PEOPLE v. GOMEZ (1980)

Convicted of assault with intent to commit murder (Pen.Code, s 217), including a special finding that during the commission of the offense he used a firearm (Pen.Code, s 12022.5) and intentionally inflicted great bodily injury (Pen.Code, s 12022.7), defendant appeals.¹ His petition for writ of habeas corpus was heard and denied by this court on July 24, 1980 (3 Crim. 10960). On appeal he contends the court erred (1) in finding and considering that defendant procured false testimony in imposing the upper term sentence (2) in considering the firearm use circumstance in aggravation and (3) in denying defendant good time/work time credit for presentence custody.

Defendant's conviction stems from his shooting of Steven Ceja, an act which left Ceja paralyzed from the neck down. Witnesses placed defendant at the scene; one witness and the victim identified defendant as the assailant. Defendant denied any participation in the incident, asserting he spent the evening at the home of his mother-in-law. His alibi was corroborated by his wife and his sister-in-law.

I

In sentencing defendant to the upper term for assault with intent to commit murder, the court cited numerous circumstances in aggravation.² One such circumstance was “(T)he Court finds that indeed the defendant did secure testimony that was directly contrary to the truth both as this Court perceived it and as the jury found, with respect to more than one witness.” Defendant's objection to the use of such a circumstance is twofold: (1) he is being punished for a crime of which he was neither tried nor convicted and (2) he received extra punishment for exercising his right to present a trial defense.

The sentencing rules which a trial court is constrained to follow in determining whether to impose the upper, middle, or lower base term include as a factor of aggravation that “(t)he defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process.” (Cal.Rules of Court, rule 421(a)(6).)

While it is unclear whether the trial court's reference was to perjured testimony by defendant or that of witnesses called by him, for purposes of our analysis herein, the distinction is irrelevant, for each was a crime of which defendant was neither charged nor convicted.

The use of perjury by a defendant on the witness stand as a sentencing consideration has been addressed by the courts from two aspects: (1) as additional punishment based on the court's finding that defendant committed perjury during the trial, and (2) in the denial of probation or the imposition of a longer sentence because perjury or subornation of perjury by a defendant reflects adversely on his rehabilitative prospects.

The imposition of additional punishment for uncharged and unconvicted perjury clearly violates due process. (See Scott v. United States (D.C.Cir.1969) 419 F.2d 264; Poteet v. Fauver (3 Cir. 1975) 517 F.2d 393.) These cases appear to preclude any sentencing use of such perjury. However, an opposing line of authority permitted the use of false testimony as a relevant factor in determining a defendant's amenability to rehabilitation. (See United States v. Hendrix (2nd Cir. 1974) 505 F.2d 1233; United States v. Cluchette (9th Cir. 1972) 465 F.2d 749.) This apparent conflict was resolved by Grayson v. United States (1978) 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582, wherein the court upheld as against a due process challenge the authority of the trial court to take into account defendant's trial perjury in evaluating the defendant's character and personality and his prospects for rehabilitation. The Court concluded that a defendant's willingness to commit perjury “may be deemed probative of his prospects for rehabilitation,” and rejected defendant's contention that such a sentence constitutes punishment for the crime of perjury for which he had not been indicted, tried or convicted by due process. (Id., at pp. 52-54, 98 S.Ct. at 2616-2617.)

The Fourth Appellate District has considered the same issue in In re Perez (1978) 84 Cal.App.3d 168, 148 Cal.Rptr. 302, and adopted the Grayson and Hendrix reasoning, stating: “We agree with the Grayson and Hendrix courts that the manipulative defiance of the law demonstrated by perjury and subornation of perjury is not conducive to an optimistic prognosis regarding a defendant's rehabilitation. Moreover, we are satisfied that the proper consideration of a defendant's flagrant untruthfulness under oath as one element in determining the defendant's amenability to rehabilitation is not violative of due process under the California Constitution.” (P. 172, 148 Cal.Rptr. 302.)

The Perez case, supra, concerned a conviction of misdemeanor drunk driving; the sentencing rules of California Rules of Court apply only to criminal cases in superior courts in which the defendant has been convicted of one or more offenses punishable as a felony. (Cal.Rules of Court, rule 403.)

