Apprendi/Blakely/Cunningham/Alleyne
Category > Apprendi/Blakely/Cunningham/Alleyne
Updated 3/6/2024The trial court erred in considering facts from the charging document in determining the prior offense qualified as a strike prior.Defendant was convicted of certain drug offenses, and in a separate bifurcated proceeding the court determined defendant had a prior offense for gang participation that qualified as a strike under the three strikes law. In determining whether defendant had committed a felony with at least one other gang member under Penal Code section 186.22 (a), the court properly considered the facts defendant admitted as the factual basis for the guilty plea. However, the court improperly considered factual allegations in the charging document. This constituted impermissible judicial factfinding. The prior strike was stricken.id: 26654
Updated 3/6/2024The court properly applied Gallardo retroactively in finding defendant’s juvenile carjacking adjudication did not qualify as a strike. The trial court did not err in granting defendant’s petition for a writ of habeas corpus. The court properly applied People v. Gallardo (2017) 4 Cal.5th 120, retroactively in finding defendant’s juvenile carjacking conviction did not qualify as a strike under 2006 law. id: 26679
Updated 2/3/2024The sentencing court’s finding of great bodily injury violated defendant’s Sixth Amendment jury trial rights under Apprendi.The sentencing court’s finding that defendant inflicted great bodily injury violated defendant’s Sixth Amendment right to a jury trial under Apprendi v New Jersey (2000) 530 U.S. 466, in light of the jury’s failure to reach a verdict on the GBI allegation.id: 27689
The trial court violated defendant’s Sixth Amendment jury trial rights by relying on preliminary hearing transcripts to support the finding that the prior assault was a strike prior. The trial court engaged in improper judicial factfinding to determine that defendant’s 1991 assault conviction was a serious felony and a prior conviction under the three strikes law. Under People v. Gallardo (2017) 4 Cal.5th 120, the trial court can’t rely on the preliminary hearing transcript to support the finding that the prior conviction was a serious felony. The matter was remanded to allow the prosecution to present any other valid evidence on the issue.id: 25922
The trial court committed Apprendi error by finding the embezzlement involved public funds. Defendants were convicted of embezzlement under Penal Code section 504, which is a wobbler. The trial court made the finding that the embezzlement involved public funds, which made it a felony. This finding should have been made by the jury, and the trial court’s ruling violated Apprendi and Alleyne. However, the error was harmless where there was little doubt under the facts that the jurors would have made the “public funds” finding if given the chance. id: 24977
The trial court erred by finding defendant’s prior offense in Mexico qualified as a serious felony under California law. The trial court erred by finding defendant’s prior conviction for a homicide in Sinaloa, Mexico constituted a “serious felony” under California law. The Mexican offense doesn’t require malice aforethought or proof that the defendant didn’t act in self-defense. The evidence didn’t support the finding that the Mexican offense included all of the elements of murder in California. Under Descamp v. United States (2013) 133 S.Ct. 2276, the sentencing court could not examine the record and determine whether defendant’s conduct would have constituted a serious felony in California.id: 24943
The trial court violated defendant’s Sixth Amendment right to a jury trial by reviewing the preliminary hearing transcript to find his prior assault involved the use of a deadly weapon and therefore justified the higher terms. The trial court violated defendant’s Sixth Amendment right to a jury trial when it found (after reviewing the preliminary hearing transcript) a disputed fact about the conduct underlying defendant’s prior assault conviction that had not been established by virtue of the conviction itself. The previous approach described in People v. McGee (2006) 38 Cal.4th 682, is no longer controlling. Defendant’s failure to object to the sentence on this basis did not amount to a waiver or forfeiture where he could not have anticipated the change in the law.id: 25470
The jury, not the trial court, should have determined that the prior battery conviction involved the infliction of serious bodily injury for three strikes purposes.The trial court determined defendant’s prior battery conviction constituted a strike and serious felony after reviewing a stipulation describing the facts that was used as the factual basis. However, because personal infliction of serious bodily injury was not inherent in the offense, it was improper for the court (rather than jury) to make that finding. The matter was remanded for a jury trial on the issue of the personal infliction of serious bodily injury, limited to the record of conviction, unless defendant waived a jury and admitted the necessary facts.id: 24974
The trial court violated the Sixth Amendment under Descamps by finding the New York third degree robbery qualified as a strike offense in California based on comments made while taking the plea.The trial court erred in finding defendant’s 1999 conviction for attempted third degree robbery qualified as a serious felony under California law for purposes of the three strikes law. The elements of the New York offense don’t correspond to robbery under California law. The court determined the plea colloquy in connection with the New York offense showed it would have constituted a robbery in California. However, this was improper judicial fact-finding under Descamps v. United States (2013) 133 S. Ct. 2276, and the court may not under the Sixth Amendment make a “disputed determination” about what the defendant and state judge must have understood as the factual basis of the prior plea.id: 24811
Relying on Florida probable cause affidavit to determine the manslaughter constituted a strike violated defendant’s Sixth Amendment right to a jury trial on the issue. Defendant’s Florida manslaughter prior did not constitute a strike under California law because it may constitute either voluntary or involuntary murder in California and the offense does not establish by itself that it was a serious felony under California law. Moreover, the Florida probable cause affidavit could not be used to prove the manslaughter qualified as a strike because it was not a “part of the record of conviction.” Finally, relying on the probable cause affidavit to prove the strike violated defendant’s Sixth Amendment under Descamps v. United States (2013) 570 U.S. ___.id: 24426
Apprendi established a new rule of law for retroactivity purposes.The trial court violated Apprendi v. New Jersey by imposing upper terms for the kidnapping and firearm use enhancements. Courts have recently held that Cunningham v. California applies retroactively in collateral review of judgments that became final before Cunningham and after Blakely v. Washington. In this case, the court held that Cunningham applies on collateral review of a judgment that became final before Cunningham but after Apprendi because Apprendi established a new rule of law for retroactivity purposes.id: 21388
A trial court violates Apprendi by engaging in judicial fact-finding to determine whether a prior conviction qualifies as a strike.The evidence was insufficient to prove defendant’s prior vehicular manslaughter conviction was a strike because neither the elements nor the evidence showed that defendant personally inflicted great bodily injury. Because the elements of defendant’s prior plea do not show that he inflicted great bodily injury he is entitled to a jury trial on those facts unless he waived his right to a jury as to such facts and admitted them or they were found true by the court with his assent. Contrary to defendant’s claim, double jeopardy does not bar retrial on the issue.id: 24350
The trial court committed Cunningham error by imposing the upper term for robbery based upon its own finding of victim vulnerability, but the error was harmless where death was also imposed and the court affirmed the conviction and special circumstances. The trial court erred by imposing the upper term for the robbery based on an aggravating circumstance (victim vulnerability) not found true by the jury. However, the error was harmless given that defendant also received a death sentence for the capital murder accompanying the robbery, and the court affirmed the conviction and special circumstances.id: 23727
The trial court violated Apprendi by finding defendant’s prior manslaughter conviction involved personal infliction of GBI and using the offense to double the sentence under the three strikes law.The trial court doubled defendant’s sentence under the three strikes law after finding defendant “personally inflicted” great bodily injury on the victim, making the offense a strike prior. Defendant never admitted conduct sufficient to establish personal infliction in that 1993 manslaughter offense. In fact, he disputed those facts. The court could not have made the strike prior finding without resolving that factual dispute. By doing so, the trial court violated state law under People v. McGee (2006) 38 Cal.4th 682, and federal law under Apprendi v. New Jersey (2000) 530 U.S. 466.id: 23330
The trial court violated Apprendi by imposing the life term for the section 186.22, subd. (b)(4) gang enhancement with a jury finding on the threat element. The trial court erred using the Penal Code section 186.22, subd. (b)(4) gang enhancement to impose a life term for the extortion conviction. The provision requires a finding that a gang threat was used to commit the crime. The jury was instructed on alternate theories that the crime was committed using force or threats but the verdict form only referred to force. Under Apprendi v. New Jersey (2000) 530 U.S. 466, the life term could not be imposed absent a jury finding on the threat element.id: 23383
The trial court violated defendant’s 6th Amendment rights under Cunningham by imposing the upper term on the gun enhancement based on facts not found by the jury.The trial court violated defendant’s 6th Amendment right to a jury trial under Cunningham by selecting the upper term on the gun use enhancement based on facts not found by the jury. The error was harmless in the capital case where all aggravating factors were based on the evidence of the underlying crime which the jurors would almost certainly have found true had they been asked.id: 22703
Apprendi provides a right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance punishment.Under Apprendi v. New Jersey (2000) 530 U.S. 466, a criminal defendant has a federal right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance a sentence. The trial court decided the issue of whether defendant had acted with the intent required by California law, and thus whether the Nevada robbery convictions counted as strikes. This deprived defendant of the right to have the issue of intent decided by the jury. However, the error was harmless where any reasonable jury would have found defendant's conduct satisfied the elements of robbery under California law.id: 17744
The trial court committed Cunningham error by imposing the upper term after finding planning, violation of trust, violent conduct and inducement of a minor.The trial court committed Cunningham error by imposing the upper term for the criminal threats conviction after finding the incident involved planning, the participation of others, inducement of a minor, position of trust and violent conduct. The error was not harmless where it could not be said that a jury would have found any of these factors to be true. The matter was remanded for resentencing.id: 20806
