NELSON CHAVEZ ZEPEDA,
A166159
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 11/13/23
CERTIFIED FOR PUBLICATION; (City & County of San Francisco Super. Ct. No. 21001875)
This case presents several questions about Senate Bill No. 567 (2020–2021 Reg. Sess.) (Senate Bill 567). Senate Bill 567 amended
Notes
First, does the phrase “circumstances in aggravation” in
Second, if the Legislature did so intend, does such a delegation of authority violate the separation of powers or the nondelegation doctrine?
Third, are the aggravating circumstances in rule 4.421 unconstitutionally vague for use by a jury because they contain undefined qualitative terms like “particularly vulnerable,” or “serious danger to society” (see rule 4.421(a)(3), (b)(1)) and require the jury to determine whether such an aggravating circumstance makes the commission of the offense ” ‘distinctively worse than the ordinary’ “? (People v. Black (2007) 41 Cal.4th 799, 817 (Black).)
Fourth, must the factual allegations supporting the aggravating circumstances be supported by evidence at the preliminary hearing, and if so, were they supported by the evidence here?
We conclude that the phrase “circumstances in aggravation” does refer to the factors listed in rule 4.421, and that the Legislature has not violated the separation of powers by doing so. With respect to vagueness, although we reject the People‘s argument that the void-for-vagueness doctrine does not apply to aggravating circumstances, we find that the use of qualitative terms and the requirement that an aggravating circumstance make the commission of the offense distinctively worse does not render the factors in rule 4.421 unconstitutionally vague. Finally, we conclude that the factual allegations supporting the aggravating circumstances do not need to be supported by evidence at the preliminary hearing.
BACKGROUND
Petitioner Nelson Chavez Zepeda was charged in a felony complaint with the following five counts: (1) meeting a minor for lewd purposes (
On June 16, 2021, the trial court held a preliminary hearing. Following testimony and evidence, the court dismissed count 5 and held Chavez Zepeda to answer on the remaining four counts. An information was thereafter filed on these four counts. On January 1, 2022, Senate Bill 567‘s amendments to
In response to amended
Chavez Zepeda opposed and the trial court granted the motion. At the hearing on the motion, the court noted that “[n]othing in this decision deprives the defendant from bringing a 995 motion.” Chavez Zepeda waived arraignment, entered a plea of not guilty, and denied the allegations in the amended information.
On August 1, 2022, Chavez Zepeda filed a motion to set aside the aggravating factors under
The prosecution opposed the motion on the grounds that (1) aggravating factors are not required to be proved at a preliminary hearing; (2) sufficient evidence supported the aggravating factors at issue here in any event; and (3) use of rule 4.421 by a jury does not violate the separation of powers.
Following oral argument, the trial court denied Chavez Zepeda‘s motion and overruled his demurrer. The court was persuaded by the holding in Barragan v. Superior Court (2017) 148 Cal.App.4th 1478, 1485 (Barragan), which concluded that aggravating factors did not need to be supported by evidence at a preliminary hearing because they were not equivalent to statutory enhancements. The court further held that even if it was incorrect on this point, the aggravating factors were supported by the evidence at the preliminary hearing here.
Chavez Zepeda filed a petition for writ of mandate or prohibition to direct the trial court to set aside its order and issue a new order granting his motion and sustaining the demurrer, or to refrain from further proceedings against Chavez Zepeda with respect to the charged aggravating factors. We issued an order for the People to show cause why the relief requested should not be granted.
DISCUSSION
I. Standard of Review
”
“Insofar as [the motion] rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that ‘a reasonable person could harbor a strong suspicion of the defendant‘s guilt.’ ” (Lexin, supra, 47 Cal.4th at p. 1072.)
