People v. Hilburn ( 2023 )

Filed 7/5/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080175
Plaintiff and Respondent,
v. (Super. Ct. No. SCD286360)
SETH CHRISTOPHER HILBURN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Daniel F. Link, Judge. Affirmed.
Matthew Aaron Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting, Michael Dolida and Daniel Hilton, Deputy Attorneys General, for
Plaintiff and Respondent.
Seth Christopher Hilburn was charged with first degree burglary of an
inhabited dwelling, first degree robbery, and carjacking, with allegations that
he personally used a firearm in the commission of all three offenses. Before
trial, Hilburn entered into an agreement with the district attorney to plead
guilty to the first degree robbery charge and the related firearm enhancement
in exchange for the dismissal of the remaining charges and a maximum
sentence of 13 years in prison. At the sentencing hearing, the court
considered aggravating and mitigating factors and imposed an eight year
sentence, consisting of the middle term of four years for both the first degree
robbery conviction and the admission of the firearm enhancement allegation.
Hilburn appeals the sentence, asserting the court violated his Sixth
Amendment right to a jury trial by imposing the middle, and not low terms,
on the charges. Hilburn argues recent changes to the sentencing laws
required the court to impose the low terms for the crimes he pleaded guilty to
because the aggravating factors relied on by the court were not stipulated or
proven to a jury beyond a reasonable doubt. Hilburn also asserts the court
abused its discretion by imposing the middle terms because the aggravating
factors did not outweigh those in mitigation.
As we shall explain, we reject Hilburn’s constitutional argument and
agree with the Attorney General that the imposition of the middle term did
not implicate Hilburn’s Sixth Amendment jury trial rights. In addition, we
conclude the court’s imposition of the middle terms was not an abuse of its
discretion. Accordingly, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND1
On October 16, 2020, the district attorney filed an amended felony
complaint charging Hilburn with first degree burglary of an inhabited
dwelling with a person other than an accomplice present (Pen. Code, §§ 459,
1 Because the case was resolved by plea agreement, the limited facts here
are taken from the plea form and the transcript of the change of plea hearing.
2
460, subd. (a), and 667.5, subd. (c)(21);2 count 1); first degree robbery of an
inhabited dwelling (§§ 211 and 212.5, subd. (a); count 2); and carjacking
(§ 215, subd. (a); count 3). The complaint also alleged Hilburn personally
used a firearm within the meaning of sections 12022.53, subdivision (b), and
12022.5, subdivision (a), in the commission of all three offenses.
Subsequently, on October 8, 2021, Hilburn pleaded guilty to the
robbery of an inhabited dwelling charge (count 2) and admitted the related
section 12022.5, subdivision (a), firearm enhancement allegation in exchange
for dismissal of the remaining charges and allegations and a sentencing lid of
13 years. On his plea form, and at the change of plea hearing, Hilburn
admitted that on April 2, 2020, he used force and fear to take property from
the victim while in an inhabited dwelling house. Hilburn also admitted that
he personally used a firearm during the commission of the crime and that he
intended to permanently deprive the victim of the use of his property.
At the sentencing hearing on February 15, 2022, Hilburn’s counsel
argued that under newly amended section 1170, subdivision (b)(6), Hilburn
should be sentenced to the low terms for both the robbery and firearm
enhancement because he was a youthful offender at the time the crimes were
committed. The court agreed that Hilburn was a youthful offender under the
new law and, therefore, the low terms were the presumptive sentences.
However, the court found the aggravating and mitigating factors
supported the imposition of the middle terms in the interests of justice.
Specifically, the court concluded several aggravating factors supported
imposition of the middle terms: Hilburn’s use of a firearm in the robbery; he
chose a home that was occupied by its residents; and he was not a passive
participant in the crime, but actively made verbal threats to the victim that
2 Subsequent undesignated statutory references are to the Penal Code.
3
caused severe emotional injury. In addition, the court found that Hilburn’s
prior record of criminal conduct was an aggravant supporting the imposition
of the middle term.3
The court sentenced Hilburn to the middle term of four years for the
robbery conviction plus a consecutive four-year middle term for the firearm
enhancement, for an aggregate sentence of eight years in state prison.
Hilburn timely appealed the sentence.
