Supreme Court of California Justia
Citation 44 Cal. 4th 63, 186 P.3d 10, 78 Cal. Rptr. 3d 530
People v. Towne

Filed 6/26/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S125677
v.
Ct.App. 2/4 B166312
SHAWN TOWNE,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. PA040926

Defendant Shawn Towne was charged with multiple offenses ranging from
kidnapping and robbery to “joyriding,” but was convicted of only the last offense.
He contends that imposition of the upper-term sentence on that offense violated
his Sixth Amendment right to a jury trial on facts that were used to increase his
sentence above the statutory maximum, as that right has been interpreted in
Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We conclude the
aggravating circumstance that a defendant served a prior prison term or was on
probation or parole at the time the crime was committed may be determined by a
judge and need not be decided by a jury. In addition, the aggravating
circumstance that a defendant’s prior performance on probation or parole was
unsatisfactory may be determined by a judge, so long as that determination is
based upon the defendant’s record of one or more prior convictions.
Defendant also contends that in imposing sentence, the trial court is
prohibited by federal constitutional principles and state law from making findings
1


of fact that are inconsistent with the jury’s verdict acquitting the defendant on
other counts. We conclude that because facts considered by the court in selecting
the appropriate sentence within the available sentencing range need not be proved
beyond a reasonable doubt, a trial court, in this setting, is not prohibited from
considering evidence underlying charges of which a defendant has been acquitted.
I.
In the very early morning hours of April 1, 2002, defendant was engaged in
male prostitution activity. Noe Arana picked him up on a street corner in
Hollywood. Arana testified that he stopped at two hotels to which he was directed
by defendant, but the two men did not check into either one. After driving for
some time, Arana decided to head toward the San Fernando Valley to find a room,
because he was more familiar with that area. During the drive, defendant fell
asleep. Arana drove to an area off the freeway, where he stopped the car and
tapped defendant on the shoulder. Arana testified defendant “just went crazy”
after being awakened, and began hitting him. The two men struggled, eventually
falling to the ground outside the car. Arana testified he was frightened and got
into the driver’s seat of the car to escape, but defendant removed the keys from the
ignition. Defendant told Arana he intended to tie him up and take his car.
Defendant then bound Arana’s hands and got into the driver’s seat.
Defendant drove with Arana, stopped several times, made phone calls, and
searched through the car. According to Arana, defendant demanded money and
took Arana’s wallet. Arana gave defendant the personal identification numbers for
his credit cards, which were in the wallet. Eventually defendant stopped at a
convenience store and left the vehicle to use an automatic teller machine.
Defendant told Arana not to move or he would kill him. Arana took the threat
seriously and was frightened, but he managed to untie his hands and fled. He ran
to a nearby condominium complex where he knocked on doors, telling residents
2
that he had been kidnapped, his car had been stolen, and they should summon the
police. One of the residents testified at trial that when Arana came to her door, he
appeared to be frantic and terrified for his life. She called 911 at his request.
Later, about 10:15 a.m., a Los Angeles police officer responded to a stolen
vehicle tracking-system alert and pulled over Arana’s vehicle. Defendant exited
from the vehicle, put his hands in the air, and said, “This car is stolen. I had
nothing to do with it, but my friend stole it.” After police officers took defendant
into custody, he stated: “This car is a friend’s. I’m going to meet him right now
in the valley. Some guy beat me up this morning in the car in Orange County, and
I’m going to the nearest police station to report that some guy beat me up. I’m the
victim here.” Arana’s sunglasses, wallet, and jacket were missing from his car.
Defendant testified in his own defense. Consistent with Arana’s version of
the events, he testified that as they drove and looked for a room, he fell asleep in
Arana’s car. According to defendant, however, when he awakened Arana was on
top of him, strangling him with a cell phone recharger cord. When the fight
ended, defendant tried to call 911 on his cell phone but the call did not go through.
Defendant testified that Arana promised not to “try anything stupid” and offered to
let defendant tie his hands. Arana sat in the car and put his hands out the window
so that defendant could tie them. Defendant testified that Arana apologized and
said he did not intend to kill defendant. Defendant drove, making several stops,
and untied Arana’s hands before going into a store to buy drinks for both of them.
Defendant asserted that Arana offered to pay him $400 not to report the incident to
the police and gave him his credit cards with the personal identification numbers.
Defendant went into the convenience store to use the automatic teller machine.
When he looked back, he saw that Arana no longer was in the car. Defendant
eventually drove the car home. Thereafter, he telephoned the registered owner of
3
the car and was in the process of driving it back to the valley to return it when he
was arrested.
Defendant was charged with carjacking (Pen. Code, § 215, subd. (a)),1
kidnapping (§ 207, subd. (a)), second degree robbery (§ 211), grand theft of an
automobile (§ 487, subd. (d)), making criminal threats (§ 422), kidnapping to
commit carjacking (§ 209.5, subd. (a)), kidnapping to commit robbery (§ 209,
subd. (b)(1)), and “joyriding” (Veh. Code, § 10851, subd. (a)). The information
alleged that defendant previously had been convicted of violating Vehicle Code
section 10851, making him subject to increased punishment on the grand theft and
joyriding charges. (Veh. Code, § 10851, subd. (e); Pen. Code, § 666.5, subd. (a).)
The information also alleged, as to all counts, that defendant had three prior felony
convictions, making him ineligible for probation (§ 1203, subd. (e)(4)); that
defendant had three prior convictions for which he had served a prison term and
had failed to remain free of custody or of another felony conviction for five years
following those terms, making him subject to a sentence enhancement of one year
for each separate prison term previously served (§ 667.5, subd. (b)); that defendant
previously had been convicted of robbery, a serious felony, making him subject to
a five-year sentence enhancement on any current serious felony conviction (§ 667,
subd. (a)(1)); and that defendant previously had been convicted of robbery, a
serious felony within the meaning of the “Three Strikes” law, subjecting him to a
doubling of any determinate term imposed for a current felony conviction (§§ 667,
subd. (e)(1), 1170.12, subd. (c)(1)).

