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Is a Heavy Sentence OK Anticipating Appellate Review?
The following summary of a First Appellate District ruling is sad on two levels. First, it is sad to hear about anyone committing violent crimes, let alone violent sex crimes, against a vulnerable minor which will cause that victim a lifetime of issues from the horrific experience.
Second, and perhaps even sadder, is the abuse of power by a judge who exceeds the scope of his power in a misguided attempt to overcome any reduction in the sentence by an appellate court if found to be in legal error. While defendant may indeed spend the rest of his life in prison for his crimes, the judge will only suffer professional shame.
The Gist of this Article: It is improper for a judge to impose a longer sentence than is proper in anticipating of it being reduced on appeal in order to preserve the intended (although wrong) punishment. This type of gamesmanship is fundamentally improper and a sad abuse of judicial power.
In the underlying case, the Alameda County District Attorney filed an amended information against Defendant Alphonso McInnis, charging him with forcible sexual penetration of Jane Doe 1, a minor age 14 or older (Penal Code § 289(a)(1)(C)); forcible rape of minor Doe 1 (Penal Code §§ 261(a)(2), 264(c)(2)); forcible oral copulation of minor Doe 1 (former Penal Code § 288a(c)(2)(C)); kidnapping of Doe 1 to commit robbery and or a specified sex crime (Penal Code § 209(b)); kidnapping of Jane Doe 2 to commit robbery and/or a specified sex crime (§ 209(b)); and attempted second degree robbery of Jane Doe 2 (Penal Code §§ 211, 664).
It was also alleged that Mr. McInnis personally used a dangerous or deadly weapon, a BB gun, in his crimes with Jane Doe 1.
Furthermore, it was alleged that Mr. McInnis had suffered four prior felony convictions, two of those convictions resulted in prison terms, and one was a “strike” under the Three Strikes Law (Penal Code §§ 667 and 1170.12).
Following a jury trial, Mr. McInnis was convicted of all counts except attempted second degree robbery of Jane Doe 2. During trial, the jury learned that Jane Doe 1 was fifteen years old and that McInnis robbed her of $15 while she was walking to school and raped her, despite her resistance, in a side yard that McInnis pulled her into.
Court of Appeal First Appellate District San FranciscoThe trial court judge (who name should be shared publicly, but it is unnecessary to explain the error involved) sentenced Mr. McInnis under the One Strike Law to three consecutive (not concurrent) terms of life without the possibility of parole (LWOP) pursuant to Penal Code § 667.61(l) for counts 2, 3 and 4. For count 5, the court imposed a term of life with the possibility of parole.
The judge explained his reasoning in sentencing McInnis to consecutive sentences and not making the sentences concurrent. He explained that he had concern there might be an error found on appeal, so “just out of an abundance of caution,” he imposed consecutive life sentences without the possibility of parole.
McInnis appealed the sentence to the First Appellate District, arguing that the judge erred in relying upon the possibility of appellate relief as a reason to impose consecutive rather than concurrent terms, stating that such a basis was not an appropriate basis under California Rules of Court, Rule 4.406(b)(5), and that the case should be remanded back to court for resentencing for the trial court to exercise its discretion in determining whether to impose consecutive or concurrent sentences for counts 3 and 4.
Under California Rules of Court, Rule 4.425, which lists out the factors affecting a decision whether to impose consecutive rather than concurrent sentences, a judge may consider whether “(1) the crimes and their objectives were predominantly independent of each other; (2) whether the crimes involved separate acts of violence or threats of violence; (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
The prosecutor did not dispute that the trial court’s stated reason for imposing consecutive terms was improper.
The First Appellate District Court agreed with McInnis and remanded the case for resentencing in a proper way. The appellate court explained that such gamesmanship in sentencing is illegal, citing to People v. Burbine (2003) 106 Cal. App. 4th 1250, 1253, wherein the court expressly cautioned against sentencing courts attempting “to take into account the likelihood of certain counts surviving appeal – a sentencing algorithm which might unnecessarily lead to longer original sentences.”
We present this article not because we enjoy seeing a trial court being reversed, but because we suspect this type of gamesmanship is quite common, but rarely challenged and we believe it should not be enabled through defendant’s silence. This article explains the authority to argue and hopefully inspires those improperly sentenced.
The citation for the First Appellate District Court ruling discussed above is People v. Alphonso McInnis (1st App. Dist., 2021) 63 Cal. App. 5th 853, 278 Cal. Rptr. 3d 201.
For more information about improper sentencing, please click on the following articles:
