Judicial Factfinding, Multiple Sex Offense Convictions and Consecutive Sentences

Over a period of 10 months, Edgar Sandoval Catarino sexually abused his 9-year old cousin on multiple occasions.  He was charged with 8 counts of forcible lewd acts on a child under the age of 14 (Penal Code §288(a)) .  Each charge alleged an identical range of dates during which these offenses may have occurred.  A jury subsequently convicted him on 6 of the counts and the verdict also included the same range of dates alleged on each count, but did not further specify on what dates each of the crimes took place.  At sentencing, the court found that each conviction occurred on separate occasions and sentenced him to full, consecutive terms for each pursuant to Penal Code section 667.6(d).  Catarino argued that because the jury did not make specific findings that each of his convictions constituted separate incidents occurring on separate occasions, it violated his Sixth Amendment right to a jury trial.  The California Supreme Court rejected this argument and upheld his full, consecutive sentences this morning in People v. Catarino (S271828)

The statute under which Catarino was convicted mandates a sentence of “5, 8, or 10 years” in state prison (Penal Code §288(b)(1)).  Generally, when a defendant is convicted on multiple counts, the sentencing court must decide whether the terms of imprisonment are to run concurrently or consecutively (Penal Code §669(a)).  Penal Code §1170.1 governs most determinate, consecutive sentencing for two or more felony convictions.  However, two alternative sentencing schemes exist for certain sex offenses.  If the sex crimes involved the same victim on the same occasion, Penal Code §667.6(c) states that “a full, separate, and consecutive term may be imposed for each violation.”  If the sex crimes involve separate victims or involves the same victim on separate occasions, Penal Code §667.6(d) states that “a full, separate, and consecutive term shall be imposed for each violation.”  Catarino was sentenced pursuant to the latter statute and the sentencing court was required to impose full, consecutive terms on each court, the lowest of which on each subordinate term was five years.

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held that under the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  A few years later, the high Court held in Alleyne v. United States, 570 U.S. 99, 112 (2013), that Apprendi applies “with equal force to facts increasing the mandatory minimum” because such an increase elevates “the prescribed range of sentences to which a criminal defendant is exposed.”  Catarino argued that because the jury did not decide whether each of his offenses were committed on separate occasions, and because the separate occasions finding triggered Penal Code §667.6(d) thereby increasing the minimum term for each of those offenses, it violated the rules of Apprendi and Alleyne.

The California Supreme Court disagreed relying on Oregon v. Ice, 555 U.S. 160 (2008), a case in which the United States Supreme Court held that Apprendi “does not apply to facts deemed necessary to the imposition of consecutive as opposed to concurrent sentences[.]”  (slip op. at pp. 1-2.)  The California Supreme Court further stated that:

“Like the statutes in Ice, section 667.6(d) is a ‘specification of the regime for administering multiple sentences,’ which ‘has long been considered the prerogative of state legislatures’ (Ice, 555 U.S. at p. 168)  Section 667.6(d) applies only when a defendant ‘has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions’; it governs how these sentences run relative to each other, a ‘sentencing function in which the jury traditionally played no part.’  (Ice, at p. 163.) This is distinct from the Apprendi line of cases, which concerns ‘sentencing for a discrete crime, not . . . for multiple offenses different in character or committed at different times.’ (Ice, at p. 167.)  Had Catarino been convicted of only one offense, section 667.6(d) would have had no effect on the sentencing options authorized by the jury’s verdict.  It is only because he was convicted by a jury of multiple offenses that section 667.6(d) applies to inform how each offense’s authorized sentence runs relative to each other.”  (slip op. at pp. 10-11.)





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