White, In re

• Decision Date: 18 November 1969
• Docket Number: Cr. 13520
• Citation: White, In re, 81 Cal.Rptr. 780, 1 Cal.3d 207, 460 P.2d 980 (Cal. 1969)
• Court: California Supreme Court
• Parties: , 460 P.2d 980 In re Theodore N. WHITE on Habeas Corpus.

Page 780

81 Cal.Rptr. 780

1 Cal.3d 207, 460 P.2d 980

In re Theodore N. WHITE on Habeas Corpus.

Cr. 13520.

Supreme Court of California In Bank.

Nov. 18, 1969.

Carl W. Till, Sacramento, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Marjory W. Parker, Deputy Attys.Gen., for respondent.

TRAYNOR, Justice.

In this habeas corpus proceeding petitioner attacks an order making a sentence imposed on revocation of probation consecutive to a term he was then serving for another, unrelated offense.

In 1959petitioner was convicted in Los Angeles County of possession of narcotics in violation of Health and Safety Code section 11500 and sentenced to imprisonment in the state prison.In 1961he was released on parole.In 1964, while on parole, he was convicted in San Diego County of petty theft with a prior felony conviction.(Pen.Code, § 667.)The court suspended imposition of sentence and granted probation.In January 1965, however, the Adult Authority revoked petitioner's parole and ordered his return to prison.Petitioner then made a written request to the superior court in San Diego County for imposition of sentence pursuant to Penal Code section 1203.2a.¹On March 10, 1965, that court, in the absence of petitioner, but with his counsel present, revoked probation and sentenced petitioner to imprisonment in the state prison for the term prescribed by law.The court ordered that the sentence be consecutive to any prior incomplete sentence.

Petitioner contends that the court was without jurisdiction to order that the sentence be consecutive to his prior sentence.We have concluded that section 1203.2a does not preclude imposition of consecutive sentences when, in the discretion of the sentencing court, the circumstances of the offense warrant such imprisonment.

Penal Code section 1203.2a permits a defendant who has been released on probation and subsequently committed to a state prison for another offense, to request the trial court that granted probation to revoke probation and impose sentence.It further provides that 'Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted and if the defendant is then in a state prison for an offense committed subsequent to the one upon which he has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his subsequent offense, unless the court shall order that the sentence for the prior offense shall commence upon termination of the sentence for said subsequent offense.'

Petitioner contends that section 1203.2a authorizes the trial court to make the sentences consecutive only when the defendant is in prison for an offense committed while on probation for a prior offense.Since petitioner's narcotics offense was not committed while he was on probation but before he was granted probation for the section 667 violation, he concludes that section 1203.2a requires the subsequent sentence to run from the time probation was granted.

The purpose of section 1203.2a is to prevent a defendant from inadvertently being denied the benefit of Penal Code section 669 that sentences be concurrent unless the court exercises its discretion to order that a subsequent sentence be consecutive to a prior sentence.²Before section 1203.2a was enacted, if the court that granted probation was unaware of a defendant's subsequent incarceration for another offense and had therefore failed to revoke probation, the defendant might serve the entire term for the other offense but still be subject, on revocation of probation, to serving the term for the offense for which he had been given probation.Serving of any sentence after such revocation of probation could obviously not run concurrently with the sentence for the offense that had already been served.By authorizing a defendant on probation who had been committed for another offense to request revocation of probation and imposition of sentence and by requiring his probation officer to notify the court of the subsequent commitment, section 1203.2a affords a procedure for requiring the court to consider imposing a concurrent sentence.It also precludes inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant in the case in which probation was granted, if it fails to act within 30 days of being informed of the relevant facts.

Section 1203.2a also permits a greater punishment for a crime committed after probation has been granted.Since it is only in such cases that section 1203.2a expressly provides that consecutive sentences can be imposed, petitioner contends that such sentences cannot be imposed under that section when, as in this case, a defendant is incarcerated for a crime committed before probation was granted.In re Ramey(1965)234 Cal.App.2d 459, 44 Cal.Rptr. 473, so held, but in that casethe court failed to consider the court's power to impose consecutive sentences pursuant to section 669 of the Penal Code and thus erroneously proceeded on the assumption that section 1203.2a was the exclusive measure of the court's power.

Section 669 provides that 'When any person is convicted of two of more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge, or by different judges, the second or other subsequent judgment shall direct whether the temrs of imprisonment or any of them to which he is sentenced shall run concurrently,' or consecutively.Under this provision the order in which the crimes are committed is immaterial, for it is the last judgment to be imposed that 'shall direct' how the sentences are to be served.When the trial court suspends imposition of sentence and grants probation, no judgment is entered until such time as the probation is revoked and the defendant is sentenced.(People v. Arguello(1963)59 Cal.2d 475, 476, 30 Cal.Rptr. 333, 381 P.2d 5;In re Phillips(1941)17 Cal.2d 55, 58, 109 P.2d 344, 132 A.L.R. 644.)The 1965 judgment imposing sentence pursuant to section 1203.2a was the last judgment entered.Accordingly, section 669 authorized the court to enter judgment directing that the sentence be consecutive to the 1959 sentence.

There is nothing in section 1203.2a that restricts the power of the court to impose consecutive sentences authorized by section 669.The fact that section 1203.2a provided expressly for the obvious case of a subsequent sentence for a subsequent offense in no way conflicts with the power of the court under section 669 to impose consecutive sentences in the less obvious case of a subsequent sentence for a prior offense.'Repeals by implication are not favored and are recognized only when there is a conflict between two or more legislative enactments.'(Rexstrew v. Huntington Park(1942)20 Cal.2d 630, 634, 128 P.2d 23, 26.)They are recognized only when there is no rational basis for harmonizing the two potentially conflicting statutes(People v. Leong Fook(1928)206 Cal. 64, 69--70, 273 P. 779), and the statutes are 'irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.The courts are bound, if possible, to maintain the integrity of both statutes if the two...