People v. Martin

• Decision Date: 21 August 1986
• Docket Number: Cr. 24474
• Citation: 42 Cal.3d 437,229 Cal.Rptr. 131,722 P.2d 905
• Court: California Supreme Court
• Parties: , 722 P.2d 905 The PEOPLE, Plaintiff and Respondent, v. Daryle Keith MARTIN, Defendant and Appellant.

Page 131

229 Cal.Rptr. 131

42 Cal.3d 437, 722 P.2d 905

The PEOPLE, Plaintiff and Respondent, v. Daryle Keith MARTIN, Defendant and Appellant.

Cr. 24474.

Supreme Court of California,

In Bank.

Aug. 21, 1986.

Rehearing Denied Sept. 18, 1986.

William J. Kopeny, under appointment by the Supreme Court, and H. Eugene Andreasen, under appointment by the Court of Appeal, for defendant and appellant.

Frank O. Bell, Jr., State Public Defender, Therene Powell, Joan Cavanagh and Richard Lennon, Deputy State Public Defenders, as Amici Curiae on behalf of defendant and appellant.

John K. Van de Kamp and George Deukmejian, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Robert R. Granucci, Kristofer Jorstad and Laurence K. Sullivan, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

This case concerns the standards and procedures to be followed by the trial court when the Board of Prison Terms notifies it that its sentence is disparate when compared to the sentences imposed in other cases.

On September 19, 1979, defendant was found guilty of five counts of robbery. The jury also found that defendant had used a knife in two of the robberies. Before sentencing, defendant was rearrested and charged with two additional counts of robbery with a firearm enhancement for each robbery. Defendant pled guilty to the additional charges, and admitted the enhancements.

The matters were consolidated for sentencing on February 8, 1980. The trial court sentenced defendant to twelve years imprisonment: the upper term of five years for the principal robbery, a one-year enhancement for the use of a knife in that robbery (Pen.Code, § 12022, subd. (b)), ¹ and six consecutive terms of one year (one-third of the middle term) for the remaining six robberies. Defendant did not appeal.

Section 1170, subdivision (f) of the determinate sentence law requires the Board of Prison Terms to review every sentence "to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases." ² There is no statutory definition of disparity. The Attorney General, however, has advised the board that a sentence is disparate if "there is a substantial difference between the subject sentence and the sentences imposed on other offenders committing the same offense under similar circumstances." (60 Ops.Cal.Atty.Gen. 143, 147 (1977).) Review is not designed to uncover legal error in sentencing (People v. Herrera (1982) 127 Cal.App.3d 590, 597, 179 Cal.Rptr. 694), although the board may call such error to the attention of the trial court, but instead to promote uniformity in the exercise of sentencing discretion.

Justice Kline, dissenting in the Court of Appeal in the present case, described more fully the background and purpose of section 1170. "[T]he determinate sentencing law," he said, expresses "a rather definitive legislative effort to diminish inequitable disparities in punishment to the extent practicable. (See Parnas and Salerno, The Influence Behind, Substance and Impact of the New Determinate Sentencing Law in California (1978) 11 U.C. Davis L.Rev. 29, 39.) This effort was motivated in part by judicial decisions disapproving administration of the indeterminate sentence law in certain particulars (see, e.g., In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, and In re Stanley (1976) 54 Cal.App.3d 1030, 126 Cal.Rptr. 524), but it was at least equally the result of 'an accumulation of evidence that [under the indeterminate sentencing system] there were wide sentencing disparities in terms of both who went to prison and their lengths of stay for similar offenses.' (Determinate and Indeterminate Sentence Law Comparisons Study, Report to the Calif. Legislature, Joint Comm. on Rules, Arthur D. Little, Inc. (May 1980) p. II-1; see also Crowther, Crime, Penalties and Legislatures (1969) 381 Annals of the Am. Academy of Pol. & Soc. Sci. 147, 153.) This evidence was punctuated by the developing national consensus that significant disparities in the punishment imposed upon like individuals committing like offenses was a pernicious evil endangering the very integrity of the criminal justice system. (See, e.g., Hoffman & Stover, Reform in the Determination of Prison Terms: Equity, Determinacy and the Parole Release Function (1978) 7 Hofstra L.Rev. 89; von Hirsch, Doing Justice: The Choice of Punishments (Hill & Wang 1976); Gaylin, Partial Justice: A Study of Bias in Sentencing (Alfred P. Knopf 1974); Hagan, Extra-Legal Attributes and Criminal Sentencing: An Assessment of a Sociological Viewpoint (1974) 8 Law & Soc'y. Rev. 357; Frankel, Criminal Sentences: Law Without Order (Hill & Wang 1973); President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Courts (1967); and Shepard v. United States (6th Cir.1958) 257 F.2d 293, 294, opn. of Potter Stewart, J.).)

