In Re Caudillo

Opinion

TOBRINER, Acting C. J.

This case presents a narrow question of statutory interpretation arising under the Uniform Determinate Sentencing Act (DSL), a statutory enactment which substantially revised the sentencing procedure and length of sentences with regard to many of California’s criminal offenses. Under the DSL, the Legislature directed the Community Release Board (CRB)¹ to recompute and revise the terms of prisoners sentenced under the earlier Indeterminate, Sentence Law (ISL) to correspond to the terms that the prisoners would have received if the DSL had been in force at the time of their offense. The Legislature recognized, however, that in some cases the conversion of ISL sentences into DSL equivalents would result in an inappropriate reduction of prison terms for dangerous prisoners. Consequently, in order to protect the public from the premature release of such dangerous persons, the Legislature established a “serious offender” procedure as a safety valve, authorizing the CRB—in cases in which the regular DSL term was found inappropriate for an ISL prisoner—to take into consideration the dangerousness of the offender in establishing a new term under the DSL.

In this case we must interpret a provision of the DSL which relates to the time period in which the CRB is authorized to resort to the serious offender procedure in setting an ISL prisoner’s revised term. The question presented is whether the CRB is empowered to implement the serious offender provision of the DSL after an ISL prisoner’s sentence has been modified by an appellate court’s reversal of a portion of the prisoner’s original judgment, or whether the CRB’s serious offender authority may irrevocably expire prior to the rendition of such an appellate decision.

As we shall explain, in light of the legislative purpose underlying the serious offender procedure, we believe that the Legislature intended that the CRB have a reasonable opportunity to consider the appropriateness of serious offender treatment at a time when the CRB actually knows of the terms of the defendant’s final judgment. Accordingly, we conclude that under Penal Code section 1170.2, subdivision (b), the CRB is empowered to implement the serious offender procedure and to conduct a serious offender hearing within 120 days of the Department of Corrections’ receipt of an amended abstract of judgment which alters the terms of the ISL prisoner’s sentence. To effectuate the legislative purpose of the serious offender procedure, the term “receipt of the prisoner” as used in section 1170.2, subdivision (b) must properly be interpreted to include the receipt of such an amended abstract of judgment.

1. The facts of the instant case.

In 1975, a jury found Daniel Caudillo guilty of kidnaping, forcible rape, sodomy, oral copulation, first degree robbery, and first degree burglary. The jury also found that Caudillo was armed with a deadly weapon during the commission of those offenses and that, in the course of the burglary, he inflicted great bodily injury upon his victim. The trial court imposed concurrent sentences for all of the offenses, and because under the then-existing ISL provisions the burglary conviction as enhanced by the great bodily injury finding carried the longest sentence, the trial court stayed the execution of all the sentences except that of burglary. At the time the trial court imposed sentence, Caudillo faced a prison term under the ISL of 15 years to life. He appealed from the judgment of conviction.

Caudillo entered state prison on November 25, 1975. Effective July 1, 1977, the Legislature replaced the ISL with the DSL (Pen. Code, §§ 1170-1170.6). The DSL was made expressly applicable to persons imprisoned for offenses committed prior to its effective date. (§ 1170.2.) Pursuant to section 1170.2, subdivision (a), the CRB recomputed Caudillo’s prison term to three years for burglary enhanced by one year for use of a deadly weapon and three years for infliction of great bodily injury during commission of his crime. The total term, as recomputed under section 1170.2, subdivision (a), thus amounted to seven years.

After reviewing Caudillo’s file pursuant to the terms of section 1170.2, subdivision (b), the serious offender provision, however, two members of the CRB tentatively determined that Caudillo should serve a term longer than that calculated under subdivision (a). On April 6, 1978, the CRB held a serious offender hearing. Finding the presence of factors permitting the imposition of a longer term under section 1170.2, subdivision (b), the CRB increased the burglary term from three to four years. To this four-year term, the CRB added three years attributable to the trial court’s great bodily injury finding, but inadvertently the CRB failed to consider the one-year enhancement for use of a deadly weapon. Thus, following the April 1978 serious offender hearing, Caudillo’s term was again set at seven years.

