Brief Bank # B-877 (Re: PG VII(C)(32)(6) [Apprendi: ALERT].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
CHARLES R. KHOURY JR.
Attorney at Law
P.O. Box 1066
WiltonN.H.03086
(603) 654-2050
Calif. State Bar No 42625
March 28, 2001
Stephen M. Kelly, Clerk
Court of Appeal
Fourth Appellate District Div. One
750 “B” St.Suite 300
San DiegoCalif.92101-8196
People v. Doe D000000
Dear Mr. Kelly:
The purpose of this letter is to request to submit a supplemental letter brief on the issue of sentencing under Penal Code section 667.6, subdivision (d). The brief is prompted by the United States Supreme Court decision in Apprendi v. New Jersey (2000)_U.S._, 120 S,Ct. 2348. The principle of Apprendi was stated by the Court: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the described statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. At pp.2362-2363. The argument below applies that principle to the decision of the sentencing judge to impose full strength consecutive sentences for Counts Three (rape) and Seven (rape by foreign object) and a consecutive sentence on Count Five (attempted sodomy). The Attorney General has conceded that the sentence for count Five cannot be a full strength sentence but it is consecutive nonetheless and the Apprendi rationale still applies.
I
THE SENTENCING JUDGE VIOLATED THE CONSTITUTIONAL MANDATE OF APPRENDI WHEN IT USED SECTION 667.6 SUBDIVISION (D) TO IMPOSE FULL STRENGTH MANDATORY CONSECUTIVE SENTENCES WITHOUT HAVING THE FACTUAL DECISIONS MAKING THAT SECTION OPERATIVE SUBMITTED TO A JURY.
Section 667.6 subdivision (d) provides in pertinent part:
A full, separate and consecutive term shall be served for each violation of [enumerated offenses]… if the crimes involve separate victims or involve the same victim on separate occasions.
In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.
It is submitted that Apprendi requires the jury rather than the trial judge to determine whether a defendant committed these offenses on “separate occasions” and is therefore subject to full consecutive sentences rather than concurrent sentences. Apprendi, involved the question of who can make a factual finding about the defendant’s state of mind at the time he committed the acts which injured the victim. Was the defendant’s mind focused on racial hatred toward the victim? If so the trial court could add a 10-year enhancement. The Supreme Court concluded this deprived the defendant of his constitutional rights-the 6th amendment right to trial by jury and the 5th amendment due process right to proof beyond a reasonable doubt. (Apprendi at 120 S.Ct. at p. 2355.) The instant case likewise involves a factual finding about the state of mind of John Doe, was the digital penetration committed as a means to committing the sexual intercourse? Can the same be said as to the attempted sodomy? Was there a reasonable opportunity for Doe to reflect upon his actions? Justice Johnson has set forth a convincing argument in his dissent in People v. Cleveland,February 27, 2001 Daily Journal D.A.R. 2051, that Apprendi applies to the operation of section 654 in the determination of multiple objectives. That argument applies to the instant case and is adopted herein. Justice Johnson failed to convince a majority of his panel because they reasoned that section 654 is a sentence reduction statute and the statute in Apprendi was not. (2001 D.A.R. at p. 2052.) It cannot be argued that section 667.6(d) is a sentence reduction statute.
Accordingly, as in Apprendi, John Doe was deprived of a jury determination as to the applicability of section 667.6 subdivision (d). Reversal of the sentence is required on this issue alone.
Respectfully submitted,
Charles R. Khoury, Jr.
Attorney for Appellant Doe
CHARLES R. KHOURY JR.
Attorney at Law
P.O. Box 1066
WiltonN.H.03086
(603) 654-2050
Calif. State Bar No 42625
April 8, 2001
Stephen M. Kelly, Clerk
Court of Appeal
Fourth Appellate District Div. One
750 “B” St.Suite 300
San DiegoCalif.92101-8196
People v. Doe D000000
Dear Mr. Kelly:
The purpose of this letter is to request to submit a reply to the Attorney General’s letter brief dated April 5. 2001.
Apprendi IS APPLICABLE TO THIS CASE.
