*1 No. 21692. Feb. [Crim. 1982.] PEOPLE,
THE Plaintiff and Respondent, WRIGHT,
GREGORY Defendant and Appellant.
Counsel Reich,
Jeff Court, under appointment Supreme for Defendant and Appellant. Denvir,
Quin Defender, State Cutler, Public and Mark E. Chief Assis- Defender, tant State Public as Curiae on behalf of Defendant Amici and Appellant. General,
George Philibosian, Deukmejian, Attorney Robert H. Chief General, Assistant Attorney Arnold O. Assistant Overoye, Attorney General, Dicce, E. Roger Venturi L. Anthony Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
BROUSSARD, J. to two counts of pleas burglary After guilty (Pen. Code, 460) was sentenced to second defendant degree §§ count, terms to On prison concurrently. for three on each run years Court, this of California Rules of appeal validity he attacks the governing aggravation 421 and criteria providing purposes. In the first defendant obtained residence burglary entry out of in the front door. The residents were town smashing glass He ef- personal the time. took numerous items of jewelry, clothing $200 in coins The value of the along fects with about and currency. *4 $1,500 items estimated at but later increased to stolen was originally $2,300. later,
In six en- the second offense defendant obtained occurring days a near front door at a time to a residence window try by breaking two He took stereo color tele- equipment, when the resident was absent. visions, radios, with silverware and coins an estimated value jewelry, residence, $3,250. A and when leaving observed a vehicle neighbor a he admitted the defendant chase apprehended high-speed was after out the scene by pointing first offense with authorities cooperated and of other he committed. burglaries ranging
Defendant nine convictions over the twelve prior years had minor, theft liquor loitering, grand seriousness a possession from auto, never sent to person. Although prison, theft from the grand to California Re- had served terms and been committed county jail he a habilitation Center as narcotics addict. offi- in his interview with the probation
Defendant remorse expressed obtain money his for offenses was to cer. He stated that motive $20 of using his He admitted approximately return to home Oregon. to his arrest. heroin week per prior of sixteen punishments of the alternative question
Addressing (Pen. Code, months, degree burglary or two or three second years re- 461, 18), the maximum. He officer recommended probation §§ voluntary cooperation defendant’s mitigation, ferred to one factor (Cal. Court, rule to arrest. Rules subsequent with authorities factors in aggravation: to seven 423(b)(3).) The referred report victims, (3) (2) premeditation, crimes involved the taking multiple value, and defendant had numerous great monetary property convictions, (5) had been committed to the California Rehabilita- Center, committed, were tion on when the parole burglaries was (7) had unsatisfactory parole performance.
Following the court found the factor argument, single mitigating the first denied and be- probation, four factors. court aggravating cause of factors sentenced defendant to three aggravating years conviction, each the terms to run concurrently.
Defendant urges that of rules 421 423 are contrary VI, powers granted the Judicial our Council article section 6 of Constitution and that the direction to such rules lacks proper standards legislative power. an invalid
Prior to system a of indeterminate sentences was followed California. the Legislature enacted the Determinate Sentenc (Stats. 1976, Act ing 1139) ch. adopting system specification three possible (Pen. terms of imprisonment Code, for each offense *5 1170, (a)(2)). subd. determining term court impose, § “the shall order imposition term, of the middle unless there are circum stances in aggravation (Pen. or of mitigation Code, 1170, the crime.” § subd. (b).) The Legislature directed the Judicial Council to “promote uniformity” sentencing adoption rules providing criteria for tri al judge consideration regarding imposition of lower or upper prison (Pen. Code, terms. 1170.3, (a).)1 subd. The statutory authorization permits the council to adopt rules establishing circumstances in aggra vation and mitigation relating the crime the defendant.
