People v. Wright

BIRD, C. J.

I respectfully dissent.

I.

In enacting Penal Code section 1170.3, the Legislature delegated to the Judicial Council the task of legislating what crimes are aggravated and what crimes are mitigated felonies. In so doing, the Legislature failed to make the general policy decisions necessary to determine what factors justify a variance from the middle term. Although the Judicial Council’s role as set forth in article VI, section 6 of the California Constitution is to adopt procedural rules, the Legislature has expanded that limited role to include the adoption of rules which essentially define substantive criminal law.

The Legislature has given its power to the Judicial Council to define the aggravating and mitigating factors to be considered by all sentencing judges, without any hint as to what factors the Legislature deemed *716 sufficiently important to increase or decrease the terms of imprisonment for felonies. This general delegation places the Judicial Council squarely in the business of substantive law making, unfettered by legislative guidance. This general delegation also places a reviewing court in an impossible position. There is no method by which the court can decide if the rules formulated by the council are consistent with the Legislature’s will. There is nothing in the relevant statutes against which to measure the aggravating and mitigating factors drafted by the council.

In deciding whether the Judicial Council may choose which aggravating and mitigating factors are to be considered by the trial courts, the constitutional limitations placed on the Judicial Council’s powers must be understood. The council’s power has been constitutionally limited to “rules for court administration, practice and procedure, not inconsistent with statute .... ” (Cal. Const., art. VI, § 6.) Substantive rule making has always been thought to be beyond the constitutional mandate of the council. (See McAllaster, Should the Rule-Making Power Be Given to the Courts? (1931) 6 State Bar J. 215, 220.)

The sentencing criteria in rules 421 and 423 are substantive in nature. The trial court’s sentencing discretion is limited by statute only to the extent that an upper or lower term may not be imposed unless there has been a factual finding of circumstances in aggravation or mitigation. (Pen. Code, § 1170, subd. (b).) A Judicial Council rule specifies that the sentencing factors drafted and adopted by it must be used in any determination to impose the upper or lower term. (Cal. Rules of Court, rule 409.) The factors listed in rules 421 and 423 thus become the method by which the aggravation/mitigation determination is resolved. These factors establish a mandatory public policy for aggravation and mitigation which the trial courts must respect. In this way, the Judicial Council has improperly taken on the role of legislating in an area outside its constitutional functions as defined by article VI, section 6 of the state Constitution.

The Judicial Council under article VI, section 6 may “perform other functions prescribed by statute.” However, the Legislature may not delegate general policy decisions to nonrepresentative bodies. (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 816-817 [ 114 Cal.Rptr. 577 , 523 P.2d 617 ].) This limitation on legislative delegation is not merely the vestigial remainder of the largely repudiated “nondelegation” doctrine. (See Dougherty v. Austin (1892) 94 Cal. 601 , 606-607 [ 28 P. 834 , 29 P. 1092 ].) It is a requirement *717 which the courts enforce “to preserve the representative character of the process of reaching legislative decision.” (Kugler v. Yocum (1968) 69 Cal.2d 371, 375-384 [ 71 Cal.Rptr. 687 , 445 P.2d 303 ]; see generally Stewart, The Reformation of American Administrative Law (1975) 88 Harv.L.Rev. 1667, 1671-1681.)

The real issue is whether the Legislature conferred upon the Judicial Council “the unrestricted authority to make fundamental policy determinations.” (Clean Air Constituency v. California State Air Resources Bd., supra, 11 Cal.3d at p. 816 .) If so, an unconstitutional delegation of power has occurred. (Ibid.)

The statute which delegates to the Judicial Council the task of writing sentencing criteria, Penal Code section 1170.3, does not on its face provide the necessary “adequate yardstick” for the guidance of the council. 1 (See Clean Air Constituency v. California State Air Resources Bd., supra, 11 Cal. 3d at p. 817 .) There is no way in which a judicial review of the council’s criteria can be undertaken to determine if they reflect general legislative policy as it pertains to the classification of crimes in terms of mitigation or aggravation of punishment. Such a policy cannot be gleaned from Penal Code section 1170.3. What the Legislature thinks about the adequacy of any of the factors in rules 421 and 423 to justify the imposition of an upper or lower term is not capable of ascertainment.

The majority’s attempt to find the necessary standard by reference to Penal Code section 1170, subdivision (b) is tautological. Section 1170, subdivision (b) merely states that the sentencing court shall impose the middle of three terms unless there are circumstances in aggravation or mitigation. The majority’s reliance on this provision misses the real point. Which of the many factors concerning an offense or an offender justify the imposition of different sentences upon offenders who are guilty of the same crime? Whether the numerous factors defined by the *718 Judicial Council are consistent with the Legislature’s will is no more answerable by reference to section 1170, subdivision (b) than by reference to section 1170.3.

In marked contrast to this general delegation is the Legislature’s approach to another discretionary judicial decision, the detention of minors who are taken into custody and who are the subjects of petitions alleging a violation of law (Welf. & Inst. Code, § 602). In this area, the Judicial Council has been directed by statute to make rules to govern “practice and procedure.” (Welf. & Inst. Code, § 265.) However, the Legislature has provided by statute the basic grounds which must exist before a minor may be detained. (Welf. & Inst. Code, § 635.) 2 In that statute the Legislature provided the necessary guidance to the council. By so doing, it avoided a general delegation. The Judicial Council is not precluded from adopting a rule which is consistent with the legislative determination of what grounds are sufficient to justify a minor’s detention. (See Cal. Rules of Court, rule 1327.) If challenged, the propriety of the factors in rule 1327 can be judged by reference to Welfare and Institutions Code section 635.

