People v. Wiley

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC DAVID WILEY,

Defendant and Appellant.

S283326

First Appellate District, Division Four

A165613

Humboldt County Superior Court

CR1902147B and CR2101049

June 26, 2025

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Guerrero, Justices Liu, Groban, and Evans

concurred.

Justice Kruger filed a concurring opinion, in which Justice

Jenkins concurred.

PEOPLE v. WILEY

S283326

Opinion of the Court by Corrigan, J.

Here we hold that the trial court violated defendant Eric

Wiley’s federal constitutional right to a jury trial by

adjudicating underlying facts related to his prior convictions

and improperly relying on its conclusions in choosing to impose

an upper term sentence. This result is compelled by the recent

case of Erlinger v. United States (2024) 602 U.S. 821 (Erlinger).

Erlinger considered the scope of the jury trial guarantee

discussed in Apprendi v. New Jersey (2000) 530 U.S. 466, 490

(Apprendi) and the prior conviction exception recognized in

Almendarez-Torres v. United States (1998) 523 U.S. 224

(Almendarez-Torres). The majority held that, under the Fifth

and Sixth Amendments,1 “a judge may ‘do no more . . . than

determine what crime, with what elements, the defendant was

convicted of.’ ” (Erlinger, at p. 838, quoting Mathis v. United

States (2016) 579 U.S. 500, 511–512 (Mathis).)

Erlinger requires us to overrule our decisions in People v.

Towne (2008) 44 Cal.4th 63 (Towne) and People v. Black (2007)

41 Cal.4th 799 (Black), which construed the Almendarez-Torres

prior conviction exception more broadly than Erlinger now

1

While the essential components of a jury trial are secured

by both the Fifth and Sixth Amendments (Erlinger, supra, 602

U.S. at pp. 830–831), for the sake of brevity we will sometimes

refer to it as the Sixth Amendment guarantee.

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Opinion of the Court by Corrigan, J.

allows. Erlinger also bears on the application of Penal Code2

section 1170, subdivision (b)(3)’s provision governing proof of

prior convictions. We interpret that section to reflect Erlinger’s

clarification of federal constitutional guarantees.

Erlinger held that a defendant is entitled to have a jury

determine whether multiple prior convictions occurred on

separate occasions under the provisions of the Armed Career

Criminal Act of 1984 (18 U.S.C. § 924(e)). (Erlinger, supra, 602

U.S. at pp. 833–835, 838–839.) The trial court here sentenced

Wiley to an upper term based on two different aggravating facts:

the increasing seriousness of his prior convictions and his

unsatisfactory performance on previous grants of probation.

Although Erlinger involved a different kind of sentencing

consideration, its analysis compels the conclusion that Wiley

was entitled to a jury trial on these aggravating facts as well,

and the failure to afford one was error of a constitutional

dimension. Because we find that error prejudicial, we reverse

the judgment of the Court of Appeal, which upheld Wiley’s

sentence, and remand the matter to that court.

I. BACKGROUND

In January 2020, Wiley pled guilty to feloniously making

a criminal threat. (§ 422.) The trial court imposed an upper

term prison sentence of three years, suspended execution of that

sentence, and placed Wiley on probation for three years. In

March 2022, while on probation, Wiley pled guilty to a new

charge of being a felon in possession of a firearm (§ 29800, subd.

(a)(1).) The trial court also found that he had violated the terms

of his 2020 probation and revoked that grant. On July 1, 2022,

2

All further undesignated statutory references are to the

Penal Code.

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Opinion of the Court by Corrigan, J.

the court sentenced Wiley on the new possession conviction and

resentenced him on the probation revocation. As to the criminal

threat, it again imposed the upper term of three years in prison

and added a consecutive term of eight months for the firearm

possession. (§ 1170.1, subd. (a).) To justify the upper term, the

court cited Wiley’s “prior convictions, [his] poor performance on

probation, and the fact that the charges are becoming more

serious.”3

The Court of Appeal upheld Wiley’s sentence over his

Sixth Amendment challenge. (People v. Wiley (2023) 97

Cal.App.5th 676, 680, 682–683, 688 (Wiley).) It rejected the

argument that the trial court engaged in impermissible

factfinding when it determined Wiley’s felony convictions were

of increasing seriousness and his prior performance on

probation was poor, rather than submitting those questions for

a jury determination. Applying this court’s decisions in Towne,

supra, 44 Cal.4th 63 and Black, supra, 41 Cal.4th 799, the Court

3

Wiley was convicted by plea in both cases. Neither plea

included an agreement to an upper term sentence. The 2020

agreement called for probation with no jail time. Wiley argued

against imposing any sentence at that time, but, over his

objection, the trial court instead imposed a three-year sentence,

with execution suspended. In 2022, the court did not simply

execute the previously imposed three-year term, but rather

sentenced Wiley anew in recognition of the ameliorative changes

made to section 1170, subdivision (b). (See People v. Esquivel

(2021) 11 Cal.5th 671, 673, 677–680.) The plea bargain on the

new case did provide for an eight-month subordinate

consecutive term for firearm possession, but it did not specify a

negotiated base term sentence on the criminal threats

conviction. Accordingly, the trial court was required to justify

imposition of an upper term sentence based on a finding of

aggravating facts.

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Opinion of the Court by Corrigan, J.

of Appeal held the Sixth Amendment permitted the judge to

make those determinations because they related to Wiley’s

recidivism. (Wiley, at pp. 682–683.)

The Court of Appeal also rejected Wiley’s contention that

the trial court’s factfinding exceeded the scope of the prior

conviction exception provided for by section 1170, subdivision

(b)(3) (section 1170(b)). (Wiley, supra, 97 Cal.App.5th at pp.

