Cunningham v. California: Who’s Covered and Who’s Not?

Cunningham v. California: Who’s Covered and Who’s Not?

By Kent Russell

On January 22, 2007, the U.S. Supreme Court decided Cunningham v. California, __ S.Ct. __, 2007 WL 135687 (No. 05-6551), holding that California’s determinate sentencing law, which allows CA judges to impose upper-term sentences (i.e., the highest of the three possible sentences which can be imposed for any given offense) on the basis of factors found by the judge rather than by the jury, is unconstitutional. The purpose of this commentary is to concisely explain to prisoners whether or not they have a chance for getting any sentencing relief under Cunningham.

First off, it must be said that Cunningham is still so new that the California Supreme Court has not yet provided any guidance at all as to how this case will actually be interpreted in practice. Also, it’s at least possible that California may set up a procedure to enable prisoners to get Cunningham sentencing relief without having to go to court to get it. In the meantime, though, prisoners who are trying to decide whether or not they are covered by Cunningham should consider the following:

Because Cunningham applies only to California’s sentencing laws, it does not cover prisoners sentenced in other states.

Cunningham only applies where the upper term was based on findings made by the judge rather than by the jury and where the prisoner was given a specific sentence to the highest of the three possible terms. Therefore, for example, it will not apply to indeterminate sentences such as those for murder (15 to life, 25 to life, etc.); to sentencing enhancements based on facts found by the jury (such as the 20 or 25 years tacked on for using or firing a gun during the crime); or to sentences where the judge imposed the lower or middle term.

Cunningham is based on the previous decisions in Apprendi and Blakely, and neither of those cases holds that the Constitution prohibits a judge from increasing a sentence based on priors. Therefore, where a California judge selected the upper term based solely on the prisoner’s prior convictions, Cunningham won’t apply.

Cunningham error must be shown to be “prejudicial” to afford any relief in court. Hence, in guilty plea cases, Cunningham will not apply where the defendant admitted the fact(s) that the judge used to impose the upper term.

A defendant can waive his 6th Amendment rights in the course of plea negotiations. Therefore, Cunningham won’t provide relief where a defendant expressly waived his rights to relief under Cunningham or Blakely; or where the defendant plea-bargained for the imposition of a specific sentence.

“New” rules of criminal procedure normally do not apply retroactively to prisoners whose convictions became “final” before the rule was established by the U.S. Supreme Court. In California, finality occurs 90 days after the California Supreme Court denied the petition for review on the first (direct) appeal; or, if no petition for review was filed, 40 days after the Court of Appeal decision is dated. Thus, even prisoners who otherwise qualify under Cunningham for a potential sentence reduction will not be able to get it on habeas corpus unless their convictions became final in the relatively recent past. The Cunningham decision just came down on January 22, 2007, but it is based on Blakely, which was decided on June 24, 2004, and to a somewhat lesser degree on Apprendi, which was announced on June 26, 2000. Therefore, for those prisoners otherwise eligible for relief under Cunningham:

  • The relatively few whose convictions still weren’t final as of 1/22/07 should file for habeas relief before finality occurs.
  • Prisoners whose convictions became final before 6/26/00 have no chance for relief under Cunningham.
  • Prisoners whose convictions became final after 6/24/04 are in better shape, but those whose finality date is later than 6/26/00 are still in the ball game as well. Prisoners in group (3) should consider filing Cunningham claims on habeas corpus: those who do should file no later than 1 year after 1/22/07, the date Cunningham came down.

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus and AEDPA. The new 5th Edition (completely revised in October 2006) is now shipping and can be purchased for $39.99 (cost is all-inclusive for prisoners; others pay $10 extra for postage and handling). No particular order form is necessary; send your check or money order to Kent Russell, “Cal. Habeas Handbook”, 2299 Sutter Street, San Francisco, CA 94115.