IN RE: Henry Romero CORTEZ on Habeas Corpus.

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Court of Appeal, Third District, California.

IN RE: Henry Romero CORTEZ on Habeas Corpus.

Cr. 6101.

Decided: April 28, 1971

Peter G. Fetros, Sacramento, for petitioner. Evelle J. Younger, Atty. Gen., by Nelson P. Kempsky & Craig Stalker, Deputy Attys. Gen., Sacramento, for respondent.

Petitioner is confined at Folsom State Prison under a judgment and commitment of the Superior Court for the County of Riverside, entered October 29, 1962. On that date he was sentenced to state prison for the term prescribed by law after his jury conviction of four counts of selling or offering to sell heroin in violation of Health and Safety Code, section 11501. The sentences on three of the counts were ordered to be served consecutively, and the sentence on the fourth was ordered to be served concurrently with the others. Under section 11501 (Stats.1961, ch. 215, p. 1234), by virtue of a prior 1958 narcotics conviction, his sentence was augmented.

At the time petitioner was sentenced, section 11718 of the Health and Safety Code prohibited the trial court from dismissing the prior conviction or striking it from the accusatory pleading except upon motion of the district attorney. (See, People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641.) On September 1, 1970, in People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, the state Supreme Court held that section 11718 was invalid under the California constitution because the statute encroached upon the constitutional province of the judiciary and violated the doctrine of separation of powers. (See also, In re Johnson (1970) 3 Cal.3d 404, 418, 90 Cal.Rptr. 569, 475 P.2d 841; People v. Clark (1970) 3 Cal.3d 97, 89 Cal.Rptr. 253, 473 P.2d 997.)

In its Tenorio opinion, the court—in a footnote—also stated: ‘Inasmuch as today's decision relates only to sentencing and will not require any retrials, we have concluded that it should enjoy fully retroactive effect. [Citation.] Any prisoner suffering a sentence imposed after the effective date of Health and Safety Code section 11718 (Sept. 18, 1959) and augmented by virtue of a prior narcotics conviction may file a habeas corpus petition with the superior court inviting the exercise of discretion to dismiss the prior conviction. Petitions should be filed in the court with territorial jurisdiction in the first instance, and transferred by that court to the sentencing court in the event the court with territorial jurisdiction was not the sentencing court. [Citation.] * * Upon receipt of such a petition, the sentencing court should follow normal sentencing procedures and grant appropriate relief whenever deemed warranted in its discretion.’ (3 Cal.3d at pp. 95–96, fn. 2, 89 Cal.Rptr. at p. 257, 473 P.2d 993, at p. 997.) (Emphasis added.)

On September 30, 1970, while incarcerated at Folsom State Prison, petitioner filed in the Superior Court for Sacramento County (the court with territorial jurisdiction) a habeas corpus petition of the type authorized by Tenorio. The Sacramento court transferred the petition to the sentencing court in Riverside County. On November 2, 1970, the sentencing court—after citing Tenorio—made the following order: ‘This Court has reviewed its file, and although having discretion to strike defendant's prior conviction pursuant to said Supreme Court Decision, likewise has discretion not to strike it. In the opinion of this Court said prior should not be, and is therefore not stricken and the judgment of this Court pronounced October 31 [sic], 1962 shall remain in full force and effect. [Par.] Petitioner's application and petition for a Writ, excepting to the extent that this Court has accepted the invitation to exercise its discretion, which it has exercised, is denied.’

It is undisputed that no motion was made by the district attorney (under section 11718) at the time of petitioner's original sentencing in 1962 which would have invoked the court's discretion to dismiss or strike the allegation of petitioner's 1958 narcotics conviction. In the habeas corpus proceeding filed with us, petitioner alleges (and it is likewise undisputed by the Attorney General) that his 1970 petition was summarily denied by the sentencing court without a hearing and without his being personally present and represented by counsel.1 He contends that those omissions were contrary to the requirements of Tenorio. His pending petition is a proper vehicle to bring these claims to our attention. (See, In re Perez (1966) 65 Cal.2d 224, 229, 53 Cal.Rptr. 414, 418 P.2d 6; In re Levi (1952) 39 Cal.2d 41, 46, 244 P.2d 403; In re Klein (1961) 197 Cal.App.2d 58, 17 Cal.Rptr. 71; In re Miller (1959) 176 Cal.App.2d 75, 78, 1 Cal.Rptr. 62.)

