IN RE: Daniel CAUDILLO (1979)

This petition for habeas corpus is filed on behalf of Daniel Caudillo. It involves the issue of the power of the Community Release Board (CRB) to rearrest a person duly released on parole in order to extend his previously determined term of confinement by a serious offender hearing pursuant to Penal Code section 1170.2, subdivision (b), held after the terminal date established by the statute for the conduct of such hearings. In particular, the case at bench raises the question of whether an exception to the statutory terminal date should be judicially created to accommodate the situation of reviewing court action which strikes an “enhancement” provision from a sentence.

We conclude that, where as here: [1] the CRB was aware of the pendency on appeal of the question of the validity of the enhancement; (2) the CRB set the prisoner's term in a fashion providing for its reduction if the enhancement were determined to be invalid; (3) the court reviewing the conviction struck the enhancement from the judgment and affirmed it as modified rather than reversing the judgment and remanding the matter for resentencing; and (4) the prisoner fully complied with the terms of his parole after his original release, no exception to the terminal date permitting the prisoner's rearrest for the purpose of holding a hearing to extend his term may be judicially created.

We hence grant the petition for writ of habeas corpus.

Preface

We preface our discussion by the necessary notation that the petition for habeas corpus which is here involved is not before us in a vacuum.

Daniel Caudillo was convicted of a particularly repulsive series of crimes including burglary, kidnapping, forcible rape, sodomy and oral copulation, and robbery. He brutalized his female victim unspeakably. Action of the CRB in setting his term of imprisonment at seven years subject to reduction for good behavior and other credits became an issue in the 1978 gubernatorial campaign.^[FN1] The decision of our Supreme Court (People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274) which held that as a matter of law the brutalization did not constitute the infliction of great bodily injury as the term is used in the statute requiring an enhancement was itself a widely debated subject in the 1978 retention election of several justices of the California Supreme Court.

The detail of the crime and the political history must be subordinated so that they do not in themselves influence a result here which creates a precedent that may some day be applied unjustly to someone else. (See dissenting opinion of then Judge now Mr. Justice Stevens in United States v. Barrett (7th Cir. 1975) 505 F.2d 1091, 1114-1115.) We therefore go where the facts and law^[FN2] lead us.

Conviction and Original Sentence

A jury found Daniel Caudillo guilty of kidnapping, forcible rape, sodomy, oral copulation, first degree robbery, and first degree burglary. It found, also, that Caudillo was armed with a deadly weapon during the commission of those offenses and that in the course of the burglary he inflicted great bodily injury upon his victim. (People v. Caudillo, supra, 21 Cal.3d 562, 566-567, 146 Cal.Rptr. 859, 580 P.2d 274.) The trial judge sentenced Caudillo to state prison for each offense, ordering that the sentences be served concurrently. Because the governing statute at the time of judgment specified the longest of the terms to be that for burglary as enhanced by the great bodily injury finding, the court stayed execution of the sentences except that for burglary. (Id., at p. 567, 146 Cal.Rptr. 859, 580 P.2d 274.) As the California indeterminate sentence law stood at the time the trial court imposed its sentence, Caudillo faced a minimum term in prison of 15 years with the potential of imprisonment for life. (Pen.Code, s 461, before its amendment in 1976.)

Caudillo appealed his conviction, contending, along with other assertions of error, that the record did not support the trial court's finding of infliction of great bodily injury in the commission of the burglary. Division Five of this court affirmed the judgment. Our Supreme Court granted hearing.

Reduction in the Sentence by the Determinate Sentence Law

Caudillo entered state prison on November 25, 1975. Effective July 1, 1977, the Legislature replaced the indeterminate sentence law with a new Determinate Sentence Law. (Pen.Code, ss 1170-1170.6.) The new law was made expressly applicable to persons imprisoned for offenses committed prior to its effective date. (Pen.Code, s 1170.2.) The law specified a “middle term” of three years imprisonment for first degree burglary with a lower term of two years upon a finding of mitigating circumstances and an “upper term” of four years in the event of a finding of circumstances in aggravation. (Pen.Code, s 461, as amended in 1976.)

The new law required that Caudillo's term be recomputed to the “middle” three-year term for burglary enhanced by the addition of one year by reason of the sentencing court having found to be true the allegation that he used a deadly weapon in the commission of his crime, and three more years because of the trial court finding that he inflicted great bodily injury upon his victim. (Pen.Code, s 1170.2, subd. (a).) As so recomputed, the total term thus became seven years. The seven-year term does not represent the actual period for which a prisoner is incarcerated. The period of imprisonment is reduced by “credits” for “good behavior and participation.” (Pen.Code, s 1170.2, subd. (d).)

