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The California Supreme Court upheld the state’s sentencing guidelines Monday, saying that they comported with two recent decisions by the U.S. Supreme Court. In a 6-1 ruling, the court, led by Chief Justice Ronald George, said trial judges’ discretion in applying upper-term sentences for criminal defendants based on aggravating factors did not violate their right to a fair trial. People v. Black, 05 C.D.O.S. 5326, essentially leaves intact thousands of prisoners’ sentences that might otherwise have been contested. One concurring and dissenting justice, however, said some of those sentences should be in question. Last year’s U.S. Supreme Court ruling in Blakely v. Washington, 124 S.Ct. 2531, made it unconstitutional for judges to increase sentences beyond the statutory maximum based on factors decided by a sentencing judge, rather than a jury. And five months ago, the court extended that reasoning to the federal system in U.S. v. Booker, 125 S.Ct. 738, calling the sentencing guidelines advisory, not mandatory. But California’s sentencing scheme is in line with Booker, George wrote Monday. In the underlying case, Kevin Black, a Tulare County man, was convicted of continuous sexual conduct with a child under 14, which is punishable by six, 12 or 16 years in state prison. Superior Court Judge William Silveira Jr. sentenced Black to the 16-year term. Black also was convicted of two counts of lewd and lascivious conduct on other children. Silveira added 15 years to life for each of those offenses, with all three sentences running consecutively for a total of 46 years to life. The judge said he imposed the upper term for each conviction because Black had abused a position of trust and acted in a predatory manner, among other reasons. George wrote for the court that because the Legislature contemplated a range of sentences, the upper term did not fall outside the “statutory maximum.” “In operation and effect,” George wrote, “the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of fact finding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.” Justices Marvin Baxter, Kathryn Mickle Werdegar, Ming Chin, Janice Rogers Brown and Carlos Moreno concurred. Justice Joyce Kennard agreed with the majority in the present case, but disagreed “with the majority’s conclusion that imposition of an upper term under California’s sentencing scheme never implicates a defendant’s constitutional rights to trial by jury.” Kennard said that when trial judges consider aggravating factors unrelated to a defendant’s criminal background or that weren’t found true by a jury, upper terms may be unconstitutional. Black’s attorney, Eileen Kotler, said her client plans to appeal, but hasn’t decided whether it will be to the U.S. Supreme Court or another federal court. “As a practical matter, had they found that the Sixth Amendment applied to the California sentencing scheme, there are thousands of cases that would have to be reviewed, and I don’t think they wanted to do that,” said Kotler, of Pacifica. “Procedurally, that would be very difficult.” In a statement, Attorney General Bill Lockyer called the Black decision “an important ruling.” “The state carefully constructed its sentencing system to protect defendants’ right to a jury trial, and at the same time give judges appropriate leeway to impose longer terms when they find aggravating factors,” Lockyer said. Senior Writer Mike McKee contributed to this report.

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