Criminal Appeal

Two Cal. Supreme Court Rulings Blunt Impact Of Cunningham

In a pair of unanimous opinions authored by Chief Justice George, the California Supreme Court dealt a major blow to criminal defendants in California hoping to gain reduced sentences by virtue of the U.S. Supreme Court's Cunningham decision.

In People v. Black, no. S126182A, the California Supreme Court first held that a single valid aggravating factor is sufficient to authorize the upper term. Thus, even if the trial court imposed the upper term while in part relying on a circumstance other than the fact of a prior conviction that was neither admitted by the defendant nor proven to a jury beyond a reasonable doubt, there is no constitutional violation so long as at least one other aggravating factor fell under the recidivist exception for the fact of a prior conviction (or was admitted by the defendant or proven to a jury beyond a reasonable doubt). Because there is no constitutional violation when a trial court has based its selection of the upper term on a mix of valid and invalid factors, reviewing courts need not conduct any prejudice inquiry. Second, the Black Court concluded that the aggravating factor set forth in California Rules of Court, rule 4.421 (b)(2) - that the “defendant’s prior convictions . . . are numerous or of increasing seriousness” - falls within the exception for the fact of a prior conviction and therefore need not be proven to a jury beyond a reasonable doubt. Lastly, the Court in Black held that Cunningham did not apply to the imposition of consecutive sentences, meaning that factual findings necessary to impose consecutive sentences need not be proven beyond a reasonable doubt or to a jury either.

In People v. Sandoval, no. S148917, the California Supreme Court blunted the impact of Cunningham even further. In Sandoval, the Court found that the imposition of the upper term in that case did violate the defendant's Sixth Amendment jury right and that she was prejudiced by the error under the Chapman standard. However, the Court determined that the propery remedy on remand would be to conduct a new sentencing hearing consistent with the Legislature's post-Cunningham fix, which permits the trial court to exercise its discretion to impose any of the lower, middle, or upper terms without engaging in any factfinding. Selection of the upper term under this new scheme will not be disturbed on appeal absent an abuse of discretion, which means defendants will need to make the near-impossible showing that the trial court's imposition of the upper term was arbitrary or capricious.

Cal. Supreme Court Upholds Death Sentence Over Kennard's Dissent

The California Supreme Court affirmed the conviction and death sentence of a man found to have murdered and dismembered a woman in order to prevent her from testifying against him in another case.

While Justice Kennard concurred in the portion of the majority opinion upholding the defendant's convictions, she would have reversed the imposition of the death penalty.  In Justice Kennard's view, the fairness of the penalty phase was undermined by two prejudicial errors. 

First, the trial court should have granted defense counsel’s request to ask prospective jurors if they would invariably impose the death penalty in a case involving dismemberment of the murder victim’s body.  At capital sentencing hearings, both sides are entitled to ask questions of potential jurors specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.  On this point, Justice Kennard took issue with the majority's conclusion that the dismemberment of the victim’s body was not a circumstance that could cause a reasonable juror invariably to vote for death regardless of the strength of the mitigating evidence.

Justice Kennard identifed a second penalty phase error requiring reversal as well.  In closing argument at the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty.  Specifically, the prosecutor quoted, among other Bible verses, Genesis chapter 9, verse 6, which reads: “whoever sheds the blood of man, by man shall his blood be shed, for in his image did God make man.”  According to Justice Kennard, a prosecutor’s argument to the jury that the Bible authorizes or demands the death penalty for murder creates the risk that such argument may diminish the jury’s sense of responsibility for its verdict and imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.  Justice Kennard acknowledged that the defendant forfeited this argument because of defense counsel's failure to lodge a timely objection, but she would have reached the issue anyway because the failure to object deprived the defendant of the effective assistance of counsel.

The majoirty opinion was authored by Justice Baxter.

People v Zambrano, no. S035368 (Cal. Supreme Ct., filed 7/30/07)

Cal. Supreme Court Overturns Death Sentence

In a rare capital habeas victory, the California Supreme Court unanimously reversed a jury's death sentence and ordered a new penalty hearing based on new evidence that a third party actually committed the murders in question. According to the Court, defense counsel provided constitutionally deficient representation by failing to investigate adequately available evidence of third party culpability. Reversal of the death sentence was required because there was a reasonable probability that the jury would not have imposed the death penalty had the evidence merely established that the defendant was a co-conspirator rather than the acutal killer. With that principle in mind, though, the Court declined to reverse the defendant's murder conviction because the evidence established that the defendant's participation in a conspiracy to commit murder rendered him liable for first degree murder irrespective of the possibility that a third party actually killed the victims.

The unanimous opinion was authored by Justice Werdegar.

In re Hardy, no. S022153 (Cal. Supreme Ct., filed 7/26/07)

Firearm Sentence Enhancements Not Subject To Prohibition Against Multiple Punishment

Accoridng to California Penal Code section 654 (PC 654), an act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision but not both. The ban on multiple punishment applies not only when there is one act in the ordinary sense, but also when the crimes arise as the result of an indivisible course of conduct.

California Penal Code section 12022.53 (PC 12022.53) provides substantial sentence enhancements for using a firearm in the commission of certain felonies.

In this case, the trial court imposed three enhancements pursuant to PC 12022.53 based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. The defendant argued - and the Court of Appeal agreed - that PC 654 required the trial court to stay all but one of the sentence enhancements.

In a unaninous opinion, however, the California Supreme Court held that the sentence enhancement provisions of PC 12022.53 are not limited by the multiple punishment prohibition of PC 654. In the Supreme Court's view, the Legislature made clear that it intended to create a sentencing scheme unfettered by PC 654 when in enacted PC 12022.53.

Importantly, though, the Supreme Court once again stopped short of embracing the Attorney General's far-reaching argument that PC 654 never applies to sentence enhancements. Instead, it opted to "leave that question for another day." To be continued...

The unanimous opinion was authored by Justice Corrigan.

People v. Palacios, no. S132144 (Cal. Supreme Ct., filed 7/12/07)

Life Sentence for 0.03 grams of Meth

Yesterday, Marin Superior Court Judge Stephen Graham imposed a 25-to-life sentence for simple possession of 0.03 grams of methamphetamine under California’s Three Strikes law.  (People v. Foroutan, No. 114626A.)  The defendant has never committed a crime of violence and his prior strikes were residential burglaries, the most recent of which was from 1992. 

Full disclosure:  Mr. Foroutan is represented by the Stanford Law School Criminal Defense Clinic, which provides free legal services to inmates serving three strikes sentence for non-violent offenses.  I am a supervising attorney at the clinic.  This blog ordinarily doesn’t publicize our own cases, but I’m obviously making an exception.   

Retroactive Application of New Rule of Evidence Does Not Violate Ex Post Facto Clause

The Ninth Circuit held today that retroactive application of California Evidence Code Sec. 1108, which permits introduction of evidence prior sexual misconduct, does not violate the Ex Post Facto Clause.  (Schroeder v. Tilton, No. 06-15391 (Wallace, Chudahy, McKeown))  A California habeas petitioner convicted of molesting two grandchildren argued that prosecutors improperly admitted evidence that he also molested his children when they were young.  Evidence Code Sec. 1108 was not in effect when the petitioner committed his crimes.  The Ninth Circuit concluded the state court's decision to admit the evidence was not contrary to Carmell v. Texas, 529 U.S. 513 (2000), which holds that the Ex Post Facto Clause prohibits retroactive application of new rules of evidence that may lower the state’s burden of proof at trial.