Summary
Hernandez was convicted of evading an officer with reckless driving and resisting the officer's performance of duty. He was sentenced to the upper term of three years for evading an officer with reckless driving. At sentencing, the trial court imposed the upper-term sentence based on Hernandez's prior convictions, prior prison term, the fact that he was on parole at the time he committed the charged offenses, and because his past performance on probation and parole had been unsatisfactory. In its brief to the California Supreme Court, CJLF argued Hernandez's sentence was consistent with the U. S. Supreme Court's holding in Cunningham v. California. CJLF argued Hernandez's sentence did not violate the Sixth Amendment protections of Almendarez-Torres, Apprendi, and Cunningham because a prior conviction is still an aggravating factor that can be found by the trial court to impose an upper-term sentence. The California Supreme Court's decision in People v. Towne, S125677 (June 26, 2008), affirmed this reasoning. In People v. Towne, the California Supreme Court ruled the trial court may find the aggravating circumstance that a defendant served a prior prison term, was on parole, or on probation at the time of the crime. Furthermore, a trial judge may find the aggravating factor of unsatisfactory performance on parole or probation if the unsatisfactory performance is established through a record of prior convictions. However, a right to a jury trial will attach if the poor performance on probation or parole can be established only by finding facts other than prior convictions, such as failed drug tests or failure to appear for appointments. The conclusions reached by the California Supreme Court in Towne were consistent with the amicus brief submitted by CJLF. In its brief, CJLF argued that Apprendi v. New Jersey required a jury to find the defendant eligible for an upper-term sentence. However, once a jury found a single fact making the defendant eligible, past convictions and unsatisfactory performance on probation or parole could be found by a trial judge and applied at his discretion to determine whether the defendant actually received the upper-term sentence. [CJLF brief in PDF.]
