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July 19, 2007

Claearing up Cunningham consequences in California

The California Supreme Court today has handed down two opinions to address an array of state sentencing issues following in the wake of the Supreme Court's Cunningham decision applying Blakely to California's sentencing scheme.  The rulings come in People v. Black, No. S126182A (Cal. July 19, 2007) (available here) and People v. Sandoval, No. S148917 (Cal. July 19, 2007) (available here).

A very quick pre-lunch scan of these decisions suggest that prosecutors will be much more pleased than defendants with these rulings.  I hope California practitioners might help me identify if there is anything especially consequential or noteworthy in these decisions.

UPDATE:  The San Francisco Chronicle has this article providing an effective review of these rulings.  Here is a snippet:

Hundreds of California prisoners who had hoped to win reductions in their sentences after the U.S. Supreme Court ruled the state's sentencing law unconstitutional were rebuffed today by the state's highest court.... Today's rulings involved two prisoners sentenced before March 30 and will affect hundreds of similar cases around the state. In virtually all the cases, the standards set by the court will allow judges to reaffirm upper-term sentences....

[One defendant's] lawyer, Eileen Kotler, said the rulings effectively negated the U.S. Supreme Court's recent decision. She plans to appeal.  State Attorney General Jerry Brown, whose office defended the sentences in both cases, said the rulings appeared to have spared judges from a deluge of new sentencing hearings. But he said the cases also highlight the fact that the fixed-term sentencing law -- which he signed as governor -- is broken and needs major reforms.

July 19, 2007 at 01:08 PM | Permalink


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1. Cunningham compliance requires only that one aggravating fact be found by the jury, admitted by the defendant, or Apprendi-exempt (i.e., a prior conviction) before an upper term is imposed. All other facts informing the sentence may be found by the judge. So a very large number of cases will be affirmed outright.

2. If none of the above applies, defendant gets a remand for resentencing. On what basis? The same things the judge considered before, with the requirement that at least one aggravating fact be found for the upper term excised. Very few, I expect, will get a lower term on remand.

3. Cunningham doesn't affect consecutive sentencing at all. Black I is still good law on that point.

Be careful what you ask for. When a requirement inserted for the benefit of the defendant is found to create a constitutional problem, the obvious response is to simply delete the requirement.

Posted by: Kent Scheidegger | Jul 19, 2007 5:22:26 PM

Under the pre-Cunningham version of the California statutory sentencing scheme applied in these two cases, a sentencing judge was required to sentence a convicted defendant to a lower term, middle term, or upper term. The judge was prohibited from imposing the upper term unless he/she found, under a preponderance standard, that aggravating circumstances were present and outweighed any mitigating circumstances.

Two critical passages in Black II provide: "[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." "Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury."

These determinations seem to reflect a disconnect with SCOTUS's decision in Blakely. Under the California Supreme Court's reasoning, a single aggravating circumstance, such as a defendant's prior conviction(s), renders a defendant eligible for upper term sentencing. And, once such an aggravating circumstance is found to be present (with no need for a jury finding in the case of a prior conviction aggravator), the judge is free to weigh aggravators against mitigators, under a preponderance standard, and to make a determination (necessarily factual) that aggravators outweigh mitigators.

But, in Blakely, the Court concluded: “[T]he relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”

Contrary to this conclusion in Blakely, the Cal. Supreme Court's decisions today allow a judge, once a single aggravator is satisfactorily established, to engage in the judicial factfinding mission of weighing aggravators against mitigators, and to impose an upper term sentence if the judge believes aggravators outweigh mitigators. Indeed, as noted above, under the relevant California law, a judicial determination that aggravators outweigh mitigators is a prerequisite to imposition of the upper term. However, under Blakely, this determination, which necessarily constitutes "finding additional facts" (e.g., the court finds the defendant's prior convictions to constitute a circumstance in aggravation that outweighs the mitigating circumstances of the defendant's youth and expression of remorse), cannot be made by a judge, and it cannot be made under a preponderance standard. Whether right or wrong, a qualitative determination by a judge --- that the fact that the defendant previously stole a car outweighs the significance of the defendant's youthfulness or remorse --- cannot be deemed something other than a factual determination.

