Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
The PEOPLE, Plaintiff and Respondent, v. Thomas Louis FROEHLE, Jr., Defendant and Appellant.
OPINION
Thomas Louis Froehle, Jr., appeals from the imposition of a 16–year prison sentence, contending:
1. The court erroneously imposed a sentence of greater than six years following a commitment to the California Rehabilitation Center (CRC);
2. The court erred in applying Penal Code section 1170.95 to avoid the double-the-base-term limitation of Penal Code section 1170.1,1 and his counsel's failure to argue the inapplicability of section 1170.95 in the trial court constituted ineffective assistance of counsel;
3. The court failed to give reasons for imposing the upper term on the principal charge and consecutive sentences on the remaining counts, and did not give him all the custody credits to which he was entitled.
In the published portion of this opinion, we reject his first argument. However, we find merit in the second and third contentions and remand the matter to the trial court for resentencing.
I
On March 23, 1984, Froehle pleaded guilty to 15 counts of burglary (§ 459) and one count of receiving stolen property (§ 496, subdivision 1). Counts 9, 10, 11, 13 and 14 were residential burglaries, and therefore designated as burglaries in the first degree. (§ 460.) First degree burglaries are punishable by imprisonment for 2, 4 or 6 years. (§ 461.) Counts 1 through 8, 12 and 15 were burglaries in the second degree and punishable by one year in jail or imprisonment for 16 months, 2 years or 3 years. (§§ 460, 461, 18.) The second degree burglaries were committed principally against restaurants, dry cleaners and beauty salons.
All of the crimes occurred between November 12, 1983, and February 8, 1984. When entering his plea, Froehle acknowledged he could receive a prison sentence of “up to” 17 and one-third years if CRC rejected him or he violated parole from CRC. The written plea agreement designated count 9 as the principal term and specified the sentence range as 2, 4 or 6 years. Counts 1 through 8 and 10 through 14 listed the sentence as one-third the midterm which, depending on the degree of the offense, was two-thirds of a year and one and one-third years. On counts 15 and 16 the plea form stated, “0 per 1170.1 PC.”
The plea was certified to the superior court. Froehle again told the court he understood that if he failed to complete the CRC treatment satisfactorily, he could be sentenced to 17 and one-third years in prison. The court found Froehle in danger of heroin addiction, suspended the criminal proceedings, and issued an order of commitment referring him to CRC. The order of commitment reflected a maximum prison sentence of 17 and one-third years. Three weeks later, the court corrected the April 2 order, nunc pro tunc, to reflect that CRC proceedings were instituted under section 3051 of the Welfare and Institutions Code.2
On May 8, the court again clarified its April 2 order as follows: “CRC commitment for 6 years maximum on [count] 9. Sentence stayed on [counts] 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16 pending appeal [and] completion of sentence on [count] 9, then stay becomes permanent. If [defendant] does not complete CRC program, he is to serve the state prison sentence.” An amended order of commitment was prepared showing six years as Froehle's potential maximum sentence if sent to prison.3
Froehle was received at CRC on April 11, 1984. On May 3, 1985, he was placed on outpatient status. On September 11, Froehle was returned to CRC for violating conditions of his release by using heroin and attempting a petty theft. On July 1, 1986, Froehle was again released to outpatient status. He was returned to CRC on August 12 for violating conditions of his release by using heroin, moving without notifying his parole officer, and failing to seek or obtain gainful employment. On February 18, 1987, CRC approved another parole. By October, Froehle was back on cocaine and marijuana. On February 29, 1988, he was caught in the act of burglarizing a closed restaurant from which he took $200 in cash. On May 11, Froehle was sentenced to 16 months in state prison for that offense. On June 21, 1988, CRC notified the court that it was closing his “non-felon file ․ pursuant to Section 3109(b) [of the Welfare and Institutions] Code.”
On February 22, 1989, Froehle appeared before the judge who had referred him to CRC. Defense counsel argued Froehle's sentence had been modified to a maximum of six years, and that the modification precluded the imposition of a longer term. The court replied the six years was imposed on one count only in order to facilitate Froehle's acceptance at CRC, because “[t]hey were going to kick him out, unless we set a maximum sentence of six years.” The court told counsel that it had merely stayed sentences on the remaining counts until completion of the CRC program.
