# People v. Black

> California Supreme Court · June 20, 2005 · 29 Cal. Rptr. 3d 740

URL: https://www.frixlaw.com/law-library/cases/9785603

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. KEVIN MICHAEL BLACK, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 20, 2005
- **Citations:** 29 Cal. Rptr. 3d 740; 35 Cal. 4th 1238; 2005 Daily Journal DAR 7308; 113 P.3d 534; 2005 Cal. Daily Op. Serv. 5326; 2005 Cal. LEXIS 6566
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** George, Kennard
- **Cited by:** 152 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Cunningham v. California, 549 U.S. 270 (2007).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785603

## How later opinions describe it (automated extraction)

- concluding that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial"
- concluding that “the judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence under California law does not implicate a defendant’s Sixth Amendment right to a jury trial”
- stating, remarkably, that "[t]he high court precedents do not draw a bright line"

## Opinion text

KENNARD, J.,
Concurring and Dissenting.—The question here is this: Do the United States Supreme Court’s recent trio of decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] (Blakely), and United States v. Booker (2005) 543 U.S. 220 [ 160 L.Ed.2d 621 , 125 S.Ct. 738 ] (Booker) affect California’s determinate sentencing law? More precisely, is a defendant entitled to have a jury determine the existence of either (1) an aggravating circumstance that would support the trial court’s imposition of consecutive sentences, or (2) an aggravating circumstance justifying the court’s imposition of an “upper term,” which in California is the highest of three possible prison terms for most felonies? The majority’s answer to each question is “no.”
I agree with that answer as to the first question.
With respect to the second question, however, I disagree with the majority’s holding that an upper term sentence will never violate a defendant’s constitutional right to a jury trial. Under California law, a trial court may impose an upper term only if it concludes that the greater punishment is justified by one or more aggravating circumstances, which may be either facts relating to the crime or facts relating to the defendant’s criminal history. Under the three high court decisions I just mentioned, the *1265 Sixth Amendment to the federal Constitution guarantees a defendant a right to a jury trial on any aggravating fact (other than a fact concerning the defendant’s criminal history) that the trial court uses to impose an upper term. This means that under California’s sentencing scheme a trial court may use an aggravating fact to justify an upper term only if: (1) a jury has máde a finding on the aggravating fact, (2) the defendant has admitted the aggravating fact, (3) the defendant has validly waived the right to a jury trial on the aggravating fact, or (4) the aggravating fact relates to the defendant’s criminal record rather than to the circumstances of the conviction offense. Absent one of these situations, the trial court may not impose an upper term sentence.
Here, the trial court relied on certain aggravating facts to justify sentencing defendant to an upper term. Because one of those aggravating facts related to defendant’s criminal history, and because the jury made a finding on another aggravating fact when it found true an allegation that made defendant ineligible for probation, the trial court’s imposition of the upper term did not violate defendant’s right to jury trial under the federal Constitution. For this reason, I join the majority in affirming the trial court’s judgment, even though I disagree 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.
I. Background
Defendant was convicted of one count of engaging in continuous sexual abuse of a child (Pen. Code, § 288.5), 1 his stepdaughter. He was also convicted of two counts of child molestation (§ 288, subd. (a)) based on allegations that he molested two of his stepdaughter’s friends. The jury found true special allegations, affecting probation eligibility, that defendant used force or fear in committing the section 288.5 violation and that he had engaged in “substantial sexual conduct” with his stepdaughter (§ 1203.066, subd. (a)(1), (8)); the jury also found that the three crimes involved multiple victims, qualifying him for an indeterminate sentence under the “One Strike” law (§ 667.61).
The trial court imposed the upper term of 16 years for the violation of section 288.5 (continuous sexual abuse of a child), giving these reasons: Defendant forced his stepdaughter to have intercourse with him on numerous occasions, defendant’s stepdaughter was particularly vulnerable, defendant abused a position of trust and confidence, and defendant inflicted emotional and physical injury on his stepdaughter. The court also mentioned that it had *1266 considered other factors described in the prosecutor’s brief. These factors were: the crime involved a high degree of cruelty and callousness, and it showed planning or sophistication; defendant’s violent conduct showed that he was a danger to society; and defendant’s prior misdemeanor and felony convictions were of increasing seriousness. Applying the One Strike law, the court also imposed a consecutive term of 15 years to life for each of the two child molestation violations under section 288, subdivision (a).