684–686.) It held the statute is consistent with Sixth

Amendment jurisprudence establishing “ ‘ “the right to a jury

trial does not apply to the fact of a prior conviction.” ’ ” (Wiley,

at pp. 683–684, quoting People v. Pantaleon (2023) 89

Cal.App.5th 932, 938 (Pantaleon).) It reasoned that “[t]he

statute does not specify the court is limited to finding that a

prior conviction occurred; instead, it states the court may

‘consider the defendant’s prior convictions in determining

sentencing.’ [Citation.] And, as our Supreme Court has

recognized in the context of the prior conviction exception to the

constitutional jury trial right, consideration of prior convictions

may establish recidivism-based aggravating factors such as

increasing seriousness of the convictions [citation] or prior

unsatisfactory performance on probation or parole [citation].

The statutory language does not suggest the Legislature sought

to depart from our Supreme Court’s constitutional

jurisprudence on this point by establishing a significantly

narrower statutory prior conviction exception.” (Wiley, at p.

686.)

We conclude the Court of Appeal’s reasoning is

inconsistent with the high court’s holding in Erlinger. Although

Erlinger involved a different sentencing consideration, its

analysis of the federal Constitution’s jury trial right requires

that a jury determine whether the particular details of a

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Opinion of the Court by Corrigan, J.

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.

II. DISCUSSION

Under the Fifth and Sixth Amendments to the United

States Constitution, “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.” (Cunningham v. California

(2007) 549 U.S. 270, 281 (Cunningham); accord, Erlinger, supra,

602 U.S. at pp. 830–832.) “Inhering in that guarantee is an

assurance that a guilty verdict will issue only from a unanimous

jury.” (Erlinger, at p. 830; accord, Ramos v. Louisiana (2020)

590 U.S. 83, 90, 92–93.)

Section 1170(b)(2) similarly provides that the trial court

may impose a sentence exceeding the middle term only when

circumstances in aggravation of the crime justify 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 a jury or court

trial. Construing this statutory scheme in light of the high

court’s holding in Cunningham, People v. Lynch (2024) 16

Cal.5th 730 (Lynch) held that this jury trial right is not merely

a state law entitlement, but is constitutionally required for all

aggravating facts, other than a prior conviction, relied upon to

justify an upper term sentence. (Id. at pp. 755–767.)

The exception to the jury trial right for “the fact of a prior

conviction” has long been recognized in the high court’s

precedent. (Apprendi, supra, 530 U.S. at p. 490; accord,

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Almendarez-Torres, supra, 523 U.S. at pp. 243–244, 247.)

Section 1170(b)(3) likewise allows the court to “consider the

defendant’s prior convictions in determining sentencing based

on a certified record of conviction without submitting the prior

convictions to a jury.”

At issue here is just how broadly the concept of “the fact of

a prior conviction” is to be understood and the extent of the

Almendarez-Torres exception. Specifically, in considering a

defendant’s criminal convictions, is the court limited to deciding

what crimes a defendant has previously committed and the

elements of those crimes? Or, may the court make other factual

determinations relating to those prior crimes and the

defendant’s recidivism, without running afoul of the Sixth

Amendment or section 1170(b)’s jury trial provisions?

A. The Federal Constitutional Jury Trial Right and the

Almendarez-Torres Exception for Prior Convictions

We look first to the federal constitutional jury trial

entitlement.4 The prior conviction exception derives from

Almendarez-Torres, supra, 523 U.S. 224. There, the defendant

was convicted of unlawfully reentering the United States after

a prior deportation. Title 8 of the United States Code section

1326(b) provides for longer sentences if a defendant’s prior

deportation occurred after a qualifying conviction. The question

4

As a general rule, “we do not reach constitutional

questions unless absolutely required to do so to dispose of the

matter before us.” (People v. Williams (1976) 16 Cal.3d 663, 667;

accord, Santa Clara County Local Transportation Authority v.

Guardino (1995) 11 Cal.4th 220, 230.) Here it is necessary to

address the constitutional claim because the presence of a

constitutional violation informs the standard for assessing

prejudice. (Lynch, supra, 16 Cal.5th at p. 755.)

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Opinion of the Court by Corrigan, J.

was whether this statutory provision “defines a separate crime”

which includes, as an element, the existence of a qualifying prior

conviction, or was simply a “penalty provision.” (Almendarez-

Torres, at p. 226.) The court concluded that due process did not

require that the new indictment allege defendant had been

convicted of a qualifying offense in order to give him proper

notice of the new charges. (Id. at pp. 226–227, 229–235, 239–

247.) It reasoned that “recidivism” is “a traditional, if not the

most traditional, basis for a sentencing court’s increasing an

offender’s sentence.” (Id. at p. 243.)

The high court has repeatedly acknowledged the

Almendarez-Torres holding as a narrow exception to the Sixth

Amendment’s jury trial right for sentencing-enhancing facts.

“Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory

maximum must be submitted to the jury, and proved beyond a

reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490, italics

added; accord, Cunningham, supra, 549 U.S. at pp. 274–275;

United States v. Booker (2005) 543 U.S. 220, 231; Blakely v.

Washington (2004) 542 U.S. 296, 301.) Subsequent high court

opinions have arguably cast doubt on the exception’s scope or

validity, but ultimately have found it unnecessary to confront

those questions. (See, e.g., Pereida v. Wilkinson (2021) 592 U.S.

224, 238 [describing Almendarez-Torres as “an unusual and

‘arguable’ exception to the Sixth Amendment rule”]; Alleyne v.

United States (2013) 570 U.S. 99, 111, fn. 1 (Alleyne) [noting that

the parties had not asked the court to revisit the validity of

Almendarez-Torres]; Apprendi, at pp. 489, 490 [noting “it is

arguable that Almendarez-Torres was incorrectly decided” but

that “Apprendi does not contest the decision’s validity and we

need not revisit if for purposes of our decision today”]; see also

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Mathis, supra, 579 U.S. at p. 522 (conc. opn. of Thomas, J.)

[calling for Almendarez-Torres to be overruled].)

1. The High Court’s Holding in Erlinger

Erlinger, supra, 602 U.S. 821, considered “whether a judge

may decide that a defendant’s past offenses were committed on

separate occasions under a preponderance-of-the-evidence

standard, or whether the Fifth and Sixth Amendments require

a unanimous jury to make that determination beyond a

reasonable doubt.” (Id. at p. 825.) In that case, the trial court,

over objection, found that Erlinger had suffered four prior

convictions for burglary “ ‘committed on occasions different from

one another,’ ” thus increasing the sentencing range for the

current offense from a maximum of 10 years to 15 years to life.

