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T he U.S. Supreme Court’s recent decision in Ring v. Arizona, 02 C.D.O.S. 5594, explicitly overturned death penalty sentencing schemes in at least five states, and perhaps four others. But Ring, properly applied, could also be the constitutional basis for invalidating a part of California’s capital sentencing scheme that allows individual jurors to find and apply their own aggravating factors, including unadjudicated prior criminal conduct.

In the two years since Apprendi v. New Jersey, 530 U.S. 466 (2000), California death appeals have routinely argued that Apprendi requires unanimous jury findings of the aggravating factors necessary to impose the death penalty. Apprendi required that, whenever a fact could lead to a sentence greater than that provided by statute (for example, in that case, that the crime was motivated by racial animus), the fact must be found by the jury beyond a reasonable doubt.

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