IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR SANDOVAL CATARINO,
Defendant and Appellant.
S271828
Fourth Appellate District, Division One
D078832
Santa Clara County Superior Court
C1635441
May 25, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
PEOPLE v. CATARINO
S271828
Opinion of the Court by Liu, J.
Penal Code section 667.6, subdivision (d) requires a
sentencing court to impose “full, separate, and consecutive
term[s]” for certain sex crimes if it finds that the offenses were
committed “on separate occasions.” (Pen. Code, § 667.6,
subd. (d) (section 667.6(d)); all undesignated statutory
references are to this code.) Defendant Edgar Sandoval
Catarino was convicted of six counts of forcible lewd acts on a
child under the age of fourteen and one lesser included offense
of attempt. At sentencing, the court found that Catarino’s seven
counts of conviction occurred on seven separate occasions and
sentenced him to full, consecutive terms for each under section
667.6(d).
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
the United States Supreme Court held under the Sixth
Amendment to the federal Constitution that “[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.”
(Apprendi, at p. 490.) Under Alleyne v. United States (2013) 570
U.S. 99 (Alleyne), this rule applies “with equal force to facts
increasing the mandatory minimum” because an increase in the
minimum term heightens “the prescribed range of sentences to
which a criminal defendant is exposed.” (Id. at p. 112.) But in
Oregon v. Ice (2008) 555 U.S. 160 (Ice), the high court said the
Apprendi rule does not apply to facts deemed necessary to the
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Opinion of the Court by Liu, J.
imposition of consecutive as opposed to concurrent sentences, “a
sentencing function in which the jury traditionally played no
part.” (Id. at p. 163.
The question here is whether section 667.6(d), in requiring
that a sentencing court impose “full, separate, and consecutive
term[s]” for certain sex crimes if it finds certain facts, complies
with the Sixth Amendment. We hold that it does: the rule of
Apprendi and Alleyne does not apply to section 667.6(d) under
the rationale of Ice.
I.
Catarino was charged in November 2017 with eight counts
of forcible lewd acts on a child under the age of fourteen. The
charging instrument alleged that he sexually abused his cousin
Doe, who was nine years old at the time, over a period from June
2015 to March 2016. Each count alleged an identical range of
dates during which the offense’s conduct might have occurred.
Catarino was convicted on six of the counts, convicted of the
lesser included offense of attempt on the seventh count, and
acquitted of the final count. The verdict included the same
range of dates alleged on each count and did not further specify
when the crimes occurred.
The prosecutor’s sentencing memorandum argued that
the court should find that the seven counts of conviction were all
committed on “separate occasions,” which would require the
imposition of full-term consecutive sentencing on each count
under section 667.6(d). According to the prosecutor, Doe’s
testimony at trial showed that at least five of the counts
conclusively occurred on separate occasions and that the
evidence would support a finding that the remaining counts also
happened at separate times. Catarino argued that the jury
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Opinion of the Court by Liu, J.
verdict did not “provide enough information to determine” which
convictions constituted “separate incidents” because the jury
“did not make any specific findings regarding each count.” In
his view, “the mere fact that the jury found [him] guilty on seven
counts does not establish that they each occurred on separate
occasions,” and making a “separate occasions” finding based on
evidence beyond the verdict would violate his rights under the
Sixth Amendment.
At sentencing, the court found that Doe had testified to
seven separate acts of sexual abuse. Based on this testimony
and the court’s instruction to the jury that it was required to
“ ‘consider each count separately and return a separate verdict
for each one,’ ” the court found that Catarino’s seven counts of
conviction corresponded to “seven separate incidents pursuant
to . . . section 667.6(d).” In line with this finding, the court
sentenced Catarino to full, consecutive terms on each count. It
imposed the middle term of eight years on his first count and
the lower term of five years on each of counts two through six.
On count seven, the attempt count, it imposed a term of two and
a half years, the lowest available for that charge.
Catarino appealed, arguing that sentencing him under
section 667.6(d) “without having submitted to the jury the
question of whether each of [his] offenses was committed on a
‘separate occasion’ denied [him] his Sixth Amendment right to a
jury trial” under Apprendi and Alleyne. He argued that because
the separate occasions finding required that his second through
seventh counts “carry a full term, rather than the term that
would otherwise apply under” the determinate sentencing law,
it increased the minimum term for each of those offenses.