Cunningham applies retroactively to any case in which the judgment was not final at the time Blakely was decided. Cunningham v. California (2007) 549 U.S. 270, applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely v. Washington (2004) 542 U.S. 296 was decided.id: 20805
Because the Jessica’s Law residency requirement imposes a penalty beyond the statutory maximum, it triggers the right to a jury trial under Apprendi.Defendant was acquitted of the only charged sex offense and convicted only of misdemeanor assault. Nevertheless, the trial court, subjected defendant to the residency requirement of Jessica’s Law by requiring sex offender registration based on its own fact-finding. Because the residency requirement increases the penalty for the underlying offense beyond the statutory maximum, the facts supporting sex offender registration must be found beyond a reasonable doubt by a jury under Apprendi v. New Jersey (2000) 530 U.S. 466.id: 20659
The trial court erred in denying defendant’s request for a jury trial on the issue of clean-up expenses following his guilty plea in a drug case.A defendant who has pleaded guilty to controlled substance crimes and who is the subject of a petition for recovery of hazardous clean-up expenses has a right under Health and Safety Code section 11470.2 to have liability for those offenses decided by a jury. Moreover, the defendant has a right to be present at the hearing when liability is decided.id: 20444
A juvenile adjudication is not a prior conviction and cannot be used to increase the maximum punishment under Apprendi and Blakely.A juvenile adjudication is not a prior conviction within the meaning of Apprendi and Blakely because the juvenile offender does not have the right to a jury trial. Therefore, a juvenile adjudication cannot be used, pursuant to the Three Strikes Law, to impose on an adult a sentence in excess of the maximum sentence that could have been imposed on the basis of a trial or a defendant's admission.id: 19705
Cunningham/Blakely error in imposing the upper term based on the court's finding of sophistication was not cured by the defendant's prior misdemeanor convictions that were not mentioned at sentencing.The trial court prejudicially erred when it imposed the upper term based solely on its own factual determination that the crime involved planning and sophistication. The fact that the defendant had prior misdemeanor convictions that were not mentioned at sentencing did not provide the court with the authority to impose the upper term.id: 19901
Defendant need not move for a jury trial on the aggravating factors to preserve Blakely/Cunningham issue.Defendant did not forfeit his Blakely/Cunningham challenge by failing to request in the trial court a jury trial on the aggravating factors.id: 19761
The section 667, subd.(a) enhancement was stricken as the current offense was not a serious felony, since the jury rejected the "great bodily injury" allegation even though it found defendant inflicted "serious bodily injury."Defendant was convicted of corporal injury on a cohabitant under Penal Code section 273.5. The jury rejected the enhancement allegation that he inflicted "great bodily injury" on the victim, although it convicted him of the additional charge of battery resulting in "serious bodily injury." The jury's finding of serious bodily injury was not the equivalent of a finding of great bodily injury, and the trial court was not at liberty to make what amounted to a legal determination that defendant inflicted great bodily injury. The finding violated defendant's right to a jury trial on the factual basis for imposing the section 667, subd.(a) enhancement. The five year enhancement imposed by the court was stricken.
id: 17848
For purposes of gang enhancement statute, jury may consider circumstances of the crime in determining the group's primary activities and the failure to instruct on the element is federal constitutional error.Penal Code section 186.22, subd.(b) provides an enhancement for crimes committed to benefit street gangs. In determining whether a group constitutes a "gang" for purposes of the statute, the jury can look to its "primary activities." The jury may consider the circumstances of the charged crimes on the issue of the group's primary activities. Moreover, for felonies not punishable by a life term, the enhancement "increases the penalty" for the crime under Apprendi. Because the primary activities finding is an element of the enhancement the court's failure to instruct on the necessity of such a finding is federal constitutional error which is evaluated under the Chapman standard.id: 16403
Following Apprendi double jeopardy protections preclude a retrial of a premeditation allegation after an appellate finding of insufficient evidence.In 1996, the court held in People v. Bright (1996) 12 Cal.4th 652, that an allegation prescribing greater punishment for an attempt to commit murder that was willful and premeditated (Penal Code section 664, subd.(a)) was a penalty provision to which double jeopardy protections do not apply. Several years later, in Apprendi v. New Jersey (2000) 530 U.S. 466, the court concluded that any fact other than a prior conviction that increases punishment beyond the statutory maximum is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. In light of Apprendi and related cases, double jeopardy protections preclude retrial of the premeditation allegation after an appellate finding of evidentiary insufficiency.id: 18206
Supreme Court requires any fact that increases the sentence beyond the statutory maximum to be submitted to the jury.In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for 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." The court said it did not matter whether the additional fact was labeled an element of the offense or a mere "sentencing factor." Applying this rule to the facts of the case, the court reversed the defendant's New Jersey sentence, which had been increased based on a judge's finding at sentencing by a preponderance of evidence that defendant's crime was racially motivated. Justice O'Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice.id: 15052
Updated 3/6/2024Gallardo, which limited a court’s ability to make factual findings regarding out of state strike priors, does not apply retroactively to defendant’s case that was final on appeal.In 1999, defendant was convicted of robbery, and in a bifurcated proceeding the trial court determined he had two prior convictions in Illinois that qualified as strikes under the Three Strikes law. He recently filed a petition based on People v. Gallardo (20017) 4 Cal.5th 120, which held a court considering whether to impose a sentence enhancement based on a prior conviction may not make factual findings about the defendant’s conduct to impose the enhancement. However, Gallardo does not apply retroactively to defendant’s case since his appeal was final years ago.id: 26552
Updated 3/6/2024The trial court did not violate defendant’s constitutional rights by finding that his prior juvenile adjudication constituted a strike.Defendant argued the trial court violated his Sixth and Fourteenth Amendment rights when it used his prior juvenile robbery adjudication as a strike to increase his sentence. He claimed juvenile adjudications can’t be used to increase a sentence because a juvenile does not have a right to a jury. However, that issue was resolved in People v. Nguyen (2009) 46 Cal.4th 1007, and that holding remains controlling law. id: 26620
Updated 3/4/2024Haymond did not entitle defendant to have a jury determine whether he violated parole beyond a reasonable doubt.A parolee exposed to a long prison term for a parole violation resulting from non-criminal conduct was not entitled under United States v. Haymond (2019) 139 S. Ct. 2369, to have a jury determine beyond a reasonable doubt whether he had violated his parole.id: 27124
Updated 3/4/2024Defendant’s general waiver of his right to a jury trial and agreement that the court could consider the aggravating circumstances defeated his Sixth Amendment argument.Consistent with a negotiated plea, the court imposed a 10 year term, which included the upper term on one count. Defendant argued the upper term was unlawful because he did not, in open court, waive his right to a jury trial on the aggravating factors. However, he waived his right to a jury trial generally, and agreed the court could consider all aggravating circumstances. Moreover, his prior conviction by itself was enough to support the imposition of the upper term.id: 28173
Updated 3/4/2024There was no Gallardo violation where defendant admitted the necessary elements at the time of his plea to the Minnesota assault.Defendant was convicted of sex offenses under the Three Strikes Law in 1999. One of his strike priors was a 1984 aggravated assault from Minnesota. The court relied on the elements of the offense and plea colloquy to find the prior constituted a strike. Defendant filed a petition in 2019 claiming he was entitled to relief under People v. Gallardo (2017 4 Cal.5th 120, which limited judicial fact finding in this respect. The courts are split on the issue of whether Gallardo may be applied retroactively, but even if applicable there was no violation where defendant admitted all of the required elements at the time of the plea.id: 26868
Updated 3/4/2024Defendant did not have a right to have a jury determine whether he violated his parole.Defendant did not have a federal constitutional right under either the Fifth or Sixth Amendments to have a jury determine whether he violated his parole by failing to keep his GPS device charged. id: 26978
Updated 2/24/2024A trial court’s consideration of defendant’s criminal history as reflected in his record of convictions did not violate the Sixth Amendment and using that factor to impose an upper term did not violate SB 567.Defendant was convicted of making criminal threats and was sentenced to the three-year upper term. The trial court used as aggravating factors the increasing seriousness of defendant’s convictions and his poor performance on probation. Defendant challenged the court’s use of those factors that were not admitted by defendant or found true by the jury. However, the factors were approved by a certified record of defendant’s convictions and fell within the prior conviction exception to the heightened proof requirements that apply to other types of aggravating factors.id: 28155
Updated 2/22/2024Gallardo does not apply retroactively on collateral review of final convictions.People v. Gallardo (2017) 4 Cal. 5th 120, which limited a sentencing court’s factfinding abilities with respect to prior conviction enhancement allegations, does not apply retroactively on collateral review of final convictions.id: 27059
Updated 2/3/2024The Gallardo rule prohibiting judicial factfinding in prior convictions used to enhance a sentence does not apply retroactively to final judgments.In People v. Gallardo (2017) 4 Cal. 5th 120, the court found that a trial court violates a defendant’s Sixth Amendment right to a jury trial when it makes factual findings about the nature of the defendant’s prior convictions when imposing an enhanced sentence based on that prior conviction. The Gallardo rule does not apply retroactively to final judgments.id: 27551
Updated 2/3/2024Section 1170.95 does not implicate a defendant’s right to have essential facts found by a jury beyond a reasonable doubt.Permitting a trial court to make factual findings underpinning a determination of eligibility for Penal Code section 1170.95 relief does not violate a defendant’s right to jury trial under Apprendi.id: 27087
