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People v. Angus12/30/1980
nitial probation order was a punishment judicially matched to the perceived gravity of his crime, and that, therefore, he had already been punished for the underlying crime, appellant contends that revocation was improper "unless
the sentence imposed was appropriate as a punishment for the acts which constituted the probation violation."
Appellant cites no authority for this proposition, and there appears to be none. Upon revocation of probation the trial court was empowered to "pronounce judgment for any time within the longest period for which the person might have been sentenced" where, as here, imposition of sentence had been initially suspended. (Pen. Code, § 1203.2, subd. (c).) The court could not, in these circumstances, consider "the acts which constituted the probation violation": "The length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term nor in deciding whether to strike or specifically not order the additional punishment for enhancements charged and found." (Cal. Rules of Court, rule 435 (b)(1).) The cases agree that "[when] imposition of sentence has been suspended, and the defendant placed on probation, the termination of probation requires that the court impose sentence on the original offense." (People v. Billetts (1979) 89 Cal. App. 3d 302, 309 [152 Cal. Rptr. 402], citing earlier cases.) This rule is wholly consistent with the purposes of probation. Punishment for new offenses should properly be assigned in new proceedings; appellant's proposed innovation would essentially nullify the concept of probation revocation and thus necessarily would vitiate the probationary nature of probation itself.
B. Penalty for requesting hearing.
Appellant contends that in light of the trial judge's prehearing proposal of a three-year prison sentence if appellant did not contest the revocation, the four-year sentence imposed after appellant did contest "improperly penalized appellant for exercising his constitutional right to a probation revocation hearing." Appellant relies on In re Lewallen (1979) 23 Cal. 3d 274 [152 Cal. Rptr. 528, 590 P.2d 383], and North Carolina v. Pearce (1969) 395 U.S. 711 [23 L.Ed.2d 656, 89 S.Ct. 2072, 2089].
Both Lewallen and Pearce make clear that a sentencing court may not increase a defendant's sentence to punish him for having asserted constitutional or statutory procedural rights. Neither case imposes an absolute ban on imposition of a sentence higher than that which might have been proposed before the defendant asserted his constitutional or statutory right: There must be some showing, properly before the appellate
court, that the higher sentence was imposed as punishment for exercise of the right. In Lewallen the Supreme Court said: "Thus it is clear that under appropriate circumstances a defendant may receive a more severe sentence following trial than he would have received had he pleaded guilty; the trial itself may reveal more adverse information about him than was previously known. A court may not, however, impose a sentence that conflicts with a defendant's exercise of his constitutional right to a jury trial. [Citation.] The comments of the judge reveal that is what occurred here." (In re Lewallen, supra, 23 Cal. 3d 274, 281.)
In this action there is no indication that the court set out to penalize appellant for asking for a hearing, beyond the naked fact that the trial judge apparently did offer three
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