Opinion
For Opinion on Hearing, see 129 Cal.Rptr. 769, 549 P.2d 537.
Opinions on pages 259-293 omitted. [*] [**]
[114 Cal.Rptr. 879]Appellate Defenders, Inc. by Kenyon C. Keller, San Diego, under appointment by [114 Cal.Rptr. 880] the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Donald E. Greco, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
Assigned by the Chairman of the Judicial Council.
The defendant appeals from a judgment imposing a consecutive sentence for the offense of robbery in the first degree in the commission of which he used a firearm.
On December 8, 15 and 17, 1972, respectively, defendant committed robberies in each of which he used a firearm. He was convicted of all of these robberies. Each conviction was the product of a separate information and trial. Judgments on the December 9th and 17th offenses were pronounced respectively on April 5th and April 13th, 1973. Although the complaint on the December 15th robbery, i. e., the offense in the case at bench, was filed on January 16, 1973, the information thereon was not filed until April 11, 1973, and the trial thereon was not held until June 7, 1973, approximately two months after imposition of sentence in the other two actions. In each case the judgment imposed the sentence prescribed by law for the offense of robbery in the first degree and noted in the commission of the offense defendant used a firearm. The sentence imposed on the December 9th offense was ordered to run concurrently with 'any prior incomplete sentences.' The sentence imposed on the December 17th offense was ordered to run concurrently with the sentence imposed on the December 9th offense and with 'any prior incompleted sentences.' The sentence imposed in the case at bench was ordered to run consecutively 'to any prior incompleted sentences.'
We ordered the superior court file in the case, including the probation officer's report, transmitted to his Court pursuant to Rule 12 California Rules of Court. This report shows defendant has a long criminal record commencing more than 10 years preceding commission of the robbery offenses in question; and, at the time of the 3 robberies two prior sentences for other offenses had not been completed.
Defendant appealed from each judgment. Heretofore this Court affirmed the judgments as to the December 9th and 17th offenses by non-published opinions in People v. White, 4 Crim. No. 5471 and No. 5485.
By virtue of these appeals we take judicial notice of the facts set forth in this opinion respecting these two cases as disclosed by the records therein. (See Evid.Code § 452.)
In the case at bench defendant seeks reversal upon the ground the court abused its discretion in ordering the sentence imposed to run consecutively to prior sentences because its action, in violation of the Federal and State Constitutions, (1) denied him equal protection of the law, and (2) constituted the infliction of cruel and unusual punishment.
Defendant's contention he was denied due process of law is premised upon the fact the sentences imposed in the December 9th and December 17th robbery cases and the consecutive sentence imposed in the case at bench, in the aggregate, impose upon him a minimum term of imprisonment of 20 years for the three offenses, whereas, under the provisions of Penal Code section 3024, subd. (d), if all of the robbery offenses had been charged in one information and tried jointly the aggregate minimum term imposed upon him by the consecutive sentences would have been limited to 10 years.
A sentence imposing imprisonment for the term prescribed by law for robbery in the first degree, where the defendant used a firearm in the commission thereof, is a sentence of one offense the minimum term of which is 10 years (Pen.Code §§ 211 and 12022.5; People v. Morgan, 36 Cal.App.3d 444, 447, 111 Cal.Rptr. 548; People v. Henry, 14 Cal.App.3d 89, [114 Cal.Rptr. 881] 92, 91 Cal.Rptr. 841). Where a defendant has been convicted of more than one such offense the sentences imposed may be consecutive (In re Quinn, 25 Cal.2d 799, 804, 154 P.2d 875).
The authority to impose consecutive sentences is conferred by Penal Code section 669 which provides, when a person is convicted of more than one offense, in the same proceeding or different proceedings, the judgment imposing sentence upon a subsequent conviction or convictions may direct the sentence thus imposed shall commence at the termination of the sentence imposed upon the prior conviction or convictions. However, Penal Code section 3024, subd. (d) provides: the minimum term for 'a person convicted at one trial of more than one felony, and upon whom are imposed cumulative or consecutive sentences the aggregate of the minimum terms of which exceed 10 years', shall be 10 years.