(People
Harvey
P.2d 396];
People
Cheatham
et
seq [153
firearm, taking damage, an excessive or great bodily or the infliction of injury.” for the Superior Rules Sentencing adopted Council
The Judicial con- court must Court, 401-453.) The trial (Cal. rules Courts. Rules also consider rules and may in the enumerated sider the criteria stated on the the decision and related to reasonably additional criteria (Id. justified only term of the Selection record. a preponderance established by are if circumstances aggravation selection Similarly, in mitigation. circumstances outweigh evidence and are es- if circumstances only term is justified of the lower outweigh evidence a preponderance tablished in aggravation. circumstances rule 423 circumstances in aggravation,2 circumstances
Rule lists in mitigation.3 aggravation include: “Circumstances in provides: 2Rule 421 crime, including that: “(a) relating the fact to the Facts violence, harm, great bodily great bodily threat of great “(1) crime involved The callousness, harm, or high degree cruelty, viciousness disclosing a or other acts chargeable under section 12022.7. charged as an enhancement
whether or not or weapon at the time of the commission “(2) with or used a The defendant was armed crime, section charged chargeable as an enhancement under or not or whether 12022 or 12022.5. “(3) particularly vulnerable. The victim was The crime The defendant induced others “(4) “(5) multiple involved victims. or participate in the commission of the crime in its commission. leadership participants of other occupied position or dominance witnesses, or dissuaded wit- “(6) unlawfully prevented The defendant threatened way illegally with perjury, any or in other interfered testifying, from suborned nesses the judicial process. for which consecutive sentences “(7) was convicted of other crimes The defendant being imposed. which concurrent sentences are imposed been but for could have which the crime was car- “(8) sophistication professionalism or with planning, out, facts, premeditation. ried or other indicate “(9) in the commission of the crime. The defendant used or involved minors taking damage great “(10) or actual mone- attempted crime involved an value, charged chargeable an enhancement under section tary or not as whether *6 12022.6. “(11) “(12) large quantity of contraband. The crime involved a The defendant took trust or confidence to commit advantage position of a the offense. defendant, including “(b) “(1) relating the fact that: Facts to the danger a engaged pattern of violent conduct which indicates serious He has in a society. to adjudications “(2) as an adult or of commission prior The defendant’s convictions increasing or seriousness. juvenile crimes as are numerous charged charge- “(3) prior prison terms whether or not or The defendant has served enhancement under section 667.5. able as an “(4) parole when he committed the crime. probation defendant was on or The The defendant’s unsatisfactory.” “(5) probation parole or was prior performance include: provides:
3Rule 423 “Circumstances crime, “(a) relating including the that: Facts to the fact “(1) passive participant played or a minor role in the crime. The defendant was a VI, Constitution provides part: Article section 6 of California shall survey judi- “To the administration of the council improve justice to the Governor and cial business and make recommendations annually administration, rules court Legislature, adopt practice proce- dure, not with statute other perform inconsistent functions prescribed by statute.” the council without further provision empowers constitutional administration, authorization to rules for court “adopt prac-
tice and not with statute.” The additional procedure, inconsistent provision prescribed the council other functions permitting “perform statute” establishes that the council additional func- by may perform tions when authorized by Legislature.
The fact that the direct “rules” is limited to grant power adopt administration, “court not practice procedure” does mean Legislature not to the council additional grant power rules, substantive matters. This section is including governing council, limitation, in terms phrased of a to the not grant power is a to the concluding phrase general grant “(2) initiator, willing participant, aggressor The victim was an provoker or incident. “(3) circumstance, The crime great was committed because of an unusual such as provocation, unlikely which is to recur. “(4) participated The defendant in the crime under circumstances of coercion or du- ress, partially amounting or his conduct was excusable for other some reason not to a defense. “(5) A defendant apparent predisposition with no to do so was induced others to participate in the crime. “(6) damage The defendant persons proper- exercised caution to avoid harm to or ty, small, money or the amounts of property deliberately taken were or no harm was against done or threatened the victim. “(7) taken, right The defendant believed he property had a claim or to the or for oth- mistakenly er reasons legal. believed his conduct was “(8) The provide family was motivated a desire to necessities for his defendant himself. “(b) “(1) defendant, relating including Facts to the the fact that: record of criminal conduct consider- insignificant prior He has no record or an ing recency frequency crimes. “(2) suffering physical signifi- The defendant was from a mental or condition that cantly culpability reduced his for the crime. “(3) acknowledged voluntarily wrongdoing prior The defendant to arrest or at an *7 stage early process. of the criminal “(4) ineligible probation ineligibility The defendant is and but for the would have granted probation. been “(5) The defendant made restitution to the victim. “(6) good.” prior performance probation parole The defendant’s was
