Opinion
Opinion on pages 1-26 omitted.
HEARING GRANTED
[210 Cal.Rptr. 469]H. Eugene Andreasen, Sunnyvale, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., for plaintiff and respondent.
SMITH, Associate Justice.
The primary issue presented in this appeal is whether the trial court abused its discretion in denying a motion brought by the Board of Prison Terms (Board) to recall the sentence imposed upon Daryle Keith Martin (appellant) because the Board found it to be disparate. (Pen.Code, § 1170, subd. (f).) We find no abuse of discretion and affirm the judgment except for one modification.
All references are to the Penal Code unless otherwise indicated.
All subsequent references are to the Penal Code unless otherwise indicated.
On September 19, 1979, a jury found appellant guilty of five counts of robbery ( § 211). The jury also found that appellant had used a knife in two of the robberies. ( § 12022, subd. (b).) On January 9, 1980, after he was arrested on new charges, an additional information was filed charging appellant with two counts of robbery ( § 211) and alleging firearm enhancements in both robberies. ( §§ 12022.5 and 1203.06.) Appellant pleaded guilty to these charges and admitted the use allegations. The two actions, involving seven separate robbery counts, were consolidated for sentencing on February 8, 1980. The trial judge sentenced appellant to a total unstayed prison term of 12 years by selecting the upper term of five years for the principal robbery offense, adding one year for the use of a knife on the principal offense ( § 12022, subd. (b)), and imposing six consecutive terms of one year (one-third of the middle term) for the remaining six robberies. ( § 1170.1) The sentences imposed for the remaining use enhancements were stayed.
On August 20, 1981, after having reviewed appellant's sentence, the Board filed a motion for resentencing pursuant to section 1170, subdivision (f). By this motion [210 Cal.Rptr. 470] the Board informed the court of its determination that appellant's sentence was disparate in comparison with the sentences imposed in similar cases and recommended that he be resentenced to a term between five and 10 years. The Board also noted in its motion that the sentence was legally in error because of reasons not pertinent to issues raised in this appeal. However, the Board's recommendation that appellant be sentenced to no more than 10 years indicated to the trial court that even if this legal error were corrected, and appellant were resentenced to a term of 11 years, the resulting term would still be "disparate."
As amended in 1981, section 1170, subdivision (f), provides as follows: "(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.
Rule 410, which is applicable to all sentencing decisions, including those made upon a Board motion pursuant to section 1170, subdivision (f), provides in pertinent part: "General objectives of sentencing include: ... [p] (g) Achieving uniformity in sentencing."
At oral argument on the Board's motion, the trial judge questioned counsel for the Board on the methodology utilized to determine that a sentence is disparate. In this questioning the court found fault with the Board's methodology. The court was particularly troubled by the inability of the Board's statistical analysis to take into account certain subjective factors which he found important in sentencing. The trial judge was also troubled by the fact that the Board's recommended sentence was, in the trial judge's opinion, itself disparate since it involved a recommended range of five to ten years.
Five days after the hearing on the Board's motion, the trial judge issued his order purportedly granting the Board's motion in part. This order reduced appellant's total sentence to 11 years by making one of the subordinate terms run concurrent with the principal term rather than consecutive, as had originally been ordered. This appeal followed.
The order provided: "The motion by the Board of Prison Terms pursuant to Penal Code section 1170(f) to recall the sentence of defendant and to resentence for a total term between 5 years and 10 years came on for hearing on December 11, 1981. The Court grants the motion in the following particulars only. [p] The defendant's sentence is recalled and defendant is resentenced on Information No. 71690, Count 6, robbery, as follows: Having been found guilty of the crime of robbery, Count 6, defendant is sentenced to state prison for the term of 5 years; this term shall run concurrently with Count 1, the principal term. The maximum state prison term shall be 11 years. The reasons stated at the time of sentencing for aggravation of the principal term shall apply and shall be incorporated by reference in imposing the aggravated term on the subordinate Count 6."
The present version of section 1170, subdivision (f), which is set forth in footnote 2 to the majority opinion, was enacted in 1981. (Stats.1981, ch. 1111, § 1.) The preceding version, which was in effect at the time of the decision in Herrera and at the time of the hearing on the Board's motion below, 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.)
I
Appellant's first contention, which is based on a mischaracterization of what happened below, need not detain us long. Appellant asserts, in effect, that the trial judge found the sentence initially imposed disparate and in order to cure this defect granted the Board's motion and reduced the sentence to 11 years. Since the reduced term was still longer than the maximum recommended by the Board, appellant concludes that the reduction was insufficient and that as a result of this error his new term remains improperly disparate.
The defect in this argument, of course, is that the trial judge did not find the original sentence disparate and did not in that respect grant the Board's motion. By its own terms, the trial court's order (set forth ante in fn. 3) was limited to correcting a perceived legal error to which the Board had called its attention. The correction of this perceived error does not signify any concession by the trial court that the sentence was disparate nor represent an effort to bring the sentence within the range recommended by the Board. Appellant's effort to translate this correction of legal error into an implied finding of disparity is simply unavailing.
II
We now turn to the issue of whether the trial court gave sufficient weight to the Board's determination of disparity. Preliminary [210 Cal.Rptr. 471] to answering this question, we must examine the process which results in finding of disparity by the Board.
Section 1170, subdivision (f), directs the Board to review all determinate sentences within one year of imposition "to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases." While there is no statutory definition of "disparate," the Attorney General has held that a sentence is disparate if "there is a substantial difference between the subject sentence and the sentences imposed on other offenders committing the same offense under similar circumstances." (60 Ops.Cal.Atty.Gen. 143, 144-147 (1977).)
The Board's review process consists of four steps. First, a computer using Determinate Sentence Law (DSL) cases for the prior two and one-half years, sorts them according to principal offense, identifies the range of possible sentences for a particular offense group, and calculates the relative likelihood that each of the possible sentences will occur. The relative likelihood of a sentence is calculated on the basis of historical sentencing practices and the use of a simulated computer sentencing model. If this screening finds that fewer than 10.5 percent of these repeated simulated sentencings would have resulted in a sentence as high as or higher than the actual sentence then the sentence in question is identified as "variant." Removing the legal error corrected by the trial court, the likelihood of a sentence as high or higher than the one in the instant case is 10 percent.
