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February 1, 2009

California Supreme Court to address Cunningham retroactivity

Thanks to this post at C&C, I see that the Califorina Supreme Court is due to hand down on opinion on Monday concerning the retroactive application of the Cunningham decsion to state cases that become final on direct appeal between Blakely and Cunningham.  My first instinct is to say that Cunningham should apply to these cases, but I know better than to make any firm predictions about how appellate courts are going to resolve Blakely issues.

February 1, 2009 at 01:58 PM | Permalink


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I agree with Prof. Berman's first instinct. Cunningham announced no new rule and, at a minimum, must be retroactive to Blakely. The only debate in Cunninham was whether CA's system resembled the post-Booker advisory Guideline system. The Court held it did not. That holding is not a new rule; it is merely stating that Blakely's rule must be applied to the CA system.

In fact, the SCOTUS's opinion almost explicitly states that Cunninham is nothing but an application of Apprendi, which, if so, would arguably make Cunninham retroactive to the opinion of that date.

"To summarize: Contrary to the [CA Supreme Court]’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permit-ting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent."

Of course, this doesn't mean the CA Court will get it right. I'll be interested to see what the CA Court does.

Posted by: DEJ | Feb 2, 2009 12:43:54 PM

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