Coping with Cunningham

A helpful reader has sent me a recent California Court of Appeal case which, in order to help cope with the Cunningham fallout, holds that California judges may constitutionally find facts to select between concurrent and consecutive sentences.  Here is the great start of People v. Hernandez, No. C053061 (Cal. Ct. App. Feb 26, 2007) (available for download below):

The sky is not completely falling in California after Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, __ L.Ed.2d __] (hereafter Cunningham) changed life as we knew it under the determinate sentencing law (DSL).  Cunningham did not address consecutive sentences under the DSL, which, as we will explain, can be imposed based on facts found by the trial court, without violating the Sixth Amendment to the United States Constitution.

Download hernandez_from_ca.pdf