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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Gregory Alan THOMPSON, Defendant and Appellant.

No. B079887.

Decided: November 08, 1994

Michael R. Totaro, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., Kenneth C. Byrne, Supervising Deputy Atty. Gen., and Edward H. Kajani, Deputy Atty. Gen., for plaintiff and respondent.

In exercising discretion whether to impose a middle or upper term sentence must the trial court consider the effect of a mandatory 5–year sentence enhancement?   Our answer is no.   We affirm the sentence and judgment.


In 1991, appellant approached Sidronio Mojica at a bus stop in Long Beach and asked Mojica for money and a cigarette.   Mojica said he had no money and did not smoke.   Appellant remained nearby for several minutes.   Then, appellant and two accomplices approached Mojica, grabbed him, and pushed him to the ground.   One of the robbers took Mojica's wallet from his pocket.   The three robbers fled and Mojica gave chase.   A passing police car saw the running men and arrested appellant.   In a post-arrest statement to police and in defense at trial, appellant claimed he left the scene when two men robbed Mojica and he was mistaken for one them.

In a bifurcated trial, a jury found appellant guilty of second degree robbery and the court found appellant had sustained a prior serious felony conviction.  (Pen.Code, §§ 211, 667, subd. (a).)  In pronouncing sentence, the trial court found in aggravation that appellant had engaged in violent conduct indicating a danger to society and appellant was on parole at the time of the offense.   The trial court found no factors in mitigation.   The trial court stated it was obligated to impose the upper term if the factors in aggravation outweighed those in mitigation.   The trial court imposed an upper term of five years for the robbery, plus a five-year enhancement for the prior serious felony conviction.   The trial court, in sentencing appellant, observed that even “seven years for [appellant's] behavior is a lot for what happened that day” and it was “giving the defense a record so that if [the court] was wrong, it will come back ․ from the appellate courts.”

In his first appeal, appellant contended the trial court erred because it erroneously believed it lacked discretion to impose a mid-term sentence when factors in aggravation outweighed factors in mitigation.   In an unpublished opinion, Division One of this court agreed, stating:  “It is well established that the trial court retains discretion to impose a middle-term sentence even if it finds that factors in aggravation outweigh those in mitigation.”  (People v. Thompson (June 15, 1993) B063252.)   The Court of Appeal vacated the sentence and remanded the matter for resentencing.

On September 17, 1993, the same judge (Superior Court Judge Victor T. Barrera 1 ) who presided at the first sentence hearing presided at the resentence hearing.   The trial court again imposed a 10–year state prison sentence, an upper 5–year term on the robbery conviction and a 5–year consecutive term for the serious felony enhancement.  (Pen.Code, § 667, subd. (a).)

Appellant again appeals from the judgment claiming sentence error.


Not at issue is whether factors in aggravation justified imposition of the upper term.   Appellant conceded at the resentencing hearing and on this appeal that they did justify an upper term.

Also not at issue is whether the trial court understood it had discretion to impose the middle term despite mitigating factors being outweighed by aggravating factors.   At the resentencing hearing the trial court stated:  “․ I understand I have the discretion to impose mid term even when I find aggravated factors outweighing mitigating factors.”

Finally, not at issue is whether, in exercising its discretion to impose a middle or upper term, a trial court may consider the effect of a mandatory sentence enhancement.2  Because the trial court either did not pay “a whole bunch of attention to” the 5–year mandatory enhancement or did not “tak [e] [it] into consideration” at all, we need not determine whether it would have been proper for the trial court to have done so.

At issue is only this question:  In exercising discretion to impose a middle or upper term sentence must the trial court consider the effect of a mandatory 5–year sentence enhancement?

Our answer begins with the Determinate Sentence Law (DSL) and its introductory statement of purpose and division of authority between the legislature and the judiciary.

“The Legislature finds and declares that the purpose of imprisonment for crime is punishment.   This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.   The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.”  (Pen.Code, § 1170, subd. (a)(1);  emphasis added.)

Of significance is that the Legislature determined “the seriousness of the offense” and the Legislature prescribed determinate sentences for the offense while the court exercised “specified ” discretion in imposing a prescribed sentence.

 “Specified” discretion, as used in the DSL, means diminished or constrained discretion.  (See People v. Martin (1986) 42 Cal.3d 437, 442–443, 229 Cal.Rptr. 131, 722 P.2d 905;  People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1641, 278 Cal.Rptr. 748 (concurring opn. by Justice Kline).)   Judicial discretion was diminished or “specified” in the DSL in order to reduce sentence disparity, “a pernicious evil endangering the very integrity of the criminal justice system.”  (People v. Martin, supra, at p. 442, 229 Cal.Rptr. 131, 722 P.2d 905.)   The cause of this disparity “ ‘was not the differences in defendants but the differences in judges.   Thus the movement to promote uniformity in sentencing ․ was in no small part a movement to diminish judicial discretion.’ ”  (Id., at pp. 442–443, 229 Cal.Rptr. 131, 722 P.2d 905.)