Counsel then argued the maximum possible sentence was 16 years, consisting of six years on count 9, and a total of 10 years for the subordinate terms under the authority of section 1170.95. The deputy district attorney asserted that section 1170.95, subdivision (b), eliminated the double-the-base-term limitation of section 1170.1. But he concurred that 16 years was the maximum sentence in the case.4
Finally, defense counsel asked the court to impose the middle term on count 9, citing the pre-plea probation report. The trial judge rejected this argument stating “I struck a bargain with the defendant. Gave him an opportunity. He entered into it, this plea․ [¶] The only thing that he was told is that he was going to spend a greater amount of time in the penitentiary than he actually will․ [¶] But, no. I think if he makes a bargain, he should stick to it. That was initially, you might say, an agreement between he and I, and I intend to—he didn't hold up his end of the bargain, but I intend to hold up mine.”
The court imposed a six-year sentence on count 9, the principal charge. It also sentenced Froehle to consecutive terms of five and one-third years for the remaining four first degree burglary counts, six years for the second degree burglary charges, and stayed execution of the one and one-third year sentence on count 14.
II
Froehle contends the trial court lacked jurisdiction to sentence him to a term greater than six years. He maintains that when the court entered a “clarification” of its April 2, 1984, order into the record, it essentially “modified” his sentence under the authority of section 1170, subdivision (d), which permits a recall and resentence within 120 days on the court's own motion. Froehle theorizes that since the court modified its sentence to six years, it could not impose a 16–year sentence nearly five years later.5
Respondent counters that section 1170, subdivision (d) is inapplicable inasmuch as Welfare and Institutions Code section 3201, subdivision (c), which allows the court to modify its sentence or order execution of a suspended sentence upon a defendant's return from CRC, is controlling.6 Respondent avers that the court's 16–year sentence must be affirmed because there is no equitable reason to reverse it. Because Froehle failed to take advantage of the court's leniency and its “favor” of referral to CRC, he must serve the 16 years the court imposed.
Both counsel miss the point. The court did not impose sentence at the time it referred Froehle to CRC. As reflected by the April 2, 1984 minute order, criminal proceedings were suspended on that date. The abstract of judgment verifies this. The court said it was referring Froehle to CRC pursuant to section 3051 of the Welfare and Institutions Code, but its order actually resulted in a civil commitment to CRC pursuant to section 3100.7 The fact Froehle entered CRC under a civil commitment is clear from his return to the court by CRC on June 21, 1988, pursuant to section 3109, subdivision (b) of the Welfare and Institutions Code, which governs the discharge of a person from CRC in a noncriminal case.
On the other hand, section 3051 of the Welfare and Institutions Code, by its terms, requires the imposition of sentence before commitment, and it requires the court to suspend the execution of that sentence while the defendant is at CRC. (People v. Scott (1984) 150 Cal.App.3d 910, 917–918, 198 Cal.Rptr. 124.) A return of a defendant to the court in such a case is governed by section 3053.
In this case, sentence was not imposed until February 22, 1989, when the prison term was pronounced. Although the procedure the court followed did not strictly conform to the procedures outlined in the relevant statutes, it gave Froehle the benefit of his bargain with the court. He was given the opportunity to go to CRC and overcome his narcotic addiction or serve substantial time in prison. Froehle, by his conduct, elected the latter. The sentence was properly imposed on February 22.
III–V **
The judgment of the lower court is reversed. The case is remanded with directions to resentence appellant in accordance with the views expressed in this opinion.10
I concur with sections I, II, III and V of the majority opinion.***
The court could properly sentence appellant to 16 and 1/313 years upon his return from CRC following his civil commitment. Remand is required since the court erroneously imposed 6 years for the second degree burglaries in counts 1 through 8, 12 and 15 when it was limited to 5 years for felonies other than residential burglaries. The court imposed 4 years for the residential burglaries and stayed sentence for one of the residential burglaries although it could have sentenced appellant to 5 and 1/313 years for the residential burglaries in counts 12, 11, 13 and 14. Resentencing is required when the original sentence imposed is unauthorized by law even when the new sentence may be longer than the original sentence. (People v. Jackson (1987) 192 Cal.App.3d 209, 220, 237 Cal.Rptr. 373.) Therefore, on remand, if the court elects to do so, it may impose the previously stayed term for residential burglary in count 14.
However, I respectfully dissent from part IV of the majority opinion requiring the court, notwithstanding a negotiated plea agreement, to state its reasons for imposition of the upper term on count 9 and for consecutive subordinate terms.
