People v. Smith

• Decision Date: 28 March 1985
• Citation: 212 Cal.Rptr. 737,166 Cal.App.3d 1003
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel SMITH, Defendant and Appellant. F004009.

Page 737

212 Cal.Rptr. 737

166 Cal.App.3d 1003

The PEOPLE, Plaintiff and Respondent, v. Daniel SMITH, Defendant and Appellant.

F004009.

Court of Appeal, Fifth District, California.

March 28, 1985.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Court of Appeal, and Julia Cline Newcomb, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Jane N. Kirkland and Edmund D. McMurray, Supervising Deputy Attys. Gen., and Wanda Hill Rouzan, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

THE COURT ^*

In Kern County Superior Court action No. 23158, appellant was convicted after jury trial of forcible rape and being an ex-felon in the possession of a firearm. A jury found that appellant had used a firearm in the commission of the rape. In Kern County Superior Court action No. 23290, consolidated for trial with action No. 23158, appellant was convicted of a separate count of being an ex-felon in possession of a firearm. Appellant admitted having served two prior prison terms. The trial court sentenced appellant to prison for the eight-year upper base term plus the two-year gun use enhancement on the rape and for the three-year upper base term on each firearm possession charge. The trial court stayed the sentence on the first firearm count and ordered that the sentence on the second firearm count run consecutively with the term for the rape. The trial court also imposed a one-year additional term for each prior prison term enhancement.

On appellant's first appeal (F001068), this court affirmed appellant's convictions but ordered resentencing because the trial court had failed to state reasons for consecutive terms. ¹ On March 1, 1984, appellant appeared before the trial court, which appointed counsel and conducted a brief hearing limited to a statement of reasons for consecutive terms. Acting without a new probation officer's report (RPO), the trial court did not state its other sentence choices with supporting reasons, did not reimpose the gun use or prior prison term enhancements, and did not orally pronounce judgment. On this, his second appeal, appellant contends that the trial court failed 1) to resentence him as required by this court's original opinion; 2) to order a new RPO before the hearing; and 3) to appoint counsel in a timely manner. For reasons to be stated, we will agree that the matter must be re-remanded for resentencing.

At the original sentencing hearing on April 22, 1982, the trial court sentenced appellant as follows:

"I have read and reviewed the recommendation of the probation department including the supplemental report that was filed earlier this week, and in Case 23158, in regard to Count 1, at this time I'm going to deny the defendant's request for probation and sentence him to the Department of Corrections for the upper term of eight years, finding that there are circumstances in aggravation, namely, the crime involved premeditation; that the defendant's prior record is extensive and of constant seriousness; his past and present behavior has indicated that he is a violent individual and a danger to the citizens of the State of California; that he has served two prior prison terms; that he was on probation at the time of the commission of the offenses; that his prior performance on probation and parole has been unsatisfactory; that eight-year sentence will be enhanced within the meaning of 12022.5 of the Penal Code for two years, the jury having found that he was armed with a weapon, and also it will be enhanced for an additional two years under Section 667.5(c) [sic ] of the Penal Code because of the prior felony convictions, and that will be a total of 12 years on Count 1.

"He is entitled to credit for time served in the amount of 226 days credit.

"With regard to Count 3 of Case No. 23158, the defendant's request for probation will be denied. He will be sentenced to the Department of Corrections for three years; that sentence will be stayed until he has successfully completed sentence in Count 1.

"In Case No. 23290, the defendant's request for probation will be denied, and he will be sentenced to the Department of Corrections for a period of three years. We will sentence him to the Department of Corrections for the upper term of three years, however, all but two-thirds of the middle term will be suspended, and that sentence is to run consecutive with the 12 years that I have just given him in Case 23158. That will be a total of 12 years and 8 months and I find that the reason for the upper term in that case also is the same terms in aggravation [sic ] that were expressed in the prior case."

