Supreme Court strikes down California
sentencing scheme

By Julia Cheever, Bay City News Service

January 23, 2007

The U.S. Supreme Court, ruling in the case of a former Richmond police officer convicted of abusing his son, declared Monday that California's determinate sentencing law is unconstitutional.

The court said by a 6-3 vote that California's system of allowing judges to increase sentences violates defendants' Sixth Amendment constitutional right to a jury trial.

The decision was based on previous high court rulings in 2004 and 2005 that struck down Washington state and federal sentencing schemes that allowed judges to decide to increase sentences.

Justice Ruth Bader Ginsburg wrote, "Because the determinate sentencing law authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent."

The high court said it was up to California to decide how to adjust its sentencing system, but noted that one option is to allow juries to decide whether a sentence should be increased.

Ginsburg wrote that, "the ball . . . lies in California's court."

The court ruled in an appeal by former Richmond police officer John Cunningham of San Pablo, who was sentenced by a Contra Costa County Superior Court judge to an upper term of 16 years in prison for abusing his son.

The trial judge found that aggravating factors including the boy's vulnerability justified the higher sentence.

Peter Gold, Cunningham's lawyer in the appeal, said he expects Cunningham to be re sentenced. He said he believes "a large number" of California who received increased penalties will also be re-sentenced.

Gold said the ruling "strongly reaffirms" the precedent in the high court's earlier sentencing decisions.

A spokesman for California Attorney General Jerry Brown was not immediately available for comment.

The determinate sentencing law, enacted in 1977, was intended to reform the state's previous indeterminate sentencing, in which judges gave open-ended prison terms and the state parole board determined the amount of time a convict spent in prison.

For most felonies, the determinate law prescribes a lower, middle and upper term and the judge decides which term to impose after considering aggravating and mitigating circumstances.

For Cunningham's conviction for continuous sexual abuse of a child under 14, the possible terms were six, 12 or 16 years in prison.

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