INTRODUCTION

Defendant Gary Hall pleaded no contest to two counts of committing lewd or lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)).1 Consistent with the negotiated disposition, the trial court sentenced him to 10 years in state prison, which included the upper term on one of the counts. Defendant appealed asserting (1) the trial court (and the parties) mistakenly assumed he was presumptively ineligible for probation, (2) the court erred in finding aggravating factors that had not been pled, and (3) the court erred in finding these aggravating factors in the absence of his personal

All further statutory references are to the Penal Code unless 1

otherwise indicated.

1 waiver of his right to jury trial under the Sixth Amendment. We rejected each of defendant’s arguments and affirmed the judgment. As to his third assertion—that he did not personally waive his Sixth Amendment right to jury trial2—we affirmed on two grounds. First, we held defendant had, in fact, waived his Sixth Amendment right to jury trial on the aggravating factors. Second, we held the trial court had, in any case, relied on at least one permissibly established aggravating factor—defendant’s multiple convictions3—and therefore, under People v. Black (2007) 41 Cal.4th 799 (Black II),4 the aggravated sentence was not constitutionally infirm. Defendant sought review by our Supreme Court of both grounds. The court granted review and deferred further action “pending consideration and disposition of a related issue in People v. Lynch, S274942 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court.” (People v. Hall (Hall), S283530, Supreme Ct. Mins., Feb. 28, 2024.) The high court subsequently issued its opinion in People v. Lynch (2024) 16 Cal.5th 730 (Lynch), the majority holding that the court’s analysis in Black II is no longer apposite, given recent amendments to section 1170, subdivision (b). (Lynch, at pp. 756–757.) Rather, section 1170, subdivision (b) now requires that “the facts supporting every aggravating circumstance upon which the trial court relies to ‘justify’ imposition of the

2 He expressly disavowed any reliance on the then-recently enacted statutory right to jury trial under section 1170, subdivision (b). 3 Known as the “recidivist factor,” it is set forth in California Rules of Court, rule 4.421(b)(2) which states: “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” All further references to the “rules” are to the California Rules of Court. 4 Overruled in People v. Wiley (2025) 17 Cal.5th 1069, 1084 (Wiley).

2 upper term must be properly proven as the statute requires.” (Lynch, at p. 757.) Accordingly, “under the current statute a Sixth Amendment violation occurs 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.” (Id. at p. 768.) And any such “violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman[5] standard of review, the defendant is entitled to a remand for resentencing.” (Ibid.) The court went on to “disapprove People v. Hall [(2023)] 97 Cal.App.5th [1101], 1104–1108, People v. Ruiz [(2023)] 97 Cal.App.5th 1068, 1076–1078, People v. Falcon [(2023)] 92 Cal.App.5th 911, 938–939, People v. Butler [(2023)] 89 Cal.App.5th 953, 960, People v. Lewis [(2023)] 88 Cal.App.5th 1125, People v. Ross [(2022)] 86 Cal.App.5th 1346 . . . , People v. Dunn [(2022)] 81 Cal.App.5th 394, 407, People v. Zabelle [(2022)] 80 Cal.App.5th 1098, 1110–1113, People v. Lopez [(2022)] 78 Cal.App.5th 459, 467, footnote 11, and People v. Flores [(2022)] 75 Cal.App.5th 495, 500, to the extent they are inconsistent with today’s opinion.” (Id. at pp. 768–769.) The high court thereafter transferred the instant case back to us “with directions to vacate its decision and reconsider the cause in light of” Lynch. (Hall, supra, S283530, Supreme Ct. Mins., Feb. 28, 2024.) As the high court did not grant review in Lynch on the issue of jury trial waiver, nor did the

5 Chapman v. California (1967) 386 U.S. 18 (Chapman).

3 court grant review on that issue in the instant case, we again affirm his aggravated sentence, but on that ground, alone.

BACKGROUND6

Defendant, a registered sex offender, was friends, and resided, with the two victims’ grandfather. The victims were under the age of 14 at the time of the molestations. One recalled approximately 20 incidents of abuse, including instances of defendant fondling his penis, masturbating him, and orally copulating him. The last incident occurred when he was 12 or 13 years old. The other victim recalled four instances where defendant molested him when he was under or around 10 years old. Defendant variously sodomized him, lay in bed with him and pulled down his underwear, and grabbed his penis over his clothes. In 2021, the People charged defendant with sodomy of a child 10 years old or younger (§ 288.7, subd. (a)); two counts of continuous sexual abuse of a child (§ 288.5, subd. (a)); and failure to register as a sex offender (§ 290.018). The continuous sexual abuse counts included an enhancement allegation of a prior conviction of section 288 (§ 667.51, subd. (a)). Defendant faced a potential sentence of 25 years to life on the sodomy count, 16 years each on the continuous abuse counts plus five years each for the related enhancements, and one year on the failure to register count—in sum, 68 years to life. At the preliminary hearing, the trial court admitted evidence of a 1995 misdemeanor conviction for violation of section 288, subdivision (c)—lewd or

6 Our factual summary is based in part on the transcript of the preliminary hearing, which the parties stipulated provided a factual basis for defendant’s plea.

4 lascivious acts on a child 14 or 15 years old—which required defendant to register as a sex offender. In February 2022, pursuant to a negotiated disposition, the People filed an amended information, adding two felony counts of committing lewd acts upon a child under the age of 14 (§ 288, subd. (a))—one count for each victim—to which defendant pleaded no contest. As summarized on the change of plea form, the disposition provided that the trial court “could grant probation with time in jail all the way up to 10 years in prison (base term plus 1/3 the middle term for the 2nd count if ran [sic] consecutive).” Defendant initialed the provision of the form that stated, “I understand that I am not eligible for probation in this case. [P]resumptively ineligible.” Defendant also initialed the provision of the change of plea form stating, “I understand the Court will not decide whether to accept a plea or sentence bargain or to impose sentence or extend probation: until a Probation Officer makes an investigation and reports on my background, prior record (if any) and the circumstances of the case.” He additionally initialed the provisions of the form waiving his rights, to among other things, a jury trial. These provisions stated, in pertinent part, “10. I understand that, as to each charge I plead to and each special allegation and/or sentence enhancement I admit to be true, I have the following rights: [¶] . . . [¶] b. A speedy and public trial by jury. c. Representation by an attorney at all times. d. See, hear, and question all witnesses who testify against me. [¶] . . . [¶] 11. I understand that by this plea and any admissions I am making, I give up all the rights which are listed above except the continuing right to be represented by an attorney.” At the change of plea hearing, the prosecutor summarized the plea agreement as follows: “A plea of no contest to Count 5 and a plea of no contest

5 to Count 6. All sentencing options would be open to the Court. The Court could consider all aggravating factors. That’s the stipulation under 1170(b)”—a maximum potential exposure of 10 years. Defense counsel agreed. Defendant, himself, also stated that was his understanding of the negotiated disposition. Prior to accepting defendant’s no contest pleas, the court reviewed the plea form with him and defendant personally confirmed that he read and understood it, and had given up all the rights as stated therein, including his “right to have a jury trial.” Counsel then stipulated that the preliminary hearing transcript could be used as a factual basis for the plea, with defense counsel stating defendant was “not admitting guilt in any way.” The prosecutor also asked that the record specifically reflect “the parties’ stipulation under Penal Code section 1170(b)(2) as to what the Court can consider at sentencing,” and specifically “all aggravating factors” “in [r]ule 4.421.” Defense counsel concurred. The trial court then specifically asked defendant whether he had heard the recited terms of the disposition, including that the “Court could consider all aggravating factors,” and defendant confirmed that he had and these were, indeed, the terms of the proposed disposition. The trial court then proceeded to admonish defendant that the disposition included his giving up his rights, including the right to jury trial, and defendant expressly stated, “Yes,” he was giving up that right. At the sentencing hearing, counsel confirmed the stipulation that the trial court would consider all sentencing factors, both mitigating and aggravating. Defense counsel agreed there was a “[s]tip to all aggravating factors for the Court to be considered,” so “[t]he options open to the Court are probation with jail time all the way up to the ten years. And that would be

6 the eight years with one-third the middle term of two if the Court decided to run it consecutive.” Victim statements were given by a close friend of the victims’ grandmother, who had known the victims all their lives, and one of the victims appeared. The prosecution urged the court to impose the upper term, pointing out “[i]t only takes one factor [in aggravation] under the case law to—for the Court to do an aggravated sentence.” He then urged the court to find applicable all the factors in aggravation recommended in the probation report, as well as several additional aggravating factors. The probation officer emphasized the “long-term emotional, mental, and psychological ramifications” for the victims. At the conclusion of the prosecution’s presentation, defendant spoke, stating “The kids are lying. I have said that from the beginning, and I still say it. . . . [T]heir behavior isn’t from anything I have done. They have been rotten behavior from the get-go. . . . [¶] . . . They didn’t like the way I disciplined. . . . [¶] It’s not me that didn’t show remorse. I didn’t do it. . . .” Defense counsel agreed her client had maintained he was innocent from “day one,” and acknowledged “he is angry; he is upset.” She also acknowledged that his prior section 288 conviction “made this a very difficult case,” and stated the only reason he agreed to a negotiated disposition was to avoid the risk of a potential life sentence. Counsel asked the court to consider a midterm and not impose consecutive sentences; “[a]gain, my client is adamant that he’s been falsely accused.” The probation officer then provided further testimony, stating when he asked defendant about his prior section 288 conviction, he said that case “was all lies, and he was railroaded in that case.” “[F]or some reason the young

7 men in this case as well as the counselors in that [prior case] were out to get him for some reason.” The court found defendant ineligible for probation and further found no mitigating factors and seven aggravating factors set forth in rule 4.421. Commenting that the aggravating circumstances “far, far outweigh” the circumstances in mitigation, the court sentenced defendant to a 10-year prison term, comprised of the upper term of eight years for count 5 and two years (one-third of the six-year middle term) for count 6. The remaining counts were dismissed.

III. DISCUSSION

Ineligibility for Probation On appeal, defendant maintained the trial court (and counsel) erred in assuming he was presumptively ineligible for probation under section 1203, subdivision (e)(5), as stated in the sentencing report. Defendant pointed out section 1203, subdivision (e)(5) provides such a presumption only where there has been a prior conviction of section 288 as a felony, and he was convicted of violating section 288 as a misdemeanor. On remand, defendant makes no new challenge to this issue, and our opinion remains unchanged on this point. Accordingly, while defendant is correct that his misdemeanor conviction did not give rise to a presumption of ineligibility for probation, he made no objection at the time of sentencing to the court’s invocation of such presumption and had therefore waived the issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353.) Recognizing this was likely the case, defendant alternatively advances a claim of ineffective assistance of counsel. The standard of review for an ineffective assistance of counsel claim is well established. “First, the defendant must show that counsel’s performance

8 was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) However, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Id. at p. 697.) Indeed, it is often easier to dispose of such a claim based on lack of sufficient prejudice alone. (Ibid.) To prevail on an ineffective assistance of counsel claim, “the petitioner must carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 937, quoting People v. Stephenson (1974) 10 Cal.3d 652, 661.) We agree with the Attorney General that defendant cannot show prejudice attributable to the asserted ineffectiveness of counsel. “The standard for analyzing prejudice in an ineffective assistance of counsel claim mirrors the state standard for prejudicial error. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050–1051.) That is, ‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Lepere (2023) 91 Cal.App.5th 727, 738.) There is no reasonable probability a result more favorable to defendant would have ensued had counsel urged that defendant was eligible, and not presumptively ineligible, for probation. First, defendant was, in fact, wholly ineligible, not merely presumptively ineligible, for probation pursuant to

