PEOPLE v. COOKE

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Gregory COOKE, Defendant and Appellant.

Cr. 20838.

Decided: April 26, 1982

Paul Gregory Cooke, in pro. per. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Thomas A. Brady, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Pursuant to a negotiated plea bargain, defendant pled guilty to one count of receiving stolen property, second degree burglary and misdemeanor auto tampering;  the remaining charges were dismissed.   The trial court committed defendant to the Youth Authority (YA) for the middle term of two years on the receiving count plus an additional eight months on the burglary count.   The court also declared that the YA should retain defendant (then 18) until he was 25 years of age.

 A year later, the YA rejected defendant as unsuitable.  (Welf. & Inst.Code, § 1737.1.) 1  Upon his return to the committing court, defendant was sentenced by the same trial court to state prison for the upper term of three years on the receiving count and a consecutive term of eight months on the burglary count.   Defendant appeals challenging the imposition of the upper term on the grounds that (1) the trial court lacked jurisdiction to impose a different term, or (2) assuming such jurisdiction, the power to “re-sentence” youthful offenders constitutes a denial of equal protection.   We disagree for the reasons we explain but we reverse the judgment due to sentencing error in imposing the aggravated term.

I

A YA commitment by an adult court under section 1731.5, like a juvenile court commitment, is essentially indeterminate.  (See People v. Austin [1981] 30 Cal.3d 155, 164–165, 178 Cal.Rptr. 312, 636 P.2d 1;  In re Eric J. [1979] 25 Cal.3d 522, 532, 159 Cal.Rptr. 317, 601 P.2d 549;  People v. Franklin [1980] 102 Cal.App.3d 250, 253, 162 Cal.Rptr. 284.)   The actual period of confinement is determined not by the committing court (see People v. Walling [1980] 105 Cal.App.3d 893, 164 Cal.Rptr. 681;  People v. Getty [1975] 50 Cal.App.3d 101, 111, 123 Cal.Rptr. 704;  People v. Barstow [1974] 42 Cal.App.3d 90, 95, 116 Cal.Rptr. 524) but by the Youthful Offender Parole Board pursuant to statutory standards.  (§§ 1765, 1766.)

 Whenever a juvenile court commits a juvenile offender to the YA, the order must specify the “maximum term of imprisonment which could be imposed on an adult,” such term being the upper term provided under the three-tiered determinate sentencing law.  (§ 726;  In re Eric J., supra, 25 Cal.3d 522, 159 Cal.Rptr. 317, 601 P.2d 549.)   In contrast, a commitment of a youthful offender by an adult court may be for a period less than the maximum term of imprisonment which could be imposed on an adult for the same crime (People v. Austin, supra, 30 Cal.3d at pp. 159–161, 178 Cal.Rptr. 312, 636 P.2d 1;  People v. Jones [1980] 111 Cal.App.3d 597, 169 Cal.Rptr. 28) but in no case beyond such maximum term.  (§ 1766, subd. (b);  People v. Olivas [1976] 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375 [misdemeanants];  People v. Sandoval [1977] 70 Cal.App.3d 73, 89, 138 Cal.Rptr. 609 [felons].)

 But in order to manifest Olivas compliance, the order of commitment must specify the term of imprisonment as though a prison sentence were to be imposed (People v. Franklin, supra, 102 Cal.App.2d 250, 253, 162 Cal.Rptr. 284;  Cal.Rules of Court, rule 453(a)).2  And where, as here, the applicable statute specifies three possible terms, the court is required to select the appropriate term in accordance with the sentencing rules and to recite the reasons for its choice of sentence (People v. Austin, supra, 30 Cal.3d 155, 159–161, 178 Cal.Rptr. 312, 636 P.2d 1).   The court's initial order of commitment for the mid-term was in full compliance with such applicable principles.

