Criminal Appeal

Black v. Blakely

The Supreme Court conferenced yesterday on the several pending California Blakely cases and a similar Tennessee case. We should see the results on Tueday, but I have no prediction. There are several possibilities for Tueday.

Cert. Grant; Argument this Term: This seems very unlikely. With the docket so full and arguments ending in just two months, I think we would have seen an order yesterday if the Court were going to grant cert and try to squeeze the case in this term.

Cert. Grant; Argument Next Term. Also seems unlikely. Why would the Court allow the uncertainty to continue for that much longer.

Cert. Denial: Always possible given how few cases the Court hears. Why would the Court deny (and my retorts)? It doesn't want to start state-by-state review of sentencing schemes (but there are similar sub-issues popping up in many states and the Court could address those all at once); it thinks the California Supreme Court was right (other than the New Mexico Supreme Court and the Cal. AG, I'm not hearing much support for this view); it wants the issues to percolate a bit in the other states before taking it up (again, why allow the uncertainty to continue for so long).

Summary Reversal: I hoping for, but not expecting this. The case is clearly enough controlled by Blakely that the criteria are met. But does the Court summarily reverse state courts very often? This is not done lightly and for that reason cannot be expected.

Note: if the Cal. cases are not on the order list on Tuesday, that means someone may be drafting either a dissent from the denial of cert. or a summary reversal opinion.

Busy Busy Busy

Sorry for the dearth of posts. Work and non-work activities (including teaching and the first real vacation without kids in seven years) have kept me quite busy.

Cal. Supreme Court Review Grants

Recent Cal. Supreme Court action in criminal & habeas cases:

People v. Rivera, S138898: Must a police officer corroborate an anonymous tip before seeking consent to enter and search a residence to investigate the tip? Court of Appeal opinion here.

In re Gray, S138910: the court granted review and transferred the case back to the court of appeal (2 dist., div. 3) with directions to issues an OSC returned to the superior court, requiring CDCR to show

why the Governor did not abuse his discretion in reversing the January 27, 2005 decision of the Board of Parole Hearings finding petitioner suitable for parole, why there was "some evidence" in the record to support the Governor's determination made pursuant to article¨V, section 8(b) of the California Constitution and Penal Code section 3041.2, and why petitioner is not entitled to release on parole.

In re Mar, S130027. OSC, returnable in superior court, issued directing CDCR to

show cause why petitioner is not entitled to relief based on his allegations that counsel rendered ineffective assistance and that his plea was involuntary.

(Note the slow action on this appeal. The petition was filed in the supreme court on Dec. 17, 2004. On April 26, 2005, counsel wrote the court requesting consideration at the next conference. On Feb. 1, 2006, the OSC issued.)

Renumber All the Rules?

If you have an opinion on renumbering all of the California Rules of Court, you have until Feb. 24, 2006, to say so.

Black and Blakely SCOTUS Conference Approaching

On Feb. 17, the US Supreme Court´s conference list includes several California cases presenting the question of the constitutionality of California´s Determinate Sentencing Law. Sentencing Law and Policy has details here and the matter is covered by Brent Kendall´s Daily Journal article here (thanks to How Appealing for the link), replete with quotes from the undersigned.