Tuesday, November 09, 2004

Waiver: California & A Wider Sample of Authority

Those who read the State's response to the Marion County Public Defender Agency's brief may have noticed that he only state case relied upon by the State for its waiver argument is a California case, People v. Sample, 18 Cal. Rptr. 3d 611 (Cal. Ct. App. 2004), reh'g denied, which takes a Cotton-like approach to waiver:

It is a well established rule in this state that a criminal defendant’s right to raise an issue on appeal is forfeited by the failure to have made a timely objection in the trial court.

This forfeiture rule extends to claims based on the alleged violations of fundamental constitutional rights. And it extends to challenges to the composition and procedure of the jury.

Accordingly, the forfeiture rule applies to claims of Blakely error for the following reasons: First, Blakely establishes a rule of federal constitutional law. No state court has held that the discretion granted trial judges by California’s sentencing laws violates our state Constitution. Second, the United States Supreme Court has held (1) the Apprendi rule is not a substantive rule that alters the range of conduct or the class of persons that the law punishes; rather, it is a procedural rule that affects only the manner of determining the defendant’s culpability, and (2) the Apprendi rule is not a “watershed rule of criminal procedure” that implicates the fundamental fairness and accuracy of criminal proceedings. (Schriro v. Summerlin). Third, in Cotton, the United States Supreme Court established that the forfeiture rule may properly be applied to claims of Apprendi error, and thus by extension to Blakely error. Fourth, our state Supreme Court has held that in considering the nature and effect of federal constitutional claims, we must apply federal standards. Fifth and finally . . . our state Supreme Court expressed a concern identical to that stated by the United States Supreme Court in Cotton, which held that the reversal of a judgment despite overwhelming and uncontroverted evidence because of an error to which an objection was not raised in the trial court would pose a real threat to the “fairness, integrity, and public reputation of judicial proceedings.” (Cotton, supra, 535 U.S. at p. 634.) Abandoning a reversal-per-se rule, the court . . . stated that in the face of overwhelming evidence clearly establishing the defendant’s guilt, “reversal of the judgment will result either in a superfluous retrial in which the outcome is a foregone conclusion or, even more unfortunately, in a new trial whose result is altered by the loss of essential witnesses or testimony through the passage of time. In either event, public confidence in the operation of the criminal justice system is diminished.”

It follows that, consistent with federal constitutional standards, a forfeiture rule applies to claims of Blakely error.

As we will explain, the forfeiture rule set forth in Cotton applies to defendant’s failure to challenge the upper term and consecutive terms in this case.

Slip op. at 34-37 (footnotes omitted) (some citations omitted). Sample, a Third District case decided on September 13th, has not been cited for its waiver analysis in a single published majority opinion in any jurisdiction anywhere that I can find.

Here's what a First District decision said about the veritable wall of published California authority contrary to Sample's waiver approach on October 22nd:

The Attorney General contends Lopez forfeited his Blakely claims by failing to raise them below. This argument has not fared well in California's Courts of Appeal. (People v. Ochoa (2004) 121 Cal.App.4th 1551, 1564-1565; People v. George (2004) 122 Cal.App.4th 419, 424; People v. Shaw (2004) 122 Cal.App.4th 453, 456, fn. 9; People v. Lemus (2004) 122 Cal.App.4th 614, 619-620; People v. Barnes (2004) __ Cal.App.4th __, 19 Cal.Rptr. 3d 229, 243-245; People v. Butler (2004) __ Cal.App.4th __, 19 Cal.Rptr. 3d 310, 315-316; People v. Vaughn (2004) __ Cal.App.4th __, 19 Cal.Rptr. 3d 460, 464; People v. Jaffe (2004) __ Cal.App.4th __, [2004 WL 229460]; but see People v. Sample (2004) 122 Cal.App.4th 206, 217-221 [Blakely claim forfeited, but reviewed under federal "plain error" standard].) We agree with the analysis of our colleagues in Division Two of this appellate district. Sentencing issues arising under Blakely present questions of fundamental constitutional rights; an objection in the trial court would have been futile under the law as it stood before Blakely; and we have discretion to consider issues that have not been formally preserved for review. It would be inappropriate to invoke the forfeiture doctrine in cases where sentence was imposed before the Blakely decision, since the purpose of the doctrine is to encourage defendants to bring errors to the trial court's attention. (People v. Butler, supra, __ Cal.App.4th __, 19 Cal.Rptr. 3d at p. 316.)

People v. Lopez, No. A101889, (Cal. Ct. App. October 22, 2004) (mem.), slip op. at 9. Among the eight published cases cited by Lopez that are contrary to Sample, Butler is especially and explicitly harsh about the importation of Cotton and about Sample by name:

We are not persuaded otherwise by the People's troubling reliance on two federal cases, United States v. Cotton (2002) 535 U.S. 625 (Cotton) and United States v. Ameline (2004) 376 F.3d 967 (Ameline). The People erroneously contend these cases support their view that a Blakely claim can properly be deemed 'forfeited' under California law, and thus not subject to review at all, even when, as here, Blakely was decided after the defendant's sentencing hearing.

As any fair analysis of these federal cases should acknowledge, characterizing a claim as 'forfeited' under federal law does not mean the claim is not reviewable on appeal. Rather, such a claim is reviewed for 'plain error' pursuant to rule 52(b) of the Federal Rules of Criminal Procedure. [*2] (See Cotton, supra, 535 U.S. 625, 631-632; Ameline, supra, 376 F.3d 967, 978-979.) In their supplemental brief, the People acknowledge that a plain error analysis was applied in Cotton but then argue that such an analysis is inapplicable in this state appeal. We agree. But, by the same token, these federal cases are not sound authority for denying any review of a state law claim which arose while the criminal appeal was pending.

In any event, California has a well-recognized waiver rule (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 351-356) applicable in circumstances of this sort and, as noted above, we have no problem in holding there was no waiver of Blakely error. (See, to the same effect, People v. Ochoa (1994) 121 Cal.App.4th 1551; People v. George (September 15, 2004, D042980) 122 Cal. App. 4th 419.) To the extent the recent decision of the Third District in People v. Sample (September 13, 2004, C044445) 122 Cal.App.4th 206 holds to the contrary, we respectfully disagree with it.

People v. Butler, 2004 Cal. App. LEXIS 1709, *1-2 (Cal. Ct. App. October 13, 2004) (denying rehearing). (Some citations omitted).

There's no reason the State should have found the unpublished decision in Lopez. But the authority Lopez relies upon is all published and contrary to Sample. I sure hope the Indiana Supreme Court doesn't think Sample represents "what California courts are doing." They are doing just the opposite.

And in line with Lopez and the apparent vast majority of California decisions, the Indiana Supreme Court has said, "The purpose of the requirement for a timely objection is to alert the trial court and to permit prevention or immediate correction of an error without waste of time and effort." Godby v. State, 736 N.E.2d 252, 255 (Ind. 2000). Apprendi objections in the non-capital sentencing context were futile at least as early as Parker v. State, 754 N.E.2d 614 (Ind. Ct. App. 2001), in which the court said to an Apprendi sentencing claim: "A Class A felony has a sentencing range from a presumptive thirty years to a maximum of fifty years. See Ind. Code § 35-50-2-4. Parker received forty years with a five-year enhancement. The application of the enhancement for use of a handgun in Parker's case did not, as a result, increase the maximum penalty for his offense." 754 N.E.2d at 618 n.7.

Maybe the Indiana Supreme Court should follow the majority of California decisions and not the single case.

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