Updated 2/2/2024Apprendi and Alleyne, which prohibited judicial factfinding, do not apply to mandatory consecutive sentences under section 667.6(d).Penal Code section 667.6(d), in requiring that a sentencing court impose full, separate and consecutive terms for some sex offenses if it finds certain facts, complies with the Sixth Amendment. The rule of Apprendi v. New Jersey (2000) 530 U.S. 466, and Alleyne v. United States (2013) 570 U.S. 99, does not apply to section 667.6(d).id: 27878
Prosecution must prove Prop 36 ineligibility beyond a reasonable doubt, and the court’s eligibility determination may rely on facts not found true by the jury.The trial court erred in finding defendant was not armed with a deadly weapon (his car) during his commission of the aggravated assault, a fact that rendered him ineligible for Prop 36 resentencing. Prop 36 permits a trial court to find a defendant armed with a deadly weapon is ineligible for resentencing only if the prosecution proves this fact beyond a reasonable doubt. Moreover, a court’s eligibility determination may rely on facts not found by a jury, and such reliance does not violate a defendant’s Sixth Amendment right to a jury trial.id: 25640
The Sixth Amendment doesn’t require jury findings before the court imposes an LWOP sentence for a minor convicted as an adult of special circumstance murder.A jury finding of irreparable corruption is not required before a trial court can sentence a juvenile offender to an LWOP sentence after being convicted as an adult of special circumstance murder. Moreover, there is no categorical bar against LWOP for juvenile felony murder offenders who did not kill or intend to kill. Defendant did not demonstrate that his LWOP sentence was disproportionate to his culpability.id: 24897
Consecutive sentences for assaulting an officer and resisting arrest did not violate section 654 where the evidence showed defendant resisted three officers. Defendant was convicted of assaulting a park ranger and a police officer, and forcibly resisting three police offers in an incident that took place over an hour in Golden Gate Park. He argued consecutive sentences violated Penal Code section 654 because the assault and resisting charges were based on the same conduct and intent. He claimed the multiple victim exception to section 654 didn’t apply because the court’s instructions suggested he could be convicted of resisting the officer he assaulted. However, the court clarified at sentencing that the resisting involved all three officers. And the defendant’s right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466, does not apply to determinations made by the trial court under section 654.id: 24706
Defendant seeking Prop 36 resentencing was not entitled to a jury trial on the issue of dangerousness. Defendant petitioned for resentencing under the Three Strikes Reform Act - Prop 36. Contrary to his claim, he was not entitled to a jury trial on the issue of whether he would pose an unreasonable risk of danger if resentenced.id: 24685
Defendant was not entitled to a jury trial on his Three Strikes Reform Act petition.Defendant argued that he was entitled to a jury trial on his Prop 36 petition. However, Prop 36 does not create a presumption in favor of a second strike sentence, so the denial of a recall petition does not increase the mandatory minimum sentence for a defendant’s crime and he was not entitled to a jury trial.id: 24410
The trial court properly ordered direct restitution following the murder conviction despite the acquittal on the arson charge, and defendant was not entitled to a jury determination on direct restitution. Defendant argued the direct restitution order was improper because the jury acquitted him of the arson that caused the economic damage. However, the damages were also a product of the murder for which defendant was convicted. Moreover, defendant was not entitled to a jury determination on restitution under Apprendi and Southern Union because direct restitution is not a criminal penalty and not subject to a statutory maximum.id: 24258
Defendant was not entitled to a jury trial on the facts considered by the court when imposing a restitution fine above the statutory minimum.Defendant argued that since his $10,000 restitution fine was above the statutory minimum, he was entitled to a jury trial on the facts the court relied on to impose the fine. However, defendant was not entitled to a jury trial on the Penal Code section 1202.4(b)(1) fine because it was imposed within the statutory range based on the nine counts of aggravated sexual assault.id: 24141
Supreme Court holds that Blakely applies to the Guidelines and that Guidelines are advisory.In the long-awaited Booker decision, the Supreme Court held that the rule announced in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the federal Sentencing Guidelines and therefore that sentences imposed by judges using the Guidelines violate the Sixth Amendment right to a jury trial. In the remedial portion of the opinion, a different majority of the court held that 18 U.S. C. id: 20123
Supreme Court says Washington sentencing guidelines trigger Apprendi.Washington state law sets maximum terms of imprisonment for various classes of felonies. Other statutes limit the range of sentences beneath that maximum that a judge can impose for each offense, but allow for sentences above those ranges in "exceptional cases." To impose an "exceptional" sentence, a judge must find that the case involves factors not taken into account in setting the sentencing range. Defendant, convicted of kidnaping, had a sentencing range of 49 to 53 months, but the court departed upwards to a 90-month sentence because of the cruelty of defendant's offense. The Supreme Court held that defendant's sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that facts, other than the fact of a prior conviction, that increase the penalty for a crime must be submitted to a jury and proved beyond a reasonable doubt. The Court held that the statutory maximum for purposes of this rule is the maximum sentence the judge may impose based on the facts found by the jury or admitted by the defendant. The majority expressed no opinion on the Federal Sentencing Guidelines, but Justice O'Connor, in a dissent joined by Justice Breyer on this point, said that "[i]f the Washington scheme does not comport with the Constitution, if is hard to imagine a guidelines scheme that would."id: 20164
Supreme Court holds that California determinate sentencing law violates 6th Amendment.For most offenses, California's determinate sentencing law prescribes a lower term, a middle term, and an upper term. A court must sentence a defendant with the middle term unless it finds one or more facts in aggravation or mitigation. An element of the offense may not be an aggravating circumstance. The Supreme Court held that imposition of an upper term based on facts found by the trial judge violated the Sixth Amendment requirement announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that a court may not impose a sentence above the statutory maximum based on a fact (other than the fact of a prior conviction) not found by a jury or admitted by the defendant.id: 20168
Defendant seeking a new sentence under Prop 36 was not entitled to a jury trial on the issue of future dangerousness. Defendant argued the trial court erred in denying his petition for resentencing under the Three Strikes Reform Act. Contrary to defendant’s claim, he was not entitled to a jury trial and proof beyond a reasonable doubt on the issue of whether resentencing him to a lower term would pose an unreasonable risk of danger to public safety. And there is no equal protection violation in applying this standard to a defendant who was properly sentenced under the three strikes law but is now seeking a downward modification of his term following the Act.id: 23926
Apprendi and Southern Union did not give defendant the right to a jury determination of the value of the stolen items when calculating restitution.Defendant argued the sentencing court improperly ordered her to pay restitution to each of her robbery victims because the jury did not determine the amount of the restitution. However, defendant did not have a right under Apprendi v. New Jersey (2000) 530 U.S. 466, or Southern Union Co. v. United States (2012) ___ U.S. ___, 132 S. Ct. 2344, to have a jury determine the value of the stolen items.id: 23544
Defendant forfeited his challenge to the booking and attorney fees by failing to object and he was not entitled to a jury trial on the issue of his ability to pay. Defendant challenged the trial court’s imposition of booking and attorney reimbursement fees. However, he forfeited the issues by failing to object in the trial court. Moreover, because these fines were administrative and not criminal fines defendant was not entitled to a jury determination on the issue of his ability to pay and the actual cost to the county for booking and his court-appointed attorney.id: 23536
Supreme Court bars allocating fact finding to capital sentencing judge.In Arizona, a defendant may not be sentenced to death unless the trial judge finds that at least one aggravating circumstance exists and that no mitigating circumstances are sufficiently substantial to call for leniency. Dividing 7-2, the Supreme Court held that the Arizona scheme violates the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), because it allows the court, not the jury, to find the facts that increase the defendant's maximum sentence from life in prison to death.id: 20141
Victim restitution is not a criminal fine and is not subject to the Apprendi rule.Defendant argued the direct victim restitution award in the amount of $8,200 imposed without jury findings, violated the Sixth Amendment in light of Southern Union Co. v. United States (2012) 132 S. Ct. 2344. However, section 1202.4 imposes victim restitution, and a “criminal fine” and is not subject to the Apprendi rule.id: 23687
The trial court did not err in imposing the upper term where there was at least one valid aggravating factor.The trial court did not err by imposing the upper term for the firearm possession count. The sentence was imposed after March 30, 2007, when the Determinate Sentencing Law was amended to eliminate the presumption of the middle term following Cunningham. And there was no abuse of discretion in imposing the term even if the court relied on certain improper factors where there was at least one valid factor - the threat defendant continued to pose to Smith and his wife.id: 23240
The jurors were not required to agree on whether defendant was the killer or an aider and abettor.Defendant was convicted of murder. He argued that Apprendi v. New Jersey (2000) 530 U.S. 466 requires that all jurors agree on the same theory of legal liability. However, Apprendi (and Ring v. Arizona (2002) 536 U.S. 584) did not alter the existing law, and the trial court properly refused to give a unanimity instruction.id: 23145
Southern Union Co. had no effect on the trial court’s ability to impose a $10,000 restitution fine.The trial court imposed a $10,000 restitution fine under Penal Code section 1202.4, subd.(b). The fine was within the statutory range and neither Apprendi nor Southern Union Co. had any effect on it.id: 22893
The trial court did not commit Apprendi error by refusing to instruct that due to the gun enhancement allegations ADW was a lesser included offense of attempted murder.Defendant argued that under Apprendi v. New Jersey (2000) 530 U.S. 466, the gun enhancements in the accusatory pleading required the trial court to instruct the jury regarding assault with a deadly weapon as a lesser included offense of attempted murder. However, the rule requiring lesser included offense instructions flowed from the trial court’s duty under California law to provide instructions adequate for the case. The trial court did not err in refusing to give the requested instruction.id: 22935
