When Must a Complaint Allege Aggravating Factors?

In October of 2021, a jury in Sacramento County Superior Court found Mr. Jony Pantaleon guilty of committing 15 counts of lewd and lascivious acts on a child under the age of 14 by force, violence, duress, menace or fear of immediate and unlawful bodily injury (Penal Code § 288(b)(1)). 

The jury also found him guilty of having committed four counts of sexual intercourse with a child under the age of ten (Penal Code § 288.7(a)); one count of oral copulation by force, violence, duress, menace or fear of immediate and unlawful bodily injury (Penal Code § 287(c)(2)(A)) and one count of rape (Penal Code § 261(a)(2)).

The judge sentenced him to a determinate term of 111 years in state prison plus an indeterminate term of 115 years to life.  The judge noted the probation report for defendant, which stated he was on parole or probation when the crime took place and that he had prior convictions of increasing seriousness.

On appeal to the Third Appellate District, Mr. Pantaleon argued that the trial court’s imposition of the upper term sentences was unauthorized because the People did not allege any aggravating factors related to his prior convictions as required by current law.

The Third Appellate District denied his appeal, holding that the People were not required to plead aggravating factors relating to defendant’s prior convictions.  Penal Code § 1170(b)(3); People v. Black (2007) 41 Cal. 4th 799, 818 (a prior conviction does not need to be proven to a jury).

To understand this ruling and determinate sentencing with a sentencing triad, one must understand how sentencing in California has changed over time.  In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme Court considered an earlier version of California Penal Code § 1170(b), which at that time stated, “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime” and further provided that “circumstances in aggravation or mitigation are to be determined by the court after consideration of several items.”  Cunningham, at p. 277.

The U.S. Supreme Court held that California’s determinate sentencing law violated defendant’s right to a trial by a jury because it authorized a judge to find the facts supporting an upper term sentence.  Cunningham, at 274, 293.  The Court explained that California’s law violated Apprendi v. New Jersey (2000) 530 U.S. 466’s “bright-line rule: except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt.”  Cunningham at 288-289.

California’s determinate sentencing law was subsequently amended to comply with Cunningham by allowing judges broad discretion in selecting a term within a statutory range rather than submitting aggravating factors to a jury.

At the time of Mr. Pantaleon’s sentencing in March 2022, Penal Code § 1170(b) stated, “[w]hen a judgement of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest with the sound discretion of the court.”  Under these terms, the middle term was no longer the presumptive term absent aggravating or mitigating factors found by the trial judge.

However, prior to Mr. Pantaleon’s sentencing, Senate Bill (SB) 567 became effective on January 1, 2022.  It amended Penal Code § 1170(b)(1) to provide that the court “shall impose a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).”  

Paragraph (2) provides that a court may impose a sentence exceeding the middle 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 found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” 

Senate Bill 567 did not provide a right to a jury trial with respect to an aggravating factor pertaining to prior conviction.  SB 567 specifically provided in Penal Code § 1170(b)(3) that a judge may consider defendant’s prior convictions in determining a sentence without submitting the prior conviction to a jury.” 

Turning to Mr. Pantaleon’s argument on appeal that aggravating factors must be alleged in the complaint, the Third Appellate District stated that Penal Code § 1170.1(3) does not apply to aggravating factors, but it does require that all enhancements be alleged in the accusatory pleading, i.e., an additional three-year term added to the based term for inflicting great bodily injury (Penal Code § 12022.7(a)).  An aggravating factor, however, is different than an enhancement.