Sacramento Bee Reports on the Very First Case to Apply Cunningham — Except for All the Others
The Sacramento Bee reports:
A U.S. Supreme Court ruling that struck down a key aspect of California’s sentencing law is causing widespread confusion in the state’s criminal courts, and an extraordinary rape case in Sacramento may be the first case statewide to struggle with its effects.
Oh really?
In Los Angeles County’s massive court system, judges are “still trying to figure out what this all means,” said court spokesman Allan Parachini. Until then, he said, “Every judge can act on their own.”
Parachini said he wasn’t aware of any cases in Los Angeles where jurors had been asked to decide factors that could impose a higher sentence.
Oh really?
The Cunningham case came down on the first day of a trial I did last month. Before the day was out, we had arraigned the defendants on an amended information alleging several aggravating factors under the California Rules of Court. The new procedure caused some delays in preparation of the verdict forms, but the jury appeared to have little trouble with the additional allegations, and rendered a verdict, along with findings on those allegations, last month.
My case can’t possibly be the only case where this happened in California besides the case described in the article.
Yet another case where the blogs bring you better information than the newspapers.
It could be the first case, especially to reporters who primarily interview friendly defense attorneys that they regularly seek out for sound bites and don’t bother to ask any prosecutors.
DRJ (605076) — 2/11/2007 @ 3:21 pmCongrats on getting those aggravating factors found true, Pat! Quick work.
I’m interested in how to respond to this defense argument:
Cunningham does not generate a solution; it invites California to generate a solution. There is no power under either either the statutes or the cases to have jurors determine aggravating factors. Therefore, the prosecution has no way of proving those factors.
The fact that a jury found them true in this case is insufficient, because the law does not allow that to occur. The prosecution has made up a process, and my client is therefore immune from the aggravated term.
What, you say this means there’s no way to get the aggravated term, except by prior convictions? Not my client’s fault. California should have generated a legislative solution timely. Any judicial or legislative soluition generated now would be ex post facto to my client.
(I’m sure others are deeply fascinated by this. I can tell by their soft snoring that they are interested.)
–JRM
JRM (355c21) — 2/11/2007 @ 5:09 pmJRM,
I’m with you on this. From reading Cunningham and perusing California’s statutes, it seems to me that having a substantive offense which is punished by a separate, seemingly procedural but in fact substantive, rule is unnecessarily complex, not to say arcane
The Cunningham Court left California the option to move from the DLS system to a minimum-maximum with the judge having the discretion to weigh factors in aggravation and mitigation and impose a sentence within the range.
As to whether trying to conform to Cunningahm violates ex post facto or due process, I’m not so sure. Sure it’s worth making the argument when your client is serving sixteen years and has no other appealable issue … but he had notice that his conduct was illegal and of the maximum penalty for which he was liable. I don’t know about California’s constitution and case law but I don’t think there’s a federal issue.
nk (2ab789) — 2/11/2007 @ 6:04 pmDue process would probably come in so long as this is left up to individual prosecutors and judges, and no statewide format is used: the defense will argue that his client suffered from the variability of different approaches to the problem that varied among prosecutors and among judges. Even if all prosecutions in LA County were handled in the same way as Patterico’s case [and I presume the prosecutor’s office must have worked out a standard procedure in fairly short order], did all the judges in LA County do the same as the judge in that case? And, more importantly, did all prosecutors statewide adopt a standard procedure and all judges statewide utilize it? I doubt it. And until there is a statewide standard, the due process argument would apply. You’d probably even get to cite Bush v. Gore, since this was the basic rationale of that decision.
kishnevi (7a9e8b) — 2/11/2007 @ 7:58 pmDo you mean Equal Protection?
The aggravating factors are set out in the California Rules of Court. Judges have been making findings for years pursuant to the same rules. Now juries have to do it. What’s the big deal?
Patterico (a8fa4a) — 2/11/2007 @ 8:03 pmKishnevi,
I think you would be right if it were a capital case. In non-capital cases, it is a much more relaxed standard.
nk (57e995) — 2/11/2007 @ 8:10 pmI think it can be argued that, while the Court has the power to strike down the California sentencing system, it cannot rewrite it. Only the Legislature can do that. Thus, the fundamental question is whether juries can consider and make findings regarding aggravating factors under the sentencing statute as written, or whether the statute unequivocally reserves that function to judges.
If the statute is not clear regarding how to make findings of aggravating factors, perhaps it can be argued that the rules of judicial interpretation and statutory construction require that the Court’s decision should be interpreted to give effect to as much of the statute as possible.
DRJ (605076) — 2/11/2007 @ 9:33 pmThus, the fundamental question is whether juries can consider and make findings regarding aggravating factors under the sentencing statute as written, or whether the statute unequivocally reserves that function to judges.
I am aware of no authority limiting this function to judges, and I can state fairly confidently that there is none.
The argument the defense attorneys are making is that there is no explicit statutory authority for alleging these factors in a charging document. I don’t think it’s a winning argument, but I think it’s touchy getting into the reasons on this blog, and I’m going to decline to do so.
Patterico (a8fa4a) — 2/11/2007 @ 10:02 pmThanks for the correction.
