People v. Mariano

• Decision Date: 11 July 1983
• Citation: 144 Cal.App.3d 814,193 Cal.Rptr. 47
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rex Orpilla MARIANO, Defendant and Appellant. In re MARIANO on Habeas Corpus. A019581, A020040.
• Court: California Court of Appeals Court of Appeals

Page 47

193 Cal.Rptr. 47

144 Cal.App.3d 814

The PEOPLE, Plaintiff and Respondent, v. Rex Orpilla MARIANO, Defendant and Appellant In re MARIANO on Habeas Corpus.

A019581, A020040.

Court of Appeal, First District, Division 4, California.

July 11, 1983.

Certified for Partial Publication.

Rick L. Ames, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

COOK, ^* Associate Justice.

Rex Arpilla Mariano appeals from a judgment, entered subsequent to an earlier appeal whereby he was sentenced to a five-year term of imprisonment on his earlier conviction of kidnapping. (Pen.Code, § 207.) ¹

Imposition of sentence for that offense had been stayed by the trial court at the time of sentencing for another offense, following a jury trial in August 1980, in which he had been found guilty of both offenses.

Mariano has also filed a petition for a writ of habeas corpus. By prior order of this court the petition will be considered herein with the appeal.

I. The Trial and the Prior Appeal

Appellant was convicted of kidnapping (§ 207) and assault with intent to commit rape, oral copulation or sodomy (§ 220). The jury further found he had used a knife in the commission of the kidnapping. (§ 12022, subd. (b).) On September 25, 1980, the trial court denied probation and ordered appellant to serve a mid-term sentence of four years for assault with intent to commit rape and an additional year for the weapon enhancement. It stayed imposition of sentence on the kidnapping conviction. Mariano appealed this judgment and petitioned for a writ of habeas corpus.

In an unpublished opinion, filed April 23, 1982, Division Three of this court affirmed the conviction of kidnapping. It modified the conviction of assault with intent to commit rape to simple assault (§ 240) and, as modified, affirmed the conviction. It further held the trial court had erroneously enhanced the assault sentence on the basis of the weapon finding as that enhancement had been pleaded and proven only with respect to the kidnapping. The appellate court remanded the cause for resentencing. It denied the petition for habeas corpus. A remittitur issued accordingly on June 23, 1982.

On July 26, 1982, the trial court resentenced appellant. It denied probation and imposed the mid-term of five years on the conviction for kidnapping on which imposition of sentence had previously been stayed. It stayed imposition of sentence on the assault conviction and use enhancement.

II. The Offense

At 1:00 a.m. on March 6, 1980, appellant accosted a 20-year-old woman at an intersection in Daly City. He drew a knife and ordered her into his car. He drove to a high school parking lot where he told her they were "going to have a little fun." The victim opened the door on the passenger side, "trying to struggle out." The assailant grabbed her, scratching her neck; however, she succeeded in breaking free from him and fleeing from the car. She ran to her mother's house, a few blocks away, and contacted the police.

III. The Issues

Appellant submits the following claims of error:

A. That the trial court exceeded its jurisdiction in imposing sentence on the kidnapping charge after the stay of imposition of sentence became permanent.

B. That the term of five years imposed at the resentencing penalizes him for his original appeal.

C. That the court's failure to order a supplemental probation report prior to the resentencing did not give him the benefit of "more recent, possibly mitigating" circumstances considered.

