Martin

This case concerns the standards and procedures to be followed by the trial court when the Board of Prison Terms notifies it that its sentence is disparate when compared to the sentences imposed in other cases.

*441 On September 19, 1979, defendant was found guilty of five counts of robbery. The jury also found that defendant had used a knife in two of the robberies. Before sentencing, defendant was rearrested and charged with two additional counts of robbery with a firearm enhancement for each robbery. Defendant pled guilty to the additional charges, and admitted the enhancements.

The matters were consolidated for sentencing on February 8, 1980. The trial court sentenced defendant to twelve years imprisonment: the upper term of five years for the principal robbery, a one-year enhancement for the use of a knife in that robbery (Pen. Code, § 12022, subd. (b)), 1 and six consecutive terms of one year (one-third of the middle term) for the remaining six robberies. Defendant did not appeal.

Section 1170, subdivision (f) of the determinate sentence law requires the Board of Prison Terms to review every sentence “to determine whether the sentence is disparate in comparison…

I dissent.

I agree that the two-step analysis outlined in People v. Herrera (1982) 127 Cal.App.3d 590, 601 [ 179 Cal.Rptr. 694 ], sets out a workable and proper procedure for a trial court notified by the Board of Prison Terms (Board) that it has imposed a disparately high sentence. I also agree that at the first step, in which the court simply reviews the Board’s finding that a sentence is statistically disparate, the court should defer to the expertise of the Board entrusted by the Legislature with the task of analyzing data and reviewing comparable cases.

In the present case, the court rejected out of hand the Board’s finding of disparity without offering any concrete evidence to support a contrary conclusion and on the basis of major misconceptions about the Board’s methodology. Yet the question whether a sentence is disparate is a factual rather *452 than a discretionary one, and the Board’s careful review under statutory mandate should be accepted as correct in the absence of a strong showing to the contrary. As the majority conclude, the trial court should accept the Board’s finding unless on clear evidence it finds that the latter erred in selecting the appropriate…

This case concerns the standards and procedures to be followed by the trial court when the Board of Prison Terms notifies it that its sentence is disparate when compared to the sentences imposed in other cases.

On September 19, 1979, defendant was found guilty of five counts of robbery. The jury also found that defendant had used a knife in two of the robberies. Before sentencing, defendant was rearrested and charged with two additional counts of robbery with a firearm enhancement for each robbery. Defendant pled guilty to the additional charges, and admitted the enhancements.

The matters were consolidated for sentencing on February 8, 1980. The trial court sentenced defendant to twelve years imprisonment: the upper term of five years for the principal robbery, a one-year enhancement for the use of a knife in that robbery (Pen. Code, § 12022, subd. (b)), [1] and six consecutive terms of one year (one-third of the middle term) for the remaining six robberies. Defendant did not appeal.

Section 1170, subdivision (f) of the determinate sentence law requires the Board of Prison Terms to review every sentence "to determine whether the sentence is disparate in…