(Id. at p. 825, quoting 18 U.S.C. § 924(e)(1); see also Erlinger, at

pp. 826–827.)

The high court held that the trial court’s factual finding on

this requirement ran afoul of the Fifth and Sixth Amendments’

jury trial guarantee. The court pointed out that the “separate

occasions” inquiry is not as straightforward as it might appear.

It “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.” (Erlinger, supra, 602 U.S. at p. 828.)

Surveying several of its past decisions in the face of “a variety of

. . . recent sentencing innovations” (id. at p. 833), the court

emphasized that it had “come to the same conclusion in one

decision after another” (id. at p. 843) and forcefully stated its

conclusion. “Virtually ‘any fact’ that ‘ “increase[s] the prescribed

range of penalties to which a criminal defendant is exposed” ’

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Opinion of the Court by Corrigan, J.

must be resolved by a unanimous jury beyond a reasonable

doubt (or freely admitted in a guilty plea).” (Id. at p. 834.)

Turning to the Almendarez-Torres exception, the court

observed that the holding had come under scrutiny (Erlinger,

supra, 602 U.S. at pp. 837–838), but, as it had done before, it

noted that “no one in this case has asked us to revisit

Almendarez-Torres” (id. at p. 838). Nor had Erlinger challenged

the trial court’s authority to find that he had suffered four

burglary convictions and that each qualified as a “ ‘violent

offense.’ ” (Id. at p. 835.) But Erlinger did challenge the court’s

authority to find that his convictions occurred on separate

occasions. On that score, the court rejected the argument

advanced by court-appointed amicus curiae that the

Almendarez-Torres exception “permits a judge to find perhaps

any fact related to a defendant’s past offenses,” including that

one. (Id. at p. 837.) Instead, it described Almendarez-Torres “as

a ‘narrow exception’ permitting judges to find only ‘the fact of a

prior conviction.’ [Citation.] Under that exception, a judge may

‘do no more, consistent with the Sixth Amendment, than

determine what crime, with what elements, the defendant was

convicted of.’ ” (Id. at p. 838, quoting Alleyne, supra, 570 U.S. at

p. 111, fn. 1 & Mathis, supra, 579 U.S. at pp. 511–512.)

In so holding, the court acknowledged that, “[t]o conduct

the narrow inquiry Almendarez-Torres authorizes, a court may

need to know the jurisdiction in which the defendant’s crime

occurred and its date in order to ascertain what legal elements

the government had to prove to secure a conviction in that place

at that time. And to answer those questions, a sentencing court

may sometimes consult ‘a restricted set of materials,’ often

called Shepard documents, that include judicial records, plea

agreements, and colloquies between a judge and the defendant.

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[Citations.] [¶] None of that, however, means that a court may

use Shepard documents or any other materials for any other

purpose. To ensure compliance with the Fifth and Sixth

Amendments, a sentencing judge may use the information

[gleaned] from Shepard documents for the ‘limited function’ of

determining the fact of a prior conviction and the then-existing

elements of that offense. [Citation.] ‘[N]o more’ is allowed.”

(Erlinger, supra, 602 U.S. at p. 839.)5

Applying these principles, the high court held that the

trial court exceeded Almendarez-Torres’s narrow exception by

finding that Erlinger’s offenses occurred on separate occasions.

(Erlinger, supra, 602 U.S. at p. 840.) To determine whether the

convictions triggered an enhanced penalty, the trial court “had

to do more than identify his previous convictions and the legal

elements required to sustain them. It had to find that those

offenses occurred on at least three separate occasions.” (Id. at

pp. 838–839.) That finding, in turn, required a qualitative

assessment of the offenses’ “time, location, character, and

purpose.” (Id. at p. 840.) “The Fifth and Sixth Amendments

‘contemplat[e] that a jury — not a sentencing court — will find

5

The articulated limitation on a trial court’s permissible

use of “Shepard documents” seems to make clear that a

California trial court’s reliance on information in a probation

department presentence report (see § 1203, subd. (b)(1)) to

impose an upper term sentence is now precluded. (Erlinger,

supra, 602 U.S. at pp. 839–842; see also § 1170(b)(3) [requiring

that prior convictions be established by a certified record of

conviction].) As a general matter, it does not appear that the

trial court is prevented from considering the report’s contents in

deciding other issues, such as whether to impose a lower or

midterm sentence, or to exercise its discretion to withdraw its

conditional approval of a bargain. (See People v. Stamps (2020)

9 Cal.5th 685, 705–706.)

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such facts, unanimously and beyond a reasonable doubt.’ ”

(Ibid.) This is true notwithstanding that the inquiry will in

many cases be “ ‘ “straightforward.” ’ ” (Id. at p. 842.) The court

explained: “Often, a defendant’s past offenses will be different

enough and separated by enough time and space that there is

little question he committed them on separate occasions. But

none of that means a judge rather than a jury should make the

call. There is no efficiency exception to the Fifth and Sixth

Amendments. In a free society respectful of the individual, a

criminal defendant enjoys the right to hold the government to

the burden of proving its case beyond a reasonable doubt to a

unanimous jury of his peers ‘ “regardless of how

overwhelmin[g]” ’ the evidence may seem to a judge.” (Ibid.)

2. Absent Waiver or Stipulation, the Increasing

Seriousness of Prior Convictions and the

Defendant’s Unsatisfactory Performance on

Probation Must Be Found by a Jury

Under the principles articulated in Erlinger, both parties

agree that the Sixth Amendment requires a jury determination

of the two aggravating facts at issue here: the “increasing

seriousness” of a defendant’s prior convictions (Cal. Rules of

Court, rule 4.421(b)(2)) and “unsatisfactory” “performance on

probation” (id., rule 4.421(b)(5)), before those facts can be used

to justify an upper term sentence. We agree as well.