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PEOPLE v. CATARINO
Opinion of the Court by Liu, J.
The Court of Appeal, citing Ice, held that the rule of
Apprendi and Alleyne “do[es] not apply to the court’s
determination of whether to impose consecutive sentences for
convictions of multiple criminal offenses.” (People v. Catarino
(Oct. 14, 2021, D078832) [nonpub. opn.].) It also held that on
the attempt count, Catarino was erroneously sentenced under
section 667.6(d), which does not apply to attempted sex offenses,
and it remanded for resentencing. As a result, we do not address
Catarino’s attempt conviction.
We granted review to decide whether section 667.6(d
complies with the Sixth Amendment. Since our grant of review,
a split of authority has emerged on this question. (Compare
People v. Wandrey (2022) 80 Cal.App.5th 962, 978–980
[§ 667.6(d) complies with the 6th Amend. under Ice] with People
v. Johnson (2023) 88 Cal.App.5th 487, 502–505 (Johnson
[§ 667.6(d) violates the 6th Amend.].
II.
We begin with an explanation of the sentencing scheme
here. Many sections of the Penal Code that describe a criminal
offense establish three options for determinate sentences for the
offense: a lower, middle, and upper term. Section 288,
subdivision (b)(1), which defines Catarino’s offense of forcible
lewd or lascivious acts against a child under the age of fourteen,
states that a person who commits that crime “shall be punished
by imprisonment in the state prison for 5, 8, or 10 years.”
“When a person is convicted of two or more crimes,”
California law generally requires a court to determine “whether
the terms of imprisonment . . . shall run concurrently or
consecutively.” (§ 669, subd. (a).) As relevant here, several
statutes affect how a court imposes concurrent or consecutive
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PEOPLE v. CATARINO
Opinion of the Court by Liu, J.
sentences. Under section 1170.1, which is part of the
determinate sentencing law, a court imposing determinate,
consecutive sentences for two or more felonies is required to
impose an “aggregate term of imprisonment for all these
convictions,” which is the sum of the “principal term,” the
“subordinate term[s],” and any enhancements. (Id., subd. (a).
The principal term “shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes.”
(Ibid.) The subordinate terms “shall consist of one-third of the
middle term of imprisonment prescribed for each other felony
conviction for which a consecutive term of imprisonment is
imposed,” plus one-third of any applicable enhancements.
(Ibid.
Section 1170.1 governs most determinate sentencing. For
certain sex offenses, however, the Penal Code establishes two
alternative sentencing frameworks. First, under section 667.6,
subdivision (c) (section 667.6(c)), “a full, separate, and
consecutive term may be imposed for each violation of an offense
specified in subdivision (e) if the crimes involve the same victim
on the same occasion.” This is “[i]n lieu of the term provided in
Section 1170.1.” (Ibid.) Section 667.6(c) is not challenged here.
Second, under section 667.6(d), if the sentencing court finds that
multiple sex offenses carrying determinate terms involved
separate victims or were committed on separate occasions, “[a]
full, separate, and consecutive term shall be imposed for each
violation,” and the terms “shall not be included in any
determination pursuant to Section 1170.1.” (§ 667.6,
subds. (d)(1), (3).) These provisions apply to many sex crimes,
including Catarino’s. (§ 667.6, subd. (e).
The statute prescribing the lower, middle, and upper
terms for six of Catarino’s seven counts of conviction set them at
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PEOPLE v. CATARINO
Opinion of the Court by Liu, J.
five, eight, and ten years, respectively. (§ 288, subd. (b)(1).
When Catarino was sentenced in November 2018, the
determinate sentencing law gave courts discretion to impose the
lower, middle, or upper sentence for a defendant’s principal
term; that part of the law has since been amended in ways not
relevant here. (§ 1170, former subd. (b).) If Catarino had been
sentenced under the determinate sentencing law instead of
section 667.6(d), the court could have imposed five, eight, or ten
years on one of his counts of conviction, i.e., the principal term.
