“Circumstances in aggravation”  used to impose a sentence greater than the middle term refers to the factors listed in California Court Rule 4.421,

Zepeda v. Superior Court of City and County of San Francisco (Cal. Ct. App., Nov. 13, 2023, No. A166159) 2023 WL 7484868, at *1

 Summary: This case decided several issues about  Senate Bill No. 567. Senate Bill 567 amended Penal Code section 1170, subdivision (b)(2) 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 upper term of imprisonment based on their own assessment of which term best served the interests of justice, without making any factual findings.

Issues:

1. Does the phrase “circumstances in aggravation” in section 1170(b)(2) refer to the factors listed in California Rules of Court, rule 4.421, enacted by the Judicial Council? 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)?
2. Does such a delegation of authority violate the separation of powers or the non-delegation doctrine?
3. 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” 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 (Black).)
4. 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?

Holding: 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. The use of qualitative terms and the requirement that an aggravating circumstance make the commission of the offense distinctively worse does not render the factors in rule 4.421 unconstitutionally vague. The factual allegations supporting the aggravating circumstances do not need to be supported by evidence at the preliminary hearing.

Senate Bill 567 amended section 1170, subdivision (b) to make the middle term the maximum that may be imposed absent additional findings

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.”

Separation of Powers and the Nondelegation Doctrine

Zepeda’s argument based on the separation of powers and the non-delegation doctrine raises a  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  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, 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 itself has enacted them, so 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.

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 non-delegation doctrine by doing so.

Section 1170 Refers to Rule 4.421’s Aggravating Factors

Rule 4.421 (formerly rule 421) has been in place since 1977. Its title is “Circumstances in aggravation.” The Legislature acts against the backdrop of all governing law, and it used the identical phrasing that the Judicial Council did when addressing same topic. The finder of fact is considering factors established by the Judicial Council.

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. 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi) that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (See Cunningham, supra, 549 U.S. at p. 282, 127 S.Ct. 856.)  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, 127 S.Ct. 856.)

The individual factors listed in rule 4.421 are not 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.”

Unlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term. The aggravating circumstances need not be supported by evidence at the preliminary hearing.

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