1
All further undesignated statutory references are to the Penal Code unless
otherwise noted.
4


The jury acquitted defendant on the first seven counts and found him guilty
only on count 8, felony joyriding in violation of Vehicle Code section 10851,
subdivision (a). Defendant waived his right to a jury trial on the special
allegations and admitted all the alleged prior convictions, including two that
resulted in separate prison terms.
The punishment prescribed for a person convicted of violating Vehicle
Code section 10851 who previously has been convicted of a felony violation of
that section is two, three, or four years. (Veh. Code, § 10851, subd. (e); Pen.
Code, § 666.5, subd. (a).) The probation report recommended the high term based
upon the absence of any mitigating factors and the presence of the following five
aggravating factors:
(1)
Defendant had engaged in a pattern of violent conduct, indicating he
posed a serious danger to society. (Cal. Rules of Court, rule 4.421(b)(1).)
(2)
Defendant had served prior prison terms. (Rule 4.421(b)(3).)
(3)
Defendant’s prior performance on probation or parole was
unsatisfactory. (Rule 4.421(b)(5).)
(4)
Defendant’s prior convictions as an adult were numerous and of
increasing seriousness. (Rule 4.421(b)(2).)
(5)
Defendant was on parole when the crime was committed. (Rule
4.421(b)(4).)
The court sentenced defendant to four years in state prison, the upper term
for a violation of Vehicle Code section 10851 for a person with a prior conviction
for the same offense, a term that was doubled under the Three Strikes law because
of defendant’s prior robbery conviction, for a total term of eight years. The court
selected the upper term based upon (1) its conclusion that the crime itself was
aggravated because the victim was afraid for his life, and (2) defendant’s lengthy
criminal history. The court noted it believed that both defendant and the victim
5
had testified falsely on some matters, but it was convinced, based upon the
testimony of other witnesses, that the victim had been terrified.
In the Court of Appeal defendant argued, among other points, that the trial
court abused its discretion in imposing the upper term based upon factual findings
by the court that conflicted with the jury’s findings. Specifically, the trial court
found that the victim had been afraid for his life, which defendant argued was
inconsistent with the jury’s decision to acquit on all counts that involved force or
violence — namely, kidnapping, assault, and carjacking. The Court of Appeal
rejected defendant’s argument, concluding that the trial court’s findings were not
inconsistent with the jury’s verdict and that — even if there was error — any error
was harmless, because the trial court also relied upon the proper aggravating factor
of defendant’s criminal history. We granted review.
II.
While defendant’s case was pending in this court, the United States
Supreme Court held in Cunningham, supra, 549 U.S. 270, that California’s
determinate sentencing law (DSL) violated a defendant’s right to a jury trial to the
extent it permitted a judge to impose an upper-term sentence in the absence of an
aggravating factor established by the jury’s verdict, the defendant’s admissions, or
the defendant’s prior conviction. In Apprendi v. New Jersey (2000) 530 U.S. 466,
490 (Apprendi), the United States Supreme Court held that “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.” Subsequently, in
Blakely v. Washington, the high court clarified that the “prescribed statutory
maximum” for purposes of the right to a jury trial is not necessarily the maximum
penalty provided by statute for the crime; rather, it 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 v. Washington (2004) 542 U.S. 296, 303
6
(Blakely).) As thereafter explained in Cunningham, “under the Sixth Amendment,
any fact that exposes a defendant to a greater potential sentence must be found by
a jury, not a judge, and established beyond a reasonable doubt, not merely by a
preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. __ [127
S.Ct. at pp. 863-864].)
In Cunningham, the high court overruled our prior decision in People v.
Black (2005) 35 Cal.4th 1238 (Black I), which had upheld the California DSL
against a Sixth Amendment challenge. The high court noted that under the
California DSL, an upper-term sentence could be imposed only if the trial judge
found an aggravating circumstance, and that an element of the offense established
by the jury’s verdict does not qualify as an aggravating circumstance. “Instead,
aggravating circumstances depend on facts found discretely and solely by the
judge. In accord with Blakely, therefore, the middle term prescribed in
California’s statutes, not the upper term, is the relevant statutory maximum.”
(Cunningham, supra, 549 U.S. at p.__ [127 S.Ct. at p. 868]; see § 1170, subd.
(b).)2
Applying Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II),
we decided two issues that control the outcome of defendant’s Sixth Amendment
claim. First, we held in Black II that if a single aggravating factor has been
established in a manner consistent with Blakely and Cunningham — by the jury’s

2
In response to Cunningham, our Legislature amended the DSL, effective
March 30, 2007. (Stats. 2007, ch. 3.) References to section 1170 are to the law as
it read prior to those amendments unless otherwise noted.

In response to the Legislature’s amendment of the DSL, the Judicial
Council amended the sentencing rules, effective May 23, 2007. References to the
California Rules of Court are to the rules as they read prior to those amendments
unless otherwise noted.
7


verdict, the defendant’s admissions, or the fact of a prior conviction — the
imposition by the trial court of the upper term does not violate the defendant’s
Sixth Amendment right to a jury trial, regardless of whether the trial court
considered other aggravating circumstances in deciding to impose the upper term.
“[S]o long as a defendant is eligible for the upper term by virtue of facts that have
been established consistently with Sixth Amendment principles, the federal
Constitution permits the trial court to rely upon any number of aggravating
circumstances in exercising its discretion to select the appropriate term by
balancing aggravating and mitigating circumstances, regardless of whether the
facts underlying those circumstances have been found to be true by a jury.”
(Black II, supra, 41 Cal.4th at p. 813.)
Second, we held that the right to a jury trial does not apply to the
determination of the aggravating circumstance that “[t]he defendant’s prior
convictions . . . are numerous or of increasing seriousness.” (Cal. Rules of Court,
rule 4.421 (b)(2); see Black II, supra, 41 Cal.4th at pp. 818-820.) The decisions of
the United States Supreme Court that culminated in Cunningham consistently have
acknowledged that the right to a jury trial does not apply to the fact of a prior
conviction. (Cunningham, supra, 549 U.S. at p.__ [127 S.Ct. at p. 868]; Blakely,
supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres
v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) “[R]ecidivism . . . is
a traditional, if not the most traditional, basis for a sentencing court’s increasing an
offender’s sentence.” (Almendarez-Torres, supra, 523 U.S. at p. 243.) We
concluded in Black II that the so-called Almendarez-Torres exception for the fact
of a prior conviction permits the trial court to decide whether a defendant’s
convictions are “numerous or of increasing seriousness.” (Black II, supra, 41
Cal.4th at pp. 818-820.)
8
Black II compels the conclusion that defendant was not denied his right to a
jury trial under Cunningham.3 His criminal history made him eligible for the
upper-term sentence. As observed ante, page 5, the probation report listed four
aggravating circumstances related to defendant’s recidivism: prior convictions
that were numerous or of increasing seriousness, prior prison terms, being on
parole at the time the crime was committed, and prior unsatisfactory performance
on probation or parole. It is clear that at least two of these aggravating
circumstances were established in accordance with Blakely and Cunningham
that defendant’s prior convictions were numerous and that he had served prior
prison terms. The probation report listed 10 prior convictions over an eight-year
period. As we decided in Black II, supra, 41 Cal.4th at pages 819-820, the trial
court had the authority to make a finding that defendant’s prior convictions were
numerous. Furthermore, defendant waived his right to a jury trial and admitted
allegations that he had served two prison terms for those convictions.4 We may
assume that the trial court intended by its reference to defendant’s criminal history
to include at least these two aggravating factors.5 Therefore, imposition of the

3
Preliminarily, the Attorney General argues that defendant has forfeited his
right to raise the jury-trial issue, because he did not object in the trial court to the
sentencing procedure. We concluded in Black II, with respect to sentencing
proceedings preceding the Blakely decision, that a claim of sentencing error under
the principles established in Blakely is not forfeited by counsel’s failure to object.
(Black II, supra, 41 Cal.4th at pp. 810-812.)
4
Because the trial court struck the enhancements that were based upon
defendant’s prior prison terms, it was free to consider those terms as an
aggravating factor. (See § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).)
5
As noted above, the probation report listed four separate aggravating
circumstances based upon defendant’s criminal history. The trial court’s
statement that it was relying on defendant’s “extensive criminal history” does not
clearly express whether the court intended to refer only to his prior convictions or
also to include the other three factors related to his criminal history.
9


