As the reader of this article may already be aware, Senate Bill (SB) 567 amended Penal Code § 1170(b) regarding the procedure for a court to set a sentence length for a prison term.
Under the new law, when a statute provides for three possible lengths (a “sentencing triad”) of a low term, middle term and a high term, the judge must impose the middle term unless there are aggravating circumstances in the crime and defendant either stipulated to the facts underlying those circumstances or they were found true beyond a reasonable doubt by the jury or the judge in a bench trial.
Senate Bill 567 is retroactive to sentencing on cases that are not considered final, which can mean cases on which there is a pending appeal.
In San Diego Superior Court, a jury convicted Nathan Christian Wandrey of over two hundred counts involving assault with intent to commit a sexual offense against a victim under age 18 (Penal Code § 220(a)(2) and commission of lewd acts upon a child (Penal Code §§ 288(a) and 288(c)(1)).
The victim was the daughter of Wandrey’s then-girlfriend while the daughter was eleven, twelve, thirteen and fourteen years old. The crimes involving inappropriate touching of the girl’s breasts and vagina and stopped when her mother and Wandrey broke up when the girl was fifteen. The girl then reported this to police when she had her first boyfriend later than year and the boyfriend encouraged her to talk to the police.
Police then had the girl make a “pretext call” during which Wandrey made incriminating statement and tacit admissions of such conduct.
In sentencing, which was in 2020, before SB 567 became effective on January 1, 2022, the judge found three aggravating factors significant and more did not give much weight to the fact that Wandrey had no prior criminal history.
The three aggravating factors were:
- That Wandrey took advantage of a position of trust and confidence (California Rules of Court, rule 4.421(a)(11), in that he concealed himself as a person who cared for the minor and as a father figure and as a person who was in a relationship with the victim’s mother for purposes of allowing him unsupervised access to the victim at a young and vulnerable age, allowing him to commit over 100 felony offenses in secret and without resistance;
- The victim was particularly vulnerable (rule 4.421(a)(3)) because she was only 12 years old when Wandrey began to molest her, he was aware that she was being raised in an already troubled and difficult environment and without adequate adult supervision and care, he was aware she had no father figure and was at an age and disposition where a person who appeared to fulfill that role would yield enormous influence over her for many years to come and because of her young age she was not only powerless to physically repel his assaults, but she lacked the life experiences to even know that what the defendant was doing to her was criminal; and
- The manner in which the crimes were committed indicated planning (rule 4.421(a)(8)) in that he groomed her to incorporate such molestation into what she believed were otherwise normal behavior leading her to believe such sexual assaults were appropriate conduct, allowing him to increase the severity of the assaults over time.
The court sentenced Wandrey to the high term on each count for a total of 756 years in state prison, as such sex offense convictions result in consecutive, not concurrent, sentences under Penal Code § 667.6(c).
On appeal, the Fourth Appellate District framed the issue as whether the court’s high term sentencing, without a jury finding or a stipulation from defendant, was harmless error under Chapman v. California (1967) 386 U.S. 18. Put another way, under People v. Sandoval (2007) 41 Cal. 4th 825, 828, was the denial of the right to a jury trial on aggravating circumstances a harmless Sixth Amendment violation? The answer was whether a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance. Sandoval, at 839.
Here, the Fourth Appellate Court concluded that it could not find unquestionably that a jury would have found any one of the three aggravating circumstances true, so it vacated the sentence and remanded the case to the trial court for further proceedings.
While we applaud the Fourth Appellate District Court’s ruling, we believe a jury will certainly find one of the aggravating circumstances true beyond a reasonable doubt, resulting in the same sentence. Conversely, if the jury does not find any one of the aggravating circumstances true, the sentence will be to the mid-term, which will nonetheless result in a sentence over two hundred years long, meaning defendant certainly will still spend the rest of his life in prison.
For more information about SB 567, please click on the following articles: