Does Penal Code section 667.6, subdivision (d), which requires that a “full, separate, and consecutive term” must be imposed for certain offenses if the sentencing court finds that the crimes “involve[d] the same victim on separate occasions,” comply with the Sixth Amendment to the U.S. Constitution?

Held:

Penal Code section 667.6, subdivision (d) requires a sentencing court to impose “full, separate, and consecutive term[s]” for certain sex crimes if it finds that the offenses were committed “on separate occasions.” (Pen. Code, § 667.6, subd. (d) (section 667.6(d)); all undesignated statutory references are to this code.) Defendant Edgar Sandoval Catarino was convicted of six counts of forcible lewd acts on a child under the age of 14 and one lesser included offense of attempt. At sentencing, the court found that Catarino’s seven counts of conviction occurred on seven separate occasions and sentenced him to full, consecutive terms for each under section 667.6(d).

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L. Ed. 2d 435, 120 S. Ct. 2348] (Apprendi), the United States Supreme Court held under the Sixth Amendment to the federal Constitution that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, at p. 490.) Under Alleyne v. United States (2013) 570 U.S. 99 [186 L. Ed. 2d 314, 133 S. Ct. 2151] (Alleyne), this rule applies “with equal force to facts increasing the mandatory minimum” because an increase in the minimum term heightens “the prescribed range of sentences to which a criminal defendant is exposed.” (Id. at p. 112.) But in Oregon v. Ice (2008) 555 U.S. 160 [172 L. Ed. 2d 517, 129 S. Ct. 711] (Ice), the high court said the Apprendi rule does not apply to facts deemed necessary to the imposition of consecutive as opposed to concurrent sentences, “a sentencing function in which the jury traditionally played no part.” (Id. at p. 163.)

The question here is whether section 667.6(d), in requiring that a sentencing court impose “full, separate, and consecutive term[s]” for certain sex crimes if it finds certain facts, complies with the Sixth Amendment. We hold that it does: the rule of Apprendi and Alleyne does not apply to section 667.6(d) under the rationale of Ice.

This case was decided 5/25/2023. Opinion by Justice Liu. Chief Justice Guerrero and Justices Corrigan, Kruger, Groban, Jenkins, and Evans concurred.

Review on this issue was also granted with briefing deferred in:

• People v. Wandrey (2022) 80 Cal.App.5th 962, review granted 9/28/2022 (S275942/A161691)
• People v. Celestine (H049673) [nonpub. opn.], review granted 2/22/2023 (S278056)
• People v. Wheeler (B314403) [nonpub. opn.], review granted 4/26/2023 (S279176)
• People v. Johnson (2023) 88 Cal.App.5th 487, review granted 5/17/2023 (S279198/A162599)