DISCUSSION
As noted, Hilburn makes two primary arguments on appeal. First, he
asserts the trial court violated his jury trial rights under the Sixth
Amendment to the United States Constitution by basing the imposition of the
middle term sentences on aggravating factors to which he did not stipulate,
and which were not found true by a jury beyond a reasonable doubt. Second,
Hilburn contends that, even if his constitutional rights were not violated, the
court abused its sentencing discretion because the aggravating factors did not
outweigh those in mitigation.
The Attorney General responds that this court must dismiss Hilburn’s
appeal because he failed to obtain a certificate of probable cause in the trial
court. Alternatively, the Attorney General contends that under newly
amended section 1170, subdivision (b), no jury finding or stipulation was
required, and that the court properly weighed the mitigating and aggravating
circumstances to determine that imposition of the lower terms was contrary
to the interests of justice.
3 The probation report provided to the court before sentencing listed six
prior offenses in Colorado for which Hilburn had served prison terms. The
report also indicated that there was a warrant for his arrest in Colorado at
the time of his arrest in this case.
4
I
Certificate of Probable Cause
“The right to appeal is statutory only, and a party may not appeal a
trial court’s judgment, order or ruling unless such is expressly made
appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159.) “In
general, [however,] a defendant may appeal from a final judgment of
conviction, unless otherwise limited by sections 1237.1 and 1237.5.” (People
v. Maultsby (2012) 53 Cal.4th 296, 298–299, citing § 1237 & Cal. Rules of
Court, rule 8.304(b).)
“Section 1237.5 provides that an appeal may not be taken after a plea
of guilty or no contest unless the defendant has filed a statement showing
reasonable grounds for appeal and the trial court has executed and filed a
certificate of probable cause. This requirement does not apply, however, if
the appeal is based upon grounds that arose after entry of the plea and that
do not affect the validity of the plea.” (People v. French (2008) 43 Cal.4th 36,
43 (French).)
“ ‘In determining whether section 1237.5 applies to a challenge of a
sentence imposed after a plea of guilty or no contest, courts must look to the
substance of the appeal: “[T]he crucial issue is what the defendant is
challenging, not the time or manner in which the challenge is made.”
[Citation.] Hence, the critical inquiry is whether a challenge to the sentence
is in substance a challenge to the validity of the plea, thus rendering the
appeal subject to the requirements of section 1237.5.’ ” (French, supra, 43
Cal.4th at p. 44.)
Relying on People v. Shelton (2006) 37 Cal.4th 759 (Shelton) and
People v. Cuevas (2008) 44 Cal.4th 374 (Cuevas), the Attorney General argues
that Hilburn’s challenge is to the validity of the plea agreement itself. The
5
Attorney General asserts that Hilburn’s argument is an attack on the 13-year
sentencing lid the parties agreed was a permissible and authorized sentence,
and thus a certificate of probable cause was required to appeal. Hilburn
responds that his challenge is no different than the one made in French,
supra, 43 Cal.4th 36, in which the California Supreme Court determined no
certificate was required for the defendant’s assertion that imposition of the
upper term—although, like here, within the terms of the plea agreement’s
sentencing lid—violated his jury trial rights. We agree.
In Shelton, the California Supreme Court held “that a defendant’s
claim—that the sentence imposed by the trial court, which was within the
agreed-upon maximum term, violated the multiple punishment prohibition of
section 654—constituted an attack upon the validity of the plea and required
a certificate of probable cause.” (French, supra, 43 Cal.4th at p. 44.) “The
defendant in Shelton pleaded guilty to two of the charged counts and agreed
to a maximum sentence of three years eight months in exchange for dismissal
of three other counts, reserving the right to argue for a sentence lower than
the maximum but not reserving the right to argue that the agreed-upon
maximum was an unauthorized sentence. The trial court sentenced the
defendant to the maximum term of three years eight months, imposing the
upper term on one count and a consecutive term on the other count. In
challenging his sentence pursuant to section 654, the defendant argued that
the trial court lacked authority to impose the agreed-upon maximum term.”
(French, at p. 44.)
Shelton “explained that ‘inclusion of a sentence lid [in a plea
agreement] implies a mutual understanding and agreement that the trial
court has authority to impose the specified maximum sentence and preserves
6
only the defendant’s right to urge that the trial court should or must exercise
its discretion in favor of a shorter term.” (French, supra, 43 Cal.4th at p. 44.)
