*1 No. 19045. In Bank. Oct. [Crim. 1976.]
In re TERRELL C. ANDREWS on Habeas Corpus.
Cоunsel Klein, K. Court, Rowan under for appointment by Supreme Petitioner. General, Winkler,
Evelle J. Jack R. Chief Assistant Younger, Attorney General, Moore, S. General, Clark Assistant James Attorney Attorney Roeschke, H. and General, Kline Donald F. Attorneys Deputy Respondent.
Opinion WRIGHT, C. J. for writ of habeas By petition corpus petitioner challenges him a term of part judgment that to limit the of effect imprisonment under Penal purports Code section 1202b1 to a term for the offense of while imposed robbeiy, additional, an unaffected consecutive term a leaving imposed upon that he used a firearm within the of section 12022.5.2 finding meaning Pursuant to a a violation of section plea bargain whereby charged an he that caused victim, great bodily allegation injury robbery 1Unless otherwise all references herein are specified Penal Code. Section 1202b “In criminal in provides: any which defendant convicted proceeding is of Corrections, or felonies is committed to felony of the Director of custody if was, offenses, the time of defendant commission of the offense or of the or resulted, from which the apprehension criminal of 23 proceeding age years, the court other may, of law or notwithstanding provision fixing affecting penalty offenses, for the or offense for the specify imprisonment offense or offenses shall six cumulatively be months. This does section not apply offense punishable by death.” 2Section 12022.5 uses a provides “Any who firearm the pertinent part: person shall, ... of a commission . . . in addition to the robbery, punishment for the prescribed convicted, crime which he has been in the state punished by imprisonment prison for a of not less than five Such period years. additional shall period imprisonment commence or upon other termination of the sentence expiration for the crime imposed which he convicted and shall not run with such concurrently sentence.” were convictions had suffered he felony and an prior allegation 211, 213), (§§ to first dismissed, robbeiy degree guilty pleaded petitioner 12022) armed (§ that he had been the truth of admitted allegations thereof.3 a firearm in the commission with, 12022.5) had used (§ not a condition bargain. sentence imposed to a term of the court sentenced On petitioner September and to for the invoking robbeiy, 12022.5 because under section to life term of five consecutive on had behalf used a firearm. Counsel had argued a serious narcotic were the result of offenses because petitioner’s him to the California the court should consider committing problem *4 officer had Rehabilitation Center even though probation expressed The court for treatment. doubt that would be accepted petitioner for determined, however, was not a suitable candidate that petitioner other alternative such treatment. Counsel also suggested dispositions was the to for the which sentence robbeiy among 1202b, tеrm as the terms of section with an additional five-year-to-life concern over the section 12022.5. The court great provided expressed noted what the serious had inflicted on the victim and injuries petitioner for violence in back- court to be a petitioner’s perceived propensity and an to find that concern “any ray inability ground. Notwithstanding afford reasonable defendant’s to in this background light trouble,” after but in that he’s only anything going expectation section 1202b his assured the court that counsel understanding of its effect to the limitation that the section robbery permitted authorized, this If alone, counsel’s suggestion.4 judge accepted 3If, case, was the victim and the two be the the victim of assault robbery as to appears course of intent and single were committed with single objective part offenses conduct, have been executed the assault could not criminal sentence on charge 654; 504 P.2d (1973) Cal.3d 636-639 (§ v. Beamon 8 case. however, did, the elimination of a substantial benefit in 905].) receive Petitioner victim, the robbery to caused intentionally great bodily injury had allegation the robbery the minimum term for would have increased admitted or which if proved (§ from 5 to years. for the term to the State Prison defendant will be sentenced “The 4The court specified: However, in to life. which is five years law first robbery, [¶] degree