Zepeda v. Superior Court

Filed 11/13/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

NELSON CHAVEZ ZEPEDA,

Petitioner,

v.

THE SUPERIOR COURT OF THE A166159

CITY AND COUNTY OF SAN

FRANCISCO, (City & County of San Francisco

Super. Ct. No. 21001875)

Respondent;

THE PEOPLE,

Real Party in Interest.

This case presents several questions about Senate Bill No. 567 (2020–

2021 Reg. Sess.) (Senate Bill 567). Senate Bill 567 amended Penal Code

section 1170, subdivision (b)(2) (section 1170(b)(2)) 1 to provide that, when a

statute specifies three possible terms of imprisonment, the trial court cannot

impose a sentence exceeding the middle term unless it finds that a longer

sentence is justified by “circumstances in aggravation of the crime” and “the

facts underlying those circumstances” have been stipulated to by the

defendant or have been found true beyond a reasonable doubt by the jury at

trial. Before Senate Bill 567, under the sentencing scheme in place

since 2007, trial judges had the discretion to impose the lower, middle, or

1 All further undesignated statutory references are to the Penal Code.

upper term of imprisonment based on their own assessment of which term

best served the interests of justice, without making any factual findings. We

are asked to decide the following issues:

First, does the phrase “circumstances in aggravation” in

section 1170(b)(2) refer to the factors listed in California Rules of Court,

rule 4.421 (rule 4.421), promulgated by the Judicial Council? Put another

way, did the Legislature intend to delegate authority to the Judicial Council

to define what constitutes circumstances in aggravation for the purpose of the

jury’s consideration under section 1170(b)(2)?

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

2

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

(§ 288.4, subd. (b)); (2) arranging a meeting with a minor for lewd purposes

(§ 288.4, subd. (a)(1)); (3) sending harmful matter to a minor (§ 288.2,

subd. (a)(2)); (4) contacting a minor with the intent to commit a sexual offense

(§ 288.3, subd. (a)); and (5) committing a lewd act upon a child (§ 288,

subd. (a)). Chavez Zepeda is the minor’s uncle.

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 section 1170(b)(2) took effect.

In response to amended section 1170(b)(2), the prosecution filed a

motion to amend the information to allege various aggravating factors listed

in rule 4.421. Those factors were that: (1) the victim was particularly

vulnerable; (2) Chavez Zepeda was convicted of other crimes for which

consecutive sentences could have been imposed but for which concurrent

sentences are being imposed; (3) the manner in which the crime was carried

out indicates planning, sophistication, or professionalism; (4) Chavez Zepeda

took advantage of a position of trust or confidence to commit the offense; and

(5) Chavez Zepeda has engaged in violent conduct that indicates a serious

danger to society. (Rule 4.421(a)(3), (a)(7), (a)(8), (a)(11), (b)(1).)

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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 section 995. The motion argued that aggravating

factors must be supported by evidence at a preliminary hearing and were not

supported by sufficient evidence in this case. The motion further argued that

borrowing aggravating factors from rule 4.421 violates the separation of

powers clause under the California Constitution because they were drafted by

the Judicial Council for use by trial judges and were not meant for use by

juries. The motion included a brief argument that Chavez Zepeda was also

demurring to the aggravating factors “on the ground that they do not state a

public offense” as the factors under rule 4.421 were not authorized by statute.

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

4

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

“Penal Code section 995 allows a defendant to challenge an information

based on the sufficiency of the record made before the magistrate at the

preliminary hearing. [Citation.] In reviewing the denial of a Penal Code

section 995 motion to set aside an information, we ‘in effect disregard[] the

ruling of the superior court and directly review[] the determination of the

magistrate holding the defendant to answer.’ ” (Lexin v. Superior Court

(2010) 47 Cal.4th 1050, 1071–1072 (Lexin).) Where the issue raised in the

petition presents a pure question of law, our review is de novo. (People v.

Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1529.)

“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.)

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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 section 1170. The first began

in 1977 when the determinate sentencing law (§ 1170 et seq.) (DSL) went into

effect, replacing California’s system of indeterminate sentences with “a

system of specification of three possible terms of imprisonment for each

offense.” (People v. Wright (1982) 30 Cal.3d 705, 709 (Wright).) To

implement this system, section 1170, subdivision (b) provided that “ ‘the court

shall order imposition of the middle term, unless there are circumstances in

aggravation or mitigation of the crime.’ ” (Ibid. [quoting former § 1170,

subd. (b)].) Under this version of section 1170, the trial court was to

determine aggravating and mitigating circumstances by a preponderance of

the evidence. (People v. Sandoval (2007) 41 Cal.4th 825, 836 (Sandoval).)