Accordingly, the court held that the defendant’ s “challenge to the trial court’s
authority to impose the lid sentence [based on section 654 wa]s a challenge to
the validity of the plea requiring a certificate of probable cause.’ ” (French, at
p. 44.)
Although the defendant in Shelton had the right to argue for a lesser
sentence, the bargain did not contemplate that he could challenge the court’s
authority to impose a sentence within the sentencing lid based on section
654. “This understanding of the provision [was] reinforced by the
prosecutor’s remarks at the sentencing hearing that he did not know
defendant intended to raise a challenge to the court’s sentencing authority
under ... section 654, that the sentence lid of three years and eight months
had been a term of the bargain, and that other counts could have been
chosen. The implication of those remarks was that the prosecutor did not
understand or believe that defendant had reserved a right to argue that the
trial court lacked authority to impose the specified maximum sentence of
three years and eight months.” (Shelton, supra, 37 Cal.4th at pp. 768–769.)
In Cuevas, the court considered a similar challenge based on the
multiple punishment prohibition of section 654, but where the defendant’s
plea agreement did not contain a sentencing lid. The defendant argued that
because there was no lid, such a challenge did not attack the validity of the
plea agreement. (Cuevas, supra, 44 Cal.4th at p. 377.) The court disagreed,
concluding that the maximum possible sentence of 37 years and eight months
on the charges to which the defendant pled operated like a sentencing lid.
(Id. at p. 384.) The court held, “[c]ontrary to defendant’s contention, the
presence or absence of a sentence lid does not dictate the result here. For
7
purposes of the certificate of probable cause requirement, the critical question
is whether defendant’s section 654 challenge to his sentence is in substance a
challenge to the validity of his plea.” (Cuevas, at p. 381.) The court
concluded the plea agreement did not reserve the challenge “because the
maximum possible sentence defendant faced was ‘part and parcel of the plea
agreement he negotiated with the People.’ ” (Ibid.)
In contrast to Shelton and Cuevas, French held that a challenge to the
imposition of an upper term sentence based on the defendant’s Sixth
Amendment jury trial rights did not require a certificate of probable cause.
The defendant in French was charged with 12 counts of lewd and lascivious
conduct with a child involving three victims, which was punishable by a triad
of prison terms of three, six, or eight years. (§ 288, subd. (a).) The
information also alleged that the defendant’s offenses fell “within the
meaning of section 667.61, subdivisions (b) and (e), an allegation which, if
found true, would increase the punishment for each offense to a term of
imprisonment of 15 years to life.” (French, supra, 43 Cal.4th at pp. 41–42.)
The maximum sentence for the charges was 180 years to life in prison.
The defendant pleaded no contest to six of the counts under a plea
“agreement whereby he would receive a sentence of no more than 18 years in
prison and the remaining six counts and the section 667.61 allegation would
be dismissed.” (French, supra, 43 Cal.4th at p. 42.) At the sentencing
hearing, the trial court imposed the upper term sentence on count 1, and one-
third of the six-year midterm on each of the other five counts, all to be served
consecutively for a total term of 18 years. (Id. at p. 43.) The court stated it
selected the upper term because the defendant had taken advantage of a
position of trust and confidence to commit the crimes, an aggravating factor
under the California Rules of Court, and imposed consecutive terms because
8
the crimes were committed on different occasions or at separate locations.
(Ibid.) The defendant challenged the sentence on appeal, arguing that the
court’s imposition of the upper term violated his Sixth Amendment right to a
jury trial as established in Cunningham v. California (2007) 549 U.S. 270(Cunningham). (French, at p. 40.)
The French court distinguished Shelton, and the line of authority
leading to it, based on the fact that the defendant’s argument did “not
constitute an attack upon the validity of the plea agreement.” (French,
supra, 43 Cal.4th at p. 45.) Rather, the defendant’s appeal “ ‘assert[ed] only
that errors occurred in the [subsequent] adversary hearings conducted by the
trial court for the purpose of determining the degree of the crime and the
penalty to be imposed.’ ” (Ibid.) Like here, those proceedings were
contemplated by the plea agreement, which allowed the defendant to argue
for a lower term sentence.
