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Filed 2/14/24 P. v. Pulford CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EARL PULFORD,

Defendant and Appellant.

C096619

(Super. Ct. No. CR20212968)

Defendant James Earl Pulford was found guilty by a jury of arson and sentenced to 

16 years in prison. He contends that his waiver of a jury trial on allegations of prior 

strikes and aggravating circumstances was not knowing and intelligent. We conclude 

that defendant forfeited statutory claims that his waiver was inadequate and the trial 

court’s decision on aggravating circumstances did not violate the federal or state 

Constitutions. Accordingly, we affirm. 
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FACTUAL AND PROCEDURAL BACKGROUND

Because this case is concerned solely with defendant’s jury trial waiver, we 

provide a limited recitation of the underlying facts. 

Defendant was staying in a motel in West Sacramento as part of a program 

instituted in response to COVID-19 to offer free, transitional housing. During a 

compliance check, contraband items (e.g., knives, torches, a BB gun) were found in 

defendant’s room. He was ordered to discard these items before a follow-up visit the 

next day. Before the visit occurred, a fire broke out in defendant’s room. Less than an 

hour later, police officers found defendant at a gas station nearby. He smelled of smoke 

and there was smoke residue on his hands. An investigation indicated that the fire was 

intentionally set. One smoke detector in defendant’s room was missing and the sensors 

of another had been blocked to keep it from functioning. 

Defendant was charged with arson of an inhabited structure. The amended 

information alleged that defendant was previously convicted of two serious felonies, i.e., 

robbery and attempted robbery, in 2008 within the meaning of the “Three Strikes” law. 

(Pen. Code,1 § 667, subd. (d).) The information also alleged that the robbery conviction 

qualified for the five-year prior serious felony enhancement. (§ 667, subd. (a)(1).) The 

information further alleged a number of aggravating circumstances under California 

Rules of Court,2rule 4.421 for purposes of sentencing under section 1170, subdivision 

(b), to wit, the crime involved great violence, harm, or cruelty (rule 4.421(a)(1)); the 

victims were particularly vulnerable (rule 4.421(a)(3)); the crime involved property 

damage of great value (rule 4.421(a)(9)); defendant was engaged in violent conduct 

indicating a serious danger to society (rule 4.421(b)(1)); defendant’s prior convictions 

1 Undesignated statutory references are to the Penal Code.

2 Undesignated rule references are to the California Rules of Court.
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were numerous or increasing in seriousness (rule 4.421(b)(2)); defendant had served a 

prior prison term (rule 4.421(b)(3)); and defendant’s performance on probation was 

unsatisfactory (rule 4.421(b)(5)).

The arson charge was tried by a jury. When the trial court was advised that the 

jury had reached a verdict, the court conferred with defendant and his counsel regarding 

how the alleged prior convictions and aggravating circumstances would then be tried. 

“THE COURT: Okay. We’re out of the presence of the jury right now. [¶] I 

have counsel here. I have a note from the jury stating that there is a verdict. [¶] Before 

we bring in the jury, [defense counsel] I need an answer from you on how, if it is a guilty 

verdict, how you want to proceed on the additional enhancements at this time. 

“[DEFENSE COUNSEL]: Right. How my client wants to proceed, and in 

speaking with him he has elected to have the [c]ourt rule on the priors rather than a jury 

trial on the priors; is that correct, [defendant]? 

“THE DEFENDANT: Yes. 

“THE COURT: All right. Thank you for that. Okay. [¶] Is there anything we 

want to talk about before we bring in the jury? 

“[PROSECUTOR]: Not from the People’s prospective [sic], your Honor. 

“[DEFENSE COUNSEL]: Not from mine either.” 

In the subsequent bench trial, the trial court found beyond a reasonable doubt 

based on certified documentation that defendant was convicted of robbery and attempted 

robbery in 2008. Based on the same documentation, the trial court determined beyond a 

reasonable doubt that defendant was convicted of robbery, a serious felony within the 

meaning of section 667, subdivision (a)(1). Turning to the aggravating circumstances, 

the trial court found beyond a reasonable doubt facts supporting aggravating 

circumstances that the crime involved great violence, harm, or cruelty (rule 4.421(a)(1)); 

the victims were particularly vulnerable (rule 4.421(a)(3)); defendant was engaged in 

violent conduct that made him a serious danger to society (rule 4.421(b)(1)); defendant’s 
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prior convictions were numerous and of increasing seriousness (rule 4.421(b)(2)); and 

defendant had served a prior prison term (rule 4.421(b)(3)). The court observed that no 

evidence had been presented that the crime involved property damage of great value (rule 

4.421(a)(9)).

At the sentencing hearing, the trial court struck the five-year prior serious felony 

enhancement and one of the strikes. The court imposed the upper term of eight years 

based on the aggravating circumstances, doubled to 16 years by the remaining strike. 

Defendant appeals. 

DISCUSSION

I

Prior Conviction Allegations

Defendant contends he “did not enter a valid waiver of his right to jury trial on the 

sentence enhancement allegations, in derogation of his rights under the state and federal 

Constitutions and state statutory law.” While defendant frames the argument broadly, our 

analysis is dictated by the allegations in question. We begin with the prior conviction 

allegations. 

We note that the trial court conducted a bench trial in which it determined beyond 

a reasonable doubt that defendant had prior convictions in two separate contexts. First, 

the court did so under two statutes, the Three Strikes law (§ 667, subd. (d)) and the fiveyear enhancement (§ 667, subd. (a)(1)). Second, the trial court found true aggravating 

circumstances that defendant’s prior convictions were numerous or increasing in 

seriousness and he had served a prior prison term. (Rule 4.421(b)(2), (3).) 

Taking these in turn, we conclude that, by failing to object below, defendant 

forfeited his claim of ineffective waiver of his statutory right to a jury trial on prior 

convictions under section 1025. California law affords “[a] defendant . . . a statutory 

right to a jury trial on ‘the question of whether or not the defendant has suffered the prior 

conviction’⸺though not ‘whether the defendant is the person who has suffered the 
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conviction.’ ” (People v. Gallardo (2017) 4 Cal.5th 120, 125, quoting § 1025, subds. (b) 

& (c).) But “the deprivation of the statutory right to [a] jury trial on the prior [conviction] 

allegations does not implicate the state or federal constitutional right to a jury trial. 

Absent an objection to the discharge of the jury or commencement of court trial, [the] 

defendant is precluded from asserting on appeal a claim of ineffectual waiver of the 

statutory right to jury trial of prior [conviction] allegations.” (People v. Vera (1997) 

15 Cal.4th 269, 278, overruled in part on other grounds in People v. French (2008) 

43 Cal.4th 36, 47, fn. 3; accord, People v. Grimes (2016) 1 Cal.5th 698, 738; see also 

Gallardo, at p. 127; People v. Cross (2015) 61 Cal.4th 164, 172.) 

Here, defendant did not object but rather agreed to a court trial on the prior 

conviction allegations. Accordingly, defendant is precluded from arguing on appeal that 

his waiver of his statutory right to jury trial was ineffective. 

Turning to the second context, defendant was not entitled to a jury trial on the 

aggravated circumstances allegations pertaining to prior convictions under rule 4.421. 

“[T]he right to a jury trial does not apply to the determination of the aggravating 

circumstance that ‘[t]he defendant’s prior convictions . . . are numerous or of increasing 

seriousness.’ ([R]ule 4.421(b)(2).)” (People v. Towne (2008) 44 Cal.4th 63, 75, citing 

People v. Black (2007) 41 Cal.4th 799, 819-820.) The trial court is permitted to decide 

whether a defendant’s convictions are “ ‘numerous or of increasing seriousness.’ ” 

(Towne, at p. 75.) Likewise, the trial court may decide whether defendant had served a 

prior prison term. (Id. at pp. 70-71, 79-80.)3 

3 The People stated in their sentencing brief below that the trial court also found that 

defendant’s performance on probation was unsatisfactory. (Rule 4.421(b)(5).) However, 

the trial court did not make a specific finding on this aggravated circumstance. In 

