Supreme Court of California Justia
Docket No. S155425
In re Gomez

Filed 2/2/09


) Ct.App.
on Habeas Corpus
Los Angeles County
Super. Ct. No. KA064573

This case presents the question whether Cunningham v. California (2007)
549 U.S. 270 (Cunningham) applies on collateral review of a judgment that
became final before Cunningham was decided but after Blakely v. Washington
(2004) 542 U.S. 296 (Blakely) was decided. We conclude that Cunningham does
apply in these circumstances, and reverse the contrary decision of the Court of
Petitioner was convicted of rape and was sentenced to the upper term of
eight years in state prison. (Pen. Code, § 261, subd. (a)(2).)1 At his sentencing
hearing, the trial court cited the following as aggravating circumstances, in support
of its decision to impose the upper term: the victim (petitioner’s daughter) was
particularly vulnerable, the crime was vicious and callous, petitioner threatened
witnesses, petitioner took advantage of a position of trust and confidence,

All further statutory references are to the Penal Code, unless otherwise

petitioner engaged in a common scheme or plan to use his daughters for sexual
purposes, and the victim was under the age of 18 years.
Petitioner’s sentencing hearing took place on July 29, 2004, four months
after the United States Supreme Court issued its opinion in Blakely, supra,
542 U.S. 296. Blakely held that a criminal defendant’s Sixth Amendment right to
jury trial was violated by a Washington state trial court’s imposition of “ ‘an
exceptional sentence’ ” beyond the “ ‘standard range’ ” provided under
Washington’s Sentencing Reform Act, based upon facts that had not been found to
be true by a jury beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 299.)
Petitioner in the present case, both in the trial court and on appeal, argued that the
imposition of the upper-term sentence violated his Sixth Amendment rights under
Blakely because none of the aggravating circumstances had been found true by a
jury. On June 16, 2005, during the time petitioner’s appeal was pending, this court
decided People v. Black (2005) 35 Cal.4th 1238 (Black I), holding that Blakely did
not apply to California’s determinate sentencing law (DSL). Thereafter, in the
present proceedings, the Court of Appeal upheld petitioner’s upper-term sentence
on September 8, 2005, relying upon our decision in Black I. Petitioner did not
seek review in this court or in the United States Supreme Court.
Subsequently, the United States Supreme Court granted certiorari in
Cunningham v. California (Feb. 21, 2006) 546 U.S. 1169, to address the
application of Blakely to California’s DSL. Nearly one year later, on January 22,
2007, the United States Supreme Court held that, contrary to this court’s decision
in Black I, the Sixth Amendment rights to a jury trial and proof beyond a
reasonable doubt apply to aggravating factors that make a defendant eligible for an
upper-term sentence under the DSL. (Cunningham, supra, 549 U.S. at pp. 288-
Petitioner filed a petition for writ of habeas corpus in the superior court on
February 20, 2007, one month after the Cunningham decision was issued, again
challenging imposition of the upper-term sentence. The superior court denied
relief, concluding that Cunningham applies only to cases not yet final as of the
date of the high court’s decision. Petitioner then filed a habeas corpus petition in
the Court of Appeal, which issued an order to show cause.
The Court of Appeal subsequently denied the petition, concluding that
because Cunningham established a “new rule,” the rule applies only to judgments
not yet final at the time Cunningham was decided. The appellate court applied the
retroactivity test established in Teague v. Lane (1989) 489 U.S. 288 (Teague), and
employed by federal courts in habeas corpus proceedings, in reviewing state court
judgments. Under that test, a decision establishing a “new rule” applies only to
state court judgments not yet final at the time of the decision, unless one of two
very limited exceptions applies. (Id. at p. 301)2 For purposes of the Teague test, a
case is final “when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certiorari has elapsed or a
timely filed petition has been finally denied.” (Caspari v. Bohlen (1994) 510 U.S.
383, 390.) Petitioner does not dispute that the judgment in his case was final
before Cunningham was decided. The critical question, then, is whether
Cunningham established a new rule for purposes of retroactivity analysis. Under