Trial court’s imposition of the upper term following the amendment to section 1170 was lawful. Defendant argued the imposition of the four year upper term for the involuntary manslaughter based on facts not submitted to the jury violated his right to a jury trial. However, in light of Penal Code section 1170 as construed by People v. Sandoval (2007) 41 Cal.4th 8251, the trial court’s imposition of the upper term sentence in 2010, after the amendment to section 1170, was lawful.id: 22217
Blakely/Cunningham error was forfeited for lack of an objection at sentencing.Defendant argued the trial court erred by imposing the upper term because it was based on certain factors not found true by the jury. However, defendant forfeited the issue on appeal by not objecting at sentencing. Moreover, any error was harmless where there is little doubt the jurors would have found at least one aggravating factor - abuse of position of trust - where defendant molested his daughter for two years.id: 21646
Defendants did not have a Sixth Amendment right to a jury trial on the issue of restitution.Defendants were not entitled to a jury trial under Blakely and Cunningham on the amount of restitution they owed Target. id: 21519
Apprendi did not require that a jury determine whether defendant’s Alabama conviction constituted a serious felony for three strikes purposes.Defendant was not entitled to have a jury determine whether his prior Alabama conviction constituted a serious felony for purposes of the three strikes law.id: 21336
Supreme Court holds that judges may find facts allowing imposition of
consecutive sentences. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, any fact that increases a defendant’s maximum sentence (other than the fact of a prior
conviction) must be found by a jury beyond a reasonable doubt. In Oregon, when a defendant is convicted of multiple offenses in the same proceeding, the trial judge may not impose consecutive sentences for multiple offenses unless the judge finds that the offenses do not arise from the same course of conduct. The Supreme Court in a 5-4 decision authored by Justice Ginsburg, held that Apprendi does not bar a state from assigning to judges, rather than juries, the findings of fact necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Justice Scalia wrote the dissent.id: 21348
The trial court did not err by imposing an upper term based on defendant’s prior juvenile adjudications.Defendant argued the trial court committed Cunningham error by imposing an upper term sentence based on his prior juvenile adjudications. However, prior juvenile adjudications can be used in imposing the upper term under rule 4.421 (b)(2), and in evaluating whether the adjudications are of increasing seriousness, the court may consider the elements of the respective offenses.id: 21149
Apprendi did not require that the jury determine the facts in a juvenile fitness hearing conducted in this case before sentencing. In the middle of trial, the prosecutor filed an amended information charging counts based on offenses that appellant committed while he was 16 years old or older. Before sentencing, the court decided to hold a fitness hearing. Defendant did not object. On appeal, defendant argued that under Apprendi, he was entitled to have the jury determine the facts that would increase the penalty for crimes beyond juvenile court disposition. However, Apprendi does not apply since the factual findings in a fitness determination are not the equivalent of an element of a crime.id: 21148
The trial court cannot compel counsel to file a motion to withdraw a guilty plea where defendant wants the motion filed but counsel finds there is no good cause.Defendant argued the trial court erred in failing to require trial counsel to move to withdraw defendant’s plea as defendant requested. However, as long as Defendant is represented by counsel, the decision on whether to file a motion to withdraw the plea is left with counsel.id: 21204
Apprendi does not preclude the use of prior juvenile adjudications to enhance later adult sentences.Defendant argued that because he had no right to a jury trial in the prior juvenile proceeding, the ruling in Apprendi v. New Jersey (2000) 530 U.S. 466, barred use of the resulting criminal adjudication to enhance his maximum sentence in the adult
proceeding. However, the Apprendi rule does not preclude use of nonjury juvenile adjudications to enhance later adult sentences.id: 21060
Where a defendant challenges the constitutional validity of a prior conviction, the defendant must prove such invalidity by a preponderance of the evidence. In an earlier opinion in this case, Curl v. Superior Court (1990) 51 Cal.3d 1292, the court determined that a defendant does not have a right to a jury trial on the constitutional validity of prior conviction and bears the burden of proving such invalidity by a preponderance of the evidence. Neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v. Arizona (2002) 536 U.S.584, superseded or overruled the earlier decision. id: 20973
Cunningham error was harmless where the record shows defendant callously opened fire on a group of defenseless parents and children in a park who were vulnerable.The trial court committed Blakely/Cunningham error by imposing the upper term based upon the facts that the victims were vulnerable and the acts involved great violence. However, the error was harmless as defendant opened fire in a public park on a group of unarmed parents with their small children. This was certainly a defenseless group of vulnerable people and it takes a high degree of callousness to engage in such a violent attack.id: 20585
Cunningham does not apply retroactively to a case that was already final on direct review when Cunningham was decided.In Cunningham v. California (2007) 127 S. Ct. 856, the court invalidated the determinate sentencing law to the extent it authorized aggravated terms based on facts found by the court rather than by the jury beyond a reasonable doubt. Since the rule was procedural and not a watershed rule it is not to be applied retroactively on collateral review to cases already final when it was announced.id: 19782
There was no Blakely/Cunningham error where the trial court imposed the higher term following the violation of the Vargas waiver.When defendant failed to appear for sentencing, the trial court imposed the higher of two terms as agreed upon in the Vargas waiver. A violation of the Vargas waiver is a breach of the plea agreement. A court’s determination as to whether there was a breach is not similar to making a finding in aggravation as contemplated in Blakely and Cunningham. Defendant was not entitled to a jury trial on that issue. id: 20681
Cunningham error was harmless where jurors would have found defendant took advantage of a position of trust by regularly molesting his daughter.The trial court committed Cunningham error by imposing the upper term based on its finding that defendant took advantage of a position of trust with his daughter who he was found to have molested. However, the error was harmless as the jury would necessarily have found that factor since defendant was the single parent of the victim with whom he had intercourse regularly.id: 20639
Cummingham error was harmless where the record showed overwhelming evidence that the attack was vicious and violent.Defendant had no right to a jury trial on the factors used to impose consecutive sentences. However, there was Blakely/Cunningham error where the trial court imposed the upper term after finding the assaults involved great violence and a high degree of viciousness or callousness. Nevertheless, the error was harmless where the record showed a prolonged vicious attack on the victim where the defendant repeatedly hit and kicked her causing significant injuries.id: 20638
The appropriate remedy for a Blakely/Cunningham error was remand.The trial court violated defendant's Sixth Amendment rights as articulated in Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. 270, by imposing the upper terms based on sentencing factors not found true by the jurors beyond a reasonable doubt. The jurors did find one factor - personal gun use - for purposes of the enhancement, but did not address the other factors including vulnerable victims, planning and sophistication. Rather than reducing the sentences to the middle term, the matter was remanded for resentencing.id: 19566
Aggravating circumstance that defendant served a prior prison term or was on probation or parole at the time of the crime may be decided by the judge without violating Blakely/Cummingham.The aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the offense was committed may be determined by a judge and need not be decided by a jury following Cunningham v. California (2007) 549 U.S. 270. In addition, the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions. id: 20540
Danforth does not alter the conclusion that Cunningham does not apply retroactively.Cunningham v. California (2007) 549, 270, does not apply retroactively to sentences for which all avenues of direct appeal have been exhausted. The conclusion was not altered by Danforth v. Minnesota (2008) _____ U.S. ____, 128 S.Ct. 1029, which grants broader relief on habeas corpus by applying state law to determine the retroactivity of Cunningham.id: 20401
The trial court did not commit Cunningham error by imposing the upper term based on defendant’s probationary status at the time of the crime.The trial court did not commit Cunningham/Blakely error by imposing the upper term sentence based on defendant’s probationary status at the time of the crime, an aggravating factor that did not have to be submitted to the jury.id: 20317
Cunningham error was not harmless beyond a reasonable doubt where the evidence that defendant abused a position of trust was not overwhelming.Because the aggravating factor upon which the trial court relied was neither admitted by the defendant nor established by a jury verdict, the imposition of the upper term violated defendant's Sixth Amendment right under Cunningham. The error was not harmless beyond a reasonable doubt where the evidence that defendant abused a position of trust was not overwhelming.id: 20247
By entering a plea agreement which included the upper term as the maximum term and stipulating to the factual basis, defendant did not admit that his conduct could support that term.Defendant argued that imposition of the upper term violated his Sixth Amendment rights under Cunningham. In pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, the defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance.id: 20246
Defendant did not forfeit his Cunningham claim by failing to raise it in the trial court.Defendant argued that the imposition of the upper term violated his Sixth Amendment rights under Cunningham. His waiver of jury trial on the offenses in connection with his no contest plea cannot reasonably be interpreted to extend to proof of aggravating circumstances when, at the time of the plea, no right to jury trial on such circumstances had been recognized. Defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances.id: 20245
Defendant was not required to obtain a certificate of probable cause to raise his claim of Cunningham error on appeal.Following the guilty plea, defendant argued the upper term was not authorized because the prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required under Cunningham v. California (2007) 549 U.S. ___, 125 S.Ct.856. A certificate of probable cause for appeal was not required because the claim implicates the sentence only and does not challenge the validity of the plea agreement.id: 20244
Defendant's poor performance on parole fell within the Almendarez-Torres recidivism exception to Blakely/Cunningham.The trial court's reliance on a defendant's poor performance on parole as an aggravating sentencing factor falls within the recidivism exception to Blakely/Cunningham and does not violate a defendant's jury trial guarantee.id: 20236