The DSL directed the Judicial Council to “seek to promote uniformity in

sentencing” by “[t]he adoption of rules providing criteria for the consideration

of the trial judge at the time of sentencing regarding the court’s decision to

. . . [¶] (2) Impose the lower, middle, or upper prison term.” (§ 1170.3,

subdivision (a); see Wright, at p. 709.) Among the results of that delegation

of authority was what is now rule 4.421, entitled “Circumstances in

aggravation.” Rule 4.421(a) lists “[f]actors relating to the crime”;

rule 4.421(b) lists “[f]actors relating to the defendant,” and rule 4.421(c)

provides for consideration of “[a]ny other factors statutorily declared to be

circumstances in aggravation or which reasonably relate to the defendant or

the circumstances under which the crime was committed.”

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

6

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 section 1170 to give “trial judges broad discretion in selecting a

term within a statutory range, thereby eliminating the requirement of a

judge-found factual finding to impose an upper term. [Citations.] SB 40

amended section 1170 so that (1) the middle term is no longer the

presumptive term absent aggravating or mitigating facts found by the trial

judge; and (2) a trial judge has the discretion to impose an upper, middle or

lower term based on reasons he or she states.” (People v. Wilson (2008)

164 Cal.App.4th 988, 992.) Under section 1170, subdivision (b) as amended,

sentencing courts were to determine which of the three possible terms of

imprisonment “ ‘best serve[d] the interests of justice.’ ” (Wilson, at p. 992.)

Most recently, Senate Bill 567 amended section 1170, subdivision (b) to

make the middle term the maximum that may be imposed absent additional

findings. (§ 1170, subd. (b)(1).) To comply with Cunningham,

section 1170(b)(2) now provides that a court may impose the upper term only

if “there are circumstances in aggravation of the crime that justify the

imposition of a term of imprisonment exceeding the middle term, and the

facts underlying those circumstances have been stipulated to by the

defendant, or have been found true beyond a reasonable doubt at trial by the

jury or by the judge in a court trial.” In its analysis of Senate Bill 567, the

Senate Committee on Public Safety noted that the bill’s proponents “argue

that this change is necessary to ensure that harsher sentences receive the

greatest scrutiny and justification before they are imposed,” and that “[b]y

allowing aggravating factors to be submitted to the factfinder, defendants

will be better able to dispute the information on the record that may not be

7

true.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 567 (2021–2022

Reg. Sess.) Apr. 13, 2021, p. 4 (Sen. Com. Analysis).) 2

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 section 1170(b)(2)—specifically,

whether it refers to the aggravating factors listed in rule 4.421(a) and (b). He

contends that our interpretation of the statute should be guided by the

doctrine of constitutional avoidance, which provides that “a statute should

not be construed to violate the Constitution ‘ “ ‘if any other possible

construction remains available.’ ” ’ ” (People v. Garcia (2017) 2 Cal.5th 792,

804.) Arguing that it would raise serious separation-of-powers concerns if

section 1170(b)(2) referred to the factors in rule 4.421, Chavez Zepeda points

out that “the Legislature has enacted dozens of statutory aggravating factors,

some tied to individual offenses, and some with much wider applicability,”

many of which use the phrase “circumstance in aggravation” and refer

expressly to subdivision (b) of section 1170. These statutory aggravating

factors present no separation-of-powers problem because the Legislature

2 After Cunningham was decided, our state Supreme Court held that

the jury need find only one aggravating circumstance true in order to

authorize imposition of the upper term, at which point the sentencing court

was free to make additional factual determinations concerning aggravating

circumstances in the exercise of its discretion in selecting the appropriate

term from among those authorized. (Black, supra, 41 Cal.4th at pp. 815–

816.) Senate Bill 567, however, effectively prohibits the court from relying on

any aggravating circumstance that has not been found true by the jury,

unless it falls within the exception in section 1170, subdivision (b)(3), which

allows the court to “consider the defendant’s prior convictions in determining

sentencing based on a certified record of conviction without submitting the

prior convictions to a jury.”

8

itself has enacted them, so Chavez Zepeda argues that we should construe

the phrase “circumstances in aggravation” to refer only to statutory

aggravators and not to the additional factors listed in rule 4.421.

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

9

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 section 1170(b)(2),

without further elaboration, if it did not intend to include the aggravating

circumstances enumerated in rule 4.421. We presume that the Legislature

acts against the backdrop of all governing law, and in using the identical

phrasing that the Judicial Council did when addressing same topic, we do not

believe it is reasonable to view the Legislature’s choice of phrasing as a

coincidence. While Chavez Zepeda is correct that there are also many

statutory aggravating factors to which section 1170(b)(2) refers, he identifies

no basis to conclude that the Legislature determined when it enacted Senate

Bill 567 that those statutory aggravating factors alone were adequate to

achieve the goal of uniformity in sentencing or that judicial consideration of

the aggravating circumstances in rule 4.421 was no longer warranted.

Undermining any such hypothesis is the fact that Senate Bill 567 left

in place the language in section 1170, subdivision (a)(3), which tells courts to

apply the factors in rule 4.421. That subdivision requires courts to sentence

the defendant to “one of the terms of imprisonment specified” when the

statute specifies “three time periods,” i.e., a lower, middle, and upper term.

