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Filed 4/28/23 P. v. Wertz CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not 

been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and 

Respondent,

v.

JOSHUA WERTZ,

Defendant and 

Appellant.

 A165530

 (Lake County

Super. Ct. Nos. CR959472, 

CR962360-C, CR963398)

Defendant Joshua Wertz (Wertz) challenges the imposition 

of an upper term sentence under Penal Code1 section 1170, 

contending that the trial court failed to comply with the statutory 

amendments enacted by Senate Bill No. 567. We affirm. 

BACKGROUND

The sentencing hearing at issue in this appeal consisted of 

a resentencing in case No. CR959472 (case No. 1) and sentencing 

on case Nos. CR962360-C (case No. 2) and case No. CR963398 

(case No. 3). 

1 All further statutory references are to the Penal Code 

unless otherwise indicated. 
2

In January 2021, the district attorney filed an amended 

complaint in case No. 1, charging Wertz with unlawfully taking a 

motor vehicle with a qualifying prior conviction (Veh. Code, 

§ 10851, subd. (a)), Pen. Code, § 666.5); buying or receiving a 

stolen vehicle (§ 496d, subd. (a)); and misdemeanor driving 

without a license (Veh. Code, § 12500, subd. (a)). 

On September 20, 2021, Wertz pleaded no contest to 

unlawfully taking a motor vehicle with a qualifying prior 

conviction, agreeing to an upper term sentence of four years in 

county jail in exchange for the dismissal of the remaining counts. 

The next month, the trial court sentenced Wertz to a split 

sentence of three years in county jail prison and one year of 

mandatory supervision. 

On January 10, 2022, the district attorney filed a complaint 

in case No. 2 charging Wertz with grand theft (§ 487, subd. (a)) 

and making a false statement to obtain aid (Unemp. Ins. Code, 

§ 2101, subd. (a)).

On May 4, 2022, the district attorney filed a complaint in 

case No. 3 charging Wertz with recklessly evading a peace officer 

(Veh. Code, § 2800.2, subd. (a)) and evading a peace officer by 

driving in the opposite direction of traffic (Veh. Code, § 2800.4). 

On May 16, 2022, Wertz pleaded no contest to making a 

false statement to obtain aid in case No. 2 and recklessly evading 

a peace officer in case No. 3, agreeing to an eight-month prison 

sentence to be served consecutively with his four-year sentence in 
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case No. 1 and an eight-month concurrent sentence.2 The trial 

court dismissed the remaining counts at the prosecution’s 

request. 

At the sentencing hearing on June 13, 2022, the parties 

stipulated that the June 2022 probation report prepared for the 

sentencing could be received into evidence. Wertz then asserted 

that he was entitled to resentencing in case No. 1 and should be 

given the middle term based on a change in law making the 

middle term the presumptive sentence, and the court received 

into evidence an October 2021 probation report submitted for the 

initial sentencing in case No. 1. The district attorney argued that 

the upper term should be maintained because the parties 

stipulated to the sentence and because Wertz had “a substantial 

prior record.” 

The trial court determined that it had to resentence Wertz 

in case No. 1 under the newly amended section 1170.3 The court 

agreed with the prosecution that it could consider Wertz’s 

criminal history and the fact that Wertz was receiving a 

2 The waiver of rights form signed and initialed by Wertz 

states that the parties agreed to a state prison sentence of “8 

months with [case No. 2] and [case No. 3] to running [sic] 

concurrent with each other and consecutive to current term being 

served in [case No. 1].”

3 Citing People v. Conatser (2020) 53 Cal.App.5th 1223, 

1229, and People v. Lopez (2020) 57 Cal.App.5th 409, 414, the 

Attorney General states on appeal that, because the trial court 

initially imposed a four-year split sentence pursuant to section 

1170, subdivision (h), the judgment in case No. 1 had not become 

final before the June 13, 2022 hearing for purposes of retroactive 

ameliorative legislation.
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concurrent sentence rather than a consecutive sentence pursuant 

to his plea agreement in case Nos. 2 and 3. 

After stating that it had read and considered the probation 

reports, the court made the following findings in aggravation: 

Wertz was convicted of other crimes for which consecutive 

sentences could be imposed; his prior convictions as an adult 

were numerous and increasing in seriousness; he had served 

three prison terms; his prior performance on supervision was 

unsatisfactory; and he was in custody when he committed the 

offense in case No. 2. The court found in mitigation that Wertz 

voluntarily admitted wrongdoing at an early stage of the 

proceedings and then it found that the aggravating 

circumstances outweighed those in mitigation. The court 

imposed the upper term of four years in case No. 1, making it the 

principal term. The court imposed a concurrent, lower term 

sentence of 16 months in case No. 2, and an eight-month (onethird of the middle term) subordinate consecutive term in case 

