People v. Pearson
| Decision Date | 22 June 1981 |
| Docket Number | C,Cr. 4827 |
| Citation | 175 Cal.Rptr. 43,120 Cal.App.3d 782 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Phillip Frank PEARSON, Defendant and Appellant. r. 5209. |
GEO. A. BROWN, Presiding Justice.
The instant case involves consolidated appeals from Stanislaus County Superior Court action Nos. 159848 and 164078.
By the express terms of each notice of appeal, each appeal raises sentencing error and neither appeal challenges the validity of appellant's "guilty plea." 1
In action No. 159848, on August 13, 1979, appellant was convicted on his guilty plea of a violation of Penal Code section 476a, issuing check with insufficient funds. On September 7, 1979, appellant was admitted to three years felony probation, one condition of which was a nine-month term of local incarceration. On November 28, 1979, appellant admitted a violation of his probation, in that he had escaped on September 13, 1979, from the Stanislaus County Jail and thereafter failed to contact the probation officer. This escape became the basis of action No. 164078. In action No. 159848, on December 17, 1979, the trial court sentenced appellant to the two-year, middle base prison term.
In action No. 164078, on November 26, 1979, appellant pled guilty in municipal court to a violation of Penal Code section 4532, subdivision (b), escape from county jail. It was stipulated that no force was involved. Appellant was certified to superior court. On December 18, 1979, the trial court sentenced appellant to an eight-month prison term, to run consecutive to the term imposed in action No. 159848.
Appellant now contends that resentencing is required in action No. 164078 because, based on its erroneous belief that a consecutive term was required, the trial court failed to state reasons for imposing a consecutive term. Alternatively, appellant contends that both judgments must be reversed and his admission of probation violation and guilty plea, respectively, be set aside. Analysis of appellant's contentions requires a more detailed procedural summary.
As noted, on November 26, 1979, appellant pled guilty in municipal court to a September 13, 1979, nonforcible escape from county custody after his Penal Code section 476a conviction in action No. 159848. Appellant's counsel remarked that "The D. A. has stated that they will submit on the probation report" and that appellant "has asked that the Court set this for sentencing in the Superior Court as quickly as possible."
In the course of the guilty plea proceedings, the magistrate informed appellant that nonforcible escape was punishable by a state prison term of sixteen months, two or three years. In answer to the magistrate's query, appellant's trial counsel stated that she had informed appellant that if he "were sentenced to state prison on this case as well as the 476(a) (sic)," "it could run consecutive and it could run concurrent." The magistrate confirmed that this was appellant's understanding.
As noted above, the matter was certified to superior court, an RPO was ordered, and sentencing was scheduled for December 17, 1979.
On November 15, 1979, appellant appeared in superior court for a hearing on a supplemental RPO of even date in action No. 159848. The RPO stated that appellant had violated his probation by his September 13, 1979, escape and his failure thereafter to contact the probation office. On November 15, appellant was advised of his rights in the probation violation proceeding, counsel was appointed, and the matter was continued to November 28, 1979.
On November 28, 1979, appellant appeared with counsel. Appellant's trial counsel noted that appellant's escape charge was pending and asked whether the matter could be continued to December 17, 1979. Appellant remarked that he wanted "to get the whole thing concluded so I can get up to Vacaville before Christmas."
The trial court readvised appellant of his right to deny and have a hearing on the alleged probation violation. The trial court observed "that might be an exercise in futility in this case because apparently the basis for the violation of probation is the very case for which you are about to be sentenced, the escape." The trial court fully advised appellant of his hearing rights which he retained "nonetheless" and which an admission of violation would waive.
After appellant stated that he understood these rights, his trial counsel informed the trial court that appellant was prepared to admit the alleged violation. Appellant then admitted the violation, the trial court revoked probation, and the matter was set for December 17, 1979, the trial court confirming appellant's remark that "the whole thing will be taken care of that day."
On December 17, 1979, appellant appeared with counsel on the certification (now action No. 164078) and the probation violation. As to the certification, the trial court noted that appellant's counsel a different member of the public defender's office than appellant's counsel in municipal court and the magistrate had misadvised appellant that his escape sentence might run concurrently with that imposed for the probation violation, because in fact the law required a consecutive sentence. When appellant said that this would have made a difference at the time he pled guilty, the trial court stated that it would reject the certification and remand for further proceedings in municipal court.