Thus, these decisions handed down today cannot be squared with SCOTUS precedent.

Posted by: Victor Haltom | Jul 19, 2007 5:27:37 PM

One important thing about Black II is that in almost every case it is going to negate Cunningham. Under Almendarez-Torres, a prior conviction does not have to be found by a jury (it is the one exception to Blakely, etc.). Since almost everyone that gets an upper term has prior convictions, this is going to negate Cunningham in its entirety (assuming of course that SCOTUS doesn't overturn it).

Posted by: da_2_b | Jul 19, 2007 6:22:45 PM

Section 1170(b) of the Penal Code, as it existed prior to Cunningham and as it will spring back to life in 2009 unless the Legislature acts, provides,

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.

The word "outweigh" does not appear in the statute.

Today's decision is correct, IMHO, in drawing the line between eligibility and selection, and I believe it would be affirmed by the U.S. Supreme Court as it is constituted today. Of course, we cannot know what the high court will look like if and when it gets around to reviewing this issue.

Posted by: Kent Scheidegger | Jul 19, 2007 6:55:24 PM

I think Black II probably got the law correct. The important part about the aggravating factor is how it is established. In the case of prior convictions, the determination was already properly made under Apprendi, Blakely, etc. The weighing of the factors is something that a trial court can do provided the aggravating factor was properly established. I think that is your point, Victor, and I think the Cal. Supreme Court addressed that fairly. Once the prior conviction is established, the relevant statutory maximum is the upper term.

The real problem is that this dilutes any possibility of a fair appellate review. The California appellate courts will simply point to the prior convictions as aggravating factors and affirm the imposition of the upper term. Even if a trial court improperly references aggravating factors that were not established by the jury, if there is a prior conviction the error becomes "harmless."

If I remember correctly the question will become moot under the new sentencing scheme because the judges will have discretion to impose any sentence within the triad. While their discretion is more limited than federal judges in some respects, it will allow them to consider mitigating and aggravating factors because the relevant statutory maximum will be the upper term.

Posted by: Alec | Jul 19, 2007 7:31:00 PM

In response to Mr. Scheidegger's post, it is true that section 1170(b) does not contain the word "outweigh." But, that point is of no consequence.

Section 1170(a)(3) states that sentencing courts "shall apply the sentencing rules of the Judicial Council." The version of Rule 4.420(b) of the California Rules of Court that was in effect at the relevant times in Black II and Sandoval, states: "Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." As noted in Cunningham, this rule was promulgated by the Judicial Council.

Posted by: Victor Haltom | Jul 19, 2007 8:09:45 PM

Victor, I want to comment on your statement that "These determinations seem to reflect a disconnect with SCOTUS'decision in Blakely." It seeems to me that the decision that once a single aggravator is found by the jury,(and I would add parenthetically that the aggravator in question would have to be an offense characteristic, not an offender characteristic) a judge may find the rest by a preponderance is completely consistent with the notion that Apprendi/Blakely is not about sentencing but rather is about the definition of crimes.

As Justice Thomas said concurring in Apprendi, "This case turns on the seemingly simple question of what constitutes a crime" Apprendi at 499, Likewise, Justice Scalia wrote concurring in Ring, "Today's judgment has nothing to do with jury sentencing." Ring v Arizona at 612.

So, once a defendant is found guilty of the greater crime by the jury, which then increases the potential sentence to which the defendant is exposed, a judge is free to do what they have traditionally done, which is to balance the circumstances of the crime and the defendant to reach the appropriate sentence. I don't see such balancing as the "functional equivalent" of an element of a greater crime than the core offense. Indeed the notion that "the crime the state actually seeks to punish" (Scalia in Blakely) is really "Felonious Larceny with Aggravating Factors Outweighing Mitigating Factors" is foreign to the Sixth Amendment jurisprudence and constitutionally problematic on many levels.

