Cunningham does not apply retroactively on collateral review to cases that are final on direct appeal when Cunningham was decided.

Over a Blakely objection, the trial court imposed an upper term sentence. The sentence was challenged on direct appeal as a violation of Blakely and the Sixth Amendment. But the Court of Appeal affirmed relying on Black I. After Cunningham was decided, petitioner filed a habeas writ in superior court. The trial court denied the writ finding Cunningham should not apply retroactively. This writ in the Court of Appeal ensued, and the court concurred with the trial court’s ruling. Under Teague v. Lane (1989) 489 U.S. 288, if the rule is an old rule, then it applies both on direct appeal and on collateral review. But, if it is a new rule, then the rule will only apply retroactively on collateral review if it is either a substantive rule or a “watershed rule of criminal procedure.” The appellate court noted several other courts had already held Blakely was neither a substantive rule nor a watershed procedural one. By extension, Cunningham is neither too. The question then turned on whether Cunningham announced a new rule or was an old one. The court found Cunningham was a new rule because the result was not dictated by existing precedent. The dissents in Cunningham itself show that the outcome was not forgone. And since Cunningham is a new rule that is neither substantive nor announces a watershed change of procedure, it does not apply retroactively on collateral review.