DRJ (605076) — 2/11/2007 @ 10:23 pmThat is, thanks for correcting me. I misunderstood the argument.
DRJ (605076) — 2/11/2007 @ 10:23 pm“Do you mean Equal Protection”
I probably did. That’s what I get for reading blogs at midnight instead of going to bed like a normal person 🙂
kishnevi (03a14b) — 2/12/2007 @ 5:34 amA real exam[le of judicial tyrany and why we need to remove activist judges
krazy kagu (6c49b1) — 2/12/2007 @ 7:25 amMistake. Stand by for reversal. Sorry Pat.
California is a Code Pleading State. That means, no code, no plead. Sections 948, 949 and 950 of the California Penal Code are the operative definers of Code Pleading in our state. Public Offenses and statutorily defined enhancements are all that may be plead in criminal charging documents.
What’s even more interesting is that the he legislatute did not create the sentencing rules in which the definitions of “aggravating factors” are found. The Judicial Council did. An administrative body. To be sure, the Judicial Council created and enacted the sentencing rules in response to a legislative directive contained in the DSL when it was enacted in about 1977, but what was created and enacted was most assuredly not a legislative enactment. BTW, the standard of proof for aggravating factors in only a preponderance of the evidence. Also created by the administrative body.
O.K. with that in mind let us visit the well known but often overlooked rules of statutory construction. You know, those things judges must look to in any attempt to interpret exactly what the legislature meant to say or to accomplish when they enacted the law/statute in question.
The first rule is that judges are required to assume that the leg chose the words they used deliberately. That is if they called something a public offense and then told one where to look for them, that is what they meant to say. On the other hand, if they called something a factor in aggravation, and told one where to find them, that is also what they meant to say.
By definiton therefore, a public offense is not an aggravating factor and vice versa.
To do what you convinced the judge to do in your case resulted in a judge made response to the holding in Cunninham. If one judge can make up his/her own rule of procedure in this fashion, why can’t all the rest? Answer: They can’t. The legislative and executive branches of the government have the sole responsibility and authority in that area.
Read these cases carefully, and you will see that the only way in which DSL in California can be fixed is by appropriate legislative enactment:
1. Apprendi vs. New Jersey; 2. Ring vs. Arizona; 3. Blakely vs. Washington; 4. United States vs, Booker; and 5. Cunninghmam vs, Calfiornia. All U.S. Supreme Court cases. Then read our own Supreme Court’s rather silly effort to avoid the Blakely decision is People vs. Black.
BTW Booker was handed down in January, 2005. It was there for all to see and in line with everything that had come before it, and pretty clearly sounded the death knell for California’s DSL as far as the aggravated term was concerned. Black was decided by our Supreme Court barely 6 months later in June, 2005. Cunnningham was the U.S. Supreme Court’s rejoinder to Black and our failure to get the message of Apprendi and Blakely. So much for judge made solutions. Eh?
If the practice you’ve described becomes widespread, not only will it not constitute a fix, it will result in an ocean of cases to be revisited when the full impact of this line of U.S. Supreme Court cases is finally understood and all who followed the folly you encourage are reversed.
Happy days.
Ms. Judged (f2e636) — 2/12/2007 @ 8:47 amNice to know Compton judges see clear to allow for amendments to the information and submitting these new factors to the juries … from what I hear, some judges in CCB are not allowing amendments and not allowing argument on aggravating factors. Hopefully this will change soon.
MOG (c949f7) — 2/12/2007 @ 10:52 amAlthough all this could change with one amendment to PC§1170(c) and make the presumptive term the high term … but I doubt the California Legislature has the fortitude for that.
Please correct me if I’m wrong, but as I read California’s criminal code it seems to me that it codifies the common law crimes with patched-on additions (setting forth the elements of the crime) to conform to Constitutional requirements of Due Process. The whole thing should be scrapped and a new code, based around the MPC, should be adopted.
nk (54c569) — 2/12/2007 @ 11:11 amMs. Judged and I have exchanged some e-mails on this topic.
Ms. Judged,
1) Is there a statute or a case you can point to that says something like this:
?
2) From memory, I think it’s Penal Code section 1170(a)(3) that says sentencing is to take place according to the Rules of Court.
3) What about the inherent power of the courts?
I agree with you in theory that if the law is clear, we must follow it. I’m just not sure I agree with you re what the law says.
Patterico (c34894) — 2/22/2007 @ 7:10 amPat:
Yes. Penal Code Sections 15, 16, 948, 949, 950.
You’re memory is pretty good. But the problem section is Penal Code Section 1170(b) which mandates the mid term as a matter of first choice and presumes conviction has already happened. Variations in either an upward or downward direction may occur only if a judge follows the sentencing rules without an abuse of discretion.
Cunningham found fault with mandatory nature of 1170(b) and the sentencing rules. Both the statutory and regulatory schemes fail constitutional muster.
There are certain inherent powers of the court. But they does not extend to fashioning the extensive remedies neccesary to affect a fix that would satisfy Cunningham.
Ms. Judged (becd1d) — 2/22/2007 @ 1:42 pm