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Cunningham Legislative Fix


Senator Gloria Romero, who chairs the California Senate Public Safety Committee, has introduced a legislative fix for the Cunningham v. California problem. For technical reasons, the new bill is an "amendment" to an unrelated previous bill that deletes and replaces the entire text of the bill, SB 40. Update: Andy Furillo of the Sacramento Bee reports that the bill passed out of committee 4-0.

The key passage (and only substantive change) is this amendment to Penal Code § 1170(b):

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime the choice of the appropriate term shall rest within the sound discretion of the court.

The requirement of a finding of fact to impose the upper term, included in the original Determinate Sentencing Law as a protection for the defendant, would be deleted. In the surreal world of Blakely, this protection renders the statute unconstitutional, and its deletion reinstates the statute. As a practical matter, though, it wasn't much of a protection, because there are no real people or real crimes for which some aggravating fact cannot be found. So, if this amendment goes through, California sentencing will operate as it did before Cunningham for essentially all practical purposes.

Another strange thing about Cunningham is that it is addressed to the least problematic aspect of California sentencing law. The basic triad of sentences for most felonies fall within a range that is not particularly controversial. The sentence choices for rape, for example, are three, six, or eight years. See Penal Code § 264. Does anyone think six years is excessive for a median rapist or that eight is excessive in an aggravated case? The Three Strikes Law, on the other hand, is far more controversial, yet it is unaffected by Cunningham, which reaffirmed the "prior conviction" exception to the Apprendi rule.

Under the California Constitution, the bill will need approval of 2/3 of both houses to take effect immediately as an "urgency" measure, rather than the standard January 1 effective date.

The fact that this fix was introduced by a leader of the soft-sentencing brigade implies that some kind of consensus has been reached to do a quick fix now and leave more extensive changes until later. The change made by this bill sunsets on 1/1/2009, apparently so that the Cunningham problem remains as an incentive to get some kind of sentencing change through the Legislature. A hearing was held on the bill today, and we will post more info here when it is available.


Isn't this a return to the bad old days of arbitrary sentencing?

I used your blackline version at SL&P; thanks.

I agree that both the Supreme Court's Booker fix and the proposed Cunningham fix are steps backward in the direction of arbitrariness with no real advance for Sixth Amendment rights. In California, though, it is a very small step, because the finding of at least one aggravating fact with no real limit on what that fact could be was more of a formality than a genuine limit on judicial discretion.

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