Second, all court documents are reviewed by the Board's Sentence Review Unit to find an explanation for the "variant" categorization of the sentence. The third step is a reference to the Case Analysis Committee for comparison with other similar cases. The Committee examined 29 factually similar cases and found that two of the 29 cases had a sentencing pattern the same as in the instant case. The Committee identified the case as "disparate" and referred the case to the Board for the final review. The Board concurred in the finding of disparity.
The issue in this case therefore is, What legal effect should the trial court give the Board's finding of disparity?
People v. Herrera (1982) 127 Cal.App.3d 590, 179 Cal.Rptr. 694, decided by this division, was the first appellate decision which considered the legal effect of a section 1170, subdivision (f) motion. The opinion begins its analysis with the proposition that the disparate review process is not designed to uncover legal error in sentencing. Rather, the process mandated by the statute concerns itself with statistical uniformity of DSL sentences imposed on those convicted of similar crimes under similar circumstances. (Id., at p. 597, 179 Cal.Rptr. 694.)
The reasoning of Herrera was followed in People v. Mitchell (1984) 152 Cal.App.3d 433, 199 Cal.Rptr. 507.
In order to permit the sort of judicial consideration that I believe is required, and in order for the Board to properly discharge the duties imposed upon it by section 1170, subdivision (f), a motion to recall must include an analysis of the circumstances in which the sentence in question was imposed relative to those of comparable cases. A Board motion cannot succeed, in my view, if it is based solely on the fact that the sentence may be more extreme than any of those actually imposed in other cases involving the same offense or offenses. If recall were justified by the mere fact that the sentence is located on the extremity of a bell curve describing all comparable sentences--and there must always be such a sentence--then the precise median sentence would ultimately be the only one that could withstand a motion for recall. Such a result would, of course, be untenable.
Due to the wording of the statute (i.e., "the sentencing court shall schedule a hearing and may recall the sentence ...") ( § 1170, subd. (f), emphasis added), Herrera did not contend that the judge was bound to follow the Board's recommendation. However, the defendant took the position that its finding of disparity created a rebuttable presumption that the sentence was incorrect and should be recalled. We rejected this proposition on the grounds that since the Legislature had, in effect, created certain presumptions elsewhere in section 1170, such as in subdivision (b), but had, by its plainly permissive language, failed to create such presumption in subdivision (f), it was not the Legislature's intent to create the proposed presumption. [210 Cal.Rptr. 472] (127 Cal.App.3d at p. 599, 179 Cal.Rptr. 694.) This view is consistent with the settled rule that " '[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.' " (City of Port Hueneme v. City of Oxnard (1959) 52 Cal.2d 385, 395, 341 P.2d 318, quoting People v. Town of Corte Madera (1950) 97 Cal.App.2d 726, 729, 218 P.2d 810.) Thus, although one of the purposes of the Uniform Determinate Sentencing Act of 1976 was to eliminate disparity in sentencing and to create uniformity in the sentencing of offenders committing the same offense under similar circumstances (see, § 1170, subd. (a)(1)), the Legislature failed to mandate such a procedure upon the Board's finding of disparity in sentences.
The dissent, while appearing to agree that the Board's resentencing recommendation does not rise to the level of a presumption, insists that such recommendation should be "adopted in the absence of any specification of unusual circumstances of a substantial nature." We feel, that while the dissent may not call this formulation a presumption, it has the appearance and effect of one. To hold, as the dissent suggests, that the Board's recommendation binds the trial court unless there exists rebuttal evidence would go in the face of the plain permissive language of section 1170, subdivision (f). That section plainly and unambiguously states that the judge "may recall the sentence." (Emphasis added.) Courts are bound to give effect to such clear statutory statements by the Legislature and not torture a permissive "may" into a mandatory "shall." (See 2A Sutherland, Statutory Construction (4th ed. 1984) § 46.04, pp. 86-87.)
My colleagues suggest that the circumstances identified in rule 421 are themselves "subjective factors" (maj. opn., p. 473); this characterization is presumably intended to justify their apparent conclusion that an objective analysis of such circumstances is impossible. This is sophistry. Without embarking upon an epistemological analysis of the majority's position, suffice it to state that I employ the terms "objective" and "subjective" in the relative sense, not the absolute, which seems to me the only sense in which these terms can be usefully employed by judges. A determination is for the present purposes "objective" if it emphasizes the use of external facts without distortion by personal feelings or prejudices. Thus, for example, I believe it can be determined from the record and with relative objectivity whether a convicted person's crime "involved great violence" (Cal.Rules of Court, rule 421, subd. (a)(1)); or whether he "was armed with or used a weapon" (rule 421, subd. (a)(2)); or whether his crime "involved multiple victims" (rule 421(a)(4)); or whether he "induced others to participate in the ... crime" (rule 421, subd. (a)(5)); or whether any of the numerous additional factors set forth in rule 421, subdivisions (a)(1) through (b)(5) are present. Rule 421 essentially does no more than catalogue many (though not necessarily all) of the factors that will ordinarily be relevant to the issue of sentencing disparity and the propriety of granting or denying a motion to recall. The primarily objective or subjective nature of the judicial perception that any such factors are or are not present in a particular case depends upon whether the perception is demonstrably based upon relevant evidence properly before the court. If, as in the present case, supporting evidence has not been or cannot be identified in the record, and the determinative factors exist primarily in the mind of the sentencing judge, the judicial determination should be deemed fatally subjective.
This being the case, Herrera holds that in determining the merits of a motion brought by the Board, the 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." (127 Cal.App.3d at p. 601, 179 Cal.Rptr. 694.)
The dissent feels that the "great weight" standard is too vague. Yet as a replacement it suggests an even more difficult to define standard: the Board's resentencing recommendation should be adopted in the absence of "unusual circumstances of a substantial nature." (See fn. 5, ante.)
The factors these 29 cases had in common with the instant case were: a principal count of robbery; a defendant not under supervision at the time of the earliest present offense; no prior juvenile criminal history; no prior adult convictions; no injury to any victim; and three or more unstayed subordinate counts.
