Metropolitan News-Enterprise


Thursday, September 16, 2004


Page 3


Blakely Applies to Upper Term Decision, C.A. Rules


By a MetNews Staff Writer


A trial court may not impose the upper prison term authorized by the Determinate Sentencing Law unless the decision is based on a prior conviction or on facts found by a jury, the Fourth District Court of Appeal ruled yesterday.

The decision by Div. One is apparently the first published California appellate decision to apply the recent U.S. Supreme Court ruling in Blakely v. Washington, 124 S.Ct. 2531, to the three-level sentencing scheme of the DSL. The California Supreme Court recently agreed to accept two pre-Blakely Court of Appeal decisions as vehicles for consideration of the same issue.

The defendant in yesterday’s case, Keyon George, was convicted of participating in a robbery with three other men. A San Diego Superior Court jury found him guilty of two counts of residential robbery and found that he was acting on behalf of a criminal street gang, but rejected the allegation he personally carried a firearm.

Judge Eddie C. Sturgeon found that George had previously been convicted of a serious felony and sentenced him to 33 years in prison. The sentence consisted of the 18-year upper term for the first robbery, a 10-year gang enhancement, and a five-year serious felony enhancement; the sentence on the second robbery count was ordered to run concurrently.

In opting for the upper prison term, Sturgeon cited five factors—that George was on probation at the time, that he threatened the victims with great bodily injury, that the crime was planned and sophisticated, that his crimes showed a pattern of increasing seriousness, and that he had done poorly on probation.

But Justice James A. McIntyre, writing for the Court of Appeal, said that all but the first factor are covered by Blakely, which held that a defendant sentenced under Washington state guidelines had his jury trial right violated because the judge sentenced him on the basis of facts that were neither found by a jury nor admitted to as part of the plea bargain he receive.

The high court based its decision on an earlier ruling, in Apprendi v. New Jersey, holding that any fact, other than that of a prior conviction, that results in an increase in what would otherwise be the maximum allowable sentence must be determined by a jury unless the defendant waives that right.

The upper-term decision under California’s law is, as a practical matter, no different from the decision to adjust a sentence upwards under Washington’s scheme, McIntyre said.

In concluding that remand is required, the justice acknowledged that under California law, a single aggravating factor is sufficient to impose the upper term. Since the fact that George was on probation at the time of the new crime was derived from his prior conviction, McIntyre reasoned, Blakely did not bar the trial judge from making that finding.

The appellate court cannot, however, assume that the trial judge would have imposed the upper term based on that factor alone, McIntyre said.

The case is People v. George, 04 S.O.S. 5019.


Copyright 2004, Metropolitan News Company