July 14, 2004
Action by the Supreme Court (of California)
Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:
In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?
My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:
Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]
I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.
July 14, 2004 at 09:46 PM | Permalink
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Towne absolutely will be a good case for the California Supreme Court to determine whether a provision of California's determinate sentencing law is impacted by Blakely. Specifically, in California certain crimes are punishable by either the low, the mid, or the upper term sentence. For example, robbery in the second degree is punishable by either 2, 3, or 5 years in prison. However, pursuant to Penal Code section 1170(b)(one provision of California's DSL), the judge cannot impose the upper term sentence of 5 years unless he finds, by a preponderance, the existence of at least one aggravating factor (set for in Rules of Court promulgated by the Judicial Council -- California's version of the federal sentencing commission). The question the California Supreme Court will address in Towne is whether this type of judicial factfinding violates Blakely.
Supervising Deputy District Attorney
Riverside County, California
Posted by: Paul Vinegrad | Jul 14, 2004 11:42:56 PM
This is a very helpful comment, Paul, though I wonder about the impact of prior convictions in this context. Can the mere fact of some number or type of prior convictions serve as an aggravating factor for imposing the upper term sentence (which would still seem constitutionally permissible under Amendarez-Torres)? Can (and might) the state defend the sentence in Towne on these terms?
Posted by: Doug B. | Jul 14, 2004 11:49:32 PM
Yes, one of the aggravating factors justifying the upper term is that the defendant has suffered "numerous" convictions or his/her convictions have been of "increasing seriousness."
I have been questioning whether or not this particular aggravating factor would come within the ambit of Apprendi's exclusion: "Other than the fact of a prior conviction..."
I believe a careful prosecutor will play it safe and allege this aggravating factor in the charging document and, if necessary, prove it to jury beyond a reasonable doubt.
The real big issue in California (apparantly not within the scope of the Towne case) is whether or not the provisions of California's DSL re: consecutive vs. concurrent sentences (Penal Code sec. 669, and an implementing Rule of Court 4.425)violate Blakely. I don't believe they will, but a clever defense attorney can construct some persuasive arguments on this issue premised upon the statutory language.
Posted by: Paul Vinegrad | Jul 15, 2004 12:23:26 AM
Because of the recidivist aggravators at play, Towne is probably not the best case to fully resolve how Blakely affects determinate sentencing in California. There are other cases in the pipeline which present the same issue, but without any recidivist-based aggravators mucking things up. I would expect to see the court grant review in one of those case in the next few months.
Posted by: J. Soglin | Jul 15, 2004 9:58:25 AM
I am a student wondering if anyone has an impression as to how Blakely would affect a contested juvenile waiver hearing? It is a judicial hearing whose outcome greatly affects the amount of sentencing. Would the juvenile be entitled to a new trial?
Posted by: j combs | Jul 15, 2004 7:10:53 PM
As there's no right to a jury trial in a juvenile delinquency proceeding, I don't see any Blakely issue.
Posted by: Harriet Vane-Wimsey | Jul 16, 2004 1:22:51 PM
The way that I read Blakely is that any factor that increases the sentence should be determined by a jury. So, if a juvenile waiver hearing determines that the child goes from juvenile court to adult court, the sentence on a murder charge goes from detention to life in prison. In Alaska the waiver depends upon the juveniles amenability to treatment. Could you argue that this determination should be made by a jury?
Posted by: J Combs | Jul 16, 2004 4:01:44 PM
i'm looking for any recent higher court ruling that involves the sentencing of parole in regards to if a defendant was told at time of sentencing or taking of plea that they would also have to be on parole
Posted by: iamatg2 | Nov 15, 2004 7:00:12 PM
I too am interested in any information regarding whether of not a judge making the decision to waive a juvenile into adult court can be successfully addressed as an Apprendi or Blakely issue.
Anyone have knowledge to share in this area.
Posted by: Karen Cain | Jun 11, 2005 12:59:32 AM
I am a currently a student at CA. State University Fresno and am doing some research
on Califonia recommended sentencing for child molestors but have been unable to pin point
an accurate number and was wondering if you could point me in the right direction. thank you
Posted by: Jessica | Mar 23, 2006 1:52:56 AM
Is the cunningham vs. california case affect defendants who took plea bargains and sentenced by a judge the upper term? Someone please help me answer this question.
Posted by: sarah a. | Feb 2, 2007 3:10:19 PM
I am a mother of a son who was given 4 years added to his sentence because of a prison prior from the judge, not the jury. Do you have any Info on what needs to be filed and what steps to take?
Posted by: Jennifer | Apr 30, 2007 7:30:48 PM
My son was convicted by a judge. He did not accept a plea bargin but had a jury trial. Can you provide me with some guidance as to how I can help him based on the "Cunningham vs. California" ruling.
Posted by: Pat Luis | Apr 8, 2008 8:11:18 PM
Posted by: laptop battery | Oct 14, 2008 5:21:32 AM
I am a student wondering if anyone has an impression as to how Blakely would affect a contested juvenile waiver hearing?
Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:17:12 AM