upper term did not violate defendant’s Sixth Amendment right to a jury trial under
Cunningham.
With the exception of the factor of numerous or increasingly serious prior
convictions, Black II did not determine whether a defendant has the right to a jury
trial on the recidivism-related aggravating factors listed in California Rules of
Court, rule 4.421(b) — that is, the factors of service of a prior prison term,
commission of the current offense while on probation or parole, and unsatisfactory
performance on probation or parole. Whether the Almendarez-Torres exception to
the right to a jury trial on aggravating circumstances applies to findings on these
factors is a question that has not been resolved by the decisions of the United
States Supreme Court. Although it is not necessary to our resolution of the present
case to address that question, we do so in order to ensure consistency in the
application of the Almendarez-Torres exception in the California appellate courts.
Defendant observes that the high court in its recent decisions consistently
has referred to the Almendarez-Torres exception as applying to “the fact of a prior
conviction.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868]; see
Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.)
Defendant urges us to construe the exception as narrowly as possible because, in
his view, the rationale for the Almendarez-Torres exception has been undermined
by subsequent high court decisions.
It is true that, as we noted in Black II, some of the language in Almendarez-
Torres, supra, 523 U.S. at pages 230-235, is inconsistent with the court’s later
reasoning in Apprendi and Blakely. (Black II, supra, 41 Cal.4th at p. 819, fn. 8.)
In deciding in Almendarez-Torres whether the defendant was entitled to a jury trial
on the federal sentencing factor of a prior conviction, the high court focused upon
whether Congress — in referring to the fact of prior conviction — intended to
create an element of a crime or a sentencing factor. Subsequently, in Apprendi
10
and Blakely, the high court abandoned that approach and focused upon whether
the factual finding at issue increased the maximum potential penalty for the
offense. Nevertheless, the court has continued to exempt “the fact of a prior
conviction” from the Sixth Amendment’s requirement that a fact exposing a
defendant to a higher sentence be proved to a jury beyond a reasonable doubt.
(See Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301;
Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860]; United States v.
Booker (2005) 543 U.S. 220, 245.)
Despite the narrow language employed by the United States Supreme
Court, most federal appellate court decisions have declined to limit the “prior
convictions” exception to the mere fact of a prior conviction. Rather, they agree
that a judge may make factual findings on a variety of issues that are related to a
defendant’s recidivism. (See, e.g., United States v. Corchado (10th Cir. 2005) 427
F.3d 815, 820 [exception extends to “subsidiary findings,” including whether the
defendant was on probation when he committed the crime]; United States v.
Carillo-Beltran (8th Cir. 2005) 424 F.3d 845, 848 [no right to a jury trial on the
question whether a prior conviction described under an alias is attributable to the
defendant]; United States v. Hollingsworth (6th Cir. 2005) 414 F.3d 621, 623
[judge may determine whether a prior conviction was for a crime of violence];
United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142 [judge may make a
finding that the defendant was on probation when he committed the offense; the
exception for a prior conviction logically encompasses “the conviction itself and
the type and length of a sentence imposed”]; United States v. Kempis-Bonola (8th
Cir. 2002) 287 F.3d 699, 703 [“sentencing-related circumstances of recidivism,”
including the aggravated nature of a prior felony conviction, “are facts that may be
found by the sentencing judge and are not within the scope of Apprendi’s
11
holding”]; United States v. Santiago (2d Cir. 2001) 268 F.3d 151, 156 [whether
prior convictions arose from offenses committed on different occasions “is not a
fact which is different in kind from the types of facts already left to the sentencing
judge by Almendarez-Torres and Apprendi,” even if that fact is more likely to be
contested]; but see Butler v. Curry (9th Cir. 2008) __F.3d__, 2008 WL 2331440,
[fact of being on probation at the time of the crime does not come within the
Almendarez-Torres exception].)
A majority of the state appellate courts that have addressed the issue before
us also have concluded that the Almendarez-Torres exception is not limited to the
mere circumstance of a prior conviction, but extends to other facts arising out of a
prior conviction, including a defendant’s parole or probation status and service of
a prior prison term. (State v. Jones (Wash. 2006) 149 P.3d 636, 642 [“[l]ike the
inquiry associated with the fact of a prior conviction,” an inquiry into whether the
defendant was on community placement at the time of the offense “(1) is
inherently reliable, (2) arises out of a prior conviction based upon a finding of
guilt by a trier of fact or the defendant’s guilty plea, and (3) is the type of inquiry
traditionally performed by judges as part of the sentencing function”]; State v.
Fagan (Conn. 2006) 905 A.2d 1101, 1117 [whether offense was committed while
the defendant was released on bond involves a legal determination “and,
accordingly, he was not entitled to a jury determination on the issue of his status”];
Ryle v. State (Ind. 2005) 842 N.E.2d 320, 323-325 [circumstance that the
defendant was on probation at the time of the offense need not be proved to a jury
when it is conclusively established by court and prison records]; State v. Allen
(Minn. 2005) 706 N.W.2d 40, 48 [“[T]he fact a defendant was on probation at the
time of the current offense arises from, and is so essentially analogous to, the fact
of a prior conviction, that constitutional considerations do not require it to be
determined by a jury. [Citation.][¶] . . . Like the fact or character of a prior
12
conviction, a defendant’s custody status can be determined by reviewing court
records relating to that conviction”]; State v. Stewart (Md. 2002) 791 A.2d 143,
152 [the defendant is not entitled to a jury trial in determining whether he had
served at least one term of confinement of at least 180 days in a correctional
institution, because that is a fact related to recidivism, “a question that traditionally
has been reserved for the sentencing court”].)
A small minority of state courts have reached a different conclusion. The
North Carolina Court of Appeal held that the prior conviction exception to the
right to jury trial did not extend to the circumstance that defendant committed the
offense while on probation. (State v. Wissink (N.C.Ct.App. 2005) 617 S.E.2d 319,
324-325.) The court reasoned that it was bound by language in Blakely and
Apprendi that limits the exception to the fact of a prior conviction. (State v.
Wissink, at p. 325.) In addition, the court noted that “the fact of defendant’s
probationary status did not have the procedural safeguards of a jury trial and proof
beyond a reasonable doubt recognized in Apprendi as providing the necessary
protection for defendants at sentencing.” (Ibid.) Arizona’s intermediate appellate
court and Oregon’s high court have reached similar conclusions. (See State v.
Gross (Ariz.Ct.App. 2001) 31 P.3d 815 [right to jury trial applies to the
circumstance that defendant was on release status at the time of the offense; the
narrow exception for prior convictions recognized in Apprendi cannot be
expanded to include other facts]; accord, State v. Benenati (Ariz.Ct.App. 2002) 52
P.3d 804, 810; State v. Steele (Or. 2006) 134 P.3d 1054 [increase in sentence
based upon defendant’s persistent involvement in similar offenses or being on
supervision at the time of offense requires a jury determination].)
The evolution of the United States Supreme Court’s Sixth Amendment
sentencing jurisprudence leaves us with limited guidance as to whether it would
apply the Almendarez-Torres exception to the circumstance that a defendant was
13
on probation or parole at the time of the offense, or that a defendant served a prior
prison term. Nevertheless, we agree with the majority of state and federal
decisions holding that the federal constitutional right to a jury trial and proof
beyond a reasonable doubt on aggravating circumstances does not extend to the
circumstance that a defendant was on probation or parole at the time of the offense
or has served a prior prison term.
We previously have rejected a narrow or literal application of the high
court’s reference to “the fact of a prior conviction.” In People v. McGee (2006) 38
Cal.4th 682, 706 (McGee), we held that a trial court may, consistent with
Apprendi, determine “ ‘the nature or basis’ of a defendant’s prior conviction
specifically, whether that conviction qualified as a conviction of a serious felony.”
Because McGee involved a conviction in another jurisdiction for a crime whose
elements did not necessarily correspond with those of a California serious felony,
such a determination would require the trial court to examine the record of the
earlier criminal proceeding. “The need for such an inquiry does not contemplate
that the court will make an independent determination regarding a disputed issue
of fact relating to the defendant’s prior conduct [citation], but instead that the court
simply will examine the record of the prior proceedings to determine whether that
record is sufficient to demonstrate that the conviction is of a type that subjects the
defendant to increased punishment under California law. This is an inquiry that is
quite different from the resolution of the issues submitted to a jury, and is one
more typically and appropriately undertaken by a court.” (McGee, supra, 38
Cal.4th at p. 706.) In McGee, and more recently in Black II, we cited with
approval the decision of the Court of Appeal in People v. Thomas (2001) 91
Cal.App.4th 212, 221-222, which held that the Almendarez-Torres exception
applies to the circumstance that the defendant had served a prior prison term. (See
McGee, supra, 38 Cal.4th at pp. 700-701; Black II, supra, 41 Cal.4th at p. 819.)
14
We have noted that in Apprendi, the high court pointed to three factors that
distinguish recidivism from other matters employed to enhance punishment:
“(1) recidivism traditionally has been used by sentencing courts to increase the
length of an offender’s sentence, (2) recidivism does not relate to the commission
of the charged offense, and (3) prior convictions result from proceedings that
include substantial protections.” (McGee, supra, 38 Cal.4th at p. 698, citing
Apprendi, supra, 530 U.S. at pp. 487-488.) Applying these three factors to the
aggravating circumstances at issue in the present case, we conclude that service of
a prior prison term and the commission of an offense while on probation or parole
are, like the fact of a prior conviction, distinguishable from other matters
employed to enhance punishment.
First, Almendarez-Torres referred generally to “recidivism” as a traditional
basis for increasing an offender’s sentence. (Almendarez-Torres, supra, 523 U.S.
at pp. 230, 243.) A defendant who has committed another offense after a prior
conviction, after serving a prison term, or while on probation or parole,
demonstrates that he or she is less amenable to rehabilitation than a person who has
not done so and, accordingly, such a defendant is more deserving of punishment.
These aggravating circumstances, like prior convictions, are aspects of recidivism.
Second, as Apprendi noted, the Almendarez-Torres decision emphasized
that recidivism is not related to the commission of the present offense. (Apprendi,
supra, 530 U.S. at p. 488, citing Almendarez-Torres, supra, 523 U.S. at p. 243.)
Likewise, a defendant’s service of a prior prison term is not related in any way to
the commission of the charged offense. In this respect, a prior prison term is
indistinguishable from a prior conviction.
A defendant’s commission of an offense while on probation or parole does
relate to the charged offense in that the defendant’s parole or probation status must
exist on the date of the offense. The date of the offense, however, ordinarily is
15
established by the jury’s verdict. In determining whether the offense was
committed while the defendant was on probation or parole, the trial court is not
required to make any factual finding regarding the charged offense. It need only
determine the period during which the defendant was on probation or parole and
compare those dates to the date of the charged offense, as found by the jury. The
trial court may find this aggravating circumstance to exist, without engaging in
any factfinding regarding the charged offense. Accordingly, a trial court’s
conclusion that the charged offense was committed while the defendant was on
probation or parole, like a finding of a prior conviction, does not require judicial
factfinding regarding the charged offense.
Third, the decision in Apprendi noted “the certainty that procedural
safeguards attached to any ‘fact’ of prior conviction.” (Apprendi, supra, 530 U.S.
at p. 488.) Similarly, in Jones v. United States (1999) 526 U.S. 227, 249, the high
court explained that “unlike virtually any other consideration used to enlarge the
possible penalty for an offense . . . a prior conviction must itself have been
established through procedures satisfying the fair notice, reasonable doubt, and
jury trial guarantees.” The circumstance that a defendant was on probation or
parole or served a prior prison term arises out of a prior conviction and results
from procedures that were conducted in accordance with constitutional
requirements designed to ensure a fair and reliable result. Furthermore, the
circumstance of a prior prison term or of probation or parole status ordinarily is
well documented in the same type of official records used to establish the fact and
nature of a prior conviction — court records, prison records,6 or criminal history
records maintained by law enforcement agencies.7

