Metropolitan News-Enterprise


Thursday, November 18, 2004


Page 1


Blakely Invalidates State Sentencing Scheme—Court of Appeal

This District’s Div. Seven Follows Fourth District in Ruling on Issue Currently Before State High Court


By DAVID WATSON, Staff Writer


A judge may not constitutionally determine that aggravating factors merit an upper term sentence under Penal Code Sec. 1170, this district’s Court of Appeal ruled yesterday.

The decision by Div. Seven appears to be the first in this district to address the issue of whether California’s Determinate Sentencing Law passes constitutional muster under the recent U.S. Supreme Court ruling in Blakely v. Washington, 124 S.Ct. 2531. The court joined the Fourth District’s Div. One in holding it does not.

The issue is also before the state Supreme Court, which is expected to expedite review of the unpublished May 17 ruling by this district’s Div. Four in People v. Towne, B166312.

Like the defendant in Towne, Hugo D. Juarez was charged with carjacking. He was convicted by a jury, and Los Angeles Superior Court Judge Bruce F. Marrs determined that aggravating factors justified sentencing him to the upper term of nine years in prison.

Planning and Sophistication

Marrs also applied a 10-year enhancement based on the jury’s finding Juarez personally used a firearm in committing the offense. The judge based his finding of aggravating circumstances in part on his conclusions that the crime involved planning and sophistication and that the victim was vulnerable.

Writing for the appellate panel, Justice Earl Johnson noted that neither of those findings was made by the jury. While Marrs acted properly under the law applicable at the time, the sentence failed to comply with the standard announced in Blakely, the justice said.

Blakely, Johnson noted, built on the high court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466 to find the criminal sentencing scheme of the state of Washington violative of a defendant’s right to have his or her guilt determined by a jury.

  “In this court’s view, it is difficult to distinguish the California sentencing scheme from the Washington system in a way which avoids the Apprendi-Blakely problem and impossible to do so without elevating form over substance, something the Supreme Court has cautioned it will not tolerate,” Johnson explained. “For, under our system, like Washington’s, unless and until a judge makes a factual finding, e.g., one or more ‘circumstances in aggravation’ exist, the highest term a defendant can receive is the ‘middle term.’ The fact we label the enhanced sentence the trial judge’s factual finding justifies an ‘upper term’ while Washington calls it an ‘exceptional sentence’ is in the nature of a difference in form not substance. Nor is it more than a difference in form that Washington calls the presumptive sentence the jury verdict alone will justify a ‘standard sentence’ while California law labels it the ‘middle term’ sentence.”

Johnson pointed out that two panels of the Fourth District’s Div. One recently reached the same conclusion in People v. George (2004) 122 Cal.App.4th 419 and People v. Lemus (2004) 122 Cal.App.4th  614. Six different jurists served on those panels and only one—Justice Patricia Benke—dissented, he observed.

Form Versus Substance

Benke’s attempt in Lemus to distinguish the California scheme from Washington’s “states the contrary position as ably as it can,” Johnson said, but “relies too heavily on differences in form rather than substance.”

Benke argued that California’s middle term is “not the beginning of the sentencing choice to be made; rather, it is the conclusion to which the defendant is entitled if the court finds no aggravating or mitigating factors.”

But Johnson declared:

“[I]t appears irrelevant whether the trial court starts or ends with the upper term. In either event, it cannot impose it without making factual findings beyond what the jury did.”

He added:

“[W]e conclude 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.”

 The justice went on to reject the contention that Juarez waived his objection under Blakely by not raising it at the time he was sentenced. Such an objection would have been futile given the state of the law at the time, he reasoned.

Justice Fred Woods and Presiding Justice Dennis M. Perluss concurred.

The case is People v. Juarez, 04 S.O.S. 6100.


Copyright 2004, Metropolitan News Company