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Name: People v. Black
Case #: S126182
Court: CA Supreme Court
District CalSup
Opinion Date: 07/19/2007

Sentencing challenges premised on Blakely are not forfeited on appeal by counsel’s failure to object at trial when a sentencing proceeding preceded Blakely. At that time, California law did not support the proposition that Apprendi required a jury trial on aggravating circumstances. It is unreasonable to expect trial counsel to have anticipated the “sea change in the body of sentencing law.” Cunningham compliance requires only that one aggravating factor be found by the jury, be admitted by the defendant, or be Apprendi-exempt (i.e., a prior conviction) before an upper term can be imposed. Once such an aggravating factor is found to be present, all other facts informing the sentence may be found by the judge. Aggravating factors serve two distinct functions under California law. The first is to raise the maximum permissible sentence from the mid term to the upper term. The second is to provide the basis to select a particular sentence from among those authorized. Federal constitutional principles apply to factual determination that serves the first function, but leaves the trial court free to make factual determinations serving the second function. In this case, there were two aggravating factors rendering appellant eligible for the upper term: his criminal history and the jury’s finding that the continuous sexual abuse count was committed by means of force. Thus, imposition of the upper term did not violate his right to a jury trial. The Almendarez-Torres prior conviction exception includes not only the fact of a prior, but also other issues that can be determined from records of convictions. Numerosity of convictions and their increasing seriousness are in this category because one need only consider numbers, dates, offenses, and sentencing ranges. Imposition of consecutive terms under Penal Code section 669 does not implicate a defendant’s Sixth Amendment rights. Cunningham did not address this question nor does it undermine the court’s previous conclusion. Penal Code section 669 does not establish a presumption in favor of concurrent sentences. The requirement that concurrent sentences be imposed if the court fails to specify how the terms run simply provides a default for when the court fails to exercise discretion. Nor does the statute require the court to make factual findings. While the court may consider factors in aggravation and mitigation, an aggravating factor does not have to exist before a consecutive sentence can be imposed.