Contrast this with Penal Code sections 1170.3 or 1170, subdivision (b), which give no basis on which to measure whether rules 421 and 423 meet the Legislature’s intent. The proper body has not made the admittedly difficult decisions as to which grounds are to be considered to justify the imposition of an aggravated or mitigated term of imprisonment.

*719 While the Legislature’s reliance upon Judicial Council expertise is completely proper in enacting statutes which set forth the criteria to be used for a determination of aggravation or mitigation, a complete delegation to the Judicial Council of the power to formulate that policy is an unconstitutional delegation of power.

II.

A separate issue in this case concerns the proper standards for determining when remand is necessary in cases where sentencing error has occurred. This issue is an important and recurring one and has spawned a number of Court of Appeal decisions.

Whether a judgment must be reversed and a cause remanded for re-sentencing due to error by the trial court in relying upon improper or unsupported factors in aggravation, or in refusing to find supported mitigating factors, must be decided in accord with the Watson test for prejudicial error. (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]; Cal. Const., art. VI, § 13.) That is, the reviewing court must determine if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836 .)

In determining the existence of Watson error in the sentencing context, however, it must be remembered that Penal Code section 1170, subdivision (b) creates a statutory preference for imposition of the middle term. 3 Also, rule 439(b) states that “[selection of the upper term is justified only if ... circumstances in aggravation are established by a preponderance of the evidence and outweigh circumstances in mitigation.”

The fact that a greater number of aggravating than mitigating circumstances may be established is not determinative. It is the weight that the sentencer accords to the factors which governs whether imposition of the upper or lower term is justified. This requires “[a] quantative and qualitative analysis” of multiple factors. (People v. Lambeth (1980) 112 Cal.App.3d 495, 501 [ 169 Cal.Rptr. 193 ], original italics.)

*720 The statutory preference for imposition of the middle term, when coupled with the requirement that aggravating circumstances must outweigh mitigating circumstances before imposition of the aggravated term is proper, creates a presumption. Consideration of improper or unsupported aggravating factors, or failure to find mitigating circumstances which are present, prejudices an individual sentenced to the upper term. Many Court of Appeal decisions have so held, remanding for sentencing when an improper factor was considered, even where other aggravating and no mitigating circumstances were present, “because it could not be determined whether the twice-used fact was determinative for the sentencing court.” (People v. Smith (1980) 101 Cal.App.3d 964, 968 [ 161 Cal.Rptr. 787 ]; accord, People v. Lawson (1980) 107 Cal.App.3d 748 [ 165 Cal.Rptr. 764 ]; People v. Garfield (1979) 92 Cal.App.3d 475 [ 154 Cal.Rptr. 869 ]; People v. Roberson (1978) 81 Cal.App.3d 890 [ 146 Cal.Rptr. 777 ].) This rule is particularly apt because even if there were remaining valid factors “sufficient to find aggavation, the court is not bound to do so.” (People v. Roberson, supra, 81 Cal.App.3d at p. 893 .)

Also, where a reviewing court finds that a properly established factor in mitigation was rejected by the sentencing court, and an improper or unsupported factor in aggravation was utilized, remand has been ordered. (Pe ople v. Covino (1980) 100 Cal.App.3d 660, 670-672 [ 161 Cal.Rptr. 155 ].) Any other standard which merely determines if the imposed sentence would be wholly unsupported or arbitrary in the absence of error does not square with the Watson test for prejudice.

Since the imposition of the upper term in the instant case was based on at least one unsupported aggravating factor, as the majority recognize (maj. opn. at p. 714), a remand for sentencing is required. “Appellant is entitled to a new hearing on the question of circumstances in mitigation and aggravation at which all the mitigating factors are expressly considered and from which [unsupported facts are] excluded from consideration.” (People v. Covino, supra, 100 Cal.App.3d at p. 672 .)

Mosk, J., concurred.

Penal Code section 1170.3, subdivision (a) provides: “The Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by:

“(a) The adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing regarding the court’s decision to:

“(1) Grant or deny probation.

“(2) Impose the lower or upper prison term.

“(3) Impose concurrent or consecutive sentences.

“(4) Consider an additional sentence for prior prison terms.

“(5) Impose an additional sentence for being armed with a deadly weapon, using a firearm, an excessive taking or damage, or the infliction of great bodily injury.”

Welfare and Institutions Code section 635 provides: “The court will examine such minor, his parent, guardian, or other person having relevant knowledge, hear such relevant evidence as the minor, his parent or guardian or their counsel desires to present, and, unless it appears that such minor has violated an order of the juvenile court or has escaped from the commitment of the juvenile court or that it is a matter of immediate and urgent necessity for the protection of such minor or reasonably necessary for the protection of the person or property of another that he be detained or that such minor is likely to flee to avoid the jurisdiction of the court, the court shall make its order releasing such minor from custody.

“The circumstances and gravity of the alleged offense may be considered, in conjunction with other factors, to determine whether it is a matter of immediate and urgent necessity for the protection of the minor or reasonably necessary for the protection of the person or property of another that the minor be detained.”

In contrast to the six-year difference between some mitigated and aggravated terms of imprisonment, detention authorized by this statute may not extend more than fifteen judicial days past the minor’s detention hearing. (In re Robin M. (1978) 21 Cal.3d 337 [ 146 Cal.Rptr. 352 , 579 P.2d 1 ].)

Penal Code section 1170, subdivision (b) provides in pertinent part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”