Recent Decisions
People
v. Black (2005) 35 Cal.4th 1238, 113 P.3d 534, 29 Cal.Rptr.3d 740 (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
California Decisions by Topic
Substantive Issues
Upper Terms Under California's DSL
People
v. Harless (2004) 125 Cal.App.4th 70 (no. H026885,
Cal.Ct.App. 6th Dist., Dec. 20, 2004) review
granted, held for Towne and Black (no.
S131011,
Mar. 23, 2005): (1) The emerging majority view is that under
Blakely the midterm is the statutory maximum absent
the fact of a prior conviction, the jury's finding of an
aggravating factor, or the defendant's admission of one.
(2) One valid factor in aggravation is sufficient to support
the imposition of an upper term, even if other aggravating
factors found by the trial court violate the rule announced
in Blakely.
People
v. White (2004) 124 Cal.App.4th 1417 (no. B166502,
Cal.Ct.App. 2d Dist., Div. 4, Dec. 15, 2004) AG's
pet review granted, held for Towne and Black;
appellant's pet. review denied (no. S130777,
Mar. 23, 2005): Blakely applies to upper-term aggravating
factor fact-finding (expressly rejects Wagener &
Picado).
People
v. Joy (2004) 124 Cal.App.4th 1115 (no. E034071
(Cal.Ct.App. 4/2; Dec. 10, 2004) (opinion
partially published):Majority
(Richli (author) and King): Blakely does not
apply to upper term findings. Concurrence/Dissent
(Gaut): Justice Gaut concurred with all of the majority
opinion, with the exception of the Blakely upper
term argument. He would hold that Blakely applies
to upper term determinations.
People
v. Vu (2004) 124 Cal.App.4th 1060 (no. G033583,
Cal.Ct.App. 4/3, Dec. 9, 2004): (1) Blakely applies
to upper term determination. (2) Current Offense Conduct:
trial court erred in relying on two offense-related
aggravators (planning/sophistication & taking of great
monetary value), but no error in relying on fact it could
have imposed consecutive terms, because this determination
did not require additional fact-finding. (3) Recidivism:
fact of "numerous" prior convictions, including
juvenile adjudications, and fact of "on probation"
come within Almendarez-Torres prior conviction exception
to Apprendi/Blakely, but unsatisfactory performance
on probation does not fall within Almendarez-Torres exception.
People
v. Emerson (2004) 124 Cal.App.4th 171 (no. C045613,
Cal.Ct.App. 3d Dist., Nov. 18, 2004): No constitutional
right to a jury trial on fact of prior conviction used to
impose upper term.
People
v. Ackerman (2004) 124 Cal.App.4th 184 (no. H026899,
Cal.Ct.App. 6th Dist., Nov. 18, 2004) In a Third Strike
case where court partially grants Romero motion and dismisses
one strike, there can't be any Blakely error in court's
imposition of upper term (which is then doubled as 2nd strike).
The resulting sentence is still less than the 25-to-life
max authorized by the third strike plea or verdict (notwithstanding
that sentencing ct had exercised its discretion to dismiss
one of the strikes).
People
v. Juarez (2004) 124 Cal.App.4th 56 (no. B165580,
Cal.Ct.App. 2/7, Nov. 16, 2004) (opinion
partially published; Blakely portion published):
Upper Term: "California’s present basic
sentencing scheme is unconstitutional to the extent and
in the situations where it permits trial judges to impose
upper term sentences based on factual findings, other than
the fact of prior convictions, which the court makes and
which have not been submitted to and found by a jury."
People
v. Ristau (2004) ___ Cal.App.4th ___ (no. H025445,
Cal.Ct.App. 6th Dist., Nov. 10, 2004) (opinion
partially published; Blakely portion unpublished):
Upper term sentence vacated where lack-of-remorse factor
was neither found by jury nor admitted by defendant.
People
v. Picado, no. A102251
(Cal.Ct.App. 1st Dist., Div. 5; Nov. 5, 2004) (opinion
partially published; Blakely portion published):Majority
(Stevens and Gemello): Blakely Does not apply
to upper term findings. Per majority, the upper term is
more like the upper end of the Washington "standard
range" in Blakely, rather than the aggravating
factors used to impose an "exceptional" sentence.
The majority makes much of the idea that California aggravating
factors are to guide "discretion" rather than
"factfinding." Concurrence/Dissent
(Jones): Justice Jones concurred with all of the majority
opinion, including the Blakely consecutive sentence
issue, with the exception of the Blakely upper term
argument. She would hold that Blakely applies to
upper term determination. By virtue of section 1170(b),
the mid-term must be deemed the maximum which can be imposed
without additional factfinding by jury.
People
v. Calhoun (2004) 123 Cal.App.4th 1031 (no. D042645,
Cal.Ct.App. 4th Dist., Div. 1; Nov. 2, 2004): In dicta,
the Court of Appeal held that there was no Blakely error
in imposing upper terms because the sole aggravating factor---multiple
victims---was found true by the jury, as reflected by the
guilty verdicts on two counts involving different victims.
(The court, however, reversed the imposition of the upper
terms on the ground that the multiple-victim aggravating
factor does not apply where there is just one victim per
count.)
People
v. Haynes, no. A103248,
Cal.Ct.App. 1st Dist., Div. 2, Oct. 25, 2004 (unpublished
dicta): prior convictions "of increasing
seriousness" aggravating factor stems from fact of
prior conviction, but requires additional finding of "increasing
seriousness," which "appear to us to require a
jury determination and proof beyond a reasonable doubt."
People
v. Wagener (2004) 123 Cal.App.4th 424 (no. D042896,
Cal.Ct.App. 4th Dist., Div. 1; Oct. 22, 2004), rev.
granted, held for Black and Towne (no.