Another provision of the Determinate Sentence Law permits the term as so calculated to be increased. Subdivision (b) of Penal Code section 1170.2 permits the CRB, “guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances” after the effective date of the law, to impose a term up to the maximum allowed in the prior law. The longer term may be established where: (1) at least two members of the CRB, after reviewing the prisoner's file, determine that due to factors specified in the subdivision the prisoner should serve a term longer than the term as normally calculated; (2) the prisoner is afforded the opportunity of a hearing with counsel before at least two members of the CRB; and (3) the prisoner is informed in writing of “the extraordinary factors specifically considered determinative and on what basis the release date has been calculated.” The subdivision requires that the CRB be “guided” by “the necessity to protect the public from repetition of extraordinary crimes of violence against the person” as “the paramount consideration.”

Proceedings Before the CRB

After reviewing Caudillo's file, two members of the CRB determined, on July 15, 1977, that he should serve a term longer than that normally calculated. On April 6, 1978, the CRB, acting on the screening decision, held a “serious offender hearing” to recalculate Caudillo's term. Factors specified in subdivision (b) of Penal Code section 1170.2 to permit the imposition of a term longer than the normal one were found to be present. Because of those factors, the CRB increased the “base term” from three to four years. It increased the term by three more years because of the trial court finding of infliction of great bodily injury and its independent conclusion based upon the file that the facts supporting the allegation were true. While noting that the trial court had also found that Caudillo used a deadly weapon in the commission of his crimes, the CRB did not include a further one year enhancement for that finding because in its opinion to do so would be “dual use of the facts.”

The ruling of the CRB states: “Panel heard counsel's presentation re pending California Supreme Court consideration of the application of GBI enhancement to prisoner's case. Any legal relief that may result will be the basis for DSL (Determinate Sentence Law) recomputation as may be appropriate through regular administration channels. . . .” The CRB then set Caudillo's pre-parole term at 84 months the upper base term of four years as enhanced by the great bodily injury finding only.

On May 15, 1978, the CRB ordered a rehearing for failure of its original determination to include enhancement for the use of a deadly weapon. About June 27, it received from the Attorney General a copy of the not yet final Supreme Court opinion in People v. Caudillo, supra, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, which ordered that the finding that Caudillo had inflicted great bodily injury be stricken from the judgment, that the kidnapping conviction be reversed, and that the judgment as modified by striking the great bodily injury enhancement be otherwise affirmed. On July 11, the CRB reheard the serious offender proceeding.

At the rehearing and because it concluded that a “total time assessment of seven (7) years was deemed appropriate,” the CRB reversed its previous determination that Caudillo was a serious offender.^[FN3] It calculated his term pursuant to subdivision (a) of Penal Code section 1170.2, the normal recalculated term of a person sentenced under the indeterminate sentence law without reference to a serious offender hearing. As recalculated on July 11, 1978, Caudillo's term of imprisonment prior to his parole release date was a base “middle” term of three years, plus one additional year for use of a deadly weapon, plus three more years because of the trial court finding that he had inflicted great bodily injury. The total term was thus seven years subject to reduction for various credits.

Because Caudillo's term was set on July 11 pursuant to subdivision (a) of Penal Code section 1170.2, it could include only enhancements “imposed by the court” and could not include enhancements independently determined by the CRB. (Cal.Admin. Code, tit, 15, s 2153.) The provision for administrative recalculation in the event of Supreme Court relief expressed in the earlier serious offender sentence established on April 6 was thus incorporated by the CRB's rule in the sentence established at the July 11 rehearing as a matter of law.

On July 27, 1978, the superior court, acting pursuant to the remittitur from the Supreme Court, dismissed the charge of kidnapping and modified its judgment to strike from it the finding that Caudillo had inflicted great bodily injury upon his victim.

On August 30, 1978, an employee of the Department of Corrections prepared a memorandum asking whether in light of the striking of the great bodily injury finding the matter should be reviewed by the CRB so that either a new serious offender hearing could be held or the CRB could “sign off” on the matter prior to Caudillo's release. On September 12, the Department of Corrections, acting pursuant to its regulations and the order issued by the CRB, administratively recomputed the date of Caudillo's release on parole to September 22, 1978. The Department of Corrections did not inform the CRB of its administrative recomputation. Its failure to do so was in accord with Department of Correction rules and CRB and Department of Corrections practice followed from the time the Determinate Sentence Law became effective.

