Andrews, In re

• Decision Date: 22 October 1976
• Docket Number: Cr. 19045
• Citation: 555 P.2d 97,18 Cal.3d 208,133 Cal.Rptr. 365
• Court: California Supreme Court
• Parties: , 555 P.2d 97 In re Terrell C. ANDREWS on Habeas Corpus.

Page 365

133 Cal.Rptr. 365

18 Cal.3d 208, 555 P.2d 97

In re Terrell C. ANDREWS on Habeas Corpus.

Cr. 19045.

Supreme Court of California.

Oct. 22, 1976.

Rehearing Denied Nov. 24, 1976.

Rowan K. Klein, Beverly Hills, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

By petition for writ of habeas corpus petitioner challenges the part of a judgment sentencing him to a term of imprisonment that purports to limit the effect of sentencing under Penal Code section 1202b ¹ to a term imposed for the offense of robbery, while leaving unaffected an additional, consecutive term imposed upon a finding that he used a firearm within the meaning of section 12022.5. ²

Pursuant to a plea bargain whereby a charged violation of section 217, an allegation that he caused great bodily injury to the robbery victim, and an allegation that he had suffered prior felony convictions were dismissed, petitioner pleaded guilty to first degree robbery (§§ 211, 213), and admitted the truth of allegations that he had been armed (§ 12022) with, and had used (§ 12022.5) a firearm in the commission thereof. ³ The sentence to be imposed was not a condition of the bargain.

On September 27, 1972, the court sentenced petitioner to a term of imprisonment for the robbery, invoking section 1202b, and to a consecutive term of five years to life under section 12022.5 because he had used a firearm. Counsel had argued on behalf of petitioner that because petitioner's offenses were the result of a serious narcotic problem the court should consider committing him to the Claifornia Rehabilitation Center even though the probation officer had expressed doubt that petitioner would be accepted for treatment. The court determined, however, that petitioner was not a suitable candidate for such treatment. Counsel also suggested other alternative dispositions among which was the sentence to imprisonment for the robbery under the terms of section 1202b, with an additional five-year-to-life term as provided by section 12022.5. The court expressed great concern over the serious injuries petitioner had inflicted on the victim and noted what the court perceived to be a propensity for violence in petitioner's background. Notwithstanding that concern and an inability to find 'any ray of light in this defendant's background to afford any reasonable expectation that he's going to be anything but in trouble,' and only after counsel assured the court that his understanding of section 1202b was that the section permitted the limitation of its effect to the robbery term alone, the judge accepted counsel's suggestion. ⁴ If authorized, this judgment would result in a cumulative minimum term of five and one-half years.

The court would have been more than justified in refusing to invoke section 1202b at all, but it nevertheless invoked that section because it had 'some faith and confidence' in the Adult Authority which body, it hoped, 'upon viewing this defendant's background and history will very careful about when, if ever, they release him into society.'

Petitioner now contends that this sentence is unauthorized by the terms of section 1202b. We agree. Habeas corpus is an appropriate means by which to challenge an unauthorized sentence. (Neal v. State of California (1960) 55 Cal.2d 11, 16, 9 Cal.Rptr. 607, 357 P.2d 839.)

At the outset we note that notwithstanding what may appear to have been invited error, arising from his counsel's misinterpretation of section 1202b, petitioner is not estopped to raise this issue. A court is without authority to impose a sentence not prescribed by statute. (§ 12; In re McInturff (1951) 37 Cal.2d 876, 879, 236 P.2d 574.) To the extent that a judgment imposing a term of imprisonment contains unauthorized surplusage, it is void. (In re Seeley (1946) 29 Cal.2d 294, 302--303, 176 P.2d 24.)

We turn first to an examination of the language of section 1202b. Provisions of the Penal Code must be construed "according to the fair import of their terms, with a view to effect its objects and to promote justice.' (Citation.) Consistent with that general principle, appellate courts first examine the language of the code section to determine whether the words used unequivocally express the Legislature's intent. If no ambiguity, uncertainty, or doubt about the meaning of the statute appear, the provision is to be applied according to its terms without further judicial construction.' (Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 17, 529 P.2d 46, 49.) If ambiguity is found, the statute is to be interpreted 'in light of the objective sought to be achieved by it, as well as the evil sought to be averted.' (People v. Carroll (1970) 1 Cal.3d 581, 584, 83 Cal.Rptr. 176, 178, 463 P.2d 400, 402.)

