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In re Gomez

February 2, 2009


Ct.App. 2 B197980 Los Angeles County Super. Ct. No. KA064573. Judge: Bruce F. Marrs.

The opinion of the court was delivered by: George, C. J.

This case presents the question whether Cunningham v. California (2007) 549 U.S. 270 (Cunningham) applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely v. Washington (2004)542 U.S. 296 (Blakely) was decided. We conclude that Cunningham does apply in these circumstances, and reverse the contrary decision of the Court of Appeal.


Petitioner was convicted of rape and was sentenced to the upper term of eight years in state prison. (Pen. Code, § 261, subd. (a)(2).)*fn1 At his sentencing hearing, the trial court cited the following as aggravating circumstances, in support of its decision to impose the upper term: the victim (petitioner's daughter) was particularly vulnerable, the crime was vicious and callous, petitioner threatened witnesses, petitioner took advantage of a position of trust and confidence, petitioner engaged in a common scheme or plan to use his daughters for sexual purposes, and the victim was under the age of 18 years.

Petitioner's sentencing hearing took place on July 29, 2004, four months after the United States Supreme Court issued its opinion in Blakely, supra, 542 U.S. 296. Blakely held that a criminal defendant's Sixth Amendment right to jury trial was violated by a Washington state trial court's imposition of " 'an exceptional sentence' " beyond the " 'standard range' " provided under Washington's Sentencing Reform Act, based upon facts that had not been found to be true by a jury beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 299.) Petitioner in the present case, both in the trial court and on appeal, argued that the imposition of the upper-term sentence violated his Sixth Amendment rights under Blakely because none of the aggravating circumstances had been found true by a jury. On June 16, 2005, during the time petitioner's appeal was pending, this court decided People v. Black (2005) 35 Cal.4th 1238 (Black I), holding that Blakely did not apply to California's determinate sentencing law (DSL). Thereafter, in the present proceedings, the Court of Appeal upheld petitioner's upper-term sentence on September 8, 2005, relying upon our decision in Black I. Petitioner did not seek review in this court or in the United States Supreme Court.

Subsequently, the United States Supreme Court granted certiorari in Cunningham v. California (Feb. 21, 2006) 546 U.S. 1169, to address the application of Blakely to California's DSL. Nearly one year later, on January 22, 2007, the United States Supreme Court held that, contrary to this court's decision in Black I, the Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt apply to aggravating factors that make a defendant eligible for an upper-term sentence under the DSL. (Cunningham, supra, 549 U.S. at pp. 288-293.)

Petitioner filed a petition for writ of habeas corpus in the superior court on February 20, 2007, one month after the Cunningham decision was issued, again challenging imposition of the upper-term sentence. The superior court denied relief, concluding that Cunningham applies only to cases not yet final as of the date of the high court's decision. Petitioner then filed a habeas corpus petition in the Court of Appeal, which issued an order to show cause.

The Court of Appeal subsequently denied the petition, concluding that because Cunningham established a "new rule," the rule applies only to judgments not yet final at the time Cunningham was decided. The appellate court applied the retroactivity test established in Teague v. Lane (1989) 489 U.S. 288 (Teague), and employed by federal courts in habeas corpus proceedings, in reviewing state court judgments. Under that test, a decision establishing a "new rule" applies only to state court judgments not yet final at the time of the decision, unless one of two very limited exceptions applies. (Id. at p. 301)*fn2 For purposes of the Teague test, a case is final "when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." (Caspari v. Bohlen (1994) 510 U.S. 383, 390.) Petitioner does not dispute that the judgment in his case was final before Cunningham was decided. The critical question, then, is whether Cunningham established a new rule for purposes of retroactivity analysis. Under the decision in Teague, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." (Teague, supra, 489 U.S. at p. 301, italics omitted.)

The Court of Appeal below reasoned that the result in Cunningham was not dictated by Blakely, because that outcome was susceptible to debate among reasonable jurists, as evidenced by (1) the many pre-Black I opinions in the California Courts of Appeal concluding Blakely did not apply to California's DSL, (2) this court's own decision in Black I, and (3) the dissents by three justices of the United States Supreme Court in Cunningham. (See Cunningham, supra, 549 U.S. 270, 297-311 (dis. opn. of Alito, J.).) Accordingly, the Court of Appeal found it "readily apparent" that Cunningham announced a new rule of law. We granted review.


Ordinarily, we will provide a remedy on collateral review of a final judgment if that remedy would be available in the federal courts. "Whether or not we are compelled to afford defendants a comparable state collateral remedy [citations], the availability of the federal remedy makes it pointless for us to refuse to do so . . . ." (In re Spencer (1965) 63 Cal.2d 400, 405-406.) As a matter of practical policy, it would not make sense for our state courts to reject claims grounded upon Cunningham if those claims would be granted in the federal courts. Such a course of action would result in duplicative litigation and greater delay in achieving finality of state court judgments. Consequently, if we conclude that the United States Supreme Court would require the federal courts to afford relief under Cunningham to petitioners in habeas corpus proceedings whose judgments became final after Blakely but before Cunningham, we will apply the high court's decision in Cunningham in such proceedings as well.*fn3

In Teague, the United States Supreme Court abandoned the approach it previously had employed in determining the retroactive effect of new rules. Under its former approach, the court considered (1) the purpose of the new rule, (2) the reliance of the states on prior law, and (3) the effect on the administration of justice of a retroactive application of the rule. (See Linkletter v. Walker (1965) 381 U.S. 618.) The court in Teague observed that the Linkletter standard "has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced." (Teague, 489 U.S. at p. 302.) The court believed it was inequitable to give the benefit of a new rule to the defendant in the case in which the new rule was announced, but to deny the benefit of that rule to similarly situated defendants whose judgments were not yet final. (Id. at p. 304.) Under the standard announced in Teague, new rules should apply to all cases in which the judgment is not yet final. Conversely, new rules generally should not be applied retroactively to cases in which the judgment was final when the new rule was established. (Id. at pp. 305-310.)

"[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. [Citations.] To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." (Teague, supra, 489 U.S. at p. 301, italics omitted.) "Teague's non-retroactivity principle acts as a limitation on the power of federal courts to grant 'habeas corpus relief to . . . state prisoner[s]' [Citation.]" (Beard v. Banks, supra, 542 U.S. at p. 412.) "The 'new rule' principle' ". . . validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." (Butler v. McKellar (1990) 494 U.S. 407, 414.)

We have little doubt that, if faced with the issue, the United States Supreme Court would conclude that Cunningham did not break new ground and that it was "dictated by" Blakely - "precedent existing at the time [petitioner's] conviction became final." (Teague, supra, 489 U.S. at p. 301, italics omitted.) As we previously have explained, "Blakely extended the scope of the high court's earlier decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which established that a defendant has a constitutional right to a jury trial on sentence enhancements, a right that already was accorded to California defendants by statute. [Citations.]" (Black I, supra, 35 Cal.4th at p. 1248.) Apprendi established the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) "Several years after the Apprendi decision, Blakely extended the jury trial requirement set forth in Apprendi, redrawing the line between factual findings that require a jury trial, and sentencing factors on which a judge may make findings. In Blakely, the high court held that the prescribed ...

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