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Filed 6/27/24 P. v. Taylor CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

SUNJOLI TAYLOR,

Defendant and Appellant.

 A169025

 (Alameda County

 Super. Ct. No. 21CR009607)

Defendant Sunjoli Taylor appeals from the sentence imposed following 

her conviction for felony grand theft. She contends the trial court erred in 

making true findings on two aggravating circumstances because she never 

personally waived her right to a jury trial. The Attorney General concedes 

that the trial court violated Taylor’s right to a jury trial on one of the 

aggravating circumstances, but argues that she did not have a right to a jury 

trial on the other. We agree with the Attorney General. We will strike the 

true finding for the aggravating circumstance under California Rules of 

Court,1 rule 4.421(a)(9) (that Taylor’s crime involved an attempted or actual 

taking of great monetary value), and in all other respects affirm the 

judgment.

1 Further references to rules are to the California Rules of Court. 
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FACTUAL AND PROCEDURAL BACKGROUND

Charges

In July 2022, the Alameda County District Attorney filed a one-count

information charging Taylor with felony grand theft of personal property 

(Pen. Code, § 487, subd. (a)), and alleging three factors in aggravation: (1) the 

crime involved an attempted or actual taking of great monetary value (rule 

4.421(a)(9)); (2) Taylor’s prior convictions as an adult or sustained petitions in 

juvenile delinquency are “numerous or of increasing seriousness” (rule 

4.421(b)(2)); and (3) Taylor’s prior performance on probation, mandatory 

supervision, postrelease community supervision, or parole was unsatisfactory 

(rule 4.421(b)(5)). 

Jury Trial

A jury found Taylor guilty of grand theft. The facts are not at issue in 

this appeal, so we describe them only briefly. Taylor listed a car for sale on 

the OfferUp app. A potential buyer (soon to be victim) exchanged some 

messages with Taylor and the two agreed to meet at a bank in Hayward. 

After a test drive, the buyer agreed to purchase the car and went into the 

bank to withdraw additional funds. He gave $9,800 to Taylor, who put it in 

her purse, but he was still $200 short of the agreed upon price. Taylor 

insisted that the buyer give her the rest of the money, so the buyer rode with 

Taylor to another bank to withdraw more money. But when the buyer came 

out of the second bank, Taylor was gone. She had taken the $9,800. The 

buyer texted and called Taylor asking her to come back, to no avail. The 

buyer—now victim—called the police. 
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Bifurcated Trial on Aggravating Circumstances and Sentencing

At a court trial, the court found two of the aggravating circumstances

alleged in the information true: great monetary value (rule 4.421(a)(9)); and 

prior convictions of numerous or of increasing seriousness (rule 4.421(b)(2)). 

The court suspended imposition of sentence and placed Taylor on 

formal probation for a period of two years, with terms and conditions. 

This appeal was timely filed. 

DISCUSSION

Taylor argues on appeal that this court must strike the true findings on 

the two aggravating circumstances because she did not personally waive her 

right to a jury trial on them. The Attorney General argues that Taylor did 

not have a right to a jury trial as to the aggravating circumstance under rule 

4.421(b)(2) regarding the numerosity or increasing seriousness of her prior 

convictions. But the Attorney General agrees with Taylor that the trial court 

could not properly determine that Taylor’s crime involved a taking of “great 

monetary value” within the meaning of rule 4.421(a)(9) without a proper 

waiver of Taylor’s right to a jury trial, and that there was no such waiver in 

this case.

A. No Right to Jury Trial on Rule 4.421(b)(2) – Numerosity or Increasing

Seriousness of Prior Convictions

Taylor contends the trial court’s finding that her prior convictions were 

numerous or of increasing seriousness under rule 4.421(b)(2) was made in 

violation of the Sixth Amendment and Penal Code section 1170, subdivision 

(b) (§ 1170(b)). We disagree. 

1. Sixth Amendment

Under the Sixth Amendment, any fact that increases the punishment 

for a crime beyond the statutory maximum—“ ‘[o]ther than the fact of a prior 
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conviction’ ”—must be submitted to a jury and proved beyond a reasonable 

doubt. (People v. Catarino (2023) 14 Cal.5th 748, 754, italics added.) 

In People v. Black (2007) 41 Cal.4th 799, 819, our high court held that 

the exception for “ ‘ “the fact of a prior conviction,” ’ ” for purposes of Sixth 

Amendment analysis, extends to a finding of an aggravating circumstance 

under rule 4.421(b)(2). The court explained, “The determinations whether a 

defendant has suffered prior convictions, and whether those convictions are 

‘numerous or of increasing seriousness’ ( Cal. Rules of Court, rule 

4.421(b)(2)), require consideration of only the number, dates, and offenses of 

the prior convictions alleged. The relative seriousness of these alleged 

convictions may be determined simply by reference to the range of 

punishment provided by statute for each offense. This type of determination 

is ‘quite different from the resolution of the issues submitted to a jury, and is 

one more typically and appropriately undertaken by a court.’ ” (Black at pp. 

819–820.)

Here, the record of convictions established that Taylor’s prior 

convictions were numerous; the Sixth Amendment does not require a jury to 

determine this issue. (See People v. Wiley (2023) 97 Cal.App.5th 676, 683, 

review granted Mar. 12, 2024, S283326 (Wiley) [“the Sixth Amendment did 

not require that a jury make the determinations at issue here,” including

whether the defendant’s convictions were of increasing seriousness].) 

2. Section 1170(b)

Section 1170(b)(2) generally requires that the facts underlying 

aggravating circumstances must be “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.” 
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Section 1170(b)(3), however, provides that, notwithstanding section 

1170(b)(2), “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.” 

