*1 S126182. July [No. 2007.] PEOPLE,
THE Plaintiff and Respondent, BLACK,
KEVIN MICHAEL Defendant and Appellant.
Counsel Kotler, Court, and for Defendant S. under the Supreme Eileen appointment Appellant. Havlena, Kwast, Chief Deputy Defender Thomas (Orange),
Deborah A. Public Defender, E. Defender, Martin Public and Kevin J. Assistant Public Phillips, Defender, Schwarz, Public Defender’s Orange for County Public Deputy of Defendant and Appellant. as Amicus Curiae on behalf Office John T. Charles D. for California for Philipsbom Weisselberg Attorneys Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant. Jr., Brown, General, Bill Lockyer and Edmund G. Manuel M. Attorneys Medeiros, General, Nicola, State E. State Solicitor Donald de Deputy General, Gillette, Solicitor Robert R. Anderson and Dane R. Chief Assistant General, Hamanaka, Jo Graves and Pamela C. Assistant Attorneys Mary General, Jibson, Kaida, Fuster, J. Robert L. Attorneys Jaime Kristofer Judy Daniels, General, Jorstad and Lawrence M. for Attorneys Plaintiff Deputy Respondent. LaBahn,
David R. P. George Kennedy, James Fox and Martin for Murray California District Association as Curiae Attorneys Amicus on behalf of Plaintiff Respondent.
Opinion GEORGE, time, C. J. case is before for a us second after remand This from the United States Court for reconsideration in Supreme light Cunningham court’s very recent decision in (2007) U.S. California Cunningham, L.Ed.2d 127 S.Ct. In United (Cunningham). the 856] Court, States Supreme with this court’s initial in disagreeing decision this v. Black matter (2005) Cal.4th 1238 113 P.3d Cal.Rptr.3d (Black 1)), determinate held that (DSL) California’s law violates defendant’s federal constitutional trial right under Sixth jury and Fourteenth Amendments to United States Constitution to by assigning the trial than judge, rather jury, authority to make factual findings subject defendant to the anof term sentence. possibility upper
In considering defendant’s to the challenge validity his term upper sentence, Cunningham, we address a number of imposed issues the Cunningham arise in wake Did decision. defendant’s failure in trial trial on circumstances forfeit his request right on term challenge appeal imposition sentence? If issue, defendant did not forfeit did imposition and, so, case his violate if
present was error prejudicial? (3) Does the reasoning of the line of United States Court decisions Supreme court, culminating that a rather than the trial find require jury, the facts that of consecutive sentences support multiple offenses? *7 that did not
Concluding defendant forfeit issue by failing object court, his sentence on Sixth Amendment the trial we hold that grounds sentence did not violate defendant’s of an imposition trial, was established one circumstance because least and made him that Amendment thus means Sixth satisfy requirements with this court’s determination Finally, for the term. consistent eligible I, Black the relevant we hold that neither nor of consecutive terms. decisions to the apply
I. I, In Black summarized facts in we the relevant 35 Cal.4th follows; with one count of continuous charged this “Defendant was case T.R., Code, 288.5),[1] victim (Pen. involving abuse of a child sexual § (§ 288, (a)), a child subd. two of lewd and lascivious conduct with counts count, toas the first alleged, victims A.T. and H.T. The information involving ‘force, violence, duress, the offense use of defendant committed menace, defend bodily injury,’ and fear of immediate and unlawful age years, conduct with a victim under the ant had substantial sexual or a would affect his allegations eligibility probation suspended 1203.066, (8).) information also (§ (a)(1), alleged subd. sentence. victim, an committed acts more than one sexual with specified
defendant that, true, to a term of imprison if found would defendant allegation subject lewd and lascivious to life on each of the two counts of years ment of 667.61, (§ (b), (c), (d).) conduct with a child. subds. trial, had sexual T.R. that defendant
“At defendant’s testified stepdaughter or years when she was nine eight intercourse with her on several occasions Sometimes, would take care of when mother was defendant working, her age. home, in the her in her bedroom or bedroom her. The incidents occurred incidents, defendant some of During mother shared with defendant. she that she could not struggled, get away. held arms down when so T.R.’s did, if he tell about what she anyone told her not to happened; Defendant her lie to her in trouble. would tell mother big get H.T.) that one when (A.T. day they testified
“Two of T.R.’s friends house, told them could do her defendant they were with T.R. at playing T.R., wanted, Encouraged by off their clothes. including taking whatever they sat in girls At defendant’s clothing. urging, took off some of their girls bare his and he rubbed their thighs. lap defendant’s the acts as testified to by step- contended that
“The defense occurred, because she was allegations that she made up had not daughter defendant, and that mother and between her relationship the troubled upset by Code, indicated. Penal unless otherwise statutory are All further references
807 she had been a was actually molested friend whom she to by family trying The defense also contended that defendant’s his protect. conduct with step- innocent, friends was and that them he daughter’s having sit in his was lap to settle down. The found on merely trying them defendant all guilty found counts and all of the true. special allegations “The offense of continuous sexual abuse a child is a term punishable by 12, six, 288.5, or 16 years’ (§ (a).) subd. The court imprisonment. offense, sentenced defendant to the term of 16 for that years selecting nature, seriousness, this based on ‘the and circumstances of crime.’ noted court that defendant had forced victim to have sexual inter- occasions, course with him on numerous the victim was particularly vulnerable him as his had stepdaughter, that he abused a of trust position confidence, and that he had inflicted emotional and on the injury physical victim.
