Supreme Court of California Justia
Docket No. S126182
People v. Black

Filed 6/20/05



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S126182

v.

Ct. App. 5 No. F042592

KEVIN MICHAEL BLACK,

Tulare

County

Defendant and Appellant. )

Super.

Ct.

No.

79557



This case addresses the effect of the decisions of the United States Supreme

Court in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely) and

United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738] (Booker) on

California’s determinate sentencing law. It presents the specific questions whether a

defendant is constitutionally entitled to a jury trial on the aggravating factors that

justify an upper term sentence or a consecutive sentence. For the reasons discussed

below, we conclude that the judicial factfinding that occurs when a judge exercises

discretion to impose an upper term sentence or consecutive terms under California

law does not implicate a defendant’s Sixth Amendment right to a jury trial.

I.

Defendant was charged with one count of continuous sexual abuse of a

child (Pen. Code § 288.5), 1 involving victim T.R., and two counts of lewd and


1

All further statutory references are to the Penal Code, unless otherwise

indicated.

1


lascivious conduct with a child (§ 288, subd. (a)), involving victims A.T. and H.T.

The information alleged, as to the first count, that defendant committed the offense

by use of “force, violence, duress, menace, and fear of immediate and unlawful

bodily injury,” and that defendant had substantial sexual conduct with a victim

under the age of 14 years, allegations that would affect his eligibility for probation

or a suspended sentence. (§ 1203.066, subd. (a)(1) and (8).) The information also

alleged that defendant committed specified sexual acts with more than one victim,

an allegation that, if found true, would subject defendant to a term of

imprisonment of 15 years to life on each of the two counts of lewd and lascivious

conduct with a child. (§ 667.61, subds. (b), (c), (d).)

At trial, defendant’s stepdaughter T.R. testified that defendant had sexual

intercourse with her on several occasions when she was eight or nine years of age.

Sometimes, when her mother was working, defendant would take care of her.

The incidents occurred at home, in her bedroom or in the bedroom her mother

shared with defendant. During some of these incidents, defendant held T.R.’s

arms down when she struggled, so that she could not get away. Defendant told her

not to tell anyone about what happened; if she did, he would tell her mother a big

lie to get her in trouble.

Two of T.R.’s friends (A.T. and H.T.) testified that one day when they were

at playing with T.R. at her house, defendant told them they could do whatever they

wanted, including taking off their clothes. Encouraged by T.R. , the girls took off

some of their clothing. At defendant’s urging, the girls sat in his lap and he

rubbed their bare thighs.

The defense contended that the acts as testified to by defendant’s

stepdaughter had not occurred, that she made up the allegations because she was

upset by the troubled relationship between her mother and defendant, and that she

actually had been molested by a family friend whom she was trying to protect.

2

The defense also contended that defendant’s conduct with his stepdaughter’s

friends was innocent, and that by having them sit in his lap he was merely trying

to settle them down. The jury found defendant guilty on all counts and found all

of the special allegations true.

The offense of continuous sexual abuse of a child is punishable by a term of

6, 12, or 16 years’ imprisonment. (§ 288.5, subd. (a).) The court sentenced

defendant to the upper term of 16 years for that offense, selecting this term based

on “the nature, seriousness, and circumstances of the crime.” The court noted that

defendant had forced the victim to have sexual intercourse with him on numerous

occasions, that the victim was particularly vulnerable to him as his stepdaughter,

that he had abused a position of trust and confidence, and that he had inflicted

emotional and physical injury on the victim.

The court imposed two indeterminate terms of 15 years to life on the lewd

conduct counts, consecutive to each other and to the 16-year determinate term, for

a total term of imprisonment of 46 years to life. In explaining its reasons for

imposing consecutive terms, the court noted that count 2 involved a separate

victim (A.T.) from count 1 (T.R.) and occurred on a separate occasion. In

addition, count 2 involved a breach of confidence, because the victim had been left

in defendant’s care. As to count 3, the court stated that offense also involved a

different victim (H.T.), and that a consecutive sentence was appropriate because

the offense was serious and of a predatory nature, in that defendant had preyed on

both his stepdaughter and her friends.

The Court of Appeal affirmed the judgment. Three weeks later, the United

States Supreme court issued its decision in Blakely, supra, 542 U.S. ___ [124 S.Ct.

2531], in which it held that a defendant in a criminal case is entitled to a jury trial

on any fact that increases the maximum sentence to which the defendant is

exposed for a particular offense, unless that fact has been admitted by the

3

defendant or is based on the defendant’s prior convictions. We granted review to

determine the effect of Blakely on the validity of the trial court’s decisions to

impose the upper term sentence on count 1 and to require defendant to serve the

sentences on all three counts consecutively. While this matter was pending before

us, the high court handed down its decision in Booker, supra, ___ U.S. ___ [125

S.C. 788]. At our request, the parties have filed supplemental briefs on the effect

of Booker on the questions at issue.

II.

California’s determinate sentencing law became operative on July 1, 1977,

replacing the prior system under which most offenses carried an indeterminate

sentence. (Added by Stats. 1976, ch. 1135, § 273, p. 5140 and as amended by

Stats. 1977, ch. 165, pp. 639-680.) In enacting the new sentencing scheme, the

Legislature declared that the purpose of imprisonment is punishment, and that this

purpose is “best served by terms proportionate to the seriousness of the offense

with provision for uniformity in the sentences of offenders committing the same

offense under similar circumstances.” (§ 1170, subd. (a)(1).) The Legislature

further concluded that “the elimination of disparity and the provision of uniformity

of sentences can best be achieved by determinate sentences fixed by statute in

proportion to the seriousness of the offenses as determined by the Legislature to be

imposed by the court with specified discretion.” (Ibid., italics added.) The

determinate sentencing scheme seeks to achieve greater uniformity in sentencing

by providing a limited range of sentencing options for each offense. The sentence

may be increased above the range provided for the offense on the basis of statutory

4

enhancements reflecting the defendant’s criminal history2 or particular

circumstances of the crime, including, for example, the use of a firearm or other

dangerous weapon, infliction of great bodily injury on the victim, the particular

vulnerability of the victim (that is, a victim who is young, elderly, or disabled),

commission of the crime while released pending trial, the amount of property loss,

and the quantity of drugs involved.3 The law requires that such sentence

enhancements be charged and proved to the jury, unless the defendant admits them

or waives the right to a jury trial. (See § 1170.1, subd. (e); People v. Sengpadyich

(2002) 26 Cal.4th 316, 325.)

Three terms of imprisonment are specified by statute for most offenses.

The judge’s discretion in selecting among these options is guided by Penal Code

section 1170, subdivision (b), which states that “the court shall order imposition of

the middle term, unless there are circumstances in aggravation or mitigation of the

crime.” In addition, the Judicial Council has been directed to promote uniformity

in sentencing by adopting rules that provide criteria for the judge to consider in

deciding which term to impose and whether to impose concurrent or consecutive

sentences. (§ 1170.3.) Under the applicable rules, “[s]election of the upper term


2

See, e.g., section 667.5, subdivision (a) [five years for prior prison term

served for a violent felony if the current offense is a violent felony]; id.,
subdivision (b) [one year for a prior prison term served for any felony].

3

See, e.g., sentence enhancements provided in Penal Code sections 667.9

and 667.10 [victim who is elderly, young, or disabled], 12022 [being armed with a
firearm and using a deadly or dangerous weapon], 12022.1 [commission of
offense while released on bail or own recognizance, 12022.5-12022.55 [use or
discharge of a firearm], 12022.6 [amount of loss when property is taken, damaged,
or destroyed], 12022.7 and 12022.8 [infliction of great bodily injury], 12022.75
[administering a controlled substance against the victim’s will], 12022.9 [infliction
of injury on a pregnant woman, resulting in termination of the pregnancy]; Health
and Safety Code section 11370.4 [amount of controlled substance].

5

is justified only if, after a consideration of all the relevant facts, the circumstances

in aggravation outweigh the circumstances in mitigation.” (Cal. Rules of Court,

rule 4.20(b).) In imposing the upper term sentence, the court may not consider

any fact that is an essential element of the crime itself and may not consider a fact

charged and found true as an enhancement unless it strikes the punishment for that

enhancement. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c) & (d).) The

sentencing judge retains considerable discretion to identify aggravating factors.

Examples of aggravating factors are listed in the rules of court,4 but the judge is


4

California Rules of Court, rule 4.421 provides: “Circumstances in

aggravation include:

(a)

Facts relating to the crime, whether or not charged or chargeable as

enhancements, including the fact that:


(1)

The crime involved great violence, great bodily harm, threat of great

bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness.


(2)

The defendant was armed with or used a weapon at the time of the

commission of the crime.


(3)

The victim was particularly vulnerable.

(4)

The defendant induced others to participate in the commission of the

crime or occupied a position of leadership or dominance of other participants in its
commission.


(5)

The defendant induced a minor to commit or assist in the

commission of the crime.


(6)

The defendant threatened witnesses, unlawfully prevented or

dissuaded witnesses from testifying, suborned perjury, or in any other way
illegally interfered with the judicial process.


(7)

The defendant was convicted of other crimes for which consecutive

sentences could have been imposed but for which concurrent sentences are being
imposed.


(8)

The manner in which the crime was carried out indicates planning,

sophistication, or professionalism.


(9)

The crime involved an attempted or actual taking or damage of great

monetary value.


(10) The crime involved a large quantity of contraband.

(footnote continued on next page)

6

free to consider any “additional criteria reasonably related to the decision being

made.” (Id., rule 4.408(a).)

Under the determinate sentencing law, the court may rely on aggravating

facts that have not been found true by the jury. The facts relevant to the choice of

term are to be determined by the court, which “may consider the record in the

case, the probation officer’s report, other reports including reports received

pursuant to Section 1203.3 and statements in aggravation or mitigation submitted

by the prosecution, the defendant, or the victim, or the family of the victim if the

victim is deceased, and any further evidence introduced at the sentencing hearing.”

(§ 1170. subd. (b).) Unless the court imposes the middle term, the court must give

reasons for its sentencing choice. (Ibid.) The judge must state on the record the


(footnote continued from previous page)

(11) The defendant took advantage of a position of trust or confidence to

commit the offense.

(b)

Facts relating to the defendant, including the fact that:

(1)

The defendant has engaged in violent conduct which indicates a

serious danger to society.


(2)

The defendant’s prior convictions as an adult or sustained petitions

in juvenile delinquency proceedings are numerous or of increasing seriousness.


(3)

The defendant has served a prior prison term.

(4)

The defendant was on probation or parole when the crime was

committed.


(5)

The defendant's prior performance on probation or parole was

unsatisfactory.

(c)

Any other facts statutorily declared to be circumstances in

aggravation.”

Similarly, the judge’s “[s]election of the lower term is justified only if,

considering the same facts, the circumstances in mitigation outweigh the
circumstances in aggravation.” (Cal. Rules of Court, rule 4.20(b).) Examples of
mitigating factors, relating to the crime and to the defendant, are listed in
California Rules of Court, rule 4.423.