In our first opinion dated September 16, 1983, we stated:

"The trial judge failed to state any reasons for imposing consecutive terms in this case. Appellant alleges this was error and respondent agrees. Imposition of a consecutive sentence is a sentence choice for which reasons must be given. (Pen.Code, § 1170(c); Cal. Rules of Court, rule 433; People v. Bejarano (1981) 114 Cal.App.3d 693 .) [p] The judgment is affirmed. The matter is remanded for resentencing."

A review of the records in appellant's former and present appeals shows that the trial court in fact made two other errors at the original sentencing. First, the trial court used appellant's two prior prison terms for aggravation and enhancement purposes in violation of Penal Code section 1170, subdivision (b)'s dual use of facts bar. Second, the trial court imposed two prior prison term enhancements when, in fact, appellant had served only one prior separate prison term within the meaning of Penal Code section 667.5. Appellant's appointed appellate counsel raised and this court considered neither point on the first appeal. Appellant now brings these matters to our attention for the first time.

At the March 1, 1984, hearing, after briefly recapping the procedural history of the case, the trial court stated:

"Case No. 23158 was a conviction of a sex offense which [sic ] alleged to have occurred approximately two weeks prior, as I recall, to the allegation of the weapon allegation in Case No. 23290, so for the record at this time, I'm not going to change my sentence at this time. The reasons that I will state for the record that I'm imposing the sentence in Case No. 23290 consecutive to the sentence imposed in Counts 1 and 3 in Case No. 23158 was because the crimes were committed at different times and different places, and they were not in any way closely connected as to place and time to indicate a single period of aberrant behavior, and that's the reason they are running consecutive."

We turn to appellant's contentions.

Failure to Resentence

That the trial court did not resentence appellant on March 1, 1984, is self-evident. Respondent argues, however, that our original disposition required only that the trial court "reconsider its imposition of consecutive sentences", that the trial court's only error at the first sentencing hearing was its failure to state reasons for consecutive terms, and that the trial court corrected this error on March 1, 1984. We agree that the trial court's failure to state reasons for consecutive terms was the reason for our remand. We do not agree, however, that our remand was limited as respondent suggests or that the March 1, 1984, proceedings cured any problem.

First, we note that our disposition, by its very terms, ordered that "The matter is remanded for resentencing." Nothing in this dispositional language limited the remand to a mere statement of reasons for consecutive terms. Second, the nature of the original error itself required the complete resentencing which we ordered. The requirement of a statement of reasons for consecutive terms serves multiple purposes: it permits meaningful appellate review of the sentence choice of consecutive terms; it promotes uniformity of sentencing; and where, as here, the trial court imposes both an aggravated term and consecutive terms, it permits meaningful appellate review of whether the trial court erroneously used the same fact(s) for aggravation and enhancement purposes. Thus, where the trial court imposes an aggravated term and a consecutive term, the failure to state reasons infects the entire sentence, not only the consecutive terms. It follows that such an error requires a full resentencing. Moreover, in many cases, a full remand permits the trial court to reallocate aggravating and mitigating factors, bearing in mind the dual use bar. A limited remand effectively would lock the trial court into its previous allocation of factors.

We hold that the trial court erred in failing to resentence appellant on all counts and enhancements.

Failure to Order a New RPO

The trial court did not order or consider a new RPO before the March 1, 1984, proceedings. Respondent argues at length that no new RPO was required, because of the limited nature of the remand, appellant's statutory ineligibility for probation, the limited nature of the original error, and the aggravated nature of appellant's crimes. We do not agree.

Preliminarily, as explained above, the remand was not limited as respondent suggests but instead extended to a full resentencing. Also, though appellant's appointed appellate counsel on his first appeal raised only the failure to state reasons, we have noted above that the trial court committed two other sentencing errors as well at the original sentencing. A new RPO might have helped the trial court spot and correct these errors on the first remand.

That appellant was statutorily ineligible for probation did not obviate the need for a new RPO. In People v. Brady ...