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October 12, 2006

State's Scheme for Sentencing Perplexes Court
Justices Try to See Regime in Context of Federal Guides

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - Wednesday's U.S. Supreme Court argument over the constitutionality of California's criminal sentencing system was anything but clear-cut, as the justices seemed unsure of how they should deal with the state's scheme.

In one breath, the court expressed concern that California's system violated earlier high court decisions that barred judges from using their own fact-finding to add extra prison time to criminal sentences.

Three justices from the majority in those earlier cases - John Paul Stevens, Antonin Scalia and David Souter - clearly suggested that California's system violated that rule.

But in the next breath, a number of justices wondered whether the state's regime might be the functional equivalent of the advisory system that now governs federal sentencing, a system the Supreme Court itself created nearly two years ago after it invalidated the mandatory federal sentencing guidelines in U.S. v. Booker, 543 U.S. 220 (2005).

"The thing that concerns me ... is that California's system looks a lot like the federal system after Booker," Chief Justice John G. Roberts Jr. said.

To further complicate matters, the court at times seemed unclear of exactly how the California system functioned.

Justice Stephen G. Breyer expressed this sentiment succinctly while discussing the California Supreme Court's key opinion in People v. Black, 35 Cal.4th 1238 (2005), which upheld the state sentencing system.

"To be honest, I don't know what Black means," Breyer said.

During the head-scratching, hour-long argument, the court waded through the details of California's determinant sentencing law, which gives judges three sentencing choices for most criminal offenses.

Under the system, judges are instructed to sentence a defendant to the middle term of imprisonment unless aggravating or mitigating factors counsel in favor of the longer or shorter term.

San Pablo defendant John E. Cunningham, who in 2003 was given an upper-term sentence of 16 years in prison for continual sexual abuse of a child, challenged the law after Contra Costa County Superior Court Judge Theresa Canepa gave him four extra years based on her own fact-finding.

Among other things, Canepa found that Cunningham was a police officer at the time of the crime and that his criminal acts involved great violence, a vulnerable victim and conduct that was a serious danger to society.

Cunningham attorney Peter Gold argued Wednesday that the sentence violated the bright-line rules set forth in Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), that judges cannot hand down enhanced sentences based on facts that were not found by a jury beyond a reasonable doubt.

Gold said the middle-term sentence, which in Cunningham's case was 12 years, was "the greatest punishment a judge can impose based solely on the facts reflected in the jury's verdict."

The state Supreme Court, in an opinion by Chief Justice Ronald M. George, took a different reading of state law, saying a jury's verdict authorized a California judge to sentence a defendant to any of the three tiers, provided the sentence was reasonable.

George also said the California system gave judges the same kind of discretion allowed in the federal system after the U.S. Supreme Court decided Booker.

Under questioning from Roberts, Gold said the state Supreme Court "seriously misread" the Booker decision.

The key difference, Gold said, was that the new-look federal system was an advisory one, while the California system was not.

Numerous questions from the court, however, indicated that some justices were concerned that a ruling striking down California's law might impact the federal regime.

Justice Samuel A. Alito Jr., who, like Roberts, seemed to be leaning in California's favor, said he didn't "understand the distinction" between the state system and the federal system. The two, he suggested, functioned equivalently.

Roberts and Alito were not on the high court when it decided the earlier sentencing cases.

State Deputy Attorney General Jeffrey Laurence, who argued California's case, tapped into some of the justices' concerns, arguing that if the court ruled against the state, "you would be basically throwing into doubt the way Booker has reformed the federal system as well."

Laurence was met with stiff resistance from Stevens, Scalia and Souter, who were part of 5-4 majorities in Apprendi, Blakely, and the portion of Booker that struck down the mandatory federal system.

Scalia said the California system was clearly different than the federal advisory scheme. At times, he also expressed doubt that the California system functioned in the manner that Laurence said it did.

Stevens, for his part, said that the impact of Blakely had not been "such a big deal as we thought it might be." Other states that had been forced to change their systems, he said, appear to have adapted well.

"Well, your honor, it would certainly be a big deal to California," Laurence responded.

California courts, Laurence said, would be forced to hold secondary trials to let juries rule on aggravating factors. And prosecutors, he said, would be burdened with having to identify such factors up front.

Laurence said thousands, "possibly tens of thousands," of cases might have to be resentenced.

The two other members of the Blakely and Apprendi majorities were less vocal during Wednesday's argument. Justice Clarence Thomas, as is his custom, was silent.

Justice Ruth Bader Ginsburg, who could prove to be the key vote in the case, did not tip her hand.

Notably, Ginsburg switched camps on the remedial portion of the Booker opinion and joined the four dissenters to save the federal guidelines as an advisory scheme. That position-switch makes her vote something of a wild card.

At one point Wednesday, Ginsburg asked whether the California and federal systems were similar, but she later suggested that the two had significant differences.

It was unclear how the court's two remaining Blakely dissenters, Breyer and Justice Anthony M. Kennedy, would rule in the case. Both sent mixed signals during the argument.

Breyer said he had "no doubt" that the state Supreme Court's Black opinion was "written to try to save the California system."

However, he seemed unclear that Black had actually done so.

The state court, he suggested, had sent mixed signals about how state law actually operated.

"All right," he asked, "so now what do I do?"