“The court two indeterminate of 15 on the imposed years terms to life lewd counts, conduct consecutive to each to the other and 16-year determinate term, a total term of imprisonment years 46 life. In its explaining terms, reasons for consecutive imposing the court noted 2 that count involved victim (A.T.) from count separate (T.R.) 1 and occurred aon separate addition, occasion. In 2 confidence, count involved a breach of because the 3, victim had been left in defendant’s care. count As to the court stated that offense also involved a (H.T.), different victim and that a consecutive sentence was because the was appropriate offense serious and of predatory nature, in defendant had on both his preyed and her stepdaughter I, (Black 1244—1245, friends.” 35 Cal.4th omitted.) fn.
Three weeks after the affirmed Court Appeal sentence judgment case, imposed court this the United States Court Supreme Blakely v. issued (2004) 296, its decision in Washington 542 U.S. L.Ed.2d 124 S.Ct. (Blakely), holding [159 that a criminal defend 2531] ant’s Sixth Amendment jury trial was violated in a in which a case state trial Washington “an imposed sentence” exceptional beyond “standard range” Act, under Washington’s Reform based Sentencing upon doubt, facts neither proven beyond reasonable nor admitted defendant. We granted review case to consider effect of present Blakely on the of California’s DSL. validity court,
While this matter was before our the United pending States Supreme Court rendered its decision in United States Booker v. U.S. (Booker), L.Ed.2d S.Ct. addressing challenge 738] New federal laws Apprendi Jersey upon based 530 U.S. L.Ed.2d 120 S.Ct. (Apprendi) Blakely. After *9 on the the effect of the Booker decision briefing on soliciting supplemental and the contentions made in the considering us in Black I issues before Black “the judicial we concluded in I that argument, briefs and oral parties’ an a exercises discretion to impose upper that occurs when factfinding judge law under California does not implicate term sentence or consecutive terms I, (Black 35 Cal.4th Sixth trial.” right supra, defendant’s Amendment 1244.) at p. I, of filed a for writ certiorari
After our decision in Black defendant petition the court addressed the issue of high in the United States Court. The Supreme 549 U.S. the DSL in validity Cunningham, supra, constitutional California above, in the United States Cunningham As noted S.Ct. 856]. I, concluded, to this court’s determination Black Court Supreme contrary the find the facts jury, the the not to judge, that DSL authorizes “[b]ecause sentence, cannot withstand measurement an term the system permitting upper U.S. at (Cunningham, Sixth precedent.” our Amendment against _ 871], omitted.) the court high S.Ct. fn. Subsequently, remanded it in the case and the for writ certiorari granted petition present Cunningham. this for light to court reconsideration II. DSL, the court “California’s and Cunningham, As the observed in its court to start with sentencing rules direct governing application, term, to from when the court finds itself only middle and move that related to the offense or the offender— on the record facts—whether places 549 U.S. charged (Cunningham, the elements of the offense.” beyond DSL, 863].) three S.Ct. at Under the terms of imprisonment p._[127 discretion in offenses. The trial court’s are statute most specified by 1170, (b), is limited subdivision selecting these section among options term, unless shall order of middle which directs “the court or of the crime.”2 The there in aggravation mitigation are circumstances term, court, on rely aggravat- when to statute permits imposing The relevant to this have found true facts jury. facts that not been ing court, determined set on are which “shall forth choice to be sentencing term.” or lower the record the facts and reasons for imposing 1170, fact is an essential (§ (b).) not consider any subd. may Court, not (Cal. 4.420(d)) rule element of the crime itself Rules Legislature recently effective March Cunningham, In our amended DSL response (Stats. prior to the law it read to those ch. References section 1170 are as 2007. amendments. DSL, amended the Legislature’s the Judicial Council response In to the amendment of are to the California Rules of Court May effective 2007. References rules they rules as read to those amendments. a fact true an enhancement unless it charged
consider found strikes Court, (§ (b); Cal. Rules of rule for that enhancement. subd. punishment 4.420(c).) concluded the DSL violates a defendant’s Amendment, trial because “under the Sixth fact exposes
defendant to a sentence must be found not greater by jury, potential judge, *10 doubt, and established a not a of reasonable beyond merely preponderance _ (Cunningham, the evidence.” U.S. at S.Ct. at supra, p. [127 supra, 863-864].) In its in U.S. at Apprendi, seminal decision 490, the court held that fact that increases the for a page high “any penalty beyond crime the a statutory maximum must be submitted to prescribed jury, Blakely, a doubt.” the clarified beyond reasonable In court proved “ ” that the for of the prescribed maximum’ ‘statutory jury purposes crime; trial not is the maximum stated in statute for necessarily the penalty rather, it is “the maximum sentence a basis solely on the may judge impose of jury (Blakely, the the in verdict or admitted the facts reflected defendant.” 303.) U.S. at p. I,
