People v. Nelson

Defendant appeals from the judgment committing him to state prison following his pleas of guilty to five counts of robbery (Pen. Code, § 211), each with use of a firearm (Pen. Code, § 12022.5) and one count of assault with a deadly weapon (Pen. Code, § 245) also with use of a firearm. Finding aggravated circumstances, the trial court imposed the upper term of four years imprisonment as to each count (Pen. Code, §§ 213, 245). In conjunction therewith the court found “the factors in *101 mitigation recited and found [are] heavily outweighed by the factors in aggravation heretofore recited and found, and that outweighing is by a preponderance of the evidence,. . .”

This appeal challenges the constitutionality of rule 439, California Rules of Court, because it permits the. imposition of the upper term of imprisonment upon a finding of aggravated circumstances by a preponderance of the evidence rather than beyond a reasonable doubt. 1 We uphold the rule and affirm the judgment.

Defendant asserts the use of the less stringent standard of proof to justify the upper term violates constitutional guarantees of due process of law. The imperatives of due process vary from one…

I concur in the results limited to these facts. By a rational constitutional analysis one may conclude that basic due process demands a beyond reasonable doubt standard before a person is incarcerated for an extra year. After all, no right is more precious than one’s freedom. But, as the majority indicate, the constitutional slate is not clean.

I cannot join in the court’s general assumption that equal protection (or due process) contentions will not lie under any circumstances. The legislative scheme contemplates that certain facts must be pled and proved for enhancement purposes. The reasons for aggravation cannot be of such breadth as to permit by indirection what the Legislature has not permitted. I would hold unenforceable those portions of the Rules of Court which appear to permit such a result.

The Rules of Court disturb me in a related regard. The standard of proof (preponderance) may be applied to factors so vague that no standard is readily perceived. Rules of Court (rules 421 and 423) appear to permit practically unbridled discretion in the trial judge to impose a maximum or minimum term. That cannot be. More predictability must be engrafted upon the sentencing…

Defendant appeals from the judgment committing him to state prison following his pleas of guilty to five counts of robbery (Pen. Code, § 211), each with use of a firearm (Pen. Code, § 12022.5) and one count of assault with a deadly weapon (Pen. Code, § 245) also with use of a firearm. Finding aggravated circumstances, the trial court imposed the upper term of four years imprisonment as to each count (Pen. Code, §§ 213, 245). In conjunction therewith the court found "the factors in mitigation recited and found [are] heavily outweighed by the factors in aggravation heretofore recited and found, and that outweighing is by a preponderance of the evidence, ..."

(1) This appeal challenges the constitutionality of rule 439, California Rules of Court, because it permits the imposition of the upper term of imprisonment upon a finding of aggravated circumstances by a preponderance of the evidence rather than beyond a reasonable doubt. [1] We uphold the rule and affirm the judgment.

Defendant asserts the use of the less stringent standard of proof to justify the upper term violates constitutional guarantees of due process of law. The imperatives of due process vary…