Caudillo's Release and Rearrest

Caudillo was released on September 22, 1978. On October 24, 1978, chief counsel for the CRB received a telephone call from a reporter for the Sacramento Bee inquiring whether Caudillo had been released from prison. The executive officer for the Community Release Board and the chief deputy director of the Department of Corrections “decided to have . . . Caudillo arrested and returned to prison on the term he had not completed serving until a panel of CRB members could review his case and either set a new term pursuant to Penal Code Section 1170.2(a) or rehear his case pursuant to Penal Code Section 1170.2(b).”

The directive to rearrest Caudillo was transmitted through the public information officer of the CRB. On October 24, 1978, Caudillo was rearrested and booked at the Los Angeles County Jail.

The Petition for Habeas Corpus

On October 27, Caudillo filed the petition for habeas corpus which is now before us. No initial hearing pursuant to Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 was ever held concerning the termination of Caudillo's liberty on parole. We requested a preliminary response from the Attorney General.

On November 1, 1978, we issued our order directing the CRB to show cause why Caudillo should not be released on his parole. We directed that the CRB's written return be filed by November 10 and set the matter for hearing on November 28, 1978. Because the Attorney General's preliminary response disclosed no reason apparent to us why the relief sought by Caudillo's petition would not be granted, we, with one judge dissenting, ordered Caudillo's immediate release from custody and on the terms of his original CRB parole pending hearing on the OSC. (See also Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.)

The Attorney General petitioned the California Supreme Court for an extraordinary writ to vacate our order. On November 3, 1978, one justice of the California Supreme Court executing the document as “Acting Chief Justice”^[FN4] issued an order staying enforcement of our order to show cause and order for release pending hearing on it. Because the order staying enforcement of our OSC remained in force on November 28, the date we had set for the hearing on it, we placed the matter off calendar. On November 29, the Supreme Court issued its order transferring the “proceeding” to that court, vacating the order for Caudillo's release pending hearing on the order to show cause, and retransferring the matter to us. Freed of the stay order, we placed the hearing on calendar.

Merit of the Petition

Penal Code section 3052 vests power in the CRB “to establish . . . rules and regulations under which prisoners committed to state prisons may be allowed to go upon parole . . . .” Rule 2355 of the CRB (Cal.Admin. Code, tit. 15, s 2355) requires that an indeterminate sentence law prisoner be placed upon parole “when all the provisions of these rules and any applicable department (of Corrections) regulations have been met.” Regulation 3500 of the Department of Corrections (Cal.Admin. Code, tit. 15, s 3500) states: “Release on parole for inmates sentenced pursuant to section 1168 of the Penal Code . . . will occur when the provisions set by the (CRB) are met.”

Penal Code section 1168 deals in part with prisoners sentenced before the effective date of the Determinate Sentence Law and hence to an indeterminate term.^[FN5] Amplifying section 1168, Penal Code section 1170.2 requires that the prior indeterminate sentence be replaced with a pre-parole term established in accord with the provisions of the new Determinate Sentence Law.

Penal Code section 1170.2 provides specifically for the manner of establishing the pre-parole term of prisoners previously sentenced under the prior law. Rule 2145 of the CRB (Cal.Admin. Code, tit. 15, s 2145), states “ . . . the prisoner shall be released on the earlier of (the calculated Determinate Sentence Law release date or his prior indeterminate sentence release date).”

As noted, the result of application of section 1170.2 to Caudillo resulted first in an aborted determination of a pre-parole term of imprisonment of seven years expressly subject to reduction in the event the Supreme Court should grant relief from the great bodily injury enhancement from the judgment. The action of the CRB upon rehearing the original determination set the term again at seven years but this time, because of the language of subdivision (a) of section 1170.2, also subject to a three year reduction as a matter of law in the event the previously expressed contingency of Supreme Court action occurred.

The Supreme Court ordered the great bodily injury finding stricken from the judgment. It did not return the matter to the trial court so that it might reexercise its sentencing discretion and possibly modify the scheme of sentences imposed so that the sentence carried into execution was that for rape, a crime carrying a term greater than burglary (Pen.Code, s 264, as amended in 1976) with other sentences consecutive to the extent permitted by Penal Code section 654.

When the Supreme Court ordered the great bodily injury finding stricken from the judgment, Caudillo's term prior to parole was reduced from seven to four years by reason of Penal Code section 1170.2, subdivision (a), the statute under which the CRB ordered him confined. Because by September 22, 1978, Caudillo had served the four year term once he was given the benefit of the statutory “credit” against the term to which he was entitled, rules 2145 and 2355 of the CRB and regulation 3500 of the Department of Corrections required that he be released on parole. He was released on parole on that date.