prescribed by of 1202b will the conditions the Court impose with that sentence only, connection However, the Code, additionally Court sentence six months. the minimum Penal making the commitment directs that for in 12022.5 and the five years provided imposes 1202b is not to to direction of invoking apply that the Court’s indicate specifically conditions of the Penal Code.” section 12022.5 that this defendant has only Adult to know added: “I want the Authority court life, in his he has indicated his At this in his favor and that is age. point one thing minimum term of five and result in a cumulative would judgment one-half years. court have been more than invoke would justified refusing all, it it
section 1202b at but nevertheless invoked that section because Adult it had “some faith and confidence” in the body, this defendant’s will be background history “upon viewing hoped, when, ever, if release him into careful about society.” they veiy contends that Petitioner now this sentеnce is unauthorized by 1202b. We Habeas is an the terms section agree. corpus an which- unauthorized sentence. means by challenge appropriate 55 Cal.2d v. State (Neal of California P.2d 839].) At the outset have we note what notwithstanding may appear error, invited from his counsel’s been arising misinterpretation this A is not to raise issue. estopped 12; (§ without sentence not statute. prescribed by In re To the P.2d extent 574].) *5 [236 McInturff that a a term of contains unauthorized judgment imposing imprisonment 294, it is void. re 29 302-303 Cal.2d (In (1946) surplusage, Seeley [176 P.2d 24].) the of We turn first to an examination of language “ ' of the Code must construed “ac
1202b. Provisions Penal be terms, with a effect its fair their view to cording import objects ’ that and to Consistent with general promote justice.” [Citаtion.] courts first examine the of the code section appellate language principle, the words used the to determine whether unequivocally express Legisla the If or doubt about ture’s intent. no meaning ambiguity, uncertainty, its to terms the is to be the statute applied according appear, provision v. Court (1974) further construction.” (Morse without Municipal judicial found, 149, 14, P.2d If 46].) 529 13 Cal.3d 156 ambiguity Cal.Rptr. [118 the to be is to “in the statute be sought light objective interpreted v. Carroll it, evil to be averted.” well as the achieved (People sought 176, 463 P.2d 400].) Cal.3d 584 1 Cal.Rptr. [83 and that be considered for no for the welfare of others he should concern absolutely a true to if conduct in manifests orientation where point his only custody early parole well of other he has some for regard physical being people.” of section that these we conclude rules language Applying 1202b be determinative.5 Section itself should provides expressly invoke to its exercises his discretion if the that offender, that the may “specify provisions cumula or the offenses minimum term of for the offense imprisonment to be no shall There would seem be six months.” ambiguity tively that the minimum gives judge power “specify language . months.” The of the . . shall six ends that the minimum term is with the direction begins six months. however, because statute
Respondent, argues provides offenses, it its offense or “may” any provisions apply fix the minimum term of offense at six months follows it may any need not six-month term to whole judgment. apply dissent, even thаt that the statute is going beyond interpretation, suggests to fix an that would the court interpretation permit susceptible terms of the between six term or offenses period and the minimum term otherwise Both months statutory applicable. of the statute which to overlook plain language suggestions appear to fix a minimum term for all offenses the court authorizes single were that the statute was at six months. Even we cumulatively persuaded however, and “administrative” con- such legislative history ambiguous, exist, does both of which are entitled struction as great weight (People Court (Carl W.) (1975) Superior P.2d Los v. Public Utilities Com. 807]; City Angeles Cal.3d 542 P.2d our 1371]), support we as do cases in which have those interpretation language, heretofore had occasion to consider the of section 1202b to application 12022 and sections 12022.5. *6 1959, 916, 1, 1959. (Stats. 2948.)
