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Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Elisha Robert EDWARDS, Jr., Defendant and Appellant.

Cr. 11446.

Decided: April 12, 1982

Bedwell & Miles and Marsha Ann Bedwell, Yuba City, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Robert D. Marshall and Christine M. Diemer, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was convicted by jury of two counts of receiving stolen property, in violation of Penal Code section 496.   He was sentenced to prison for a term of four years, eight months.   This sentence consisted of an aggravated sentence of three years on one count, eight months consecutively for the other count, plus one year consecutively for an admitted prior prison term.

After reviewing the sentence pursuant to Penal Code section 1170, subdivision (f), the Board of Prison Terms (board) determined the sentence was “disparate” and moved that the trial court recall the sentence and commitment previously ordered and resentence defendant.1  The trial court denied the motion, after hearing, finding that “some of the comparisons” (of sentences as contained in statistics furnished by the board) were not “valid” since they were based on quite different factual elements.

Defendant appeals from the denial of the board's motion.   The appeal was filed pursuant to Penal Code section 1237 which provides, inter alia, that a defendant in a criminal case may take an appeal from any order made after judgment affecting his substantial rights.2


The substantive facts relating to the crimes are not at issue in this appeal.   The procedural facts relating to the post-conviction motion and order relating to sentencing, which are the subject of this appeal, are as follows.

One count of which defendant was convicted related to the receipt of property apparently taken from a motor vehicle dealership which had been burglarized.   The other related to the receipt of property (accessories) removed from a vehicle which had been stolen from a car dealership.

The trial court sentenced defendant to the maximum term of three years for the first crime, and to a consecutive term of 8 months for the second crime, together with a one-year enhancement for a prior prison term.   Subsequent to the conviction, the board reviewed defendant's conviction to determine if it was “disparate,” pursuant to the requirements of Penal Code section 1170, subdivision (f).   The board did in fact find that defendant's sentence was disparate in comparison to sentences received by others convicted of similar offenses.

The board's conclusion was the result of a process of comparison developed by the board involving automated screening procedures and a “comparison group.”   Initially, defendant's case was compared with those of others convicted of similar theft offenses.   At this initial stage of review, defendant's case was “flagged” as one in need of closer scrutiny because statistical comparisons developed by the board revealed a substantial variance between defendant's sentence and those of others convicted of similar offenses.   After initial identification of the case as variant, it was referred to the “Sentence Review Unit” for closer scrutiny.   This unit gives attention to a number of factors to determine if the case is, even after review of those factors, variant.

This case was compared to 23 others with the following common factors:  (1) conviction of a “group 23” offense as the base principal term;  (2) five or more adult convictions;  (3) one prior prison term;  (4) two or more separate events;  (5) one subordinate offense;  (6) accused was on probation or parole at the time.   The agency determined that eight percent (one person other than defendant) of these 23 received the upper term and one consecutive subordinate term;  four cases (17%) received the upper term;  three cases (12.5%) received the middle term and one consecutive subordinate term;  thirteen cases (54%) received the middle term;  and two cases (8%) received the lower term.   The other person who received the upper term and one consecutive subordinate count, did not receive enhancement for a prior prison term which was pleaded and proved.3  This individual also was armed at the time of the offenses and three victims received minor injuries.   Defendant received the longest sentence of any in the comparison group.

The board found that eleven cases (78%) involving two victims received the middle term, with only three (22%) receiving the upper term.   Only two of those receiving the middle term received consecutive subordinate terms.   Of those receiving the middle term, two involved either a defendant armed with a weapon or the use of a firearm to injure a victim.   The board also found that defendant fared worse than many of those who had the same or a greater number of prior adult convictions.   Eight of the 23 cases had an equal or greater number (10) of convictions.   Of these, three (37.5%) received the upper term, four (50%) the middle term, and one (12.5%) the lower term.   Five of the eight had more prior adult convictions than defendant.   Four of those received the middle term, defendant the upper term.   Defendant's sentence is 20 months longer than the average.   The board's review panel recommended the recall of the sentence and imposition of a middle term plus one consecutive subordinate term and the prior prison term enhancement for a total of three years, eight months.

It was the way the board made its comparisons in this case pursuant to its regulations that the trial court found objectionable and therefore rejected.


Defendant contends the recommendation of the board under Penal Code section 1170, subdivision (f), created a “presumption” that defendant was entitled to be resentenced as it recommended, and the trial court failed to “overcome the presumption”—therefore the court abused its discretion in refusing to resentence defendant.


 Defendant places heavy emphasis on the fact that the board has developed rules and regulations for its procedure in reviewing sentences under Penal Code section 1170, subdivision (f).   It is defendant's premise that administrative regulations are entitled to “great weight” when challenged,4 and since the board's regulations were the basis for its method of reviewing in this case they must necessarily be given weight—amounting in fact to a form of “presumption” which “the court failed to overcome.”   This argument comes from the field of administrative law, dealing with situations where administrative regulations are challenged as going beyond the scope of the legislation.   Defendant is here attempting to equate apples with oranges.   Here, there was and is no challenge by anyone to the regulation-making power of the board or to the per se validity of the regulations it has made to guide itself in performing its functions under Penal Code section 1170, subdivision (f).   The basic question is whether the statute creates a “presumption” that a sentence is wrong when the board says it is “disparate.”   Had the Legislature intended such a presumption it could have said so with the utmost simplicity.   It has not said so in Penal Code section 1170 or anywhere else.  (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46;  People v. Boyd (1979) 24 Cal.3d 285, 294, 155 Cal.Rptr. 367, 594 P.2d 484.)

