People v. Pierce

• Decision Date: 11 December 1995
• Docket Number: No. A069479,A069479
• Citation: 47 Cal.Rptr.2d 406,40 Cal.App.4th 1317
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9504, 95 Daily Journal D.A.R. 16,392 The PEOPLE of the State of California, Plaintiff and Respondent, v. Marty Richard PIERCE, Defendant and Appellant.

Page 406

47 Cal.Rptr.2d 406

40 Cal.App.4th 1317, 95 Cal. Daily Op. Serv. 9504,

95 Daily Journal D.A.R. 16,392

The PEOPLE of the State of California, Plaintiff and Respondent, v. Marty Richard PIERCE, Defendant and Appellant.

No. A069479.

Court of Appeal, First District, Division 5, California.

Dec. 11, 1995.

As Modified Dec. 21, 1995.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, Stan M. Helfman, Deputy Attorney General, San Francisco, for plaintiff and respondent.

Peter Ottenweller, under appointment by the Court of Appeal, Santa Rosa, for defendant and appellant.

KING, Associate Justice.

I. INTRODUCTION

In this case we hold that Judge R. Bryan Jamar erred by failing to state reasons for imposing upper terms of imprisonment, and we remand the cause for resentencing by another judge because of Judge Jamar's persistent failure or inability to perform the fundamental duty of a sentencing court to state reasons for its sentencing choices.

II. BACKGROUND

Marty Richard Pierce pleaded guilty to four counts of sale of methamphetamine (Health & Saf.Code, § 11379). Judge Jamar imposed the upper term of four years for one count, a consecutive subordinate one-year term for another count, and concurrent upper terms of four years for the remaining counts, for a total prison sentence of five years.

Judge Jamar gave no statement of reasons for imposing the upper terms. He simply said, "The circumstances in aggravation and mitigation as set forth on page four of the presentence report are adopted as the circumstances in aggravation and mitigation. Court finds that circumstances in aggravation outweigh the circumstances in mitigation." ¹ The probation report described six aggravating factors and two mitigating factors. ²

III. DISCUSSION

Judge Jamar violated the duty of a court to state reasons for its sentencing choices. "The reasons for selecting the upper ... term shall be stated orally on the record, and shall include a concise statement of the ultimate facts which the court deemed to constitute circumstances in aggravation ... justifying the term selected." (Cal.Rules of Court, rule 420(e); see also Cal.Rules of Court, rules 406, 433(c)(1).) Incorporating by reference the enumeration of aggravating and mitigating factors in a probation report, as was done here, does not satisfy the requirement of a statement of reasons. (People v. Fernandez (1990) 226 Cal.App.3d 669 678-679, 276 Cal.Rptr. 631; People v. Turner (1978) 87 Cal.App.3d 244, 247, 150 Cal.Rptr. 807.) "[M]erely incorporating the probation report by reference violates the spirit of the sentencing laws and fails to properly explain the basis for any sentence choice." (People v. Fernandez, supra, 226 Cal.App.3d at p. 679, 276 Cal.Rptr. 631.)

The People contend this error was harmless because the sentence is supported by the record and a lesser sentence would not be likely on remand. Admittedly, such error is often, though not always, deemed harmless. (See id. at pp. 679-684, 276 Cal.Rptr. 631.) We cannot find the error harmless in this case, however, for a unique reason: Judge Jamar is a notorious recidivist with a long history of failure or inability to comply with the various sentencing rules requiring a statement of reasons, which indicates he is not properly exercising sentencing discretion.

In Division Five of this court, for nearly ten years, we have repeatedly reversed Judge Jamar for failing to state reasons for denying probation and imposing a prison term (People v. Wychocki (1987) 188 Cal.App.3d 1063, 1066-1067, 233 Cal.Rptr. 830 [opn. by King, J.]; People v. Estes (Feb. 11, 1992) A055058 [nonpub. opn. by King, J.] ), for failing to state reasons for imposing full consecutive sentences (see People v. Wychocki, supra, 188 Cal.App.3d at p. 1066, 233 Cal.Rptr. 830), and for failing to state reasons for a sentencing choice after revocation of probation (People v. Clay (June 8, 1992) A055980 [nonpub. opn. by Haning, J.] ).

We have also repeatedly warned Judge Jamar to clean up his act. In 1987, when we first reversed him for failing to state reasons for denying probation, we noted that another division of this court had previously reversed him twice in the same case for failure to comply with its judgment requiring him to state reasons for imposing full consecutive sentences. (People v. Wychocki, supra, 188 Cal.App.3d at p. 1066, 233 Cal.Rptr. 830; see People v. Hunter (1986) 184 Cal.App.3d 1531, 1535-1536, 229 Cal.Rptr. 330.) We then commented, "A persistent failure to comply with sentencing rules is bad enough; a refusal to comply with the specific directions of higher courts is inexcusable. Such failures not only result in unnecessary appeals imposing an additional workload on an overburdened judicial system, they also result in a needless and wasteful expense to the taxpayers of California." (People v. Wychocki, supra, 188 Cal.App.3d at p. 1067, 233 Cal.Rptr. 830.)

In 1992, when in an unpublished opinion we again reversed Judge Jamar for failing to state reasons for denying probation, we commented, "We are concerned that Judge Jamar may be lapsing into prior bad habits, and urge him to take greater care in future sentencing and thereby avoid further (and perhaps more emphatic) appellate commentary." (People v. Estes, supra, typed opn. p. 1.)

Later in 1992, when in another unpublished opinion we reversed Judge Jamar for failure to state reasons for his sentencing choice after revocation of probation, we expressed "our distress and frustration that we are forced to reverse another criminal case, at needless expense to the taxpayers when they can ill afford it, due to the repeated failure of the sentencing judge to follow the clear requirements of the law, despite numerous admonitions from the Court of Appeal." (People v. Clay, supra, typed opn. p. 3.) Further, we warned Judge Jamar that similar transgressions in the future might lead to remand for resentencing by a different judge: "This is the third instance within the past 90 days that has come to our attention where the same judge has committed this same failure to comply with the sentencing requirements. Should this occur again, we are inclined to exercise our authority on remand to direct that sentencing be performed by a different judge. At a time when the courts' caseloads are increasing, but our budgets and ability to muster the resources to meet those caseloads are decreasing, we cannot continue to reverse cases due to the repeated failure of a particular judge to perform a required, and relatively simple judicial task." (Id. at pp. 3-4.)

Other divisions of this court have likewise complained in unpublished opinions of Judge Jamar's failure to state reasons for sentencing decisions. For example, Division Two commented in 1992, "we are distressed" that Judge Jamar "continues (despite numerous admonitions in both published and unpublished cases emanating from this court) to defy the appellate courts, the mandate of the Legislature ( [Pen.Code] § 1170, subd. (c)), and the California Rules of Court (rules 439(d) and 433)." (People v. Gonzalez (Apr. 17, 1992) A053629 [nonpub. opn. by Kline, J.].)

Now, Judge Jamar has done it again. "The most fundamental...