The issue before the court is the applicability of the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348. The principle of Apprendi was stated by the Court: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at pp.2362-2363. The response of the Attorney General was that Approndi did not apply. The reasons according to the Attorney General’s argument on p. 2 are that the sentence meted out to appellant under section 667.6 subdivision(d) was “within the range already authorized by the verdict.” (p.2). That response refuses to answer the question whether the penalty was increased beyond the ‘prescribed statutory maximum” by a fact not submitted to the jury. Examining the counts to which section 667.6 subdivision (d) was applied reveals the following: 1) a full strength consecutive sentence for Counts Three (rape) and Seven (rape by foreign object) was applied due to an apparent finding by the sentencing judge that the incidents occurred on separate occasions. The full strength sentences were the mid-term of 6 years each. But for the application of section 667.6 subdivision (d), the statutory maximum was not six years but 1/3 of the midterm under section 1170.1 which would have meant a sentence of two years instead of six. Count Five is not subject to the Apprendi rule since the Attorney General has already conceded that section 667.6 subdivision (d) cannot apply to that offense.
In essence, the Attorney General is saying that a defendant in the position of appellant could expect, after a guilty finding of counts three and seven, that a judge could give full strength sentences for those counts and that those sentences would be “within a range authorized by the verdict.” (p. 2 of AG’s ltr brief of 4/5/01.). The problem with this logic is that it totally eviscerates Apprendi since the same could be said about his situation. Once Charles Apprendi was convicted by plea of two counts of possession of a firearm for an unlawful purpose and one count of possession of a firebomb, he could expect that a judge might find that such unlawful purpose was a “hate” crime since the State had expressly reserved the right to so argue at sentencing. Apprendi had much more of a hearing than appellant had on the issue of whether the acts were separate occasions. Apprendi called a psychologist and seven witnesses who testified he did not have a reputation for racial bias. He took the stand himself and explained that the incident was an unintended consequence of alcohol consumption and denied he had any racial bias. Nevertheless the judge imposed an additional sentence finding by a preponderance of evidence that the crime had been motivated “with a purpose to intimidate.”
In appellant’s case, a judge who had not even heard the facts of the trial, apparently ruled that the counts had occurred on separate occasions and thereby was able to exceed the statutory maximum of 1/3 the mid term and impose full strength consecutive sentences. There is no difference between appellant’s case and that of Charles Apprendi. In each case, a statutory maximum penalty was exceeded by a factual finding going to the state of mind of appellant ( time of reflection, purpose of one act in aiding the other) made by a judge, not a jury, using a preponderance of the evidence standard instead of “beyond a reasonable doubt.” Accordingly, appellant’s sentence must be reversed.
Respectfully submitted,
Charles R. Khoury Jr.
Attorney for Appellant
Brief Bank # B-877 (Re: PG VII(C)(32)(6) [Apprendi: ALERT].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
CHARLES R. KHOURY JR.
Attorney at Law
P.O. Box 1066
WiltonN.H.03086
(603) 654-2050
Calif. State Bar No 42625
March 28, 2001
Stephen M. Kelly, Clerk
Court of Appeal
Fourth Appellate District Div. One
750 “B” St.Suite 300
San DiegoCalif.92101-8196
People v. Doe D000000
Dear Mr. Kelly:
The purpose of this letter is to request to submit a supplemental letter brief on the issue of sentencing under Penal Code section 667.6, subdivision (d). The brief is prompted by the United States Supreme Court decision in Apprendi v. New Jersey (2000)_U.S._, 120 S,Ct. 2348. The principle of Apprendi was stated by the Court: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the described statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. At pp.2362-2363. The argument below applies that principle to the decision of the sentencing judge to impose full strength consecutive sentences for Counts Three (rape) and Seven (rape by foreign object) and a consecutive sentence on Count Five (attempted sodomy). The Attorney General has conceded that the sentence for count Five cannot be a full strength sentence but it is consecutive nonetheless and the Apprendi rationale still applies.
I
THE SENTENCING JUDGE VIOLATED THE CONSTITUTIONAL MANDATE OF APPRENDI WHEN IT USED SECTION 667.6 SUBDIVISION (D) TO IMPOSE FULL STRENGTH MANDATORY CONSECUTIVE SENTENCES WITHOUT HAVING THE FACTUAL DECISIONS MAKING THAT SECTION OPERATIVE SUBMITTED TO A JURY.
Section 667.6 subdivision (d) provides in pertinent part:
A full, separate and consecutive term shall be served for each violation of [enumerated offenses]… if the crimes involve separate victims or involve the same victim on separate occasions.
In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.
