PEOPLE v. RIVERA (1983)

A jury convicted Richard Raul Rivera of first degree burglary (Pen.Code, §§ 459, 460, subd. 1) ¹ and assault with intent to commit murder (former § 217),² finding Rivera used a deadly or dangerous weapon (§ 12022, subd. (b)) in the assault to inflict great bodily injury on a person (§ 12022.7) who was 60 years of age or older (§ 1203.09, subd. (a)).³  Pursuant to the recommendation of the probation department, the court sentenced Rivera to serve a total of 10 years and 4 months, consisting of a 6-year upper term for the assault, 3 years for the great bodily injury enhancement and a 16-month consecutive sentence for the burglary.   The Board of Prison Terms (Board) later determined Rivera's sentence was disparate (§ 1170, subd. (f)(1)) because of the consecutive burglary sentence and recommended Rivera be resentenced to a total of no more than nine years.   After a hearing, the court found Rivera's sentence was not disparate and ordered him to complete his sentence as originally imposed.   Rivera appeals the court's finding and order.  (§ 1237, subd. 2;  People v. Herrera (1982) 127 Cal.App.3d 590, 595–597, 179 Cal.Rptr. 694.)   For the reasons set forth below, we reverse the court's finding of nondisparity and accompanying order.   We remand the case to permit consideration by the court of the Board's resentencing recommendation consistent with the principles discussed in this opinion.

 A major purpose of California's determinate sentencing law is to achieve uniformity of sentencing for defendants convicted of committing the same offenses under similar circumstances.  (See generally, Parnas and Salerno, The Influence Behind, Substance and Impact of the New Determinate Sentencing Law in California (1978) 11 U.C.Davis L.Rev. 29, 31–32, 39–40.)   That purpose appears both in the language of the statute ⁴ and in the sentencing rules adopted by the Judicial Council.⁵  By definition, uniformity requires eliminating or substantially reducing the imposition of disparate sentences.   The Legislature concluded this end would best be served by establishing a sentencing system requiring the imposition of statutorily fixed terms for given crimes with limited discretion available to trial courts to vary those terms.  (See § 1170, subd. (a)(1);  fn. 4, ante.)   Under this system the major sentencing decisions are whether probation should be granted and whether the upper or lower rather than the middle term should be imposed.  (People v. Betterton (1979) 93 Cal.App.3d 406, 412, 155 Cal.Rptr. 537.)   Even these choices are circumscribed by statute.⁶  Thus, while courts are not without discretion to fit the punishment to the crime, the sentencing choices available to them are significantly limited.

The Board's disparate review procedure represents an additional constraint on judicial sentencing discretion.   Consistent with the statute's goal of uniformity, the purpose of the Board's review is to identify disparate sentences and notify the appropriate courts so they will consider whether to resentence the subject defendants.⁷  A Board finding of disparity is not a finding that the sentence imposed is unlawful.  (People v. Herrera, supra, 127 Cal.App.3d at p. 599, 179 Cal.Rptr. 694.)   Instead, it is a signal to the court that the sentence is substantially different from sentences imposed by other California courts in similar cases.  (See 60 Ops.Cal.Atty.Gen. 143–144 (1977).)   In its short history, the Board has exercised its review power in a prudent and sparing manner, making relatively few findings of disparity.   After having reviewed approximately 26,000 cases by the end of 1981, the Board found disparately high sentences had been imposed in only 31 cases.  (Board of Prison Terms, Sentencing Practices, Determinate Sentencing Law (Jan. 20, 1982) pp. 4–5.)   In 14 of those cases courts followed the Board's resentencing recommendations;  in 17 cases they did not.  (Id., at p. 5.)

The Board reviewed Rivera's sentence for disparity in the following manner.⁸  It first identified 2,494 cases similar to Rivera's where assault was the principal offense.   It then compared Rivera's case to those cases through the use of a computerized automated screening procedure.   Due to the length of Rivera's sentence, his case was identified as a “variant” case requiring further scrutiny.   The Board's Sentence Review Unit then compared Rivera's case to a subgroup of 14 cases selected from the total pool which they believed to be sufficiently similar for a meaningful comparison.   The 14 cases had the following factors in common with Rivera's case:  the principal offense in each case was assault;  the defendant in each case was on probation at the time of the offense;  each defendant had five or more adult convictions;  no defendant had served prior state or federal adult prison sentences;  there was serious injury to one or more victims in each case;  a weapon was used in each case to inflict the injury;  and one unstayed subordinate count was included in each sentence.   The Sentence Review Unit discovered Rivera's sentence was 63 months longer than the average sentence imposed in the 14 comparison cases.   Based on this information, the Board found Rivera's sentence was disparate and recommended he be resentenced to a total of no more than nine years.

