## Facts

- Juan Alcides Lovos argued with his wife, Silvia Lovos, outside their apartment in front of their son, Esteban, accusing Silvia of having an affair.
- Silvia went inside the apartment and locked the door.
- Lovos forced or otherwise gained entry and told Silvia that no one was going to save her “this time.”
- Lovos knocked Silvia down and stabbed her twice in the abdomen.
- Lovos tried to stab Silvia two more times; she blocked the blows with her hands and ran outside bleeding.
- A jury convicted Lovos of attempted murder and infliction of corporal injury on a spouse.
- The jury also found true a deadly-weapon allegation (knife) and a great-bodily-injury allegation tied to the attempted-murder count.
- At sentencing, Lovos argued mitigating circumstances including alcohol and cocaine intoxication, an insignificant prior criminal record, and prior successful completion of probation.
- The trial court imposed the upper term of nine years for attempted murder, plus one year for the deadly-weapon term, plus five years (the upper term) for the great-bodily-injury term; the sentence on the corporal-injury count was imposed and stayed.
- The court cited aggravating circumstances including great bodily injury, great violence, being armed, the victim’s vulnerability (alone), and a level of planning.

## Issues

1. Did the trial court abuse its discretion by selecting the upper term for attempted murder and the upper term for the great-bodily-injury term in light of asserted mitigating factors?
2. Did the court improperly use the same facts both to justify upper terms and to impose the weapon and great-bodily-injury terms (dual use of facts)?
3. Did the upper-term selection violate the Sixth Amendment because aggravating facts were found by the judge rather than the jury?

## Decision

- The Court of Appeal affirmed the judgment and sentence.
- The court held the trial court acted within its sentencing discretion in weighing aggravating and mitigating circumstances and selecting upper terms.
- Any arguable overlap between aggravating facts and facts supporting the weapon and great-bodily-injury terms did not require reversal because other valid aggravators supported the upper terms.
- The court rejected the Sixth Amendment challenge, concluding that under California’s post-*Cunningham* determinate-sentencing scheme the judge could choose the upper term within the statutory triad without jury findings on each aggravator.

## Legal Principles

- A trial court’s selection of a lower, middle, or upper term is reviewed for abuse of discretion; reversal is warranted only when the decision is arbitrary, capricious, or exceeds the bounds of reason.
- The court may consider and weigh both aggravating and mitigating circumstances; it is not required to give mitigating factors the weight the defendant requests.
- Under California’s sentencing rules, a fact used to impose a specific additional term generally may not also be used to aggravate the base term, but a sentence will be upheld when independent aggravating circumstances support the upper term and any improper overlap is harmless.
- When multiple aggravating factors are found, a single proper aggravator can be sufficient to support selection of the upper term.
- After amendments to California’s determinate sentencing law following *Cunningham*, the statutory maximum is the upper term within the triad authorized by the verdict and true findings, and a judge may select the appropriate term based on case-specific circumstances without separate jury findings on aggravation.

## Conclusion

In *People v. Lovos*, the Court of Appeal affirmed upper-term sentencing for a domestic stabbing that led to convictions for attempted murder and corporal injury on a spouse, holding that the trial court reasonably relied on multiple aggravating factors, did not commit reversible dual-use error, and acted consistently with Sixth Amendment limits when imposing the upper terms and related terms.


People v. Lovos, 2012 WL 4099189 (2012)