California's Determinate Sentencing Law
Under California's Determinate Sentencing Law (DSL), statutes defining most felony offenses prescribe three terms of imprisonment -- a lower, middle, and upper term sentence.
A violation of Penal Code section 191.5 is punishable by imprisonment in the state prison for four, six, or ten years. (Pen. Code, 191.5, subd. (c).)
Although at the time of defendant's crime, the DSL provided that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime," (Stats. 2004, ch. 747, 1)
Senate Bill No. 40 amended Penal Code section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states.
As amended, section 1170 now provides as pertinent:
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." ( 1170, subd. (b).)
This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, 2.) The trial court's sentence, which was imposed on June 20, 2007, followed these directives.