712 the ex- functions. Because to additional the council perform
authorize rules for court adopt the council to press provision authorizing without “administration, adoption rule permits practice procedure” authorization, read as words should be quoted express legislative of authori- legislative act the absence the council’s to limiting power to authority zation, Legislature’s general limitation on the and not a the concluding confirmed expressly by on state power agencies confer statute.” prescribed by to other functions phrase “perform to the council power grant authority of VI, sec article authorized directly in addition to those adopt rules 6, the direct Under section cases. tion 6 has been recognized inconsis limited to rules “not rules is adopt procedural authorization (1972) 6 Cal. 3d statute,” In re McKim Marriage and in tent with 140, the court rec 678, 868], 493 P.2d 673, 4 Cal.Rptr. footnote [100 had authorized the of statute that the Legislature by ognized (See also In re Mar other statutes. superseding council to 228, re (1978) Cal.Rptr. 63]; 233 Cal.App.3d 86 Lusk riage [150 365, (1976) 357, Cal.Rptr. 4fn. Cal.App.3d 54 Fink Marriage [126 675, 3 fn. Cal.App.3d Dover 626]; Marriage In re [93 VI, of article is no violation there 384].) We conclude Cal.Rptr. section 6. occurs when legislative power
An unconstitutional unrestricted au an administrative agency confers upon the Legislature (Clean Constituency Air decisions. policy to make fundamental thority (1974) 11 3d Bd. Cal. State Air Resources v. California Cal.2d v. Yokum Kugler Cal.Rptr. 617]; upon rests P.2d “This doctrine 376 [71 the truly must itself resolve body effectively premise that the delegat by explicitly escape responsibility issues. It cannot fundamental an effective failing establish function to others ing decisions.” policy of its implementation the proper mechanism to assure Yokum, 376-377.) at pp. supra, v. (Kugler does legislative power delegations prohibiting The doctrine to an administrative agency, reasonable grants not invalidate use and to guide power’s are established safeguards when suitable v. Co. Public (Southern Pac. Transportation misuse. against protect 189, 556 P.2d Com. Utilities Bd., Air Resources State Constituency Clean Air California El Dor- 817; County Younger ex rel. 3d People 11 Cal.
713 553, (1971) 480, 487 P.2d The Cal.Rptr. 5 Cal.3d 507 ado [96 determinations, but after must make the fundamental policy Legislature the a yardstick guiding the and declaring legislative goals establishing rules administrator, adopt it the administrator and may authorize the it the of promote purposes legislation carry regulations (1981) 168, v. Brown 29 Cal.3d (Pacific into effect. Foundation Legal 487, Constituency Air v. 1215]; 201 624 P.2d Clean Cal.Rptr. [172 Bd., 817; 801, 3d 11 Cal. Kugler Air Resources supra, State California Yokum, 371, 376.) Moreover, 69 standards for v. Cal.2d supra, forth; need be set expressly administrative statute not application City the v. may implied statutory purpose. (Birkenfeld be they 129, 465, (1976) 550 Cal.Rptr. 168 P.2d Berkeley Cal.3d [130 818, 16 Cal.3d Turner v. Board Trustees 1001]; 71 Cal.2d 1115]; 548 P.2d In re Marks re Petersen P.2d 24].) 185-186 [331 indeterminate sentences to deter system from the
Changing terms, the sentences and the alternative made fixing Legislature minate terms to be fixed by choosing the fundamental decision that were policy of circumstances relating one of the alternatives on basis (See 3d Cal. People Harvey, supra, crime defendant. Cheatham, 758; seq.) 833 et supra, People cri establishing Council to adopt directed the Judicial Legislature to promote or lower terms order teria for imposing (Pen. 1170.3, (a)(2).) subd. While promotion Code uniformity. § a sufficient stan some not provide circumstances “uniformity” in the correlative dard, the standard established Legislature (b), 1170, subdivision providing Penal section Code provision or miti aggravating absence or presence the criteria be based on the circumstances. gating Judi- the circumstances. sufficiently precise
The standards are membership including justices judges its cial Council because of situ- uniquely sentences is determining who have extensive experience Moreover, to the the legislative policy. ated to implement Act, had conducted seminars the council Sentencing of the Determinate (See in criminal cases. sentencing practices judges and institutes for circumstances, be if would questionable, it Code, In the Gov. qualifications agency unwise, experience not to reject it chose to criteria when the detailed impose insist that the Marks, (See In re sentencing. method of new *9 714 31, agencies
