People v. Black
Decision Date | 19 July 2007 |
Docket Number | No. S126182.,S126182. |
Citation | 41 Cal.4th 799,161 P.3d 1130,62 Cal.Rptr.3d 569 |
Court | California Supreme Court |
Parties | The PEOPLE, Plaintiff and Respondent, v. Kevin Michael BLACK, Defendant and Appellant. |
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 E. Schwarz, Deputy Public Defender, for Orange County Public Defender's Office as Amicus 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 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.
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 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 term sentence? (2) If defendant did not forfeit the issue, did imposition of the upper term in the present case violate his right to jury trial and, if so, was the error prejudicial? (3) Does the reasoning of the line of United States Supreme Court decisions culminating in Cunningham require that a jury, rather than the trial court, find the facts that support imposition of consecutive sentences for multiple offenses?
Concluding that defendant did not forfeit the issue by failing to object to his sentence on Sixth Amendment grounds in the trial court, we hold that imposition of an upper term sentence did not violate defendant's right to a jury trial, because at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term. Finally, consistent with this court's determination in Black I, we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.
In Black I, supra, 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534, we summarized the relevant facts in this case as follows:
Three weeks after the Court of Appeal affirmed the judgment and sentence imposed by the trial court in this case, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296-300, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), holding that a criminal defendant's Sixth Amendment right to jury trial was violated in a case in which a Washington state trial court imposed "an exceptional sentence" beyond the "standard range" under Washington's Sentencing Reform Act, based upon facts neither proven to a jury "beyond a reasonable doubt, nor admitted by the defendant. We granted review in the present case to consider the effect of Blakely on the validity of California's DSL.
While this matter was pending before our court, the United States Supreme Court rendered its decision in United States v. Booker (2005) 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (Booker), addressing a challenge to the federal sentencing laws based upon Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi) and Blakely. After soliciting supplemental briefing on the effect of the Booker decision on the issues before us in Black I and considering the contentions made in the parties' briefs and oral argument, we concluded in Black I that "the judicial fact finding 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." (Black I, supra, 35 Cal.4th at p. 1244, 29 Cal.Rptr.3d 740,113 P.3d 534.)
After our decision in Black I, defendant filed a petition for writ of certiorari in the United States Supreme Court. The high court addressed the issue of the constitutional validity of the California DSL in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856. As noted above, in Cunningham the United States Supreme Court concluded, contrary to this court's determination in Black I, that "[b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, ___ U.S. at p. ___. 127 S.Ct. at p. 871, fn. omitted.) Subsequently, the high court granted the petition for writ of certiorari in the present case and remanded it to this court for reconsideration in light...
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