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September 25, 2004

More California aftershocks

I noted here that every time I log on there is another batch of noteworthy decisions from the California intermediate appellate courts. Proving my point, I return from my Toledo trip to find People v. Mallory, 2004 WL 2110084 (Cal. App. 2 Dist. Sept. 23, 2004), and People v. Barnes, 2004 WL 2137361 (Cal. App. 6 Dist. Sept. 24, 2004).

Mallory, which is "nonpublished," reaches this brief but consequential conclusion: "pursuant to Blakely, consideration of the fact that the victim suffered great bodily injury and the fact that appellant's prior convictions were of increasing seriousness to enhance the sentence violates appellant's Sixth Amendment rights, and as a result the sentence is invalid."

In contrast, Barnes is a (partially) published ruling which provides an extended examination of Apprendi and Blakely and waiver issues. Barnes is also especially noteworthy for the clever (and I think proper) way it reaches its conclusion "that defendant's sentence complied with Blakely as it was within the statutory maximum authorized by the jury's verdict and facts admitted by defendant." Though cross-case comparisons are not easy, the final analysis in Barnes seems similar to the analysis employed by US District Judge Connor in US v. Johns (discussed here).

September 25, 2004 at 09:53 AM | Permalink


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I agree that Barnes is noteworthy for its waiver analysis that may end up being persuasive in other states: defendants didn't have to assert objections that would have been futile under existing precedent. The Barnes court was also clever, as Professor Berman put it, for side-stepping Almendarez-Torres by relying on Barnes's admissions instead of the prior-conviction exception.

More troubling to me, however, under the admission approach, are the circumstances under which the admissions may have been made. There was certainly no explicit waiver of a known right by Barnes for the same reason he did not have to object to the bases for the enhancements to preserve Blakely issues for appeal: he did not know about Blakely. For the same reason, any rights advisement by the trial court in this case before obtaining the admissions was necessarily defective.

There is also the issue of the probable lack of notice to Barnes in the charging document. If the charge was by grand jury indictment, the indictment was very likely defective at least to the extent that it did not charge the prior convictions--which under the admissions approach are the functional equivalent of elements. And really there is the same problem if the charge was by information. That is, on one view at least, admissions or no, Barnes was convicted for a crime for which he was never charged.

Let me the contrast the contrasting approaches as clearly as possible: Prior convictions are, for now at least simply not part of any Apprendi-Ring-Blakely calculus. Admissions to the functional equivalent of elements, on the other hand, amount to proxies for jury findings under Blakely and therefore are, I think, anyway, subject to all the limitations in the Fourth, Fifth, Sixth, and Fourteenth Amendments regarding notice, how the admissions are obtained, and Johnson v. Zerbst waiver of those constitutional limitations.

So clever as the Barnes court may have been, I'm not sure that it would not have been cleverer to go the Almendarez-Torres route with the court taking its chances on Justice Thomas's vote.

Posted by: Michael Ausbrook | Sep 25, 2004 4:59:51 PM

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