California Rules of Court, rule 440 states: “(a) If a plea of guilty or nolo contendere was entered pursuant to section 1192.5 and the plea was accepted by the prosecuting attorney in open court and was conditionally approved by the court, the defendant's specification of the punishment and the prosecuting attorney's acceptance thereof in open court constitutes an adequate reason for imposition of the punishment specified. [¶] (b) Whenever the prosecuting attorney and the defendant, by counsel and personally, have expressly stated that they agree or have no objection to a prison sentence of a specified length or to another specified disposition, the judge may recite their agreement or lack of objection as part of the record, and their agreement or lack of objection constitutes an adequate reason for imposition of the sentence or other disposition specified.”
Although the rule refers to the “specification of the punishment,” and “a prison sentence of a specified length,” the case law has not been so restrictive in its application of the rule. In People v. Tucker (1986) 187 Cal.App.3d 295, 231 Cal.Rptr. 671, the defendant entered a guilty plea to three sex offenses with the condition that he receive a sentence of “not more than 10 years.” (Id. at p. 296, 231 Cal.Rptr. 671.) The trial court imposed an eight-year prison term. On appeal, appellant argued the sentence was erroneous because the trial court had failed to state its reasons for imposing a consecutive sentence on one count. The appellate court affirmed. First, it noted the plea bargain was “tantamount to an agreement, or stipulation, that a 10–year prison term was within the range of reasonableness for the crimes ․ committed.” (Id. at p. 296, 231 Cal.Rptr. 671.) Second, the court held rule 440 applied to plea bargains “where, ․ the defendant has agreed to a sentence of ‘not more’ than a certain term of imprisonment.” (Id. at p. 297, 231 Cal.Rptr. 671.)
Also, in People v. Torrez (1987) 195 Cal.App.3d 751, 241 Cal.Rptr. 7, the defendant entered a guilty plea to five offenses and admitted two penalty enhancements in return for a commitment to the Department of Corrections for a diagnostic study. Based on the department's recommendation, the defendant would either be placed on probation or receive a prison sentence of no more than six years. (Id. at pp. 753–754, 241 Cal.Rptr. 7.) The department recommended prison and the court imposed concurrent terms amounting to six years in the state prison. The Court of Appeal rejected defendant's contention the lower court had erred by denying him probation and imposing the prison sentence stating, “[a]ppellant's agreement to a prison sentence not to exceed six years ‘ “constitutes an adequate reason for the imposition of the punishment specified.” ’ [Citation.]” (Id. at p. 756, 241 Cal.Rptr. 7.)
In People v. Olson (1989) 216 Cal.App.3d 601, 264 Cal.Rptr. 817, the defendant pleaded guilty to the charged offense and admitted serving three prior prison terms pursuant to section 667.5, subdivision (b), in return for a maximum six-year prison term. At the sentencing hearing, the trial judge stated he was imposing the aggravated term for the charged offense because of the prior prison terms. Defendant appealed arguing the trial court's statement violated section 1170, subdivision (b) which prohibits use of the fact of an enhancement to impose the aggravated term. The Court of Appeal affirmed citing rule 440 and the defendant's express agreement to a maximum prison term of six years. (Id. at p. 603, 264 Cal.Rptr. 817.)
The majority attempt to ignore the precedents set in Tucker, Torrez and Olson by finding there was no plea bargain in this case. However, the record supports the contrary conclusion. The Tahl form specifically states, “․ if I plead guilty ․ the court will ․ institute [C.R.C.] proceedings ․ [and] ․ I understand that if I am rejected by C.R.C. or violate parole after acceptance at C.R.C. I could be sent to state prison up to 17 1/313 [years].” The Tahl form was signed by appellant and his counsel, Deputy Public Defender James Spellman, as well as Deputy District Attorney Jim Brooks. It was filed with the court. During voir dire by the deputy district attorney, appellant acknowledged he was pleading guilty to offenses which carried a maximum punishment of 17 and 1/313 years in state prison with the understanding the superior court judge would institute C.R.C. proceedings, that he could go to prison for 17 and 1/313 years if he violated C.R.C. parole, and no other promises were being made. The plea was certified to superior court. Subsequently, the court suspended the proceedings and sent appellant to C.R.C. Appellant thanked the judge, and the court replied, “[y]ou should thank Mr. Spellman and Mr. Brooks. They are the ones that worked it out.” When the court imposed sentence, the court again referred to the plea bargain. The court said, “․ at least the District Attorney at the time of the disposition concurred in that, felt that maybe C.R.C. would stop him from committing crimes.” Later, the court iterated, “[t]he defendant did not abide by the agreement and has been sent back to court from C.R.C. and, therefore, the court is—with the plea bargain on count 9 the defendant is sentenced․” In my opinion, the fact of a negotiated plea agreement or plea bargain is clear. The “in-court agreement between the parties” that the majority holds does not exist (Maj. opn., p. 838) is explicit enough to warrant application of the authorities cited in this dissent. The record indicates the 17 and 1/313 year prison sentence was a condition of the plea bargain. The written guilty plea specified which count was the principal term, the other counts that would be used for the subordinate terms, and reflected consecutive prison terms were being imposed for the crimes. During the February 22, 1989 sentencing hearing, the trial judge made it clear the sentence imposed was based on appellant's plea bargain.