The case at bench is remarkably similar to Herrera. In Herrera, the decision to deny the Board's motion was based on the trial court's finding that the sentence it had imposed was not disparate. This finding was supported in part by the court's criticism of some of the criteria the Board used to distinguish "disparate" from "variate" sentences. (See, e.g., 127 Cal.App.3d at p. 602, fn. 6, 179 Cal.Rptr. 694.) In the instant action, the trial court impliedly challenged the Board's failure to take into consideration certain factors surrounding a defendant's commission of an offense. Although the dissenting opinion strongly objects to utilizing such "subjective" factors, we find them entirely appropriate. Section 1170, subdivision (f) expressly states that "[i]n 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." (Emphasis added.) California Rules of Court, rule [210 Cal.Rptr. 473] 421, provides that circumstances that may be used to aggravate a sentence include "(a) Facts relating to the crime, including the fact that: (1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness, whether or not charged or chargeable as an enhancement under section 12022.7." These are clearly "subjective" factors that may be included in a sentencing court's exercise of discretion. Thus, the lower court's perception that the underlying offenses for which appellant was sentenced were more serious than the crimes underlying the other sentences to which his sentence was compared, could very well be accurate. Accordingly, the court could reasonably find that appellant's sentence was not disparate.
During the hearing the following colloquy between the court and the Board's counsel took place:
These concerns were expressed during the following colloquy between the trial court and counsel for the Board:
The dissenting opinion relies heavily on People v. Carl B. (1979) 24 Cal.3d 212, 155 Cal.Rptr. 189, 594 P.2d 14, for the proposition that in addition to giving "great weight" to the Board's recommendation as we mandated in Herrera, a sentencing court must follow that recommendation in the absence of substantial countervailing considerations.
Carl B. was 17 years old when he allegedly committed robbery and assault with a deadly weapon. He was found not a "fit and proper subject" to be dealt with under the Juvenile Court Law (Welf.s&sInst.Code, § 707 et seq.), and eventually pled guilty in adult criminal proceedings. Following a 90-day commitment to Youth Authority (YA) pursuant to Welfare and Institutions Code section 707.2, that agency submitted to the sentencing court a report finding that defendant was amenable to YA programs. Defendant's probation officer reviewed the YA report and submitted to the court a supplemental probation report which concurred with YA's evaluation. Nevertheless, the trial court rejected YA's recommendation on the grounds that "YA's report offered no 'assurance' of defendant's rehabilitation, and that accordingly a prison term was appropriate for the protection of society, in light of the seriousness of his offense." (Carl B., supra, 24 Cal.3d at p. 217, 155 Cal.Rptr. 189, 594 P.2d 14.) Our Supreme Court reversed the judgment finding at least two deficiencies in the lower court's reasoning: 1) it was based upon the unfounded premise that YA's facilities were inadequate for the training and treatment of serious offenders and 2) the sentencing court's desire to impose a substantial period of confinement for society's protection could have been fulfilled by a YA commitment. In essence, the Supreme Court held that there were no legally sufficient grounds for rejecting a YA recommendation and sentencing the juvenile offender to state prison. The court in Carl B. found there was no substantial evidence to support the trial court's decision. (24 Cal.3d at p. 220, 155 Cal.Rptr. 189, 594 P.2d 14.)
Carl B. simply stands for the proposition that there may be an abuse of discretion by the trial court (see p. 217, 155 Cal.Rptr. 189, 594 P.2d 14) when that court's decision, which happens to be contrary to YA's recommendation, lacks substantial evidence. Carl B. is nothing more than a substantial evidence case. However, the dissent reads this substantial evidence case as holding that YA recommendations must be followed absent "substantial countervailing circumstances." The dissent attempts to read "presumption" where none exists in either case or statute.
There are significant differences between a Welfare and Institutions Code section 707.2 evaluation and a sentence review by the Board under section 1170, subdivision (f). The section 707.2 evaluation is: performed presentence within an indeterminate sentence system; involved with questions of treatment and rehabilitation; and, concerned with the subjective qualities of the juvenile. On the other hand, the Board review is: performed post-sentence in a determinate sentence system; involved with punishment and not rehabilitation or treatment; and, concerned with an objective and statistical measurement. Even if, [210 Cal.Rptr. 474] arguendo, the presentence YA evaluation can only be overcome by "unusual circumstances of a substantial nature," we hold that because the goal, timing and qualities of the Board's review are different in kind from those of the YA evaluation, no such burden exists with the Board's review. To hold otherwise would substantially undermine the legislative intent of section 1170, subdivision (f), which is a clear statement of trial court discretion unhampered by a presumption.
Finally, while we suggested in Herrera that a trial judge, as a practical matter, will want the record to reflect the precise reason he disagreed with the Board's finding in a section 1170, subdivision (f) motion, we were reluctant to make this mandatory. This was because the trial court is required to state its reasons for an aggravated, enhanced or consecutive term at the initial sentencing hearing. Such reasons were presumably found legally acceptable on appeal. We can think of no authority or rationale to require the sentencing court to set forth an entirely different set of factors to justify a perceived disparity by the Board. (See also People v. Mitchell, supra, 152 Cal.App.3d 433, 438, 199 Cal.Rptr. 507.)
In light of the above discussion, we find the trial court did not abuse its discretion in rejecting the Board's motion.
The judgment is affirmed.
ROUSE, J., concurs.
KLINE, Presiding Judge.
I respectfully dissent from the portion of the majority opinion holding that the trial court gave sufficient weight to the Board of Prison Terms' (Board) determination of disparity and did not abuse its discretion in denying the Board's motion to recall appellant's sentence.
In my view, we should reverse not only the judgment below but as well our earlier decision in People v. Herrera (1982) 127 Cal.App.3d 590, 179 Cal.Rptr. 694. "Stare decisis certainly does not require a court to perpetuate a wrong for which it was responsible...." (Cleveland v. United States (1946) 329 U.S. 14, 28, 67 S.Ct. 13, 20, 91 L.Ed. 12 (dis. opn. of Murphy, J.).)
Herrera is wrong because, like the majority opinion in the present case, it does not advance but defeats a central purpose of the Act it purports to interpret.
I
The Uniform Determinate Sentencing Act of 1976 marked a dramatic departure from the indeterminate sentencing scheme that had been in effect in California since 1917. The opening paragraph of the Act, which is now codified in Penal Code section 1170, subdivision (a)(1), 1 instructs that the dominant policy of the new law, consistent with the shift in the purpose of imprisonment from rehabilitation to punishment, is uniformity in sentencing: "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.)
The Legislature sought to achieve uniformity in sentencing through a variety of specific requirements. Section 1170.1, subdivisions (a), (d), and (f), place limits on the terms that may be imposed for specified offenses. Section 2931 authorizes uniform reduction of sentences for good behavior and program participation. Section 2932 sets forth a uniform scheme form the denial of such credit for misbehavior or lack of participation in prison programs.