On May 15, 1978, the CRB, recognizing that at the April 6, 1978, hearing it had failed to consider the enhancement of Caudillo’s term for the use of a deadly weapon, ordered a new hearing in the case. At the new hearing on July 11, 1978, the CRB, after considering Caudillo’s record, concluded that a “total time assessment of seven (7) years was . . . appropriate.” Because an accurate conversion of Caudillo’s then-existing ISL judgment into a DSL equivalent pursuant to section 1170.2, subdivision (a) yielded such a seven-year term (three years (burglary) plus one year (use of a deadly weapon) plus three years (great bodily injury)), the CRB decided at that time that Caudillo’s DSL term could be set pursuant to section 1170.2, subdivision (a) and that an extension of the term pursuant to the provisions of section 1170.2, subdivision (b) was not then necessary. This conclusion, of course, rested entirely on the CRB’s assumption that Caudillo’s section 1170.2, subdivision (a) term would be seven years.²

On July 23, 1978, our decision in People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274] became final. In that decision, we found that the evidence did not support the great bodily injury finding, and we ordered the finding stricken from the judgment.³ On July 27, 1978, the superior court, acting pursuant to our remittitur, modified Caudillo’s judgment, striking the great bodily injury finding. The Department of Corrections received the amended abstract of judgment on approximately August 8, 1978.

On August 31, 1978, the Department of Corrections administratively recomputed Caudillo’s sentence to four years (three for burglary and one for use of a deadly weapon) and set his parole release date for September 22, 1978. The CRB was not apprised of this administrative recomputation and Caudillo was released on September 22. On October 24, 1978, the CRB learned of Caudillo’s release and ordered him rearrested for the purpose of holding a new serious offender hearing under section 1170.2, subdivision (b).

Caudillo filed the present petition for habeas corpus on October 27, 1978, seeking immediate release. On November 1, the Court of Appeal issued an order directing the CRB to show cause why Caudillo should not be released on parole. At the same time, with one justice dissenting, the Court of Appeal ordered Caudillo’s immediate release pending the hearing on the order to show cause. The following day, November 2, 1978, the Attorney General filed a petition for extraordinary relief in this court, seeking an immediate stay of the Court of Appeal’s order which had directed Caudillo’s release prior to a hearing on the merits of the habeas claim.

On November 3, 1978, pursuant to this court’s normal procedure, an order was issued temporarily staying enforcement of the Court of Appeal’s order to permit a review of the Attorney General’s petition by the entire Supreme Court. After all of the participating justices had an opportunity to review the Attorney General’s petition, the court unanimously agreed with the Attorney General’s position that Caudillo should not be released prior to a hearing on the merits of his claim. Accordingly, this court vacated the portion of the Court of Appeal’s order directing Caudillo’s immediate release. We then transferred the matter to the Court of Appeal to permit that court to hear the case and render a decision on the merits.⁴

On November 29, 1978, the CRB held a new serious offender hearing, found once again that the statutory prerequisites for serious offender treatment were present and set Caudillo’s DSL term at seven years.⁵ Caudillo challenged this action of the CRB in the pending habeas corpus proceeding, asserting, inter alia, that under section 1170.2, subdivision (b), the CRB lacked jurisdiction to implement the serious offender procedure and to hold a serious offender hearing. The Court of Appeal agreed with Caudillo’s argument and overturned the CRB action. We granted the Attorney General’s petition for hearing to determine the question of statutory interpretation presented.

2. The CRB has jurisdiction to hold serious offender hearings within 120 days following receipt by the Department of Corrections of an amended abstract of judgment.