7

“reasons for selecting the upper or lower term,” including “a concise statement of

the ultimate facts which the court deemed to constitute aggravation or mitigation

justifying the term selected.” (Cal. Rules of Court, rule 4.420(e).)

Defendant contends that the high court’s recent decision in Blakely renders

this statutory procedure unconstitutional because it does not provide the defendant

with a jury trial on the aggravating factors relied upon by the judge in imposing an

upper term sentence or consecutive sentences. Blakely extended the scope of the

high court’s earlier decision in Apprendi v. New Jersey (2000) 530 U.S. 466

(Apprendi), which established that a defendant has a federal constitutional right to

a jury trial on sentence enhancements, a right that already was accorded California

defendants by statute. (See § 1170.1, subd.(e); People v. Wims (1995) 10 Cal.4th

293.) Apprendi concluded that New Jersey’s hate crime law violated the

defendant’s right to a jury trial. That law provided for an extended term of

imprisonment if the trial judge found, by a preponderance of the evidence, that the

defendant committed the crime with the purpose of intimidating a group or

individual because of race, color, gender, handicap, religion, sexual orientation, or

ethnicity. (Apprendi, at pp. 478-469.)5 Apprendi was based on the principle that

the constitutional rights to due process of law and to a jury trial “indisputably

entitle a criminal defendant to ‘a jury determination that [he] is guilty of every

element of the crime with which he is charged, beyond a reasonable doubt.’ ” (Id.

at p. 477, quoting United States v. Gaudin (1995) 515 U.S. 506, 510.)

In Apprendi, the high court rejected the approach it had taken in earlier

cases in determining which facts must be treated as elements of the crime, an

approach that placed significant weight on whether the legislative body intended


5

In California, all aspects of hate crime charges are subject to determination

by a jury. (§ 422.55 et seq.)

8

to create an element of a crime or, instead, a sentencing factor. For example, in

Almendarez-Torres v. United States (1998) 523 U.S. 224, decided only two years

before Apprendi, the high court upheld a defendant’s 85-month sentence for

illegally reentering the United States after having been previously deported. One

subdivision of the statute that established the crime authorized a penalty of up to

two years in prison. (8 U.S.C. § 1326(a).) The defendant was sentenced under

another subdivision, which authorized a penalty of up to 20 years in prison if the

initial deportation was subsequent to a conviction for an aggravated felony. The

lower court in Almendarez-Torres rejected the argument that because the

indictment did not mention the prior aggravated felony conviction, the defendant

could not be given the enhanced sentence. The high court approached the question

by asking whether Congress intended the fact of the prior aggravated felony

conviction to be an element of a separate crime, or to be a factor that a sentencing

court might use to increase punishment. (Almendarez-Torres, supra, 523 U.S. at

p. 228.) After analyzing the language and context of the statute, the court

concluded that the provision of the statute setting forth the enhanced punishment

for those with an aggravated felony prior conviction was intended to establish a

sentencing factor, not an element of a more serious crime, and that this factor

could be decided by a judge. (Id. at p. 235.)

In Apprendi, however, the high court took a different approach, concluding

that whether a legislature has chosen to label a fact as an element of the crime or

to label it as a separate sentencing factor is not the proper inquiry. A fact that “if

found, exposes the criminal defendant to a penalty exceeding the maximum he

would receive if punished according to the facts reflected in the jury verdict alone”

is the functional equivalent of an element of the crime. (Apprendi, supra, 530

U.S. at p. 483, fn. omitted.) The court reasoned that a defendant’s constitutional

right to a jury trial, as understood at the time the federal Constitution was adopted,

9

easily could be undermined if a legislature were free to eliminate that right simply

by labeling certain facts as sentencing factors rather than elements. The court in

Apprendi reasoned that “[a]ny possible distinction between an ‘element’ of a

felony offense and a ‘sentencing factor’ was unknown to the practice of criminal

indictment, trial by jury, and judgment by court as it existed during the years

surrounding our Nation’s founding.” (Id. at p. 478.) Thus, the court concluded,

“[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.” (Id. at p. 490.)

Apprendi examined the right to a jury trial in criminal cases as it existed at

common law, recognizing an “historic link between verdict and judgment and the

consistent limitation on judges’ discretion to operate within the limits of the legal

penalties provided.” (Apprendi, supra, 530 U.S. at p. 482.) But the opinion in

Apprendi also observed that “nothing in this history suggests that it is

impermissible for judges to exercise discretion — taking into consideration

various factors relating both to offense and offender — in imposing a judgment

within the range prescribed by statute.” (Id., at p. 481; see also Harris v. United

States (2002) 536 U.S. 545, 558.) Thus, Apprendi acknowledged that a judge may

make factual findings related to the sentencing factors considered by the judge in

exercising sentencing discretion within the prescribed statutory range.

Several years after the Apprendi decision, Blakely extended the jury trial

requirement set forth in Apprendi, redrawing the line between factual findings that

require a jury trial, and sentencing factors on which a judge may make findings.

In Blakely, the high court held that the prescribed “ ‘statutory maximum’ ” for

purposes of the right to a jury trial is not necessarily the maximum penalty stated

in statute for the crime; rather, it is “the maximum sentence a judge may impose

10

solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” (Blakely, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 2537].)

The defendant in Blakely pleaded guilty to kidnapping his estranged wife

and admitted that the crime involved domestic violence and the use of a firearm.

These facts, combined with his criminal history, subjected him to a “ ‘standard

range’ ” sentence of 49 to 53 months under the State of Washington’s Sentencing

Reform Act. (Blakely, supra, ___ U.S. at p. ___[124 S.Ct. at p. 2435], citing Wn.

Rev. Code Ann. § 9.94A.320.) Washington law also permitted the judge to

impose an “exceptional sentence” of not more than 10 years for this crime, if he or

she found “ ‘substantial and compelling reasons justifying an exceptional

sentence.’ ” (Blakely, at p. ___ [124 S,Ct. at p. 2535], quoting Wn. Rev. Code.

Ann. § 9.94A.120(2).) The law listed a nonexclusive set of factors that may

justify an exceptional sentence. The reasons justifying an exceptional sentence

had to be other than those that were used in computing the standard sentencing

range for the offense. (State v. Gore (2001) 143 Wn.2d 288, 315-316.) The trial

judge sentenced Blakely to a term of 90 months on the ground that he had acted

with “deliberate cruelty,” one of the grounds listed in the statute as the basis for

departure from the standard range in domestic violence cases. (Blakely, supra,

___ U.S. at p. ___ [124 S.Ct. at p. 2535].)

The high court in Blakely concluded that the rule established in Apprendi

applies to the facts that justify an exceptional sentence under the Washington

sentencing scheme. The court rejected the argument that the “statutory maximum”

sentence for Blakely’s crime was 10 years because that was the maximum

sentence provided by statute for the offense. It stated that “the relevant ‘statutory

maximum’ is not the maximum sentence a judge may impose after finding

additional facts, but the maximum he may impose without any additional findings.

When a judge inflicts punishment that the jury’s verdict alone does not allow, the

11

jury has not found all the facts ‘which the law makes essential to the

punishment’. . . .” (Blakely, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 2537,

quoting 1 Bishop, Criminal Procedure (2d ed. 1872) § 87, p. 55.) The judge could

not have imposed the exceptional sentence based solely on the facts admitted in

Blakely’s guilty plea, because those facts already were taken into account in

establishing the standard range. (Blakely, at p. ___ [124 S.Ct. at p. 2538].) Like

Apprendi, however, Blakely acknowledged that not all judicial factfinding in

sentencing is impermissible. The court explicitly recognized the legitimate role of

“judicial factfinding” in indeterminate sentencing, in which the judge may

“implicitly rule on those facts he deems important to the exercise of his sentencing

discretion.” (Blakely, supra, at p. ___ [124 S.Ct. at p. 2540].)

The high court provided additional guidance regarding the distinction

between permissible and impermissible judicial factfinding in its more recent

decision in Booker, supra, ___ U.S. ___ [125 S.Ct. 738]. Booker held that the

current federal sentencing guidelines violate a defendant’s right to a jury trial. The

defendant in Booker was convicted of possessing at least 50 grams of cocaine,

conduct for which the guidelines authorized a sentence of between 210 and 262

months for a person with Booker’s criminal history. Booker, however, was

sentenced to 360 months because, at the sentencing hearing, the judge found by a

preponderance of the evidence that he possessed an additional 566 grams of

cocaine, a finding that authorized a longer sentence under the guidelines. A

majority of the court, in an opinion written by Justice Stevens, found no

significant distinction between the federal sentencing guidelines and the

Washington procedures at issue in Blakely.6 “The jury never heard any evidence


6

The majority opinion in Booker on the substantive constitutional issue was

written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and

(footnote continued on next page)

12

of the additional drug quantity, and the judge found it true by a preponderance of

the evidence. Thus, just as in Blakely, ‘the jury’s verdict alone does not authorize

the sentence. The judge acquires that authority only upon finding some additional

fact.’ ” (Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 751], quoting Blakely,

supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2538].)

Responding to an argument by the dissenting opinion in Booker that the

federal guidelines maintain the historical tradition of “judicial authority to increase

sentences to take account of any unusual blameworthiness in the manner

employed in committing a crime,” Justice Stevens explained the basis for

Blakely’s interpretation of the Sixth Amendment, as follows: “It is quite true that

once determinate sentencing had fallen from favor, American judges commonly

determined facts justifying a choice of a heavier sentence on account of the

manner in which particular defendants acted. Apprendi, 530 U.S., at 481. In

1986, however, our own cases first recognized a new trend in the legislative

regulation of sentencing when we considered the significance of facts selected by

legislatures that not only authorized, or even mandated, heavier sentences than

would otherwise have been imposed, but increased the range of sentences possible

for the underlying crime. . . . [¶] The effect of the increasing emphasis on facts

that enhanced sentencing ranges, however, was to increase the judge’s power and

diminish that of the jury. . . . [¶] As the enhancements became greater, the jury’s

finding of the underlying crime became less significant. . . . [¶] . . . The new


(footnote continued from previous page)

Ginsburg. These same five justices provided the majority in Blakely, which was
written by Justice Scalia. Justice Breyer, joined by Chief Justice Rehnquist and
Justices O’Connor and Kennedy, wrote a dissent to this aspect of the decision in
Booker, continuing to express disagreement with the reasoning of Blakely.
(Booker, supra, ___ U.S. at pp. ___ [125 S.Ct. at pp. 803-805].)

13

sentencing practice forced the Court to address the question of how the right of

jury trial could be preserved, in a meaningful way guaranteeing that the jury would

still stand between the individual and the power of the government under the new

sentencing regime.” (Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at pp. 751-

752].)