"Numerous empirical studies revealed that the chief explanation for sentencing disparity was not the differences in defendants but the differences in judges. (See, e.g., Rubin, Disparity and Equality of Sentences--A Constitutional Challenge (1967) 40 F.R.D. 55, 58; McGuire & Holtzoff, The Problem of Sentence in the Criminal Law (1940) 20 B.U.L.Rev. 423; Glueck, Crime and Justice (1936) p. 127; Gaudet, Harris & St. John, Individual Differences in the Sentencing Tendencies of Judges (1933) 23 J.Crim.L., Criminology & Police Sci. 811; and Everson, The Human Element in Justice (1919-20) 10 J. of Crim.Law 90.) Thus the movement to promote uniformity in sentencing ... was in no small part a movement to diminish judicial discretion. (See, e.g., Countdown for Judicial Sentencing in Of Prisons and Justice, Senate Doc. No. 70, 88th Cong., 2d Sess., pp. 331-332 (1964).)"

Carrying out its statutory mission to promote uniformity in sentencing, the board undertakes a statistical analysis of discretionary sentences imposed under the Determinate Sentencing Act. The board's methodology is described in the introduction to its Report on Sentencing Practices--Determinate Sentencing Law (hereafter Report), issued February 28, 1985. ³ The board has acquired data on over 75,000 cases, including, in each case, the prisoner's criminal history, his social background, the circumstances of each offense, and the actual sentence. When it receives a new case, the board conducts a preliminary screening (an Automated Sentence Review) to determine the range of possible sentences and the relative likelihood of each. A computerized simulation generates 10,000 theoretical sentences for the cases. The computer then determines the percentage of simulated sentences which are equal to or higher than the actual sentence imposed, and provides a statistical measure of the difference between the expected sentence and the actual sentence. If both criteria exceed an established threshold, the case is identified as one requiring further analysis.

In the secondary screening process, the board's staff obtains a list of cases comparable to the subject case. The staff examines the file in the subject case and each comparable case to determine if there are facts which would justify a statistically disproportionate sentence. If the staff finds none, it refers the matter to a panel of two board members and a hearing representative. The panel reexamines the subject cases and comparable cases. If it also finds no justification for a disproportionate sentence, it directs the board's counsel to notify the court that, in its opinion, the sentence is disparate.

In the present matter the board first determined that the trial court erred in imposing six consecutive one-year terms for the subordinate offenses. Relying on People v. Harvey (1979) 25 Cal.3d 754, 761, 159 Cal.Rptr. 696, 602 P.2d 396 and People v. Childs (1980) 112 Cal.App.3d 374, 388-389, 169 Cal.Rptr. 183, the board decided that section 1170.1 prohibited consecutive sentences for subordinate terms in excess of five years. Defendant's sentence, the board concluded, should be reduced by 1 year from 12 years to 11 years. ⁴

The board then set out to determine whether an 11-year sentence would be disparate. The claimed disparity in defendant's sentence arose from the fact that he not only received the upper term for the principal offense, but that all of the possible subordinate terms were imposed consecutively. A computer simulation indicated only a small probability that a sentence as severe as 11 years for someone convicted of the same crimes and enhancements would be imposed. This computation identified defendant's sentence as one requiring further study.

The Sentencing Review Unit then examined the record in defendant's case in detail but was unable to discover any unusual factors justifying the severe sentence. The Case Analysis Committee compared defendant's sentence with 29 other factually similar cases. Each of these cases had the following common factors: (1) the principal offense was robbery, (2) the defendant was not under supervision at the time of the earliest offense, (3) he had no prior juvenile criminal history, (4) he had no prior adult convictions, (5) no victim was injured, and (6) there were three or more unstayed subordinate counts. Of the twenty-nine defendants, only six received the upper term plus two or more consecutive terms, and only two received the maximum possible number of consecutive terms. The average sentence for the subgroup was 77 months, and the most likely sentence either 48 or 60 months; defendant's corrected sentence of 132 months was substantially longer. The committee concluded that defendant's sentence was in fact disparate. A panel of the board independently reviewed the comparison, and concurred in that conclusion.

On August 20, 1981, the board filed a motion for resentencing pursuant to section 1170, subdivision (f). The motion asserted not only that defendant's sentence was disparate, but...