6
Penal Code section 969b provides that prison records or copies of such
records, if certified by the custodian of records, are admissible as prima facie
(footnote continued on next page)
16


Defendant contends that a jury trial nevertheless is required, because any of
these recidivism factors may be in dispute in a particular case. (See, e.g., People
v. Willis (2002) 28 Cal.4th 22 [evidence found in a warrantless parole search was
suppressed because the information obtained by the police concerning defendant’s
parole status was erroneous]; People v. Seals (1993) 14 Cal.App.4th 1379
[because the defendant had served a term in the California Youth Authority, the
finding that he had served a prior prison term depended on whether he had been
directly committed to the Youth Authority or merely been housed there].) The
same is true, however, regarding the simple fact of a prior conviction. For
example, if an alias was used in committing the prior crime, there could be a
factual issue as to whether the defendant is the person who was convicted. (See,
e.g., People v. Belmares (2003) 106 Cal.App.4th 19 [the defendant had no
constitutional right to a jury trial on the issue of his identity as the person
previously convicted]; People v. Garcia (2003) 107 Cal.App.4th 1159 [same].)
We see no reason why the high court’s recognition of an exception to the right to
jury trial on prior conviction allegations should not encompass the circumstances
that the defendant served a prior prison term or committed an offense while on
probation or parole.

(footnote continued from previous page)
evidence that a person has been convicted of a crime and has served a term of
imprisonment for that crime.
7
See People v. Martinez (2000) 22 Cal.4th 106 (trial court did not abuse its
discretion in admitting computerized criminal history records maintained by the
Department of Justice and by the Los Angeles County Sheriff’s Department as
evidence demonstrating that defendant had sustained prior convictions and served
separate prison terms).
17


