By Alex Ricciardulli
When the United States Supreme Court in Cunningham v. California (2007) 127 S.Ct. 856 invalidated California's Determinate Sentencing Law, it left many questions unanswered. What would the Legislature do in response? What would the new California Rules of Court governing sentencing look like? Did the U.S. Supreme Court, in one stroke of the pen, toss into the dust heap the vast treasure trove of carefully crafted pre-Cunningham appellate opinions on sentencing?
The objective of this article and self-study test is to examine Cunningham's impact on the Determinate Sentencing Law and the Rules of Court. By reading the article and taking the test, bench officers and lawyers will learn about the Cunningham opinion, the changes made to the Rules of Court in response to Cunningham, the California Supreme Court's response, and the continuing validity of previous cases.
Rocking the Boat
On Jan. 23, 2007, Cunningham held that the requirement in the Determinate Sentencing Law (DSL) - that a judge could sentence a defendant to a high prison term when he or she found facts in aggravation - violated a defendant's right to jury trial. The ball was left in the California Legislature's court regarding how to fix the DSL.
On March 30, 2007, the Legislature amended the DSL to delete the requirement that a judge must find an aggravating fact to impose a high term, instead providing that, when a "statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." Pen. Code, section 1170(b). The Legislature also eliminated the requirement that the judge state on the record the facts supporting any aggravating or mitigating factors, now simply mandating that the judge set forth "the reasons for imposing the term selected." Ibid.
Moving rapidly, the California Judicial Council on May 23, 2007, amended the relevant rules governing sentencing. In addition to mirroring the Legislative enactments and making other conforming changes, the new Rules of Court made clear that reasons for the choice of sentences now have to be specified for all determinate prison sentences, including when the middle term is chosen. Cal. Rules of Court, Rule 4.406(b)(4). Under the old DSL, reasons, as well as facts, had to be specified only when the high or lower term were selected.
The new rules continue to allow a judge to state that his or her reason for a sentence is that the defendant has agreed to the term imposed. Cal. Rules of Court, Rule 4.412(a). This means that, in cases where the defendant pleads guilty or no contest and agrees to the term to be imposed, the judge need only state that the defendant has agreed to the sentence as the reason for the judge's choice of terms.
The new rules deleted the requirement that facts supporting mitigation and aggravation had to be proved by a preponderance of the evidence. Cal. Rules of Court, Rule 4.420(b). Indeed, the judge is no longer required to find any facts; all that is needed are the judge's reasons. The new rules eliminated the requirement that the record "include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation justifying the term selected." Cal. Rules of Court, Rule 4.420(d). The new rules kept intact the numerous individual aggravating and mitigating criteria in Rules 4.421 and 4.423 but renamed the criteria "factors" instead of "facts."
Subsequent to Cunningham, People v. Black (2007) 41 Cal.4th 799 held that allowing the judge without a jury to determine whether to impose concurrent or consecutive sentences on multiple counts did not violate Cunningham. In essence, this means that all the appellate opinions interpreting the contours of consecutive sentencing under the old DSL, as well as the consecutive sentencing guidelines for judges set forth in the Rules of Court, continue to be good law. See Cal. Rules of Court, Rule 4.425.
Also subsequent to Cunningham, People v. Sandoval (2007) 41 Cal.4th 825 decided that, when an appellate court remands a case for resentencing following Cunningham error, the trial judge is to sentence the defendant according to the DSL as amended by the Legislature in March 2007 and applying the Rules of Court as amended in May 2007. Sandoval's explanation of the new sentencing procedures is fully applicable to cases not on remand: Under Sandoval, the application of the new DSL and Rules of Court is the same, regardless of whether the case is before the judge on remand or in the first instance.
Sandoval explained that, under the new DSL and Rules of Court, "[t]he trial court will be required to specify reasons for its sentencing decision, but will not be required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." People v. Sandoval, supra, 41 Cal.4th 825, 847. Sandoval found, however, that because the touchstone of sentencing under the old and new DSL is merely that the decision regarding which term to impose be a reasonable one, there will not be a significant difference in sentencing between the old and new systems. Id., at p. 850.
Pre-Cunningham cases that dealt with mechanics of sentencing that were repealed by the Legislature and Judicial Council in 2007 are now obviously defunct. This includes cases holding that a judge need not state any reasons when sentencing a defendant to the middle term (see, e.g., People v. Golliver (1990) 219 Cal.App.3d 1612), and ones ruling that a judge must find aggravating or mitigating facts by a preponderance of the evidence (see, e.g., People v. Lewis (1991) 229 Cal.App.3d 259).
Other cases fall into three categories: opinions approved by Sandoval itself; cases not mentioned by Sandoval but which unquestionably remain good law; and cases that are probably good law, but allow for some doubt as to their continuing validity.
