People v. Lepe
The PEOPLE, Plaintiff and Respondent, v. CARLOS R. LEPE, Defendant and Appellant
- Area
- criminal
- Panel
- Edward T. Butler (author)
Analysis
The trial court exercised its discretion to impose a concurrent sentence rather than a consecutive one, reasoning that this method would result in the maximum possible incarceration time for the repeat offender. The Court of Appeal affirmed the judgment, holding that the trial court did not abuse its discretion and that the concurrent sentence was consistent with the spirit of the Determinate Sentencing Law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a concurrent sentence rather than a consecutive sentence“Considering all the circumstances, we find the court’s decision here to impose concurrent sentences comports with the spirit of the DSL and does not exceed the bounds of reason.” | abuse of discretion | correct | agree with court agree with court |
Authorities
- relied: People v. Bradford (1976) 17 Cal.3d 8 — Establishes that a trial court has discretion to determine whether multiple sentences are to run concurrently or consecutively.
- relied: People v. Giminez (1975) 14 Cal.3d 68 — An appellate court will not disturb the trial court's exercise of discretion in imposing concurrent or consecutive sentences absent a clear showing of abuse.
- relied: People v. Bejarano (1981) 114 Cal.App.3d 693 — The trial court is required to state reasons on the record for its sentencing choice regarding concurrent or consecutive terms.
- relied: People v. Swanson (1983) 140 Cal.App.3d 571 — Used to distinguish the current case from situations where a court picks a term length and reasons backward; here the court analyzed the problem carefully.
- relied: In re Podesto (1976) 15 Cal.3d 921 — Supports the view that the sentencing court made a careful, reasoned decision rather than acting arbitrarily.
- relied: People v. Espinoza (1979) 99 Cal.App.3d 59 — States that a primary purpose of the determinate sentencing law is to increase penalties for repeat offenders to deter recidivism.
- relied: In re Benoit (1973) 10 Cal.3d 72 — Establishes the constructive filing exception for appeals filed by incarcerated prisoners, deeming the appeal timely.
The appellate opinion: sound — The opinion correctly applies the abuse of discretion standard to the sentencing choice, noting that while reasons are generally required, the court provided them here. It logically concludes that the form of the sentence (concurrent vs. consecutive) is less important than the substantive result of maximizing incarceration for a repeat offender under the DSL.
The Imperial County Superior Court sentenced Lepe to an upper three-year term for grand theft person plus a one-year prior-prison-term enhancement, and expressly ran the four-year term concurrent with an earlier four-year term because, under the determinate sentencing law's one-third-midterm limits, a concurrent term would keep him in custody longer than a consecutive one. The Court of Appeal deemed the late notice of appeal constructively filed, held that section 669 gives the sentencing court discretion to choose concurrent terms even for the purpose of lengthening incarceration, found no abuse of discretion and proper credits, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a concurrent rather than consecutive sentence, chosen expressly to maximize the defendant's total time in custody“Neither case law nor statutory authority restricts or precludes a sentencing judge from exercising discretion to impose a concurrent rather than a consecutive sentence for the purpose of lengthening a defendant’s term of incarceration.” | abuse of discretion | correct | agree with court Section 669 commits the concurrent/consecutive choice to the trial court's discretion and makes concurrent the default requiring no statement of reasons; rule 425 lists criteria 'affecting' the consecutive decision but does not mandate consecutive terms. Bradford and Giminez supply the discretion and the deferential standard. The defendant identified no statute or case making consecutive terms mandatory, and the trial court's stated goal (longer custody for a parolee committing an independent offense) is a legitimate DSL purpose. The reasoning is somewhat circular in invoking consecutive-sentencing criteria to justify a concurrent term, but since no reasons are required for concurrent terms, that oddity is not reversible error. |
Adequacy of the trial court's statement of reasons and rejection of the claim that it selected a term length and reasoned backward“the court’s comments show it analyzed the problem and made a careful, reasoned decision” | abuse of discretion | correct | agree with court Because section 669 imposes concurrent terms by operation of law absent a contrary determination, no statement of reasons was required (Bejarano addresses reasons for discretionary sentencing choices such as consecutive terms). The court nonetheless stated reasons tied to the record (on parole, independent offense), which distinguishes Swanson's prohibition on fixing a term first and rationalizing afterward. Lepe did not attack the factors themselves, so the appellate conclusion follows. |
Award of 277 days presentence custody credit from arrest to sentencing in this case“The record also shows Lepe received appropriate presentence custody credits in this case from the time of his arrest until he was sentenced.” | unclear | correct | agree with court Lepe received credit for the entire period from his April 24, 1985 arrest to his October 25, 1985 sentencing, including conduct credit. Under section 2900.5 and In re Rojas, custody after May 20, 1985 was arguably attributable to the sentence he was already serving in case 12176, so the award was if anything generous to him; he cannot show prejudice. The appellate court's treatment is brief but the result is correct. |
Refusal to designate a principal and subordinate term between the two cases“The court declined to determine such as it was not technically imposing consecutive terms.” | unclear | correct | agree with court The principal/subordinate structure of section 1170.1 applies only to consecutive determinate terms; concurrent terms simply run together and each is served in full. The appellate court disposed of this only through its catch-all statement that Lepe failed to show his other contentions had merit, but the result is legally correct. |
Authorities
- relied: People v. Bradford (1976) 17 Cal.3d 8 — The trial court has discretion under section 669 to determine whether multiple sentences run concurrently or consecutively.
