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Pending U.S. and California Supreme Court Cases

 

Update (3/27/08): On Jan. 21, 2008, SOCTUS denied cert in Black II. On Mar. 27, 2008, the California Supreme Court held in French that a defendant sentenced under former section 1170(b) who pleaded guilty with a lid had a right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances, as established by Cunningham. For more on French, see below and see our news item dated Mar. 28, 2008.

Update (9/13/07): A certiorari petition is now pending in Black II. For a link to the US Supreme Court docket and for a copy of the cert. petition, view the Black case information below.

On February 7, 2007, the California Supreme Court ordered supplemental briefing on specified Cunningham issues in People v. Towne and also granted review in five additional cases presenting Cunningham issues. On February 21, 2007, following the U.S. Supreme Court's GVR order in Black, the California Supreme Court ordered supplemental briefing in Black. For case information on these cases, including copies of briefs, click the links immediately below:

Towne Black French Hernandez Mvuemba Pardo Sandoval

In Towne, the Court ask for briefing on (1) whether various recidivist-related factors fall within the prior conviction exception to the right to a jury trial and (2) whether there is a Sixth Amend. violation when there is present one valid aggravating factor. (More details on Towne below.) In Black, asked for briefing on (1) whether there is a Sixth Amend. violation when there is present one valid aggravating factor and (2) Does Cunningham affect the Court's conclusion in Black that Blakely does not apply to the imposition of consecutive sentences under Penal Code section 669?

As for the five new cases, a Judicial Council news release (MS Word)) states that "Each of these five cases presents the following issues in different factual contexts:  (1) Did the trial court violate the defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham by imposing an upper-term sentence based on aggravating factors not found true by the jury?  (2) If so, what is the proper remedy?" (More details on the five new cases below.)

The news release divides Towne and the five new cases into three categories: (1)  cases in which the trial court imposed an upper-term sentence based on aggravating factors that had no relationship to prior convictions (Mvuemba and Sandoval); (2) cases in which the trial court imposed an upper-term sentence based at least in part on one or more aggravating factors that relate to the defendant’s prior convictions (Hernandez, Pardo, and Towne); and (3) cases in which the defendant entered a plea of guilty or no contest (French). 

The simultaneous briefs in Towne are due on February 28, with reply briefs due by March 9. Each of the five new cases has the same briefing schedule: opening brief on the merits due Feb. 28, answering brief due within 21 days of filing of the opening brief and the reply brief due within 7 days of filing of the answering brief. No date is set yet for oral argument. In Black, the simultaneous suppelmental briefs are due on March 14, 2007 and the simultaneous reply briefs are due on March 23, 2007.

(NOTE: Included below are various pleadings from the pending cases. While every effort has been made to present the documents as they were filed, in some instances minor formatting differences may exist between the filed versions and the electronic versions posted below.)

People v. Towne, no. S125677 (rev. gr. July 14, 2004) (findings on aggravating factors for an upper term sentence).

  • AG's Post-Cunningham Supplemental Reply Brief (filed Mar. 9; posted Mar. 22) (PDF)
  • Appellant's Post-Cunningham Supplemental Reply Brief (submitted Mar. 9; posted Mar. 12) (PDF) (WP)
  • AG's Post-Cunningham Supplemental Brief (submitted Feb. 28; posted Mar. 4, 2007) (PDF) (WP)
  • Appellant's Post-Cunningham Supplemental Brief (filed Feb. 27; posted Feb. 28, 2007) (PDF) (WP)
  • Feb. 7, 2007: supplemental briefs ordered on: "(1) Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant's prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant's prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) - (b)(5))? (2) Is there any violation of the defendant's Sixth Amendment rights under Cunningham v. California, supra, if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities - by, for example, a jury finding, the defendant's criminal history, or the defendant's admission - even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible?"
  • Attorney General's Supplemental Brief filed Feb. 2, 2005 (very large PDF download)
  • Appellant's Supplemental Brief on the Merits filed Feb. 2, 2005 (addressing Booker) (also in WP and MS Word)
  • Appellant's Supplemental Letter Brief on the Merits filed Nov. 17, 2004 (addressing legislative intent) (also in WP and MS Word)
  • CACJ’S Amicus Brief on the Merits Supporting Appellant Towne (also in WP and MS Word)
  • Appellant's Reply Brief on the Merits (also in WP and MS Word)
  • Attorney General's Brief on the Merits submitted 9/30/04 (motion for leave to file oversized brief pending) (also in WP and MS Word)
  • Appellant's Opening Brief on the Merits (also in WP and MS Word)
  • Court of Appeal opinion
  • Supplemental Letter Brief in Support of Petition for Review

People v. Black (U.S. Supreme Court no. 07-6140; Cal. Supreme Court no. S126182, Cal.S.Ct., June 20, 2005): Blakely does not apply to California's Determinate Sentencing Law. There is no federal constitutional right to a jury trial or proof byeond a reasonable doubt for facts used at sentencing to impose the upper term or to impose sentences consecutively.

