People v. Begnaud

• Decision Date: 15 November 1991
• Docket Number: No. E009064,E009064
• Citation: 1 Cal.Rptr.2d 507,235 Cal.App.3d 1548
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Kent John BEGNAUD, Defendant and Appellant.

Page 507

1 Cal.Rptr.2d 507

235 Cal.App.3d 1548

PEOPLE of the State of California, Plaintiff and Respondent, v. Kent John BEGNAUD, Defendant and Appellant.

No. E009064.

Court of Appeal, Fourth District, Division 2, California.

Nov. 15, 1991.

[235 Cal.App.3d 1550] John Ward and Eric Weaver, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith I. Motley and Robert M. Foster, Supervising Deputy Attys. Gen., and Nancy Palmieri, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

This case is before us a second time because of alleged errors in the court's re-sentencing of defendant. We affirm.

FACTS

In the first appeal, in an unpublished opinion, this court affirmed the defendant's conviction for commercial burglary but reversed his conviction for assault on a police officer because of ineffective assistance of counsel.

On January 18, 1991, the People dismissed the assault charge and defendant was sentenced on the commercial burglary. The trial court imposed an aggravated term of three years for this count along with a one-year enhancement pursuant to PENAL CODE SECTION 667.5¹, subdivision (b) for a total term of four years. At the original sentencing in 1989, the court had set the assault as the principal term and imposed a middle term of four years on that count, a one-year enhancement under section 667.5 and a consecutive one-third the middle term of two years on the burglary for a total sentence of five years and eight months.

CONTENTIONS

Defendant in essence contends he was penalized for his successful appeal by the court's imposition of a greater sentence on remand. He also contends the court failed to state adequate reasons for imposing an aggravated term and erred in failing to obtain a current probation report prior to re-sentencing.

We raised the issue of the trial court's jurisdiction to resentence the defendant on the commercial burglary and asked the parties to submit additional briefs on this issue.

TRIAL COURT JURISDICTION TO RESENTENCE

Under the prior Indeterminate Sentence Law, the cases held that once execution of the sentence has begun, the trial court has no jurisdiction to resentence or consider a renewed application for probation. (In re Black (1967) 66 Cal.2d 881, 890-891, 59 Cal.Rptr. 429, 428 P.2d 293.) Accordingly, one court held, in reliance on Black that if a conviction was affirmed on appeal, the trial court had no jurisdiction to resentence on that conviction simply because other convictions were reversed. (People v. Colbert (1970) 6 Cal.App.3d 79, 85 Cal.Rptr. 617.) "If ... defendant has started to serve the sentence ..., it is the general rule that the trial court's jurisdiction to grant probation ceases. [Citation.] We have found no authority to support the proposition that jurisdiction to grant probation, once denied, revests, where a defendant, on appeal, obtains a favorable result as to some counts, but not as to others." (Id., at p. 85, 85 Cal.Rptr. 617.) The question is whether this rule was changed with the enactment of the Determinate Sentencing Law (DSL). We believe it was.

While DSL is, without a doubt, "a legislative monstrosity, which is bewildering in its complexity," (People v. Sutton (1980) 113 Cal.App.3d 162, 164, 169 Cal.Rptr. 656) ², in one, if not the only, respect the meaning and implementation of DSL should be fairly clear--when a defendant is sentenced consecutively for multiple convictions, whether in the same proceeding or in different proceedings, the judgment or aggregate determinate term is to be viewed as interlocking pieces consisting of a principal term and one or more subordinate terms. (§ 1170.1, subd. (a).) Section 1170.1, with certain exceptions, also places certain restrictions on the sentencing judge's discretion such as limiting the term of imprisonment for a subordinate term to no more than one-third the middle term of imprisonment for such conviction and limiting the total term of imprisonment to no more than twice the number of years imposed as the base term.

Because of this interlocking aspect of DSL, it has been recognized that when a sentencing error is made with respect to one part of the judgment, a remand for re-sentencing on all of the convictions is often proper. (People v. Savala (1983) 147 Cal.App.3d 63, 68-69, 195 Cal.Rptr. 193, overruled on different grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1044, 1046-1047, 216 Cal.Rptr. 865.) The California Supreme Court also has recognized the propriety of resentencing on all convictions, not only for sentencing error but also when the conviction for the principal term is reversed. "If the conviction underlying the principal term is reversed, it then becomes necessary for the trial court to select the next most serious conviction to compute a new principal term. Thus, whenever an appellate court reverses a conviction for the principal term, the trial court retains jurisdiction over the entire cause as needed to make the necessary modifications in the sentence." (People v. Bustamante (1981) 30 Cal.3d 88, 104, fn. 12, 177 Cal.Rptr. 576, 634 P.2d 927.)

