The phrase “circumstances in aggravation” in Penal Code section 1170(b)(2) refers to the factors listed in California Rules of Court, rule 4.421, and the Legislature has not violated the separation of powers by referring to this rule. Zepeda was charged with felony offenses and his preliminary hearing occurred before Senate Bill No. 567 amended section 1170(b)(2) to provide that 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. After SB 567’s effective date, the prosecution was allowed to amend the information to allege various aggravating factors listed in rule 4.421. Zepeda opposed the addition of the aggravating factors on numerous grounds and ultimately filed a petition for writ of mandate or prohibition in the Court of Appeal. Held: Petition denied. To avoid a separation-of-powers issue, Zepeda argued that the phrase “circumstances in aggravation” should refer only to statutory aggravators and not to the additional factors listed in rule 4.421. The Court of Appeal analyzed section 1170, the legislative history of SB 567, and case law addressing separation of powers and the nondelegation doctrine. The court concluded that “the Legislature clearly intended to refer to the aggravating factors listed in rule 4.421 by the phrase ‘[c]ircumstances in aggravation,’ and it did not violate the separation of powers or the nondelegation doctrine by doing so.” [Editor’s Note: The court did not address whether rule 4.421(c)’s residual clause (which provides for the consideration of “[a]ny other factors . . . [that] reasonably relate to the defendant or the circumstances under which the crime was committed”) presents any separation-of-powers or nondelegation problem because it was not at issue in this case.]
Defendant did not establish that the aggravating circumstances in rule 4.421 are unconstitutionally vague for use by a jury. Zepeda and amici curiae also argued that the factors in rule 4.421 are too vague for use in jury trials, and are unconstitutionally vague in violation of due process because they fail to provide fair notice of prohibited conduct and invite arbitrary and discriminatory enforcement. The Court of Appeal disagreed. As an initial matter, the court analyzed relevant case law and concluded the void-for-vagueness doctrine applies to aggravating circumstances listed in rule 4.421 after SB 567’s amendments to section 1170(b)(2) (disagreeing with the People on this point). The purpose of the aggravating factors is to establish bounds for the exercise of sentencing discretion and the judge has discretion to not impose a greater sentence based on the jury’s finding, which offers some protection of the defendant’s liberty interest. The court disagreed with the defense that the factors in rule 4.421 must be invalidated as unconstitutionally vague based on the reasoning in Johnson v. United States (2015) 576 U.S. 591, which the court analyzed and compared to California law. The court did “not find that the individual factors listed in rule 4.421 are 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.’” Given the purpose of aggravating circumstances and a trial court’s discretion to decline to impose the upper term, the Court of Appeal concluded “that due process notice requirements are satisfied by notice of the upper term and of the fact that wrongfulness beyond that inherent in the commission of the offense, and along the dimensions identified in rule 4.421(a) and (b), may subject a person to it.” [Editor’s Notes: (1) The court noted that nothing in its “discussion precludes a conclusion that a particular aggravating circumstance may be unconstitutionally vague for reasons that have not been raised here.” Similarly, because the People did not propose their own aggravating circumstances in reliance on the residual clause in rule 4.421(c), the court did not decide whether that provision is unconstitutionally vague. (2) While this appeal was pending, the Judicial Council developed jury instructions for 11 of the aggravating factors in rule 4.421. (See CALCRIM Nos. 3224–3234.) The Court of Appeal noted that it was “not called upon to decide whether the phrase ‘distinctively worse than an ordinary commission of the underlying crime’ in the instructions accurately articulates that requirement as applied in the case law or is consistent with constitutional vagueness standards.”]
Section 1170(b)(2) does not require factual allegations supporting aggravating circumstances to be supported by evidence at the preliminary hearing. Zepeda also argued that the aggravating factors found against him must be set aside because they were not supported by evidence at the preliminary hearing. The Court of Appeal disagreed. There is no express statement in section 1170 that circumstances in aggravation must be supported by probable cause at the preliminary hearing. The court reviewed relevant case law and distinguished circumstances in aggravation from penalty provisions and enhancements, which require proof at the preliminary hearing and are subject to review under Penal Code section 995. “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 court accepted the People’s concession that there are other opportunities for a trial court to reject aggravating circumstances before sentencing. (See Pen. Code, §§ 1385, 1118.1; Evid. Code, § 402.) The court also recognized that “[a]llowing for consideration of aggravating factors at a preliminary hearing may be advisable as a policy matter to prevent overcharging and to promote fairness, but the novelty of the circumstances and the well-recognized distinction between aggravating factors and enhancements or penalty provisions prevent[ed] [the court] from simply presuming that the Legislature intended to create a right to a probable cause determination for aggravating factors.” The court did not decide whether state due process requires proof of aggravating circumstances at the preliminary hearing.