In Black we reasoned that because the is free to base sentencing “judge an term sentence on any factor the deems upper aggravating judge “ as as the is significant,” factor related the long ‘reasonably being decision ” (Cal. Court, 4.408(a)), made’ Rules rule the that the middle “requirement term be unless an imposed factor is found tradi- aggravating preserves the broad tional . range judicial discretion. . . sentencing requirement [T]he that an factor is aggravating exist that the decision to merely requirement I, the (Black term be impose reasonable.” 35 Cal.4th at upper p. omitted.) fn. Booker the circumstance that in Relying upon majority court high modification of the federal approved sentencing scheme discretion, a similar level limited we concluded that incorporated judicial “ the term the was relevant maximum’ of Sixth upper ‘statutory purposes I, (Black Amendment at analysis.” p. however,
In Cunningham, the our in high disagreed with conclusion I, Black “[ujnder the circumstances determinative finding California’s DSL, an be the term sentence when trial finds upper only judge imposed circumstance,” an and that an “element of the . . . offense” determined the verdict “does circum- not an qualify” _ (Cunningham, supra, 868].) stance. 549 U.S. at S.Ct. at “Instead, aggravating discretely circumstances on facts found depend therefore, Blakely, by the In with the term solely accord middle judge. statutes, term, in not California's relevant prescribed statutory Thus, (Ibid.) “[bjecause maximum.” DSL high court concluded that an find sole facts authority permitting allocates judges (Id. sentence, Amendment.” system violates the Sixth p._ 870].) S.Ct. Below, Cunningham and its we the rule established in predecessors apply facts of the to the case. present
III. matter, argument we consider the General’s Attorney As preliminary issue, he did to raise the because jury-trial defendant has forfeited his right Although in the trial court. not object sentencing procedure recent only of sentence in this case not preceded court’s imposition decision in Blakely, supra, decision but also court’s that defendant’s failure to Attorney object 542 U.S. General contends he, like Blakely, have not be excused the defendant could should because based that he was entitled to a trial on issues upon argued *11 court’s earlier decision in Apprendi. to although We the rule that challenges procedures have long applied raised in the of evidence are forfeited unless timely or to admission normally court, later so changed trial is not so when the law pertinent the “this trial to antici it is counsel have that unreasonable to unforeseeably expect 668, v. Turner (1990) Cal.3d 703 (People Cal.Rptr. the 50 pated change.” [268 re R. 855, (Turner); see In Gladys 706, (1970) 1 Cal.3d 861 P.2d 789 [83 887] 18, v. 671, Santiago (1969) De 127]; 71 23 People 464 P.2d Cal.2d Cal.Rptr. (De Kitchens 809, People 46 Santiago); 453 P.2d v. Cal.Rptr. 353] [76 Turner, 260, (Kitchens).) In for we Cal.2d 263 P.2d example, [294 have that convictions should not considered the defendant’s claim his prior had objection of even no though admitted for the purpose impeachment been “indeed, the court; had made defense counsel himself elicited been in the his direct examination.” during and nature of the convictions existence prior 703.) it did at the time of the trial (Turner, supra, 50 Cal.3d at As p. Turner, I, 28, (f) of California Constitution article section subdivision used limitation for convictions could be “without felony provides prior 8, (Added criminal by Prop. approved of in a trial. purposes impeachment” Turner, However, 8, the trial in we held 1982.) after voters June a trial court retains discretion this constitutional provision, notwithstanding for to the use of a conviction Evidence Code section 352 preclude prior under value of the conviction if probative of purpose impeachment v. Castro (1985) 38 301 effect. Cal.3d its outweighed by prejudicial 111].) P.2d Cal.Rptr. Turner, however, newly assumed” the we that it was “widely In noted I, (f) of California section subdivision of article added language to the of admissibility Constitution eliminated all objections prior felony Castro convictions for and that our decision in contradicted impeachment, (Turner, supra, most of on this 50 Cal.3d authority point. appellate circumstances, 703-704.) Under these we concluded that defense counsel “cannot be saddled with the burden such an anticipating abrupt change (Id. omitted; the law.” People Chavez fn. see also 26 Cal.3d p. 334, 350, fn. 5 P.2d failure to Cal.Rptr. object 401] [counsel’s to the admissibility inconsistent statements did not forfeit a claim of prior Constitution, error under the confrontation of the California clause because number of court cases had of such admissibility state- appellate upheld R., In re ments in the of similar Gladys supra, face 1 Cal.3d at challenges]; to trial court’s object reading social services report [failure to the jurisdictional in a did hearing juvenile not forfeit proceeding issue for because an decision purposes appeal, appellate subsequently issued statutes “in a manner interpreted controlling contrary Kitchens, apparently prevalent contemporaneous interpretation”]; Cal.2d at failure to obtained evidence object illegally [counsel’s did not forfeit issue because the rendered appeal, opinion illegally obtained evidence inadmissible after was filed the trial in question].)