Section 1202b was enacted in ch. § p. it 17 have In years sentencing uniformly applied intervening judges 6 that the defendant would serve minimum of by specifying in court has been is the first instance which an months. This appellate review othér called principal upon attempted application. Education of criminal law manual by Continuing published practice now in authored Bar section 1202b has so chapters interpreted was a F. Aiso6 who Justice John judge retired superior appellate 1, ante. 5For the full text of section see footnote 23, the defendant is under in a that “if wrote on chapter Aiso 6Judge C § his under Pen his recommendation can includе in statement [1203.01]
214 7 Porter, enacted Everette M. who was a when section was and member of the Adult at that time. Authority
This with the of also consistent interpretation philosophy indeterminate sentence law and the statement of the only legislative section 1202b that has come to our attention. purpose enacting Under the indeterminate sentence law responsibility fixing of time within the maximum and minimum a convicted length statutory felon is to serve in on and/or is vested in the Adult prison parole 1168, 5077; 639, In re 14 (§§ Cal.3d Authority. Rodriguez 552, 1944, 537 P.2d Until 384].) to commit to the Youth a defendant who had been permitted Authority 1, when ch. (Stats. under of § years age apprehended in order to for retributive methods of 2526), punishment[,] p. “substitute] and toward the correction and rehabilitation treаtment directed training Code, found & (Welf. offenses.” Inst. young persons guilty public A 1700.) offender committed to the after Youth § youthful Authority had to bé when he reached his 25th conviction felony discharged Code, be 1771) & Inst. and/or (Welf. § birthday might discharged determined he could be at time Youth Authority paroled Code, released without & Inst. (Welf. §§ danger public. 1766.) 1944, however, Code,
In Act & Youth Inst. (Welf. § Authority et was amended to lower the who seq.) age persons might committed to the Youth to those were who Authority years Sess., time of Third (Stats. Ex. ch. age apprehension. of the amendment was that 22.) result entitled to p. persons formerly consideration for rehabilitative treatment as offenders through commitment to the Youth had to be committed to the of Corrections and becamе to the same restrictions subject Department felons, to other adult even relating parole discharge applied cases codefendants under whose though many age same, and relative level of was the had been maturity culpability (2 defendant be a minimum six-month term.” Cal. Criminal Law Practice given 1969) (Cont.Ed.Bar administration, Porter, 7In a on state Mr. a lawyer parole chapter *7 commissioner, wrote with to the under the and court regard powers instances, 1168): (§ Sentence Law “In a few has limited Indeterminate judge power committed, was under 23 to affect duration:... if the defendant when crime maximum) (but (Pen can a not a sentence of six months C judge specify 1202b;...)....” 510.) (Id., at p. § Youth continued until the committed to This Authority. disparity 916, 1, ch. enactment of section 1202b in 1959. (Stats. 2948.) .§ p. nonexistent, true there is Although “legislative history” persuasive evidence of section 1202b was to allow the purpose a who to 1944 have been permit young person, prior might to the committed Youth to be treated on a with Authority, parity persons still for Youth with commitment eligible Authority regard parole and The 1944 amendments to the Youth eligibility discharge. Authority Act were of the Prison Act which part Reorganization reorganized entire and correctional of the state and established the penal system of Corrections and Adult Third Ex. Department (Stats. Authority. Sess. ch. Youth became a of the p. Authority component part Corrections ch. and (id., 17), Richard A. Department McGee was as the first Corrections, Director of the chief appointed administrative officer of the then Governor Warren. Mr. department, by McGee continued in that until 1961 when he became Administrator of capacity the California Youth and Adult Corrections Agency, position held in when he in the First Institute for participated Sentencing Court the Judicial Superior Council of Judges California. sponsored by was, He therefore, about both Youth knowledgeable Authority Adult discussion of the Adult Authority practices. During panel sentenced under section Authority’s Mr. handling persons McGee noted the that had existed to its enactment problem prior codefendants, similar treatment one of attempting give youthful whom had been committed to the Youth He “I Authority. explained: a Tittle commеnt on the of Penal Code Section thought maybe history 1202b be of interest. You cases committed to the might get good many often, Youth who are under 21 more Authority age very often than think there are co-defendants who are you perhaps, just past 21. The Youth case be out on the street in 18 months Authority might while the one who is committed as an adult and who is 21 won’t just past until 20 months and would serve a minimum term eligible parole 5of (First Institute for Court years.” Sentencing Superior Judges, It is manifest that if the 110-111.) Cal.Rptr. Appen., pp. purpose section 1202b was to Legislature offenders enacting permit for commitment to the Youth ineligible considered for on the same basis as their parole discharge slightly younger codefendants, would not be served purposе interpretations and the dissent. sought by respondent
Nor is this into newly gained. insight purpose Even before Mr. McGee’s section’s the. explanation purpose *8 216 institute, the in the first
judges attending
reported appellate
section,
decision
Court
had
it.
construing
Appeal
recognized
of Corrections had
mini
Department
interpreted
mandatory
terms
mum
to
established
the Health and
prior
parole eligibility
Code for
as
certain narcotics offenses
Safety
being specific provisions
which took
over section
1202b.
Court of
in In re
precedence
Appeal,
held, however,
Ward
227
369
(1964)
650],
Cal.App.2d
section
was a
act and was
In
so
court
special
controlling.
doing,
noted
this construction was
with the
consistent
purpose
that “the
law
Youth
indeterminate sentence
and the
Authori
Legislature
Act
be
should
construed and
to work
as
ty
applied
together
complemen
of a more
v.
tary parts
enlightened
system.
penal
Ralph,
(People
375;
Cal.2d
580.)”
see
v.
(227
also
McCullin
Cal.App.2d
p.
People
)
Cal.App.3d
107].
In both of the
cases
which
this
has since had occasion to'
1202b,
consider the
of section
we have
that once
applicability
recognized
has determined that the defendant
is
deserving
consideration as a
offender and has invoked section 1202b
minimum term of
be six months. In
imprisonment
only
may
Hicks
Although respondent suggest any term other than six months section 1202b expressly provided by could be a court that section in a imposed invoking sentencing offender, and thus was not youthful directly question presented, Chambers, Hicks, Chambers is In as in the court was called dispositive. to determine the effect of section 1202b. We held that upon invoking a when trial finds a defendant for treatment as a qualified offender, 1202b, and sentences him under “the youthful youthful offender’s sentence shall be minimum of six months maximum set law.” Cal.3d (7
A trial has an when a defendant judge obligation sentencing meeting the criteria of section 1202b determine whether there are factors which make defendant of treatment as a offender. We deserving youthful that such treatment does not entitle the defendant to an emphasize earlier release on or from than that otherwise parole discharge custody section 1202b does no more than the Adult applicable. Invoking permit if, to consider such release after observation Authority and study defendant, determines that his conduct and effort toward reformation confirm the court’s tentative determination that he in fact deserves treatment to that available to comparable younger defendants committed Youth In that'initial Authority. making court should consider the defendant’s back- judgment, offense, the circumstances of his his other ground, relationship who have been committed to the Youth and participants may Authority, indicia of for reformation to the time he would be potential prior if and/or section 1202b were not invoked. If eligible parole discharge does conclude that the defendant is deserving offender, treatment as and invokes section is for determination all and to all terms in that purposes applies imposed proceeding. reservations, his own would circumstances which
Notwithstanding consideration, have 1202b here elected fully justified denying to invoke that section. The limitation of section purported excess the court’s is of no effect robbery being power Adult is therefore directed to consider for term petitioner without thereto. fixing parole regard from his release now entitled to custody, is not
Inasmuch habeas for writ of and the cause the order to show petition discharged, denied. corpus *10 Sullivan, J.,
Tobriner, J., Mosk, J., concurred. that RICHARDSON, J. dissent I majority suggest respectfully of Penal First, a construction err in two they adopt respects. separate of the the discretion restricts section 1202b Code substantially offenders, with contraiy dealing sentencing judge Second, com the section. intent they underlying legislative probable of section of their construction the benefit the error by extending pound that the the fact sentencing judge 1202b to the notwithstanding petitioner reduce that section to to invoke terms declined in very express instead, at the six months and sentence to a bare minimum petitioner’s counsel, of five and a minimum term selected petitioner’s urging of minimum otherwise rather than by one-half prescribed ten-year years had the If, hold, erred law. assuming majority term of five and 1202b to select a minimum under section should be modified to a then either sentence one-half years, petitioner’s minimum, be held to should or else a new hearing sentencing ten-year term should be whether or not a six months minimum determine 1202b, court’s under section thereby preserving imposed discretion.
1. Construction
Section 1202b
“...
.. .
