*1 Aug. No. 24474. [Crim. 1986.] PEOPLE,
THE Plaintiff Respondent, MARTIN,
DARYLE KEITH Defendant and Appellant.
Cоunsel Court, Supreme William J. under appointment Kopeny, Andreasen, the Court of Appeal, H. under Eugene appointment Defendant and Appellant. Defender, Powell, Bell, Jr., Joan Therene Cavanagh O. State Public
Frank Defenders, as Amici Lennon, Curiae on State Public and Richard Deputy of Defendant and behalf Appellant. General, Robert Attorneys K. Deukmejian, Van de and George
John Kamp General, Stein, Philibosian, William D. Attorney H. Chief Assistant Granucci, Kaster, W. General, R. Eugene Robert Attorney Assistant Sullivan, General, for Attorneys Jorstad and Laurence K. Deputy Kristofer and Respondent. Plaintiff
Opinion to be the standards and
BROUSSARD, J. procedures concerns This Terms it that of Prison notifies when Board the trial court followed in other to the sentences imposed compared when its sentence cases. 19, 1979,
On defendant was fоund of five September counts guilty The robbery. also found that defendant had used knife in two of the jury robberies. Before defendant was rearrested and with sentencing, charged two additional counts of with a firearm enhancement for each robbery robbery. Defendant to the additional and admitted the pled guilty charges, enhancements. matters were consolidated for on February 1980. The
trial court sentenced defendant to twelve years imprisonment: upper term of five years for the enhancement for the principal robbery, one-year use Code, knife in that (Pen. § robbery (b)),1 subd. and six consecutive (one-third terms of one term) year middle the re- six maining robberies. Defendant did not appeal.
Section (f) subdivision of the determinate sentence law requires Board Prison Terms to review sentence “to determine whether every the sentence is with the disparate in sentences in similar comparison General, cases.”2 There is no definition statutory disparity. Attorney statutory 1All citations are to the Penal Code. *5 1170, (f), “(f)(1) currently 2Section year subdivision reads as follows: Within one after the commencement of imprisonment, the term the Board of Prison Terms shall review of the to sentence determine comparison whether the sentence is with the sentences imposed in similar cases. the If Board of Prison Terms determines that the sentence is disparate, notify the board judge, attorney, attorney, shall district the defense the the the defendant, and the Judicial include a statement of the Council. notification shall reasons finding disparate. sentence information, days sentencing “Within 120 of receipt of court shall schedule a this hearing may and recall the sentence and and resentence previously commitment ordered defendant in the same manner as if previously, provided the defendant had not been sentenced greater the new sentence is no than resentencing the initial sentence. In under this subdivision apply the court shall sentencing of rules the Judicial Council and shall consider the provided by information the Board of Prison Terms. “(2) The review under deny probation this section shall concern and the decision to sentencing (2), (3), (4), (5) (a) decisions paragraphs enumerated in and of subdivision of apply Section 1170.3 and sentencing rules of the Judicial Council and the information regarding the sentences in persons this state of other convicted of similar crimes so as to disparity eliminate of to promote uniformity sentences and sentencing.” 11,1981, On December hearing the date of the on the board’s recommendation to reconsider sentence, 1170, (f) defendant’s a shorter version of section subdivision was in effect. It shall,
provided that
all cases the Board of Prison Terms
later than
year
“[i]n
not
one
after
commencement of
imprisonment,
the term of
review the sentence and shall motion
recommend
court recall the
and
previously
commitment
ordered and
resentence the
defendant
the same manner as if
had not
previously
he
been
sentenced if
the board determines
disparate.
the sentence is
The review under this section shall concern
deny probation
decision to
sеntencing
(b),
and the
decisions enumerated in subdivisions
(c), (d),
(e)
sentencing
and
apply
Section 1170.3 and
rules of the Judicial Council
regarding
and the information
in this
persons
the sentences
state
other
convicted of similar
so
promote uniformity
crimes
as to
sentences and
eliminate
of sentencing.”
(Stats. 1980,
1117, 7,
3597.)
§
ch.
p.
We
no
appeal.
see
difference between the two versions material to this
is a
however,
if “there
advised the
that a sentence
has
board
im
and the sentences
difference between the
subject
substantial
similar cir
offenders
the same offense under
committing
on other
posed
143,
(60
(1977).)
Review is
cumstances.”
