People v. Black

62 Cal.Rptr.3d 569

41 Cal.4th 799

161 P.3d 1130

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

No. S126182.

Supreme Court of California.

July 19, 2007.

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.

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 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.

I.

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: "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 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. (§ 1203.66, 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 the 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 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 six, 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 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." (Black I, supra, 35 Cal.4th at pp. 1244-1245, 29 Cal. Rptr.3d 740, 113 P.3d 534.)

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...