Teague’s bar on retroactive application of new rules does not apply to those
rules “forbidding punishment ‘of certain primary conduct [or to] rules prohibiting
a certain category of punishment for a class of defendants because of their status
or offense.’ [Citations.]” (Beard v. Banks (2004) 542 U.S. 406, 417.) It also does
not apply to “watershed rules of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding.” (Graham v. Collins (1993) 506
U.S. 461, 478.)


the decision in Teague, “a case announces a new rule if the result was not dictated
by precedent existing at the time the defendant’s conviction became final.”
(Teague, supra, 489 U.S. at p. 301, italics omitted.)
The Court of Appeal below reasoned that the result in Cunningham was not
dictated by Blakely, because that outcome was susceptible to debate among
reasonable jurists, as evidenced by (1) the many pre-Black I opinions in the
California Courts of Appeal concluding Blakely did not apply to California’s DSL,
(2) this court’s own decision in Black I, and (3) the dissents by three justices of the
United States Supreme Court in Cunningham. (See Cunningham, supra, 549
U.S. 270, 297-311 (dis. opn. of Alito, J.).) Accordingly, the Court of Appeal
found it “readily apparent” that Cunningham announced a new rule of law. We
granted review.
Ordinarily, we will provide a remedy on collateral review of a final
judgment if that remedy would be available in the federal courts. “Whether or not
we are compelled to afford defendants a comparable state collateral remedy
[citations], the availability of the federal remedy makes it pointless for us to refuse
to do so . . . .” (In re Spencer (1965) 63 Cal.2d 400, 405-406.) As a matter of
practical policy, it would not make sense for our state courts to reject claims
grounded upon Cunningham if those claims would be granted in the federal courts.
Such a course of action would result in duplicative litigation and greater delay in
achieving finality of state court judgments. Consequently, if we conclude that the
United States Supreme Court would require the federal courts to afford relief
under Cunningham to petitioners in habeas corpus proceedings whose judgments
became final after Blakely but before Cunningham, we will apply the high court’s
decision in Cunningham in such proceedings as well.3
In Teague, the United States Supreme Court abandoned the approach it
previously had employed in determining the retroactive effect of new rules. Under
its former approach, the court considered (1) the purpose of the new rule, (2) the
reliance of the states on prior law, and (3) the effect on the administration of
justice of a retroactive application of the rule. (See Linkletter v. Walker (1965)
381 U.S. 618.) The court in Teague observed that the Linkletter standard “has
been used to limit application of certain new rules to cases on direct review, other
new rules only to the defendants in the cases announcing such rules, and still other
new rules to cases in which trials have not yet commenced.” (Teague, 489 U.S. at
p. 302.) The court believed it was inequitable to give the benefit of a new rule to
the defendant in the case in which the new rule was announced, but to deny the
benefit of that rule to similarly situated defendants whose judgments were not yet
final. (Id. at p. 304.) Under the standard announced in Teague, new rules should
apply to all cases in which the judgment is not yet final. Conversely, new rules
generally should not be applied retroactively to cases in which the judgment was
final when the new rule was established. (Id. at pp. 305-310.)
“[A] case announces a new rule when it breaks new ground or imposes a
new obligation on the States or the Federal Government. [Citations.] To put it
differently, a case announces a new rule if the result was not dictated by precedent

Of course, we are “free to give greater retroactive impact to a decision than
the federal courts choose to give.” (In re Johnson (1970) 3 Cal.3d 404, 415; see
Danforth v. Minnesota (2008) ___ U.S. ___ [128 S.Ct. 1029].) Petitioner urges us
to apply Cunningham retroactively under state law. Because we conclude that
Teague requires the application of Cunningham in the present case, we need not
consider the result we would reach under state retroactivity principles.