With respect to the one count under section 288.5 (continuous sexual abuse of a child), defendant argues that under the Sixth Amendment to the federal Constitution he was entitled, to have a jury determine beyond a reasonable doubt the existence of each of the aggravating factors justifying imposition of the upper term.
II. California’s Sentencing Scheme
California law specifies a range of three prison terms for most felonies: the upper term, the middle term, and the lower term. Pertinent here is subdivision (b) of section 1170, which states: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Italics added.) This provision is echoed in rule 4.420(b) of the California Rules of Court: “Selection of the upper term is justified only if after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation.” (Italics added.) Thus, under California’s sentencing scheme, the trial court cannot impose the upper term unless it finds the existence of one or more aggravating circumstances. That finding is made under a “preponderance of the evidence” standard. (Ibid.; People v. Scott (1994) 9 Cal.4th 331, 349 [ 36 Cal.Rptr.2d 627 , 885 P.2d 1040 ].)
III. United States Supreme Court’s Recent Sentencing Decisions
Pertinent here is the high court’s trilogy of recent sentencing decisions: Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], and Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ].
Apprendi, decided in 2000, involved a New Jersey law that provided for an extended term of imprisonment if the trial court found by a preponderance of the evidence that the crime was committed “ ‘to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” (Apprendi, supra, 530 U.S. at p. 469 .) The high court held that before imposition of the extended sentence the defendant was *1267 entitled to a jury trial at which the prosecution had to prove beyond a reasonable doubt the facts justifying the extended commitment. The court explained that any fact exposing the defendant “to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone” (Apprendi, supra, at p. 483 , italics & fn. omitted) is the equivalent of an element of the crime, thus triggering the Sixth Amendment’s right to a jury trial. Generally, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum [2] must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, at p. 490, italics added.) Outside the ambit of this rule, the court said, are prior convictions, because “recidivism ‘does not relate to the commission of file offense’ itself’ (id. at p. 496), and because “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had a right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find [a] required fact under a lesser standard of proof’ (ibid.).
Some four years later, in 2004, the high court in Blakely applied its Apprendi holding to the State of Washington’s sentencing scheme. In that case, the defendant was convicted of second degree kidnapping with a firearm, a felony punishable by up to 10 years in prison. Under Washington law, the “ ‘standard range’ ” for the crime was 49 to 53 months, but a trial court could exceed that range if it found “ ‘substantial and compelling reasons justifying an exceptional sentence.’ ” (Blakely, supra, 542 U.S. at p. 300 [ 124 S.Ct. at p. 2535 ].) The law contained a nonexclusive list of aggravating factors. The trial court found the existence of one of those factors (deliberate cruelty) and imposed a 90-month sentence. (Ibid.)
Blakely invalidated the State of Washington’s sentencing scheme insofar as it did not provide the defendant with a jury trial, requiring proof beyond a reasonable doubt, on the existence of aggravating factors used to increase the defendant’s sentence. The Blakely court reiterated its holding in Apprendi 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.’ ” (Blakely, supra, 542 U.S. at p. 301 [ 124 S.Ct. at p. 2536 ], italics added, quoting Apprendi, supra, 530 U.S. at p. 490 .) The term “statutory maximum,” Blakely explained, 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.” (Blakely, supra, 542 U.S. at p. 303 [ 124 S.Ct. at p. 2537 ].) “In other words,” Blakely said, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional *1268 findings. When the judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation] and the judge exceeds his proper authority.” (Ibid.) “[E]very defendant,” the high court held, “has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” (Id. at p. 313 [ 124 S.Ct. at p. 2543 ].)
The next year, in Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ], the high court had to determine whether, under Apprendi, supra, 530 U.S. 466 , and Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], the Federal Sentencing Guidelines violated the Sixth Amendment’s right to a jury trial. The decision had two majority opinions, each deciding a distinct issue.