 However, unlike a prison sentence whose purpose is punishment (Pen.Code, § 1170, subd. (a)(1)), the purpose underlying YA commitment of youthful offenders is—in theory—rehabilitative in nature (§ 1700;  People v. Austin, supra, 30 Cal.3d 155, 162–166, 178 Cal.Rptr. 312, 636 P.2d 1;  In re Aline D. [1975] 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65;  People v. Getty, supra, 50 Cal.App.3d 101, 113, 123 Cal.Rptr. 704).   Thus, although the order of commitment to the YA constitutes a final judgment or “sentence” for purposes of appeal (see § 1737.5;  see also Pen.Code, § 1237, subd. 1;  People v. Spencer [1969] 71 Cal.2d 933, 934–935, fn. 1, 80 Cal.Rptr. 99, 458 P.2d 43;  In re Herrera [1943] 23 Cal.2d 206, 214, 143 P.2d 345, overruled on other grounds in People v. Olivas, supra, 17 Cal.3d at p. 257, 131 Cal.Rptr. 55, 551 P.2d 375) and misdemeanor adjudication (People v. Navarro [1972] 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481;  People v. Hannon [1971] 5 Cal.3d 330, 96 Cal.Rptr. 35, 486 P.2d 1235), in legal effect it operates not as a determinate sentence but as a commitment in the form of an “other disposition provided by law” (Pen.Code, § 1170, subd. (a)(2)) limited by equal protection constraints.  (Cf. alternative commitments or “dispositions” for a narcotics addict (§ 3051), mentally disordered sex offender (§ 6316) and criminally insane (Pen.Code, § 1026), similarly construed as appealable final judgments.)

 Accordingly, once it appeared to the Youthful Offender Parole Board that the defendant was “an improper person to be retained” by the YA (§ 1737.1), the Board was authorized to order his return to the committing court which “may then commit him to a state prison or sentence him to a county jail as provided by law ․” (§ 1737.1;  emphasis added).   While the specified hypothetical term of imprisonment required under rule 453(a) clarifies the maximum term of a YA commitment (People v. Franklin, supra, 102 Cal.App.3d 250, 253, 162 Cal.Rptr. 284), no prison sentence is actually imposed until the youthful offender is returned to the committing court for purpose of imposition of sentence as provided under section 1737.1.   At that point, the court is vested with jurisdiction to impose sentence for purpose of punishment within the range prescribed for the underlying offense under the provisions of the Uniform Determinate Sentencing Act of 1976.   In fixing the actual term of imprisonment, the sentencing court was required to apply the sentencing rules promulgated by the Judicial Council (Pen.Code, § 1170, subd. (a)(2)), sanctioning imposition of the upper term whenever aggravating circumstances outweighed mitigating circumstances (Cal.Rules of Court, rule 439(b)) with reasons for the sentence choice stated on the record (Pen.Code, § 1170, subd. (c);  Cal.Rules of Court, rule 439(c).

 However, in imposing the upper term of imprisonment, the trial court considered as an aggravating circumstance defendant's violent behavior during his YA confinement (see Cal.Rules of Court, rule 421(b)(1)), which apparently was the basis of his YA rejection.   Although the trial court articulated various reasons for selecting the upper term, including premeditation, numerous serious criminal convictions, parole status and unsatisfactory prior parole performance (Cal.Rules of Court, rule 421(a)(8), 421(b)(2), (4), (5)), defendant's act of violence during his YA confinement was underscored as the basis for the increased term.3  Assuming that the reported and uncharged criminal assault upon a fellow inmate could be properly considered as an aggravating factor (see rule 408(a), Cal.Rules of Court;  but cf. People v. Morris [1979] 97 Cal.App.3d 358, 364, 158 Cal.Rptr. 722), such violent though dangerous act alone could not constitute “a pattern of violent conduct” under rule 421(b)(1) so as to justify the maximum term (emphasis ours.)  (Cf. People v. Barry [1981] 117 Cal.App.3d 184, 191, 172 Cal.Rptr. 756 [two prior acts cannot be “numerous” under rule 421(b)(2)].)  Since the remaining factors articulated by the court were considered in fixing the original mid-term, the conclusion seems inescapable that the aggravated term was grounded exclusively upon the single act of violence which allegedly occurred during defendant's institutional confinement.   In any event, we cannot speculate as to which factor or factors might have been determinative (People v. Larsen [1980] 107 Cal.App.3d 748, 758, 165 Cal.Rptr. 764);  thus, the matter must be remanded for further proceedings on resentencing.4

II.

 Defendant's companion claim of an equal protection violation is premised on his characterization of the sentence proceeding upon his return as a “re -sentence” to which adult offenders are not similarly subjected.   However, as previously discussed, the initial order of commitment to the YA was not the functional equivalent of a sentence of imprisonment.  (Cf. In re Ralph [1946] 27 Cal.2d 866, 869–871, 168 P.2d 1.)   Only the later proceeding following remand actually resulted in the imposition of a determinate period of prison confinement.   Consequently, defendant was not subjected to disparate or unequal treatment.

