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Clearing Up Sentencing Confusion

Everything You Ever Wanted To Know About The Determinate Sentencing Law But Were Afraid To Ask 

By The Hon. Alex Ricciardulli

Alex Ricciardulli
Ricciardulli

Let’s say probation just isn’t in the cards in your case. Either the case is a serious felony or the defendant has a serious recidivism problem. It’s time to calculate the defendant’s potential sentence in prison.

You open the Penal Code and turn to California’s Determinate Sentencing Law. Penal Code §1170, the legendary, mind-numbingly convoluted edifice of retributive justice. Where do you begin? Where do you end your search through the legalistic maze?

First, take comfort that you are not alone in your quest and desperation. “As a sentencing judge wends his way through the labyrinthine procedures of §1170 of the Penal Code, he must wonder, as he utters some of its more esoteric incantations, if, perchance, the Legislature had not exhumed some long departed Byzantine scholar to create its seemingly endless and convoluted complexities. Indeed, in some ways it resembles the best offerings of those who author bureaucratic memoranda, income tax forms, insurance policies or instructions for the assembly of packaged toys.” (Community Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 815, fn. 1.) Next, take a deep breath, and read this article.

The big picture

The Determinate Sentencing Law (DSL) deals only with determinate sentences. Life sentences, the death penalty, diversion and deferred entry of judgment aren’t in there. The sentence for the defendant under the law will be a determinate, or fixed, term in prison, at the conclusion of which the defendant will be released on parole.

To calculate the fixed sentence under the DSL, the judge first arrives at the base term for the most serious count. The judge then adds conduct enhancements to this sentence to derive the principal term. Regarding any other counts that the court imposes consecutively, the judge applies the infamously obtuse “one-third-the-mid-term-rule” of Penal Code §1170.1(a) to produce the subordinate terms. Finally, the judge adds to the sum total prison time for enhancements for prior convictions other than “strike” priors. (Sentencing under the Three Strikes law is beyond the scope of this article.) The grand total is called the aggregate term.

The basic formula can be stated thus:

PRINCIPAL TERM = BASE TERM + ENHANCEMENTS

AGGREGATE TERM = PRINCIPAL TERM + SUBORDINATE TERMS + PRIORS

The base term

When a state prison sentence is imposed under the DSL, the judge must select the low, middle or upper term for any particular count. Most felonies have a triad of possible terms, like 2-3-5, or 2-4-6. (See, e.g., Pen. Code §§211, 460.) The term selected is called the base term. (Pen. Code §1170(b).)

How does the judge decide which of the three terms to select as the base term? If the parties agree to a term in a plea bargain, and the judge is willing to live with the bargain, that’s the end of the matter; the judge does not have to state any reasons for the sentence. (Cal. Rules of Court, Rule 4.412(a).)

If the parties don’t agree on the term, then the judge must impose the middle term, unless the judge finds that there are aggravating or mitigating circumstances that warrant the higher or lower term. (Pen. Code §1170(a)(3).) These circumstances include the severity of the crime, the defendant’s record, and his or her remorse, among many others. (Cal. Rules of Court, Rules 4.421, 4.423.)  

The judge alone, without a jury, determines the existence and weight to be placed on these circumstances. The California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 held this scheme did not violate the defendant’s right to jury trial in Apprendi v. New Jersey (2000) 530 U.S. 466. The U.S. Supreme Court is now considering this issue in People v. Cunningham, No. 05-6551, with a decision due by the end of June 2007.

BASE TERM EXAMPLE:

Second degree robbery: sentence range is 2-3-5 years.

When the court imposes the upper term, the base term becomes 5 years.

The principal term

The count (together with conduct enhancements) that results in the greatest punishment is the principal term. (Pen. Code §1170.1(a).) Conduct enhancements are ones which relate to the nature of the criminal act itself, like being armed with a firearm, use of a weapon, and stealing property over a specified monetary amount.

Enhancements for prior convictions, such as five-year priors (Penal Code §667(a)), and prison-priors (Pen. Code §667.5(b)), are treated differently under the DSL than conduct enhancements: enhancements for prior convictions are punished only once per charging instrument. (See People v. Tassell (1984) 36 Cal.3d 77.) So, regardless how many counts there are, the defendant gets only one enhancement for each prior conviction. (There are different rules when “strike” priors are involved, but we’re not dealing with those here.)

With some exceptions, if two or more conduct enhancements can be imposed on a single count, only the enhancement with the greatest punishment can be imposed. (Pen. Code, §1170.1(f), (g).) The most common exception to this rule is when a count is enhanced by use of a firearm and by infliction of great bodily injury; in such a situation, a term for both enhancements can be imposed.  (Ibid.)