Under section 1170, subdivision (f) as in effect before its recent amendment,⁹ a trial court was required to undertake a two-part analysis when considering a Board recommendation to resentence a defendant.   The court first had to decide whether the sentence originally imposed was indeed disparate.   Where the court determined the sentence was not disparate, the original sentence remained intact.   Where, however, the court found the original sentence was disparate, it then had to decide whether to resentence the defendant.   The court was required to give “great weight” to the Board's finding of disparity in each part of its analysis.  (See generally, People v. Herrera, supra, 127 Cal.App.3d at pp. 600–602, 179 Cal.Rptr. 694.)   In those cases where the court satisfied the great weight standard but nonetheless found the original sentence was not disparate, its decision to let that sentence stand would be affirmed on appeal.  (See id., at pp. 602–603, 179 Cal.Rptr. 694.)

 We believe section 1170, subdivision (f), as amended, requires a somewhat different approach to Board findings and recommendations.   Now, under the second paragraph of section 1170, subdivision (f)(1) (see fn. 7, ante ), a court's attention should be focused on the merits of the Board's resentencing recommendation rather than the accuracy of its disparity finding.   Although the statute does not preclude an initial inquiry into the factual basis for a finding of disparity, we expect most courts as a practical matter will accept those findings and devote their efforts to evaluation of the Board's resentencing recommendations.   This approach will better accomplish the determinate sentencing law's goal of sentencing uniformity by encouraging courts to directly confront the central issue raised by a finding of disparity:  the propriety of the sentence originally imposed.   In deciding whether to resentence a defendant, a court must conscientiously and thoughtfully review its reasons for imposing the original sentence and weigh them against the strong statutory policy favoring uniformity and the extent of disparity found by the Board.   While a court should not consider itself bound by a Board resentencing recommendation, that recommendation should be followed absent unusual circumstances which mandate an unusual sentence.

 Here, the lower court chose to initially examine the factual basis for the Board's finding of disparity.   Toward that end the court reviewed the probation reports in 13 of the Board's 14 comparison cases and compared them to the probation report in Rivera's case.   The transcript of the hearing at which the court conducted this review indicates the court misunderstood the allowable scope of the Board's disparate review procedure.   Under the statute, the purpose of the Board's review is “․ to determine whether [a defendant's] sentence is disparate in comparison with the sentences imposed in similar cases.”  (§ 1170, subd. (f)(1), italics added;  see also id., subd. (f)(2);  fn. 7, ante.)   A comparison group of identical cases is not required.   The court below rejected the Board's finding of disparity because a number of the comparison group cases involved convictions entered on plea bargains rather than jury verdicts and only three of the cases involved section 217 convictions.   The other 10 cases involved convictions for assault with a deadly weapon.  (§ 245, subd. (a).)  The court erred in rejecting the Board's finding for these reasons.   All the comparison cases involved a form of assault as the principal offense.   They also shared six other characteristics in common with Rivera's case.  (See ante.)   Further, defendants in four of the 10 section 245 cases were originally charged with violating section 217, and in two other cases had premeditated their assaults.   Finally, the facts of the comparison cases indicate most of them involved offenses at least as aggravated as Rivera's.   In short, the comparison cases were sufficiently similar to Rivera's case to provide a valid basis for the Board's finding of disparity.

We reverse the finding of nondisparity and accompanying order and remand for further consideration of the Board's resentencing recommendation.

I respectfully dissent.

“The apparent intent of the Legislature in authorizing the review procedure under section 1170 subdivision (f) was to inform the trial judge that a sentence he or she imposed may be ‘disparate,’ and therefore contrary to the major purpose of the DSL” (People v. Herrera, 127 Cal.App.3d 590, 600, 179 Cal.Rptr. 694;  emphasis added).   This is far from the mandate found in the sentencing requisites of the DSL or California Rules of Court which impose limitations on the court's discretion in the sentencing procedure.   While the Board's determination a sentence may be disparate is entitled to considerable weight, it by no means indicates the sentence is “incorrect” or “unlawful” (id. at p. 599, 179 Cal.Rptr. 694).   It simply provides a means for bringing to the court's attention this additional information and creates a procedure to reconsider the sentence.   I do not support the position it is “an additional constraint on judicial sentencing discretion” as suggested by the majority.

