People v. Superior Court (Gonzales)

• Decision Date: 28 February 1978
• Citation: 78 Cal.App.3d 134,144 Cal.Rptr. 89
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Philip Gonzales GONZALES, Real Party in Interest. Civ. 52412.

Page 89

144 Cal.Rptr. 89

78 Cal.App.3d 134

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent Philip Gonzales GONZALES, Real Party in Interest.

Civ. 52412.

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

Feb. 28, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and John R. Gorey, Deputy Attys. Gen., for petitioner.

Wilbur F. Littlefield, Public Defender of Los Angeles County, Dennis A. Fischer, James H. Nemeth, and G. Keith Wisot, Deputy Public Defenders, for real party in interest.

No appearance for respondent.

KAUS, Presiding Justice.

Real party in interest herein pleaded nolo contendere in respondent court to a charge of unlawful sexual intercourse committed on March 2, 1973. He was placed on probation. On September 20, 1977, he was found to be in violation of probation. Probation was revoked. Respondent sentenced him to state prison for a term of six months to two years. He was credited with having spent 206 days in custody.

The People, after an unsuccessful attempt to persuade respondent court to set aside the judgment insofar as it specified the length of real party's term of imprisonment, filed the present petition for writ of mandate. We issued the alternative writ to determine whether the sentence imposed exceeded respondent's jurisdiction. ¹

The People contend that Penal Code sections 1168, subdivision (b), and 1170, subdivision (a)(2) require a trial court, in sentencing a defendant to state prison for an offense committed before July 1, 1977, to sentence the offender for "the term prescribed by law" under the former Indeterminate Sentencing Law, and that pursuant to Penal Code section 1170.2, subdivisions (a) & (b) the actual term of imprisonment is to be fixed by the Community Release Board (CRB). They rely on People v. Alcala, 74 Cal.App.3d 425, 141 Cal.Rptr. 442.

In declining to vacate the sentence as pronounced, the trial court found that Alcala, supra, was distinguishable in that Alcala had been sentenced before July 1, 1977, and anything the case said about persons sentenced after that date was dictum. The court expressed the belief that as to a sentence pronounced after July 1, 1977, for an offense committed before that date, the recently enacted Uniform Determinate Sentencing Act (the Act) (SB42, Stats.1976, ch. 1139; AB476, Stats.1977, ch. 165) requires the court to fix the sentence, applying the old sentencing law to the extent that the penalty thereunder was less stringent, so as to avoid ex post facto consequences, and otherwise applying the sentence called for under the Act in order to give effect to the ameliorative attitude expressed by the Legislature in enacting it. ² (In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.) The court voiced the further belief that the Legislature could not constitutionally have delegated to CRB the judicial function of fixing the term of imprisonment for persons sentenced after July 1, 1977, for offenses committed prior thereto. Real party has adopted both of these propositions in his opposition to the alternative writ. We cannot agree with either.

The current versions of sections 1168 and 1170 are part of the 1977 revision of the Act. (AB476, Stats.1977, ch. 165.) Section 1168 provides: "(a) Every person who commits a public offense, for which any specification of three time periods of imprisonment in any state prison is now prescribed by law shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced pursuant to Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2. (P) (b) For any person not sentenced under such provision, but who is sentenced to be imprisoned in the state prison, including imprisonment not exceeding one year and one day, the court imposing the sentence shall not fix the term or duration of the period of imprisonment." Taken alone, section 1168 tells us nothing about the proper sentencing procedure for persons in real party's position; however, when section 1168 is read in conjunction with sections 1170 and 1170.2, ³ as it must be, the legislative scheme becomes clear. Section 1170, subdivision (a) (2) provides that where a choice of three time periods for confinement is specified as punishment for an offense, the trial court shall sentence the defendant to one of the specified time periods unless he " . . . is sentenced pursuant to subdivision (b) of Section 1168 because he had committed his crime prior to July 1, 1977." ⁴ Section 1170.2, subdivision (a) provides that CRB shall fix the term of imprisonment "In the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he had committed it after July 1, 1977 . . . " ⁵ While there are simpler ways of saying that all persons who committed crimes before July 1, 1977, will be sentenced under the Indeterminate Sentencing Law, the conclusion that this was the legislative intent is compelling when the 1977 versions of sections 1170 and 1170.2 are compared with their 1976 counterparts. The 1976 Act clearly provided that determinate sentences were to be given to all persons sentenced after July 1, 1977, whenever the crime was committed. One of the very purposes of the 1977 amendments was to make the date of the criminal act determinative. We quote from the Bill Analysis of AB476, prepared by the Assembly Committee on Criminal Justice, and included as an exhibit to real party's return to the alternative writ. Item 14 on page 5 of the analysis provides: "DATE OF S.B. 42 SENTENCE (P) S.B. 42: the determinate sentences will apply to those cases sentenced after July 1, 1977. Those sentenced before will be sentenced indeterminately and will receive the retroactive application. (P) A.B. 476: changes the date from sentencing to the date the offense was committed. Expands the use of retroactive hearings to cover those who will be received 'indeterminately' in prison after July 1, 1977 (due to probation violations that could occur in the future, under A.B. 476, there will be defendants received with indeterminate sentences years into the future)." (Emphasis in original.)