If the court then imposed consecutive sentences for his other
offenses, it would have been limited to imposing one-third of the
middle term on each of the other counts, i.e., the subordinate
terms. For each of the non-attempt counts, this would have been
two years and eight months, which is one-third of the eight-year
middle term for his offense listed in section 288, subdivision
(b)(1). Alternatively, the court could have opted to impose the
sentences concurrently.
The parties dispute whether the trial court could have
sentenced Catarino under section 667.6(c) on the basis of the
jury verdict. If the court had sentenced Catarino under
section 667.6(c), the range of sentences available for Catarino’s
subordinate term offenses would not have been limited to one-
third of the middle term described in section 1170.1. Instead,
the court would have had the discretion to impose the full five,
eight, or ten years for each of the non-attempt subordinate terms
instead of two years and eight months. The court would also
retain discretion to run the terms concurrently.
A finding under section 667.6(d) that the crimes involved
separate victims or occurred on separate occasions eliminates
the court’s discretion. Instead, “[a] full, separate, and
consecutive term shall be imposed for each violation . . . .”
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Opinion of the Court by Liu, J.
(§ 667.6(d)(1), italics added.) A court that makes a section
667.6(d) finding cannot impose one-third of the middle term for
the defendant’s subordinate term as prescribed by section
1170.1, nor can the court run the terms concurrently. It must
impose a full-term sentence for each offense it finds to have
involved a different victim or to have been committed on a
separate occasion. In Catarino’s case, this means the lowest
term the sentencing court could impose for each of his non-
attempt subordinate terms was five years as opposed to the term
of two years and eight months that would have been available if
he had been sentenced under either the determinate sentencing
law or section 667.6(c).
In sum, if Catarino had been sentenced under
section 667.6(c) or the determinate sentencing law, the court
would have had the option to impose the terms for his offenses
concurrently or consecutively. If it decided to impose
consecutive sentences on his subordinate terms, the lowest term
it could have imposed for each of his non-attempt offenses would
have been two years and eight months. Instead, because the
court sentenced him under section 667.6(d), it was required to
impose consecutive terms, and the lowest sentence it could
impose for each of his non-attempt subordinate terms was five
years. The predicate finding that enables such sentencing under
section 667.6(d) is made by “the sentencing judge.” (Cal. Rules
of Court, rule 4.426(a).) Catarino argues that this scheme
violates Apprendi.
III.
The Sixth Amendment protects the right of a criminal
defendant to a trial by jury, and under the Fourteenth
Amendment, this protection applies in state criminal
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PEOPLE v. CATARINO
Opinion of the Court by Liu, J.
proceedings. (Ramos v. Louisiana (2020) 590 U.S. __, __ [140
S.Ct. 1390, 1395–1397].) Among the specific protections
included in the jury trial guarantee are the right to have every
element of the crime found by a jury (United States v. Gaudin
(1995) 515 U.S. 506, 511) and the right to have the jury make
those findings beyond a reasonable doubt (In re Winship (1970
397 U.S. 358, 364). In Apprendi, the high court explained that
the existence of these rights does not turn on any distinction
between elements of a crime and sentencing factors. (Apprendi,
supra, 530 U.S. at p. 478.) While a court may properly exercise
its discretion to impose any sentence within the statutory range
for a defendant’s offense once that range is determined by facts
found by the jury, judicial factfinding that “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” violates the Sixth Amendment. (Apprendi, at p. 483.
Accordingly, the high court held: “Other 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.
In Alleyne, the high court applied the rule of Apprendi to
facts that increase the minimum term to which the defendant is
exposed. “[B]ecause the legally prescribed [sentencing] range is
the penalty affixed to the crime [citation], it follows that a fact
increasing either end of the range produces a new penalty . . . .”
(Alleyne, supra, 570 U.S. at p. 112.) The court explained that
“[i]t is impossible to dissociate the floor of a sentencing range
from the penalty affixed to the crime” and that “facts increasing
the legally prescribed floor aggravate the punishment” for the
defendant’s offense. (Id. at pp. 112, 113.) For purposes of
Apprendi, “there is no basis in principle or logic to distinguish
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Opinion of the Court by Liu, J.
facts that raise the maximum [sentence] from those that
increase the minimum . . . .” (Alleyne, at p. 116.) Both must be
“submitted to the jury and found beyond a reasonable doubt.”
(Ibid.
