People v. CatarinoPeople v. Catarino
- Reporters:
- , , ,
- Before:
- Liu, Guerrero, Corrigan, Kruger, Groban, Jenkins, Evans
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
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
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.
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.” (
Section 1170.1 governs most determinate sentencing. For certain sex offenses, however, the Penal Code establishes two alternative sentencing frameworks. First, under
The statute prescribing the lower, middle, and upper terms for six of Catarino‘s seven counts of conviction set them at
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 . . . .”
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.” (
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
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
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
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
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
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
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
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.