People v. Giminez

• Decision Date: 28 May 1974
• Docket Number: Cr. 7230
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Alcarez GIMINEZ, Defendant and Appellant.

Page 199

114 Cal.Rptr. 199

39 Cal.App.3d 570

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Alcarez GIMINEZ, Defendant and Appellant.

Cr. 7230.

Court of Appeal, Third District, California.

May 28, 1974.

For Opinion on Hearing see, 120 Cal.Rptr. 577, 534 P.2d 65.

Evelle J. Younger, Atty. Gen. by Eddie T. Keller, Deputy Public Defender, Sacramento, for plaintiff-respondent.

Robert N. Chargin, Public Defender by Ann M. Chargin, Asst. Public Defender, Stockton, for defendant-appellant.

FRIEDMAN, Acting Presiding Justice.

Defendant appeals from a judgment of conviction of narcotics possession (former Health & Saf.Code, § 11500). Acting under its power of consecutive sentencing, the trial court imposed a prison sentence to commence upon completion of a sentence defendant was already serving. ¹ The principal issue on appeal is whether the trial court abused its discretion in imposing a consecutive sentence.

Defendant was arrested in San Joaquin County on the present charge in April 1972 and released on bail. In May 1972 he was arrested in Sacramento County for possessing dangerous drugs (former Health & Saf.Code, § 11910). In July, pending resolution of the Sacramento charge, he appeared in San Joaquin County and entered a plea of guilty. At that point the criminal proceedings were suspended for the purpose of considering defendant's commitment as a narcotics addict. (Welf. & Inst.Code, § 3051.) In October 1972 the court found that he was an addict and committed him to the California Rehabilitation Center. He was taken to Sacramento County to respond to the charge there. In June 1973 the Sacramento County Superior Court sentenced him to state prison for an indeterminate term of six months to 10 years. In view of this prison sentence the superintendent of the Rehabilitation Center canceled his commitment to that institution and returned him to San Joaquin County for resumption of the criminal proceeding there.

In July 1973 defendant appeared before the San Joaquin court for pronouncement of judgment. The trial court informed defendant that a five-year informal probation ² would be granted, with a condition that he waive 'the right of the service of a search warrant in search and seizure at any time of the day or night--.' Defendant told the court he would prefer a prison sentence rather than submit to the search provision. His attorney joined in the objection, observing that if defendant were released from prison on parole, he would be subject to supervision by his parole officer, moreover, that waiver of immunity from search was an inappropriate condition of unsupervised probation. The judge observed that if he were to sentence defendant to prison, he 'wouldn't make it run concurrently.' The court rejected defense counsel's suggestion of a three-year probation period including the condition proposed by the court. Defendant's counsel then reported defendant's preference for an immediate state prison sentence, continuing to object, however, to a consecutive sentence. The court then imposed a sentence to 'be served consecutively with any other sentence the defendant may be serving.'

The San Joaquin County commitment carried an indeterminate sentence of not less than two nor more than 10 years. (Former Health & Saf.Code, § 11500, as amended by Cal.Stats.1970, ch. 1098.)

Defendant's charge of abuse of discretion encounters traditional appellate reluctance to review criminal sentences. In People v. Fusaro (1971) 18 Cal.App.3d 877, 894, 96 Cal.Rptr. 368, 379, cert. den. 407 U.S. 912, 92 S.Ct. 2445, 32 L.Ed.2d 686, this court stated: 'A trial court has discretion to determine whether separate sentences for separate offenses are to run concurrently or consecutively. (Pen.Code, § 669; In re Sandel, 64 Cal.2d 412, 416, 50 Cal.Rptr. 462, 412 P.2d 806.) . . .. Discretion is abused only when the action exceeds the bounds of reason, all the circumstances being considered. (People v. Russel, supra, 69 Cal.2d at p. 194, 70 Cal.Rptr. 210, 443 P.2d 794.) A comprehensive roundup of the 'abuse of discretion' decisions in various areas of California law would doubtless reveal fluctuating degrees of appellate laissez-faire. In none is appellate review more circumscribed than in sentencing.9 . omitted. The Legislature has by statute fixed the outer limits of reasonableness in sentencing. It permits appellate modification of sentence only in limited situations, of which this is not one. (See Pen.Code, §§ 1181, subd. 7; 1260; People v. Odle, 37 Cal.2d 52, 57-58, 230 P.2d 345.) Aside from those situations, a reviewing court cannot say that a period of imprisonment within the limits fixed by statute exceeds the bounds of reason.'