As relevant here, “ ‘the Sixth Amendment’s restriction on
judge-found facts’ is ‘inapplicable’ when a trial judge makes
factual findings necessary to the imposition of consecutive
terms.” (People v. Scott (2015) 61 Cal.4th 363, 405, quoting Ice,
supra, 555 U.S. at p. 170.) In Ice, Oregon’s sentencing scheme
provided that “sentences shall run concurrently unless the judge
finds statutorily described facts.” (Ice, at p. 165.) The high court
held that such judicial factfinding does not violate Apprendi.
(Ice, at p. 164.) “The historical record demonstrates that the
jury played no role in the decision to impose sentences
consecutively or concurrently.” (Id. at p. 168.) Instead, judges
traditionally had “unfettered discretion” to decide “whether
sentences for discrete offenses shall be served consecutively or
concurrently.” (Id. at p. 163.) Thus, the high court reasoned,
the “core concerns” underlying Apprendi — “encroachment . . .
by the judge upon facts historically found by the jury” and
“threat to the jury’s domain as a bulwark at trial between the
State and the accused” — are not implicated by “legislative
reforms regarding the imposition of multiple sentences.” (Ice, at
p. 169.) States may, consistent with the Sixth Amendment,
enact legislation to “constrain judges’ discretion by requiring
them to find certain facts before imposing consecutive, rather
than concurrent, sentences.” (Id. at p. 164.
Catarino does not dispute that Ice applies, at least in part,
to section 667.6(d). Instead, he argues that section 667.6(d) has
“two distinct consequences”: first, it requires that each term
imposed be a full term instead of one-third of the middle term
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Opinion of the Court by Liu, J.
as authorized by section 1170.1; second, it requires that each
term be imposed consecutively. The latter, he asserts, is
controlled by Ice, while the former is not. We conclude that
although the high court in Ice was confronted with a statutory
regime that only addressed concurrent versus consecutive
sentencing, its rationale is equally applicable to section 667.6(d).
As noted, if Catarino had been sentenced under the
determinate sentencing law or under section 667.6(c), the trial
court could have imposed concurrent sentences or partial
consecutive sentences on Catarino’s seven counts of conviction,
i.e., a full term on one principal count and partial terms on six
subordinate counts. Section 667.6(d), by contrast, requires full-
term consecutive sentencing upon a finding that “the crimes
involve separate victims or involve the same victim on separate
occasions.” Like the statutes in Ice, section 667.6(d) is a
“specification of the regime for administering multiple
sentences,” which “has long been considered the prerogative of
state legislatures.” (Ice, supra, 555 U.S. at p. 168.) Section
667.6(d) applies only when a defendant “has been tried and
convicted of multiple offenses, each involving discrete
sentencing prescriptions”; it governs how these sentences run
relative to each other, a “sentencing function in which the jury
traditionally played no part.” (Ice, at p. 163.) This is distinct
from the Apprendi line of cases, which concerns “sentencing for
a discrete crime, not . . . for multiple offenses different in
character or committed at different times.” (Ice, at p. 167.) Had
Catarino been convicted of only one offense, section 667.6(d
would have had no effect on the sentencing options authorized
by the jury’s verdict. It is only because he was convicted by a
jury of multiple offenses that section 667.6(d) applies to inform
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Opinion of the Court by Liu, J.
how each offense’s authorized sentence runs relative to each
other.
Section 667.6(d)’s requirement of “full” consecutive terms
is also not a “discrete sentencing prescription[]” within the
meaning of Apprendi. (Ice, supra, 555 U.S. at p. 163.) Section
667.6(d) does not change what is a “full” term or otherwise
define the sentence for any particular offense. In this regard, it
differs from the statute at issue in Alleyne, which provided that
a defendant using or carrying a firearm must “ ‘be sentenced to
a term of imprisonment of not less than 5 years,’ ” but if the
firearm was brandished, the sentence must be “ ‘not less than 7
years.’ ” (Alleyne, supra, 570 U.S. at pp. 103, 104, quoting 18
U.S.C. § 924(c)(1)(A)(i)–(ii).) Rather than set or change the term
authorized on an individual count as the statute in Alleyne did,
section 667.6(d) requires that the term already authorized
(§ 288, subd. (b)(1)) be meted out as a full term. Under the high
court’s reasoning in Ice, section 667.6(d) does not define or alter
the term for any particular offense in a manner that invades the
historical province of the jury.