9 section 1203.066, subdivision (a)(5) and (7). These provisions state, “Notwithstanding Section 1203 or any other law, probation shall not be granted to . . . [¶] . . . [¶] (5) A person who is convicted of committing a violation of Section 288 or 288.5 and who has been previously convicted of a violation of Section 261, 264.1, 266, 266c, 267, 285, 286, 287, 288, 288.5, or 289, or former Section 262 or 288a . . . [¶] . . . [¶] [or] (7) A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim.” (§ 1203.066, subd. (a)(5), (7).) Second, even if defendant was fully eligible, there was no reasonable probability the court would have granted probation, given the court’s statements at the sentencing hearing and its imposition of the maximum allowable sentence under the terms of the plea agreement. “Pleading” Aggravating Factors On appeal, defendant maintained the then-recent amendments to section 1170, subdivision (b)(1) made by Senate Bill No. 567 (2020–2021 Reg Sess.) require that the prosecution “plead” any aggravating factors it intends to urge at sentencing. After defendant filed his opening brief, the Court of Appeal in People v. Pantaleon (2023) 89 Cal.App.5th 932, 939–941 (Pantaleon),7 addressed and rejected this same contention. We agreed, and continue to agree, with the analysis in Pantaleon, which points out there is a significant distinction between “enhancements,” which section 1170.1, subdivision (e) requires “shall be alleged in the accusatory pleading” (§ 1170.1, subd. (e)) and “ ‘circumstances in aggravation’ ” addressed by section 1170, subdivision (b), which does not contain a like mandate.

7Disapproved on another ground in Wiley, supra, 17 Cal.5th at pages 1077–1078, 1085–1086.

10 (Pantaleon, at pp. 939–940; see Chavez-Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 96–97 & fn. 8 (Chavez Zepeda) [amended statute does not require prosecutor to present evidence supporting aggravating factors at preliminary hearing].) In short, as Pantaleon held, defendant’s sentence was not constitutionally or statutorily infirm due to failure to allege sentencing factors in aggravation. Defendant then filed a petition for rehearing in which he urged we had misperceived his argument as one based solely on recent amendments to section 1170, subdivision (b)(1), but his argument was, in fact, based “on a line of California cases” like People v. Mancebo (2002) 27 Cal.4th 735, and therefore Pantaleon was inapposite. In Mancebo, our Supreme Court reiterated that “a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (Id. at p. 747, italics added.) But as the court in Pantaleon explained, there is a long-recognized distinction between sentencing enhancements and aggravating factors. (Pantaleon, supra, 89 Cal.App.5th at pp. 939, 941.) Pantaleon therefore rejected the defendant’s “constitutional theory of error” that he had not only a statutory right to pleading notice of aggravating factors, but also a “fair notice” due process right to pleading notice of factors in aggravation. (Id. at p. 941.) Indeed, the court observed the “defendant’s constitutional theory of error [was] foreclosed by binding [Supreme Court] authority.” (Ibid., citing In re Varnell (2003) 30 Cal.4th 1132, 1135, 1141–1142.) In his supplemental brief on remand, defendant acknowledges Lynch did not address the issue of “pleading and notice” of aggravating factors. (See Lynch, supra, 16 Cal.5th at p. 769.) Nevertheless, defendant urges us to

