People v. Howard

*1096KENNARD, J., J., Concurring and Dissenting.

I join the majority in its result—reversing the Court of Appeal’s judgment—but not in its reasoning.

At issue here is the authority of a superior court, after revocation of a criminal defendant’s probation, to reduce a sentence that was previously imposed on the defendant but the execution of which was suspended for the purpose of granting probation (hereafter an execution-suspended sentence). The exact issue is not whether superior courts possess authority to reduce an execution-suspended sentence in this situation—the majority concedes that they do. Rather, the issue is when the courts may exercise this authority. The majority holds that a superior court may not reduce an execution-suspended sentence “at the time probation is revoked” (maj. opn., ante, at p. 1095) but may do so only “at the postcommitment stage” (id. at p. 1094, original italics.)

To the extent this means that probation revocation and sentence reduction may not occur at the same hearing, or that one or more days must elapse between the two, I disagree. If the court decides at the time of probation revocation that the execution-suspended sentence should be reduced, nothing in the relevant statutory scheme or in the previous decisions of this court requires the waste of time and the added expense that necessarily results from delay in the implementation of that decision.

Nonetheless, I agree with the majority that the Court of Appeal erred in reversing the superior court’s judgment in this case. Because superior courts are required to give reasons for sentence choices when they impose sentence, and because the Legislature has not given criminal defendants standing to move for sentence reduction, a superior court need not give reasons for declining to reduce an execution-suspended sentence when it revokes probation. In this case, therefore, the superior court’s silence on the topic of sentence reduction does not constitute error, and the Court of Appeal should have affirmed the superior court’s judgment.

I

In October 1994, after defendant Cadelia Louise Howard had pleaded guilty to one count of transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)), the superior court sentenced her to four years in state prison but suspended execution of this sentence and granted her probation on certain terms and conditions. In April 1995, defendant was arrested for possessing .26 grams of cocaine. In July 1995, after finding that defendant had violated the terms and conditions of her probation, the superior court revoked probation and ordered execution of the four-year prison sentence. At this hearing, no one mentioned the possibility of reducing the four-year term.

*1097Defendant appealed, arguing that in light of the evidence at the revocation hearing that she had regularly reported to her probation officer, had maintained employment, and had consistently tested negative for drugs, the superior court should have at least considered a reduction of the prison term. The Court of Appeal agreed. It concluded, first, that after revoking probation the superior court had authority to reduce the execution-suspended sentence, and, second, that because the evidence in the record provided some possible basis for reducing the sentence the superior court was required either to reduce the sentence or to explain on the record why it was not doing so. The Court of Appeal reversed the superior court’s judgment and remanded the matter to that court with directions to consider whether defendant should be resentenced to a lesser term of imprisonment.

This court granted the People’s petition for review of the Court of Appeal’s decision.

II

As the majority recognizes, the Legislature has given trial courts authority to reduce prison terms embodied in judgments that have become final. The controlling provision is subdivision (d) of Penal Code section 1170 (hereafter section 1170(d)), which reads: “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. ...” The majority reads into this provision an implied limitation “that resentencing cannot occur at the time probation is revoked.” (Maj. opn., ante, at p. 1095.)

The majority’s construction of section 1170(d) serves no discernible legislative purpose and is inconsistent with this court’s reasoning in People v. Karaman (1992) 4 Cal.4th 335 [14 Cal.Rptr.2d 801, 842 P.2d 100]. There, the superior court had pronounced a sentence imposing a term in state prison but had stayed the sentence for one week to allow the defendant to settle his affairs. After the stay expired, the superior court modified the judgment to impose a lesser term. The People appealed, arguing that the superior court lacked authority to modify the judgment. On review, this court rejected the People’s argument.

Citing section 1170(d), this court stated that denying a superior court authority to mitigate punishment in this situation would be “inconsistent *1098with the modem statutory sentencing scheme, under which the Legislature explicitly has granted trial courts jurisdiction to mitigate a state prison sentence even after execution of a sentence has commenced.” (People v. Karaman, supra, 4 Cal.4th 335, 351, original italics.) We further reasoned: “As a practical matter, to require a trial judge (who desires to resentence a defendant whose sentence has been stayed) to delay resentencing until the actual commencement of the defendant’s prison term generally would entail a considerable waste of time and expense. The Legislature, although limiting the resentencing provisions of section 1170, subdivision (d), to the postcommitment situation, has not otherwise imposed any such requirement, and we likewise decline to do so.” (Id. at p. 352.) This statement was followed immediately by our holding that “where the sentence is to a term of imprisonment, the trial court retains jurisdiction, during the period a stay is in effect and at any time prior to execution of the sentence, to reconsider the sentence and vacate it or impose any new sentence which is not greater than the initial sentence, just as it may do so on its own motion pursuant to section 1170, subdivision (d), within 120 days after the court has committed the defendant to the prison authorities.” (Ibid.)

The logic of this court’s decision in People v. Karaman, supra, 4 Cal.4th 335, applies with equal force to sentence reduction after revocation of probation. As the Court of Appeal aptly observed in this case, if a superior court decides after probation revocation that an execution-suspended sentence should be reduced, the court should be permitted to make that sentence reduction immediately, while the defendant is present in court, because requiring the court to wait until the defendant has entered the prison system and actually begun to serve the sentence, and to then bring the defendant back into court for a resentencing hearing, will result in the same “considerable waste of time and expense” that this court deplored in Karaman. To avoid this unnecessary inefficiency, this court concluded in Karaman that a trial court had authority to reduce the prison term of a defendant who had been granted a brief stay of execution and had not yet begun to serve the term. Similarly, to avoid a “considerable waste of time and expense,” I conclude that at a single hearing a superior court may both revoke a defendant’s probation and exercise its section 1170(d) authority to reduce the term of an execution-suspended sentence.

The majority argues that Karaman addressed “a situation that no statute directly controlled” (maj. opn., ante, at p. 1093), whereas the situation at issue here—probation revocation of a defendant with an execution-suspended sentence—is controlled by Penal Code section 1203.2, subdivision (c) (hereafter section 1203.2(c)), and by rule 435(b)(2) of the California Rules of Court (hereafter rule 435(b)(2)). Contrary to the majority, neither *1099section 1203.2(c) nor rule 435(b)(2) precludes the sentencing court from exercising its section 1170(d) authority at the time probation is revoked. In particular, nothing in either provision requires that the defendant actually enter the prison system and begin to serve the sentence before the sentencing court may exercise its section 1170(d) authority to resentence the defendant to a lesser term.

Section 1203.2(c) provides that, “[u]pon any revocation and termination of probation . . . , if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect.” Rule 435(b)(2) is similar; it reads: “If the execution of sentence was previously suspended, the judge shall order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Director of Corrections for the term prescribed in that judgment.”

To fully comply with both section 1203.2(c) and rule 435(b)(2), a court that has revoked a defendant’s probation need only order that a previously imposed judgment be in full force and effect and that the defendant be committed to the custody of the Director of Corrections for the term prescribed in that judgment. Having made this order, the court may then immediately recall the commitment under section 1170(d) and resentence the defendant to a lesser term. Nothing in the language of either provision requires that after an execution-suspended sentence is reactivated and ordered into effect, the defendant must leave the courtroom, enter the prison system, and serve one or more days of that sentence before the probation-revoking court may exercise its section 1170(d) sentence-reduction authority.

III

Because I conclude, contrary to the majority, that at a single hearing a superior court may both revoke a defendant’s probation and exercise its section 1170(d) authority to reduce the term of an execution-suspended sentence, I also address whether, as the Court of Appeal concluded, the superior court here erred in failing to state reasons for not exercising that authority. The superior court did not err.

A court is required to give reasons for sentence choices when it imposes sentence in the first instance. (See Cal. Rules of Court, rule 406(b).) Presumably, the superior court in this case gave reasons for its sentence choices when it pronounced sentence, the execution of which the court then stayed for the purpose of granting probation. If the court’s statement of reasons was *1100incomplete or erroneous, defendant had an adequate remedy by appeal. When the court later revoked probation and ordered execution of the sentence it had previously imposed, the court expressed no dissatisfaction with the sentence choices it had previously made and previously explained. In this situation, no additional explanation of the basis for the sentence is needed.

As the majority and I both recognize, section 1170(d) is the source of the superior court’s authority, following probation revocation, to mitigate punishment by reducing the term of imprisonment mandated by an execution-suspended sentence. But section 1170(d) specifies that the court is to exercise this authority only “on its own motion, or. . . upon the recommendation of the Director of Corrections or the Board of Prison Terms.” Thus, the Legislature has not given criminal defendants standing to move for a reduction of their sentences under section 1170(d). (People v. Pritchett (1993) 20 Cal.App.4th 190, 193 [24 Cal.Rptr.2d 391].) If a defendant does request sentence reduction under section 1170(d), the court’s denial of the request is not an appealable order because it does not affect the defendant’s substantial rights. (Pritchett, supra, at p. 194.) In view of these unusual attributes of the section 1170(d) sentence-reduction authority, it would be highly incongruous to require a court to give reasons for not exercising that authority at the time of probation revocation, and neither defendant nor the Court of Appeal has cited any authority supporting the imposition of such a requirement. I would hold that no such requirement exists.

Because the Court of Appeal concluded otherwise, I concur in the judgment of this court reversing the judgment of the Court of Appeal.