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JUSTICES FIND CALIFORNIA’S SENTENCING LAW FLAWED

Times Staff Writers

The Supreme Court struck down part of California’s sentencing law Monday in a ruling that could give thousands of recently convicted state prisoners a chance for a shorter sentence.

In a 6-3 decision, the high court said California’s system is flawed because it gives judges too much power to add extra years to a prison sentence.

The Constitution gives defendants a right to a trial by a jury, the court said, and that includes the right to have jurors -- not a judge acting alone -- decide all the “aggravating facts” that turn an ordinary crime into one deserving of a long prison term.

While legal experts agreed that California’s sentencing system would have to be changed, they disagreed sharply on how many prisoners might be able to win a new hearing.

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Usually, the high court’s rulings do not upset prior convictions and sentences, unless the defendant’s case is on appeal in the state courts.

Each year, more than 250,000 people are sent to prison for felonies in California, according to state figures. About 15% of those cases result in an “upper term” sentence, as defined by state law. Those higher sentences were the subject of the ruling.

“This is going to be a tremendous mess for the courts to sort out,” said Santa Clara law professor Gerald Uelmen, executive director of the California Commission on the Fair Administration of Justice, which is looking into the problem of wrongful convictions. Uelmen said more than 30,000 cases per year for the past two or three years might require a new sentencing hearing.

But other experts noted that about 90% of felony convictions arise from plea bargains, not trials, and therefore would not be affected by the ruling. That suggests that far fewer cases would be eligible for resentencing.

“The Supreme Court has thrown us a hot potato,” said California’s newly elected attorney general, Jerry Brown. “This will definitely complicate matters for us.” Although state lawyers had no precise figures, Brown said, they believed a much smaller number of cases -- “maybe a thousand” -- would require new hearings.

Los Angeles District Atty. Steve Cooley also played down the impact of the ruling.

“We anticipated this ruling.... It will have minimal impact in Los Angeles County because the majority of our cases, 96%, are resolved by case settlement,” he said. “As soon as this issue came up in 2004, we began taking the appropriate waivers from defendants to avoid any sentencing issues.”

He was referring to a high court ruling in 2004 that struck down a similar sentencing system in Washington state. Since then, California prosecutors and judges have been on notice of a possible constitutional problem, even though the state Supreme Court later gave its blessing to the state’s sentencing law.

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Monday’s decision in Cunningham vs. California is the latest in a series of rulings this decade in which the high court, though badly divided, has sought to readjust the balance between judges and juries when it comes to deciding prison sentences.

An odd coalition of liberal and conservative justices, led by John Paul Stevens and Antonin Scalia, has moved to strike down sentences that were imposed based on facts found by the trial judges, not the jury.

In a New Jersey case, for example, a defendant pleaded guilty to firing a shot into his neighbor’s house, a crime with a 10-year maximum prison term. However, the judge sentenced the defendant, Charles Apprendi, to 12 years in prison after finding this was a racially motivated hate crime. In a 5-4 decision in 2000, the court struck down the extra two years of prison time, saying the jury should have decided whether the defendant had committed a hate crime.

Three years ago, in the case Blakely vs. Washington, the court went further and said the jury-trial rule also applies when judges add extra years to a sentence even if it does not go above the legal maximum.

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That put California’s system in the spotlight.

Before 1977, California law set a maximum prison term for each crime and allowed judges and parole officials to decide how long a criminal would stay behind bars. For some crimes, the prescribed sentence ranged from probation to life in prison.

The sentencing reform law passed in 1977 sought to take some power away from judges in the hopes that prison terms would be fairer. For each crime, the new California law set a lower, middle and upper term.

The law also said the judge “shall order imposition of the middle term,” unless the judge decides certain “aggravating circumstances” that call for the upper term.

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Justice Ruth Bader Ginsburg, who wrote Monday’s majority opinion, pointed to this “shall order” mandate as the flaw that makes California’s system unconstitutional.

In the case before the court, John Cunningham, a former police officer from Contra Costa County, was convicted by a jury of sexually molesting his son over several years. The crime had a lower term of six years, a middle term of 12 years and an upper term of 16 years. During a sentencing hearing, the judge agreed with the prosecutor, who said there were several “aggravating circumstances” -- including that the crime was violent, that Cunningham had preyed upon a vulnerable person and that he represented a danger to the community. The judge sentenced Cunningham to the upper term, adding four years to his prison time.

In California, “the middle term ... not the upper term, is the relevant statutory maximum,” Ginsburg said, and therefore, the extra prison term violated the defendant’s rights.

The case of Cunningham vs. California split the two latest Supreme Court appointees. Chief Justice John G. Roberts Jr. joined the Scalia-Stevens bloc to say California’s system is flawed. Also joining the ruling were Justices David H. Souter and Clarence Thomas.

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Meanwhile, Justice Samuel A. Alito Jr. spoke for the dissenters. He noted that the Supreme Court, with Ginsburg in the majority, had upheld the federal sentencing system two years ago by concluding its guidelines were advisory, not mandatory.

California’s system is quite similar, he said.

“The California sentencing law that the court strikes down today is indistinguishable in any constitutionally significant respect from the advisory guideline scheme [in the federal system] that the court approved” two years ago, Alito said. Justices Anthony M. Kennedy and Stephen G. Breyer concurred.

In a separate dissent, Kennedy explained the difficulty of applying the court’s new rule.

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Juries can decide some facts, such as whether a weapon was used or whether a large quantity of drugs was involved, he said. California law refers to these facts as “sentence enhancements,” and jurors are called upon to decide these facts.

But other facts are subjective. For example, did the defendant show remorse or cooperate with the prosecutors?

“These are facts that should be taken into account at sentencing,” but it makes sense for them to be “found by the judge,” Kennedy wrote.

How should California fix this problem?

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Ginsburg gave two contradictory suggestions.

The Legislature or the state Supreme Court could change the law and “call upon the jury -- either at trial or a separate sentencing proceeding -- to find any fact necessary to the imposition of an elevated sentence,” she wrote.

Or they could go in the opposite direction and “permit judges genuinely to exercise broad discretion within a statutory range,” she said. For example, in the case of child abuse, the state could set the maximum prison term of 16 years and allow the judge to decide on the sentence within this range.

“The ball lies in California’s court,” said Ginsburg, noting that other states have altered their sentencing systems.

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In recent years, seven states have revised their laws to give juries a greater role in deciding the facts that call for longer sentences. At the same time, nine states moved the other direction and gave judges more authority to set prison terms.

Former California Atty. Gen. John Van de Kamp, who practices law in Los Angeles, said the ruling would heighten the debate over sentencing, but he predicted the Legislature would insist on deciding the outcome.

“Legislators will be loath to give up powers to a sentencing commission,” he said. “No one in the Legislature, barring a few, wants to appear weak on criminality.”

Regardless of how the system is changed, Gov. Arnold Schwarzenegger said he was not in favor of shorter prison terms for serious crimes.

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“I support longer sentences for criminals who deserve them,” he said in a statement. “As governor, I will work to ensure that this decision will not be a threat to public safety.”

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david.savage@latimes.com

henry.weinstein@latimes.com

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Savage reported from Washington and Weinstein from Los Angeles.


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