Unreported / Non-Citable
Background
Branden Ferguson appealed a Kern County Superior Court judgment in two related cases. In case No. BF193805A (case 1), he was convicted October 5, 2023, of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)); the court imposed 80 days in county jail and two years of felony probation. In case No. BF198882A (case 2), an August 30, 2024 information charged him with being a felon in possession of ammunition (§ 30305, subd. (a)(1)) and an infraction for failing to stop at a red light, with a prior strike allegation based on the case 1 conviction and four aggravating factors under California Rules of Court, rule 4.421.
On February 18, 2025, a jury convicted Ferguson of the ammunition count, and the court dismissed the infraction in the interest of justice. After the court described only the rule 4.421(b)(1) violent-conduct factor as a jury question, Ferguson personally waived a jury on the strike allegation and that factor. At the bifurcated proceeding the court found the strike true, the (b)(1) factor not true, the (b)(2) and (b)(4) factors true, and the (b)(5) factor not true. At the March 18, 2025 sentencing hearing, however, the court relied on rules 4.421(b)(2), (b)(4), and (b)(5) as aggravating circumstances. After denying his Romero motion, it imposed a six-year term on case 2 count 1 — the upper term doubled under the Three Strikes law — and revoked probation in case 1, imposing a concurrent six-year mid-term. Ferguson filed a timely notice of appeal March 26, 2025.
The Court’s Holding
The Court of Appeal held that Penal Code section 1170, subdivision (b), and the Sixth Amendment guarantee a jury trial on all aggravating facts, other than the bare fact and elements of a prior conviction, relied on to justify an upper term. Relying on Apprendi, Erlinger v. United States, and People v. Wiley, the court explained that recidivism-based findings — whether convictions are numerous or of increasing seriousness, or whether probation performance was unsatisfactory — exceed the prior-conviction exception and require a jury finding unless stipulated or validly waived. A waiver must be expressed in words and be knowing, intelligent, and voluntary.
The trial court mistakenly treated only rule 4.421(b)(1) as a jury question, so Ferguson's personal waiver did not cover rules 4.421(b)(2), (b)(4), and (b)(5), on which the court nonetheless relied at sentencing. Under Chapman, the error was prejudicial because the appellate court could not conclude beyond a reasonable doubt that a rational jury would have found true every aggravating fact relied upon — a jury could have disagreed about whether the convictions were numerous and whether probation performance was unsatisfactory. The court vacated the sentences in both cases and remanded for a jury trial on the aggravating circumstances, resentencing, or a personal waiver, while affirming the judgment in all other respects. It expressly declined to reach the probation-revocation issue because Ferguson disclaimed that position in his reply brief.
Key Takeaways
- A personal waiver of a jury trial on one aggravating factor does not waive the right as to other factors later used for an upper term.
- Under Erlinger and Wiley, findings that convictions are numerous or of increasing seriousness, or that probation performance was unsatisfactory, go beyond the bare fact of a prior conviction and require a jury finding unless validly waived.
- The error was prejudicial under Chapman because the court could not find beyond a reasonable doubt that a jury would have found true every aggravating fact relied upon.
- The remand allows a jury trial on the aggravating circumstances, resentencing, or a personal jury-trial waiver; it does not itself impose a new sentence.
- The court did not reach reversal of the probation revocation because Ferguson disclaimed that argument; the judgment was otherwise affirmed.
Why It Matters
The decision applies the California Supreme Court's recent limits on judicial factfinding at upper-term sentencing to a record where the trial court expressly but mistakenly treated most aggravating factors as bench questions. It underscores that a jury-trial waiver must be assessed factor by factor against what the defendant was told and personally relinquished, not inferred from counsel's choices or a waiver of a different allegation.
The opinion also separates the sentencing remedy from the abandoned revocation challenge: although both sentences were vacated, the court declined to decide whether the revocation itself should be reversed, leaving the convictions and unchallenged portions of the judgment intact while requiring further proceedings consistent with the jury-trial right.