Saturday, June 25, 2005

California Supreme Court speaks on Blakely and its impact in California

Last week the California Supreme Court held in People v. Black that allowing a judge to impose an aggravated sentence based upon facts he or she found to be true (rather than a jury) does not implicate nor violate Blakely or Booker.

Full case here:

http://caselaw.lp.findlaw.com/data2/californiastatecases/s126182.doc

The CASC held that because Apprendi allows a judge to sentence within the maximum sentence allowed by statute, the California procedure of allowing a judge to determine whether aggravating factors outwiegh mitigating factors, and thereafter impose an aggravated sentence that does not go beyond the statutory maximum, does not implicate Apprendi/Blakely/Booker. To put it another way, because a California state judge cannot find and enhance a defendant's sentence beyond the statutory maximum without additional jury findings on enhancements, the CASC said that the California procedure comports with the Sixth Amendment right to a a jury trial.
This one is going to the United States Supreme Court, we, as diligent and aggressive California criminal defense attorneys, must continue to object to imposition of aggravated terms and consecutive terms on "judge found" facts. This must also mean that the "Blakely" friendly Information(s) that I have been seeing must be demurrer to as failing to state a claim.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.

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