Under current case law, the determination that a

defendant’s prior convictions are of increasing seriousness may

be made by “reference to the range of punishment provided by

statute for each offense.” (Black, supra, 41 Cal.4th at p. 820.)

Or it may be determined by “a comparison of the offenses’

respective elements.” (People v. Quiles (2009) 177 Cal.App.4th

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612, 622.)6 By either measure, the inquiry requires a

comparison and evaluation of the relationship among a

defendant’s prior convictions, and a determination as to their

relative seriousness. As a result, it involves something more

than a narrow factual finding that the convictions were

sustained and what elements were required to prove them.

Erlinger makes clear that, under its interpretation of the Sixth

Amendment, that narrow finding is as much, and all, the

Almendarez-Torres exception allows. (Erlinger, supra, 602 U.S.

at pp. 838–839.) Indeed, the inquiry here is similar to the

finding at issue in Erlinger that the defendant’s offenses

occurred on separate occasions. As noted, Erlinger held the

finding implicates the jury trial right because it requires a

qualitative assessment of the offenses’ “time, location,

character, and purpose.” (Id. at p. 840.) The Attorney General

concedes that a similar conclusion follows here with respect to

the factual finding that a defendant’s offenses are increasing in

seriousness.

We reach a similar conclusion with respect to the

aggravating fact that the defendant performed unsatisfactorily

on probation. Under current case law, this fact may be proved

“by evidence demonstrating that, while previously on probation

or parole, [the defendant] committed and was convicted of new

offenses.” (Towne, supra, 44 Cal.4th at p. 82.) Alternatively,

proof may be “based upon other evidence of misconduct that was

not previously adjudicated in a criminal trial” such as evidence

that the defendant “did not appear for appointments, failed a

drug test, or stopped attending counseling sessions as directed.”

6

Both parties accept these criteria for purposes of resolving

the arguments before us.

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(Ibid.) The latter circumstances clearly go beyond the fact of

prior conviction and its elements. (Id. at pp. 82–83.) And even

where a finding of unsatisfactory probation performance is

based on conviction of a new offense, it is not strictly limited to

that fact. Rather, it must be proven that the defendant was

ordered to serve a term of probation and remained on probation

at the time he or she committed the new offense. These facts,

too, go beyond the mere existence of a prior conviction and its

elements. (See Erlinger, supra, 602 U.S. at p. 838.) Again, the

Attorney General concedes the point.

It could be argued that there is a difference between a

strictly factual determination as to whether a defendant

suffered a particular previous conviction and a more nuanced

discretionary and normative judicial judgment evaluating

whether those convictions were of “increasing seriousness” (Cal.

Rules of Court, rule 4.421(b)(2)), or whether the fact of those

convictions, along with other customary relied-upon sources like

a presentencing memo from the probation department, showed

that the defendant’s previous probation performance was

satisfactory or poor (id., rule 4.421(b)(5)). For example, suppose

there was a proper determination of the following facts: the

defendant had been convicted of disturbing the peace five years

ago, misdemeanor assault four years ago, felony assault three

years ago, and murder two years ago. Suppose further that the

record established by admissible documents that the defendant

had violated his probation several times in connection with the

first three convictions. In light of those proper factual findings

by an appropriate factfinder, could the court determine that the

convictions were of increasing seriousness or that his probation

performance was poor? As we read Erlinger, it appears that the

high court would firmly say no. We understand Erlinger to

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require that 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. This jury trial

guarantee retains its vitality even if the inquiry is

“ ‘ “straightforward.” ’ ” (Erlinger, supra, 602 U.S. at p. 842.)

“There is no efficiency exception to the Fifth and Sixth

Amendments.” (Ibid.) Only when aggravating facts have been

proven as the Constitution requires may the court then rely on

them to conclude, in its discretion, that those facts justify an

upper term.

This conclusion requires us to overrule our contrary

holdings in Black, supra, 41 Cal.4th 799 and Towne, supra, 44

Cal.4th 63, which predate Erlinger’s clarification by nearly two

decades. Those decisions broadly construed Apprendi’s

exception to the jury trial right for “the fact of a prior conviction”

(Apprendi, supra, 530 U.S. at p. 490) to encompass “other

related issues” (Black, at p. 819) concerning a “defendant’s

criminal history” or “ ‘[r]ecidivism’ ” (id. at p. 818; accord,

Towne, at pp. 75–81).

Specifically, Black held that the finding at issue there as

to the “increasing seriousness” of the defendant’s prior

convictions did not require a jury determination. It reasoned,

“The relative seriousness of these alleged convictions may be

determined simply by reference to the range of punishment

provided by statute for each offense. This type of determination

is ‘quite different from the resolution of the issues submitted to

a jury, and is one more typically and appropriately undertaken

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by a court.’ ” (Black, supra, 41 Cal.4th at p. 820, quoting People

v. McGee (2006) 38 Cal.4th 682, 706.)7

Towne held that a finding of unsatisfactory probation

performance did not require a jury trial, so long as it was based

on the defendant’s conviction for a new offense during the

probationary period. (Towne, supra, 44 Cal.4th at p. 82.) It

reasoned, “When a defendant’s prior unsatisfactory performance

on probation or parole is established by his or her record of prior

convictions, it seems beyond debate that the aggravating

circumstance is included within the Almendarez-Torres

exception and that the right to a jury trial does not apply.”

(Ibid.)8

These expansive readings of the Almendarez-Torres

exception do not survive the high court’s more recent

pronouncements in Erlinger. Under the Sixth Amendment,

7

McGee held that the trial court does not run afoul of the

Sixth Amendment by examining the record of a criminal

conviction to “ascertain whether that record reveals whether the

conviction realistically may have been based on conduct that

would not constitute a serious felony under California law.”

(People v. McGee, supra, 38 Cal.4th at p. 706.) We overruled

McGee on that point in People v. Gallardo (2017) 4 Cal.5th 120,

124–125, 134–136.)