S129579,
Jan. 12, 2005): Majority
(Benke and Irion): there is no right to a jury trial
on aggravating factors: "the 'aggravating' facts must
be characterized as 'sentencing factors' that operate within
a range and thus do not implicate the right to jury determination."
Dissent
(McDonald): "The imposition of the upper term in this
case was not permissible under Blakely because it
was based on facts not admitted by defendant or found true
by the jury."
People
v. Fernandez (2004) 123 Cal.App.4th 137 (no. E034306,
Cal.Ct.App. 4th Dist., Div. 2; Oct. 19, 2004): Following
Court Trial, No Blakely Upper Term Error. Judge was
authorized to find aggravating factors because defendants
"waived their right to a jury trial and agreed to allow
the court to decide their guilt or innocence as well as
their sentences." (Citing Early.)
People
v. Jones (2004) 123 Cal.App.4th 62 (no. C045277
Cal.Ct.App. 3d Dist., Oct. 18, 2004) (opinion
partially published; Blakely portion published)
(rehearing granted Nov. 2,
2004): Defendant's acknowledgement in plea form that he
could be sentenced to a max of 10 years constituted an admission
of facts necessary for imposition of upper term. No Blakely
violation.
People
v. Davey (2004) 122 Cal.App.4th 1548 (no. A102885,Cal.Ct.App. 1st Dist., Div. 2; Oct. 13, 2004) (opinion
partially published; Blakely portion unpublished):
Blakely applies to California DSL aggravating factor
findings, citing Butler.
People
v. Jaffe (2004) 122 Cal.App.4th 1559 (no. H026265,
Cal.Ct.App. 6th Dist.; Oct. 13, 2004) (opinion
partially published; Blakely portion published):
Upper term: Blakely applies to California
DSL aggravating factor findings.Effect of Admissions
at Sentencing: because, at sentencing, defendant admitted
two aggravating factors: that he had been to prison and
that he was on parole at the time of the curren offense,
there was no Blakely error. (Note: in this pre-Blakely
case, it does not appear that such admissions were
taken with advisements.) Fact that other factors were not
admitted made no difference: "Since the four year upper
term was the statutory maximum for Blakely purposes
based on the facts admitted by defendant, defendant cannot
complain about the sentencing court also relying on other
facts as additional justification for this upper term."
People
v. Vaughn (2004) 122 Cal.App.4th 1363 (no. B165489,
Cal.Ct.App. 2d Dist., Div. 4; Oct. 5, 2004), review
granted, held for Towne and Black (no.
S129050,
Dec. 15, 2004): no Blakely violation in imposition
of upper term because aggravating factors---multiplicity
and violence of offenses---were inherent in jury's verdict.
(Note: although not discussed in the opinion, any state-law
dual use argument was presumably waived under Scott.)
People
v. Armstrong, no. B169138
(Cal.Ct.App. 2d Dist., Div. 1; Sept. 29, 2004) (Unpublished);
rev. granted, held for Towne &
Black (no. S128933,
Dec. 15, 2004): "Under California’s determinate
sentencing law, the maximum sentence a trial court may impose
without any additional findings is the middle term." Defendants
upper term sentences for robbery reversed; remanded for
resentencing.
People
v. Butler (2004) 122 Cal.App.4th 910, as modified
(no. A101799
Cal.Ct.App. 1st Dist.; filed Sept. 27, 2004, modified
Oct. 13, 2004), rev. gr., held for
Towne and Black (no. S129000,
Dec. 15, 2004): Middle term is maximum sentence without
additional findings and "the court violated Blakely
because four of the aggravating factors that it articulated
... did not relate to a prior conviction and ... were additional
findings made by the court rather than by a jury."
People
v. Barnes (2004) 122 Cal.App.4th 858 (no. H026137,
Cal.Ct.App. 6th Dist.; Sept. 24, 2004);
rev. gr., held for Towne and Black
(no. S128931,
Dec. 15, 2004): "Except for the alleged enhancements,
this midterm was arguably defendant’s maximum penalty"
(citing George -- see below). But, no Blakely
violation. Actual sentence for the offense plus enhancements
(5 years) was less than total maximum exposure for offense
and enhancements (11 years) authorized by jury verdict on
offense and admissions on enhancements made following jury
waiver. (Maximum exposure was based upon 4-year middle term
for offense, two 3-year HS 11370.2 enhancements, and one
1-year 667.5(b) prison prior enhancement; actual 5-year
sentence was based upon 4-year upper term + 1-year prison
prior, court struck 11370.2 enhancements).
People
v. Lemus (2004) 122 Cal.App.4th 614 (no. D042549,
Cal.Ct.App. 4th Dist., Div. 1, Sept. 21, 2004); AG's
pet. rev. gr., held for Black & Towne; Appellant's pet.
for rev denied (no. S128771,
Dec. 1, 2004):
relying on George, Blakely applies to fact-finding
underlying upper term decision (no recidivist factors in
this case). (Note: this was a 2-1 decision; majority
relied heavily on George (see below) for the waiver
and error analysis (George was decided by the same
division, but the George panel consisted of entirely
different judges than those deciding this case); Justice
Benke dissented, expressing view that Blakely does
not apply to upper term fact-finding.)
People
v. Earley (2004) 122 Cal.App.4th 542 (no. E033600,
4th Dist., Div. 2 (Sept. 20, 2004); no. S128423
pet. for rev. denied w/o prej. to any relief D might be
entitled after Black and Towne are decided):
no error in imposition of upper term where one of the aggravating
factors was for having suffered a prior prison term, the
defendant waived his right to a jury trial on the five prison
prior allegations, the court determined such prior prison
term allegations by applying the reasonable doubt standard,
and the court imposed only four of the five one-year prison
term enhancements.