II. History of Section 1170 — Three Sentencing Schemes
In evaluating the arguments in this case, it will be helpful to bear in mind three distinct phases in the evolution of
In 2007, the United States Supreme Court found this sentencing scheme unconstitutional on the ground that “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California (2007) 549 U.S. 270, 281 (Cunningham).) The Legislature responded by amending
Most recently, Senate Bill 567 amended
III. Separation of Powers and the Nondelegation Doctrine
Chavez Zepeda‘s argument based on the separation of powers and the nondelegation doctrine raises a threshold question about how to interpret the phrase “circumstances in aggravation” in
We do not find it appropriate to resolve the issue this way. As discussed below, the Legislature clearly intended to refer to the aggravating factors listed in rule 4.421 by the phrase “circumstances in aggravation,” and it did not violate the separation of powers or the nondelegation doctrine by doing so. Because we see no ambiguity in the statute, we likewise reject the suggestion by Chavez Zepeda‘s amici that we should adopt Chavez Zepeda‘s construction under the rule of lenity, which ” ’ “generally requires that ‘ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant the benefit of every reasonable doubt on questions of interpretation.’ ” ’ ” (People v. Reyes (2020) 56 Cal.App.5th 972, 989.)
A. Section 1170 Refers to Rule 4.421‘s Aggravating Factors
“As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning.” (People v. Murphy (2001) 25 Cal.4th 136, 142.) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) However, “[t]he meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” (Ibid.)
Rule 4.421 (formerly rule 421) has been in place since 1977. Its title is “Circumstances in aggravation.” It would be remarkable for the Legislature to use the phrase “circumstances in aggravation” in
Undermining any such hypothesis is the fact that Senate Bill 567 left in place the language in
Accepting Chavez Zepeda‘s argument, however, would effectively nullify the provision that courts must apply the sentencing rules of the Judicial Council. Under the amendments to
The legislative history of Senate Bill 567 further supports this conclusion. The report by the Senate Committee on Public Safety explained that the California Rules of Court provide a “non-exhaustive list of circumstances in aggravation and mitigation for purposes of sentencing,” and quoted all the factors enumerated in rule 4.421. (Sen. Com. Analysis, pp. 5–6.) The fact that the report expressly referred to rule 4.421 is strong evidence that the Legislature had that rule in mind when it referred to “circumstances in aggravation.”
Chavez Zepeda points out that Senate Bill 567 left unchanged the original grant of authority in
Lastly, Chavez Zepeda invokes Sandoval‘s observation that the factors in rule 4.421 “were drafted for the purpose of guiding judicial discretion and not for the purpose of requiring factual findings by a jury beyond a reasonable doubt.” (Sandoval, supra, 41 Cal.4th at p. 849.) The court‘s account of the genesis of the rule, however, does not call into question our conclusion about the Legislature‘s intent in Senate Bill 567. When Sandoval was decided, the Legislature had just amended its sentencing scheme in response to Cunningham to give trial judges the discretion to impose the lower, middle, or upper term without having to make factual findings. (Sandoval, at pp. 843–844.) The question before the court was what remedy to apply to a sentence imposed in violation of Cunningham in a case on direct appeal when it was unclear whether the Legislature intended the new scheme to apply to resentencing hearings. (Id. at p. 845.) In explaining why it selected the alternative that the Legislature itself had just chosen, the court observed that “engrafting a jury trial onto the sentencing process established in the former DSL would significantly complicate and distort the sentencing scheme.” (Id. at p. 848.) Sandoval did not hold, however, that the more complicated alternative of having the jury make findings about aggravating circumstances would be impermissible, and indeed, it observed that “such a process would comply with the constitutional requirements of Cunningham.” (Ibid.) After roughly a decade and a half of permitting courts to exercise their discretion to choose any of the three sentencing terms, the Legislature opted, as described by Senate Bill 567‘s proponents, “to ensure that harsher sentences receive the greatest scrutiny and justification before they are imposed,” requiring jury findings of aggravating circumstances beyond a reasonable doubt. (Sen. Com. Analysis, p. 4.) Notwithstanding the concerns Sandoval expressed regarding this then-hypothetical scheme, in Senate Bill 567 the Legislature chose to have juries consider the aggravating circumstances in rule 4.421.