The high court in Booker concluded that the federal guidelines violate the

Sixth Amendment because “the relevant sentencing rules are mandatory and

impose binding requirements on all sentencing judges.” (Booker, supra, ___ U.S.

at p. ___ [125 S.Ct. at pp. 749-750].) The court acknowledged that if the

guidelines had been “merely advisory provisions that recommended, rather than

required, the selection of particular sentences in response to the different sets of

facts, their use would not violate the Sixth Amendment. We have never doubted

the authority of a judge to exercise broad discretion in imposing a sentence within

a statutory range.” (Id. at p. ___ [125 S.Ct. at p. 750], italics added.) But the

majority in Booker pointed out that the federal sentencing statute requires the

judge to impose a sentence within the range established by the guidelines, “subject

to departures in specific, limited cases.” (Id. at p. ___ [125 S.Ct. at p. 750; see 18

U.S.C. § 3553(a).)

Although a majority of the justices in Booker found the federal guidelines

unconstitutional under Blakely, a different majority of the court — in a separate

opinion authored by Justice Breyer (and concurred in by Chief Justice Rehnquist

and Justices O’Connor, Kennedy, and Ginsburg) — concluded that in order to

remedy the constitutional problem, it was most appropriate to sever and excise the

portions of the sentencing statute that made the guidelines mandatory and treat the

guidelines as advisory. Under the remaining provisions of the statute, which set

forth considerations that guide the judge in imposing sentence, a sentencing court

is required to consider the guideline ranges, but is permitted to “tailor the sentence

14

in light of other statutory concerns as well.” (Booker, supra, ___ U.S. at p. ___

[125 S.Ct. at p. 757].) Justice Breyer’s opinion for the court also held that federal

appellate courts are required to review a sentence to determine whether it is

“ ‘unreasonable.’ ” (Id. at p. ___ [125 S.Ct. at p. 765].)

The decisions in Blakely and Booker have raised questions about the

permissible scope of judicial factfinding under a variety of sentencing schemes,

including those, like California’s determinate sentencing law, that specify a

presumptive term and require that a judge provide reasons for a sentence above or

below that term. Decisions of the intermediate appellate courts in this state have

been sharply divided on the question of how Blakely affects sentencing in

California. The United States Supreme Court has not yet addressed a system that

is comparable to California’s.7

III.

Blakely and Booker established a constitutionally significant distinction

between a sentencing scheme that permits judges to engage in the type of judicial

factfinding typically and traditionally involved in the exercise of judicial

discretion employed in selecting a sentence from within the range prescribed for

an offense, and a sentencing scheme that assigns to judges the type of factfinding

role traditionally exercised by juries in determining the existence or nonexistence

of elements of an offense. The first question presented in the case before us is

whether a trial judge’s decision to impose an upper term sentence under the

California determinate sentencing law involves the type of judicial factfinding that

7

In her dissenting opinion in Blakely, Justice O’Connor commented that the

majority’s decision cast constitutional doubt on the federal sentencing guidelines
as well as similar sentencing systems enacted in various states. (Blakely, supra,
___ U.S. at p. ___ [124 S.Ct. at p. 2548-2549].) California was not among the
states that Justice O’Connor suggested would be affected by Blakely.

15

traditionally has been performed by a judge in the context of exercising sentencing

discretion or whether it instead involves the type of factfinding that traditionally

has been exercised by juries in the context of determining whether the elements of

an offense have been proved.8

Defendant argues that a jury trial is required on the aggravating factors on

which an upper term sentence is based, because the middle term is the “maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury

verdict . . . .” (Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2537].) The trial

court “shall order imposition of the middle term, unless there are circumstances in

aggravation or mitigation.” (§ 1170, subd. (b); see Cal. Rules of Court, rule

4.420(b).) The court cannot impose the upper term unless there is at least one

aggravating factor. An aggravating factor cannot be an element of the offense,

and therefore the jury’s guilty verdict on the charged offense itself does not

establish an aggravating factor. Thus, defendant argues, the middle term is the

“statutory maximum” as that phrase is used in Blakely, unless an aggravating

factor has been established by the jury’s findings or the defendant’s admission.


8

Justice Kennard’s concurring and dissenting opinion takes issue with this

formulation of the question, suggesting that our approach is the same as the one
advocated in Justice O’Connor’s dissent in Apprendi and in Justice Breyer’s
dissent in Booker, and that such an approach was rejected by a majority of the high
court. (See, post, conc. & dis. opn., p. __ [typed opn., pp. 10-11].) In contrast to
the separate opinions referred to by Justice Kennard — which focused on the
nature of the type of fact at issue (see Apprendi, supra, 530 U.S. at p. 535, dis.
opn. of O’Connor, J; Booker, supra, 125 S.Ct. at p. 803, dis. opn. of Breyer, J.) —
we look to the context in which the factual determination is to be made, examining
whether any authorized judicial factfinding is made in the context of a court’s
exercise of a traditionally discretionary sentencing choice within a prescribed
sentencing range.

16

The mandatory language of section 1170, subdivision (b), does provide

some support for defendant’s position. But, as the high court has emphasized, in

analyzing the Sixth Amendment right to a jury trial, “the relevant inquiry is one

not of form, but of effect.” (Apprendi, supra, 530 U.S. at p. 494.) As further

explained below, in operation and effect, the provisions of the California

determinate sentence law simply authorize a sentencing court to engage in the type

of factfinding that traditionally has been incident to the judge’s selection of an

appropriate sentence within a statutorily prescribed sentencing range. Therefore,

the upper term is the “statutory maximum” and a trial court’s imposition of an

upper term sentence does not violate a defendant’s right to a jury trial under the

principles set forth in Apprendi, Blakely, and Booker.

A.

The federal Constitution permits the court to rely on any number of

aggravating factors in exercising its discretion to select the appropriate term within

the statutory range, by balancing aggravating and mitigating factors, regardless of

whether the facts underlying those factors have been found to be true by a jury.

“Judicial factfinding in the course of selecting a sentence within the authorized

range does not implicate the indictment, jury-trial, and reasonable-doubt

components of the Fifth and Sixth Amendments.” (Harris v. United States (2002)
536 U.S. 545, 558.) Facts that are considered in sentencing within the authorized

statutory range “have been the traditional domain of judges; they have not been

alleged in the indictment or proved beyond a reasonable doubt. There is no reason

to believe that those who framed the Fifth and Sixth Amendments would have

thought of them as the elements of the crime.” (Id. at p. 560.) The facts upon

which the judge relies in exercising discretion to select among the available terms

for a particular offense “do not pertain to whether the defendant has a legal right

to a lesser sentence — and that makes all the difference insofar as judicial

17

impingement upon the traditional role of the jury is concerned.” (Blakeley, supra,

542 U.S. at p. ___ [124 S.Ct. at p. 2540].)

Under the California scheme, a judge is free to base an upper term sentence

on any aggravating factor that the judge deems significant, subject to specific

prohibitions on double use of aggravating factors that constitute elements of the

crime or an enhancement.9 The judge’s discretion to identify aggravating factors

in a case is guided by the requirement that they be “reasonably related to the

decision being made.” (Cal. Rules of Ct., rule 4.408(a).) Thus, section 1170,

subdivision (b)’s requirement that the middle term be imposed unless an

aggravating factor is found preserves the traditional broad range of judicial

sentencing discretion.10 Although subdivision (b) is worded in mandatory

language, the requirement that an aggravating factor exist is merely a requirement

that the decision to impose the upper term be reasonable.

The majority opinion in Booker makes clear that the California sentencing

scheme does not present the type of problem that the high court had in mind when it


9

See California Rules of Court, rule 4.420(c) [fact underlying an

enhancement may not be used to impose the upper term unless the court strikes the
enhancement] and (d) [fact that is an element of the crime may not be used to
impose the upper term].

10

In this respect, the Arizona capital sentencing scheme at issue in Ring v.

Arizona (2002) 536 U.S. 584, is distinguishable from the California determinate
sentencing scheme. Consistent with constitutional requirements for capital
sentencing (see Zant v. Stephens (1983) 462 U.S. 862, 876-877), Arizona law
permits the imposition of the death sentence only if one of a limited number of
statutorily prescribed aggravating factors is found. In Ring, the high court
overruled its earlier decision in Walton v. Arizona (1990) 497 U.S. 639, and held
that the Arizona capital sentencing procedure violated the defendant’s right to a
jury trial “to the extent that it allows a sentencing judge, sitting without a jury, to
find an aggravating circumstance necessary for imposition of the death penalty.”
(Ring, supra, 536 U.S. at p. 609.)

18

decided Blakely. The high court was concerned with “a new trend in the legislative

regulation of sentencing” in which “facts selected by legislatures . . . not only

authorized, or even mandated, heavier sentences than would otherwise have been

imposed, but increased the range of sentences possible for the underlying crime. . . .

[¶] The effect of the increasing emphasis on facts that enhanced sentencing ranges,

however, was to increase the judge’s power and diminish that of the jury.” (Booker,

supra, ___ U.S. at p. ___ [125 S.Ct. at p. 751].)

The imposition of an upper-term sentence under California’s determinate

sentencing law does not implicate the concerns described in the majority opinion

in Booker. To begin with, as a historical matter California’s adoption of the

determinate sentencing law reduced the length of potential sentences for most

crimes, rather than increasing them. Prior to enactment of the determinate

sentencing law, most crimes in California carried an indeterminate term,

frequently one year to life imprisonment. (See Cassou & Taugher, Determinate

Sentencing in California: The New Numbers Game (1978) 9 Pacific L. J. 5, 8, 13.)

The new law provided a choice among three definite terms for most crimes, with a

potential life sentence reserved for only the most serious offenses.

More significantly, the availability of upper term sentences under the

determinate sentencing law does not represent a legislative effort to shift the proof

of particular facts from elements of a crime (to be proved to a jury) to sentencing

factors (to be decided by a judge). The Legislature did not identify all of the

particular facts that could justify the upper term. Instead, it afforded the sentencing

judge the discretion to decide, with the guidance of rules and statutes, whether the

facts of the case and the history of the defendant justify the higher sentence.11


11

In adopting the sentencing rules, the Judicial Council considered and

rejected proposals that the rules provide an exclusive list of sentencing criteria and

(footnote continued on next page)

19

Such a system does not diminish the traditional power of the jury.12

As part of the effort to bring greater uniformity to sentencing, the California

Legislature did adopt the “new trend in the legislative regulation of sentencing”

referenced by Justice Stevens in Booker — that is, requiring trial courts to consider


(footnote continued from previous page)

that the criteria be assigned specific weights, on the ground that the Legislature
intended to give the sentencing judge discretion in selecting among the lower,
middle, and upper terms. The report on which the Council acted in adopting the
rules explains that “an exclusive listing would be inconsistent with the statutory
mandate to adopt ‘rules providing criteria for the consideration of the trial judge’
[§ 1170.3] since this language does not purport to limit the discretion afforded the
court in each of the five enumerated sentencing decisions, but calls for criteria
which will assist the courts in the exercise of that discretion.” (Judicial Council of
Cal., Advisory Com. Rep., Sentencing Rules and Sentencing Reporting System
(1977) 6.) “Any attempt to impose a weighting system on trial courts . . . would
be an infringement on the sentencing power of the court.” (Id. at p. 8.) “The
substantive law, and section 1170(a)(1), give discretion to the trial court; the rules
can guide, but cannot compel, the exercise of that discretion.” (Id. at p. 11.)