(§ 1170, subd. (a)(3).) The next sentence reads: “In sentencing the convicted

person, the court shall apply the sentencing rules of the Judicial Council.”

(Id., italics added.) Chavez Zepeda does not dispute that the italicized phrase

includes the aggravating factors in rule 4.421, but argues that this language

falls short of an express legislative authorization for the Judicial Council to

come up with factors for use by juries.

Accepting Chavez Zepeda’s argument, however, would effectively

10

nullify the provision that courts must apply the sentencing rules of the

Judicial Council. Under the amendments to section 1170(b)(2), sentencing

courts cannot apply rule 4.421’s aggravating factors unless the jury has first

made findings with respect to them. Chavez Zepeda argues that the factors

in rule 4.421 may still be relied on in a court trial, or in sentencing on a

guilty plea if the defendant has stipulated to them, and that they merely

“have no applicability to jury trials.” But this construction is inconsistent

with the statutory text because there is no carveout in section 1170,

subdivision (a)(3) for jury trials. Reading subdivision (a)(3) together with

subdivision (b)(2) compels the conclusion that the Legislature intended that

juries would now make findings on the aggravating circumstances in

rule 4.421.

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 section 1170.3, subdivision (a), which says that

“[t]he Judicial Council shall seek to promote uniformity in sentencing” by

“[t]he adoption of rules providing criteria for the consideration of the trial

judge at the time of sentencing.” (Italics added.) But for the reasons

discussed above, we find that section 1170(b)(2) unambiguously conveys the

Legislature’s intent to have the jury make findings about the truth of

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aggravating factors in rule 4.421, and it necessarily follows from that intent

that the Legislature also intended to provide the Judicial Council with the

authority to promulgate aggravating factors that the jury would be asked to

consider. The statute thus provides the necessary “indication” that the

Legislature intended to delegate authority for that purpose. (See People v.

Figueroa (1999) 68 Cal.App.4th 1409, 1415 (Figueroa); cf. Coastside Fishing

Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1205

[Legislature may lay down test or standard for the exercise of delegated

authority “expressly or by implication”].) Moreover, rule 4.421 still does

provide “criteria for the consideration of the trial judge at the time of

sentencing,” and the legislative history discussed above indicates that the

Legislature saw the jury’s findings as a way to improve the reliability of the

court’s sentencing decisions.

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

12

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

section 1170(b)(2) includes the factors listed in rule 4.421, we now consider

whether it violates the separation of powers or the nondelegation doctrine.

“The California Constitution establishes a system of state government in

which power is divided among three coequal branches (Cal. Const., art. IV,

§ 1 [legislative power]; Cal. Const., art. V, § 1 [executive power]; Cal. Const.,

art. VI, § 1 [judicial power]), and further states that those charged with the

exercise of one power may not exercise any other (Cal. Const., art. III, § 3).”

(People v. Bunn (2002) 27 Cal.4th 1, 14.) Though the branches share “a

certain degree of mutual oversight and influence,” they are vested “with

13

certain ‘core’ [citation] or ‘essential’ [citation] functions that may not be

usurped by another branch.” (Ibid.) As relevant here, “[t]he legislative

branch defines those crimes that can be charged, the executive branch

decides what crimes to charge, and the judicial branch decides whether to

sustain those charges.” (Manduley v. Superior Court (2002) 27 Cal.4th 537,

592 (Manduley).) The power to “ ‘fix penalties’ ” is also “ ‘vested exclusively in

the legislative branch.’ ” (People v. Superior Court (Romero) (1996)

13 Cal.4th 497, 516.)

“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 section 1170(b)(2) to

include non-statutory aggravating factors would “give prosecutors the

14

unchecked power to draft aggravating factors,” especially given rule 4.421(c)’s

residual clause, which provides for the consideration of “[a]ny other factors

. . . that reasonably relate to the defendant or the circumstances under which

the crime was committed.” We have no occasion to consider the second

argument here, however, because in this case the People did not use the

residual clause to propose aggravating factors beyond those specifically

enumerated in the rule. Accordingly, we do not address whether the residual

clause presents any separation-of-powers or nondelegation problem.

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

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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 section 1170 incorporates by reference the existing factors in

rule 4.421 because the Judicial Council may amend it, conceivably adding

new factors or revising existing ones. We agree that any nondelegation

problem cannot be avoided in that way, but note that the fact that rule 4.421

is potentially subject to revision was also true when Wright was decided.

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 section 1170.3, subdivision (a)(2) (Wright,

supra, 30 Cal.3d at p. 713), Chavez Zepeda argues that there is no statute

granting the Judicial Council authority to adopt aggravating factors for

consideration by the jury as opposed to by the court at sentencing. As

discussed above, reading section 1170(b)(2) together with section 1170.3,

subdivision (a)(2), we find the grant of authority to the Judicial Council in the

new sentencing scheme sufficiently clear.

