People v. Guinn CA5

INTRODUCTION

Joseph David Guinn, appellant, argues prosecutorial misconduct when the prosecutor, during closing argument, referred to statements made by potential jurors. Appellant further argues the trial court improperly relied on aggravating factors not found true by a jury when imposing an upper term. We affirm the conviction but vacate the sentence and remand the instant case for resentencing pursuant to Penal Code section 1170, subdivision (b).

PROCEDURAL HISTORY

On May 7, 2021, in a complaint deemed an information, the Tuolumne County District Attorney charged appellant with two counts of lewd acts upon a child under the age of 14 (§ 288, subd. (a)). The information further alleged appellant had a prior serious or violent felony conviction from 20152 and prior sexual assault convictions against minors, precluding him from receiving probation.3 Appellant admitted the prior conviction allegations in the information. Following a jury trial, appellant was convicted of one count and acquitted of one count of violating section 288, subdivision (a). On January 27, 2023, the trial court sentenced appellant to the aggravated term of eight years, doubled pursuant to his prior…