People v. Giminez

• Decision Date: 21 April 1975
• Docket Number: Cr. 17899
• Citation: 534 P.2d 65,14 Cal.3d 68,120 Cal.Rptr. 577
• Court: California Supreme Court
• Parties: , 534 P.2d 65 The PEOPLE, Plaintiff and Respondent, v. Richard Alcarez GIMINEZ, Defendant and Appellant.

Page 577

120 Cal.Rptr. 577

14 Cal.3d 68, 534 P.2d 65

The PEOPLE, Plaintiff and Respondent, v. Richard Alcarez GIMINEZ, Defendant and Appellant.

Cr. 17899.

Supreme Court of California In Bank.

April 21, 1975.

Rehearing Denied May 22, 1975.

Robert N. Chargin, Public Defender, and Ann M. Chargin, Asst. Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., and Jack R. Winkler, Chief Asst. Attys. Gen., William E. James, Asst. Atty. Gen., Arnold O. Overoye, Joel Carey, James T. McNally and Eddie T. Keller, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, ^* Justice.

Defendant was convicted of narcotics possession (former Health & Saf.Code, § 11500). After defendant refused to accept the conditions of a five-year period of probation, the trial court imposed a prison sentence and directed that it commence upon completion of the term defendant was currently serving for another drug conviction. ¹ On appeal, petitioner now contends that to so impose a consecutive sentence, after having offered him probation, constituted an abuse of the trial court's discretion. In light of the petitioner's lengthy history of narcotics abuse and anti-social behavior we do not believe that the trial court acted arbitrarily or unreasonably. We therefore have concluded that imposition of a consecutive sentence was not improper.

Defendant was arrested in San Joaquin County for narcotics possession in April 1972. In July he appeared before the court and entered a plea of guilty. Criminal proceedings were then suspended in order to determine whether defendant was a narcotics addict. In October 1972 the court so found and defendant was committed to the California Rehabilitation Center for treatment. The following June defendant's commitment to that institution was cancelled ² and he was returned to the San Joaquin County Superior Court for resumption of criminal proceedings and pronouncement of judgment. At that time the trial judge stated that he was prepared to grant a five-year unsupervised probation upon various conditions, one of which was that defendant waive 'the right of the service of a search warrant in search and seizure at any time of the day or night.' ³ Defendant refused, however, to submit to the search condition and stated that he would prefer a prison sentence. Thereafter the trial judge, defendant, prosecutor and defense counsel discussed the matter in open court. During the discussion the trial judge made clear that if defendant refused to accept the terms and conditions of probation, a prison sentence would be imposed and made to run consecutively with the term defendant was currently serving. ⁴ Defendant again refused conditional probation and the trial judge then proceeded to impose a consecutive sentence for the term prescribed by law. ⁵ Defendant now contends that imposition of a consecutive sentence under these circumstances constituted an abuse of discretion.

It is well established that a trial court has discretion to determine whether several sentences 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.) It is also the rule that appellate courts do not have the power to modify a sentence or reduce the punishment therein imposed absent error in the proceedings. (People v. Odle, 37 Cal.2d 52, 57, 230 P.2d 345.) Moreover, such error cannot be predicated on a trial court's determination that several sentences are to run consecutively unless an abuse of discretion is clearly shown. (People v. Morris, 20 Cal.App.3d 659, 666, 97 Cal.Rptr. 817; People v. White, 100 Cal.App.2d 836, 839--840, 224 P.2d 868.)

The concept of judicial discretion is difficult to define with precision. In the past we have described it as 'the sound judgment of the court, to be exercised according to the rules of law.' (Lent v. Tillson, 72 Cal. 404, 422, 14 P. 71, 78.) More recently we have said (quoting from another case) that the term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' (In re Cortez, 6 Cal.3d 78, 85, 98 Cal.Rptr. 307, 311, 490 P.2d 819, 823.) Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. (People v. Russel, 69 Cal.2d 187, 194; People v. Fusaro, 18 Cal.App.3d 877, 894 (cert. den. 407 U.S. 912).) However, in the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives and, accordingly, its discretionary determination to impose consecutive sentences ought not be set aside on review.