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,

16

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 section 1170(b)(2) that the jury find an aggravating factor true beyond

a reasonable doubt. The Legislature “fixes penalties” within the meaning of

the nondelegation doctrine by establishing the lower, middle, and upper

terms for a given offense, and still makes the fundamental policy decision

that a term among the triad is to be selected “on the basis of circumstances

17

relating to the crime and to the defendant.” While a finding of aggravating

factors is necessary before a court may exceed the middle term, that feature

of the sentencing scheme was also present when Wright was decided,

although the factfinding role was allocated to the court. From the perspective

of the separation of powers, we do not see that it makes a difference whether

the finder of fact is the court or the jury. Either way, the finder of fact is

considering factors established by the Judicial Council. We are therefore

unable to conclude that Wright’s holding has been undermined by the

allocation of the factfinding function to the jury.

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.

18

An appellate court has discretion to consider new issues raised by an

amicus.” (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 503.)

This is especially the case when the new issue raises a pure question of law

and involves important questions of public policy. (Ibid.)

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) __ U.S. __,

__ [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

19

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

20

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 section 1170(b)(2) adds due process

protections for the defendant that did not exist under the preceding system of

unfettered judicial discretion, the new sentencing scheme cannot have a due

process problem when the prior system did not. While this argument might

seem plausible at first blush, it does not withstand scrutiny, as the

Apprendi/Blakely/Cunningham line of cases illustrates. (See Blakely, supra,

542 U.S. at p. 308 [rejecting the dissent’s argument that the constitutionality

of indeterminate sentencing schemes implies the constitutionality of

3 Apprendi located its rule both in the Sixth Amendment and in the due

process clause. (Apprendi, supra, 530 U.S. at pp. 476–477; see also People v.

Izaguirre (2007) 42 Cal.4th 126, 131 [Apprendi’s rule “is compelled by the

federal Constitution’s Fifth Amendment right to due process and Sixth

Amendment right to jury trial, made applicable to the states through the

Fourteenth Amendment”].) By contrast, in Cunningham and other post-

Apprendi cases, the Supreme Court focused on the Sixth Amendment without

mentioning due process. (See Cunningham, supra, 549 U.S. at p. 274; Ring v.

Arizona (2002) 536 U.S. 584, 588; Blakely v. Washington (2004) 542 U.S. 296,

298 (Blakely); Booker, supra, 543 U.S. at p. 226; see also Chiesa, When an

Offense Is Not an Offense: Rethinking the Supreme Court’s Reasonable Doubt

Jurisprudence (2011) 44 Creighton L.Rev. 647, 691 & fn. 242.) Nonetheless,

the Supreme Court has not repudiated due process as a foundation, which is

the jurisprudential source of the requirement of proof beyond a reasonable

doubt, as distinct from the requirement of a jury determination. (See

In re Winship (1970) 397 U.S. 358, 364; United States v. C.T.H. (6th Cir.

2012) 685 F.3d 560, 562–563; see also Stith, Apprendi’s Two Constitutional

Rights (2021) 99 N.C. L.Rev. 1299, 1306–1307.)

21

determinate sentencing schemes].) Those cases establish that the addition of

some process (the requirement of an aggravating factor) makes

constitutionally necessary the addition of more process (jury findings beyond

a reasonable doubt). To say that the middle term is “the relevant statutory

maximum” (Cunningham, supra, 549 U.S. at p. 288) is to say, in effect, that

the Legislature has created a liberty interest in a sentence that does not

exceed the middle term (Blakely, at pp. 309, 313; Apprendi, supra, 530 U.S.

at pp. 484–485, 495). Liberty interests, once created, are subject to the

requirements of the due process clause. (See, e.g., Wilkinson v. Austin (2005)

545 U.S. 209, 221 (Austin); Swarthout v. Cooke (2011) 562 U.S. 216, 220.)

And regardless, it is difficult to see how the right to jury findings beyond a

reasonable doubt is meaningfully protected if the aggravating factors are so

vague that jurors cannot plausibly be expected to make sense of them or to

render a non-arbitrary determination.

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

22

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

4 The text of section 1170(b)(2) arguably allows for a distinction to be

drawn between “circumstances in aggravation” that can justify the imposition

of the upper term and “the facts underlying those circumstances” that the

jury must find true beyond a reasonable doubt. (Italics added.) But no party

has argued that we should attach any significance to the difference between

those phrases. Consistent with the parties’ approach, we therefore treat

aggravating circumstances considered by the sentencing judge as identical to

what the jury must find true beyond a reasonable doubt. Notwithstanding

the court’s reasoning in Rourke, the parties’ approach here reflects what

seems to us the practical reality that the line between “circumstances” and

“facts underlying” them would often be difficult to draw, risking a violation of

the defendant’s rights under Cunningham as well as potentially undermining

the Legislature’s purpose in enacting Senate Bill 567. (See Sen. Com.

