People v. Black, No. S126182.

• Court: United States State Supreme Court (California)
• Writing for the Court: GEORGE, C.J.
• Citation: 29 Cal.Rptr.3d 740,35 Cal.4th 1238,113 P.3d 534
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kevin Michael BLACK, Defendant and Appellant.
• Decision Date: 20 June 2005
• Docket Number: No. S126182.

29 Cal.Rptr.3d 740
35 Cal.4th 1238
113 P.3d 534

The PEOPLE, Plaintiff and Respondent,
v.
Kevin Michael BLACK, Defendant and Appellant

No. S126182.

Supreme Court of California.

June 20, 2005.

Rehearing Denied August 31, 2005.¹

29 Cal.Rptr.3d 741

Eileen S. Kotler, under appointment by the Supreme Court, Pacifica, for Defendant and Appellant

Deborah A. Kwast, Public Defender (Orange), Thomas Havlena, Chief Deputy Public Defender, Kevin J. Phillips, Assistant Public Defender, and Martin F. Schwarz, Deputy Public Defender, as Amici Curiae on behalf of Defendant and Appellant.

John T. Philipsborn, San Francisco; and Charles D. Weisselberg, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.

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

David R. LaBahn, George Kennedy, District Attorney (Santa Clara); James P. Fox, District Attorney (San Mateo) and Martin Murray, Assistant District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

GEORGE, C.J.

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

29 Cal.Rptr.3d 742

(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

I.

Defendant was charged with one count of continuous sexual abuse of a child (Pen. Code § 288.5),² 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 that defendant had substantial sexual conduct with a victim under the age of 14 years, allegations that would affect his eligibility for probation or a suspended sentence. (§ 1203.066, subd. (a)(1), (8).) The information also alleged that defendant committed specified sexual acts with more than one victim, an allegation that, if found true, would subject defendant to a term of imprisonment of 15 years to life on each of the two counts of lewd and lascivious conduct with a child. (§ 667.61, subds. (b), (c), (d).)

At trial, defendant's stepdaughter T.R. testified that defendant had sexual intercourse with her on several occasions when she was eight or nine years of age. Sometimes, when her mother was working, defendant would take care of her. The incidents occurred at home, in her bedroom or in the bedroom her mother shared with defendant. During some of these incidents, defendant held T.R.'s arms down when she struggled, so that she could not get away. Defendant told her not to tell anyone about what happened; if she did, he would tell her mother a big lie to get her in trouble.

Two of T.R.'s friends (A.T. and H.T.) testified that one day when they were at playing with T.R. at her house, defendant told them they could do whatever they wanted, including taking off their clothes. Encouraged by T.R., the girls took off some of their clothing. At defendant's urging, the girls sat in his lap and he rubbed their bare thighs.

The defense contended that the acts as testified to by defendant's stepdaughter had not occurred, that she made up the allegations because she was upset by the troubled relationship between her mother and defendant, and that she actually had been molested by a family friend whom she was trying to protect. The defense also contended that defendant's conduct with his stepdaughter's friends was innocent, and that by having them sit in his lap he was merely trying to settle them down. The jury found defendant guilty on all counts and found all of the special allegations true.

The offense of continuous sexual abuse of a child is punishable by a term of 6, 12, or 16 years' imprisonment. (§ 288.5, subd. (a).) The court sentenced defendant to the upper term of 16 years for that offense, selecting this term based on "the nature, seriousness, and circumstances of the crime." The court noted that defendant had forced the victim to have sexual intercourse

29 Cal.Rptr.3d 743

with him on numerous occasions, that the victim was particularly vulnerable to him as his stepdaughter, that he had abused a position of trust and confidence, and that he had inflicted emotional and physical injury on the victim

The court imposed two indeterminate terms of 15 years to life on the lewd conduct counts, consecutive to each other and to the 16-year determinate term, for a total term of imprisonment of 46 years to life. In explaining its reasons for imposing consecutive terms, the court noted that count 2 involved a separate victim (A.T.) from count 1 (T.R.) and occurred on a separate occasion. In addition, count 2 involved a breach of confidence, because the victim had been left in defendant's care. As to count 3, the court stated that offense also involved a different victim (H.T.), and that a consecutive sentence was appropriate because the offense was serious and of a predatory nature, in that defendant had preyed on both his stepdaughter and her friends.

The Court of Appeal affirmed the judgment. Three weeks later, the United States Supreme court issued its decision in Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, in which it held that a defendant in a criminal case is entitled to a jury trial on any fact that increases the maximum sentence to which the defendant is exposed for a particular offense, unless that fact has been admitted by the defendant or is based on the defendant's prior convictions. We granted review to determine the effect of Blakely on the validity of the trial court's decisions to impose the upper term sentence on count 1 and to require defendant to serve the sentences on all three counts consecutively. While this matter was pending before us, the high court handed down its decision in Booker, supra, 543 U.S. 220, 125 S.Ct. 738. At our request, the parties have filed supplemental briefs on the effect of Booker on the questions at issue.

II.

California's determinate sentencing law became operative on July 1, 1977, replacing the prior system under which most offenses carried an indeterminate sentence. (Added by Stats.1976, ch. 1135, § 273, p. 5140 and as amended by Stats. 1977, ch. 165, pp. 639-680.) In enacting the new sentencing scheme, the Legislature declared that the purpose of imprisonment is punishment, and that this purpose is "best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." (§ 1170, subd. (a)(1).) The Legislature further concluded that "the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offenses as determined by the Legislature to be imposed by the court with specified discretion." (Ibid., italics added.) The determinate sentencing scheme seeks to achieve greater uniformity in sentencing by providing a limited range of sentencing options for each offense. The sentence may be increased above the range provided for the offense on the basis of statutory enhancements reflecting the defendant's criminal history³ or particular circumstances of the crime, including, for example, the use of a firearm or other dangerous weapon, infliction of great bodily injury on the victim, the particular vulnerability of the victim (that is, a

29 Cal.Rptr.3d 744

victim who is young, elderly, or disabled), commission of the crime while released pending trial, the amount of property loss, and the quantity of drugs involved.⁴ The law requires that such sentence enhancements be charged and proved to the jury, unless the defendant admits them or waives the right to a jury trial. (See § 1170.1, subd. (e); People v. Sengpadychith (2001) 26 Cal.4th 316, 325, 109 Cal. Rptr.2d 851, 27 P.3d 739.)

Three terms of imprisonment are specified by statute for most offenses. The judge's discretion in selecting among these options is guided by Penal Code section 1170, subdivision (b), which states that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." In addition, the Judicial Council has been directed to promote uniformity in sentencing by adopting rules that provide criteria for the judge to consider in deciding which term to impose and whether to impose concurrent or consecutive sentences. (§ 1170.3.) Under the applicable rules, "[s]election 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." (Cal. Rules of Court, rule 4.420(b).) In imposing the upper term sentence, the court may not consider any fact that is an essential element of the crime itself and may not consider a fact charged and found true as an enhancement unless it strikes the punishment for that enhancement. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d).) The...