We conclude that the dictum of People v. Alcala, supra, 74 Cal.App.3d 425, 141 Cal.Rptr. 442, is sound; that the Legislature did intend that for defendants sentenced after July 1, 1977, for offenses committed prior thereto, the term of imprisonment be fixed by CRB, not by the trial court.

We turn next to a consideration of whether there is any constitutional impediment to this scheme. The proposition, espoused by respondent and adopted by real party, that allowing CRB to fix such sentences constitutes an unlawful delegation of a judicial function to the executive branch of government, ignores the history of sentencing in this state over the last 60 years. The Indeterminate Sentencing Law was adopted by the Legislature in 1917. Its constitutionality was first sustained by the California Supreme Court in 1918 against a challenge that it infringed the doctrine of separation of powers. The Court stated: "In answering the claim that the authority vested by the indeterminate sentence law in the board of prison directors is a delegation of either legislative or judicial powers to an executive body, it is pointed out that the legislative function is filled by providing the sentence which is to be imposed by the judicial branch upon the determination of the guilt of the offender. This is done by the enactment of the indeterminate sentence law. The judicial branch of the government is intrusted with the function of determining the guilt of the individual and of imposing the sentence provided by law for the offense of which the individual has been found guilty. The actual carrying out of the sentence and the application of the various provisions for ameliorating the same are administrative in character, and properly exercised by an administrative body." (In re Lee, 177 Cal. 690, 693, 171 P. 958, 959.) This ruling was repeatedly affirmed over the years. (See e. g., In re Wells, 35 Cal.2d 889, 893, 221 P.2d 947; In re Larsen, 44 Cal.2d 642, 647-648, 283 P.2d 1043; In re Lynch, 8 Cal.3d 410, 417, 105 Cal.Rptr. 217, 503 P.2d 921.) A sentence to state prison under the Indeterminate Sentencing Law was deemed to be a sentence for the maximum term prescribed by law under the cited cases. Any earlier release date fixed by the Adult Authority or its predecessor agencies was supposed to reflect a recognition of the prisoner's efforts at rehabilitation.

A defendant sentenced to state prison after July 1, 1977, for an offense committed before that date, is sentenced in precisely the same manner and according to the same principles as were previously applied under the Indeterminate Sentencing Law, except that under Section 1170.2, subdivision (b) of the Penal Code, CRB, in deciding whether to reduce a defendant's term below the maximum, may consider the ameliorative effects of the Act on the length of sentences generally and the legislatively expressed desire for uniformity in the treatment of offenders. This alteration in the factors to be considered by the administrative body charged with fixing and enforcing legislatively circumscribed and judicially imposed sentences is insufficient to render unconstitutional as to those defendants still falling within its purview a system which has been sustained by the courts for over 60 years. ⁶

The two remaining problems alluded to by the trial court, the ex post facto issue and retroactivity, are adequately addressed by the Act. Defendants in real party's position are protected against potential ex post facto consequences of the Act by subdivision (c) of Penal Code section 1170.2 which directs that: "Nothing in this section shall be deemed to...