11 revisit the issue in light of “subsequent developments” in several other cases. We decline to do so. To begin with, although defendant sought review of the pleading issue, the high court did not take it up in either Lynch, or more significantly, the instant case. Our charge on remand is to reconsider the matter only as ordered by the Supreme Court—that is in light of Lynch. “When a case is transferred or remanded to the court of appeal for further proceedings, the scope of the court of appeal’s jurisdiction is determined by the supreme court’s decision or order.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group December 2024 Updated) ¶13:202.2, citing Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [the order of the reviewing court contained in its remittitur “defines the scope of the jurisdiction of the court to which the matter is returned,” and the “ ‘ “lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case” ’ ”]; see Boermeester v. Carry (2024) 100 Cal.App.5th 383, 386 [Supreme Court remanded matter with “clear instructions,” and “[w]e are bound by these instructions”].) The high court transferred this matter back to us to us with “directions to vacate” our decision “and reconsider the cause in light” of Lynch. Nothing in the court’s order suggests we should revisit our conclusion that defendant’s sentence is not constitutionally infirm due to lack of pleading aggravating factors. In any case, in Lynch, the high court commented briefly on the defendant’s “notice” argument advanced in opposing any prejudice analysis (under either Chapman or Watson) on “due process” grounds, and rejected it

12 for reasons that suggest there is no constitutionally mandated pleading requirement.8 Additionally, none of the cases defendant now cites reached a conclusion different than did Pantaleon as to pleading aggravating factors. While subsequent cases have criticized and parted company with Pantaleon on the issues decided to the contrary in Lynch, no case has disagreed with Pantaleon’s holding as to pleading aggravating factors. (See Wiley, supra,

8 The high court first observed, “When a statute includes specific pleading and proof requirements, ‘the People’s failure to include a multiple- victim-circumstance allegation must be deemed a discretionary charging decision’ which ‘restrict[s] the trial court to this application.” (Lynch, supra, 16 Cal.5th at p. 752.) It went on to explain, “Because Lynch was tried and sentenced under the 2007 version of section 1170, this case does not directly present issues of pleading and notice. Accordingly, it is not necessary for us to decide exactly what the statute and the federal Constitution demand in this context. But to the extent pleading and notice issues bear on whether a prejudice analysis is appropriate, we find the situation different from [the due process cases cited by the defendant], rendering them distinguishable. [¶] Each of the substantive offenses of which Lynch was convicted was charged in the information. The Penal Code gave notice of the applicable sentencing range for each offense. The statutory structure, case law, and California Rules of Court set out the contours of the hearing process. The probation report and the People’s statement in aggravation advised Lynch of all the aggravating circumstances that the court could rely upon to impose the upper sentence. All the aggravating circumstances actually relied on by the court have long been set out in the Rules of Court. (Cal. Rules of Court, rule 4.421.) Parties regularly discuss their presence or absence during plea negotiations and consider them in preparation for a sentencing hearing. In short, Lynch had notice of potentially aggravating circumstances, had the opportunity to contest them at the sentencing hearing, and actually did contest three of the factors. Moreover, because the previous sentencing structure did not require that aggravating circumstances be set out in the charging document, the People’s failure to plead and prove them cannot be ‘deemed a discretionary charging decision.’ ” (Lynch, supra, 16 Cal.5th at pp. 752–753.)

13 17 Cal.5th at pp. 1085–1086 [disapproving Pantaleon to the extent it is inconsistent with the high court’s holding in Lynch that “a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm” (fn. omitted)]; Chavez Zepeda, supra, 97 Cal.App.5th at pp. 92–97 [recognizing distinction between enhancements and aggravating factors, and holding aggravating circumstances need not be supported by evidence at the preliminary hearing]; Lovelace v. Superior Court (2025) 108 Cal.App.5th 1081,1105 [holding “residual clause” (rule 4.421(c)) exceeds legislative delegation of authority to the Judicial Council under section 1170.3 and thus violates the separation of powers clause of the California Constitution].)9 In re Vaquera (2024) 15 Cal.5th 706, 725, which defendant also cites, does not take issue with any of these cases. Rather, the court in that case addressed the specifics of the One Strike law, holding the prosecution must include allegations informing