- relied: People v. Giminez (1975) 14 Cal.3d 68 — A sentencing court's discretionary choice will not be disturbed on appeal absent a clear showing of abuse, meaning a determination exceeding the bounds of reason considering all the circumstances.
- relied: People v. Bejarano (1981) 114 Cal.App.3d 693 — The decision to impose consecutive sentences is a sentencing choice for which the court must state reasons on the record.
- relied: People v. Swanson (1983) 140 Cal.App.3d 571 — A sentencing court may not select a desired term length and then reason backward to justify it; the trial court here did not do so.
- relied: In re Podesto (1976) 15 Cal.3d 921 — A statement of reasons shows the court analyzed the problem and made a careful, reasoned decision.
- relied: People v. Espinoza (1979) 99 Cal.App.3d 59 — A primary purpose of the determinate sentencing law is to increase penalties for repeat offenders and deter recidivism.
- relied: In re Benoit (1973) 10 Cal.3d 72 — A notice of appeal by an incarcerated pro se defendant delivered to prison authorities within the appeal period is constructively filed even if received late.
The appellate opinion: sound with gaps — The opinion correctly identifies section 669 as conferring discretion with concurrent terms as the no-reasons default, applies the Giminez abuse-of-discretion standard, and answers the defendant's novel argument that rule 425 criteria make consecutive terms mandatory with the right statutory and case authority. It is thin, however, in dismissing the credits, uniformity, and principal/subordinate contentions in a sentence or two without analysis of section 2900.5 or section 1170.1, and it does not grapple with the tension in using consecutive-sentencing factors to justify a concurrent term.
Opinion — Butler
*1349 Opinion
BUTLER, J.Carlos R. Lepe appeals his four-year prison term concurrent with an earlier term of imprisonment. We shall relate the sentencing sequences, discuss his contentions, and affirm.
I
On April 16, 1985, Lepe pleaded guilty in Imperial County Superior Court case number 12176 to two counts of assault with a deadly weapon (Pen. Code, 1 § 245(a)(1)). While out on bail awaiting sentencing, he was arrested and jailed April 24, 1985, on the instant case for purse-snatching. On May 20, 1985, the court sentenced him to two concurrent upper four-year terms in case number 12176 and, pursuant to stipulation of counsel, credited him with 561 days for time served, including good behavior credits.
In September 1985, Lepe pleaded guilty in this case to grand theft person (§ 487, subd. 2) and admitted he had served a prior prison term (§ 667.5(b)). On October 25, 1985, the court sentenced him to a total four-year term, consisting of the upper three-year term for the theft and a one-year enhancement for the earlier prison term. The court ordered this sentence to run concurrent with the prison term Lepe was then serving in case number 12176. Lepe was also credited with 277 days for time served in this case.
II
In an interesting twist of logic, Lepe appeals, 2 contending the sentencing court abused its discretion in ordering this case concurrent with his sentence in case number 12176. He asserts statutory sentencing and California Rules of Court 3 criteria mandate consecutive terms. He also argues the court in imposing concurrent terms denied him certain limitations on enhancements for terms imposed consecutively, denied him appropriate presentence credits for time served, denied him uniformity of *1350 sentence, and in effect, unlawfully imposed a longer term of commitment based solely on its subjective beliefs. These contentions are meritless.
Ill
It is well established a trial court has discretion to determine whether multiple sentences are to run concurrently or consecutively. (§ 669; People v. Bradford (1976) 17 Cal.3d 8, 20 [130 Cal.Rptr. 129, 549 P.2d 1225].) Generally, this determination is a sentencing choice for which the trial court is required to state reasons on the record. (§ 1170(c); rules 405 & 443; People v. Bejarano (1981) 114 Cal.App.3d 693, 704 [173 Cal.Rptr. 71].) A concurrent sentence, though, will be imposed as a matter of law if the court fails to determine how the terms of imprisonment will run in relation to each other; thus no reasons are needed to impose concurrent terms. (§ 669.) Rule 425 sets forth criteria affecting the court’s decision to impose consecutive rather than concurrent sentences. In the absence of a clear showing of abuse, an appellate court will not disturb the trial court’s exercise of discretion in this regard. (People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65].) The trial court abuses its discretion only when, considering all the circumstances, its determination exceeds the bounds of reason. (Ibid.)
