Action by the Supreme Court (of California)

Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:

In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?

My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court “abused its discretion by imposing the upper term and doubling it after refusing to” strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision’s final paragraph, the lower court stated:

Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]

I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an “upper term sentence.” Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.