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Youthfulness Contributing to Crime, PC § 1170(b)(6)(B)
Senate Bill (SB) 567 amends Penal Code §§ 1170 and 1170.1 to establish a sentencing procedure consistent with the decisions of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270 when a trial court seeks to impose the upper term of custody.
Prior to January 1, 2022, a judge had discretion to impose one of three terms: the high term, middle term, or lower term of the so-called sentencing triad, named so because there are three terms. See Cal. Penal Code § 1170(b), see also Cal. Rules of Court, Rule 4.420. For example, assault with a deadly weapon under Penal Code section 245(a)(1) has a low term of two years, a middle term of three years, and an upper term of four years, so the “triad” would be “2-3-4.”
As of January 1, 2022, the effective date of SB 567, a judge “shall” impose a sentence no greater than the middle-term. See Cal. Penal Code § 1170(b)(1). The upper term may only be imposed if either the defendant “stipulates,” or agrees, to the upper term, or if a jury in a jury trial or the judge in a bench trial find “aggravating factors” (see Cal. Rules of Court, Rule 4.421) beyond a reasonable doubt to be true.
In addition to the middle-term being the highest term a judge can impose unless found true by jury, judge, or agreed to by the defendant, the new version of Penal Code § 1170 also created obligations wherein the judge must impose the lower term where the defendant is youthful (under 26 years old – see Cal. Penal Code § 1016.7), or has a history of trauma or abuse in their background, except in limited circumstances. Penal Code § 1170(b)(6)(B).
There is no question the new sentencing procedures in section 1170 and 1170.1 will be applicable to sentences imposed after January 1, 2022, the effective date of the statutory changes.
There remains the issue of whether the changes will be applicable to any case not final as of that date under In re Estrada (1965) 63 Cal.2d 740. Because the legislative changes confer a substantial benefit on the defendant at sentencing, Estrada should apply, at least to some extent. Whether Estrada will apply in a particular case will depend on the exact circumstances of sentencing.
In June 2016, the Mendocino County District Attorney charged Hanna Fredrickson, age 23 and a codefendant with manufacturing a controlled substance (Health & Safety Code § 11379.6(a)) and possession of marijuana for sale (Health & Safety Code § 11359). The charges were based on the discovery of honey oil, a concentrated form of cannabis, marijuana and equipment for the production of honey oil in a home in Willits occupied by Fredrickson and her codefendant.
She entered into a plea bargain wherein she agreed to serve 185 days in county jail and was otherwise placed on three years of formal probation.
She then violated probation three times, including failing to report to surrender to serve the 185 days in county jail. The judge revoked her probation and sentenced her to a five-year, middle-term split sentence comprised of two years in custody and three years of probation.
Ms. Fredrickson then appealed her sentence to the First Appellate District, arguing that her sentencing violated SB 567 (Penal Code § 1170(b)(6)(B) by imposing the five-year middle term sentence instead of the low term based on her being under age 26.
The First Appellate District denied the appeal and affirmed the trial court, ruling that there was no abuse of discretion by the trial court because there “was no explicit indication in the record that appellant’s youth contributed to the commission of the offense.”
Prior to January 1, 2022, a judge had discretion to impose one of three terms: the high term, middle term, or lower term of the so-called sentencing triad, named so because there are three terms. See Cal. Penal Code § 1170(b), see also Cal. Rules of Court, Rule 4.420. For example, assault with a deadly weapon under Penal Code section 245(a)(1) has a low term of two years, a middle term of three years, and an upper term of four years, so the “triad” would be “2-3-4.”
As of January 1, 2022, the effective date of SB 567, a judge “shall” impose a sentence no greater than the middle-term. See Cal. Penal Code § 1170(b)(1). The upper term may only be imposed if either the defendant “stipulates,” or agrees, to the upper term, or if a jury in a jury trial or the judge in a bench trial find “aggravating factors” (see Cal. Rules of Court, Rule 4.421) beyond a reasonable doubt to be true.
In addition to the middle-term being the highest term a judge can impose unless found true by jury, judge, or agreed to by the defendant, the new version of Penal Code § 1170 also created obligations wherein the judge must impose the lower term where the defendant is youthful (under 26 years old – see Cal. Penal Code § 1016.7), or has a history of trauma or abuse in their background, except in limited circumstances. Penal Code § 1170(b)(6)(B).
There is no question the new sentencing procedures in section 1170 and 1170.1 will be applicable to sentences imposed after January 1, 2022, the effective date of the statutory changes.
There remains the issue of whether the changes will be applicable to any case not final as of that date under In re Estrada (1965) 63 Cal.2d 740. Because the legislative changes confer a substantial benefit on the defendant at sentencing, Estrada should apply, at least to some extent. Whether Estrada will apply in a particular case will depend on the exact circumstances of sentencing.
In June 2016, the Mendocino County District Attorney charged Hanna Fredrickson, age 23 and a codefendant with manufacturing a controlled substance (Health & Safety Code § 11379.6(a)) and possession of marijuana for sale (Health & Safety Code § 11359). The charges were based on the discovery of honey oil, a concentrated form of cannabis, marijuana and equipment for the production of honey oil in a home in Willits occupied by Fredrickson and her codefendant.
She entered into a plea bargain wherein she agreed to serve 185 days in county jail and was otherwise placed on three years of formal probation.
She then violated probation three times, including failing to report to surrender to serve the 185 days in county jail. The judge revoked her probation and sentenced her to a five-year, middle-term split sentence comprised of two years in custody and three years of probation.
Ms. Fredrickson then appealed her sentence to the First Appellate District, arguing that her sentencing violated SB 567 (Penal Code § 1170(b)(6)(B) by imposing the five-year middle term sentence instead of the low term based on her being under age 26.
The First Appellate District denied the appeal and affirmed the trial court, ruling that there was no abuse of discretion by the trial court because there “was no explicit indication in the record that appellant’s youth contributed to the commission of the offense.”
In a footnote, the court acknowledged that it would be reasonable to presume a defendant’s youth is a contributing factor whenever a youth commits a crime. See In re Williams (2020) 57 Cal. App. 5th 427, 434 (referencing scientific studies regarding brain development). However, the Legislature opted to require a finding of causation as to all of the circumstances listed in Section 1170(b)(6) “and we have no authority to rewrite the statute.” In re L.A. (2019) 40 Cal. App. 5th 19.
We bring this short summary to the reader’s attention because being under 26 does not automatically entitle one to low term under SB 567, as we have had several callers to our office that expressed this understanding.