French held that “[i]n contrast to a case in which the maximum term
under the plea agreement would be unlawful under section 654, the Sixth
Amendment would not render an upper term unlawful for defendant’s crimes
under all circumstances. Whether an upper term sentence was permissible
for defendant’s offenses depended upon whether aggravating factors were
established at the sentencing hearing, and not upon the facts of the offenses
themselves. Even without a jury trial on aggravating circumstances, the
upper term would have been authorized if the prosecution had established an
aggravating factor ... based upon defendant’s prior convictions or upon his
admissions. [Citation.] Defendant’s claim is that the upper term was not
authorized because the prosecution failed to establish an aggravating
circumstance at the sentencing hearing in the manner required by the Sixth
9
Amendment. Such a claim does not affect the validity of the plea agreement.”
(French, supra, 43 Cal.4th at p. 45.)
We see no difference between Hilburn’s Sixth Amendment argument
and that advanced by the defendant in French. Like French, Hilburn entered
a plea agreement with a sentencing lid. Like French, Hilburn argues that
the court violated his jury trial rights and abused the sentencing discretion
given it by the plea agreement by imposing the middle term based on
aggravating factors that were not admitted or found true by a jury beyond a
reasonable doubt. Hilburn’s challenge is to “the exercise of individualized
sentencing discretion within an agreed maximum sentence” and that
“agreement, by its nature, contemplate[d] that the court [would] choose from
among a range of permissible sentences within the maximum.” (People v.
Buttram (2003) 30 Cal.4th 773, 790–791.) Therefore, abuse of that
“discretionary sentencing authority [is] reviewable on appeal” and does “not
constitute an attack on the validity of the plea, for which a certificate is
necessary.” (Id. at p. 791.)
II
Apprendi Error
A
Penal Code Section 1170
“Effective January 1, 2022, our determinate sentencing law [(DSL)],
section 1170, was amended in several fundamental ways. (See Sen. Bill
No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No.
124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.)” (People v. Flores
(2022) 73 Cal.App.5th 1032, 1038.) Senate Bill No. 567 amended section
1170, subdivision (b), to authorize determinate sentences above the middle
term “only when there are circumstances in aggravation of the crime that
10
justify the imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) In addition, the
new law also allows the court to consider the defendant’s prior convictions as
an aggravating factor based on a certified record of conviction. (§ 1170,
subd. (b)(3).) Finally, Senate Bill No. 567’s amendments to section 1170
added language requiring aggravating circumstances to be bifurcated from
trial of the charges, and mandates that the jury “not be informed of the
bifurcated allegations until there has been a conviction of a felony offense.”
(§ 1170, subd. (b)(2).)
Meanwhile, Assembly Bill No. 124 provided the opportunity for a low-
term sentence under specified circumstances, including where a defendant
was a “youth” as defined section 1016.7, subdivision (b) at the time of the
offense and the defendant’s youth was a contributing factor to the offense,
unless the court finds that imposition of the low term would be contrary to
the interests of justice.4 (See § 1170, subd. (b)(6)(B); People v. Gerson (2022)
80 Cal.App.5th 1067, 1095.) Section 1016.7, subdivision (b) defines “youth”
as “any person under 26 years of age on the date the offense was committed.”
4 Three bills amending section 1170—Senate Bill No. 567, Assembly Bill
No. 124, and Assembly Bill No. 1540—were enacted and signed into law on
the same date. (Stats. 2021, ch. 731, § 1.3 (Sen. Bill No. 567), eff. Jan. 1,
2022; Stats. 2021, ch. 695, § 5 (Assem. Bill No. 124), eff. Jan. 1, 2022;
Stats. 2021, ch. 719, § 2 (Assem. Bill No. 1540), eff. Jan. 1, 2022.) Senate Bill
No. 567 incorporated the amendments proposed by Assembly Bill Nos. 124
and 1540, and provided that if all three bills amending section 1170 were
enacted and became effective on or before January 1, 2022, and Senate Bill
No. 567 were enacted last, then section 1.3 of Senate Bill No. 567 would
become operative. (Stats. 2021, ch. 731, § 3.)
11
At the time of his commission of the offenses in this case, Hilburn was five
weeks shy of his twenty-fifth birthday.
Under section 1170, subdivision (b)(6), a trial court “shall order
imposition of the lower term” when the person’s youth “was a contributing
factor in the commission of the offense,” “unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice.”
(§ 1170, subd. (b)(6).)5 Section 1170 also requires a court to state on the
record the reasons for its sentencing choice at the time of sentencing. (Id.,
subd. (c).)
