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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Robert THORNTON, Defendant and Appellant.

No. CR. C000995.

Decided: June 18, 1987

John W. Ewing & Associates, Inc., John W. Ewing, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen. and W. Scott Thorpe, Supervising Deputy Atty. Gen., for plaintiff and respondent.

A jury acquitted defendant of attempted murder (count I) (Pen.Code, §§ 664; 187, subd. (a))1 and assault with a deadly weapon (counts II and III) (§ 245, subd. (a)) but found him guilty of violating section 12021 (ex-felon in possession of a firearm) (count IV). The trial court sentenced defendant to the upper term of three years.

Defendant contends the trial court improperly considered the circumstances surrounding counts I–III, the charges on which defendant was acquitted, when imposing sentence. We agree and shall remand for resentencing.


Viewed in a light most favorable to the jury's verdict, the facts reveal the following:

Defendant and his ex-wife, Elizabeth Thornton, had a bitter divorce and their relationship had not improved since separating. Several people told defendant that Elizabeth had threatened to kill him and Elizabeth admitted she had thought about taking out a contract on his life. Certain events led defendant to believe Elizabeth was trying to track him down.

On August 6, 1983, defendant visited Ed Anderson, who lived in the same trailer park as Elizabeth. Defendant noticed Elizabeth's granddaughter, Desiree, playing in the yard and looking at his car. Shortly afterward, he saw Elizabeth, her daughter Cheryl Croxton, and Desiree get into their car and drive past Anderson's trailer, looking at the trailer and defendant's car as they passed. Defendant decided to leave immediately so he would not be found.

On his way to the freeway, defendant found himself behind Elizabeth's car, and at a stop light the two cars pulled up next to each other. Defendant saw Elizabeth make an obscene gesture at him and reach toward the floor of the car. Believing Elizabeth was getting a gun, defendant reached for his own gun and began to fire at the car. He fired five shots, one of which hit Cheryl's thumb.

At trial, the prosecution argued defendant shot at Elizabeth and Cheryl out of anger and bitterness. However, the jury apparently believed defendant's claim of self-defense and acquitted defendant of attempted murder and assault with a deadly weapon. Defendant was convicted only of being an ex-felon in possession of a firearm. (§ 12021.)

Defendant filed a statement in mitigation and, at the sentencing hearing, moved to strike portions of the probation report describing the circumstances surrounding the shooting. Defendant argued the court should not consider this evidence because he had been acquitted of counts I–III, and that the only description of the offense should be that he was in possession of a firearm.

The trial court denied the motion and proceeded to deny probation due to defendant's criminal history and the seriousness of the present offense. As factors in mitigation, the court noted defendant's “recent criminal record has been relatively clean,” and that the victims were partially responsible. The court went on to say, “[H]owever, I am satisfied that in this particular incident Mr. Thornton was the aggressor. He initiated the violence. He sought out the victims.

“I reject his assertion that it was self-defense.

“I disagree with the jury's verdicts. I'm well satisfied that the crimes charged in Counts One, Two, and Three were proved and that they—since they constitute the circumstances immediately surrounding the commission of the offense in Count Four, I am satisfied that legally I may consider those facts.

“I looked at some of the cases regarding what can be considered at sentencing and due process at sentencing, the Defendant's due process rights at sentencing. It's clear that the Court may not consider unreliable information.

“I'm satisfied having heard the trial and the evidence at trial that the evidence establishing Mr. Thornton's commission of the crimes charged in Counts One, Two, and Three is reliable and compelling.

“I think I made this clear from my previous statement, but in case I did not, it seems to be that Mr. Thornton's commission of the crimes charged in Counts One, Two, and Three are aggravating factors which substantially outweigh the facts in mitigation and which justify imposition of the aggravated sentence.”

The court imposed the aggravated term of three years.


The sole issue on appeal is whether the court, in denying probation and sentencing defendant to the upper term, erred in substituting its finding of guilt for that of the jury's acquittal as to counts I, II, and III.

In framing the issue, it is important to note an important albeit subtle distinction. This court is not faced with the task of determining the propriety of a sentencing court taking into account facts surrounding an offense of which the defendant was acquitted. (U.S. v. Sweig (2nd Cir.1972) 454 F.2d 181.) In Sweig the court stated: “[J]ust as the sentencing judge may rely upon information as to crimes with which the defendant has been charged but not tried (citation), so here the judge could properly refer to the evidence introduced with respect to crimes of which defendant was acquitted. Acquittal does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendant. For all that appears in the record of the present case, the jury may have believed all such evidence to be true, but have found some essential element of the charge was not proved. In fact the kind of evidence here objected to may often be more reliable than the hearsay evidence to which the sentencing judge is clearly permitted to turn, since unlike hearsay, the evidence involved here was given under oath and was subject to cross-examination and the judge had the opportunity for personal observation of the witnesses.” (Id., 454 F.2d at p. 184.)