Ops.Cal.Atty.Gen.
(1982)
uncover
error in
v. Herrera
legal
(People
designed
sentencing
590,
694]),
board may
although
127 Cal.App.3d
Cal.Rptr.
[179
court, but instead to
error to the attention of the trial
promote
call such
exercise of
discretion.
in the
uniformity
sentencing
case,
Kline,
in the Court of
in the
dissenting
Appeal
present
Justice
background
section 1170.
fully
purpose
more
described
law,”
said,
he
“a
definitive
rather
expresses
determinate
“[T]he
to the
disparities
effort to diminish inequitable
punishment
legislative
Behind,
Salerno, The
(See Parnas &
Substance
extent practicable.
Influence
Law in
Sentencing
the New Determinate
Impact
California
29, 39.)
was motivated in
by judicial
Davis L.Rev.
This effort
part
U.C.
of the Indeterminate Sentence Law
administration
disapproving
decisions
(see,
re
result bоth in terms of who there were wide system] sentencing disparities tencing (Determinate similar offenses.’ stay their prison lengths went to Cal. Study, Rep. Legis., Law Sentence Comparisons Indeterminate II-1; Little, 1980) Rules, see also (May p. Inc. Arthur D. Com. Joint Crime, 153.) (1969) 381 Annals Crowther, Legislatures Penalties and consensus national was developing evidence punctuated This like individuals com upon disparities punishment imposed significant *6 the very endangering integrity offenses was evil like pernicious mitting Stover, in (See, Hoffman & justice e.g., criminal system. of Reform and Parole Determinacy Terms: Equity, Prison Determination of Hirsch, 89; Doing von Justice: (1978) 7 Hofstra L.Rev. Function Release A of Study Partial Justice: Bias (1976); Gaylin, of Punishments Choice The and Criminal Sen Attributes (1974); Extra-Legal Sentencing Hagan, in (1974) & 8 Law Soc’y. Sociological Viewpoint Assessment An tencing: of (1973); Without Order Pres 357; Frankel, Sentences: Law Criminal Rev. Justice, of Administration and the on Law Enforcement Commission ident’s (6th v. United States (1967); Shepard The Courts Report: Force Task Stewart, J.).) Potter F.2d 1958) (opn. Cir. chief for sen- explanation revealed studies empirical
“Numerous but the differences in defendants the differences was tencing Con- Rubin, Sentences—A Disparity Equality (See, e.g., judges. Holtzoff, 55, 58; & McGuire 40 F.R.D. (1967) Challenge stitutional (1940) 423; Problem Law Sentence Criminal 20 B.U.L. Rev. Glueck, 127; al., Crime and Justice Gaudet et Individual p. Differ- Sentencing ences in the Tendencies 23 J.Crim. Judges L. C. & P. 811; Everson, S. (1919-20) The Human Justice 10 J. Element in Crim. 90.) L. Thus the movement to . . . promote uniformity was (See, in no small a movement to diminish discretion. part judicial e.g., Justice, Of Countdown Judicial Prisons and Sen. Sentencing Doc. Sess., (1964).)” No. 88th 2d Cong., 331-332 pp. out its mission to Carrying statutory promote uniformity in sentencing, the board undertаkes a statistical discretionary sentences imposed under the Determinate Act. The board’s Sentencing methodology is de- scribed in the introduction to its Report Sentencing Practices—Deter- (hereafter minate Law Sentencing issued Report), February 1985.3 The 75,000 cases, board has data on over case, acquired including, each criminal his social prisoner’s history, background, circumstances of each offense, and the case, actual sentence. itWhen receives a new the board conducts a (an preliminary screening Review) Automated Sentence to de- termine the sentences and range the relative possible likelihood of each. 10,000 A simulation computerized generates theoretical sentences for the cases. The then determines the computer of simulated percentage sentences which are than the actual sentence equal higher imposed, provides a statistical measure of the difference between sentence and expected the actual threshold, sentence. If both criteria an exceed established case is identified as one further requiring analysis.
In the secondary screening the board’s staff obtains a list cases process, comparable case. The subject staff examines the file in the subject case and each determine if there are facts which comparable none, justify a sentence. If the staff finds statistically disproportionate refers the matter to a of two board and a hearing members panel represen- tаtive. reexamines subject cases and cases. If it panel comparable sentence, also finds justification no it directs the disproportionate that, board’s counsel to the court in its opinion, sentence is notify disparate.