PRINCIPAL TERM EXAMPLE:

Second degree robbery, upper term = 5 years

Enhancement, armed with gun = 1 year

Principal Term = 6 years

The subordinate term

Counts which are to be ordered to run consecutive to the principal term are subordinate terms. (Pen. Code §1170.1(a).) With the exception of some sex crimes and Three Strikes offenses, the judge has the discretion to order that prison terms imposed on multiple counts be served concurrent with the principal term. (See Cal. Rules of Court, Rule 4.425.) In deciding consecutive versus concurrent, the judge takes into consideration factors like whether the crimes were independent of one another and any mitigating circumstances. (Ibid.)  People v. Black, supra, 35 Cal.4th 1238, analyzed this scheme and found it presented no Apprendi problems.   

The calculation of subordinate terms is thus only pertinent when the court seeks to impose prison terms consecutive to the principal term. If the judge orders concurrent sentences, then you proceed directly to adding time for the priors.

The general rule regarding subordinate terms is that they are punished at one-third of the mid-term for each count. (Pen. Code §1170.1(a).) Conduct enhancements on subordinate counts are punished at one-third of the enhancement’s sentence.  (Ibid.)

SUBORDINATE TERM EXAMPLE:

Count 2: assault w/firearm, 1/3 mid-term of 3 years = 1 year

Enhancement: using gun, 1/3 term of 4 years = 1 year and 4 months

Total subordinate term = 2 year and 4 months

Note: When an enhancement has a range of terms, the court must select one of these three terms as well.  (Pen. Code §1170.1(d).) Thus, if the court had selected a different term for the use enhancement, the sentence for the enhancement would have been one-third of that term.

The DSL aggregate term

The sum of the principal term, all subordinate terms for which consecutive sentences are imposed, and any terms for prior conviction enhancements, is the aggregate term.

AGGREGATE TERM EXAMPLE:

The defendant is convicted of two counts of assault with a firearm using a gun, and additionally receiving stolen property. The defendant also has a one-year prison prior. The judge wants to impose the maximum sentence, running all counts consecutively. The range of punishment on the assault crimes is 2-3-4; on the gun use enhancement the range is 3-4-10, and on the receiving offense the range is 16 months-2-3 years. 

Principal term for one count of assault with use of gun = 14 years (4 years for assault + 10 years for use of gun)

Subordinate term for remaining assault with use of gun = 4 years and 4 months (1 year for 1/3 mid-term of assault + 3 years 4 months for 1/3 high-term for use of gun)

Subordinate term for receiving = 8 months (8 months for 1/3 mid-term of receiving)

Term for Prior Conviction (prior prison term) = 1 year

Aggregate term = 20 years

A few words about time credits

The general rule is that a defendant serves 50 percent of his or her sentence while in prison. (Pen. Code §2933.) However, if the current offense is listed as a “violent felony” in Penal Code §667.5(c), the defendant serves 85 percent of the prison sentence. (Pen. Code §2933.1) The 85 percent limit also reduces credits for non-“violent” subordinate terms, so long as at least one of the defendant’s current offenses is a “violent felony.” (People v. Palacios (1997) 56 Cal.App. 4th 252.)

Knowing what percentage of the sentence the defendant will serve in prison is important because it tells you how much time a defendant is “really” going to serve. But, it’s the prison’s job to calculate the actual credits, and factors such as whether or not the defendant is working in a prison industry impact this equation.

One calculation you must compute is the defendant’s pre-sentence credit; that is, the amount of time the judge will award to the defendant for the time preceding sentencing. The general rule here is that the defendant receives credit for the amount of time in jail up to the sentencing, plus approximately one-third extra for good-time/work-time. (Pen. Code §4019; see People v. Culp (2002) 100 Cal.App.4th 1278 [reviewing actual formula].)

An exception to this rule is when the defendant’s crime is a “violent felony,” in which case the defendant is awarded his or her actual time, plus only 15 percent extra for good-time/work-time. (Pen. Code §2933.1.) An exception to this exception occurs when the crime is a “violent felony,” but the defendant receives probation; in such a situation, the defendant gets his actual credits plus the extra one-third. (See In re Carr (1998) 65 Cal.App.4th 1525.)

Loose ends

When a determinate term is ordered to run consecutive to a life sentence, the determinate term must be served first, then the defendant serves the life sentence. (Pen. Code §669; People v. Grimble (1981) 116 Cal.App.3d 678.)