1202b
may,
specify
Section
provides
. . . shall be six months.”
term of
that the minimum
the section to
discretion
lgcked
the court
hold
majority
for the
one-half
term of five and
minimum
years
an intermediate
impose
under section
the firearm-use finding
augmented by
underlying robbery
two
court had but
effect,
hоld that the
options
12022.5. In
majority
minimum term of
to the full
1202b: to sentence
under section
petitioner
firearm
for
and five additional
for
years
ten
(five
robbery,
years
1202b,
to sentence
or,
use)
alternatively by invoking
term,
these violations.
a months minimum
six
only,
of section
assisted
an
An alternative
by
language
analysis
below,
construction, discussed
rules of
statutory
ordinary
application
the section is
lead me to conclude
reasonably susceptible
which is more consistent with
different
probable
interpretation
intent
the section.
permits
legislative
underlying
expressly
.Section
court,
discretion,
in its
a minimum term of six
impose
months,
law.
a substantial reduction in the term otherwise
by
prescribed
the section
couched in
necessary
By
implication,
being
discretionary
the section
the court to
a minimum term
language,
empowers
and the
fixed
at some
between six months
cumulatively
point
offense, as
statute for the
offense or
augmented
underlying
provided
section 12022.5. It seems to me that section 1202b may quite readily
*11
as
the
with discretion to select a minimum
be construed
court
vesting
in duration.
term for the offenses of not less than six months
1202b,
In
for their
of section
the majority
contending
interpretation
on
v. Chambers
P.2d I will involved a somewhat different as 1024], problem. Chambers, and, in contrast In the court invoked section sentencing case, a minimum term of six sentenced defendant present months, a in connection with a his use of firearm notwithstanding We affirmed the the contention robbery. judgment, rejecting Pеople’s that the trial court lacked under section 1202b to or authority mitigate the of section 12022.5. We noted: “The negate sentencing augmentation at discretion of the trial court to set a minimum term of six months for offenders remains the youthful unimpaired notwithstanding enactment of 12022.5. when section 1202b is section Accordingly, invoked, a minimum of six offender’s sentence shall be youthful months to the law.” cite this maximum set (P. 675.) majority in of contention that once language support sentencing petitioner’s 1202b, court has invoked its in all cases is limited to section However, not a six months minimum term. that issue was imposing and, before us in Chambers relied accordingly, language upon dictum only. Chambers,
As we noted “Courts have a in supra, consistently given 1202b,” of liberal to sectiоn in order to serve its purpose interpretation retributive of rehabilitation for of punishment. substituting goal Chambers, Thus, we must supra, (People intent section to determine underlying probable legislative attempt achieved of the rehabilitative goal sought adoption given that section. intent, decision I note
In initially discovering legislative to the discretion of the invoke 1202b is left section entirely sentencing . . . “. . . may following language: [T]he expressed . . of shall be six months the minimum term imprisonment. specify Further, the statute is added.) . ...” (Italics scope, generally expansive For otherwise penalty provision. example, superseding any applicable offenses, even in the of court has discretion case sentencing multiple 1202b tо minimum term of six cumulative months. court’s utilization of One function salutary sentencing of section 1202b is terms minor defendants equalize prison committed to the Youth older offenders who slightly are for the offense. v. McCullin (1971) same imprisoned (People 107].) Cal.App.3d
In selected the section 1202b category Legislature enacting view, In the twin treatment. offenders sentencing my special are more of rehabilitation and treatment effectively goals equality courts section 1202b a construction of permits promoted by discretion. wider rather than a narrower Acceptance range court to construction would place require majority’s *12 who those merit offender in one two only categories: every youthful who instead a minimum sеntence and those must receive six months only law. Such a and the full term otherwise rigid prescribed by with sound 1202b does not fixed comport interpretation as the case demonstrates. graphically sentencing policy, present benefited The before us record discloses judge, and observations of concluded a his petitioner, probation report personal minimum term was some reduction in appro- although petitioner’s far too in view of a six months minimum was short priate, I which docu- demonstrated dangerous petitioner’s amply propensities the middle ment below. chose ground Accordingly, minimum term of five and one-half