People v. Foley

• Decision Date: 06 August 1985
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Allan FOLEY, Defendant and Appellant. Crim. 13459.

Page 865

216 Cal.Rptr. 865

170 Cal.App.3d 1039

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Allan FOLEY, Defendant and Appellant.

Crim. 13459.

Court of Appeal, Third District, California.

Aug. 6, 1985.

Review Denied November 14, 1985. ^*

Frank O. Bell, Jr., State Public Defender, Charles M. Bonneau and Gabriel C. Vivas, Deputy State Public Defenders, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Eddie T. Keller, Supervising Deputy Atty. Gen., Gary A. Binkard and Cynthia Besemer, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

In this case, we hold a supplemental presentence probation report must be prepared for use at a defendant's resentencing following an appeal, even where the defendant is ineligible for probation. In so Defendant Jack Allan Foley was convicted by jury of one count of sodomy by force, etc. ( § 286, subd. (c)), one count of rape by force or fear ( § 261, subd. (2)), and one count of false imprisonment ( § 236) for criminal acts committed by him on September 5 and 6, 1981. Defendant was originally sentenced to the middle term of six years for violation of subdivision (2) of section 261, and a full, consecutive middle term of six years for violation of subdivision (c) of section 286, pursuant to subdivision (c) of section 667.6. The sentence for violation of section 236 (false imprisonment) was stayed pursuant to section 654.

                holding, we disapprove a footnote to the contrary in our prior opinion in People v. Savala (1983) 147 Cal.App.3d 63, 195 Cal.Rptr. 193.   We also determine that in prosecutions for multiple offenses which include violation of either [170 Cal.App.3d 1045] PENAL CODE  SECTION 2861, subdivision (c) or section 288a, subdivision (c) involving a threat of great bodily harm, the prosecution should plead that the latter crimes were accomplished by "threat of great bodily harm," and the jury should make a special finding whether the pleaded assertion is true, so the trial court will know whether it has discretion to impose a full-term consecutive sentence for conviction of either of those sections under section 667.6, subdivision (c)
                

Defendant appealed his conviction and sentence to this court. In an unpublished opinion (3 Crim. 12341, Oct. 7, 1983) we affirmed the conviction but concluded the trial court had not stated reasons for imposition of full-term consecutive sentences as required by People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686. We therefore remanded the case for resentencing. (3 Crim 12341, supra, at p. 14.)

On remand the trial court refused defendant's request for a supplemental probation report. The court then imposed the same sentence it had imposed following trial, except that it apparently made the term imposed for sodomy the principal term and ran the full six-year term for rape consecutive to it. ² Defendant again appeals his sentence. We will again remand for resentencing.

I

Defendant contends the trial court erred in refusing his request for a supplemental probation report for use at his resentencing.

It is settled that, where a defendant is eligible for probation, a supplemental probation report must be prepared prior to a resentencing following an appeal. ( § 1203, subd. (b); People v. Rojas (1962) 57 Cal.2d 676, 680-682, 21 Cal.Rptr. 564, 371 P.2d 300; People v. Cooper (1984) 153 Cal.App.3d 480, 200 Cal.Rptr. 317; Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 199 Cal.Rptr. 695.)

In the instant case, subdivision (a) of section 1203.065 precluded a grant of probation to defendant because he was convicted of rape by force or fear in violation of subdivision (2) of section 261. (Stats.1980, ch. 587, § 5, p. 1598.)

In People v. Savala, supra, 147 Cal.App.3d 63, 195 Cal.Rptr. 193, this court, in a footnote, rejected defendant's contention a supplemental probation report had to be prepared prior to the resentencing of a defendant who was ineligible for probation. We reasoned that since California does not permit a more severe sentence on remand, no supplemental probation report In People v. Brady (1984) 162 Cal.App.3d 1, 208 Cal.Rptr. 21, the Fifth District, in its own footnote (id., at p. 4, fn. 2, 208 Cal.Rptr. 21) criticized Savala ³ and held "that upon remand for resentencing, even when the defendant is ineligible for probation, if the resentencing court has discretion to alter the length of the defendant's imprisonment, it must obtain a new, updated probation report, including information regarding the defendant's behavior while incarcerated during the pendency of any appeal, before proceeding with the resentencing." (Id., at p. 7, 208 Cal.Rptr. 21; followed by the same court in People v. Smith (1985) 166 Cal.App.3d 1003, 1009, 212 Cal.Rptr. 737.) Although not entirely clear, Brady apparently concluded a defendant's behavior in prison during an appeal could be used by the court to reduce but not to increase the prison term originally imposed. (Id., 162 Cal.App.3d at p. 4, fn. 2, 208 Cal.Rptr. 21.) While we do not agree entirely with Brady 's reasoning, we conclude our footnote in Savala stubbed its toe and Brady reached a correct result. By way of explanation, we turn first to the statutes governing sentencing and to rules of court promulgated thereunder. ( § 1170.3.)

was required. (Id., at p. 70, fn. 4, 195 Cal.Rptr. 193.)