The petition is meritorious. ‘Pronouncement of judgment, * * * is a critical stage in the criminal prosecution when the constitutional rights ‘to appear and defend, in person and with counsel’ (Cal.Const., art. I, § 13) apply, * * *.' (In re Perez, supra, 65 Cal.2d at p. 229, 53 Cal.Rptr. at p. 417, 418 P.2d at p. 9.) The hereinbefore quoted footnote in Tenorio is explicit; it states that, ‘[u]pon receipt of such a petition [such as was transferred to the sentencing court in this case], the sentencing court should follow normal sentencing procedures * * *.’ (3 Cal.3d at pp. 95–96, fn. 2, 89 Cal.Rptr. at p. 257, 473 P.2d at p. 997.) ‘[F]ootnotes in Supreme Court opinions, which are specific, have the same effect as parts of the opinion itself.’ (People v. Hasson (1968) 265 Cal.App.2d 865, 866, 71 Cal.Rptr. 664.) ‘The language of an opinion, like that of any other writing, must be given its plain and natural meaning, unless used in a technical sense.’ (21 C.J.S. Courts § 222, p. 414.)

The Attorney General argues, however, that ‘[i]t would be incongruous to suggest that a prisoner may invite the sentencing court to exercise its discretion, and then require the sentencing court to hold a hearing.’ The incongruity lies in the Attorney General's argument. ‘The courts have never ascribed to judicial discretion a potential without restraint.’ (People v. Russel (1968) 69 Cal.2d 187, 194, 70 Cal.Rptr. 210, 215, 443 P.2d 794, 799.)2 The trial court's exercise of its discretion is inherent in the pronouncement of judgment, (See, e. g., Pen.Code, §§ 1203 (probation), 1203.1 (suspension of sentence); Welf. & Inst. Code, § 3051 (commitment to narcotic addict rehabilitation program).)

As is pointed out in In re Perez, supra, 65 Cal.2d at pages 229–230, 53 Cal.Rptr. p. 417, 418 P.2d p.9. ‘There are substantial reasons for the presence of [the] accused and the aid of counsel at the pronouncement of judgment. * * * [T]he accused * * may have evidence and argument in mitigation of punishment was a choice of sentence is available * * * Without the help of counsel most defendants would not know of and would be helpless to present these matters. * * *’ (Emphasis added.) (See also, Mempa v. Rhay (1967) 389 U.S. 128, 135, 88 S.Ct. 254, 19 L.Ed.2d 336, 340–341.) The same considerations are applicable when, under Tenorio, the sentencing court exercises its discretion and decides whether to dismiss or strike a prior conviction.

The petition is granted and a writ of habeas corpus will issue commanding the warden of Folsom State Prison to deliver petitioner to the custody of the Superior Court for the County of Riverside with directions to that court to vacate its order of November 2, 1970, and, with petitioner present and represented by counsel, to conduct a hearing on the question whether petitioner's prior conviction should be stricken. If the court concludes, in the exercise of its discretion, that the prior should not be stricken, the Tenorio petition should be denied; if the court concludes that the prior should be stricken and the latter petition granted, it shall order the judgment vacated, strike petitioner's prior conviction. and rearraign him for pronouncement of judgment.


1.  The proceedings upon denial of the petition were unreported, and we have only the clerk's minutes of November 2, 1970, by which to gauge the action taken. Those minutes suggest the appearance of the district attorney and the attorney who represented petitioner at his 1962 trial. The entry of counsel's name in the space provided for appearances was apparently a mere historical inclusion, and it is not contended by the Attorney General that any attorney actually representing petitioner was present when his petition was denied by the sentencing court.

2.  Aptly noted in Russel is an early delineation by our Supreme Court of the limits of judicial discretion: ‘The diseretion intended * * * is not a eaprieious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ (Bailey v. Taaffe (1866) 29 Cal. 422, 424.)

JANES, Associate Justice.

PIERCE, P. J., and FRIEDMAN, J., concur.