People v. Bond
Decision Date | 17 February 1981 |
Docket Number | Cr. 36702 |
Citation | 172 Cal.Rptr. 4,115 Cal.App.3d 918 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Carl Robert BOND, Defendant and Appellant. |
This purported appeal by defendant Carl Robert Bond (hereinafter defendant and/or Bond) serves to corroborate the accuracy of certain of the observations of Presiding Justice Robert Gardner of the Fourth Appellate District concerning the Determinate Sentence Law articulated in People v. Sutton (1980) 113 Cal.App.3d 162, at page 164, 169 Cal.Rptr. 656; and in Community Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, in fn. 1 on page 815, 154 Cal.Rptr. 383.
Defendant Bond was convicted in a jury trial of possessing heroin and phenobarbital for the purpose of sale in Los Angeles Superior Court case No. A138439. On July 10, 1978, he was sentenced to state prison in that matter for a term of three and two-thirds years.
On the same date in the present case, Los Angeles Superior Court case No. A138081, defendant entered a plea of guilty to possessing heroin for sale. The court in pronouncing judgment stated:
Apparently by reason of this development, on September 27, 1979, the court purported to conduct a new sentencing as to its long since final judgment in the present proceeding, i. e., A138081 and reconfirmed the three-year term previously imposed. 1 Defense counsel objected thereto claiming, inter alia, that he had been required to serve but one year in this action and the court had no jurisdiction to alter this one year "term" in a more onerous way.
Defendant was partially correct in that the court had no jurisdiction to resentence him at all and the proceedings here under review were a nullity.
The court's oral pronouncement of judgment on July 10, 1978, its minutes, and the amended abstract of judgment indicate that the middle term of three years was imposed although pursuant to the provisions of Penal Code section 1170.1, subdivision (a), appellant would be required to serve but one year of this term consecutively to the then effective sentence in A138439. While the sentencing court did not expressly state that the remaining two years were "stayed," no other interpretation of the judgment is possible.
The seminal case of People v. Niles (1964) 227 Cal.App.2d 749, 39 Cal.Rptr. 11, approved by our Supreme Court in In re Wright (1967) 65 Cal.2d 650, 56 Cal.Rptr. 110, 422 P.2d 998 and followed by that court (People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552) establish the now well known rule in the Penal Code section 654 context that (People v. Miller, supra, at p. 886, 135 Cal.Rptr. 654, 558 P.2d 552.)
The 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:
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