The first opinion, authored by Justice Stevens, áddressed the question whether the Federal Sentencing Guidelines violated the Sixth Amendment. Of particular significance here is part II of that opinion. ( Booker, supra, 543 U.S. at pp. 229-237 [125 S.Ct. at pp. 748-752].) There, the high court explained that if the guidelines were “merely advisory,” “their use would not implicate the Sixth Amendment,” because judges may “exercise broad discretion in imposing a sentence within a statutory range.” (Booker, supra, 543 U.S. at p. 233 [ 125 S.Ct. at p. 750 ].) But, it noted, the guidelines “are mandatory and binding on all judges” (ibid.) because they state that the sentencing court “ ‘shall impose a sentence of the kind, and within the range’ established by the Guidelines, subject to departures in specific, limited cases” (ibid.). Thus, Booker held, the Federal Sentencing Guidelines were unconstitutional.
The second majority opinion, authored by Justice Breyer, discussed the remedy for the constitutional violation found in the first opinion. Explaining that there were two possible remedies—(1) to engraft onto the guidelines a jury trial requirement, or (2) to make the guidelines advisory rather than mandatory—the court chose, the latter, reasoning that to engraft a jury trial requirement onto the sentencing guidelines would destroy them. It concluded that the provisions in the federal sentencing statute that made the guidelines mandatory and that set forth standards of review on appeal should be severed and excised, and that, with these excisions, the remainder of the guidelines were constitutional. ( Booker, supra, 543 U.S. at pp. 258-265 [125 S.Ct. at pp. 764-768].)
To summarize: the high court’s decisions in Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], and Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ], hold that unless the defendant waives the right to jury trial, the trial court may not, relying on offense-based facts not found by a jury beyond a reasonable doubt or admitted by the defendant, sentence the defendant to a prison term greater than the maximum sentence authorized by *1269 the jury’s verdict. The trial court may exceed the maximum sentence only if justified by the defendant’s prior criminal history.
IV. Application of High Court’s Recent Trilogy of Sentencing Decisions to California’s Sentencing Scheme
California law prohibits a trial court from sentencing a defendant to the upper term unless it finds the existence of one or more aggravating circumstances. (§ 1170, subd. (b).) Absent such findings, the middle term is the maximum sentence it may impose. Thus, under our system, the statutory maximum, that is, “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdicf ’ (Blakely, supra, 542 U.S. at p. 303 [ 124 S.Ct. at p. 2537 ]), is the middle term of imprisonment. Insofar as California law permits a trial judge to impose a sentence greater than the statutory maximum, based on facts not found by a jury beyond a reasonable doubt, it violates the Sixth Amendment to the federal Constitution, as construed in Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], and Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ],
This does not mean that a trial court’s upper term sentence always violates a defendant’s jury trial right. If any aspect of the defendant’s prior criminal history is an aggravating circumstance, if the jury makes special findings of aggravating facts that justify imposition of the upper term, if the defendant admits the existence of aggravating facts, or if the defendant waives the right to jury trial, the court may impose the upper term without violating the defendant’s constitutional rights. But under Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], and Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ], absent waiver of the right to jury trial, the trial court may not impose the upper term, thereby exceeding the statutory maximum, when the decision is based solely on (1) offense-based facts that (2) are not admitted by the defendant and (3) are not found by a jury. In this situation— that is, when the trial court rather than the jury has acted as the trier of fact in determining the existence of one or more offense-based aggravating facts necessary to sustain imposition of an upper term—California’s sentencing scheme violates the Sixth Amendment’s right to a jury trial.
Here, no violation of the Sixth Amendment occurred, for two reasons: First, the jury found true special allegations, pertaining to probation eligibility, that defendant used force or fear in committing the section 288.5 violation and had engaged in “substantial sexual conduct” with the victim (§ 1203.066, subd. (a)(1), (8)). These jury findings were sufficient to support the trial court’s imposition of the upper term, even though those findings were made for a different purpose, that of determining probation eligibility. Thus, here the jury found, beyond a reasonable doubt, the existence of facts sufficient to permit the trial court to exceed the middle term in *1270 sentencing defendant. Second, in selecting the upper term the trial court relied on the aggravating circumstance that defendant’s “prior convictions ... are numerous or of increasing seriousness.” As explained earlier, the United States Supreme Court has held that the Sixth Amendment does not require a jury trial on facts pertaining to a defendant’s prior criminal history.