Cal.2d broad to delegations public enjoying Similar upheld. to the have been legislative policy the expertise implement 52-53 of status for narcotic (E.g., pp. outpatient id. [determination Com., Co. v. Public Utilities addicts]; Transportation Southern Pac. 308, [public necessity].) 18 Cal.3d 313 convenience it, the rejected When the case was before Court pending Appeal^ counsel, claims that he was denied effective assistance of defendant’s defective, trial erred that was that the court probation report the taking convictions and finding circumstances aggravating value, that it failed to find additional property great monetary also deter Appeal circumstances Court mitigation. mined the erred in the factor of finding aggravating trial court that not for resen that the error did remand multiple require victims but these issues Appeal’s We with the Court of resolution of tencing. agree (See Ranch v. Agricul its reference. reasoning by Highland Cal.3d tural Bd. Labor Relations [176 633 P.2d Meredith People [175 46].) is affirmed. judgment Tobriner, J.,* Richardson, J., Kaus, J., and concurred. this stated: “In
NEWMAN, J., Concurring.
court
Nearly
years ago
of Eure-
the
commissioners
port
the creation of
board
harbor
ka,
1869-70,
upon
it was
confer
attempted
page
Statutes
reg-
of such rules and
for
violation
impose penalties
any
board power
it, not
creating
to the act
pursuant
as that board should make
ulations
$500.
violation,
sum
This
was
provision
the
any
for
one
exceeding,
the
of Board
Harbor Commission-
case
declared unconstitutional
ers, etc.,
P.
at p. I concur with I that here because have concluded Penal majority Code section 1170.3 does not within the delegate “penal authority” means, Gilgert of the I meaning opinion. By support no would though, Commissioners, inference either any that or Board Harbor Gilgert (Cf. Gellhorn, has now been overruled. W. Administrative Pre- Penalties, scription and 1970 Wash.U.L.Q. 268: Imposition of “Administrative Offense.”) Prescription Penalty to An Attaching addition,
In it should be noted with that precedents dealing dele gation (see, of adjudicative power ante e.g., maj. opn., p. In re citing Marks 52-53 P.2d 441], Southern Pac. Public Transportation Co. v. Utilities Com. us 289]) rarely guide
when we are (See concerned with the delegation legislative power.
Davis, (2d. 3:10; 1978) Administrative Law Treatise ed. Newman & (fn. Surrey Legislation 620.) pp.
BIRD, C. J. I respectfully dissent.
I. In 1170.3, enacting Penal Code section the Legislature delegated the Judicial Council the task of what legislating crimes are aggravated and what crimes are In mitigated felonies. so doing, Legislature failed to make the general policy decisions to determine necessary what factors justify a variance from the middle term. the Judicial Although Council’s role VI, as set forth in article section 6 of the California Con- stitution is to procedural rules, expanded has Legislature limited role to include the of rules which define essentially substantive law. criminal
The Legislature has given its the Judicial Council define to be aggravating factors considered all sentenc- mitigating by ing judges, without hint as to factors the any what deemed imprisonment the terms of important to increase decrease
sufficiently This Council general places square- for felonies. the Judicial delegation by in the business of law unfettered ly making, substantive places This also court in an guidance. general reviewing method the court can by There is no which decide impossible position. are with the if the rules formulated the council consistent by Legisla- ture’s will. There in the relevant statutes which to nothing against measure factors drafted council. aggravating mitigating whether the Judicial Council choose deciding aggravat courts, the trial are to be considered mitigating factors ing *11 powers on the Judicial Council’s must constitutional limitations placed has limited to constitutionally be understood. The council’s been administration, not inconsistent practice procedure, “rules for court ” (Cal. VI, Const., rule 6.) with .... art. Substantive making statute § been mandate of the beyond has to be constitutional always thought (See McAllaster, Power Be council. Should Given to Rule-Making 215, 220.) Bar J. the Courts? State in rules 421 and 423 are substantive in na- sentencing criteria The trial court’s discretion is limited statute sentencing by only
ture. that an term not be unless there may imposed the extent or lower upper aggravation mitiga- has been a factual of circumstances finding (Pen. Code, (b).) A rule subd. Judicial Council specifies tion. it must be used in by that the factors drafted adopted (Cal. term. Rules of determination lower any impose Court, 423 thus 409.) listed in become rule The factors rules 421 determination is re- the method which the by aggravation/mitigation public These establish a mandatory policy solved. factors respect. the trial must In this courts aggravation the role of has taken on improperly legislating the Judicial Council way, VI, defined article outside its functions as in an area constitutional the state section 6 of Constitution. VI, other may “perform article section
The Judicial Council under
However,
not del-
statute.”