In whether determining significance of a in the law change trial, excuses counsel’s failure to we object at consider the “state of the law as it would have appeared counsel at the competent knowledgeable (De time Santiago, trial.” 71 Cal.2d at At the time of trial, defendant’s no California case Apprendi supported proposition circumstances, which, DSL, trial on required under *12 were to be decided the Apprendi by judge. itself stated that its did holding not factor, a prohibit from judge findings on a which it making sentencing circumstance, described as “a which be either or aggravating mitigating character, in sentence within the that a range authorized supports specific by the jury’s finding that the defendant is of a offense.” guilty particular 494, (Apprendi, 530 supra, U.S. at fn. That description reasonably to the appears encompass and mitigating circumstances that a must in judge consider the three terms authorized selecting among under California’s DSL. Blakely, it
Prior to was assumed that for the widely purposes rule in Apprendi, established the maximum term authorized the by jury’s verdict was the term. In a decided Apprendi, case after we recognized that Apprendi v. Wims (1995) overruled our in People implicitly holding 10 241, Cal.4th instruct 293 P.2d to 895 the failure the Cal.Rptr.2d [41 law, on an of a element enhancement state jury violated but not sentencing 316, the federal v. Sengpadychith Constitution. 26 Cal.4th 326 Apprendi was assumed 739].) 27 P.3d to Cal.Rptr.2d to the apply 812 enhancements, but to circum-
determination of sentence not the of a or We with assessment sentencing agree stances other decisions. a Sixth its of defendant’s Amendment federal clarification “[w]ith in law.” change the court worked a sea the Blakely body sentencing rights, (U.S. 967, 973, omitted.) fn. (9th 2004) Cir. 376 F.3d Ameline to this have had the raise foresight circumstance that some attorneys may reasonably counsel issue does not mean that competent knowledgeable to court’s in have have the decision anticipated high could been expected that, at to sentencing proceedings We conclude least with Blakely. respect decision, issue, to the at a claim Blakely similar one here preceding in Blakely established upon error premised principles on failure to at trial. object is not forfeited counsel’s appeal IV. that, It is to under court decisions recognize line important U.S. culminating with 530 beginning Apprendi, supra, 856], S.Ct. U.S. L.Ed.2d Cunningham, supra, doubt of a trial and reasonable proof beyond constitutional jury requirement (Blakely, a fact that is essential to the only “legally punishment” applies is, 313), fact that defendant “any U.S. at exposes verdict alone jury’s sentence” than is authorized greater potential 863]). U.S. S.Ct. at “The Sixth (Cunningham, p._[127 said, the law a judge Amendment Court has whether question, forbids did sentence unless the finds facts judge jury to increase defendant’s concede).” (Rita (and did v. United States not find the offender not 203, 215, U.S._,_[168 2466]). this L.Ed.2d 127 S.Ct. For reason, that as long we with the General’s contention agree Attorney eligible renders defendant circumstance that single aggravating been in accordance with term sentence has established requirements factfinding engaged and its additional Apprendi progeny, the three available among court in sentence selecting appropriate options trial. does not violate the defendant’s right as it trial in criminal cases
Apprendi examined law, between verdict and a “historic link recognizing existed common *13 within on discretion judges’ operate the consistent limitation judgment 482.) at At the 530 U.S. p. the limits of the legal penalties.” (Apprendi, time, this “nothing history suggests also observed that in same Apprendi into consider discretion—taking for to exercise it is impermissible judges both to offense and offender—in relating imposing ation various factors 481.) (Id. statute.” at p. within the range prescribed judgment discretion in within sentencing noted have exercised long court that judges Thereafter, (Ibid.) Blakely, explicitly recog statutory limits. sentencing, in indeterminate factfinding” role of legitimate “judicial nized in which the rule on those facts he deems judge may “implicitly important the exercise of his discretion.” sentencing (Blakely, supra, 542 U.S. 309.) p. so aas defendant is for the term
Accordingly, long eligible upper virtue of facts that have been established with Sixth Amendment consistently the federal Constitution the trial court to principles, rely permits upon number of aggravating circumstances in its discretion to select the exercising circumstances, term by balancing appropriate aggravating mitigating regardless whether the facts those have been underlying circumstances found to be true “Judicial in the course of by jury. factfinding selecting indictment, sentence within the authorized does not range implicate jury-trial, reasonable-doubt of the Fifth and Sixth Amendments.” components (Ha 545, 524, (2002) v. United States 536 U.S. L.Ed.2d [153 rris 2406].) 122 S.Ct. Facts considered trial courts in their discre exercising tion within the statutory authorized for range a crime “have punishment been the traditional domain of have not been judges; they alleged indictment or a reasonable doubt. There proved beyond is no reason to believe that those who framed the Fifth and Sixth Amendments would have 560; of them as the thought (Id. elements of the crime.” see Rita v. United p. States, _ 215, 551 U.S. at L.Ed.2d at 127 S.Ct. at [168 “Sixth Amendment cases do not forbid a automatically 2465-2466] [the sentencing court to take account determined of factual matters not aby jury and to increase the sentence in consequence”].)
The facts
which the trial court relies in
discretion to
upon
exercising
select
the terms
among
available for a
offense “do not
particular
pertain
whether the defendant has a legal
to a lesser sentence—and that makes
all the difference insofar as judicial
the traditional role
impingement upon
is concerned.”
542 U.S. at
(Blakely, supra,
Under
California’s determinate
the existence of a
sentencing system,
single aggra
circumstance is
vating
sufficient to make the defendant
for the
legally
eligible
622,
26,
term.
(1996)
v. Osband
Cal.4th
Cal.Rptr.2d
[55
Therefore,
640].)
P.2d
if one
circumstance has been estab
lished in accordance with the constitutional
set forth in
requirements
Blakely,
sentence,
the defendant is not
entitled” to the middle
and the
“legally
term sentence is the
maximum.”3
“statutory
similar,
Addressing
state
analysis,
schemes
purposes
Sixth Amendment
DSL,
Supreme
California’s
Courts of Arizona and Colorado have reached the same
(State
618,
(2005)
625],
v.
conclusion.
cert. den. sub nom.