In People v. Herrera, supra, the court reviewed the recommendation of the Board relative to the disparity and held the Legislature could have created a presumption in favor of the Board's recommendation, but did not choose to do so.   The court affirmed the Legislature's intent to leave the ultimate decision, as well as the procedure in hearing the motion, to the discretion of the trial judge.

“In determining the merits of a motion brought under section 1170, subdivision (f), a trial court must undertake a two-part analysis:  First, it must determine whether the sentence imposed was indeed disparate.   Secondly, if the court finds that the sentence is disparate, this fact must be given great weight in the court's decision whether or not to recall the sentence.

“․

“If, after giving serious consideration to the Board's finding, a judge finds that the sentence he imposed was not disparate no further inquiry is necessary and the judge may deny the motion.   On the other hand, if the judge agrees with the Board's finding that the sentence imposed was disparate, he is required to undertake the second part of the analysis described above.

“The procedure that must be undertaken to meet the ‘great weight’ standard in the second part of the analysis does not lend itself to easy description or definition.   Typically, however, it would require that the judge question the ‘observed sentencing pattern’ relied on by the Board.   Even though the judge may agree that the sentence he imposed does not conform to the ‘observed sentencing pattern’ relied on by the Board (and is therefore disparate), he may question the underlying rationale of the sentencing pattern practiced by the majority of his colleagues.   In other words, observed sentencing patterns should be treated as guidelines to help promote uniformity of sentencing;  they should not function as immutable rules which place judicial discretion in a straight jacket.”  (People v. Herrera, supra, 127 Cal.App.3d 590, pp. 601–602, 179 Cal.Rptr. 694.)

Thus, the court stated even if the sentence was found to be in fact disparate, the trial court was not obliged to recall the sentence.

In Herrera, it is significant to note, the court upheld the trial court's decision to deny the Board's motion because the sentence was not disparate for the following reasons which the lower court enumerated (at p. 602, 179 Cal.Rptr. 694):

“(1) The fact that the sentence actually imposed was that suggested by the probation department;  (2) the appellant's extensive criminal history;  and (3) the questionable criteria the Board used to distinguish ‘disparate’ from ‘variant’ sentences.”

It should be borne in mind the sentence here too was in accord with the probation officer's report.

The record discloses the court examined in depth each of the 14 individual cases brought to its attention by the Board and pointed out to counsel the differences it bore to Rivera's case.   Rivera stabbed his victim four times in the chest, collapsing both lungs.   None of the other offenses was this serious.   The crime here was committed without provocation on a stranger, unlike almost all of the other cases.   None of the other offenses was this wanton.   While the sentence was greater than those the Board used as its sample, the differences in the circumstances of these offenses make the Board's sample less than an equivalent for setting the standard by which to evaluate whether Rivera's sentence is disparate.

While the facts used by the Board may suggest the crimes are all assaults, the elements of the crime upon which the sentence could be structured involved a conviction for a different offense for which the DSL prescribes a different sentence.   The term called for under the DSL for Rivera is substantially larger.   Of the 14 “typical” cases offered as the norm, 11 involved a conviction or plea for assault with a deadly weapon which carried a sentence of 2, 3 or 4 years.   The sentence for the crime of which Rivera was convicted carried a possible sentence of 2, 4 or 6 years.   If we intend to give meaning to the DSL sentencing structure, we should take this difference into account.   We should not equate a crime for which the trial court can only apply a 4-year term in the most aggravating circumstance to a crime for which the judge can give a 6-year sentence under aggravating circumstances.

In the other three cases used by the Board, the conviction on the base offense was for assault with intent to commit murder, and that carried the same sentence as the base offense here.   The subordinate offense in those cases, however, was for assault with a deadly weapon, which carried a sentence of only 2, 3 or 4 years, and robbery, which carried a sentence of only 2, 3 or 5 years,¹ while the subordinate offense here was burglary authorizing a sentence of 2, 4 or 6 years.

The crimes which the samples involved suggest different elements, especially with regard to the intent which accompanied the act, and the Legislature has seen fit to impose different sanctions.   In my view, the different term for the lesser offense makes the cases used by the Board suspect as a meaningful standard for judging disparity.

Additionally, and most significantly, I would note only one of the 14 cases used by the Board found aggravating circumstances sufficient to impose the upper term and 2 of the cases had mitigating circumstances to justify a lower term.   The highest term in the first 11 cases was 72 months and there were no aggravating circumstances.   The overall highest term, 96 months, used the middle term for sentencing.   If that 96-month term was proper in that instance, adding 24 additional months for aggravating circumstances and 4 months extra for the more serious subordinate offense is reasonable.

