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Nuts and Bolts of Determinate Sentencing

By Sam Ohta

Sentencing under California's Determinate Sentencing Law is governed by a multiplicity of rules. It is intricate and often complicated.

The objective of this article and self-study test is to provide an introduction to felony sentencing under the Determinate Sentencing Law. Readers will learn how judges decide whether to impose the low, middle, or high term for a charge; how to add time for enhancements, like use of a weapon or infliction of great bodily injury; how to incorporate multiple counts into a sentence; and how to add time for prior convictions.

In a felony case, when probation is denied and a determinate term is imposed, the court must conform its decision to the rules under the Determinate Sentencing Law (Penal Code Sections 1170 et seq).

Determinate sentences are prison terms of a fixed duration. The court specifies the length of the term. After the defendant has served a certain percentage of his or her term, the Dept. of Corrections and Rehabilitation calculates when the defendant may be released, based on his or her accumulated credits. Usually a defendant must serve 50 percent of his or her term to be eligible for release, but it can be as long as 85 percent when the current offense is a "violent" felony listed under Penal Code Section 667.5(c) (see Penal Code Sections 2933, 2933.1).

There are four steps in calculating a typical determinate sentence: Choose a base term from the triad of terms applicable to the given offense; calculate the principal term by adding conduct enhancements to the base term; if multiple counts were alleged and proved, determine whether the defendant is subject to consecutive sentences; and add any applicable prior conviction enhancements.

Under the Determinate Sentencing Law, the Legislature prescribes three possible prison terms called a triad. A base term refers to the court's choice from among the three possible terms (Penal Code Section 1170(b)). Typically, the court chooses from a low, middle, or high term when imposing judgment. For example, the crime of carjacking specifies possible terms of three, five, or nine years (see Penal Code 215(b)), and receiving stolen property specifies a range of 16 months, two years, or three years (see Penal Code Sections 18, 496).

In Cunningham v. California, 549 U.S. 270 (2007), the U.S. Supreme Court found California's determinate sentencing scheme for imposing the upper term unconstitutional. In response to Cunningham, the California Legislature passed Senate Bill 40, an urgency measure, which amended the Determinate Sentencing Law by vesting trial judges with discretion to consider the full range of sentences when choosing the level of punishment.

The court's discretion, however, is not boundless. In imposing a prison term, the court is guided by the Rules of Court that relate to factors in aggravation and mitigation (California Rules of Court 4.421 and 4.423). Examples of aggravating factors include a vulnerable victim or use of a weapon. Examples of mitigating factors include the defendant as a passive participant or the defendant's absence of a prior criminal record (see California Rules of Court 4.421(a)(2), (3), 4.423(a)(1), (b)(1)).

The court must set forth the reasons for its choice (California Rules of Court 4.406(b)(4)). If the defendant agrees to a negotiated plea, that fact is sufficient reason for imposing a particular term (California Rules of Court 4.412(a)).

It is common for a charge to contain enhancements. Enhancements are additional punishment imposed on top of the base term. There are two types: conduct enhancements that relate to the nature of the offense, and prior conviction enhancements that relate to recidivism.

Conduct enhancements are referred to in the California Penal Code as "specific enhancements" (see Penal Code Section 1170.11). Examples of specific enhancements include: Personally using a knife (one year; Penal Code Section 12022); personally inflicting great bodily injury (three years; Penal Code Section 12022.7); and possessing between four and 10 kilos of narcotics (five years; Health & Safety Code Section 11370.4(a)).

The court has the authority to dismiss or strike enhancements in furtherance of justice, unless specifically prohibited by statute (see Penal Code Section 1385; People v. Hatch, 22 Cal.4th 260 (2000)).

Some enhancements specify three possible terms. For example, the gang enhancement under Penal Code Section 186.22(b)(1)(A) provides three possible terms: two, three, or four years in prison.

