# People v. Jordan

> California Supreme Court · July 31, 1986 · 42 Cal. 3d 308

URL: https://www.frixlaw.com/law-library/cases/9548498

## Case

- **Full name:** The PEOPLE, Plaintiff and Appellant, v. JAMES JORDAN, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** July 31, 1986
- **Citations:** 42 Cal. 3d 308; 228 Cal. Rptr. 197; 721 P.2d 79; 1986 Cal. LEXIS 220
- **Precedential status:** Published
- **Opinion:** Dissent by Lucas
- **Judges:** Broussard, Lucas
- **Cited by:** 187 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548498

## Opinion text

LUCAS, J.
I respectfully dissent. The majority concludes that the trial court properly exercised its discretion in striking four 1-year prison term enhancements pursuant to its authority under Penal Code section 1170.1, subdivision (h). 1 I would conclude that, in light of defendant’s extensive prior criminal record, the trial court erred in failing to specify adequate mitigating reasons for striking the enhancements, as required by section 1170.1. Thus, as suggested by the concurring opinion of Justice Newsom in the Court of Appeal herein, the cause should be remanded to the trial court with directions to reconsider its sentence and state more fully its reasons for striking the enhancements. 2 (See ante, fn. 7.)
One of the primary purposes underlying the determinate sentencing law, and the main legislative purpose in enhancing sentences based on prior convictions, was to increase the penalties for repeat offenders and thereby hopefully deter recidivism. (See People v. Espinoza (1979) 99 Cal.App.3d *320 59, 74 [ 159 Cal.Rptr. 894 ].) Section 667.5, subdivision (b), provides in relevant part: “[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;...” (Italics added.) In order to mitigate the severity of this mandatory enhancement of sentences, the Legislature also granted the sentencing court limited discretion, under section 1170.1, subdivision (h), to strike the additional punishment if the court finds “circumstances in mitigation” and “states on the record its reasons.” Absent a proper exercise of the trial court’s limited discretion, the duty to impose an enhanced sentence is mandatory. (See People v. Espinoza, supra, 99 Cal.App.3d at p. 75; People v. Johnson (1979) 95 Cal.App.3d 352, 356 [ 157 Cal.Rptr. 150 ].)
A careful review of this case convinces me that the trial court’s stated reasons for striking the enhancements were inadequate in light of defendant’s extensive past criminal history. I recognize, as does the majority, that the discretionary power vested in the trial judge to strike enhancements ordinarily may not be disturbed on appeal unless an abuse of discretion is shown. (Ante, p. 315.) However, I fail to see how the reasons specified by the trial court constitute “circumstances in mitigation” as required by section 1170.1, subdivision (h). Defendant appears to be precisely the type of recidivist that the Legislature had in mind when it set up the enhancement scheme for repeat offenders. (See In re Kelly (1983) 33 Cal.3d 267, 272 [ 188 Cal.Rptr. 447 , 655 P.2d 1282 ].)
In determining whether the circumstances in mitigation are adequate, the defendant’s entire criminal history is relevant. Here, defendant’s four prior prison terms for felony convictions, which would have called for four 1-year enhancements, were for serious crimes: burglary, escape, possession of stolen property and possession of forged instruments. In addition, according to defendant’s probation report, he has suffered at least 10 other felony convictions, as well as several other convictions for minor crimes such as public drunkenness and petty theft. Defendant’s criminal history spans three pages of his probation report and dates back to the 1940’s! Suffice it to say, defendant is an active, “dedicated” recidivist.
Defendant’s probation report (recommending denial of probation) also is instructive in analyzing his present rehabilitative state. The report quotes defendant as conceding that ‘ ‘ after 16 failures (prison commitments) it should be obvious that he [defendant] is not capable of finding a job or leading a productive life.” The report states that the present criminal offenses were committed only a short time after he was paroled, and that “defendant has no ability to adjust on parole.” Defendant is an admitted alcoholic; according *321 to the probation report he somehow managed to continue his drinking in prison and was generally categorized as “a one man disaster during his short appearances in the community.” It is apparent defendant has little rehabilitative motivation or ability.
After examining defendant’s background as a basis upon which to measure any mitigating circumstances, I would conclude that the trial court’s stated reasons in mitigation for striking the enhancements are completely inadequate. First, the trial court stated that defendant’s prior criminal record consisted of a “series of crimes that . . . have, for the most part, been minor crimes—petty theft and small forgery crimes.” As previously indicated, although defendant has been convicted of several minor crimes, he has in addition been convicted of 14 felonies including his recent convictions for burglary, escape, possession of stolen property and possession of forged instruments. Thus, the trial court’s categorization of defendant’s past criminal history as consisting of primarily “minor crimes” seems inaccurate.
Second, the trial court suggested that a nine-year sentence (five years for the robbery and four 1-year enhancements) may be unduly harsh for a person of defendant’s age. The majority acknowledges that this factor is one “which the People here correctly characterize as deserving little or no weight.” (Ante, p. 316.) I agree. Indeed, the record fails to indicate that defendant was in ill health, weak or frail. On the contrary, the probation report states defendant was in relatively good health for his age, other than his chronic alcoholism.
Finally, the trial court found that the facts of the present case were themselves mitigating. Although these facts are in dispute, the trial judge apparently accepted defendant’s version of the facts, namely, that the robbery and assault with a deadly weapon arose over a dispute as to who should pay for a hamburger. Even so, as the trial court acknowledged, the dispute escalated into “a robbery under the law.” Thus, in light of defendant’s extensive criminal history and the trial court’s own acknowledgment that, regardless of motive, defendant committed a violent felony, the reasons given for striking the mandatory enhancements were inadequate. 3
A trial court does not possess unbounded discretion to be lenient. As the People suggest, defendant’s criminal background may constitute an almost insurmountable obstacle to finding adequate circumstances in mitigation of *322 the additional punishment required by section 1170.1. Certainly such an obstacle was not overcome by the trial court’s statement of reasons herein. Therefore, I would remand the cause to the trial court for reconsideration of its sentence after stating whatever proper mitigating circumstances are found to exist.
All further statutory references are to the Penal Code.
The Court of Appeal majority opinion made a specific finding that there were “no ameliorative, or mitigating, circumstances in the record, reasonably supportive of the trial court’s discretion in striking the enhancements,” and remanded for actual imposition of the enhancement terms. I do not believe the matter is so clear as to require an outright reversal of the trial court’s judgment without first providing the trial court with an opportunity to specify more fully its reasons for striking the enhancements.
It is interesting that, although the probation officers were also aware of the underlying facts, the only factor listed in mitigation in the probation report was that defendant may have been suffering from a mental or physical condition (chronic alcoholism) that reduced his culpability for the crime. This possible mitigating factor was not included among the trial court’s reasons for striking the enhancements.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548498. Public record. Not legal advice.