People v. Shepeard

POCHÉ, J.

I concur in the judgment of this court which consists of the determination in part I that the trial court did not err in refusing to recall the sentence it had previously imposed on appellant. I do not join, however, any of the discussion in part II of the lead opinion; part II is logically inconsistent with part I and with the judgment of this court.

In part II, my colleagues find it “unnecessary” to decide what they have necessarily determined in the holding of part I: namely, that the trial court had subject matter jurisdiction over the task which we three praise it for exercising so well in part I. I submit you cannot have it both ways; either the trial court had jurisdiction to review the sentence it previously imposed, or it did not. By reviewing the trial court’s action on the allegedly disparate sentence, my colleagues and I have answered the jurisdictional question in the affirmative: (1) the trial court had jurisdiction under Penal Code section 1170, subdivision (a) 1 to review the sentence it imposed in light of the Board of Prison Terms’ determination that the sentence was disparate; and (2) the trial court, in exercising that jurisdiction, did so properly.

A convincing argument has yet to be made to support the view that bargained for sentences are exempt from the disparate sentence review procedure set forth in section 1170, subdivision (f). Perhaps that void stems from the clear intent of the Legislature that all sentences, whether bargained for or not, are to be subjected to disparate review. In other words, the legislation allows for no exception to that procedure.

My colleagues seem to admit that the statute in its literal terms applies to all sentences but contend that the Legislature could not have meant what it said because they believe such review would be “meaningless.” (See majority opn., ante, p. 587.)

It is not meaningless at all. That a sentence is negotiated does not guarantee that it will not be disparate when compared to other sentences imposed under the determinate sentence law (DSL). Where a negotiated sentence bears little or no resemblance to the quantum of punishment being imposed in similar circumstances throughout this state, it is the duty of the Board of Prison Terms to call that disparity to the attention of the trial court. The Legislature has said no more in the enactment of subdivision (f) of section 1170. Beyond that pronouncement, “the wisdom of the statutory sentencing scheme of the DSL is not an issue to be considered by this court. . . .” (In re Atiles (1983) 33 Cal.3d 805, 813 [ 191 Cal.Rptr. 452 , 662 P.2d 910 ].)

*591 My colleagues, however, do not stop here. Part II becomes a letter from them to the Legislature asking for deregulation of the sentencing industry which they view as a jural monopoly. They express a dislike for any review of any sentence by any person or persons not anointed with judicial oils. In this regard, my colleagues are quite candid in their agenda: “We are also mindful that a human judge is probably more responsible to the citizens of his or her community than a computer in Sacramento. We further note that this observation is equally applicable to all disparate sentence reviews and is not limited to review of only those sentences imposed pursuant to mutual agreement.” (See majority opn., ante, p. 588, fn. 9.) The “computer” referred to is presumably the Board of Prison Terms, a group of distinguished citizens appointed by the Governor and confirmed by the Legislature.

Part II of the majority opinion thus becomes extremely important because it turns the California Official Reports into the judicial equivalent of the OpEd page of your local newspaper. Appellate justices no longer decide only the issues necessary for resolution of the cases before them; now they can offer their views on various questions of the day which formerly were the province of the legislative and executive branches of our government.

A petition for a rehearing was denied July 15, 1985, and appellant’s petition for review by the Supreme Court was denied October 17, 1985. Bird, C. J., and Kaus, J., were of the opinion that the petition should be granted.

All further statutory references are to the Penal Code.