Cunningham, John v. California (01/22/2007)

Questions presented: Whether California's Determinate Sentencing Law, by permitting judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the 6th and 14th amendments?

BY BLATHNAID HEALY, MEDILL NEWS SERVICE

John Cunningham, a former police officer, was convicted by a jury in Contra Costa County, California, of sexually abusing his young son.

The evidence at trial showed that the abuse began after his son, referred to as John Doe, came to live with Cunningham and his girlfriend when he was 10. One year after the abuse began, according to the evidence, Doe told his cousin about his father's actions, including forcing the boy to perform oral sex. During trial, the prosecution introduced a videotape made by the Children's Interview Center, that interviewed the boy about the sexual assaults he claimed had taken place.

After denying Cunningham probation at sentencing, the judge then found that aggravating factors outweighed mitigating factors in sentencing him to 16 years in prison for the continuous sexual abuse.The only mitigating factor the judge found was that Cunningham lacked any prior record. In balance, the judge identified six aggravating factors, including the violence and viciousness of the acts, the vulnerability of his son, the threat of bodily harm to him if he didn't recant, and his employment as a police officer.

The 16-year sentence was the maximum term that could be imposed for such an offense.

In the California state court system, the judge makes the decision to sentence the convicted person to the lower, medium or maximum sentence. Generally a judge will hand out the medium sentence unless there are other factors to be considered.

Cunningham appealed the maximum term sentence. His attorney Peter Gold argued that the court used facts not determined by the jury to arrive at the sentence, in violation of his 6th Amendment right to a jury trial and his 14th Amendment right to due process. He pointed out that because the jury did not find five of the six aggravating factors beyond a reasonable doubt, they should have been excluded from the judge's sentencing decision.

Gold also argued that parts of the videotaped interview with the victim should not have been played and considered as evidence because the contents were based on hearsay rather than fact.

A state Court of Appeal panel upheld the conviction and sentence, holding that the judge's exercise of discretion in imposing the maximum sentence did not violate Cunningham's right to a jury trial.

The issue of whether a judge's sentence violates a defendant's right to a jury trial emerged from the U.S. Supreme Court's 2004 decision in Blakely v. Washington, in which the Court held that "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."

Writing for the 2-1 majority on that issue, Judge Mark Simons concluded simply that the 16-year upper term was the maximum statutorily authorized sentence" for committing a continuous sexual abuse.

In dissenting on that issue alone, Judge Barbara Jones interpreted California's determinate sentencing scheme differently, concluding that "the maximum sentence a court can impose without making additional factual findings is the middle term." Jones would have remanded the case for resentencing.

The California Supreme Court denied Cunningham's petition for review.

In appealing to the U.S. Supreme Court, Gold argued for Cunningham that the way in which California's sentencing scheme allows a judge to depart from the findings of the jury and use his or her discretion when sentencing beyond the presumptive middle term provided for a given offense.

Gold also cited the Supreme Court's 2005 decision in U.S. v. Booker, in which the Court held unconstitutional similar provisions in the sentencing rules in the state of Washington.

In reply, Jeffery Lawrence, for the state of California, said there is nothing unconstitutional about California's sentencing laws, referring to the two Supreme Court cases. He argued for California that a judge is entitled to use his or her discretion when dealing with any aggravating factors relevant to the sentencing of an individual.

Lawrence wrote that while the midterm range is the presumed sentence, it need not be the only option if there are aggravating factors for the judge to consider, as there were in Cunningham's case, and if in considering them, they related to the decision made by the jury at trial.

On Feb. 21, 2006, the Supreme Court accepted the case for review and allowed Cunningham to have his case heard without costs.

Almost a year later, on Jan. 22, 2007, the Court sided with Cunningham, holding 6-3 that California's determinate sentencing law, by placing sentence-elevating factfinding within the judge's province, violated Cunningham's right to trial by jury.

Writing for the majority, Justice Ruth Bader Ginsburg stated: "This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."

Justices Anthony Kennedy, Stephen Breyer and Samuel Alito dissented. In dissenting, they found fault with the whole line of cases that began with Apprendi in 2000.

"In my view the Apprendi line of cases remains incorrect," wrote Kennedy. "Yet there may be a principled rationale permitting those cases to control within the central sphere of their concern, while reducing the collateral, widespread harm to the criminal justice system and the corrections process now resulting from the Court's wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries."

Alito felt similarly, though he put it in a different way. "The California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in U.S. v. Booker," Alito wrote. Both sentencing schemes grant trial judges considerable discretion in sentencing; both subject the exercise of that discretion to appellate review for 'reasonableness'; and both--the California law explicitly, and the federal scheme implicitly--require a sentencing judge to find some factor to justify a sentence above the minimum that could be imposed based solely on the jury's verdict. Because this Court has held unequivocally that the post-Booker federal sentencing system satisfies the requirements of the 6th Amendment, the same should be true with regard to the California system."