In People v. Black (June 20, 2005, S126182) 35 Cal.4th 1238 05 D.A.R. 7308, the California Supreme Court was presented with the question: What was the impact of the United State Supreme Court's decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 160 L. Ed. 2d 621 on California's determinate sentencing scheme? In particular, the high court was presented with the question of whether a court's decision to impose an upper term or consecutive sentence based upon aggravating factors not found by a jury or admitted by a defendant violated a defendant's right to a jury trial. The majority held that neither sentencing decision implicated the Sixth Amendment. (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7312, 7315.) In rejecting the defendant's argument that selecting an upper term based upon aggravating factors not found by a jury or admitted by the defendant violated the Sixth Amendment, the high court stated: "In operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the 'statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker." (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7312.) The Black majority (Justice Kennard authored a dissenting opinion) distinguished the Washington sentencing scheme that the United State Supreme Court found constitutionally infirm in Blakely from California's sentencing scheme, based upon "the level of discretion afforded to the judge in imposing the upper term rather than the middle term, based on all the circumstances of the case . . . ." (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7313.) As the court put it, "Apprendi, Blakely and Booker all make clear that judicial factfinding is acceptable in the context of a discretionary sentencing decision." (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7314.) The court also cited the Booker decision's conclusion that the federal sentencing scheme would be constitutionally permissible under Apprendi and Blakely if the federal guidelines to be considered in imposing a sentence were treated as advisory only, and concluded that the "level of discretion available to a California judge in selecting which of the three available terms to impose appears comparable to the level of discretion that the high court has chosen to permit federal judges in post-Booker sentencing." (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7314.) The Black court also concluded, based upon the same reasoning that led it to conclude that imposition of an upper term sentence based upon aggravating factors not found by a jury was permissible under California's determinate sentencing scheme, that "a jury trial is not required on the aggravating factors that justify imposition of a consecutive sentence." (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7315.) The court also found that the decision to impose a consecutive sentence did not violate Apprendi, Blakely and Booker because "permitting a judge to make any factual findings related to the choice between concurrent or consecutive sentences does not create an opportunity for legislatures to eliminate the right to a jury trial on elements of the offenses." (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7315.) The court also noted that numerous California cases have held that Apprendi does not apply to the decision to impose a consecutive sentence, and that nothing in Blakely or Booker undermined the conclusions reached in those cases. (Black, supra, 35 Cal.4th 1238 05 D.A.R. 7308, 7315.)