People v. Gulbrandsen

SIMS, J.

I concur in the majority opinion except for its analysis of why a consecutive sentence for the escape conviction was not mandated. I reach the same conclusion by different reasoning.

The majority conclude a mandatory consecutive sentence cannot be reconciled with the 1985 amendment to Penal Code section 4532. (Maj. opn., ante, at pp. 1555-1556; further statutory references are to the Penal Code.) However, the amendment was not in place when defendant committed his crime in 1984.

I think we must first ascertain the meaning of the statute the defendant violated. The 1985 amendment would be relevant only if the 1984 statute required that defendant’s sentence be run consecutively to his federal sentence. In that event, the 1985 amendment might be relevant upon the principle that it arguably provided a lesser punishment for nonviolent *1564escapes than had theretofore been the case, and defendant is entitled to the benefit of the lesser punishment. (See In re Fink (1967) 67 Cal.2d 692, 693-694 [63 Cal.Rptr. 369, 433 P.2d 161].) As it turns out, the statute defendant violated did not require that defendant’s sentence be run consecutively to his federal sentence, so, in my view, the 1985 amendment is irrelevant and need not be considered.

When defendant committed his crime, section 4532, subdivision (b) specified with respect to both nonviolent and violent escapes that a state prison sentence was “to be served consecutively.” (Maj. opn., ante, p. 1552, fn. 1.) In ascertaining the meaning of this language, we have an obligation to examine other statutes that affect the same subject, because “Statutes in pari materia should be construed together.” (Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 744 [250 Cal.Rptr. 869, 759 P.2d 504], citing People v. Caudillo (1978) 21 Cal.3d 562, 585 [146 Cal.Rptr. 859, 580 P.2d 274].) Here, a statute related to former section 4532 is section 1170.1, subdivision (c). The latter statute, which was in place when defendant committed his crimes, provides in pertinent part, “In the case of any person convicted of one or more felonies committed while such person is confined in a state prison, or is subject to reimprisonment for escape from such custody and the law . . . requires the terms to be served consecutively . . ., the term of imprisonment for all the convictions which the person is required to serve consecutively shall commence from the time such person would otherwise have been released from prison.” (Italics added.)

In subdivision (c) of section 1170.1, the Legislature expressly provided that a full-term consecutive sentence should be imposed only where defendant is confined in state prison at the time of the escape. (People v. Mitchell (1988) 199 Cal.App.3d 300, 304 [244 Cal.Rptr. 803].) Where, as here, a defendant was confined in a county jail, section 1170.1 required that the consecutive sentence be one-third of the midterm. (Ibid.; People v. Jones (1980) 110 Cal.App.3d 75, 77 [167 Cal.Rptr. 571].)

When section 1170.1, subdivision (c) is read together with former section 4532, subdivision (b), a reasonable construction of the two statutes is that the Legislature required imposition of a full-term consecutive sentence only where a defendant escaped from state prison. Since this construction is plausible, it must prevail upon the theory defendant is entitled to the benefit of every realistic doubt in the interpretation of a penal statute. (People v. Anderson (1987) 43 Cal.3d 1104, 1145 [240 Cal.Rptr. 585, 742 P.2d 1306].) It follows that former section 4532, subdivision (b), did not mandate that a state prison sentence be run consecutively to a federal sentence, since the effect of such a requirement would be imposition of a full-term state prison sentence even though defendant had not escaped from state prison. (See rule *1565451(b), Cal. Rules of Court; People v. Veasey (1979) 98 Cal.App.3d 779, 789-790 [159 Cal.Rptr. 755].)

However, it is one thing for the Legislature to require imposition of a full term in every case and quite another thing for the Legislature to allow imposition of a full term where the circumstances warrant it. I find nothing in former section 4532, subdivision (b) suggesting sentencing for a nonviolent escape should be treated differently from sentencing for any other nonviolent California felony subject to subdivision (a) of section 1170.1. As the majority opinion correctly points out (maj. opn., ante, pp. 1557-1558), sentences for such offenses may be run consecutively to a federal term, and when they are, they become full-term sentences by operation of law. (Veasey, supra, at pp. 789-790.) Thus, although former section 4532, subdivision (b) did not mandate a consecutive sentence in this case the trial court had discretion to impose a consecutive term even though it would be a full term.