Dexter, In re

• Decision Date: 06 December 1979
• Docket Number: Cr. 20976
• Court: California Supreme Court
• Parties: , 603 P.2d 35 In re Michael D. DEXTER on Habeas Corpus.

Page 118

160 Cal.Rptr. 118

25 Cal.3d 921, 603 P.2d 35

In re Michael D. DEXTER on Habeas Corpus.

Cr. 20976.

Supreme Court of California.

Dec. 6, 1979.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler and Robert H. Philibosian, Chief Asst. Attys. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven V. Adler, A. Wells Petersen and Gary W. Schons, Deputy Attys. Gen., for appellant.

Paul W. Legler, under appointment by the Supreme Court, Roark & Legler and Helen DeJoice Fortson, Chula Vista, for respondent.

Quin Denvir, State Public Defender, J. Courtney Shevelson and Richard Lennon, Deputy State Public Defender, as amici curiae on behalf of respondent.

CLARK, Justice.

The People appeal from an order of the San Diego County Superior Court directing the Community Release Board (CRB) to recompute petitioner's release date without a one-year enhancement for "weapons." The appeal is authorized by section 1506 of the Penal Code. ¹ As the enhancement was proper, the order appealed from must be reversed.

The question presented involves interpretation of section 1170.2, subdivision (a), providing for retroactive application of the Determinate Sentencing Act (DSL). Under that section the CRB is required to fix the term of a prisoner sentenced under the Indeterminate Sentence Law (ISL) by determining what his sentence would have been had he been sentenced under the DSL. This determination is to be made by "utilizing the middle term of the offense . . . of which the prisoner was convicted Increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony. Such matters include: being armed with a deadly or dangerous weapon as specified in Section 211a . . . prior to (the effective date of the DSL) which may result in a one-year enhancement pursuant to the provisions of Section 12022 . . . ." ( § 1170.2, subd. (a); italics added.)

Petitioner was sentenced to prison under the ISL for first degree robbery (former § 211a) pursuant to a plea bargain consisting in a plea of guilty to that offense in return for, among other considerations, striking of allegations of use of a firearm ( § 12022.5). Pursuant to section 1170.2, subdivision (a), the CRB set his base term at three years with a one-year enhancement for "weapons," predicated on its finding that petitioner or his accomplice had been armed with a firearm in the commission of the robbery.

First degree robbery under former section 211a did not necessarily entail being armed with a dangerous or deadly weapon; robbery by torture and robbery of the operator of a public conveyance were also robbery in the first degree. Moreover, a "dangerous or deadly weapon" for the purposes of former section 211a was not necessarily a "firearm" within the meaning of section 12022. Therefore, because the judgment of conviction was based on a guilty plea to first degree robbery, without any finding under section 12022, the CRB had to resort to the probation report and the transcript of the sentencing hearing to determine whether petitioner or his accomplice had been armed with a firearm during the robbery. The question presented, then, is whether the challenged enhancement, based as it is on the documents mentioned, can be said to be "justified by matters found to be true and which were imposed by the court at the time of sentencing," as required by section 1170.2, subdivision (a). For reasons to be explained below, we resolve this question in favor of the People. First, however, we consider their objection that petitioner has not exhausted his administrative remedies.

Exhaustion of Administrative Remedies

As a general rule, a litigant will not be afforded judicial relief unless he has exhausted available administrative remedies. (See, e. g., Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291-293, 109 P.2d 942.)

The requirement that administrative remedies be exhausted "applies to grievances lodged by prisoners." (In re Serna (1978) 76 Cal.App.3d 1010, 1014, 143 Cal.Rptr. 350, 351; citing In re Muszalski (1975) 52 Cal.App.3d 500, 503, 508, 125 Cal.Rptr. 286; In re Thompson (1975) 52 Cal.App.3d 780, 783-784, 125 Cal.Rptr. 261.)