The purpose of the statute and its common sense meaning are all that we need look at, and this is apparent from the language itself.  (See In re Rojas (1979) 23 Cal.3d 152, 155, 151 Cal.Rptr. 649, 588 P.2d 789.)

 As we read Penal Code section 1170, subdivision (f), the intent of the Legislature, was quite simply to provide judicial opportunity for elimination of some (possibly gross) disparities.   Neither disparate sentence review nor the Determinate Sentencing Law (DSL) as a whole can be read as an attempt to completely eliminate all disparity.   Trial court sentencing discretion has not been eliminated.   The judicial council guides the exercise of judicial discretion by means of the rule-making power in the area of sentencing.   Were the correctional authorities to also have a high degree of control over sentencing by means of what defendant asks us to hold, i.e., that there are “presumptive terms” which must be imposed in disparate cases, there would be an additional administrative agency involved which would have a form of control over sentencing.   Such an intent is not manifest in Penal Code section 1170, subdivision (f).   It is clear that only a “recommendation” as to sentencing is involved in such situations.   The trial court simply did not accept the recommendation in this case, for reasons which it states.

Nothing in the DSL or its background supports an intention on the Legislature's part to invest partial term-setting powers in the board by way of disparate sentence review.   Nor do we read into the DSL any legislative intent that judges were meant to be subjugated to a mandatory interplay of sentencing rules modified by statistically generated weights to be accorded particular factors.  (See, generally, Alschuler, Sentencing Reform and Prosecutorial Power:  A Critique of Recent Proposals for “Fixed” and “Presumptive” Sentencing (1978) 126 U.Pa.L.Rev. 550, 561.)

 The avoidance of “disparity” even in a “punishment” mode of sentencing under the DSL does not contemplate equal treatment of all offenders committing the same offense.   Reasonable individuals (and thus judges) can differ on which factors about the offense and offender should be utilized and the weight they should be accorded.   The selection of the factors and their weight is not intended to be scientific.

 As to the exercise of the discretion of the trial court which exists when a motion is made under Penal Code section 1170, subdivision (f), the rules governing such exercise, and our review of the exercise, are well established.   An abuse of discretion exists only when the court acts arbitrarily, capriciously, displays “whimsical thinking” or “exceeds the bounds of reason, all of the circumstances being considered.”  (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65;  People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225.)   We do not perceive such a situation here, all the circumstances being considered, when the court found some of the statistics not “valid” for comparative purposes in this case.   Accordingly, we hold it did not abuse its discretion in letting defendant's sentence stand as originally imposed.

The order is affirmed.


1.   Penal Code section 1170, subdivision (f), reads as follows:“(f) In all cases the Board of Prison Terms shall, not later than one year after the commencement of the term of imprisonment, review the sentence and shall by motion recommend that the court recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not been previously sentenced if the board determines the sentence is disparate.   The review under this section shall concern the decision to deny probation and the sentencing decisions enumerated in subdivisions (b), (c), (d), and (e) of Section 1170.3 and apply the sentencing rules of the Judicial Council and the information regarding the sentences in this state of other persons convicted of similar crimes so as to eliminate disparity of sentences and to promote uniformity of sentencing.”

2.   The Attorney General argues that the order denying the motion is not an appealable order insofar as defendant is concerned.   His reasoning is that the review of sentence by the board provided by the Legislature in Penal Code section 1170, subdivision (f), is not for a defendant's benefit but only “a remedial process to aid the courts in policing themselves ․ intended to improve the administration of the criminal justice system generally.”   However, as aptly pointed out by two sentencing scholars (and draftsmen of the Determinate Sentencing Law) a major goal of the new law was “a simple and easily understandable system of sentencing.  [and] The ambiguity of the indeterminate sentence with penalties such as 5 years to life and outcome such as parole in 40 months created not only tension but also a good deal of cynicism among prisoners and others.”  (Parnas & Salerno, The Influence Behind, Substance and Impact of the New Determinate Sentencing Law in California (1978) 11 U.C.Davis L.Rev. 29, 30, fn. 2.)   We believe it to be clear the procedure provided in Penal Code section 1170, subdivision (f), a part of the Determinate Sentencing Law, was not merely to aid the courts or the prison bureaucracy but was for the benefit of the individual defendant and affected his substantial rights.  (See, accord, People v. Herrera (1982) 127 Cal.App.3d 590, 595–598, 179 Cal.Rptr. 694.)

3.   However, the board noted it was common to impose enhancement for a prior term where the prior had been pleaded and proved.

4.   See, e.g., Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 411, 128 Cal.Rptr. 183, 546 P.2d 687.

REGAN, Associate Justice.

PUGLIA, P. J., and DOZIER,* J., concur.

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