IV
At the sentencing hearing on this case, counsel represented to the court the unusual circumstance Lepe would receive a longer term if the court imposed concurrent rather than consecutive terms. Lepe argued because his case satisfied the criteria for the aggravated consecutive term, the court must order his sentence consecutive to the uncompleted term he was then serving. The court, after denying probation and imposing the upper term for the theft and a one-year enhancement for the earlier prison term, stated: “When we get to the area of whether or not this should be a concurrent or consecutive sentence, the court has considered the factors with respect to the imposition of consecutive and/or concurrent sentences in this case.
“The court is treating this case as though it were in fact imposing a consecutive sentence, even though in order to accomplish a consecutive sentence the court must, because of peculiarities of the [determinate] sentencing laws, the court must impose a concurrent sentence in order to accomplish what we would normally be accomplishing with respect to a consecutive sentence.
“The court is satisfied that the maximum time that this defendant should be incarcerated is the goal to be achieved in this case because of the fact that *1351 the defendant was on parole at the time that he committed this offense, and that it is independent of other offenses that he is currently serving time for.
“Therefore, the court elects to accomplish a result which will mean that the defendant will serve the longest time by not technically imposing the consecutive sentencing.” .
Defense counsel then asked the court to clarify which case would be the primary term and which would be the subordinate term. The court declined to determine such as it was not technically imposing consecutive terms.
V
On appeal, Lepe again asserts the sentencing court was required to impose his sentence in this case consecutive to that in case number 12176. Lepe, however, fails to recognize the sentencing court’s decision to impose concurrent or consecutive terms is discretionary and not mandatory. (§ 669.) Neither case law nor statutory authority restricts or precludes a sentencing judge from exercising discretion to impose a concurrent rather than a consecutive sentence for the purpose of lengthening a defendant’s term of incarceration. The rules of court are merely guidelines to assist the court in making its sentencing choices and in exercising its discretion. Because counsel had represented a concurrent term would result in a longer term, the court, at the urging of the People, stated reasons to support its decision to impose concurrent terms.
While the court here was not required to state reasons for imposing the concurrent term, it did so. Contrary to Lepe’s allegation the court picked a certain length of term and then reasoned backward (People v. Swanson (1983) 140 Cal.App.3d 571, 574 [189 Cal.Rptr. 547]), the court’s comments show it analyzed the problem and made a careful, reasoned decision (see In re Podesto (1976) 15 Cal.3d 921, 937 [127 Cal.Rptr. 97, 544 P.2d 1297]). Lepe does not challenge the propriety of the factors cited by the judge in making its determination. Nor does he provide any evidence his sentence is any longer than sentences imposed for other repeat offenders committing the same offense under similar circumstances.
One of the primary purposes of the determinate sentencing law (DSL) is to increase the penalties for repeat offenders and thereby hopefully deter recidivism. (See People v. Espinoza (1979) 99 Cal.App.3d 59, 74 [159 Cal.Rptr. 894].) To accept Lepe’s premise a consecutive term is mandatory whenever a sentencing judge finds any of the factors under rule 425 relevant would be to exalt form over substance. Such acceptance would not only negate the purpose of increasing penalties for repeat offenders like Lepe, but *1352 would also negate the court’s discretion under section 669. We do not think this is a result the drafters of the DSL envisioned.
Considering all the circumstances, we find the court’s decision here to impose concurrent sentences comports with the spirit of the DSL and does not exceed the bounds of reason. The record fully supports imposition of a longer term; that such is achieved by a concurrent sentence rather than a consecutive term is of no consequence. The sentencing court properly exercised its discretion to impose a term which would place Lepe, a repeat offender, in custody for the maximum period possible.
The record also shows Lepe received appropriate presentence custody credits in this case from the time of his arrest until he was sentenced. Lepe fails to clarify how his other contentions have any merit.
Judgment affirmed.
Kremer, P. J., and Huffman, J., * concurred.
All statutory references are to the Penal Code unless otherwise specified. When referring to statutory subparts we omit repetition of the word “subdivision.”
The People initially object to this court entertaining Lepe’s appeal as he filed his notice of appeal December 26, 1985, two days after the 60-day statutory period for filing appeals expired. (Cal. Rules of Court, rule 31(a).) The record, however, shows Lepe, as an incarcerated prisoner and acting in propria persona signed his notice of appeal December 16,1985, in Chino, California. Under these circumstances, we deem his appeal timely filed under the constructive filing exception to the 60-day limit. (See In re Benoit (1973) 10 Cal.3d 72, 84 [109 Cal.Rptr. 785, 514 P.2d 97].)
All rule references are to the California Rules of Court unless otherwise specified.
Assigned by the Chairperson of the Judicial Council.
Cites, in this corpus
- People v. Swanson Crim. 6373 · 1983-02-10
- People v. Bejarano Crim. 3960 · 1981-01-15
- People v. Espinoza Crim. 10230 · 1979-11-27
- People v. Bradford Crim. 19058 · 1976-05-27
- In Re Podesto Crim. 18616 · 1976-01-27
- People v. Giminez Crim. 17899 · 1975-04-21
- In Re Benoit Docket Nos. Crim. 16642, 16627 · 1973-09-24
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