12

Some of the language used by the court in Blakely does suggest that the

circumstance that the trial court has discretion to decide which factors are
aggravating is not significant. Blakely rejected the argument that Apprendi was
distinguishable because under the Washington statute the grounds for imposing an
exceptional sentence that are enumerated in the statute are illustrative rather than
exclusive. “This distinction is immaterial. Whether the judge’s authority to
impose an enhanced sentence depends on finding a specified fact (as in Apprendi),
one of several facts (as in Ring [v. Arizona, supra, 536 U.S. 584]), or any
aggravating fact (as here), it remains the case that the jury’s verdict alone does not
authorize the sentence. The judge acquires that authority only upon finding some
additional fact.” (Blakely, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 2538], fn.
omitted.) Although the trial court’s discretion to decide which facts are
aggravating was not found to be a controlling factor in Blakely, in view of the high
court’s more recent clarification in Booker of the rationale underlying the
Apprendi and Blakely decisions we do not believe that the foregoing passage in
Blakely signifies that it is inappropriate to consider this aspect of the California
scheme in the context of the policies that underlie the high court’s Sixth
Amendment jurisprudence.

20

“facts selected by legislatures that not only authorized, or even mandated, heavier

sentences than would otherwise have been imposed, but increased the range of

sentences possible for the underlying crime.” (Booker, supra, ___ U.S. at p. ___

[125 S.Ct. at p. 751].) But the California Legislature did so in a manner that

preserves, rather than undermines, the traditional power of the jury. The

determinate sentencing law “selected” facts that authorize a higher sentence by

enacting specific sentencing enhancements for particular circumstances of the crime

such as the use of a firearm or other dangerous weapon, infliction of great bodily

injury on the victim, or the amount of property loss.13 At the same time, it provided

defendants with the rights to notice, a jury trial, and proof beyond a reasonable

doubt with regard to the determination of these sentencing enhancements. (Cal.

Const., art. I, § 16; § 1170.1, subd. (e); § 1042; see People v. Sengpadyich, supra,

26 Cal.4th at p. 325.) Thus, in adopting the determinate sentencing law, the

California Legislature attempted to provide sentences that are more uniform and

more consistently tailored to the offense and the offender than was the case under

the indeterminate sentencing system, without sacrificing the defendant’s right to a

jury trial on all elements of the crime or their functional equivalents.

B.

The above analysis leads us to conclude that, even though section 1170,

subdivision (b) can be characterized as establishing the middle term sentence as a

presumptive sentence, the upper term is the “statutory maximum” for purposes of

Sixth Amendment analysis. The jury’s verdict of guilty on an offense authorizes the

judge to sentence a defendant to any of the three terms specified by statute as the

potential punishments for that offense, as long as the judge exercises his or her


13

See footnote 3, ante.

21

discretion in a reasonable manner that is consistent with the requirements and

guidelines contained in statutes and court rules. The judicial factfinding that occurs

during that selection process is the same type of judicial factfinding that traditionally

has been a part of the sentencing process. Therefore, the upper term is the

“maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict . . . .” (Blakely, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 2537].)

The concerns expressed by the high court in Blakely about the unfairness of

imposing a sentence above the standard range do not arise when a defendant is

sentenced to the upper term under the California scheme. The court noted the

unfairness of the type of system that was permissible before Apprendi, in which “a

defendant, with no warning in either his indictment or plea, would routinely see

his maximum potential sentence balloon from as little as five years to as much as

life imprisonment . . . .” (Blakely, supra, ___ U.S. at p. ___ [124 S.Ct. at

p. 2542].) Defendants who are charged with an offense and either plead guilty or

are tried and convicted cannot reasonably expect a guarantee that the upper term

will not be imposed. Only in a case in which a judge could not reasonably identify

any relevant aggravating factor in either the circumstances of the crime or the

defendant’s prior or current criminal conduct, would the judge be limited to

imposing no more than a middle-term sentence.

The level of discretion afforded to the judge in imposing the upper term

rather than the middle term, based on all the circumstances of the case,

distinguishes the decision to impose an upper term sentence under the California

scheme from the decision to impose an exceptional sentence under the

Washington state system. Under Washington law as cited in Blakely, as the term

suggests, an exceptional sentence may be imposed only in unusual cases. The

judge must conclude that there are “substantial and compelling reasons” that

justify “an exceptional sentence.” (Blakely, supra, 542 U.S. ___ at p. ___ [124

22

S.Ct. at p. 2535, quoting Wn. Rev. Code Ann. § 9.94A.120(2) (2000), italics

added.)14 The standard sentencing range already takes into account the

defendant’s criminal history.15 As Justice Stevens explained in Booker, the court

concluded in Blakely that the top of the Washington standard range — rather than

the upper limit that was specified for the crime in statute — was the “statutory

maximum” for Sixth Amendment purposes, because in most cases the standard

range takes into account all relevant factors and no higher sentence is legally

permissible. (Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 750].)

“[A]lthough the Washington statute allowed the judge to impose a sentence

outside the sentencing range for ‘ “substantial and compelling reasons,” ’ that

exception was not available for Blakely himself. (542 U.S. at p. ___ [124 S.Ct. at

p. 2535].) The sentencing judge would have been reversed had he invoked the


14

The available data suggests, as one might expect, that the exceptional

sentence in Washington is imposed less frequently than is the upper term in
California. In Washington, sentences above the standard range were imposed in
only 3 percent of cases in fiscal years 2003 and 2004. (Wn. State Sentencing
Guidelines Com., Statistical Summary of Adult Felony Sentencing, Fiscal Year
2004, p. 22; see id., Fiscal Year 2003, p. 21.) The available data for California
covers the period from 1981 through 1988, and indicates that in cases involving a
single count, the percentage of cases in which the upper term was imposed ranged
from 13.36 percent to 17.73 percent. (Cal. Bd. Prison Terms, Report on
Sentencing Practices, Determinate Sentencing Law (Feb. 10, 1983); id. (Feb. 29,
1984); id. (Feb. 28, 1985); id. (June 23, 1986); id. (Mar. 12, 1987); id. (Jan. 15,
1988); id. (Jan. 31, 1989); id. (Jan. 31, 1990).)

15

Under the current version of the Washington statute, a defendant is

assigned an offender score of between 0 and 9, which affects the standard
sentencing range. (See Wn. Rev. Code, § 9.94A.525.) For example, a defendant
who is convicted of second degree kidnapping and who had an offender score of 0
would be eligible for a standard sentence of between 6 and 12 months, whereas a
defendant with an offender score of 9 would be eligible for a standard sentence of
between 72 and 96 months. (Wn. Rev. Code, § 9.94A.510.)

23

departure section to justify the sentence.” (Booker, supra, ___ U.S. at p. ___ [125

S.Ct. at pp. 750-751].)

The federal guidelines limit the trial court’s discretion even more than the

Washington system does, and they are therefore even less analogous to the

California system. The guideline ranges take into account not only the offense

committed, but also the defendant’s real conduct and criminal history. (See

Haines et al., Federal Sentencing Guidelines Handbook (2004) pp. 31-32.)16 The

judge must make findings on any relevant factors specified in the guidelines, each

of which results in a specified increase in the sentencing range. Once that

applicable range has been identified, a departure is permitted only if the judge

“finds that there exists an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration” in the guidelines. (18 U.S.C.

§ 3553(b)(1).) “In most cases, as a matter of law, the Commission will have


16

Under the federal guidelines, a chart specifies the punishment ranges for

various offense levels, which range between one and 43, and also specifies various
criminal history categories, which range from one to six. Each offense is assigned
to a particular base level. In addition, the offense level is raised by a specified
number based on the defendant’s conduct and role in the offense. For example,
robbery is assigned a base offense level of 20. That level is raised on the basis of
specified offense characteristics for robbery, including, for example, discharge of
a firearm (seven levels), use of a dangerous weapon (four levels), bodily injury to
a victim (two levels), serious bodily injury (four levels), permanent bodily injury
(six levels), and amount of loss (between one and seven levels, depending on the
amount.) (U.S. Sentencing Com., Guidelines Manual, § 2B3.1.) Additional
adjustments are made on the basis of conduct not specific to a particular offense,
including, for example, victim characteristics (three levels for a hate crime, two
levels if the victim was vulnerable), the defendant’s role in the offense (two levels
if the defendant was an organizer, leader, manager, or supervisor in the activity),
and the defendant’s impeding the administration of justice (two levels). (Id.,
§§ 3A1.1, 3B1.1, 3C1.1.)

24

adequately taken all relevant factors into account, and no departure will be legally

permissible.” (Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 750].)

C.

Apprendi, Blakely, and Booker all make clear that judicial factfinding is

acceptable in the context of a discretionary sentencing decision. On the other

hand, Blakely may apply to a sentencing decision even if the law permits some

level of judicial discretion, as the Washington systems does for exceptional

sentences. In California, the judge has considerable discretion to select among the

upper, middle, and lower terms, but the judge’s discretion to impose a sentence

other than the middle term is constrained, to some degree, by section 1170,

subdivision (b). The judge has broad discretion to decide whether any

circumstances related to the crime or the offender reasonably justify the upper

term, but in a case in which no such aggravating factor can be found, the judge

cannot impose the upper term. The question we must answer is where the line is

to be drawn between permissible judicial factfinding in the context of the judge’s

exercise of sentencing discretion, and judicial factfinding that violates the Sixth

Amendment right to a jury trial.

In answering this question, we are mindful of the principle that “[a]ll

presumptions and intendments favor the validity of a statute and mere doubt does

not afford sufficient reason for a judicial declaration of invalidity. Statutes must

be upheld unless their unconstitutionality clearly, positively and unmistakably

appears.” (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484;

accord, Voters for Responsible Retirement v. Board of Supervisors (1994) 8

Cal.4th 765, 780; Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814;

Walker v. Superior Court (1988) 47 Cal.3d 112, 143.)

The high court’s precedents do not draw a bright line, but Booker makes

clear that the concept of a discretionary sentencing decision is not limited to those

25

decisions that involve complete, unguided, and unreviewable discretion. To

remedy the constitutional problem with the federal guidelines, the high court held

that the federal guidelines should be treated as advisory only, not binding, but that

courts would be required to consider the guidelines in exercising sentencing

discretion within the statutory range. The high court did not contemplate that the

trial court’s exercise of discretion in sentencing under such an advisory system

would be unlimited. After Booker, a federal judge, while not bound to apply the

guidelines, must consult those guidelines and take them into account when

sentencing. (Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 764].) The judge

also must consider the pertinent Sentencing Commission policy statements and

“the need to avoid unwarranted sentencing disparities.” (Ibid., citing 18 U.S.C.

§ 3553(a)(4).) The federal judge must impose sentences that “reflect the

seriousness of the offense, promote respect for the law, provide just punishment,

afford adequate deterrence, protect the public, and effectively provide the

defendant with needed educational or vocational training and medical care.”

(Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at p.765], citing 18 U.S.C.

§ 3553(a)(1), (3), (5)-(7).) The sentence may be reviewed by an appellate court

for unreasonableness. (Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at pp. 765-

766].)

