People v. Gage CA3

DISCUSSION

I The trial court erred in relying on certain aggravating factors to impose the upper term under section 1170, subdivision (b) Section 1170, subdivision (b)(1) applies when the trial court imposes a judgment of imprisonment and the statute specifies three possible terms, generally described as the upper, middle, and low terms. The court cannot select the upper term unless the facts supporting the aggravating circumstances are, as relevant here, proven to the court beyond a reasonable doubt or are based on prior convictions evidenced by a certified record of conviction. (People v. Jones (2022) 79 Cal.App.5th 37, 44.) The California Rules of Court provide a nonexhaustive list of aggravating factors the court may consider. (Rule 4.421.) The parties agree the trial court improperly relied on the interference factor, the violent conduct factor, and the concurrent sentence factor. (Rule

3 4.421(a)(6), (7) & (b)(1).) The trial court’s errors as to those factors are clear from the record. A sentencing court may not use the same factor to choose the aggravated sentence and impose a consecutive sentence. (People v. Williams (1986) 180 Cal.App.3d 57, 62; rule 4.425(b).) The…