In the the board first determined that the trial court matter erred present for the terms subordinate six consecutive offenses. imposing one-year 754, (1979) Harvey on 25 Cal.3d 761 Relying People [159 Cal.Rptr. 696, (1980) 374, 602 v. Childs 112 People P.2d 388- 396] 183], decided that section 389 the board 1170.1 Cal.Rptr. prohibited whether procedure disproportionately high 3The board follows the same the sentence is low, only authority disparately high but the trial correct court has sentences. of five De- years. for subordinate excess consecutive sentences terms sentence, concluded, from year the board should be reduced fendant’s to 11 years.4 years sentence would 11-year The board then set out to determine whether an The claimed sentence arose from the defendant’s disparate. offense, but that he not received the term for the only upper principal fact A consecutively. all of the subordinate terms were that possible simulation indicated a small that a sentence as only probability computer crimes as of the and enhance- someone convicted same years severe would be This identified defendant’s sentence imposed. computation ments further as one requiring study. Unit then examined the Review record defendant’s Sentencing but was unable to discover unusual factors any
case in detail justifying sentence. Thе Case Committee defendant’s sen- Analysis compared severe similar cases. Each these cases had the tence with 29 other factually (2) (1) the offense was principal robbery, common factors: following offense, (3) the time of the earliest was not under at defendant supervision (4) he no had adult history, prior no criminal convic- juvenile he had prior tions, (6) there were three or more was unstayed no victim injured, defendants, six received the twenty-nine only counts. Of the subordinate terms, and two received only two or more consecutive term plus upper terms. The average number of consecutive maximum possible months, sentence either likely and the most 48 or 60 was 77 the subgroup months; of 132 months was defendant’s corrected sentence substantially was in that defendant’s sentenсe concluded fact The committee longer. reviewed board comparison, A panel independently disparate. in that conclusion. and concurred 20, 1981, for resentencing board filed a motion pursuant
On August that 1170, (f). The motion asserted not defend- only to section subdivision in error also that it was because legally was but ant’s sentence disparate, subordinate terms to total 1170.1, limited as then interpreted, section noted, however, 4, (See ante.) fn. The board corrected five years. and recommended would still be disparate, resentencing term of 11 years 5 and 10 years. to a term between People v. Hernandez 30 Cal.3d 466-468 P.2d 4In terms, Harvey limit subordinate apply did not
706], the rationale of we held that Hernandez, 6.) (P. original defendant’s Childs. fn. Thus under disapproved expressly proceeding of the board trial At the time court was lawful. 12-year sentence however, five-year authority indicated that the limit controlling hearing, resentencing accordingly The trial court sentence. reduction in defendant’s required a terms consecutive challenge do not years. terms to five consecutive subordinate reduced ruling. *8 motion, At on the board’s argument board’s judge questioned He was the failure of concerned with the board’s methodology. particularly statistical to take into account certain factors such as analysis subjective conduct, attitude, defendant’s his his his demeanor “personality, particular the time difference, of the offenses.” during There is a said, the court a between robber who stands at a from distance the victim throat, a a points and onе who knife to the victim’s weapon puts the board’s statistical did not to take account of such diff appear erences.5
Counsel for the board that the statistical tables explained depend objective, quantifiable matters and thus cannot include subjective factors. recommendation, however, Before making its the board also reviews the other, record probation report, looking nonquantifiable factors which an severe might justify sentence. Thus the especially board does subjective, consider facts to the extent that those personal factors in the record appear case. motion, on the
Following hearing board’s the trial issued his judge order the motion insofar it granting asserted only error. Defendant’s legal sentence was reduced to 11 one of years by the subordinate making terms run with the concurrently term. principal
Defendant appealed, trial court contending abused its discretion not him to by resentencing a term within the range recommended board. The Court affirmed the sentence. We Appeal granted hearing to consider the to be steps followed trial court when it is notified that the board considers its sentence disparate the need for statement the reasons for the court’s decision. Herrera,
