concluding that “defendant’s constitutional right to jury trial was not violated by the trial court’s [discretionary] imposition of consecutive sentences”
How later courts described this case
- concluding that “defendant’s constitutional right to jury trial was not violated by the trial court’s [discretionary] imposition of consecutive sentences”
- ‘“Nothing in the high court’s decisions in Apprendi [or] Blakely ... suggests that they apply to factual determinations that do not serve as the ‘functional equivalent’ of an element of a crime.’”
- concluding that three misdemeanor convictions and two felony convictions were numerous
- rejecting defendant’s argu- ment based on “Cunningham and its antecedents”
Written by the judges who cited it.
The opinion
KENNARD, J., Concurring.
When this matter was first before this court, the majority held that California’s determinate sentencing law did not violate a defendant’s federal constitutional right to a trial by jury, with a beyond-a-reasonable-doubt standard of proof. (People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740 , 113 P.3d 534 ] (Black 1).) I disagreed, concluding that under a trio of decisions by the United States Supreme Court (Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ]; Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ]; United States v. Booker (2005) 543 U.S. 220 [ 160 L.Ed.2d 621 , 125 S.Ct. 738 ]), “the 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” (Black I, supra, 35 Cal.4th at pp. 1264—1265 (conc. & dis. opn. of Kennard, J.)).
The majority’s holding in Black I was rejected by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham), which remanded the matter to this court for reconsideration. Today’s decision reflects the views expressed in the high court’s decision in Cunningham and in my concurring and dissenting opinion in Black I; it now acknowledges the high court’s holding that “California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” (Maj. opn., ante, at p. 805.)
*824 The court today also holds that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Maj. opn., ante, at p. 816.) Here, the court explains, defendant’s upper term sentence did not violate his right to a jury trial “because at least one aggravating circumstance (indeed, in this case, two) was established by means that satisfy the requirements of the Sixth Amendment.” (Id. at p. 816.) And the trial court’s “imposition of consecutive terms . . . does not implicate a defendant’s Sixth Amendment rights.” (Id. at p. 821.) I reached those same conclusions in my concurring and dissenting opinion in Black I, supra, 35 Cal.4th at pp. 1264-1265, 1269-1270 (conc. & dis. opn. of Kennard, J.), and nothing in the high court’s recent decision in Cunningham, supra, 549 U.S. 270 [ 127 S.Ct. 856 ] alters my views. I therefore join in today’s decision.