Whether the aggravating circumstance of a defendant’s prior unsatisfactory
performance on probation or parole comes within the Almendarez-Torres
exception, in contrast, will depend upon the evidence by which that circumstance
is established in a particular case. In some instances, the defendant’s
unsatisfactory performance on probation or parole is proved by evidence
demonstrating that, while previously on probation or parole, he committed and
was convicted of new offenses. For example, in People v. Yim (2007) 152
Cal.App.4th 366, 370, the Court of Appeal upheld the trial court’s finding that the
defendant had performed unsatisfactorily on parole, based upon evidence
establishing that he was on probation or parole at the time he committed two prior
offenses and was on parole when he committed the most recent offense. “Each
time appellant has been granted probation or parole, he has reoffended.” (Ibid.)
The Court of Appeal in Yim also concluded that a jury trial on this aggravating
factor was not required, because the factor was related to recidivism and could be
“determined by reference to ‘court records’ pertaining to appellant’s prior
convictions, sentences and paroles. The mere recitation of his dates of conviction
and releases on parole [citation] demonstrate[s], as a matter of law, that he
committed new offenses while on parole.” (Id. at p. 371.) Similarly, in the
present case, defendant’s criminal history, as recited in the probation report,
indicates that several of his prior convictions occurred while he was on probation.
When a defendant’s prior unsatisfactory performance on probation or parole is
established by his or her record of prior convictions, it seems beyond debate that
the aggravating circumstance is included within the Almendarez-Torres exception
and that the right to a jury trial does not apply.
On the other hand, in some instances, a finding of unsatisfactory
performance could be based upon other evidence of misconduct that was not
previously adjudicated in a criminal trial. For example, a presentence report might
18
allege that the defendant did not appear for appointments, failed a drug test, or
stopped attending counseling sessions as directed. Such assertions may be based
on information obtained from the probation officer or others and may be open to
dispute.
In circumstances in which a finding of poor performance on probation or
parole can be established only by facts other than the defendant’s prior
convictions, we conclude that the right to a jury trial applies to such factual
determinations. In that situation, only one of the three factors discussed ante,
pages 15-17, suggests a basis for treating poor performance on probation or parole
in the same manner as a prior conviction: the factor that poor performance is an
aspect of recidivism. The other two factors, however, point toward the opposite
conclusion. As to the second factor, although a defendant’s prior conduct while
on probation or parole may not involve the present offense, neither does it relate to
a prior conviction. Thus, determining whether a defendant’s performance on
probation or parole has been unsatisfactory often entails a type of factfinding very
different from what ordinarily occurs in resolving the question of whether a
defendant suffered a prior conviction.
With reference to the third factor, a finding of poor performance based
upon evidence other than prior convictions does not necessarily include the
procedural safeguards that are associated with prior convictions. Even if the trial
court’s finding of unsatisfactory performance is based upon a prior revocation of
probation or parole, the proceedings that result in such revocation do not entail the
same procedural safeguards as a criminal trial. Due process requires that a parolee
receive notice of the claimed violation and an opportunity to be heard and to
present evidence before a neutral body. (Morrissey v. Brewer (1972) 408 U.S.
471, 485-490; see also § 3060.) Similar procedural protections are required for
revocation of probation. (People v. Vickers (1972) 8 Cal.3d 451, 458-461; see
19
also § 1203.2.) The right to a jury trial and the requirement of proof beyond a
reasonable doubt, however, do not apply in revocation proceedings. (See
§§ 1203.2, subd. (a) & 3060; see also Morrissey v. Brewer, supra, 408 U.S. at
p. 480 [“the full panoply of rights due a defendant in [a criminal proceeding] does
not apply to parole revocations”].) Accordingly, we doubt that the United States
Supreme Court would conclude that a defendant’s prior unsatisfactory
performance on probation or parole is included within the exception the court has
recognized for “the fact of a prior conviction,” unless that circumstance is
established by defendant’s history of prior convictions.
III.
The remaining question is whether defendant’s statutory or constitutional
rights were violated because the trial court, in exercising its discretion to select
among the terms for which defendant was eligible, took into account facts that the
jury implicitly found not to be true. Defendant contends the trial court’s reliance
upon its own conclusion that the victim was put in fear is in direct conflict with the
jury’s decision to acquit defendant of all charges involving the element of force or
fear. Defendant contends that the sentencing court’s consideration of evidence
underlying counts of which he was acquitted constitutes an improper exercise of
discretion under California law and also violates his double jeopardy rights under
the federal Constitution and related rights to a jury trial, to proof beyond a
reasonable doubt, and to due process of law.
A long-standing and unresolved split exists among the Courts of Appeal as
to whether, under California law, a sentencing court may rely upon facts
underlying charges on which the defendant was acquitted. In People v.
Takencareof (1981) 119 Cal.App.3d 492, 498 (Takencareof), the appellate court
concluded that “[i]t would be anomalous to hold that if the jury finds the defendant
not guilty of a count utilizing the constitutionally exacting standard of proof
20
beyond a reasonable doubt, he should face the same alleged crime at sentencing
under a preponderance of evidence standard.” The defendant in Takencareof was
convicted of burglary but acquitted of arson. The trial court justified its decision
to deny probation by citing the substantial financial and other impacts of the arson
offense. In support of its conclusion that the trial court had erred, the Court of
Appeal did not cite any statute or constitutional provision, relying instead upon
this court’s decision in People v. Richards (1976) 17 Cal.3d 614 (Richards). In
Richards, we held that a trial court could not order restitution to a victim of a
purported crime of which the defendant was acquitted. We stated, “In the course
of convincing a jury to doubt his guilt on one charge, a defendant should not have
the additional task of persuading the judge regarding the subsequent sentencing
disposition on other charges.” (Richards, supra, 17 Cal.3d at p. 624.)
Takencareof distinguished two decisions of this court, which held that
evidence of a crime for which a defendant has been acquitted may be considered at
a probation revocation hearing (In re Coughlin (1976) 16 Cal.3d 52) and a parole
revocation hearing (In re Dunham (1976) 16 Cal.3d 63). In those cases, we
rejected arguments that consideration of such conduct violates double jeopardy or
due process principles, and held that proof beyond a reasonable doubt is not
required in these proceedings. (In re Coughlin, supra, at pp. 55-60; In re Dunham,
supra, at pp. 66-67.) “[T]he fact of an acquittal establishes only that the trier of
fact entertained a reasonable doubt of defendant’s guilt.” (In re Coughlin, at
p. 59.) Such a doubt does not preclude revocation of probation or parole. The
Court of Appeal in Takencareof concluded that these cases were inapplicable.
“The violation of the probationer’s or parolee’s status subjects him to commitment
or return to prison on the original charge if the decisionmaking body determines
that his continued freedom is inimical to society’s safety. Although the order of
21
commitment in the instant case was on the basis of the burglary [of which the
defendant was convicted], Takencareof, a first offender whose liberty was not
restricted by probation or parole, was in reality sent to prison on a charge of which
he was acquitted. This was error.” (Takencareof, supra, 119 Cal.App.3d at
p. 500.)
Two decisions rendered subsequent to Takencareof reached a different
conclusion. In People v. Levitt (1984) 156 Cal.App.3d 500 the defendant was
charged with murder but was convicted of only voluntary manslaughter. The
Court of Appeal upheld the trial court’s determination that the victim was
particularly vulnerable. The appellate court held that the trial court, while
rejecting testimony indicating that the defendant had been attacked, could have
concluded nonetheless that the defendant killed the victim because the victim was
a witness to another crime. Thus, the reviewing court reasoned, the victim was
more vulnerable than the usual manslaughter victim because he did nothing to
provoke the attack and simply was in the wrong place at the wrong time. (Id. at
p. 515.) The appellate court acknowledged that “this view of the evidence may be
contrary to the jury’s implied findings of no malice,” but concluded that “the trial
court was entitled to take a contrary view. The jury’s verdict is not simply a
rejection of the evidence of malice; it merely meant that the jury did not feel
malice was proven beyond a reasonable doubt. The standard governing a
sentencing court is far less stringent; the court need only determine whether
aggravating factors are established by a preponderance of evidence.” (Ibid.)
Similarly, People v. Lewis (1991) 229 Cal.App.3d 259, 264-265, held that a jury’s
finding that an alleged weapon-use enhancement was not true did not preclude a
trial judge from considering the defendant’s use of a weapon as a reason to impose
a full consecutive sentence for the offense of rape.
22
As explained below, we conclude that nothing in the California sentencing
scheme or in constitutional principles concerning double jeopardy, due process, or
the right to a jury trial supports the holding in People v. Takencareof, supra, 119
Cal.App.3d 492, and accordingly we disapprove that decision.
California law affords the trial court broad discretion to consider relevant
evidence at sentencing. “[T]he court may consider the record in the case, the
probation officer’s reports, 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).) The trial court may consider any “criteria reasonably related
to the decision being made.” (Cal. Rules of Court, rule 4.408(a).) 8 The court
specifically is authorized to consider “the record in the case.” (§ 1170, subd. (b).)
Nothing in the applicable statute or rules suggests that a trial court must ignore
evidence related to the offense of which the defendant was convicted, merely
because that evidence did not convince a jury that the defendant was guilty beyond
a reasonable doubt of related offenses.
Defendant acknowledges that the United States Supreme Court has held
that the double jeopardy clause does not preclude a trial judge from considering, at
sentencing, conduct underlying a charge of which the defendant was acquitted.

8
As noted above, reference is to the rules as they existed prior to the
May 23, 2007, revisions made in response to the Legislature’s amendment of the
determinate sentencing law. (See, ante, fn. 2.) At the time of defendant’s
sentencing hearing, aggravating factors were required to be proved by only a
preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) The current
version of rule 4.420 does not specify any burden of proof for aggravating and
mitigating circumstances.
23


(United States v. Watts (1997) 519 U.S. 148, 157.) The high court reasoned that
an acquittal merely establishes the existence of a reasonable doubt as to guilt.
Unless specific findings are made, “the jury cannot be said to have ‘necessarily
rejected’ any facts when it returns a general verdict . . . .” (Id. at p. 155.) Facts
relevant to sentencing need be proved only by a preponderance of the evidence,
and “ ‘an acquittal in a criminal case does not preclude the Government from
relitigating an issue when it is presented in a subsequent action governed by a
lower standard of proof.’ ” (Id. at p. 156, quoting Dowling v. United States (1990)
492 U.S. 342, 349.) We previously have endorsed the same reasoning in rejecting
due process and double jeopardy challenges to the use of evidence of a crime of
which the defendant has been acquitted, for the purpose of revocation of probation
or parole. (See In re Coughlin, supra, 16 Cal.3d at p. 59; In re Dunham, supra, 16
Cal.3d at pp. 66-67.)
Nor did the sentencing judge’s consideration of conduct underlying
acquitted charges violate defendant’s Sixth Amendment right to a jury trial. We
previously have explained that “the constitutional requirement of a jury trial and
proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to
the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that
exposes a defendant to a greater potential sentence’ than is authorized by the
jury’s verdict alone (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863]).”
(Black II, supra, 41 Cal.4th at p. 812.) “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.) Because in the present case
other aggravating factors rendered defendant eligible for the upper term, the
judge’s consideration of evidence of conduct underlying counts of which
24
defendant was acquitted, in selecting the sentence, did not implicate defendant’s
constitutional rights to a jury trial or to proof beyond a reasonable doubt. 9
Defendant contends that even when a trial court exercises its discretion to
select a sentence within the statutory maximum, consideration of acts underlying
counts of which the defendant has been acquitted violates the Sixth Amendment
principles established in decisions of the United States Supreme Court, including
Apprendi, Blakely, and Cunningham. According to defendant, permitting a judge
who disagrees with the jury’s verdict of acquittal to essentially correct that verdict
by imposing a higher sentence on the offense of which the defendant was
convicted would undermine the jury’s role as the fact finder. Defendant urges this
court to adopt the rule of Takencareof in order to preserve and protect the role of
the jury.
Federal appellate courts have rejected this argument in the context of
federal sentencing law. (See, e.g., United States v. Horne (7th Cir. 2007) 474 F.3d
1004, 1006-1007; United States v. Vaughn (2d Cir. 2005) 430 F.3d 518, 526-527;
United States v. Magallanez (10th Cir. 2005) 408 F.3d 672, 684-685; United
States v. Duncan (11th Cir. 2005) 400 F.3d 1297.) These courts have applied the
same rationale employed by the United States Supreme Court in United States v.

