People v. Sanchez

• Decision Date: 13 March 1987
• Docket Number: Nos. F006159,F006183 and F006244,s. F006159
• Citation: 235 Cal.Rptr. 264,190 Cal.App.3d 224
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leopoldo Abalos SANCHEZ, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Domingo CASTILLO, Defendant and Appellant.

Page 264

235 Cal.Rptr. 264

190 Cal.App.3d 224

The PEOPLE, Plaintiff and Respondent, v. Leopoldo Abalos SANCHEZ, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Domingo CASTILLO, Defendant and Appellant.

Nos. F006159, F006183 and F006244.

Court of Appeal, Fifth District, California.

March 13, 1987.

Certified for Partial Publication ^*.

As Modified on Denial of Rehearing April 13, 1987.

Review Denied June 25, 1987.

[190 Cal.App.3d 227] Frieda Jo Owings, Vallejo, Frank Offen, Oakland, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Associate Justice.

APPELLANT SANCHEZ

On August 5, 1985, information No. 209002 was filed in the Stanislaus County Superior Court charging appellant Sanchez with a violation of section 11352 of the California Health and Safety Code, ¹ the sale of heroin on or about July 5, 1985.

On that date, Sanchez withdrew his plea of not guilty and entered a plea of guilty to two counts of violation of section 11352 which had been separately charged in superior court case No. 208979. The negotiated plea contemplated appellant Sanchez enter a plea of guilty to count I in the case then undergoing preliminary examination, No. 208979, and the People would move to dismiss count II. Appellant Sanchez would also enter a plea of guilty to the section 11352 violation alleged in information No. 209002 in exchange for a recommendation from the prosecution that punishment for the two counts run concurrently. Additionally, there was apparently a third case, as yet unfiled, which the prosecution agreed to dismiss after entry of the above-stated guilty plea. Appellant Sanchez was then advised of his rights as to both cases and entered his pleas of guilty. The cases were then certified to superior court.

On September 4, 1985, the sentencing court denied appellant Sanchez probation and sentenced him to prison for the middle term of four years and awarded the appropriate time credits.

Appellant Sanchez filed timely notices of appeal in each of his cases. Upon motion of appellant Sanchez to consolidate the appeals, these two cases were ordered consolidated on January 15, 1986.

APPELLANT CASTILLO

On August 22, 1985, a two-count complaint was filed in the Tulare County Municipal Court charging appellant Castillo and codefendant Felicitis Tejada of violating section 11352. Count I charged appellant with sale of heroin and count II charged appellant with the sale of cocaine, both offenses occurring on August 20, 1985.

On September 3, 1985, Castillo, pursuant to a plea bargain, entered a plea of guilty to a violation of section 11351, possession of heroin for sale.

On October 1, 1985, the sentencing court denied appellant Castillo probation and sentenced him to state prison for the medium term of two years. Appellant Castillo filed a timely notice of appeal.

Upon this court's own motion, the appeals of appellants Sanchez and Castillo were ordered consolidated for a determination of all appellate issues raised therein on September 5, 1986.

Since both appellants' convictions are predicated upon pleas of guilty, no facts relating to the crimes will be set forth except as they become relevant in the course of the subsequent discussions.

DISCUSSION

I. FEDERAL AND STATE GUARANTIES OF EQUAL PROTECTION AND DUE PROCESS

Both appellants contend the trial court's denial of probation due to their respective status as an illegal alien violated their federal and state guaranties of equal protection and due process. Both appellants argue classification based on alienage is subject to strict scrutiny.

