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

By Kent Russell – 2007  Image courtesy

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.

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