What is Oregon v. Ice for Consecutive Term Sentences?

In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that under the Sixth Amendment to the U.S. Constitution that “[o]ther 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 490.

However, in Oregon v. Ice (2008) 555 U.S. 160, the U.S. Supreme Court held that the Apprendi rule does not apply to facts deemed necessary to the imposition of consecutive as opposed to concurrent sentences, “a sentencing function in which the jury traditionally played no part.”  Id., at 163.

In sex crimes, Penal Code § 667.6(d) requires that a sentencing court to impose “full, separate and consecutive term[s]” for certain sex crimes if it finds that the offenses were committed “on separate occasions.”

Defendant Edgar Sandoval Catarino was charged in Santa Clara County Superior Court with eight counts of forcible lewd acts on a child under the age of fourteen.  The victim was his cousin, then age nine at the time.  The complaint alleged that each event took place over a period from June 2015 to March 2016..

Mr. Catarino was convicted of six of the eight counts and was convicted of the lesser included offense of attempted forcible lewd acts on the seventh count, and acquitted of the final count.

The verdict included the same range of dates on each count as did the complaint and further did not specify when the crimes occurred.

At sentencing, the judge found that Mr. Catarino’s seven counts of conviction occurred on seven separate occasions and sentenced him to full, consecutive terms for each under Penal Code § 667.6(d).  It imposed the middle term of eight years on the first count and the lower term of five years on counts two through six.  On count seven, the attempt count, it imposed a term of two and a half years (half of five years).  The total sentence was 37 and a half years.

Mr. Catarino appealed the sentence to the local appellate court, which affirmed the trial court.  On this appeal, Mr. Catarino argued that the sentence was improper because the jury did not find that the offenses took place on separate occasions and by the judge deciding this on its own, he was deprived of his Sixth Amendment right to a jury trial on the issue of the events taking place on separate occasions under Apprendi, supra.

The appellate court, citing to Oregon v. Ice, supra, held that the rule of Apprendi did not apply to the court’s determination of whether the court should apply consecutive sentences for convictions of multiple criminal offenses.

Mr. Catarino then appealed the sentence to the California Supreme Court, which acknowledged from the outset that there was a split of opinions at the appellate court level to whether Penal Code § 667.6(d) complies with the Sixth Amendment.  On one hand, in the First Appellate District, in People v. Wandrey (2022) 80 Cal. App. 962, 978-980, the appellate court there stated that § 667.6(d) complies with the Sixth Amendment.   On the other hand, in People v. Johnson (2023) 88 Cal. App. 5th 487, 502-505, the First Appellate District also held that § 667.6(d) violates the Sixth Amendment.

The California Supreme Court found that Penal Code § 667.6(d) does not violate the Sixth Amendment because the judge is not substituting its finding of facts for the jury on the issue and solely relates to the judge’s discretion of whether the sentences are to be served concurrently or consecutively. 

The California Supreme Court then affirmed the trial court, which found that the trial court’s sentence of consecutive terms was proper and found that 667.6(d) fell within the rationale of Oregon v. Ice, supra.

In closing, we understand that Mr. Catarino was desperate and trying to argue anything he could to reduce his sentence, which for him most likely was a sentence of life in prison.  However, the reader should realize and appreciate that in trial, the evidence of each separate forcible lewd act was most likely distinct and distinguishable from each of the other forcible lewd acts, so it is not a stretch at all for a judge to find that the acts took place on separate occasions and therefore consecutive sentences were proper.

For more information about consecutive term sentences, please click on the following articles: