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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.

 

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