This sentence years. imposed note, counsel) will seems as we (which, by petitioner’s requestеd determination courts should be the sort discretionary precisely function. their to make exercising important empowered 137, 248, Cal.3d 497 v. Navarro (See People 762; v. Cal.3d P.2d Moran (1970) Surplice 481]; People Witkin, Cal. 826]; 790-792 Cal.App.2d 605-606; Code, Pen. Criminal §§ Procedure (1963) § pp. reasonable courts of this intended Had the Legislature deprive discretion to select an minimum term for offenders appropriate under section it could have so terms. It easily provided express did not do so. Given the admonition Chambers to construe section with a view toward its liberally promoting primary objective offenders, I would rehabilitating youthful restrictive reject majority’s construction of the section. intuition, invokes all of the sentencing process judgе’s sensitivity, and common sense. To an unusual it demands
experience degree of the and seer. It an of human qualities prophet requires appreciation nature and mankind, the motivation and weaknesses of and an ability time, human behavior amidst the variables of project place circumstance of the human condition. it Finally, requires capacity based In this most difficult area I anticipation think upon probables. intended for courts to wider rather Legislature than narrower possess discretion, thus them to tailor and fashion the sentence in permitting accordance with the best to them. insight given these us, to the case before
Applying principles considering of section 1202b and its I conclude that language purposes, self-evident of the can and should be effect. goals given The record is clear that the court was moved two abundantly considerations in the sentence that the offense imposed—a strong feeling crime, committed awas serious and a desire to extend some leniency, rather than to the full minimum term. The court ten-year noted these factors in the record. circumstances properly appearing disclose defendant cold-blooded and robbery unusually offense well have been a murder underlying victim might (the robbery was shot several times the fact that he had earlier refused to shoot despite *13 when the latter had petitioner lost of his temporarily possession gun); had a and, serious nаrcotics occasion, on petitioner another problem; had fired a rifle into a crowd after a trivial over argument of a screwdriver. The court observed: “I ownership can’t find any ray in this defendant’s .... light [Wjhen it comes to background gambling on a situation where life, mistake mean my I’m . . . may somebody’s hesitant exercise in a case such as this where the leniency] [to especially defendant has demonstrated that he is not in the already slightest going to hesitate to fill full of lead.” This statement and others in the somebody record most demonstrate court never would have forcefully invoked section 1202b had his discretion for a first sentencing degree conviction with a firearm use been limited ato robbery automatically 222 months twо extremes—a six
mere six months. Neither of the sentencing as the court’s considered minimum or ten minimum—fit judgment well of a middle was fair and Its choice to what ground proper. what Indeed, it is difficult to discern allowable discretion. within its a six rehabilitative would be served serious by imposition goal who, an the course of sentence on a defendant months’ minimum during into his victim. armed fired several shots robbery, court’s freedom of choice to one extreme (six Limiting the other well curtail the months) or (ten years), might very drastically 1202b, utilization of section thus a valid in thwarting legislative purpose While it that the Adult some is true authorizing degree leniency. stands as a further release of safeguard against premature offender, we not direct between dangerous may ignоre relationship the sentence and action the Adult Authority. fear that of a mere six months
might
reasonably
imposition
minimum term would influence the Adult
decision
Authority’s
fixing
the offender’s actual
term.
It has been observed that
the court’s
invocation of section 1202b “. . . serves
well
recommendation as
as
an authorization to the
board to
serious consideration to
parole
give
an
release on
Criminal Law Practice
(Cal.
granting
early
parole.”
Further,
23.58,
(Cont.Ed.Bar 1969)
516.)
§
will bear
on the
of the offender’s
imposed
directly
timing
eligibility
Code,
Thus,
court,
if denied reasonable
(Pen.
§
parole.
discretion,
well conclude that
the safest course under
might
would be to refuse
to invoke section
circumstances
altogether
release.
rather than risk
offender’s premature
note,
a trial court’s decision whether
I
grant
comparison,
sentences, are matters
or
concurrent
consecutive
or
probation,
in the absence of a clear
which will not be disturbed
of broad discretion
v. Giminez (1975)
of abuse.
