Judicial Response to Sentence Review - A Test Case (From Sentencing Reform - Experiments in Reducing Disparity, P 165-174, 1982, Martin L Forst, ed. - See NCJ-87442)

• NCJ Number: 87450
• Author(s): F Ternus
• Date Published: 1982
• Length: 11 pages
• Sale Source: Sage Publications, Inc
• Language: English
• Country: United States of America

Annotation

This study describes the response of the California judiciary to the first motion for recall and resentencing because of disparity in sentencing brought by the Board of Prison Terms -- People v. Ramon Herrera -- and evaluates the future effectiveness of disparate sentencing review.

Abstract

To promote uniformity in sentencing, California's 1976 determinate sentencing law directed the Judicial Council to gather sentencing statistics and review sentencing practices and established an administrative review process for all persons committed to State prisons with determinate sentences. In 1977, Ramon Herrera was convicted by a jury of robbing persons in two different restaurants on the same evening and was sentenced to consecutive terms in prison for each conviction, totaling 9 years and 4 months. The board's review of this case concluded that Herrera's sentence differed substantially from patterns in similar cases and that a nondisparate sentence would total 6 years, 8 months. The trial court denied the motion for resentencing, an appeal court affirmed the denial, and a petition to the State Supreme Court was denied in 1982. The paper describes the board's rationale for resentencing and arguments in the appeal, emphasizing that the court simply disagreed with the board that the sentence was disparate without providing any supporting factual basis. The appeal court found that the trial court in considering such motions must first determine if the sentence is disparate and then the fact of disparity, if found, must be given 'great weight' in the decision to recall the sentence. It did not require that the trial court specify why it disagreed with the board and felt that statewide sentencing patterns should be used as guidelines not restrictions. Only 15 of the 31 motions filed by the board between August 1979 and December 1981 were granted, and even fewer terms are likely to be lowered under the Herrera decision. Moreover, new amendments remove the right to file a motion from the board and shift that burden to the defendant's trial attorney, with the board simply notifying the sentencing court that a disparity has been found. The article contains 10 footnotes, 6 case citations, and 2 references. See NCJ-87442.