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June 20, 2005

California Supreme Court dodges Blakely

The Supreme Court of California just released its decision in People v. Black, the big state Blakely case argued back in April.  Here's the opening paragraph from Black:

This case addresses the effect of the decisions of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely) and United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738] (Booker) on California's determinate sentencing law. It presents the specific questions whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence. For the reasons discussed below, we conclude that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial.

This is big and very interesting news explained in a 45 pages of opinions that can be accessed here.  Commentary on this decision will follow late today once I have a chance to take it all in.

June 20, 2005 at 01:08 PM | Permalink


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I have skimmmed the California Supreme Court's Opinion in Black. It really contains virtually no reasoning. It seems to rely primarily on a "we have always done it this way" approach. I might also call it a head in the sand approach, since the Court seems to be more interested in ignoring Blakely than in actually confronting it. Kennard's concurrence is strong and well reasoned. I hope the United States Supreme Court will take some interest.

Posted by: Chris Redburn | Jun 20, 2005 2:49:01 PM

Does anyone doubt that, as soon as the Ninth Circuit gets this issue in a habeas case, it will go the other way?

Then the Supreme Court will REALLY take some interest.

Posted by: Anonymous | Jun 20, 2005 4:48:48 PM

The decision is surprising. There is no significant difference between California's upper term and Washington's extraordinary term. The two systems are almost identical. For the California Supreme Court to hold that Blakely v. Washington does not apply to California's upper term is indeed a feat of judicial craftsmanship.

Mark Greenberg (defense attorney)

Posted by: Mark Greenberg | Jun 20, 2005 6:25:13 PM

In one of its recent decisions concerning Batson challenges --- Johnson v. California, No. 04-6964 --- the Supreme Court of the United States agreed with the dissenting opinion of Justice Kennard in overturning the California Supreme Court's decision in People v. Johnson, 30 Cal.4th 1302, 71 P.3d 270, 1 Cal.Rptr.3d 1 (2003). Just as Justice Kennard was faithful to Batson in her dissent in Johnson, Justice Kennard is faithful to Apprendi and Blakely in her dissent in People v. Black. Indeed, as she observes, the majority in Black "cannot point to any significant differences between California's sentencing law and the Washington sentencing scheme that the high court invalidated in Blakely."

Posted by: Victor Haltom | Jun 20, 2005 7:45:12 PM

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