B. The Jury‘s Consideration of the Aggravating Circumstances in Rule 4.421 Does Not Violate the Separation of Powers or the Nondelegation Doctrine
Having concluded that the phrase “circumstances in aggravation” in
“The legislative branch of government, although it is charged with the formulation of policy, properly may delegate some quasi-legislative or rulemaking authority to administrative agencies.” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 299.) While the Legislature may not “confer[] upon an administrative agency unrestricted authority to make fundamental policy decisions,” the nondelegation doctrine “does not invalidate reasonable grants of power to an administrative agency, when suitable safeguards are established to guide the power‘s use and to protect against misuse. [Citations.] The Legislature must make the fundamental policy determinations, but after declaring the legislative goals and establishing a yardstick guiding the administrator, it may authorize the administrator to adopt rules and regulations to promote the purposes of the legislation and to carry it into effect.” (Wright, supra, 30 Cal.3d at pp. 712–713.)
Chavez Zepeda argues that the use of non-statutory aggravating factors by a jury violates the separation of powers doctrine because only the Legislature and not the Judicial Council may decide what facts trigger an upper term sentence. He also argues that interpreting
In deciding whether the Legislature‘s delegation of authority to the Judicial Council to draft the aggravating factors that appear in rule 4.421 is improper, we do not write on a clean slate. In Wright, the California Supreme Court rejected the argument that the Judicial Council‘s adoption of rule 4.421 represented an unconstitutional delegation of legislative power. It first pointed to the language in Article VI, section 6 of the California Constitution that the Judicial Council may “perform other functions prescribed by statute.” (Wright, supra, 30 Cal.3d at p. 711, italics omitted.) The court then held that in enacting the DSL, “the Legislature made the fundamental policy decision that terms were to be fixed by choosing one of the alternatives on the basis of circumstances relating to the crime and to the defendant. [Citations.] The Legislature directed the Judicial Council to adopt rules establishing criteria for imposing the upper or lower terms in order to promote uniformity.” (Id. at p. 713.) In the court‘s view, the Judicial Council was permissibly implementing legislative policy. (Ibid.)
Our Supreme Court decided Wright in 1982, when trial courts were required to impose the middle term unless they found circumstances either in mitigation or aggravation of the crime. (Wright, supra, 30 Cal.3d at pp. 709, 713–714.) The question, then, is whether requiring the jury to find aggravating factors beyond a reasonable doubt changes the analysis. Certain arguments can be rejected at the outset because they are not implicated by the additional role assigned to the jury. The People argue, for example, that the nondelegation doctrine does not apply because the Judicial Council is not an administrative agency, but this argument is inconsistent with Wright, which found that rule 4.421 was a permissible delegation of authority under the law pertaining to administrative agencies. (Id. at p. 712.) Chavez Zepeda, for his part, argues that we cannot avoid the nondelegation problem by finding that
Chavez Zepeda‘s first argument for distinguishing Wright is one we have already rejected. While the Supreme Court relied on the language in Article VI, section 6 of the California Constitution granting the Judicial Council authority to “perform other functions prescribed by statute,” and found that condition satisfied by
Second, Chavez Zepeda and his amici argue that such a statutory delegation is impermissible because ” ’ “the power to define crimes and fix penalties is vested exclusively in the legislative branch.” ’ ” (Manduley, supra, 27 Cal.4th at p. 552; see also Figueroa, supra, 68 Cal.App.4th at p. 1415 [“Only the Legislature, not an administrative body, may determine what conduct is unlawful and the penalty for the unlawful conduct“].) “The underpinnings of this nondelegation rule include the constitutional provision vesting legislative power in the Legislature, which requires the Legislature to make fundamental policy decisions.” (Figueroa, at p. 1415.) Although Wright did not expressly consider an argument that the aggravating factors in rule 4.421 fixed penalties, it held that in “[c]hanging from the system of indeterminate sentences to determinate sentences and fixing the alternative terms, the Legislature made the fundamental policy decision that terms were to be fixed by choosing one of the alternatives on the basis of circumstances relating to the crime and to the defendant.” (Wright, supra, 30 Cal.3d at p. 713.) After doing so, the Legislature properly delegated authority to the Judicial Council “to adopt rules establishing criteria for imposing the upper or lower terms in order to promote uniformity,” and established a “standard” by “providing that the criteria be based on the absence or presence of aggravating or mitigating circumstances.” (Ibid.) The court also noted that the membership of the Judicial Council, which includes “justices and judges who have extensive experience in determining sentences” and who are “uniquely situated to implement the legislative policy,” constitutes a “suitable safeguard[]” to protect against misuse. (Id. at pp. 712–713.)