9
Defendant argues that in a case, such as this one, in which mitigating
factors exist, the defendant is entitled to a jury trial on all aggravating factors
because, under the rules applicable at the time of defendant’s sentencing, the upper
term could not be imposed unless aggravating factors outweigh mitigating factors.
(See Cal. Rules of Court, rule 4.420(b).) We concluded in Black II that the
weighing process required to justify imposition of an upper term does not
implicate a defendant’s Sixth Amendment rights, because the weighing of
aggravating and mitigating factors is not the equivalent of a factual finding.
(Black II, supra, 41 Cal.4th at p. 814, fn. 4.) Rather, “the weighing of aggravating
and mitigating circumstances simply is a process by which the trial court selects
the most appropriate sentence in a particular case.” (Ibid.)
25


Watts, supra, 519 U.S. 148, in addressing a double jeopardy challenge: the trial
court’s consideration of conduct underlying counts of which the defendant has
been acquitted is not inconsistent with the jury’s verdict of acquittal, because a
lower standard of proof applies at sentencing. (See Horne, supra, 474 F.3d at
pp. 1006-1007 [“You can think it slightly more likely than not that a defendant
committed some crime without thinking it so much more likely that you would
vote to convict him”]; Vaughn, supra, 430 F.3d at p. 527 [“there is no logical
inconsistency in determining that a preponderance of the evidence supports a
finding about which there remains a reasonable doubt”]; Magallanez, supra, 408
F.3d at p. 685 [“when a district court makes a determination of sentencing facts by
a preponderance test under the now-advisory Guidelines, it is not bound by jury
determinations reached through application of the more onerous reasonable doubt
standard”]; Duncan, supra, 400 F.3d at p. 1304 [conduct of which the jury
acquitted the defendant may be considered at sentencing if proved by a
preponderance of the evidence].)
Permitting a judge to consider evidence of conduct underlying counts of
which the defendant was acquitted does not in any way undermine the jury’s role in
establishing, by its verdict, the maximum authorized sentence. Even if the trial
court in the present case did sentence defendant based upon a view of the evidence
that would have justified a guilty verdict on one or more of the crimes of violence
of which defendant was acquitted, the court would not thereby have been
“correcting” any perceived error in the jury’s verdict. The trial court was limited by
the jury’s verdict to imposing a sentence authorized for the crime of which the
defendant was convicted. The upper term for that offense — joyriding — was four
years, a term lower than, for example, the five-year term that would have been
available had defendant been convicted of second degree robbery (§ 213,
26
subd. (a)(2)), or the life term that would have been available had he been convicted
of kidnapping to commit robbery (§ 209, subd. (b)(1)).
Our decision in Richards, supra, 17 Cal.3d 614, upon which Takencareof
relied, is distinguishable. In Richards, the defendant was charged with two counts
of grand theft based upon fraudulent sales of mining claims, each involving a
different victim and a separate transaction. The defendant was found guilty on the
first count and not guilty on the second. We held that the trial court erred in
ordering restitution to the second victim as a condition of probation. We reasoned
that one of the goals of section 1203.1, subdivision (b), which authorizes
restitution as a reasonable condition of probation, is rehabilitation: “Restitution
imposed in a proper case and in an appropriate manner may serve the salutary
purpose of making a criminal understand that he has harmed not merely society in
the abstract but also individual human beings, and that he has a responsibility to
make them whole.” (Richards, supra, 17 Cal.3d at p. 620.) The trial court’s order
in that case, however, appeared designed to achieve a different and improper
purpose, namely “to resolve the civil liability of the criminal.” (Ibid.) We
concluded that “[i]f a restitution order is to redirect a defendant to acceptance of
responsibility for the crime he has committed, the order must be directly related to
that crime.” (Id. at p. 622.)
In contrast to Richards, in the present case the offense of which defendant
was convicted and the counts of which he was acquitted were all part of a single
series of events and involved a single victim. Accordingly, the sentence imposed
by the trial court was directly related to that offense. Because the sentence
imposed fell within the range authorized for the offense of which defendant was
convicted, that sentence is not analogous to the restitution order erroneously
imposed in Richards. That order extended beyond the losses caused by the crime
of which the defendant was convicted and held him responsible to a different
27
victim for a different and additional sum of money, thus depriving the defendant
of the benefit of his acquittal, at least as to financial consequences. Defendant in
the present case, on the other hand, received the benefit of the jury’s acquittal,
because the resulting sentence imposed by the trial court was limited to that
available for the offense of joyriding. We perceive no unfairness in permitting the
trial court, in selecting the sentence most appropriate for the crime, to take into
account all of the evidence related to defendant’s conduct in committing that
offense.
IV.
For the reasons stated above, the decision of the Court of Appeal is
affirmed.
GEORGE, C. J.

WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

28





CONCURRING OPINION BY KENNARD, J.

As the United States Supreme Court has recently stated, “the Federal
Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a
judge to impose a sentence above the statutory maximum based on a fact, other
than a prior conviction, not found by a jury or admitted by the defendant.”
(Cunningham v. California (2007) 549 U.S. 270, ___ [127 S.Ct. 856, 860], italics
added; see also Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New
Jersey (2000) 530 U.S. 466, 488-490.) In part II of its opinion here, the majority
applies that rule to certain recidivism-related provisions of the California Rules of
Court that, at the time of defendant’s trial, permitted trial courts to impose a
sentence above the statutory maximum if the defendant had “served a prior prison
term” (California Rules of Court, rule 4.421(b)(3)), if the defendant “was on
probation or parole when the crime was committed” (id., rule 4.421(b)(4)), or if
“[t]he defendant’s prior performance on probation or parole was unsatisfactory”
(id., rule 4.421(b)(5)).
The majority holds that the federal Constitution’s right to a jury trial does
not apply to determinations that the defendant has served a prior prison term or
was on probation or parole when the crime was committed (maj. opn., ante, at
p. 17). With regard to a defendant’s performance on probation or parole, the
majority holds that the jury trial right does not apply if, while on probation or
parole, the defendant committed new crimes resulting in convictions (id. at p. 18);
1



the right to a jury trial does, however, apply if “poor performance on probation or
parole can be established only by facts other than the defendant’s prior
convictions” (id. at p. 19). I agree with these conclusions. But in its analysis of
these issues, the majority relies heavily (see maj. opn., ante, at pp. 14-15) on
People v. McGee (2006) 38 Cal.4th 682 (McGee), a case in which I dissented.
Below, I explain why the majority’s holdings are consistent with my dissent in
McGee.1
I
In McGee, supra, 38 Cal.4th 682, the defendant was convicted in California
of several crimes not pertinent here, and the prosecution sought to increase his
sentence for those crimes based on two prior robbery convictions suffered in
Nevada. Under California law, the prior robberies could be used to increase the
defendant’s sentence only if they satisfied California’s statutory definition of
robbery. But as the defendant pointed out, Nevada’s definition of robbery is not
identical to California’s. Nevada, unlike California, does not require that a
robbery have the elements of specific intent to permanently deprive the victim of
property and placing the victim in fear of immediate harm.