We endorse the framework established by People the first case to construe section appellate (f). subdivision Under that framework trial must courts undertake a two- “First, step analysis. must [they] determine whether the sentence imposed Second, (P. 601.) was indeed disparate.” if find they the sentence disparate, must (Ibid.) courts then decide whether to recall the sentence. was, judge 5The also said that board’s recommended opinion, his itself concern, however, range since it years. suggests involved a of five ten This judge did not as concept understand used the board. A sentence is range ordinarily if it falls outside the of sentences crimes of that case, In present range character. found the board the normal of sentences was between years. five and ten Thus a range disparate; sentence within that one of 11 or be. years would *9 court the board has knowing already The trial its begins analysis board, that the in found the sentence The court recognizes per- disparate. law, has ex- duties under the determinate sentencing acquired its forming of in the review sentences. It comparative tensive expertise experience data, methods of and devised analysis, has established statistical gathered it those had reviewed and techniques, simulations. computer Employing hand, 75,000 the other judge, over sentences. The trial on may compared in review of sentences. His un- have little or no experience comparative be frag- of simulations computer may statistical methods derstanding of limited those largely imposed His sentences mentary. knowledge may concluded, Herrera himself and other in his court. by Accordingly, judges of is is entitled to the determination the board that 600-601.) We with this con- (127 “great weight.” agree clusion. meant, is one what is each defining step analysis, problem determination. Herrera stated to the board’s according weight”
by “great according its Board’s obligation that “a trial court will have met first of the ... if finding weight’ part disparity ‘great the information provided record shows that the court considered seriously whether, Board, when to sentences to discern by compared attempted . his . . was ‘disparate.’” he imposed imposed by colleagues, (P. 601.) second difficulty describing The court greater confessed “[ejven though judge may agree of the but said that part analysis, to the ‘observed the sentence he not conform does imposed he (and may question relied disparate), on the Board therefore by pattern’ by majority rationale of the underlying sentencing pattern practiced (P. 602.) colleagues.” his conclude, however, does not fully Herrera formulation We that the court must not court. That only state the of the trial obligation accurately board; must weight it give consider seriously by provided information fact that the implies of the board. “To finding weight” to th& give board, will itself exert a finding its made judgment, expert that which beyond influence simply influence the court’s decision—an an Moreover, in the second from the information furnished the board. flows court to of the question not the function analysis, step an permit judge other Such inquiry judges. sentences view of his personal as an expression sentences to impose disparate of uni- statutory goal defeat the a result which would sentencing policy, formity. board’s to be given finding of the weight a better exposition
We think
Kline,
decision
our
drawing upon
advanced
Justice
is that
*10
189,
(1979)
14],
Carl B.
In the second stage, again give trial court must great weight board’s it finding disparity, finding first upheld of the stage analysis. That does not finding automatically require B., it to recall its sentence.7 Under v. People Carl reasoning supra, 580, 585, 6Compare People (1985) Shepeard v. 5 Cal.Rptr. foоtnote [215 401], where the board may failing have to consider defendant’s use of a erred firearm selecting when comparison group. suggests disparate 7Defendant that imposition of a sentence constitute cruel or Constitution, punishment citing unusual in violation of the California in In re Lynch Lynch analysis Cal.Rptr. Cal.3d 503 P.2d described 921]. techniques determining disproportionate punishment; imposed whether statute does determining disproportionate not describe a a particular method for whether sentence is when Although compared subsequent the same cases to other sentences under statute. Lynch disproportionate have held the abstract is punishment that a which is not nevertheless constitutionally impermissible culpability to the defendant’s individual disproportionate if 697]), (Peоple v. 668 P.2d Dillon 34 Cal.3d defendant disproportionate culpability. does to his individual 11-year not claim that an sentence agree protect We sentence review serves to with defendant constitutional values, unconstitutional, might and that in an extreme either question, equal as “unusual” or as a denial punishment protection for the offense in his case attempted the laws. Defendant to show reaches that has not level, appears underpinnings statutory but the constitutional his content to make us aware of argument. A., 811, however, 38 Cal.3d Javier 212 and 24 