Rogers, In re
| Citation | 162 Cal.Rptr. 230,102 Cal.App.3d 61 |
| Decision Date | 11 February 1980 |
| Docket Number | Cr. 10365 |
| Court | California Court of Appeals |
| Parties | In re Gerald McDonald ROGERS, on Habeas Corpus. |
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Ramon de la Guardia and Thomas R. Yanger, Deputy Attys. Gen., for respondent and appellant.
Quin Denvir, State Public Defender, and Mark E. Cutler, Deputy State Public Defender, for petitioner and respondent.
The sole question presented by this appeal is whether the Community Release Board (CRB), in a serious offender hearing under Penal Code section 1170.2, subdivision (b), may consider a prior prison term served for felony convictions which were subsequently found to be constitutionally invalid. As we shall explain, we have concluded that the CRB did not abuse its discretion in considering the prior felony convictions and the resulting prison term served.
In 1976 petitioner was sentenced to state prison for three counts of kidnapping (Pen.Code, § 207), one count of attempted rape (Pen.Code, §§ 664, 261, subd. 3), two counts of rape (Pen.Code, § 261, subd. 3), and one count of oral copulation (Pen.Code, § 288a). The information in that case alleged four prior convictions. Two in 1960 were for rape (Pen.Code, § 261, subd. 3), and assault with a deadly weapon (Pen.Code, § 245). The other two in 1971 were for lewd and lascivious conduct (Pen.Code, § 288).
In the 1976 proceeding, the trial court found the two 1971 convictions to be constitutionally invalid; however, the basis of the invalidity is not stated in the minute order of the 1976 case.
After the effective date of the Determinate Sentence Law (DSL), the CRB concluded that petitioner was a serious offender within the meaning of Penal Code section 1170.2, subdivision (b), 1 and that a longer term than that which would result from retroactive application of the DSL was appropriate.
At the serious offender hearing, the CRB fixed a term of 13 years. Seven years were imposed for his 1976 convictions, three years for the term served for the 1960 convictions, and an additional three years were imposed for the term served in 1971.
After exhausting his administrative remedies without success, petitioner filed a petition for writ of habeas corpus in the superior court alleging the CRB exceeded its authority by imposing the additional three years for the 1971 convictions which had been found to be constitutionally invalid. He contended in the trial court and here that the 1971 convictions could not be used in any way to increase his sentence. The trial court granted the writ and ordered the CRB to recompute petitioner's term under Penal Code section 1170.2, subdivision (b), and ordered deletion of the three years based upon the 1971 convictions. The CRB appeals that order.
Initially we note that the applicable standard of judicial review of the term-fixing decisions of the CRB in serious offender hearings is whether based upon the entire record the board abused its discretion by acting arbitrarily, capriciously or without information and whether the actual sentence fixed by the board is constitutionally disproportionate to the offense. (In re Greenwood (1978) 87 Cal.App.3d 777, 784, 151 Cal.Rptr. 223.)
As this court has commented, the Legislature has conferred broad discretion upon the CRB in that it " 'shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977,' " in setting a term under section 1170.2, subdivision (b). (Way v. Superior Court (1977) 74 Cal.App.3d 165, 172-173, 141 Cal.Rptr. 383, 388.)
In In re Greenwood, supra, 87 Cal.App.3d at pages 782-783, 151 Cal.Rptr. 223, the court held that in serious offender hearings, the CRB is not bound to a strict application of the statutory sentencing rules ( § 1170, subd. (a)(2), § 1170.3), and the California Rules of Court (rules 421, 441) which are binding upon trial courts in passing sentence. Rather, the Greenwood court recognized that under the express language of the statute, the CRB is given discretion to impose a greater term than could have been imposed by the trial court under the DSL. (See also In re Shetterly (1978) 86 Cal.App.3d 889, 894-895, 150 Cal.Rptr. 603.)
Petitioner's principal argument is that under People v. Coffey (1967) 67 Cal.2d 204, 214-215, 60 Cal.Rptr. 457, 430 P.2d 15, a prior conviction subsequently held to be constitutionally invalid may not be used In any way to increase the severity of the punishment for a later offense. He is wrong.