Section 1170.3 requires the Judicial Council to promote sentencing uniformity by [210 Cal.Rptr. 475] adopting rules of court setting forth criteria to be considered by the court at the time of sentencing. (See Cal.Rules of Court, Sentencing Rules for the Superior Courts, rule 401-453.) Section 1170, subdivision (a)(2) requires the court to apply these rules of the Judicial Council at the time of sentencing. 2 Sections 1170.4, 1170.5 and 1170.6 require the Judicial Council to publish quarterly information relating to sentencing practices in California and other jurisdictions, to annually conduct "sentencing institutes" to assist judges in the imposition of "appropriate sentences," and to review statutory sentences and report its analysis to the Governor and the Legislature.
Section 1170, subdivision (f), which bears directly upon the instant case and which I shall elucidate in greater detail presently, requires the Board to review all determinate sentences within one year of imposition "to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases." There is no statutory definition of disparity. However, the Attorney General has advised the Board that a sentence is "disparate" if, as a result of the exercise of judicial discretion, "there is a substantial difference between the subject sentence and the sentences imposed on other offenders committing the same offense under similar circumstances." (60 Ops.Cal.Atty.Gen. 143, at pp. 144, 147 (1977).)
The foregoing sections of the determinate sentencing law collectively express a rather definitive legislative effort to diminish inequitable disparities in punishment to the extent practicable. (See 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, 39.) This effort was motivated in part by judicial decisions disapproving administration of the indeterminate sentence law in certain particulars (see, e.g., In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, and In re Stanley (1976) 54 Cal.App.3d 1030, 126 Cal.Rptr. 524), but it was at least equally the result of "an accumulation of evidence that [under the indeterminate sentencing system] there were wide sentencing disparities in terms of both who went to prison and their lengths of stay for similar offenses." (Determinate and Indeterminate Sentence Law Comparisons Study, Report to the Calif. Legislature, Joint Comm. on Rules, Arthur D. Little, Inc. (May 1980) p. II-1; see also Crowther, Crime, Penalties and Legislatures (1969) 381 Annals of the Am. Academy of Pol.s&s Soc. Sci. 147, 153.) This evidence was punctuated by the developing national consensus that significant disparities in the punishment imposed upon like individuals committing like offenses was a pernicious evil endangering the very integrity of the criminal justice system. (See, e.g., Hoffmans&sStover, Reform in the Determination of Prison Terms: Equity, Determinacy and the Parole Release Function (1978) 7 Hofstra L.Rev. 89; von Hirsch, Doing Justice: The Choice of Punishments (Hills&sWang 1976); Gaylin, Partial Justice: A Study of Bias in Sentencing (Alfred P. Knopf 1974); Hagan, Extra-Legal Attributes and Criminal Sentencing: An Assessment of a Sociological Viewpoint (1974) 8 Laws&sSoc'y. Rev. 357; Frankel, Criminal Sentences: Law Without Order (Hills&s Wang 1973); President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Courts (1967); and Shepard v. United States (6th Cir.1958) 257 F.2d 293, 294, opn. of Potter Stewart, J.).)
Numerous empirical studies revealed that the chief explanation for sentencing disparity was not the differences in defendants but the differences in judges. (See, e.g., Rubin, Disparity and Equality of Sentences--A Constitutional Challenge (1967) 40 F.R.D. 55, 58; McGuires&sHoltzoff, The Problem of Sentence in the Criminal Law (1940) 20 B.U.L.Rev. 423; Glueck, Crime and Justice (1936) p. 127; [210 Cal.Rptr. 476] Gaudet, Harris s&sSt. John, Individual Differences in the Sentencing Tendencies of Judges (1933) 23 J.Crim.L., Criminologys&s Police Sci. 811; and Everson, The Human Element in Justice (1919-20) 10 J. of Crim.Law 90.) Thus the movement to promote uniformity in sentencing, in which the Uniform Determinate Sentence Act of 1976 was a major step, was in no small part a movement to diminish judicial discretion. (See, e.g., Countdown for Judicial Sentencing in Of Prisons and Justice, Senate Doc. No. 70, 88th Cong., 2d Sess., pp. 331-332 (1964).) Many of the most distinguished judges in the nation, it deserves to be noted, played a leading role in this effort. (See, e.g., Judicial Conference of Senior Circuit Judges, Report of the Committee on Punishment for Crime, pp. 26, 27 (1942); and Frankel, Criminal Sentences: Law Without Order, supra, pp. 12-25.)
It is with this background in mind that the duties imposed upon a sentencing court by section 1170, subdivision (f), should be assessed. As correctly noted in People v. Herrera, supra, 127 Cal.App.3d 590, 179 Cal.Rptr. 694, the disparate review process mandated by this statute is not designed to uncover legal error. (Id., at p. 597, 179 Cal.Rptr. 694.) Nor does this section concern itself with whether a criminal sentence is proportionate to the crime of which a defendant has been convicted. (See In re Rodriguez, supra, 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384; In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.) Disparate sentence review assumes that the sentence under scrutiny is legally correct and proportionate to the crime for which it was imposed. Its exclusive purpose is to determine whether the sentence is substantially different from those imposed by other California courts in comparable cases in which the defendant has been convicted of the same offense under similar circumstances.
The determination whether a particular sentence is disparate in comparison with the sentences imposed in similar cases is required to be made by the Board. (Pen.Code, § 1170, subd. (f)(1).) If it determines the sentence is disparate, the Board shall so notify the sentencing judge, the district attorney, the defense attorney, the defendant and the Judicial Council. This notification must include a statement of the reasons for finding the sentence disparate. (Ibid.) "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 [to a lesser term]." (Ibid., italics added.)
In its brief history, the Board has exercised its review power sparingly, finding disparity in very few instances. Thus, between January 1979 and February 1983, the only period for which reliable statistics are now available, the Board found disparately high sentences in only 185 of the 74,570 cases it reviewed during that four year period; that is, disparately high sentences were found in approximately one-fourth of one percent of the cases. (Board of Prison Terms, Report on Sentence Review and Legal Error, Attachment 1 (Jan. 1985).)
Because section 1170, subdivision (f), clearly does not impose upon the sentencing court a mandatory duty to recall the sentence when confronted with a Board finding of disparity, it is the duty of the appellate courts to specify the degree of deference that must be accorded that finding and the circumstances that will justify judicial discretion to deny a Board motion to recall.
