Still more from California

As I highlighted before here, from California it is one Eureka moment after another on Blakely.

Already this weak there have been two more interesting and important cases from the biggest state (which has this interesting state seal).

In the unpublished People v. Herod, 2004 WL 2163532 (Cal. App. 2 Dist. Sept. 28, 2004), the court finds that Blakely applies to California determinate sentencing law, and then concludes that "facts relied on by the court to impose the upper term, while proper bases for an upper term, were not found true by the jury, nor were they admitted by appellant. Under Blakely, use of these facts to impose the upper term does not comply with the Sixth Amendment, resulting in an invalid sentence." But thereafter the court goes on to explain:

We reach a different conclusion as to the imposition of consecutive rather than concurrent sentences for the robbery counts, which involved separate crimes on separate occasions against separate victims.... The decision to impose a consecutive rather than concurrent sentence involves the cumulation of penalties for multiple crimes. The trial court is not required to make factual findings to support a decision to impose consecutive terms.

In the published People v. Butler, 2004 WL 2153559 (Cal. App. 1st Dist. Sept. 27, 2004), the court makes a finding of no waiver and then says the sentencing court "violated Blakely because four of the aggravating factors that it articulated ... did not relate to a prior conviction and ... were additional findings made by the court rather than by a jury." But then the court concludes that reversal was not required because appellant did not challenge the one prior-conviction-based aggravating factor and thus the same sentence was likely to be imposed. And in so doing, the Butler court also said: "We recognize that, in some cases, extrinsic facts relating to a recidivist aggravating circumstance may implicate Apprendi."

Helpfully, the fine folks at the First District Appellate Project have this terrific page which is tracking all the California happenings quite effectively.

UPDATE: Before the "ink" was even dry on this post, out comes People v. Armstrong, 2004 WL 2180926 (Cal. App. 2 Dist. Sept. 29, 2004), which concludes "Blakely requires reversal of defendants' upper term sentences and resentencing on those counts" and People v. Magdaleno, 2004 WL 2181412 (Cal. App. 2 Dist. Sept. 29, 2004), which holds that "neither Blakely nor Apprendi create the right to a jury trial on the determination as to whether to impose consecutive sentences."