PEOPLE v. JANUARY (1981)

Lee January appeals from the judgment entered following a jury trial in Los Angeles Superior Court case A615652 in which he was found guilty of possessing phencyclidine (PCP) for the purpose of sale (Health & Saf. Code, § 11378.5).   He also appeals from the order revoking probation and sentencing him to state prison in case A338026.

He contends:  “I. A police officer's detection of a strong odor of ether, a commonly used chemical in both commercial chemical plants and in general manufacturing, in the area in which appellant's car was parked, a business district, was insufficient cause upon which to arrest appellant even when combined with his observation of appellant loading a large plastic bag into the vehicle's trunk, for such a common lawn or garbage bag can be used to transport countless innocent articles.   II. The court erred in denying appellant pre-sentence credits under Penal Code section 2900.5(b) for the period of custody he served as a condition of probation prior to violating that probation because that particular ‘period of custody’ was not attributable to ‘multiple offenses for which a consecutive sentence is imposed’ but was a separate period of custody attributable to an act committed by appellant before anything he did which resulted in his present consecutive sentencing.”

 The appellant's suppression motion was submitted on the transcript of his preliminary hearing.   Viewed in the light most favorable to the challenged order as required by the usual rule governing appellate review, the evidence there presented established that at approximately 9 p.m. on the evening of March 6, 1979, Compton Police Officers Ruben Chavira and Dennis Ford were on routine patrol when they detected the strong odor of ether associated with PCP.   The officers proceeded to an area where the smell was extremely strong.   There Officer Ford observed appellant placing a large green plastic trash bag into the open trunk of an automobile.

Officer Ford exited his patrol vehicle and approached appellant telling him to place his hands on top of the hood of the vehicle.   When the officer got to where appellant was standing he observed a glass beaker containing a clear liquid substance on the ground between appellant's feet.

From his experience Officer Ford knew it was common to transport PCP in large plastic bags and that the container on the ground was of the type commonly used in the manufacture of PCP.

Appellant's first contention is premised on the assertion that there was not sufficient objective cause to justify his arrest.   We disagree.   After detecting an overwhelming odor of ether Officer Ford approached appellant and observed in plain sight a glass beaker of liquid.   Whether the officer saw the beaker before advising appellant he was under arrest, or afterwards, is quite immaterial since appellant's detention was proper in any event.   Thereafter the observed facts were such as “ ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion’ ” that appellant was in possession of PCP.  (People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 674, 165 Cal.Rptr. 872, 612 P.2d 962.)   Appellant's further assertion that this conclusion is incorrect as a matter of law because the incident occurred in an industrial area is frivolous.

 Appellant's second contention is equally non-meritorious.   In sentencing appellant in A615652 the court imposed the upper term of five years with credit for his pre-sentence custody.   At the same time, it found appellant in violation of his probation in A338026 ¹ and imposed a four year term for that offense.   However, as required by Penal Code section 1170.1, subdivision (a) and rule 449 of the California Rules of Court,² the court then suspended three years of that term and ordered appellant actually be required to serve only one-third of the statutory middle term, i.e., one year, consecutive to his sentence in A615652.   The court refused however, to order that appellant's credit for time previously served in case A338026 as a condition of probation (see fn. 1) be applied to this one year period.

Penal Code section 2900.5, a section enacted prior to the advent of our present Determinate Sentence Law, requires that “when the defendant has been in custody, including but not limited to any time spent in a jail ․ including days served as a condition of probation in compliance with a court order ․ shall be credited upon his term of imprisonment ․”  (Emphasis added.)

Appellant urges that contrary to the plain language of this section we should hold that appellant's “term of imprisonment” in A338026 should not be regarded as the four year term actually imposed by the court, but rather should be deemed to be the one year portion of that term that has not been suspended by operation of Penal Code section 1170.1, subdivision (a).  (See People v. Bond (1981) 115 Cal.App.3d 918, 921, 172 Cal.Rptr. 4.)   We disagree.   Not only would such a holding do violence to the wording of the section, but it would completely destroy its intent, as well as that found in the statutory provisions providing for consecutive sentencing.