The Legislature enacted the DSL in 1976, finding “that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in prpportion to the seriousness of the offense as determined by the Legislature.... ” (Pen. Code, § 1170, subd. (a)(1).) Section 1170.2 specifically provides for the redetermination of prison terms of prisoners who had committed felonies prior to July 1, 1977, the operative date of the DSL, and who had been sentenced under the ISL.⁶ Under section 1170.2, subdivision (a), the CRB must recompute a prisoner’s ISL term to its DSL equivalent, “utilizing the middle term of the offense bearing the longest term of imprisonment of which the prisoner was convicted increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony.” The initial recomputation from an ISL sentence to a DSL term under section 1170.2, subdivision (a) is largely mechanical and affords no discretion to the CRB in determining a prisoner’s DSL prison term.

The Legislature recognized that situations might arise in which mechanical recomputation from an ISL sentence to a DSL term pursuant to section 1170.2, subdivision (a) would result in the imposition of prison terms of inappropriate length. (In re Flodihn (1979) 25 Cal.3d 561, 569-570 [159 Cal.Rptr. 327, 601 P.2d 559].) Accordingly, it enacted section 1170.2, subdivision (b), the serious offender provision. That section provides that upon recomputing a prisoner’s term under subdivision (a), the CRB must set the prisoner’s parole date in accord with such recomputation “unless at least two of the members of the Community Release Board after reviewing the prisoner’s file, determine that due to the number of crimes of which the prisoner was convicted, or due to the number of prior convictions suffered by the prisoner, or due to the fact that the prisoner was armed with a deadly weapon when the crime was committed, or used a deadly weapon during the commission of the crime, or inflicted or attempted to inflict great bodily injury on the victim of the crime, the prisoner should serve a term longer than that calculated in subdivision (a).... ”

If the CRB makes a determination that a longer prison term is warranted in light of the prisoner’s record, the prisoner is entitled to a serious offender hearing before a panel consisting of at least two members of the CRB. At the hearing, the prisoner is entitled to be represented by counsel. After the serious offender hearing has been held, the CRB is required to set the prisoner’s parole-release date and inform the prisoner in writing “of the extraordinary factors specifically considered determinative and on what basis the release date has been calculated.” (§ 1170.2, subd. (b).)

The CRB is endowed with significant discretion in fixing a prisoner’s term under subdivision (b). Although the statute makes it clear that the CRB may not prescribe a prison term under which a prisoner would be incarcerated for a longer period of time than would have been permissible under the ISL (§ 1170.2, subd. (c); see also U.S. Const., art. I, § 10; Cal. Const., art. I, § 9), the provision places no other absolute limit on the CRB’s exercise of sentencing discretion. The section provides that the CRB is to be “guided by, but not limited to,” the term which could be imposed on a person who commits a similar offense under similar circumstances and is originally sentenced under the DSL, thus clearly indicating that the CRB may impose a greater term than prescribed under a mechanical DSL conversion. (See In re Greenwood (1978) 87 Cal.App.3d 777, 783 [151 Cal.Rptr. 223].) Moreover, the subdivision contains an explicit legislative declaration of a major factor to be taken into account by the CRB in setting a serious offender term, declaring that “the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration.” (See In re Flodihn, supra, 25 Cal.3d 561, 570.)

In light of the procedure set forth in subdivision (b), the Legislature plainly intended that the CRB determine the appropriateness of serious offender treatment with knowledge of the prisoner’s actual ISL sentence. Generally, the CRB will be informed of the prisoner’s ISL sentence at the time he is committed, or at the time it undertakes to recompute the term of a prisoner already committed. On the basis of such knowledge, the CRB can compute the prisoner’s DSL term and determine after a review of the record whether, in light of the statutory criteria, a serious offender hearing is warranted. In most cases, the prisoner’s ISL sentence and its DSL equivalent will remain unchanged. Thus, the CRB’s initial serious offender review will fulfill the legislative purpose.