The majority suggests the court should accept the Board's findings of disparity.   I believe that would be an abdication of responsibility in the two-point analysis even the majority recognizes must be made.   A finding of disparity must first be made before the recommendations of the Board can be considered because only then are the recommendations meaningful.

Turning to the recommendations:  the Board states Rivera should be resentenced to a term no greater than 108 months.   If the sample is really indicative of a fair sentence, as the Board argues, why does it not argue for something in line with the average sentence, namely, 84 months?   It recommends a sentence one year longer than any of the samples and gives no reason for that additional term.   I cannot find support for that recommendation anywhere in the record, but if it is for the reasons I have pointed out above, why is not the term imposed for this aggravated crime, 124 months, proper?   The extra 16 months over the Board's recommendation cannot be unreasonable under the circumstances of this case.

Counsel for the Board made no effort to establish the basis for the Board's recommendation.

I believe substantial evidence supports the court's finding this was not a disparate sentence and the record amply supports the propriety of the term Rivera received as being in accord with the objectives of the Determinate Sentencing Law.

I would affirm.

FOOTNOTES

1.   All statutory references are to the Penal Code.

2.   At the time of Rivera's offenses, former section 217 provided:  “Every person who assaults another with intent to commit murder, is punishable by imprisonment in the state prison for two, four, or six years.”  (Stats.1978, ch. 579, § 9, p. 1982.)

3.   We affirmed Rivera's conviction in a previous appeal.   (People v. Rivera (1981) 127 Cal.App.3d 136, 179 Cal.Rptr. 384.)

4.   Section 1170, subdivision (a)(1) provides:“The Legislature finds and declares that the purpose of imprisonment for crime is punishment.   This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.   The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.”  (Italics added.)

5.   Section 1170.3 provides, in pertinent part:  “[t]he Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by:  [¶] (a) The adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing ․”  Pursuant to this mandate the Judicial Council adopted California Rules of Court, rule 410, a general provision applicable to all sentencing decisions.  Rule 410 provides, in pertinent part:  “General objectives of sentencing include: ․  [¶] (g) Achieving uniformity in sentencing․”

6.   Probation is unavailable to a wide range of offenders (see §§ 1203.06–1203.09, inclusive) and available to certain others only in very limited circumstances (§§ 1203, subd. (e), 1203.065, subd. (b)).  If a prison sentence is to be imposed, a presumption exists in favor of imposing the middle term.  (People v. Wright (1982) 30 Cal.3d 705, 720, 180 Cal.Rptr. 196, 639 P.2d 267 (dis. opn. of Bird, C.J.).)

7.   Section 1170 provides, in pertinent part:“(f)(1) Within one year after the commencement of the term of imprisonment, the Board of Prison Terms shall review the sentence to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases.   If the Board of Prison Terms determines that the sentence is disparate, the board shall notify the judge, the district attorney, the defense attorney, the defendant, and the Judicial Council.   The notification shall include a statement of the reasons for finding the sentence disparate.“Within 120 days of receipt of this information, the sentencing court shall schedule a hearing and may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if the defendant had not been sentenced previously, provided the new sentence is no greater than the initial sentence.   In resentencing under this subdivision the court shall apply the sentencing rules of the Judicial Council and shall consider the information provided by the Board of Prison Terms.“(2) The [Board's] review under this section shall concern the decision to deny probation and the sentencing decisions enumerated in paragraphs (2), (3), (4), and (5) of subdivision (a) 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.”  (Italics added.)

8.   For a general description of the Board's disparate review procedure, see People v. Herrera, supra, 127 Cal.App.3d at p. 598, 179 Cal.Rptr. 694.

9.   The present version of section 1170, subdivision (f) (see fn. 7, ante ) was enacted in 1981.  (Stats.1981, ch. 1111, § 1, No. 7 Deering's Adv.Legis.Service, p. 503.)   The preceding version provided:  “(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.”   (Stats.1980, ch. 1117, § 7, p. 3597.)

1.   Before January 1, 1979, robbery under the DSL carried an even lower sentence of 2, 3 or 4 years (Stats.1978, ch. 579;  Stats.1977, ch. 165;  Stats.1976, ch. 1139).   Similarly, before January 1, 1979, assault with intent to commit murder under the DSL carried a sentence of 2, 3 or 4 years (Stats.1978, ch. 579;  Stats.1976, ch. 1139).

WIENER, Associate Justice.

STANIFORTH, J., concurs.