8

Towne reached a different conclusion when a finding of

poor performance on probation or parole is based on evidence

other than conviction of a new offense, such as a failed drug test

or the failure to appear for appointments or attend counseling

sessions. (Towne, supra, 44 Cal.4th at pp. 82–83.) It held that

“the right to a jury trial applies to such [additional] factual

determinations,” which involve factfinding that is “very

different from what ordinarily occurs in resolving the question

of whether a defendant suffered a prior conviction.” (Id. at pp.

82, 83.) That conclusion is consistent with Erlinger and today’s

holding.

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Wiley was 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. We overrule People v. Black, supra, 41 Cal.4th

799 and People v. Towne, supra, 44 Cal.4th 63 to the extent they

are inconsistent with today’s holding.9

B. Section 1170(b)(3)’s Prior Conviction Exception

We likewise hold that the trial court’s factual findings

exceeded the scope of the statutory exception to the jury trial

right for prior convictions that appears in section 1170(b)(3). As

noted, that subdivision authorizes the trial court to “consider

the defendant’s prior convictions in determining sentencing

based on a certified record of conviction without submitting the

prior convictions to a jury.” (Ibid.) Of course any state provision

of this kind must comport with federal constitutional

requirements, which Erlinger has now clarified.

The majority of appellate courts to consider this issue,

including the Court of Appeal in this case, have construed the

statutory jury trial exception as having the same scope as the

Almendarez-Torres exception to the federal Constitution.

(People v. Morgan (2024) 103 Cal.App.5th 488, 517–518, review

9

In imposing an upper term sentence, the trial court in this

case also noted that Wiley had been convicted of at least four

prior felonies. (Cal. Rules of Court, rule 4.421(b)(2); see Black,

supra, 41 Cal.4th at pp. 819–820 [holding that a finding of

“numerous” prior convictions comes within the Almendarez-

Torres exception].) Wiley has not challenged the trial court’s

purported reliance on this aggravating fact either in the Court

of Appeal or in the briefing before us. Nor is it necessary for us

to consider whether this numerical tally falls within the

Almendarez-Torres exception in order to resolve the case.

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

granted Oct. 2, 2024, S286493 (Morgan); Wiley, supra, 97

Cal.App.5th at pp. 683–686; Pantaleon, supra, 89 Cal.App.5th

at p. 938; People v. Ross (2022) 86 Cal.App.5th 1346, 1353,

review granted Mar. 15, 2023, S278266, review dism. Apr. 30,

2025.) As discussed, at the time those cases were decided, the

Almendarez-Torres exception for prior convictions was

understood to include both “the fact that a prior conviction

occurred” and “other related issues that may be determined by

examining the records of the prior convictions.” (Black, supra,

41 Cal.4th at p. 819.) Applying this precedent, the Courts of

Appeal rejected the defendants’ argument that section

1170(b)(3) should be construed more narrowly than its federal

counterpart to apply only to the fact of a prior conviction.

(Morgan, at p. 518; Wiley, at pp. 684–686.) These cases were

correct in giving the constitutional and statutory exceptions the

same scope. But, after Erlinger, the lower courts’ ultimate

conclusion as to the extent of that scope is not.

To avoid any application that would set section 1170(b)(3)

at odds with the high court’s constitutional interpretation, we

interpret section 1170(b)(3)’s procedure in a manner that is

coextensive with high court dictates. (People v. Engram (2010)

50 Cal.4th 1131, 1161.)10 We disapprove People v. Morgan,

10

Nor is there any longer a viable argument to construe the

statute’s exception more narrowly than the parallel exception

under the Sixth Amendment. Before Erlinger, defendants had

argued that the statute’s exception applied only to the fact of a

prior conviction, in the face of a broader construction of the

federal constitutional exception for prior convictions. (Morgan,

supra, 103 Cal.App.5th at p. 518; Wiley, supra, 97 Cal.App.5th

at pp. 684–686.) But Erlinger’s holding aligns with the

narrower view of the statute that those defendants espoused.

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Opinion of the Court by Corrigan, J.

supra, 103 Cal.App.5th 488; People v. Wiley, supra, 97

Cal.App.5th 676; People v. Pantaleon, supra, 89 Cal.App.5th

932; and People v. Ross, supra, 86 Cal.App.5th 1346, to the

extent they are inconsistent with today’s holding.

In sum, a defendant is entitled to a jury trial on all

aggravating facts, other than the bare fact of a prior conviction

and its elements,11 that expose the defendant to imposition of a

sentence more serious than the statutorily provided midterm.

The proper procedure for adjudicating such aggravating facts is

as follows: Defendants may assert the right to a jury trial, may

waive jury in favor of a court trial, or may waive trial altogether.

Subject to the standard rules of evidence both parties may

stipulate to the admission of probation reports or other evidence

bearing on a defendant’s social and educational history, as well

as other information relevant to sentencing, including criminal

history. The burden is on the People to prove beyond a

reasonable doubt the facts relied on to justify an upper term

sentence. If those facts are properly proven, the court may take

them into account and exercise its discretion under section

1170(b) to determine what sentence to impose, keeping in mind

the statutory limits on upward departures from the midterm

and the requirement for stating its reasons on the record.

(§ 1170(b)(2), (5).)

Our finding that the federal constitution and the statute are

coextensive forecloses both a broader and a narrower

construction.

11

As the high court has noted the trial court is entitled to

consider so called “Shepard documents” as part of the limited

consideration of a prior conviction and its elements. (Erlinger,

supra, 602 U.S. at p. 839.)

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

C. The Failure to Afford Wiley a Jury Trial on

Aggravating Facts Was Prejudicial

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

standard of review. (Lynch, supra, 16 Cal.5th at pp. 742–743;

Chapman v. California (1967) 386 U.S. 18.) 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.” (Lynch, at p. 743; see also

Erlinger, supra, 602 U.S. at pp. 849–850 (conc. opn. of Roberts,

C. J.).) 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.

(Neder v. United States (1999) 527 U.S. 1, 19; accord, In re Lopez

(2023) 14 Cal.5th 562, 581; People v. Merritt (2017) 2 Cal.5th

819, 832; People v. Mil (2012) 53 Cal.4th 400, 417 (Mil).)

