Metropolitan News-Enterprise


Tuesday, February 3, 2009


Page 1


S.C. Gives Limited Retroactive Effect to Sentencing Ruling


By SHERRI M. OKAMOTO, Staff Writer


A 2007 U.S. Supreme Court ruling that limited the ability of California judges to impose upper-term sentences based on aggravating circumstances not found by a jury requires setting aside of convictions dating back to 2004, when the high court issued a ruling that was a precursor to the later holding, the California Supreme Court held yesterday.

The justices unanimously reversed an order by this district’s Court of Appeal denying Sotero Gomez’s petition for habeas corpus challenging his upper-term sentence for rape.

Four months after the U.S. Supreme Court issued its opinion in Blakely v. Washington (2004) 542 U.S. 296, holding that a criminal defendant’s Sixth Amendment right to jury trial was violated by a Washington state trial court’s imposition of “an exceptional sentence” beyond the “standard range” provided under Washington’s Sentencing Reform Act, based upon facts that had not been found to be true by a jury beyond a reasonable doubt, Gomez was convicted and sentenced to an upper term of eight years imprisonment.

Aggravating Factors

As factors in aggravation, Los Angeles Superior Court Judge Bruce F. Marrs found that Gomez, the victim’s father, had taken advantage of his position of trust and confidence, and that the victim, who was 16 at the time of the rape, was particularly vulnerable.

Marrs further found that Gomez had threatened the victim and the victim’s sisters if they reported the crime, that the crime itself was vicious and callous, and that the manner in which Gomez committed his crime indicated that he had a common scheme or plan to use his daughters collectively for his own sexual appetites.

Gomez argued that imposition of the upper-term sentence violated his Sixth Amendment rights under Blakely because none of the aggravating circumstances had been found true by a jury. 

While Gomez’s appeal was pending, the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238, which held that Blakely did not apply to California’s Determinate Sentencing Law.

Sentence Affirmed

Relying on the Black decision, this district’s Court of Appeal, Div. Two, affirmed Gomez’s upper-term sentence. Gomez did not seek review of the appellate court’s decision.

Subsequently, the U.S. Supreme Court granted certiorari in Cunningham v. California (2007) 549 U.S. 270, to address the application of Blakely to California’s determinate sentencing law and ruled that the Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt apply to aggravating factors that make a defendant eligible for an upper-term sentence under California’s determinate sentencing law.

After the Cunningham decision was issued, Gomez filed a petition for writ of habeas corpus challenging his sentence.

Both Marrs and the Court of Appeal denied relief, concluding that Cunningham only applied to cases not yet final as of the date of the decision.

In an unpublished decision, Div. Two concluded that Cunningham established a new rule of law that was not dictated by existing precedent because the outcome in Cunningham was susceptible to debate among reasonable jurists, as evidenced by the many pre-Black opinions in the California Court of Appeal concluding Blakely did not apply to the DSL, the U.S. Supreme Court’s reversal of Black, and the dissents by three U.S. Supreme Court justices in Cunningham.

Writing for the unanimous state high court, Chief Justice Ronald M. George explained that a case announces a new rule when it breaks new ground or imposes a new obligation on the states or the federal government. 

Blakely extended the scope of the U.S. Supreme Court’s decision in Apprendi v. New Jersey, which held that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, George wrote.

The chief justice noted that Blakely “extended the jury trial requirement set forth in Apprendi, redrawing the line between factual findings that require a jury trial, and sentencing factors on which a judge may make findings,” so that the prescribed statutory maximum for purposes of the right to a jury trial is the maximum sentence a judge may impose on the basis of the facts reflected in the jury verdict or admitted by the defendant.

But Cunningham did not extend or modify the bright line rule established in Blakely, and “merely applied it to the California sentencing scheme,” George wrote.

As Cunningham was not new law, he explained, its holding applied retroactively on collateral review of a judgment that became final before Cunningham was decided but after the decision in Blakely.

Los Angeles attorney Vincent James Oliver appeared on behalf of Gomez and Deputy Attorney General Carl N. Henry appeared on behalf of the state before the California Supreme Court.

The case is In re Gomez, 09 S.O.S. 671.


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