Consecutive questions about consecutive sentencing

As I have suggested before here and here, the “prior conviction” exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely‘s applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.

In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants’ claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important “Blakely front.” (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)