People v. Avila, Cr. 11311

• Decision Date: 31 December 1982
• Docket Number: Cr. 11311
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesus Rodriguez AVILA, Defendant and Appellant.

Page 754

188 Cal.Rptr. 754

138 Cal.App.3d 873

The PEOPLE, Plaintiff and Respondent, v. Jesus Rodriguez AVILA, Defendant and Appellant.

Cr. 11311.

Court of Appeal, Third District, California.

Dec. 31, 1982.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Antonia D. Radillo and Mark L. Christiansen, Deputy State Public Defenders for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and William George Prahl, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Acting Presiding Justice.

Defendant was convicted by a jury of the offenses of conspiracy to commit second degree murder (Pen.Code, §§ 182, 187, 189), kidnapping for the purpose of robbery (Pen.Code, § 209, subd. (b)), and two counts of robbery (Pen.Code, § 211). The jury also found that defendant personally used a

                dangerous weapon in the commission of the kidnapping and in one of the two robberies.  (Pen.Code, § 12022, subd.  (b).)  The trial court committed him to the California Youth Authority (CYA) for the conspiracy offense, struck the weapon enchancements and stayed the sentences for the remaining offenses.  (Pen.Code, § 654.)   CYA declined to accept defendant on the sole ground his conviction of kidnapping for robbery disqualified him under Welfare & Institutions Code section 1731.5.  He was then returned to the trial court which set aside the judgment and sentenced him to the state prison for the kidnapping offense.  He appeals contending he was eligible for commitment to CYA.  We agree and direct reinstatement of the CYA commitment
                

Facts

Defendant, at the age of 20, came to Sacramento on March 23, 1980, in a pickup truck at the behest of a new-found friend, Humberto Martinez. Martinez stopped to ask directions of a woman. One of the three persons who accompanied defendant and Martinez jumped out of the pickup truck and snatched the woman's purse. The mugger jumped back into the truck and Martinez sped away. The police gave chase soon thereafter. Defendant and his four companions fled on foot when the vehicular police pursuit ended as they crashed into a barricade blocking access to the railroad tracks on First Avenue in Sacramento.

They next abducted Ruben Garcia at a Short Stop convenience store and used Garcia's car to continue their flight. Defendant struck Garcia during the initial assault and, as he was driven away in the car, held a knife to his throat. Garcia testified at the preliminary examination defendant "told me to keep it cool and don't talk because he wasn't going to cut up my throat--my throat up."

During the getaway the abductors searched Garcia, took his wallet containing twenty dollars, and discussed their resolve to kill him and flee to Mexico. Martinez, the driver, proposed taking him to a field and stabbing him. He got off Highway 99 at Elk Grove Boulevard and stopped the car in a field. Garcia was taken from the car and held by two of the men accompanying defendant and Martinez. Martinez approached with a knife but Garcia knocked his hand aside, broke away from his captors and ran, regaining his freedom.

The trial court initially committed defendant to the Youth Authority explaining that Avila had no criminal history, had been drinking with five other young men, all Mexican Nationals subject to deportation, one of whom stole a purse, another a car, for which Avila was not responsible, leading to a police chase of the stolen vehicle and panic culminating in the abduction. In these singular circumstances the trial court viewed the Youth Authority as remedially appropriate.

DISCUSSION

I

Welfare & Institutions Code section 1731.5 ¹ provides that a person under 21 years of age who is convicted of a public offense is eligible for commitment and treatment in the CYA unless, inter alia, he or she has been "sentenced to ... imprisonment for life." (Emphasis added.) CYA rejected defendant solely because he was convicted of an offense punishable by life imprisonment although he was not to be so punished. ² CYA thus reads "sentenced" to mean "conviction", a construction which facially strains definitional credulity.

CYA misreads the statute. Section 1731.5 uses "sentenced to ... life imprisonment" in a quite ordinary way as a pronouncement of that sentence. (See In re Ralph (1946) 27 Cal.2d 866, 871, 168 P.2d 1.) The act of pronouncement of sentence is more than the bare utterance of words. The words are performative, i.e., accompanied by imposition of the disqualifying penal sanction. (See generally, in J.L. Austin, Philosophical Papers (3d ed. 1979), Performative Utterances, pp. 233-252.) In a criminal action the word sentence is synonymous with judgment. (People v. Spencer (1969) 71 Cal.2d 933, 934-35, fn. 1, 80 Cal.Rptr. 99, 458 P.2d 43; see Bishop, A Judgment is a Sentence (1954) State Bar J. 111.) Although a commitment to CYA is also pronouncement of a sentence (In re Herrera (1943) 23 Cal.2d 206, 214, 143 P.2d 345) section 1731.5 makes it plain that only one sentence carrying a penal sanction is permissible for an offense punishable by life imprisonment, and that is to state prison.