Our Legislature in enacting the Determinate Sentence Law has established a fixed “price” or “penalty” or “punishment” for various types of proscribed behavior.   Nonetheless, in the exercise of its judgment it has seen fit to provide that following a first offense each succeeding crime generally shall cost but one-third of its regular “price.”   In fact, except in those instances specified in sections 667.5 and 667.6, a malefactor who perseveres in his criminal conduct until the sum of his offenses, even at the two-thirds discount rate, exceeds five years, or twice the base term, may thereafter freely engage in any number of further penal violations without incurring the risk of any penalty therefor.³

If, in addition to this most lenient methodology, we were to accede to appellant's arguments here, as the trial court aptly observed, anyone who had been in custody by reason of grant of probationary clemency or otherwise, for but one-third of the statutorily prescribed middle term for his offense, would automatically attain total immunity from any further and separate punishment therefor by way of a consecutive sentence.   In fact, in certain instances such an interpretation would permit a multiple offender to complete two consecutive sentences in less time than if they had been ordered to run concurrently.⁴

The quite obvious goal of Penal Code section 2900.5 is to insure that no one, whether wealthy or indigent, shall be confined for longer than the appropriate term provided for his offense, whether that be a specified term imposed as a condition of probation or one of the three possible statutory “terms of imprisonment,” i.e., lower, middle or upper.  (In re Rojas (1979) 23 Cal.3d 152, 156, 151 Cal.Rptr. 649, 588 P.2d 789.)   Furthermore, this result shall ensue without regard to the setting wherein such pre-sentence custody occurred.   Consequently, when one term is to be served consecutively to another, the amount of the prisoner's pre-sentence custody attributable to the consecutive term alone is irrelevant unless it exceeds the two-thirds reduction automatically granted by the provisions of Penal Code section 1170.1(a).⁵

A contrary holding would mean that, except for a possible finding of aggravation, a failed probationer who has spent a year in custody for an offense with a three year middle term, would have little to fear from a violation of his probation caused by his commission of another offense.   His first conviction would not constitute a “prior” (Pen. Code, § 667.5), and the pragmatically relevant portion of any consecutive term that could be imposed would already have been completed.

It may be urged that a defendant who has spent time in probationary custody should not be potentially subject to a greater overall punishment than a defendant who was granted “straight probation” without such an initial period of confinement.   However, by definition, in such an instance the two parties were not equals at the time they were afforded the opportunity to avoid their prescribed sentences, otherwise the terms of their probation would have been the same.   Moreover, the fact a court has the power to impose a meaningful consecutive sentence, does not mean that it is compelled to do so.

The judgment is affirmed.

FOOTNOTES

1.   In A338026 appellant had pled guilty to a July 13, 1977 violation of Health and Safety Code section 11379.   He was granted probation upon the condition that he serve a series of weekends in custody.

2.   Rule 449 provides:  “When a sentence of imprisonment is imposed upon a defendant convicted of more than one crime, the judgment shall set forth the sentence to a base term and applicable enhancements for each of the crimes, computed independently.   If required by statutory limitations on the enhancement resulting from consecutive terms or by the limitations of section 654, the judgment shall stay execution of so much of the term, or on those crimes, for which the imposition of the full sentence is prohibited.   The stay shall become permanent upon the defendant's service of the portion of the sentence not stayed.”

3.   Surprisingly, it has been held that a court in pronouncing judgment must declare the reasons it feels justify it in imposing any penalty whatsoever for successive offenses.  (People v. Burke (1980) 102 Cal.App.3d 932, 944, 163 Cal.Rptr. 4;  People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66.)   Of course, in instances of separate crimes committed at different times against different victims, a simple but express observation of this fact would suffice (Cal. Rules of Court, rule 425, subd. (a)) without the court's being required to enter into the vexed field of “aggravation.”  (Rule 425, subd. (b).)

4.   Such a possibility was obviously not contemplated by Penal Code section 669 which provides that in the absence of specification by the trial court “the term of imprisonment on the second or subsequent judgment shall run concurrently.”

5.   Of course, this would not be true as to those sex offenses specified in Penal Code section 667.6 which provide for “full, separate and consecutive terms.”   As to such terms all accumulated pre-sentence custody credits would apply.

ROTH, Associate Justice.

FLEMING and COMPTON, JJ., concur. Hearing denied; BIRD, C.J., dissenting.