As Brady notes, subdivision (b) of section 1170 provides in pertinent part, "In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report...." (People v. Brady, supra, 162 Cal.App.3d at p. 6, 208 Cal.Rptr. 21, emphasis in original.) Moreover, rule 418 of the California Rules of Court ⁴ states, "Regardless of the defendant's eligibility for probation, the sentencing judge should refer the matter to the probation officer for a presentence investigation and report." Clearly, then, a probation report is required prior to the original sentencing of a defendant who is ineligible for probation. Neither section 1170, subdivision (b) nor rule 418 distinguishes between an original sentencing and a resentencing. Upon resentencing, a defendant is entitled to all the normal rights and procedures available at his original sentencing. (Van Velzer v. Superior Court, supra, 152 Cal.App.3d at p. 744, 199 Cal.Rptr. 695.) Consequently, we presume section 1170, subdivision (b) and rule 418 contemplate that a probation report should be prepared prior to a defendant's resentencing.

Nonetheless, we must ask whether such a report could provide the sentencing judge with useful information, since we will not presume the Legislature intended that probation reports be prepared just for the fun of it. We conclude such a supplemental report has obvious utility. At a minimum, the report can state the sentence originally imposed, summarize the errors found by the appellate court, and direct the trial court's attention to the rules of court applicable to the resentencing.

This leaves the question whether the report should recount a defendant's behavior in prison during his appeal. Once again, we being by looking at the statutes and rules.

Subdivision (b) of section 1170 provides in pertinent part that, in setting a term, "the court may consider ... other reports including reports received pursuant to Section 1203.03...." (See People v. Cheatham (1979) 23 Cal.3d 829, 836, 153 Cal.Rptr. 585, 591 P.2d 1237.) Since a diagnostic evaluation pursuant to section 1203.03 is made in a prison setting and is appropriate only "In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison," the statute clearly contemplates that the sentencing judge be able to consider a defendant's post-conviction behavior in prison in setting a term. (See People v. Flores (1981) 115 Cal.App.3d 924, 928-929, 171 Cal.Rptr. 777.) If a defendant's post-conviction behavior Here, however, defendant's post-sentencing behavior is subject to a constitutional rule limiting its use upon resentencing. The prohibition on double jeopardy in the California Constitution (art. I, § 15) generally prohibits imposition of a greater sentence upon resentencing following an appeal. (People v. Collins (1978) 21 Cal.3d 208, 216-217, 145 Cal.Rptr. 686, 577 P.2d 1026; People v. Henderson (1963) 60 Cal.2d 482, 495-497, 35 Cal.Rptr. 77, 386 P.2d 677.) This rule is inapplicable where the trial court has pronounced an unauthorized sentence wholly in excess of the court's jurisdiction. (In re Ricky H. (1981) 30 Cal.3d 176, 191, 178 Cal.Rptr. 324, 636 P.2d 13; People v. Serrato (1973) 9 Cal.3d 753, 763-765, 109 Cal.Rptr. 65, 512 P.2d 289, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.) However, where, as here, the sentence is authorized by statute, but there are errors in its application at sentencing, the double jeopardy provision of the California Constitution prohibits imposition of a greater term upon resentencing. ⁵ (People v. Burns (1984) 158 Cal.App.3d 1178, 1184, 205 Cal.Rptr. 356.)

in prison is relevant to setting his term at his original sentencing, we can see no reason why it would not be relevant to the setting of his term upon resentencing.

It follows that defendant's behavior in prison may not be used to enhance his sentence in excess of that originally imposed. ⁶ Thus, our premise in Savala Of course, this does not mean a supplemental probation report must report only the favorable aspects of a defendant's behavior while in prison. While the addage "If you can't say anything nice, don't say anything at all" may make for good manners, it does not make for good probation reports. The statutes and rules envision that an objective report on defendant's in-prison behavior should be prepared; only the use of such reported behavior to aggravate the new...