Metropolitan News-Enterprise


Wednesday, May 30, 2007


Page 1


State Sentencing Law Does Not Need Drastic Changes—Lawyers


By a MetNews Staff Writer


A recent U.S. Supreme Court ruling invalidating one aspect of California’s Determinate Sentence Law does not require extensive new proceedings with respect to previously sentenced defendants, attorneys for the state told the California Supreme Court yesterday.

A few of the justices seemed inclined to agree, although defense lawyers vigorously disputed that contention in a pair of cases.

The state high court heard arguments in appeals by Kevin M. Black, serving 46 years to life in prison for continuous sexual abuse of his stepdaughter and molesting two other young girls who were friends of the stepdaughter, and Aida Sandoval, sentenced to 14 years, four months by Los Angeles Superior Court Judge Lance Ito on two counts of voluntary manslaughter and one count of attempted voluntary manslaughter.

Black’s case is back before the justices after the U.S. Supreme Court vacated the court’s previous ruling upholding the sentence and ordered reconsideration in light of Cunningham v. California, No. 05-6551. The high court held in that case that the DSL—which sets a low, middle, and upper term for most crimes—is unconstitutional to the extent that it allows an upper term sentence based on judicial factfinding other than as to prior convictions.

Deputy Attorney General Lawrence M. Daniels, in the Black case, and Chung Mar, with regard to Sandoval, argued that the sentences were valid under Cunningham because there were aggravating factors that were based on prior convictions or inherent in the jury verdict.

They also argued that the court can reform the DSL by ruling that in any case where a sentence is held to violate Cunningham, the trial court may on remand impose the lower, middle, or upper term as a matter of discretion without new factfinding.

 Tulare Superior Court Judge William Silveira Jr. sentenced Black to the upper term after a jury convicted him under what is sometimes referred to as the “resident child molester” law. The statute permits an adult who has committed a series of sexual offenses against a child living in the same household to be convicted without the necessity of a unanimous jury verdict on each specific incident.

The crime is punishable under the DSL by six, 12 or 16 years in prison. In Black’s case, the judge imposed the upper term, finding among other things that the defendant had forced the victim to have sex with him on multiple occasions, that the victim was particularly vulnerable, that he had abused a position of trust and confidence, and that the victim had suffered physical and emotional injury.

With respect to the two molestation counts involving other girls, the state’s “one-strike” law applied because the crimes involved multiple victims. The law calls for a sentence of 15 years to life on each count, and such sentences can run concurrent or consecutive to each other and/or to sentences imposed for other offenses.

Silveira ordered the sentences on all three counts to run consecutive, noting that they involved three separate victims and that one of the stepdaughter’s friends had been explicitly left in the defendant’s care.

In its original opinion, the Supreme Court held that the trial judge’s findings were sufficient to support the sentence under  United States v. Booker (2005) 125 S.Ct. 738, which held that judicial factfinding in the federal sentencing process does not render that scheme unconstitutional as long as the Sentencing Guidelines are treated as discretionary rather than mandatory and the sentences are not unreasonable.

But Eileen S. Kotler, a Northern California attorney appointed to represent Black on appeal, said that the sentence violates Cunningham because the jury was not allowed to determine, under a beyond-a-reasonable-doubt standard, what aggravating factors, if any, applied in the case.

Daniels, however, argued that the court should uphold the sentence because the jury’s verdict, including a special finding that the crime involved “substantial sexual conduct” with a victim under the age of 14 years, together with the trial judge’s finding that the defendant had previous convictions that were “numerous and of increasing seriousness,” established that there were aggravating factors.

The existence of a single aggravating factor, Daniels noted, would support the imposition of an upper-term sentence under the DSL, arguing that such sentence would comply with Cunningham.

Kotler, however, argued that while a judge may determine the existence of prior convictions, the jury should be the ones to determine whether they were “numerous and of increasing seriousness.”

That argument seemed to draw the scorn of the justices, particularly Chief Justice Ronald M. George and Justice Carol Corrigan, who questioned how the jury would actually go about making that determination.

Jurors, George said, lack the legal training to determine, for example, whether “second degree burglary is more serious than receiving stolen property.” Corrigan suggested that the system would be chaotic, because one jury might think that two convictions are “numerous,” while another might decide that 10 or more aren’t.

George agreed, saying defendants who received longer sentences than those who had fewer prior convictions would likely argue that there was an equal protection violation. Corrigan also suggested that the only way for jurors to decide if crimes were of increasing seriousness would be for the court to explain the penalty for each crime, even though jurors are routinely instructed not to allow potential penalties to influence their verdict.

Sandoval’s attorney, Donna Harris of San Diego, told the justices that her client was the victim of a particularly egregious Cunningham violation because the aggravating factors relied on by the judge were inconsistent with the jury’s verdict, which “completely rejected” the prosecution’s theory of the case.

Sandoval was originally charged with first degree murder and attempted murder, Harris explained, on the theory that she intentionally set up a confrontation involving “gang bangers” with the intent that it result in the death of a man who had intervened to stop a fight between Sandoval and a friend and another woman the previous night. 

The jury, she said, rejected that theory by finding her client guilty of the lesser charges. Ito, however, imposed a sentence consisting of the upper term of 11 years for voluntary manslaughter, plus a consecutive term of two years for the other manslaughter count, plus another 16 months on the attempt count.

Ito found that the callousness and cold-bloodedness of the crimes justified the upper term, a finding, Harris argued, that effectively overruled the jury.

Mar, however, argued that the verdict was effectively a rejection of at least part of both the defense and prosecution cases, since the defense argued that Sandoval was not involved in the killings, or that her involvement constituted at most involuntary manslaughter.

Any Cunningham error, Mar said, was harmless because any rational jury would have found the great-violence aggravating factor applicable.

It was “undisputed” that the case involved aggravating conduct, “a great amount of violence” in which one of the victims was shot four times, twice in the head. Justice Joyce L. Kennard, however, appeared to question whether a jury necessarily would have found that factor aggravating as to Sandoval, who was not the shooter.

Mar also took issue with Harris’ argument that on remand, the court must impose a lower-term or middle-term sentence, since there were no jury findings of aggravating factors. Mar, like Daniels in the Black case, argued for reformation of the statute.

That would, Mar said, comport with the intent behind SB 40, which grants judges discretion in all new cases to impose any term that is consistent with the DSL.


Copyright 2007, Metropolitan News Company