No Requirement of Jury Trial on Factors Justifying Upper Term or Consecutive Sentences Under California Determinate Sentencing Law

In People v. Black (2005) 35 C.4th 1238, 29 C.R.3d 740, 113 P.3d 534, defendant was convicted of one count of continuous sexual abuse of a child under P.C. 288.5 and two counts of lewd and lascivious conduct with a child under P.C 288. Count 1 was punishable by a term of 6, 12, or 16 years, and the trial judge imposed the upper term based largely on the facts that defendant had used force, abused a position of trust, and caused emotional and physical injury. With respect to the two counts of lewd and lascivious conduct, the trial judge imposed two indeterminate terms of 15 years to life. Based on the fact that a different victim was involved in each count, the court ruled that the sentences were to run consecutively with each other and with the punishment for count 1. Defendant's total term was thus 46 years to life, and the Court of Appeal affirmed.

Three weeks later, the U. S. Supreme Court issued 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., §438A, in which it held that a defendant in a criminal case is entitled to a jury trial on any fact that increases the maximum sentence to which the defendant is exposed for a particular offense. The California Supreme Court then granted review to determine the effect of Blakely on the validity of the trial judge's decisions to impose the upper term on count 1 and to require defendant to serve the sentences on all three counts consecutively. While this matter was pending, the U.S. Supreme Court handed down its decision in 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, and the parties filed supplemental briefs on the effect of Booker on the questions at issue. Held, affirmed.

(a) Background.

(1) Under the Determinate Sentencing Law (P.C 1170 et seq.; see 3 Cal. Crim. Law (3d), Punishment, §251 et seq.), three terms of imprisonment are specified for most offenses, but the sentence may be increased by statutory enhancements. The court must order the middle term, unless there are circumstances in aggravation or mitigation. If the upper term is imposed, the court may not consider an element of the offense charged or an enhancement, but otherwise has considerable discretion to identify aggravating factors. Unlike enhancements, these factors may be relied on even though they have not been found true by a jury. However, unless the middle term is imposed, the court must give reasons for its sentencing choice. (35 C.4th 1247, 1248.)

(2) 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, Supp., §438, established that a defendant has a federal constitutional right to a jury trial on sentence enhancements (a right previously accorded by statute to California defendants), regardless of whether the legislature has labeled a fact an element of the crime (jury required) or a sentencing factor (jury not previously required). Apprendi concluded that a fact, however labeled, that exposes the defendant to a sentence exceeding the maximum allowed if he or she were punished according to the facts reflected in the jury verdict alone is the equivalent of an element of the crime and must be submitted to the jury. However, the Court acknowledged that it is permissible for trial judges to exercise discretion in imposing a sentence within the range prescribed by statute. (35 C.4th 1249.)

(3) Blakely further delineated the line between factual findings that require a jury trial and sentencing factors on which a judge may make findings. Dealing with a standard range sentence that could be increased under specified conditions, the Blakely Court explained that, for purposes of applying the Apprendi rule, the statutory maximum sentence is not necessarily the maximum sentence stated in the statute, but rather it is the maximum sentence that a judge may impose solely on the basis of the facts reflected in the jury verdict. Blakely also recognized that some judicial fact-finding is permissible, especially in indeterminate sentencing. (35 C.4th 1251.)

(4) Booker held that the federal sentencing guidelines, which, if certain facts were found, required the sentence to be increased over that prescribed for the jury verdict, also violated a defendant's right to a jury trial. The Court noted that these guidelines were mandatory, but were they merely advisory, their use would not have violated the Sixth Amendment. The Court further concluded that, in order to remedy the constitutional problem, it was appropriate to sever the portions of the sentencing statute that made the guidelines mandatory and treat them as advisory only. (35 C.4th 1251.)

(b) Upper term.

(1) Blakely and Booker established a constitutionally significant distinction between (a) a sentencing scheme that permits judges to engage in the type of judicial fact-finding traditionally involved in the exercise of discretion employed in selecting a sentence from within the range prescribed, and (b) a sentencing scheme that assigns to judges the type of fact-finding role traditionally exercised by juries in determining the existence or nonexistence of elements of an offense. (35 C.4th 1253.)

(2) Defendant argued that a jury trial is required on the aggravating factors on which an upper term sentence is based, because the middle term is, in the words of Blakely, the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict." (2005 WL 1421815, p. 8, quoting Blakely.) Defendant reasoned that, because a court cannot impose the upper term unless there is at least one aggravating factor and because an aggravating factor cannot be an element of the offense, the jury's guilty verdict on the charged offense itself does not establish an aggravating factor. This contention is without merit. The federal Constitution permits the court to rely on any number of factors in exercising its discretion to select the appropriate term within the statutory range, regardless of whether the facts underlying those factors have been found to be true by a jury. This judicial fact-finding is within the traditional domain of judges. (35 C.4th 1253, citing Harris v. United States (2002) 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524, 5 Cal. Crim. Law (3d), Criminal Trial, Supp., §438.) The requirement of P.C. 1170(b) that the middle term be imposed unless an aggravating factor is found merely preserves the traditional broad range of judicial sentencing discretion. Although this statute is worded in mandatory language, the requirement that an aggravating factor exist is but a reflection of the requirement that all factors be reasonably related to the decision being made (see C.R.C., Rule 408(a), 3 Cal. Crim. Law (3d), Punishment, §253). (35 C.4th 1254.)

(3) Booker makes clear that the California sentencing scheme does not present the type of problem that the U.S. Supreme Court had in mind when it decided Blakely, namely, a trend in sentencing legislation in which legislatively-selected facts not only authorize or mandate heavier sentences than would otherwise be imposed, but increase the range of sentences possible for the underlying crime. First, California's adoption of the determinate sentencing law reduced the length of potential sentences for most crimes, rather than increasing them. Second, and more significantly, "the availability of upper term sentences under the determinate sentencing law does not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge). The Legislature did not identify all of the particular facts that could justify the upper term. Instead, it afforded the sentencing judge the discretion to decide, with the guidance of rules and statutes, whether the facts of the case and the history of the defendant justify the higher sentence. Such a system does not diminish the traditional power of the jury." (35 C.4th 1256.)

(4) Although P.C. 1170(b) establishes the middle term as a presumptive sentence, the upper term, not the middle term, is the "statutory maximum" for purposes of Sixth Amendment analysis. The jury's verdict of guilty on an offense authorizes the judge to exercise discretion in choosing one of the three terms specified by statute, so long as the discretion is exercised reasonably. Thus, the upper term is the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict." (35 C.4th 1257, 1258.)

(5) Apprendi, Blakely, and Booker all agree that judicial fact-finding is acceptable in the context of a discretionary, as opposed to mandatory, sentencing decision. The level of discretion available to a California judge in selecting which of the three available terms to impose appears comparable to the level of discretion that the Supreme Court has allowed federal judges to exercise in post-Booker sentencing. The determinate sentencing law's requirement that an upper term be imposed only if an aggravating factor exists is comparable to Booker's requirement that a federal judge's sentencing decision not be unreasonable. Both systems require the judge to make factual determinations. "Accordingly, we do not believe that the high court's decisions compel the conclusion that the trial court's identification of aggravating factors, in selecting a sentence within the upper, middle, and lower term range of sentences provided under California law, is unconstitutional." (35 C.4th 1260, 1261.)

(c) Consecutive sentences.

(1) Under P.C. 669 (3 Cal. Crim. Law (3d), Punishment, §284) whenever the defendant is convicted of two or more offenses, the judge must direct whether the sentences are to run concurrently or consecutively. CRC, Rule 425 (3 Cal. Crim. Law (3d), Punishment, §284), states the factors to be considered in making this determination. Defendant contended that, because the trial court cannot impose a consecutive term without making additional factual findings not contained within the jury's verdict, concurrent terms are the "statutory maximum" that can be imposed based on the jury's verdict alone, and any finding of a further fact or circumstance that would justify imposition of consecutive terms must be submitted to the jury. "The same reasoning that lead us to conclude that a jury trial is not required on the aggravating factors that justify imposition of the upper term leads us to conclude that a jury trial is not required on the aggravating factors that justify imposition of consecutive sentences." (35 C.4th 1262.)

(2) Blakely treats the crime together with a fact that is a prerequisite to eligibility for a greater punishment as the functional equivalent of a greater crime, and holds that a legislature may not eliminate the right to a jury trial by labeling facts affecting the length of the authorized sentence as sentencing factors, rather than as elements. Blakely is inapplicable in the consecutive sentences context. "When a judge considers the circumstances of each offense and the defendant's criminal history in determining whether the sentences are to be served concurrently or consecutively, he or she cannot be said to have usurped the jury's historical role. Permitting a judge to make any factual findings related to the choice between concurrent or consecutive sentences does not create an opportunity for legislatures to eliminate the right to a jury trial on elements of the offenses. Nothing in the high court's decisions in Apprendi, Blakely, or Booker suggests that they apply to factual determinations that do not serve as the 'functional equivalent' of an element of a crime." (35 C.4th 1263.)

(3) Before Blakely was decided, numerous cases held that Apprendi does not apply to the decision to impose consecutive sentences. In addition, California courts have held that Apprendi does not apply to the factual determinations made by the trial judge staying sentences on particular counts under P.C. 654, prohibiting multiple punishment (3 Cal. Crim. Law (3d), Punishment, §147). Nothing in Blakely or Booker undermines the conclusions reached in either group of cases. Both involve sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense. (35 C.4th 1263, 1264.)

A single justice, concurring and dissenting, affirmed the trial court's judgment, but disagreed with the majority's conclusion that imposition of an upper term under California's sentencing scheme never implicates a defendant's constitutional right to trial by jury. Imposing the upper term may be unconstitutional when trial judges weigh aggravating factors unrelated to the defendant's criminal history or that were not found true by a jury. (35 C.4th 1264.)

Witkin References

On sentencing determinations requiring jury trial, see 5 Cal. Crim. Law (3d), Criminal Trial, §§438, 438A.

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

On circumstances in aggravation, see 3 Cal. Crim. Law (3d), Punishment, §260 et seq.

On consecutive sentences, see 3 Cal. Crim. Law (3d), Punishment, §284 et seq.

On stay of execution under P.C. 654, see 3 Cal. Crim. Law. (3d), Punishment, §147.