'Sandoval'-approved cases: Sandoval held that a judge would err if he or she sentenced a defendant in an arbitrary or capricious manner. The Supreme Court found that a judge would abuse his or her discretion if sentencing in reliance on "circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." People v. Sandoval, supra, 41 Cal.4th 825, 847.
Sandoval expressly approved the following cases: People v. Colds (1981) 125 Cal.App.3d 860, 863 ("it is improper to consider a waiver of jury trial in mitigation, or an exercise of the right to jury trial as aggravation"); People v. Johnson (1988) 205 Cal.App.3d 755, 758 ("defendant's alienage is not a proper factor when considering the length of his term"); and People v. Crandell (1988) 46 Cal.3d 833, 861 ("failure to exercise discretion also may constitute an abuse of discretion").
Unquestionably still good cases: Although not mentioned by Sandoval, many cases indisputably remain good law on what constitute improper reasons for sentencing. For example, the following opinions doubtlessly remain sound: People v. White (1981) 117 Cal.App.3d 270 (a judge's personal opinion that the legally prescribed sentences are too lenient must not enter into the sentencing decision); People v. Axtell (1981) 118 Cal.App.3d 246 (a judge's feeling that statutorily prescribed sentences are too severe cannot act to reduce a sentence).
Also falling into this category are opinions holding that the judge's opinion that the defendant is a danger to himself is not a proper factor in aggravation (People v. White (1981) 117 Cal.App.3d 270), that, just as a judge cannot consider a defendant's alienage, he or she also may not consider a victim's illegal-immigrant status (People v. Boemer (1981) 120 Cal.App.3d 506), and that the defendant's fathering illegitimate children also cannot be considered in sentencing (People v. Bolton (1979) 23 Cal.3d 208).
Further, the aggravating and mitigating criteria in Rules 4.421 and 4.423 are not exhaustive (See Cal. Rules of Court, Rule 4.408(a)), and many cases which approved relying on nonrule factors also remain valid. For example, a psychiatric prediction of recidivism is proper aggravation (People v. Flores (1981) 115 Cal.App.3d 924), and so are mere attempts to commit factors in the rules on aggravation (People v. Lewis (1991) 229 Cal.App.3d 259). Intoxication and drug addiction can be considered mitigating (People v. Avalos (1984) 37 Cal.3d 216), and general evidence of the defendant's good character continues to be mitigating (People v. Wilson (1982) 135 Cal.App.3d 343).
Opinions that probably remain valid: People v. Harvey (1979) 25 Cal.3d 754, and its rule that a judge cannot rely on counts dismissed under a plea bargain to impose an aggravated term, likely will remain valid. The problem here is that the way the rule has been stated by courts bars a judge's use of the facts underlying dismissed counts as constituting the facts supporting aggravation. See, e.g., People v. Visciotti (1992) 2 Cal.4th 1, 68. Of course, the new Rules of Court do not rely on facts and do not require any factual findings: A judge need only state reasons. Cal. Rules of Court, Rule 4.420(d).
Nonetheless, the Harvey principle probably remains valid because what is really at issue is fairness to the defendant, not the facts/reasons dichotomy: The rule is based on an implicit term in plea bargains "that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." People v. Harvey, supra, 25 Cal.3d 754, 758.
Another rule that probably survived the new DSL is the one that precludes a judge from considering a defendant's arrests that did not result in adjudication or conviction unless they are accompanied by factual support explaining the underlying conduct. See People v. Berry (1981) 117 Cal.App.3d 184. The difficulty here is that this rule was based on the now-repealed requirement that the judge find facts supporting his or her decision; because the judge no longer needs to find facts, nothing seems to preclude him or her from relying on the arrests themselves in reasons for the sentence.
However, this is a rule that predated the enactment of the original DSL and that also was based on fairness rather than the requirement that facts be found by the judge: "[F]undamental fairness demands that reports [of arrests] be founded on accurate and reliable information. Thus, evidence of police contacts not leading to arrest or conviction may not be included in the [probation] report," and may not be relied on by the judge, "without supporting information." People v. Chi Ko Wong (1976) 18 Cal.3d 698, 719.
Finally, a rule that also likely lives on despite the new DSL is the one that bars a judge from imposing a term and merely citing as his or her reasons those listed in the probation report. This type of "incorporation by reference" has been condemned repeatedly because it "does not satisfy the requirement of a statement of reasons." People v. Turner (1995) 40 Cal.App.4th 1317, 1320. An argument can be made that, because Rule 4.420(e) no longer requires a "statement of the ultimate facts" justifying a sentence, a judge can just accept the probation officer's recommendation for the sentence the judge has chosen and state that the report constitutes the judge's reasons.
This approach should be rejected, however, because the bar to incorporation by reference serves many interests that continue to be important even after the adoption of the new DSL and Rules of Court: "it is frequently essential to meaningful review; it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision; and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision-making is careful, reasoned and equitable." People v. Martin (1986) 42 Cal.3d 437, 449-450.
Alex Ricciardulli is a judge on the Los Angeles County Superior Court.