People v. Eberhardt

• Decision Date: 28 February 1985
• Docket Number: Cr. 17147
• Citation: 211 Cal.Rptr. 280,165 Cal.App.3d 1151
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Joe Garland EBERHARDT, Christine Marie Hill and Richard Arganda Loya, Defendants and Respondents. G000674.

Page 280

211 Cal.Rptr. 280

165 Cal.App.3d 1151

The PEOPLE of the State of California, Plaintiff and Appellant, v. Joe Garland EBERHARDT, Christine Marie Hill and Richard Arganda Loya, Defendants and Respondents.

G000674.

Cr. 17147.

Court of Appeal, Fourth District, Division 3, California.

Feb. 28, 1985.

As Modified April 1, 1985.

Hearing Granted May 2, 1985.

Cecil Hicks, Dist. Atty. (Orange), Michael R. Capizzi, Asst. Dist. Atty. and William W. Bedsworth, Deputy Dist. Atty., for plaintiff and appellant.

Christopher J. Hennes, Costa Mesa, under appointment by the Court of Appeal, for defendant and respondent Joe Garland Eberhardt.

Howard Goodman, Encino, under appointment by the Court of Appeal, for defendant and respondent Christine Marie Hill.

Quin Denvir and Frank O. Bell, State Public Defenders, under appointment by the Court of Appeal, Jonathan B. Steiner, Chief Assistant State Public Defender, F. Elaine Easley, Deputy State Public Defender, for Defendant and Respondent Richard Arganda Loya.

OPINION

SONENSHINE, Associate Justice.

The People ask us to consider whether a trial court may suspend imposition of sentence on prior felony enhancements. (Pen.Code, §§ 667, 667.5.) ¹ In addition they complain probation reports were not obtained before the defendants were sentenced.

* * *

Defendants Joe Garland Eberhardt, Christine Marie Hill and Richard Arganda Loya were charged with several felonies and firearm enhancement allegations. ² Each was also alleged to have been previously convicted of one or more felonies resulting in a term of imprisonment. ³ At arraignment in superior court each defendant pleaded guilty as charged, admitted all the firearm enhancement and prior felony allegations and was sentenced.

Eberhardt was sentenced to seven years in prison: three years (the mid term) on Count I with two additional years for the firearm use enhancement ( § 12022.5); one year each (one-third the mid term) to be served consecutively on Count II and Count IV for a total of seven years. The judge then indicated, "All other enhancements alleged and all priors alleged plus the balance of the counts are stayed...."

The court sentenced Hill as follows: three years (the mid term) on Count I with an additional year for a firearm enhancement ( § 12022, subd. (a)) ⁴ for a total of four years in state prison. Again the court said, "Sentence on the priors alleged as well as the balance of the counts is stayed...."

Finally, Loya was sentenced as follows: three years (the mid term) on Count II with an additional year for a firearm enhancement ( § 12022, subd. (a)), for a total of four years in state prison. And again the judge declared, "Sentence on the priors, any other enhancements and the balance of the counts is stayed, stay to become permanent upon completion of the four years just imposed." ⁵ The People appeal, complaining probation reports were not obtained and the court failed to impose consecutive sentence enhancements for the prior convictions.

I

It is true the trial court did not order probation reports for any of the defendants. The People argue probation reports were mandated by section 1203, subdivision (b), ⁶ because the defendants were statutorily eligible for probation. Eberhardt and Loya counter that, for various reasons, ⁷ they were not eligible for probation and the referral to the probation officer was discretionary by virtue of section 1203, subdivision (g). ⁸ They contend no abuse of discretion has been shown. Hill argues, relying on a series of amendments to section 1203, a probation report is mandatory only where a defendant has made an application for probation. She made no such application.

We need not, and indeed cannot, resolve this dispute. Assuming the trial court erred when it failed to order probation reports, the People nonetheless have no remedy by way of appeal. " 'The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases.' [Citation.] Those circumstances are enumerated in section 1238." (People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622.) ⁹

We find nothing in section 1238 which even arguably permits an appeal by the People from a trial court's failure to order a probation report. Our Supreme Court has admonished "if the order is not appealable under accepted rules concerning appealability, we should not by fiat announce that it is appealable merely because it is egregiously erroneous." (People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633, emphasis added, disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641, in turn overruled on other grounds in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.) We are not deciding the trial court's omission was "egregiously erroneous." The passage from Valenti simply underscores the fact the presence of error does not compel appealability where none exists.

