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Judicial Fact Finding at Sentencing When Jury Failed to Reach a Verdict

Case Name: In re Cabrera (2023) __ Cal.5th __
Case #: S271178
Last Updated: March 2, 2023

Did the sentencing court err by finding petitioner’s conviction for battery with serious bodily injury was a serious felony (Pen. Code, §§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), despite the jury’s failure to reach a verdict on the allegation that petitioner personally inflicted great bodily injury in committing that offense? (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.)


Cabrera was charged with a number of offenses, among them battery with “serious bodily injury” in violation of Penal Code section 243 and allegations of inflicting “great bodily injury” in violation of Penal Code section 12022.7. The jury returned a guilty verdict on the count of battery with serious bodily injury, but it struggled to decide whether Cabrera had inflicted great bodily injury. The jury submitted questions to the court about the differences between serious bodily injury and great bodily injury, asking whether a finding of serious bodily injury necessarily required a finding that great bodily injury occurred. Ultimately, the jury was unable to reach a verdict on the great bodily injury allegations, and the court declared a mistrial on them.

At Cabrera’s sentencing, the trial court determined that the battery charge and two related charges qualified as “serious felonies” — a finding that exposed Cabrera to an additional five-year term — because “‘there [was] great bodily injury.’” (People v. Cabrera (2018) 21 Cal.App.5th 470, 474 (Cabrera).) Cabrera argued that this finding of great bodily injury by the trial court violated the Sixth Amendment principle announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “Other 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.” (Id. at p. 490.) The sentencing court disagreed and imposed the five-year enhancement. We granted review to consider whether the sentencing court’s finding that Cabrera inflicted great bodily injury violates Apprendi in light of the jury’s failure to reach a verdict on the great bodily injury allegations. We hold that the court’s finding did violate Apprendi and remand this case for further proceedings consistent with this opinion.

(In re Cabrera (2023) __ Cal.5th __ (S271178). This case was decided on 3/2/2023.

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