Defendant was not entitled to a jury trial on the sex offender registration requirements.Blakely/Cunningham principles do not entitle a defendant to a jury trial on the question of whether he should be subject to sex offender registration requirements.id: 20234
Juvenile's maximum period of confinement (due to prior offenses) did not exceed the same for an adult offender, so even if Cunningham applied, the court did not err by imposing the three year term. The minor argued a juvenile's maximum period of confinement is limited by the same factors considered in Cunningham v. California (2007) 127 S.Ct. 856. The court did not reach the issue because it found that, even if Cunningham applied,
the maximum period of confinement in the case did not exceed the maximum sentence that could be imposed on an adult with a comparable record of prior offenses.id: 19812
The court properly struck the section 186.22, subd.(b) gang enhancement after using section 186.22 to find the improper discharge of a weapon under section 246.3 constituted a serious felony in order to impose the section 667, subd.(a) enhancement.Defendant argued the trial court erred in failing to submit to the jury the question whether his current conviction, discharge of a firearm in a grossly negligent manner, is a serious felony for purposes of the two enhancements - the gang enhancement under Penal Code section 186.22, subd.(b), and the section 667, subd.(a) prior felony conviction - each of which requires the current offense be a serious felony. Section 246.3 is not specifically listed as a serious felony, but may qualify under section 1192.7, subd.(c) if defendant personally used a firearm or committed a violation of section 186.22. The jury's true finding on the section 186.22, subd.(b) enhancement was tantamount to a finding that the offense was a serious felony, so the imposition of the section 667, subd.(a) enhancement was proper. However, imposing the section 186.22, subd.(b) enhancement under the circumstances would be an improper bootstrapping, and was not allowed.id: 18297
Blakely does not require a jury determination on the issue of whether to impose consecutive sentences.Defendant argued that based upon the holding of Blakely v. Washington (2004) 124 S.Ct. 2531, he was entitled to have a jury determine whether consecutive sentences may be imposed. However, neither Blakely nor Apprendi v. New Jersey (2000) 530 U.S. 466, purport to create a jury trial right to the determination of whether to impose consecutive sentences.id: 18012
Trial court's one strike law finding that the offenses occurred on separate occasions did not violate Blakely. Defendant argued the trial court's finding under Penal Code section 667.61, subd.(g) that the offenses were committed on separate occasions violated the Sixth Amendment under Blakely v. Washington (2004) 542 U.S. 296. However, the court's findings did not violate Blakely since the maximum penalty was established when the jury convicted defendant of the predicate offenses and sustained the special circumstance allegations.
The findings that the offenses were not separate did not increase defendant's maximum term.id: 19842
Upper term sentence did not violate Blakely/Cunningham due to defendant's prior criminal record. The imposition of the upper term did not violate Blakely/
Cunningham due to the lack of jury findings where the probation report emphasized that defendant's prior convictions were numerous and serious, defendant was on probation at the time of the offense, and his prior performance on probation or parole was unsatisfactory.id: 19870
Supreme Court holds that Blakely error can be harmlessIn Blakely v. Washington, 542 U.S. 296 (2004), the Court held that imposition of a sentence under Washington's sentencing guidelines based on facts found by the judge, not the jury, violated the Sixth Amendment. In another case from Washington, the Supreme Court held that Blakely errors are subject to harmless-error analysis.id: 20171
There was no Cunningham error where the defendant had six prior misdemeanors which would have supported the upper term.Defendant argued the trial court committed Cunningham/Blakely error by imposing the upper term based on its findings that the crime involved great violence and the victim was particularly vulnerable. However, there was no error since defendant had suffered six prior misdemeanor convictions, and while they were not mentioned by the sentencing court, they justified the upper term.id: 20063
Cunningham error was harmless in light of the overwhelming evidence showing a breach of trust by committing cruel acts against a vulnerable victim.The trial court committed Blakely/Cunningham error by imposing the upper term for the robbery, aggravated assault and attempted murder convictions based on the betrayal of trust and vulnerable victims. However, the error was harmless as the evidence showed an overwhelming breach of trust where defendant gathered his friends to rob and beat the mother of his unborn child, and further demonstrated substantial cruelty to a vulnerable victim.id: 20034
The prosecution may not amend an information to allege aggravating circumstances after Cunningham.The District Attorney sought to amend an information to allege aggravating circumstances listed in California Rules of Court, rule 4.421 and secure a jury trial on those alleged aggravating circumstances. A similar procedure was rejected in People v. Sandoval (2007) 41 Cal.4th 825. The trial court correctly struck the allegations of aggravating circumstances in the information.id: 20054
There was no Cunningham error where upper term was justified by defendant's numerous prior convictions.The trial court imposed the upper term for several reasons including defendant's numerous prior convictions of increasing seriousness. There was no Cunningham error since the recidivist related factor was not subject to a jury trial.id: 19991
Juvenile court's imposition of the theoretical maximum term did not violate Cunningham, due process or equal protection.The juvenile court did not violate Cunningham, due process or equal protection principles by committing the minor to the Division of Juvenile Justice for the theoretical maximum term which was longer than the 12 year mid term the Determinate Sentencing Law authorized for his crime. There is no right to a jury trial in juvenile proceedings so Cunningham does not apply. Moreover, minors who commit crimes are not similarly situated with adults and, therefore equal protection principles do not apply.id: 20016
Imposition of the upper term was not Cunningham error where defendant admitted that he had abused the victims for years.The trial court did not commit Cunningham error by imposing the upper term where defendant admitted that he had been abusing the young victims for years, and reliance on a single proper factor will support the aggravated term.id: 19961
Cunningham error was not harmless since the jury's finding on the GBI enhancement did not establish planning or victim vulnerability. The trial court committed Blakely/Cunningham error by imposing the upper term for the substantive offense of assault with a firearm and firearm use enhancements based on vulnerability of the victims and planning. The fact that the jury found a great bodily injury enhancement to be true did not establish planning, deliberation or victim vulnerability. The Attorney General also argued the gun use involved an "inherent high risk" but that undefined factor could not be used to support the upper term.id: 19968
The public notification requirements of sex offender registration do not constitute punishment for purposes of Blakely/Apprendi.Defendant argued the public notification requirement and residency restrictions imposed by the sex offender registration laws increased his punishment beyond the permissible range, and since the facts underlying the registration were not found by a jury, the punishment violated Blakely and Apprendi. However, the public notification requirements of sex offender registration do not constitute punishment for purposes of the Sixth Amendment.id: 19935
There was no Blakely/Cunningham error where the court imposed the upper term following a Harvey waiver which allowed the court to consider prior juvenile adjudication.When entering his guilty plea, defendant agreed to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) in which he stipulated that when imposing sentence, the court could consider the entire factual background of the case as well as his prior criminal history. All of his priors were juvenile adjudications. The court did not commit Blakely/Cunningham error by relying on the facts pursuant to the Harvey waiver when imposing the upper term.id: 19893
Following the Harvey waiver, the trial court's use of facts from the dismissed counts to impose the aggravated term did not violate Blakely. Defendant pled no contest to one count of attempted murder and admitted that he was armed with a firearm. In exchange for his plea, the court dismissed other counts and enhancements, although defendant signed a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) which allows the sentencing court to consider facts underlying the dismissed counts. Defendant could not complain of Blakely/Cunningham error where the trial court considered the facts pursuant to the Harvey waiver to impose the upper term.id: 19854
The trial court did not commit Blakely/Cunningham error by imposing an upper term based on a prior juvenile adjudication.The trial court's use of defendant's prior juvenile adjudications in imposing the upper term sentence did not violate the Sixth Amendment right to a jury trial under Blakely/Cunningham.id: 19886
Trial court's finding that the Illinois prior constituted a strike did not violate Blakely. Defendant argued the trial court's finding that his Illinois prior conviction for attempted murder qualified as a serious felony for three strikes purposes violated his right to jury
trial under Blakely and Cunningham. However, the recidivism exception set forth in Almendarez-Torres remains good authority even after Blakely and Cunningham.id: 19847
Apprendi does not require that enhancements must be treated as legal elements under the multiple conviction rule.Defendant argued that enhancements themselves, rather than the convictions to which they attach, are subject to being struck under the multiple conviction rule. He claimed that under Apprendi v. New Jersey (2000) 530 U.S. 466, conduct enhancements are to be treated like offenses for purposes of fundamental due process, including the right to a jury trial and the requirement of proof beyond a reasonable doubt. However, Apprendi does not require that enhancements be treated as legal elements under the
multiple conviction rule.id: 19811
On remand following Blakely error, the trial court may exercise its discretion to impose any of the three terms available.The trial court committed Blakely/Cunningham error by imposing an upper term sentence based upon factors not found by
the jury including victim vulnerability, great violence, and defendant's role as the motivating force. The error was not harmless beyond a reasonable doubt and the matter was remanded for resentencing. On remand, the trial court may exercise its discretion to impose any of the three terms available for the offense.id: 19759
There was no Blakely/Cunningham violation where the jury's finding that the offense involved force or violence and the court's finding regarding criminal history independently satisfied the Sixth Amendment concerns.The trial court did not commit Blakely/Cunningham error by imposing the upper term where at least one aggravated
circumstance (here, there were two) satisfied the Sixth Amendment requirements. First, the jury found the use of force or violence for purposes of Penal Code sections 1203.066 probation eligibility, even though it did not find "great" violence under Cal. Rules of Court, rule 4.22(a)(1).