Applying this standard, we conclude that failure to afford

Wiley a jury trial on whether his prior convictions were of

“increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2))

was prejudicial. A certified rap sheet from the California Law

Enforcement Telecommunications System (CLETS), which was

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

admitted into evidence at Wiley’s sentencing hearing,12 reveals

the following criminal history:

1998 conviction for driving at an unsafe speed, an

infraction, which resulted in a fine. (Veh. Code, § 22350.)

1998 conviction for possession of marijuana, a felony in

1998 but now an infraction (Health & Saf. Code, § 11357, subd.

(a)); and a

1998 conviction for attempted theft, a misdemeanor

(§§ 484, subd. (a), 664). For these two offenses, Wiley was

ordered to serve a five-year probationary term.

2002 conviction for reckless driving, a misdemeanor,

resulting in a three-year probationary term. (Veh. Code,

§ 23103.)

2003 conviction for driving with a suspended license, a

misdemeanor13 (Veh. Code, § 14601, subd. (b)(2)); and a

12

The fact that Wiley does not challenge the certified rap

sheet’s admissibility makes it unnecessary for us to consider

that point. (See generally People v. Martinez (2000) 22 Cal.4th

106, 113, 119–134; People v. Morris (2008) 166 Cal.App.4th 363,

367, 370–373; People v. Dunlap (1993) 18 Cal.App.4th 1468,

1476–1481; Evid. Code, § 1280.) Wiley does observe that such

records can be confusing and even erroneous. Indeed, the

CLETS rap sheet in this case contains an error. (See fn. 13,

post.) We held in Martinez that such errors “ ‘ “may be

developed on cross-examination and should not affect the

admissibility of the [record] itself.” ’ ” (Martinez, at p. 132.)

Ultimately, the high court stressed the limitations of this type

of documentary evidence as one reason for requiring a contested

jury trial on findings of fact that go beyond the existence of a

criminal conviction and its underlying elements. (Erlinger,

supra, 602 U.S. at pp. 839–842 & fn. 3.)

13

The CLETS rap sheet incorrectly describes this offense as

an infraction.

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

2003 conviction for driving under the influence, a

misdemeanor (Veh. Code, § 23152, subd. (b)). For these two

offenses, Wiley was ordered to serve a five-year probationary

term.

2005 conviction for knowingly driving with a suspended

license, a misdemeanor (Veh. Code, § 14601.5, subd. (a)); and a

2005 conviction for driving under the influence with prior

offenses, a felony (Veh. Code, §§ 23152, subd. (a), 23550, subd.

(a)). For these two offenses, Wiley was ordered to serve a three-

year probationary term.

2009 conviction for possession of a controlled substance, a

felony in 2009 but now a misdemeanor (Health & Saf. Code,

§ 11377, subd. (a)); and a

2009 conviction for driving with knowledge of a suspended

license, a misdemeanor (Veh. Code, § 14601.1, subd. (a)). For

these two offenses, Wiley was ordered to serve a three-year

probationary term.

2015 conviction for possession of a controlled substance, a

misdemeanor, resulting in a one-year jail term. (Health & Saf.

Code, § 11377, subd. (a).)

2015 conviction for making a space available for the

manufacture or distribution of a controlled substance, a felony

(Health & Saf. Code, § 11366.5, subd. (a)); and a

2015 conviction for unlawful possession of ammunition by

a felon, a felony (§ 30305, subd. (a)(1)). For these two offenses,

Wiley was ordered to serve a three-year probationary term.

2016 conviction for sale of marijuana, a felony in 2016,

now a misdemeanor (Health & Saf. Code, § 11360, subd. (a));

and a

2016 conviction for transportation of a controlled

substance for sale, a felony (Health & Saf. Code, § 11379, subd.

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

(a)). For each of the 2016 offenses, Wiley was ordered to serve

four years in prison, with the sentences to run concurrently.

2018 conviction for possession of marijuana for sale, a

misdemeanor, resulting in a two-year probationary term.

(Health & Saf. Code, § 11359, subd. (b).)

2020 conviction for criminal threats, a felony, resulting in

a three-year prison term with imposition of sentence suspended

and a three-year term of probation. (§ 422.)

The Attorney General argues that the progression of

Wiley’s offenses over time from misdemeanors to felonies

demonstrates a clear trend from less serious offenses towards

more serious ones. That may be. But a rational juror may not

have been persuaded beyond a reasonable doubt by that fact

alone. Given that Wiley’s criminal record began as a young

adult and spanned two decades, we cannot discount the

possibility that, in making the determination as to increasing

seriousness, a rational juror could have either placed greater

emphasis on his felony offenses, or on his more recent criminal

history.

As for Wiley’s felony offenses, none is strikingly more

serious than the others, either by reference to the nature of the

offense or the punishment. The majority of Wiley’s felony

offenses were drug-related and exposed Wiley to a sentencing

range of 16 months, two or three years. (See §§ 18, 1170, subd.

(h)(1).) His 2015 conviction for unlawful possession of

ammunition was punishable alternatively as a felony or

misdemeanor, and carried the standard default felony range of

16 months, two or three years. (§ 30305, subd. (a)(2).) The

conviction with the longest sentence exposure was his 2016

conviction for transporting a controlled substance, carrying a

potential two-, three- or four-year term. (Health & Saf. Code,

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

§ 11379, subd. (a).) Two crimes followed in 2018 and 2020. A

misdemeanor marijuana offense carried a six-month maximum

jail term (Health & Saf. Code, § 11359, subd. (b)), and a felony

criminal threats offense, an alternative felony/misdemeanor,

involved a 16 month, two- or three-year prison exposure. (§ 422.)

A jury considering this criminal history could have disagreed as

to whether it demonstrated criminal conduct of increasing

seriousness. We do not suggest that one conclusion is more

reasonable or more likely than the other, only that a rational

juror could conclude that the People had not proved beyond a

reasonable doubt that Wiley’s convictions were of increasing

seriousness.