1
Part II of the majority opinion also holds that in this case the trial court did
not violate defendant’s right to a jury trial because at least two of the aggravating
circumstances on which the trial court relied to sentence defendant to the upper
term of imprisonment were established in a manner permitted by Cunningham v.
California, supra
, 549 U.S. 270. I agree with this holding, which necessarily
follows from this court’s decision in People v. Black (2007) 41 Cal.4th 799 (Black
II
). Part III of the majority opinion holds that the trial court can, in deciding
whether to sentence a defendant to the upper term, consider facts pertaining to
charges of which the defendant was acquitted, so long as (as in this case) at least
one aggravating circumstance was established in accordance with Cunningham. I
agree with the majority’s resolution of this issue as well.
2



Thus, at issue in McGee was whether the lack of any findings on those two
statutory elements in the Nevada courts entitled the defendant to have a jury in
California, where he was on trial, determine whether these elements had been
satisfied when he committed the Nevada robberies. The majority in McGee held
that the defendant did not have the right to such a determination by the jury, and
that instead the California trial court could, after examining the records of those
prior Nevada convictions, decide that the conduct underlying the defendant’s two
Nevada robbery convictions satisfied California’s statutory definition of robbery.
(McGee, supra, 38 Cal.4th at pp. 686-687.) I disagreed.
I explained in McGee: “[W]hen the prosecution seeks to increase a
defendant’s sentence based on a prior conviction, the Sixth and Fourteenth
Amendments to the federal Constitution entitle the defendant to a jury trial, with
proof beyond a reasonable doubt, on facts pertaining to the conduct underlying the
prior conviction when . . . (1) those facts were never determined by a jury or by
the court that convicted the defendant of the prior offense, (2) those facts were
never admitted by the defendant, and (3) those facts, if found true, would increase
the defendant’s sentence beyond the statutory maximum.” (McGee, supra, 38
Cal.4th at p. 710 (dis. opn. of Kennard, J.), italics added.)
Applying that standard to the Nevada convictions at issue in McGee, I
reasoned: “[D]efendant never admitted the factual allegations pertaining to the
conduct underlying his prior Nevada convictions that are now being used in
California to increase his sentence. (He never admitted that he committed the two
robberies in Nevada with the intent to permanently deprive the victims of their
property, and that he placed the victims or persons in the victims’ company in fear
of immediate injury.) The [Nevada] trial courts that accepted defendant’s guilty
pleas to the two robbery offenses never determined the truth of those factual
allegations, and they did not provide defendant with any procedural safeguards
3

pertaining to those allegations, because his guilt of the Nevada offenses did not
turn on the truth or falsity of those allegations. The trial court in this case, based
on its determination that the factual allegations relating to the prior robbery
convictions were true, imposed a sentence beyond the statutory maximum. Thus,
by denying defendant a jury trial on the truth of those factual allegations, the trial
court violated defendant’s Sixth and Fourteenth Amendment rights to a jury trial.”
(McGee, supra, 38 Cal.4th at p. 714 (dis. opn. of Kennard, J.).)
At issue here is whether, before an aggravated sentence can be imposed, a
defendant is entitled to a jury determination that the defendant had “served a prior
prison term” (California Rules of Court, rule 4.421(b)(3)), that the defendant “was
on probation or parole when the crime was committed” (id., rule 4.421(b)(4)), or
that “[t]he defendant’s prior performance on probation or parole was
unsatisfactory” (id., rule 4.421(b)(5)). The first two of these circumstances — the
defendant’s service of a prior prison term and the defendant’s being on probation
or parole when the crime was committed — do not (unlike McGee, supra, 38
Cal.4th 682) require a determination of any factual questions pertaining to the
defendant’s conduct. Rather, the only possible factual issues that may arise —
whether the defendant was on probation when the current crime was committed,
and whether the defendant had served a prior prison term — can be resolved
simply by examining the defendant’s criminal record. As the majority here points
out, “the circumstance of a prior prison term or of probation or parole status
ordinarily is well documented in the same type of official records used to establish
the fact and nature of a prior conviction — court records, prison records, or
criminal history records maintained by law enforcement agencies.” (Maj. opn.,
ante, at p. 16, fn. omitted.) I agree with the majority that on these matters, a
defendant has no right to a jury trial.
4

With regard to the third aggravating circumstance mentioned above — the
defendant’s prior performance on probation or parole was unsatisfactory — this
presents a factual issue that is based on the defendant’s conduct. Under the
reasoning of my dissenting opinion in McGee, supra, 38 Cal.4th 682, the
defendant should ordinarily be entitled to a jury trial on this question, and the
majority here so holds. (Maj. opn., ante, at pp. 18-20.) But, as the majority notes,
sometimes a defendant’s unsatisfactory performance is shown by the defendant’s
conviction of a crime committed while the defendant was on probation or parole.
In these instances the defendant has already received the right to a jury trial on the
underlying factual issues in the earlier proceeding that resulted in the new
conviction. In the words of the majority: “When a defendant’s prior
unsatisfactory performance on probation or parole is established by his or her
record of prior convictions, it seems beyond debate . . . that the right to a jury trial
does not apply.” (Maj. opn., ante, at p. 18.) I agree.
II
For the reasons given above, I agree with the majority’s application here of
the principles the high court set forth in Cunningham v. California, supra, 549
U.S. 270, Blakely v. Washington, supra, 542 U.S. 296, and Apprendi v. New
Jersey, supra, 530 U.S. 466.
KENNARD,
J.
5

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Towne
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 5/17/04 – 2d Dist., Div. 4
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S125677
Date Filed: June 26, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Meredith C. Taylor

__________________________________________________________________________________

Attorneys for Appellant:

Suzan E. Hier, under appointment by the Supreme Court, for 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 and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Donald E. de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief
Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, Lawrence
M. Daniels, Kristofer Jorstad and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Suzan E. Hier
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300

Chung L. Mar
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2368


Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. This case presents the following issues: (1) Can a trial court use facts relating to counts on which a defendant was found not guilty as aggravating factors in determining the appropriate sentence? (2) Does Blakely v. Washington (2004) __ U.S. __, 124 S.Ct. 2531, preclude a trial court from making findings on aggravating factors in support of an upper term sentence? (3) If so, what prejudicial error standard applies, and was the error in this case prejudicial?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 06/26/200844 Cal. 4th 63, 186 P.3d 10, 78 Cal. Rptr. 3d 530S125677Review - Criminal Appealclosed; remittitur issued