815
in Booker that held the federal
of the
court’s
majority
part
opinion
unconstitutional,
the relevant
sentencing guidelines
emphasized
principles
case,
he took issue with a
his
in that same
which
dissenting opinion
a different
majority
authored
Justice
separate opinion
by
Breyer
court,
the constitutional
the federal sentenc-
addressing
by rendering
problem
dissent,
Justice
by
In his
Justice Stevens
ing guidelines discretionary.
(joined
Scalia,
clear,
Souter)
the author
“To be
our
Blakely,
Justice
explained:
. .
factfinding.’
. does not establish the
holding
judicial
‘impermissibility
Instead,
an offense level determina-
judicial factfinding
support
[Citation.]
unconstitutional when that
raises the
only
finding
tion or an enhancement
sentence
the sentence that
beyond
lawfully
by
could have been
imposed
(Booker,
the
or admitted
the
by
by
reference
facts found
defendant.”
Stevens,
supra,
(dis.
J.).)5
As noted under the DSL the of one aggravating presence circumstance renders it lawful for trial court an term upper impose Osband, (See (b); sentence. People supra, subd. 13 Cal.4th § 728.) The court’s factual the existence of additional findings regarding circumstances increase the likelihood that it aggravating may will actually sentence, impose but these do not themselves further upper findings raise the authorized sentence term. No matter how beyond many upper court, additional are aggravating facts found term remains the maximum that be may on those imposed. Accordingly, judicial factfinding additional circumstances is not unconstitutional. us to circumstances requires recognize two
serve distinct functions in California’s current determinate analytically Booker, (See Breyer’s Justice did take opinion point. not issue with Justice Stevens on this supra, J.).) (maj. by Breyer, dissenting 543 U.S. at opn. separate opinion Neither did (Booker, sentencing judge, of Justice Thomas. 543 U.S. at without 319 [“the jury, [may] dispute jury-authorized resolve a factual in order to decide where within the sentenced”].) range Guidelines a defendant should be illustrate, provided sentencing range To Justice Stevens of a in which the example case guidelines, taking only under the federal into account the offense itself and the defendant’s history, possessed criminal was 130 to 162 months. If the court found that the defendant firearm, sentencing range judicial would be enhanced to months. This “act of factfinding” regarding the firearm with the Sixth Amendment so comply enhancement would months, long sentencing greater longest court then selected a sentence no than 162 (Booker, history. sentence authorized the defendant’s offense and criminal 543 U.S. irrelevant, Stevens, (dis. J.).) it for Sixth opn. hypothetical, In Justice Stevens’s was possession Amendment that the court taken account the defendant’s purposes, have into selecting range jury’s particular of a firearm in sentence within the authorized history. verdict and the defendant’s criminal maximum function is to raise the permissible scheme. One The other function is to the middle term to the term. sentence from *16 court’s exercise of its discretion as a consideration in the trial serve for the defend- the term from those authorized among selecting appropriate between these two the DSL does not distinguish ant’s offense. Although functions, the clear that we must view it is now light them Federal constitutional differently. prin- federal Constitution as treating the the to a trial jury require a criminal defendant right ciples provide doubt to factual a reasonable beyond its case prove prosecution function, the first but (other convictions) than that serve determinations prior determinations that serve second leave the trial court free to make factual term does not infringe upon function. It follows that upper imposition so as one long legally constitutional right jury the defendant’s to exist has by jury, circumstance has been found sufficient aggravating defendant, admitted based the defendant’s or is justified upon been by record of convictions.
V. case, above to the we conclude the conclusions set forth present Applying not violated the trial defendant’s trial was right jury constitutional term sentence for his conviction of continuous court’s imposition upper below, maximum statutory abuse. As we conclude that sexual explained verdict was the jury’s upper sentence to which defendant was exposed by case, term, (indeed, in this at least one circumstance. because of the Sixth two) established means that satisfy requirements was Amendment.6 term in the case that it the upper present
The trial court stated imposed seriousness, nature, and circumstances of because of “the primarily circumstances, commented that defend- the court crime.” In those describing with him on numerous ant “forced the victim ... to have sexual intercourse use of force as identification of the defendant’s occasions.” The trial court’s circumstance verdict. The infor- was jury’s an aggravating supported doubt, found true a reasonable mation and the alleged, beyond means of continuous sexual abuse by defendant committed the offense of “force, violence, duress, menace, unlawful bodily and fear of immediate and 1203.066, (§ defendant ineligible probation. This rendered finding injury.” Kennard, J.) I, (conc.& (discerning See Black opn. dis. page 35 Cal.4th at trial, jury’s findings because “the Sixth Amendment no violation of defendant’s findings pertaining to eligibility, and the trial court’s pertaining probation to defendant’s (b) record,” an subdivision requirement of section defendant’s criminal satisfied exist, statutory for the “thereby making the term the maximum upper aggravating circumstance offense”). Furthermore, here, (a)(1).)