Starting Jan. 1, 2010, there is no longer a presumption for the use of the middle term when conduct enhancements contain a triad. The law provides that "[t]he court shall select the sentence enhancement which, in the court's discretion, best serves the interests of justice and shall state the reasons for its choice on the record at the time of the sentencing" (see, e.g., Penal Code Section 186.22(b)(3)).

The principal term has been established once the judge has selected the base term and has added time for conduct enhancements: "The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements" (Penal Code Section 1170.1(a)).

When a defendant stands convicted of multiple counts, the court next determines whether Penal Code Section 654 prohibits punishing an act or omission under more than one provision of law. Penal Code Section 654 is rather narrow, and only bars punishment when "an act or omission" is "punishable in different ways by different provisions of law" (Penal Code Section 654(a)). If that is the case, the court must impose sentence on the count that carries the longest potential punishment and stay the sentence on the remaining count. Otherwise, the court must decide whether to impose concurrent or consecutive terms.

If sentencing consecutively, the court must calculate the additional terms. Generally, the court retains discretion unless a statute specifically requires a consecutive term (see People v. Belmontes, 34 Cal.3d 335 (1983)). Penal Code Section 667.6(d), which applies to some sex offenses, is an example of a statute requiring mandatory consecutive terms.

California Rules of Court 4.425 provides guidance on determining whether to impose a consecutive term. The factors set forth in this rule include whether the counts and their objectives were predominantly independent of one another, whether the crimes involved violence, and whether the offenses were committed at different times and places. Dual use of facts is precluded. For example, under Rule 4.425(b), a judge may not use a factor to impose the high term and to also impose a consecutive sentence. On the other hand, the exercise of the court's discretion to impose a consecutive term does not violate Cunningham (see People v. Black, 41 Cal.4th 799 (2007)).

Generally, the sentence on the subordinate term is limited to one-third of the middle term, unless specifically provided otherwise by statute (Penal Code Section 1170.1(a)). Specific enhancements on subordinate terms are sentenced at one-third the term the court selects for the enhancement (Penal Code Section1170.1(a)).

An "aggregate" term means the sum of the principal term, all subordinate terms, and any terms for prior conviction enhancements. This is the total amount of time that a defendant is ordered to serve in prison.

Prior convictions may, under certain circumstances, constitute a recidivist enhancement. With the exception of "strike" priors, which place the defendant into an alternative sentencing scheme beyond the scope of this article, recidivist enhancements do not attach to any count but instead relate to the nature of the defendant. As such, prior conviction enhancements are added once at the final computation of sentence (see People v. Tassell, 36 Cal.3d 77 (1984), overruled on other grounds in People v. Ewoldt, 7 Cal.4th 380 (1994)).

A defendant's prior felony conviction may fall under one or more recidivist enhancements under different statutory provisions. However, cumulative use is sometimes prohibited. For example, Penal Code Section 667.5(b) adds one year in prison for every separate prison term served by a defendant, while Penal Code Section 667(a) adds five years for every serious felony suffered by a defendant when convicted of a new serious felony. The court is not allowed to give both the one-year enhancement and the five-year enhancement because the court must not punish a defendant twice for a single prior conviction (People v. Jones, 5 Cal.4th 1142 (1993)).

Prior conviction enhancements, like conduct enhancements, must be specifically alleged and proved (Penal Code Section 1170.1(e)). Also, as with conduct enhancements, the court has the power to dismiss or strike prior conviction enhancements in the furtherance of justice under Penal Code Section 1385 (see People v. Superior Court (Romero), 13 Cal.4th 497 (1996)).

For prior conviction enhancements, a defendant's right to a jury trial is vested by statute, not the federal or state constitution (see People v. Belmares, 106 Cal.App.4th 19 (2003)). Under Penal Code Sections 1025 and 1158, the jury's inquiry is limited to whether or not the "defendant has suffered a prior conviction." The question of identity is tried solely by the court.

Sam Ohta is a Los Angeles County Superior Court judge.

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