People
v. George (2004) 122 Cal.App.4th 419 (No. D042980,
Cal.Ct.App. 4/1; Sept. 15, 2004), review
granted, held for Black & Towne (no.
S128582,
Dec. 15, 2004): (1) Blakely applies to upper term
determination; (2) Blakely does not apply to on-probation-at-time-of-offense
factor, but does apply to four other aggravating factors,
including poor performance on probation
People
v. Perry, no. A104398
(Cal.Ct.App. 1/2, Aug. 31, 2004) (Unpublished):
trial court erred in imposing upper term based on factors
not found by jury) (rehearing granted).
Recidivist Factors
People
v. Vu (2004) 124 Cal.App.4th 1060 (no. G033583,
Cal.Ct.App. 4/3, Dec. 9, 2004): fact of "numerous"
prior convictions, including juvenile adjudications, and
fact of "on probation" come within Almendarez-Torres
prior conviction exception to Apprendi/Blakely,
but unsatisfactory performance on probation does not fall
within Almendarez-Torres exception.
People
v. Emerson (2004) 124 Cal.App.4th 171 (no. C045613,
Cal.Ct.App. 3d Dist., Nov. 18, 2004): (1) No constitutional
right to a jury trial on fact of prior conviction; (2) assuming
Blakely error in relying on prior prison term and
parole performance in imposing upper term, such error was
harmless, under Chapman, in light of number of prior
convictions.
People
v. Haynes, no. A103248,
Cal.Ct.App. 1st Dist., Div. 2, Oct. 25, 2004 (unpublished
dicta): prior convictions "of increasing
seriousness" aggravating factor stems from fact of
prior conviction, but requires additional finding of "increasing
seriousness," which "appear to us to require a
jury determination and proof beyond a reasonable doubt."
People
v. Fernandez (2004) 123 Cal.App.4th 137 (no. E034306,
Cal.Ct.App. 4th Dist., Div. 2; Oct. 19, 2004): Blakely
"Probably" Does Not Apply to Single
Recidivist Factor: "pattern of regular or increasing
criminal conduct."
People
v. Jaffe (2004) 122 Cal.App.4th 1559 (no. H026265,
Cal.Ct.App. 6th Dist.; Oct. 13, 2004) (opinion
partially published; Blakely portion published):
Recidivism: "the phrase 'the fact of a prior
conviction'" does not "have a broad meaning including
all recidivist circumstances," but it might include
the fact of a prison term "if the documents relied
on by the trial judge reflect a prison commitment as well
as a conviction." The court did not decide whether
the fact of being "on parole" "is another
fact of his prior conviction."
People
v. Butler (2004) 122 Cal.App.4th 910, as modified
(no. A101799
Cal.Ct.App. 1st Dist., Div. 2; filed Sept. 27, 2004, modified
Oct. 13, 2004), rev. gr., held for
Towne and Black (no. S129000,
Dec. 15, 2004): Recidivist Factor Dicta: "We recognize
that, in some cases, extrinsic facts relating to a recidivist
aggravating circumstance may implicate Apprendi."
People
v. Earley (2004) 122 Cal.App.4th 542 (no. E033600,
4th Dist., Div. 2; Sept. 20, 2004): Almendarez-Torres "is not specifically
relevant" where defendant waived his right to a jury trial
on prior conviction allegations and court determined such
allegations by applying the reasonable doubt standard.
People
v. Garcia, No. A102595
(Cal.Ct.App. 1/1; Sept. 17, 2004) (Unpublished),
rev. denied w/o prej. pending Black
and Towne (no. S128558,
Dec. 1, 2004): Citing Almendarez-Torres, Court holds
that Blakely does not apply to the following recidivist-based
factors: "numerous prior convictions, three prior separate
prison terms, being on parole at the time of the crime,
and unsatisfactory prior performance on probation and parole."
People
v. George (2004) 122 Cal.App.4th 419 (No. D042980,
Cal.Ct.App. 4/1; Sept. 15, 2004), review
granted, held for Black & Towne (no.
S128582,
Dec. 15, 2004): Blakely does not apply to on-probation-at-time-of-offense
factor, but does apply to poor performance on probation.
People
v. Cairati, no. A104764 (Cal.Ct.App. 1/4, Aug. 19,
2004) (Unpublished order denying
rehearing), rev. denied w/o prej.
pending Black and Towne (no. S127537,
Oct. 13, 2004): Numerous prior convictions aggravating factor
comes within Almendarez-Torres.
Weighing of Factors
People
v. Vu (2004) 124 Cal.App.4th 1060 (no. G033583,
Cal.Ct.App. 4/3, Dec. 9, 2004): No constitutional right
to a jury weighing the aggravating and mitigating circumstances.
Consecutive Sentences
People
v. White (2004) 124 Cal.App.4th 1417 (no. B166502,
Cal.Ct.App. 2d Dist., Div. 4, Dec. 15, 2004) AG's
pet review granted, held for Towne and Black;
appellant's pet. review denied (no. S130777,
Mar. 23, 2005): Blakely
does not apply to California's consecutive sentencing
scheme.
People
v. Overby (2004) 124 Cal.App.4th 1237 (no. B166718,
Cal.Ct.App. 2d Dist., Div. 7, Dec. 13, 2004) (opinion
partially published; Blakely portion---including
dissent---unpublished): Majority
(Zelon & Woods): (1) no waiver for pre-Blakely sentencing;
(2) Apprendi and Blakely do not apply to California's
consecutive sentencing scheme.(3) The majority, without
discussing Blakely also found no section 654 violation
in the separate punishment of burglarly and robbery because
he had separate intents. Dissent
(Johnson): the question, under section 654, of whether the
defendant had multiple objectives in committing the separte
offenses is a question for the jury.