The United States Supreme Court held illegal aliens may claim the benefit of the Fourteenth Amendment's guaranty of equal protection (Plyler v. Doe (1982) 457 U.S. 202, 215, 102 S.Ct. 2382, 2393-94, 72 L.Ed.2d 786.) In Graham v. Richardson (1971) 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534, the high court held that a state could not deny welfare benefits to lawfully resident aliens. That court's decisions have "established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discreet and insular' minority [citation] for whom such heightened judicial solicitude is appropriate." (Id. at pp. 371-372, fns. omitted, 91 S.Ct. at pp. 1851-52.) Alonso v. State of California (1975) 50 Cal.App.3d 242, 123 Cal.Rptr. 536, distinguished between cases involving "lawfully resident" aliens and aliens unlawfully in this country. The Second District Court of Appeal determined that "[i]f an alien is here unlawfully, he has no rights under the Constitution of the United States to equal opportunity of employment as enjoyed by lawfully resident aliens [citations] and has no right to work." (Id. at p. 248, 123 Cal.Rptr. 536.)

The Equal Protection Clause directs that "all persons similarly circumstanced shall be treated alike." (F.S. Royster Guano Co. v. Commonwealth of Virginia (1920) 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989.) However, the "Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." (Tigner v. Texas (1940) 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124.) Despite appellants' contentions to the contrary, legal residents of the United States and illegal residents are not persons "similarly circumstanced" which the federal and state Constitutions require to be treated alike. In fact, while the Supreme Court held that children of illegal entrants could not be deprived of a free, basic education based on their parents' misconduct as to do so would not comport with fundamental conceptions of justice, the court further noted that "those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation." (Plyler v. Doe, supra, 457 U.S. 202, 220, 102 S.Ct. at 2387, 2396.)

The distinction between illegal aliens and lawful residents is particularly marked when considered in terms of granting or denying probation. The Plyler court further noted, "undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action." (Ibid.)

" 'Granting or denying probation rests in the sound discretion of the trial judge, and a heavy burden is imposed upon a defendant to show abuse of that discretion in denying a request for probation.' " (People v. Goodson (1978) 80 Cal.App.3d 290, 295, 145 Cal.Rptr. 489, quoting People v. Kingston (1974) 44 Cal.App.3d 629, 637, 118 Cal.Rptr. 896.) California Rules of Court (hereinafter Rule), rule 414(d)(3) provides that a defendant's willingness and ability to comply with terms of probation shall be considered in a decision to grant or deny probation." Rule 414(d)(4) provides that a defendant's family background and ties are factors affecting eligibility for probation. The advisory committee comment to Rule 414 reads in part as follows:

"The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community. Each criterion points to evidence that the likelihood of success is great or small. A single criterion will rarely be determinative; in most cases, the sentencing judge will have to balance favorable and unfavorable facts.

"Under criterion (d)(3) ('willingness and ability') it is appropriate to consider the defendant's expressions of willingness to comply and their apparent sincerity, and whether the defendant's home and work environment and primary associates will be supportive of his efforts to comply with the terms of probation, among other factors." (See advisory committee com., 23 pt. 1 West's Ann. Civil and Criminal Rules (1981 ed.) rule 414, p. 673.)

In the instant case, in light of appellants' lack of ties with the community, the sentencing judges were concerned with appellants' "ability to comply with the terms of probation." (Rule 414(d)(3).) In our view, such concern is a legitimate factor to be weighed and considered by a sentencing court in determining whether or not to grant probation to an illegal alien.

Initially we note appellants' illegal alien, or undocumented alien, status was not disputed in the instant cases. ² When dealing with an illegal or undocumented alien, the trial judge must assume, barring presentation of cognizable and credible evidence to the contrary, a defendant will be deported upon completion of any term of incarceration imposed, whether it be local time as a condition of probation or state prison, or upon his release from custody when no period of incarceration is imposed. This is particularly true where a defendant is convicted of possession or sale of a controlled substance. As stated in People v. Arciga (1986) 182 Cal.App.3d 991, at page 1000, 227 Cal.Rptr. 611:

"Our state [L]egislature has recognized the important problem of narcotic abuse by illegal aliens and the need to cooperate with federal authorities: 'When there is reason to believe that any person arrested for violation of [certain uniform controlled substances sections] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the...