The caveat of the Grayson/Perez cases is that additional punishment may not be imposed for the independent substantive offense of perjury; but a sentencing judge may consider such perjury or subornation thereof as long as such consideration is limited to its reflection upon the character of the defendant and his prospects for rehabilitation. (Grayson v. United States, supra, 438 U.S. at pp. 52-53, 98 S.Ct. at 2616-2617; In re Perez, supra, 84 Cal.App.3d at pp. 171-173, 148 Cal.Rptr. 302.) The Perez court posits further safeguards: “First the sentencing judge must be very sure³ that the testimony contained willful and material falsehoods, and second, the judge must not confuse the permissible evaluation process with the impermissible practice of increasing the sentence in order to punish for perjury.” (P. 172, 148 Cal.Rptr. 302; emphasis added.)

We submit this is semantical sophistry. If a particular factor such as unconvicted perjury, is the reason for imposing an aggravated sentence of six years instead of a middle term of four years, the defendant is receiving additional punishment irrespective of the sentencing words employed or whether the defendant is a sorry candidate for rehabilitation.⁴

In our view, the only context in which such judge found perjury could be a valid consideration in the sentencing process would be in the granting or denial of probation, the vestigial remains of our rehabilitative concept of penology under California's Determinate Sentencing Law. Probation is a rehabilitative program in which a person's character, personality and amenability to maintaining a crime-free status in society is important. We suggest the criteria affecting probation found in California Rules of Court, rules 414 and 416 are the appropriate receptacles for false testimony.⁵

Defendant further contends the Determinate Sentencing Law prohibits rehabilitation concepts from entering into the sentencing decision. He cites Penal Code section 1170, subdivision (a)(1), which provides: “The Legislature finds and declares that the purposes of imprisonment for crime is punishment,” as an unequivocal statement of purpose that limits a sentencing court to criteria pertaining only to punishment.

Our finding that due process prohibits the imposition of an additional sentence for uncharged perjury is dispositive of the issue herein and it is unnecessary for us to determine if the Legislature really meant what it plainly says that the purpose of imprisonment for crime is punishment. We note, however, that the emphasis is on imprisonment, which is not the only sentencing alternative in other than exceptional and specific cases as use of a firearm.

In imposing the upper term, the trial court articulated a number of reasons for aggravating the sentence (see fn.2). We are unable from the record to determine the significance placed by the court on the finding of trial perjury. Having determined this is a constitutionally impermissible sentencing factor, we must therefore remand for resentencing.

II

In addition to finding defendant guilty of assault with intent to commit murder, the jury made a special finding that, during the commission of the offense, defendant used a firearm (Pen.Code, s 12022.5) and intentionally inflicted great bodily injury upon his victim (Pen.Code, s 12022.7). At sentencing, only the enhancement for the great bodily injury finding was imposed; the firearm use, pursuant to Penal Code section 1170.1, subdivision (d), was stricken. In ordering the upper term, however, the court cited defendant's use of a firearm as one of several aggravating circumstances. Defendant contends section 1170.1, subdivision (d), prohibits punishing him for both firearm use and infliction of great bodily injury. We disagree.

Penal Code section 1170.1, subdivision (d) provides in part: “When two or more enhancements under sections 12022, 12022.5, and 12022.7 may be imposed for any single offense, only the greatest enhancement shall apply ” Contrary to defendant's contention, “punishment” for both firearm use and infliction of great bodily injury is not prohibited; only enhancement of a prison sentence for both of these facts is prohibited. California Rules of Court, rule 421(a) (2) enunciates as one circumstance in aggravation the fact that defendant was armed with or used a weapon in the crime “whether or not charged or chargeable as an enhancement.” (Emphasis added.) “The rule makes it clear that a fact charged and found as an enhancement may, in the alternative, be used in aggravation.” (Judicial Council of Cal., Annual Rep. (1978) p. 23.)

