On July 19, 2007, the California Supreme Court decided two cases presenting a variety of issues raised by the United States Supreme Court’s opinion in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856; 2007 WL 135687; 2007 US Lexis 1324. The United States Supreme Court, 6 to 3, held in Cunningham that the portion of California’s Determinate Sentencing Law (DSL) permitting judges to impose aggravated terms for reasons not admitted by the defendant or found by a jury is unconstitutional. The California Supreme Court’s response to Cunningham came in two cases, People v. Black (2007) __ Cal.4th __; 2007 DJ DAR 11041; DJ, 7/20/07, and People v. Sandoval (2007) __ Cal.4th __; 2007 DJ DAR 11051; DJ, 7/20/07. The decisions in Black and Sandoval raise a slew of constitutional issues. This article discusses some of those issues.
In Black, the Supreme Court held that the failure of defense counsel to object did not waive any Cunningham challenge, since binding California law precluded any successful challenge to California’s DSL law. That’s the only issue the defense won in Black.
The court ruled that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Emphasis in original.)
In other words, if the court can find at least one aggravating circumstance that was found by the jury, admitted by the defendant, or qualifies as an exception to the jury-finding requirement, the sentencing judge is free to impose upper term.
The Supreme Court is wrong on this point, and I suggest that Black will not be the law of the land for long. They say, “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’”
Not true. A sentencing court may not impose upper term merely because it finds one aggravating factor true; the court must weigh that factor and find that it justifies upper term. The presumption that a defendant is entitled to the middle term remains unless and until the sentencing court both makes a finding that there is an aggravating factor and weighs that factor to determine that upper term is justified.
The court found two valid aggravating factors. The first was that the defendant used force. The actual court rule on this (Cal. Rules of Court, rule 4.421(a)(1)) refers to “great violence,” or the “threat of great bodily harm.” But the court says that the list of aggravating factors in the court rules is not exhaustive, and essentially any fact related to the crime can qualify.
The crimes here were Penal Code section 288.5, continuous sexual abuse, and Penal Code section 288, subdivision (a), lewd acts on a child. The jury found that the no-probation allegation under Penal Code section 1203.066, subdivision (a)(1), was true. That allegation recited that the defendant used force. So the Supreme Court concluded that the jury did find force and the trial court could thus validly rely on that finding to justify upper term.
The court found a second valid aggravating factor: the defendant’s priors. The court first rules that priors are an exception to Cunningham, and then articulates the scope of that exception. First, the court says that priors are an exception, “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” It is true that the United States Supreme Court keeps articulating its rule requiring juries to find facts increasing a defendant’s sentence with an exception.
For example, the Supreme Court in Cunningham stated the rule this way: “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (127 S.Ct. 856, 860.) The fly in this ointment is the phrase, “other than a prior conviction.” But our position is that this is not a resolution of whether there is an exception for prior convictions, it is just a notation that the court has not resolved that issue.
We have been arguing for years that prior convictions must be proved beyond a reasonable doubt to a jury, just as with any fact being relied on to increase a defendant’s sentence. The United States Supreme Court has previously ruled that the United States Constitution does not require a jury trial on a prior conviction alleged as an enhancement. (Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350].)
However, in Apprendi, the United States Supreme Court held 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 v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) The United States Supreme Court in Apprendi stated that Almendarez-Torres “represents at best an exceptional departure from the historic practice that we have described.” (Apprendi v. New Jersey, supra, 530 U.S. 466, 487.)
The court also stated:
Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. (Apprendi v. New Jersey, supra, 530 U.S. 466, 489-490.)
Of the greatest importance, the fifth justice voting for the holding in Almendarez-Torres was Justice Thomas, who wrote a concurring opinion in Apprendi. Thomas provided the critical fifth vote, in which he stated that he was wrong in Almendarez-Torres, and concluded, “it is evident why the fact of a prior conviction is an element under a recidivism statute.” (Apprendi v. ew Jersey, supra, 530 U.S. 466, 521, Thomas, J., concurring.)
Adding the four votes for the lead opinion with the fifth vote from Justice Thomas leaves no doubt that Almendarez-Torres is no longer the law and that a prior conviction must in fact be proved to a jury. Thus, we should argue that the defendant was entitled to a jury trial on all aspects of the alleged prior conviction.
The second question presented with respect to prior convictions is the scope of the exception for prior convictions. In Black, the California Supreme Court stated that the exception for prior convictions includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” This is dead wrong; in fact the United States Supreme Court has already considered and rejected the claim that the exception for priors is broader than the mere fact of the prior conviction itself.
In his dissent in Cunningham, Justice Kennedy wrote:
The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not. California attempted to make this initial distinction. Compare Cal. Rule of Court 4.421(a) (Criminal Cases) (West 2006) (listing aggravating [f]acts relating to the crime), with Rule 4.421(b) (listing aggravating [f]acts relating to the defendant). The Court should not foreclose its efforts. (Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856, 872], dis. opn. of Kennedy, J., internal quotation marks omitted.)
The “facts relating to the defendant” that Justice Kennedy mentioned, to which rule 4.421(b) refers, are recidivism-related factors. Rule 4.421(b) provides:
Facts relating to the defendant include the fact that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior prison term;
(4) The defendant was on probation or parole when the crime was committed; and
(5) The defendant’s prior performance on probation or parole was unsatisfactory.”
The majority in Cunningham said, in response to Kennedy’s point:
Justice KENNEDY urges a distinction between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not. Post, at 872 (dissenting opinion). Apprendi itself, however, leaves no room for the bifurcated approach Justice KENNEDY proposes. See 530 U.S., at 490, 120 S.Ct. 2348 (“[A]ny 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.” (emphasis added in Cunningham)). (Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856, 869, fn. 14, quoting Apprendi.)
Thus, Justice Kennedy raised this point and the majority rejected it. So even if prior convictions are an exception to Cunningham, that exception is limited to the fact of the prior conviction, not these so-called “recidivist factors.” On this point the California Supreme Court is dead wrong.
Finally, the California Supreme Court ruled in Black that the imposition of consecutive sentences does not violate Cunningham, because the jury’s verdict on the additional counts permits a consecutive term. We disagree on this point too, since Penal Code section 669 says that if the court fails to make a sentence concurrent, it becomes consecutive as a matter of law.
Stayed Tuned for Part two - SANDOVAL