Brief Bank # B-811 (Re: PG VII(C)(32) / EA V(L)(2) [Applicability Of Constitutional Rights To Sentencing Decisions / Standard Of Prejudice Re: Instructional Errors On Sentencing Factors — Prior Convictions].)
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CONSTITUTIONAL ERROR
Respondent does not directly address the Sixth Amendment issue, but relies upon People v. Kelii (1999) 21 Cal.4th 452, which touches on the issue. (RB 8-9.) Kelii concluded that a criminal defendant has “no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement.” (Id., at p. 455, quoting People v. Wiley (1995) 9 Cal.4th 580, 585-589.) Wiley in turn relied upon certain federal authorities in reaching the conclusion that the federal Constitution does not confer a right to jury trial for the determination of sentence enhancement allegations. (Id., at p. 585, citing McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 and Spaziano v. Florida (1984) 468 U.S. 447, 459.)
An examination of McMillan reveals that it relied upon Spaziano without any further analysis of the issue. (McMillan, supra, 477 U.S. at p. 93.) Spaziano was a capital case where the jury found that the defendant was guilty of a crime which potentially exposed him to death or to life imprisonment. The jury recommended life imprisonment, but under Florida law, the trial court was entitled to “override” the recommendation of the jury, and that is precisely what the judge did. The Supreme Court was called upon to determine whether the determination of punishment in a capital case must always be made by a jury. (Spaziano, supra, 468 U.S. at p. 458.) The high court analogized the sentencing phase of a capital case to the sentencing proceeding of a non-capital case, and concluded that “[tlhe Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.” (Id., at p. 459.)
Wiley and Kelii have taken the language from Spaziano and given it a broad interpretation, assuming that there is no right to jury trial in any sentencing proceedings, no matter what the circumstances. In Jones v. United States (1999) 526 U.S. 227 [119 S. Ct. 1215] the United States Supreme Court has undermined that assumption. In Jones, after the defendant was found guilty of car jacking, the trial court was called upon to determine whether the crime involved “serious injury”. A true finding would increase the maximum penalty from 15 years to 25 years. (Id., at pp. 1218, 1224.) Although the high court relied primarily on statutory analysis in deciding that such a determination could not be made by the court, it also gave a strong warning about the constitutionality of such a procedure.
The high court made a distinction between “ordinary” factual determinations that may normally be made by a judge in sentencing, and those determinations which trigger the Sixth Amendment. An “ordinary” factual determination is one which bears upon the actual sentence which the defendant will receive within the permissible range inherent in the underlying conviction. (Jones, supra, 119 S. Ct. at p. 1224.) Such a sentencing determination may be made by a judge alone, and does not implicate the Sixth Amendment.(Id., pp. 1223-1224.)McMillan (and, by implication, Spaziano) fell within this category. (Id., at p. 1223.)
However the Jones majority noted that McMillan raised a question of whether the Sixth Amendment might be implicated where the factual finding “exposed a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact.” (Jones, supra, 119 S. Ct. at pp. 1223-1224, citing McMillan, supra, 477 U.S. at p. 88.) As McMillan points out, the statute at issue gave “no impression of having been tailored to permit the [sentencing finding] to be a tail which wags the dog of the substantive offense.” (Ibid.)
The Jones majority emphasized the “tail wagging the dog” analogy, and noted that if the trial court could determine a ”sentencing factor” that could raise the maximum punishment from 15 years to a maximum of life imprisonment, then the jury’s role would “correspondingly shrink from the significance usually carried by determinations of guilt to the relative importance of low-level gate keeping……” (Jones, supra, 119 S. Ct. At p. 1224.) The court related ample history to explain that the framers of the Constitution were well aware of the inherent tension between the power of the judge and that of the jury, and concluded that “diminishment of the jury’s significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled.” (Id., at p.1226;
see also pp. 1225-1226.)
The instant case demonstrates how much a sentencing factor can become the “tail that wags the dog.” Without the prior “strikes”, the conviction would carry a maximum punishment of three years. But with two or more prior “strikes”, appellant was exposed to (and received) a sentence of 25 years to life. The jury’s role was thus reduced to a “low level gatekeeper” which cannot be tolerated under the Sixth Amendment.