In our view, Wright‘s analysis is not altered by the new requirement under
IV. Due Process — Vagueness
In his writ petition, Chavez Zepeda asserts, albeit in connection with his separation-of-powers claim, that rule 4.421‘s factors are too amorphous for use by a jury, quoting the California Supreme Court‘s observation that, because they provide criteria intended to be applied to a broad spectrum of offenses, they “necessarily ‘partake of a certain amount of vagueness which would be impermissible if those standards were attempting to define specific criminal offenses.’ ” (Sandoval, supra, 41 Cal.4th at p. 840 [quoting People v. Thomas (1979) 87 Cal.App.3d 1014, 1024 (Thomas)].) In his reply brief, he argues at greater length that the factors in rule 4.421 are too vague for use in jury trials, and two amici briefs contend that they are unconstitutionally vague in violation of due process because they fail to provide fair notice of prohibited conduct and invite arbitrary and discriminatory enforcement.
“Courts generally do not consider new issues raised in amicus briefs. Instead, ’ [i]t is a general rule that an amicus curiae accepts a case as he or she finds it,’ and ‘amicus curiae may not “launch out upon a juridical expedition of its own unrelated to the actual appellate record.” ’ ” (People v. Hannon (2016) 5 Cal.App.5th 94, 105.) “However, the rule is not absolute. An appellate court has discretion to consider new issues raised by an amicus.” (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 503Ibid.)
Because those considerations apply here and the amicus briefs elaborate on arguments in Chavez Zepeda‘s own briefing—and because the prohibition against vague laws “rests on the twin constitutional pillars of due process and separation of powers” (United States v. Davis (2019) 139 S.Ct. 2319, 2325 (Davis))—we exercise our discretion to address whether the factors in rule 4.421 are unconstitutionally vague if considered by a jury.
A. No Categorical Exemption for Aggravating Circumstances
The government violates the due process clause “by taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. [Citation.] The prohibition of vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,’ and a statute that flouts it ‘violates the first essential of due process.’ [Citation.] These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.” (Johnson v. United States (2015) 576 U.S. 591, 595–596.)
Sentencing rules, however, do not necessarily “fix sentences” for the purpose of triggering the protections of the due process clause. Although it predates Johnson, in Thomas, supra, 87 Cal.App.3d at page 1023, the court found that the aggravating factors in the predecessor to rule 4.421 were not subject to a vagueness challenge because they were “not intended to give people advance warning of prohibited activities” but instead “to provide guidance to sentencing judges.” Similarly, in Beckles v. United States (2017) 580 U.S. 256, 265 (Beckles), the Supreme Court held that the federal sentencing guidelines, which the court had previously construed as advisory (see United States v. Booker (2005) 543 U.S. 220, 245 (Booker)), were not subject to a vagueness challenge because they did not implicate the twin concerns of notice and arbitrariness. With respect to notice, “even perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range” because the judge retains the discretion to impose an enhanced sentence notwithstanding a guideline recommendation to the contrary. (Beckles, at p. 265.) And the Court explained that, while an unconstitutionally vague law invites arbitrary enforcement if it permits judges and jurors “to prescribe the sentences or sentencing range available,” the guidelines do not present that concern because they only “advise sentencing courts how to exercise their discretion within the bounds established by Congress.” (Id. at p. 266.) Relying on Thomas and Beckles, the People argue that the void-for-vagueness doctrine categorically does not apply to the aggravating circumstances in rule 4.421.
What makes rule 4.421 different in its present context both from the predecessor rule considered in Thomas and from the advisory guidelines considered in Beckles is that a court has no authority to impose an upper term sentence unless a jury has found one or more aggravating factors true beyond a reasonable doubt. Again, the constitutional requirement of a jury finding was established in Cunningham, which applied to California‘s sentencing scheme the rule originally announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (See Cunningham, supra, 549 U.S. at p. 282.)3 Because a judge could not impose an upper-term sentence in the absence of an aggravating factor (under the pre-Cunningham rules), “the middle term prescribed in California‘s statutes, not the upper term, is the relevant statutory maximum.” (Id. at p. 288.)