There are two alternative methods by which the constitutional validity of a prior conviction may be challenged. The first is by a motion to set aside a plea of guilty and vacate a prior judgment of conviction, which must be initiated by the defendant in the action and court in which the prior judgment was rendered. The other is by motion to strike the prior convictions from an accusatory pleading in a pending criminal proceeding; if granted, the result is not the equivalent of a determination that the defendant did not in fact suffer the prior judgment of conviction but, rather, merely prevents the constitutionally invalid prior from being used by the court to enhance the punishment imposed in the current proceeding.
The striking of an allegation of prior conviction in an accusatory pleading is not the equivalent of a determination that defendant did not in fact suffer the conviction. The judicial act of striking the allegation is for purposes of sentencing only. The dismissal of such charges does not eliminate the prior conviction.
In the 1976 criminal proceedings, the latter motion was made and granted; the effect of the order merely precluded the trial court from using the 1971 convictions to increase the severity of petitioner's sentence upon his conviction for the 1976 offenses. (Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 711-712, 108 Cal.Rptr. 612; People v. Coffey, supra, 67 Cal.2d at pp. 214-215, 60 Cal.Rptr. 457, 430 P.2d 15.)
However, the CRB is not so limited in serious offender proceedings; the hearing and determination of a prisoner's term under section 1170.2, subdivision (b), does not constitute a resentencing. (In re Shetterly, supra, 86 Cal.App.3d at p. 895, 150 Cal.Rptr. 603; In re Gray (1978) 85 Cal.App.3d 255, 262, 149 Cal.Rptr. 416.) The original sentence "for the term prescribed by law" imposed under the Indeterminate Sentence Law in 1976 remains valid. (People v. Alcala (1977) 74 Cal.App.3d 425, 141 Cal.Rptr. 442; In re Gray, supra, 85 Cal.App.3d at p. 262, 149 Cal.Rptr. 416.) The CRB in such proceeding may enhance the sentence and extend the prisoner's confinement for a period longer than he could receive under the Determinate Sentence Law, but he may not be kept in confinement for a period of time longer than he would have been kept under the Indeterminate Sentence Law. (Pen.Code, § 1170.2, subd. (c); In re Greenwood, supra, 87 Cal.App.3d at p. 784, 151 Cal.Rptr. 223.)
Since the striking of an allegation of a prior conviction as "constitutionally invalid" is not the equivalent of a determination that the defendant did not, in fact, suffer the conviction, the CRB may enhance the serious offender's term of confinement by use of that prior conviction. (In re Greenwood, supra, at p. 784, 151 Cal.Rptr. 223.) The defendant must continue to fulfill the conditions of the sentence imposed upon him as a result of the earlier conviction unless the judgment is vacated in the original action. (Gonzalez, supra, 32 Cal.App.3d at p. 712, fn. 9, 108 Cal.Rptr. 612.
The record in the instant case fails to show that petitioner's 1971 judgments of conviction were vacated or set aside. On the contrary, the record reveals that although petitioner was granted parole from his prison commitment for the 1971 convictions, that parole was revoked in May 1977, and petitioner reconfined in prison for that revocation as well as for his 1976 convictions. Insofar as they form a basis for petitioner's present incarceration, the 1971 convictions are existing valid judgments.
Petitioner also relies upon a series of cases involving defendants charged with violations of Vehicle Code section 23102 () with alleged prior convictions of the same offense. 2 In those cases, a court order striking the prior convictions in pending proceedings was held to be binding on the Department of Motor Vehicles in administering its statutory mandate to suspend or revoke driving privileges upon multiple drunk driving convictions. Those cases are not apposite. The Legislature has by statute granted discretion to the CRB to impose terms for serious offenders greater than that which the last sentencing court could impose under the DSL.
The paramount consideration in setting terms under section 1170.2, subdivision (b), is the protection of the public from "extraordinary crimes of violence." (In re Greenwood, supra, 87 Cal.App.3d at p. 785, 151 Cal.Rptr. 223.) In a serious offender hearing, ". . . the CRB should impose a term which in its sound discretion it deems necessary to protect the public from repetition of crimes of violence against the person." (In re Coronado (1978) 87 Cal.App.3d 788, 793, 151 Cal.Rptr. 433, 437.)
From the record, it appears that the CRB not only considered the 1971 convictions, but also the fact that after the petitioner had served a prison term for the 1971 convictions, he was apparently not deterred from thereafter committing similar crimes. The panel reviewed petitioner's cumulative case summary, the sentencing transcript and probation officer's report in one of the 1971 convictions; those materials described in detail his...
To continue reading
Request your trial