People v. Giminez

Defendant was convicted of narcotics possession (former Health & Saf. Code, § 11500). After defendant refused to accept the conditions of a five-year period of probation, the trial court imposed a prison sentence and directed that it commence upon completion of the term defendant was currently serving for another drug conviction. On appeal, defendant now contends that to so impose a consecutive sentence, after having offered him probation, constituted an abuse of the trial court’s discretion. In light of the defendant’s lengthy history of narcotics abuse and anti-social behavior we do not believe that the trial court acted arbitrarily or unreasonably. We therefore have concluded that imposition of a consecutive sentence was not improper.

Defendant was arrested in San Joaquin County for narcotics possession in April 1972. In July he appeared before the court and entered a plea of guilty. Criminal proceedings were then suspended in order to determine whether defendant was a narcotics addict. In October 1972 the court so found and defendant was committed to the California Rehabilitation Center for treatment. The following June defendant’s commitment to that institution was cancelled and he was returned to the San Joaquin County Superior Court for resumption of criminal proceedings and pronouncement of judgment. At that time the trial judge stated that he was prepared to grant a five-year unsupervised probation upon various conditions, one of which was that defendant waive “the right of the service of a search warrant in search and seizure at any time of the day or night.” Defendant refused, however, to submit to the search condition and stated that he would prefer a prison sentence. Thereafter the trial judge, defendant, prosecutor and defense counsel discussed the matter in open court. During the discussion the trial judge made clear that if defendant refused to accept the terms and conditions of probation, a prison sentence would be imposed and made to run consecutively with the term defendant was currently serving. Defendant again refused conditional probation and the trial.judge then proceeded to impose a consecutive sentence for the term prescribed by law. Defendant now contends that imposition of a consecutive sentence under these circumstances constituted an abuse of discretion.

It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. (Pen. Code, § 669; In re Sandel, 64 Cal.2d 412, 416 [50 Cal.Rptr. 462, 412 P.2d 806].) It is also the rule that appellate courts do not have the power to modify a sentence or reduce the punishment therein imposed absent error in the proceedings. (People v. Odle, 37 Cal.2d 52, 57 [230 P.2d 345].) Moreover, such error cannot be predicated on a trial court’s determination that several sentences are to run consecutively unless an abuse of discretion is clearly shown. (People v. Morris, 20 Cal.App.3d 659, 666 [97 Cal.Rptr. 817]; People v. White, 100 Cal.App.2d 836, 839-840 [224 P.2d 868].)

The concept of judicial discretion is difficult to define with precision. In the past we have described it as “the sound judgment of the court, to be exercised according to the rules of law.” (Lent v. Tillson, 72 Cal. 404, 422 [14 P. 71].) More recently we have said (quoting from another case) that the term judicial discretion “implies absence of arbitrary determination, capricious disposition or whimsical thinking.” (In re Cortez, 6 Cal.3d 78, 85 [98 Cal.Rptr. 307, 490 P.2d 819].) Moreover, discretion is abused whenever the court, exceeds the bounds of reason, all of the circumstances being considered. (People v. Russel, 69 Cal.2d 187, 194 [70 Cal.Rptr. 210, 443 P.2d 794]; People v. Fusaro, 18 Cal.App.3d 877, 894 [96 Cal.Rptr. 368] [cert, den., 407 U.S. 912 (32 L.Ed.2d 686, 92 S.Ct. 2445)].) However, in the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives and, accordingly, its discretionary determination to impose consecutive sentences ought not be set aside on review.

Turning to the facts of the instant case, we cannot say that the trial court has abused its discretion. As pointed out above, defendant has a lengthy history of narcotics use and anti-social behavior. The probation officer reported that defendant had been named in 15 “writeups” related to narcotics and had suffered 2 felony narcotics convictions. One of these convictions was for a violation which occurred while defendant was on bail. The probation report concluded that defendant needed time “to be dried out” and consequently recommended against probation.

Defendant argues that notwithstanding his prior record, the trial court’s decision to impose consecutive sentences must be viewed as an unreasonable and vindictive reaction to defendant’s rejection of conditional probation. He contends that the alternatives of probation or consecutive ten-year maximum sentences could not both be appropriate for any one offender and therefore that the trial court’s order was essentially arbitrary and not an exercise of discriminating judgment.

Defendant’s reasoning is not persuasive. By initially imposing the search condition as a term of probation, the trial judge demonstrated his belief that defendant should be subject to some substantial control for at least five years. Such a search condition would assist in deterring or discovering subsequent narcotics offenses thereby aiding defendant’s rehabilitation and providing protection for the public. (People v. Mason, supra, 5 Cal.3d 759, 764.) The trial judge could have reasonably concluded that defendant’s rejection of the search condition was an indication of both an unwillingness to reform and a desire to return to narcotics use at the earliest opportunity. Under these circumstances, the trial judge may well have felt that a two-year parole ineligibility period (made mandatory by Pen. Code, § 3043 upon the imposition of two or more consecutive sentences; not restricted to narcotic offenses) was necessary to further the legitimate sentencing objectives of rehabilitation and protection of the public. In light of the broad discretion to be afforded trial judges both in sentencing and in granting or denying probation and given defendant’s extensive criminal record, it does not appear that the imposition of consecutive sentences in the instant case exceeded the bounds of reason.

The judgment is affirmed.

Wright, C. J., McComb, J., Sullivan, J., and Clark, J., concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

The trial court was acting under its power of consecutive sentencing set forth in section 669 of the Penal Code. That section provides in pertinent part: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be----”

A month after his San Joaquin County arrest, while on bail, defendant was arrested in Sacramento County for possessing dangerous drugs (former Health & Saf. Code, § 11910.) After his commitment to the California Rehabilitation Center, defendant was convicted of this second drug offense and sentenced by the Sacramento County Superior Court to state prison for from six months to ten years. It was this prison sentence which resulted in the cancellation of his C.R.C. commitment and the resumption of the San Joaquin County criminal proceedings which are the subject of this appeal.

Such a search provision may properly be imposed as a condition to probation where the defendant is a narcotics offender. (People v. Mason, 5 Cal.3d 759 [97 Cal.Rptr. 302, 488 P.2d 630].)

As noted in footnote 2, ante, defendant had been committed to state prison by the Sacramento County Superior Court for another drug offense.

Former Health and Safety Code section 11500 provided for an indeterminate sentence of not less than two nor more than ten years.