SB 567 Remand & Resentencing Even in Extreme Case

Senate Bill (SB) 567 amended Penal Code § 1170(b) to require that when a statute specifies three potential terms of imprisonment, known as the sentencing triad, a judge must presumptively impose the middle term.  Penal Code § 1170(b)(1).

Moreover, SB 567 states that a judge may not impose the upper term unless aggravating circumstances “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.  Penal Code § 1170(b)(2). 

Under Penal Code § 1170(b)(3) in selecting a term of imprisonment, “the court [judge] may consider defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to the jury.”

Anthony Kevin Ross was a prisoner at Pelican Bay State prison, which is a “level four” prison, meaning it has more security and houses prisoners with higher “classification points.”  Classification points are based on various factors, such as sentence length, age, and behavior.

In July 2018, B.B., a correctional officer, met with Ross, a level four prisoner, in his office. 

Defendant did not have the classification points necessary to be placed at a level three facility and B.B. refused Ross’ request to recommend an “override” to the committee responsible for placement decisions.  When B.B. told defendant he could ask the committee himself, Ross cursed and yelled at Ross, demanding a new counselor.

B.B. told Ross that he was “acting childish” and to calm down, but Ross continued cursing and yelling.  B.B. then told Ross, “why don’t you act like a man and show some respect.”

In response, Ross stood up and charged B.B., “I am a man” and punched B.B. in the eye while B.B. was still seated.  B.B. told Ross to “get down” which is a term correctional officer tell inmates to stop doing something.  Ross ignored this and repeatedly struck B.B. in the face and arms.

About 30 seconds later, other correctional officers arrived and used pepper spray, but Ross did not stop hitting B.B.  Ross then resisted being handcuffed and struck the other correctional officers before finally being subdued.

Ross was then charged in Del Norte County Superior Court with battery on a non-confined person by a prisoner (Penal Code § 4501.5).  Ross had two prior strike convictions.

During trial Ross yelled at the judge in court, before the jury, and yelled at his attorney, ultimately being removed from the courtroom while trial continued.

The jury convicted Ross and found true the two prior strike convictions.

During sentencing, the judge invited Ross to make a statement, but he declined to do so.  The judge sentenced Ross to the upper term of four years, doubled for a prior strike.

In sentencing Ross, the judge found true two crime-based aggravating factors set out in California Rules of Court, rule 4.421(a)(1) and (a)(3), namely, that “(1) the crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness,” and “(3) the victim was particularly vulnerable” because he was alone in his office, without being behind any protection.

The judge also found true four aggravating factors set forth in California Rules of Court, rule 4.421(b): (1) Ross has engaged in violent conduct that indicates a serious danger to society; (2) Ross’ prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; (3) Ross has served a prior term in prison or county jail under Penal Code § 1170(h); and (4) Ross’ prior performance on probation, mandatory supervision, post-release community supervision, or parole was unsatisfactory.  The judge also found no factors in mitigation and concluded that the aggravating factors “far outweighed” those in mitigation, justifying the upper term.

Ross appealed his conviction to the First Appellate District Court on grounds that his attorney conceded his guilt of battery by admitting in closing argument that Ross touched B.B. willingly, in a harmful or offensive manner.  This concession of guilty violated McCoy v. Louisiana (2018) 584 U.S. __, 138 S. Ct. 1500, wherein the U.S. Supreme Court held that such an admission of any fault when defendant instructed counsel never to concede any liability, violated the Sixth Amendment right to effective assistance of counsel.

While the appeal was pending, Senate Bill 567 became effective, so Ross amended his appeal to argue the upper term sentence violated SB 567.

Although there were no mitigating factors found in this case and although the judge explicitly described the basis for the upper-term sentence, the First Appellate District remanded the case to the trial court for re-sentencing in light of SB 567. 

We would expect that Ross would be resentenced to a middle-tier sentence, given the facts of trial and what the jury found true, which was not in compliance with SB 567.

For more information about Senate Bill 567’s application, please click on the following articles: