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Blakely may soon be illuminated — at least in California. On Wednesday the state Supreme Court unanimously agreed to review a Los Angeles case that will address whether the U.S. Supreme Court’s decision in Blakely v. Washington, 04 C.D.O.S. 5539, affects criminal sentences in California, home to the nation’s largest court system. “Does Blakely,” the court asked in its order granting review, “preclude a trial court from making the required findings on aggravated factors for an upper-term sentence?” Since the U.S. Supreme Court released Blakely — which said judges cannot increase sentences based on factors that did not come before a jury — trial and appellate courts have been in disarray on the ruling’s impact. State and federal judges have been trying to figure out whether it applies in their jurisdictions, and many hope the high court clarifies things before the official beginning of its October term. Lawyers for Shawn Towne filed a petition for review of an unpublished ruling from the Second District Court of Appeal on June 18. Ten days later, they added the Blakely question. “ Blakely demonstrates that petitioner’s right to a jury under the federal constitution was indeed violated here,” wrote California Appellate Project attorney Suzan Hier in a letter to the court. Although trial and appellate courts may still make their own findings until the state Supreme Court’s opinion comes out, criminal practioners welcomed the move. “Insofar as it is the first time a California court will pass judgment on the matter, it’s important to all of us,” said San Francisco Chief Assistant District Attorney Russell Giuntini. “[It's important] that we have a position that’s articulated.” The state attorney general’s office declined to comment on People v. Towne, S125677, and said it was still reviewing the effect of Blakely in California. Blakely has caused an uproar in criminal practice across the country. Federal appeals courts have already split regarding whether Blakely applies to federal sentencing guidelines. The decision is even affecting trial strategy. Some federal defendants have pleaded guilty to avoid superseding indictments, and state prosecutors are worried about the court time that could be consumed if defendants ask for bifurcated trials — one to determine guilt on underlying charges, another to figure out sentencing enhancements. According to Giuntini, that would be one strategy defense attorneys might employ to try to make things easier for their clients, but he said he hadn’t seen it yet. Blakely‘s effects in the San Francisco will be limited anyway, he added, because it’s rare that prosecutors pursue an aggravated sentence. Besides California, Blakely will affect sentencing guidelines in at least 16 states, according to a study being conducted by the Vera Institute of Justice, a nonpartisan group based in New York that is studying the decision. The institute plans to release a report next week with suggestions on how states can bring their sentencing schemes into compliance with the ruling. Towne also introduces its own wrinkle into the debate over sentencing. At issue in the case is not just whether a Los Angeles Superior Court judge was allowed to give the aggravated sentence based on facts not proved at Towne’s trial. Attorneys say they filed their appeal because Towne was sentenced based on factors on which he was actually acquitted. A jury found Towne guilty of unlawfully driving or taking a vehicle and not guilty of carjacking, robbery and grand theft. Nevertheless, the judge gave him eight years in prison because of his prior criminal history and because of his alleged behavior during the commission of his crime, according to the petition for review filed with the state Supreme Court. Also on Wednesday, the U.S. Supreme Court gave Washington state more time to file a long-shot request to rehear Blakely.

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