People
v. Navarro (2004) 124 Cal.App.4th 1175 (no. F043826,
Cal.Ct.App. 5th Dist., Dec. 13, 2004) (opinion
partially published; Blakely portion published):
(1) Imposition of consecutive sentences does not violate
Blakely where facts used by trial judge in imposing
consecutive sentences---separate acts, separate victims,
separate occasions---were contained in jury's verdict. (2)
court "need not decide ... whether Blakely should
be applied to decisions to impose consecutive sentences
...."
People
v. Prieto (2004) 124 Cal.App.4th 941 (no. B172963,
Cal.Ct.App. 2d Dist., Div. 6, Dec. 7, 2004): No constitutional
right to a jury trial and proof beyond a reasonable doubt
on decision to impose full-term consecutive sentences on
sex offenses under section 667.6(c) of the Penal Code.
People
v. Picado, no. A102251
(Cal.Ct.App. 1st Dist., Div. 5; Nov. 5, 2004) (opinion
partially published; Blakely portion published):
Majority
(Stevens and Gemello): No Blakely error in imposition
of consecutive sentences. Concurrence/Dissent
(Jones): Justice Jones concurred with the majority's
Blakely consecutive sentence holding.
People
v. Dalby, no. C041880
(Cal.Ct.App. 3d Dist.; Nov. 2, 2004):Consecutive Sentencing:
"the rule of Apprendi and Blakely does
not apply to California's consecutive sentencing scheme."
People
v. Davey (2004) 122 Cal.App.4th 1548 (no. A102885,
Cal.Ct.App. 1st Dist., Div. 2; Oct. 13, 2004) (opinion
partially published; Blakely portion unpublished):
Blakely does not apply to concurrent v. consecutive determination,
agreeing with Sykes, Ochoa, Sample,
and Vaughn.
People
v. Jaffe (2004) 122 Cal.App.4th 1559 (no. H026265,
Cal.Ct.App. 6th Dist.; Oct. 13, 2004) (opinion
partially published; Blakely portion published):
Consecutive Sentences: Blakely does not apply
to concurrent v. consecutive determination.
People
v. Vaughn (2004) 122 Cal.App.4th 1363 (no. B165489,
Cal.Ct.App. 2d Dist., Div. 4; Sept. 29, 2004), review
granted, held for Towne and Black (no.
S129050,
Dec. 15, 2004): Blakely does not apply to imposition
of consecutive sentences ("Although our laws permit
the trial judge to order the separate sentences imposed
for each crime to run concurrently, its decision in this
regard is similar to the discretion afforded under section
654, and results in a lessening of the prescribed sentence--not
an enhancement.")
People
v. Shaw (2004) 122 Cal.App.4th 453 (no. C043228,
Cal.Ct.App. 3d Dist., Sept. 16, 2004), rev.
denied (no. S128749,
Dec. 15, 2004): "imposition of consecutive sentences
does not violate the proscription of Apprendi and
Blakely where the basis for that sentencing choice
is supported by the express findings in the jury’s
verdicts." The court declined to reached broader questions
of the applicability of Blakely to section 654 and
consecutive sentencing determinations.
People
v. Sample (2004) 122 Cal.App.4th 206 (No. C044445,
Cal.Ct.App. 3; Sept. 13, 2004) ; rev.
gr., held for Towne and Black (no.
S128561,
Dec. 1, 2004): Blakely does not apply to consecutive
sentencing factors.
People
v. Ochoa (2004) 121 Cal.App.4th 1551 (no. D042215,
Cal.Ct.App. 4/1, Sept. 2, 2004);
rev. gr. & briefing deferred (no. S128417,
Nov. 17, 2004)): No Right to a Jury Trial on Consecutive
Sentence Fact-Finding).
People
v. Vonner (2004) 121 Cal.App.4th 801 (no. B169476,
Cal.Ct.App. 2/6, Aug. 16, 2004); rev.
gr. & briefing deferred (no. S127824,
Oct. 20, 2004): Blakely does not apply to discretionary
imposition of full-term for consecutive sentence on specified
sex offenses under PC 667.6(c)).
People
v. Sykes (2004) 120 Cal.App.4th 1331 (no. B168042,
Cal.Ct.App. 2/5, July 28, 2004); rev.
gr. & briefing deferred (no. S127529,
Oct. 20, 2004): Blakely does not apply to separate
occasion determination for mandatory consecutive sentences
in Three Strikes case.
Penal Code § 654
People
v. Overby (2004) 124 Cal.App.4th 1237 (no. B166718,
Cal.Ct.App. 2d Dist., Div. 7, Dec. 13, 2004) (opinion
partially published; Blakely portion---including
dissent---unpublished): Majority
(Zelon & Woods): (1) no waiver for pre-Blakely sentencing;
(2) Apprendi and Blakely do not apply to California's
consecutive sentencing scheme.(3) The majority, without
discussing Blakely also found no section 654 violation
in the separate punishment of burglarly and robbery because
he had separate intents. Dissent
(Johnson): the question, under section 654, of whether the
defendant had multiple objectives in committing the separte
offenses is a question for the jury.
People
v. Shaw (2004) 122 Cal.App.4th 453 (no. C043228,
Cal.Ct.App. 3d Dist., Sept. 16, 2004), rev.
denied (no. S128749,
Dec. 15, 2004): "imposition of consecutive sentences
does not violate the proscription of Apprendi and
Blakely where the basis for that sentencing choice
is supported by the express findings in the jury’s
verdicts." The court declined to reached broader questions
of the applicability of Blakely to section 654 and
consecutive sentencing determinations.
People
v. Spencer, no. A098944 (Cal.Ct.App. 1/4, July 26,
2004, unpublished order denying
rehearing), rev. denied w/o prej pending
Black and Towne (no. S126905,
Oct. 13, 2004): Blakely does not apply to PC 654
fact-finding.
