In People v. Black, the California Supreme Court rejected the argument that under Blakely, the jury must find the additional facts necessary for the judge to impose the high term under the DSL.

In Cunningham, the U.S. Supreme Court overruled Black, ruling that Blakely applies to California's determinate sentencing scheme.

After a jury trial, Cunningham was convicted of continuous sexual abuse of a child in Contra Costa County Superior Court, California.

In this case, at a post-trial hearing, the judge found by a preponderance of the evidence that Cunningham's victim was particularly vulnerable and that his conduct was violent, making him a danger to the community.

The California Supreme Court denied review because it had recently held, in People v. Black, that the DSL was constitutional under Blakely v. Washington.

Furthermore, the Black court noted that under California law, sentencing enhancement, which are distinct from aggravating factors, did have to be proved beyond a reasonable doubt.

But Apprendi set forth a bright-line rule that did not tolerate "trivial" incursions in the name of preserving the "basic" jury-trial right of the criminal defendant.

Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies."

Some states allow the jury to make the necessary findings during trial; others do so in a post-trial sentencing hearing; still others "have chosen to permit judges genuinely to exercise broad discretion within a statutory range, which, everyone agrees, encounters no Sixth Amendment shoal."

Justice Samuel Alito saw no difference between the DSL and the post-Booker sentencing scheme in place for the federal courts.

Alito pointed out that all members of the Court agreed that the indeterminate sentencing scheme in place for federal crimes would satisfy the Blakely rule, and that a purely advisory Guidelines system would do so as well.

Even if they were, Alito felt that "reasonableness" review was a sufficient constraint on the power of trial judges to choose sentences within prescribed ranges.

If the remedial majority in Booker approved this scheme for the federal system, it should also pass constitutional muster when used in California.