Thus, as one court has expressly held, section 1170.1, subdivision (a) "represents a statutory exception to the general rule" that a sentence lawfully imposed cannot be modified once a defendant is committed and execution of his sentence has begun. (People v. Bozeman (1984) 152 Cal.App.3d 504, 507, 199 Cal.Rptr. 343.) ³ In Bozeman, the appellate court held that a trial court in a second criminal proceeding could modify an earlier judgment rendered by a different court and make that judgment a subordinate term to the subsequently imposed sentence in the second action. (Ibid.) "The exception provided by section 1170.1, subdivision (a) is necessary and makes good sense. Without it, sentencing courts would be unable to impose full terms under sections 669 and 1170 for serious crimes when those crimes are committed by defendants who have been previously convicted and sentenced for less serious offenses." (Ibid.)

Although the trial court's jurisdiction to resentence on consecutive subordinate terms which are final because of a reversal of the principal term would seem beyond question in light of the interlocking nature of DSL, one case has suggested that, at least in the context of two proceedings, the trial court has no such jurisdiction. (People v. Bond (1981) 115 Cal.App.3d 918, 172 Cal.Rptr. 4.) In that case a principal term for possession of heroin for sale had been imposed by one court and in a subsequent case a second court, acting pursuant to section 1170.1, subdivision (a), sentenced defendant to a consecutive subordinate term of one-third the middle term. Defendant appealed the judgment in the first case but did not appeal from the second judgment. After the judgment in the first action was reversed and that count was dismissed, the trial court in the second case attempted to resentence the defendant.

The appellate court held that the judgment rendered in the second action became final when no appeal was taken and therefore the trial court did not have jurisdiction to resentence on what had been a subordinate term. The court explained that in sentencing defendant to a consecutive one-third the middle term, the trial court in the second action had stayed the remaining two-thirds of the middle term. When the principal term was reversed, the stay was removed and the full middle term became the sentence. In reaching this result, the court relied on People v. Niles (1964) 227 Cal.App.2d 749, 39 Cal.Rptr. 11 and California Rules of Court, rule 449. In Niles, the court had determined that the appropriate sentencing procedure for multiple convictions in a section 654 context is to stay execution of sentence for those convictions, sentence for which would violate section 654. The court in Bond went on to state "[t]he practice articulated in Niles has been carried over into the determinate sentence law by California Rules of Court, rules 447 and 449, the latter of which is in conformity with Niles and controlling. It provides: 'When a sentence of imprisonment is imposed upon a defendant convicted of more than one crime, the judgment shall set forth the sentence to a base term and applicable enhancements for each of the crimes, computed independently. If required by statutory limitations on the enhancement resulting from consecutive terms or by the limitations of section 654, the judgment shall stay execution of so much of the term, or on those crimes, for which the imposition of the full sentence is prohibited.' " (People v. Bond, supra, 115 Cal.App.3d 918, 922, 172 Cal.Rptr. 4.)

The holding in Bond suggests that in any case where the principal term is reversed, the trial court cannot resentence on the conviction for which the subordinate term had been imposed if that conviction and judgment is final. ⁴ The "Niles rule" of staying execution is entirely appropriate to avoid violations of section 654. Use of a stay may as well be an acceptable alternative to effect compliance with section 1170.1, subdivision (a). However, we believe the trial court has jurisdiction to resentence on all convictions when the principal term is modified or reversed even in the absence of a stay.

As the court in People v. Bozeman expressly held and the court in People v. Bustamante implicitly recognized, section 1170.1, subdivision (a) creates an exception to the general rule that jurisdiction ceases when execution of the sentence begins. The interlocking nature of DSL compels this conclusion. In imposing a subordinate term which is to run consecutive to a principal term, the sentencing court is in reality without discretion. The term is fixed at one-third the middle term and it matters not whether the trial court imposes a term of one-third the middle term...