Valenti's reference to an appeal from an order is not without significance. Even if some later act of the trial court is appealable, this does not permit the People to reach back and request review of a prior nonappealable order. (See People v. Glaser (1965) 238 Cal.App.2d 819, 821, 48 Cal.Rptr. 427.) The prosecution argues "pendant jurisdiction" permits review on this issue because the sentences are appealable. The argument is unconvincing and made without citation to authority. To so hold would destroy the statutory scheme embodied in section 1238. "[T]he Legislature has struck a delicate balance in 'choosing with some precision the situations' in which the People may appeal; therefore, the courts should not stretch the statutory language of Penal Code section 1238 to include situations beyond the statute's manifest meaning. [Citation.]" (People v. Mendevil (1978) 81 Cal.App.3d 84, 87, 146 Cal.Rptr. 65, fn. omitted.) The trial court's failure to order probation reports is not properly before this court for review.

II

Whether the sentences are appealable presents a more complex question. The People assert an appeal properly lies pursuant to section 1238, subdivisions (a)(5) and (a)(6).

Where a court imposes sentence but stays its execution pursuant to section 654, ¹⁰ an appeal lies from the stay as an "order made after judgment" under section 1238, subdivision (a)(5). (People v. Mendevil, supra, 81 Cal.App.3d 84, 87-88, 146 Cal.Rptr. 65; see also People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63; People v. Holly (1976) 62 Cal.App.3d 797, 801-802, 133 Cal.Rptr. 331.) But here the court did not impose sentence and stay execution; it stayed imposition of sentence. Since the sentence is the judgment (Stephens v. Toomey (1959) 51 Cal.2d 864, 869-870, 338 P.2d 182; see also People v. Orrante (1962) 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480; People v. Chapman (1921) 55 Cal.App. 192, 194, 203 P. 126), a section 654 or other stay where no sentence is imposed cannot be an "order made after judgment."

The People argue, in essence, the sentences on the charges and enhancements must be viewed in the aggregate for the purpose of appealability. Because the court had already imposed sentences on the unstayed robbery charge and weapons enhancement, so the argument goes, the stays were "orders made after judgment" because there were sentences, and thus judgments, on the unstayed charge, or in the case of Eberhardt, charges and enhancement.

While creative, the argument does not withstand analysis. The People rely on Perez, Mendevil and Holly, but none of them supports the proposition a stay is an "order made after judgment" even where imposition of sentence has been suspended simply because sentence has been imposed previously on another count or other counts. ¹¹ In addition, the People's position would render appealability dependent upon chronological fortuities in the pronouncement of judgment. Should the court first suspend imposition of sentence on one or more counts and then impose an unstayed sentence on another count, the stay would not be appealable under section 1238, subdivision (a)(5) if the logic of the People's position is adopted. The question of appealability should not be resolved based on the sequence in which judgment is pronounced.

The cases addressing appealability under section 1238, subdivision (a)(5) where the People contest a grant of probation, also undermine the People's position. If the grant of probation comes after execution of sentence is suspended, the order is appealable under that particular subdivision. (People v. Villegas (1971) 14 Cal.App.3d 700, 703, fn. 2, 92 Cal.Rptr. 663; ¹² People v. Superior Court (Leslie) (1953) 118 Cal.App.2d 700, 258 P.2d 1087.) But where imposition of sentence is suspended before the probation order, there is no "order made after judgment" and hence no appeal (People v. LaFave (1979) 92 Cal.App.3d 826, 829, 156 Cal.Rptr. 63; People v. Orrante, supra, 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480); the People must seek relief by a petition for an extraordinary writ. (People v. Superior Court (Guerrero) (1962) 199 Cal.App.2d 303, 305, 18 Cal.Rptr. 557.)

In summary, a stay is appealable after execution of sentence is suspended on the stayed count. But stays are not "order[s] made after judgment" where sentence is never imposed on the counts stayed. To hold otherwise would stretch the statutory language beyond its manifest meaning. (People v. Mendevil, supra, 81 Cal.App.3d 84, 87, 146 Cal.Rptr. 65.) No appeal lies under section 1238, subdivision (a)(5).

III

Appealability under section 1238, subdivision (a)(6) presents a complex issue, which emanates from an ambiguity in the statute itself. As it applies here, subdivision (a)(6) permits an appeal from "[a]n order modifying the verdict or finding by reducing the degree of ... the punishment imposed...."

But "[t]he 'degree of ... punishment imposed' as used in subdivision (a)(6)...