The People argue that, because
Courts in other jurisdictions have reached differing conclusions when considering whether aggravating factors in a post-Apprendi sentencing regime are subject to a constitutional vagueness challenge. Arizona‘s high court invalidated as unconstitutionally vague the state‘s “catch-all aggravator,” defined as “‘any other factors which the court may deem appropriate to the ends of justice,‘” when it was used to increase the statutory maximum sentence and no clearly enumerated aggravator was found consistently with Apprendi. (State v. Schmidt (2009) 220 Ariz. 563, 565-566; see State v. Bonfiglio (2013) 231 Ariz. 371, 373 & fn. 1 [same result with amended catch-all aggravator that permits the trier of fact to consider “‘[a]ny other factor that the state alleges is relevant to the defendant‘s character or background or to the nature or circumstances of the crime‘“].) And while Minnesota‘s high court held that a vagueness challenge did not lie to the state‘s “particular cruelty” aggravating factor, it reached that result by concluding that “particular cruelty” is not a “fact” that must be found by the jury, but rather a “reason” the court may use to impose a sentence outside the presumptive range based on additional facts the jury found beyond those established by the guilty verdict, such as that the defendant “sprayed the handcuffed victims with chemicals.” (State v. Rourke (Minn. 2009) 773 N.W.2d 913, 919-922.) While we will not adopt that approach to the question here,4 the Minnesota court‘s reasoning at least implicitly accepts that a vagueness challenge would lie to anything Apprendi requires the jury to find beyond a reasonable doubt. By contrast, intermediate appellate courts in Washington have held that the requirement of jury findings does not make aggravating factors susceptible to a vagueness challenge, reasoning that those factors do not establish the statutory maximum and courts are not
required to impose an exceptional sentence based on the jury‘s finding. (See, e.g., State v. Brush (2018) 5 Wn.App.2d 40, 61-63; State v. DeVore (2018) 2 Wn.App.2d 651, 660-665; State v. Burrus (2021) 17 Wn.App.2d 162, 175-177.)
While the Washington courts identify relevant considerations, we are not persuaded that they justify a decision to afford no due process significance to the Supreme Court‘s holding that “the relevant ‘statutory maximum‘” in the state‘s scheme, as in California‘s, is the maximum the judge “may impose without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303-304.) The relevant liberty interest exists if an aggravating factor “exposes” the defendant to a greater penalty. (Apprendi, supra, 530 U.S. at p. 483.) Beckles held that notice was not implicated because the judge had the discretion to impose the statutory maximum even in the absence of an aggravating factor—the feature that is missing from both California‘s and Washington‘s sentencing schemes. (Beckles, supra, 580 U.S at p. 265.) But perhaps more importantly, as we have noted, the right to jury findings of aggravating circumstances beyond a reasonable doubt would be of questionable value if what the jury was asked to find was so vague as to be beyond its ability meaningfully to consider. At that point, the risk of arbitrariness becomes unacceptably high. We therefore decline to hold that aggravating factors are categorically exempt from a constitutional vagueness challenge.
