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California’s judges can breathe easier. The California Supreme Court seemed confident Thursday that the state’s sentencing guidelines pass constitutional muster under U.S. Supreme Court rulings that struck down Washington state’s guidelines last year and declared their federal counterparts only advisory earlier this year. “It would seem to me the federal system is different,” Chief Justice Ronald George said during oral arguments in a case that has been widely, and nervously, anticipated by the state’s legal community. The sentencing case was touched off by last year’s U.S. Supreme Court ruling in Blakely v. Washington, 124 S.Ct. 2531, which held that the Sixth Amendment right to a jury trial made it unconstitutional for judges to increase sentences based on factors not heard by jurors. Three months ago, the court extended that reasoning to the federal system in U.S. v. Booker, 125 S.Ct. 738, calling the guidelines advisory, not mandatory. Pacifica, Calif., lawyer Eileen Kotler represented Kevin Black, a Tulare County, Calif., man who had been sentenced to 16 years for one count of continuous sexual conduct and 15 years to life for two counts of lewd and lascivious conduct on children. In doing so, the trial court judge ordered that the sentences be served consecutively for a total term of 46 years to life. The judge imposed the upper term for each because of the “nature, seriousness and circumstances” of the crimes and because there were three underage victims. On Thursday, Kotler argued that under Blakely and Booker those kinds of enhanced sentences can no longer stand. Blakely, she said, made it clear that other than a prior conviction, any fact that increases the penalty beyond a prescribed statutory maximum must be submitted to a jury. George, however, advised Kotler to look closer at Booker, saying it would illustrate the distinctions between the federal and California sentencing schemes. In that case, he noted, the drug defendant got 360 months — rather than the prescribed range of 210 to 262 months — because the judge found by a preponderance of the evidence that he possessed a huge amount of cocaine. In California, he said, “we have enhancements that go to a jury for guilt beyond a reasonable doubt.” Justice Marvin Baxter noted that there are some aggravating factors that aren’t even admissible at trial. “If a judge felt, or a DA felt, the upper term was appropriate,” he asked, “would the court have to have a separate penalty phase?” Justice Carlos Moreno suggested that California judges have more discretion than federal judges in looking at criminal history in enhancing a sentence. Justice Joyce Kennard, on the other hand, questioned Los Angeles-based Deputy Attorney General Lawrence Daniels whether there really was a difference between the sentencing laws of Washington and California. Under both, she said, “the trial court cannot impose an aggravated term unless it finds an aggravated factor.” She also asked Daniels whether there would be a “horrendous effect” on the state’s trial courts if the court ruled against him. The case is People v. Black, S126182.

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