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News from the Director

A Summary of the Holdings of Two California Supreme Court Post-Cunningham Decisions in Jury Trial Cases: Black II and Sandoval.
July 20, 2007

Introduction. Yesterday, July 19, 2007, the California Supreme Court issued unanimous opinions in two post-Cunningham cases: People v. Black, no. S126182 ("Black II") and People v. Sandoval, no. S148917. In Black II, the Court affirmed the sentence, finding no constitutional error. In Sandoval, the Court found reversible error and remanded for resentencing under a remedial sentencing scheme which is identical to the current section 1170(b), as amended by SB 40, i.e. the judge has discretion to select the low, middle or upper term, and no additional fact, beyond the jury verdict, is required for imposition of the upper term.

Below is a summary of the holdings of the two cases on various Blakely-Cunningham issues. Shortly, FDAP will also provide additional analysis, guidance, and sample pleadings. Be sure to check the Web sites of the other appellate projects as well, for their take on Black II and Sandoval, and keep in mind that additional post-Cunningham cases remain pending in the California Supreme Court. In particular, the sole post-Cunningham guilty plea case that is briefed on the merits in the California Supreme Court---People v. French, no. S148845---has not been argued yet and presents issues not decided in Black II and Sandoval. Panel attorneys  who have questions about the effect  of Black II and Sandoval on particular First District cases should contact their project buddy or, alternatively, Jonathan Soglin or Brad O'Connell.

But please note, unless you are facing a situation where you have to file an immediate pleading (e.g., your case is in the pre-AOB stage in the Court of Appeal and the AOB is due right away, and you have a Cunningham argument which needs to be made; or your case is pending in the Court of Appeal and the court has just requested supplemental briefing), it would be better to wait a couple of weeks before contacting your buddy or Jonathan or Brad, so you can first see what the various project web sites, including ours, are showing in the way of advice and/or samples for the particular category of case you have.

Also note that it is not necessary to take immediate action in cases currently pending before the California Supreme Court in a deferred briefing status. The Court's practice is to defer taking any action on grant and hold cases until the lead case is final, which happens 30 days after the opinion issued in the lead case. By that time, the projects will have more specific advice on handling such cases.

Forfeiture. In both cases, the Court rejected the Attorney General's argument that the claims were forfeited for failure to assert the jury-trial and proof-beyond-a-reasonable doubt rights in the sentencing court, finding that any such objection would have been futile either prior to Blakely (Black II, at pp. 8-11) or after Black I (Sandoval, at p. 9, fn.4).

Single-Valid Factor. In Black II, the Court found no error, concluding that the sentencing court relied upon aggravating factors which were either found true by the jury (force or violence) or were related to recidivism (numerous and increasingly serious prior convictions). Under Apprendi, Blakely and Cunningham, the presence of such constitutionally valid factors means there is no right to a jury trial on any other aggravating facts relied upon by the sentencing court. The constitutional protections only attach to facts which are used to raise the maximum possible sentence. The constitutionally-valid factors (force/violence and recidivism) made the upper term the maximum possible term such that the other facts (i.e. current offense conduct not adjudicated by the jury) did not raise the maximum possible sentence. Accordingly, the judge could constitutionally make the additional fact-finding in deciding which term to impose. (Black II, at pp. 11-17.) In other words, rather than view "mixed factor" cases as presenting a prejudice/harmless error question (as many appellate courts have in the months since Cunningham), the California Supreme Court has taken the position that there is no Sixth Amendment error, so long as there is at least one valid factor cited, such as a prior conviction.

Almendarez-Torres Recidivism Exception. In Black II, the Court held that the numerosity and increasing seriousness of the defendant's prior convictions were facts relating to the defendant's recidivism that fell within the prior-conviction exception to the right to a jury trial and proof beyond a reasonable doubt. (Black II, at pp. 20-23.) The Court explained that, "As we recognized in McGee, numerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, at p. 22.) However, the Court has not yet explicitly addressed the status of other recidivist factors, such as probation or parole status at the time of the offense or prior unsatisfactory performance on probation or parole.

Consecutive Sentencing. In Black II, the Court held, as it had in Black I, that there is no right to a jury trial or proof beyond a reasonable doubt on facts used in deciding to run determinate sentences consecutively under Penal Code section 669. (Black II, at pp. 24- 27.)