In some cases, however, a prisoner’s actual ISL sentence will be altered at a date after his initial entry into prison. This sequence will most frequently occur when, as in the instant case, a portion of the prisoner’s judgment is modified on appeal, and the sentencing court issues an amended abstract of judgment to reflect the final ISL judgment.

The initial question in this case is whether the CRB has the authority to consider or reconsider the appropriateness of serious offender treatment when a sentence has been revised. In light of the statutory purpose of the serious offender provisions, we think that the CRB has such power. Alteration of an ISL sentence changes the corresponding DSL term. The CRB’s view of the adequacy of the new DSL equivalent may very well differ from its initial assessment. In providing for serious offender treatment the Legislature sought to make sure that, in converting California’s sentencing procedure from the ISL to the DSL, the public would be protected from the premature release of potentially dangerous and violent ISL offenders. It necessarily follows that the CRB should be able to consider serious offender treatment in light of an altered sentence.

In the instant case, Caudillo stands convicted of forcible rape, sodomy, oral copulation, first degree robbery, and first degree burglary. Moreover, he used a deadly weapon in the commission of these crimes. On the three different occasions when the CRB examined Caudillo’s record it decided that his DSL prison term should be set at seven years. The CRB could reasonably conclude that a four-year prison term in this case would have been inappropriate in light of the number of Caudillo’s serious felonies and the fact that he had used a deadly weapon during the commission of his crimes. (See fn. 5, ante.) By electing to hold a serious offender hearing following the modification of Caudillo’s judgmerit, the CRB sought to protect the public from the premature release of a prisoner whom it considered to be potentially dangerous or violent. The CRB’s actions thus served the underlying purpose of the serious offender provisions.

Although Caudillo does not take issue with the general proposition that the serious offender provisions of subdivision (b) contemplate that the CRB will reach its decision as to a prisoner’s serious offender status with knowledge of the prisoner’s actual ISL sentence, he argues that in light of certain language in subdivision (b) regulating the timing of serious offender hearings, the CRB in this case had no jurisdiction to hold a serious offender hearing on November 29, 1978. Specifically, subdivision (b) provides in pertinent part: “The [serious offender] hearing shall be held before October 1, 1978, or within 120 days of receipt of the prisoner, whichever is later.” Caudillo argues that since the serious offender hearing at issue herein was not held prior to October 1, 1978 or within 120 days of the time he was originally received as a prisoner by the Department of Corrections under the initial, unamended judgment, the CRB had no jurisdiction to hold the hearing and thereby increase his sentence.

As enacted in June 1977—just prior to the operative date of the DSL—section 1170.2, subdivision (b) provided that serious offender hearings “shall be held before April 1, 1978, or within 120 days of receipt of the prisoner, whichever is later.” (Stats. 1977, ch. 165, § 18, p. 651.) Subdivision (b) was amended in 1978 as an urgency measure after the CRB had advised the Legislature that it could not complete review of all the prisoner’s records before the April 1 deadline. The Legislature thus extended the deadline to October 1, 1978. (Stats. 1978, ch. 329, §§ 1, 7, pp. 673,678.) Such an extension demonstrates the Legislature’s concern that potentially dangerous offenders not be automatically released by virtue of the mechanical conversion of their ISL sentences to DSL equivalents under subdivision (a).

Significantly, the Legislature did not establish October 1, 1978, as an absolute cut-off for all serious offender hearings. Rather, it recognized that, for a period of time in the future, the CRB would be receiving new ISL sentences which required both conversion into DSL sentences and review for determination of whether serious offender treatment was appropriate. The Legislature thus afforded the CRB 120 days from such receipt within which it could hold serious offender hearings.