9 Defendant points to the following language in Justice Goldman’s concurring opinion in Lovelace: “[S]ubdivision (b)(2) of section 1170 provides that, ‘upon request of the defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements.’ As noted above, the People contend that this language establishes a pleading requirement for aggravating factors, including enumerated ones. Although at least one court has found the language ambiguous on that score (see [Pantaleon, supra, 89 Cal.App.5th at p.] 940 . . .), it seems to me that the People’s reading is correct; while the statute does not expressly say that circumstances in aggravation must be alleged, it would defeat the Legislature’s purpose in requiring bifurcation if the prosecution could avoid it simply by declining to plead them.” (Lovelace, supra, 108 Cal.App.5th at p. 1118, conc. opn. by Goldman, J.) However, this was not an issue addressed by the majority opinion. And, unlike in Lovelace, the People make no such concession here.

14 the defendant of its intent to invoke that sentencing scheme and the basis for doing so. (Id. at pp. 723–725.) In sum, in the absence of any case holding that constitutional due process requires that factors in aggravation be pleaded, we follow established precedent to the contrary. Constitutional Right to Jury Trial on Aggravating Factors Defendant’s principal claim on appeal was that the aggravated term imposed by the court was unlawful because he did not, himself and in open court, waive his constitutional right to a jury trial on the facts underlying the aggravated factors, as required by Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).10 (See generally Black II, supra, 41 Cal.4th 799, 816; Couzens et al., Sentencing California Crimes (The Rutter Group 2023) ¶ 10:1 et seq.) Federal constitutional precedent establishes that “ ‘[o]ther 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 a jury, and proved beyond a reasonable doubt.’ (Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490 . . . [(Apprendi)].)” (Black II, supra, 41 Cal.4th at p. 814.) The “relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum [the judge] may impose without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303–304.) There are two exceptions to a defendant’s Sixth Amendment right to a jury trial on aggravating facts—facts admitted by the defendant and the fact

10 At oral argument, counsel reiterated that defendant was advancing only a constitutional claim under the Sixth Amendment and was not challenging his aggravated sentence under section 1170, as amended by Senate Bill No. 567 (2020–2021 Reg. Sess.).

15 of a prior conviction. (People v. Sandoval (2007) 41 Cal.4th 825, 836–837 (Sandoval),11 citing Blakely, supra, 542 U.S. at pp. 301, 303; Apprendi, supra, 530 U.S. at p. 490; see Wiley, supra, 17 Cal.5th at p. 1086 [“a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements”].) Otherwise, the defendant must personally waive his Sixth Amendment right to jury trial in order for the trial court to find aggravating circumstances that increase the defendant’s sentence beyond the statutory maximum. (Wiley, at p. 1086; Black II, supra, 41 Cal.4th at p. 816; People v. French (2008) 43 Cal.4th 36, 47–48 (French).) In our now-vacated opinion, we firstly held, that under well-established precedent, including controlling authority by our Supreme Court, defendant knowingly and intelligently waived his constitutional right to a jury trial, including as to aggravating factors, and his aggravated sentence is constitutionally permissible for that reason, alone. We secondly held, as an additional ground for affirmance, that even if defendant did not sufficiently waive his constitutional jury trial right, the trial court found at least one aggravating factor—recidivism pursuant to rule 4.421(b)(2)—on a basis consistent with the Sixth Amendment and therefore, under Black II, his aggravated sentence was not constitutionally infirm. Although, our Supreme Court in Lynch rejected our second holding (Lynch, supra, 16 Cal.5th at p. 761), our first ground for upholding the aggravated sentence—that defendant did waive his Sixth Amendment right to jury trial—remains unimpeached by Lynch.12

11 Superseded by statute on another ground as stated in Lynch, supra, 16 Cal.5th at page 757. 12 In fact, the high court observed in Lynch that the defendant had neither been asked “to expressly waive jury trial on aggravating

