People v. Gilchrist

• Decision Date: 23 June 1982
• Docket Number: Cr. 11642
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuel Curtis GILCHRIST, Defendant and Appellant.

Page 709

183 Cal.Rptr. 709

133 Cal.App.3d 38

The PEOPLE, Plaintiff and Respondent, v. Manuel Curtis GILCHRIST, Defendant and Appellant.

Cr. 11642.

Court of Appeal, Third District, California.

June 23, 1982.

As Modified July 9, 1982.

Hearing Denied Oct. 6, 1982.

Latimer & Kenkel, Jeremy J. Kenkel, Chico, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel E. Carey and J. Robert Jibson, Deputy Attys. Gen., for plaintiff and respondent.

ABBE, Associate Justice. ^*

This case presents a problem of whether the law requires a retroactive application of the maximum period of probation under the Determinate Sentence Law (DSL) to persons who were placed on probation prior to the effective date of that law. We conclude it does not.

Defendant was sentenced to state prison for offering to sell cocaine (Health & Saf.Code, § 11352) following an order revoking his probation. On appeal ¹ defendant challenges the order revoking probation contending: (1) the trial court lacked jurisdiction to revoke probation as his probationary period should have expired prior to the notice of revocation; and (2) he in no way consented to an extension of his probationary period beyond the maximum permissible period.

I

On June 7, 1974, defendant was placed on probation by the Los Angeles County Superior Court for five years following his guilty plea and conviction on a charge of offering to sell cocaine. (Health & Saf.Code, § 11352.) At that time, the penalty for that offense was imprisonment for five years to life. (Former Health & Saf.Code, § 11352, subd. (a).)

On April 19, 1978, probation was revoked and defendant was sent to state prison. On July 20, 1978, defendant was recalled from prison pursuant to Penal Code section 1170, subdivision (d) ² and was reinstated to probation for a period of three years. On August 21, 1979, defendant's probation was transferred to Butte County. (See Pen.Code, § 1203.9.)

The instant petition for revocation of probation was filed May 1, 1981. It alleged defendant had violated the terms of his probation by engaging in the sale of drugs and failing to register as a drug offender. (Health & Saf.Code, § 11590.)

A probation revocation hearing was held July 17, 1981. At the outset of the hearing, defendant moved to dismiss the petition on the ground his probationary period had expired prior to the notice of revocation and therefore the court lacked jurisdiction to sentence him. (Pen.Code, § 1203.1.

The maximum amount of time to which defendant could presently be sentenced for the instant offense is five years. (Health & Saf.Code, § 11352.) Thus, the maximum period of probation which defendant could be given had he committed this offense after the operative date of the DSL (July 1 1977) is five years. (Pen.Code, § 1203.1.) ³ When defendant was originally placed on probation his Indeterminate Sentence Law (ISL) term allowed for a maximum probationary period of life. (People v. Bittick (1960) 177 Cal.App.2d 479, 484, 2 Cal.Rptr. 378.) Defendant contends this disparity in the calculation of the maximum probation period, based solely on the date when his offense was committed, denies him equal protection of the law.

The trial court agreed with defendant's position, but ruled that when defendant accepted the terms of probation on July 20, 1978, including the three-year additional period, he consented to an extension of probation beyond what the trial court perceived to be the maximum period. The trial court held this consent avoided the equal protection problem and gave it jurisdiction to proceed in the matter. On appeal, defendant renews his equal protection argument and contends he did not consent to an extension of his probation beyond the maximum permissible period.

II

The trial court, presented with a novel and difficult problem, erred when it ruled that the maximum period of probation was five years but determined that defendant had consented to the extension. Pursuant to Penal Code section 1203.1, the Los Angeles court had authority in 1978 to do what it did, that is to reinstate defendant to probation by modifying and increasing the length of probation.

We have recently held "[t]he power of the court with regard to probation is strictly statutory, and the court cannot impose a condition of probation which extends beyond the maximum statutory period of probation." (In re Bolley (1982) 129 Cal.App.3d 555, 557, 181 Cal.Rptr. 111, citing In re Acosta (1944) 65 Cal.App.2d 63, 64, 149 P.2d 757.) If defendant's period of probation was five years' maximum, any attempt by the Los Angeles court to extend probation beyond that period would be null and void even had he consented. (In re Bolley, supra, at p. 557, 181 Cal.Rptr. 111.) Defendant's consent could not authorize an act which was beyond the trial court's statutory power. We must therefore address defendant's equal protection claim, as a proper ruling on the motion to dismiss, supported by substantial evidence, will not be reversed even though the trial court gave an incorrect reason for that ruling. (People v. Evans (1967) 249 Cal.App.2d 254, 257, 57 Cal.Rptr. 276.)

