Procedure on Remand After Sixth Amendment Violation in Upper Term Sentencing: Trial Court May Exercise Discretion To Select Among Three Terms Prescribed for Defendant's Offense, and Jury Trial on Aggravating Circumstances Is Not Required

In People v. Sandoval (2007) 41 C.4th 825, 62 C.R.3d 588, 161 P.3d 1146, defendant was charged with two counts of murder and one count of attempted murder. A jury found defendant guilty of voluntary manslaughter of the first two victims and attempted voluntary manslaughter of the third. The trial court imposed an upper term on one murder count and consecutive sentences on the other two counts. The trial court based its imposition of the upper term sentence on the great amount of violence and callous behavior demonstrated, defendant's lack of concern for the consequences of her actions, the vulnerability of the victims, and the planning and premeditation evidenced. The Court of Appeal affirmed. Held, reversed.

(a) Imposition of the upper term violated defendant's Sixth Amendment rights, as defined 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, which held that the Determinate Sentencing Law (DSL) violates a defendant's federal constitutional right to a jury trial by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence. (41 C.4th 835.) All of the aggravating circumstances cited by the trial court were based on the facts underlying the crime, and none were established by the jury's verdict. 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, the United States Supreme Court recognized two exceptions to a defendant's right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum--a fact admitted by the defendant or the fact of a prior conviction. However, none of the aggravating circumstances cited come within either exception. (41 C.4th 837.)

(b) The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 6 Cal. Crim. Law (3d), Reversible Error, §10, i.e., the error is reviewed to determine whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (41 C.4th 838.) Applying that standard, the error here was not harmless beyond a reasonable doubt. The evidence respecting the cited aggravating circumstances was hotly contested. The record does not support the conclusion, beyond a reasonable doubt, that the jury would have found the aggravating circumstances to be true had the issues been submitted to them. Accordingly, the case must be remanded for resentencing in a manner consistent with the Sixth Amendment as interpreted in Cunningham. (41 C.4th 839.)

(c) The remaining question is how resentencing should proceed on remand. The Attorney General has urged the court to reform the DSL to afford the trial court "broad discretion" in selecting among the three terms specified for a charged offense, subject to the requirements that the court consider the aggravating and mitigating circumstances as set out in statutes and rules and that reasons be stated for the choice of sentence; an upper term sentence would be authorized by the jury's verdict without any requirement of additional fact-finding by the judge. This reformation of the DSL would cure the constitutional defect in the statute, because the United States Supreme Court repeatedly has made clear the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. (41 C.4th 843.) In the present case, however, it is unnecessary for the court to decide whether the statute should be judicially reformed to render it constitutional because, while this case was pending, the California Legislature amended the DSL in substantially the same manner proposed by the Attorney General (see Stats. 2007, Chap. 3). A change in procedural law is not retroactive when applied to proceedings that take place after its enactment, such as the present case, where a Sixth Amendment error requires reversal of an upper term sentence and a remand for resentencing after that change. (41 C.4th 845.) Accordingly, "we direct that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham . . . are to be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature. The Judicial Council already has amended the sentencing rules to conform to the current version of the DSL" (see C.R.C., Rule 4.405 et seq.), "and these same rules will provide guidance for trial courts in proceedings conducted on remand." (41 C.4th 846.) Resentencing under this discretionary scheme is preferable to the alternative of maintaining the requirement that the middle term be imposed in the absence of aggravating or mitigating factors but permitting a jury trial on aggravating circumstances. Although such a process would likewise comply with the constitutional requirements of Cunningham, engrafting a jury trial onto the sentencing process established in the former DSL would significantly complicate and distort sentencing. (41 C.4th 848.)

(d) Resentencing under the revised sentencing process, in which the trial court has discretion to impose any of the three terms, does not deny defendant due process of law or violate the prohibition against ex post facto laws. (41 C.4th 853.) Whether a change in the sentencing process violates the Ex Post Facto Clause depends on the significance of its impact. Here, the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to--and would not be expected to--have the effect of increasing the sentence for any particular crime. Indeed, as applied to cases such as this one, in which defendant already has been sentenced to the upper term under the version of the DSL in place at the time the offense was committed, application of the revised sentencing scheme never could result in a harsher sentence and affords the defendant the opportunity to convince the trial court to exercise its discretion to impose a lower sentence. (41 C.4th 855.) Similarly, the Due Process Clause does not prohibit the application of the revised sentencing process to defendants whose crimes were committed prior to the date of this court's decision here. Defendant was put on notice by P.C. 193(a) that she could receive the upper term for her offense: the statute specifies that "[v]oluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years." That notice satisfies due process requirements. (41 C.4th 857.)

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.

On prohibition of ex post facto laws, see 1 Cal. Crim. Law (3d), Introduction to Crimes, §10 et seq.

On requirements of due process of law, see 7 Summary (10th), Constitutional Law, §615 et seq.