Catarino contends that section 667.6(d) “has the effect” of
raising the term on each subordinate count from two years and
eight months to five years in a manner implicating Apprendi.
The Court of Appeal in Johnson took a similar view, reasoning
that a finding under section 667.6(d) “increases the ‘floor’ of the
range [of sentences] from two years eight months to five years.”
(Johnson, supra, 88 Cal.App.5th at p. 504.) But the lowest term
set by section 288, subdivision (b)(1) — before any
aggregation — is five years, not two years and eight months.
The jury’s verdict thus authorized at least a five-year sentence
for each violation of this section.
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PEOPLE v. CATARINO
Opinion of the Court by Liu, J.
In arguing otherwise, Catarino and the Johnson court
erroneously import the term of two years and eight months
authorized by section 1170.1 into the analysis of section
667.6(d)’s constitutionality. Section 1170.1, like section
667.6(d), is a “specification of the regime for administering
multiple sentences.” (Ice, supra, 555 U.S. at p. 168.) The high
court in Ice explained that historically “a judge’s imposition of
consecutive, rather than concurrent, sentences was the
prevailing practice” and that state statutes making concurrent
sentencing the rule and consecutive sentencing the exception
represent “modern . . . statutory protections meant to temper
the harshness of the historical practice.” (Id. at p. 169.) Here,
section 1170.1 limits judges’ discretion by generally requiring
them to impose partial-term consecutive sentences instead of
full-term consecutive sentences. Section 667.6(d) then departs
from this general rule for certain enumerated sex offenses by
requiring full-term consecutive sentences if the offenses “involve
separate victims or involve the same victim on separate
occasions.” A state could, consistent with the Sixth Amendment,
require full-term consecutive sentencing in all cases. By
conditioning the imposition of such consecutive sentences on
“certain predicate factfindings” (Ice, at p. 164), section 667.6(d
may be understood “to temper the harshness” of a historically
authorized practice (Ice, at p. 169).
Just as it “would make scant sense” to “hem in States by
holding that they may not . . . choose to make concurrent
sentences the rule, and consecutive sentences the exception”
(Ice, supra, 555 U.S. at p. 171), it would make little sense to
forbid California from making partial-term consecutive
sentences the rule and full-term consecutive sentences the
exception. Viewed in that light, section 1170.1’s authorization
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Opinion of the Court by Liu, J.
of a lower term does not affect our analysis of section 667.6(d).
Both rules are permissible under Ice, and the Legislature’s
adoption of one does not render the other unconstitutional. We
disapprove of People v. Johnson, supra, 88 Cal.App.5th 487 to
the extent it holds otherwise.
The “scope of the constitutional jury right must be
informed by the historical role of the jury at common law,” so it
is “no answer” that Catarino was “ ‘ “entitled” ’ ” to sentencing
under section 1170.1 absent operation of section 667.6(d). (Ice,
supra, 555 U.S. at p. 170.) The Sixth Amendment right does not
“attach[] to every contemporary state-law ‘entitlement’ to
predicate findings.” (Ice, at p. 170.) Because there is “no erosion
of the jury’s traditional role” here, “Apprendi’s core concern is
inapplicable” and “so too is the Sixth Amendment’s restriction
on judge-found facts.” (Ibid.
CONCLUSION
Because section 667.6(d) falls within the rationale of Ice,
its operation does not violate the rule of Apprendi and Alleyne.
We affirm the judgment of the Court of Appeal.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
13
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Catarino
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 10/14/21 – 4th
Dist., Div. 1
Rehearing Granted
Opinion No. S271828
Date Filed: May 25, 2023
Court: Superior
County: Santa Clara
Judge: Cynthia A. Sevely
Counsel:
Ron Boyer, under appointment by the Supreme Court, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant
Attorney General, Seth K. Schalit, Donna M. Provenzano and Melissa
A. Meth, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Ron Boyer
Attorney at Law
950 Tyinn Street, #22332
Eugene, OR 97402
(510) 393-3822
Melissa A. Meth
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3827
Opinion Information
| Date: | Docket Number: |
| Thu, 05/25/2023 | S271828 |