At the time the instant motion to recall was considered below, and denied, section 1170, subdivision (f), had not been construed by any appellate court. 3 Shortly [210 Cal.Rptr. 477] thereafter, however, we issued our opinion in People v. Herrera, supra, which still provides the leading interpretation of the statute by an appellate court.
After describing the three-step administrative process for determining disparity then in effect (id., 127 Cal.App.3d at pp. 597-598, 179 Cal.Rptr. 694) and analyzing the statute, it was held in Herrera that a Board motion pursuant to section 1170, subdivision (f), does not create a presumption in favor of resentencing but is entitled to "great weight" and "serious consideration." (Id., at pp. 600, 601, 179 Cal.Rptr. 694.) As stated in Herrera, "[i]n 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." (Id., at p. 601, 179 Cal.Rptr. 694.) A trial court will have met its obligation to accord the Board's finding of disparity "great weight" in the first part of this two-step analysis "if the record shows that the court seriously considered the information provided by the Board, and attempted to discern whether, when compared to sentences imposed by his colleagues, the sentence he imposed in the case under review was 'disparate.' " (Ibid.) It was also declared, in this connection, that "[e]ven 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." (Id., at p. 602, 179 Cal.Rptr. 694.)
The unexplicated formulation of "great weight" set forth in Herrera is destined to devitalize the policy of uniformity in sentencing that is central not only to the determinate sentence law but as well to the basic concept of equal justice. That formulation is, first of all, too vague to be meaningfully and consistently applied on the trial level or effectively enforced through appellate review. Indeed, the concession in Herrera that the "great weight" standard "does not lend itself to easy description or definition" (id., at p. 601, 179 Cal.Rptr. 694), is understatement of the grandest sort. This standard does not lend itself to any description or definition beyond the two words of which it consists. It is difficult to conceive that any trial judge who does no more than preside at a hearing on a motion to recall and appears to listen may not be deemed to have met this standard.
In my view, the Herrera approach confers upon the trial court a greater amount of sentencing discretion than can be reconciled with the legislative purpose. The decision of the Supreme Court in People v. Carl B. (1979) 24 Cal.3d 212, 155 Cal.Rptr. 189, 594 P.2d 14, though it construes a sentencing statute other than the one we are here concerned with, is nonetheless highly instructive on this point.
Carl B. involved the scope of a sentencing court's discretion, under section 707.2 of the Welfare and Institutions Code, to accept or reject the recommendation of the Youth Authority (YA) that a minor defendant be committed to a YA facility rather than to state prison. Section 707.2 requires that before sentencing a minor defendant to state prison, the court must (1) remand the minor to YA for an evaluation and report concerning his amenability to training and treatment offered by the YA, [210 Cal.Rptr. 478] (2) read and consider the YA report, and (3) find that the minor is not suitable for commitment to the YA. Justice Richardson's opinion in Carl B. acknowledges that, like section 1170, subdivision (f), section 707.2 of the Welfare and Institutions Code does not require the sentencing court to follow the YA recommendation and that the court may reject it completely. (Id., at p. 217, 155 Cal.Rptr. 189, 594 P.2d 14; see also, People v. Taylor (1978) 81 Cal.App.3d 973, 976, 146 Cal.Rptr. 821.) However, on the ground that "the trial court's sentencing discretion under section 707.2 is not absolute but is circumscribed by the purposes which underlie that section" (People v. Carl B., supra, 24 Cal.3d at p. 218, 155 Cal.Rptr. 189, 594 P.2d 14), the court concluded "that YA's recommendation is entitled to great weight, [and] that ordinarily it should be followed in the absence of substantial countervailing considerations...." (Id., at pp. 214-215, 155 Cal.Rptr. 189, 594 P.2d 14, italics added.)
There are of course certain significant differences between YA evaluation of a convicted minor pursuant to Welfare and Institutions Code section 707.2 and sentence review by the Board under section 1170, subdivision (f). The YA, which administers a rehabilitative penal system (Welf.s&sInst.Code, § 1700) in which juveniles are indeterminately sentenced, confines its analysis to the amenability of a particular minor to treatment and rehabilitation; whereas the Board, which is involved in the administration of a punitive penal system (Pen.Code, § 1170, subd. (a)) with determinate sentences, analyzes the relatively objective relationship of sentences rather than focusing upon the subjective qualities of particular convicts. But notwithstanding these distinctions, which flow from the different purposes of the juvenile and adult penological systems, it cannot be said that a sentence evaluation by the YA is more reliable and for that reason entitled to more respect than such an evaluation by the board. Indeed, if there is any qualitative difference between the sentence evaluations of these two administrative agencies it is almost certain that the Board is more accurate and more reliable than the YA due to the less subjective nature of its evaluation. Moreover, as later explained, the impersonal nature of the evaluation undertaken by the Board is a strength, not a weakness, given the purpose of determinate sentencing, and provides no reason to accord any less judicial respect to a sentencing recommendation of the Board than under Carl B. is required to be accorded a recommendation of the YA.
Nor can it be said that the purposes which underlie section 707.2 of the Welfare and Institutions Code, which are the gravamen of decision in Carl B., are more vital to the indeterminate sentencing of juveniles than those of section 1170, subdivision (f), are to the determinate sentencing of adults. The purpose of the latter statute is to advance the policy of uniformity in sentencing by compelling a trial court to re-evaluate an apparently disparate sentence in light of information not available at the time it was imposed. The Legislature would not likely have mandated this exercise unless it contemplated that if the new information demonstrated that the original sentence was inordinately more severe than those of other offenders committing the same offense under similar circumstances the court would ordinarily recall that sentence and impose another that is more reasonably consistent with the observed sentencing pattern of other judges. It is clear that the language of the statute reserves the ultimate decision whether to recall and resentence to the court, not the Board. But it seems equally clear that if such judicial decisions are to be consistent with the strong policy of promoting uniformity that is manifest throughout the new sentencing law, and if the residual advantages of greater certainty, predictability and objectivity in criminal sentencing are to be realized, meaningful limitations on judicial discretion to individualize sentencing are essential. This does not mean that judicial discretion to vary a sentence can never be justified; rather it means that variations in sentencing are justifiable in the context of disparate sentence review only to the extent [210 Cal.Rptr. 479] that they "are made to turn upon objective, and objectively ascertainable, criteria--impersonal in the sense of the maxim that the law 'is no respector of persons'--and, above all, not left for determination in the wide-open, uncharted, standardless discretion of the judge administering 'individualized' justice. The law's detachment is thought to be one of our triumphs. There is dignity and security in the assurance that each of us--plain or beautiful, rich or poor, black, white, tall, curly, whatever--is promised treatment as a bland, fungible 'equal' before the law." (Frankel, Criminal Sentences: Law Without Order, supra, p. 11.) The purpose of section 1170, subdivision (f), is, in short, as important to the determinate sentencing of adults as that of Welfare and Institutions Code section 707.2 is to the indeterminate sentencing of juveniles. Therefore, a Board finding under the former statute deserves at least the same force as a constraint upon the discretion of a trial court as, under People v. Carl B., supra, is required to be accorded one submitted by the YA pursuant to the latter.