Caudillo argues that the statutory language “120 days from receipt of the prisoner” must be read to refer to the original receipt of the prisoner in state prison, without regard to whether the prisoner’s ISL sentence has been altered subsequent to his initial entry into prison. Under this interpretation, however, the CRB would frequently lose jurisdiction to determine the appropriateness of serious offender treatment before the prisoner’s ultimate ISL judgment was ever issued or received by the Department of Corrections. In light of the purpose of the serious offender provisions, we do not believe that the Legislature intended such a result. Since the serious offender procedure necessarily assumes that the CRB will have notice of the prisoner’s actual judgment before the CRB makes the serious offender determination, we conclude that the statutory reference to “receipt of the prisoner” must be interpreted to designate the receipt of the prisoner under an original or a modified ISL judgment.

3. The Department of Corrections’ release of Caudillo on parole did not preclude the CRB from redetermining his term within 120 days of the receipt of the amended ISL judgment.

Relying on our decision in In re Haygood (1975) 14 Cal.3d 802 [122 Cal.Rptr. 760, 537 P.2d 880], Caudillo argues that regardless of whether the CRB had jurisdiction to conduct a serious offender hearing within 120 days following the receipt of his modified ISL judgment, it lacked the power to redetermine his DSL term after he had served his term as administratively recomputed by the Department of Corrections and had been released on parole. For the reasons expressed below, we find that Haygood is clearly distinguishable from the case at bench, and we hold that the CRB did have jurisdiction to redetermine Caudillo’s term pursuant to its power under section 1170.2, subdivision (b).

In Haygood, we stated that Penal Code section 2940 mandated “that a prisoner be discharged upon the expiration of his term as fixed or re-fixed by the [Adult] Authority. No exception to this mandate exists for actions taken under an erroneous interpretation of either the applicable law or the provisions of a judgment.” (14 Cal.3d at p. 812.) Although we noted that “if the discharge were unauthorized by law... the Authority [could] continue to assert jurisdiction,” we concluded that “[i]n other cases... once a term has expired, the Authority has no power to revive it.” (Id.)

At the time Haygood was decided, section 2940 provided in pertinent part: “Where the Adult Authority is authorized to fix and refix the term of imprisonment of a prisoner, such prisoner shall be discharged from custody upon the completion of said term so fixed or refixed.... ” Enactment of the DSL resulted in the repeal of section 2940. We note initially, therefore, that our decision in Haygood turned upon a sentencing scheme which did not embody a serious offender procedure and which has since been repealed.

The provisions of the DSL relating to the release and discharge of a prisoner differ from those of former section 2940. Whereas section 2940 provided that a prisoner “shall be discharged from custody upon the completion of [the] term” fixed by the Adult Authority (italics added), section 3000 of the Penal Code presently provides only that at the expiration of the term established under the DSL an inmate “shall be released on parole.” (§ 3000, subd. (a).) Under the present statute, an inmate is not “discharged from custody” until “his successful completion of parole. .. .”(§ 3000, subd. (d).) Thus, in the instant case, even under the sentence as administratively recomputed by the Department of Corrections, Caudillo—unlike the prisoner in Haygood—was still lawfully “in custody” since he had not completed his period of parole.

We need not decide in the present case, however, whether the CRB or the Department of Corrections may correct an erroneous term computation at any time during a parolee’s term of parole on the ground that the inmate is still lawfully in custody, for we conclude that the CRB’s action in the case at bar was in any event proper because Caudillo’s DSL term was not “fixed” or “established” at the time of the November 29 serious offender hearing. Rule 2145 of the CRB (Cal. Admin. Code, tit. 15, § 2145) provides in relevant part: “If the prisoner has an ISL release date, the DSL release date shall be compared with the ISL parole date, and the prisoner shall be released on the earlier of the two. [If] The DSL release date shall be established following either of two methods: [a Penal Code section] 1170.2 (a) date.. .[or a Penal Code section] 1170.2 (b) date....”