Penal Code § 667(c) & (d) (full-term
consec. for sex offenses)
People
v. Saphao (2004) 126 Cal.App.4th 935 (no. A103716,
Cal.Ct.App. 1st Dist., Div. 2, Mar. 29, 2005) (petitions
for rev. pending, no. S132399):
no right to a jury trial on "separate occasions"
finding under section 667.6(d), which mandates full-term
consecutive sentences for certain sex offenses.
People
v. Prieto (2004) 124 Cal.App.4th 941 (no. B172963,
Cal.Ct.App. 2d Dist., Div. 6, Dec. 7, 2004): No constitutional
right to a jury trial and proof beyond a reasonable doubt
on decision to impose full-term consecutive sentences on
sex offenses under section 667.6(c) of the Penal Code.
People
v. Vonner (2004) 121 Cal.App.4th 801 (no. B169476,
Cal.Ct.App. 2/6, Aug. 16, 2004); rev.
gr. & briefing stayed (no. S127824,
Oct. 20, 2004): Blakely does not apply to discretionary
imposition of full-term for consecutive sentence on specified
sex offenses under PC 667.6(c)).
Penal Code § 667.61 (One Strike Law)
People
v. Benitez (2004) 127 Cal.App.4th 1274 (no. C044648,
Cal.Ct.App. 3d Dist., March 29, 2005): No constitutional
right to a jury trial and proof beyond a reasonable doubt
on question of whether the defendant is eligible for probation
for a violation of section 288, subd. (a), such that the
current offense is not a predicate offense for One Strike
sentencing. Under subdivision (c)(7) of section 667.61,
a section 288, subd. (a), violation is a qualifying offense
"unless the defendant qualifies for probation under
subdivision (c) of Section 1203.066."
People
v. Saphao (2004) 126 Cal.App.4th 935 (no. A103716,
Cal.Ct.App. 1st Dist., Div. 2, Mar. 29, 2005) (petitions
for rev. pending, no. S132399):
defendant has a right to a jury trial on the question of
whether sex offenses were committed on a "single occasion"
such that multiple one-strike sentences are barred.
Penal Code § 288.5 (Continuous Sexual
Abuse)
People
v. Dalby, no. C041880
(Cal.Ct.App. 3d Dist.; Nov. 2, 2004):Sentencing on Alternative
Counts (288.5 v. specific counts): because jury found
defendant guilty of specific counts of child sexual abuse
and three counts of continuous child sexual abuse, sentencing
court's decision to sentence on individual counts rather
than continuous abuse counts (288.5) did not violate Blakely.
Three Strikes
People
v. Murphy (2004) 124 Cal.App.4th 859 (no. C045738,
Cal.Ct.App. 3d Dist., Dec. 7, 2004): No constitutional right
to a jury trial on determination of Romero motion
to strike prior conviction alleged under the Three Strikes
Law.
People
v. Ackerman (2004) 124 Cal.App.4th 184 (no. H026899,
Cal.Ct.App. 6th Dist., Nov. 18, 2004) In a Third Strike
case where court partially grants Romero motion and dismisses
one strike, there can't be any Blakely error in court's
imposition of upper term (which is then doubled as 2nd strike).
The resulting sentence is still less than the 25-to-life
max authorized by the third strike plea or verdict (notwithstanding
that sentencing ct had exercised its discretion to dismiss
one of the strikes).
People
v. Sykes (2004) 120 Cal.App.4th 1331 (no. B168042,
Cal.Ct.App. 2/5, July 28, 2004); rev.
gr. & briefing stayed (no. S127529,
Oct. 20, 2004): Blakely does not apply to separate
occasion determination for mandatory consecutive sentences
in Three Strikes case.
Proposition 36
People
v. Dove (2004) 124 Cal.App.4th 1 (no. E033907,
Cal.Ct.App. 4/2, Nov. 15, 2004) (opinion
partially published; Blakely portion published):
where defendant was charged with possession for sale and
transportation, but was acquitted of possession for sale
and convicted only of simple possession and transportation,
there is no Blakely right to a jury trial or proof
beyond a reasonable doubt on the question, under Proposition
36, of whether the defendant was convicted of a non-violent
drug possession offense.
Appellate Review
Waiver
People
v. Saphao (2004) 126 Cal.App.4th 935 (no. A103716,
Cal.Ct.App. 1st Dist., Div. 2, Mar. 29, 2005) (petitions
for rev. pending, no. S132399):
Blakely error not waived.
People
v. Harless (2004) 125 Cal.App.4th 70 (no. H026885,
Cal.Ct.App. 6th Dist., Dec. 20, 2004) review
granted, held for Towne and Black (no.
S131011,
Mar. 23, 2005): A claim of Blakely
error is not waived or forfeited by trial counsel's failure
to make a timely Apprendi objection before the United
States Supreme Court announced its decision in Blakely.
People
v. White (2004) ___ Cal.App.4th ___ (no. B166502,
Cal.Ct.App. 2d Dist., Div. 4, Dec. 15, 2004): no waiver
for pre-Blakely sentencing following jury trial.
People
v. Overby (2004) 124 Cal.App.4th 1237 (no. B166718,
Cal.Ct.App. 2d Dist., Div. 7, Dec. 13, 2004) (opinion
partially published; Blakely portion---including
dissent---unpublished): Majority
(Zelon & Woods): (1) no waiver for pre-Blakely sentencing;
(2) Apprendi and Blakely do not apply to California's
consecutive sentencing scheme.(3) The majority, without
discussing Blakely also found no section 654 violation
in the separate punishment of burglarly and robbery because
he had separate intents. Dissent
(Johnson): the question, under section 654, of whether the
defendant had multiple objectives in committing the separte
offenses is a question for the jury.