Analysis, pp. 3–4.) Moreover, while rule 4.421 now refers to “factors” rather

than “facts,” Cunningham expressly rejected the dissent’s argument that

“ ‘circumstances in aggravation’ ” were not necessarily “facts.” (Cunningham,

supra, 549 U.S. at pp. 279–280; cf. Black, supra, 41 Cal.4th at p. 814, fn. 4

[while the jury must find facts, “[t]he trial court’s evaluation of the relative

weight of aggravating and mitigating circumstances is not equivalent to a

factual finding”].)

23

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.” (Blakeley, 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,

24

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

5 In Engert, the California Supreme Court found unconstitutionally

vague a special circumstance that the murder was “especially heinous,

atrocious, and cruel, manifesting exceptional depravity.” (Engert, supra,

31 Cal.3d at pp. 801–803.) In so holding, the court rejected “the People’s

argument that when the jury is determining the truth of the charged special

circumstances, it is exercising a sentencing function and that, therefore, the

requirements of due process for narrowness and clarity are lessened.” (Id. at

p. 803.) However, as the court explained, a special circumstance finding

“changes the crime from one punishable by imprisonment of 25 years to life to

one which must be punished either by death or life imprisonment without

possibility of parole.” (Ibid.) It thus requires the imposition of a greater

sentence. That is the context in which we understand the court’s statement

that “[t]he fact or set of facts to be found in regard to the special circumstance

25

For these reasons, our conclusion that the factors in rule 4.421 are

subject to some constitutional vagueness standards does not mean they are

condemned by Sandoval’s observation, whether or not considered as dicta,

that 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.) The factors do

not attempt to define specific criminal offenses, and the sentencing judge’s

ultimate discretion remains a meaningful safeguard. Moreover, the

Sandoval court made this statement in the context of its harmless error

analysis, explaining why, when an aggravating circumstance “rests on a

somewhat vague or subjective standard, it may be difficult for a reviewing

court to conclude with confidence that, had the issue been submitted to the

jury, the jury would have assessed the facts in the same manner as did the

trial court.” (Ibid.) Nonetheless, in applying harmless error analysis to the

facts of the case, the court did not cite the vagueness of any aggravating

circumstance when it explained why it was not convinced beyond a

reasonable doubt that the jury would have found the aggravating

circumstances true, instead relying on the principal issues in dispute at trial

and the jury’s rejection of murder in favor of voluntary manslaughter. (Id. at

pp. 841–843.)

We also do not think the factors in rule 4.421 must be invalidated

under Johnson. In that case, “the United States Supreme Court considered

the ‘residual clause’ of the Armed Career Criminal Act of 1984 (ACCA) . . . ,

is no less crucial to the potential for deprivation of liberty on the part of the

accused than are the elements of the underlying crime,” and thus that “there

is no reason why due process should not require the same specificity in

defining the special circumstance that it requires in the definition of the

crime itself.” (Ibid.)

26

which imposes increased penalties for the federal crime of felon in possession

of a firearm if the defendant has three or more prior convictions for a violent

felony.” (People v. Ledesma (2017) 14 Cal.App.5th 830, 837.) The residual

clause defined a “violent felony,” as one, inter alia, that “(ii) is burglary,

arson, or extortion, involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury to another.” (Johnson,

supra, 576 U.S. at pp. 593–594 [quoting ACCA, 18 U.S.C. § 924(e)(2)(B)].)

The court had previously held that the term must be construed under the

“categorical approach,” in which “a court assesses whether a crime qualifies

as a violent felony ‘in terms of how the law defines the offense and not in

terms of how an individual offender might have committed it on a particular

occasion.’ [Citation.] [¶] Deciding whether the residual clause covers a crime

thus requires a court to picture the kind of conduct that the crime involves in

‘the ordinary case,’ and to judge whether that abstraction presents a serious

potential risk of physical injury.” (Id. at p. 596.)

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.) In other words, in determining whether the defendant was

previously convicted of a “violent offense,” the court was to consider neither

the statutory elements of the offense nor the way in which the defendant

committed it, but was simply to imagine what an “ordinary case” of that

offense looks like. Second, the difficulty in selecting the “ordinary case” was

27

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 rule 4.421(a)(1), (a)(3),

(b)(1).) As the court noted, in general the application of such standards to

“real-world conduct,” as opposed to an imagined “ordinary case,” does not

raise a constitutional concern. (Johnson, supra, 576 U.S. at p. 604; see Welch

v. United States (2016) 578 U.S. 120, 124 [“The Court’s analysis in Johnson

thus cast no doubt on the many laws that ‘require gauging the riskiness of

conduct in which an individual defendant engages on a particular

occasion.’ ”]; People v. Ledesma, supra, 14 Cal.App.5th at p. 838.) To survive

a vagueness challenge, “[i]t is not . . . necessary that a term be defined by

statute, or even that it have a precise dictionary definition.” (People v.

Borrelli (2000) 77 Cal.App.4th 703, 721.) “ ‘[W]here the statute involves some

28

matters of degree as to which individuals and even jurors might reasonably

disagree in their judgment, the statute will not for that reason alone be

invalidated.’ ” (People v. Poulin (1972) 27 Cal.App.3d 54, 60; see Walker v.