In light of our conclusion that the CRB has jurisdiction to hold serious offender hearings pursuant to section 1170.2, subdivision (b) for 120 days following receipt of a modified ISL judgment, it follows that in cases in which an ISL judgment is modified, a DSL term previously computed pursuant to section 1170.2, subdivision (a) may not be considered final or “established” until those 120 days have elapsed. Thus, whether or not the Department of Corrections had been authorized under existing administrative practices to release Caudillo on parole on September 22, 1978, Caudillo’s DSL term was still subject to and dependent upon the CRB’s reevaluation and ruling on November 29, 1978. (Cf. In re Fain (1976) 65 Cal.App.3d 376, 388-391 [135 Cal.Rptr. 543].)

4. Caudillo is not entitled to any relief under Morrissey v. Brewer (1972) 408 U.S. 471.

On December 7, 1978, in a “supplemental traverse” to the People’s return to the order to show cause Caudillo for the first time contended that his arrest and reconfinement was invalid in that the termination of his parole status had not been preceded by a due process hearing as prescribed in Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593] and its California progeny. (See, e.g., People v. Vickers (1972) 8 Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313]; In re Prewitt (1972) 8 Cal.3d 470 [105 Cal.Rptr. 318, 503 P.2d 1326].)

Caudillo did not raise the Morrissey question until December 7, 1978. By this time he had already had an administrative hearing at which he raised all the objections which could have been raised at a Morrissey hearing. That hearing, a serious offender hearing, took place on November 29, 1978. At that hearing the CRB rejected all Caudillo’s contentions as to the legality of his reconfinement and authorized his continued imprisonment.

Moreover, we have held that “a parolee... is not entitled to have the revocation [of parole] set aside unless it appears that the failure to accord him a prerevocation [Morrissey ] hearing resulted in prejudice to him....” (In re La Croix (1974) 12 Cal.3d 146, 154 [115 Cal.Rptr. 344, 524 P.2d 816].) Without question Caudillo could not and did not demonstrate any prejudice to him by the fact that a prerevocation hearing was not held.

In La Croix, the prisoner, while on parole, had been arrested and convicted of drunk driving and thereafter had sustained a revocation of parole at an in-prison parole revocation hearing. The prisoner then brought a habeas proceeding, seeking release from confinement on the ground that he had improperly been denied a timely prerevocation hearing. He argued that “in all instances of a wrongful denial of a timely prerevocation hearing a parolee must be restored to parole status.” (12 Cal.3d at p. 155.)

We unanimously rejected the contention that such a denial entitles a prisoner to release on parole. Instead, we concluded that “a parolee... is not entitled to have the revocation set aside unless it appears that the failure to accord him a prerevocation hearing resulted in prejudice to him....” (12 Cal.3d at p. 154.)

On the facts of La Croix, we found it “manifest that... petitioner cannot establish that he was prejudiced by the denial of.. .a timely prerevocation hearing.” (12 Cal.3d at pp. 154-155.) We explained that “[h]e does not suggest any manner in which he can successfully challenge the fact of his post-parole conviction of driving while under the influence of intoxicating liquor and the fact that such conviction constituted a violation of a condition of parole. He presents nothing which even suggests that all factual issues to be presented at the summary prerevocation hearing to which he was entitled would not necessarily have been resolved against him... .He thus fails completely to demonstrate prejudice [citation], and we can declare without reservation that the denial in this case was harmless beyond a reasonable doubt. [Citation.]” (Italics added.) (12 Cal.3d at p. 155.) (See also In re Shapiro (1975) 14 Cal.3d 711, 717-718 [122 Cal.Rptr. 768, 537 P.2d 888].)

It is equally “manifest” in the instant case that Caudillo can demonstrate no prejudice flowing from the absence of a prerevocation hearing. Having found under the governing statutes that the CRB acted lawfully in resetting Caudillo’s term of imprisonment at seven years on November 29,» 1978, we have necessarily upheld, as a matter of law, the legality of Caudillo’s present confinement. Caudillo has had a full opportunity in this proceeding to litigate all of the relevant legal issues, and has suffered no prejudice in this regard from the absence of a prerevocation hearing.