Moreover, as a youthful offender eligible for a rehabilitation commitment to the YA, defendant was not “similarly situated” to an adult offender who does not have the advantage of the same alternative to a prison sentence.  (Cf. People v. Austin, supra, 30 Cal.3d 155, 178 Cal.Rptr. 312, 636 P.2d 1;  see In re Eric J., supra, 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549 [juveniles and adults not similarly situated];  cf. People v. Olivas, supra, 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375 [youthful offenders similarly situated to adult offenders for purposes of maximum period of confinement for same offense].)  Thus, the statutorily authorized sentencing proceeding did not offend principles of equal protection.5

 Judgment reversed and remanded for the limited purpose of resentencing consistent with the views expressed herein.

I concur in reversing the judgment, but respectfully dissent from the order on remand.   I conclude the trial court exhausted its authority to sentence defendant when it ordered him incarcerated by the Youth Authority (YA).

The government's position, with which my colleagues agree, is, in outline:  Penal Code section 1170, subdivision (a)(2) and Welfare and Institutions Code section 1737.1, as interpreted by cases cited, empowered the trial court to incarcerate defendant, a youthful offender, in state prison for three years, eight months, although one year previously it had ordered him incarcerated in the YA for two years, eight months, for the identical offense;  that this procedure does not violate equal protection concepts because youthful offenders and adult offenders are not similarly situated because the former are eligible for a rehabilitative commitment to the YA as an alternative to a punitive prison sentence.

I disagree for these reasons:

1. The government's argument that deprivation of liberty is somehow different because the government's expressed intent is to rehabilitate instead of punish, like describing the Emperor's clothes, befogs reality with words.

2. The statutory scheme, as argued by the government, deprives youthful offenders of equal protection.

3. The statutory scheme, as interpreted by People v. Austin (1981) 30 Cal.3d 155, 178 Cal.Rptr. 312, 636 P.2d 1, and People v. Franklin (1980) 102 Cal.App.3d 250, 162 Cal.Rptr. 284, is contrary to the government's position.

4. The sentence to state prison violated the Double Jeopardy rule.

I. Words and Reality

To permit the trial court to resentence Cooke, it is essential to hold that incarceration for rehabilitation is somehow different from incarceration for punishment.   This focuses upon the government's asserted purpose in incarcerating persons.   The focus in Anglo-American legal tradition is upon the person incarcerated:  he is deprived of his liberty no matter what the government's purpose may be.   The mischief lies in the fact that “rehabilitation” and “punishment” are evaluative, not descriptive, terms.1  “Rehabilitation” implies something good is intended for the prisoner, “punishment” implies something bad is intended for him.   They tell us nothing at all about the realities of Cooke's incarceration in either facility.

Governments, like individuals, can rationalize any act by putting an attractive label on it.   We are all aware of the realities of such newspeak as “reeducation,” “relocation,” “historical determinism,” and for the politically ill, “psychiatric hospitalization.”   Even the two most vile governmentally approved institutions, slavery and genocide, were justified as freedom 2 and as a “solution,” respectively.   Law, like philosophy, is often “a battle against the bewitchment of our intelligence by means of language.” 3

The United States Supreme Court recognized that labels distort reality in a case involving California's Juvenile Court Law, Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346.   In Breed, the Court held that jeopardy attached to a subject at a juvenile court hearing, and that the later proceedings in the Superior Court arising out of the same alleged criminal violations offended the double jeopardy clause.   At page 529, 95 S.Ct. at page 1785, the court said:  “For it is clear under our cases that determining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile proceedings, requires that courts eschew ‘the “civil” label-of-convenience which has attached to juvenile proceedings,’ In re Gault, supra, [387 U.S. 1] at 50 [87 S.Ct. 1428, at 1455, 18 L.Ed.2d 527], and that ‘the juvenile process ․ be candidly appraised.’ ”

In a footnote at page 530, the court quotes Fain v. Duff (5th Cir. 1973) 488 F.2d 218, at p. 225:  “Nor does the fact ‘that the purpose of the commitment is rehabilitative and not punitive ․ change its nature․  Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration.   The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken.   Incarceration of adults is also intended to produce rehabilitation.”