Cal.3d does the court to recall its to the weight finding require great giving which evidence of considerations countervailing there substantial unless subjective considerations can include sentence. Such a disparate justify attitude mentioned the trial court—such as defendant’s like those factors crime, and the manner he threatened in which at time demeanor victim.8 *11 “consider’’ the of trial to merely finding disparity, the judge Requiring at no all to that weight finding. judge gives the dissent proposes, as reason, or no the reason at finding remain free to disregard any would would not which the dissent his findings, again require, And without all. would not be to effective subject appellate scrutiny. decision discretion, unlimited of and unreviewable some a regime essentially Under others, but in still revise sentences to avoid disparity factually judges sentences, cases, do so: dis- disparate would decline to indistinguishable the to be board’s sought promoted reconsidered. The uniformity parately such individual would be defeated by divergence. sentence reviеw statewide the board’s rejected finding disparity, In the court present sentence was That justified. did not determine whether disparate thus erroneous, however, is little evidence that since there appears ruling, or in that defendant’s finding selecting comparison group erred board on most than the sentences mem was significantly longer Moreover, made no or judge findings that group.9 although bers reasons, on the motion argument suggest his comments during statement he did not realize that board’s methodology: misunderstood the he that factors to the “subjective” do take into account extent procedures board’s record; that the subjective his factors assumption reflected in the are they his comment that to at hand lacks a five- support;10 the case unique were that he did not also be un suggests sentence would disparate ten-year to (See 5, ante, the board. fn. term as used by meaning derstand court’s that its sentence was 445.) ruling conclude that the We p. in this analysis of the light opinion. reconsidered should disparate (cf. not, however, People hostility concept to of uniform include 8They do A., 811, 818) his sentencing practices colleagues. supra, 38 Cal.3d v. Javier error; none of defendant’s robbery one factual it said that may made board have 9The $500, $800. appear It does not in fact two victims lost than while lost more victims comparison groups. selection would affect the error this comparable board, records in 29 cases judge did not examine the the trial 10Unlike cases. present in those factors determine We recognize referred to factors judge unique subjective which sentence in this might justify case.11 found no disparate Having however, did not determine disparity, judge of those significance remand, factors. he is free to reaffirm Upon if he finds present considerations, are that there countervailing not taken into account in the board’s which analysis, justify sentence.
This us to a which has brings question review of hampered appellate sentences this and other cases—the Since question findings. the mode of we have set out requires we believe it findings, ap- to address that propriate remand, question way guidance the court on (cid:127)and to other courts sentences reviewing under section subdivision (f).
Since the did not Legislature an impose explicit for a state requirement reasons, ment of the Court of Peoрle Mitchell Appeal v. 433, 437 Shepeard, 507] *12 580, 585, 5,
169 Cal. App.3d
fn.
held that such a statement was unnecessary.
courts, however,
have the inherent
to
power
a statement
require
of reasons as a
declared rule
judicially
of criminal
(See,
procedure.
e.g.,
In re Podesto
(1976)
921,
15 Cal.3d
97,
938
1297];
544 P.2d
Cal.Rptr.
[127
v. Vickers
People
(1972)
451,
8 Cal.3d
305,
461
503 P.2d
Cal.Rptr.
[105
1313];
People
Cohan
v.
(1955)
44
434,
905,
Cal.2d
442
P.2d
50
[282
Podesto,
A.L.R.2d 513].)12 In In re
921,
supra,
15
Cal.3d
we emphasized
that a
requirement
articulated reasons to
a
decision serves
support
given
a number of interests: it is
review;
essential to
it acts
frequently
meaningful
as an inherent guard
decisions,
against careless
that the judge
insuring
judge
11The
said there was a difference
at a distance from
between a robber who stands
445,
(see
the victim
points
p.
weapon
a
and one who holds a knife to the victim’s throаt
ante),
point
implying,
presume,
we
raised the
that defendant was the knifeholder. The court
sentence,
justify
not to
could
inquire
a
but to
whether the board’s statistical tables
take account of such a difference.
882,
335,
(1983)
667 P.2d
Cal.Rptr.
348
People
12Seealso
v. Belmontes
Cal.3d
[193
(1979)
667.6);
(statement
People
sentencing under section
v. Ramirez
of reasons for
686]
25 Cal.3d
316,
260,
(inmate
from California
Cal.Rptr.
599 P.2d
excluded
276 [158
622]
96,
(1974)
reasons);
Bye
12 Cal.3d
Center
to a statement
In re
Rehabilitation
entitled
382,
(Narcotic
Authority
provide
must
Addict Evaluation
Cal.Rptr.