Thus, unless some applicable provision of law permits a parolee to be retaken into custody after he is released in accord with governing statutes and rules and regulations adopted pursuant to the statutes, Caudillo's rearrest was illegal and his continued physical confinement is contrary to law.

The Attorney General, representing the CRB, points to no such applicable provision of law in his brief and admits in oral argument that he can find none. The CRB's contentions are in essence that: (1) its course of action was a mistake, which it as an administrative agency can correct; and (2) a reviewing court modification in a judgment of conviction which strikes an enhancement provision of itself permits the CRB to hold a new serious offender hearing to extend what would otherwise be the resulting term of pre-parole confinement.

The CRB's argument that it was authorized to rearrest Caudillo so that it could convene a new serious offender hearing runs afoul of the facts and the law.

The record shows no error in the manner in which the CRB proceeded to an eventual determination that Caudillo was not a “serious offender” and was hence to be sentenced under subdivision (a) of Penal Code section 1170.2. It shows no action of the CRB contrary to the scope of discretion vested in it. (See In re Greenwood (1978) 87 Cal.App.3d 777, 786-787, 151 Cal.Rptr. 223.)

The CRB characterizes its action releasing Caudillo on parole as a mistake only on the theory that its action as taken was not intended to reduce Caudillo's term to less than seven years. So characterized, the “mistake” is not the sort of board error that may be corrected after the board's power, as expressed in the statute and its own regulations, has expired.^[FN6] Our Supreme Court has dealt with a similar argument asserted by the Adult Authority to justify its action in extending a prisoner's term after he had been released pursuant to an administrative determination of the Authority. The high court said in reference to the argument: “No exception to (the) mandate (of Penal Code section 2940 that a prisoner be released upon the expiration of his term as fixed or refixed by the Authority) exists for actions taken under an erroneous interpretation of either the applicable law or the provisions of a judgment. Only if the discharge were unauthorized by law, as in the case of a prisoner undergoing a life sentence, could the Authority continue to assert jurisdiction.” (In re Haygood (1975) 14 Cal.3d 802, 812, 122 Cal.Rptr. 760, 767, 537 P.2d 880, 887.) While the Determinate Sentence Law has resulted in the repeal of Penal Code section 2940 along with the bulk of the remainder of the law dealing with the now defunct Adult Authority, the substance of section 2940 is now included in CRB rules 2145 and 2355, Supra, and Department of Corrections regulation 3500, Supra, to the extent that the substance is relevant to the context of the case at bench. (See People v. Supreme Court (Gonzales) (1978) 78 Cal.App.3d 134, 144 Cal.Rptr. 89; the CRB has succeeded to the power of the Adult Authority.) The rules and regulation require that the prisoner be discharged on parole after he has served the administratively determined period. Neither the statutes, rules, nor regulations contain any provision for further exercise of the jurisdiction of the CRB to refix the term after the prisoner has been released on parole except for the instance in which he violates its terms.

If we were to assume despite our Supreme Court's decision in Haygood that the CRB has authority to retake physical custody of a prisoner released on parole to correct an erroneous application of the law or of the provisions of a judgment, the record here compels the conclusion that Caudillo was not released because of the presence of either of those factors. The CRB was aware that the Supreme Court was considering the validity of the enhancement; it recited that fact in its first ruling. The CRB was aware of the actual, although not then final, decision of the Supreme Court when it elected on rehearing to proceed by assessing the normal “middle” term as enhanced rather than the serious offender term; it had been furnished a copy of the opinion. Scores, if not hundreds, of cases have now gone by the boards in which enhancements have been stricken from judgments. In every one of them, Penal Code section 1170.2, subdivision (a) has required that the addition to the term resulting from the stricken enhancement be removed. It strains credulity to give serious consideration to the CRB's contention that the members of the CRB, women and men appointed to positions of high quasi-judicial trust for the very expertise involved in their determination, would ignore the information in their possession or be unfamiliar with the simple, commonly applied governing legal principle.

Still another proposition compels the conclusion that Caudillo was illegally arrested and is unlawfully detained.