Superior Court (1988) 47 Cal.3d 112, 142.) Imprecise standards can be

fleshed out by judicial construction (People v. Superior Court (J.C. Penney

Corp., Inc.) (2019) 34 Cal.App.5th 376, 407; Walker, at p. 143; Borrelli, at

p. 721), as many of the factors in rule 4.421 have been (see, e.g., People v.

DeHoyos (2013) 57 Cal.4th 79, 154; People v. Esquibel (2008) 166 Cal.App.4th

539, 558; People v. Burbine (2003) 106 Cal.App.4th 1250, 1262; People v. Reed

(1984) 157 Cal.App.3d 489, 492; People v. Gonzales (1989) 208 Cal.App.3d

1170, 1172).

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)

29

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

30

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 distinctly 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

31

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 rule 4.421. (See CALCRIM

32

Nos. 3224–3234.) 6 Moreover, given the purpose of aggravating circumstances

and the court’s discretion to decline to impose the upper term, we conclude

that due process notice requirements are satisfied by notice of the upper term

and of the fact that wrongfulness beyond that inherent in the commission of

the offense, and along the dimensions identified in rule 4.421(a) and (b), may

subject a person to it.

In sum, we do not find that the individual factors listed in rule 4.421

are invalid simply because they use qualitative terms that may not be

defined before the jury is instructed, or because they are subject to the

requirement that an aggravating circumstance must make the commission of

the offense “distinctively worse than the ordinary.” We note, however, that

nothing in the foregoing discussion precludes a conclusion that a particular

aggravating circumstance may be unconstitutionally vague for reasons that

have not been raised here. Similarly, because the People in this case did not

6 The parties have not addressed the substance of those instructions in

their briefs, and we do not consider them here except to make one

observation based on the discussion above. Each of the instructions includes

a provision that reads: “You may not find the allegation true unless all of you

agree that the People have proved that the defendant’s conduct was

distinctively worse than an ordinary commission of the underlying crime.”

(CALCRIM Nos. 3224–3234.) As Chavez Zepeda points out, the commentary

in each case states: “The committee is aware of Johnson v. United States

(2015) 576 U.S. 591, 597–598 . . . in which the United States Supreme Court

held that determining what constitutes an ‘ordinary’ violation of a criminal

statute may create a constitutional vagueness problem.” As previously

discussed, we do not see an equivalence between the abstract “ordinary case”

in Johnson and California’s requirement that an aggravating circumstance

make the commission of the offense “distinctively worse than the ordinary.”

We are not called upon to decide whether the phrase “distinctively worse

than an ordinary commission of the underlying crime” in the instructions

accurately articulates that requirement as applied in the caselaw or is

consistent with constitutional vagueness standards.

33

propose their own aggravating circumstances in reliance on the residual

clause in rule 4.421(c)—“Any other factors . . . which reasonably relate to the

defendant or the circumstances under which the crime was committed”—we

do not decide whether that provision is unconstitutionally vague under the

principles we have articulated.

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 section 995.” In light of Senate Bill 567’s amendments to

section 1170(b)(2), he asks us to apply that presumption here and find that

aggravating factors are now subject to the same requirement, i.e., that they

must be supported by probable cause.

As Chavez Zepeda acknowledges, there is no express statement in

section 1170 as amended by Senate Bill 567 that circumstances in

aggravation must be supported by probable cause at the preliminary hearing.

Pointing out that some enhancement statutes do not refer to preliminary

hearings (e.g., §§ 12022, 12022.5, 12022.7), he argues instead that the right

to a preliminary hearing is a “background rule” that does not need to be

repeated in every new enactment, and that the Legislature expressly carves

out enhancements from the preliminary hearing requirement when it intends

to do so (e.g., § 12022.1, subd. (c)). When Senate Bill 567 was enacted,

34

however, there was already appellate authority noting that “neither the

Legislature nor the courts have ever deemed aggravating facts used to

impose the upper term as being equivalent to statutory sentencing

‘enhancements’ . . . that must be alleged in the accusatory pleading and

proved at the preliminary hearing.” (Barragan, supra, 148 Cal.App.4th at

p. 1485.) 7 And Sandoval pointed out that “[s]ome aggravating factors may

not be identifiable until after the trial, such as whether the defendant

‘unlawfully prevented or dissuaded witnesses from testifying . . . or in any

other way illegally interfered with the judicial process.’ ” (Sandoval, supra,

41 Cal.4th at p. 849 [quoting rule 4.421(a)(6)].) “The Legislature is presumed

to be aware of ‘ “judicial decisions already in existence, and to have enacted

or amended a statute in light thereof.” ’ ” (People v. Giordano (2007)