16 Defendant nevertheless asks us to reconsider our threshold determination that he waived his constitutional right to jury trial on the aggravating circumstances. We decline to do so. Rather, as we have stated, we will reconsider the matter as ordered by the Supreme Court—that is in light of Lynch. (See discussion, ante, at p. 12.) We therefore adopt and set forth again here our prior discussion of defendant’s waiver of his constitutional right to jury trial. As we have recited, in his change of plea form, defendant expressly waived his right to jury trial not only as to each charge but also to any “special allegation and/or sentence enhancement I admit to be true.” And in open court, he expressly confirmed that the terms of the disposition included that the court would consider all aggravating factors set forth in rule 4.421, and after that confirmation, he went on to expressly confirm he was giving up various rights, including, specifically, his right to jury trial. As our high court has explained, there is a distinction between what is constitutionally required for a valid jury waiver and what may be statutorily required under state law. (People v. Sivongxxay (2017) 3 Cal.5th 151, 171 (Sivongxxay). In Sivongxxay, the defendant claimed his jury trial waiver did not encompass a waiver of his right to jury trial on a special circumstance allegation. (Ibid.) The court rejected his claim, stating “[d]efendant demands more than the federal and state Constitutions require for a valid waiver of the jury trial right. As discussed, a knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the

circumstances” nor to “stipulate to facts underlying any of the aggravating circumstances listed by the trial court in support of its upper term sentence,” and thus the court had “no occasion . . . to address the conditions applicable to waiver and stipulation.” (Lynch, supra, 16 Cal.5th at p. 769.)

17 consequences of forgoing this right. [Citation.] There is no additional constitutional requirement that a defendant be specifically advised of the specific charges, enhancements, allegations, or other issues to which a general jury waiver will apply. On the contrary, with a comprehensive jury waiver such as the one entered below, absent unusual circumstances not present here ‘ “[i]t is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.” ’ (People v. Berutko (1969) 71 Cal.2d 84, 94 . . . , quoting People v. Russell (1961) 195 Cal.App.2d 529, 532. . . .)” (Id. at pp. 171–172, italic omitted.) The majority reiterated the point in responding to the dissent’s conclusion to the contrary, stating “The dissenting justices apparently read the trial judge’s advisements differently, perceiving the failure to expressly refer to the special circumstance allegation as somehow implicitly excluding that allegation from a counseled and otherwise comprehensive jury waiver. (See conc. & dis. opn. of Liu, J., post, at pp. 203–206; conc. & dis. opn. of Cuéllar, J., post, at pp. 218–219.) We respectfully disagree with this interpretation of the colloquy, for the reasons we have previously given. The dissenting justices’ position boils down to the proposition that the judge was constitutionally bound to utter the phrase ‘special circumstance’ at some point in the waiver colloquy with defendant, even if the judge never went on to explain what this phrase meant. But our waiver jurisprudence rejects the notion that a knowing and intelligent waiver hinges on the recitation of a ‘ “talismanic phrase.” ’ [Citations.] The fact of the matter is that the dissenting justices, like defendant, would require a degree of elaboration and specificity in a jury waiver colloquy that has never been demanded for a jury waiver to be considered knowing and intelligent under constitutional

18 standards.”13 (Sivongxxay, supra, 3 Cal.5th at pp. 175–176, fn. & italics omitted.)

