People v. Gulbrandsen

• Decision Date: 02 May 1989
• Citation: 209 Cal.App.3d 1547,258 Cal.Rptr. 75
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gilbert Wayne GULBRANDSEN, Defendant and Appellant. Crim. C001070.
• Court: California Court of Appeals Court of Appeals

Page 75

258 Cal.Rptr. 75

209 Cal.App.3d 1547

The PEOPLE, Plaintiff and Respondent, v. Gilbert Wayne GULBRANDSEN, Defendant and Appellant.

Crim. C001070.

Court of Appeal, Third District, California.

May 2, 1989.

Houghton Gifford, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Jane N. Kirkland, Supervising Deputy Atty. Gen., Wanda Hill Rouzan, Deputy Atty. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

This appeal involves a federal prisoner awaiting transfer who escaped without force from a county jail, promptly committed a burglary, and received two consecutive sentences for his criminal efforts. The case raises two sentencing issues. The first is whether, given the crimes committed, the imposition of a state term of imprisonment consecutive to a federal term constitutes a "sentence choice" requiring the recitation of reasons. We hold that it does. Under the circumstances of this case, we cannot conclude the failure to state reasons was harmless, so we must remand the case to the trial court.

The second issue is whether we should direct on remand that a new judge preside at resentencing. We conclude that mere sentencing error by the original judge does not justify such a direction and therefore decline to issue it in this case.

FACTS AND PROCEDURAL HISTORY

Defendant was incarcerated in the Colusa County Jail awaiting transportation to a federal prison where he was to commence serving a 20-year sentence for the federal offense of bank robbery. (18 U.S.C. § 2113.) On August 6, 1984, he escaped from jail without force or violence and then burglarized a residence. Apprehended and appropriately charged, he thereafter pled guilty to first degree burglary (Pen.Code, §§ 459, 460; all further statutory references are to that code) and nonforcible escape from county jail ( § 4532, subd. (b)). Defendant also admitted having served two prior separate prison terms. ( § 667.5, subd. (b).) He was sentenced to state prison for a total unstayed term of eight years, eight months--the upper term of six years for the principal offense of burglary, together with a consecutive subordinate term of eight months for the escape and one-year consecutive terms for each of the two prior prison term enhancements. This entire sentence was then ordered to run consecutive to the 20-year federal term.

On appeal, defendant contends that his case must be remanded for resentencing because the trial court failed to articulate reasons for running the state sentence consecutive to the federal term. He further contends that the remand must contain directions that the resentencing be scheduled before a different judge. The Attorney General responds no statement of reasons was required because the trial court did not make a sentence choice and in any event if there were any sentencing error it was harmless. For the reasons which follow, we reject the Attorney General's claims and remand the matter for resentencing, but not before a different judge.

DISCUSSION

I

The superior court's duty to justify its sentence choice by a statement of reasons is imposed both by statute and by the rules of court. Section 1170, subdivision (c) provides in relevant part: "The court shall state the reasons for its sentence choice on the record at the time of sentencing." Implementing that section, California Rules of Court, rule 443 directs: "Whenever the giving of reasons by the sentencing judge is required, the judge shall state in simple language the primary factor or factors that support the exercise of discretion or, when applicable, state that the judge has no discretion. The statement need not be in the language of these rules. It shall be delivered orally on the record." (All further references to rules are to the Cal. Rules of Court.)

These provisions require a statement of reasons whenever the sentencing judge makes what is called a "sentence choice." (People v. Bejarano (1981) 114 Cal.App.3d 693, 704-705, 173 Cal.Rptr. 71; People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66.) " 'Sentence choice' means the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial. It includes the granting of probation and the suspension of imposition or execution of a sentence." (Rule 405(f).) The terms "choice" and "selection" necessarily assume discretion exercised in the face of options and, as we shall see, do not encompass a mandatory sentence.

