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San Francisco prosecutors have recently started using so-called Blakely waivers in felony plea bargains in response to the June decision from the U.S. Supreme Court. But across the board, deputy public defenders are refusing to sign. If necessary, they’ll offer clients an alternative written by their office, said Public Defender Jeff Adachi. Chief Assistant District Attorney Russell Giuntini said Wednesday that he hadn’t seen the public defender’s waiver, but he said, “I’d welcome looking at anything.” If the two sides can’t agree on a form, though, it could mean fewer plea bargains, and at an extreme, more trials. The U.S. Supreme Court, in Blakely v. Washington, decided this year that Washington state courts violated a defendant’s Sixth Amendment right to trial by jury when a judge handed him an “exceptional” sentence based on facts that hadn’t been admitted by the defendant, nor found by a jury. California appellate courts are sorting out the implications in cases such as People v. Towne, S125677, which the state Supreme Court took up in July. Among the questions in that case, the court will decide whether Blakely prevents a California trial judge from making findings on aggravating factors to support an upper-term sentence. In the meantime, though, prosecutors across the state have started demanding Blakely waivers. Under San Francisco’s, a defendant would agree to have a judge determine any aggravating fact under existing California statutes and court rules. Though Blakely waivers may not have much of an impact in plea bargains where a defendant agrees to a prison term, probation deals present more of a battleground. If the client agrees to a Blakely waiver in such cases, Adachi said, “we’re setting them up to receive the aggravated sentence when they violate probation.” Adachi said that with his form, the DA would have to let defendants know up front which aggravating factors they face if they violate probation. The DA’s “form goes so far beyond what a Blakely waiver requires,” Adachi said. Adachi’s version specifies a judge would have to determine aggravating factors beyond a reasonable doubt — not by a preponderance of the evidence. Adachi says he hopes the DA’s office will see it his way, and Giuntini downplays any disagreement, saying few people get an aggravated term for violating probation in San Francisco anyway. “I think we’re going to work through the issue,” Giuntini said, though he concedes that if a disagreement lasts, it could have an effect on some cases. “I suspect there will be many defendants who will plead over their attorneys’ objections.” Something like that has already happened in Alameda County, where the district attorney started using its own version of a Blakely waiver soon after the U.S. Supreme Court’s June opinion, according to that county’s chief assistant district attorney, Nancy O’Malley. While public defenders in Alameda County aren’t objecting to the Blakely waivers in every instance, they’re generally advising clients up for a probation deal not to sign them, said Assistant Public Defender Charles Denton II. Based on anecdotal observation, it seems more cases are going through preliminary hearings as a result, Denton said, though it’s too early to judge if more cases will go to trial. In other cases, the clients sign despite their attorneys’ advice, Denton said. Any time the two sides disagree, there’s a chance there will be fewer plea bargains and more trials, said Judge Mary Morgan, who supervises San Francisco’s criminal courts. Some of the city’s criminal judges have probably addressed Blakely when felony plea bargains come up with other written waivers or statements on the record, but there’s been no courtwide policy, Morgan said. “Until we have a little more guidance from the appellate courts, I think judges will be making decisions, as they should, in each individual case.”

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