subd. and most for the issue significant presented true on this established an circum- jury’s finding allegation stance that rendered defendant for the term under section 1170. eligible Court, (See 4.408(a) Cal. Rules rule the trial court permits [which consider made”].) criteria related to the decision “reasonably being
Under established the same fact be used both to authority, deny and to v. Scott of an term sentence. probation support 331, 350, 1040]; Cal.4th fn. 12 885 P.2d see Cal.Rptr.2d com., Court, Advisory 4.420.) Com. Cal. Rules of rule An aggravat ing circumstance is a fact that makes offense worse than the “distinctively *17 Moreno v. (People ordinary.” (1982) 128 110 Cal.App.3d Cal.Rptr. [179 879]; v. People Young see Cal.App.3d Cal.Rptr. 338].) rules, Aggravating circumstances include those listed in the sentencing as well as facts any declared to be circumstances in “statutorily aggravation” Court, (Cal. 4.421(c)) Rules of rule other facts that are “reasonably Court, related to the (Cal. decision made.” being 4.408(a).) Rules of rule The convicted, child, crime of which defendant was continuous sexual abuse of a force, violence, menace, duress, can be committed without the use of or fear. 288.5, (See subd. (a).) The Legislature’s § of the use of force or designation fear as a circumstance that renders defendant ineligible probation constitutes an of that such conduct expression policy makes the offense of continuous sexual abuse worse than the ordinary” “distinctively v. Moreno, supra, 110) at and is Cal.App.3d p. something properly may be considered as an aggravating circumstance. Defendant’s of employment such means makes him of more deserving severe than that punishment merited for other offenders the same and thus is a fact “reason category related ably Court, to the decision (Cal. made.” Rules of being 4.408(a).) rule true, Because the found this to be allegation “maximum sentence” that could be “solely on the basis in the jury imposed of facts reflected verdict or admitted (Blakely, 303) 542 U.S. at was p. defendant term. to defendant’s
Contrary suggestion, the circumstance that California Court, Rules of 4.421(a)(1) rule lists violence” or the “great “threat of great harm” bodily as an factor aggravating does not that the signify jury’s finding (under section 1203.066), which did not include a finding “great” threatened, violence or harm was used or cannot be a valid aggravating circumstance in defendant’s case. The trial court not is limited to the Court, aggravating (Cal. circumstances listed in the rules. Rules of rule 4.408(a).) The circumstances listed in rule 4.421 are of general applicability and relevant 4.421(a)(l)’s most crimes. Rule inclusion of violence “great” or harm does not that a lesser preclude finding degree force or violence is an circumstance for a crime that can be committed without any violence, force 1203.066, or when the in section particularly Legislature, or violence as a circumstance the use of force has designated specifically offense. increases the gravity particular
Moreover, criminal circumstance—defendant’s a second aggravating 1Í70, (§ sentence. for the defendant eligible rendered history—also stated that the Court has consistently United States (b).) subd. The Supreme conviction. the fact of a does not apply 868]; Blakely, supra, U.S. at S.Ct. (Cunningham, supra, p._[127 490; 301; 530 U.S. at p. Apprendi, supra, 542 U.S. Almendarez-Torres 350, 118 S.Ct. U.S. 224 L.Ed.2d States United traditional, the most if not ... is (Almendarez-Torres).) “[Recidivism traditional, an offender’s sentence.” court’s increasing basis for a 523 U.S. at (Almendarez-Torres, the circumstances of it considered not only
The trial court stated out in the district circumstances set but also the other aggravating crime brief, listed the aggravating brief. In that the prosecutor attorney’s sentencing Court, 4.421(b)(2) as one rule in California Rules circumstance described in this case. probation report circumstances applicable Court, it an 4.421(b)(2) *18 Rules of rule specifies did likewise. California ... are numer convictions that “defendant’s prior circumstance aggravating reflected that defend report or seriousness.” increasing probation ous of (second of in 1992 May of three misdemeanors ant had been convicted 496]) 459], 484], stolen receiving theft and property [§ degree burglary [§ [§ of convictions in 1996 September he had suffered two felony and that also are both 459]). These convictions 487(a)] burglary theft (grand [§ [§ (1989) 213 (See v. Searle People of seriousness. increasing numerous and convictions are 1091, Cal.Rptr. prior 1098 898] [three Cal.App.3d [261 591, 609-610 numerous]; (1980) Ramos 106 Cal.App.3d [165 v. People had two minor of robbery a defendant convicted Cal.Rptr. 179] [where driving theft and adult convictions for petty offenses and juvenile prior seriousness].)7 license, were of increasing convictions without a prior 7 an adult are prior convictions as attorney’s brief stated: “The defendant’s The district felony convictions previous has two increasing seriousness. The defendant numerous or of 1996, trial court burglary.” That grand and one for a commercial one for a theft from brief) prior defendant’s five attorney’s only two of (by the district adoption referred its review, for its a trial court’s reasons appellate On is of no moment. convictions v. Garcia available, evidence.” appropriate, relevant “supported by upheld choice are if 73]; id. 1756, court did not err 1777 (1995) Cal.Rptr.2d [trial see Cal.App.4th 1775 [39 32 ” “ robbery in aggravating in case great bodily injury’ factor relying upon in ‘threats use, evidence firearm where substantial imposed personal for also was which enhancement use”]; (1988) People v. Hall gun 199 from . . . “by means distinct injury threats of showed trial 914, found factors Cal.Rptr. Cal.App.3d 458] [each 922 [245 read and considered record].) presumed to have The trial court by supported court was P.2d (1955) 514-515 (People Montgomery Cal.App.2d [287 probation report.
