89 Cal.App.5th 932
Cal. Ct. App.2023Background
- In October 2021 a jury convicted Jony Pantaleon of multiple sexual offenses against a child, including numerous counts of lewd and lascivious acts, sexual intercourse with a child under 10, oral copulation, and rape.
- In March 2022 (after amendments to California’s determinate sentencing law by Senate Bill No. 567), the trial court sentenced Pantaleon to a determinate term of 111 years plus an indeterminate term of 115 years to life, and orally awarded 932 days of custody credit (811 actual + 121 good-time).
- A pre-SB567 probation report had recommended upper terms based on violent conduct; at sentencing the prosecutor requested middle terms and declined to prove aggravating factors.
- The trial court imposed consecutive upper terms on several counts (staying others under § 654), finding violent conduct indicating serious danger, convictions of increasing seriousness, and that many offenses occurred while the defendant was on probation, relying on the defendant’s certified rap sheet.
- On appeal Pantaleon argued imposition of upper terms was unauthorized because the People did not plead aggravating factors under the amended § 1170; the People conceded a clerical error in the abstract/minute order concerning custody credits.
Issues
| Issue | People (Respondent) | Pantaleon (Defendant) | Held |
|---|---|---|---|
| Whether imposition of upper-term determinate sentences requires aggravating factors to be pled and proved (i.e., treated as enhancements) | Upper-term selection remains a base-term sentencing decision; prior convictions may be considered via certified records without pleading under §1170(b)(3); §1170.1(e) applies to enhancements, not base terms | Aggravating factors now function like enhancements under amended law and therefore must be alleged and proved | Rejected. Upper term is a base term, not an "enhancement;" §1170.1(e) pleading requirement does not apply; prior convictions may be considered via certified records without jury submission |
| Whether the abstract of judgment/minute order must be corrected for custody credits | Conceded clerical error; asked for correction to match oral pronouncement (932 days) | Asked for correction to reflect the 932 days the court awarded | Court accepted concession and directed amended abstract and minute order to reflect 811 actual + 121 good-time = 932 days; send amended abstract to CDCR |
Key Cases Cited
- Cunningham v. California, 549 U.S. 270 (2007) (held judge-found facts used to increase punishment beyond statutory maximum violate the Sixth Amendment under Apprendi)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (established rule that any fact increasing the penalty beyond statutory maximum must be submitted to a jury, except prior convictions)
- People v. Lara, 54 Cal.4th 896 (2012) (discusses that sentencing factors guiding term selection traditionally need not be charged)
- People v. Black, 41 Cal.4th 799 (2007) (prior convictions are not subject to jury trial requirement and may be used in sentencing)
- In re Varnell, 30 Cal.4th 1132 (2003) (no due process right to notice in the accusatory pleading for sentencing factors)
- People v. Mitchell, 26 Cal.4th 181 (2001) (oral pronouncement controls over abstract; clerical errors in abstract should be corrected)