Applying these rules we conclude that the language of section 1202b itself should be determinative. ⁵ Section 1202b expressly provides that if the sentencing judge exercises his discretion to invoke its provisions in sentencing a youthful offender, he may 'specify that the minimum term of imprisonment for the offense or offenses cumulatively shall be six months.' There would seem to be no ambiguity in language which gives the judge the power to 'specify that the minimum term of imprisonment . . . shall be six months.' The authority of the judge begins and ends with the direction that the minimum term is to be six months.

Respondent, however, argues that because the statute provides that the sentencing court 'may' apply its provisions to any offense or offenses, it follows that it may fix the minimum term of any offense at six months and need not apply the six-month term to the whole judgment. The dissent, going beyond even that interpretation, suggests that the statute is susceptible to an interpretation that would permit the court to fix the minimum term or terms for any of the offenses at any period between six months and the minimum statutory term otherwise applicable. Both suggestions appear to overlook the plain language of the statute which authorizes the court to fix a single minimum term for all offenses cumulatively at six months. Even were we persuaded that the statute was ambiguous, however, such legislative history and 'administrative' construction as does exist, both of which are entitled to great weight (People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 277, 124 Cal.Rptr. 47, 539 P.2d 807; City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 696, 125 Cal.Rptr. 779, 542 P.2d 1371), support our interpretation of the language, as do those cases in which we have heretofore had occasion to consider the application of section 1202b to sections 12022 and 12022.5.

Section 1202b was enacted in 1959. (Stats.1959, ch. 916, p. 2948, § 1.) In the intervening 17 years sentencing judges have uniformly applied it by specifying that the defendant would serve a minimum term of 6 months. This is the first instance in which an appellate court has been called upon to review any other attempted application. The principal criminal law practice manual published by the Continuing Education of the Bar has so interpreted section 1202b in chapters authored by now retired appellate Justice John F. Aiso ⁶ who was a superior court judge when the section was enacted and by Everette M. Porter, ⁷ who was a member of the Adult Authority at that time.

This interpretation is also consistent with the philosophy of the Indeterminate Sentence Law and the only statement of the legislative purpose in enacting section 1202b that has come to our attention.

Under the Indeterminate Sentence Law responsibility for fixing the length of time within the statutory maximum and minimum a convicted felon is to serve in prison and/or on parole is vested in the Adult Authority. (§§ 1168, 5077; In re Rodriguez (1975) 14 Cal.3d 639, 645, 122 Cal.Rptr. 552, 537 P.2d 384.) Until 1944, a sentencing judge was permitted to commit to the Youth Authority a defendant who had been under 23 years of age when apprehended (Stats.1941, ch. 937, p. 2526, § 1), in order to 'substitut(e) for retributive punishment (,) methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses.' (Welf. & Inst.Code, § 1700.) A youthful offender committed to the Youth Authority after conviction of a felony had to be discharged when he reached his 25th birthday (Welf. & Inst.Code, § 1771) and might be discharged and/or paroled at any time the Youth Authority determined that he could be released without danger to the public. (Welf. & Inst.Code, §§ 1765, 1766.)

In 1944, however, the Youth Authority Act (Welf. & Inst.Code, § 1700 et seq.) was amended to lower the age of persons who might be committed to the Youth Authority to those who were under 21 years of age at the time of apprehension. (Stats.1944, Third Ex.Sess., ch. 2, p. 22.) The result of the amendment was that persons formerly entitled to consideration for rehabilitative treatment as youthful offenders through commitment to the Youth Authority had to be committed to the Department of Corrections and became subject to the same restrictions relating to parole and discharge as applied to other adult felons, even though in many cases codefendants under 21 years of age whose culpability and relative level of maturity was the same, had been committed to the Youth Authority. This disparity continued until the enactment of section 1202b in 1959. (Stats.1959, ch. 916, p. 2948, § 1.)

Although true 'legislative history' is nonexistent, there is persuasive evidence that the purpose of section 1202b was to allow the sentencing judge to permit a young person, who prior to 1944 might have been committed to the Youth Authority, to be treated on a partiy with...