August 25, 2011: All of the information on this page is now obsolete.

Articles/Reports

Following are four documents relating to Cunningham v. California:

1)  “The Life and Times of the California Determinate Sentencing System: Cunningham and Family”:  This paper provides a kind of “primer” on the basic cases and issues involved.  The first reviews the odyssey that began almost 10 years ago, gained serious momentum in Apprendi and Blakely, and moved directly into California in Cunningham, only to be rendered virtually toothless by the California Supreme Court in Black II and Sandoval.  The second part surveys issues that are left after the California Supreme Court decisions.  The appendix is an compilation, or “family tree,” of the cases, from ancestors of Cunningham, to its near kin, to California Supreme Court decisions and review-granted cases, and finally to Court of Appeal cases.

2)  “Single Valid Factor Test:  A Critique”:  This document analyzes critically one of the most important holdings of Black II, the doctrine of the single valid factor, which provides that the existence of one Blakely-compliant factor in aggravation is sufficient to satisfy that case, even though the judge relied on numerous invalid factors, as well, and likely (or certainly) would not (or could not) have imposed the upper term without those invalid factors.  The analysis argues that this doctrine postulates a Determinate Sentencing Law that never was and that it is internally incoherent.

3)  “Due Process / Ex Post Facto Issues in Sandoval Remedy”:  This document outlines the due process / ex post facto ramifications of retroactively applying revised sentencing rules less favorable to the defendant than the ones in existence at the time of the criminal act.  It reviews the various ways the Sandoval reformation makes the law less favorable within the meaning of ex post facto law and criticizes the California Supreme Court’s efforts to avoid the ex post facto objections.  It sets forth the correct test and demonstrates that the Supreme Court has revised a statute in a way that, if done by the Legislature itself, would have been unconstitutional. 

4) “In re Gomez – Letter of Amicus Curiae Appellate Defenders, Inc., in Support of Petition for Review; Alternatively, Request for Depublication”:  The last attachment is the ADI amicus curiae letter supporting the petition for review in In re Gomez, a case in which the Court of Appeal had denied a habeas corpus petition raising Cunningham on the ground that decision was “new law” and could not be applied retroactively to cases final before the date of its issuance.  The California Supreme Court has granted review in the case, S155425, now in the reply brief stage.  ADI plans to file an amicus brief, which will be posted on the website when filed.

We hope these materials will be a helpful reference tool and a foundation for future briefing.

ADI's Blakely Memo Regarding Blakely
Prepared by Elaine A. Alexander, Executive Director of Appellate Defenders, Inc.

Blakely, Booker, and Black. Now What?
Prepared by Jonathan D. Soglin, Staff Attorney, First District Appellate Project
June 2005

Blakely and Booker in California: the Next Generation
Prepared by J. Bradley O’Connell Staff Attorney, First District Appellate
Project jboc@fdap.org January 2005

FDAP's Memo Regarding Blakely:
Prepared by J. Bradley O’Connell, Staff Attorney, First District Appellate Project,

Application of Blakely v. Washington to California Courts
by Superior Court Judges J. Richards Couzens and Tricia A. Bigelow
The purpose of the report was to advise California's courts of potential sentencing issues raised by Blakely, and to suggest a reasonable course of action to address the potential effect of the decision pending further analysis by our appellate courts.

"Blakely's Federal Aftermath"
by Prof. Stephanos Bibas
A revised draft of this article is to be published in a forthcoming issue of the Federal Sentencing Reporter, (cited as 16 Fed. Sentencing Reporter (forthcoming June 2004)).

Drawing the Line in Crawford and Blakely
by Jeffrey L. Fisher
Much to the surprise of many, the Supreme Court delivered defendants two big Sixth Amendment victories this year in the form of categorical rules. Counsel of record in Crawford and Blakely argues that maybe it is time for the criminal defense bar to reconsider the utility and equity of advocating bright-line rules.

Blakely Web Blogs

• Sentencing Law & Policy - A blawg prepared by Professor Douglas Berman. Professor Berman was the editor of the Federal Sentencing Reporter for nearly ten years and now serves as co-managing editor of the Ohio State Journal of Criminal Law.

Blakely Web Pages

• District of Columbia Federal Public Defender Blakely Page
• First District Appellate Project Blakely Page
• National Association of Defense Lawyers (NACDL) Blakely Page
• United States Supreme Guide Blakely Page