existing at the time the defendant’s conviction became final.” (Teague, supra, 489
U.S. at p. 301, italics omitted.) “Teague’s nonretroactivity principle acts as a
limitation on the power of federal courts to grant ‘habeas corpus relief to . . . state
prisoner[s]’ [Citation.]” (Beard v. Banks, supra, 542 U.S. at p. 412.) “The ‘new
rule’ principle’ ”. . . validates reasonable, good-faith interpretations of existing
precedents made by state courts even though they are shown to be contrary to later
decisions.” (Butler v. McKellar (1990) 494 U.S. 407, 414.)
We have little doubt that, if faced with the issue, the United States Supreme
Court would conclude that Cunningham did not break new ground and that it was
“dictated by” Blakely — “precedent existing at the time [petitioner’s] conviction
became final.” (Teague, supra, 489 U.S. at p. 301, italics omitted.) As we
previously have explained, “Blakely extended the scope of the high court’s earlier
decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which
established that a defendant has a constitutional right to a jury trial on sentence
enhancements, a right that already was accorded to California defendants by
statute. [Citations.]” (Black I, supra, 35 Cal.4th at p. 1248.) Apprendi established
the rule that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey,
supra, 530 U.S. at p. 490.) “Several years after the Apprendi decision, Blakely
extended the jury trial requirement set forth in Apprendi, redrawing the line
between factual findings that require a jury trial, and sentencing factors on which a
judge may make findings. In Blakely, the high court held that the prescribed
‘“statutory maximum”’ for purposes of the right to a jury trial is not necessarily
the maximum penalty stated in the statute for the crime; rather, it is ‘the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.’ (Blakely, supra, 542 U.S. at p. 303.)”
(Black I, supra, 35 Cal.4th at p. 1250, italics omitted.) “We agree with the
assessment of a federal court that ‘[w]ith its clarification of a defendant’s Sixth
Amendment rights, the Blakely court worked a sea change in the body of
sentencing law.’ (U.S. v. Ameline (9th Cir. 2004) 376 F.3d 967, 973, fn.
omitted.)” (People v. Black (2007) 41 Cal.4th 799, 812 (Black II).)4
The Cunningham decision, on the other hand, did not extend or modify the
rule established in Blakely, but merely applied it to the California sentencing
scheme. The high court’s opinion in Cunningham explains that under the DSL, an
upper-term sentence may be imposed only if an aggravating circumstance is
present, and “aggravating circumstances depend on facts found discretely and
solely by the judge. In accord with Blakely, therefore, the middle term prescribed
in California’s statutes, not the upper term, is the relevant statutory maximum.”
(Cunningham, supra, 549 U.S. at p. 288.) The Cunningham opinion rejects the
rationale of Black I as inconsistent with Blakely. Cunningham notes that Black I
emphasized “the ample discretion afforded trial judges to identify aggravating
facts warranting an upper term sentence” under the DSL. (Cunningham, supra,
549 U.S. at p. 289.) The opinion in Cunningham addresses this point by stating
that the high court “cautioned in Blakely, however, that broad discretion to decide
what facts may support an enhanced sentence, or to determine whether an
enhanced sentence is warranted in any particular case, does not shield a sentencing
system from the force of our decisions. If the jury’s verdict alone does not
authorize the sentence, if, instead, the judge must find an additional fact to impose

See also Schardt v. Payne (9th Cir. 2005) 414 F.3d 1025 (concluding that
Blakely established a new rule that does not apply retroactively to cases that were
final when the high court rendered its decision).


the longer term, the Sixth Amendment requirement is not satisfied.”
(Cunningham, supra, 549 U.S. at p. 290, citing Blakely, supra, 542 U.S. at p. 305
& fn. 8.)
Cunningham also rejects, as inconsistent with Blakely, the rationale of
Black I that “California’s sentencing system does not implicate significantly the
concerns underlying the Sixth Amendment’s jury-trial guarantee.” (Cunningham,
supra, 549 U.S. at pp. 290-291.) “Asking whether a defendant’s basic jury-trial
right is preserved, though some facts essential to punishment are reserved for
determination by the judge, we have said, is the very inquiry Apprendi’s ‘bright-
line rule’ was designed to exclude.” (Id. at p. 291, citing Blakely, supra, 542 U.S.
at pp. 307-308.) It seems clear that the United States Supreme Court does not
view its application of Blakely to California law as an extension or modification of
the constitutional rule it previously established in Blakely, which it viewed as a
“bright-line rule.”
The Attorney General, like the Court of Appeal below, points to the
dissents of three justices in Cunningham, as well as the opinion of this court in
Black I, as evidence that Cunningham was not dictated by Blakely.5 In assessing
whether a decision was compelled by precedent, the high court may consider, but
does not necessarily find determinative, the existence of contrary views on the
issue by dissenting justices or by jurists in other cases. For example, Stringer v.
Black (1992) 503 U.S. 222, held that Clemons v. Mississippi (1990) 494 U.S. 738,

