California: More Booker back-pedaling

I am simply gobsmacked to find that the Indinana judges who are now pulling back from Blakely's applicability to Indiana sentencing.

I have not yet looked at even most of the California Court of Appeals Blakely opinions since Booker--the output has been prodigious--but I offer up this carved-up bit from an upublished opinion, People v. Forest, Case No. F044151 (Cal. App. 5th Dist., Feb. 24, 2005) (mem.)

California's determinative sentencing law differs from the federal and Washington schemes because in California each crime is assigned a three-tier sentencing range. The midterm is presumed to be the proper sentence, unless mitigating factors suggest the lower or mitigated term is appropriate, or aggravating factors suggest the upper or aggravated term is appropriate.

. . . .

Prior to Booker, the question of whether the decision to impose aggravated terms violated Blakely was subject to serious debate.

. . . .

We think that Booker, however, resolves the confusion caused by Blakely and establishes that California's determinate sentencing law does not violate a defendant's Sixth Amendment right to a jury trial.

First, the majority opinion written by Justice Stevens reaffirms that a trial court has discretion to impose sentences within a prescribed statutory range relying on facts not necessarily found true by the jury. We note that nothing in Apprendi, Blakely, or Booker suggests that a trial court does not have authority to choose a specific sentence within the initial range identified in each opinion. n6 It is only when the trial court exceeds
the initial statutory range that a defendant's Sixth Amendment right is implicated.

Which brings us to our second point. We think the proper analysis of Booker establishes that Apprendi and Blakely were intended to apply to enhancements to a sentence. n7 In other words, Justice Stevens clarified that the Sixth Amendment applies when an enhancement increases a defendant's sentence, but has no application when a sentence is imposed within a range of possible sentences. We also note that in each case it was the trial court that found the enhancement true, using the preponderance of the evidence standard.

Third, Justice Stevens's opinion acknowledged that the only constitutional defect to the federal sentencing guidelines was their mandatory nature. The remedy chosen by the majority of the Supreme Court was to give trial court's discretion in imposing a sentence, apparently, even if the sentence was within the enhanced range. Thus, all members of the United States Supreme Court agree that judicial discretion in sentencing does not violate the Constitution.

California's determinate sentencing law does not suffer the constitutional defects of the statutes addressed in Apprendi, Blakely, and Booker. A trial court in California has discretion to choose either a mitigated term, the midterm, or an aggravated term. When a trial court imposes an aggravated term, it is exercising discretion within a prescribed statutory range. A jury using the beyond-a-reasonable-doubt standard must find all enhancements to the sentence true. This is the type of system that we read Booker to require. Therefore, we reject Forest's argument that his Sixth Amendment right to a jury trial was violated when the trial court imposed an aggravated sentence.

(Footnotes omitted).

Sorry. It doesn't pass theDilts test, if I correctly understand that in California, absent a finding of some aggravating circumstance, an upper-term sentence will be reversed on appeal. Maybe someone more knowledgeable about California law will comment.