A mechanism to control judicial discretion is this mandate:  “In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council.”  (Pen.Code, § 1170, subd. (a)(2).)

Rule 420 prescribes what facts are relevant in the selection of a base term of imprisonment (lower, middle, or upper).   It states:  “The relevant facts are included in the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing.”  (Cal.Rules of Court, rule 420(b).)   Not listed as a relevant fact is the presence and effect of a mandatory sentence enhancement.

Appellant cites no authority, and we are aware of none, requiring a trial court to consider the effect of a mandatory sentence enhancement when selecting the base term of imprisonment.   Rather, the authorities relied upon by appellant merely hold that when it has sentence choices a trial court may consider the effect of those choices in making those choices.   Thus, in People v. Stevens (1988) 205 Cal.App.3d 1452, 253 Cal.Rptr. 173 Division Five of this court approved the trial court's fashioning of its sentence choices in order to achieve a valid 6–year sentence, the maximum plea bargain term.   The sentence did not involve a mandatory enhancement.  (See also People v. Calderon (1993) 20 Cal.App.4th 82, 26 Cal.Rptr.2d 31.)

We need not, as respondent urges, choose sides in the conflict over whether or not a trial court may “reason backward to justify a particular length sentence which he arbitrarily determines.”  (People v. Swanson (1983) 140 Cal.App.3d 571, 574, 189 Cal.Rptr. 547.)   Such cases as Swanson and Fernandez (People v. Fernandez (1990) 226 Cal.App.3d 669, 684, 276 Cal.Rptr. 631) which condemn it and such cases as Stevens and Calderon which approve it, all involve sentence components which are discretionary.   None involve mandatory sentence enhancements.

 It suffices that we hold the following:  when selecting a base term of imprisonment a trial court has no duty to consider the effect of a mandatory sentence enhancement.

 The trial court properly exercised discretion in imposing the upper 5–year term for second degree robbery and augmenting that sentence by the mandatory 5–year enhancement.  (Pen.Code, § 667.)


The judgment is affirmed.

I respectfully dissent.   The trial court here failed to properly exercise its discretion by giving appropriate consideration to the overall length of the sentence, as well as to its individual elements and the People request this court to apply the rule of People v. Swanson (1983) 140 Cal.App.3d 571, 574, 189 Cal.Rptr. 547, in a too mechanistic fashion.

The court properly could have exercised its discretion to employ the middle term, if its evaluation of the sentence as a whole led it to conclude the defendant was entitled to some leniency.  (Cf. People v. Myers (1983) 148 Cal.App.3d 699, 704, 196 Cal.Rptr. 234.)  “A judge's subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge's experiences with prior cases and the record in the defendant's case cannot be ignored.   A judge's subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria.”   (People v. Stevens (1988) 205 Cal.App.3d 1452, 1457, 253 Cal.Rptr. 173.)

In my opinion, the trial court abused its discretion when it refused to give appropriate consideration to the term in the aggregate and looked only in isolation at each individual element of the term in making its sentencing choice.  (See People v. Calderon (1993) 20 Cal.App.4th 82, 88, 26 Cal.Rptr.2d 31;  People v. Stevens, supra, 205 Cal.App.3d at p. 1457, 253 Cal.Rptr. 173;  People v. Savala (1983) 147 Cal.App.3d 63, 68–69, 195 Cal.Rptr. 193, overruled on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1044, 216 Cal.Rptr. 865.)

The sentence should be vacated and the matter remanded for resentencing.


1.   Both appellate counsel mistakenly identified Superior Court Judge Sheila F. Pokras as the resentencing judge.   They apparently relied on the mistaken designation by the court reporter.   It is clear from the clerk's minute order and the content of the resentencing judge's comments that Judge Barrera, who presided at trial and imposed sentence initially, also presided at the resentencing hearing.

2.   Appellant alternately casts the issue in permissive and mandatory terms.   E.g., compare “The trial court is permitted to take into consideration, terms of imprisonment to be imposed for prior felonies, in arriving at a sentence ․” with “It is Appellant's position that the trial court erred in failing to take into consideration the total term of imprisonment ․ in exercising discretion as to what the punishment for the crime should be.”  (Emphasis added.)

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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