Defendant
he
contends
was entitled to a
trial
jury
on
because,
circumstance
of his
criminal
even if the trial court
prior
history
conviction,
may decide whether a defendant
properly
has suffered
prior
must
jury
determine whether
such
are
convictions
numerous or increasingly
Defendant,
however,
serious.
reads
conviction”
too
“prior
exception
v. McGee
People
narrowly.
(See
The determinations
convictions,
whether a
has
defendant
suffered
prior
whether
those convictions
are “numerous or of
(Cal.
seriousness”
increasing
520].) Its conclusion that
prior
defendant’s
increasing
convictions were numerous or of
supported by
seriousness is
probation
report, whose recitation of defendant’s criminal
history
challenged by
was not
defendant in the trial court.
urges
Defendant
us to
right
conclude that the federal
trial includes the
allegations.
determination on
conviction
He
likely
contends that
it is
that the
Supreme
United States
Court will overrule
because that decision is
Almendarez-Torres
*19
Apprendi
Blakely,
inconsistent with
and
and
Apprendi
Blakely
because neither
nor
dealt
issues,
directly with recidivism
this court
interpret
is free to
require
federal Constitution to
jury
a
trial on recidivism factors.
Almendarez-Torres,
Although
230-235,
some
reasoning
of the
supra,
pages
523 U.S. at
upon
Congress
which focused
whether
in its reference to recidivism intended to create an
factor,
element of a
sentencing
crime or a
is inconsistent with the
reasoning
court’s later
Apprendi
Blakely,
and
upon
which focuses
the practical
finding
effect of the factual
required,
“
Blakely
the court in
both
and
exempt explicitly
continued to
prior
‘the fact of a
”
490;
(Blakely,
conviction.’
supra,
p.
Apprendi,
542 U.S. at
quoting
supra,
U.S. at p.
Cunningham, supra,
860];
Booker,
p._[127
U.S. at
supra,
S.Ct. at
see also
543 U.S.
220, 245.)
Cunningham, Blakely,
Apprendi
Because
and
explicitly acknowledge that the federal
right
jury
conviction,
trial does not
prior
extend to the fact of a
speculate
we decline to
that
McGee,
high
(See
court
change
position
will
its
on that issue.
38 Cal.4th at
[discussing
continuing validity
707-709
of the
see also
exception;
Almendarez-Torres
Rangel-Reyes
v. United States
In defendant’s criminal summary, history jury’s the use of force violence establish two aggravating the offense involved or satisfy circumstances that Sixth Amendment independently requirements Therefore, term. he was not entitled render him for the eligible legally term, trial was not to the middle and his Sixth Amendment for the offense of continu by violated sentence imposition sexual abuse a child. ous
VI. terms of Defendant also contends consecutive facts not found a jury under section 669 based upon imprisonment Sixth when a rights. violated his Amendment Section 669 requires person (whether been convicted or more in the same or has of two offenses separate decide the terms are to run concurrently court must whether proceedings), satisfy history also the trial court’s his criminal does not upon Defendant contends reliance conviction, commands, process requires prior because due that a defendant’s constitutional court, beyond a proved the trial doubt. properly even if determined must be reasonable Furthermore, hearsay argues, prior only the evidence of convictions consisted defendant his statements, probation report, prove contained which are insufficient as matter of law to in the court beyond Presumably, applied convictions a reasonable doubt. the trial a standard prior Court, (See 4.420(b).) Rules of proof preponderance of the evidence. Cal. rule only prior held the fact of a need not Defendant notes that conviction Almendarez-Torres when alleged in an Because the defendant in that case admitted his recidivism be indictment. heightened guilty, no some standard of pleaded “expressed] he view on whether severity of might significantly determinations bear on the proof apply which (Almendarez-Torres,supra, 523 U.S. at sentence.” his the federal affirmatively supporting Defendant does not cite case contention that proved be a reasonable even if a requires prior beyond Constitution convictions to doubt the rule required. Supreme is not The United States Court has stated Almendarez- conviction, any the fact fact that increases exception as follows: “Other than of a Torres jury, be statutory maximum must submitted to penalty beyond prescribed for a crime *20 490.) (Apprendi, high U.S. at court beyond supra, doubt.” 530 proved reasonable severed suggested requirement proof beyond of a reasonable doubt could be never has that the (See, foregoing exception. rule or right jury purposes applying to of the its from the trial for 2006) (9th prior fact of a e.g., [“[T]he v. Cir. 458 F.3d U.S. Salazar-Gonzalez standard”]; using of the preponderance be a district court evidence conviction found (2d 2005) may find is well established that a court v. Barrero Cir. 425 F.3d [“[I]t U.S. evidence”].) prior by preponderance the fact of a conviction run, court the they
or If the fails to direct how terms are to consecutively. (Ibid.) be served concurrently. must defendant, case,
In our decision in this we this argument by rejected that a verdict the defendant of two or more concluding finding guilty “jury’s I, (Black crimes maximum for each statutory authorizes sentence offense.” Cunningham did 1263.) 35 Cal.4th at not address question Blakely apply whether established in consecutive principles under sentences section 669.