D. That the imposition of the mid-term sentence for kidnapping was an abuse of discretion.

IV. Discussion

A. The original stay of sentencing did not become permanent upon issuance of the remittitur.

In the original sentencing proceeding, the court imposed a four-year term for assault with intent to commit rape and a one-year enhancement for use of a knife. The court provided that its stay of imposition of sentence on kidnapping would become permanent upon the completion of defendant's appeal or of his sentence on the assault count. (See People v. Miller (1977) 18 Cal.3d 873, 886, 18 Cal.3d 873, 135 Cal.Rptr. 654; People v. Murphy (1980) 111 Cal.App.3d 207, 210-212, 168 Cal.Rptr. 423.) Frequently, a court sentences on all counts and stays execution of sentence on a certain count or counts. (See People v. Williams (1975) 51 Cal.App.3d 65, 66-67, 123 Cal.Rptr. 891; People v. Utter (1973) 34 Cal.App.3d 366, 368, 108 Cal.Rptr. 909; People v. Niles (1964) 227 Cal.App.2d 749, 752-756, 39 Cal.Rptr. 11.) Here, the court instead stayed imposition of sentence for kidnapping. In re Black (1967) 66 Cal.2d 881, 889, 59 Cal.Rptr. 429, 428 P.2d 293, recognizes "suspending the pronouncement of judgment" as an alternative means by which a court may retain sentencing jurisdiction with respect to a conviction. (See People v. Vallerga (1977) 67 Cal.App.3d 847, 855, 136 Cal.Rptr. 429; see also People v. Villegas (1971) 14 Cal.App.3d 700, 703-704, 92 Cal.Rptr. 663.) Appellant's argument is that, by the court's choice of the following language during the original proceeding, it unwittingly divested itself of jurisdiction to resentence him on the kidnapping count on remand: "On count I, the kidnapping charge, I'm going to stay the imposition of sentence pending successful completion of the sentence imposed on count II, for [sic] the completion or termination of any appellate process, and once either or both of those are completed, then the imposition of sentence on count I will be stayed permanently."

It was unquestionably the court's intent through this language to provide for precisely the type of contingency which ultimately occurred--an appellate disposition requiring resentencing. Appellant, however, maintains the court did not recite the proper litany. He argues that the "appellate process" was terminated upon the issuance of the remittitur and that consequently by the time the court arraigned appellant for resentencing the stay of sentence on the kidnapping conviction had become permanent. The court itself did not so interpret its previous statement: "The logic of it [is] we use that phraseology constantly in almost every sentencing when we are in essence saying if an appellate court reverses us on that particular sentence, then we can fall back onto the other count.... The whole purpose was to protect the sentencing process ... in case there was error. In this case there was error obviously."

We agree with the trial court's interpretation of the provisions of the original stay. Where an appellate court affirms or reverses a judgment outright, the "appellate process" is ordinarily complete upon the issuance of a remittitur. Where, instead, the appellate court includes in its disposition specific directions to the trial court to conduct certain additional proceedings, the "appellate process" is not truly complete until the trial court carries out those instructions although the appellate decision itself becomes final on the date of the issuance of the remittitur.

The purpose of staying a sentence pending completion of an appeal is to retain jurisdiction over that sentence until the judgment becomes final. (See People v. Harris (1980) 105 Cal.App.3d 204, 207, 164 Cal.Rptr. 296.) Here, the appellate court affirmed the conviction of kidnapping and the modified conviction of assault, but did not expressly "affirm" the judgment because it was defective in two respects--it reflected imposition of the use enhancement and of a sentence for assault with intent to commit rape. Consequently, the court ordered "the matter is remanded for resentencing." Thus, at the time of resentencing, the original judgment had neither been voided by a reversal nor become final by an affirmance. As there was no final judgment at that time, the "appellate process" continued while the trial court complied with directions of the appellate court transmitted to it by the remittitur. Consequently, the stay of sentencing for kidnapping had not become permanent as of that time. As appellant's conviction for assault with intent to commit rape had been improper and the sentence imposed on that count unauthorized by law, imposition of sentence on the previously stayed count was proper on remand. (People v. Cabral (1975) 51 Cal.App.3d 707, 716-719, 124 Cal.Rptr. 418.)

Appellant argues in the alternative that the stay had become permanent as of the time of resentencing, as he had served a prison sentence in excess of the term prescribed for simple assault. The court in the former proceeding stayed sentencing on kidnapping pending completion of the sentence then imposed on the other count--four years for assault with intent to commit rape and one year for the use enhancement. The appellate court modified to simple assault the conviction on this charge but by its disposition did not alter the sentence. Instead, it remanded the cause to the trial court for the purpose of correcting the sentencing errors. Thus, at the time of the proceedings upon remand, appellant remained under a sentence of five years. In short, at the time of resentencing, neither of the contingencies stated in the original stay order--completion of the five-year sentence or termination of the appellate process--had yet occurred. Consequently, the trial court was free to revoke the stay and impose sentence for kidnapping. (People v. Cabral, supra, 51 Cal.App.3d 707, 719, 124 Cal.Rptr. 418.)

B. The term of five years imposed on resentencing does not penalize the defendant for his original appeal. ^*

C. The court's failure to order a supplemental probation report was error.

In the original sentencing proceeding, the court considered and denied appellant's request for probation. It also stated its disagreement with the recommendation of the probation...