PEOPLE v. CRAWFORD (1980)

** Upon appointment by the Chairperson of the Judicial Council.

Originally charged with murder (Pen. Code, § 187; count I) and 17 counts of robbery (Pen.Code, § 211; counts II through XVIII) with armed and use allegations appended thereto (Pen.Code, §§ 12022, subd. (a); 12022.5 and 1203.06), pursuant to negotiated plea, Stefon Crawford aka Abdul Jabar and Anthony Crawford were convicted by plea of the robberies in counts II through VII. Additionally, they each admitted having used a firearm in the commission of count II. Remaining counts and allegations were dismissed in connection with the negotiated disposition and 12-year prison sentences were imposed.

They appeal with Stefon Crawford contending: “The matter must be remanded for resentencing—a stipulation to an ‘aggravated sentence’ is error as a matter of law.” Anthony Crawford joins in this claim and also contends: “Appellant must be given additional good time and work time credits.”

By petition for writ of habeas corpus, Anthony Crawford also contends that he “was deprived of the constitutional right to counsel and the effective assistance of counsel at the time of sentencing where petitioner's court appointed trial counsel relinquished his role as advocate and sided with the prosecution, stipulating there were circumstances of aggravation without first consulting with petitioner to ascertain whether there were any information the latter could offer which would tend to mitigate the crime.”

The offenses arose out of a robbery at the Bouillabaisse Restaurant in Encino on April 21, 1979, where appellants and at least two companions, each using a firearm, took personal property from its owner, Mr. Spivak and 16 patrons. The murder charge “involved the killing by police officers of another individual who was involved in the robbery.”

In pertinent part, the transcript of the negotiated disposition is as follows:

“MR. COHEN [Deputy District Attorney]: Gentlemen there has been a case settlement in this matter where the People have agreed to take the pleas to Counts II through VII each alleging a violation of Penal Code Section 211 or robbery, and it has been agreed that each of you are going to admit the personal use of the firearm as to Count II only. Is that your understanding, Stefon Crawford?

DEFENDANT STEFON CRAWFORD: Yes.

MR. COHEN: Anthony Crawford?

DEFENDANT ANTHONY CRAWFORD: Yes.

MR. COHEN: You understand, sir, that for a violation of Penal Code Section 211, robbery, the court could sentence you—and we will be asking the Court to sentence you—to the maximum term in Count II which is five years for the robbery itself. Do you understand that?

DEFENDANT ANTHONY CRAWFORD: Yes.

MR. COHEN: Stefon Crawford?

DEFENDANT STEFON CRAWFORD: Yes.

MR. COHEN: Additionally, the Court can sentence you on that initial Count, Count II, to an additional two years for the personal use of a firearm. You understand that Stefon Crawford?

DEFENDANT STEFON CRAWFORD: Yes.

MR. COHEN: Anthony Crawford?

DEFENDANT ANTHONY CRAWFORD: Yes.

MR. COHEN: That makes the maximum possible sentence in Count II seven years. Do you gentlemen understand that, Stefon Crawford?

DEFENDANT STEFON CRAWFORD: Yes.

MR. COHEN: Anthony Crawford?

DEFENDANT ANTHONY CRAWFORD: Yes.

MR. COHEN: For the six—five additional counts of robbery, the maximum the Court could give you in that instance is one year for each Count. If the Court chooses to sentence you consecutively bringing your maximum total exposure to 12 years in the state penitentiary. Stefon Crawford, do you understand that?

DEFENDANT STEFON CRAWFORD: Yes.

MR. COHEN: Anthony Crawford?

DEFENDANT ANTHONY CRAWFORD: Yes.”

Thereafter, the prosecutor asked defense counsel, “Counsel, each stipulate the matter of Count II that there is aggravation and the base term will be five years plus two for the firearm?” Counsel for Stefon Crawford said, “Yes.” Counsel for Anthony Crawford said, “So stipulated.”

As to Stefon Crawford the court stated: “[T]he Court will accept the stipulation that there is aggravation.” It thereupon selected the upper term of five years, added two years by virtue of use of a firearm, and added five years for consecutive subordinate terms for the remaining five robberies, making a total term of 12 years.

As to Anthony Crawford, the court stated: “[T]he Court accepts the stipulation and aggravates the base term of Count II.” It then immediately imposed a sentence identical to that imposed as to Stefon Crawford.

Appellants' contention that the trial court erroneously selected the upper term based upon its acceptance of the “aggravation” stipulation without orally articulating a factual basis therefor is meritorious. Statutory and decisional law as well as court rule state that the trial court must articulate the reason or reasons for its sentence selection of the upper term of imprisonment. (Pen.Code, § 1170, subd. (b); People v. Turner (1978) 87 Cal.App.3d 244, 150 Cal.Rptr. 807; Cal.Rules of Court, rule 433, subd. (c)(1); see also rule 439, subd. (c) and rule 443.)

Rule 440 provides: “If a plea of guilty or nolo contendere pursuant to section 1192.5 specified a prison term other than the middle term as the punishment and the plea was accepted by the prosecuting attorney in open court and was conditionally approved by the court, the sentencing judge may impose the specified term provided there is evidence or a factual stipulation in the record justifying that term and appropriate facts and reasons for imposing that term are set forth on the record.” (Emphasis added.)

