People v. Black

This case addresses the effect of the decisions of the United States Supreme Court in 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) on California’s determinate sentencing law. It presents the specific question whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence. For the reasons discussed below, we conclude 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.

I.

Defendant was charged with one count of continuous sexual abuse of a child (Pen. Code, § 288.5), 1 involving victim T.R., and two counts of lewd and lascivious conduct with a child (§ 288, subd. (a)), involving victims A.T. and H.T. The information alleged, as to the first count, that defendant committed the offense by use of “force, violence, duress, menace, and fear of immediate and unlawful bodily injury,” and…

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…

This case addresses the effect of the decisions of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 ( Blakely ) and United States v. Booker (2005) 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 ( Booker ) on California's determinate sentencing law. It presents the specific question whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence. For the reasons discussed below, we conclude 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.

Defendant was charged with one count of continuous sexual abuse of a child (Pen. Code § 288.5), [1] involving victim T.R., and two counts of lewd and lascivious conduct with a child (§ 288, subd. (a)), involving victims A.T. and H.T. The information alleged, as to the first count, that defendant committed the offense by use of "force, violence, duress, menace, and fear of immediate and unlawful bodily injury,"…