People
v. Joy (2004) 124 Cal.App.4th 1115 (no. E034071
(Cal.Ct.App. 4/2; Dec. 10, 2004) (opinion
partially published):Majority
(Richli (author) and King): waiver doctrine did not
bar the Blakely claim. Concurrence/Dissent
(Gaut): Justice Gaut concurred with this aspect of the
majority opinion.
People
v. Vu (2004) 124 Cal.App.4th 1060 (no. G033583,
Cal.Ct.App. 4/3, Dec. 9, 2004): No waiver because defendant
was sentenced prior to Blakely.
People
v. Emerson (2004) 124 Cal.App.4th 171 (no. C045613,
Cal.Ct.App. 3d Dist., Nov. 18, 2004) Majority
(Hull and Morrison): reaches merits without discussing wavier.
Concurrence
(Scotland): Blakely claim is waived. Cotton
establishes that Apprendi error can be forfeited.
Futility exception to waiver doctrine does not apply because
a Blakely claim is essentially an Apprendi
claim and Apprendi was decided four years ago.
People
v. Juarez (2004) 124 Cal.App.4th 56 (no. B165580,
Cal.Ct.App. 2/7, Nov. 16, 2004) (opinion
partially published; Blakely portion published):
(1) No wavier under People v. Scott because
an objection would have been futile, the error was "plain
error," and the court has the discretion to reach the
claim even if it was forfeited. (2) No forfeit under
U.S. v. Cotton: "these were not only 'plain errors'
but errors that “seriously affected” the 'fairness'
and 'integrity' and possibly even the 'public reputation'of
this judicial proceeding."
People
v. Ristau (2004) ___ Cal.App.4th ___ (no. H025445,
Cal.Ct.App. 6th Dist., Nov. 10, 2004) (opinion
partially published; Blakely portion unpublished):
No waiver (cites Jaffe).
People
v. Picado, no. A102251
(Cal.Ct.App. 1st Dist., Div. 5; Nov. 5, 2004) (opinion
partially published; Blakely portion published):
Majority
(Stevens and Gemello): (1) No Waiver: in light
of state of law prior to Blakely, there was no knowing
and intelligent waiver of right to a jury trial as to sentence.
Concurrence/Dissent
(Jones): Justice Jones concurred with this aspect of
the majority opinion.
People
v. Dalby, no. C041880
(Cal.Ct.App. 3d Dist.; Nov. 2, 2004): "Because defendant
raises an important question of constitutional law, we shall
excercise our discretion to address the merits of his claims."
People
v. Fernandez (2004) 123 Cal.App.4th 137 (no. E034306,
Cal.Ct.App. 4th Dist., Div. 2; Oct. 19, 2004): No waiver.
no waiver of Blakely claim (citing Vaughn
and George): "appellant cannot have forfeited
or waived a legal argument that was not recognized at the
time of his trial."
People
v. Davey (2004) 122 Cal.App.4th 1548 (no. A102885,
Cal.Ct.App. 1st Dist., Div. 2; Oct. 13, 2004) (opinion
partially published; Blakely portion unpublished):
no waiver of Blakely claim, citing Butler.
People
v. Jaffe (2004) 122 Cal.App.4th 1559 (no. H026265
(Cal.Ct.App. 6th Dist.; Oct. 13, 2004) (opinion
partially published; Blakely portion published):no
waiver of Blakely claim, Cotton not dispositive.
People
v. Vaughn (2004) 122 Cal.App.4th 1363 (no. B165489,
Cal.Ct.App. 2d Dist., Div. 4; Oct. 5, 2004), review
granted, held for Towne and Black (no.
S129050,
Dec. 15, 2004): no waiver of Blakely claim: "Appellant
cannot have forfeited or waived a legal argument that was
not recognized at the time of his trial" (agreeing
with George and Barnes).
People
v. Butler (2004) 122 Cal.App.4th 910, as modified
(no. A101799
Cal.Ct.App. 1st Dist.; filed Sept. 27, 2004, modified
Oct. 13, 2004), rev. gr., held for
Towne and Black (no. S129000,
Dec. 15, 2004): No waiver. Objection would have been
futile and court has discretion to reach merits (questioning
application of fofeiture doctrine in light of constitutional
implications of error at issue). Note: in modification,
court, disagreeing with Sample, held that Cotton
was inapplicable and stood by its position that there was
no waiver of Blakely error.
People
v. Barnes (2004) 122 Cal.App.4th 858 (no. H026137,
Cal.Ct.App. 6th Dist.; Sept. 24, 2004) rev.
gr., held for Towne and Black (no.
S128931,
Dec. 15, 2004): "The holding of Blakely was
sufficiently unforeseeable that we find no forfeiture due
to defendant’s failure to object at sentencing."
People
v. Lemus (2004) 122 Cal.App.4th 614 (no. D042549,
Cal.Ct.App. 4th Dist., Div. 1, Sept. 21, 2004); AG's
pet. rev. gr., held for Black & Towne; Appellant's pet.
for rev denied (no. S128771,
Dec. 1, 2004): no waiver in light of state
of law at time of sentencing. (Note: this was a 2-1 decision;
majority relied heavily on George (see below) for the waiver
analysis (George was decided by the same division, but the
George panel consisted of entirely different judges than
those deciding this case); Justice Benke dissented, expressing
view that Blakely does not apply to upper term fact-finding.)
People
v. Shaw (2004) 122 Cal.App.4th 453 (no. C043228,
Cal.Ct.App. 3d Dist., Sept. 16, 2004), rev.
denied (no. S128749,
Dec. 15, 2004): "Because this issue raises a question
of constitutional law that we may resolve from the record
before us, we shall exercise our discretion and consider
the merits of the claim. (People v. Marchand (2002)
98 Cal.App.4th 1056, 1061.)" (Quote is from footnote
9 in Shaw.)
