People v. Jackson

• Decision Date: 22 October 1987
• Docket Number: No. A034604,A034604
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Bernard JACKSON, Defendant and Appellant.

Page 1

242 Cal.Rptr. 1

196 Cal.App.3d 380

PEOPLE of the State of California, Plaintiff and Respondent, v. Bernard JACKSON, Defendant and Appellant.

No. A034604.

Court of Appeal, First District, Division 1, California.

Oct. 22, 1987.

As Modified Nov. 20, 1987.

William P. Cole, Krech & Cole, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Ronald E. Niver, Ann K. Jensen, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

HOLMDAHL, Associate Justice.

A criminal defendant complains about the sentences which he received after revocation of two grants of probation.

The judgments are affirmed, but the sentences vacated.

Statement of Facts

On three successive evenings in October, 1982, defendant sold substances which he represented to be heroin to a paid police informant in the vicinity of the Kunta Kinte Hut in East Palo Alto. The first two sales involved some material which contained heroin and some which did not, and the third sale involved no heroin at all.

On April 9, 1984, at about 8:45 in the evening, defendant sold a substance which he represented to be heroin to an undercover officer of the San Mateo County Sheriff's Department in East Palo Alto. The substance which defendant sold on this occasion contained no heroin.

On June 7, 1985, at about 4:00 in the afternoon, defendant sold cocaine to an undercover officer of the East Palo Alto Police Department in East Palo Alto.

Procedural History

The first of the three October, 1982, sales resulted in defendant's conviction by plea of a violation of Health and Safety Code section 11352 (sale of heroin) ¹ and defendant's admission in connection with that plea of one prior prison term charged under Penal Code section 667.5, subdivision (b). Additional counts based on the other two October, 1982, sales were to be dismissed pursuant to plea bargain. On June 9, 1983, the San Mateo County Superior Court suspended imposition of sentence and placed defendant on probation for two years, with conditions which included defendant's confinement in the county jail for six months.

As a result of the April, 1984, sale, defendant's probation was revoked on August 20, 1984. The April, 1984, sale also resulted in defendant's conviction by plea (pursuant to plea bargain) of a violation of Health and Safety Code section 11355 (furnishing a substance in lieu of heroin) ² and defendant's admission in connection with that plea of two prior prison terms charged under Penal Code section 667.5, subdivision (b). On October 17, 1984, the San Mateo County Superior Court suspended imposition of sentence in the 1984 case. This time the court placed defendant on probation for three years, with conditions which included defendant's confinement for six months in the county jail. At the same time, the court restored defendant to probation in the 1982 case.

The clerk's transcript for defendant's 1982 case indicates that on May 31, 1985, defendant failed to make a court appearance in that case and his probation was summarily revoked. ³ On February 24, 1986, the trial court conducted an evidentiary hearing in connection with the defendant's probationary status in both the 1982 case and the 1984 case. At that hearing, defendant denied having made the cocaine sale on June 7, 1985, but did not deny his failure to perform community service which had been a condition of his probation in the 1982 case. The trial court found by a clear and convincing evidence standard ⁴ that the defendant had sold cocaine to the undercover officer, and declared probation revoked in both the 1982 case and the 1984 case. ⁵

On March 25, 1986, the trial court imposed sentence in both cases. In the 1982 case, defendant was sentenced to the upper term, five years in state prison, with a one-year enhancement pursuant to Penal Code section 667.5, subdivision (b) to be served consecutively. In the 1984 case, the sentence was eight months in state prison (one-third the mid term of two years) to be served consecutively to defendant's terms in the 1982 case, pursuant to Penal Code section 1170.1, subdivision (a), for an aggregate term of six years, eight months. ⁶

Defendant appeals, contending that the trial judge committed reversible error in his imposition of sentence. Review of alleged sentencing error on an appeal from a conviction by plea is permissible without a certificate of probable cause from the trial court. (People v. Billetts (1979) 89 Cal.App.3d 302, 308, 152 Cal.Rptr. 402; People v. Santos (1976) 60 Cal.App.3d 372, 376, 131 Cal.Rptr. 426.)

Proper Sentencing Procedure

In the present case, the trial court made three sentencing choices, as follows.

First, the trial court had to choose whether to grant or to deny probation. (Cal.Rules of Court, rule 433(a)(2).) ⁷ Rule 414 sets forth the criteria which govern this choice. Further, this choice had to be accompanied by a statement of reasons on the record. (Pen.Code, § 1170, subd. (c); rules 405(f), 433(c)(5), 439(d), 443; People v. Romero (1985) 167 Cal.App.3d 1148, 1151, 213 Cal.Rptr. 774; People v. Haynes (1984) 160 Cal.App.3d 1122, 1138, 207 Cal.Rptr. 139, quoting from People v. Arceo (1979) 95 Cal.App.3d 117, 121, 157 Cal.Rptr. 10.) Having initially opted in favor of probation, the trial court was once again faced with the same choice upon revocation of probation in the two cases here involved. (Pen.Code, § 1203.2; rule 435.) Upon making its choice to grant or to deny probation for the second time in each case, the trial court was as much bound to base its choice on criteria dictated by the rules of court and to state the reasons for its choice as it was the first time. (People v. Slaughter (1987), 194 Cal.App.3d 95, 100-101; contra, id. at pp. 98-99, 239 Cal.Rptr. 337.)

