Opinion
ANDERSON, P. J. Ace J. Slaughter (appellant) pled guilty to a charge of violating section 11352 of the Health and Safety Code. Pursuant to a negotiated disposition, imposition of his sentence was suspended, and he was placed on probation with the condition that he serve 90 days at the Sheriff’s Work Alternative Program (SWAP). When appellant failed to surrender to SWAP on the appointed date, his probation was revoked and a bench warrant was issued for his arrest. At the hearing following summary revocation, the court ordered that probation remain revoked and sentenced appellant to prison for the midterm of four years.
Appellant contends that the “court committed error when it failed to state reasons for its decision not to reinstate probation . . . .” He bases this argument on the definition of “sentence choice” (Cal. Rules of Court, rule [97405](f)) and the requirement of Penal Code1 section 1170, subdivision (c), which imposes upon the court a duty of stating reasons for its sentence choice. We hold that the sentence to prison following probation revocation herein does not require an accompanying statement of reasons and, therefore, we decline to remand for resentencing.
The Initial Sentencing
According to section 1170, subdivision (c), “The court shall state the reasons for its sentence choice on the record at the time of sentencing. . . .” (Italics added.) As can be seen from the chapter headings preceding section 1170 (ch. 4.5, art. I),2 the time the statute refers to is the time of “initial sentencing.” Only at this time is the court required to state its reasons under section 1170 for its “sentence choice.” By rule the “granting of probation and the suspension of imposition or execution of a sentence” is included in the term “sentence choice.” (Cal. Rules of Court, rule 405(f), italics added.)3 Thus, the statement of reasons requirement is satisfied during this stage of the proceeding when reasons for suspending imposition of a sentence are adequately given (as was the case here).
California Rules of Court, rule 4404provides that the general statement of reasons requirement5 is satisfied when there is either acceptance by the prosecuting attorney of defendant’s specification of the punishment, or express personal agreement by the prosecuting attorney, defense counsel and defendant. (People v. Brandt (1987) 191 Cal.App.3d 143, 148 [236 Cal.Rptr. 258].) This generally involves plea negotiations in which the defendant usually receives an affirmative benefit. (Ibid.) Under these circumstances, the court need not give any other reason than to state that the disposition is [98]pursuant to the negotiated agreement. (Ibid.; see also People v. Sutton (1980) 113 Cal.App.3d 162, 163 [169 Cal.Rptr. 656].)
In the instant case imposition of sentence was suspended and probation was granted pursuant to a plea agreement. Therefore, the court’s reference to the negotiated disposition satisfied the statement of reasons requirement at this stage of the proceedings.
Sentencing Upon Revocation of Probation Following the Suspension of Imposition of Sentence
We are urged to find that unlike sentencing following a formal probation revocation hearing when sentence had previously been imposed but execution thereof suspended,6 sentencing after probation revocation when imposition of sentence was initially suspended is an “initial sentencing choice.” We are told this is so since at a probation revocation hearing, one possible disposition of the case which requires the exercise of discretion of the court is a modification of the terms of probation, and another possible disposition is reinstatement of probation without a change in terms. Thus, the judge has three choices when an appellant admits to being in violation of probation, and this is a “sentence choice” that requires a statement of reasons.
We reject the argument. To so hold requires us to find two “initial sentencings”: (1) when imposition of sentence is first suspended and (2) when sentence is imposed following revocation. Both the Legislature and the Judicial Council, in adopting statutes and rules respectively, were well aware of the stage of proceedings with which we here are confronted—i.e., sentencing following revocation. Neither legislative body chose to require reasons at this stage. This may well be because they recognized that the reasons required to be given (see People v. Vickers (1972) 8 Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313]) for revocation are the reasons for sentencing to prison. Whether true or not, it is clear the legislative bodies knew of the situation we here face and, knowing of it, chose not to specifically require reasons. We decline to do for them what they presumably have affirmatively rejected to do themselves.
Furthermore, we note that appellant was statutorily presumed ineligible for probation.7 Section 1203, subdivision (e), does provide that “Except in [99]unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:. . . [jj] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.” Since appellant has several prior felony convictions, section 1203, subdivision (e), would appear to apply. In making a determination under section 1203, subdivision (e), probation shall not be granted unless the case is found to be “unusual,” where “ ‘the interests of justice would best be served if the person is granted probation ....’” (People v. Collier (1979) 90 Cal.App.3d 658, 660-661 [153 Cal.Rptr. 664]; People v. McClintock (1984) 159 Cal.App.3d Supp. 1 [205 Cal.Rptr. 639].) This statute creates a strong presumption against granting probation and for sentencing to prison. (People v. Axtell (1981) 118 Cal.App.3d 246, 256 [173 Cal.Rptr. 360].) Accordingly, the circumstances leading the court to conclude that the case is “unusual” must be stated on the record (§ 1203, subd. (f)); no such statement was given here,8 and there is no requirement that the court state why it concluded the case was not “unusual.” (People v. Langevin (1984) 155 Cal.App.3d 520, 524 [202 Cal.Rptr. 234].)
In sum, because neither the Legislature nor the Judicial Council has seen fit to require reasons and, because none are given in finding this an unusual case, we hold that no reasons need be stated for imposing prison for the midterm following revocation of probation which had been granted following suspension of imposition of sentence.
The judgment is affirmed.
Sabraw, J., concurred.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Chapter 4.5 “Trial Court Sentencing,” article 1 “Initial Sentencing.”
California Rules of Court, rule 405(f) states: “Sentence choice’ means the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial. It includes the granting of probation and the suspension of imposition or execution of a sentence.”
Rule 440 provides in part: “(a) If a plea of guilty or nolo contendere was entered pursuant to section 1192.5 and the plea was accepted by the prosecuting attorney in open court and was conditionally approved by the court, the defendant’s specification of the punishment and the prosecuting attorney’s acceptance thereof in open court constitutes an adequate reason for the imposition of the punishment specified, [fl] (b) Whenever the prosecuting attorney and the defendant, by counsel and personally, have expressly stated that they agree or have no objection to a prison sentence of a specified length or to another specified disposition, the judge may recite their agreement or lack of objection as part of the record, and their agreement or lack of objection constitutes an adequate reason for imposition of the sentence or other disposition specified.”
We do not mean to imply that rule 440 states the only exceptions to the statement of reasons requirement. Case law, as well as other statutes, do express other exceptions.
This court recently addressed the requirement of a statement of reasons when probation is revoked subsequent to a suspension of execution of sentence in People v. Cushway (1987) 193 Cal.App.3d 776 [238 Cal.Rptr. 527].
The People contend the court was correct in stating that appellant was not eligible for probation. They base this argument upon Health and Safety Code section 11370 which “pro[99]hibits probation for any person convicted of violating section 11350 and/or 11351” of the Health and Safety Code. This prohibition, however, is inapplicable to appellant since it is found in an amendment to the law which became effective well over a year after appellant committed his crime. (Stats. 1986, ch. 1044, § 40.) We note, however, that had defendant's prior conviction by jury trial of violating Health and Safety Code section 11351 been alleged in the information or admitted by the defendant, then defendant would have been ineligible for probation under section 1203.07.
In this case the only statement made following revocation of probation was, “the Court has read and considered the report of the probation officer filed in this matter and finds that you are not eligible for probation.” This is the only statement other than the reference (at initial sentencing) to the negotiated disposition discussed previously.