a sentencing hearing. Defendant orally requested the court dismiss his prior strike conviction pursuant to Romero, and in the alternative, to sentence defendant to the mid-term of six years, concurrent, on both 3 All further rules references are to the California Rules of Court. 3. cases. 4 The court denied defendant’s Romero motion. It imposed a total term of six years, as follows: case 2, on count 1 a term of six years (the upper term, doubled pursuant to the Three Strikes law; and in case 1, on count 1, revoked defendant’s probation and imposed six years (the mid-term), concurrent 5 with the term in case 2. On March 26, 2025, defendant filed a timely notice of appeal. FACTUAL SUMMARY On March 25, 2024, a police officer on patrol watched defendant drive his vehicle through a red light. The officer stopped defendant’s vehicle and searched defendant’s vehicle and his person. 6 He found a pistol magazine containing seven rounds of nine- millimeter ammunition in the center console. Defendant testified that he told the officer he had bullets in his car because he found them the night before and was on the way to turn them in. DISCUSSION Defendant contends the sentence must be vacated because the trial court prejudicially erred in failing to obtain a personal waiver from defendant of his right to a jury trial on the aggravating circumstances found true by the trial court. The People agree, as do we. A. Background The amended information alleged four aggravating circumstances: defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); defendant had prior convictions that are numerous or of increasing seriousness (rule 4 People v. Superior Court (Romero) 13 Cal.4th 497. 5 On March 19, 2025, the court held a hearing. It stated it had mistakenly failed to note at the March 18, 2025 hearing that the term in case 1 was concurrent to the term in case 2. 6 The parties stipulated that defendant suffered a felony conviction prior to the date of the offense and that his vehicle was lawfully searched on March 25, 2024. 4. 4.421(b)(2)); he was on probation when the crime occurred (rule 4.421(b)(4)); and his performance on probation was unsatisfactory (rule 4.421(b)(5)). On February 11, 2025, the following colloquy occurred: “THE COURT: … Our primary case is [case 2]. Before we went on the record I had noted that we also need to call [case 1], which is the violation of probation. That will be a formal violation hearing going on concurrently with the trial. I won’t be stating that obviously in the presence of the jury. But just for everybody’s knowledge, when we are in hearing on [case 2], which is the current trial, we are also in [case 1], particularly once the evidence begins. That will be heard simultaneously by me, that’s the Court. I just wanted to put that on the record. “[Defense counsel], are you wanting to have the case bifurcated, particularly in light of the motions in limine? How did you wish to proceed on those? “[DEFENSE COUNSEL]: Yes, Your Honor.… I would ask that the priors be bifurcated. “THE COURT: And then for the record, the only aggravating factor that would even be of jury consideration is the [rule 4.421] (b)(1). “Counsel, do you…want to have those bifurcated as well? “[DEFENSE COUNSEL]: Yes, please. “THE COURT: Okay. And then will you be going—if it becomes relevant, would you be going by way of bench or jury trial as to the strike? “[DEFENSE COUNSEL]: Bench. “THE COURT: Bench. And same with the [rule 4.421](b)(1) factor? “[DEFENSE COUNSEL]: Yes, Your Honor.” The trial court then had the following exchange with defendant: “THE COURT: So, [defendant], this question only really comes into play if you’re convicted of the felony. You do have a strike alleged, okay, pursuant to [section] 667[, subdivision] (e). You also have what we call aggravating factors pursuant to [rule] 4.421. Only one of those that’s 5.  alleged would even be considered by a jury. The remaining ones are bench questions. “At this time, sir, is it your wish to waive jury trial as to the strike prior and as to the [rule] 4.421(b)(1) should you be convicted of a felony? “[DEFENDANT]: Yes, ma’am.” Defense counsel joined in defendant’s waiver of a jury trial on the rule 4.421(b)(1) aggravating factor. The court then stated, “Very well, then. We will show that they are both bifurcated and that jury trial has been waived as to those factors.” On February 18, 2025, at a bifurcated proceeding, the trial court stated it found the prior strike conviction true. As to the aggravating factors, the court stated, “As to special allegation [rule] 4.421(b)(1), I find that to be not true. “As to 4.421(b)(2), I toiled with this one a little bit, but I went back to the language of the statute and I did review People’s [Exhibit]—11 which was the CLETS printout. And it’s—while there are not—there are relatively few felony convictions, there are numerous misdemeanor convictions. So at this time I do find 4.421(b)(2) to be true. “As to 4.421(b)(4), I find that true. “As to 4.421(b)(5), I find that to be not true.” On March 18, 2025, the trial court held a sentencing hearing. The trial court stated: “Circumstances in mitigation. The defendant’s prior performance on juvenile probation was satisfactory. Circumstances in aggravation. The defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous as enumerated in Rule of Court 4.421(b)(2), which was pled and proven. Two, the defendant was on felony probation at the time of the offense as enumerated in Rule of Court 4.421(b)(4), also pled and proven at trial. Three, the defendant’s prior performance on five grants of misdemeanor probation and two grants of felony probation was unsatisfactory in that he violated the terms and/or reoffended. 