B. Chavez Zepeda Does Not Establish That the Aggravating Circumstances Are Unconstitutionally Vague
At the same time, it is important to recall the Supreme Court‘s admonition that “the requirements of due process are ‘flexible and cal[l] for such procedural protections as the particular situation demands.‘” (Austin, supra, 545 U.S. at p. 224.) Although a judge lacks the authority to impose an upper-term sentence in the absence of a jury finding of one or more aggravating factors, the government‘s purpose in specifying those factors is to establish bounds for the exercise of sentencing discretion rather than to “regulate the public” (Beckles, supra, 580 U.S. at p. 266), and the public has notice that the presence of an aggravating circumstance may subject a defendant to the upper term the Legislature has specified. Moreover, the judge‘s discretion not to impose a greater sentence based on the jury‘s finding, if insufficient to alleviate all potential due process concerns, nonetheless offers some protection against “the risk of an erroneous deprivation of [the defendant‘s liberty] interest” (Austin, at pp. 225-226) that might attend an imprecise definition of an aggravating factor. By contrast, where a court is required to impose a greater sentence based on the jury‘s finding, the amount of precision due process requires is undoubtedly greater, equivalent to that demanded for statutes specifying offenses. (See, e.g., Davis, supra, 139 S.Ct. at p. 2324; Johnson, supra, 576 U.S. at p. 593; People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803.)5
For these reasons, our conclusion that the factors in
We also do not think the factors in
It was the combination of these two features that led the court to conclude that the residual clause was unconstitutionally vague. First, the court saw no meaningful way for a judge to decide what kind of conduct the “ordinary case” of a crime involves, divorced from “real-world facts or statutory elements,” particularly when the judge must imagine not only the criminal‘s own behavior but also how “the crime subsequently plays out,” for example with bystanders who may respond to it. (Johnson, supra, 576 U.S. at p. 597 then exacerbated by the uncertainty “about how much risk it takes for the crime to qualify as a violent felony,” especially because the degree of risk posed by the four enumerated crimes—burglary, arson, extortion, and crimes using explosives—was itself unclear. (Id. at p. 598.) The court concluded that it is not possible to say whether an “ordinary case” of a crime like burglary or extortion presents “a serious potential risk of physical injury to another” both because the crimes can be committed in different ways that involve different levels of risk—a burglar might “invade an occupied home by night or an unoccupied home by day,” and an extortionist might “threaten his victim in person with the use of force, or . . . by mail with the revelation of embarrassing personal information“—and because it was not clear how much risk was necessary to render the imagined “ordinary case” of the offense violent. (Ibid.)
Johnson provides no basis to conclude that aggravating factors are constitutionally objectionable simply because they use qualitative standards like “great violence,” “high degree of cruelty, viciousness, or callousness,” “particularly vulnerable,” or “serious danger.” (See
Chavez Zepeda and his amici focus on the requirement under California law that an aggravating circumstance must “make[] the offense ‘distinctively worse than the ordinary.‘” (Black, supra, 41 Cal.4th at p. 817 [quoting People v. Moreno (1982) 128 Cal.App.3d 103, 110].) They argue that this requirement, when coupled with a qualitative or subjective standard in the aggravating circumstance itself, creates the same dual vagueness problem that gave rise to the court‘s holding in Johnson. But we think the abstraction of the “ordinary case” that troubled the court in Johnson is not equivalent to the “distinctively worse than the ordinary” standard under California law. Courts applying that standard have not imagined an abstract, “ordinary case” to determine whether a finding of an aggravating circumstances is warranted by the facts of the case. Rather, they have considered whether the manner of the crime‘s commission was distinctively worse “when compared to other ways in which such a crime could be committed.” (People v. Harvey (1984) 163 Cal.App.3d 90, 117 [considering “viciousness and callousness“]; accord, People v. Charron (1987) 193 Cal.App.3d 981, 994 [“planning and sophistication“]; see also People v. Lincoln (2007) 157 Cal.App.4th 196, 204 [“‘A fact is aggravating if it makes defendant‘s conduct distinctively worse than it would otherwise have been.‘“] [quoting People v. Zamarron (1994) 30 Cal.App.4th 865, 872]; People v. Leung (1992) 5 Cal.App.4th 482, 504 [“the court must decide whether the particular circumstance at issue renders the collective group of offenses distinctively worse than the group of offenses would be were that circumstance not present“].) These various phrases—“distinctively worse than the ordinary,” “when compared to other ways in which such a crime could be committed,” “distinctively worse than it would otherwise have been“—are different ways of expressing the same concept, and we do not see any indication that our Supreme Court‘s use of the first phrase in Black was intended to endorse one formulation over others expressed in the caselaw or to impose a requirement of imagining an abstraction akin to what was at issue in Johnson.
