Criminal Appeal

Does the Legislative Cunningham-Fix Obviate the Need for Judicial Reformation?

Update: SB 40 signed into law today. (See Sentencing Law & Policy post.)

Original Post:

With SB 40, the California Cunningham-fix bill, awaiting the governor's signature, it's time to re-think the question of whether the California Supreme Court should reform section 1170(b) of the Penal Code, as the Attorney General has been arguing in cases pending before the Court.

The premise of the AG's briefing is that 1170(b) needs to be reformed because the U.S. Supreme Court found it unconstitutional in Cunningham. But by the time the Cal. Supreme Court decides the pending cases (I'm expecting oral argument during one of the two May calendars), 1170(b) will already have been amended by the Legislature and the need to reform the statute will have evaporated. Reformation is an extraordinary remedy and hardly seems appropriate when the Legislature has just acted.

The Legislature has not provided for retroactive application of SB 40. I suppose that raises the question of whether the Cal. Supreme Court should reform the soon-to-be-law SB40 version of 1170(b) to apply it retroactively to pending cases. But given that the Legislature just acted without attempting to apply SB 40 retroactively, the extraordinary remedy of reformation would be inappropriate. First, unlike when the US Supreme Court decided Booker, much of the urgency is gone because the Legislature has created a fix for new cases. Second, it would be unseemly for the Supreme Court to amend SB 40 so soon after its adoption in order to do what the Legislature couldn't do - make it retroactive. (The ex post facto clause bars the Legislature from applying the lightened burdens to past crimes.) Third, the number of pending cases requiring a fix may not be all that great in light of (1) many defendants get probation, low terms and middle terms and, thus, have constitutional sentences, (2) many defendants have prior convictions that can constitutionally be used to impose the upper term, (3) some cases pending on appeal may be affirmed because any Blakely/Cunningham error may be harmless (see Recuenco), (4) the Supreme Court in a case called French, may hold that a guilty plea, following plea-colloquy advice that the upper term is the maximum term that can be imposed, constitutes an admission that the facts support the upper term, effectively limiting Cunningham to jury trial case. (I disagree with that premise, but they may so hold).

As an aside, I note that even Chief Justice George appears to agree that SB 40 cannot apply retroactively. In a Feb. 15 radio interview, George explained that the bill "cannot ... affect ... past cases":

[2:20] Michael Krasny: Well what does this mean now? It means that sentencing law is now unconstitutional, so you’ve got all kinds of inmates, presumably, who are going to be appealing?

CJ George: Well yes. There are many who are in the pipeline whose appeals are still pending and then there are others who will seek to attack already final convictions on the basis of their sentence.

Kransy: And your statement I think was well each judge is on his or her own here.

CJ George: That is the case until such time as there’s clarification. [2:45] The legislature just passed, as least the Senate did, yesterday, a change in the sentencing law that will affect future cases, but they cannot, assuming the Assembly goes along with it, affect … past cases. So our Court, the California Supreme Court has accepted review in about half a dozen cases where we hope to provide some guidance by this summer to the lower courts in terms of how to handle these cases. [3:12]

Finally, Prof. Doug Berman has a post about some problems he sees with SB 40.

Prof. Fisher Goes to Sacramento

Yesterday's Cal. Assembly Public Safety Committee hearing on SB 40 can be watched on California Channel (click the preceding link and then click the "watch" link on the Public Safety Committee line.)

The hearing dealt with several bills. The portion on SB 40 starts at 1:34:30. Prof. Jeff Fisher's testimony beings at 2:06:47

The committee approved the bill 5-2.

Cal. Supreme Court

This being argument week, the California Supreme Court will not issue any orders today.

CA Assembly to Hold Hearing on Sentencing Reform

California's Assembly Committee on Public Safety will hold hearings on SB 40, Senator Gloria Romero's Cunningham-fix legislation (i.e. the former Trans Fat Bill), on March 13.