Relying upon a similar theory, the Supreme Court of New Mexico held that
its decision holding its state sentencing law unconstitutional under Cunningham
would not apply retroactively. (State v. Frawley (N.M. 2007) 172 P.3d 144.) The
New Mexico court concluded that its opinion established new law in overruling a
prior decision that had upheld the sentencing scheme against a constitutional
challenge raised under Blakely. (Id. at pp. 156-157.)


which applied the holding of Godfrey v. Georgia (1980) 446 U.S. 420 to the
Mississippi capital sentencing scheme, did not establish new law. The high court
rejected the argument that the application of the Godfrey holding to the
Mississippi sentencing process constituted a new rule because of differences
between the Mississippi statute at issue in Clemens and the Georgia statute at issue
in Godfrey. (Stringer, supra, 503 U.S. at p. 229 [“those differences could not have
been considered a basis for denying relief in light of precedent existing at the time
petitioner’s sentence became final”].) In its retroactivity analysis, the high court
considered, but did not find determinative, the circumstance that prior to Clemons
the United States Court of Appeals for the Fifth Circuit had concluded that
Godfrey did not apply to the Mississippi statutory scheme. “Reasonableness, in
this as in many other contexts, is an objective standard, and the ultimate decision
whether Clemons was dictated by precedent is based on an objective reading of the
relevant cases.” (Stringer, supra, 503 U.S. at p. 237.)
Similarly, in Penry v. Lynaugh (1989) 492 U.S. 302, the United States
Supreme Court concluded that its prior decisions in Eddings v. Oklahoma (1982)
455 U.S. 104, Lockett v. Ohio (1978) 438 U.S. 586, and Jurek v. Texas (1976) 428
U.S. 262, which were decided before each respective defendant’s conviction
became final, compelled the conclusion that the jury at the penalty phase of the
trial should have been instructed that it could give mitigating effect to evidence of
his abused background and mental retardation. Although the prior decisions
recognized that juries in capital cases must not be prohibited from considering
such evidence, these decisions did not address the precise question of whether jury
instructions on this point were required. The high court concluded that such
instructions must be given, but that this ruling did not establish new law, despite
the circumstance that the state court and lower federal courts had ruled against the
defendant and three of the high court’s own justices dissented on the merits of that
issue. (See Penry, supra, 492 U.S. at pp. 314-319.)
In Beard v. Banks, supra, 542 U.S. 406, on the other hand, the high court
did point to dissenting opinions as evidence that a decision was not dictated by
precedent. The high court in Beard concluded that “reasonable jurists could have
differed” on the holding in Mills v. Maryland (1988) 486 U.S. 367, which
invalidated a sentencing scheme that required the capital sentencing jury to
disregard mitigating factors it did not unanimously find to be true. (Beard, supra,
542 U.S. at pp. 414-415.) The opinion in Beard pointed to the circumstance that
four justices dissented in Mills. (Beard, supra, 542 U.S. at p. 415.) The court
cautioned, however, that “[b]ecause the focus of the inquiry is whether reasonable
jurists could differ as to whether precedent compels the sought-for rule, we do not
suggest that the mere existence of a dissent suffices to show that the rule is new.”
(Id. at p. 416, fn. 5, italics omitted.)6