In Booker, all nine justices of the United States Supreme Court agreed that

such a discretionary system would not violate a defendant’s Sixth Amendment

right to a jury trial. (See Booker, supra, ___ U.S. at p. ___ [125 S.Ct. at p. 750]

(maj. opn. of Stevens, J.) [“Indeed, everyone agrees that the constitutional issues

presented by these cases would have been avoided entirely if Congress had

omitted . . . the provisions that make the Guidelines binding on district judges”].)

The level of discretion available to a California judge in selecting which of the

three available terms to impose appears comparable to the level of discretion that

26

the high court has chosen to permit federal judges in post-Booker sentencing.

Because an aggravating factor under California law may include any factor that

the judge reasonably deems to be relevant, the determinate sentencing law’s

requirement that an upper term sentence be imposed only if an aggravating factor

exists is comparable to Booker’s requirement that a federal judge’s sentencing

decision not be unreasonable. Furthermore, both systems require the judge to

make factual determinations. Under the California system, the judge must identify

and consider the aggravating and mitigating factors that are present. Under the

post-Booker federal sentencing system, the sentencing judge will have to identify

all the facts that are relevant in determining the appropriate guidelines range as

well as any other facts that may justify imposition of a sentence above or below

the guidelines range. Accordingly, we do not believe that the high court’s

decisions compel the conclusion that the trial court’s identification of aggravating

factors, in selecting a sentence within the upper, middle, and lower term range of

sentences provided under California law, is unconstitutional.

IV.

We next consider whether Blakely applies to the imposition of consecutive

sentences under section 669. Defendant contends that Blakely entitles him to a

jury trial on any facts that support the trial court’s decision to impose consecutive

terms. Under the applicable statute, whenever a person is convicted of two or

more crimes the judge must direct whether the terms of imprisonment for the

offenses are to run concurrently or consecutively. (§ 669.) If the judge fails to

direct how the terms are to run, they must run concurrently. (Id.) If the judge

directs that a determinate term is to run consecutively to another term, he or she

must state on the record “the primary factor or factors that support the exercise of

discretion.” (Cal. Rules of Court, rule 4.406(a); id., rule 4.406(b); § 1170, subd.

(c); see People v. Tran (1996) 47 Cal.App.4th 759, 774; People v. Dixon (1993)

27

201 Cal.App.4th 1029, 1036-1037 [judge must give reasons for imposing a

determinate term consecutively to an indeterminate one].)17

The governing rule of court further provides that in exercising discretion

whether to impose concurrent or consecutive sentences, the judge may consider

any circumstances in aggravation or mitigation, except an element of the crime or

an aggravating fact that has been used to impose the upper term or otherwise

enhance the prison term. (Cal. Rules of Court, rule 4.425(b).) The judge also may

consider the relationship between the crimes, including (1) whether the crimes and

their objectives were independent of each other, (2) whether they involved

separate acts of violence or threats of violence, and (3) whether they were

committed at different times or separate locations. (Id., rule 4.425(a).) Defendant

contends that under section 669 and the rules of court, the trial court cannot

impose a consecutive term without making additional factual findings not

contained within the jury’s verdict. Therefore, defendant argues, concurrent terms

are the “statutory maximum” that can be imposed based upon the jury’s verdict

alone, and any finding of a further fact or circumstance that would justify

imposition of consecutive terms must be submitted to the jury.

The same reasoning that lead us to conclude that a jury trial is not required

on the aggravating factors that justify imposition of the upper term leads us to

conclude that a jury trial is not required on the aggravating factors that justify

imposition of consecutive sentences. Under section 669, the judge has discretion

to determine whether to impose sentences consecutively or concurrently. “Judicial

factfinding in the course of selecting a sentence within the authorized range does


17

No reason need be stated on the record for directing that indeterminate

terms run consecutively to one another. (People v. Murray (1991) 225 Cal.App.3d
734, 750; People v. Arviso (1988) 201 Cal.App.3d 1055, 1058.)

28

not implicate the indictment, jury-trial, and reasonable-doubt components of the

Fifth and Sixth Amendments.” (Harris v. United States, supra, 536 U.S. at

p. 558.)

In addition, Blakely’s underlying rationale is inapplicable to a trial court’s

decision whether to require that sentences on two or more offenses be served

consecutively or concurrently. We previously have recognized that Apprendi

“treated a sentence enhancement as the functional equivalent of a crime.

[Citation.] To put it more accurately, Apprendi treated the crime together with its

sentence enhancement as the ‘functional equivalent’ of a single ‘greater’ crime.

[Citation.]” (People v. Sengpadychith, supra, 26 Cal.4th at p. 326.) Similarly,

Blakely treats the crime together with a fact that is a prerequisite to eligibility for a

greater punishment as the functional equivalent of a greater crime. The high

court’s decisions in Blakely and Apprendi are intended to protect the defendant’s

historical right to a jury trial on all elements of the crime, which the court

concluded would be jeopardized if a legislature could label facts affecting the

length of the authorized sentence for an offense as sentencing factors rather than

as elements and thereby eliminate the right to a jury trial on such facts.

No such danger is created by a statute that permits judges to decide whether

to impose consecutive sentences without jury factfinding. The jury’s verdict

finding the defendant guilty of two or more crimes authorizes the statutory

maximum sentence for each offense. When a judge considers the circumstances

of each offense and the defendant’s criminal history in determining whether the

sentences are to be served concurrently or consecutively, he or she cannot be said

to have usurped the jury’s historical role. Permitting a judge to make any factual

findings related to the choice between concurrent or consecutive sentences does

not create an opportunity for legislatures to eliminate the right to a jury trial on

elements of the offenses. Nothing in the high court’s decisions in Apprendi,

29

Blakely, or Booker suggests that they apply to factual determinations that do not

serve as the “functional equivalent” of an element of a crime.18

Before Blakely was decided, numerous cases held that Apprendi does not

apply to the decision to impose consecutive sentences.19 In addition, California

cases held that Apprendi does not apply to the factual determinations made by the

trial judge in connection with the decision whether to stay sentences on particular

counts under the provisions of Penal Code section 654 prohibiting multiple

punishment. (People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022; People v.

Cleveland (2001) 87 Cal.App.4th 263, 270-271.) Nothing in Blakely or Booker

undermines the conclusions reached in these cases. For purposes of the right to a

jury trial, the decision whether section 654 requires that a term be stayed is

analogous to the decision whether to sentence concurrently. Both are sentencing

decisions made by the judge after the jury has made the factual findings necessary


18

Consistent with this rationale, the high court in Apprendi focused on the

potential punishment for a single offense. In Apprendi, the court rejected the
state’s argument that the sentence imposed on the defendant in that case was
within the statutory maximum because it was less than the total maximum term for
which he was eligible, had the sentences on all of his offenses been imposed
consecutively. Based solely upon the jury’s verdicts, Apprendi was eligible for a
10-year term on the offense at issue in that case, and for additional terms for two
other offenses. The state argued the sentence was valid because it was within the
total range authorized by statute for the three offenses to which he pleaded guilty.
The court in Apprendi concluded, however, that the sentences on the two other
counts were irrelevant. The judge’s factual finding on the first offense was
significant, because it “increased — indeed, it doubled — the maximum range
within which the judge could exercise his discretion.” (Apprendi, supra, 530 U.S.
at p. 474.)

19 See,

e.g.

People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231;

Wright v. State (Alaska Ct. App. 2002) 46 P.3d 395; People v. Clifton (Colo. App.
2001) 69 P.3d 81; People v. Wagener (Ill. 2001) 752 N.E.2d 269; State v. Bramlett
(Kan. 2002) 41 P.3d 796.

30

to subject the defendant to the statutory maximum sentence on each offense, and

neither implicates the defendant’s right to a jury trial on facts that are the

functional equivalent of elements of an offense.

V.

In light of the conclusions set forth above, we conclude defendant’s

constitutional right to a jury trial was not violated by the trial court’s imposition of

the upper term sentence for his conviction of continuous sexual abuse or by its

imposition of consecutive sentences on all three counts. The decision of the Court

of Appeal therefore is affirmed.

GEORGE, C.J.

WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

31












CONCURRING AND DISSENTING OPINION BY KENNARD, J.




The question here is this: Do the United States Supreme Court’s recent trio

of decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v.

Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely), and United States v.

Booker (2005) ___ U.S. ___ [125 S.Ct. 738] (Booker) affect California’s

determinate sentencing law? More precisely, is a defendant entitled to have a jury

determine the existence of either (1) an aggravating circumstance that would

support the trial court’s imposition of consecutive sentences, or (2) an aggravating

circumstance justifying the court’s imposition of an “upper term,” which in

California is the highest of three possible prison terms for most felonies? The

majority’s answer to each question is “no.”

I agree with that answer as to the first question.

With respect to the second question, however, I disagree with the

majority’s holding that an upper term sentence will never violate a defendant’s

constitutional right to a jury trial. Under California law, a trial court may impose

an upper term only if it concludes that the greater punishment is justified by one or

more aggravating circumstances, which may be either facts relating to the crime or

facts relating to the defendant’s criminal history. Under the three high court

decisions I just mentioned, the Sixth Amendment to the federal Constitution

guarantees a defendant a right to a jury trial on any aggravating fact (other than a

fact concerning the defendant’s criminal history) that the trial court uses to impose

1



an upper term. This means that under California’s sentencing scheme a trial court

may use an aggravating fact to justify an upper term only if: (1) a jury has made a

finding on the aggravating fact, (2) the defendant has admitted the aggravating

fact, (3) the defendant has validly waived the right to a jury trial on the

aggravating fact, or (4) the aggravating fact relates to the defendant’s criminal

record rather than to the circumstances of the conviction offense. Absent one of

these situations, the trial court may not impose an upper term sentence.

Here, the trial court relied on certain aggravating facts to justify sentencing

defendant to an upper term. Because one of those aggravating facts related to

defendant’s criminal history, and because the jury made a finding on another

aggravating fact when it found true an allegation that made defendant ineligible

for probation, the trial court’s imposition of the upper term did not violate

defendant’s right to jury trial under the federal Constitution. For this reason, I join

the majority in affirming the trial court’s judgment, even though I disagree with

the majority’s conclusion that imposition of an upper term under California’s

sentencing scheme never implicates a defendant’s constitutional right to trial by

jury.

I. BACKGROUND

Defendant was convicted of one count of engaging in continuous sexual

abuse of a child (Pen. Code, § 288.5),1 his stepdaughter. He was also convicted of

two counts of child molestation (§ 288, subd. (a)) based on allegations that he

molested two of his stepdaughter’s friends. The jury found true special

allegations, affecting probation eligibility, that defendant used force or fear in

committing the section 288.5 violation and that he had engaged in “substantial


1

All statutory citations are to the Penal Code.

2



sexual conduct” with his stepdaughter (§ 1203.066, subd. (a)(1) and (8)); the jury

also found that the three crimes involved multiple victims, qualifying him for an

indeterminate sentence under the “One Strike” law (§ 667.61).