Under California law, the existence of a single aggravating circumstance is sufficient to support imposition of an upper term. (§ 1170, subd. (b).) In this case, the jury’s findings pertaining to defendant’s probation eligibility, and the trial court’s findings pertaining to defendant’s criminal record, were each sufficient to satisfy this statutory requirement, thereby making the upper term the statutory maximum for the offense. (See Blakely, supra, 542 U.S. at p. 303 [ 124 S.Ct. at p. 2537 ] [defining “statutory maximum” as the maximum sentence a trial court may impose without additional findings of offense-based facts].) Once the upper tenr.. became the statutory maximum in this manner, defendant’s right to jury trial under the federal Constitution’s Sixth Amendment was satisfied, and the trial court on its own properly could—and did—make additional findings of offense-based aggravating circumstances in support of its discretionary sentence choice to impose the upper term. Thus, under the high court’s decisions in Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], and Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ], the trial court here did not violate defendant’s Sixth Amendment right to jury trial when it sentenced him to the upper term.
V. Points Raised by Majority
According to the majority, the “first question” in determining the constitutionality of California’s sentencing scheme is “whether a trial judge’s decision to impose an upper term sentence under the California determinate sentencing law involves the type of judicial factfinding that traditionally has been performed by a judge in the context of exercising sentencing discretion or whether it instead involves the type of factfinding that traditionally has been exercised by juries in the context of determining whether the elements of an offense have been proved.” (Maj. opn., ante, at pp. 1253-1254.) That, in my view, is not the question at all.
As framed by the high court in Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], the determinative question is whether the sentencing scheme allows the trial court, relying on offense-based facts found by the court, to impose a punishment greater than that permitted under the facts found by the jury. Nothing in the high court’s majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state’s sentencing scheme turns on whether, in the words of the majority here, it involves the type of factfinding “that traditionally has been performed by a judge.” (Maj. opn., *1271 ante, at p. 1253.) What is the source for the majority’s test? Perhaps the majority has looked to Justice O’Connor’s dissenting opinion in Apprendi, which contained this observation: “When a State takes a fact that has always been considered by sentencing courts to bear on punishment, and dictates the precise weight that a court should give that fact in setting a defendant’s sentence, the relevant fact need not be proved to a jury beyond a reasonable doubt. . . .” (Apprendi, supra, 530 U.S. at p. 535 (dis. opn. of O’Connor, J.), italics added.) Or perhaps the majority has taken its cue from Justice Breyer’s dissenting opinion in Booker , which as Justice Stevens’s majority opinion in Booker noted, relied on “traditional judicial authority to increase sentences to take account of any unusual blameworthiness in the manner employed in committing a crime” to support its argument that the Federal Sentencing Guidelines did not violate the Sixth Amendment. (Booker, supra, 543 U.S. at p. 234 [ 125 S.Ct. at p. 751 ].) But the Booker majority rejected this approach, concluding that “[t]his tradition . . . does not provide a sound guide to enforcement of the Sixth Amendment’s guarantee of a jury trial in today’s world.” (Ibid.)
Hard as it tries, the majority here cannot point to any significant differences between California’s sentencing law and the Washington sentencing scheme that the high court invalidated in Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ].
The majority states that “[u]nder the California scheme, a judge is free to base an upper term sentence on any aggravating factor that the judge deems significant . . . .” (Maj. opn., ante, at p. 1255.) It explains: “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.” (Maj. opn., ante, at p. 1256.) But that can also be said of the State of Washington’s sentencing scheme. (Blakely, supra, 542 U.S. at p. 299 [ 124 S.Ct. at p. 2535 ] [The Washington law “lists aggravating factors that justify [an increased sentence], which it recites to be illustrative rather than exhaustive.”].)