Cunningham, however, does not that undermine our previous conclusion of terms imposition consecutive under section 669 does not implicate In Black I we “Blakely’s defendant’s Sixth Amendment rights. explained underlying rationale is to a court’s inapplicable trial decision whether that sentences on two or more be served or require offenses consecutively Apprendi concurrently. We have recognized ‘. . . treated previously crime together with its sentence enhancement “functional equivalent” Sengpadychith, supra, aof single “greater” crime. [Citation.]’ Similarly, Blakely treats the crime Cal.4th at with a fact that together ais for a prerequisite eligibility greater as the functional punishment Blakely equivalent of a crime. The greater court’s decisions in high Apprendi are intended to historical protect defendant’s to a trial right jury crime, all on elements of the which the court concluded would be jeopardized aif legislature could label facts authorized affecting length sentence an offense as factors sentencing rather than as elements and thereby eliminate the trial on . . . right such facts. jury high Nothing H] Blakely, or Booker Apprendi, court’s decisions in suggests they apply to factual determinations do not serve as ‘functional equivalent’ I, (Black an 1262-1263, element of a crime.” Cal.4th omitted.) fn. held,
On this
courts of
have
with
point,
several states
consistently
I,
Black that a trial
our
opinion
court’s
of consecutive sentences
does not
(See
violate a defendant’s Sixth
Amendment
trial.
Smylie
v. State
2005)
(Ind.
823 N.E.2d
trial
has
court
[when
discretion to
sentence
consecutive
if it finds
least one
impose
circumstance and
statute contains no
applicable
concur-
presumption favoring
sentences,
rent
no
constitutional
with consecutive sentenc-
problem
“[t]here
ing so
as the
long
does not exceed the combined statutory
State v. Abdullah
máximums”];
convictions”]; (2006) P.3d [judicial v. Tanner 70 State Or.App. [150 31] does not Sixth in to consecutive sentences violate impose decision factfinding 377, Amendment]; 2006) v. State 207 S.W.3d (Tex.Crim.App. Barrow with and deal extension clearly upper-end its [“Apprendi progeny sentences, that of fact findings when extension is contingent upon individual not, however, never to the do speak were submitted These decisions jury. is to sentences when that authority a trial court’s cumulate authority is not but is fact-finding, wholly statute and based discrete provided by upon 929, (2005) 155 P.3d State v. Cubias Wn.2d 549 discretionary”]; [120 from that so as the sentence for Blakely seems clear long [“It 931-932] offense, as is exceed the maximum for statutory does not single offense here, satisfied”].) Blakely the case creates a state have concluded that if scheme sentencing
Some courts only by in of concurrent sentences that be overcome favor presumption made Amendment that those be findings factual the Sixth findings, requires 856, (See 3d 1 Ohio (2006) v. Foster 109 Ohio St. jury. State [2006 470, terms concurrent unless speci- 845 N.E.2d statute requires 491] [when made, Pers. to consecutive Blakely sentencing]; fied are findings applies 573], sub (2006) Wn.2d 731 P.3d cert. den. Restraint [147 of VanDelft _ _ 1172, U.S. L.Ed.2d Washington nom. [167 VanDelft sentences violates consecutive [concluding 127 S.Ct. imposition creates of concurrent sentencing, when statute Blakely presumption Cubias, 929].) latter 120 P.3d these Assuming State v. distinguishing however, correct, not create such a scheme. decisions are section 669 does not in favor of concurrent California’s statute does establish presumption sentences; if the court its concurrent sentences be imposed requirement terms for default merely not how the must run specify provides does (1984) 152 to exercise discretion. v. Reeder event the fails its 900, 479].) Cal.Rptr. Cal.App.3d terms, the court may
In consecutive whether deciding impose that, factors, but is no requirement there mitigating consider terms, the that an consecutive court find in order justify 669; Court, Rules of rule (See exists. Cal. circumstance § term, 4.425(a), (b).) are not In an findings required. imposing Factual (b)), (§ subd. must forth on record “facts reasons” the court set facts court deemed to be circumstances “ultimate that the including Court, cite (Cal. 4.420(e).) it need only Rules of rule But aggravation.” (c)), reasons (§ subd. and the for other choices “reasons” refer to the “primary a consecutive sentence need only given imposing (Cal. such sentence or factors” that the decision impose factor support Court, (c); see v. Tran 4.406(a), (b); subd. People Rules of rule see § 905]). Cal.Rptr.2d Cal.App.4th *22 The court’s high decision in Cunningham does not call into question the conclusion we reached previously regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a “sentencing made the after the by judge has made the jury decision[] factual findings the necessary subject defendant to the maximum statutory sentence on each offense” and does not the “implicate[] defendant’s to a right trial on jury facts that are the functional of elements of an equivalent I, (Black offense.” 1264.) 35 Cal.4th at we Accordingly, again conclude that defendant’s constitutional trial right was not violated jury by the trial court’s of consecutive sentences on all three counts.
VII. above, For the reasons stated the decision of the Court of Appeal affirmed.
Kennard, J., Baxter, J., J., Chin, J., Moreno, J., J., Werdegar, and Corrigan, concurred.
KENNARD, J., Concurring.
court,
this matter was first before this
When
the
held
majority
that California’s determinate
law did not
sentencing
violate
a defendant’s federal constitutional
to a
right
trial
with a
by jury,
beyond-a-
reasonable-doubt standard of proof.
(2005)
v. Black
The majority’s
holding
Black I was
rejected by
United States
Court in
Supreme