The trial court imposed the upper term of 16 years for the violation of

section 288.5 (continuous sexual abuse of a child), giving these reasons:

Defendant forced his stepdaughter to have intercourse with him on numerous

occasions, defendant’s stepdaughter was particularly vulnerable, defendant abused

a position of trust and confidence, and defendant inflicted emotional and physical

injury on his stepdaughter. The court also mentioned that it had considered other

factors described in the prosecutor’s brief. These factors were: The crime

involved a high degree of cruelty and callousness, and it showed planning or

sophistication; defendant’s violent conduct showed that he was a danger to

society; and defendant’s prior misdemeanor and felony convictions were of

increasing seriousness. Applying the One Strike law, the court also imposed a

consecutive term of 15 years to life for each of the two child molestation

violations under section 288, subdivision (a).

With respect to the one count under section 288.5 (continuous sexual abuse

of a child), defendant argues that under the Sixth Amendment to the federal

Constitution he was entitled to have a jury determine beyond a reasonable doubt

the existence of each of the aggravating factors justifying imposition of the upper

term.

II. CALIFORNIA’S SENTENCING SCHEME

California law specifies a range of three prison terms for most felonies: the

upper term, the middle term, and the lower term. Pertinent here is subdivision (b)

of section 1170, which states: “When a judgment of imprisonment is to be

imposed and the statute specifies three possible terms, the court shall order

imposition of the middle term, unless there are circumstances in aggravation or

3



mitigation of the crime.” (Italics added.) This provision is echoed in rule 4.420(b)

of the California Rules of Court: “Selection of the upper term is justified only if,

after a consideration of all the relevant facts, the circumstances in aggravation

outweigh the circumstances in mitigation.” (Italics added.) Thus, under

California’s sentencing scheme, the trial court cannot impose the upper term

unless it finds the existence of one or more aggravating circumstances. That

finding is made under a “preponderance of the evidence” standard. (Ibid.; People

v. Scott (1994) 9 Cal.4th 331, 349.)

III. UNITED STATES SUPREME COURT’S RECENT SENTENCING DECISIONS

Pertinent here is the high court’s trilogy of recent sentencing decisions:

Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], and

Booker, supra, ___ U.S. ___ [125 S.Ct. 738].

Apprendi, decided in 2000, involved a New Jersey law that provided for an

extended term of imprisonment if the trial court found by a preponderance of the

evidence that the crime was committed “ ‘to intimidate an individual or group of

individuals because of race, color, gender, handicap, religion, sexual orientation or

ethnicity.’ ” (Apprendi, supra, 530 U.S. at p. 469.) The high court held that

before imposition of the extended sentence the defendant was entitled to a jury

trial at which the prosecution had to prove beyond a reasonable doubt the facts

justifying the extended commitment. The court explained that any fact exposing

the defendant “to a penalty exceeding the maximum he would receive if punished

according to the facts reflected in the jury verdict alone” (Apprendi, supra, at

p. 483, italics & fn. omitted) is the equivalent of an element of the crime, thus

triggering the Sixth Amendment’s right to a jury trial. Generally, “any fact that

4



increases the penalty for a crime beyond the prescribed statutory maximum[2]

must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi,

at p. 490, italics added.) Outside the ambit of this rule, the court said, are prior

convictions, because “recidivism ‘does not relate to the commission of the offense’

itself” (id. at p. 496), and because “there is a vast difference between accepting the

validity of a prior judgment of conviction entered in a proceeding in which the

defendant had a right to a jury trial and the right to require the prosecutor to prove

guilt beyond a reasonable doubt, and allowing the judge to find [a] required fact

under a lesser standard of proof” (ibid.).

Some four years later, in 2004, the high court in Blakely applied its

Apprendi holding to the State of Washington’s sentencing scheme. In that case,

the defendant was convicted of second degree kidnapping with a firearm, a felony

punishable by up to 10 years in prison. Under Washington law, the “ ‘standard

range’ ” for the crime was 49 to 53 months, but a trial court could exceed that

range if it found “ ‘substantial and compelling reasons justifying an exceptional

sentence.’ ” (Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2535].) The law

contained a nonexclusive list of aggravating factors. The trial court found the

existence of one of those factors (“deliberate cruelty”) and imposed a 90-month

sentence. (Ibid.)

Blakely invalidated the State of Washington’s sentencing scheme insofar as

it did not provide the defendant with a jury trial, requiring proof beyond a

reasonable doubt, on the existence of aggravating factors used to increase the

defendant’s sentence. The Blakely court reiterated its holding in Apprendi that


2

In a later decision, Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], the

United States Supreme Court explained the meaning of the term “statutory
maximum.”

5



“ ‘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.’ ”

(Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2536], italics added, quoting

Apprendi, supra, 530 U.S. at p. 490.) The term “statutory maximum,” Blakely

explained, is “the maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant.” (Blakely,

supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2537].) “In other words,” Blakely said,

“the relevant ‘statutory maximum’ is not the maximum sentence a judge may

impose after finding additional facts, but the maximum he may impose without

any additional findings. When the judge inflicts punishment that the jury’s verdict

alone does not allow, the jury has not found all the facts ‘which the law makes

essential to the punishment,’ [citation] and the judge exceeds his proper

authority.” (Ibid.) “[E]very defendant,” the high court held, “has the right to

insist that the prosecutor prove to the jury all facts legally essential to the

punishment.” (Id. at p. ___ [124 S.Ct. at p. 2543].)

The next year, in Booker, supra, ___ U.S. ___ [125 S.Ct. 738], the high

court had to determine whether, under Apprendi, supra, 530 U.S. 466, and

Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], the Federal Sentencing Guidelines

violated the Sixth Amendment’s right to a jury trial. The decision had two

majority opinions, each deciding a distinct issue.

The first opinion, authored by Justice Stevens, addressed the question

whether the Federal Sentencing Guidelines violated the Sixth Amendment. Of

particular significance here is part II of that opinion. (Booker, supra, ___ U.S. at

pp. ___-___ [125 S.Ct. at pp. 748-752].) There, the high court explained that if

the guidelines were “merely advisory,” “their use would not implicate the Sixth

Amendment,” because judges may “exercise broad discretion in imposing a

sentence within a statutory range.” (Booker, supra, ___ U.S. at p. ___ [125 S.Ct.

6



at p. 750].) But, it noted, the guidelines “are mandatory and binding on all judges”

(ibid.) because they state that the sentencing court “ ‘shall impose a sentence of

the kind, and within the range’ established by the Guidelines, subject to departures

in specific, limited cases” (ibid.). Thus, Booker held, the Federal Sentencing

Guidelines were unconstitutional.

The second majority opinion, authored by Justice Breyer, discussed the

remedy for the constitutional violation found in the first opinion. Explaining that

there were two possible remedies – (1) to engraft onto the guidelines a jury trial

requirement, or (2) to make the guidelines advisory rather than mandatory – the

court chose the latter, reasoning that to engraft a jury trial requirement onto the

sentencing guidelines would destroy them. It concluded that the provisions in the

federal sentencing statute that made the guidelines mandatory and that set forth

standards of review on appeal should be severed and excised, and that, with these

excisions, the remainder of the guidelines were constitutional. (Booker, supra,

___ U.S. at pp. ___-___ [125 S.Ct. at pp. 764-768].)

To summarize: The high court’s decisions in Apprendi, supra, 530 U.S.

466, Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], and Booker, supra, ___ U.S.

___ [125 S.Ct. 738], hold that unless the defendant waives the right to jury trial,

the trial court may not, relying on offense-based facts not found by a jury beyond a

reasonable doubt or admitted by the defendant, sentence the defendant to a prison

term greater than the maximum sentence authorized by the jury’s verdict. The

trial court may exceed the maximum sentence only if justified by the defendant’s

prior criminal history.

7





IV. APPLICATION OF HIGH COURT’S RECENT TRILOGY OF SENTENCING

DECISIONS TO CALIFORNIA’S SENTENCING SCHEME

California law prohibits a trial court from sentencing a defendant to the

upper term unless it finds the existence of one or more aggravating circumstances.

(§ 1170, subd. (b).) Absent such findings, the middle term is the maximum

sentence it may impose. Thus, under our system, the statutory maximum, that is,

“the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict . . . ” (Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at

p. 2537]), is the middle term of imprisonment. Insofar as California law permits a

trial judge to impose a sentence greater than the statutory maximum, based on

facts not found by a jury beyond a reasonable doubt, it violates the Sixth

Amendment to the federal Constitution, as construed in Apprendi, supra, 530 U.S.

466, Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], and Booker, supra, ___ U.S.

___ [125 S.Ct. 738].

This does not mean that a trial court’s upper term sentence always violates

a defendant’s jury trial right. If any aspect of the defendant’s prior criminal

history is an aggravating circumstance, if the jury makes special findings of

aggravating facts that justify imposition of the upper term, if the defendant admits

the existence of aggravating facts, or if the defendant waives the right to jury trial,

the court may impose the upper term without violating the defendant’s

constitutional rights. But under Apprendi, supra, 530 U.S. 466, Blakely, supra,

542 U.S. ___ [124 S.Ct. 2531], and Booker, supra, ___ U.S. ___ [125 S.Ct. 738],

absent waiver of the right to jury trial, the trial court may not impose the upper

term, thereby exceeding the statutory maximum, when the decision is based solely

on (1) offense-based facts that (2) are not admitted by the defendant and (3) are

not found by a jury. In this situation – that is, when the trial court rather than the

8



jury has acted as the trier of fact in determining the existence of one or more

offense-based aggravating facts necessary to sustain imposition of an upper term –

California’s sentencing scheme violates the Sixth Amendment’s right to a jury

trial.

Here, no violation of the Sixth Amendment occurred, for two reasons:

First, the jury found true special allegations, pertaining to probation eligibility,

that defendant used force or fear in committing the section 288.5 violation and had

engaged in “substantial sexual conduct” with the victim (§ 1203.066, subd. (a)(1)

and (8)). These jury findings were sufficient to support the trial court’s imposition

of the upper term, even though those findings were made for a different purpose,

that of determining probation eligibility. Thus, here the jury found, beyond a

reasonable doubt, the existence of facts sufficient to permit the trial court to

exceed the middle term in sentencing defendant. Second, in selecting the upper

term the trial court relied on the aggravating circumstance that defendant’s “prior

convictions . . . are numerous or of increasing seriousness.” As explained earlier,

the United States Supreme Court has held that the Sixth Amendment does not

require a jury trial on facts pertaining to a defendant’s prior criminal history.

Under California law, the existence of a single aggravating circumstance is

sufficient to support imposition of an upper term. (§ 1170, subd. (b).) In this case,

the jury’s findings pertaining to defendant’s probation eligibility, and the trial

court’s findings pertaining to defendant’s criminal record, were each sufficient to

satisfy this statutory requirement, thereby making the upper term the statutory

maximum for the offense. (See Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at

p. 2537] [defining “statutory maximum” as the maximum sentence a trial court

may impose without additional findings of offense-based facts].) Once the upper

term became the statutory maximum in this manner, defendant’s right to jury trial

under the federal Constitution’s Sixth Amendment was satisfied, and the trial court

9



on its own properly could—and did—make additional findings of offense-based

aggravating circumstances in support of its discretionary sentence choice to

impose the upper term. Thus, under the high court’s decisions in Apprendi, supra,
530 U.S. 466, Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], and Booker, supra,

___ U.S. ___ [125 S.Ct. 738], the trial court here did not violate defendant’s Sixth

Amendment right to jury trial when it sentenced him to the upper term.