13 We note that in French, the high court concluded the defendant had not forfeited his constitutional claim that he was entitled to a jury trial of aggravating facts, stating “At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. The absence of such an explicit waiver is not surprising. When defendant entered his plea, Blakely had not yet been decided, and prior to that decision ‘it was widely assumed that for the purposes of the rule established in Apprendi, the maximum term authorized by the jury’s verdict was the upper term.’ [Citation.] . . . Defendant’s waiver of jury trial on the offenses in connection with his no contest plea cannot reasonably be interpreted to extend to proof of aggravating circumstances when, at the time of the plea, no right to a jury trial on such circumstances had been recognized. Defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances, and his claim must be addressed on the merits.” (French, supra, 43 Cal.4th at p. 48, fn. omitted.) Both the majority and dissenting opinions in Sivongxxay make clear this statement in French applies where no jury trial right has yet been recognized. The majority’s discussion is set forth above. In his dissent, Justice Cuéllar stated, “The gist of defendant’s claim is that the record fails to show he was aware of his right to a jury trial on this phase of the trial or that he waived it. State v. Williams (2005) 197 Ore.App. 21, presents an analogous situation. Williams similarly was unaware that he had the right to a jury finding of the facts that could trigger an enhanced sentence; his trial had predated Blakely[,supra,] 542 U.S. 296, which held that a criminal defendant has a federal constitutional right to have a jury find the facts that could subject him to a sentence greater than the statutory maximum. The Williams court reasoned that no waiver could be implied in those circumstances unless the record showed that the defendant was aware both of ‘ “the right to have a jury determine the aggravating factors” ’ and that ‘ “he was waiving that right.” ’ (Williams, at p. 1152; accord, People v. French[, supra, 43 Cal.4th at p.] 48 . . . [because the defendant entered his plea pre-Blakely, his jury waiver on the substantive offense ‘did not encompass his right to a jury trial on any aggravating circumstances’]; State v. Schofield (2005) 2005 ME 82 . . . .) Unlike the majority, I see no meaningful distinction in the fact that Williams was unaware of his jury trial

19 The court reached a different conclusion with respect to the defendant’s statutory right to jury trial on a special circumstance allegation as elucidated by the court in its prior decision in People v. Memro (1985) 38 Cal.3d 658 (Memro), overruled on another ground as stated in People v. Gaines (2009) 46 Cal.4th 172, 181, footnote 2.14 (Sivongxxay, supra, 3 Cal.5th at pp. 176– 178.) In Sivongxxay, “[t]here was no specific reference in the waiver colloquy to the need to adjudicate the special circumstance allegation; the term ‘special circumstance’ was never mentioned at all. Although such precision [was] not required for a knowing, voluntary, and intelligent waiver, [the high court believed] that Memro’s requirement of a ‘separate waiver,’ ” even as that rule was clarified in subsequent cases, “demand[ed] at least that much specificity.” (Id. at pp. 177–178.) Thus, although the court recognized the line it was drawing was “a narrow one,” it held the defendant’s “purported waiver as to the special circumstance determination was deficient, as a matter of state law.” (Id. at p. 178.) Given the clarity of the record here that defendant knowingly and voluntarily waived his right to jury trial generally and did so fully advised and personally agreeing in open court that the negotiated disposition

right because of an intervening change in the law, while defendant was unaware of his jury trial right because it was never mentioned anywhere in the colloquy. (Cf. maj. opn., ante, at pp. 172–173, fn. 7.)” (Sivongxxay, supra, 3 Cal.5th at pp. 222–223 (dis. opn. of Cuéllar, J.).) Here, in contrast, at the time defendant pleaded no contest, the constitutional right to jury trial on facts in aggravation was well established. 14 “Memro construed the [then-applicable] statutes (as enacted by the Legislature in 1977, see Stats. 1977, ch. 316, §§ 7, 12, pp. 1257, 1260), read together, as requiring a ‘separate, personal waiver’ of the right to a jury for a special circumstance allegation, above and beyond the standard guilt phase and penalty phase waiver.” (Sivongxxay, supra, 3 Cal.5th at p. 176.)

20 included that the court would consider all aggravating circumstances, we conclude defendant’s jury waiver was constitutionally sufficient. And on that basis, we uphold the aggravated sentence imposed by the trial court.

DISPOSITION

The judgment is AFFIRMED.

21 _________________________ Banke, Acting P. J.

We concur:

_________________________ Langhorne Wilson, J.

_________________________ Smiley, J.

A165406, People v. Hall

22