Administrative review of the CRB's action in enhancing petitioner's term was available to him. Subject to exceptions not here applicable, California Administrative Code, title 15, section 2050 et sequitur provides a three-level system of administrative appeals from all decisions of the CRB affecting anyone within its jurisdiction. One of the general grounds of appeal stated in section 2051 that the challenged decision "is illegal because the board did not have the legal authority to make the decision" would appear to cover petitioner's complaint. Nevertheless, it is uncontroverted that petitioner did not begin to utilize, much less exhaust, the remedies open to him.

Petitioner contends it would have been futile for him to have sought administrative relief. It is quite true, as we shall explain below, the action of the CRB of which petitioner complains resorting to the probation report and the sentencing transcript to determine whether petitioner or another principal was armed during the commission of the robbery was consistent with clearly announced board policy. (Cal.Admin.Code, tit. 15, § 2156.) Amicus State Public Defender asserts, moreover, the CRB has consistently maintained and defended this position in like cases in which administrative remedies have been exhausted. The People do not claim the contrary. Indeed, the People appear to have voiced an objection on exhaustion grounds in this case simply to emphasize prisoners are generally required to seek administrative relief before resorting to the courts, for in their response to the amicus brief the People repeatedly insist they wish "to have the substantive issue presented herein resolved." This we now proceed to do.

The Challenged Enhancement was "Justified by Matters Found To Be True and Which Were Imposed by the Court at the Time of Sentencing"

To repeat, section 1170.2, subdivision (a), provides in pertinent part: "In the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he had committed it after July 1, 1977, the Community Release Board shall determine what the length of time of imprisonment would have been under Section 1170 . . . utilizing the middle term of the offense . . . of which the prisoner was convicted increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony. Such matters include: being armed with a deadly or dangerous weapon as specified in Section 211a . . . prior to July 1, 1977, which may result in a one-year enhancement pursuant to the provisions of Section 12022 . . . ."

Prior to 1 July 1977, section 211a provided: "All robbery which is perpetrated by torture or by a person armed with a dangerous or deadly weapon, and the robbery of any person who is performing his duties as operator of any motor vehicle, streetcar, or trackless trolley used for the transportation of persons for hire, is robbery in the first degree. All other kinds of robbery are of the second degree."

The DSL eliminated the degrees of robbery, and in providing for punishment distinguished only between robbery of a public transport operator ( § 211a) and other robberies ( § 213). Additional punishment for being armed with a firearm and/or personally using a deadly or dangerous weapon or firearm is provided by sections 12022 and 12022.5. Personal use of a deadly or dangerous weapon in the commission of a felony carries a one-year enhancement under section 12022, subdivision (b), and personal use of a firearm carries a two-year enhancement under section 12022.5. Section 12022, subdivision (a), the provision applicable here, states: "Any person who is armed with a firearm in the commission . . . of a felony shall . . . in addition and consecutive to the punishment prescribed for the felony . . . be punished by an additional term of one year, unless such arming is an element of the offense . . . . This additional term shall apply to any person who is a principal in the commission of a felony if one or more of the principals is armed with a firearm, whether or not such person is personally armed with a firearm."

Because arming with a firearm (or other dangerous or deadly weapon), personally or by another principal, was an element of the offense of first degree robbery under the ISL, no additional punishment could be imposed on that ground under section 12022 prior to the operative date of the DSL. (People v. Floyd (1969) 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862.) Therefore, simple arming often was not separately charged under section 12022, and if it was charged and found, no additional term was imposed on the finding. Moreover, plea bargaining in many cases, and this case is an example, led to striking of "use" allegations under section 12022.5 by a defendant who pleaded guilty to robbery and admitted or was found to have committed first degree robbery.

First degree robbery was punishable under the ISL by imprisonment in the state prison for not less than five years, and second degree by imprisonment for not less than one year. (Former § 213.) Thus, although there may have been no express charge or finding of use or arming in connection with a conviction of first degree robbery under the ISL, when such matters were found as the basis of a first degree conviction, the court did impose additional punishment as a result thereof.

The CRB's policy is as follows: "The DSL provides that a person who was personally armed with or who was a principal in a crime in which another principal was armed with a firearm during the commission or attempted commission of a felony shall receive an enhancement of one year if that fact is pled and proven. ( §...