It is submitted that Apprendi requires the jury rather than the trial judge to determine whether a defendant committed these offenses on “separate occasions” and is therefore subject to full consecutive sentences rather than concurrent sentences. Apprendi, involved the question of who can make a factual finding about the defendant’s state of mind at the time he committed the acts which injured the victim. Was the defendant’s mind focused on racial hatred toward the victim? If so the trial court could add a 10-year enhancement. The Supreme Court concluded this deprived the defendant of his constitutional rights-the 6th amendment right to trial by jury and the 5th amendment due process right to proof beyond a reasonable doubt. (Apprendi at 120 S.Ct. at p. 2355.) The instant case likewise involves a factual finding about the state of mind of John Doe, was the digital penetration committed as a means to committing the sexual intercourse? Can the same be said as to the attempted sodomy? Was there a reasonable opportunity for Doe to reflect upon his actions? Justice Johnson has set forth a convincing argument in his dissent in People v. Cleveland,February 27, 2001 Daily Journal D.A.R. 2051, that Apprendi applies to the operation of section 654 in the determination of multiple objectives. That argument applies to the instant case and is adopted herein. Justice Johnson failed to convince a majority of his panel because they reasoned that section 654 is a sentence reduction statute and the statute in Apprendi was not. (2001 D.A.R. at p. 2052.) It cannot be argued that section 667.6(d) is a sentence reduction statute.
Accordingly, as in Apprendi, John Doe was deprived of a jury determination as to the applicability of section 667.6 subdivision (d). Reversal of the sentence is required on this issue alone.
Respectfully submitted,
Charles R. Khoury, Jr.
Attorney for Appellant Doe
CHARLES R. KHOURY JR.
Attorney at Law
P.O. Box 1066
WiltonN.H.03086
(603) 654-2050
Calif. State Bar No 42625
April 8, 2001
Stephen M. Kelly, Clerk
Court of Appeal
Fourth Appellate District Div. One
750 “B” St.Suite 300
San DiegoCalif.92101-8196
People v. Doe D000000
Dear Mr. Kelly:
The purpose of this letter is to request to submit a reply to the Attorney General’s letter brief dated April 5. 2001.
Apprendi IS APPLICABLE TO THIS CASE.
The issue before the court is the applicability of the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348. The principle of Apprendi was stated by the Court: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at pp.2362-2363. The response of the Attorney General was that Approndi did not apply. The reasons according to the Attorney General’s argument on p. 2 are that the sentence meted out to appellant under section 667.6 subdivision(d) was “within the range already authorized by the verdict.” (p.2). That response refuses to answer the question whether the penalty was increased beyond the ‘prescribed statutory maximum” by a fact not submitted to the jury. Examining the counts to which section 667.6 subdivision (d) was applied reveals the following: 1) a full strength consecutive sentence for Counts Three (rape) and Seven (rape by foreign object) was applied due to an apparent finding by the sentencing judge that the incidents occurred on separate occasions. The full strength sentences were the mid-term of 6 years each. But for the application of section 667.6 subdivision (d), the statutory maximum was not six years but 1/3 of the midterm under section 1170.1 which would have meant a sentence of two years instead of six. Count Five is not subject to the Apprendi rule since the Attorney General has already conceded that section 667.6 subdivision (d) cannot apply to that offense.
In essence, the Attorney General is saying that a defendant in the position of appellant could expect, after a guilty finding of counts three and seven, that a judge could give full strength sentences for those counts and that those sentences would be “within a range authorized by the verdict.” (p. 2 of AG’s ltr brief of 4/5/01.). The problem with this logic is that it totally eviscerates Apprendi since the same could be said about his situation. Once Charles Apprendi was convicted by plea of two counts of possession of a firearm for an unlawful purpose and one count of possession of a firebomb, he could expect that a judge might find that such unlawful purpose was a “hate” crime since the State had expressly reserved the right to so argue at sentencing. Apprendi had much more of a hearing than appellant had on the issue of whether the acts were separate occasions. Apprendi called a psychologist and seven witnesses who testified he did not have a reputation for racial bias. He took the stand himself and explained that the incident was an unintended consequence of alcohol consumption and denied he had any racial bias. Nevertheless the judge imposed an additional sentence finding by a preponderance of evidence that the crime had been motivated “with a purpose to intimidate.”
In appellant’s case, a judge who had not even heard the facts of the trial, apparently ruled that the counts had occurred on separate occasions and thereby was able to exceed the statutory maximum of 1/3 the mid term and impose full strength consecutive sentences. There is no difference between appellant’s case and that of Charles Apprendi. In each case, a statutory maximum penalty was exceeded by a factual finding going to the state of mind of appellant ( time of reflection, purpose of one act in aiding the other) made by a judge, not a jury, using a preponderance of the evidence standard instead of “beyond a reasonable doubt.” Accordingly, appellant’s sentence must be reversed.
Respectfully submitted,
Charles R. Khoury Jr.
Attorney for Appellant