In the groundbreaking case of Apprendi v. New Jersey>the United States Supreme Court held that the Sixth Amendment required that any fact used to raise a sentence above the statutory maximum must be found to be true by a jury by a beyond a reasonable doubt standard. Four years later in Blakely v. Washington the Supreme Court reaffirmed Apprendi and clarified it by holding that a sentence cannot be in excess of that which could have been imposed based solely on the facts admitted by the defendant or found to be true by the jury.

In 2007 the United States Supreme Court applied Blakely to the California sentencing law. Under the California law for each crime, the court had three alternatives. It could either sentence a defendant to the normal sentence generally called the mid-term or if mitigating or aggravating factors were present the court could sentence the defendant to a lower or higher sentence. The problem the Supreme Court found in Cunningham v. California is that in order to sentence someone to the aggravated term a judge had to find that factors were present beyond those found by the jury. Such a system violated the Sixth Amendment’s right to a jury trial.

The California Supreme Court ruled in In re Gomez that Cunningham is retroactive to Blakely.

The Courts use the Teague test to determine whether a case is retroactive or not. Under the Teague test a decision applying a new rule is applicable to a state case only if the earlier decision was not final at the time the defendant’s conviction became final. Here the State Supreme Court ruled that Cunningham v. California was not a new rule in that it was merely an application of Blakely The State Supreme Court found that it was not a new rule despite the fact that Blakely was susceptible to different interpretations by reasonable jurists in that California court had found the California law valid after the Cunningham decision but before the Blakely decision and the lack of unanimity in the Cunningham decision.

So finally the California Supreme Court appears to be giving up its battle with the United States Supreme Court over the validity of the sentencing law. While the In re Gomez
decision appears to be correct since only the state Supreme Court’s failure to apply Blakely to California law required the United States Supreme Court to issue Cunningham. The Cunningham decision was forced by the California Supreme Court’s decision in People v. Black in which the California Supreme Court refused to apply Blakely to California sentencing law.

But while the California Supreme Court initially refused to accept Blakely the state legislature understood Blakely and Cunningham and replaced the sentencing law. As a result the In re Gomez decision will apply to relatively few people who will be able to file a writ of habeas corpus in an attempt to get their sentences reduced from the aggravated sentence to the mid term. As to Gomez he has already completed his term for rape and he is on parole.