Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Susan Lynn MONTOYA, Defendant and Appellant.

Cr. 8966.

Decided: July 30, 1979

Appellate Defenders, Inc., under appointment by the Court of Appeal, and J. Perry Langford, San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Harley D. Mayfield and Bernard A. Delaney, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Susan Lynn Montoya pleaded guilty to grand theft (Pen.Code, § 487, subd. 1) and burglary, second degree (Pen.Code, § 459).

Upon sentencing, the judge declined to institute narcotics addiction proceedings, denied probation, and imposed consecutive prison sentences upon Montoya. The court imposed the upper base term for each conviction, three years for the grand theft plus three years for the burglary, but stayed two and one-third years of the latter term, making a total prison term of three years, eight months. Montoya appeals contending multiple sentencing errors.


Montoya burglarized the residence of her mother and stepfather. She took a rifle and sewing machine of a total value of about $700. Montoya with a co-defendant rented a generator of approximate value of $525 and failed to return it. Montoya said she committed the offenses in order to support her addiction to heroin.



Montoya first contends the trial court erred when it considered “facts relating to the defendant” in selecting the upper terms. People v. Cheatham, 23 Cal.3d 829, 831, 153 Cal.Rptr. 585, 591 P.2d 1237, disposes of this contention adversely to Montoya's position. The trial court committed no error in considering this class of facts in mitigation or aggravation of the offense.


In imposing both the upper term for grand theft and a consecutive sentence for the burglary, the court gave as one of its stated bases, “the multiplicity of victims” (Cal.Rules of Court, rule 425, subd. (a)), thus violating the statutory command of Penal Code section 1170, subdivision (b), which at that time read in pertinent part: “The court may not impose an upper term by using the same fact used to enhance the sentence under Section … 1170.1 ․”

Section 1170.1 treats with imposition of consecutive sentences: A consecutive sentence is an “enhancement” as defined in California Rules of Court, rule 405, subdivision (c). We conclude the trial court's imposition of consecutive sentences rests in part upon use of the same fact in aggravation, used as a basis for selecting the upper term for the grand theft. This erroneous dual use of a single fact requires remand for resentencing. (People v. Roberson, 81 Cal.App.3d 890, 146 Cal.Rptr. 777.)

In selecting the upper term for the grand theft, the trial court also relied upon factual matters unsupported by the record. The trial court found aggravation of the grand theft because the value of the property taken was substantial. (Cal.Rules of Court, rule 421, subd. (a)(10).) This rule refers to a taking of “great monetary value.” To commit grand theft, a person must take property of value in excess of $200. While the Judicial Council has not defined “great” monetary value, the Legislature in selecting different amounts as a basis for differential enhancements sheds some light. For example, Penal Code section 12022.6 provides for a one-year enhancement for the taking of more than $25,000 and a two-year enhancement for the taking of over $100,000. Thus the Legislature has determined it takes $75,000 of value to invoke one additional year of punishment. At the lower end of the value scale it takes less, because the range between $200 and $25,000 covers the lower, middle and upper terms of the normal punishment range. If punishment by the three possible terms is to be allocated between $200 and $25,000 on the basis of value, the $527.88, or $700 loss in the case at bar, cannot justify the upper term. The base term for a $527.88 or $700 loss cannot rationally be the same as for the taking of $25,000.

The Attorney General concedes there was no multiplicity of victims within the meaning of California Rules of Court, rule 421, subdivision (a)(4), and the sentencing court “made no proper finding” within contemplation of rule 421, subdivision (a)(10), as to whether there was “great” monetary value taken in this case. The Attorney General points to other multiple sound bases under the statute and rules for selecting the upper term for the grand theft and running the burglary sentence consecutively. The Attorney General urges upon us the familiar Watson (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243) approach, i. e., that it is not reasonably probable that a result more favorable to Montoya would be reached if this matter is remanded for resentencing.

This argument has much appeal to overworked judges. Not all judicial misstatements made during sentencing require remand for resentencing. (People v. Dozier, 90 Cal.App.3d 174, 153 Cal.Rptr. 53; People v. Guevara, 88 Cal.App.3d 86, 151 Cal.Rptr. 511; People v. Blessing, 94 Cal.App.3d 835, 155 Cal.Rptr. 780 (1979).)

The difficulty with an attempt to apply the Watson rule in the fact situation where improperly used factors have been commingled with other appropriate materials, is that we are required to read the judge's mind, speculate as to the weight attached to the improper versus proper facts. We are required to guess as to the probable outcome on sentencing if the improper factors had been extracted and disregarded. Such determinations would require clairsentient powers as well as precognative skills. Appeal courts are not now so equipped. Further, the use of the Watson rule in this context has the effect of thwarting a prime, explicit purpose of the determinative sentencing law. The statute's requirement of specificity in articulation of the basis of sentencing choices (§ 1170, subd. (c)) is the means of attaining “uniformity in sentences of offenders committing the same offense under similar circumstances.” (§ 1170, subd. (a)(1).) The Supreme Court in In re John H., 21 Cal.3d 18, 34, 145 Cal.Rptr. 357, 366, 577 P.2d 177, 186, stated: “[T] his court has required judges to express their reasons for dispositional choices because it serves important judicial interests.”

Our failure to insist upon strict compliance with the legislative mandate prohibiting repeated use of the same facts, improper facts, in making sentencing choices, can only defeat the clear judicial and legislative purposes. The Watson test favoring judicial economy must give way before these broader expressed societal aims.

Judgment reversed and matter remanded for resentencing in harmony with this opinion. In all other respects, the judgment is affirmed.

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.