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, 06/20/2005 | S126182 |
Parties
| 1 | Black, Kevin Michael (Defendant and Appellant) Calipatria State Prison Represented by Eileen S. Kotler Balin & Kotler, LLP 1750 Francisco Boulevard Pacifica, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Lawrence Maurice Daniels Office of the Attorney General 300 S. Spring Street, Suite 5212 Los Angeles, CA |
| 3 | California Attorneys For Criminal Justice (Amicus curiae) Represented by John T. Philipsborn Attorney at Law 507 Polk Street, Suite 250 San Francisco, CA |
| 4 | California District Attorneys Association (Amicus curiae) Represented by Martin Thomas Murray Office of the District Attorney 400 County Center, 3rd Floor Redwood City, CA |
| 5 | Orange County Public Defenders Office (Amicus curiae) Represented by Martin Frank Schwarz Orange County Public Defender 14 Civic Center Plaza Santa Ana, CA |
| 6 | San 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 |
| 7 | Stern, Kenneth M. (Amicus curiae) Represented by Kenneth M. Stern Attorney at Law 5850 Canoga Ave #400 Woodland Hills, CA |
| Disposition | |
| Jun 20 2005 | Opinion: Affirmed |
| Dockets | |
| Jul 8 2004 | Petition for review filed by counsel for appellant (Kevin Michael Black) |
| Jul 9 2004 | Record requested |
| Jul 14 2004 | Received Court of Appeal record three doghouses |
| Jul 28 2004 | Petition 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 2004 | Note: |
| Aug 3 2004 | Counsel 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 2004 | Opening brief on the merits filed By counsel for appellant {Kevin Michael Cooper} / CRC 40(K). |
| Oct 8 2004 | Received: oversize answer brief/merits>>respondent People |
| Oct 8 2004 | Application to file over-length brief filed answer brief/merits>>respondent People |
| Oct 8 2004 | Notice of substitution of counsel Dpty Atty General Lawrence M. Daniels for respondent |
| Oct 13 2004 | Received application to file Amicus Curiae Brief CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE in support of appellant (Black). |
| Oct 13 2004 | Compensation awarded counsel Atty Kotler |
| Oct 18 2004 | Answer brief on the merits filed with permission. |
| Oct 27 2004 | Permission to file amicus curiae brief granted California Attorneys for Criminal Justice in support of appellant. |
| Oct 27 2004 | Amicus curiae brief filed California Attorneys for Criminal Justice in support of appellant. Answer is due within twenty days. |
| Oct 28 2004 | Received application to file Amicus Curiae Brief California District Attorneys Association in support of Respondent. |
| Nov 8 2004 | Permission to file amicus curiae brief granted CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION. |
| Nov 8 2004 | Amicus curiae brief filed CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION in support of respondent. Answer due within 20 days. |
| Nov 8 2004 | Received application to file Amicus Curiae Brief Orange County Public Defender [in support of aplt] |
| Nov 10 2004 | Received: Appellant's reply brief on the merits in excess of the word limit and application to file. |
| Nov 17 2004 | Reply brief filed (case fully briefed) Appellant ( Black) |
| Nov 19 2004 | Permission to file amicus curiae brief granted Orange County Public Defender in support of appellant. |
| Nov 19 2004 | Amicus curiae brief filed Orange County Public Defender in support of appellant. Answer is due within twenty days. |
| Dec 3 2004 | Request for judicial notice filed (granted case) By counsel for appellant {Kevin Michael Black}. |
| Jan 19 2005 | Supplemental 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 2005 | Supplemental brief filed by Amicus California Attorneys for Justice |
| Feb 2 2005 | Application filed to: oversize Supplemental Brief>>respondent People |
| Feb 2 2005 | Received: oversize Supplemental Brief>>respondent People |
| Feb 4 2005 | Received: 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 2005 | Supplemental brief filed Appellant's Black's Supplemental Opening Brief/Merits ( with permission) |
| Feb 10 2005 | Supplemental brief filed Respondent's Supplemental Brief/Merits (with permission) |
| Feb 10 2005 | Supplemental brief filed Appelllant's Supplemental Reply Brief on the Merits (with permission) |
| Mar 8 2005 | Case ordered on calendar Thurs. 4/7/05 @9am - Los Angeles |
| Mar 16 2005 | Filed: Letter dated 3-14-2005 from Balin & Kotler, LLP, counsel for Appellant Kevin Black requesting leave to file this supplemental letter brief. |
