People v. Black

This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of that court’s very recent decision in Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham). In Cunningham , the United States Supreme Court, disagreeing with this court’s initial decision in this matter (People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740 , 113 P.3d 534 ] (Black 1 )), held 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.

In considering defendant’s challenge to the validity of his upper term sentence, imposed prior to Cunningham , we address a number of issues that arise in the wake of the Cunningham decision. (1) Did defendant’s failure in the trial court to request a jury trial on aggravating circumstances forfeit his right to challenge on appeal the imposition of the upper…

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…

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Donald E. De Nicola, Deputy Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Pamela C. Hamanaka, Assistant Attorneys General, J. Robert Jibson, Judy Kaida, Jaime L. Fuster, Kristofer Jorstad and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.

David R. LaBahn, Sacramento, George Kennedy, San Jose, James P. Fox and Martin Murray, Redwood City, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

GEORGE, C.J.

This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of that court's very recent decision in Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856 , 166 L.Ed.2d 856 ( Cunningham ). In Cunningham , the United States Supreme Court, disagreeing with this court's initial decision in this matter ( People v. Black (2005) 35 Cal.4th 1238 , 29 Cal.Rptr.3d 740 , 113 P.3d 534 ( Black I )), held that California's determinate sentencing law (DSL) violates a defendant's…