People v. Towne, supra, 44 Cal.4th 63, our Supreme Court held that “the aggravated 

circumstance that a defendant’s prior performance on probation or parole was 

unsatisfactory may be determined by a judge, so long as the determination is based upon 
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To be sure, under section 1170, subdivision (b)(2), the trial court may not impose 

a sentence greater than the middle term based on aggravating circumstances, unless “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.” However, this provision “did not provide a right to a jury trial with respect to 

aggravating factors pertaining to prior convictions.” (People v. Pantaleon (2023) 

89 Cal.App.5th 932, 937; see People v. Wiley (2023) 97 Cal.App.5th 676, 687-688.) 

These include “a finding that prior convictions are numerous or of increasing 

seriousness.” (Pantaleon, at p. 938.) 

In sum, defendant forfeited a statutory challenge to his waiver of a jury trial on his 

prior convictions and was not entitled to a jury trial on aggravating circumstances related 

to his prior convictions. 

II

Additional Aggravating Circumstances

By contrast, defendant does have a federal constitutional right under the Sixth 

Amendment to a jury trial on aggravating circumstances not related to his prior 

convictions, which are, in this case, that the crime involved great violence, harm, or 

cruelty (rule 4.421(a)(1)); the victims were particularly vulnerable (rule 4.421(a)(3)); and 

defendant engaged in violent conduct indicating a serious danger to society (rule 

4.421(b)(1)). 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.’ ” (People v. Black, supra, 41 Cal.4th at p. 814, quoting Apprendi v. New Jersey 

(2000) 530 U.S. 466, 490; see also People v. Hall (2023) 97 Cal.App.5th 1084, 1096.) 

defendant’s record of one or more convictions.” (Id. at p. 71.) We can find no indication 

in the record that the trial court made a finding on this basis. 
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The statutory maximum is the maximum sentence that may be imposed without 

consideration of these additional factors. (Blakely v. Washington (2004) 542 U.S. 296, 

303-304.) 

“[T]he right to a jury trial on aggravating circumstances, which is guaranteed by 

the federal Constitution, may not be forfeited absent an express waiver by the defendant.” 

(People v. Baughman (2008) 166 Cal.App.4th 1316, 1322; see also People v. French 

(2008) 43 Cal.4th 36, 46-48; People v. Black, supra, 41 Cal.4th at p. 816.) 

Here, as defendant points out, aggravating circumstances were never mentioned 

when defendant agreed to a court trial on the prior conviction allegations. Defendant’s 

and defense counsel’s responses to the trial court’s inquiry mentioned only prior 

convictions. Yet, the trial court relied in part on aggravating circumstances not 

pertaining to defendant’s prior convictions to impose the upper term. 

The parties debate whether a valid jury waiver occurred. However, we need not 

resolve this issue, because, as discussed, the trial court also relied on aggravating 

circumstances involving defendant’s prior convictions in imposing an upper-term 

sentence. Thus, the trial court’s factfinding established aggravating circumstances in a 

constitutionally permissible manner, i.e., without a jury trial or waiver of a jury trial. In 

Black, the court held that if one aggravating circumstance is established in a permissible 

manner, no Sixth Amendment violation occurred, no matter how many other aggravating 

circumstances are considered by the sentencing court. (People v. Black, supra, 

41 Cal.4th at pp. 813-816; People v. Hall, supra, 97 Cal.App.5th at p. 1104.) Thus, “the 

presence of one aggravating circumstance renders it lawful for the trial court to impose an 

upper term sentence.” (Black, at p. 815; see also People v. Osband (1996) 13 Cal.4th 

622, 728.) 

Accordingly, even assuming defendant’s jury trial waiver was ineffective on 

certain aggravating circumstances, the trial court did not err in imposing an upper-term 

sentence based on other aggravating circumstances. 
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DISPOSITION

The judgment is affirmed. 

/s/ 

ROBIE, J.

We concur:

/s/ 

EARL, P. J.

/s/ 

BOULWARE EURIE, J.