Moreover, the court also found a second aggravating circumstance - defendant's criminal history - supported the upper term. Defendant was not entitled to a jury determination on the issue of whether the prior convictions were numerous or increasingly serious.id: 19760
Cunningham does not require that a jury rather than the court find facts that support the imposition of consecutive sentences for multiple offenses. Defendant's Sixth Amendment right to a jury trial under Blakely was not violated by the trial court's imposition of consecutive sentences on all counts. The determination regarding
consecutive sentences is a sentencing decision made by the judge after the jury has made factual findings necessary to subject the defendant to the statutory maximum sentence on each offense,
and does not implicate the defendant's right to jury trial on facts that are the functional equivalent of elements of an offense.id: 19762
There was no Blakely/Cunningham error where the upper term was imposed due to recidivist as well non-recidivist factors. The trial court did not violate defendant's Sixth Amendment rights under Blakely and Cunningham by imposing the upper term for the aggravated assault conviction and weapon use enhancement. While the court referred to certain aggravating factors that required a jury finding, it also referred to two recidivists related factors including the fact that defendant had served a prior prison term and his prior convictions were
numerous. The latter factors do not require a jury finding and there was therefore no constitutional violation in imposing the upper term.id: 19744
There was no prejudicial Cunningham error where two of the three factors the court used to justify the upper term fell within the prior conviction exception.Two of the three factors relied on by the court to justify the upper term fell within the prior conviction exception to Blakely/Cunningham. Those factors were defendant's "numerous convictions as an adult" and the fact that he was on parole at the time of the offense. The third factor - defendant's
performance on parole was unsatisfactory - was more problematic but the issue of whether the court's use of it violated Cunningham was not addressed because any error was harmless.id: 19695
Defendant's parole status and poor performance on parole fell withing the prior conviction exception to Blakely error.The trial court did not commit Blakely/Cunningham error by imposing the upper term based on defendant's status on parole and
his poor performance on parole since those factors fell within the Almedarez-Torres exception to Blakely error.id: 19698
The trial court committed Blakely/Cunningham error by imposing an upper term based upon a courtroom incident.The trial court imposed the upper term following defendant's drug possession conviction based entirely on a courtroom incident the court characterized as an escape attempt. The sentence violated defendant's Sixth Amendment rights under Blakely/Cunningham. The matter was remanded for resentencing.id: 19648
Imposition of the upper term based solely on defendant's parole status did not violate Blakely/Cunningham.Defendant's parole status was the only factor relied on by the trial court to impose the upper term. Because parole is a factor that necessarily arises from a previous conviction (for purposes of the Almendarez-Torres exception) and relates solely to defendant's status as a repeat offender, the imposition of the upper term did not violate the Sixth Amendment within the meaning of Blakely and Cunningham.id: 19649
Cunningham error was subject to the Chapman harmless error test. The trial court's error in imposing the upper term based, in part, on non-recidivist facts not submitted to the jury or admitted by the defendant was analyzed for prejudice under the Chapman standard. The error was harmless beyond a reasonable doubt where the aggravating circumstances of the crime were supported by uncontested evidence at trial.id: 19628
There was no prejudicial Cunningham error where defendant admitted prior convictions and that factor alone could support the upper term.The trial court imposed the upper term for the burglary and rape convictions after noting victim vulnerability, extreme violence and noting defendant's prior convictions. Defendant argued the upper terms violated Blakely and Cunningham because the first two factors were not found true beyond a reasonable doubt by a jury. However, prior convictions need not be found true in the same manner and defendant admitted the priors at trial. Since an upper term may be imposed based upon a single valid aggravating factor, there was no prejudicial error.id: 19598
Trial court committed reversible Cunningham error by imposing an upper term based on recidivist related factors (other than the fact of a conviction) without jury findings. The trial court imposed the upper term for the burglary conviction after noting several aggravating factors including planning and professionalism, defendant's prior convictions
were numerous and increasingly serious, he was on probation when he committed the crime, and his prior performance on probation was unsatisfactory. Imposition of the upper term was reversible error under Blakely and Cunningham. While there is an exception to the Apprendi/Blakely violation which states that prior convictions need not be found true by a jury (Almendariz-Torres v. United States (1998) 523 U.S. 224), the exception did not apply to recidivist related factors which did not include the mere fact of a prior conviction.id: 19607
Any Cunningham error was harmless where there were two aggravating factors relating to past crimes that did not require jury findings. Defendant argued the trial court prejudicially erred by imposing the upper term for the rape count and weapon use enhancement based on factors not found by a jury to be true beyond a reasonable doubt. However, two of the factors considered by the court involved past convictions, a pattern of violent conduct and a prior prison term, which did not involve Cunningham. Since one valid aggravating factor will support the imposition of an upper term, any Cunningham error was harmless.id: 19609
Where the court had discretion to impose a 25 years-to-life term under the three strikes law, the imposition of shorter upper terms did not violate Blakely/Cunningham. Defendant argued the imposition of upper terms violated the Sixth Amendment under Blakely/Cunningham. However, the sentences imposed did not exceed the maximum sentence within the meaning of Blakely where this was a three strikes case. The maximum term available to the court was 25 years-to-life. The lesser term the court imposed after granting Romero relief was permissible under Blakely and Cunningham.id: 19579
The trial court properly relied on defendant's status as being on probation to justify the upper term. The trial court imposed an upper term based on various factors including the fact that defendant had been on probation and parole when the offense was committed. Defendant's status as being on probation fits within the broad construction of the prior conviction exception to Cunningham/Blakely error. The trial court properly relied on that factor to justify the upper term.id: 19580
Defendant did not forfeit his Blakely challenge error by failing to object at sentencing since Black was good law at the time. Defendant did not forfeit his Blakely/Cunningham claim by failing to object to the upper terms at the sentencing hearing since the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 prior to that time, and any objection would have been futile.id: 19585
Remand was not required following the Blakely/Cunningham error, and the court reduced the sentence to the mid terms. The trial court committed Blakely error by imposing the upper term on three counts based on facts not found true by the jury. The prosecution argued a jury finding on victim vulnerability was not required for the rape of an intoxicated victim count because the conviction itself proved the point. However, assuming that was true, use of that fact as an aggravator then amounted to an improper dual use of facts. Finding remand inappropriate, the court modified the judgment to impose the middle term as to the three counts.id: 19586
The trial court's finding of separate occasions used to impose consecutive terms for the sex offenses under section 667.6, subd.(d) did not violate Blakely.The trial court's finding that the two rape counts were committed on separate occasions in support of consecutive
sentences under Penal Code section 667.6, subd.(d), did not constitute Blakely/Cunningham error. Because the court had discretion under section 667.6, subd.(c) to impose consecutive
sentences based on the verdict alone, the court's finding did not increase the penalty beyond the statutory maximum.id: 19587
There was no Blakely violation where the upper term was imposed because of multiple prior convictions.Imposition of the upper term did not constitute a Blakely v.