PEOPLE v. BLACK (S126182)
PEOPLE v. TORRES (S148670)
PEOPLE v. HERNANDEZ (S148992)
PEOPLE v. HOLDAWAY (S149022)
PEOPLE v. RESTO (S149244)
PEOPLE v. TINAJERO (S149418)
PEOPLE v. BACON (S149595)
PEOPLE v. GREEN (S149670)
PEOPLE v. SHCHIRSKIY (S150129)
PEOPLE v. WILSON (S150303)
PEOPLE v. FONSECA (S150771)
PEOPLE v. COSTA (S151236)
PEOPLE v. AGUILLAR (S151339)
PEOPLE v. MARTINEZ (S151498)
PEOPLE v. SARGEANT (S152292)
PEOPLE v. MARROQUIN (S152563)
PEOPLE v. HEIMS (S152922)
PEOPLE v. REIBSTEIN (S152930)
PEOPLE v. ORTIZ (S152996)
PEOPLE v. RIZO (S153176)
PEOPLE v. STEELE (S153296)
PEOPLE v. SANTACRUZ (S153433)
PEOPLE v. PACHECO (S153739)
PEOPLE v. PEREZ (S153741)
PEOPLE v. EVANS (S153757)
PEOPLE v. LOPEZ (S153829)
PEOPLE v. GEORGE (S154071)
PEOPLE v. BALDWIN (S154264)
PEOPLE v. MACKLIN (S154280)
PEOPLE v. GARCIA (S154416)
PEOPLE v. TORRES (S154461)
PEOPLE v. MARIANI (S154471)
PEOPLE v. CAESAR (S154793)
PEOPLE v. PEREZ (S154845)
PEOPLE v. BROWN (S155093)
PEOPLE v. AZAM (S156008)
PEOPLE v. GUERRERO (S156049)
PEOPLE v. MACIAS (S156127)
PEOPLE v. ZUNIGA (S156327)
PEOPLE v. GOODSBY (S156854)
PEOPLE v. MACMANUS (S157369)
PEOPLE v. RAMOS (S157451)
PEOPLE v. BROCK (S157738)
PEOPLE v. YATES (S157935)
PEOPLE v. LINAREZ (S158154)
PEOPLE v. WHITE (S158179)
PEOPLE v. ALLISON (S158278)
PEOPLE v. VIERA (S158301)
PEOPLE v. ZEPEDA (S158717)
PEOPLE v. VENZOR (S158821)
PEOPLE v. BOCANEGRA (S158828)
PEOPLE v. CHAFFEE (S158873)
PEOPLE v. MOORE (S158888)
PEOPLE v. BANEGAS (S158978)
PEOPLE v. THOMAS (S158980)
PEOPLE v. VANG (S159190)
PEOPLE v. CONERLY (S159336)
PEOPLE v. TREJO (S159660)
PEOPLE v. MARTINEZ (S159730)
PEOPLE v. GONZALES (S159835)
PEOPLE v. LARKIN (S159848)
PEOPLE v. BECKHAM (S159850)
PEOPLE v. DANIELS (S159866)
PEOPLE v. TUCEK (S159871)
PEOPLE v. ESPINO (S160067)
PEOPLE v. TRUJILLO (S160196)
PEOPLE v. GUESS (S160395)
PEOPLE v. HERRERA (S160399)
PEOPLE v. SMITH (S160467)
PEOPLE v. CURTIS (S160502)
PEOPLE v. RODRIGUEZ (S160514)
PEOPLE v. SILLA (S160544)
PEOPLE v. NICHOLS (S160709)
PEOPLE v. HUGHES (S160823)
PEOPLE v. MARTINEZ (S160842)
PEOPLE v. BOWDEN (S161149)
PEOPLE v. MAXEY (S161553)
PEOPLE v. ANDERSON (S161576)
PEOPLE v. PUNCH (S161825)
PEOPLE v. ABERCROMBIE (S162743)


Parties
1Towne, Shawn (Defendant and Appellant)
P.O. Box 799001
San Diego, CA 92179

Represented by Suzan E. Hier
California Appellate Project
520 S. Grand Avenue, Suite 400
Los Angeles, CA

2Towne, Shawn (Defendant and Appellant)
P.O. Box 799001
San Diego, CA 92179

Represented by California Appellate Project - La
520 S. Grand Avenue, Suite 400
520 S. Grand Avenue, Suite 400
Los Angeles, CA

3The People (Plaintiff and Respondent)
Represented by Chung L. Mar
Office of the Attorney General
300 S. Spring Street
Los Angeles, CA

4California Attorneys For Criminal Justice (Amicus curiae)
Represented by John T. Philipsborn
Attorney at Law
507 Polk Street, Suite 250
San Francisco, CA

5California Attorneys For Criminal Justice (Amicus curiae)
Represented by Charles D. Weisselberg
University of California
School of Law (Boalt Hall)
Berkeley, CA


Disposition
Jun 26 2008Opinion: Affirmed

Dockets
Jun 18 2004Petition for review filed
  counsel for appellant Shawn Towne
Jun 21 2004Record requested
 
Jun 28 2004Received:
  Letter from counsel for appellant re new U.S. Supreme Court authority relevant to issues presented in the petition for review.
Jun 29 2004Received Court of Appeal record
 
Jul 14 2004Petition for review granted (criminal case)
  In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jul 28 2004Order filed
  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.
Jul 29 2004Counsel appointment order filed
  Upon request of appellant for appointment of counsel, California Appellate Project is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Aug 31 2004Opening brief on the merits filed
  appellant Shawn Towne [rule 40k]
Sep 30 2004Application to file over-length brief filed
  Answer Brief/Merits A.G., C.L. Mar for resp., the people submitted concurrent with over-length brief..
Oct 5 2004Answer brief on the merits filed
  (with permission) by AG, counsel for respondent.
Oct 19 2004Received application to file Amicus Curiae Brief
  by California Attorneys for Criminal Justice. (see order dated 7/28/04)
Oct 20 2004Application to file over-length brief filed
  counsel for appellant, Shawn Town re: reply brief/merits in excess of word limitation. submitted concurrent with brief.
Oct 26 2004Reply brief filed (case fully briefed)
  (with permission) by appellant.
Oct 27 2004Permission to file amicus curiae brief granted
  California Attorneys for Criminal Justice
Oct 27 2004Amicus curiae brief filed
  by California Attorneys for Criminal Justice in support of appellant. Answer due within 20 days.
Nov 16 2004Request for judicial notice filed (granted case)
  counsel for appellant.
Nov 17 2004Filed:
  letter from counsel for appellant re: issues of legislative intent. submitted concurrent with request for judicial notice.
Feb 2 2005Application filed to:
  for perm to file supplemental/oversized brief>>respondent People
Feb 2 2005Received:
  supplemental brief>>respondent People
Feb 2 2005Received:
  supplemental brief of appellant.
Feb 9 2005Received:
  supplemental reply brief/merits [appellant's]
Feb 10 2005Supplemental brief filed
  (with permission) by counsel for appellant (Shawn Black).
Feb 10 2005Supplemental brief filed
  (with permission) by counsel for respondent (The People).
Feb 16 2005Supplemental brief filed
  (with permission) Supplemental reply brief by counsel for appellant (Shawn Towne).
Feb 7 2007Supplemental briefing ordered
  The parties are directed to serve and file simultaneous supplemental briefs addressing the effect of Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___, 2007 WL135687, on any of the issues presented in this case. The court specifically requests that the supplemental briefs address the following issues: (1) Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant's prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant's prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) - (b)(5))? (2) Is there any violation of the defendant's Sixth Amendment rights under Cunningham v. California, supra, 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 - by, for example, a jury finding, the defendant's criminal history, or the defendant's admission - 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? Supplemental briefs must be served and filed in the San Francisco office of this court no later than February 28, 2007, and simultaneous reply briefs may be served and filed in the San Francisco office of this court no later than March 9, 2007.
Feb 28 2007Supplemental brief filed
  The People, Plaintiff and Respondent. Chung L. Mar, Deputy Attorney General (Filed w/permission)
Feb 28 2007Supplemental brief filed
  Shawn Towne, Defendant and Appellant Suzan E. Hier, counsel
Feb 28 2007Application filed to:
  for permission to file Respondent's supplement brief in excess of 2800 words (to court for permission)
Mar 9 2007Received:
  Oversized supplemental reply brief, with application for permission Shawn Towne, defendant and appellant Suzan Hier, counsel
Mar 9 2007Supplemental brief filed
  REPLY The People, Respondent by Chung L. Mar, counsel
Mar 13 2007Supplemental brief filed
  Shawn Towne, Defendant and Appellant. Suzan E. Hier, counsel (filed w/permission)
Mar 4 2008Case ordered on calendar
  to be argued on Wednesday, April 2, 2008, at 9:00 a.m., in Los Angeles
Mar 20 2008Note: Mail returned (unable to forward)
  copy of calendar notice sent to Walt Ernest (non party)
Apr 2 2008Cause argued and submitted
 
Jun 25 2008Notice of forthcoming opinion posted
 
Jun 26 2008Opinion filed: Judgment affirmed in full
  Majority Opinion by George, C.J. -----joined by Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. Concurring Opinion by Kennard, J.
Jul 29 2008Remittitur issued (criminal case)
 
Aug 7 2008Received:
  Receipt for Remittitur

Briefs
Aug 31 2004Opening brief on the merits filed
 
Oct 5 2004Answer brief on the merits filed
 
Oct 26 2004Reply brief filed (case fully briefed)
 
Oct 27 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