Second, having chosen after revocation of probation to terminate probation and to order defendant to serve time in prison, the trial court had to decide whether the circumstances in either the 1982 case or the 1984 case were such as to justify the imposition of the upper or lower, rather than the mid term. (Pen.Code, §§ 12, 1170, subd. (b); rule 433(c)(1).) Rules 421 and 423 set forth the criteria which govern this choice. Having chosen to impose the upper term in the 1982 case, the trial court was obliged to state for the record the reasons which prompted that choice. (Pen.Code, § 1170, subd. (b); rules 433(c)(5), 439(c), 443; People v. Davis (1980) 103 Cal.App.3d 270, 279-280, 163 Cal.Rptr. 22, disapproved on another ground in People v. Wolcott (1983) 34 Cal.3d 92, 106, fn. 6, 192 Cal.Rptr. 748, 665 P.2d 520, and on yet another ground in People v. Sumstine (1984) 36 Cal.3d 909, 921, fn. 8, 206 Cal.Rptr. 707, 687 P.2d 904; People v. Hernandez (1979) 100 Cal.App.3d 637, 643, 160 Cal.Rptr. 607.) The trial court's decision whether to impose a sentence enhancement pursuant to Penal Code section 667.5, subdivision (b), on the other hand, although required by rule 433(c)(2), was not a sentencing choice for which a statement of reasons was required. (People v. McCutcheon (1986) 187 Cal.App.3d 552, 558, 232 Cal.Rptr. 159; People v. Langevin (1984) 155 Cal.App.3d 520, 524, 202 Cal.Rptr. 234; People v. Peace (1980) 107 Cal.App.3d 996, 1002, 166 Cal.Rptr. 202 quoting People v. Dixie (1979) 98 Cal.App.3d 852, 857, 159 Cal.Rptr. 717.)

Third, having chosen to impose the upper term plus an enhancement in the 1982 case, the trial court had to choose whether to make the sentence in the 1984 case concurrent with or consecutive to the sentence the 1982 case. (Pen.Code, § 1170.1, subd. (a); rule 433(c)(3).) Rule 425 sets forth the criteria which govern this choice. Having chosen to impose consecutive terms, the trial court was obliged to state for the record the reasons which prompted that choice. (Pen.Code, § 1170, subd. (c); rules 405(f), 433(c)(5), 443; In re Spears (1984) 157 Cal.App.3d 1203, 1211, 204 Cal.Rptr. 333; People v. Callahan (1983) 149 Cal.App.3d 1183, 1185-1186, 198 Cal.Rptr. 12 [trial court must state reasons for ordering that term imposed in one case run consecutive to term imposed in another case]; People v. Beaudrie (1983) 147 Cal.App.3d 686, 694, 195 Cal.Rptr. 289 [trial court must state reasons for imposing consecutive terms upon revocation of probation].)

One important reason for the requirement that the sentencing court accompany each of the three sentencing choices which it made in this case with a statement of reasons is the assurance which such statements provide that no one fact has been twice used to enhance punishment. (In re Spears, supra, 157 Cal.App.3d at p. 1211, 204 Cal.Rptr. 333; People v. Peters (1982) 128 Cal.App.3d 75, 87, 180 Cal.Rptr. 76; People v. Davis, supra, 103 Cal.App.3d at p. 280, 163 Cal.Rptr. 22.) Penal Code section 1170, subdivision (b), prohibits such dual use of facts in the following terms "The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Section 667.5, 1170.1, 12022, 12022.4 12022.5, 12022.6, or 12022.7." Similarly, rule 441(c) provides, "A fact used to enhance the defendant's prison sentence may not be used to impose the upper term." In other words, a fact used to impose an enhancement under Penal Code section 667.5 may not be considered as a reason for imposing an upper base term. (People v. Jardine (1981) 116 Cal.App.3d 907, 924, 172 Cal.Rptr. 408, disapproved on another ground in People v. Holt (1984) 37 Cal.3d 436, 452-453, 208 Cal.Rptr. 547, 690 P.2d 1207.) The California Supreme Court has also interpreted Penal Code section 1170, subdivision (b), as prohibiting use of the same fact as justification for both an aggravated term and a consecutive term. (People v. Avalos (1984) 37 Cal.3d 216, 233, 207 Cal.Rptr. 549, 689 P.2d 121 relying on People v. Lawson (1980) 107 Cal.App.3d 748, 165 Cal.Rptr. 764; accord, People v. Callahan, supra, 149 Cal.App.3d at p....