By declaring, rather remarkably, that Carl B. "is nothing more than a substantial evidence case" (maj. op. at p. 473), the majority herein attempt to limit the significance of that case to its own facts. With due respect to my colleagues, Carl B. is not important because of the court's assessment of the facts of that case, but rather because it announces a legal standard for measuring the facts in all cases that arise under the statute which the court was there construing. The important conclusion in Carl B.--a conclusion of law, not one of fact--is that a YA recommendation "should be followed in the absence of substantial countervailing considerations." (People v. Carl B., supra, 24 Cal.3d at pp. 214-215, 155 Cal.Rptr. 189, 594 P.2d 14.) This legal conclusion was the result of an examination of the purposes of the statute. As stated in Carl B., "the trial court's sentencing discretion under section 707.2 is not absolute but is circumscribed by the purposes which underlie that section." (Id., at p. 218, 155 Cal.Rptr. 189, 594 P.2d 14, italics added.)
My point, which my colleagues do not genuinely address, is precisely the same: a trial court's sentencing discretion under section 1170, subdivision (f), is circumscribed by the purposes, earlier described, which underlie that section considered in light of the entire Act in which the section appears. A Board motion to recall a sentence pursuant to that statute, which is analogous to a YA recommendation pursuant to Welfare and Institutions Code section 707.2, is therefore entitled to equal judicial deference; that is, it should ordinarily be granted "in the absence of substantial countervailing considerations," or, as the proposition may alternatively be stated, the motion should be granted in the absence of any specification of unusual circumstances of a substantial nature which mandate an unusual sentence.
The sort of circumstances that ought to be required to justify denial of a Board motion should be such as can be verified by evidence set forth in the trial record which are amenable to comparison with ascertainable circumstances of similar cases; 4 such as, for example, the sort of aggravating circumstances set forth in rule 421 of the California Rules of Court. 5
[210 Cal.Rptr. 480]Herrera should also be repudiated due to the indication therein that a sentence which concededly does not conform to an "observed sentencing pattern" properly relied on by the Board may nonetheless be permitted to stand if the trial judge "question[s] the underlying rationale of the sentencing pattern practiced by the majority of his [or her] colleagues." (Herrera, supra, 127 Cal.App.3d at p. 602, 179 Cal.Rptr. 694.) This most unfortunate statement represents appellate authorization (if not invitation) to disregard the legislative mandate to enhance uniformity in sentencing where the submission to that mandate would offend the personal predilection of the sentencing judge. The unjustified and unjustifiable creation of such a loophole--and that is exactly what Herrera has accomplished--is not within the proper function of an appellate court; which is to facilitate enforcement, not evasion, of a constitutionally valid legislative prescription.
Regrettably, permitting a sentencing judge to "question," and thereby to ignore, the sentencing pattern practiced by most other judges is not the only fashion in which Herrera facilitates judicial evasion of the mandate of the Determinate Sentencing Act. Under Herrera, a trial judge who disagrees with a Board determination that a particular sentence is disparate "is not required to make findings as to why he disagrees...." (Herrera, supra, 127 Cal.App.3d at p. 601, 179 Cal.Rptr. 694.) Relieving the sentencing judge of the need to make findings or at least to orally state reasons for rejecting a Board motion to recall a sentence--which, given the dearth of such motions, certainly would not burden sentencing courts--is unwarranted. A statement of reasons is not only essential to meaningful appellate review (see In re Sturm (1974) 11 Cal.3d 258, 267, 113 Cal.Rptr. 361, 521 P.2d 97), but to the appearance of judicial propriety. As stated in a decision binding all federal trial courts in California, "[w]hen there is substantial disparity in sentences imposed upon different individuals for engaging in the same criminal activity, the preservation of the appearance of judicial integrity and impartiality requires that the sentencing judge record an explanation." (United States v. Capriola (9th Cir.1976) 537 F.2d 319, 321.) As Judge Bazelon has pointed out in connection with criminal sentencing in the federal courts, such an explanation would serve yet another important purpose: "In this manner, society's actual values concerning criminal behavior will become explicit, and the criminal process will be able to reassume its moral and educational function." (Bazelon, Missed Opportunities in Sentencing Reform (1978) 7 Hofstra L.Rev. 57, 64; see also, Warners&sCabot, Judges and Law Reform (vol. IV of the Harvard Law School Survey of Crime in Boston) (1936) at p. 168.)
This court has the inherent power to and should require a specification of reasons [210 Cal.Rptr. 481] for the denial of a motion to recall a sentence as a judicially declared rule of criminal procedure. " 'The ... power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function.' (Witkin, Cal.Procedure (2d ed.) Courts, § 123, p. 392.) This right is codified in Code of Civil Procedure section 187 which provides that when jurisdiction is conferred by the Constitution or by statute '... all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' (See also, Code Civ.Proc., § 128, subd. 8.) As the Supreme Court said in People v. Jordan [1884], 65 Cal. 644 at page 646 [4 P. 683], '[i]n the absence of any rules of practice enacted by the legislative authority, it is competent for the courts of this State to establish an entire Code of procedure in civil cases, and an entire system of procedure in criminal cases, ...' " (See also Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 813 [31 Cal.Rptr. 316, 382 P.2d 356], recognizing the inherent power of courts to adopt " 'any suitable method of practice ... if the procedure is not specified by statute or by rules adopted by the Judicial Council.' ") (James H. v. Superior Court (1978) 77 Cal.App.3d 169, 175, 143 Cal.Rptr. 398; see also, People v. Rhodes (1974) 12 Cal.3d 180, 186, 115 Cal.Rptr. 235, 524 P.2d 363; People v. Vickers (1972) 8 Cal.3d 451, 461, 105 Cal.Rptr. 305, 503 P.2d 1313; People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905.)