People
v. George (2004) 122 Cal.App.4th 419 (No. D042980,
Cal.Ct.App. 4/1; Sept. 15, 2004), review
granted, held for Black & Towne (no.
S128582,
Dec. 15, 2004): No waiver of upper term argument in light
of state of law at time of sentencing.
People
v. Sample (2004) 122 Cal.App.4th 206 (No. C044445,
Cal.Ct.App. 3, Sept. 13, 2004); rev.
gr., held for Towne and Black (no.
S128561,
Dec. 1, 2004) : Waiver found, applying federal criminal
procedure "plain error" rule. (Contrast People v. Ochoa,
infra (finding no waiver due to futility of objection).
People
v. Ochoa (2004) 121 Cal.App.4th 1551 (no. D042215,
Cal.Ct.App. 4/1, Sept. 2, 2004); rev.
gr. & briefing deferred (no. S128417,
Nov. 17, 2004): No waiver in light of the state of the law
at time of sentencing.
People
v. Henry, no. B169274 (Cal.Ct.App. 2/5, Aug. 9,
2004) (Unpublished), rev.
denied w/o prej. pending Black and Towne
(no. S127283,
Oct. 13, 2004): Blakely claim forfeited by failure
to request jury trial on aggravating factors.
Certificates of Probable Cause
People
v. Joy (2004) 124 Cal.App.4th 1115 (no. E034071
(Cal.Ct.App. 4/2; Dec. 10, 2004) (opinion
partially published):Majority
(Richli (author) and King):In the unpublished
portion of the opinion, the majority held that no certificate
of probable cause required to raise Blakely claim
on appeal following revocation of probation, where original
plea bargain put no limitation on sentence, except an initial
promise of probation w/max of 120 days. Concurrence/Dissent
(Gaut): Justice Gaut concurred with this aspect of the
majority opinion.
Prejudice
People
v. Saphao (2004) 126 Cal.App.4th 935 (no. A103716,
Cal.Ct.App. 1st Dist., Div. 2, Mar. 29, 2005) (petitions
for rev. pending, no. S132399):
Chapman prejudice standard applies to Blakely/Apprendi
error.
People
v. Harless (2004) 125 Cal.App.4th 70 (no. H026885,
Cal.Ct.App. 6th Dist., Dec. 20, 2004) review
granted, held for Towne and Black (no.
S131011,
Mar. 23, 2005): One valid factor in aggravation is sufficient
to support the imposition of an upper term, even if other
aggravating factors found by the trial court violate the
rule announced in Blakely.
People
v. White (2004) 124 Cal.App.4th 1417 (no. B166502,
Cal.Ct.App. 2d Dist., Div. 4, Dec. 15, 2004) AG's
pet review granted, held for Towne and Black;
appellant's pet. review denied (no. S130777,
Mar. 23, 2005): (1) "disagree
with the courts in Jaffe and Barnes to the
degree that they support a conclusion that the existence
of a single aggravating factor found by the jury or admitted
by the defendant avoids Blakely and automatically
justifies an upper term sentence." (2) where "the
court relied almost entirely on aggravating factors that
did not involve recidivism," "we cannot say on this
record that the court would have imposed the upper term
in the absence of the inappropriate factual findings concerning
the crime and the victim." (Not clear whether court was
applying Watson or Chapman.)
People
v. Vu (2004) 124 Cal.App.4th 1060 (no. G033583,
Cal.Ct.App. 4/3, Dec. 9, 2004): two-step prejudice analysis
(see Butler) applies: (i) under Chapman, can't
be certain, BRD, jury would have found aggravating factors;
(ii) under Watson, middle term was reasonably probable.
People
v. Emerson (2004) 124 Cal.App.4th 171 (no. C045613,
Cal.Ct.App. 3d Dist., Nov. 18, 2004): assuming Blakely
error in relying on prior prison term and parole performance
in imposing upper term, such error was harmless, under Chapman,
in light of number of prior convictions.
People
v. Juarez (2004) 124 Cal.App.4th 56 (no. B165580,
Cal.Ct.App. 2/7, Nov. 16, 2004) (opinion
partially published; Blakely portion published):
(1) Chapman harmless error review applies;
Blakely error is not per se reversible. (2) Reversal
required: evidence of victim vulnerability and planning
and sophistication not overwhelming.
People
v. Ristau (2004) ___ Cal.App.4th ___ (no. H025445,
Cal.Ct.App. 6th Dist., Nov. 10, 2004) (opinion
partially published; Blakely portion unpublished):
This is the entire prejudice discussion: "The People
contend that if we find Apprendi-Blakely error, we should
find it harmless beyond a reasonable doubt because the jury
would have found at least one aggravating factor if asked
to do so. We decline to engage in such speculation."
People
v. Fernandez (2004) 123 Cal.App.4th 137 (no. E034306,
Cal.Ct.App. 4th Dist., Div. 2; Oct. 19, 2004): Any Blakely
Error As To One Factor Harmless: upper term could
properly be imposed based upon remaining factors (citing
People v. Osband (1996) 13 Cal.4th 622, 728).
People
v. Davey (2004) 122 Cal.App.4th 1548 (no. A102885,
Cal.Ct.App. 1st Dist., Div. 2; Oct. 13, 2004) (opinion
partially published; Blakely portion unpublished):
rejected states argument that "presence of one non-Blakely
aggravating factor entirely insulates a sentence from Blakely
review." Because resentencing was required for
non-Blakely reasons, no need to determine whether Blakely
error was harmless.
People
v. Jaffe (2004) 122 Cal.App.4th 1559 (no. H026265,Cal.Ct.App.
