Calhoun, In re

• Decision Date: 03 June 1976
• Docket Number: Cr. 19066
• Citation: 549 P.2d 1235,17 Cal.3d 75,130 Cal.Rptr. 139
• Court: California Supreme Court
• Parties: , 549 P.2d 1235 In re Donald Lee CALHOUN on Habeas Corpus.

Page 139

130 Cal.Rptr. 139

17 Cal.3d 75, 549 P.2d 1235

In re Donald Lee CALHOUN on Habeas Corpus.

Cr. 19066.

Supreme Court of California,

In Bank.

June 3, 1976.

John F. Bowman, Sacramento, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones, and Garrick W. Chock, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Penal Code section 669 ¹ permits a trial court under certain circumstances to defer for 60 days a decision on whether a defendant with a prior existing conviction should serve his terms concurrently or consecutively. The trial court in the instant case relied upon section 669 in deliberately deferring its sentencing of a defendant convicted of multiple offenses. During the deferral, the court received an ex parte communication from the prosecutor recommending imposition of consecutive sentences; thereafter, the court sentenced the defendant to consecutive terms. As we shall explain, we have concluded that the sentencing procedure failed on three separate grounds: (1) The reference to a 'prior existing judgment' in section 669 does not allude to a second conviction in the same proceeding; (2) section 669 does not authorize a deliberate deferral of sentencing; and (3) section 669 does not permit the sentencing court to receive extrajudicial communications during the deferral period.

Petitioner Donald Lee Calhoun, a juvenile with no prior record, pleaded guilty in the municipal court to two counts of first degree robbery. At the probation and sentencing hearing in superior court, the judge announced that he was reserving decision on the issue of whether Calhoun's terms should run concurrently or consecutively. Later, the prosecutor wrote a memorandum to the judge reminding him that Calhoun's terms 'automatically' would run concurrently if a determination were not made within 60 days of the judgment. The prosecutor recommended consecutive terms for Calhoun because, as he wrote to the judge, 'although positive identification was impossible, I personally feel that . . . (he) was the individual that shot (two persons)' and because 'this court observed Donald Calhoun perjure himself on two occasions' in an alleged accomplice's trial. ²

The prosecutor did not send a copy of the letter to Calhoun or his counsel, nor did he afford any opportunity to Calhoun to rebut the charges levelled in the communication. Thereafter, within the 60-day period the court entered a nunc pro tunc order sentencing Calhoun to consecutive terms. Calhoun subsequently petitioned for habeas corpus, and we issued an order to show cause.

Section 669 mandates the sentencing court to specify at the time of judgment whether a defendant convicted of two or more crimes will serve his terms concurrently or consecutively. ³ That decision, however, may be rendered 'at any time prior' to 60 days after judgment if either (1) the sentencing courts did not know of a prior existing judgment or (2) the court, 'having knowledge (of the prior existing judgment),' fails to determine how the terms of imprisonment shall run. ⁴ If no decision is made, the terms run concurrently.

1. The reference to a 'prior existing judgment' in section 669 does not allude to a second conviction in the same proceeding.

The section allows deferral only when there is a 'prior existing judgment.' Since Calhoun had no previous record, his sentencing determination may be deferred only if the term 'prior existing judgment' encompasses a second conviction in the same proceeding. We hold that it does not.

The final sentence of section 669 suggests the appropriate definition of the term. There the Legislature mandated the State Board of Prison Directors to inform the sentencing court of all 'prior judgments' against the defendant. ⁵ Obviously, there is no need to inform the sentencing court of convictions in the same proceeding. The term 'prior judgments' thus evidently refers to convictions Before the present proceeding. The Legislature's use of a virtually identical term in the authorization for subsequent sentencing determinations indicates that the Legislature there also was referring only to judgments of conviction prior to the instant proceeding. Thus we conclude that the Legislature did not authorize a subsequent sentencing determination when the only 'prior' consists of another conviction in the same case.