The majority considers it significant that under California law, “[t]he judge’s discretion to identify aggravating factors in a case is guided by the requirement that they be ‘reasonably related to the decision being made.’ ” (Maj. opn., ante, at p. 1255.) But that is also true of Washington’s sentencing law: A sentencing scheme that would allow a trial court to base its sentence on facts not “reasonably related to the decision being made” would be so unfair as to violate constitutionally guaranteed principles of due process.
The majority also notes that “as a historical matter California’s adoption of the determinate sentencing law reduced the length of potential sentences for *1272 most crimes, rather than increasing them.” (Maj. opn., ante, at p. 1256.) This aspect of our sentencing lav/ does not differ significantly from the Washington sentencing scheme. As Justice O’Connor’s dissenting opinion in Blakely pointed out: “The [Washington] Act neither increased any of the statutory sentencing ranges . . . nor reclassified any . . . offenses.” (Blakely, supra, 542 U.S. at p. 316 [ 124 S.Ct. at p. 2544 ].) The Blakely majority voiced no disagreement with that observation.
The majority here points out that California law requires sentence enhancements to be determined by a jury beyond a reasonable doubt. (Maj. opn., ante, at p. 1257.) Notable by its absence, however, is any claim by the majority that this aspect differentiates our sentencing law from the State of Washington’s sentencing scheme held unconstitutional by the United States Supreme Court. Similar enhancements may well have existed under the Washington law. (See Blakely, supra, 542 U.S. at p. 299 [ 124 S.Ct. at p. 2535 ] [noting that the standard range for the defendant in Blakely was based in part on a “36-month firearm enhancement”].) In invalidating the Washington law, the United States Supreme Court did not rely on the presence or absence of sentence enhancements.
The only difference the majority can point to between California’s sentencing law and that of the State of Washington held unconstitutional in Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], is this: Under the invalidated Washington law a sentence outside the standard range was an “ ‘ “exceptional sentence” ’ ” that must be justified by “ “substantial and compelling reasons,” ’ ” whereas California law imposes no such requirement. (Maj. opn., ante, at p. 1258, italics omitted.) Differently put, the invalidated Washington law limited to a greater extent, compared to California law, the number of instances in which Washington trial courts could impose a sentence beyond the prescribed statutory maximum. Yet nothing in Blakely suggests that the United States Supreme Court would have found the Washington sentencing scheme constitutional if it had permitted trial courts to exceed the standard sentencing range more often. Rather, the high court invalidated the Washington sentencing law because (1) under that scheme the trial court rather than the jury made the findings necessary to justify a sentence outside the standard range, and (2) because those court findings could be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt. California’s sentencing scheme shares these deficiencies with the Washington law that the high court in Blakely found violative of a defendant’s Sixth Amendment right to jury trial.
*1273 Conclusion
The majority insists that the United States Supreme Court’s recent decisions in Apprendi, supra, 530 U.S. 466 , Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], and Booker, supra, 543 U.S. 220 [ 125 S.Ct. 738 ] “do not draw a bright line .. . .” (Maj. opn., ante, at p. 1260.) To the contrary, the line the high court has drawn is bright and clear; a sentencing law is invalid when it allows a trial judge to impose a sentence beyond the “statutory maximum,” which the high court defined as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant (Blakely, supra, 542 U.S. at p. 303 [ 124 S.Ct. at p. 2537 ]), unless that sentence is based at least in part on the defendant’s prior criminal history. That rule is binding on us; it is not for this court to question its wisdom. Here, in sentencing defendant to the upper term, the trial court relied in part on his prior criminal history and on facts found by the jury, as permitted under Blakely. Therefore, I agree with the majority’s affirmance of the judgment.
Appellant’s petition for a rehearing was denied August 31, 2005. Kennard, J., was of the opinion that the petition should be granted.
All statutory citations are to the Penal Code.
2 In a later decision, Blakely, supra, 542 U.S. 296 [ 124 S.Ct. 2531 ], the United States Supreme Court explained the meaning of the term “statutory maximum.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785603. Public record. Not legal advice.