I believe this court should hold that it was not necessary for the lower court to state its reasons for imposing the aggravated term on the principal count and consecutive sentences on the subordinate counts.
FOOTNOTES
1. All statutory references are to the Penal Code unless otherwise specified.
2. Welfare and Institutions Code section 3051 provides the statutory authorization for narcotic addict commitment proceedings for a defendant upon conviction for any crime. It provides in relevant part: “Upon conviction of a defendant for any crime in any superior court ․ and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility․”
3. Although not reflected in the court's minutes or any other record for May 8, 1984, it is obvious the court's action was in consideration of Welfare and Institutions Code section 3052, subdivision (a)(2), which precludes the application of Welfare and Institutions Code section 3051 to any person “․ whose conviction results in a sentence which, in the aggregate, exclusive of any credit ․ exceeds six years' imprisonment in state prison․”
4. After the court imposed 16 years and awarded custody credits, following discussions with the clerk, and on reflection, the deputy district attorney and the court agreed that the maximum sentence was 17 and one-third years. However, after the deputy district attorney expressed a willingness to dismiss count 14 or otherwise agree to 16 years confinement, the court stayed sentence on count 14 to give effect to its judgment of 16 years in prison.
5. Section 1170, subdivision (d) reads as follows: “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.”
6. Welfare and Institutions Code section 3201, subdivision (c) provides in relevant part, “At the termination of this period of parole supervision or of custody in the California Rehabilitation Center, the person shall be returned by the Director of Corrections to the court from which such person was committed, which court shall discharge him or her from the program and order him or her returned to the court which suspended execution of such person's sentence to state prison. Such court, notwithstanding any other provision of law, shall suspend or terminate further proceedings in the interest of justice, modify the sentence in the same manner as if the commitment had been recalled pursuant to subdivision (d) of Section 1170 of the Penal Code, or order execution of the suspended sentence. Upon the ordering of the execution of such sentence, the term imposed shall be deemed to have been served in full.”
7. Welfare and Institutions Code section 3100 provides, in part: “Anyone who believes that a person is addicted to the use of narcotics or by reason of the repeated use of narcotics is in imminent danger of becoming addicted to their use ․ may report such belief to the district attorney, ․ who may, ․ petition the superior court for a commitment of such person to the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility․”
FOOTNOTE. See footnote *, ante.
10. We question our dissenting colleague's embrace of People v. Jackson (1987) 192 Cal.App.3d 209, 237 Cal.Rptr. 373 as authority for his gratuitous advice to the lower court. While Jackson restates the general rule regarding unauthorized sentences set out in People v. Serrato (1973) 9 Cal.3d 753, 764–765, 109 Cal.Rptr. 65, 512 P.2d 289, that rule has consistently been applied only where the original sentence was unlawfully lenient. The increased sentence permitted on remand is therefore one required by law.Here, by contrast, the sentence was unlawfully harsh. To allow an increased sentence after a successful appeal in such instances would place a defendant in the untenable position of having to accept an unlawful sentence for fear of receiving a greater punishment if it were successfully appealed. Moreover, it may create an unseemly appearance of retaliatory sentencing, which would not be present under the Serrato or Jackson scenarios, where a greater sentence is mandatory.
FOOTNOTE. See footnote *, ante.
SONENSHINE, Associate Justice.
WALLIN, Acting P.J., concurs.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. G007925.
Decided: August 31, 1990
Court: Court of Appeal, Fourth District, Division 3, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)