However, section 1731.5 does not apply where there is no sentence. If the penal consequence of such a conviction is stayed, the defendant is not sentenced and thus is outside the ambit of section 1731.5. (See Fn. 1, supra.) CYA may not bootstrap a conviction into a sentence by reference to the life term of imprisonment mandated if a prison sentence is imposed. ³

Here, the claimed disqualifying sentence was stayed pursuant to Penal Code section 654 and California Rules of Court, rule 449. ⁴ Defendant was committed to the Youth Authority only for the offense of conspiracy to commit second degree murder which is punishable by imprisonment for fifteen years to life (Pen.Code, §§ 182, 189.) ⁵ That sentence is not disqualifying. (See In re Jeanice D., supra, 28 Cal.3d at p. 218, 168 Cal.Rptr. 455, 617 P.2d 1087; People v. Ralph (1944) 24 Cal.2d 575, 150 P.2d 401.) Were we to conclude that a sentence not to be given legal effect, a stayed sentence, counts as a disqualifying condition, we would give effect to the fact of conviction contrary to section 1731.5. We conclude that "sentenced to ... life imprisonment" means the sentence is to be carried out. Defendant was not sentenced to life imprisonment and is therefore statutorily eligible for CYA commitment.

The Attorney General seeks support for a transmutation of "sentenced" to "conviction" in cases in which the defendant was sentenced to a disqualifying penalty and consequently where no distinction between "sentence" and "conviction" was at issue. ⁶ Accordingly, the issue here is not controlled by the supposed authority upon which he relies.

II

We find support for these conclusions in the salutary purposes of section 654. ⁷ The statute prohibits punishment for more than one offense when a set of offenses are part of an indivisible course of criminal conduct. (See e.g., People v. Bauer (1969) 1 Cal.3d 368, 375-378, 82 Cal.Rptr. 357, 461 P.2d 637.) Even concurrent sentences for such offenses are prohibited (In re Wright (1967) 65 Cal.2d 650, 56 Cal.Rptr. 110, 422 P.2d 998; People v. Lee (1980) 110 Cal.App.3d 774, 168 Cal.Rptr. 231.) for the reason that concurrent sentences may have collateral consequences, amounting to increased punishment, i.e., subjection to greater punishment for subsequent offenses under habitual criminal offender statutes (In re Wright, supra, 65 Cal.2d at p. 654, 56 Cal.Rptr. 110, 422 P.2d 998).

Although the usual practice when confronted with offenses within the ambit of Penal Code section 654 is to impose sentence on the offense with the most severe punishment, the trial court has discretion to sentence on a less serious offense. (People v. Mendevil (1978) 81 Cal.App.3d 84, 89, 146 Cal.Rptr. 65; see People v. Bradley (1981) 115 Cal.App.3d 744, 753, 171 Cal.Rptr. 487; People v. Wesley (1970) 10 Cal.App.3d 902, 911-912, 89 Cal.Rptr. 377.) In either event, the procedure is to stay the execution of sentence on all but one of the offenses subject to section 654. (See Cal.Rules of Court, rule 449.) This practice arose as a device to preclude the windfall of freedom from penal sanction upon reversal of the conviction for which punishment was imposed. (See People v. Niles (1964) 227 Cal.App.2d 749, 754-756, 39 Cal.Rptr. 11; see generally 2 Witkin, Cal.Crimes (1978 Supp.) § 951A, pp. 895-897.) In that event (and only in that event) the stayed sentence would, of course, become unstayed.

The practice of staying was accepted as compatible with the prohibition against multiple punishment because it was assumed no incremental punishment can flow from the stayed sentences. (See Niles, supra, 227 Cal.App.2d at pp. 754-756, 39 Cal.Rptr. 11.) Section 654 prohibits punishment for a stayed offense. If the stayed sentence for the kidnapping for the purpose of robbery is construed to preclude a CYA commitment, the effect is the forbidden punishment.

One potentially anamolous result flows from this conclusion. If a person commits only the crime of kidnapping for the purpose of robbery he is ineligible for CYA. However, if he commits another offense as a part of the same criminal course of conduct he is eligible if the trial court stays the disqualifying sentence. This result is no more impermissible here than in any other context where the trial court is granted discretion to choose to impose sentence on the less serious Penal Code section 654 offense. (See People v. Mendevil, supra, 81 Cal.App.3d 84, 146 Cal.Rptr. 65; People v. Bradley, supra, 115 Cal.App.3d 744, 171 Cal.Rptr. 487; and People v. Wesley, supra, 10 Cal.App.3d 902, 89 Cal.Rptr. 377.) ⁸

There is no need to address the remaining contentions of the parties concerning the validity of section 1731.5. The judgment (sentence to state prison) is reversed. The trial court is...