  • Cert. Petition filed in Black II Aug. 24, 2007, U.S. Supreme Court no. 07-6140: MS Word
  • California Supreme Court Opinion: People v. Black II (filed July 19, 2007)
  • Cal. Supreme Court Docket: S126182
  • AG's Post-Cunningham Supp. Respondent's Brief (filed Mar. 14, 2007; posted Mar. 16, 2007) (PDF)
  • Appellant's Post-Cunningham Supplemental Opening Brief (filed Mar. 15, 2007; posted Mar. 16, 2007) (Word)
  • Feb. 21, 2007: supplemental briefing ordered on "(1) Is there any violation of the defendant's Sixth Amendment rights under Cunningham if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities - in the present case, for example, by the defendant's prior convictions or by the jury's finding that the offense involved force or fear - even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or\ her discretion to select among the three sentences for which the defendant is eligible? (2) Does Cunningham affect this court's conclusion in People v. Black (2005) 35 Cal.4th 1238, 1261-1264, that Blakely v. Washington (2004) 542 U.S.296 does not apply to the imposition of consecutive sentences under Penal Code section 669?"
  • Feb. 20, 2007: U.S. Supreme Court granted certiorari, vacated the judgment and remanded for reconsideration in light of Cunningham.
  • Pet. for cert., no. 05-6793, filed Sept. 28, 2005; brief in opp. filed 12/16/05)
  • People v. Black, no. S126182; State Supreme Court Opinion (June 20, 2005)
  • Appellant's Supp Opening Brief (addressing Booker)(also in WP and MS Word)
  • CACJ’S Brief on Merits Supporting Black (also in WP and MS Word)
  • Orange County PD's Amicus Brief on the Merits (also in WP and MS Word)
  • Appellant's Reply Brief on the Merits (also in WP and MS Word
  • Appellant's Opening Brief on the Merits (also in WP and MS Word)
  • Court of Appeal Opinion
  • Modification of Court of Appeal Opinion

The Five New Cases

People v. French, S148845 (rev. gr. Feb. 7, 2007) (no contest plea)

  • Cal. Supreme Court Opinion filed Mar. 27, 2008
  • Appellant's Reply Brief on the Merits (filed ____; posted Mar. 30) (PDF) (WP)
  • AG's Respondent's Brief on the Merits (filed Mar. 21, posted Mar. 22) (PDF)
  • Appellant's Opening Brief on the Merits (filed Feb. 27; posted Feb. 28, 2007) (PDF ) ( WP)
  • Court of Appeal opinion (3rd Dist.) (Blakely claimed denied on the merits in light of Black and defendant, by entering no contest plea with understanding that court could impose maximum sentence, "is deemed to have admitted that his conduct, as a matter of fact, can support that term.")
  • Petition for Review (PDF) (WordPerfect) (filed Dec. 20, 2006)

People v. Hernandez, S148974 (rev. gr. Feb. 7, 2007) (jury trial)

  • Appellant's Reply Brief on the Merits (filed Mar. 28; posted Mar. 30) (PDF)
  • AG's Respondent's Brief on the Merits (filed Mar. 21; posted Mar. 22) (PDF)
  • Appellant's Opening Brief on the Merits (filed Feb. 27; posted Feb. 28, 2007) PDF
  • Court of Appeal opinion (4th Dist., Div. 1) (Blakely claim waived where defendant was tried in August 2005 and sentenced in October 2005; Blakely challenges to upper term and consecutive sentences fail under Black; any Blakely error was harmless beyond a reasonable doubt because there were no mitingating factors and the aggravating factors fell within the prior conviction exception. ("[T]the court relied on rule 4.421(b), the defendant's background, saying that it provided overwhelming evidence that he should get the upper term, due to repeated violent conduct dangerous to society. These factors included rule 4.421(b)(2), Hernandez's prior convictions were numerous; (b)(4), he was on parole at the time he committed the charged offenses; and (b)(5), his past performance on probation and parole had been unsatisfactory.")

People v. Mvuemba, S149247 (rev. gr. Feb. 7, 2007) (jury trial)

  • Appellant's Reply Brief on the Merits (posted Apr. 4, 2007) (MS Word)
  • AG's Respondent's Brief on the Merits (posted Mar. 22) (PDF)
  • Appellant's Opening Brief on the Merits (posted Feb. 28, 2007) MS Word
  • Court of Appeal opinion (2d Dist., Div. 1) (Blakely challenges to upper term and consecutive sentences rejected on the merits in light of Black; where defendant was sentenced after Black, Blakely claim not waived by failure to object in trial court)
  • Petition for Review (PDF) (Word) (WordPerfect) (filed Jan. 2, 2007)

People v. Pardo, S148914 (rev. gr. Feb. 7, 2007) (jury trial)

  • Appellant's Reply Brief on the Merits (filed Mar. 28; posted Mar. 30) (WP) (PDF)
  • AG's Respondent's Brief on the Merits (filed and posted Mar. 22, 2007) (PDF)
  • Appellant's Opening Brief on the Merits (filed Feb. 27; posted Feb. 28, 2007) (WP) (PDF)
  • Court of Appeal opinion (4th Dist., Div. 2) (Blakely claim denied on the merits in light of Black)
  • Petition for Review (PDF) (Word Perfect) (filed Dec. 20, 2006)

People v. Sandoval, S148917 (rev. gr. Feb. 7, 2007) (jury trial)

  • California Supreme Court Opinion: People v. Sandoval (filed July 19, 2007)
  • Appellant's Reply Brief on the Merits (posted Apr. 4, 2007) (MS Word)
  • AG's Resopndent's Brief on the Merits (posted Mar. 23, 2007) (PDF) (WP)
  • Appellant's Opening Brief on the Merits (posted Feb. 28, 2007) MS Word
  • Court of Appeal opinion (2d Dist., Div. 4) (Blakely challenges to upper term and consecutive sentences rejected on the merits in light of Black)

 

 

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