As a general rule, the selection between consecutive or concurrent sentences constitutes a discretionary sentence choice for which the trial court must state reasons on the record. (In re Spears (1984) 157 Cal.App.3d 1203, 1211, 204 Cal.Rptr. 333, and cases cited there.) But some penal statutes require that any state prison term imposed for their violation must run consecutively. Nonforcible escape in violation of section 4532, subdivision (b) is such a crime. Under the escape statute the term of imprisonment in the state prison for nonforcible escape is "to be served consecutively." ¹ (Stats.1982, ch. 628, § 1, p 2631.) The same is also true of an enhancement. An enhancement, by definition, is "an additional term of imprisonment added to the base term." (Rule 405(c).) Once added to the base term, an enhancement becomes the functional equivalent of a consecutive sentence. An enhancement under section 667.5 follows this pattern. Subdivision (b) of that section directs, with a proviso not relevant here, that when the new offense is not a violent felony and "where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony."

When a consecutive sentence or enhancement is mandatory there is no choice to be made and hence a statement of reasons justifying the selection of the compelled sentence is not required. (People v. Vargas (1985) 175 Cal.App.3d 271, 275-277, 220 Cal.Rptr. 720; People v. Reeder (1984) 152 Cal.App.3d 900, 919, fn. 8, 200 Cal.Rptr. 479; People v. Pearson (1981) 120 Cal.App.3d 782, 791, 175 Cal.Rptr. 43; People v. Stone (1981) 117 Cal.App.3d 15, 20-21, 172 Cal.Rptr. 445; People v. Johnson (1980) 104 Cal.App.3d 598, 611-612, 164 Cal.Rptr. 69; People v. Dixie (1979) 98 Cal.App.3d 852, 857, 159 Cal.Rptr. 717.) In short, a mandatory sentence cannot in any sense be a sentence "choice." Consequently, neither the statute nor the rule required a statement of reasons for the imposition of the mandatory prior prison term enhancements and the mandatory consecutive sentence for the escape charge in this case. ² Instead, since the sentence is mandatory, rather than citing the sentencing criteria for imposing a consecutive sentence (see rule 425), the sentencing judge need only have stated that he "has no discretion." (Rule 443.)

It is true that, independent of statutory or rule authority, the "courts ... have the inherent power to require a statement of reasons as a judicially declared rule of criminal procedure." (People v. Martin (1986) 42 Cal.3d 437, 449, 229 Cal.Rptr. 131, 722 P.2d 905, citations and fn. omitted.) Such a "requirement of articulated reasons to support a given decision serves a number of interests: it is frequently essential to meaningful review; it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision; and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision-making is careful, reasoned and equitable." (Id., at pp. 449-450, 229 Cal.Rptr. 131, 722 P.2d 905.) As an example of a judicially declared rule of criminal procedure, the Martin court cited People v. Belmontes (1983) 34 Cal.3d 335, 348, 193 Cal.Rptr. 882, 667 P.2d 686, a case in which the high court imposed a requirement of a separate statement of reasons for sentencing sex offenders to fully consecutive subordinate sentences under section 667.6. (Id., 42 Cal.3d at p. 449, fn. 12, 229 Cal.Rptr. 131, 722 P.2d 905.) But none of the interests identified by the Martin court would be advanced by requiring the sentencing court to recite reasons justifying a consecutive sentence when there is no choice to be made. A simple declaration that the court has no sentencing discretion is all that is necessary.

Since the first degree burglary offense carried the "greatest term of imprisonment," the trial court was required to select it as the principal term. ( § 1170.1; cf. § 461, subd. 1 with § 4532, subd. (b).) Having correctly selected the principal term, the trial court was then required to run the escape sentence consecutive to the burglary offense. As we have noted, the escape statute mandates that the term for that offense is "to be served consecutively." ³ ( § 4532, subd. (b).) Since there was no sentence choice to be made in running the subordinate escape term and the prior prison term enhancements consecutive to the principal burglary term in this case, the sentencing court was not required to recite any reasons for imposing that consecutive term.

Nevertheless, although it need not have done so, the trial court did recite reasons for imposing a consecutive term for the escape offense and for failing to strike the punishment for the enhancements. ⁴ The court, however, did not recite any reason for ordering the aggregate state sentence to run consecutively to the federal prison term. The question on appeal is whether it was required to do so. The answer depends on whether the sentencing court had discretion to run the state term concurrent with the federal term or whether it was compelled to impose a consecutive sentence.

To resolve this question, we begin with the escape from county jail statute. The statute itself simply states that the term imposed...