A number of other California decisions evince appellate reluctance to interfere in discretionary imposition of consecutive prison terms. (People v. Morris (1971) 20 Cal.App.3d 659, 666, 97 Cal.Rptr. 817; People v. Vatelli (1971) 15 Cal.App.3d 54, 64-65, 92 Cal.Rptr. 763; People v. Williams (1968) 260 Cal.App.2d 868, 874, 67 Cal.Rptr. 442; People v. Hubert (1962) 204 Cal.App.2d 617, 619, 22 Cal.Rptr. 450; People v. Van Valkenburg (1952) 111 Cal.App.2d 337, 343, 244 P.2d 750; People v. White (1950) 100 Cal.App.2d 836, 837-838, 224 P.2d 868.)

Defendant asserts the existence of a general appellate power to overturn sentences which abuse judicial discretion. Several California statutes give seeming support to that assertion but have been otherwise construed. Section 1260 of the Penal Code declares that an appellate court may reverse, affirm or modify a judgment 'or reduce . . . the punishment imposed.' Section 1181, subdivisions 6 and 7, contain somewhat parallel expressions. Although broad in appearance, these statutes have been construed to permit sentence modification on appeal only when caused by error in the proceedings. They have not been viewed as enlargements of 'the scope of appellate review over the fixing of the degree or punishment of crime . . ..' (People v. Odle (1951) 37 Cal.2d 52, 57, 230 P.2d 345, 348; see, e. g., People v. Newman (1971) 5 Cal.3d 48, 55, 95 Cal.Rptr. 12, 484 P.2d 1356; cf. People v. Mabry (1969) 71 Cal.2d 430, 446-458, 78 Cal.Rptr. 655, 455 P.2d 759 concurring and dissenting opinions.) With rare exceptions, California statutory and decisional developments have kept this state on the negative side of the long-standing debate over appellate review of sentences. ³

Nevertheless, there is a narrower basis for review of the challenged action. A statutory choice between concurrent and consecutive sentences is but one of a variety of discretionary judicial functions. It is no more immune from appellate review than any other discretionary judicial act. In general, a trial court is bound to exercise its discretion 'in accordance with established legal rules and a sound legal discretion in the application of such rules to the facts and circumstances of each particular case. . . .' (Paulson v. Superior Court (1962) 58 Cal.2d 1, 6, 22 Cal.Rptr. 649, 651, 372 P.2d 641, 643.) That sentencing rather than some other function is involved does not arm the trial judge with unbridled power or foreclose appellate inquiry into a claim of arbitrary exercise. In relation to the choice between concurrent and consecutive sentencing, the courts have said 'error cannot be predicated on such action, unless abuse of discretion is clearly shown . . ..' (People v. Morris, supra, 20 Cal.App.3d at p. 666, 97 Cal.Rptr. 817, 821; People v. White, supra, 100 Cal.App.2d at pp. 839-840, 224 P.2d 868.) The negation implies affirmation of its obverse--that error does occur when abuse of discretion occurs.

In People v. Fusaro, supra, 18 Cal.App.3d at page 894, 96 Cal.Rptr. 368, 379, we suggested that 'a reviewing court cannot say that a period of imprisonment within the limits fixed by statute exceeds the bounds of reason.' The breadth of the statutory alternatives available to a sentencing judge, the infinite variety of human material confronting him and the amorphous quality of the guidelines invite extremes of subjectivity repellent to a system which aspires to even-handed justice. ⁴ The last quoted statement of the Fusaro opinion would foreclose appellate scrutiny, however subjective, arbitrary and unsuitable the trial court's action. The statement was too broad and we now disapprove it.

In the Fusaro opinion we described abuse of discretion as an 'action [which] exceeds the bounds of reason, all the circumstances being considered.' (Ibid.) Somewhat later, in the context of criminal sentencing, the Supreme Court posited a somewhat more precise test: 'It is well established in the law that the severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court. [Par.] The term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.' (In re Cortez (1971) 6 Cal.3d 78, 85-86, 98 Cal.Rptr. 307, 490 P.2d 819, quoting People v. Surplice (1962) 203 Cal.App.2d 784, 791, 21 Cal.Rptr. 826.)

The discretionary choice between concurrent and consecutive sentences calls for sober pursuit of the recognized goals of criminal justice, guided partly by loose but commonly accepted sentencing criteria and partly by the judge's appraisal of the offender. 'The intuitive estimate of character by a sentencing judge seasoned by experience lies at the very core of the proper exercise of discretion . . ..' (In re Cortez, supra, 6 Cal.3d at p. 87, 98 Cal.Rptr. at p. 312, 490 P.2d at p. 825.)

Defendant stood before the trial court at the age of 23. The probation report revealed a lengthy history of narcotics abuse...