If we eschew the labels in the case at bar, as Breed v. Jones supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 requires us to do, we see that:  “commitment is a deprivation of liberty.   It is incarceration against one's will, whether it is called ‘criminal’ or ‘civil.’ ”  (In re Gault [1967] 387 U.S. 1, at p. 50, 87 S.Ct. 1428, at p. 1455, 18 L.Ed.2d 527.)

In People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, the California Supreme Court quoted the foregoing language from Breed v. Jones supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, and added in the same vein:  “Irrespective of whatever amenities are provided to the ward confined in an institution of the Youth Authority in order to differentiate the quality of his incarceration from those persons confined in a county jail or state prison, the plain and simple fact remains that he cannot leave of his own free will.   His daily routine is regimented, his personal habits and intimate private matters are subject to the scrutiny of others;  in short, his life is completely controlled in a most basic sense.”  (People v. Olivas, supra, 17 Cal.3d, at pp. 253–254, 131 Cal.Rptr. 55, 551 P.2d 375.)

These holdings are inconsistent with the position that a youthful offender who is eligible for a rehabilitation commitment to the YA is not “similarly situated” to an adult offender who does not have the same alternative to a punitive state prison sentence.

More earthy, Socrates pointed out that no matter how often you call it a horse, a donkey remains forever a donkey.   Incarceration remains incarceration whatever else it is labelled.

It is significant that, despite the labels “rehabilitation” and “punishment,” there is nothing before us to suggest that the conditions at YA are in reality rehabilitative, or less punitive, or any different, than those at some or all of the numerous state prison facilities.   News stories portray the Deuel YA facility on a par with state prison facilities at San Quentin and Soledad.   Other state prison facilities, for example, near Susanville and San Luis Obispo, have far more benign images.   We can hardly take judicial notice of this sort of information;  but it seems to me that before a court can conclude that a policy to rehabilitate produces in reality a qualitatively different incarceration than one aimed to punish, hard evidence should be provided.   Even if it were forthcoming, Breed v. Jones supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 still tells us that incarceration is still incarceration, the deprivation of a fundamental right.

Therefore, I conclude that the labels “rehabilitation” and “punishment” have no reasonable place in considering the case at bar.

II. Equal Protection

If the government is correct that Welfare and Institutions Code section 1737.1 authorizes the trial court to sentence a youthful offender to state prison after he is returned to the trial court by the Youthful Offender Parole Board, the scheme denies youthful offenders equal protection.

People v. Olivas, supra, 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, clearly establishes that youthful offenders (ages 16 to 21) are in the same class as adults (id., at p. 239, 131 Cal.Rptr. 55, 551 P.2d 375) and restates that liberty is a fundamental interest.  (Id., at p. 251, 131 Cal.Rptr. 55, 551 P.2d 375.)   Therefore, the burden is upon the state to show that the difference in treatment given to youthful offenders and adult offenders serves a compelling state interest and that the distinctions drawn by the law are necessary to it.

The different treatment accorded these two groups is well illustrated by this case.   If Cooke had been 22 years of age or older and sentenced to two years and eight months in state prison, he would not be subject to having his sentence extended at a later time for his misbehavior while incarcerated.   However, because he was a youthful offender, he was subject to having his period of incarceration extended based on misbehavior impliedly found by an administrative board and reported by the state's attorney to the sentencing judge as hearsay.

Without the validity of the distinction between incarceration for rehabilitation and punitive purposes, rejected by Breed v. Jones, supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 and People v. Olivas, supra, 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, the disparate treatment is indefensible.

III. The Statutory Scheme

The government position concerning the applicable statutory scheme I perceive to be this:  a convicted youthful offender may be committed to the YA for an indeterminate term;  the court must indicate a hypothetical term which it would impose if it were to sentence defendant to state prison;  the commitment to the YA is an “other disposition provided by law” mentioned in Penal Code section 1170, subdivision (a)(2) and not a sentence;  if the YA returns defendant as unsuitable for YA supervision, Welfare and Institutions Code section 1737.1 empowers the court to sentence defendant to state prison for any term provided by Penal Code section 1170, subdivision (a)(2), even one greater than the previous hypothetical commitment to the YA.

My reading of the statutes and cases is thus:  (a) Penal Code section 1170, subdivision (a)(2) requires the trial judge, when ordering defendant to YA, to choose a term which sets the maximum time of defendant's incarceration;  (b) the YA term is “indeterminate” in that the YA may end defendant's incarceration at an earlier time;  (c) this term is not an “other disposition provided by law,” but a sentence;  (d) if the YA returns defendant to the trial court as unfit, Welfare and Institutions Code section 1737.1 authorizes the trial court to commit defendant to state prison, but not to “sentence” him to state prison.