Bruce Cunningham

Posted by: bruce cunningham | Jul 19, 2007 10:55:06 PM

Yes, there is a weighing process in choosing among the terms for which the defendant is eligible, but that does not mean that weighing or the facts that go into the scale are eligibility requirements to which Apprendi applies. The Supreme Court has developed this eligibility v. selection distinction fairly well in the capital cases in recent years, and I don't think they are going to turn their backs on it. As Bruce notes, it is consistent with the idea that Apprendi applies to facts which create effective higher degrees of crimes, whether called that or not.

Also worth noting is that we have arrived at the eighth comment in this thread without any "flaming," etc. Is this a record for the blog?

Posted by: Kent Scheidegger | Jul 20, 2007 12:36:53 AM

Kent, "...Apprendi applies to facts which create effective higher degrees of crimes, whether called that or not." I believe that is absolutely correct and illustrates why I think Apprendi is simply a reaffirmation of the bedrock principle of Marbury v Madison that the legislature, by calling something one thing when it is really another , cannot trump the Constitution. To me, Apprendi is all about judicial supremacy, from which we started to stray in McMillan v Penn. (where Penn said that visible possession of a gun was a sentencing factor, not an element) As Scalia says in Ring it doesn;t matter what the state calls it , including Mary Jane. If it quacks like an element, it is an element.

Secondly, your point supports the notion that only offense characteristics can serve as aggravators which can be used as the functional equivalent of elements of crime to expose the defendant to a higher potential punishment. For example, here in North Carolina, a potential aggravator listed in theStructured Sentencing Law is that "the defendant does not support his children.' It is inconceivable to me that the "crime the state actually seeks to punish" can be "Felonious Larceny by Someone who Does Not Support His Children." and pass constitutional muster. So, if the sole ag is an offender characteristic, I don't believe the finding of it, either by judge or jury, can be used to expose a defendant to a potential sentence above the presumptive sentence or the blakely maximum.


Posted by: bruce cunningham | Jul 20, 2007 1:06:28 AM


I've seen some discussion on this blog before of the offense/offender distinction, but I am skeptical about it. For one thing, prior convictions have a very long history as a punishment-raising factor, predating the Constitution.

At the time of the Founding, first-time felons for the lower tier of felonies (e.g., manslaughter) received "benefit of clergy," meaning they were branded on the hand and maybe got a little jail time, but that was it. Second-timers were hanged.

Posted by: Kent Scheidegger | Jul 20, 2007 10:57:11 AM

Kent, I think you're right about prior convictions elevating punishment above the level allowed by the verdict or plea alone. Habitual felon laws have been approved going back to the late 1700's. I think it was a hog stealing twice statute in Virginia which withstood a double jeopardy challenge.

My concern is about offender characteristics like "the defendant doesn't support his children" or the "defendant was on pretrial release for another offense at the time of the crime" or, "the defendant has shown no remorse."

If one of those aggravators is the only ag alleged, then they are the differentiating element for the greater crime. And they have nothing to do with the crime committed. They have to do with aspects of the defendant which can be used to increase punishment within the limit allowed by the verdict, but, in my opinion, not be used to increase the potential punishment to which the defendant is exposed.

Likewise, the aggravator that the victim was "very old" may have been okay as a sentencing factor, but I don't think it can pass vagueness muster as an element of a crime. Or, "the amount of money taken was very large." as an aggravator. What does that mean? Big money to one person may be small money to another.

Prior convictions are a beast unto themselves. My concern is the notion, incorrect I think, that all ags can be automatically converted from sentencing factors to elements. As I said, it is inconceivable to me that during a trial for Aggravated Felonious Larceny with the ag being the defendant doesn't support his children, the prosecutor can introduce evidence to a jury during a guilt innocence phase that the defendant doesn't support his children to prove an element of a substantive offense.

Thanks for the invigorating discussion. I think you and I view Apprendi similarly. Except as a defense lawyer trying cases in the courtroom, I tend to look at the issue from the perspective of whether or not the state can even be trying my client for this greater crime than the core offense. "No remorse" as an element of a crime? Sounds like it violates the Fifth Amendment to me.

bruce c

Posted by: bruce cunningham | Jul 20, 2007 2:08:18 PM

Under the California law in force at the relevant times in Black II and Sandoval, two facts had to be established before a defendant could be subjected to upper-term sentencing: 1) the presence of aggravating factor(s), 2) aggravating factors must outweigh mitigating factors. (Of course, the Cal. legislature changed the relevant sentencing rules in the wake of Cunningham.)