The Advisory Committee Comment to rule 440 is as follows: “This rule does not relieve the sentencing judge of any statutory requirement that reasons be stated on the record. [¶] This rule does not affect the power of the court to reject a plea of guilty or to reject the defendant's specification of a prison term. [¶] Whether sentence is imposed on an unconditional plea of guilty, a conditional plea pursuant to section 1192.5, or a verdict of guilty, rule 433 must be complied with.”

Compliance with the rule requiring articulation of a factual basis for an aggravation finding, upon stipulation or otherwise, aids the Board of Prison Terms in performing its statutorily mandated duty to correct disparate sentences. (Pen.Code, § 1170, subd. (f).)

Respondent urges that the trial court's acceptance of counsel's purported “stipulation that there is aggravation,” without any specification of the facts, is sufficient. We reject this argument, if for no other reason than that so construed the foregoing rule would produce nothing of value for the Board of Prison Terms.

The question remains, however, whether this matter must be remanded so that the trial court can comply with the aforementioned rules. We have concluded, as impliedly did the court in People v. Blessing, (1979) 94 Cal.App.3d 835, 838-839, 155 Cal.Rptr. 780, that in this instance any risk inherent in the theoretical possibility of disparate sentences is of acceptable proportion and that meaningful intelligent review is possible without remand for articulation. “We are unwilling to engage in idle gestures or reach ridiculous results by slavish adherence to ritualistic form.” (People v. Blessing, supra, at p. 839, 155 Cal.Rptr. at p. 781.)

In light of the stipulation and all of the facts and circumstances concerning the transactionally related offenses (People v. Harvey (1979) 25 Cal.3d 754, 758, 159 Cal.Rptr. 696, 602 P.2d 396; People v. Guevara (1979) 88 Cal.App.3d 86, 92-94, 151 Cal.Rptr. 511), selection of the upper term based upon the “aggravation” stipulation was and is a “foregone conclusion.” (People v. Burke (1980) 102 Cal.App.3d 932, 945, 163 Cal.Rptr. 4.)

We need not attempt to resolve appellant Anthony Crawford's contention regarding his entitlement to “conduct credits.” We presume that in accordance with the mandate of People v. Sage (1980) 26 Cal.3d 498, as modified at 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874, he will receive appropriate credits administratively. However, in this respect we note that the reporter's transcript shows that both appellants were actually confined for 42 days prior to sentence and that the court awarded 14 days for “conduct” credit to each. The clerk's minute order judgment indicates that both served 56 days of actual custody. This is erroneous and must be corrected.

Anthony Crawford's claim that he was deprived of the effective assistance of counsel by virtue of the “aggravation” stipulation is also without merit. “The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment․” (People v. Collins (1978) 21 Cal.3d 208, 215, 145 Cal.Rptr. 686, 690, 577 P.2d 1026, 1030.) Here, appellants and the People bargained for and received vulnerability to 12-year prison terms. This is not to say, of course, that the trial court could not have imposed a lower term if, in its sole sentencing discretion, a lesser punishment was deemed appropriate. To this end, in warning appellants of the consequences of their pleas/admissions, the prosecutor advised them that the court “could” sentence them for a term of up to 12 years. Likewise, defense counsel argued for dispositions less than the negotiated vulnerability to a 12-year term.¹

In People v. Cropper (1979) 89 Cal.App.3d 716, 152 Cal.Rptr. 555, we held that a defendant was deprived of effective assistance when his counsel announced agreement with the unfavorable views advanced by the probation department. We found such an agreement to be tantamount to arguing against one's own client. Here, by contrast, the “aggravation” stipulation was an integral part of the negotiated disposition that had been agreed to by appellant personally. Counsel's failure to argue for selection of less than the upper term appears to have been a tactical decision calculated to make his request for imposition of concurrent sentences more palatable. (See fn. 1.) That he was unable to persuade the court in this respect is no indication that he was incompetent within the meaning of People v. Pope (1980) 23 Cal.3d 412, 423, 152 Cal.Rptr. 732, 590 P.2d 859.

Finally, the supplemental filing of July 3, 1980, has been read and considered and nothing therein requires that the judgment be reversed or that an order to show cause should issue.

The judgments in 2d Crim. No. 35669 are modified to show that appellants served 42 days of actual presentence custody. As so modified the judgments are affirmed.

The petition in 2d Crim. No. 37384 is denied.

FOOTNOTES

FOOTNOTE.  

1.  Counsel for Anthony Crawford argued as follows: “First, it appears he is not on parole or probation to anyone at this time. He has served time before for an incident occurring in 1969 when he was approximately 19 years old. He is 29 now. [¶] Since that time he has had no other crimes of violence and since his early several years—four years ago he has had only one matter of any real significance, and that was very shortly after he was released. [¶] We would ask because of that and because of the fact that he was employed up to the time of the incident and the rather consistent admissions throughout both this report and other reports that he was enlisted by other members of the robbery including the decedent and the one which was first sentenced to participate that that be taken into consideration and that the additional Counts in III through VII be sentenced concurrently with his base Count in Count II.”

THE COURT:* FN* Before Cobey, A. P. J., Allport, J., and Ricks, J.**