Respondent observes that the federal appellate courts uniformly have
concluded that U. S. v. Booker (2004) 543 U.S. 220, which applied Apprendi and
Blakely to the federal sentencing guidelines and found them to be unconstitutional,
established a new rule that does not apply retroactively under Teague. (See, e.g.,
U.S. v. Cruz (9th Cir. 2005) 423 F.3d 1119, 1120; U.S. v. Bellamy (10th Cir.
2005) 411 F.3d 1182, 1188; Lloyd v. U.S. (3d Cir. 2005) 407 F.3d 698, 613-616;
Guzman v. U.S. (2d Cir. 2005) 404 F.3d 139, 142-144; Varela v. U.S. (11th Cir.
2005) 400 F.3d 864, 867-868; Humphress v. U.S. (6th Cir. 2005) 398 F.3d 855,
862-863; McReynolds v. U.S. (7th Cir. 2005) 397 F.3d 479, 481.) Even assuming,
however, that the United States Supreme Court would agree with these courts that
Booker created new law, that decision arguably amounts to a greater extension of
Blakely than does Cunningham. In Booker, the high court addressed and rejected
two arguments in support of the constitutionality of the federal guidelines that
arguably distinguished the federal guidelines from the Washington sentencing
scheme addressed in Blakely: (1) those guidelines were promulgated by the
sentencing commission, rather than by Congress; consequently, all sentences
imposed under the guidelines were within the maximum established by statute,
and (2) a number of United States Supreme Court decisions implicitly had upheld

(footnote continued on next page)

In Cunningham, a majority of the United States Supreme Court simply
applied to California’s sentencing law what it viewed as a bright-line rule,
concluding that all of the arguable grounds identified in Black I for distinguishing
the California sentencing scheme from the Washington scheme already had been
rejected in Blakely.7 Consequently, we believe that the high court would view the
result in Cunningham not as new law, but as one dictated by Blakely, regardless of
any previous disagreement among jurists on the merits of the issue.8
Accordingly, Cunningham applies retroactively to any case in which the
judgment was not final at the time the decision in Blakely was issued. Those who
wish to raise a challenge under Blakely to the imposition of an upper-term
sentence may do so by filing a petition for writ of habeas corpus in the trial court.
In order to obtain relief, any such petitioner will be required to establish, of
course, that a violation of the Sixth Amendment occurred in his or her case.

(footnote continued from previous page)

the federal guidelines. (Booker, supra, 543 U.S. at pp. 237-243.) Although the
high court rejected both of these arguments, their presence in the decision suggests
that Booker may not have been “dictated by” Blakely. In contrast, as noted above,
the court in Cunningham viewed the issues in that case as having been previously
resolved in Blakely.

Indeed, we recognized in Black I that the difference between the
Washington sentencing scheme at issue in Blakely and the California sentencing
scheme was only one of degree, in that “[t]he level of discretion afforded to the
judge in imposing the upper term rather than the middle term, based on all the
circumstances of the case,” under California law was greater than the discretion
afforded a judge to impose an exceptional term under Washington law. (Black I,
supra, 35 Cal.4th at p. 1258.)

The United States Court of Appeals for the Ninth Circuit has come to the
same conclusion we reach. (Butler v. Curry (9th Cir. 2008) 528 F.3d 624, 634-
639, cert. denied Curry v. Butler (Dec. 15, 2008) ___ U.S. ___.)

Imposition of the upper term violates the Sixth Amendment under Blakely and
Cunningham only if no legally sufficient aggravating circumstance has been found
to exist by the jury or been established under one of the exceptions to Blakely’s
jury trial requirement. (Black II, supra, 41 Cal.4th at p. 816.) Moreover, even if
error is established, resentencing is not required if the record demonstrates the
error was harmless beyond a reasonable doubt. (See People v. Sandoval (2007) 41
Cal.4th 825, 838.)
The decision of the Court of Appeal denying the petition for writ of habeas
corpus is reversed, and the case is remanded to that court for further proceedings
consistent with this opinion.



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Gomez

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 153 Cal.App.4th 1516
Rehearing Granted


Opinion No.

Date Filed: February 2, 2009


County: Los Angeles
Judge: Bruce F. Marrs


Attorneys for Appellant:

Vincent James Oliver and Joseph Walsh for Petitioner Sotero Gomez.

Elaine A. Alexander for Appellate Defenders, Inc., as Amicus Curiae on behalf of Petitioner Sotero


Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Kristofer Jorstad and Carl N. Henry, Deputy
Attorneys General, for Respondent State of California.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Vincent James Oliver
205 South Broadway, Suite 606
Los Angeles, CA 90012
(213) 617-2307

Carl N. Henry
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2055

Opinion Information
Date:Docket Number:
Mon, 02/02/2009S155425