In short, the appellate courts of this state need not plaintively "urge trial courts to make findings and give reasons when determining whether a sentence is or is not disparate" (People v. Mitchell (1984) 152 Cal.App.3d 433, 438, 199 Cal.Rptr. 507); we should require such findings and reasons because they are essential to the proper functioning of the justice system.
II
The facts of the instant case do not present the unusual circumstances necessary to justify the unusual sentence that was imposed.
Preliminarily, there is no question that the instant sentence deviates significantly from those normally imposed in similar cases involving the same offense. This is best illustrated by describing the four-step review process that led to the Board determination of disparity, which is more elaborate and rigorous than the three-step process employed by the Board to reach the same determination in Herrera. (See Herrera, supra, 127 Cal.App.3d at pp. 597-598, 179 Cal.Rptr. 694.) First, the Board utilized an automated computer screening procedure that sorts cases according to the principal offense, identifies the range of possible sentences for a particular offense group, and, most importantly, computes the relative likelihood that each of the possible sentences will occur. The relative likelihood of a sentence is calculated on the basis of observed sentencing practices (i.e., past sentences actually imposed by judges) in all determinate sentencing law cases prior to imposition of the sentence in question. This is accomplished by a computer simulation technique that produces 10,000 theoretical sentencings for the pertinent offense group; many of which are, of course, identical. If the distribution shows that fewer than 10.5 percent of these repeated simulated sentencings would have resulted in a sentence as high as or higher than the actual sentence imposed in the case under review, that sentence is identified as "variant" and then becomes the subject of much closer scrutiny by the Board's Sentence Review Unit.
This unit reviews the charging document, the abstract of judgment, the probation officer's report, the convict's "rap sheet" and the transcript of the sentencing hearing. If after this second review the variant nature of the sentence remains unexplained, the case is referred to a Case Analysis Committee for comparison with a subgroup [210 Cal.Rptr. 482] of other cases that are factually most similar to that under review. If after this close comparison the Committee finds no justification for the variant sentence, it declares the sentence disparate and refers the matter to a panel of the Board itself. If after further reviewing of the case this panel concurs with the Committee's finding of disparity, a motion for recall and resentencing is filed with the sentencing court.
As applied in the instant case, the computer simulation technique employed in the first of the four stages of the review process just described indicated a zero percent likelihood that one convicted of the same offenses of which appellant was convicted would receive a sentence as high or higher than the one he actually received. If the legal error in the sentence was eliminated, as it was, by reducing the sentence by one year, the likelihood of a sentence as high or higher than the resulting sentence would be ten percent, which is still within the Board's definition of disparity.
After appellant's sentence was thus initially identified as "variant," the Sentence Review Unit examined the records in his case in detail and was unable to find any unusual factors believed to justify the severe sentence imposed. The case was then transferred to the Case Analysis Committee, which compared appellant's sentence with a subgroup consisting of 29 other cases most factually similar to appellant's case. 6 As a result of this comparison, the Committee was compelled to conclude that the sentence appellant received was indeed unjustifiably disparate. After a panel of the Board independently reviewed the facts and the comparison just briefly described, it concurred in the Committee's conclusion and commenced recall proceedings.
The source of the disparity identified by the Board was that not only did appellant receive the upper term for the principal offense but all six of the possible consecutive counts were imposed consecutively. The Board was able to identify only two other cases in which this was done.
Appellant's sentence appeared unjustified to the Board for several reasons. It drew this conclusion, first, because none of the aggravating factors that normally warrant such a sentence were present. The Board noted, for example, that appellant's victims were not particularly vulnerable (Cal.Rules of Court, rule 421, subd. (a)(3) and that his crimes did not involve an attempted or actual taking or damage of great monetary value. (Cal.Rules of Court, rule 421, subd. (a)(10).) The Board was additionally influenced by the fact that all of the defendants in the closely comparable robbery cases, many of whom had more victims and were convicted of the same or a greater number of subordinate counts than appellant, had fewer counts sentenced consecutively.
As the Board pointed out to the court below, the average sentence in the cases with which appellant's was initially compared, which was also the median sentence, was 92 months. Appellant's original sentence of 144 months was 52 months longer, and his corrected sentence of 132 months is 40 months or more than three years longer. For the subgroup of 29 cases most closely comparable to appellant's case the average sentence was 77 months and the most likely sentence was either 48 or 60 months. The differences between these sentences and appellant's sentence are also substantial, particularly in view of the fact, which the Board emphasized, that many of the cases in this subgroup involved aggravating factors not present in appellant's case.
Although it is not clear from the record, the Board's resentencing recommendation appears to have been rejected by the trial court for the principal reason that it failed to take sufficient account of certain "personal aspects" of appellant's case, specifically his "personality, his particular conduct, his attitude, [and] his demeanor during [210 Cal.Rptr. 483] ... the time that the offenses were committed." 7
The test the trial court deemed the Board to have failed is one it can never meet. For what the court most genuinely seems to have required of the Board is an "objective" analysis of his own (subjective) perception of various ill-defined factors he (again subjectively) deemed pertinent to the sentencing in question, and presumably, a comparison with the similar assessments of other judges reflected in the "observed sentencing pattern." Such an administrative enterprise would not only be quixotic, as a practical matter, but conceptually at war with the tempering of individualized sentencing that the determinative sentencing law seeks to achieve. The attempt to differentiate a sentence based on the offender's "personality," "attitude," "demeanor" or unspecified "conduct" that cannot be identified in the record should fail under our determinate sentencing scheme because such distinctions cannot be justified "by relevant tests capable of formulation and application with sufficient objectivity to ensure that the results will be more than the idiosyncratic ukases of particular officials, judges or others." (Frankel, Criminal Sentencing: Law Without Order, supra, at p. 11.)
I am not blind to the reality that subjective elements will inevitably exert some influence on the original choice of sentence; and I recognize that there must be room for this to occur within reasonable limits. Thus, for example, the determination whether there are circumstances in aggravation or mitigation pursuant to section 1170, subdivision (b), often calls for the exercise of some subjective judgment. But the stage in the sentencing process at which the effect of subjective considerations should be materially diminished is reached when a sentence has been determined to be disparate by an administrative and impartial arm of state government. If at that point a trial judge could reject a finding of disparity on the basis of factors that cannot be measured and compared, or because he or she disagrees with the sentences practices of other judges, the disparate review process is reduced to a charade.
