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.