Today, the California Supreme Court issued an opinion re: California's determinate sentencing scheme and the Blakely / Booker line of cases. In People v. Black, a 6-1 majority of the court finds that California judges can impose upper terms of the sentencing ranges based on aggravating factors found solely by the judge, even if those factors are beyond those admitted by the defendant or inherent in the jury's guilt finding. The court also finds that the defendant does not have a right to jury trial as to whether the sentences on two or more crimes are going to be run consecutively.
The lone dissenter is Justice Kennard. She dissents from the portion of the majority opinion, in which the majority allows judges to impose aggravating sentences based on facts not admitted by the defendant or found by jury beyond a reasonable doubt. She would, however, affirm the upper-term sentence to the Black defendant because of his prior criminal history, on which he does not have a right to jury trial. She also joins the majority on the consecutive sentencing portion of the opinion.
The majority's opinion seems spectacularly wrong. I was really confused by that whole bit about the Blakely / Booker decisions allowing judges to engage in "traditional judicial fact-finding." As Justice Kennard correctly points out in her dissent, the Booker majority rejected that approach and held, once again, that the court can aggravate a sentence above the level inherent in the jury's guilt finding only based on facts admitted by the defendant or found true by the jury beyond a reasonable doubt.
Also, as Justice Kennard, I do not see any meaningful distinction between California's sentencing scheme and Washington scheme struck down in Blakely.
In light of the fact that the majority opinion seems to be in clear contradition of the Booker / Blakely decisions, I would expect SCOTUS to take this up.