For empirical analyses of implementation of the Uniform Determinate Sentence Law in three California counties (San Francisco, Santa Clara and San Bernardino), which reveal different sentencing approaches, see Casper, Breretons&sNeal, The California Determinate Sentence Law (Sept.-Oct. 1983) Crim.L.Bull. 405, and Breretons&sCasper, Does it Pay to Plead Guilty? Differential Sentencing and the Functioning of Criminal Courts (1981-1982) 16 Laws&s Soc'y.Rev. 45.)
The majority legitimates the charade that clearly occurred in this case by misapprehending what actually occurred. Thus, the majority states that "the lower court's perception that the underlying offenses for which appellant was sentenced were more serious than the crimes underlying the other sentences to which his sentence was compared, could very well be accurate. Accordingly, the court could reasonably find that appellant's sentence was not disparate." (Maj. opn. at p. 473.)
[210 Cal.Rptr. 484]The factors that the Board considered in its evaluation of appellant's sentence and presented to the trial court, which given the limits of human cognition I acknowledge may include some subjective elements, and which I further recognize do not exhaust all factors the Board might properly consider, nonetheless provide a sufficient basis for a relatively objective and accurate administrative determination of disparity within the meaning of the statute. The Board's failure to fully plumb the ultimately unfathomable depths of appellant's persona provide no legal or sensible reason to reject its determination of disparity.
The decision of the court below to reject the Board's resentencing recommendation seems to have been based not only on the ground that the Board did not adequately consider the subjective factors just discussed but as well because the recommended sentence was itself disparate. The court felt, in other words, that the "wide variance" between the five and ten year terms that the Board posited as the lower and upper limits of an acceptable range within which to resentence appellant was itself so broad as to render meaningless any assertion that the original sentence was disparate. This judgment was improper.
On this point the court stated:
The recognition by the Board that there exists a fairly broad range within which a sentence will not administratively be determined to be disparate relates not to the validity of the finding of disparity, which is based on the specific criteria previously described, but rather to the scope of the available remedies. The Board's concession, in effect, that the trial court retains considerable discretion to fashion an acceptable sentence seems to me a peculiar and entirely inappropriate basis upon which to question the validity of the finding of disparity.
For the foregoing reasons, I would reverse the judgment and remand the matter to the trial court for reconsideration of the Board's motion in a manner consistent with the purpose of the Uniform Determinate Sentence Act. In doing so, I would expressly reverse our earlier decision in People v. Herrera, supra, 127 Cal.App.3d 590, 179 Cal.Rptr. 694.
"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.
"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."
"THE COURT: All right. The other question I wanted to ask you has to do with the table that is a part of exhibit J. While the table includes a great many factors, in your opinion, do you think that the table is sufficiently comprehensive to take into account the defendant's personality, his particular conduct, his attitude, his demeanor during the time of the offenses were committed? In other words, there is [sic] a personal aspect of every crime.
"[Counsel for the Board]: Right.
"THE COURT: And there's a difference between the person who stands at this distance between the two of us, and says, pointing a weapon, 'Leave your wallet on the table and get out of the room,' as opposed to the person who sticks a knife at somebody's throat and says, 'Give me your wallet or I'll kill you.' Those are obviously two different kinds of conduct. I am troubled at that I don't really find that feeling coming from the table that is a part of exhibit J. And I have overlooked it, maybe you can assist me in that.
"[Counsel for the Board]: Well, your Honor, the table picks up certain objective facts, and can't pick up those kinds of things. When we go back and reread the case file and look at what the probation officer had said regarding the situation of those offenses, at that point we bring in that subjective element. But you are correct, when you're attempting to collect information to make some comparison, you can't always pick up those kinds of distinctions. It is not that somebody doesn't read those reports and sees those distinctions, it's just that they are difficult to quantify, and you are correct, that this table does not show that. But the Board certainly did consider that, because we did review the entire case file before a decision was rendered."
"THE COURT: All right. The other question that I wanted to ask you has to do with the table that is a part of your exhibit J. While the table includes a great many factors, in your opinion, do you think that the table is sufficiently comprehensive to take into account the defendant's personality, his particular conduct, his attitude, his demeanor during the time of the offenses during the time that the offenses were committed? In other words, there is a personal aspect of every crime.
"[Counsel for the Board]: Right.
"THE COURT" And there's a difference between the person who stands at this distance between the two of us, and says, pointing a weapon, 'Leave your wallet on the table and get out of the room,' as opposed to the person who sticks a knife at somebody's throat and says, 'Give me your wallet or I'll kill you.' Those are obviously two different kinds of conduct. I am troubled at that I don't really find that feeling coming from the table that is a part of exhibit J. And I have overlooked it, maybe you can assist me in that.
"[Counsel for the Board]: Well, your Honor, the table picks up certain objective facts, and can't pick up those kinds of things. When we go back and reread the case file and look at what the probation officer had said regarding the situation of those offenses, at that point we bring in that subjective element. But you are correct, when you are attempting to collect information to make some comparison, you can't always pick up those kinds of distinctions. It is not that somebody doesn't read those reports and sees those distinctions, it's just that they are difficult to quantify, and you are correct, that this table does not show that. But the Board certainly did consider that, because we did review the entire case file before a decision was rendered."
This statement does not by any stretch of the imagination describe what happened in this case. The only "perception" of the lower court that explains its action does not relate to appellant's crimes (which, in any event, were not more serious than the crimes of other prisoners with which it was compared) but to appellant's "personality," "attitude," "demeanor," and "conduct" which the trial judge never identified. The trial court obviously did not compare these qualities with those of the defendants in the comparable cases because, very understandably, no such evidence was ever obtained by the Board or presented to the court.
"THE COURT: The other thing that I wanted to ask you about, and that has to do with the point that Mr. Williams has mentioned, is that the Board recommended a resentence to a term between 60 and 120 months, between five and ten years. It seems to me that if the intent of the Board is to obtain a certain amount of consistency in sentencing, and a certain amount of fairness and equity in sentencing, that to suggest that it falls within a range of five to ten years is sort of defeating the purpose of what the Board's intentions are. That is the way it strikes me. It's such a wide variance. If I were to have selected then years, according to the Board of Prison Terms, I would have been within the ballpark range. On the other hand, if I had selected five, I still would have been within the ballpark range. It seems to me that that disparity in what the Board recommends doesn't really make the argument very persuasive, that this sentence that I have imposed is now disparate. There is such a wide range, how can you say that two additional years make it then disparate."