The one-third-the-mid-term rule is inapplicable to a misdemeanor jail sentence imposed consecutive to a felony term. When a judge decides to order that a misdemeanor sentence be served consecutively to a prison sentence, the full county jail sentence rather than one-third of the term must be served. (In re Valenti (1986) 178 Cal.App.3d 470; In re Claude J. (1990) 217 Cal. App.3d 760.)

A judge cannot impose a DSL sentence consecutive to the term in prison that the defendant will serve pursuant to revocation of parole. (People v. Mathews (1980) 102 Cal.App.3d 704.)

If a defendant is being sentenced to state prison to serve a determinate sentence, and the defendant has enough pre-sentencing custody credits to swallow up the prison sentence, must the defendant actually be transported to prison following the imposition of the sentence? NO. Penal Code §1170(a)(3) allows the judge to sentence the defendant to prison without delivering him to the custody of corrections; the defendant then simply gets released on parole from county jail.

Former Penal Code §1170.1(h) used to list enhancements that a judge could dismiss if the judge found that “there are circumstances in mitigation of the additional punishment.” This section used to list one-year prison priors, three-year drug priors, and other enhancements. Effective Jan. 1, 1998, the legislature repealed Penal Code §1170.1(h). Does that mean that the legislature intended to eliminate the judge’s power? NO.

As explained by the Court of Appeal, the legislature wanted judges to use their authority under Penal Code §1385 for these dismissals, meaning that detailed reasons must be written in the court’s minutes, and that the judge’s decision is subject to appellate review for abuse of discretion. (See People v. Bradley (1998) 64 Cal.App.4th 386; Pen. Code §1385(a).)

You did it!

That wasn’t so bad. Now that you’ve grasped the basic rules of the DSL, whether as a prosecutor or defense attorney, you can now confidently calculate the minimum and maximum prison sentences in a case. Sir Francis Bacon said, “Knowledge is power.” Take the MCLE test below and see whether you’re ready to use your power in the real world.

Alex Ricciardulli is a Los Angeles Superior Court judge.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour.

• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Self-assessment test

• Indicate whether the following statements are true or false after reading the MCLE article on the determinate sentencing law. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

  1. If the parties have reached a plea bargain, the judge does not need to state reasons for the choice of sentence.
  2. When parties disagree on the sentence to be imposed, the judge must always impose the high term if the defendant is convicted of the crime.
  3. As long as “strike” priors are not involved, the defendant gets only one enhancement added for each of his prior convictions.
  4. The general rule is that when there is more than one conduct enhancement on a single count, only the greatest enhancement can be imposed.
  5. An exception to the general rule regarding conduct enhancements is that when the defendant has an enhancement for both personal infliction of great bodily injury and use of a firearm on a single count, the court can add time for both enhancements.
  6. Counts ordered to run consecutive to the aggregate term are subordinate terms.
  7. Courts have power to decide whether terms should be served concurrent or consecutive to one another, unless “strike” priors or specified sex crimes are involved.
  8. When a judge orders that counts should be served concurrently, the one-third-the-mid-term rule is used to compute the sentences on the counts.
  9. When a subordinate count has a conduct enhancement, and the enhancement carries a range of terms, the judge must impose one-third the term the judge picks on the enhancement.
  10. The general rule is that a defendant serves 100 percent of his or her sentence while in prison when the current offense is a “violent felony.”
  11. When the current principal term includes a “violent felony,” the 85 percent limit in Penal Code §2933.1 does not reduce time credits for non-“violent” subordinate terms.
  12. The general rule is that the defendant gets approximately one-third extra for good-time/work-time added to his or her pre-sentencing credits.
  13. When the defendant is being sentenced to prison for a “violent felony,” the 85 percent limit only applies to the prison sentence, not the pre-sentencing credits.
  14. If the defendant is being sentenced to probation, even if her offense is a “violent felony,” the defendant receives her full extra one-third good-time/work-time pre-sentencing credits.
  15. When a defendant is sentenced to both a determinate sentence and a life sentence, by operation of law the determinate sentence is served concurrently with the life sentence.
  16. When a judge orders that a misdemeanor sentence be served consecutively to a felony determinate sentence, the defendant serves only one-third of the sentence on the misdemeanor.
  17. The judge is barred from ordering that a determinate sentence for a current felony be served consecutively to a prison sentence for a parole violation.
  18. A defendant ordered to serve a determinate sentence must be delivered to prison even if he or she has enough pre-sentencing credits for time served.
  19. The legislative repeal of former Penal Code §1170.1(h) eliminated a judge’s power to dismiss enhancements like one-year prison-priors and three-year drug-priors.
  20. If a judge dismisses an enhancement under Penal Code §1385 in furtherance of justice, the reasons for the dismissal must be written in the court’s minutes.
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