6.  “As such at this time in [case 2], Count 1, [section] 30305[, subdivision] (a)(1) with a [section] 667[, subdivision] (e) prior enhancement, probation is denied and he is sentenced to the Department of Corrections for the upper term of six years. [¶] … [¶] “As to [case 1], that is the revocation, at this time probation is revoked and he is sentenced to the Department of Corrections for the midterm of six years with custody credits as follows: 70 actual plus 70 good and work for a total of 140 days as of today’s date, March 18, 2025.” B. Law A criminal defendant’s right to a jury trial on “all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence” is guaranteed by the Sixth Amendment of the United States Constitution under section 1170, subdivision (b). (People v. Wiley (2025) 17 Cal.5th 1069, 1086 (Wiley); see U.S. Const., 6th Amend.) Section 1170, subdivision (b), provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so and “the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(1) & (2).) “An aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary.’ ” (People v. Black (2007) 41 Cal.4th 799, 817, overruled on other grounds in Wiley, supra, 17 Cal.5th at pp. 1084–1085.) A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense. (People v. Scott (1994) 9 Cal.4th 331, 350; People v. Marshall (1987) 196 Cal.App.3d 1253, 1259; People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769 (Lynch); rule 4.420(h).) Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior 7. convictions to a jury. (§ 1170, subd. (b)(3); Lynch, supra, 16 Cal.5th at p. 768.) However, the court’s consideration is limited to “the bare fact of a prior conviction and its elements.” (Wiley, supra, 17 Cal.5th at p. 1086.) Pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” except for “the fact of a prior conviction.” (Id. at p. 490.) Further, the United States Supreme Court recently imposed new limits on the factors that the trial court may rely upon to increase a sentence in the absence of a jury finding or a defendant’s stipulation. In Erlinger v. United States (2024) 602 U.S. 821, the United States Supreme Court imposed new limits on the factors that a sentencing judge may rely upon to increase a sentence in the absence of a jury finding or a defendant’s stipulation. (Id. at p. 825.) There, the defendant was charged under the Armed Career Criminal Act, which enhances the sentence of certain defendants if they previously committed three violent felonies or serious drug offenses on separate occasions. (Ibid.) Whether offenses occurred on separate occasions “can require an examination of a ‘range’ of facts, including whether the defendant’s past offenses were ‘committed close in time,’ whether they were committed near to or far from one another, and whether the offenses were ‘similar or intertwined’ in purpose and character.” (Id. at p. 828.) The Erlinger court concluded that, pursuant to Apprendi, the question of whether the offenses occurred on separate occasions must be submitted to a jury, not determined by a judge. (Id. at p. 835.) The Erlinger court also rejected an argument that a trial court could decide the separate occasions inquiry under the exception to Apprendi set out in Almendarez-Torres v. United States (1998) 523 U.S. 224, which permits a judge to “undertake the job of finding the fact of a prior conviction—and that job alone.” (Erlinger at p. 837.) While Erlinger acknowledged that, “[o]ften, a defendant’s past offenses will be different enough and separated by enough time and space that there is 8. little question [the defendant] committed them on separate occasions,” it nonetheless made a categorical rule that even though the fact of prior convictions can sometimes resolve the separate-occasions inquiry, that inquiry must always be submitted to a jury. (Id. at p. 842.) The California Supreme Court, relying on Erlinger, thus recently held in People v. Wiley that recidivism-based aggravating factors, beyond the existence of a prior conviction, are subject to Apprendi if used to impose an upper term sentence, overruling its prior decisions in People v. Towne (2008) 44 Cal.4th 63 and People v. Black, supra, 41 Cal.4th 799, “which construed Almendarez-Torres prior conviction exception more broadly than Erlinger now allows.” (Wiley, supra, 17 Cal.5th at p. 1076.) In Wiley, the trial court imposed the upper term sentence based on the defendant’s prior convictions, poor performance on probation, and “ ‘the fact that the charges are becoming more serious.’ ” (Wiley, supra, 17 Cal.5th at p. 1077.) However, the Wiley court, relying on Erlinger, found that the trial court erred because “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.” (Id. at p. 1078.) Wiley stated that the trial court’s findings also “exceeded the scope of the statutory exception to the jury trial right for prior convictions that appears in section 1170[, subdivision ](b)(3).” (Id. at p. 1085.) The Wiley court also stated that the failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman. 7 (Wiley, supra, 17 Cal.5th at p. 1087.) The court concluded the failure to afford the defendant a jury trial on whether his prior convictions were of increasing seriousness was prejudicial. (Id. at pp. 1087–1090.) There, the defendant had numerous 7 Chapman v. California (1967) 386 U.S. 18. 9. convictions, and several of his most recent offenses were felonies. (Id. at pp. 1089– 1090.) The People argued “that the progression of [the defendant’s] offenses over time from misdemeanors to felonies demonstrates a clear trend from less serious offenses towards more serious ones” demonstrated that his crimes were of increasing seriousness. (Id. at pp. 1089–1090.) However, the court rejected the People’s argument. (Id. at pp. 1089–1090.) Rather, the court held that a “rational juror could have” concluded that “based on the totality of [the defendant’s] criminal conduct and the applicable sentences for those transgressions,” that his offenses were not of increasing seriousness. (Id. at p. 1090.) The court also concluded “that the failure to conduct a jury trial on the second aggravating fact, unsatisfactory performance on probation (citation) was prejudicial,” rejecting the People’s argument that “ ‘no rational jury could conclude that a defendant who committed crimes two out of the three times that he was on formal probation had performed satisfactor[ily] on probation.’ ” (Id. at p. 1091.) The court could not “discount the possibility that a rational jury could have disagreed as to whether the People had proved that [the defendant’s] overall performance on probation was unsatisfactory.” (Ibid.) Accordingly, the Sixth Amendment is violated “when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.” (Lynch, supra, 16 Cal.5th at p. 768.) A defendant must express the right to a jury trial in words. (People v. Daniels (2017) 3 Cal.5th 961, 990.) “Waiver must be ‘express[ed] in words … and will not be implied from a defendant’s conduct.’ [Citation.] Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver ‘is knowing and intelligent, that is, “ ‘ “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,” ’ ” as well as voluntary “ ‘ “in the sense that 10. it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” ’ ” ’ ” (Ibid.) Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal. (People v. Cromer (2001) 24 Cal.4th 889, 894.) C. Analysis Here, as the parties agree, the trial court erred by imposing the upper term based on aggravating factors that were not proven in accordance with section 1170, subdivision (b), because defendant did not stipulate to the underlying facts or personally waive his right to a jury trial on the aggravating factors considered by the court. The record shows the trial court mistakenly believed defendant only had a right to a jury trial on the rule 4.421(b)(1) aggravating factor but not on the rules 4.421(b)(2), 4.421(b)(4) and 4.421(b)(5) aggravating factors. In taking defendant’s waiver of a right to a jury trial, the court specifically asked defendant if he waived his right to a jury trial on “[rule 4.421](b)(1) factor[s],” stating, “You also have what we call aggravating factors pursuant to [rule] 4.421. Only one of those that’s alleged would even be considered by a jury. The remaining ones are bench questions. [¶] At this time, sir, is it your wish to waive jury trial as to the strike prior and as to [the rule] 4.421(b)(1) should you be convicted of a felony?” Defendant confirmed that it was. The court then found true the aggravating factors alleged pursuant to rules 4.421(b)(2), 4.421(b)(4), and 4.421(b)(5) despite defendant not waiving his right to a jury trial on these factors, and found the factor alleged pursuant to rule 4.421(b)(1), for which he had waived his right to a jury trial, not true. Defendant had a constitutional right to a jury trial on all the alleged rule 4.421(b) aggravating factors. Constitutional error occurs when the trial court relies on unproven aggravating facts, even if other aggravating facts have been properly established. (Lynch, supra, 16 Cal.5th at p. 768.) Here, although the record shows defendant was willing to waive his right to a jury trial on the rule 4.421(b)(1) aggravating factor, the record does 11. not show that defendant was advised he possessed this right for the rules 4.421(b)(2), 4.421(b)(4) or 4.421(b)(5) factors, that he was advised of the consequences of waiving it, or that expressly waived it. (People v. French (2008) 43 Cal.4th 36, 47 [“When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right.”].) At sentencing, the trial court expressly relied on the unproven factors pursuant to rules 4.421(b)(2), 4.421(b)(4) and 4.421(b)(5), when imposing the upper term, stating, “Circumstances