When appellate courts have reversed an upper-term sentence on the ground that the cited aggravating circumstance did not make the commission of the crime distinctively worse, they have generally concluded that the circumstance at issue was likely to be present in most any instance of the offense or added little to the wrongfulness already inherent in its commission. For example, in People v. Piceno (1987) 195 Cal.App.3d 1353, 1357, the court rejected the finding that the victim of vehicular manslaughter was “‘particularly vulnerable‘” because his vulnerability could not be “distinguished from that of all other victims killed by drunk drivers.” Since “all victims of vehicular manslaughter” are vulnerable by being “in the wrong place at the wrong time,” the court reasoned, “[t]he element of vulnerability is inherent in the very crime of vehicular manslaughter caused by a driver under the influence of alcohol, and to use that factor to aggravate the term is improper, absent ‘extraordinary’ circumstances.” (Id. at p. 1358.) Similarly, in People v. Fernandez (1990) 226 Cal.App.3d 669, 682-683, the court rejected as aggravating circumstances that the defendant‘s behavior “shows an inability or refusal to ‘conform to the mores of society‘” or is “‘beyond all acceptable norms of society that we live in today‘” because they “describe and apply to all persons convicted” of lewd and lascivious conduct upon a child. And in People v. Rodriguez (1993) 21 Cal.App.4th 232, 241-242, the court concluded that the defendant‘s “act of ‘reracking’ his pistol to correct a misfire” did not make his use of a firearm “worse than the ordinary” because “the act was nothing more than preparatory to carrying out the intent to shoot.” (See also, e.g., People v. McNiece (1986) 181 Cal.App.3d 1048, 1061 [in a case of vehicular manslaughter, “[a]lthough [the victim‘s] death was most tragic, cruelty, viciousness, or callousness on appellant‘s part beyond the occurrence of the accident was not shown“], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470; People v. Young (1983) 146 Cal.App.3d 729, 734 [“To say an assault with a deadly weapon is an extremely serious offense merely states the obvious and does not have an effect of making the offense distinctively worse“]; People v. Moreno, supra, 128 Cal.App.3d at p. 110 [no basis to conclude that knives are “distinctively worse than other types of weapons“; “use of a deadly weapon is an element of the crime and the fact that the defendant must pick one of several instruments does not change the result“].)
Comparing the defendant‘s commission of the offense with other ways in which the same offense has been or may be committed does not require the decisionmaker to define a single, imaginary fact pattern as the “ordinary” way of committing the offense, as the Supreme Court deemed necessary to determine whether it is a “violent felony” within the meaning of the ACCA‘s residual clause. The difficulty the Johnson court perceived in identifying the “ordinary case” had nothing to do with the relative experience of juries and judges; indeed, the determination whether the residual clause applied was made by the sentencing judge. (Johnson, supra, 576 U.S. at p. 595.) By contrast, the court‘s concern in Sandoval was with “imprecise terms that implicitly require comparison of the particular crime at issue to other violations of the same statute, a task a jury is not well suited to perform.” (Sandoval, supra, 41 Cal.4th at p. 849, italics added.) We understand this statement to mean that a judge is likely to have seen many occurrences of the same offense, and is therefore in a better position than a jury to evaluate whether its commission in a particular case is distinctively worse.
Notwithstanding the additional perspective that a judge who has sentenced many defendants may possess, we do not find the requirement that an aggravating circumstance make the commission of the offense distinctively worse “when compared to other ways in which such a crime could be committed” (People v. Harvey, supra, 163 Cal.App.3d at p. 117) so vague as to place the task beyond any jury‘s competence and thereby to give rise to unacceptable arbitrariness. We note that jurors can be (and we expect that they will be) given additional guidance and explanation, both in the meaning of qualitative terms, which have been defined in the caselaw over the years, and in the meaning of the requirement that the aggravating circumstance make the commission of the offense distinctively worse. Indeed, while this appeal was being briefed, the Judicial Council developed jury instructions for 11 of the aggravating factors in
In sum, we do not find that the individual factors listed in
propose their own aggravating circumstances in reliance on the residual clause in
V. Preliminary Hearings and Aggravating Factors
Lastly, Chavez Zepeda argues that the aggravating factors found against him must be set aside because they were not supported by evidence at the preliminary hearing. Citing People v. Superior Court (Mendella) (1983) 33 Cal.3d 754 (Mendella) and Huynh v. Superior Court (1996) 45 Cal.App.4th 891 (Huynh), he contends that “[w]hen the Legislature makes increased punishment hinge on a charged factual allegation to be proved to the jury, whatever formal label it uses, courts presume that it intended for the allegation to be supported by evidence at the preliminary hearing and subject to review under
