Shetterly, In re, Cr. 18327

• Decision Date: 01 December 1978
• Docket Number: Cr. 18327
• Citation: 86 Cal.App.3d 889,150 Cal.Rptr. 603
• Parties: In re Donald Lee SHETTERLY on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 603

150 Cal.Rptr. 603

86 Cal.App.3d 889

In re Donald Lee SHETTERLY on Habeas Corpus.

Cr. 18327.

Court of Appeal, First District, Division 2, California.

Dec. 1, 1978.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Kenneth C. Young, Deputy Attys. Gen., San Francisco, for appellant.

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Philip A. Schnayerson, Mark Fogelman, Deputy State Public Defenders, San Francisco, for respondent (Under appointment of the Court of Appeal).

TAYLOR, Presiding Justice.

The People appeal from an order granting Donald Lee Shetterly's petition for a writ of habeas corpus (see Pen.Code, § 1506). The issue is whether the Community Release Board (hereinafter the "CRB"), in determining Shetterly's prison term pursuant to Penal Code section 1170.2, subdivisions (a) and (b), erred in enhancing Shetterly's base prison term (three years for voluntary manslaughter) by two years because of prior felony convictions which had been alleged but stricken pursuant to a negotiated plea-bargain at the time Shetterly pleaded guilty to voluntary manslaughter and was sentenced under the indeterminate sentencing law. For the reasons hereinafter stated, we conclude that the CRB did not err in determining Shetterly's prison term, and therefore the order granting Shetterly's petition for a writ of habeas corpus is reversed.

In December 1974, Shetterly was charged with the murder of Stuart Mayne on August 17, 1974 (Pen.Code, § 187). The information alleged that Shetterly was armed with a deadly weapon (Pen.Code, § 12022) and that he used a firearm (Pen.Code, § 12022.5) in commission of the murder. The information further alleged seven prior felony convictions which included three convictions for rape in 1957, two convictions for robbery in 1957, a conviction for assault with a deadly weapon in 1957, and a first degree robbery conviction in October 1966.

On February 13, 1975, Shetterly was permitted to withdraw his earlier plea of not guilty and, pursuant to a plea-bargain, he pleaded guilty to the lesser included offense of voluntary manslaughter (Pen.Code, § 192, subd. 1), whereupon the special arming and use of a firearm allegations and all the alleged prior felony convictions were dismissed. On March 6, 1975, the court sentenced Shetterly to state prison for the term prescribed by law. ¹

On July 13, 1977, the CRB reviewed Shetterly's file pursuant to Penal Code section 1170.2, subdivision (a), which became operative on July 1, 1977. ² As directed by that statute, the CRB determined Shetterly's base term of imprisonment for voluntary manslaughter under the Uniform Determinate Sentencing Act (hereinafter the "DSA") to be three years (Pen.Code, § 193). The CRB did not use the prior felony convictions or the special arming and use of firearm allegations in computing Shetterly's term of imprisonment under section 1170.2, subdivision (a). However, the CRB determined that this was an appropriate case for imposing a longer term pursuant to section 1170.2, subdivision (b). ³

On November 28, 1977, the CRB held a hearing pursuant to section 1170.2, subdivision (b). At that hearing the CRB determined that Shetterly had in fact been convicted of seven prior felonies and had served prison terms for those offenses. The CRB then determined that Shetterly's base term of imprisonment (three years) should be enhanced one year because of his first degree robbery conviction in 1966, and that his term of imprisonment should be enhanced another one year because of his prior felony convictions of rape, robbery, and assault with a deadly weapon in another case, for a total prison term of five years.

After exhausting his administrative remedies before the CRB, Shetterly sought habeas corpus relief in the Alameda County Superior Court, contending that the CRB had unlawfully enhanced his prison term by two years on the basis of prior felony convictions which had been stricken pursuant to the plea-bargain and which were not included in the judgment and sentencing under the indeterminate sentencing law in 1975. The trial court granted Shetterly's petition for a writ of habeas corpus and ordered him released from custody. Execution of the order granting the writ was stayed pending appeal by the People (Pen.Code, § 1506).

Shetterly argues that the CRB violated the express provisions of the DSA and the terms of his plea-bargain by enhancing his punishment on the basis of prior felony convictions which had not been proven or imposed by the trial court. This argument, however, overlooks the distinction between subdivisions (a) and (b) of section 1170.2.

In determining a prisoner's term of imprisonment pursuant to section 1170.2, subdivision (a), the CRB is directed to use the middle term of the offense, without considering good-time credit, "increased by any enhancements justified by matters Found to be true and which were imposed by the court at the time of sentencing . . . ." (Emphasis added.) Subdivision (a) further provides that "(s)uch matters include" prior felony convictions as provided in Penal Code section 667.5. Section 667.5, subdivision (d), provides, in relevant part, that "(t)he additional penalties provided for prior prison term shall not be imposed unless they are Charged and admitted or found true in the action for the new offense." (Emphasis added.) Thus where, as here, the alleged prior felony convictions were not imposed by the trial court, but were stricken pursuant to the plea-bargain, the CRB could not use those prior felony convictions in determining Shetterly's prison term under section 1170.2, subdivision (a).

Section 1170.2, subdivision (b), however, does not contain similar limitations. Subdivision (b) provides that in determining whether a prisoner should serve a longer term than calculated pursuant to subdivision (a), the CRB may consider "the number of crimes of which the prisoner was convicted," or the number of "prior convictions suffered by the prisoner," among other matters. There is no language in subdivision (b) which limits the CRB to consideration of only prior felony convictions which were found to be true and imposed by the trial judge. Nor is there any reference to Penal Code section 667.5 in subdivision (b) of section 1170.2. Furthermore, subdivision (b) expressly declares, as a matter of legislative intent and policy, that in fixing a term of imprisonment under that section the CRB "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, and further . . . that the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration." Thus, on its face, subdivision (b) does not preclude the CRB from considering the prisoner's prior felony convictions which were not imposed by the trial judge at the time of sentencing under the indeterminate sentencing law.

Shetterly argues that the CRB's action under section 1170.2, subdivision (b), violated the separation of powers doctrine (see Cal.Const., art. III, § 3). The argument, however, erroneously perceives the hearing and determination of a prisoner's term of imprisonment under section 1170.2, subdivision (b), as a "resentencing." As an administrative body, the CRB is charged with the responsibility of carrying out the mandates of the DSA. Allowing the CRB to determine the term of imprisonment of persons sentenced under the indeterminate sentencing law does not violate the...