Defendant contends the judgment in the case at bench, by its consecutive provision, subjects him to imprisonment for a minimum term of 20 years for the three robberies of which he was convicted (see In re Byrnes, 32 Cal.2d 843, 846 et seq., 198 P.2d 685); the robberies were of a class of offenses which, by Penal Code section 954, could have been the subject of one trial; the purpose of Penal Code section 3024, subd. (d) is to limit the minimum term of consecutive sentences imposed on persons convicted of more than one felony; that portion thereof limiting its application to persons convicted of more than one felony at one trial unconstitutionally discriminates against persons convicted of more than one felony at separate trials where, as in the case at bench, the offenses involved could have been the subject of one trial, because the distinction between the two classes of persons thus created is not reasonably related to the legitimate purpose of the statute; and, as applied to defendant the aforesaid provisions of Penal Code sections 3024 and 669 deny him equal protection of the law.
We have concluded, insofar as the judgment at bench imposes on defendant, as part of the term prescribed by law, a minimum term in excess of 10 years for the three robbery convictions, it denies defendant the equal protection of the law and is invalid.
Compliance with constitutional provisions guaranteeing equal protection of the law requires persons 'similarly situated with respect to the legitimate purpose of the law' must receive like treatment (In re King, 3 Cal.3d 226, 232, 90 Cal.Rptr. 15, 474 P.2d 983; In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 261, 473 P.2d 999, 1005). Where a statute distinguishes between persons of different classes, applying to one and not the other, the distinction must be reasonably related to the legitimate purpose of the statute, otherwise it denies equal protection of the law (In re Kapperman, 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657; Hayes v. Superior Court, 6 Cal.3d 216, 223, 98 Cal.Rptr. 449, 490 P.2d 1137; In re Antazo, supra, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999).
The obvious legitimate purpose of Penal Code section 3024, subd. (d) is to limit the minimum term of consecutive sentences. Fixing a minimum term for the aggregate of such offenses is a legitimate legislative purpose; removes a restriction upon the Adult Authority to determine the length of sentences and grant parole in consecutive sentence cases; and, in these cases, substitutes standards essential to uniformity, which is the goal of the indeterminate sentence law, for the personal equation involved in the exercise of judicial discretion inevitably resulting in inequality (gen. see In re Grey, 11 Cal.3d 554, 114 Cal.Rptr. 104, 522 P.2d 664). The situation at bench, where two of three robbery sentences imposed on the same defendant [114 Cal.Rptr. 882] are concurrent and one is consecutive, demonstrates the disparaties in the administration of justice at the sentencing level. As an incident to its purpose, section 3024, subd. (d) confers privileges upon defendants in consecutive multiple conviction cases. The provision conferring such only upon defendants convicted of multiple offenses at one trial, in substance, withholds them from defendants convicted of multiple offenses at separate trials. Under the heretofore expressed general rule, a statute may not accord privileges to those in one class and deny them to those in other classes, absent a reason for the distinction between the classes consonant with the legitimate purpose of the law (In re Kapperman, supra, 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657; Hayes v. Superior Court, supra, 6 Cal.3d 216, 223, 98 Cal.Rptr. 449, 490 P.2d 1137; In re Gary W., 5 Cal.3d 296, 303, 96 Cal.Rptr. 1, 486 P.2d 1201; Gray v. Whitmore, 17 Cal.App.3d 1, 21, 94 Cal.Rptr. 904). The distinction between defendants convicted of multiple offenses at one trial and defendants convicted of multiple offenses at several trials under conditions authorizing the joinder of such trials, is not reasonably related to the purpose of the statute. (In re Kapperman, supra, 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657; Hayes v. Superior Court, supra, 6 Cal.3d 216, 223, 98 Cal.Rptr. 449, 490 P.2d 1137.) Where a statute confers privileges on some but unconstitutionally withholds them from others similarly situated in relation to its legitimate purpose, a reviewing court, in light of that purpose, may invalidate the invidious exemption and thus extend the privilege to those unconstitutional excluded (In re Kapperman, supra, 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657; Hayes v. Superior Court, supra, 6 Cal.3d 216, 224, 98 Cal.Rptr. 449, 490 P.2d 1137). We conclude, as to the case at bench, it is consistent with the legislative intent to apply Penal Code section 3024, subd. (d) to a defendant convicted of multiple offenses at separate trials under conditions authorizing the joinder of those trials.