As originally operative, Penal Code section 1170.2, subdivision (b) provided that any serious offender hearing “shall be held before April 1, 1978, or within 120 days of receipt of the prisoner, whichever is later. The (Community Release) board may by resolution extend this period an additional 90 days. However, such resolution shall have no force or effect if vetoed by resolution of either house of the Legislature.” In 1978, the Legislature enacted an amendment to subdivision (b) of section 1170.2. That amendment states that a serious offender hearing “shall be held before October 1, 1978, or within 120 days of receipt of the prisoner, whichever is later.” The 1978 amendment was enacted as an “urgency measure” so that it became effective immediately upon the date it was signed by the Governor. (Stats.1978, ch. 329, s 1.) The Governor signed the bill into law on June 30, 1978.

Thus, unless some exception is implied in subdivision [b] of Penal Code section 1170.2 as the subsection was amended in 1978, the Community Release Board was without power to hold a serious offender hearing to increase Caudillo's term after October 1, 1978. Caudillo was “received” as a prisoner in 1975, so that the 120-day period expressed as an alternative terminal date^[FN7] for holding the hearing had long expired before Caudillo was rearrested. If the CRB was without power to hold a serious offender hearing, it follows that it was without power to rearrest Caudillo and to restrain his liberty solely for the purpose of holding the hearing.

The CRB argues in opposition to the result seemingly compelled by the face of the statute that: (1) the October 1, 1978, deadline is merely directory and not a limitation upon the power of the board to hold serious offender hearings; and (2) the 120-day period must be construed to begin to run anew when the judgment under which a prisoner is confined is modified because of action of a reviewing court.

Statutory history compels the conclusion that the time limits set by the Legislature within subdivision (b) of Penal Code section 1170.2 are mandatory.

“(T)he ‘directory’ or ‘mandatory’ designation (of legislation) . . . simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.” (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 255-256, 559 P.2d 606, 610-611.) Here the statute must be construed as requiring CRB action within the time limits specified if that action is to be valid in extending the term of confinement of a prisoner. As originally enacted, the subdivision expressly permitted the CRB by regulation to extend the time limit for an additional period. The original legislation expressed an intent that the authority to extend granted the CRB was a limited one by retaining the power of either house of the Legislature to veto the regulation of extension. When, in 1978, the Legislature removed the power to extend the period for serious offender hearings and substituted a fixed cutoff date, it clearly announced its intent that the hearings could not be held after October 1, 1978. By making the legislation an urgency measure so that it became effective immediately, the Legislature emblazoned its intent in neon of Las Vegas proportions.

We hence conclude that unless the 120-day period which runs from “receipt” of the prisoner began anew upon the Supreme Court's action in striking the great bodily injury enhancement from the judgment or upon Caudillo's rearrest or unless there is an implied exception to the October 1 cutoff, the CRB is without power to conduct a new serious offender hearing to extend his sentence.

On the facts presented here, a new 120-day period did not commence.

It is conceivable that action of a reviewing court may affect a judgment in a fashion which results in a prisoner being “received” anew by the CRB. If, for example, the Supreme Court in People v. Caudillo, supra, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, had remanded the matter to the trial court for resentencing, there would be an arguable claim that, once the new sentence was imposed and Caudillo remanded to the CRB to serve it, he would be again received. Here, however, the Supreme Court did not remand the matter for resentencing despite the fact that had it done so the trial court could have recouped a portion of the period lost through the striking of the great bodily injury enhancement by vacating its stay of execution of its sentence for rape (Pen.Code, s 264, as amended in 1976) and possibly by imposing consecutive sentences. Without vacating the trial court stay of execution of sentences on convictions for crimes other than burglary, the Supreme Court ordered the enhancement stricken and the original sentence carried out as so modified. We must assume that the high court was aware of the consequences of its action in light of the Determinate Sentence Law and that it considered them in crafting its disposition. (But cf. Johnson, The Accidental Decision and How It Happens (1977) 65 Cal.L.Rev. 231.) We hence must accept the high court opinion as not imposing a new sentence upon which Caudillo could constructively be received afresh by the CRB.

It is conceivable that an exception to the October 1, 1978 cutoff date for serious offender hearing might be implied in the statute to accommodate action of reviewing courts that could not reasonably have been anticipated by the CRB when it established a term. Here, however, the action of the Supreme Court in People v. Caudillo was clearly anticipated. The original action of the CRB recites the possibility that the high court might determine that the great bodily injury enhancement was invalid and provides for ministerial action to take the effect of the action into account should the contingency occur. The action of the CRB on rehearing occurred after the board had been furnished with a copy of the Supreme Court opinion.