Black II and Sandoval treat a defendant as eligible for upper-term sentencing upon the establishment of only the former fact. Therein lies the inconsistency with these decisions and SCOTUS's Apprendi jurisprudence.

As Stevens wrote for the constitutional majority in Booker: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 543 U.S. at 244. Pursuant to the sentencing rules at issue in Black II and Sandoval, upper-term sentencing was not authoritized absent a factual determination that aggravators outweigh mitigators.

Posted by: Victor Haltom | Jul 23, 2007 12:59:44 AM

Are you sure a weighing of factors is a "factual determination?" Isn't it what happens AFTER all facts have been determined?

Michael McMahon
Chief Deputy Public Defender
Ventura County, California

Posted by: michael mcmahon | Jul 23, 2007 3:16:55 AM

Michael and Victor, I think Justice Scalia's concurring opinion in Ring is apropos on the issue of whether weighing ags and mits and determining ags outweigh mits is a "factual determination." Scalia says in Ring that once a jury finds the fact that convicts the defendant of Capital First Degree Murder, then the states can leave the final decision of life and death to the judge if they choose.

I think balancing ags and mits is a judicial function of deciding among available sentencing options, not a factual determination which renders a def eligible for a greater potential punishment.

bruce cunningham

Posted by: bruce cunningham | Jul 23, 2007 4:21:05 PM

Is the process of weighing aggravating factors against mitigating factors, for purposes of determining which preponderates, a non-factual determination?

Certain aggravating and mitigating factors are listed in Cal. Rules of Court, rules 4.421 and 4.423. E.g., aggravtors --- the victim was particularly vulnerable, the crime was carried out with sophistication or professionalism, the crime involved a high degree of cruelty or visiousness, the defendant has a prior conviction; mitigators --- the victim provoked the crime, the defendant exercised caution to avoid harm to persons or property, the defendant was motivated by a desire to provide necessities for his or her family, the defendant's prior performance on probation was satisfactory.

Suppose a case involving an assault conviction arising out of drunken fight in a bar. Suppose further that the defendant has a prior conviction for misdemeanor possession of marijuana, for which the defendant was placed on probation, and that the defendant completed probation in a satisfactory manner. At sentencing, the judge determines the prior-conviction-aggravator and the successful-performance-on-probation-mitigator are of equal weight. The judge determines one additional mitigating circumstance is present: the victim instigated the fight. The judge also determines that one additional aggravating circumstance is present: the defendant acted with cruelty and viciousness. If the judge determines that the cruelty/viciousness-aggravator outweighs the provocation-mitigator, and expressly relies upon that determination to impose an upper-term sentence, how can that determination be deemed something other than a qualitative factual determination? The judge is making a factual determination concerning the very nature, i.e., severity, of the offense. The judge is determining that even though the victim started the fight, thereby lessening the defendant's culpability, the defendant went way to far by, e.g., kicking the victim in the head after the defendant had already gotten the better of the fight by knocking the victim to the ground.

The circumstance that a single aggravator in the foregoing hypothetical (the prior conviction) was established in a constitutionally permissible manner, does not alter the reality that the judge predicated imposition of the upper term sentence on a qualitative factual determination that cruelty/viciousness outweighed provocation. See People v. Hall, 8 Cal.4th 950, 957 (1994) (“Selection of the upper term is justified only if circumstances in aggravation are established by a preponderance of evidence and outweigh circumstances in mitigation.”). The judge in this hypothetical case is making a determination concerning uncharged circumstances relating to the offense conduct, and the judge is relying upon this necessarily factual determination as a basis for increasing the defendant's statutory maximum punishment. Apprendi does not allow this.

Posted by: Victor Haltom | Jul 26, 2007 1:17:07 AM

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