The trial court then asked appellant's trial counsel whether he was prepared to proceed in action No. 159848. After talking with appellant, counsel said that he was prepared to proceed, but that, "In regard to the probation matter, I prefer that that be put over where we can clear up the underlying escape charge since that's the basis for the violation." Counsel added that appellant "wants to proceed this morning on the whole matter," which counsel did not think was in his best interest.
The deputy district attorney objected to "putting over" the sentencing on the probation violation. The trial court stated that it did not "believe that there were any promises made to induce (appellant) to admit the violation here concerning that other case." Appellant's counsel replied that his client wanted to proceed on both matters. Appellant agreed to proceed, despite the trial court's repeated willingness to remand the certification to municipal court because of appellant's misapprehension when he pled guilty.
The trial court noted that it had the supplemental RPO and asked the deputy district attorney for comment or recommendation. The deputy district attorney replied Appellant's trial counsel asked that his client receive probation, based on a note from another inmate which suggested "a rather imperfect defense of necessity."
The trial court sentenced appellant to prison for two years with eight days' credit. 2 The trial court then turned to action No. 164078 and again elicited appellant's wish "to waive any irregularity" in the guilty plea proceedings and be sentenced forthwith. The trial court noted that it had reviewed the RPO. The deputy district attorney stated "We recommend that he be sentenced to State Prison for the median term." Appellant's trial counsel asked the trial court to disregard certain entries in the RPO. The trial court agreed.
The trial court found appellant was not a suitable probationary candidate because he had "violated the terms of his probation previously, not only in this county, but elsewhere," the latter a reference to appellant's admission to felony probation in San Joaquin County on July 6, 1979. The trial court sentenced appellant to a two-year consecutive term.
Appellant's trial counsel argued that the consecutive term should be eight months, the deputy district attorney agreed with the trial court that a full two years was correct, and the sentence was withdrawn and the matter continued to the next day for further research. The next day, the trial court agreed with the defense position and imposed an eight-month consecutive sentence.
Appellant contends that the trial court was under a misapprehension that a consecutive sentence was statutorily required, that no discretion existed to impose a concurrent term, and that therefore the trial court both failed to exercise its discretion and to state reasons for imposing a consecutive term. Appellant argues that the trial court could have avoided a consecutive sentence by giving appellant a 12-month concurrent sentence to county jail. 3
The question which appellant has tendered is whether Penal Code section 4532, subdivision (b), permits a concurrent sentence to county jail for nonforcible escape. On this issue, the parties diverge.
Penal Code section 4532, subdivision (b), provides:
"(b) Every prisoner arrested and booked for, charged with, or convicted of a felony who is confined in any county or city jail or prison or industrial farm or industrial road camp or who is engaged on any county road or other county work or who is in the lawful custody of any officer or person, or who is confined pursuant to Section 4011.9, who escapes or...
To continue reading
Request your trial
-
People v. Gulbrandsen
...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, 61......
-
People v. Haendiges, Cr. A
...These cases clearly hold that maximum consecutive misdemeanor sentences are proper. (See, also, People v. Pearson (1981) 120 Cal.App.3d 782, 789-790, 175 Cal.Rptr. 43 and People v. Hartsfield (1981) 117 Cal.App.3d 504, 172 Cal.Rptr. 794.) Although no case has examined issues of equal protec......
-
People v. Briseno
...to advise defendant about pecuniary consequence of defendant's plea required certificate of probable cause]; People v. Pearson (1981) 120 Cal.App.3d 782, 791, 175 Cal.Rptr. 43 [certificate required for contention that the magistrate and trial counsel misadvised him regarding mandatory conse......
-
People v. Isaac
...at p. 434; People v. Placencia (2011) 194 Cal.App.4th 489, 494; People v. Robinson (1988) 205 Cal.App.3d 280, 282-283; People v. Pearson (1981) 120 Cal.App.3d 782, 791.) We further conclude that the record does not establish any grounds to support a motion to withdraw the plea. The denial o......