7 Chavez Zepeda points out that Barragan arose in the immediate

aftermath of Cunningham, and considered whether, in a case in which trial

had already begun and the prosecution had not alleged aggravating

circumstances, the prosecution could amend the information to allege them

notwithstanding that they had not been presented at the preliminary

hearing. The parties and the court assumed that, without such an ability,

Cunningham would preclude the trial court from imposing an upper-term

sentence even though the prosecution had followed the rules as they were

understood at the time. (Barragan, supra, 148 Cal.App.4th at p. 1485.) The

court thus focused on avoiding unfairness to the prosecution and frustration

of the Legislature’s intent to allow for imposition of the upper term to protect

public safety—considerations that do not apply here. (See ibid.) Chavez

Zepeda is correct that Barragan’s legal significance was short-lived; two days

after it was decided, the Legislature amended section 1170 to allow judges to

impose the upper term without any findings of aggravating circumstances

(Stats. 2007, ch. 3 (Sen. Bill No. 40) [eff. Mar. 30, 2007]), and within a few

months the California Supreme Court in Sandoval, supra, 41 Cal.4th 825,

applied the same rule to resentencing hearings. Neither of these

developments, however, nullified Barragan’s observation that there was no

history of treating aggravating circumstances similarly to enhancements by

requiring them to be pled and proved at the preliminary hearing.

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42 Cal.4th 644, 659.) Moreover, in several places in sections 1170

and 1170.1, the Legislature preserved “the distinction between sentencing

factors and ‘enhancements.’ ” (People v. Pantaleon (2023) 89 Cal.App.5th 932,

939 (Pantaleon) [citing § 1170, subds. (b)(3), (b)(5) and § 1170.1, subds. (d)(1),

(d)(2)].) In light of the Legislature’s awareness of the distinction, we cannot

presume that it intended silently to create a requirement that aggravating

circumstances be supported by probable cause at a preliminary hearing.

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 section 995, ultimately rejecting the distinction and

concluding that statutory enhancements were subject to dismissal if not

supported by sufficient evidence at the preliminary hearing. (Mendella,

supra, 33 Cal.3d at p. 763.) The court pointed out that the preliminary

hearing and section 995 “operate as a judicial check on the exercise of

prosecutorial discretion,” not only in screening out groundless prosecutions,

but also in preventing overcharging—a consideration that applies as much to

enhancements as to offenses given their “significant impact on the number of

years to which a defendant may ultimately be sentenced.” (Id. at pp. 759–

760.) As a result, enhancement allegations “ ‘may constitute powerful

bargaining tools for the prosecutor.’ ” (Id. at p. 760.) The court also

expressed concern that, if enhancement allegations were unreviewable, the

defendant could be prejudiced at trial by the introduction of evidence on an

enhancement issue that is irrelevant to guilt of the substantive offense, or

could be asked to defend against allegations the proof for which was withheld

at the preliminary hearing. (Id. at pp. 760–761.) Finally, the court noted

that before the DSL was enacted, “certain enhancement provisions were

contained in the statutory definitions of the particular offenses,” and at that

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time were subject to review by a section 995 motion. (Id. at p. 762.) “With

the advent of the DSL, the provisions for such allegations were deleted from

the definitions of the substantive offenses, were placed in distinct sections,

and are now known as ‘enhancements.’ ” (Id. at p. 763.) The court concluded,

however, that “[n]othing in its history or form intimates that the Legislature

intended by reorganizing the Penal Code to deprive the defendant of any

procedural rights that he possessed prior to the new law.” (Ibid.)

In Huynh, the court held that penalty provisions, like enhancements,

“require proof at the preliminary hearing and review under section 995.”

(Huynh, supra, 45 Cal.App.4th at p. 895.) At issue was section 664,

subdivision (a), which provides that the punishment for attempted murder is

life with the possibility of parole if the attempted murder was “willful,

deliberate, and premeditated.” The court acknowledged that enhancements

and penalty provisions are different in that an enhancement adds a separate

term to the base term, whereas a penalty provision specifies a greater base

term. (Huynh, at p. 895.) But it concluded that it was “a distinction without

a difference” in this context because, “[l]ike an enhancement, and unlike the

greater and lesser degrees of certain offenses, ‘a penalty provision prescribes

an added penalty to be imposed when the offense is committed under

specified circumstances.’ ” (Ibid.) The court also noted that the statute

requires that the allegation that the murder was willful, deliberate, and

premeditated “be pleaded and admitted or found true by the trier of fact,”

which is “language the Legislature habitually uses when defining

enhancements.” (Ibid.; cf. Pantaleon, supra, 89 Cal.App.5th at pp. 939–940

[no statutory requirement that aggravating circumstances be pleaded].)

Unlike penalty provisions and enhancements, the finding of an

aggravating factor by a jury does not require or prescribe an added penalty; it

37

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 § 1385; People v. Jones (2007)

157 Cal.App.4th 1373, 1378–1379.) Such discretion was not discussed in

Mendella, however, and Chavez Zepeda does not address how or to what

extent the considerations a court may apply in deciding whether to strike an

enhancement differ from those it applies in deciding whether to impose the

upper term based on an aggravating circumstance. (See, e.g., Nazir v.

