California Criminal Lawyer Blog

When I left off, I was discussing the recently decided Black case addressing Cunningham's application to prior convictions. Onward to Sandoval...

SANDOVAL

In Sandoval, there are no valid aggravating factors at all to permit imposition of the upper term. So the first question the court resolves is when Cunningham error can be harmless. The court holds,

... if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.

The various aggravating factors relied upon by the sentencing court in Sandoval to impose upper term were all facts relating to the crime, and they were all in dispute. So the court concludes that the error is not harmless. They thus reverse.

Now things get seriously weird. The court decides it is going to clarify what the rules are for sentencing on remand. One solution would be to provide for jury trials on aggravating factors. The court explicitly rejects this alternative:

Although such a process would comply with the constitutional requirements of Cunningham, engrafting a jury trial onto the sentencing process established in the former DSL would significantly complicate and distort the sentencing scheme. Neither the DSL nor the Judicial Council’s sentencing rules were drafted in contemplation of a jury trial on aggravating circumstances. It is unclear how prosecutors might determine which aggravating circumstances should be charged and tried to a jury, because no comprehensive list of aggravating circumstances exists.

For what it is worth, this should put to rest the attempts by prosecutors to file aggravating factors in the information. One Court of Appeal has permitted this (Barragan v. Superior Court (2007) 148 Cal. App. 4th 1478.) Another Court of Appeal rejected it. (People v. Diaz (2007) 150 Cal. App. 4th 254.) We have now won this issue and we should be able to stop courts and prosecutors from proceeding with jury trials on aggravating factors.

Of course, the Legislature has enacted its own fix, S.B. 40, amending Penal Code section 1170, subdivisions (a)(3), and (b), which now makes the three DSL choices a sentencing range, with no presumption of the middle term. However, S.B. 40 was effective on March 30, 2007. The Supreme Court recognizes that it is uncertain whether SB40 can be applied retroactively. What they do instead is rewrite the DSL and make that rewrite fully retroactive.

The rewritten DSL now includes the same sentencing range created by S.B. 40. In brief, the three sentencing choices are now a range. The only restraint on the sentencing court is that the court must state reasons for its decisions. Appellate courts will review that statement of reasons using an abuse of discretion standard.

The obvious problem with judicially rewriting a statute and applying that change retroactively to cases where the crimes have already occurred is that increasing a defendant’s sentence after commission of the crime violates the ex post facto ban. The California Supreme Court assures us that judicial decisions are exempt from the ex post facto ban, because that ban only applies to statutory enactments. They say that the real issue is whether retroactive application of laws rewritten by courts violates due process, which turns on whether a defendant had notice. They conclude that defendants did get the required notice, since when this defendant committed her crime, she knew she could get high term.

The problem with this position is that it is wrong. The California Supreme Court cites the controlling United States Supreme Court decision, but then applies it incorrectly. In Rogers v. Tennessee (2001) 532 U.S. 451, 121 S.Ct. 1693, the United States Supreme Court scaled back its broad language in Bouie v. City of Columbia (1964) 378 U.S. 347, 84 S.Ct. 1697. The court said that not all judicial expansion of statutes was barred by the due process clause. The court held, “Accordingly, we conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” (Rogers v. Tennessee, supra, 532 U.S. 451, 462 [121 S.Ct. 1693, 1700].)

Thus, the issue is whether the court’s ruling was “unexpected.” The California Supreme Court in Sandoval found no due process violation, saying “Defendant was put on notice by section 193 that she could receive the upper term for her offense: the statute specifies that ‘[v]oluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.’ (§ 193, subd. (a).) That notice satisfies the requirements of due process.”

This position is wrong conceptually. A perfectly informed defendant would know that upper term was not available unless aggravating factors overcame the DSL presumption of middle term. Certainly, that mythical defendant could not know that upper term was available event absent any aggravating factors, which is the new DSL as rewritten by the California Supreme Court.

But in any event, the California Supreme Court is applying the Rogers test incorrectly. The issue is not what notice the defendant has. The issue, as just quoted, is whether the change is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” And on this issue we obviously win. In the first Black opinion, People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court ruled that the DSL survived Apprendi and Blakely. Rewriting the DSL was totally unexpected until Cunningham was issued. An argument might be made that once Cunningham was issued, a change in the DSL could be expected. But no reasonable claim could be made that before Cunningham was issued, anyone could expect that the DSL would be rewritten to make the DSL a range.

It seems obvious that Cunningham has resulted in almost every defendant being worse off – a few, probably no more than a handful, of clients during the window period between Cunningham and the issuance of Black and Sandoval. But all of our clients are now subject to upper term without the courts even having to engage in the sham of finding that aggravating factors justify imposition of upper term; the court can now just pick upper term and the only limitation is a statement of reasons. It is unclear if a statement of reasons is going to really mean anything at all. So we win Cunningham, California’s DSL is unconstitutional, and the actual result is that hardly anyone gets any benefit and everyone is worse off.