September 23, 2007
California sentencing getting the finger after Cunningham
Thanks to this post by Kent Scheidegger at Crime & Consequences, entitled "Cunningham, Chili, & Fingers," everyone can catch up with various post-Cunningham issues playing out in California court by reading about the sentencing appeal of Anna Ayala, the woman who infamously tried to defraud Wendy's by putting a human finger in her own chili. Kent points to this newspaper account of the ruling, which provides this summary of the latest legal developments:
A Las Vegas woman could get at least two years shaved off her nine-year prison sentence for planting a severed finger in a bowl of chili at a San Jose Wendy's restaurant, under a state appeals court ruling issued Friday. Anna Ayala, 41, who said on national television that she had bitten into a fingertip at the Wendy's in March 2005, and husband Jaime Placencia each received nine-year prison terms for the scam from a Santa Clara County Superior Court judge last year.
In her appeal, Ayala argued that the judge shouldn't have sentenced her to the maximum of five years in prison on a felony count of presenting a false insurance claim, one of three counts of which she was convicted. In an opinion Friday, the Sixth District Court of Appeal agreed, saying Judge Edward Davila's decision to impose five years for "aggravating circumstances" was based on his own fact-finding and not by a jury's conclusions.
As Kent rightly notes, various post-Cunningham developments in California means that Ms. Ayala should not to quickly count on receiving a lower sentencing on remand.
September 23, 2007 at 08:26 AM | Permalink
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Kent, Ayala presents an Apprendi/Blakely issue that I think has gotten very little play, which is whether or not things which might have passed constitutional muster as sentencing factors can continue to pass muster if they are used as an element of a greater substantive offense.
Anna Ayala pleaded guilty to the crime of presenting a false insurance claim, but the judge convicted her of the crime of Aggravated presentation of a false insurance claim. Or, put another way, presenting a false claim in a manner which was either highly callous or after sophisticated planning. The Court properly found a Sixth Amendment violation for the bench trial of the greater offense following the plea to the lesser offense.
Now, in my view, the question becomes whether either "a high degree of callousness" or "planning and sophistication" can serve as an element of a substantive offense or do they fail to pass vagueness muster. Do either of those two ags "fail to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited. "
Seems to me neither of those two ags are such that a judge could adequately instruct a jury as to what degree of callousness or sophistication is sufficient for criminal liability to attach.
Therefore, I believe a conviction on remand of Aggravated Presentation of a False Insurance Claim would violate the due process clause of the fourteenth amendment. And Ayala should receive 3 years.
I strongly believe that facts or circumstances which may have been appropriate to have been considered as a sentencing factor may not necessarily be appropriate for use as elements of a substantive crime. (such as the aggravator used in Mr. Ayala's case of failure to pay child support. How can failing to pay child support serve as an Apprendi fact?)
I hope you are well. I look forward to your response.
Posted by: bruce cunningham | Sep 23, 2007 4:57:12 PM
I can say that I agree that Bruce's concern MAY to come to pass in future U.S. Supreme Court jurisprudence. Essentially requiring sentencing jury trials. However, there is a very simple resolution to Ms. Ayala's case. All the trial court has to do is cite the grand theft conviction that Ms. Ayala pled to (the theft of the $11,000 down payment on a trailer home) under California Rule of Court 4.421(a)(7). Since the sentencing judge did not give her additional time for that crime (it was run concurrent) and since it is a fact admitted by the defendant beyond a reasonable doubt, it will satisfy Apprendi/Cunningham. Just as Jaime Plascencia's (Mr. Ayala) failure to pay child support can act as an Apprendi aggravator. He admitted it as a substantive charge (which satisfies Apprendi/Cunningham) charge and if he is not given extra time for it (Cal. Rule of Ct. 4.421(a)(7)) then it can be used too. FYI, he got a concurrent sentence on one of the child support charges.
I agree that the SF Chron article is far too quick to suggest that she will get two years shaved off her sentence. They obviously have not read Sandoval and even if one doesn't like the Sandoval remedy (Bookerizing the state presumption of midterm), there is also the possibility of a jury trial on aggravators. In Ms. Ayala's case there are many, many available and reasonable aggravators and only one need be found true.
As far as Bruce's comments. I am confused. You appear accept the idea that there are proper sentencing factors, then you define certain sentencing factors [see Cal. Rule of Ct. 4.421] as really elements then object to the elements as unconstitutionally vague. Then you talk about Plascencia's other criminal history and say that it shouldn't be considered because it doesn't relate to the offense that he was convicted of - which was attempted presentation of a false claim and attempted grand theft for your information. Each while damaging or destroying property in excess of $2.5 million.
Posted by: David | Sep 23, 2007 9:30:10 PM
David, thanks for the comments. I'll try to clarify my statements. First, I don't believe your statement is accuratge that Plascencia was convicted of "attempted presentation of a false claim." I believe, following Apprendi, he was convicted of the substantive crime of Aggravated Presentation of a False Claim. Since a jury did not convict him of that crime, the Sixth Amendment was violated.
As Justice Thomas said in his Apprendi concurrence, "If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact...the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime."
So, let's take Ayala's core crime of presenting a false claim. The Blakely maximum for that crime is three years. Based on judicial factfinding her exposure to punishment was increased to five years. The fact which brought about that increase in exposure was either that the crime was accompanied by "callousness" or was "planned and sophisticated" . One of those two facts is therefore an element of , as Thomas says, an "aggravated crime." It is inaccurate to say that there is such a thing anymore as an "aggravated sentence." All sentences are now within the range allowed by the verdict or plea alone, never above the range.
It seems to me that California courts think that the effect of Apprendi/Blakely/Cunningham was to substitute the jury for the judge in making findings of sentencing factors resulting in increased sentences. I respectfully disagree and cite Justice Scalia's comment, in rebuttal to Justice Breyer's misguided belief that Apprendi implicates the Eighth Amendment, "today's judgment has nothing to do with jury sentencing." Ring v Arizona , 536 US 584 at 612.
So, the question is which facts , formerly known as sentence aggravators, may continue to serve as elements of a new, greater crime, or an Apprendi fact. Seems to me , only those facts which pass muster as elements of crime, one such criteria being that they pass vagueness muster. How does "the crime was "callous", or the crime was "sophisticated" pass due process muster under a vagueness challenge. Sophisticated is an elusive concept, which to me can hardly serve as an element. I've never heard of Sophisticated Armed Robbery as opposed to Rudimentary Armed Robbery.
I believe that in Cunningham, the US Supreme Court told the California legislature, "you might have thought that you were enacting a sentencing statute when you set up the three levels of punishment, but you weren't . You were enacting a hybrid statute, (see Souter's dissent in Rita) which contains a crime definition component and a sentencing component.
As Scalia said in Ring, it makes no difference what the legislature thought they were doing or what they called it ,(including Mary Jane) . Apprendi is basically a reaffirmation of Marbury v Madison, and if "the effect, not the form" of what California did was to define new crimes, then the "elements" of those crimes must be able to survive traditional constitutional scrutiny.
Bruce Cunningham (no relation)
Posted by: bruce cunningham | Sep 23, 2007 11:11:30 PM
Bruce, I have read and re-read your post and I know see why the legislature will simply allow the maximum penalty to be selected for the core crime rather than the aggravated crime. They, and by extension the public, are not interested in semantics (at least not in this case).
Posted by: David | Sep 24, 2007 12:24:10 AM
David, you're right. In today's climate the legislature is not going to be perceived as "soft on crime". North Carolina is one of the few states to comply with Blakely , rather than avoid it. Bruce
Posted by: bruce cunningham | Sep 24, 2007 8:58:49 AM