Harmless Error. In Sandoval, the Court rejected the Attorney General's argument that any error was harmless. (Sandoval, at pp. 10-18.) Following Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546], the Court held that the harmless-beyond-a reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 and Neder v. United States (1999) 527 U.S. 1 applies in determining whether unconstitutional judicial fact-finding at sentencing requires a resentencing. (Sandoval, at pp. 10-11.) The Court explained that the reviewing court must determine "whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury's verdict would have authorized the upper term sentence." (Sandoval, at p. 11.) Significantly, the Court explained that if it can be said, beyond a reasonable doubt, that the jury would have found any one of the aggravating factors true, the error is harmless under Chapman v. California (1967) 386 U.S. 18, and there is no inquiry into whether the other factors, for which there was constitutional error, affected the judge's selection of the term. (Sandoval, at pp. 11-12.) Consequently, in order to obtain a resentencing remand, it is necessary to establish that none of the cited aggravating findings can be deemed harmless under Chapman.  

As with Chapman/Neder analysis of omission of an element, the failure to submit an aggravating factor to the jury cannot be deemed harmless if that factor was contested at trial -- i.e., if the evidence of that factor was in dispute or susceptible to conflicting inferences. The Court also noted a couple of differences between harmless error in the Cunningham context, as compared to harmless error analysis of a generic trial error. First, a reviewing Court cannot assume that the factual showing made to a jury would have been the same as that made at the sentencing hearing. This is because a different standard of proof applied at the constitutionally-defective sentencing hearing. It is also because the court, unlike a jury, selects the sentence and at a proceeding with judicial fact-finding counsel might be more focused on the "the court's overall assessment of defendant's history and conduct" than on the fact-finding on a particular aggravating factor. For these reasons, defense counsel's strategy might have been different had the facts been tried to a jury. Second, the Court also noted "it may difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Sandoval, at p. 13.)

Remedy. In formulating a remedy for the reversible error it found in Sandoval, the Court found it unnecessary to reform section 1170(b) because the Legislature already amended the statute in SB 40. The Court also found it unnecessary to determine whether SB 40 can be applied to cases where the offense was committed prior to the amendment (which turns on whether SB 40 effected a change to substantive criminal law or was merely procedural). Instead, the Court concluded that even if SB 40 does not apply retroactively, the Court would still have the obligation to fashion a remedy. (Sandoval, at pp. 20-21.) In doing so, the Court adopted the procedures found in SB 40 and in the related amendments to the rules of court relating to sentencing: "we direct that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham ... are to be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature." (Sandoval, at p. 21-22, esp. 22.) Under that scheme, when the penal statute provides for three possible terms, "the choice of the appropriate term shall rest within the sound discretion of the court." (Pen. Code sec. 1170(b), as amended by SB 40.) Although the Court said it was not "reforming" the statute, it noted that even if its remedy were "characterized as a limited reformation ... such a reformation is appropriate." (Sandoval, at p. 26.) As the Court explained, the reformation is consistent with the Legislature's goals and the Legislature would have preferred reformation to invalidation of the statute. (Sandoval, at pp. 27-30.) In contrast, the Court concluded that engrafting a right to a jury trial for aggravating factors "would create a sentencing scheme far different from --- and far more complex than --- the one intended by the California Legislature." (Sandoval, at p. 31.)

In adopting the SB 40-like remedy, the Court rejected the defendant's ex post facto and due process arguments. The Court rejected the ex post facto argument on two grounds. First, the Court concluded that the change in law is is neither intended to, nor expected to, increase the sentence for any particular crime. Second, the Court  noted that "the prohibition on ex post facto laws applies only to statutory enactments, not to judicial decisions." (Sandoval, at pp. 34-35.) That distinction is significant because the due process prohibition on an unforseeable "judicial enlargement" of criminal liability or punishment is governed by a less rigid test than the ex post facto clause's ban on legislative increases in punishment. In rejecting the due process argument, the Court noted that "every federal court that has considered the issue has rejected the argument that application of the United States Supreme Court's 'remedial interpretation' of the federal sentencing statutes in [Booker], to cases pending on appeal would deny due process of law." (Sandoval, at p. 37.) The Court then concluded that there was no due process violation in Sandoval and that "the Federal Constitution does not prohibit the application of the revised sentencing process explained above to defendant's whose crimes were committed prior to the date of our decision in the present case." The Court found that due process is satisfied because the penal statute stating the three possible terms (section 193(a) of the Penal Code in Sandoval) puts the defendant on notice that she could receive the upper term sentence.


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