People v. French Decided: Cal. Supreme Court Reverses Upper Term Sentence for Blakely-Cunningham Error in No-Contest Plea Case With a Lid
March 28, 2008
On March 27, 2008, the California Supreme Court decided People v. French, no. S148845, a no-contest plea Blakely-Cunningham upper-term sentence case. In French, the defendant had pleaded no contest with a "lid" and was sentenced under former (pre-SB 40) Penal Code section 1170(b). The Court, in a unanimous opinion authored by Chief Justice George, held that the defendant's Blakely-Cunningham claim was cognizable on appeal without a certificate of probable cause and and not waived, in the absence of an express waiver of the right to a jury trial on the aggravating circumstances. On the merits of the claim, the Court held the defendant had a right to a jury trial and proof beyond a reasonable doubt on facts used to impose an aggravated sentence, as held in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856. The briefs and the court of appeal opinion in French can be found here.
Below is a brief description of the holdings of French, the possible consequences for cases which have been held pending French, and a statement regarding representation and compensation following French remands. As always, if you are uncertain on how to proceed in a court-appointed case, contact your project buddy.
The Court rejected all the barriers to relief suggested by the state for guilty and no-contest plea Cunningham cases. (Although French itself involved a no-contest plea, the Court's holding would apply equally to guilty pleas.)
- No CPC Required. No certificate of probable cause is required when the defendant is challenging a sentence imposed at the top of the range permitted by the plea (i.e. the "lid") (see pp. 6-8 of slip opn.);
- Claim Cognizable In Absence of Express Waiver of Jury Trial Right. In this Post-Blakely sentencing case, review of the Blakely-Cunningham claim was permitted, despite the lack of an objection below, because there was no express waiver of the right to a jury on the aggravating circumstances (see pp. 8-12);
- Agreement to a Lid is Not an Admission of Facts. The defendant's no contest plea made pursuant to an agreement providing for a sentence not to exceed a stipulated maximum term (i.e. a lid) constituted neither a waiver of the right to a jury trial nor an admission of facts establishing an aggravating circumstance (see pp. 13-15); and
- Stipulation to Factual Basis Not an Admission of Facts. Under the circumstances of the case, the Court held that the defendant's stipulation to the district attorney's statement of the factual basis for the plea did not constitute an admission of aggravating facts authorizing the upper term (see pp. 15-18); and
- Error Not Harmless. Imposition of the upper term sentence violated defendant’s Sixth Amendment right to a jury trial, and the constitutional error was not harmless beyond a reasonable doubt (see pp. 18-22).
Implications for Cases Held Pending French
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. When the Court does get around to disposing of the held guilty and no-contest plea Cunningham cases, there are a number of different orders the Court might issue depending on the circumstance of the case.
- If the court of appeal found Cunningham error and found it prejudicial under a pre-Sandoval harmless-error formulation and if the case is free of recidivist factors, the Supreme Court is likely to return that case to the court of appeal for reconsideration in light of Sandoval. (See here for a discussion of holding of Sandoval.)
- If the court of appeal found Cunningham error, but the case involved recidivist factors other than numerous and increasingly serious priors, the Supreme Court is likely to change the designation of the case such that it will be held pending Towne, which presents the question of whether the Almendarez-Torres exception to the right to a jury trial applies to these recidivist factors: 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. Towne which will be argued on April 2, 2008, and more information about it can be found here. (If the case involved the numerous and increasingly serious prior convictions, the Court has likely already disposed of it in light of Black II. (see our memos on the disposal of cases post-Black II and describing the Black II holding.)
- If the court of appeal found Cunningham error and found it prejudicial under the Sandoval harmless-error formulation, then the Court may simply dismiss review. The remittitur will then issue and the case will return to the superior court for resentencing.
- If the court of appeal found the Cunningham claim barred because of the lack of a CPC, that the claim was waived by the general waiver of the right to a jury trial taken at the plea hearing, or that the plea or stipulation to the factual basis constituted an admission of facts authorizing the upper term, then the Court is likely to remand the case to the Court of Appeal for further proceedings in light of French.
Representation and Compensation
In cases the Supreme Court remands directly to the superior court (i.e. simply dismisses review in a case in which the defendant has prevailed), there is no more work for appointed appellate counsel to do in the court of appeal and the court-of-appeal appointment would not encompass the resentencing. The superior court will appoint sentencing counsel. (If there is an appeal after resentencing, there would be a new appointment on appeal.)
If the case is remanded to the court of appeal, then appointed counsel's court-of-appeal appointment is revived and further work in the court of appeal would be billed on a supplemental final claim.
Work-performed in the case while it was held pending French, which should be minimal, would be billed under the Supreme Court appointment.
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