June 20, 2005
The opinion: here (after it is archived 120 days from now, look for it here).
Flaws:
- The Court concluded that the U.S. Supreme Court opinions in Apprendi, Blakely and Booker "do not draw a bright line." This is contrary to the widely accepted understanding of those decisions.
- The majority misuses the Booker-remedy reasonableness appellate standard-of-review to establish the constitutionality of the California scheme. The court recongized the mandatory language of section 1170(b) of the Penal Code which forbids an upper term sentence in the absence of aggravating factors, but concluded that the function of that requirement is only to make sure the sentence is reasonable: "Because an aggravating factor under California law may include any factor that the judge reasonably deems to be relevant, the determinate sentencing law’s requirement that an upper term sentence be imposed only if an aggravating factor exists is comparable to Booker’s requirement that a federal judge’s sentencing decision not be unreasonable." This fails to consider that it was the reformation of the statutes that made the new (post-Booker) federal scheme constitutional, not the reasonableness SOR.
- Discretion. The Court concluded that California judges have more discretion in selecting from among the three possible terms than a Washington judge does in imposing an "exceptional sentence" or than a federal judge did under the guidelines. Again, this consideration moves away from the bright line rule.
Commentary & News:
The Recorder: "Court Affirms State Guidelines On Sentencing" (subscription required).
Sentencing Law and Commentary:
Initial report "California Supreme Court dodges Blakely" (be sure to read comments by several California Appellate Practitioners).
Follow-up "Booker strikes again (aka Back in Black)" (be sure to read full quote from Blakely's attorney, Jeffrey Fisher ("it looks like the Cal SCt majority has adopted all of the arguments the State and the SG made in Blakely . . . and that the Court rejected!")
Appellate Law & Practice: Gene Vorobyov has this post.
Posted by Jonathan Soglin at 09:35 PM | Permalink
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Comments
Didn't the Black court essentially engage in "reformation" of 1170(b)? (See Slip Opinion at p. 5 ["The judge's discretion in selecting among these options is guided by...]; p. 17 ["...in operation and effect, the provisions of the California determinate sentence law simply authorize..."]; p. 18 ["Although subdivision (b) is worded in mandatory language, the requirement that an aggravating factor exist is merely a requirement that the decision to impose the upper term be reasonable."] p. 25 ["...the judge's discretion is constrained, to some degree, by section 1170, subdivison (b)].)
Didn't the Black majority sever and excise the word "shall" from subdivision (b), and replace it with the word "may"?
Paul
Posted by: Paul | Jun 21, 2005 9:47:52 AM
Can you say "contrary to federal law as determined by the Supreme Court of the United States"? The Ninth Circuit can, and will -- I wouldn't be surprised if it is this guy's exact case. Moreover, I think ANY 9th Circuit panel would say so, even one consisting of O'Scannlain, Bybee and Tallman.
Posted by: Joe | Jun 25, 2005 1:07:02 AM