The California Rules of Court, which provide guidance to courts in
selecting between the terms, were also amended to conform to the new
legislation. Rule 4.420 now provides, in relevant part:
“(a) When a judgment of imprisonment is imposed, or the
execution of a judgment of imprisonment is ordered suspended,
the sentencing judge must, in their sound discretion, order
imposition of a sentence not to exceed the middle term, except as
otherwise provided in paragraph (b).
“(b) The court may only choose an upper term when (1) there are
circumstances in aggravation of the crime that justify the
5 Section 1170, subdivision (b)(6) provides in full: “Notwithstanding
paragraph (1), and unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition
of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to, abuse, neglect,
exploitation, or sexual violence. [¶] (B) The person is a youth, or was a youth
as defined under subdivision (b) of Section 1016.7 at the time of the
commission of the offense. [¶] (C) Prior to the instant offense, or at the time
of the commission of the offense, the person is or was a victim of intimate
partner violence or human trafficking.”
12
imposition of an upper term, and (2) the facts underlying those
circumstances have been (i) stipulated to by the defendant,
(ii) found true beyond a reasonable doubt at trial by a jury, or
(iii) found true beyond a reasonable doubt by the judge in a court
trial.
“(c) Notwithstanding paragraphs (a) and (b), the court may
consider the fact of the defendant’s prior convictions based on a
certified record of conviction without it having been stipulated to
by the defendant or found true beyond a reasonable doubt at trial
by a jury or the judge in a court trial. This exception does not
apply to the use of the record of a prior conviction in selecting the
upper term of an enhancement.
“(d) In selecting between the middle and lower terms of
imprisonment, the sentencing judge may consider circumstances
in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The court may consider
factors in aggravation and mitigation, whether or not the factors
have been stipulated to by the defendant or found true beyond a
reasonable doubt at trial by a jury or the judge in a court trial.
The relevant circumstances may be obtained from the case
record, the probation officer’s report, other reports and
statements properly received, statements in aggravation or
mitigation, and any evidence introduced at the sentencing
hearing.
“(e) Notwithstanding section 1170(b)(1), and unless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances such that imposition of the lower term would be
contrary to the interests of justice, the court must order
imposition of the lower term if any of the following was a
contributing factor in the commission of the offense:
“(1) The defendant has experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse, neglect,
exploitation, or sexual violence;
13
“(2) The defendant is a youth, or was a youth as defined
under section 1016.7(b) at the time of the commission of the
offense; or
“(3) Prior to the instant offense, or at the time of the
commission of the offense, the defendant is or was a victim of
intimate partner violence or human trafficking.
“(f) Paragraph (e) does not preclude the court from imposing the
lower term even if there is no evidence of the circumstances listed
in paragraph (e).” (Cal. Rules of Court, rule 4.420, Revised
January 1, 2022, re-lettered and amended effective March 14,
2022.)
B
The Imposition of the Middle Term Under Section 1170, Subdivision (b)(6)
Does Not Implicate Apprendi
Hilburn asserts that under Apprendi v. New Jersey (2000) 530 U.S. 466(Apprendi) and its progeny, under new subdivision (b)(6) of section 1170, only
a stipulation or a jury finding of aggravating factors is sufficient to support
imposition of the middle term because he was a youthful offender at the time
he committed the crimes. The Attorney General responds that Hilburn has
misinterpreted 1170, subdivision (b)(6), and asserts that Apprendi does not
apply because the new provision “creates a post-verdict state law sentencing
procedure that cannot increase punishment over and above what is
authorized by the jury verdict.”
In Apprendi, the United States Supreme Court held that “the Federal
Constitution’s jury trial guarantee proscribes a sentencing scheme that
allows a judge to impose a sentence above the statutory maximum based on a
fact, other than a prior conviction, not found by a jury or admitted by the
defendant.” (Cunningham, supra, 549 U.S. at pp. 274‒275.) The high court
later clarified in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) that
14
“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. [Citations.] In other words, the relevant
‘statutory maximum’ is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without any
additional findings.” (Blakely, at pp. 303‒304, original italics.)
Prior to Cunningham, California’s DSL assigned the trial judge with
the authority to determine facts underlying aggravating circumstances that
expose a defendant to an upper term sentence. The version of section 1170,
subdivision (b) in existence before Cunningham provided, “the court shall
order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.” (Stats. 1976, ch. 1139, § 273,
pp. 5140–5141, as amended by Stats. 1977, ch. 165 § 15, pp. 647‒649.) The
court determined circumstances in aggravation or mitigation after
consideration of the trial record; the probation officer’s report; statements in
aggravation or mitigation submitted by the parties, the victim or the victim’s
family; and any further evidence introduced at the sentencing hearing.