The question of whether a sentencing court can consider charges other than those for which a defendant has been convicted has been addressed in some California cases. In People v. Fulton (1979) 92 Cal.App.3d 972, 155 Cal.Rptr. 327, the court held a sentencing court may consider charges on which the jury was unable to reach a verdict. The court stated, “[T]he trial court is entitled to look at the whole record in the case. If the court determines that matters in aggravation did occur, it need not have a jury finding on that matter to support its order.” (Id. p. 976, 155 Cal.Rptr. 327; accord People v. Bermudez (1984) 157 Cal.App.3d 619, 626, 203 Cal.Rptr. 728.) The court expressly reserved the question of whether a charge for which a defendant had been acquitted could also be considered at sentencing. (People v. Fulton, supra, 92 Cal.App.3d at p. 976, fn. 1, 155 Cal.Rptr. 327.)

That issue was squarely presented in People v. Takencareof (1981) 119 Cal.App.3d 492, 174 Cal.Rptr. 112. Defendant was acquitted of a charge of arson but the sentencing court denied probation because of the effects of that crime. (P. 497, 174 Cal.Rptr. 112.) The Fifth District Court of Appeal concluded the trial court had considered these factors because it believed a preponderance of the evidence standard was to be utilized in sentencing rather than the beyond a reasonable doubt standard required for conviction. (Id.)

The Takencareof court noted that California Rules of Court, rule 439(b) provides for a preponderance of evidence standard in determining whether aggravating or mitigating factors have been established that would affect the term of imprisonment. (Pp. 497–498, 174 Cal.Rptr. 112) However, the court concluded, “We believe that in those cases where the defendant has not previously been restrained of his freedom by state action, and the trier of fact has found him not guilty of a count in a multiple count prosecution, the same standard of proof of beyond a reasonable doubt should apply to both conviction and sentencing.

“It would be anomalous to hold that if the jury finds the defendant not guilty of a count utilizing the constitutionally exacting standard of proof beyond a reasonable doubt, he should face the same alleged crime at sentencing under a preponderance of evidence standard.

“We are unprepared to hold that two standards operate simultaneously in a case where a defendant is acquitted. Such a holding would be ludicrous. A defendant who won a victory at the hands of the jury could nevertheless be subjected to a more harsh sentence if he was contemporaneously found guilty of another crime in the same case.” (P. 498, 174 Cal.Rptr. 112.)

Although the decision was based upon the perceived right to have the beyond-a-reasonable-doubt standard of proof applied to both the conviction and the sentencing in these circumstances, it was bottomed upon the right to have the jury determine the accused's guilt or innocence.

No doubt many a trial judge can sympathize with the sentencing court in this case faced with a jury verdict of acquittal with which he vehemently disagrees. However, an accused is entitled, under both the federal and state Constitutions, to a trial by jury. (U.S. Const ., 6th & 14th Amends.; Cal. Const., art. I, § 16; Duncan v. Lousiana (1968) 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.) “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered․ Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” (Duncan v. Louisiana, supra, 391 U.S. 145, 155–156, 88 S.Ct. 1444, 1450–1451.) Implicit in this right is the entitlement to have the jury resolve every material factual issue tendered by the charge. “[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence․” (People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913.)

The statutory scheme for the trial of criminal cases mirrors this constitutional framework. “On a trial for any other offense than libel, questions of law are to be decided by the court, questions of fact by the jury․” (§ 1126.) Paramount among the questions of fact to be resolved by the jury is the ultimate determination of the guilt or innocence of the accused. That ultimate determination by the jury is made by a general verdict. (§ 1150.) “A general verdict upon a plea of not guilty is either ‘guilty’ or ‘not guilty,’ which imports a conviction or acquittal of the offense charged in the accusatory pleading.” (§ 1151.) Thus, the guilt or innocence of the accused, both as a matter of constitutional mandate and statutory directive, is a question solely allocated to the province of the jury. No doubt an “acquittal is merely an adjudication that the proof at the trial was not sufficient to overcome all reasonable doubt of the guilt of the accused.” (People v. Griffin (1963) 60 Cal.2d 182, 191, 32 Cal.Rptr. 24, 383 P.2d 432.) But for all that, acquittal does conclusively establish defendant's legal innocence of the charge. A verdict of acquittal by the jury may not be appealed and terminates the prosecution. (United States v. Scott (1978) 437 U.S. 82, 91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65.) The court, as well as the People, are bound by that determination of innocence.

Therefore, although sentencing a convicted defendant is exclusively a judicial function for the judge (In re Lewallen (1979) 23 Cal.3d 274, 281, 152 Cal.Rptr. 528, 590 P.2d 383), the determination of defendant's guilt or innocence is not. By redetermining defendant's guilt of attempted murder and assault with a deadly weapon, the lower court usurped the function of the jury and deprived defendant of the right to have the jury conclusively resolve his guilt or innocence. That deprivation constitutes an unconstitutional denial of the right to a jury trial.

The matter is remanded to the trial court for resentencing in accordance with the views expressed herein. In all other respects the judgment is affirmed.



1.  All references to sections of an unspecified code are to the Penal Code.

LYTLE, Associate Justice.** FN** Assigned by the Chief Justice.

REGAN, Acting P.J., and SPARKS, J., concur.

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