Two Divisions of our court have addressed the question whether section 

1170(b)(3) means a sentencing court may consider prior convictions to find a 

defendant’s prior convictions were numerous or of increasing seriousness 

under rule 4.421(b)(2) without a jury trial on the issue. Both have answered 

in the affirmative. (See Wiley, supra, 97 Cal.App.5th at p. 685 [the increasing 

seriousness of the defendant’s convictions (rule 4.421(b)(2)) and his poor prior 

performance on probation (rule 4.421(b)(5)) could be decided by the court 

under section 1170(b)(3)]; People v. Ross (2022) 86 Cal.App.5th 1346, 1353, 

review granted Mar. 15, 2023, S278266 [certified records of defendant’s prior 

convictions supported consideration of aggravating circumstances under rule 

4.421(b)(1), (2), (3) and (5)].) 

In Wiley, supra, 97 Cal.App.5th at page 686, the court reasoned, 

“[Section 1170(b)(3)] does not specify the court is limited to finding that a 

prior conviction occurred; instead, it states the court may ‘consider the 

defendant’s prior convictions in determining sentencing.’ (§ 1170, subd. 

(b)(3).) And, as our Supreme Court has recognized in the context of the prior 

conviction exception to the constitutional jury trial right, consideration of 

prior convictions may establish recidivism-based aggravating factors such as 

increasing seriousness of the convictions [citation] or prior unsatisfactory 

performance on probation or parole [citation]. The statutory language does 

not suggest the Legislature sought to depart from our Supreme Court’s 

constitutional jurisprudence on this point by establishing a significantly 

narrower statutory prior conviction exception.” 
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We agree with the reasoning of Wiley and follow its holding.2 

Accordingly, we reject Taylor’s claim that a jury trial was required to 

establish her prior convictions were numerous. The trial court properly 

relied on her certified record of convictions, and we thus uphold the true 

finding on the aggravating circumstance under rule 4.421(b)(2).

B. Right to Jury Trial on Rule 4.421(a)(9)—Great Monetary Value

Taylor argues, and the Attorney General concedes, that Taylor had a 

right to a jury trial on the aggravating circumstance regarding the great 

monetary value of the taking or attempted taking under rule 4.421(a)(9). We 

accept the concession. 

The next question we must determine is whether Taylor waived her 

right to a jury trial on this circumstance. Again the Attorney General 

concedes that she did not, and we accept this concession. 

2 As the Attorney General acknowledges and Taylor emphasizes in his 

reply brief, at least one court has suggested that the question whether a 

defendant’s prior convictions are of “increasing seriousness” is not necessarily 

established by the certified records of conviction alone. (See People v. Butler

(2023) 89 Cal.App.5th 953, 961, review granted May 31, 2023, S279633 [in 

the context of analyzing whether the appellant was entitled to remand for 

resentencing under the new law requiring that aggravating circumstances be 

stipulated to or found true beyond a reasonable doubt by a jury or the court 

(which law did not exist at the time the appellant was sentenced), the 

appellate court noted that the appellant had stipulated he had four prior 

felony convictions, but “it is not clear whether a jury would have found 

beyond a reasonable doubt that [his] four admitted prior convictions were of 

‘increasing seriousness’ ”].) But even if we were to assume the question of 

“increasing seriousness” should be decided by a jury, we do not believe a jury 

is required to determine that prior convictions are numerous. (E.g., People v. 

Black, supra, 41 Cal.4th at p. 818 [where the defendant had three prior 

convictions, the convictions were numerous]; People v. Ross, supra, 86 

Cal.App.5th at p. 1353 [three prior convictions are numerous].) 
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“A jury may be waived in a criminal cause by the consent of both 

parties expressed in open court by the defendant and the defendant’s 

counsel.” (Cal. Const., art. I, § 16.) To the extent there is a right to a jury 

trial on the facts supporting any aggravating circumstances, the waiver must 

be explicit. (People v. French (2008) 43 Cal.4th 36, 46-48.) The “[w]aiver 

must be ‘express[ed] in words . . . and will not be implied from a defendant’s 

conduct.’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151, 166.)

Here it is undisputed that there was no express waiver. On July 10, 

2023, before the trial began, the trial court stated that defense counsel had 

requested a bifurcated trial and the “aggravated factors put before a jury.” 

On July 26, after the jury was excused to deliberate in the guilt phase, the 

trial court asked for confirmation that defense counsel still wanted a jury 

trial. Counsel asked for time to discuss the issue with his client “in more 

detail,” but said he did not think “our position has changed. I think we’re 

going to need a jury trial” on the aggravating circumstances. On July 27, 

after the jury returned its guilty verdict, the judge told the jury it would need 

to come back for the bifurcated trial on August 7. On August 7, in open court 

and with Taylor present, the court stated it had read an email on August 1 

from defense counsel “indicating that he was going to waive jury on the 

aggravated factors and the priors.” Defense counsel replied, “[y]es, your 

honor,” and the court announced that it would bring in the jury and tell them 

they were discharged. Counsel asked whether that was “agreeable to both 

parties,” and defense counsel and the district attorney said yes. Taylor 

herself was asked nothing, and said nothing, about her right to a jury trial 

during this exchange, and the trial court did not say anything to her about 

her right to a jury trial. We thus agree with the parties that the trial court 

violated Taylor’s right to jury trial on the aggravating circumstance under 
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rule 4.421(a)(9), and we will thus strike the true finding under rule 

4.421(a)(9) that the crime involved an attempted or actual taking of great 

monetary value.

DISPOSITION

We strike the true finding for the aggravating circumstance under rule 

4.421(a)(9). In all other respects, the judgment is affirmed.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P. J.

_________________________

Richman, J.

A169025, People v. Taylor