We thus are presented with a situation in which the governing statute on its face states that the authority of the CRB to conduct a serious offender hearing had terminated by the time Caudillo was rearrested. We are faced with a situation in which the record supplies no factual basis for so much as considering the only possible means by which the strictures of the face statute may be avoided. In that situation, the CRB was without authority to order Caudillo's rearrest so that it could conduct an untimely serious offender hearing. While the CRB order for Caudillo's rearrest also states it is for the purpose of recomputing his term without reference to a serious offender hearing, that theory of propriety of the CRB's action is not argued by the CRB in this proceeding. The Attorney General disclaimed the theory in response to a question at oral argument.

Conclusion

It follows then that the controlling statute and the action of the Community Release Board prior to Caudillo's release on parole compel the conclusion that his rearrest was illegal and his continued confinement contrary to law. It may be that, as argued by the CRB, a potentially dangerous person has been set at large in the community. There would be a far greater and longer range danger to a government of law were we to ignore compelling principle and the record to avoid an otherwise compelled result.

The writ of habeas corpus is granted. Respondent is ordered to discharge petitioner from custody and on parole when this judgment becomes final.

On November 1, 1978, this court issued an order directing the Community Release Board (CRB) to show cause why Caudillo should not be re-released on parole following his rearrest. I concurred in the “show cause” portion of the order but dissented to that portion of the order which ordered Caudillo's immediate release from custody because (1) the CRB's preliminary response made a colorable showing that by reason of an administrative error he was erroneously released by the Department of Corrections “without the permission of or the knowledge of the Community Release Board” as required by Penal Code section 1170.2, subdivision (e); (2) his immediate release would tend to prejudge the purpose of the OSC hearing itself; and (3) his detention was no more “illegal” than that of other persons in custody who have on file “writs” and “appeals” awaiting appellate court determination.

Following a thorough briefing and oral argument, I reluctantly concur with the majority opinion that the facts and law as accurately set forth in the majority opinion compel that the writ of habeas corpus be granted and that an order issue directing his discharge from custody for placement back on parole when this judgment becomes final.

My reluctance at concurrence stems from the early release from imprisonment of Caudillo in light of his heinous crimes.^[FN1] The convergence of the actions of at least three governmental agencies involved in our criminal justice system^[FN2] has had the net result of affording Caudillo a “free” robbery and forcible rape, sodomy and oral copulation without paying any penalty whatsoever for committing those felonies and thereby reducing the deterrent effect of criminal law.

The majority opinion in its footnote 2 correctly states that we are bound by the Supreme Court decision of People v. Caudillo, supra, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274. However, whether or not this is an appropriate forum to criticize it and the actions of other elements of government which have converged to bring on such a result is a matter of opinion. We uniquely have a bird's-eye overview of the entire case. If this is not the appropriate forum to voice constructive criticism, what is? Moreover, as an independent constitutional court of review with individual First Amendment rights, we have both the authority and the duty to attempt to improve our criminal justice system by constructive criticism. In addition, rule 976(b) of the California Rules of Court which sets forth the criteria for publication of opinions implicitly sanctions such criticism in that it authorizes publication of those opinions which “(3) (Criticize ) Existing law.” (Italics added.)^[FN3]

The general principle of a determinate sentence law to help eliminate the problem of disparity in sentencing has much merit. However, in my view the determinate sentence law as presently drafted is an absolute “Frankenstein.” Its “Rube Goldberg” complexity has unnecessarily added additional time required for sentencing in our already congested trial courts and adds an additional overload to the appellate courts by providing for sentence review. It has also, in my view, unwisely reduced prison sentences for persons convicted of single and multiple heinous crimes.

The case at bench is an example of the reduction in imprisonment time between the old indeterminate sentence law and the new determinate sentence law. When Caudillo was sentenced under the old indeterminate sentence law for the first degree burglary with “great bodily injury,” he faced a term in “state prison from 15 years to life.” (Pen.Code, s 461.) By reason of the new determinate sentence law and the facts and other legalistics described in the majority opinion, Caudillo with a prior felony conviction will be released after serving only about three years in prison after having been convicted by a jury of the crimes of kidnapping (Pen.Code, s 207), forcible rape (Pen.Code, s 261, subd. 2), sodomy (Pen.Code, s 286), oral copulation (Pen.Code, s 288a), first degree robbery (Pen.Code, s 211), first degree burglary (Pen.Code, s 459), being armed with a deadly weapon (a knife) during the commission of each of the foregoing offenses (Pen.Code, s 12022) and inflicting “great bodily injury” on the victim, Maria, during the first degree burglary (Pen.Code, s 461).