prescribed
functions
(Clean Air
bodies.
nonrepresentative
decisions to
policy
egate general
(1974) 11 Cal.3d
Air
Bd.
v.
State
Resources
Constituency
California
This limitation on
816-817
largely
remainder
merely
is not
delegation
vestigial
legislative
(See
v. Austin
Dougherty
doctrine.
“nondelegation”
repudiated
requirement
It is a
The real deter policy make fundamental unrestricted authority Council “the Air Resources (Clean State Constituency Air minations.” California Bd., so, 816.) at If an unconstitutional p. supra, (Ibid.) power has occurred. of writ- Council the task statute which to the Judicial delegates 1170.3, on its face criteria, section does not Penal Code
ing sentencing for the provide guidance the necessary “adequate yardstick” Re- Air (See Clean Air State Constituency council.1 California Bd., in which a sources There is no p. way Cal. 3d to determine judicial review of the criteria can be undertaken council’s if reflect as it the classifica- pertains to they general policy *12 tion of crimes in terms of or aggravation punishment. Penal 1170.3. What gleaned
Such a cannot be from Code section policy the in rules thinks about the of the factors Legislature adequacy any the term is not upper of an or lower justify imposition capable of ascertainment. the reference to majority’s attempt necessary
The to find standard by (b) Penal Code section is Section subdivision tautological. (b)
subdivision states that the court shall merely sentencing impose middle of three terms or unless there are circumstances aggravation this the real mitigation. majority’s provision reliance on misses point. Which of the many factors an offense or an offender concerning are imposition upon different sentences offenders who justify of the same crime? the numerous defined guilty by Whether factors 1170.3, (a) provides: Penal Code section Judicial Council shall subdivision “The promote uniformity sentencing by: seek under Section judge “(a) providing the trial criteria for consideration of to: regarding the time of the court’s decision “(1) deny probation. Grant or “(2) Impose prison the lower or term. “(3) Impose concurrent or consecutive sentences. “(4) prior prison an additional Consider sentence for terms. using “(5) being deadly weapon, Impose an additional sentence for armed with a firearm, taking damage, great bodily injury.” an excessive or the infliction will is no more with the Legislature’s
Judicial Council are consistent (b) refer- subdivision than by reference to section answerable 1170.3. ence to section ap- is the Legislature’s contrast to this general marked decision, the detention discretionary judicial to another
proach petitions are the subjects and who custody who are taken into minors area, the Code, 602). In this (Welf. Inst. law & a violation of alleging § make rules to govern statute to has been directed by Judicial Council However, Code, (Welf. & Inst. “practice procedure.” § which must exist statute the basic grounds has Legislature provided Code, 635.)2 In that (Welf. & Inst. before a minor be detained. the council. necessary guidance statute the provided Council not The Judicial general delegation. so it avoided a By doing, the legislative which is consistent with from a rule precluded adopting a minor’s deten- are sufficient to justify determination of what grounds (See Court, 1327.) If challenged, propriety Rules of rule tion. Cal. reference to Welfare in rule 1327 can be judged by factors Institutions Code section 635. 1170, subdivision Penal Code sections 1170.3 or
Contrast this with (b), which measure whether rules which no basis on give has not made the proper body 423 meet the intent. The Legislature’s are to be considered grounds difficult decisions as to admittedly term of mitigated an justify imposition aggravated imprisonment. *13 provides: Code section 635 “The court will examine such 2Welfare and Institutions
minor,
having
knowledge,
guardian,
person
his
or
relevant
hear such rel
parent,
other
minor,
guardian
present,
or their counsel desires to
parent
evant evidence as the
and,
his
or
juvenile
of the
court or has
appears
unless it
that such minor has violated an order
escaped
juvenile
from
of the
court or that it is a matter of immediate
the commitment
reasonably necessary
urgent necessity
protection
minor or
for the
for the
of such
person
be detained or that such minor
protection
property
or
of another that he
court,
likely
jurisdiction of the
court shall make its order re
is
to flee to avoid the
the
leasing
custody.