V. POINTS RAISED BY MAJORITY

According to the majority, the “first question” in determining the

constitutionality of California’s sentencing scheme is “whether a trial judge’s

decision to impose an upper term sentence under the California determinate

sentencing law involves the type of judicial factfinding that traditionally has been

performed by a judge in the context of exercising sentencing discretion or whether

it instead involves the type of factfinding that traditionally has been exercised by

juries in the context of determining whether the elements of an offense have been

proved.” (Maj. opn., ante, at pp. 15-16, fn. omitted.) That, in my view, is not the

question at all.

As framed by the high court in Blakely, supra, 542 U.S. ___ [124 S.Ct.

2531], the determinative question is whether the sentencing scheme allows the

trial court, relying on offense-based facts found by the court, to impose a

punishment greater than that permitted under the facts found by the jury. Nothing

in the high court’s majority opinions in Apprendi, Blakely, and Booker suggests

that the constitutionality of a state’s sentencing scheme turns on whether, in the

words of the majority here, it involves the type of factfinding “that traditionally

has been performed by a judge.” (Maj. opn., ante, at pp. 15-16.) What is the

source for the majority’s test? Perhaps the majority has looked to Justice

O’Connor’s dissenting opinion in Apprendi, which contained this observation:

“When a State takes a fact that has always been considered by sentencing courts to

10



bear on punishment, and dictates the precise weight that a court should give that

fact in setting a defendant’s sentence, the relevant fact need not be proved to a jury

beyond a reasonable doubt . . . .” (Apprendi, supra, 530 U.S. at p. 535 (dis. opn.

of O’Connor, J.), italics added.) Or perhaps the majority has taken its cue from

Justice Breyer’s dissenting opinion in Booker, which as Justice Stevens’s majority

opinion in Booker noted, relied on “traditional judicial authority to increase

sentences to take account of any unusual blameworthiness in the manner

employed in committing a crime” to support its argument that the Federal

Sentencing Guidelines did not violate the Sixth Amendment. (Booker, supra, ___

U.S. at p. ___ [125 S.Ct. at p. 751].) But the Booker majority rejected this

approach, concluding that “[t]his tradition . . . does not provide a sound guide to

enforcement of the Sixth Amendment’s guarantee of a jury trial in today’s world.”

(Ibid.)

Hard as it tries, the majority here cannot point to any significant differences

between California’s sentencing law and the Washington sentencing scheme that

the high court invalidated in Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531].

The majority states that “[u]nder the California scheme, a judge is free to

base an upper term sentence on any aggravating factor that the judge deems

significant . . . .” (Maj. opn., ante, at p. 18.) It explains: “The Legislature did not

identify all of the particular facts that could justify the upper term. Instead, it

afforded the sentencing judge the discretion to decide, with the guidance of rules

and statutes, whether the facts of the case and the history of the defendant justify

the higher sentence.” (Maj. opn., ante, at p. 19, fn. omitted.) But that can also be

said of the State of Washington’s sentencing scheme. (Blakely, supra, 542 U.S. at

p. ___ [124 S.Ct. at p. 2535] [The Washington law “lists aggravating factors that

justify [an increased sentence], which it recites to be illustrative rather than

exhaustive.”].)

11



The majority considers it significant that under California law, “[t]he

judge’s discretion to identify aggravating factors in a case is guided by the

requirement that they be ‘reasonably related to the decision being made.’ ” (Maj.

opn., ante, at p. 18.) But that is also true of Washington’s sentencing law: A

sentencing scheme that would allow a trial court to base its sentence on facts not

“reasonably related to the decision being made” would be so unfair as to violate

constitutionally guaranteed principles of due process.

The majority also notes that “as a historical matter California’s adoption of

the determinate sentencing law reduced the length of potential sentences for most

crimes, rather than increasing them.” (Maj. opn., ante, at p. 19.) This aspect of

our sentencing law does not differ significantly from the Washington sentencing

scheme. As Justice O’Connor’s dissenting opinion in Blakely pointed out: “The

[Washington] Act neither increased any of the statutory sentencing ranges . . . nor

reclassified any offenses.” (Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at

p. 2544].) The Blakely majority voiced no disagreement with that observation.

The majority here points out that California law requires sentence

enhancements to be determined by a jury beyond a reasonable doubt. (Maj. opn.,

ante, at pp. 20-21.) Notable by its absence, however, is any claim by the majority

that this aspect differentiates our sentencing law from the State of Washington’s

sentencing scheme held unconstitutional by the United States Supreme Court.

Similar enhancements may well have existed under the Washington law. (See

Blakely, supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2535] [noting that the standard

range for the defendant in Blakely was based in part on a “36-month firearm

enhancement”].) In invalidating the Washington law, the United States Supreme

Court did not rely on the presence or absence of sentence enhancements.

The only difference the majority can point to between California’s

sentencing law and that of the State of Washington held unconstitutional in

12



Blakely, supra, 542 U.S. ___ [124 S.Ct. 2531], is this: Under the invalidated

Washington law a sentence outside the standard range was an “ ‘exceptional

sentence’ ” that must be justified by “ ‘substantial and compelling reasons,’ ”

whereas California law imposes no such requirement. (Maj. opn., ante, at p. 22,

italics omitted.) Differently put, the invalidated Washington law limited to a

greater extent, compared to California law, the number of instances in which

Washington trial courts could impose a sentence beyond the prescribed statutory

maximum. Yet nothing in Blakely suggests that the United States Supreme Court

would have found the Washington sentencing scheme constitutional if it had

permitted trial courts to exceed the standard sentencing range more often. Rather,

the high court invalidated the Washington sentencing law because (1) under that

scheme the trial court rather than the jury made the findings necessary to justify a

sentence outside the standard range, and (2) because those court findings could be

established by a preponderance of the evidence rather than by proof beyond a

reasonable doubt. California’s sentencing scheme shares these deficiencies with

the Washington law that the high court in Blakely found violative of a defendant’s

Sixth Amendment right to jury trial.

CONCLUSION

The majority insists that the United States Supreme Court’s recent

decisions in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. ___ [124

S.Ct. 2531], and Booker, supra, ___ U.S. ___ [125 S.Ct. 738] “do not draw a

bright line . . . .” (Maj. opn., ante, at p. 25.) To the contrary, the line the high

court has drawn is bright and clear: A sentencing law is invalid when it allows a

trial judge to impose a sentence beyond the “statutory maximum,” which the high

court defined as “the maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant” (Blakely,

supra, 542 U.S. at p. ___ [124 S.Ct. at p. 2537]), unless that sentence is based at

13



least in part on the defendant’s prior criminal history. That rule is binding on us; it

is not for this court to question its wisdom. Here, in sentencing defendant to the

upper term, the trial court relied in part on his prior criminal history and on facts

found by the jury, as permitted under Blakely. Therefore, I agree with the

majority’s affirmance of the judgment.

KENNARD,

J.

14



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Black
__________________________________________________________________________________

Unpublished Opinion
NP opn. filed 6/1/04 – 5th Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S126182
Date Filed: June 20, 2005
__________________________________________________________________________________

Court:
Superior
County: Tulare
Judge: William Silveira, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Eileen S. Kotler, under appointment by the Supreme Court, for Defendant and Appellant.

Deborah A. Kwast, Public Defender (Orange), Thomas Havlena, Chief Deputy Public Defender, Kevin J.
Phillips, Assistant Public Defender, and Martin F. Schwarz, Deputy Public Defender, as Amici Curiae on
behalf of Defendant and Appellant.

John T. Philipsborn; and Charles D. Weisselberg for California Attorneys for Criminal Justice as Amicus
Curiae on behalf of Defendant and Appellant.



__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Jo Graves and Pamela C. Hamanaka, Assistant Attorneys General, J. Robert
Jibson, Judy Kaida, Donald E. De Nicola, Jaime L. Fuster and Lawrence M. Daniels, Deputy Attorneys
General, for Plaintiff and Respondent.


David R. LaBahn, George Kennedy, District Attorney (Santa Clara); James P. Fox, District Attorney (San
Mateo) and Martin Murray, Assistant District Attorney, for California District Attorneys Association as
Amicus Curiae on behalf of Plaintiff and Respondent.










Counsel who argued in Supreme Court (not intended for publication with opinion):

Eileen S. Kotler
Balin & Kotler
1750 Francisco Blvd.
Pacifica, CA 94044
(650) 359-1330

Lawrence M. Daniels
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2288


Opinion Information
Date:Docket Number:
Mon, 06/20/2005S126182

Parties
1Black, Kevin Michael (Defendant and Appellant)
Calipatria State Prison
Represented by Eileen S. Kotler
Balin & Kotler, LLP
1750 Francisco Boulevard
Pacifica, CA

2The People (Plaintiff and Respondent)
Represented by Lawrence Maurice Daniels
Office of the Attorney General
300 S. Spring Street, Suite 5212
Los Angeles, CA

3California Attorneys For Criminal Justice (Amicus curiae)
Represented by John T. Philipsborn
Attorney at Law
507 Polk Street, Suite 250
San Francisco, CA

4California District Attorneys Association (Amicus curiae)
Represented by Martin Thomas Murray
Office of the District Attorney
400 County Center, 3rd Floor
Redwood City, CA

5Orange County Public Defenders Office (Amicus curiae)
Represented by Martin Frank Schwarz
Orange County Public Defender
14 Civic Center Plaza
Santa Ana, CA

6San Diego County District Attorney (Opinion Modification Requestor)
Represented by Charles Edward Nickel
Office of the District Attorney
P.O. Box 121011
330 W. Broadway, Suite 920
San Diego, CA

7Stern, Kenneth M. (Amicus curiae)
Represented by Kenneth M. Stern
Attorney at Law
5850 Canoga Ave #400
Woodland Hills, CA


Disposition
Jun 20 2005Opinion: Affirmed

Dockets
Jul 8 2004Petition for review filed
  by counsel for appellant (Kevin Michael Black)
Jul 9 2004Record requested
 
Jul 14 2004Received Court of Appeal record
  three doghouses
Jul 28 2004Petition for review granted (criminal case)
  The parties are directed to brief and argue the following issues: (1) What effect does Blakely v. Washington (2004) ___ U.S. __, 124 S.Ct. 2531 have on the validity of defendant's upper term sentence? (2) What effect does Blakely have on the trial court's imposition of consecutive sentences? Briefs of the parties shall be filed in accordance with California Rules of Court, rule 29.1(a). Because of the importance of a prompt resolution of this matter, applications to file amicus curiae briefs (including the proposed brief) shall be filed no later than the date the petitioner's reply brief is required to be filed. This court does not contemplate that any extension of time for filing briefs will be granted. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jul 28 2004Note:
 