1. This court is agreed that the judge's sentence choice at the time he orders a youthful offender to YA sets the maximum term of YA commitment.   (People v. Franklin, supra, 102 Cal.App.3d 250, 253, 162 Cal.Rptr. 284;  Cal.Rules of Court, rule 453(a).)

2. The time of incarceration by the YA is “indeterminate” in that, although the trial judge sets the maximum, the YA may release defendant sooner.   (Welf. & Inst.Code, §§ 1765, 1766.)

3. I am unable to read section 1170, subdivision (a)(2) to imply that the term chosen for YA commitment is, within the meaning of that section, “any other disposition provided by law.”   That section provides in relevant part:

“In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of 16 months, two or three years;  two, three, or four years;  two, three, or five years;  three, four, or five years;  two, four, or six years;  three, four, or six years;  three, five, or seven years;  three, six, or eight years;  five, seven, or nine years;  five, seven, or 11 years, or any other specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless such convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he had committed his crime prior to July 1, 1977.   In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council.”  (Emphasis added.)

This section requires the court to sentence a defendant convicted of a public offense of the designated type to “one of the terms of imprisonment specified ․”  But if the defendant is given “any other disposition,” the court is not required to do so.

Is the court required to sentence a youthful offender to one of the terms specified in section 1170, subdivision (a)(2)?   Yes, says People v. Austin (1981) 30 Cal.3d 155, 178 Cal.Rptr. 312, 636 P.2d 1, in ruling on just this kind of disposition:  “Where, as here, the applicable statute specifies three possible terms, section 1170 requires the sentencing court to select the appropriate term and to apply the sentencing rules of the Judicial Council․”  (Id., at p. 159, 178 Cal.Rptr. 312, 636 P.2d 1, emphasis added.)

Therefore, a sentence of the youthful offender to YA cannot be a non-mandatory “any other disposition provided by law,” because People v. Austin supra, 30 Cal.3d 155, 178 Cal.Rptr. 312, 636 P.2d 1 says it is mandatory within section 1170, subdivision (a)(2).

Austin 's reference to sentencing a youthful offender to YA reiterates People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481, In re Ralph (1946) 27 Cal.2d 866 see p. 871, 168 P.2d 1, and In re Herrera (1943) 23 Cal.2d 206 see p. 214, 143 P.2d 345, which held a YA disposition to be a sentence.

4. This view is reinforced by attention to the wording of Welfare and Institutions Code section 1737.1, pursuant to which Cooke was returned to superior court.   The section provides in part:

“․ The court may then commit him to a state prison or sentence him to a county jail as provided by law for punishment of the offense of which he was convicted.   The maximum term of imprisonment for a person committed to a state prison under this section shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority.   This section shall not apply to commitments from juvenile court.”  (Emphasis added.)

The terms “commit” and “sentence” have quite different uses.  “Sentence” is synonymous with “judgment.”  (People v. Spencer [1969] 71 Cal.2d 933, 80 Cal.Rptr. 99, 458 P.2d 43;  see also People v. Hartsell (1973) 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627.)   We defined “commit” by Tobriner, J., in In re Klein (1961) 197 Cal.App.2d 58, 17 Cal.Rptr. 71, thus:  “ ‘To put in charge of a jailer;  to imprison.’ ”   We there quoted People v. Rick (1952) 112 Cal.App.2d 410, 246 P.2d 691, that a commitment is the process and authority for carrying the judgment and sentence into effect.  (See also Watkins v. Merry [10th Cir. 1939] 106 F.2d 360, 361.)

Welfare and Institutions Code section 1737.1 was studiously drafted to distinguish between authorizing the court to commit a defendant to state prison and to sentence a defendant to county jail.   The section does not purport to give the superior court power to sentence anyone to prison, only to commit one there who has already been sentenced.   The juxtaposition of the words “commit” and “sentence” invoke the rule of construction we restated through Justice Elkington in Charles S. v. Board of Education (1971) 20 Cal.App.3d 83, at page 95, 97 Cal.Rptr. 422:  “ ‘ “When different language is used in the same connection in different parts of a statute it is to be presumed the Legislature intended a different meaning and effect.” ’ ”

IV. The Result:  Double Jeopardy

“For what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict?”  (Ex parte Lange [1873] 85 U.S. 163, at p. 173, 21 L.Ed. 872.)