The issue is not before us and we make no determination with respect to the distinction between convictions at one trial and those at separate trials which could not have been the product of one trial, and the relationship of this distinction to the purpose of the statute.
The provisions of Penal Code section 669 authorizing imposition of consecutive sentences, on its face is constitutional. Likewise, the action of the trial court in the exercise of the authority thus conferred as expressed in the judgment at bench, on its face is constitutional. Nevertheless, the applicability of the section and the exercise of the authority conferred thereby to the circumstances in the case is unconstitutional, because the statute as applied and the action of the court deny defendant due process of law in that the judgment purports to impose on him the equivalent of consecutive sentences, the aggregate minimum terms of which exceed 10 years. (Gen. see People v. Schueren, 10 Cal.3d 553, 561, 111 Cal.Rptr. 129, 516 P.2d 833.) The applicability of Penal Code section 669 is constitutionally restricted to imposing constitutionally approved sentences. Insofar as the judgment imposes on defendant, as part of the term prescribed by law, a minimum term of 20 years for the three robbery convictions it is constitutionally defective. However, it may be modified by this Court to conform to constitutional requirements in accord with the views herein expressed, pursuant to the rule stated and applied in People v. Schueren, supra, 10 Cal.3d 553, 561-562, 111 Cal.Rptr. 129, 516 P.2d 833.
Defendant's contention the imprisonment imposed upon him by the consecutive sentence is constitutionally proscribed as cruel and unusual punishment is based on the fact the judgment, in light of [114 Cal.Rptr. 883] the two prior robbery convictions, imposes on him a 20 year minimum term of imprisonment; and relies upon the principles stated in In re Foss, 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 519 P.2d 1073. The contention disregards the fact the 20 year minimum term is for three offenses, not one offense. However, the conclusions heretofore expressed eliminate the effect of the fact upon which defendant predicates his contention, i. e., the apparent 20 year minimum term. On this basis the contention is without merit. In substance, defendant's sentence for the three robbery convictions is 10 years to life. A person serving consecutive sentences must be considered by the Adult Authority as undergoing a single, continuous term of confinement thereunder for the purpose of determining and redetermining the length of time he shall serve (In re Byrnes, supra, 32 Cal.2d 843, 846-847, 198 P.2d 685). Punishment of first degree robbery in the commission of which the defendant used a firearm, by imprisonment for 10 years to life, is not constitutionally proscribed as cruel or unusual (People v. Morgan, supra, 36 Cal.App.3d 444, 450, 111 Cal.Rptr. 548).
The judgment appealed from is modified by striking therefrom the consecutive sentence provision and inserting in lieu thereof the following: 'The sentence hereby imposed on defendant shall run consecutively to any prior incompleted sentences provided, however, for minimum term purposes, it shall be deemed his conviction of the offense hereinabove described and his convictions of the offenses described in the judgments in the actions in this Court identified as CR-28211 and CR-28212, were convictions at one trial.' (Cf. People v. Schueren, supra, 10 Cal.3d 553, 562, 111 Cal.Rptr. 129, 516 P.2d 833.)
As modified the judgment is affirmed.
AULT, Acting P. J., and COLOGNE, J., concur.
[*] Opinion that appeared on pages 259 to 285 deleted on direction of Supreme Court by order dated August 21, 1974.
[**] Opinion that appeared on pages 286 to 293 deleted due to hearing granted.