Aug 3 2004Counsel appointment order filed
  Upon request for appointment of counsel, Eileen Kotler is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 8 2004Opening brief on the merits filed
  By counsel for appellant {Kevin Michael Cooper} / CRC 40(K).
Oct 8 2004Received:
  oversize answer brief/merits>>respondent People
Oct 8 2004Application to file over-length brief filed
  answer brief/merits>>respondent People
Oct 8 2004Notice of substitution of counsel
  Dpty Atty General Lawrence M. Daniels for respondent
Oct 13 2004Received application to file Amicus Curiae Brief
  CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE in support of appellant (Black).
Oct 13 2004Compensation awarded counsel
  Atty Kotler
Oct 18 2004Answer brief on the merits filed
  with permission.
Oct 27 2004Permission to file amicus curiae brief granted
  California Attorneys for Criminal Justice in support of appellant.
Oct 27 2004Amicus curiae brief filed
  California Attorneys for Criminal Justice in support of appellant. Answer is due within twenty days.
Oct 28 2004Received application to file Amicus Curiae Brief
  California District Attorneys Association in support of Respondent.
Nov 8 2004Permission to file amicus curiae brief granted
  CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION.
Nov 8 2004Amicus curiae brief filed
  CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION in support of respondent. Answer due within 20 days.
Nov 8 2004Received application to file Amicus Curiae Brief
  Orange County Public Defender [in support of aplt]
Nov 10 2004Received:
  Appellant's reply brief on the merits in excess of the word limit and application to file.
Nov 17 2004Reply brief filed (case fully briefed)
  Appellant ( Black)
Nov 19 2004Permission to file amicus curiae brief granted
  Orange County Public Defender in support of appellant.
Nov 19 2004Amicus curiae brief filed
  Orange County Public Defender in support of appellant. Answer is due within twenty days.
Dec 3 2004Request for judicial notice filed (granted case)
  By counsel for appellant {Kevin Michael Black}.
Jan 19 2005Supplemental briefing ordered
  The parties are directed to file supplemental briefs addressing the effect of United States v. Booker (2005) ___ U.S. ___ on this case, no later than February 2, 2005. Reply briefs may be filed no later than February 9, 2005.
Feb 2 2005Supplemental brief filed
  by Amicus California Attorneys for Justice
Feb 2 2005Application filed to:
  oversize Supplemental Brief>>respondent People
Feb 2 2005Received:
  oversize Supplemental Brief>>respondent People
Feb 4 2005Received:
  Appellant's oversized (5938 words) supplemental opening brief on the merits over the 2800 word limit. (page limit is 10; brief contains 26 pages)
Feb 10 2005Supplemental brief filed
  Appellant's Black's Supplemental Opening Brief/Merits ( with permission)
Feb 10 2005Supplemental brief filed
  Respondent's Supplemental Brief/Merits (with permission)
Feb 10 2005Supplemental brief filed
  Appelllant's Supplemental Reply Brief on the Merits (with permission)
Mar 8 2005Case ordered on calendar
  Thurs. 4/7/05 @9am - Los Angeles
Mar 16 2005Filed:
  Letter dated 3-14-2005 from Balin & Kotler, LLP, counsel for Appellant Kevin Black requesting leave to file this supplemental letter brief.
Mar 18 2005Request for Extended Media coverage Filed
  by The California Channel
Mar 23 2005Request for Extended Media coverage Granted
  The request for extended media coverage, filed 3/18/05 is granted, subject to the conditions set forth in rule 980, California Rules of Court. Brown, J., is of the opinion the request should be denied.
Mar 29 2005Filed:
  Supplemental Brief re: additional authorities>>respondent People
Apr 7 2005Cause argued and submitted
 
Apr 18 2005Received:
  Letter from counsel for Appellant Black requesting leave to file supplemental letter brief.
Apr 21 2005Order filed
  Appellant's request to file Supplemental Letter Brief is hereby granted. Respondent may file a Supplemental Reply Letter Brief, if any, within five (5) days.
Jun 20 2005Opinion filed: Judgment affirmed in full
  Opinion by George, CJ. -- joined by Baxter, Werdegar, Chin, Brown & Moreno, JJ. Concurring & Dissenting Opinion by Kennard, J.
Jun 27 2005Request for modification of opinion filed
  By the Office of the District Attorney, County of San Diego (NON-PARTY).
Jul 5 2005Rehearing petition filed
  by counsel for appellant {Kevin Michael Black}.
Jul 5 2005Request for judicial notice filed (granted case)
  by counsel for appellant.
Jul 6 2005Time extended to consider modification or rehearing
  To Spetember 16, 2005.
Aug 31 2005Rehearing denied
  Request for judicial notice granted. Request for modification denied. Petition for rehearing DENIED. Kennard, J., is of the opinion the petition should be granted.
Aug 31 2005Remittitur issued (criminal case)
  Certified copies sent to Fifth Appellate District
Sep 7 2005Received:
  Reciept for remittitur from Fifth Appellate District, signed for by J. Rivera, Deputy.
Oct 11 2005Received:
  Letter from USSC dated 10-5-2005, petition for writ of certiorari filed 9-28-20005 and placed on the docket 10-5-2005 as No. 05-6793.
Nov 16 2005Compensation awarded counsel
  Atty Kotler
Nov 20 2006- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
 
Feb 20 2007Remanded by U.S. Supreme Court
 
Feb 21 2007Retained after U.S.S.C. remand; briefing ordered
  The parties are directed to serve and file simultaneous supplemental briefs addressing the effect of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 on any of the issues presented in this case. The court specifically requests that the supplemental briefs address the following issues: (1) Is there any violation of the defendant's Sixth Amendment rights under Cunningham if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities - in the present case, for example, by the defendant's prior convictions or by the jury's finding that the offense involved force or fear - even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible? (2) Does Cunningham affect this court's conclusion in People v. Black (2005) 35 Cal.4th 1238, 1261-1264, that Blakely v. Washington (2004) 542 U.S.296 does not apply to the imposition of consecutive sentences under Penal Code section 669? Supplemental briefs must be served and filed in the San Francisco office of this court no later than March 14, 2007, and simultaneous reply briefs may be served and filed in the San Francisco office of this court no later than March 23, 2007. Because it is important for the administration of justice that the trial courts of California be provided timely guidance, the court notes that its action in this case is not intended to dissuade the Legislature from promptly revising the existing California sentencing statutes in light of the United States Supreme Court's decision in Cunningham.
Feb 26 2007Filed:
  Letter dated February 20, 2007 from William K. Suter, Clerk, Supreme Court of the United States. The Court entered the following order in the above-entitled case: The motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of California for further consideration in light of Cunningham v. California, 549 U.S. ____ (2007). The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. -----------------------
Mar 14 2007Received:
  Oversized Supplemental Brief from Respondent.
Mar 14 2007Application to file over-length brief filed
  The People, Respondent by Lawrence M. Daniels.
Mar 15 2007Application to file over-length brief filed
  (Supplemental Brief attached) Kevin Michael Black, appellant Eileen S. Kotler, counsel
Mar 19 2007Supplemental brief filed
  The People, Respondent by Lawrence M. Daniels, counsel with permission.
Mar 19 2007Order filed
  The Application of the Attorney General, filed March 14, 2007, for permission to leave to file a supplemental brief in excess of the word limit is hereby granted.
Mar 22 2007Order filed
  The application of appellant, filed March 15, 2007, for permission for leave to file a supplemental brief in excess of the word limit is hereby granted.
Mar 22 2007Supplemental brief filed
  Kevin Michael Black, appellant by Eileen S. Kotler, counsel (with permission)
Mar 26 2007Supplemental brief filed
  Mr. Black's Supplemental Reply Brief on the Merits (oversized) CRC 8.25 (with permission)
Mar 26 2007Received:
  Letter from Eileen S. Kotler, counsel for appellant), will be out of the country from 5-31-2007 to June 15, 2007.
Mar 26 2007Supplemental brief filed
  Respondent People's Reply Brief by Lawrence M. Daniels, Supervising Deputy Attorney General CRC 8.25
Mar 29 2007Filed letter from:
  Supreme Court of the United States dated March 26, 2007, enclosing a certifed copy of the mandate and a certified copy of the judgment of the Court. A copy of the opinion cited may be obtained by visiting website @www.supremecourtus.gov. [ U.S.S.C. Case No. 05-6793 Kevin Michael Black v. California ]
May 2 2007Case ordered on calendar
  to be argued on Tuesday, May 29, at 9:00 a.m., in San Francisco
May 4 2007Received application to file Amicus Curiae Brief
  Kenneth M. Stern Law Offices in support appellant by Kenneth M. Stern, Esq.
May 17 2007Request for Extended Media coverage Filed
  by James Gualtieri of the California Channel.
May 17 2007Request for Extended Media coverage Granted
  The request for extended media coverage, filed May 17, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
May 21 2007Received:
  Appelant Black's Additional Authority for Oral Argument by Eileen S. Kotler of Balin &n Kotler, LLP.
May 29 2007Cause argued and submitted
 
Jul 11 2007Compensation awarded counsel
  Atty Kotler
Jul 16 2007Order filed
  Petitioner's Request for Judicial Notice, filed December 3, 2007, is denied. (SeeQuelimane Co. v. Stewart Title Guaranty Co. (1988) 19 Cal.4th 26, 45-46, fn. 9 and People v Cruz (1996) 13 Cal.4th 764, 780, fn. 9.) The application of Kenneth M. Stern to file an amicus brief in support of Kenneth Michael Black is denied.
Jul 16 2007Note:
  Returned "Original" petition to file amicus brief and brief to Kenneth M. Stern.
Jul 18 2007Notice of forthcoming opinion posted
 
Jul 19 2007Opinion filed: Judgment affirmed in full
  Court of Appeal decision. Opinion by: George, C.J. -- joined by Kennard, Baxter, Werdegar, Chin, Moreno, Corrigan, JJ. Concurring Opinion by: Kennard, J.
Aug 20 2007Remittitur issued (criminal case)
 
Aug 27 2007Received:
  Copy of Appellant Kevin M. Black's Petition for Writ of Certiorari and Appendix filed in the Supreme Court of the United States.
Aug 27 2007Received:
  Acknowledgment of receipt of remittitur from Fifth Appellate District, signed for by Robert Abilez, Deputy Clerk
Sep 4 2007Received:
  Supreme Court of the United States letter dated August 28, 2007, petition for writ of certorari filed on August 24, 2007, and placed on the docket August 28, 2007 as No. 07-6140.
Nov 28 2007Compensation awarded counsel
  Atty Kotler
Jan 14 2008Certiorari denied by U.S. Supreme Court
 

Briefs
Sep 8 2004Opening brief on the merits filed
 
Oct 18 2004Answer brief on the merits filed
 
Oct 27 2004Amicus curiae brief filed
 
Nov 8 2004Amicus curiae brief filed
 
Nov 17 2004Reply brief filed (case fully briefed)
 
Nov 19 2004Amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website