A statement reasons also trial help guide judge. Disparate not a common and both the record review is and familiar procedure, decisions board findings this and the trial court frequent rejecting that an misunderstanding process inarticulated disparity suggest decisions. a written statement of reasons undеrlie many Requiring may lead to better reasoned an intellectual decisions. discipline may imposes *13 a confidence statement reasons serves Finally, preserve public for the As noted the Court Ninth sentencing by Appeals the process. Circuit, a in sentences “[wjhen there is substantial disparity imposed upon same for in the criminal activity, pres individuals engaging different and impartiality that judicial integrity requires of the ervation appearance (United v. Capriola record an States explanation.” sentencing judge We the trial 321.) conclude that 1976) F.2d court Cir. (9th that a sentence is or is finding record its reasons not state on the should but declines to reduce the sentence nevertheless if finds disparity it disparate; term, reasons which a justify should explain nondisparate atо sentence. reluctance to a trial judge require below expressed Court of Appeal the trial court is “because required the record on his reasons
to state or consecutive at enhanced term the for an aggravated, its reasons state no think of or rationale to authority ... We can hearing. sentencing initial different set of entirely an factors to set forth court the require Board.” disparity perceived to justify however, was sentence, trial he When the judge originally imposed his character; unaware of its the reasons presumably stating one no need to sentence he was perceive imposing he explain why more severe than those When cases. substantially similar however, attention, to the trial the court calls the court’s board this issue and determine if its explaining must face sentence In was justified. set the court is not different to set out a new and justification, required The reasons which led it to enhanced of factors. an impose aggravated, for such term at the original consecutive still be reasons hearing may good term, trial But as the disparity notwithstanding. record here suggests, sentencing. on factors which did also may rely court appear original event, the court needs decision. appellate In either to know the basis for the Mitchell, 433, 438, stated in the court People As Cal.App.3d such losing absence of makes it for the findings “virtually impossible somewhat to attack court on judgment party specific grounds abused to determine court whether the trial impossible appeal equally discretion.” its rеversed, reasons order foregoing
For imposing remanded for further this proceedings opinion.13 in accordance with J., Grodin, J., J.,* and Lui (Elwood), concurred. Reynoso, MOSK, I dissent. J. v. Herrera
I outlined in two-step agree workable 694], out a sets court Terms for a trial notified of Prison the Board procedure proper that at it has (Board) agree sentence. I also imposed disparately high that a which the court finding Board’s step, simply the first reviews the the court to the statistically disparate, expertise should defer data and Legislature entrusted with the task of analyzing the Board *14 cases. reviewing comparable case, of finding the court rejected out of hand the Board’s
In the present con- contrary without concrete a offering any evidence to support оf meth- basis the Board’s major and the about misconceptions clusion whether a factual rather Yet the is a odology. question Mitchell, Herrera, 590, supra, 127 152 13People Cal.App.3d People v. v. 433, 580, Shepeard, supra, disapproved v. are Cal.App.3d and 169 with they are inconsistent the views stated that herein. the extent Justice, District, by Chairperson of Second Appeal, assigned Court *Associate Judicial Council.
452 one, careful the Board’s review under a discretionary statutory than correct in the of as absence accepted strong showing mandate should be conclude, trial court should the majority As accept to the contrary. evidence it finds on clear that unless latter erred in Board’s finding or in group that sen- comparison determining selecting appropriate that on most from members of the tence differs significantly group. however, when it comes majority, with the company outlining I part of its of a stage in the second review Board trial court’s task finding weight, is entitled to that great means finding While the only disparity. its order in sentencing reassess carefully light should of the no- the court with the range variance typical is at sentences in similar that it tification to deviate from that retains discretion range The court if it deems cases. case. in the particular appropriate trial court must recall a hold disparate sentence majority evidence of substantial countervailing it is considerations. justified
unless Code section 1170 effect, from Penal infer presumption favor they In however, provision, Their interpretation finds no resеntencing. enunciated language policy Legislature. in either the support “Within in relevant 120 part, days statute requires, receipt [of the sentencing court shall disparate], a sentence schedule a notice the sentence commitment recall ordered may previously hearing manner same as if the defendant defendant had resentence the new sentence is no provided greater previously, sentenced than not been this under subdivision the resentencing In sentence. court shall the initial Judicial Council rules of the and shall consider the apply 1170, Terms.” (§ Prison the Board (f)(1).) subd. provided information we must look themselves, to the words statutory language, interpreting In import. usual and v. ordinary (People their Aston effect to giving 771, 111]; 703 P.2d Cal.Rptr. Moyer Workmen’s Cal.3d Cal.3d Bd. Appeals Comp. face, the statute leaves recall explicitly 1224].) its On
