Friday, July 20, 2007
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Justices Clarify U.S. High Court’s Ruling on Upper Term Sentences
By TINA BAY, Staff Writer
A recent U.S. Supreme Court ruling striking down an aspect of California’s Determinate Sentencing Law does not require extensive new proceedings with respect to defendants who were sentenced under the invalidated scheme, the state high court concluded yesterday.
In two companion decisions, both unanimous, the justices held that defendants sentenced under the original DSL—it has been amended since the U.S. Supreme Court opinion—were not entitled on remand to have jury determinations replace the judicial fact-finding on which their upper-term sentences were based.
The rulings clarify the effect of Cunningham v. California, No. 05-6551, which held that the DSL, which sets a low, middle, and upper term for most crimes, violates a defendant’s Sixth Amendment right to a jury trial to the extent that it allows an upper term sentence based on judicial fact-finding other than as to prior convictions.
The first case concerns an appeal by Kevin M. Black, who is serving 46 years to life in prison for continuous sexual abuse of his stepdaughter and molesting two other young girls who were friends of the stepdaughter. The second involves an appeal Aida Sandoval, who was sentenced to 14 years, four months by Los Angeles Superior Court Judge Lance Ito on two counts of voluntary manslaughter and one count of attempted voluntary manslaughter.
Prior Ruling
Black’s case has been before the state high court previously. In a prior ruling, the justices upheld an order by Tulare Superior Court Judge William Silveira Jr. sentencing Black to three consecutive upper terms after a jury convicted him under what is sometimes referred to as the “resident child molester” law. That statute 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.
In imposing the maximum term based on “the nature, seriousness, and circumstances” of Black’s crime, Silveira found that Black 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.
After Black lost his appeal before the state Supreme Court, he petitioned to the U.S. Supreme Court, which vacated the state justices’ ruling and ordered reconsideration in light of Cunningham.
No Error Found
The justices found no constitutional error upon reconsideration yesterday. They again upheld Black’s sentence, on the ground that the aggravating circumstance that Black used force was supported by the jury’s finding that Black committed continual sexual abuse by means of force or violence.
As long as just one of the aggravating circumstances relied upon to impose an upper term has been established by a jury beyond a reasonable doubt, the judge’s consideration of other facts in imposing an upper term sentence does not violate the defendant’s Sixth Amendment right to a jury trial, the court concluded.
Writing for the court, Chief Justice Ronald M. George explained:
“The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed.”
The justices also ruled that Cunningham does not apply to a trial court’s decision to impose consecutive sentences.
With respect to Sandoval, the justices found her upper term sentence violated Cunningham and remanded the case for resentencing.
Sandoval was originally charged with first degree murder and attempted murder, Harris explained, on the theory that she intentionally set up a confrontation involving “gang bangers” with the intent that it result in the death of a man who had intervened to stop a fight between Sandoval and a friend and another woman the previous night. A jury ultimately convicted her of voluntary manslaughter in the man’s shooting death.
Ito sentenced her the upper term after finding, among other things, that her crime involved a great amount of violence, she had engaged in callous behavior, and her actions reflected planning and premeditation. None of these circumstances had been found by the jury or admitted by Sandoval.
George, again writing for the court, said that although the aggravating circumstances were based on evidence presented at trial, they were not part of the charge and not directly at issue in the trial.
“Defendant thus did not necessarily have the reason—or the opportunity—during the trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense,” the justice wrote.
He rejected the state’s argument that the jury would have found each of the aggravating circumstances cited by Ito beyond a reasonable doubt.
With regard to Sandoval’s callousness, George pointed out:
“Evidently, the jury rejected the prosecution’s view of the evidence, finding defendant guilty with reference to the count in question only of the lesser included offense of voluntary manslaughter.”
After concluding Sandoval was prejudiced by the sentencing error, however, the court said she was not entitled to jury determinations on remand. Instead, it ruled, the trial judge would have full discretion to choose either the lower, middle or upper term.
“Resentencing under such a discretionary scheme is preferable to the alternative of maintaining the requirement that the middle term be imposed in the absence of aggravating or mitigating factors but permitting a jury trial on aggravating circumstances,” George noted.
He remarked that “as applied to cases such as this one, in which defendant already has been sentenced to the upper term under the version of the DSL in place at the time she committed the offense, application of the revised sentencing scheme never could result in a harsher sentence and affords the defendant the opportunity to attempt to convince the trial court to exercise its discretion to impose a lower sentence.”
Sandoval’s attorney, Donna Harris of San Diego, could not be reached for comment.
Deputy Attorney General Chung L. Mar, who represented the state in the Sandoval case, told the MetNews that “the practical effect of Black and Sandoval is that defendants are unlikely to receive a lesser sentence.”
“As for Sandoval, we are pleased with the court’s determination any cases that are remanded back the trial court for resentencing will involve a sentencing scheme that is consistent with the Legislature’s recent amendment to the sentencing statute,” he added.
Deputy Attorney General Lawrence M. Daniels, in the Black case, told the MetNews the court’s ruling merely clarified that “traditional judicial sentencing discretion that involves fact-finding within a particular range has always been permissible.”
Eileen S. Kotler, a Northern California attorney appointed to represent Black on appeal, however, remarked:
“The court found that neither Blakely nor Cunningham applies to California law, and to the extent that it does, it limited it as much as it possibly could.”
She said she intends either to petition for certiorari to the U.S. Supreme Court or take the case into federal court.
The cases are People v. Black, 07 S.O.S. 4620, and People v. Sandoval, 07 S.O.S. 4628.
Copyright 2007, Metropolitan News Company