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ANOTHER ‘CUNNINGHAM’ ABOUT-FACE IN SONOMA CASE? Thanks to two U.S. Supreme Court decisions addressing the constitutionality of enhanced prison sentences, the First District Court of Appeal has twice done a complete turnaround on a Sonoma County defendant’s prison sentence. Now the state Supreme Court is telling it to reconsider, yet again. After the high court’s 2004 Blakely v. Washington held that judges could not enhance criminal sentences based on facts not decided by the jury, the First District vacated an eight-year upper-term sentence for one of the two counts defendant Robert Hughes had pleaded guilty to. A year later, the California Supreme Court ruled in People v. Black, 35 Cal.4th 1238, that the Blakely ruling didn’t apply in California, which led the First District to backtrack on the Hughes case and affirm the initial 10-year total sentence. Then Cunningham v. California, which overturned California’s determinate sentencing law, came down earlier this year. For the First District, that meant a return to its 2004 decision to vacate Hughes’ eight-year sentence. According to the appellate court, Hughes had been given an upper term of eight years based on factors such as “a high degree of callousness” and “threat of great bodily harm.” But none of those aggravating circumstances were decided by the jury.
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.

“We revert to our (pre-Black) conclusion that imposition of an upper term upon defendant was error,” Justice Douglas Swager wrote in an unpublished opinion (.pdf) in June. Justices James Marchiano and Sandra Margulies concurred. (They left a two-year consecutive sentence for Hughes’ second count, however, intact.) Alas for Hughes, about a month after that ruling in his favor, the California Supreme Court issued a pair of sentencing decisions that allowed for an exception to the general rule: They said a judge may impose a harsher sentence as long as at least one aggravating factor has been established by a jury, or a defendant’s admissions or prior convictions. Last week Hughes felt the trickledown effect: The Supreme Court directed the First District “to vacate its decision and reconsider” his case, in light of People v. Black, 07 C.D.O.S. 8538, and People v. Sandoval, 07 C.D.O.S. 8528.

Millie Lapidario

$1.8M IN FEES AND COUNTING Justice Judith McConnell had little sympathy for the state of California last week, affirming $307,000 in attorneys fees for a woman who had been granted nearly $1.5 million in fees earlier in the same case. McConnell, of San Diego’s Fourth District Court of Appeal, made it clear in a ruling released Wednesday that state officials had no one but themselves to blame for the big financial hit. “The state ignores that its own conduct has extended the litigation and substantially increased awardable fees,” McConnell wrote in Vasquez v. State of California, 07 C.D.O.S. 9899. “As the [trial] court explained, ‘the state has in the history of this case, taken a scorched-earth, drag-your-feet � approach to the litigation where it has fought tooth and nail to avoid doing what it voluntarily agreed to do.’” Justices Patricia Benke and Gilbert Nares concurred. The state’s self-inflicted woes began when plaintiff Cristina Vasquez sued the state as a private attorney general for not enforcing Proposition 139, a 1990 statewide initiative that requires the state to compel joint-venture employers to pay prison inmates wages comparable to those in the private sector. In 2004, Vasquez and the state entered into a stipulated injunction that required state officials to “make reasonable and good-faith efforts” to comply with the ballot measure. Based on that injunction, San Diego County Superior Court Judge William Pate awarded Vasquez more than $1.25 million in attorneys fees. And that award was upheld by the Fourth District. Meanwhile, the trial court held further proceedings on the state’s proposed wage plans for the private employers remaining in its joint-venture program. Pate rejected those plans, calling them inadequate and awarding Vasquez another $242,000 in fees, again upheld by the Fourth District. Pate continued monitoring the state’s progress, expressing “frustration” several times in 2005 over constant delays in implementing the injunction he had OK’d. “Time is of the essence,” the Fourth District quoted Pate as saying. “The court’s patience is gone. We’ve waited 18 months. Early on, plaintiff’s counsel kept trying to get me to kick the state where it sits down and get them to start moving on this case. But I gave them, as I think one should a separate governmental agency, the time to do it themselves and to do it right. But now 18 months has gone by and we have long since exhausted that time.” Pate noted that the state had spent “hundreds and hundreds and hundreds of thousands of dollars” resisting his orders. Finally, in March 2006, Pate accepted “a reasonable plan” submitted by the state. But he also awarded Vasquez an additional $307,000 in attorneys fees. In affirming that award last week, the Fourth District said Pate had every right to be upset with the state. “This litigation has gone on for several years and because of the state’s noncompliance the [trial] court has extended the stipulated injunction to February 2008,” McConnell wrote. “Vasquez cannot be expected to wait until the injunction is fully satisfied or otherwise dissolved to obtain attorney fees,” she continued. “The injunction gives the [trial] court continuing jurisdiction to consider any application for attorney fees incurred ‘in consequence of’ the injunction.” In other words, state officials better get their act together or they might be paying even more fees. Court records indicate Vasquez was represented on appeal by Santa Monica lawyers Robert Berke and Joseph Pertel, as well as La Crescenta attorney Janet Herold. Berke, who was vacationing in Italy when contacted by The Recorder on Friday, said several other attorneys, including Berkeley’s Della Bahan, were also involved in the case. Berke said he didn’t want to comment because the case is still open at the trial court level. The state was represented on appeal by Thomas Clifton, a partner in Walnut Creek’s Archer Norris, who did not return a message left late last week.

Mike McKee

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