Supreme Court Ruling on Upper Term Sentencing Not Retroactive

Monday, May 19, 2008

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Supreme Court Ruling on Upper Term Sentencing Not Retroactive—C.A.

By KENNETH OFGANG, Staff Writer

A U.S. Supreme Court ruling that struck down a portion of California’s Determinate Sentncing Law is not retroactive, the Fourth District Court of Appeal ruled Friday,

Div. Three, in an opinion by Justice Raymond Ikola, said that Orange Superior Court Judge Kazaharu Makino erred in granting habeas corpus relief to Jalal Khalid Saade, Saade was convicted of burglary and of cutting a utility line in 2003 and sentenced to an upper term of six years in prison. As aggravating factors justifying that term, the judge cited the defendant’s possession of “items to commit the offense including gloves, mask, flashlight, dark clothing, pepper spray, and items used in the security profession,” suggesting planning and sophistication.

The conviction was affirmed in 2005 in an opinion citingI (2005) 35 Cal.4th 1238. That case held that the use of judicial factfinding regarding aggravating factors under the sentencing law did not violate the Sixth Amendment guarantee of trial by jury,

In January 2007, the U.S. Supreme Court overruled Black in Cunningham v. California (2007) 549 U.S. 270. A number of inmates, including Saade, promptly filed habeas corpus petitions seeking recommencing on the basis of that decision.

Saade won a ruling from the trial court requiring a new sentencing hearing.

In October of last year, the state Supreme Court agreed to decide whether Cunningham applies to cases in which appeals were exhausted before the U.S. high court ruled.

Ikola, writing for the appellate panel Friday, said the trial judge should have denied the petition.

The justice cited Teague v. Lane (1989) 489 U.S. 288, which holds that a judicial decision that establishes a “new rule” of criminal procedure will not be applied retroactively on habeas corpus unless it is a “watershed” rule, so that it would be fundamentally unfair not to apply it retroactively.

Ikola also concluded that Saade is not entitled to relief under Danforth v. Minnesota (2008) 128 S.Ct. 1029, which held that state courts may apply broader rules of retroactivity than federal courts are allowed by Teague. While California courts have never addressed the issue specifically, the justice reasoned, the state high court has ruled “by negative implication,” since it has applied the Teague standard and has not applied a broader rule.

Ikola went on to cite In re Johnson (1970) 3 Cal.3d 404, holding that a new procedural rule will not be applied retroactively unless the purpose of the rule is to protect innocent persons from conviction.

“Although the Johnson test is phrased differently than the Teague analysis, the focus of each analytical tool is the same: to determine whether the new rule prevents an innocent defendant from being convicted of a crime he or she did not commit,” the jurist wrote. “And under both Johnson and Teague, Cunningham affects the manner in which a defendant’s sentence is determined — it does not shield a defendant from a wrongful conviction.”

The case is In re Saade, 08 S.O.S. 2895.