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January 24, 2007

California chaos after Cunningham?

The Supreme Court's Cunningham decision is less than 48 hours old (buzz indexed here), and I have already received e-mail suggesting the fall-out in California is chaotic from the get-go.  Helpfully, the First District Appellate Project, which has done great work tracking Blakely's impact in California as shown here, now has posted an extraordinary document here examining "Challenges to Upper Term Sentences After Cunnnigham v. California."  Here are the headings from the FDAP's important (and extended) practical examination of Cunnnigham:

I. A general triage approach to cases.

II. A general comment concerning compensation.

III. Specific suggested procedures for raising Cunningham claims depending on the current status of the case.

IV. A Note on questions of remedy.

V. A Note on questions of retroactivity.

In addition to encouraging all Californians to check out this practical analysis, I would appreciate reports in the comments about what is happening "on the ground" in the wake of Cunningham.

January 24, 2007 at 08:55 AM | Permalink


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I am a Cunningham hopefull. I have a un decided Habeas case in Federal court. It goes to District judge Percy Anderson feb 1st. I asked for a re pleader to include Cunningham. I took a plea bargin (what a bargin!) 2 3 or 4 / a joint suspended 4 year term after violation. No jury. I have no idea if Cunningham will help. I Shot a re hearing motion to Cal Sup Ct today for the heck of it citing Cunningham.

Thanks for your great web site!
(sacv 06-0834 Conrad v Aceves ;In Los Angeles)

Posted by: Ron Conrad | Jan 24, 2007 10:45:10 PM

Cunningham, Chainsaw’s or whiteout?

The Supremes in Cunningham did not merely adjust a technical or statutory plank of the California DSL laws, it said “Jury”. Like the great Red Beckman Grand Jury afficionado says “Power is based in the hands of juries, the judge is but a referee”. Our courts have been dominated by three players in the court room game. Defense Attorneys, prosecutors and judges. 97% of all California defendant’s never reach beyond this regime.

California’s Plea Bargain paradise is in trouble. Last Monday a prosecutor could waive a threat of 10 years in hotel California or offer a 3 year half time plea and taking into consideration it’s just a overworked PD between you and upper term in San Quentin....were do I sign. But if a mid term (were Cunningham says ) max. were on the table the 10 year club is gone barring true agravating circumstances any” Jury” could find, this keeps the really bad guys on notice and the not so bad guys mid term. Now, Deal or no deal takes a real meaning.

According to California jurist prudence, Juries don’t proactivly participate in “Real” decision making. Juries are supposed to sit in waiting rooms room hours only to be begrudgingly marched into the box, obstecably to hear case s only to be inspected and rejected like so much produce. Cunningham is going to put in play the jury system like never before.

I believe Justice Ginsberg in hitting the “C” note in the A,B,C (Apprendi, Blackly, Cunningham) she is sending a indelible message th prosecutors and judges that the game is over. Slow the prosecution production line down and really put defendants on trial, a real trial.

I take Cunningham to mean to California DSL is simple. “ A judge is just a referee.” its up to the jury to digest the facts and mete out the punishment within some lose guidance from the legislators. As to plea Bargains and its retroactivity, I say if it is unconstitutional today, barring any recent changes to the 6th amendment I didn’t catch, yes it is retro up to the point of a valid Claim of Relief provable and material to the Petitioner. Parolees will shave time off there parole period by the extended time served of the upper term sentencing and some prisoners will get a year or two off, some will walk. Needless to say count on a 10 to 15 thousand Cunningham style Habeas petitions made from the inside this year.

Plea’s made with a upper term threat / Joint suspended will also fall to the Cunningham axe as being a “sentencing scheme made by the court” now Explicitly barred. Justice Ginsberg explicitly stated “Scheme” that would be any deviation from middle term sentencing determined by the court by ANY process not involving the facts found by a jury..period.

Folks, Cunningham’s not a chainsaw, it’s a full regime change.

Ron C.
In the California Supreme Court on Habeas w/ a Cunningham Defense.

Posted by: Ron Conrad | Jan 25, 2007 2:33:53 PM

I took a plea bargain and was sentence 12.9.05 served 20 1/2 months VSPW for Misappropriation of Public funds. At my sentencing which my attorney whom I paid 25k to was not present they gave me a court order of 700K(plus) monies. Now I am being sued and a judgement place on me for 484K I am on parole and cannot be let off till I pay towards this court order. My question is who do I pay and how do I fight my plea, since I was never given the paperwork from my attorney. I am at a loss and do not know where to turn, they have put a lein on my real property and I have no idea what that consists of. ANy answers or suggestions are welcomed.

Posted by: Barbara Price | Jun 3, 2007 3:43:41 PM

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