No. 3. Wertz timely appealed.4

DISCUSSION

Wertz’s contention on appeal is that, in imposing the upper 

term sentence in case No. 1, the trial court failed to comply with 

section 1170, as amended by Senate Bill No. 567 (Stats. 2021, 

ch. 731, § 1.3). The Attorney General counters that Wertz’s claim 

is forfeited, and that this court should affirm for the additional 

4 Because the facts underlying the offenses in the pertinent 

cases are not relevant to the claims in this appeal, we omit a 

factual summary of the offenses. 
5

reason that Senate Bill No. 567 affords no relief to a defendant 

who agreed to a plea with a stipulated sentence. As set forth 

below, we affirm because we find that Wertz forfeited his claim of 

error under section 1170, and, to the extent that he asserts a 

constitutional claim under the Sixth Amendment to the United 

States Constitution, his claim lacks merit. 

I. Relevant Law

To contextualize Wertz’s arguments on appeal, we begin 

with a brief overview of the history of California’s determinate 

sentencing law.

In Cunningham v. California (2007) 549 U.S. 270 

(Cunningham), the United States Supreme Court considered an 

earlier version of section 1170, subdivision (b), which stated “that 

‘the court shall order imposition of the middle term, unless there 

are circumstances in aggravation or mitigation of the crime,’ ” 

and further provided that “ ‘[c]ircumstances in aggravation or 

mitigation’ are to be determined by the court after consideration 

of several items.” (Cunningham, at p. 277.) The high court held 

California’s determinate sentencing law violated a defendant’s 

Sixth Amendment right to a trial by jury because it authorized a 

judge to find the facts permitting an upper term sentence. (Id. at 

pp. 274, 293.) The court explained the law violated “Apprendi’s5

bright-line rule: Except for 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.’ ” (Cunningham, at pp. 288–289.)

5 Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
6

In People v. Sandoval (2007) 41 Cal.4th 825, the California 

Supreme Court considered whether an upper term sentence 

imposed pursuant to the pre-Cunningham determinate 

sentencing law—i.e., imposed over the middle term based on 

judicial findings of fact on circumstances in aggravation—was 

harmless error under the Sixth Amendment. (Sandoval, at 

p. 837.) In Sandoval, the trial court had relied upon multiple 

aggravating circumstances, none of which were proven to a jury, 

admitted by the defendant, or based on the fact of a prior 

conviction. (Id. at pp. 837–838.) The upper term sentence 

therefore violated Cunningham. To assess harmless error, 

Sandoval articulated the following standard: “[I]f a reviewing 

court concludes, beyond a reasonable doubt, that the jury, 

applying the beyond-a-reasonable-doubt standard, 

unquestionably would have found true at least a single 

aggravating circumstance had it been submitted to the jury, the 

Sixth Amendment error properly may be found harmless.” 

(Sandoval, at p. 839.) So long as one aggravating circumstance 

has been established consistently with Sixth Amendment 

principles—by the jury’s verdict, the defendant’s admissions, or 

the fact of a prior conviction—the federal constitution does not 

prohibit a trial court from relying on additional aggravating 

circumstances to impose an upper term sentence. (Sandoval, at 

pp. 838–839; People v. Black (2007) 41 Cal.4th 799, 813.)

Since Cunningham, the Legislature has amended 

California’s determinate sentencing law with respect to statutory 

maximum term twice. First, shortly after Cunningham, the 
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Legislature eliminated the presumptive middle term and allowed 

judges broad discretion in selecting a term within a statutory 

range to avoid the constitutional infirmity found by Cunningham. 

(People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Next, 

effective January 1, 2022, the Legislature enacted Senate Bill 

No. 567 (Stats. 2021, ch. 731, § 1.3) to reimpose a presumptive 

middle term for determinate sentences.

As is relevant here, after Senate Bill No. 567 (Stats. 2021, 

ch. 731, § 1.3), section 1170, subdivision (b)(1) states, “[T]he court 

shall, in its sound discretion, order imposition of a sentence not to 

exceed the middle term, except as otherwise provided in 

paragraph (2).” The referenced paragraph provides: “The court 

may impose a sentence exceeding the middle term only when 

there are circumstances in aggravation of the crime that justify 

the imposition of a term of imprisonment exceeding the middle 

term, and the facts underlying those circumstances have been 

stipulated to by the defendant, or have been found true beyond a 

reasonable doubt at trial by the jury or by the judge in a court 

trial.” (§ 1170, subd. (b)(2).) However, “Notwithstanding 

paragraphs (1) and (2) [of section 1170, subdivision (b)], the court 

may consider the defendant’s prior convictions in determining 

sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury. This paragraph does 

not apply to enhancements imposed on prior convictions.” 