Superior Court (2022) 79 Cal.App.5th 478, 491–495 [discussing factors

governing the exercise of discretion to dismiss an enhancement].) But

regardless, the Legislature’s recognition of the structural difference between

enhancements and aggravating circumstances militates against a

presumption that, without saying so, it intended to create a new right to a

preliminary hearing for aggravating circumstances based on what might be

characterized as a functional similarity between the two in practice.

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 section 311.11, subdivision (c) was a penalty provision, and points out

that it authorizes the court to impose a greater sentence for possession of

child pornography under certain circumstances but does not require that it do

so. But the question in that case, which postdated the enactment of Senate

Bill 567, was whether section 311.11, subdivision (c) defined substantive

offenses, and nothing in the opinion sheds light on the Legislature’s intent

with respect to preliminary hearings when it enacted Senate Bill 567 months

earlier. Moreover, when Huynh determined that penalty provisions should

38

be treated the same way as enhancements for the purpose of preliminary

hearings, the premise of its decision was that both of them prescribed an

added penalty to be imposed. (Huynh, supra, 45 Cal.App.4th at p. 895.) The

argument that there may be exceptions to Huynh’s characterization of

penalty provisions as requiring the imposition of a greater penalty is not a

reason to extend its holding to findings that never require a greater penalty.

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 section 995 are not the only

opportunities for a trial court to prevent improper or inadequately supported

aggravating circumstances from going to the jury. They stated that a court

can dismiss an aggravating circumstance under section 1385 8 or can reject it

8 While both the People and Chavez Zepeda agreed that section 1385

was available, neither cited In re Varnell (2003) 30 Cal.4th 1132, in which the

California Supreme Court held that a trial court may not use section 1385 to

disregard a “sentencing factor,” defined as “ ‘ a circumstance, which may be

either aggravating or mitigating in character, that supports a specific

sentence within the range authorized by the jury’s finding that the defendant

is guilty of a particular offense.’ ” (Id. at pp. 1134–1135 & fn. 3 [quoting

Apprendi, supra, 530 U.S. at p. 494, fn. 19].) After Cunningham, an

aggravating circumstance no longer satisfies this definition and must be

submitted to the jury unless it falls within Apprendi’s exception for prior

convictions. (See Varnell, at p. 1142; Pantaleon, supra, 89 Cal.App.5th at

p. 941.) Pantaleon held that, at least as to aggravating circumstances based

on prior convictions, there has been no change in law that would alter

Varnell’s conclusion that due process does not impose a pleading requirement

for aggravating circumstances. (Pantaleon, at p. 941.) The parties have not

addressed the question left open by Pantaleon—whether, in light of

39

as inadequately supported after a hearing under Evidence Code section 402. 9

After the presentation of evidence, it can also direct the entry of a verdict in

the defendant’s favor under section 1118.1. Although the same procedural

mechanisms are also available for enhancements, we accept the People’s

concession that a trial court is empowered to reject aggravating

circumstances before it is called upon at sentencing to decide whether they

warrant the imposition of the upper term.

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 section 1170(b)(2) provides for bifurcated trials of allegations of

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 section 1170(b)(2) itself, because it provides that

“upon request of a defendant, trial on the circumstances in aggravation

alleged in the indictment or information shall be bifurcated from the trial of

charges and enhancements.” While this language contemplates that

aggravating circumstances may be charged in the accusatory pleading,

Pantaleon held that it does not go so far as to impose a pleading requirement.

(Pantaleon, at p. 940.) With respect to the preliminary hearing, as noted

below we find that Chavez Zepeda did not develop an argument that state

due process requires proof of aggravating circumstances, which is an issue we

therefore do not decide.

9 The People also acknowledged that the prosecution has discovery

obligations that require it to disclose in advance any evidence it intends to

offer in support of an aggravating circumstance, minimizing the potential for

surprise at trial.

40

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

10 Chavez Zepeda expressly disavowed any claim under federal due

process in light of the California Supreme Court’s holding that there is no

federal due process right to a preliminary hearing beyond a probable cause

hearing held to justify continued detention of the accused. (Whitman v.

Superior Court (1991) 54 Cal.3d 1063, 1078–1079.)

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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.

11 We deny the People’s request for judicial notice. The request does

not attach any specific documents and the People do not appear to rely on any

documents in their briefing that are not already included in the exhibits to

the petition. Moreover, the request was not made by separate motion as

required under California Rules of Court, rule 8.252(a).

42

Trial Court: Superior Court of the City and County of

San Francisco

Trial Judge: Honorable Eric R. Fleming

Counsel for Defendant and Manohar Raju, Public Defender

Petitioner: 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 Ricardo D. Garcia

California Public Defender’s Public Defender

Association and Los Angeles Albert J. Menaster

County Public Defender’s Office Head Deputy

Nick Stewart-Oaten

Counsel for Amicus Curiae Emi Young

American Civil Liberties Union of

Northern California

43