such minor from
considered,
conjunc-
alleged
may
gravity of the
offense
be
in
“The circumstances and
factors,
urgent
it
of immediate and
tion with other
to determine whether
is a matter
necessary
necessity
protection
reasonably
protection
of the minor or
for the
for the
person
property of another that the minor be detained.”
the
or
six-year
mitigated
aggravated
terms
In contrast
to the
difference between some
imprisonment,
detention authorized
this statute
not extend more than fifteen
(In
re Robin M.
hearing.
II. A in this standards for deter- separate proper issue case concerns in error has sentencing when remand is cases where mining necessary and has important spawned occurred. This issue is an one recurring a number of decisions. Appeal Court re-
Whether a must reversed and a cause remanded for be judgment court in sentencing upon improper due to error the trial relying find or in unsupported aggravation, refusing supported factors factors, Watson be with the test for must decided accord mitigating Watson v. (People prejudicial error. Const., VI, 13.) is, That must reviewing
P.2d Cal. art. court if more reasonably determine “it is that a result favorable probable er- would have been reached in the absence of the appealing party Watson, (People 46 Cal.2d at p. ror.” Watson error in the con- existence of determining
text, however, it be Code section must remembered Penal (b) of the mid- subdivision creates a statutory preference imposition Also, 439(b) dle term.3 rule states that term upper “[selection aby if ... are established justified only aggravation circumstances circumstances preponderance outweigh evidence mitigation.” cir- than fact number of aggravating mitigating that a greater It is weight not determinative. be established is
cumstances may whether imposi- to the factors which governs that the sentencer accords This requires term is justified. tion of the or lower “[a] factors. (People multiple qualitative analysis” quantative *14 Cal.Rptr. 193], original 501 Lambeth (1980) Cal.App.3d 112 [169 italics.) (b) judg provides pertinent part: 3Penal Code “When a section subdivision terms, imposed possible three imprisonment specifies
ment of be and the statute is to term, are imposition the court shall order of the middle unless there circumstances aggravation mitigation or crime.” 720 term, when of the middle preference imposition for statutory circumstances must with the
coupled requirement aggravating of the imposition circumstances before aggravated outweigh mitigating or term is Consideration of un proper, presumption. improper creates factors, mitigating or failure to find supported aggravating which an individual sentenced present, prejudices circumstances are held, have so remand upper term. Court of decisions Many Appeal considered, for an was even where improper when factor ing sentencing present, and no circumstances were “be other aggravating mitigating fact was it could not be determined whether the twice-used cause (1980) v. Smith 101 sentencing (People determinative for the court.” accord, v. Lawson People 968 Cal.App.3d Cal.Rptr. [161 (1980) v. Cal.App.3d Cal.Rptr. 764]; People 107 748 [165 Garfield 475 v. Roberson Cal.App.3d Cal.Rptr. 869]; People [154 777].) This rule is particular Cal.App.3d were valid factors “sufficient to apt remaining because even if there ly Roberson, not do so.” (People find court is bound to aggavation, 893.) at Cal.App.3d p. supra,
Also, factor where a court finds that a established reviewing properly court, and an improper was rejected by mitigation utilized, was has been ordered. unsupported factor in remand aggravation (Pe 670-672 Cal.App.3d v. Covino ople if the im determines Any merely other standard in the absence unsupported arbitrary would be posed wholly sentence test with the Watson square prejudice. of error does not term in the instant case was based Since the imposition factor, majority recog at as the aggravating on least one unsupported is 714), required. at a remand for sentencing nize (maj. opn. p. of circumstances question to a new “Appellant hearing entitled are ex at which all the factors mitigating aggravation facts excluded [unsupported from which considered and pressly are] Covino, p. Cal.App.3d (People from consideration.” J., Mosk, concurred.