The ridiculous complexity of the new sentencing law, which has required special classes of instruction for explanatory purposes, is best evidenced by the form used at time of sentencing in the superior courts. (See Appendix A for a photocopy, Post, at p. 610.)

In respect to the Supreme Court Caudillo decision while we may be bound by its holding, we need not agree with it or its disposition. The Supreme Court decision in People v. Caudillo, supra, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274 (Richardson and Clark, JJ., dis.), based on its statutory interpretation held that in and of themselves neither forcible rape, sodomy nor oral copulation individually or collectively constituted “great bodily injury” under the burglary statute for purposes of penalty enhancement.

The Caudillo decision by its holding that rape does not constitute “great bodily injury” for purposes of enhancing the rapist's penalty for burglary has created a strange paradox of terminology as the term “great bodily injury” is used in respect to a rape victim's right of self-defense. For example, hypothetically, what if the victim, Maria in the Caudillo case, during the course of the forced rape and other atrocities to which she was subjected managed to obtain Caudillo's “carving knife” and stabbed him to death? Assume further that faced with a charge of murdering Caudillo Maria advanced the defense of a justifiable homicide by reason of self-defense.

CALJIC No. 5.10 (1974 Revision) provides “Homicide is justifiable and not unlawful when committed by any person when resisting an attempt to commit a Forcible and Atrocious crime.” (Italics added.)

CALJIC No. 5.16 defines a forcible and atrocious crime as follows: “A Forcible and Atrocious crime, as the term is used in these instructions, is any felony, the character and manner of the commission of which threatens, or is reasonably believed by the defendant to threaten, life Or great bodily injury so as to cause in (her) a reasonable fear of death Or great bodily injury. (P) (Murder) (Mayhem) (Rape ) (Robbery) is a Forcible and Atrocious crime.” (Italics added.)

QUERY: If Rape is a forcible and atrocious crime involving “great bodily injury” which justifies the killing of the rapist by the victim as a matter of self-defense, should not rape also constitute “great bodily injury” for purposes of penalty enhancement within the context of the Caudillo case? Common sense, logic and consistency of criminal justice terminology and theory would seem to indicate that either the enhancement statute as presently drafted or the Supreme Court's interpretation of it is in error. It should be noteworthy to any legislators contemplating remedial legislation in the wake of the Caudillo decision that a total of 11 justices and 24 jurors were of the opinion that forcible rape could or did constitute “great bodily injury” for purposes of penalty enhancement as opposed to the contrary opinion of the 5 justices making up the majority in the Supreme Court Caudillo decision.^[FN4]

Moreover, the Caudillo Court either by inadvertence or by design merely struck the jury's finding of “great bodily injury” and thereby eliminated a three-year enhancement punishment as required by Penal Code section 461 without remanding the matter back to the trial court for resentencing.

Had the Supreme Court remanded the matter back to the trial court for resentencing due to the fact it had eliminated an important basis for sentencing by striking the “great bodily injury” enhancement, the trial court could then have refashioned the sentence to fit the crime(s) by providing for a longer period of imprisonment.^[FN5]

Appendix A to follow.

APPENDIX A

FOOTNOTES

1.  As we note in our fact statement which follows, Caudillo's rearrest was ordered by the public information officer of the CRB on October 24, 1978.

2.  The opinion of the Supreme Court binds our decision. This is not an appropriate forum to criticize it.

3.  The July 11 order cannot be construed as one determining Caudillo a serious offender. It does not include the finding of “extraordinary factors” required by Penal Code section 1170.2, subdivision (b). It sets the term established by Penal Code section 1170.2, subdivision (a).

4.  The order recites that the Chief Justice deemed herself disqualified.

5.  See Penal Code section 1170 cross-reference to Penal Code section 1168 as to crimes committed prior to July 1, 1977.

6.  Prior to Caudillo's release on parole, the CRB had the power to postpone or rescind his release date. (Cal.Admin. Code, tit. 15, ss 2450 and 2451, subd. (c); see also In re Fain (1976) 65 Cal.App.3d 376, 135 Cal.Rptr. 543.) However, it did not exercise its power.

7.  Seemingly the prime reasons for the 120-day period are to permit a serious offender hearing where a person sentenced under the prior law who was placed on probation is received at state prison upon violation of probation or where the prisoner was a fugitive.