Washington violation where defendant's prior convictions were the aggravating factors used by the court.id: 19509
The prosecutor was not barred from amending the information during trial to add aggravating facts for sentencing where Cunningham was decided during trial.After trial started, the U.S. Supreme Court decided Cunningham v. California (2007) ___ U.S. ___, which prevented the imposition of upper terms based upon certain aggravating facts found true by the judge rather than the jury. The trial court thereafter allowed the prosecutor to amend the information to allege aggravating facts for purposes of sentencing. Contrary to defendant's claim, California's statutory scheme governing accusatory pleadings did not prevent this practice. Moreover, the prosecution was not precluded from amending the information to allege aggravating facts that had not be presented at the preliminary hearing.id: 19515
Cunningham did not invalidate an upper term which was imposed because of defendant's many serious prior convictions.The trial court did not violate defendant's Sixth Amendment rights under Blakely/Apprendi/Cunningham by citing defendant's many serious prior convictions for imposing the upper term. This factor need not be submitted to a jury. Because one valid aggravating factor is sufficient to impose an upper term, the court's improper reliance on other factors was harmless.id: 19481
Cunningham does not apply to consecutive sentences under the determinate sentencing law.Defendant argued the imposition of a consecutive term for count two violated the Sixth Amendment as interpreted by Apprendi and Blakely. However, Cunningham v. California (2007) ___ U.S. ___, did not address the constitutionality of the determinate
sentencing law pertaining to the court's decision to impose concurrent or consecutive sentences. Contrary to defendant's claim, he was not entitled to have a jury determine the facts upon which the trial court relied to impose consecutive sentences.id: 19466
The trial court had no duty to submit the limitations extension issue of section 803, subd. (g) to the jury under Apprendi.Defendant argued the trial court erred in failing to instruct sua sponte on the statutory provision extending the limitations period for three counts of forcible sodomy. However, the court had no duty under Apprendi v. New Jersey (2000) 530 U. S. 466, to instruct the jury to decide the applicability of Penal Code section 803, subd.(g).id: 19420
Defendant's Sixth Amendment right to a jury trial was not violated by the state procedure which allows the court to determine whether a prior conviction qualifies for an enhancement statute.Under California law, the court, rather than the jury is entrusted with determining whether a prior conviction subjects the defendant to an increased sentence when the conviction does not establish on its face whether or not it constitutes a qualifying prior conviction for purposes of the applicable sentencing statute. The procedure does not violate a
defendant's Sixth Amendment right to a jury trial.id: 19083
In light of defendant's waiver of a jury trial on the prison allegations, the court properly determined the current offense was a serious felony. Defendant argued the imposition of a five year enhancement under Penal Code section 667, subd.(a)(1) was unauthorized because the jury did not make a finding that his current offense was a serious felony. However, in light of defendant's waiver of a jury trial on the prior allegations, the trial court properly assumed the responsibility of determining whether defendant's current offense was a serious felony. Thus, the court was warranted in concluding that defendant's violation of section 243, subd.(d) was such a felony.id: 19091
A prior conviction is still a matter for a judge to determine at sentencing rather than a factual issue for the jury.Citing Blakely v. Washington (2004) 542 U.S. 296, and Shepard v. United States (2005) ___ U.S. ___, 161 L.Ed.2d 205, defendant argued the court's selection of the upper term violated his Sixth Amendment right to a jury trial. He argued that in light of Justice Thomas's concurring opinion in Shepard, the "Almendariz-Torres" fact of a prior conviction exception is highly suspect at this point. However, the Almendariz-Torres holding that a prior conviction is a matter for a judge to determine at sentencing rather than a factual issue for the jury was specifically reaffirmed in United States v. Booker (2005) ___ U.S. ___, 160 L.Ed. 621.id: 18777
Imposition of upper terms and consecutive sentences under California's determinate sentencing law does not violate Blakely.The judicial fact-finding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive sentences under California's determinate sentencing law does not implicate a defendant's Sixth Amendment right to a jury trial as provided in Blakely v. Washington (2004) 124 S.Ct. 2531 and United States v. Booker (2005) 125 S.Ct. 738.id: 18609
The prosecution does not have the burden of proving the question of insanity after Apprendi.Defendant argued that Apprendi v. New Jersey (2000) 530 U.S. 466 has altered the burden of proof on the question of insanity, now requiring the prosecution to prove sanity beyond a reasonable doubt. However, the burden remains with the defense, and the trial court did not err in instructing that defendant had the burden of proving legal insanity by a preponderance of the evidence.id: 18617
Sentencing error under Blakely is subject to a harmless error analysis.Defendant argued the trial court committed Blakely error by imposing an upper term based on facts that were neither alleged in the information nor proven to the jury. However, whether or not Blakely requires a jury trial on the facts used by the court, any error was harmless where the facts relied upon by the court were uncontroverted and supported by overwhelming evidence.id: 18577
Defendant waived any potential conflict regarding counsel testifying at the penalty phase.Defendant argued reversal of the death judgment was required because his right to conflict free counsel was abrogated when his defense attorney testified at the penalty phase. Counsel testified as to the circumstances surrounding defendant's threats to the prosecutor. However, defendant expressly waived any potential conflict and the court did not err in accepting the waiver.id: 18511
Imposition without jury findings of an additional restitution fine and a parole revocation restitution fine did not violate Blakely.Defendant argued that the imposition without jury findings of an additional restitution fine and an additional parole revocation fine violated the holding in Blakely v. Washington. Implicit in the argument is the premise that defendant was entitled to the minimum restitution fine absent the additional factual findings to the contrary. However, Blakely does not apply where, as here, the exercise of judicial discretion stays within a sentencing range authorized by statute.id: 18475
Blakely does not apply retroactively to cases that were final at the time of the decision.The U.S. Supreme Court's decision in Blakely v. Washington (2004) 124 S.Ct. 2531, does not apply retroactively to cases that were final when the decision was issued.id: 18479
Blakely did not require a jury finding that defendant was ineligible for probation under the One Strike law.A jury convicted defendant of 30 counts of child molestation. It also sustained the allegation under Penal Code section 667.61, subd.(e)(5) that the offenses involved more than one victim. Defendant argued that Blakely v. Washington also required an explicit jury finding that he was ineligible for probation. However, because a defendant's eligibility for probation results in a reduction rather than an increase in the prescribed sentence, it is not subject to the rule of Blakely.id: 18467
Blakely does not apply upon revocation of probation to a final sentence that was previously imposed but suspended during the probationary period.The new sentencing rules announced in Blakely v. Washington (2004) 124 S. Ct. 2531, do not apply retroactively upon revocation of defendant's probation to a final sentence that was previously imposed but suspended during his probationary period.id: 18305
The determination of whether California has jurisdiction over a crime which occurred in part outside the state is to be made by the trial court rather than the jury.The question whether a California court has jurisdiction to adjudicate a charge of a crime committed in whole or in part outside the state is a matter to be determined by the trial court rather than the jury because it is a procedural issue that does not determine guilt or innocence. In the present case, which charged acts of child molestation, defendant's acts of driving the girls across state lines in his truck with the intent to molest them constituted sufficient conduct to establish California jurisdiction over the crimes.id: 18310
Blakely does not require that a jury, rather than the trial court, decide a Romero motion to dismiss strike priors.Defendant argued that under Blakely v. Washington (2004) 124 S. Ct. 2531, it is for the jury, not a judge, to determine whether to dismiss a prior strike conviction on the ground that he falls outside the spirit of the three strikes law. However, assuming the Romeo determination could be considered "fact-finding," is not the type of fact-finding contemplated by Blakely.id: 18225
Assuming Blakely applies to consecutive sentences, the facts used to support the imposition of consecutive terms were contained within the verdicts.Defendant was convicted of several sex offenses against his stepdaughter and daughter, as well one count of furnishing drugs to a minor. He argued the imposition of consecutive sentences based on facts not found true by the jury violated Blakely. However, assuming that Blakely applied to a trial court's decision to impose consecutive sentences, the court's decision here was based on facts found within the verdict - including multiple victims and separate occasions.id: 18248
The consecutive sentences did not violate Blakely where they were based on the jury's verdict in finding separate assaults against different victims, rather than independent findings by the court.Defendant argued that the factual determination required by Penal Code section 654, that the offenses involved multiple objectives, must be made by the jury, not the trial court. He further argued the decision to impose consecutive sentences violated Blakely because the decision rested on findings of fact beyond those necessarily found by the jury's verdict. However, the information charged separate assaults for each victim and each verdict returned by the jury found that defendant committed an assault against a different named individual. Because the imposition of consecutive sentences was based upon the jury's verdict rather than the court's independent findings of fact, the sentence did not violate Blakely.id: 18103
