Penal Code section 667.6, subdivision (d), which requires full consecutive sentences on specific sex crimes if the trial court makes certain factual findings, violates a defendant’s Sixth Amendment right to a jury trial. Johnson admitted engaging in sexual conduct with his nine-year-old daughter. After a jury trial, he was convicted of multiple counts, including nine counts of aggravated sexual assault of a child and four counts of forcible lewd acts on a child. He was sentenced to 32 years, plus 135 years to life. He appealed, arguing, among other issues, that his Sixth Amendment right to a jury trial was violated. Held: Remanded for resentencing. Under section 667.6, if a defendant is convicted of specified sex offenses, including forcible lewd acts on a child, and if the crimes involve “the same victim on separate occasions,” then “a full, separate, and consecutive term shall be imposed” under subdivision (d) for each crime. If the crimes involve “the same victim on the same occasion,” then, under subdivision (c), “a full, separate, and consecutive term may be imposed” for each crime. Judicial factfinding which only affects whether sentences for multiple crimes are imposed consecutively or concurrently does not violate the Sixth Amendment right to a jury trial. Therefore, subdivision (d)’s requirement, that the terms be imposed consecutively in such circumstances, is constitutional. However, subdivision (d) also requires that the trial court impose the full term. Trial courts are forbidden to use judicially found facts to increase the mandatory minimum sentence for a discrete offense. Were it not for subdivision (d), the sentencing judge would have had discretion, on the second through fourth forcible lewd act counts, to impose either a full term consecutive pursuant to section 667.6, subdivision (c), or one-third the middle term pursuant to section 1170.1. The judicial finding that the crimes occurred on “separate occasions” eliminated that discretion. Because the use of this judicially found fact increased the mandatory minimum sentence for these three counts, subdivision (d) violated Johnson’s right to a jury trial. The case was remanded for the trial court to exercise its discretion under subdivision (c) as to whether to impose full and consecutive terms. [Editor’s Note: This issue of whether section 667.6, subdivision (d) complies with the Sixth Amendment is currently on review in the California Supreme Court in People v. Catarino (Oct. 14, 2021, D078832) [nonpub. opn.], review granted Jan. 19, 2022, S271828.]

Defendant’s sentence was not excessive under the federal or state constitution. The trial court sentenced Johnson to prison for 32 years (eight-year middle term on each of the four forcible lewd act counts), plus 135 years to life (nine terms of 15 years to life for each count of aggravated sexual abuse). A sentence is excessive and violates the Eighth Amendment of the federal Constitution if the defendant shows that it is “grossly disproportionate” to the severity of the crime. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) Similarly, an excessive sentence violates article I, sections 6 and 17 of the California constitution if it is “so disproportionate . . . that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Dillon (1983) 34 Cal.3d 441, 478.) Based on precedent, the Court of Appeal could not say that Johnson’s cumulative sentence shocked the conscience or was grossly disproportionate to the 13 crimes of which he was convicted and sentence was imposed.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A162599.PDF