III

We note initially that were we to accept defendant's equal protection analysis an anomalous result would be reached. Defendant contends the Los Angeles Superior Court was limited to the balance of the original five-year period when it reinstated him to probation in 1978. The Los Angeles court's choices then upon resentencing in 1978 would have consisted of a prison sentence of five years to life or a probation period of one more year. This result seems particularly anomalous when the trial court's probable rationale for recalling defendant from prison was to release him on probation, apparently feeling probation a more appropriate disposition. If that court had only those choices the defendant might have gone to prison in 1978 and still be there.

IV

Defendant contends the state has arbitrarily discriminated between probationers who committed their offenses prior to and after the effective date of the DSL for two reasons: first, disparate treatment of incarcerated persons based on an arbitrary date violates equal protection; and second, the Legislature has granted the benefits of a shortened period of imprisonment to certain inmates sentenced under the ISL whose release date would be sooner had they been sentenced under the DSL. (See Penal Code, § 1170.2.)

The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (b) and article IV, section 16 of the California Constitution require that legislative classifications among persons subject to the state's jurisdiction to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose. (In re Kapperman (1974) 11 Cal.3d 542, 545, 522 P.2d 657.) It is therefore our task to apply this test to probationers who receive disparate treatment based on the date the offense was committed.

Defendant's sentence, imposed under the ISL, remains valid, despite the revision of the entire sentencing structure. (In re Gray (1978) 85 Cal.App.3d 255, 262, 149 Cal.Rptr. 416; In re Brown (1978) 78 Cal.App.3d 647, 652, 143 Cal.Rptr. 549.) It is perfectly proper for the Legislature to create a new sentencing procedure which operates prospectively only. Despite the disparity created by rendering different sentences after an admittedly arbitrarily chosen date, prospective application of such a statute does not violate equal protection principles because of the legitimate public purpose of assuring "that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written." (In re Kapperman, supra, 11 Cal.3d at pp. 456, 522 P.2d at p. 657.)

Defendant's analogy to Penal Code section 1170.2 is inappropriate for several reasons. The Legislature chose to retroactively apply the benefit of a DSL-determined release date to some prisoners who committed offenses prior to July 1, 1977. However, not all inmates are accorded that benefit. If upon hearing, two members of the Board of Prison Terms feel an inmate sentenced under ISL should not be released at an earlier DSL-determined date, a serious offender hearing is held and the inmate's release date may be set at any time up to the limits of the originally imposed indeterminate sentence. (Pen.Code, § 1170.2, subd. (b).) ⁴ It is entirely reasonable for the Legislature to distinguish between inmates affected by Penal Code section 1170.2 (as well as between persons who committed their crimes before and after July 1, 1977) based on the facts of the conviction such as whether the person was armed, used a deadly weapon, inflicted harm on the victim, and the number of the inmate's present or prior convictions because of the compelling state interest in preventing extraordinary crimes of violence against the person. (In re Greenwood (1978) 87 Cal.App.3d 777, 784, 151 Cal.Rptr. 223.) An inmate's conviction and sentence may be unaffected by the advent of the DSL. The Legislature has not given the DSL complete retroactive affect, but has provided that the Board of Prison Terms may consider the ameliorative effects of the DSL in determining the release date of ISL inmates. (In re Gray, supra, 85 Cal.App.3d at p. 262, 149 Cal.Rptr. at p. 416.)

The decision to accord the DSL a limited retroactive effect to certain inmates does not require that we overturn the Legislature's intent in the case of probationers to give the DSL prospective affect only. Defendant's citation to the cases In re Henson (1981) 123 Cal.App.3d 518, 176 Cal.Rptr. 693, In re Morales (1981) 115 Cal.App.3d 456, 171 Cal.Rptr. 425, and In re Thomson (1980) 104 Cal.App.3d 950, 164 Cal.Rptr. 99, is not persuasive as those cases involved persons who were not on probation but rather were either incarcerated or on parole and thus in...