To reach a proper sentencing decision, the court is entitled to consider the defendant's prior history and record, and, in addition, all of the circumstances surrounding the crime or crimes of which defendant has been found guilty. (People v. Guevara (1979) 88 Cal.App.3d 86, 92-93, 151 Cal.Rptr. 511; see People v. Cheatham (1979) 23 Cal.3d 829, 835-837, 153 Cal.Rptr. 585, 591 P.2d 1237.) “Circumstances” include “practically everything which has a legitimate bearing” on the matter in issue. (Guevara, supra, at p. 93, 151 Cal.Rptr. 511.) A defendant's use of a firearm is a significant “circumstance” which the Legislature did not intend to be ignored. (See e.g., Pen.Code, ss 1203.06, 12022.5); consideration of such fact as a circumstance in aggravation was proper (see People v. Hawk (1979) 91 Cal.App.3d 938, 941; fn.2, 154 Cal.Rptr. 773).

III

If otherwise eligible, defendant's claim of entitlement to behavior and participation credits attributable to his presentence time in local custody is valid. (People v. Sage (1980) 26 Cal.3d 498, mod. 127 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 (as modified).) The computation of such conduct credits is, with respect to a defendant who has already been sentenced, an administrative function to be performed by the Department of Corrections. (People v. Sage, supra; see also Cal.Dept. of Corrections, Admin.Bull. No. 80/11.)

The criminal conviction is affirmed. The cause is remanded to resentence defendant in accordance with the views expressed herein.

On Rehearing

Be the Court:

Respondent's petition for rehearing is denied. Appellant's petition for rehearing is granted, and the opinion filed December 22, 1980, is vacated, set aside and the cause resubmitted.

FOOTNOTES

1.  Defendant was also convicted of assault with a deadly weapon (Pen.Code, s 245, subd.(a)), and that during the commission of this offense he intentionally inflicted great bodily injury (Pen.Code, s 12022.7). Hereafter, all statutory references are to the Penal Code unless otherwise indicated.

2.  The court cited the following circumstances in aggravation:“(T)he Court is satisfied, one, that the defendant was indeed both armed with and used a weapon at the time of the commission of the crime; two, with respect to addressing the plan question, the Court feels there was no preconceived plan in the sense that he set out from home early in the day to utilize the weapon, however, there was the uncontradicted testimony, or be it given with the defense's alibi as it was, it was difficult to produce evidence to the contrary that whatever altercation started with Mr. Ceja was deliberately stopped and terminated, and that everybody was going their own free way of their own volition, and to the extent of planning on utilization of a rather tricky plan in the period of time it would take to walk from the residence to the automobile while the other people were disbursing, there was indeed such time for at least some deliberation, which the Court would find undoubtedly did take place; three, that the victim, given with his back turned and leaving, and all had reason to believe that any question with regard to any further altercation terminated absent some conduct on the part of the defendant, that this victim was indeed particularly vulnerable; four, the Court finds that indeed the defendant did secure testimony that was directly contrary to the truth both as this Court perceived it and as the jury found, with respect to more than one witness; and finally, with respect to a specification or reason, this defendant was engaged in a pattern of conduct which indicates a tendency toward violence and a tendency toward being a serious danger to society, and the Court in that regard not only relies upon those portions of the probation office records that were in evidence, other than those that were stricken and excluding the parts stricken, but on the defendant's own testimony at trial as to his own physical ability to handle himself in a fight, and the balance of the testimony that he gave. Consequently the base term will be six years.” (Emphasis added.)

3.  What is the burden of very sure-clear and convincing beyond a reasonable doubt?

4.  In Perez, the court states (at p. 173, 148 Cal.Rptr. 302): “Because the consideration of perjury in the appraisal of a defendant's character runs the risk of being improperly expanded to support the imposition of punishment for the perjury itself, we think it is incumbent upon a trial judge who injects the subject of perjury into the sentencing process expressly to state the sense in which it has been considered, or such sense should otherwise clearly appear from the record,” which supports the inference that it isn't what you say (and perforce do), it's how you say it that's important.

5.  We note in Grayson v. United States that the Court in reaching its conclusions, traced and analyzed the penological history of federal sentencing, under which a felon generally becomes eligible for parole after serving one-third of his minimum term. The United States Parole Commission determines a release date based on an inmate's rehabilitative progress.

CARR, Associate Justice.

EVANS, Acting P. J., and BLEASE, J., concur.