Cunningham v. California: Trying to Get the Upper Term Reduced to the Middle Term Through Habeas Petitions

By Michael Kresser

On January 22, the U.S. Supreme Court issued its much inticipated decision in Cunningham v California (2007) __ U.S. __ [127 S.Ct. 856], ruling that the California Determinate Sentencing Law is unconstitional to the extent that it permits imposition of the upper term based on facts found by a judge on a preponderance of the evidence.

For current clients, all cases should be checked for imposition of an upper term for an offense or an enhancement to make sure a Cuningham challenge has not been overlooked. To those of you who have pending undecided Cunningham issues, you should strongly consider filing a supplemental brief

Implementation of Cunningham is going to require efforts by the Appellate Projects and panel attorneys to help former clients get back into court so they can seek a reduction of any upper term to the mid term. Under the Cunningham decision, the midterm of the DSL's typical triad is the relevant "statutory maximum" that may be imposed, unless additional aggravating facts, other than a prior conviction, have been found by a jury beyond a reasonable doubt or admitted by the defendant.

Potentially, any client or former client who received an upper term on a substantive offense or an enhancement which carried three possible terms (e.g., Pen. Code, sec, 12022.5, subd. (a) [3, 4 or 10 years]) has a claim that the sentence should be modified to the midterm.

Right now, there are a lot of unanswered questions about Cunningham, including the breadth of the recidivist exception, retroactivity, harmless error, the viability of jury trials for sentencing purposes as a remedy, and the best procedural avenue to pursue. It will likely be some time before definite answers to these questions are available, despite the California Supreme Court's recent orders for expedited supplemental briefing in People v Towne and several other pending cases.

However, we do have some suggestions on how panel attorneys should proceed, while recognizing that these suggestions are being made somewhat on the fly and may be modified by future developments or further consideration.

The best possible relief that a client could achieve through raising a Cunningham claim is a speedy reduction of any upper term imposed to the midterm. The question becomes how best to help the client achieve that result. In our opinion, in most cases that have become final, a petition for writ of habeas corpus filed in the superior court from which the conviction came is the best option.

This course of action is the most direct and expeditious. It would give the client the chance at getting the desired relief in a one shot process, via a modification of sentence ordered by the habeas court. It would give local prosecutors a chance to make a reasoned decision as to whether an additional year or two in some cases is worth the effort and expense involved in opposing the petition and then possibly transporting the prisoner from prison and conducting a new sentencing hearing.

Panel members will be compensated for preparing and filing a habeas petition for the client in the superior court in closed cases in which an arguable Cunningham claim can be made. Panel members will be permitted to file second final claims in such cases to add the time and expenses involved in preparing and filing the petition. If counsel does not want to litigate the matter in the superior court, the habeas petition should be filed for the client in pro per, and appointment of counsel should be requested. The superior court is required to appoint counsel if it issues an order to show cause. For attorneys interested in sticking with the case, fees for litigation of the petition in the superior court would have to be obtained through appointment by that court.

We encourage panel attorneys to assist their former clients in this way. We are attempting through various means to put together a list of former SDAP clients who have potential Cunningham claims. We are going to do our best to have all such clients get their claims presented. We look forward to working with the panel to get this accomplished. Cunningham is an opportunity for sentence relief for many of our clients, but it is not self-executing, and our clients need our help.

Step one in pursuing this claim is for all SDAP panel and staff members to examine their case loads and identify all present and past clients, going back, in our opinion, to all cases not final when Apprendi v. New Jersey was decided on June 26, 2000.

Step two is to communicate with the client. Inform him or her of the Cunningham decision and its possible application to the client's sentence. Explain that you are willing to prepare and file in pro per a habeas petition in the superior court seekig a reduction of any upper term to the midterm. You should also explain that, under the successive petition rules, filing a petition on Cunningham grounds might prevent them form presenting other habeas issues they are aware of.

Step three would be to prepare the habeas petition. The easiest way to do this is to use the Judicial Counsel habeas form to enter basic data about the case and to describe briefly the grounds and then attach a short memo of supporting points and authorities which lays out the essential procedural facts and contains arguments in support of the claim. We will post a sample petition in the next few weeks.

Step four would be to obtain the client's signature and to then mail the petition to the appropriate superior court and serve the district attorney.

In helping former clients make Cunningham claims, priority should be given to clients who are nearing the point at which they would complete their sentence if they were to obtain a reduction to the midterm. Clients on parole deserve some consideration too, because if their sentences are reduced, excess custody time will be taken off the maximum parole period. Given the extremely high parole violation rate in California, this may save the client a return to prison by getting him off parole at an earlier date.

Please feel free to email me with any ideas or coments you might have about the thoughts expressed here. I hope you will join in the effort to get every deserving SDAP client and former cleint the relief provide by Cunningham.

Februrary 21, 2007


Back to News