JUSTICES' RULING MAY BOLSTER STATE'S LAW ON SENTENCING

California Gives Judges Power to Make Own Findings

The U.S. Supreme Court ruling Wednesday that struck down part of the
federal sentencing guidelines may help prosecutors defend California's
1978 sentencing law.

The state law prescribes three sentences for most crimes -- for
example, two, four or six years -- and requires the judge to choose
the middle term unless facts about the crime or the defendant justify
the longer or shorter sentence.

The California system differs in some respects from the federal
guidelines that were before the high court, but the two have one thing
in common: Both allow a judge to increase the sentence based on
findings made by the judge rather than the jury, such as the
defendant's leadership role in a crime, parole status or financial
gain.

After the Supreme Court overturned a Washington state sentencing
system last year and agreed to review the federal system, many
analysts predicted a ruling that would require jury findings for all
sentencing increases -- a decision that would limit California judges'
authority to impose the stiffest of the three possible sentences.

Wednesday's ruling did not go that far, however. The court ruled 5-4
that the right to a jury trial prohibits judges from making factual
findings to justify sentences longer than the range prescribed by the
federal guidelines, an elaborate system based on a defendant's crime
and record. But a different 5- 4 majority converted the guidelines to
advisory measures and allowed judges to impose the maximum sentences
permitted by federal law, often many years longer than under the guidelines.

Reactions in California varied, but two law professors and an advocate
for prosecutors said they think the current state law is likely to be
upheld. Two cases on the constitutionality of the law are pending
before the state Supreme Court, which has been awaiting the federal
ruling.

"I think this will make it easier to uphold the discretion of the
California judges," said Loyola University Law Professor Laurie Levenson.

Erwin Chemerinsky, a law professor at Duke University and the attorney
who challenged California three-strikes sentences before the U.S.
Supreme Court two years ago, said California judges appear to have the
same type of discretionary authority that the court upheld for federal
judges.

Wednesday's ruling probably means a California judge can impose the
longest of the three available sentences, Chemerinsky said, "so long
as the judge is not required to do so, and so long as the jury's
(guilty) verdict would support the sentence."

Dave LaBahn, executive director of the California District Attorneys
Association, agreed. "I don't believe that this decision affects us,"
he said. "We have a discretionary system."

Two defense lawyers had different views.

By prohibiting federal judges from making factual findings to justify
a longer sentence, the court effectively "prevents a (California)
judge from making those findings" to support a longer term, said J.
Bradley O'Connell, an attorney with the First District Appellate
Project in San Francisco.

He noted that many of the grounds for increasing sentences in
California -- for example, possession or use of a gun, infliction of
great bodily injury and participation in a gang-related crime --
already require jury findings.

Albert Menaster, a deputy public defender in Los Angeles and a defense
expert on sentencing law, said the ruling "supports our position that
(the Constitution) bars imposition of upper-term or consecutive
sentences without a jury finding."