The Court of Appeal decision in In re Sweet (1952) 113 Cal.App.2d 413, 415, 248 P.2d 94, supports this interpretation of the section. In Sweet, the court construed section 669 as authorizing a deferred sentencing determination only when the defendant had Earlier been reached under other Penal Code sections. Thus, in People v. McGee (1936) 1 Cal.2d 611, 614, 36 P.2d 378, we held that a defendant was ineligible for probation only if his previous conviction occurred Before the offense for which he was subsequently charged. Similarly, in People v. Diaz (1966) 245 Cal.App.2d 74, 77, 53 Cal.Rptr. 666, the court held that a narcotics addict was subject to the mandatory 15 years to life penalty for third offenders only if the defendant had been twice convicted before the instant offense. (See In re Pfeiffer (1968) 264 Cal.App.2d 470, 476, 70 Cal.Rptr. 831; 24 A.L.R.2d 1234, 1248--1249). A similar narrow interpretation of the term 'prior conviction' is appropriate in the instant case.

As the People point out, the Court of Appeal in People v. Reimringer (1953) 116 Cal.App.2d 332, 342--343, 253 P.2d 756, in a case in which the defendant was convicted of multiple offenses, reached a contrary conclusion, interpreting the 'prior existing judgment' language of section 669 as inclusive of the earlier conviction. Under this construction, deferral of sentencing would apparently be appropriate in any case involving multiple convictions. We reject this interpretation, and disapprove the decision in Reimringer; we do not believe the Legislature could have reasonably intended the phrase 'prior existing judgment' to apply to a conviction entered only seconds before the 'subsequent' conviction.

Thus, since there was no 'prior existing judgment' in the instant case, the trial judge lacks the authority to defer sentencing.

2. Section 669 does not authorize a deliberate deferral of sentencing.

Moreover, we conclude that deferral of sentencing was inappropriate in this case for an additional reason. In In re Sweet, supra, 113 Cal.App.2d 413, 248 P.2d 94, the court suggested that section 669 authorizes a subsequent determination of sentencing only if a trial court is unaware of the prior judgment, or if aware of a prior judgment, Inadvertently fails to decide at the time of judgment how the terms should run. In the instant case, of course, the trial court was well aware of both convictions and deliberately deferred the sentencing decision. Under Sweet's analysis, the statute did not authorize this deliberate deferral.

The People, pointing out that the statutory language does not distinguish between inadvertent and deliberate inaction by the trial court, urge us to construe the statute to permit a later sentencing decision in both situations, thus validating the intentional deferral in the instant case. This latter interpretation strains the statutory syntax. The 60-day delay provisions are phrased as Exceptions to the general rule that the trial court must decide at the time of judgment how the terms should run. Under the People's reading, there would be no situation in which the trial judge could not delay the determination of sentencing when confronted with a defendant who was subject to a prior existing judgment; the exceptions would swallow the rule, vitiating the requirement of immediate determination.

Moreover, the People's interpretation conflicts with the policy of speedy dispatch and certainty expressed in the requirement of section 1191 that judgment and sentence be pronounced within 21 days of conviction. Although the People speculate that the Legislature may have desired the trial judge to be able to defer his determination of sentencing for more careful deliberation, the postponements already permitted by section 1191 provide ample opportunity for reflection. Since no reason appears why the Legislature might have intended to depart from the statutory policy of speedy sentencing, we must adopt the interpretation most consistent with the overall legislative design (see People ex rel Younger v. Superior Court (Board of Port Commissioners) (1976) 16 Cal.3d 30, 127 Cal.Rptr. 122, 544 P.2d 1322), namely, that the trial judge cannot Deliberately postpone the determination of whether his sentence will run concurrently or consecutively.

The legislative history supports this construction. Before 1935, the trial court's failure to specify consecutive terms at the time of judgment resulted automatically in concurrent terms. Thus, even if the trial court did not know at the time of judgment of a prior existing conviction, the second sentence merged into the unserved term (In re Radovich (1943) 61 Cal.App.2d 177, 181--182, 142 P.2d 325). The Legislature eliminated this anomaly by amending section 669 in 1935 to require the State Board of Prison Directors to inform the trial court within 60 days after judgment of prior existing convictions and to allow the trial court, upon learning of the earlier judgment, to specify that the subsequent term would be served consecutively.

This amendment did not, however, prevent accidental concurrent sentencing because of other sources of error, such as the trial judge's forgetfulness or his unawareness that an immediate decision was required. We regard the 1941 amendment, allowing a subsequent sentencing determination in those cases in which the trial court knew of the prior conviction, as intended to meet this problem of 'inadvertent' error, rather than to sanction intentional postponement of the...