Metropolitan News-Enterprise


Tuesday, June 21, 2005


Page 1


S.C. Rejects Constitutional Challenge to State Sentencing Scheme


By KENNETH OFGANG, Staff Writer/Appellate Courts


Recent U.S. Supreme Court rulings on criminal sentencing do not invalidate state laws under which a judge decides whether to impose the upper, middle, or lower base term and whether terms are served consecutively or concurrently, the California Supreme Court  ruled yesterday.

Justices unanimously upheld a 46-year-to-life sentence imposed on Kevin M. Black by Tulare Superior Court Judge William Silveira Jr. A jury convicted Black of continuous sexual abuse of his stepdaughter, and of molesting two other young girls who were friends of the stepdaughter.

The statute on continuous sexual abuse, sometimes referred to as the “resident child molester” law, permits an adult who has committed a series of sexual offenses against a child living in the same household to be convicted without the necessity of a unanimous jury verdict on each specific incident.

The crime is punishable under the Determinate Sentencing Law by six, 12 or 16 years in prison. As with other crimes subject to determinate sentencing, the court may impose the middle term, in which case no findings are necessary, or may impose the lower or upper term on the basis of facts found by the judge.

Upper Term Imposed

In Black’s case, the judge imposed the upper term, finding among other things that the defendant had forced the victim to have sex with him on multiple occasions, that the victim was particularly vulnerable, that he had abused a position of trust and confidence, and that the victim had suffered physical and emotional injury.

With respect to the two molestation counts involving other girls, the state’s “one-strike” law applied because the crimes involved multiple victims. The law calls for a sentence of 15 years to life on each count, and such sentences can run concurrent or consecutive to each other and/or to sentences imposed for other offenses.

Silveira ordered the sentences on all three counts to run consecutive, noting that they involved three separate victims and that one of the stepdaughter’s friends had been explicitly left in the defendant’s care.

The conviction and sentence were upheld by the Court of Appeal three weeks before the U.S. Supreme Court decided Blakely v. Washington (2004) 124 S.Ct. 2531. The case struck down Washington’s state sentencing scheme, in which the court was required to sentence within certain guidelines unless it found that there were facts and circumstances justifying an “exceptional sentence.”

The defendant in Blakely was facing a guidelines sentence of 49 to 53 months, or an exceptional sentence of up to 10 years. The judge imposed a sentence of 90 months.

The nation’s highest court, however, held that by relying on facts that had not been submitted to the jury or admitted by the defendant, the court had violated the defendant’s federal constitutional right to a jury trial.

But Chief Justice Ronald M. George, writing yesterday for the California high court, concluded that the type of factfinding that California judges engage in when determining whether to impose an upper-term and/or consecutive sentence differs from that contemplated by the Washington scheme.

Newer Ruling

The chief justice noted that after the state high court took Black’s case, the U.S Supreme Court ruled in United States v. Booker (2005) 125 S.Ct. 738, that judicial factfinding in the federal sentencing process does not render that scheme unconstitutional as long as the Sentencing Guidelines are treated as discretionary rather than mandatory and the sentences are not unreasonable.

“The level of discretion available to a California judge in selecting which of the three available terms to impose appears comparable to the level of discretion that the high court has chosen to permit federal judges,” George wrote.

The opinion was joined by the entire court, except for Justice Joyce L. Kennard, who concurred in the judgment but wrote separately.

Kennard agreed that the concurrent v. consecutive determination does not require factfinding by a jury, since the jury verdict renders the defendant subject to the statutory maximum on each count and the judge’s factfinding cannot increase the sentence beyond that maximum.

But with respect to the decision whether to impose the upper term, Kennard argued, California’s scheme is not significantly different from that struck down in Blakely. To comply with the U.S. high court ruling, Kennard wrote, the sentencing decision must be based solely on the components identified in Blakely—facts found by the jury, facts admitted by the defendant, facts found by the judge after a voluntary waiver of trial by jury, or facts related to prior convictions.

In Black’s case, Kennard reasoned, those requirements are satisfied because the factors on which the judge relied included that the defendant had prior convictions and that the crime involved “substantial sexual conduct” with a victim under the age of 14 years, a fact found by the jury in connection with a special allegation rendering the defendant ineligible for probation or a suspended sentence.

The case is People v. Black, 05 S.O.S. 2974.


Copyright 2005, Metropolitan News Company