(Stats. 1976, ch. 1139, § 273, pp. 5140–5141; see Cunningham, supra, 549
U.S. at p. 277, citing § 1170, former subd. (b).) The California Rules of Court
also provided that “[c]ircumstances in aggravation” were to be “established by
a preponderance of the evidence.” (Cal. Rules of Court, former rule 4.420(b).)
Cunningham held that this sentencing scheme violated the Sixth
Amendment’s jury-trial guarantee as expressed in Apprendi and Blakely
because it allowed a sentencing judge to impose a term beyond the statutory
maximum based on facts neither admitted by the defendant nor proven to a
jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. 293.)
The high court explained that the DSL directed the sentencing court to start
15
with a default middle term and to move from that term when the court itself
finds facts—either related to the offense or the offender—beyond the
elements of the charged offense. (Id. at p. 279.)
Applying Apprendi and Blakely, the Cunningham court concluded that
the default middle term was the relevant statutory maximum and that the
sentencing scheme did not “withstand measurement against [the court’s]
Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at p. 293.)
Under Cunningham, California could retain the DSL without encountering a
Sixth Amendment violation by either (1) “calling upon the jury to find any
fact necessary to the imposition of an elevated sentence” or (2) allowing
judges to exercise “ ‘broad discretion … within a statutory range.’ ” (Id. at
p. 273.)
In response to Cunningham, California elected the second option
through emergency legislation, effective March 2007 (Stats. 2007, ch. 3, § 2).
The Legislature amended the DSL to eliminate the presumptive middle term,
leaving “the choice of the appropriate term” among each crime’s sentencing
triad to the “sound discretion of the court,” solving the constitutional
infirmity of the previous statutory scheme. (Stats. 2007, ch. 3, § 2.)
In 2022, the Legislature dramatically modified this regime by
approving the amendments to section 1170 discussed in the preceding
section. Under the changes effected by Senate Bill No. 567, the sentencing
court’s discretion is again restricted to the middle term unless sufficient
findings are made in accordance with Apprendi. The amended law makes
this explicit. Subdivision (b)(2) allows the high term “only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
16
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.”
As discussed, the additional changes made by Assembly Bill No. 124,
for the three specified classes of offenders whose circumstance is a
contributing factor to the offenses, create a presumption in favor of the lower
term sentence. However, even if these additional factual findings are made,
the court remains authorized to impose the middle term if the court
determines that the aggravating and mitigating factors show that imposition
of the lower term would be contrary to the interest of justice. (§ 1170,
subd. (b)(6).)
Hilburn argues that Assembly Bill No. 124 modified the “statutory
maximum” under Apprendi and Blakely to the low term for the categories of
offenders set forth in new subdivision (b)(6). Further, he asserts that because
he was under 26 years old at the time of the crimes, he fell within the bounds
of section 1170, subdivision (b)(6)(B), and the court could not sentence him to
the middle term without a stipulation or a jury finding on the aggravating
circumstances.6
The Attorney General responds that the statutory language of
section 1170, subdivision (b) shows the Legislature did not intend to remove
the court’s discretion to impose the middle term for the three “special” classes
6 At the sentencing hearing, the parties did not address whether
Hilburn’s youth contributed to the offenses. Without any discussion of the
issue, the trial court stated it agreed “under 1170[, subdivision] (b)(6) that
the Court shall order the low term, unless the Court finds that the
aggravating circumstances outweigh those mitigating circumstances such
that imposition of the lower term would be contrary to the interests of
justice.” The prosecutor did not challenge this finding. The statute is clear
that youth (or one of the other two categories in subdivision (b)(6)) must be a
contributing factor to the offense in order to qualify for a presumption low
term.
17
of offenders set forth in subdivision (b)(6). Specifically, the People argue that
the explicit statement in subdivision (b)(2) that an upper term sentence
cannot be imposed without satisfying the constitutional requirements of
Apprendi shows that if the Legislature intended to require findings for
imposition of the middle term for subdivision (b)(6) offenders, it clearly knew
how to do so. Additionally, the Attorney General contends imposition of the
middle term under subdivision (b)(6) does not run afoul of the constitution’s
jury trial guarantee because the provision “creates a potential reduced term,
as opposed to an increased term, for certain enumerated defendants based on
judicial findings of eligibility and whether imposition of a low term sentence
is in the interest of justice.”
