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Name: People v. Martinez
Case #: C055549
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/23/2008

A defendant has no jury trial right to determination of factors justifying consecutive life sentences under Penal Code section 667.61. Appellant was convicted of torture, assaults, and sex offenses, with the jury finding true allegations as to the sex offenses that defendant inflicted torture, great bodily injury and used a weapon, so as to subject appellant to life terms under Penal Code section 667.61. Finding that the offenses occurred at separate times and occasions, the trial court sentenced appellant to two consecutive 25-to-life terms for the forcible oral copulation and rape convictions. Relying on People v. Black (2007) 41 Cal.4th 799 (Black II), the court found that imposition of consecutive sentences did not violate appellant’s Sixth Amendment rights to a jury trial, as the determination of factors justifying a consecutive sentence is a sentencing decision after the jury has made the requisite factual findings and does not implicate a right to a jury trial. The appellate court found no significant distinction in the fact that appellant was sentenced under 667.61 with its presumption for concurrent sentencing rather than section 669, as addressed in Black II, since Black II’s declaration that Apprendi and Cunningham apply only to facts that are the equivalent of elements of a crime is binding. (The issue of the application of Apprendi and Blakely to consecutive sentences is presently before the United States Supreme Court in Oregon v. Ice, no. 07-901, 170 L.Ed.2d 353.)