(§ 1170, subd. (b)(3).)
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II. Analysis

Wertz contends that his upper term sentence in case No. 1 

was improperly imposed under section 1170 because he did not 

stipulate to any circumstances in aggravation, no aggravating 

factors were found true beyond a reasonable doubt by a jury, and 

no certified records of his prior convictions were introduced at the 

resentencing. But, as the Attorney General points out, Wertz did 

not object on these grounds even though he was resentenced 

nearly six months after Senate Bill No. 567 (Stats. 2021, ch. 731, 

§ 1.3) went into effect. Wertz responds that his failure to object 

cannot result in forfeiture because the right he is asserting is a 

constitutional right to jury trial under the Sixth Amendment and 

Apprendi, supra, 530 U.S. 466, and Cunningham, supra, 549 U.S. 

270. As set forth below, we agree with the Attorney General with 

respect to Wertz’s state statutory claim of error, and we find no 

basis to reverse under the Sixth Amendment.

Here, the record shows that Wertz forfeited his section 

1170 claim. At the resentencing hearing, defense counsel, the 

prosecutor, and the trial court were aware of Senate Bill No. 567

(Stats. 2021, ch. 731, § 1.3), and the trial court resentenced Wertz 

under the newly amended law. The trial court stated on the 

record that it could find certain factors in aggravation based on 

Wertz’s prior criminal record without a stipulation and without a 

jury, and then the court made those findings. Wertz could have, 

but did not, object that the court’s imposition of the upper term 

sentence did not comport with section 1170. His failure to object 

prevents him from pursuing his claim of state law error under 
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section 1170 on appeal. (People v. Anderson (2023) 88 

Cal.App.5th 233, 242; see also People v. Scott (1994) 9 Cal.4th 

331, 353, 356 [complaints about court’s failure to properly make 

or articulate its discretionary sentencing choices cannot be raised 

for the first time on appeal]; People v. Garcia (2010) 185 

Cal.App.4th 1203, 1218 [“ ‘Claims of error relating to sentences 

“which, though otherwise permitted by law, were imposed in a 

procedurally or factually flawed manner” are waived on appeal if 

not first raised in the trial court’ ”], italics omitted; People v. 

French (2008) 43 Cal.4th 36, 46–48 [statutory right to jury trial 

can be waived by failing to object whereas constitutional right 

requires express waiver].)

As for any Sixth Amendment claim, although not forfeited 

by failure to object (People v. French, supra, 43 Cal.4th at pp. 47–

48), Wertz fails to establish reversible error.6 The parties 

stipulated that the June 2022 probation report could be received 

6 Wertz cites Article I, section 16, of the California 

Constitution in addition to the Sixth Amendment when arguing 

that he has not forfeited his argument that the resentencing 

violated his constitutional right to a jury trial. Wertz, however, 

offers no substantive argument or authority in support of a claim 

that his resentencing violated the California Constitution. We 

perceive no separate claim under the California Constitution, and 

we do not address that claim, if, indeed, Wertz is asserting it. 

(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An 

appellate court is not required to examine undeveloped claims, 

nor to make arguments for parties.”]; Badie v. Bank of America

(1998) 67 Cal.App.4th 779, 784–785 [“When an appellant fails to 

raise a point, or asserts it but fails to support it with reasoned 

argument and citations to authority, we treat the point as 

waived.”].) 
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into evidence, and that report lists at least eight of Wertz’s prior 

convictions, including five misdemeanors and three felonies. 

Three prior convictions, including misdemeanors, are considered 

numerous (People v. Searle (1989) 213 Cal.App.3d 1091, 1098; see 

also People v. Black, supra, 41 Cal.4th at p. 818), and, under the 

Sixth Amendment, the trial court can determine the fact of a 

prior conviction (People v. Towne (2008) 44 Cal.4th 63, 81–82; 

People v. Black, at p. 813; People v. Gallardo (2017) 4 Cal.5th 

120, 138). Thus, for purposes of defendant’s Sixth Amendment 

claim, the court properly found the aggravating factor that 

Wertz’s prior convictions were numerous.7 (People v. Black, at 

p. 813.) And, even if there were Sixth Amendment error in not 

submitting that factor to a jury, on this record—which includes 

the parties’ stipulation that the June 2022 probation report could 

be received into evidence and which lacks any challenge from 

Wertz to the evidence of the convictions set forth therein—we 

may conclude, beyond a reasonable doubt, that the jury would 

have found true this aggravating circumstance.8 

DISPOSITION

The judgment is affirmed.

7 Under California Rules of Court, rule 4.421(b)(2), an 

aggravating factor exists if “defendant’s prior convictions as an 

adult or sustained petitions in juvenile delinquency proceedings 

are numerous or of increasing seriousness.” (Italics added.)

8 Given our disposition, we need not reach the Attorney 

General’s alternative argument that Senate Bill No. 567 

(Stats. 2021, ch. 731, § 1.3)affords no relief to a defendant who 

agreed to a plea with a stipulated sentence.
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BROWN, P. J.

WE CONCUR:

GOLDMAN, J.

WHITMAN, J.

People v. Wertz (A165530)

 Judge of the Superior Court of California, County of 

Alameda, assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.