Turning to the facts of the instant case, we cannot say that the trial court has abused its discretion. As pointed out above, defendant has a lengthy history of narcotics use and anti-social behavior. The probation officer reported that defendant had been named in 15 'writeups' related to narcotics and had suffered two felony narcotics convictions. One of these convictions was for a violation which occurred while defendant was on bail. The probation report concluded that defendant needed time 'to be dried out' and consequently recommended against probation.

Defendant argues that notwithstanding his prior record, the trial court's decision to impose consecutive sentences must be viewed as an unreasonable and vindictive reaction to defendant's rejection of conditional probation. He contends that the alternatives of probation or consecutive ten-year maximum sentences could not both be appropriate for any one offender and therefore that the trial court's order was essentially arbitrary and not an exercise of discriminating judgment.

Defendant's reasoning is not persuasive. By initially imposing the search condition as a term of probation, the trial judge demonstrated his belief that defendant should be subject to some substantial control for at least five years. Such a search condition would assist in deterring or discovering subsequent narcotics offenses thereby aiding defendant's rehabilitation and providing protection for the public. (People v. Mason, Supra, 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630.) The trial judge could have reasonably concluded that defendant's rejection of the search condition was an indication of both an unwillingness to reform and a desire to return to narcotics use at the earliest opportunity. Under these circumstances, the trial judge may well have felt that a two-year parole ineligibility period (made mandatory by Pen.Code, § 3043 upon the imposition of two or more consecutive sentences; not restricted to narcotic offenses) was necessary to further the legitimate sentencing objectives of rehabilitation and protection of the public. In light of the broad discretion to be afforded trial judges both in sentencing and in granting or denying probation and given defendant's extensive criminal record, it does not appear that the imposition of consecutive sentences in the instant case exceeded the bounds of reason.

The judgment is affirmed.

WRIGHT, C.J., and McCOMB, SULLIVAN and CLARK, JJ., concur.

TOBRINER, Justice (dissenting).

I dissent on the ground that the imposition of a consecutive sentence by the trial court, under the facts of this case, constitutes an abuse of discretion. As explained in the opinion prepared by Justice Friedman for the Court of Appeal, 39 Cal.App.3d 381, 114 Cal.Rptr. 199: 'The trial court's initial and ultimate sentencing choices moved from an extreme of lenience to an extreme of severity, from unsupervised liberty to a deferred imprisonment creating a possibility of a total of 20 years of incarceration and supervised parole. (Fn. omitted.) When each of these extremes is viewed as a means of achieving the goals of criminal sentencing, both could not be 'right' for any one offender. Without adding to the extensive literature on sentencing objectives, we need consider only the objective of protecting the public against the offender's future criminal conduct. Necessarily implied in the judge's resort to unsupervised probation was a finding that public protection demanded no imprisonment or supervision after completion of the indeterminate Sacramento sentence. Necessarily implied in the judge's alternative selection was a finding that public protection required two to 10 years of imprisonment and supervision additional to the Sacramento sentence. If the goal of public protection was satisfied by an order for unsupervised probation, the consecutive prison sentence was harsh and excessive. If the same criterion justified lengthy imprisonment, it utterly vitiated unsupervised probation. No logically relevant sentencing criteria could simultaneously justify both extremes; hence the choice between them had to be personal, subjective and arbitrary.

'A variety of intermediate alternatives were available. Here, however, we review only the exercise of statutory discretion under section 669 and do not engage in general review of sentence suitability. According to the courtroom dialogue, defendant's rejection of exposure to police search as a condition of probation led the judge to impose a prison sentence. If a sentence concurrent with the existing Sacramento sentence represented a relatively far cry from the judge's initial proposal, it had at least the virtue of greater proximity to it. A concurrent sentence would permit two to ten years in prison and on supervised parole. The judge rejected it and chose the most extreme and most severe alternative available to him. The court's selection of the most severe available alternative was not based upon sentencing criteria; rather, it was an expression of the judge's subjective reaction to defendant's rejection of probation. The turn from one alternative to another was essentially arbitrary and not an exercise of discriminating judgment within the bounds of reason.'

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