1.  The victim, Maria, lived in a second floor apartment in a large apartment complex in Montebello. Early in the morning on May 2, 1975, when she left her apartment to go to work, defendant Caudillo jumped into an elevator which she occupied while it was stopped at the second floor, covered her mouth with one hand and pressed a carving knife to her throat and told her to be very quiet. When the elevator door opened again, he first took her to a small windowless storage room beside the elevator on the second floor. He was holding the knife so close to her throat she sustained a cut to her throat. In the process of trying to pull the knife away from her, Maria also suffered a cut on two of her fingers. Caudillo at one point held the knife to the back of Maria's neck, cutting her neck. He kept her in the storage room for about 20 minutes (waiting for everyone to go to work) and then pressing the knife in Maria's back moved her down the hall from the storage room to her apartment, forcing her to open the door where he pushed her inside. Justice Richardson in his dissent summarized what transpired as follows:“I need not describe in detail the various acts and offenses committed by defendant who, over a two-hour period, forcibly copulated the victim's vagina, mouth and anus. The victim was pushed, shoved, cut twice by a knife, raped, sodomized and abused to the point of vomiting, diarrhea and hysteria. Her neck wounds were, respectively, three inches and one and one-half inches long. Under no reasonable view of the evidence could the victim's injuries in this case be deemed either ‘trivial or insignificant.’ (See People v. Wells (1971) 14 Cal.App.3d 348, 360, 92 Cal.Rptr. 191; People v. Richardson (1972) 23 Cal.App.3d 403, 411, 100 Cal.Rptr. 251.)” (People v. Caudillo (1978) 21 Cal.3d 562, 591, 146 Cal.Rptr. 859, 876, 580 P.2d 274, 291.)

2.  The elements which have converged to bring on the early release of Caudillo and which, in my opinion, warrant debate and discussion by the legal community and the public in general for possible remedial action are (1) the new determinate sentence law, (2) the Supreme Court decision of People v. Caudillo, supra, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, and (3) the apparent lack of coordination between the Department of Corrections * and the CRB ** and inattention to legislative mandates.* Penal Code section 5055 in part provides that “(a)ll powers and duties granted to and imposed upon the Department of Corrections shall be exercised by the Director of Corrections, Except where such powers and duties are expressly vested by law in the Community Release Board.” (Italics added.)** Penal Code section 1170.2, subdivision (e), provides “(i)n the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1168 if the felony was committed on or after July 1, 1977, the Community Release Board shall provide for release from prison as provided for by this code.” (As amended effective June 30, 1978, italics added.)

3.  Footnote 3 of rule 976 states: “This criterion would justify publication of the rare intermediate appellate opinion which finds fault with existing common law or statutory principles and doctrines and which recommends changes by a higher court or by the Legislature.”

4.  The State Supreme Court Caudillo decision (Richardson and Clark, JJ., dis.) not only reversed and ordered depublished the Court of Appeal opinion (People v. Caudillo (Nov. 19, 1976, L.A. 28084) 63 Cal.App.3d 995) which had affirmed a jury finding that rape constituted “great bodily injury” (opn. by Ashby, J., Kaus, P.J. and Stephens, J., conc.) but also at page 587, 146 Cal.Rptr. 859, 580 P.2d 274 expressly disapproved the case of People v. Cardenas (1975) 48 Cal.App.3d 203, 121 Cal.Rptr., 426 (which held that an act of forcible rape committed in the course of a robbery was sufficient to support a jury's finding under section 213 (robbery) of “great bodily injury” committed in the course of the robbery (opn. by Dunn, J., Jefferson (Edwin), Acting P.J. and Kingsley, J., conc.), petn. for hg. den, July 9, 1975), and the cases of People v. Superior Court (Lozano) (1977) 69 Cal.App.3d 57, 137 Cal.Rptr. 767 (opn. by Hanson, J., Wood, P.J. and Lillie, J., conc., petn. for hg. den. June 9, 1977), and People v. Superior Court (Vasquez) (1977) 69 Cal.App.3d 14, 137 Cal.Rptr. 762 (opn. by Hanson, J., Wood, P.J. and Lillie, J., conc., petn. for hg. den. June 9, 1977). The latter two cases involved writs of mandate and held that forcible rape may constitute “great bodily injury” under the enhancement provisions of Penal Code section 213 (robbery) and Penal Code section 461 (burglary).

5.  Resentencing by the trial court could possibly have had the secondary effect of supplying the CRB the opportunity for a Timely “serious offender” hearing pursuant to Penal Code section 1170.2, subdivision (b), as amended on June 30, 1978.

THOMPSON, Associate Justice.

LILLIE, Acting P. J., concurs.