We agree with the Attorney General’s interpretation of the new
sentencing provision. First, the language and framework of the amended law
makes clear the Legislature intended to maintain the sentencing court’s
discretion to impose the middle term even if it finds the defendant falls
within one of the three categories of section 1170, subdivision (b)(6). As the
Attorney General points out, if the Legislature wanted to limit the sentencing
court’s discretion, it knew how to do so as set forth in subdivisions (b)(1) and
(2). (See People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 929 [holding
section 1170, subdivision (b)(6) does not require aggravating circumstances to
be proven to jury beyond a reasonable doubt and declining “to import [the
subdivision (b)(1) and (2)] requirement into section 1170, subdivision (b)(6) as
a prerequisite to imposing the middle term”].)
Second, the imposition of the low term becomes presumptive only after
the sentencing court makes findings in addition to those supporting the jury’s
verdict. Under the amended statute, the low term is presumed only if the
sentencing court first finds the defendant falls into one of the three special
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categories set forth in section 1170, subdivision (b)(6) and, second, finds that
circumstance was a contributing factor in the commission of the offense.
Thus, unlike the middle term, the lower term is presumed only after the
court makes additional findings beyond those of the jury. Because those
findings occur after the defendant is convicted, and are not necessary for
imposition of the presumptive middle term, they do not create a new
statutory maximum sentence. Accordingly, the Attorney General correctly
asserts that the new law does not implicate the concerns of Apprendi, which
precludes only increased punishment based on facts not found by the jury.
(See Rita v. United States (2007) 551 U.S. 338, 352 [“The Sixth Amendment
question, the Court has said, is whether the law forbids a judge to increase a
defendant’s sentence unless the judge finds facts that the jury did not find
(and the offender did not concede).]”.) Stated another way, because the low
term becomes presumptive only after additional factfinding by the judge, it
does not constitute the “statutory maximum” for purposes of Apprendi.
To summarize, under section 1170, subdivision (b)(6), the sentencing
court is tasked with assessing mitigating and aggravating factors to impose
the middle term only if it first determines that the defendant qualifies for
treatment under the provision—because he or she has either experienced
certain trauma, is a youthful offender, or is the victim of intimate partner
violence, and those circumstances contributed to the offense. We agree with
the Attorney General that the Sixth Amendment does not constrain this
statutory, post-verdict factfinding by the sentencing court. Accordingly, the
trial court’s determination that imposition of the lower term was contrary to
the interests of justice did not run afoul of Hilburn’s jury trial rights.
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III
The Trial Court Did Not Abuse Its Discretion
Hilburn’s final argument is that the trial court’s imposition of the
middle term was an abuse of discretion because the aggravating
circumstances relied on by the court to impose the middle term “did not so
outweigh the mitigating circumstances that the interests of justices required
an elevated term.” We disagree.
After a sufficient factual basis to support the circumstances in
aggravation or mitigation is found, the court enjoys broad discretion in its
sentencing determination. The trial court’s sentencing decision is “review[ed]
for abuse of discretion.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
That “discretion must be exercised in a manner that is not arbitrary and
capricious, that is consistent with the letter and spirit of the law, and that is
based upon an ‘individualized consideration of the offense, the offender, and
the public interest.’ ” (Ibid.) The court abuses “its discretion ... if it relies
upon circumstances that are not relevant to the decision or that otherwise
constitute an improper basis for decision.” (Ibid.)
Hilburn has not shown the court abused its discretion. Rather, the
record establishes the court carefully considered the relevant aggravating
and mitigating circumstances. The court recognized that Hilburn’s youth
could qualify him for the recently amended law’s presumptive low term, and
found Hilburn’s youth was the primary mitigating factor in the case. The
court then appropriately determined that Hilburn’s criminal history and the
circumstances of the crime itself, particularly Hilburn’s use of a firearm and
the fact that the robbery occurred inside the victim’s home, in the middle of
the night, while the victim and the home’s other occupants slept, warranted
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the middle term. This decision was an appropriate exercise of discretion by
the trial court.
DISPOSITION
The judgment of conviction is affirmed.
McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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