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ARTICLES DCA ORDERS PENDING ISSUES POST-BLAKELY DECISIONS BRIEFING SAMPLES

 

Compendium of Milestone Post-Blakely Decisions

  • People v. Nguyen (2009) 46 Cal.4th 1007

    Held: The absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi v. New Jersey (2000) 530 U.S. 466, preclude the use of a prior juvenile adjudication to enhance the maximum sentence for a subsequent adult felony offense.

  • In re Gomez (2009) 45 Cal.4th 650

    Held: Cunningham v. California (2007) 549 U.S. 270 applies retroactively to any case in which the judgment was not final at the time the decision in Blakely was issued. Those who wish to raise a challenge under Blakely to the imposition of an upper-term sentence may do so by filing a petition for writ of habeas corpus in the trial court.

  • Oregon v. Ice (2009) __ U.S. __ [129 S.Ct. 711; 172 L.Ed.2d 517]

    Held: There is no Sixth Amendment right to a jury trial for determination of facts permitting imposition of consecutive sentences for multiple offenses. Declining to extend Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296, to state consecutive sentencing schemes, the Supreme Court upheld Oregon’s statute that assigns to judges, rather than juries, the finding of facts necessary to imposition of consecutive sentences for discrete offenses, as opposed to concurrent sentences.

  • People v. Towne (2008) 44 Cal.4th 63

    Held: Service of a prior prison term or commission of an offense while on probation or parole both fall within the Almendarez-Torres "fact of a prior conviction" exception, and so there is no Sixth Amendment right to a jury trial on these aggravating factors. Whether a finding of unsatisfactory performance on probation or parole implicates the right to a jury trial depends on the circumstances. Where the unsatisfactory performance is proved by evidence showing that, while on probation or parole the defendant was convicted of a new offense, then the aggravating circumstance falls within the Almendarez-Torres exception. But, where this factor is based upon other conduct, such as failure to report, to attend counseling, or failing drug tests, the right to a jury trial applies to these factual determinations. This includes situations where the court's findings of unsatisfactory performance are based upon conduct adjudicated at a revocation hearing because the right to a jury trial and the standard of proof beyond a reasonable doubt do not apply to these proceedings.

  • People v. French (2008) 43 Cal.4th 36

    Held: (1) A certificate of probable cause is not required to raise a claim of Cunningham error on appeal. (2) A defendant does not forfeit his Cunningham claim by failing to raise it in the trial court where an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred. (3) In pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, a defendant neither waives his right to a jury trial on aggravating circumstances nor admits facts that establish an aggravating circumstance. (4) Imposition of the upper term sentence violated defendant's Sixth Amendment right to a jury trial, and the constitutional error was not harmless beyond a reasonable doubt.

  • People v. Black (2007) 41 Cal.4th 799 ( Black II)

    Held: (1) Sentencing challenges premised on Blakely are not forfeited on appeal by counsel's failure to object at trial when a sentencing proceeding preceded Blakely. (2) Cunningham compliance requires only that one aggravating factor be found by the jury, be admitted by the defendant, or be Apprendi-exempt (i.e., a prior conviction) before an upper term can be imposed. Once such an aggravating factor is found to be present, all other facts informing the sentence may be found by the judge. (3) The Almendarez-Torres prior conviction exception includes not only the fact of a prior, but also other issues that can be determined from records of convictions. Numerosity of convictions and their increasing seriousness are in this category because one need only consider numbers, dates, offenses, and sentencing ranges. (4) Imposition of consecutive terms under Penal Code section 669 does not implicate a defendant's Sixth Amendment rights.

  • People v. Sandoval (2007) 41 Cal.4th 825

    Held: (1) Sentencing challenges premised on Blakely are not forfeited on appeal by counsel's failure to object at trial when a sentencing proceeding occurred after Black I but before Cunningham. (2) Appellant's Sixth Amendment rights were violated because none of the aggravating factors relied on by the trial court were established by the jury's verdict or fell within the Blakely exceptions. (3) Cunningham error is reviewed under Chapman's harmless error analysis, as applied in Neder, but taking into account there are some differences in application of this standard when the error is trial error and when it is Cunningham error. It cannot be assumed that the record reflects all the evidence which could have been presented. And, since aggravating factors are framed broadly, it would be hard for a reviewing court to confidently conclude that a jury would have assessed the facts the same way the trial court did. But, if a reviewing court finds, beyond a reasonable doubt, that the jurors would have found at least one single aggravating factor true beyond a reasonable doubt had it been submitted to them, Cunningham error may be found harmless. (4) Cases requiring remand shall be conducted in a manner consistent with the Legislature's amendments to the DSL.

  • Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856]

    Held: California's Determinate Sentencing Law violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments by placing sentence-elevating factfinding within the judge's province. On all material respects, California's DSL resembles the sentencing systems invalidated in Blakely and Booker. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi.

 

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