The Attorney General counters that Wiley’s 2020

conviction for making a criminal threat was his most serious

offense when considering the range of punishment (see Black,

supra, 41 Cal.4th at p. 820) because it is classified as a serious

felony that carries additional penalties if Wiley commits certain

new offenses. (See §§ 667, subd. (a)(1) [five-year enhancement],

667, subds. (b)–(i) [“Three Strikes Law”], 1192.7, subd. (c)

[serious felony defined].) The serious felony designation and the

future consequences, he reasons, “demonstrate the Legislature’s

current assessment that criminal threats is deserving of special

treatment and enhanced deterrence not afforded to nonserious

crimes . . . .” In his estimation, this classification outweighs the

consideration noted above that Wiley’s 2016 transportation

conviction is a nonreducible felony that carries a longer

sentencing potential than his 2020 criminal threats conviction.

(Compare Health & Saf. Code, § 11379, subd. (a) with Pen. Code,

§§ 422, subd. (a), 1170, subd. (h)(1).) Even accepting the

Attorney General’s argument that the designation of an offense

as a serious felony is a relevant consideration, it is simply one

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

factor the jury could have considered when evaluating whether

Wiley’s crimes were of increasing seriousness. Its relevance as

a factor underscores that the determination is a comparative

and qualitative one. These realities make it “ ‘ “difficult for a

reviewing court to conclude with confidence that, had the issue

been submitted to the jury, the jury would have assessed the

facts in the same manner as did the trial court.” ’ ” (Lynch,

supra, 16 Cal.5th at p. 775.)

In short, while the evidence may have been sufficient to

support a finding of increasing seriousness, that is not the

proper inquiry when assessing prejudice under Chapman. (Mil,

supra, 53 Cal.4th at p. 418.) Instead, we must ask “whether any

rational fact finder could have come to the opposite conclusion.”

(Ibid.) A rational juror could have reached the opposite

conclusion here based on the totality of Wiley’s criminal conduct

and the applicable sentences for those transgressions.

Accordingly, we cannot conclude beyond a reasonable doubt that

a properly instructed jury would have found Wiley’s criminal

convictions were of increasing seriousness.

Similarly, we conclude that the failure to conduct a jury

trial on the second aggravating fact, unsatisfactory performance

on probation (Cal. Rules of Court, rule 4.421(b)(5)), was

prejudicial. Evidence presented at the sentencing hearing was

admitted without objection in the form of a probation report,14

which recited Wiley’s performance on probation in three cases.

In one case, Wiley successfully completed a residential drug

treatment program, obtained his driver’s license, paid all court

14

In imposing sentence, the trial court considered the

probation report and here both parties rely on it to assess

prejudice. We do so as well. (But see fn. 5, ante.)

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PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

ordered fines and fees, and committed no probation violations.

In two other cases, Wiley’s performance on probation was

“marked by probation violations due to his arrest and conviction

of new misdemeanor and felony law violations.” Probation was

revoked and a prison term was executed. After his release from

prison on post release community supervision, Wiley was

convicted of a new misdemeanor offense, but “was fairly

compliant during the remainder of his supervision term . . . .”

The Attorney General argues that, “[b]ecause committing

an offense on probation is such a clear violation of both the letter

and spirit of probation’s strictures, 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.” However, the probation officer’s

assessment in this case demonstrates that the record is also

open to a different interpretation. She characterized Wiley’s

mixed performance on probation as both an aggravating factor

and a mitigating factor. Given this assessment, we cannot

discount the possibility that either counsel in a contested jury

trial might have presented live testimony on this factor that

would have affected the jury’s determination. (See People v.

Sandoval (2007) 41 Cal.4th 825, 839–840.) Nor can we 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. Accordingly, we cannot

conclude the deprivation of a jury trial was harmless beyond a

reasonable doubt.15

15

This conclusion makes it unnecessary for us to consider

Wiley’s additional argument that he is entitled to a remand

25

PEOPLE v. WILEY

Opinion of the Court by Corrigan, J.

III. DISPOSITION

We reverse the judgment of the Court of Appeal insofar as

it affirmed Wiley’s sentence. We remand to the Court of Appeal

with directions to return the case to the trial court for further

proceedings in accordance with this opinion.

CORRIGAN, J.

We Concur:

GUERRERO, C. J.

LIU, J.

GROBAN, J.

EVANS, J.

under People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 because

the trial court failed to appreciate the limitations on its

discretion to impose an upper term sentence under section

1170(b)(1) and (2).

26

PEOPLE v. WILEY

S283326

Concurring Opinion by Justice Kruger

After Eric Wiley pleaded guilty to making a criminal

threat (Pen. Code, § 422), the trial court found multiple

aggravating circumstances and determined that these

circumstances warranted an upper term sentence. The court

cited three circumstances in particular, all related to Wiley’s

criminal history: his “prior convictions, poor performance on

probation, and the fact that the charges are becoming more

serious.” (See Cal. Rules of Court, rule 4.421(b)(2)–(5).)

Consistent with the constitutional holding in People v.

Lynch (2024) 16 Cal.5th 730 (Lynch), the majority today

concludes that the Fifth and Sixth Amendments entitled Wiley

to a jury determination of whether his probation performance

was indeed “poor” and whether his crimes were indeed becoming

increasingly “serious.” (See maj. opn., ante, at pp. 4–5, 11–14.)

I agree with the majority that Wiley was entitled to a jury

determination on these questions. But for the reasons I

explained in Lynch, I do not think this is a constitutional issue.

(Lynch, supra, 16 Cal.5th at pp. 779–787 (conc. & dis. opn. of

Kruger, J.).) Wiley’s right to a jury determination on these

aggravators stems not from the Fifth or Sixth Amendment, but

instead from the Legislature’s considered decision to expand the

jury right beyond its traditional bounds, to encompass the full

range of qualitative, comparative determinations that have

1

PEOPLE v. WILEY

Kruger, J., concurring

historically informed judges’ exercise of their sentencing

discretion.

To briefly review: In Apprendi v. New Jersey (2000) 530

U.S. 466 (Apprendi), and follow-on cases, the high court has

distinguished between the right to have a jury determine (1)

facts that increase the sentence range prescribed by statute, and

(2) facts that a judge may rely on in exercising its discretion to

select the appropriate sentence within the statutorily prescribed

range. These two functions are “analytically distinct” (People v.

Black (2007) 41 Cal.4th 799, 815 (Black)) and the high court has

consistently made clear that the constitutional jury right

attaches only to the former. Apprendi expressly acknowledges

that judges retain their historical discretion to “tak[e] into

consideration various factors relating both to offense and

offender” in imposing judgment within a prescribed range.

(Apprendi, at p. 481; accord, e.g., Dillon v. United States (2010)

560 U.S. 817, 828–829.)

Erlinger v. United States (2024) 602 U.S. 821 (Erlinger),

on which the majority heavily relies, preserves this essential

distinction. Erlinger reiterates that “[v]irtually ‘any fact’ that

‘ “increase[s] the prescribed range of penalties to which a

criminal defendant is exposed” ’ must be resolved by a

unanimous jury beyond a reasonable doubt (or freely admitted

in a guilty plea).” (Id. at p. 834, quoting Apprendi, supra, 530

U.S. at p. 490.) But as Justice Jackson explained in dissent,

under this rule “the judge continues to be the sole decisionmaker

with respect to determining the facts she will rely upon to

sentence within the typically broad statutory sentencing range.”

(Id. at p. 833 (dis. opn. of Jackson, J.).)

2

PEOPLE v. WILEY

Kruger, J., concurring

In this case, the aggravating circumstances we’re

concerned with — Wiley’s poor probation performance and the

increasing seriousness of his offenses — did not increase the

prescribed range of penalties to which Wiley was exposed. That

is because there was at least one other aggravating

circumstance that independently rendered him eligible for an

upper-term sentence: the simple fact of his prior convictions.

No one disputes that the fact of Wiley’s prior convictions was

established in accordance with Apprendi and its progeny, which

contains an exception permitting judges to find that the

defendant has suffered prior convictions. In my view, this is all

the Constitution requires.

I recognize, however, that a majority of my colleagues

decided otherwise in Lynch, based on their understanding of the

interaction between Apprendi and the current version of Penal

Code section 1170, subdivision (b)(2), as it was amended by the

Legislature in 2022. And ultimately, much as in Lynch, I do not

think this point makes any practical difference. Even if the

Constitution does not guarantee a jury trial on the full range of

aggravating circumstances that might inform an exercise of

sentencing discretion, statutory law certainly does: The current

version of Penal Code section 1170, subdivision (b)(2)

unquestionably extends a statutory jury right to every

aggravating circumstance upon which a trial court relies in

imposing an upper-term sentence. (See Lynch, supra, 16

Cal.5th at pp. 755–767.)

Regardless of whether it applies of its own force, Apprendi

is relevant here because Penal Code section 1170, subdivision

(b)(2), as amended, statutorily extends the reach of the Apprendi

rule. As a result, absent waiver, all aggravating circumstances

a trial court relies on in imposing an upper-term sentence —

3

PEOPLE v. WILEY

Kruger, J., concurring

whether or not they are legally necessary to impose such a

sentence — must be either stipulated to by the defendant or

proved by a jury beyond a reasonable doubt. And I agree with

the majority that the scope of Penal Code section 1170,

subdivision (b)(3), which provides an exception to this jury trial

right for “the defendant’s prior convictions,” tracks the scope of

the prior-conviction exception set forth in Almendarez-Torres v.

United States (1998) 523 U.S. 224. As such, the prior-conviction

exception is limited to “ ‘determin[ing] what crime, with what

elements, the defendant was convicted of.’ ” (Erlinger, supra,

602 U.S. at p. 838, quoting Mathis v. United States (2016) 579

U.S. 500, 511–512; see maj. opn., ante, at pp. 16–17.)

Whether Wiley performed unsatisfactorily on probation, and

whether his prior convictions were of increasing seriousness, may

not be what we typically think of as sentencing “facts”; they are,

rather, qualitative judgments about the offense and the offender of

the sort that have traditionally been reserved for a judge’s

consideration in determining whether to impose an otherwise

authorized upper-term sentence. (See Black, supra, 41 Cal.4th at

p. 813.) But under the rule established by Penal Code section 1170,

subdivision (b), this is irrelevant; all that matters is that, to find

the existence of these criminal-history-related aggravators, the

trial court “had to do more than identify his previous convictions

and the legal elements required to sustain them.” (Erlinger, supra,

602 U.S. at p. 838; see maj. opn., ante, at pp. 11–14.)

I agree with the majority that the trial court’s error was

prejudicial under the standard set forth in Chapman v.

California (1967) 386 U.S. 18, 22. But for the same reasons

given by the majority, I would also conclude that the error was

prejudicial under the People v. Watson (1956) 46 Cal.2d 818, 836

reasonable probability standard we apply to state law errors.

4

PEOPLE v. WILEY

Kruger, J., concurring

There was a reasonable probability that the outcome would have

been different had the trial court not relied on the aggravating

circumstances at issue or had those circumstances been

submitted to a jury. (See maj. opn., ante, at pp. 19–25.)

With these observations, I concur in the majority’s

decision.

KRUGER, J.

I Concur:

JENKINS, J.

5

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Wiley

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 97 Cal.App.5th 676

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S283326

Date Filed: June 26, 2025

__________________________________________________________

Court: Superior

County: Humboldt

Judge: Kaleb V. Cockrum

__________________________________________________________

Counsel:

J. Bradley O’Connell, under appointment by the Supreme Court, and

Edward Mahler, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Jeffrey M. Laurence, Assistant Attorney General,

Michael R. Johnsen, Eric D. Share, Seth K. Schalit and Brady

Baldwin, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

J. Bradley O’Connell

First District Appellate Project

1212 Broadway, Suite 1200

Oakland, CA 94612

(415) 495-3119

Brady Baldwin

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94110

(415) 510-3470