A Black Day: The California Supreme Court speaks . .

As advertised, the California Supreme Court has decided People v. Black. Six to one, the court has said Blakely does not apply to California sentencing. Justice Kennard stuck to her guns and dissented from that particular holding, although she said that Black's particular sentence did not violate Blakely. (See this prior post about the oral argument.)

The court also held that Blakely doesn't apply to consecutive sentencing in California because: 1) Blakely doesn't apply to California sentencing at all; and 2) Blakely doesn't apply to consecutive sentencing in any event.

The majority opinion is essentially Tennessee's Gomez revisited, taking its cue from the same paragraph of Justice Stevens' majority Booker opinion that Gomez completely misinterpreted. (See this prior post and this prior post about misunderstanding Booker. In the first of the two, it appeared to me that all but Justice Kennard were focusing on the Stevens paragraph. There are two tragedies in life: not being right and being right.) The Black majority does buff up the Gomez argument a bit with the intent of the California legislature in adopting California's "determinate sentencing law." There is also a highly problematic comparison of the post-Booker federal sentencing world with California sentencing.

Perhaps the most suspect moment of the majority opinion comes in an attempt to distinguish the "exceptional" sentence at issue in Blakely with California's every-day sentencing. The idea seems to be that because California courts impose upper terms all the time, there is nothing "exceptional" about the process and so not subject to Blakely.

The huge number of California Blakely cases almost guarantee a cert. petition. Because of California's size and the number of Blakely cases, a denial of a cert. petition in this case would be very telling--almost unimaginable. I find the prospect of a cert. denial almost unimaginable, because Jones, Apprendi, Blakely, and Booker create and enforce a formal sentencing rule that has nothing to do with legislative intent or distinctions between the exceptional and the every-day. But I have suffered a failure of imagination on any number of occasions here in Blakely World.

We now get to wait to see what the New Jersey Supreme Court says in Natale, Abdullah, and Franklin. As I recall the oral argument now, after Gomez and Black, I guess almost anything is possible. A number of the justices were pushing the Stevens "judicial discretion" paragraph from Booker. And I guess Black now gives the Gomez argument a certain faux-respectability--that can only be more faux than respectable.