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People v. Jimenez1/18/2005
nited States Supreme Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) __ U.S. ___ [124 S.Ct. 2531] (Blakely).
In Apprendi, the court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490, italics added.) In Blakely, the court explained that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 124 S.Ct. at p. 2537.) In each case, state law established an ordinary sentencing range for the crime the defendant was convicted of committing, but allowed the court to impose a sentence in excess of that range if it determined the existence of specified facts not intrinsic to the crime. In each case, the Supreme Court held that a sentence in excess of the ordinary rage was unconstitutional because it was based on facts other than the fact of a prior conviction that were not admitted by the defendant or found true beyond a reasonable doubt.
California's determinate sentencing law (DSL) provides, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Pen. Code, § 1170, subd. (b).) Appellant argues that under this scheme, the middle term is the presumptive sentence, akin to the ordinary sentencing ranges that were at issue in Apprendi and Blakely. He contends that under Apprendi and Blakely, the court could impose the upper term only if the factors in aggravation supporting the higher sentence were admitted by the defendant or found true by the jury.
We need not decide whether Apprendi and Blakely apply to the imposition of an upper term sentence under the DSL. In this case, the upper term sentence was based in part on appellant's history of traffic related offenses, which included a 2000 misdemeanor conviction for hit and run driving under Vehicle Code section 20002, subdivision (a) and a 2002 misdemeanor conviction for reckless driving in violation of Vehicle Code section 23103, subdivision (b). These convictions were aggravating circumstances outside the ambit of Apprendi and Blakely and the court was free to rely upon them without obtaining an admission or jury finding as to their truth. (See Cal. Rules of Court, rule 4.421(b)(2).)
It does not matter for our purposes that the court also relied on other aggravating facts concerning the commission of the current offense, all of which would be subject to Apprendi and Blakely if those cases are held to apply to the selection of an upper term under the DSL. Under California law, a single factor in aggravation is sufficient to support the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730.) It follows that when an aggravating factor is properly subject to consideration by the sentencing court, either because it has been admitted or found true by the jury or because it involves the fact of a prior conviction which need not be admitted or found true by the jury, the maximum sentence that is theoretically available to the court based on the facts properly before it is the upper term. It may be that other factors will affect the sentence actually imposed, but the defendant is on notice that as a result of the facts properly before the sentencing court, he or she may be sentenced to the upper term.
The constitutional defect in Apprendi and Blakely was that the tria
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