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Hundreds, if not thousands, of criminal appeals were placed in jeopardy Tuesday when a state appellate court held that a major U.S. Supreme Court opinion on sentencing doesn’t apply retroactively. Tuesday’s ruling by Los Angeles’ Second District Court of Appeal prevents criminal defendants who were already sentenced before the high court’s January decision in Cunningham v. California, 127 S.Ct. 856, from using that opinion to attack their sentences. In Cunningham, the U.S. Supreme Court overturned a controversial 2005 California Supreme Court ruling that had upheld the state’s determinate sentencing law. The nation’s highest court used Cunningham to reiterate that criminal defendants’ Sixth Amendment right to a jury trial is violated when sentences are increased beyond the norm based on factors decided by judges rather than juries. Whether Cunningham applied retroactively wasn’t addressed by the high court, nor by the California Supreme Court in two subsequent rulings last month that attempted to bring the state’s sentencing laws into compliance with the U.S. Supreme Court’s demands. Tuesday’s ruling by the Second District was simple: “We conclude that Cunningham is not to be applied retroactively to cases already final when it was decided.” Attorneys familiar with the issue said they believe it’s the first state appellate ruling in California on the retroactivity question, and may therefore affect a substantial number of cases. Justice Roger Boren authored the eight-page opinion, with Justices Kathryn Doi Todd and Victoria Chavez concurring. In re Gomez, 07 C.D.O.S. 9363, was brought by Sotero Gomez, who was sentenced to the upper term of eight years in prison in July 2004 for raping his daughter. At trial and on direct appeal, Gomez claimed the sentence violated his Sixth Amendment rights under the U.S. Supreme Court’s Blakely v. Washington, 542 U.S. 296, a Cunningham predecessor that had struck down similar sentencing laws in the state of Washington earlier in 2004. The appeal court affirmed his sentence.
Sentencing Diagrammed

On Jan. 22, the U.S. Supreme Court struck down California’s sentencing law, saying it gives judges too much leeway to hike sentences based on facts not found by the jury. The fallout of the California v. Cunningham (.pdf) could be thousands of cases in which sentences must be reconsidered. Sort through the chaos with our Hot Topic page.

After Cunningham came down this year, applying similar logic to California, Gomez followed up with a habeas petition arguing it should apply retroactively to his sentence. The Second District affirmed Los Angeles County Superior Court Judge Bruce Marrs. Justice Boren pointed out Tuesday that rulings don’t apply retroactively if they set forth a new rule of criminal procedure. “It is readily apparent � that Cunningham announced a new rule of law,” he wrote. Michael Kresser, the executive director of San Jose’s Sixth District Appellate Program, disagreed. “California law [on sentencing] was pretty much identical to the Washington law, which was found to be defective in Blakely,” said Kresser, who wasn’t involved in Tuesday’s case. “And therefore, I don’t see Cunningham as announcing a new rule at all. The conclusion was � compelled by Blakely.” Vincent Oliver, a Los Angeles solo practitioner who represented Gomez on appeal, said he would “probably” petition the California Supreme Court for review.

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