Upper Term Sentence Does Not Violate Right to Jury Trial Where at Least One Aggravating Circumstance Is Established by Means Satisfying Sixth Amendment; Imposition of Consecutive Terms for Multiple Offenses Does Not Implicate Sixth Amendment Rights

In People v. Black (2007) 41 C.4th. 799, 62 C.R.3d 569, 161 P.3d 1130, 2007 WL 2050875, defendant was convicted by a jury of one count of continuous sexual abuse against his minor stepdaughter and two counts of lewd and lascivious conduct with her friends. The jury found true allegations that defendant used force when committing the continuous sexual abuse offense. Defendant was sentenced to the upper term on that count, and consecutive sentences were imposed on all three counts. The Court of Appeal and the California Supreme Court affirmed (see People v. Black (2005) 35 C.4th 1238, 29 C.R.3d 740, 113 P.3d 534, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438D (Black I)). However, the United States Supreme Court granted certiorari and remanded the matter for reconsideration in light of that court's decision in Cunningham v. California (2007) 549 U.S. ____, 127 S.Ct. 856, 166 L.Ed.2d 856, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438E, disagreeing with the California Supreme Court's analysis in Black I and holding that California's Determinate Sentencing Law (DSL) violates a defendant's federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. Held, affirmed.

(a) In considering defendant's challenge to the validity of the upper term sentence, several issues must be addressed that arise in the wake of Cunningham. (1) Did defendant's failure in the trial court to request a jury trial on aggravating circumstances forfeit his right to challenge on appeal the imposition of the upper term sentence? (2) If defendant did not forfeit the issue, did imposition of the upper term here violate his right to jury trial? (3) Does the reasoning of the line of United States Supreme Court decisions culminating in Cunningham require that a jury, rather than the trial court, find the facts that support imposition of consecutive sentences for multiple offenses? "Concluding that defendant did not forfeit the issue by failing to object to his sentence on Sixth Amendment grounds in the trial court, we hold that imposition of an upper term sentence did not violate defendant's right to a jury trial, because at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term. Finally, consistent with this court's determination in Black I, we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms." (41 C.4th 805.)

(b) Defendant did not forfeit his right to raise the jury trial issue by failing to object to the sentencing procedure in the trial court. Although challenges to procedures or to the admission of evidence normally are forfeited unless timely raised in the trial court, this is not so when the pertinent law later changes so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change. Trial here was held after the high court's seminal decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, 5 Cal. Crim. Law (3d), Criminal Trial, §438 (holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt), but before its decision in Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438C (clarifying that the prescribed "statutory maximum" for these purposes is not necessarily the maximum penalty stated in the statute for the crime, but rather the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant). (41 C.4th 810.) At the time of defendant's trial, no California case supported the proposition that Apprendi required a jury trial on aggravating circumstances, which, under the DSL, were to be decided by the judge. Prior to Blakely, it was widely assumed that, for purposes of the Apprendi rule, the maximum term authorized by the jury's verdict was the upper term. "We conclude that, at least with respect to sentencing proceedings similar to the one here at issue, preceding the Blakely decision, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsel's failure to object at trial." (41 C.4th 812.)

(c) Imposition of the upper term does not infringe on a defendant's constitutional right to a jury trial so long as one legally sufficient aggravating circumstance is established by means satisfying the Sixth Amendment, i.e., an aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based on the defendant's record of prior convictions. Further, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options pursuant to the DSL does not violate the defendant's right to jury trial. So long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely on any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. Facts considered by trial courts in exercising their discretion within the statutory range of punishment authorized for a crime have been the traditional domain of judges; they need not be alleged in the indictment or proved beyond a reasonable doubt. (41 C.4th 812.) Cunningham and its antecedents do not prohibit a judge from making the factual findings that lead to the selection of a particular sentence. (41 C.4th 813.) Aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, Cunningham makes it clear that the Sixth Amendment treats them differently. The constitutional guarantee of a jury trial requires the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. (41 C.4th 815.)

(d) Applying these conclusions here, 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. The "statutory maximum" sentence to which defendant was exposed by the jury's verdict was the upper term, because at least one aggravating circumstance (indeed, in this case, two) was established by means that satisfy Sixth Amendment requirements. The jury's true finding on the allegation that defendant committed the offense with force rendered defendant eligible for upper term sentencing under the DSL. (41 C.4th 816.) Defendant's criminal history also rendered him eligible for the upper term sentence. The trial court indicated that it considered both the circumstances of the crime and the defendant's criminal history in sentencing defendant. (41 C.4th 818.)

(e) Cunningham does not undermine this court's holding in Black I that the imposition of consecutive terms for multiple offenses does not involve a defendant's Sixth Amendment rights. Nothing in that case or its antecedents suggests that they apply to factual determinations that do not serve as the functional equivalent of an element of a crime. (41 C.4th 821.) In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that the court find that an aggravating circumstance exists. Factual findings are not required; the sentencing court need only cite "reasons." (41 C.4th 822.)

Witkin References

On right to jury trial on sentencing factors, see 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438 et seq.

On nature and scope of right to jury trial generally, see 5 Cal. Crim. Law (3d), Criminal Trial, §435 et seq.