in aggravation. The defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous as enumerated in Rule of Court 4.421(b)(2), which was pled and proven. Two, the defendant was on felony probation at the time of the offense as enumerated in Rule of Court 4.421(b)(4), also pled and proven at trial. Three, the defendant’s prior performance on five grants of misdemeanor probation and two grants of felony probation was unsatisfactory in that he violated the terms and/or reoffended.” Accordingly, the trial court erred when it imposed the upper term based on aggravating circumstances that were not proven in accordance with section 1170, subdivision (b). Further, as in Wiley, because defendant did not waive that right and a jury could have found in his favor on at least one factor, the error was prejudicial because a rational jury could disagree as to whether his prior convictions were numerous (rule 4.421(b)(2)) and whether his prior performance on probation was unsatisfactory (rule 4.421(b)(5)). (Lynch, supra, 16 Cal.5th at p. 743 [failing to submit aggravating factors to the jury is harmless if a reviewing court determines beyond a reasonable doubt that a jury would have found all aggravating factors true].) As stated above, the failure to afford the defendant a jury trial on the aggravating factors was a federal constitutional error subject to review under Chapman, which provides, 12.  “ ‘[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.” (Wiley, supra, 17 Cal.5th at p. 1087.) On review, we must determine “ ‘whether any rational fact finder could have come to the opposite conclusion.’ ” (Wiley, supra, 17 Cal.5th at p. 1090.) Further, the denial of a jury trial on an aggravating factor is not rendered harmless simply because other aggravating factors have been properly established. (Lynch, supra, 16 Cal.5th at pp. 768, 774–775.) The reviewing court must reverse unless it can find beyond a reasonable doubt “every aggravating fact relied upon by the trial court to impose an upper term.” (Id. at p. 776, emphasis in original.) First, the determination of whether defendant’s prior convictions were numerous (rule 4.421(b)(2)) is a subjective factor, and accordingly, we cannot assess how a jury would have addressed the facts, as we cannot know what the jury would have defined as “numerous.” Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions. (People v. Wright (2025) 113 Cal.App.5th 832, 847–848.) The underlying offense was for possession of ammunition, which was prohibited because of a prior felony. Despite defendant’s history of criminal violations, as the parties agree, a rational jury could have concluded his prior convictions were “numerous” for the purposes of rule 4.421(b)(2). Second, the record shows that the trial court also relied upon defendant’s unsatisfactory performance on probation when imposing the upper term but the record does not establish that no rational jury would have failed to find that defendant’s 13. performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). Here, the probation report stated that defendant had committed the underlying offense while on felony probation in case 2. However, the Wiley court held that committing a new offense while on probation does not necessarily show overall poor performance on probation, and whether parole performance was satisfactory cannot be based on certified records of conviction and must be found true by a jury. (See Wiley, supra, 17 Cal.5th at pp. 1082– 1083, 1091.) The facts required to prove unsatisfactory parole performance go beyond the bare face of a conviction and the elements of the offense. (Id. at p. 1093.) Accordingly, here, as in Wiley, a jury could also have disagreed about whether defendant’s overall performance on probation was unsatisfactory. Accordingly, we agree with the parties that the record does not establish beyond a reasonable doubt that a jury would have found all the alleged aggravating factors true, and that the trial court’s failure to obtain a personal waiver of defendant’s jury trial rights on the aggravating factors was prejudicial. We vacate the sentence and remand the matter for either a jury trial on those circumstances, resentencing, or for the court to obtain a personal waiver from defendant of his right to a jury trial on the aggravating factors. 8 DISPOSITION The sentences in cases 1 and 2 are vacated and the matter remanded for the trial court to either conduct a jury trial on the aggravating circumstances, resentence defendant, or obtain a personal waiver of a jury trial from defendant on the aggravating circumstances. In all other respects, the judgment is affirmed. 8 Defendant’s reply brief appears to have abandoned his prior position that the revocation of the violation of probation should be reversed. The People concede the sentence must be vacated and the matter remanded and defendant’s reply brief expressly disclaims his position in the opening brief that probation should be reversed. As we accept the People’s concession and vacate the sentences in both cases and defendant disclaims his own position on the revocation of probation, we need not reach the issue. 14.