The trial court did not violate Blakely by imposing the upper term based on a prior prison term where defendant waived jury trial on the priors and the court made the finding beyond a reasonable doubt.The trial court sentenced defendant to the upper term for a drug possession charge based on a number of factors, including the court's finding beyond a reasonable doubt, that he suffered a prior prison term. Imposition of the upper term did not violate Blakely v. Washington (2004) 124 S. Ct. 2531, since defendant waived his right to a jury trial, and the issue was decided beyond a reasonable doubt. Nor was there a problem with an overlap between the aggravating factor used to impose four one-year prior prison term enhancements, after finding that five such enhancement allegations were true. One prison term alone was a sufficient aggravating circumstance to allow the court to impose the upper term.id: 18109
There is no constitutional or statutory right to have a jury determine facts relating to presentence conduct credits.Defendant argued the trial court erred in finding the first degree burglary was a felony within the meaning of Penal Code section 667.5, subd.(c)(21) because the issue should have been submitted to the jury. However, determining whether a defendant's current conviction for first degree burglary for purposes of calculating presentence conduct credits is properly part of the trial court's traditional sentencing function.id: 18015
The trial court did not commit Apprendi error by refusing to allow the jury to consider whether operating a methamphetamine lab was an inherently dangerous felony for purposes of the felony-murder rule.Defendant was convicted of second degree murder and the manufacture of methamphetamine. He argued the determination of whether manufacturing methamphetamine was an inherently dangerous felony should have been made by the jury, not the court. However, nothing in Apprendi v. New Jersey (2000) 530 U.S. 466, changed the long-standing rule that it is a question of law whether a crime is an inherently dangerous felony for the purpose of the felony-murder rule.id: 17883
Prior juvenile adjudication may be used as a strike prior even though defendant did not have a right to a jury trial during the juvenile proceeding.Defendant argued his prior juvenile adjudication could not be considered a "strike" because he did not have the right to a jury trial during the prior juvenile proceeding. However, the procedural safeguards provided in juvenile adjudications are sufficient to satisfy the concerns set forth in Apprendi v. New Jersey (2000) 530 U.S. 466.id: 17564
Use, as a strike, of a juvenile prior obtained without a jury trial did not violate Apprendi.Defendant argued that it was unconstitutional to sentence him under the three strikes law based on his prior juvenile adjudications because he was denied the right to a jury trial in the juvenile court proceedings. However, a juvenile adjudication may be used as a strike to enhance an adult offender's sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings.id: 17458
Finding on the weight enhancement was proper where the verdict form did not expressly include the substantial involvement in the underlying offense element of the allegation.Defendant argued the jury was required to make a special finding that he was "substantially involved" in the planning, direction, execution, or financing of the underlying offenses, and the failure to include "substantial involvement" language on the verdict form required reversal of the Health and Safety Code section 11370.4 weight enhancement. However, having been instructed on all elements of the weight enhancement, it can be presumed the jury made findings as instructed when it found the enhancement to be true. Apprendi v. New Jersey (2000) 53 U.S. 466, required nothing more.id: 17388
Defendant has no right to a jury trial on the issue of whether he is the person whose name appears on documents admitted to establish the convictions.The trial court did not err under Apprendi v. New Jersey (2000) 530 U.S. 466, by instructing the jury at the time of the trial on the prior convictions that defendant "is the person whose name appears on the documents admitted to establish the convictions." A defendant has no right to a jury trial on whether he is the person whose name appears on the documents admitted to establish the convictions.id: 17285
A capital defendant may not plead guilty to murder and leave it up to the court, under section 1192, to determine the degree of the murder.Defendant was charged with capital murder. He sought an order directing the trial court to accept his offer to plead guilty to the charge of murder, leaving it to the trial court, sitting without a jury, to determine the degree of the murder pursuant to Penal Code section 1192. However, section 1192 does not apply to first degree murder with special circumstances. Where the language of the felony information charges a defendant with only first degree murder, he or she may plead guilty to first degree murder, but may not plead guilty to murder in an unspecified degree or utilize the procedures of section 1192 to determine the degree of the offense. However, contrary to the state's claim, the recent U.S. Supreme Court decisions in Apprendi and Ring do not prevent the state from allowing a defendant to waive his right to have a jury determine the degree of murder.id: 17038
Prop 36 involves a sentencing reduction rather than an enhancement and therefore, Apprendi has no application.Citing Apprendi v. New Jersey (2002) 530 U.S. 466, defendant argued the issue of whether, under Penal Code section 1210 (enacted as part of Proposition 36), a defendant transports drugs for personal use is a factual question for the trier of fact to determine under a reasonable doubt standard. However, Apprendi has no application since Prop 36 effects a sentencing reduction rather than an enhancement.id: 17046
Sex offender registration is not punishment and therefore the facts which lead to the requirement need not be alleged or proven beyond a reasonable doubt under Apprendi.Sex offender registration does not constitute punishment or penalty within the meaning of Apprendi v. New Jersey (2002) 530 U.S. 466, under the due process clause of the Fourteenth Amendment. Therefore, when the prosecution seeks to require registration under Penal Code section 290(a)(2)(e), due process does not demand that the fact necessary to impose the registration requirement - that the defendant committed an offense "as a result of sexual compulsion or for the purposes of sexual gratification" - be alleged in the information or proven beyond a reasonable doubt.id: 16835
Apprendi does not require that a jury decide whether a defendant has a separate intent and objective for multiple offenses occurring during a course of criminal conduct.In Apprendi v. New Jersey (2000) U.S. , 120 S.Ct. 2348, the Supreme Court held 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. Defendant argued the trial court's determination under Penal Code section 654 that he had separate objectives with respect to the robbery and attempted murder violated the Apprendi rule because, after Apprendi, a jury rather than the trial court, must determine the intent and objective of the defendant beyond a reasonable doubt. However, unlike the hate crime provision in Apprendi, section 654 is not a sentence enhancement. Apprendi dose not apply where the non-jury factual determination allows for a sentence within the range authorized by the verdict.id: 16504
Following Apprendi, the Fourteenth Amendment does not guarantee an accused the right to a jury trial on section 667.5 prior prison term allegations.Defendant argued he was denied the right to a jury trial because he never personally agreed to allow the trial judge to decide the validity of two prior prison term allegations. Defendant's failure to personally waive the right to a jury trial on the allegations did not amount to a state constitutional violation. Neither did it violate his federal constitutional jury trial right following <i>Apprendi</i>. <i>Apprendi</i> excepted from its ruling the "fact of a prior conviction." Defendant argued it applied since it was the prison term conviction at issue. However, defendant's interpretation of <i>Apprendi</i> was too narrow and taken out of context.id: 16404
Apprendi does not require a jury find beyond a reasonable doubt the applicability of a specific section 190.3 sentencing factor.Defendant argued that <i>Apprendi v. New Jersey</i> (2000) 530 U.S. 466 requires the jury to determine that proffered aggravating evidence of unadjudicated acts established the attempted, threatened, or actual use of force or violence. However, <i>Apprendi</i> does not require a jury find beyond a reasonable doubt the applicability of a specific Penal Code section 190.3 sentencing factor.id: 16407
Proof of strike priors is not required at preliminary hearings even in the wake of Apprendi.California courts have held that strike priors need not be proved at the preliminary hearing. The recent decision of <i>Apprendi v. New Jersey</i> (2000) 530 U.S. 466 does not change that proposition. <i>Apprendi</i> held that all facts increasing punishment beyond the statutory maximum must be proven to the jury beyond a reasonable doubt. However, <i>Apprendi</i> specifically excepted prior conviction allegations from its rulings. Moreover, that the failure to present proof of strikes at a preliminary hearing might hinder public policy is a matter that should be addressed to the Legislature. Finally, defendant was not similarly situated to others whose priors are proven at prelims, i.e., those whose priors elevate a misdemeanor to a felony, and there is therefore no equal protection violation.id: 16357
The issue of determining the applicability of section 654 is for the court, not the jury, to decide.Defendant was convicted of one count of arson and two counts of making terrorist threats. He argued the court's imposition of consecutive sentences on three convictions violated Penal Code section 654 because the applicability of that section is for the jury, not the trial court to decide. However, section 654 is not an enhancement, but rather a reduction statute. The <i>Apprendi</i> decision which calls for jury trials for enhancements does not apply.id: 15088
Apprendi did not transfer defendant's right to a jury trial on the priors from a statutory right into a constitutional right.Defendant argued that <i>Apprendi v. New Jersey</i> (2000) 530 U.S. 466, entitled him to relief because his right to a jury trial of the alleged prior strike convictions is now a right of constitutional dimension. However, the right to a jury trial to determine the fact of a prior conviction derives solely from California statutory law.id: 15012
Defendant was not entitled to a jury trial on the issue of whether he was a gang member before he could be subject to a gang related injunction.Defendant and 27 other gang members were enjoined from engaging in various activities such as possessing weapons and associating with other gang members. The trial court's denial of his right to a jury trial on the issue of whether he was an active member of the Posole gang did not violate his right to due process or his right to a jury trial under the state constitution.id: 15014
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245