As Chavez Zepeda acknowledges, there is no express statement in
42 Cal.4th 644, 659.) Moreover, in several places in
Mendella considered caselaw holding that only “offenses,” and not provisions relating to the penalty to be imposed, were subject to review by a motion to dismiss under
In Huynh, the court held that penalty provisions, like enhancements, “require proof at the preliminary hearing and review under
Unlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term. With respect to enhancements, Chavez Zepeda argues that the distinction is not significant because, except where the Legislature has clearly and mistakenly said otherwise, courts have the discretion to strike enhancements or not to impose the penalty associated with them. (See
With respect to penalty provisions, Chavez Zepeda argues that in De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40, 59, the court held that
We do not doubt that allegations of aggravating circumstances, like enhancements, are powerful bargaining tools for the prosecutor, and we consider the overcharging of such allegations to gain unfair leverage in plea negotiations as objectionable as the overcharging of enhancements disapproved of in Mendella. At oral argument, the People emphasized that a preliminary hearing and motion under
as inadequately supported after a hearing under
While these mechanisms may be less effective in checking the overcharging of aggravating circumstances, the unfairness that results from such an abuse of prosecutorial discretion was only one of numerous considerations that led to the court‘s decision in Mendella. The court‘s concern there that the defendant could be prejudiced at trial by the introduction of evidence on an enhancement issue that is irrelevant to guilt of the underlying offense (Mendella, supra, 33 Cal.3d at p. 760) does not arise here because
Cunningham, due process requires notice in an accusatory pleading of aggravating circumstances that do not fall within Apprendi‘s exception for prior convictions. Chavez Zepeda contends that there is a statutory pleading requirement imposed by
aggravating circumstances. Moreover, unlike enhancements, aggravating factors were not historically part of the definition of substantive offenses, so there was no tradition of considering them at a preliminary hearing. (See Mendella, at pp. 762-763; Barragan, supra, 148 Cal.App.4th at p. 1485.) Allowing for consideration of aggravating factors at a preliminary hearing may be advisable as a policy matter to prevent overcharging and to promote fairness, but the novelty of the circumstances and the well-recognized distinction between aggravating factors and enhancements or penalty provisions prevent us from simply presuming that the Legislature intended to create a right to a probable cause determination for aggravating factors.
Finally, while Chavez Zepeda contends that he has a state due process right to a preliminary hearing on aggravating circumstances, he offers no argument or authority in support of that contention apart from his citations to Mendella and Huynh.10 Due process is not mentioned in Huynh, and while Mendella stated in passing that the defendant has a “due process right to a pretrial determination of probable cause” (Mendella, supra, 33 Cal.3d at p. 759), it did not cast its decision about enhancements as a constitutional requirement—which would be inconsistent with Chavez Zepeda‘s argument elsewhere that the Legislature may specify when an enhancement is not subject to a probable cause requirement. Mendella also did not consider more generally for what kinds of allegations due process requires a probable cause determination. Because Chavez Zepeda has not otherwise developed the argument, we do not consider it. (Cf. Pantaleon, supra, 89 Cal.App.5th at
p. 941 [rejecting contention that due process requires the prosecution to plead prior convictions used as a basis to impose upper-term sentences, but declining to decide whether due process requires other aggravating factors to be pleaded].)
Because we hold that aggravating circumstances need not be supported by evidence at the preliminary hearing, we do not reach Chavez Zepeda‘s arguments that the evidence here did not support them.
DISPOSITION
The petition is denied.11
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
| Trial Court: | Superior Court of the City and County of San Francisco |
| Trial Judge: | Honorable Eric R. Fleming |
| Counsel for Defendant and Petitioner: | Manohar Raju, Public Defender Matt Gonzalez, Chief Attorney Eric Quandt Oliver Kroll |
| Counsel for Real Party in Interest: | Brooke Jenkins District Attorney Brian Bringardner Assistant District Attorney |
| Counsel for Amici Curiae California Public Defender‘s Association and Los Angeles County Public Defender‘s Office | Ricardo D. Garcia Public Defender Albert J. Menaster Head Deputy Nick Stewart-Oaten |
| Counsel for Amicus Curiae American Civil Liberties Union of Northern California | Emi Young |