[120
435,
showing
(People
v.
Furthermore, as is from the of section veiy apparent language vested courts not in the Adult or Youth Legislature (and decide Authorities) whether to reduce power law for concede, offenders. prescribed by youthful majority they must, the section the courts to choose between a empowered and a six sentence, months minimum a choice ten-year which will affect discretion of the Adult directly Since term-fixing Authority.
courts hold over such a wide of minimum discretionary authority range sentences, it is unreasonable construction which denies wholly adopt courts to act within that wide Such fixed and range. rigid would not inconsistent with the well interpretation only wholly established of broad discretiоn vested in the principle Practice, 134; Witkin, Cal. (see Criminal Law Cal. Criminal supra, p. 606; Giminez, Procedure v. 14 Cal.3d (1963) § People supra, 72), but would result anomolous perpetrate permitting at either of the extreme ends impose punishment sentencing but him exercise of informed spectrum deny judgment point in between. This cannot have confining judicial cramping posture been intended for those law with legislatively charged by exercising difficult I function to which have important previously alluded. view,
In considerations offenders my applicable special the need for a reasonable measure of discretion emphasize the court. None the various authorities cited majority, including Chambers, v. Hicks (1971) People supra, Cal.3d 757 484 P.2d arе 65], none faced controlling, *15 in the 1202b vests how much discretion section the task of determining courts. reasons, that section 1202b I would conclude
For all the foregoing review, court, to of course to subject appropriate appellate empowers term between six months minimum offender sentence of which he the offense or offenses and the minimum for prescribed convicted. was Invited the Error
2. Petitioner it clear at the noted, made As quite previously 1202b had have invoked section he never would that hearing sentencing a choice was limited to discretion that his understood he minimum full minimum between a six months ten-year record, law. judge otherwise According prescribed in this defendant’s “. . . to find background unable any ray light but in he is thаt reasonable anything afford going expectation that what he was “. . . Petitioner’s counsel then . . . .” trouble explained view of and ten between five for is the difference years, years asking his age.” [petitioner’s] of counsel whether the six months inquired under sentence section 1202b would five-year apply 12022.5.
minimum term for firearm use prescribed “The five would tacked on on Petitioner’s counsel that years replied words, or of that. In other 12022.5 says expiration ‘upon top [1Í] months, if six then termination of the sentence so you imposed,’ impose the court on of that.” five Accordingly, years top [petitioner] gets life first term of from five sentenced to a degree petitioner with that “. . . in connection with proviso burglary, express the Penal of 1202b of will the conditions the Court sentence only, However, the Court Code, six months. the minimum sentence making 12022.5 and directs for in the five years provided additionally imposes direction that the Court’s indicate that the commitment specifically of section 12022.5 to the conditions 1202b is not to apply invoking Penal Code.” than have been more would that “The court note majority at all . . . .” (Ante, to invoke section refusing
justified the court’s invited it also concede that “appears” They *16 Nevertheless, error in the effect of section 1202b. misconstruing conclude that since court is without a majority “[a] statute,” sentence not (ibid.) is void to that judgment prescribed extent. here, where, has,
To the
I
at
court
contrary,
suggest
invitation,
counsel’s
entеred a defective
should
judgment,
judgment
be set aside in its
one
of two courses
either
(1)
followed:
entirety,
direct
in accordance with the
intentions of
entry
judgment
probable
sentence),
(here,
imposition
ten-year
or
direct
court to resentence defendant
with law
(2)
accordance
to choose between a six months or ten
(here,
minimum sentence).
situation,
In an
where
court has
analogous
improperly
sentence,
considered an invalid
conviction
defendant’s
prior
fixing
we
have remanded defendant for
reconsideration
routinely
resentencing,
of denial of
or
habitual
redetermination of
criminal status.
probation,
689,
In re
Woods
Cal.2d
409 P.2d
In
(See
(1966)
913];
Cal.Rptr.
[48
93,
re
McComb, Clark, J., concurred. for a was denied November 1976. petition Respondent’s rehearing J., Richardson, Clark, J., were of the should petition opinion be granted.