6th Dist.; Oct. 13, 2004) (opinion
partially published; Blakely portion published):
the analysis in this case was not actually identified
as harmless error, but the reasoning has that feel:
because, at sentencing, defendant admitted two aggravating
factors: that he had been to prison and that he was on parole
at the time of the curren offense, there was no Blakely
error. (Note: in this pre-Blakely case, it does
not appear that such admissions were taken with advisements.)
Fact that other factors were not admitted made no difference:
"Since the four year upper term was the statutory maximum
for Blakely purposes based on the facts admitted
by defendant, defendant cannot complain about the sentencing
court also relying on other facts as additional justification
for this upper term."
People
v. Butler (2004) 122 Cal.App.4th 910, as modified
(no. A101799
Cal.Ct.App. 1st Dist.; filed Sept. 27, 2004, modified
Oct. 13, 2004), rev. gr., held for
Towne and Black (no. S129000,
Dec. 15, 2004): Error not prejudicial. Although the
COA could not find, beyond a reasonable doubt (under Chapman),
that a jury would have found the four non-recidivist aggravating
factors true, reversal was not required because appellant
did not challenge the single recidivist-based aggravating
factor (numerous and increasingly serious priors) and there
is no reasonable probability of a lower sentence, particularly
in light of trial court's finding that any one of the aggravating
factors outweighed the lack of mitigating factors.
People
v. Lemus (2004) 122 Cal.App.4th 614 (no. D042549,
Cal.Ct.App. 4th Dist., Div. 1, Sept. 21, 2004); AG's
pet. rev. gr., held for Black & Towne; Appellant's pet.
for rev denied (no. S128771,
Dec. 1, 2004): (1) AG's overwhelming-evidence prejudice
argument "misses the point of Blakely";
"the loss of the jury trial right cannot be found harmless
on the theory that if a jury trial had been held the defendant
would have lost on the issue." (2) Error, in any event,
not harmless; despite egregious current case conduct and
lack of remorse, appellant had no record and upper term
was based on matters not contained in jury verdict. Reversal!
(Note: this was a 2-1 decision; Justice Benke dissented,
expressing view that Blakely does not apply to upper
term fact-finding.)
People
v. Earley (2004) 122 Cal.App.4th 542 (no. E033600,
4th Dist., Div. 2; Sept. 20, 2004): court implicitly finds no prejudice
from any Blakely error in denial of right to a jury
trial on unidentified aggravating factors where there was
no Blakely error with respect to use of a prior prison
term as an aggravating factors: "One prior prison term alone
was a sufficient aggravating circumstance to allow the court
to impose the upper term of three years." (Citing, in a
footnote, People v. Osband (1996) 13 Cal.4th 622, 728.)
People
v. George (2004) 122 Cal.App.4th 419 (No. D042980,
Cal.Ct.App. 4/1; Sept. 15, 2004); review
granted, held for Black & Towne (no.
S128582,
Dec. 15, 2004): "assuming without deciding, that resentencing
is only required if it 'is not [sic] reasonably probable
that a more favorable sentence would have been imposed in
the absence of the error' [citations], we cannot conclude
that the elimination of four of the cited factors would
not have made a difference in the court's sentencing decision
here."
People
v. Perry, no. A104398
(Cal.Ct.App. 1/2, Aug. 31, 2004) (Unpublished)
(Reversal!; trial court erred
in imposing upper based on factors not found by jury).
People
v. Cairati, no. A104764 (Cal.Ct.App. 1/4, Aug. 19,
2004) (Unpublished order denying
reh'g), rev. denied w/o prej. pending
Black and Towne (no. S127537,
Oct. 13, 2004): Because one of several aggravating factors
-- numerous prior convictions -- comes within Almendarez-Torres
exception, any Blakely error was harmless.
People
v. Henry, no. B169274 (Cal.Ct.App. 2/5, Aug. 9,
2004 Unpublished), rev.
denied w/o prej. pending Black and Towne
(no. S127283,
Oct. 13, 2004): Any error harmless because aggravating factors
impliedly found in jury verdicts, including infliction of
GBI by co-defendant.
Retroactivity
In
re Consiglio (2005) 128 Cal.App.4th 511 (no. D045081,
Cal.Ct.App. 4th Dist., Div. 1, Apr. 15, 2005): Blakely
is not retroactive because Apprendi itself isn't
retroactive. Rejects argument that Schiro v. Summerlin
distinguishable since it only involved factfinder rather
than standard of proof.
People
v. Amons (2004) ___ Cal.App.4th ___ (no. A105374,
Cal.Ct.App. 1st Dist., Div. 1, Jan. 11, 2005): (1) Blakely
does not apply retroactively upon revocation of a defendant's
probation to a final sentence that was previously imposed
but suspended during the probationary period. (ESS probation).
(2) Blakely only applies to cases not yet final when the
Blakely opinion was issued. (3) An order granting
probation is a final judgment for purposes of taking an
appeal, and a trial court may not reduce a sentence previously
imposed and suspended. (Notes: The Court assumed Blakely
announced a new rule, without considering whether the new
rule was announced earlier, i.e. in Apprendi. The Court
did not discuss whether the sentence was an "unauthorized"
sentence which could be corrected at any time.)
Relief
People
v. Vu (2004) 124 Cal.App.4th 1060 (no. G033583,
Cal.Ct.App. 4/3, Dec. 9, 2004): No jury trial appears to
be anticipated on remand: "the appropriate remedy is
to vacate the judgment, and remand the matter so the trial
court can again engage in the required weighing process.
For purposes of imposing the upper term, the court may only
consider aggravating circumstances permitted by Blakely
and Apprendi as set forth in this opinion."
Federal Decisions
The compilation of lower federal
court cases previously found here was neither complete nor terribly current. For developments on the federal front, visit USSGuide.com,
the NACDL
Blakely page, the Blakely
Blog (federal cases listed in side-bar), and, of course,
follow the federal court developments at Sentencing
Law and Policy.
