(D)

Notice and an Opportunity to be Heard.  Due process mandates notice of, and an opportunity to refute, the facts the prosecution intends to prove at sentencing.[185]  Due process also requires that the defendant have the opportunity to challenge information in letters from victims not included in the victim-impact report.[186]

 

[185] United States v. Perri, 513 F.2d 572, 575 (9th Cir. 1975); United States v. Rosner, 485 F.2d 1213, 1229-30 (2d Cir. 1973), cert. denied, 417 U.S. 950 (1974); United States v. Robin, 545 F.2d 775 (2d Cir. 1976); cf. Gardner v. Florida, 430 U.S. 349 (1977)(unconstitutional to impose death sentence on basis of materials in secret pre-sentence report -- reasoning supports disclosure in noncapital cases as well); but see Burns v. United States, 501 U.S. 129, 138 (1991) (refusing to address whether due process requires that a court notify parties of its intention to sua sponte depart upward from the sentencing guidelines, instead relying on a technical violation of Rule 32).

[186] United States v. Curran, 926 F.2d 59 (1st Cir. 1991).

Ninth Circuit

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, 631 F.3d 1295, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

Other

CAL POST CON " PLEA BARGAINING " JUDICIAL INVOLVEMENT
People v. Clancey, 202 Cal.App.4th 790 (Cal.App. Jan. 10, 2012) (trial court's offered sentence was not proper because it was: 1) conditioned on the defendant pleading to all counts and admitting all allegations, and 2) operated as a commitment by the judge to impose the offered sentence or to allow the defendant to withdraw the pleas and admissions).