| Mar 18 2005 | Request for Extended Media coverage Filed by The California Channel |
| Mar 23 2005 | Request 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 2005 | Filed: Supplemental Brief re: additional authorities>>respondent People |
| Apr 7 2005 | Cause argued and submitted |
| Apr 18 2005 | Received: Letter from counsel for Appellant Black requesting leave to file supplemental letter brief. |
| Apr 21 2005 | Order 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 2005 | Opinion 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 2005 | Request for modification of opinion filed By the Office of the District Attorney, County of San Diego (NON-PARTY). |
| Jul 5 2005 | Rehearing petition filed by counsel for appellant {Kevin Michael Black}. |
| Jul 5 2005 | Request for judicial notice filed (granted case) by counsel for appellant. |
| Jul 6 2005 | Time extended to consider modification or rehearing To Spetember 16, 2005. |
| Aug 31 2005 | Rehearing 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 2005 | Remittitur issued (criminal case) Certified copies sent to Fifth Appellate District |
| Sep 7 2005 | Received: Reciept for remittitur from Fifth Appellate District, signed for by J. Rivera, Deputy. |
| Oct 11 2005 | Received: 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 2005 | Compensation awarded counsel Atty Kotler |
| Nov 20 2006 | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - |
| Feb 20 2007 | Remanded by U.S. Supreme Court |
| Feb 21 2007 | Retained 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 2007 | Filed: 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 2007 | Received: Oversized Supplemental Brief from Respondent. |
| Mar 14 2007 | Application to file over-length brief filed The People, Respondent by Lawrence M. Daniels. |
| Mar 15 2007 | Application to file over-length brief filed (Supplemental Brief attached) Kevin Michael Black, appellant Eileen S. Kotler, counsel |
| Mar 19 2007 | Supplemental brief filed The People, Respondent by Lawrence M. Daniels, counsel with permission. |
| Mar 19 2007 | Order 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 2007 | Order 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 2007 | Supplemental brief filed Kevin Michael Black, appellant by Eileen S. Kotler, counsel (with permission) |
| Mar 26 2007 | Supplemental brief filed Mr. Black's Supplemental Reply Brief on the Merits (oversized) CRC 8.25 (with permission) |
| Mar 26 2007 | Received: Letter from Eileen S. Kotler, counsel for appellant), will be out of the country from 5-31-2007 to June 15, 2007. |
| Mar 26 2007 | Supplemental brief filed Respondent People's Reply Brief by Lawrence M. Daniels, Supervising Deputy Attorney General CRC 8.25 |
| Mar 29 2007 | Filed 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 2007 | Case ordered on calendar to be argued on Tuesday, May 29, at 9:00 a.m., in San Francisco |
| May 4 2007 | Received application to file Amicus Curiae Brief Kenneth M. Stern Law Offices in support appellant by Kenneth M. Stern, Esq. |
| May 17 2007 | Request for Extended Media coverage Filed by James Gualtieri of the California Channel. |
| May 17 2007 | Request 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 2007 | Received: Appelant Black's Additional Authority for Oral Argument by Eileen S. Kotler of Balin &n Kotler, LLP. |
| May 29 2007 | Cause argued and submitted |
| Jul 11 2007 | Compensation awarded counsel Atty Kotler |
| Jul 16 2007 | Order 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 2007 | Note: Returned "Original" petition to file amicus brief and brief to Kenneth M. Stern. |
| Jul 18 2007 | Notice of forthcoming opinion posted |
| Jul 19 2007 | Opinion 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 2007 | Remittitur issued (criminal case) |
| Aug 27 2007 | Received: 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 2007 | Received: Acknowledgment of receipt of remittitur from Fifth Appellate District, signed for by Robert Abilez, Deputy Clerk |
| Sep 4 2007 | Received: 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 2007 | Compensation awarded counsel Atty Kotler |
| Jan 14 2008 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Sep 8 2004 | Opening brief on the merits filed |
| Oct 18 2004 | Answer brief on the merits filed |
| Oct 27 2004 | Amicus curiae brief filed |
| Nov 8 2004 | Amicus curiae brief filed |
| Nov 17 2004 | Reply brief filed (case fully briefed) |
| Nov 19 2004 | Amicus curiae brief filed |
