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August 13, 2005

Cert petition in a California Blakely case

Literally minutes after I posted the Gomez cert. petition from Tennessee, I got word from Jonathan Soglin at the First District Appellate Project of a similar cert petition filed on August 9 coming from California in the case of Abeyta v. California.  You can view an electronic version of this petition at this link on the FDAP's Blakely Resources web page.   According to Jonathan, this is likely the first cert petition following the California Supreme Court's suspect Black decision which challenges California's Determinate Sentencing Law.

The petition in Abeyta poses this question: "Whether, after this Court's decision Booker v. United States, 125 S.Ct. 738 (2005), the bright-line rule enunciated in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), continues to establish a right to a jury trial and proof beyond a reasonable doubt in a state sentencing scheme identical in all relevant respects to the Washington scheme at issue in Blakely."  Here are additional selections from the introduction to the argument:

Review is necessary so that this Court can reaffirm what it held in Blakely. In Blakely, this Court explicitly applied a "bright-line rule" to answer the question whether there is a right to a jury trial on facts necessary to impose a sentence higher than the statutory maximum....  United States v. Booker, 125 S.Ct. 738 (2005), implemented the Blakely holding, yet some courts — the California and Tennessee high courts in particular — perceived a blurring of the bright line in Booker. This perception emboldened them to conclude that any judicial discretion may take a sentencing scheme outside of the ambit of Blakely. Other courts have applied the bright-line rule, including the New Jersey Supreme Court, which has recently expressly rejected the California Supreme Court's interpretation of Blakely and Booker as directly contrary to this Court's precedents. State v. Natale, 2005 WL 1802084, slip op. at 26-27 (N.J. Aug. 2, 2005).

Review is, therefore, also appropriate because California's decision in Black is wrong.  In fact, the approach taken by the California Supreme Court was one advocated by the State of Washington in Blakely and rejected by this Court.  California's sentencing scheme unconstitutionally permits judicial fact-finding — upon proof by a preponderance of the evidence — of facts necessary to impose the aggravated (upper) term sentence.  California's scheme is so identical to the scheme at issue in Blakely, and thus falls so clearly within the bright-line rule of Apprendi, that full briefing on the merits may not be required for this Court to review the Black decision.

Finally, the issue is of great significance for an enormous number of cases. The constitutionality of the core of California's determinate sentencing scheme is at issue.  While some California defendants convicted of third strikes, murder, or some serious sex offenses receive presumptive indeterminate terms, the vast majority of felony defendants are sentenced under the determinate sentencing law at issue in Black and in this case. 

This case provides an excellent opportunity for resolving the question presented.  This case, unlike Black itself, involves only judicially-found aggravating factors related to the commission of the current offense, i.e., particular cruelty or callousness, particular vulnerability on the part of the victim (a particularly young age at the onset of the offense), sophistication and extraordinary manipulation by petitioner, and inducement of another to assist in the offense. App. C 1373-1374. This case is thus unencumbered by the complexity of recidivist-related aggravating factors possibly covered by the exception to the right to a jury trial identified in Almendarez-Torres v. United States, 523 U.S. 224 (1998).  This case, also unlike Black, does not involve an aggravating factor that a jury found true in returning a probation ineligibility finding.

August 13, 2005 at 02:55 PM | Permalink


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Well there you have it: the United States Supreme Court will either be dancing the Tennessee Waltz or doing some California Dream’n.

Posted by: David Raybin | Aug 13, 2005 7:23:51 PM

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