Determinate Sentencing Law Violates Sixth Amendment by Basing Upper Term Sentencing on Factual Determinations by Judge, Rather Than Jury

In Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856, the United States Supreme Court held upper term sentencing under the Determinate Sentencing Law (DSL) invalid under the Sixth Amendment, disapproving the California Supreme Court's holding to the contrary in People v. Black (2005) 35 C.4th 1238, 29 C.R.3d 740, 113 P.3d 740, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438B. Defendant was tried and convicted of continuous sexual abuse of a child under 14, an offense punishable under P.C. 288.5(a) by a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. Applying the DSL, the judge found by a preponderance of the evidence six aggravating circumstances and one mitigating circumstance, and, concluding that the aggravating circumstances outweighed the sole mitigating circumstance, sentenced defendant to the upper term of 16 years. The California Court of Appeal affirmed. The California Supreme Court denied review, having held in Black, published 9 days earlier, that judicial determination of sentencing factors under the DSL was constitutionally valid. Held, reversed. "[T]he DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (127 S.Ct. 860, 166 L.Ed.2d 860.)

(a) The DSL three-tiered sentencing system, and the rules governing its application, direct the sentencing court to start with the middle of the three possible terms imposed, and to move from that term only when the court itself finds facts--whether related to the offense or the offender--beyond the elements of the charged offense. These fact findings are based on a preponderance of the evidence. (127 S.Ct. 861, 166 L.Ed.2d 866, citing P.C. 1170(b) and C.R.C., Rule 4.420; see 3 Cal. Crim. Law (3d), Punishment, §254.)

(b) The Court "has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." (127 S.Ct. 863, 166 L.Ed.2d 868.) 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, laid down the principle that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury beyond a reasonable doubt. The Court has subsequently applied the Apprendi rule to facts permitting a sentence in excess of the "standard range" under the Washington sentencing statute (see Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, 412, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438A) and to facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines (see United States v. Booker (2005) 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438A). (127 S.Ct. 864, 166 L.Ed.2d 869.)

(c) Under the DSL, an upper term sentence may be imposed only when the trial judge finds facts constituting one or more aggravating circumstances. Under Blakely, the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Therefore, under the DSL, the statutorily prescribed middle term, not the upper term, is the relevant statutory maximum. Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates the Apprendi rule. (127 S.Ct. 865, 166 L.Ed.2d 870.)

(d) The California Supreme Court nevertheless held to the contrary in People v. Black, which determined that the DSL "does not implicate significantly the concerns underlying the Sixth Amendment's jury-trial guarantee." This Court's decisions, however, "leave no room for such an examination. Asking whether a defendant's basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge . . . is the very inquiry Apprendi's 'bright-line rule' was designed to exclude." (127 S.Ct. 869, 166 L.Ed.2d 874.) Also, the Black court's reliance on an equation of the DSL system to the post-Booker system is inappropriate; DSL sentencing does not resemble the advisory system the Booker court had in view. "To summarize: Contrary to the Black court's holding, our decisions from Apprendi to Booker point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (127 S.Ct. 871, 166 L.Ed.2d 876.)

(e) Adjustment of California's sentencing system in light of this decision is a matter for California, not this Court. Several states have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing. They have done so by calling on the jury--either at trial or in a separate sentencing proceeding--to find any fact necessary to the imposition of an elevated sentence. California already employs juries in this manner to determine statutory sentencing enhancements. Other states have chosen to permit judges genuinely to exercise broad discretion within a statutory range, which is unobjectionable under the Sixth Amendment. "California may follow the paths taken by its sister States or otherwise alter its system, so long as the State observes Sixth Amendment limitations declared in this Court's decisions." (127 S.Ct. 871, 166 L.Ed.2d 876.)

Three justices dissented in two separate decisions. An opinion joined by all of the dissenters urged that the DSL, in that it allows a judge to choose a reasonable sentence within a legislatively established range, is constitutionally indistinguishable from the advisory Federal Sentencing Guidelines scheme approved in Booker. The other opinion, joined by two of the dissenters, disagreed generally with the Apprendi line of cases and suggested that the doctrine be limited to sentencing factors based on the nature of the offense, rather than of the offender. (127 S.Ct. 872, 166 L.Ed.2d 879.)

Witkin References
On right to jury determination of sentencing factors, see 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §§438A, 438B.

On Determinate Sentencing Law generally, see 3 Cal. Crim. Law (3d), Punishment, §251 et seq.

On right to jury trial in criminal proceedings generally, see 5 Cal. Crim. Law (3d), Criminal Trial, §435 et seq.