P.2d discretion: it trial court’s recall “may” the sentence. within defers the Board’s Moreover, the court finding, if even resentencing ifas manner defendant had not same been “in the sentenced do so it must *15 to “consider” the information only bound provided is by previously” is the preserved: discretion Judicial Council Sentencing Judicial Board. follow in must court the court to resentencing, permit Rules, which defendant of the demeanor, factors as such attitude evaluate personality, contrast, incorporated the crime. committing explicitly in By Legislature (b), concerning 1170, in Penal Code a section subdivision presumption is of imprisonment terms “When a imprisonment, directing, judgment terms, court shall and the statute to three imposed specifies possible in term, circumstances of the middle are order unless there imposition added.) As we explained (Italics the crime.” mitigation aggravation P.2d Hueneme v. City City Oxnard 52 Cal.2d statute, 318], a given provision, when a with reference to contains one subject a related such concerning omission of provision from a similar statute to existed. is show that a different intention significant subject Furthermore, but not as a be guided matter of should trial courts policy, in a itself straightjacket explained the Board’s The Board placed findings. have done statistical other only dry judges of what presents study cases; it makes no comparable appropriateness judgment regarding sentence, established the benchmark any particular “dealing with strictly de- other not judges, any Legislature’s theoretical standard.” to rest discretion in gives cision the trial 1170 properly court under section to the court’s unique to take of the play ability particular account personality, conduct, attitude, and demeanor of the crime— in committing defendant factors the mislabel majority “subjective.” Although patterns are entitled to to great weight, the trial in the best position remains judge defendant, the individual within the sentence to proportion the particular limits Determinate Act. Sentencing the level of formulation elevates majority’s statistical tendencies as statutory no present case there is
presumptions, illustrates: although in favor of (People concurrent rather sentences than consecutive presumption 479]), Reeder because the statewide favors pattern concurrent sentences for robberies perpetrated court victims in trial the same multiple incident the majority require its sentence after the fact were justify just presumption as there though instance. in the first be established of this kind should Presumptions numerical or the courts on the not by basis of Legislature substantive policy, generated by curves computer. that a Herrera, Board
As the court emphasized finding by “a was does not ‘disparate’ mean that the Board pursuant of the law. . . . violation motion brought by [A] the sentence (f) subdivision does create a section presumption his sentence to have (unlawful) entitled or that the is ‘incorrect’ prisoner *16 454 599-600.)
recalled.”
(127
at
Board’s conclusions
pp.
stick,
should
not a
rod for
the
measuring
whipping
judges;
function as a
serious,
information
is
dеmands
careful
that a sentence
consid-
court,
eration
to its own
as an aid
exercise of discretion.
only
the
but
I am
draw
majority
to our decisions in
unpersuaded
analogy
14],
First, the standard review against cases we back- applied those as to the silent to be ground weight accorded entirely statutory language Code, & Inst. (See 707.2.) § Youth Welf. recommendations. By Authority contrast, and the matter vests the expressly section 1170 addresses court not, as with it deems discretion the recommendation to follow appropriate. Second, and Terms the Youth the Board of Prison both although Authority are their aims findings concerning sentencing, mandated to present The Youth in critical respects. remain procedures distinguishable Authority are is a in which sentenced juveniles rehabilitative indeter- system, penal its confines of a minately, amenability and the authority contrast, By rehabilitation. Board minor to treatment particular Act, the Determinate under Sentencing within a operates system punitive of sentences rather than analyzes relationship focusing the mathematical Moreover, defendants. of individual Youth particular qualities before to the court sentencing, its evaluation whereas Authority presents has defendant been sentenced after a only the Board is initiated review to structure review decision under Legislature’s committed to prison. did it not intend to accord suggests section 1170 strongly as retrospective those of Youth as to same findings Authority. to the Board’s weight the statute the trial court although requires Finally, noteworthy an sentencing imposing aggravated, state its the time reason at (c)), a enhanced, (§ subd. similar requirement term or consecutive (f). long So as the record shows from subdivision absent conspicuously Board, provided information considered court seriously trial court Board’s rejecting rule that mandatory I would not impose case articulate its reason for doing must in every recommendation so.
I affirm the judgment. J., Lucas, J.,
Bird, concurred. C. 18, 1986. September was denied rehearing for a petition Respondent’s Panelli, should J., J., Lucas, petition were of opinion granted.