High Court Sentencing Ruling Not Retroactive

Wednesday, August 8, 2007

Page 1

High Court Sentencing Ruling Not Retroactive—C.A.

By a MetNews Staff Writer

The U.S. Supreme Court’s ruling striking down a portion of California’s Determinate Sentencing Law is not retroactive, the Court of Appeal for this district ruled yesterday.

Div. Two yesterday denied Sotero Gomez’s petition for a writ of habeas corpus requiring the Los Angeles Superior Court to reconsider his upper term sentence for rape.

Gomez was sentenced to prison in July 2004, shortly after the Supreme Court ruled in Blakely v. Washington (2004) 542 U.S 296, that a sentence may not be increased beyond what would otherwise be the statutory maximum, except on the basis of prior convictions or facts that have either been admitted by the defendant or found true by a jury.

At the time of sentencing, the judge ruled that Blakely did not apply to upper terms imposed under the DSL. In Cunningham v. California (2007) 127 S.Ct. 856, however, the high court ruled that, because an upper term sentence requires a finding of aggravating circumstances, the middle term under the DSL is the “relevant statutory maximum” for Blakely purposes.

Gomez received an eight-year upper term sentence for committing rape by force or fear upon his daughter. As aggravating factors, the judge found that the victim was particularly vulnerable, the crime was vicious and callous, that witnesses were threatened by the defendant, that Gomez abused a position of trust, and that the victim was under the age of 18.

The Court of Appeal affirmed in an unpublished opinion in 2005, citing People v. Black (2005) 35 Cal.4th 1238, which held Blakely inapplicable to upper-term or consecutive sentencing under the DSL. The U.S. Supreme Court later vacated Black and sent the case back to the California Supreme Court for reconsideration in light of Cunningham.

Gomez then filed a habeas corpus petition in Los Angeles Superior Court. He argued that he was entitled to relief under Blakely and Cunningham, but Los Angeles Superior Court Judge Bruce Marrs denied the petition.

Presiding Justice Roger Boren, writing for the Court of Appeal, said Marrs was correct.

Boren explained that under U.S. Supreme Court precedent, a “new rule” of criminal procedure does not apply to cases in which direct appeals have been exhausted unless it would be fundamentally unfair not to apply the rule retroactively.

Both the Court of Appeal and the Ninth U.S. Circuit Court of Appeals have ruled that Blakely creates a procedural rule that is not a “watershed” rule implicating fundamental fairness. “It follows that the rule in Cunningham, too, is neither substantive nor a watershed rule,” Boren said, so that if it is a new rule, it does not apply to previously adjudicated cases such as Gomez’s.

The rule in Cunningham, the presiding justice went on to say, must be considered new, and not merely an application of Blakely. Boren noted that there was considerable disagreement among the justices of the Court of Appeal on the issue of whether Blakely invalidated the DSL, that the Black court and many Court of Appeal panels prior to Black held that it did not, and that three U.S. Supreme Court justices dissented in Cunningham.

“It is readily apparent, therefore, that Cunningham announced a new rule of law,” Boren wrote.

The attorneys on appeal were Vincent James Oliver for the defendant and Deputy Attorneys General Lawrence M. Daniels and Carl N. Henry for the prosecution.

The case is In re Gomez, B197980.