Whether denominated a sentence or something else, when it sent Cooke to YA, the court set an outer limit of two years and eight months on his incarceration.   When Cooke returned, the court sentenced him to three years and eight months in state prison.

 In my view, this violated the double jeopardy rule for these reasons:

1. Breed v. Jones, supra, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, held exposure to the risk of confinement pursuant to California Juvenile Court Law constitutes jeopardy and that subsequent exposure to the risk of confinement in a superior court proceeding for the identical alleged offenses constitutes double jeopardy.

2. The double jeopardy clause precludes more than one punishment upon conviction of a crime.  (United States v. DiFrancesco [1980] 449 U.S. 117, 128, 101 S.Ct. 426, 433, 66 L.Ed.2d 328;  People v. Henderson [1963] 60 Cal.2d 482, 35 Cal.Rptr. 77.)   The federal double jeopardy clause permits the imposition of a more severe sentence after one is vacated upon defendant's motion or appeal (North Carolina v. Pearce [1969] 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 or after a statutorily authorized appeal by the United States and a finding that the trial court erred or abused its discretion in imposing sentence.  (United States v. DiFrancesco, supra.)   However, the California double jeopardy clause precludes the imposition of a greater sentence than one vacated by a defendant's appeal.  (People v. Henderson, supra.)   A fortiori, Cooke's original sentence, which he has not attacked by motion or appeal, and which was still in effect when he was returned to the trial court from YA, must be immune from enhancement.

FOOTNOTES

1.   Section 1737.1 of the Welfare and Institutions Code (to which all statutory references apply unless otherwise indicated) provides:  “Whenever any person who has been convicted of a public offense in adult court and committed to and accepted by the Youth Authority appears to the Youth Offender Parole Board, either at the time of his or her first appearance before the board or thereafter, to be an improper person to be retained by the Youth Authority, or to be so incorrigible or so incapable of reformation under the discipline of the Youth Authority as to render his or her detention detrimental to the interests of the Youth Authority and the other persons committed thereto, the board may order the return of such person to the committing court.   The court may then commit him to a state prison or sentence him to a county jail as provided by law for punishment of the offense of which he was convicted.   The maximum term of imprisonment for a person committed to a state prison under this section shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority.   This section shall not apply to commitments from juvenile court.”

2.   Rule 453(a) requires that the YA commitment order “shall specify the term of imprisonment to which the defendant would have been sentenced.   The term shall be determined as provided by sections 1170 and 1170.1 and these rules, as though a sentence of imprisonment were to be imposed.”

3.   The prosecutor had recommended the maximum term based on “different information” that defendant had perpetrated an assault with a deadly weapon upon another YA inmate.   The trial court repeatedly emphasized defendant's extreme violence as demonstrated by his YA conduct as another reason “to change the sentence from the two year term to a three year term.”

4.   We note that whatever maximum term of imprisonment is ultimately fixed must be adjusted for the period “during which [the defendant] was under the control of the Youth Authority” (§ 1737.1).

5.   We express no opinion as to the question of double jeopardy analyzed in the concurring and dissenting opinion since it was neither briefed nor argued as an issue on appeal.

1.   “[O]ne of the most dangerous sources of ambiguity arises from the inability to distinguish descriptive from evaluative meaning․”  (Wilson, Language and the Pursuit of Truth (Cambridge Univ. Press, 1969) p. 40.)

2.   I.e., from federalism.  Dred Scott v. Sandford (1856) 60 U.S. 393, 15 L.Ed. 691.

3.   Wittgenstein, Philosophical Investigations, (Macmillan, 1958, 3d ed.) p. 47.   The awesome power of language was appreciated by ancient peoples:  “In the creation accounts of almost all great cultural religions, the Word appears in league with the highest Lord of creation;  either as the tool which he employs or actually as the primary source from which he, like all other Being and order of Being, is derived.”  (Cassirer, Language and Myth (Dover, 1946) pp. 45–46.)   See:  Genesis, which describes God creating the universe out of chaos by words.   See, also, the first lines of the Gospel of John:  “[A]nd the Word was God.”

 RACANELLI, Presiding Justice.

GRODIN, J.,* concurs.

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