As our decision in La Croix recognizes, under such circumstances an order directing Caudillo’s release on parole because of the earlier failure to afford a prerevocation hearing would be pointless. Inasmuch as all of the relevant legal issues have been resolved against Caudillo by the present opinion, Caudillo’s immediate reimprisonment would inevitably follow. Accordingly, Caudillo is not entitled to relief on this ground.

In sum, we conclude that the CRB acted within its jurisdiction when it held a serious offender hearing and recalculated Caudillo’s term within 120 days of receipt by the Department of Corrections of the amended abstract of judgment.

The order to show cause is discharged, and the petition for the writ of habeas corpus is denied.

Richardson, J., Manuel, J., Newman, J., and Racanelli, J.,^* concurred.

1 Pursuant to a statutory revision effective January 1, 1980, the Community Release Board has been renamed the Board of Prison Terms. (Stats. 1979, ch. 255, § 1 et seq.) Because at all times relevant to the instant case the agency was designated the Community Release Board or CRB, we shall refer to the agency by that designation throughout this opinion.

2 Although the dissent suggests that the CRB panel which conducted the July 11, 1978, hearing was aware of this court’s opinion in People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274] and took that decision into account in setting Caudillo’s term at that time, this suggestion is totally untenable in light of the fact that the CRB panel specifically concluded on July 11 that a “total time assessment of seven (7) years was deemed appropriate.” If the panel had anticipated that the great bodily injury enhancement would be eliminated, the panel would have computed Caudillo’s section 1170.2, subdivision (a) term as only four years, and would not have set the term pursuant to subdivision (a) if, as it indicated, it believed that “a total time.. .of seven ... years was... appropriate.”

3 We also reversed Caudillo’s conviction for kidnaping, but inasmuch as the sentence on the kidnaping conviction had been stayed by the trial court, this aspect of our decision did not alter Caudillo’s sentence.

4 This court has followed a similar procedure on numerous occasions. (See, e.g., No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 79 [118 Cal.Rptr. 34, 529 P.2d 66].)

5 In setting Caudillo’s term at the November 29 hearing, the CRB enumerated the factors that had gone into its 7-year (84-month) term-fixing determination. First, the CRB concluded that it should impose the upper term, 48 months, for the “base offense ”—first degree burglary—because (1) “the base crime was characterized by repeated acts of sodomy and oral copulation in a cruel and callous manner,” (2) “the subject was on probation at the time of the commitment offense,” (3) “past probation behavior indicates that the subject was on probation only four months when the base offense was committed," and (4) “[the] planning and sophisticated manner in which the crime was committed indicates premeditation (the tire of victim’s automobile was slashed to prevent her departure).”

Second, the CRB imposed an enhancement of 12 months for use of a weapon, noting that it (as well as the trial court) had made a factual finding that the knife was held at the victim’s throat. Finally, the CRB indicated that it was imposing an additional enhancement of 24 months for attempted great bodily injury, noting that in light of the facts described in this court’s decision in People v. Caudillo, supra, “the panel finds... that the subject did attempt to inflict great bodily injury on the victim.” Added together, the 48-month, 12-month and 24-month periods total 84 months or 7 years.

In light of the numerous factors which aggravate the seriousness of Caudillo’s conduct, it is clear that the dissent paints an inaccurate picture in suggesting that Caudillo’s sentence is disproportionate in comparison to prisoners who have simply been convicted of first degree burglary. (Post, pp. 639-640.) The CRB’s findings demonstrate without question that Caudillo was not “just” a first degree burglar. Indeed, Caudillo himself does not claim that the CRB abused its discretion under section 1170.2, subdivision (b) in setting his ultimate term at seven years in view of the circumstances of his offenses; Caudillo contends only that by November 29, 1978, the CRB had lost jurisdiction to hold a serious offender hearing and recompute his term.

6 Section 1170.2 provides in relevant part: “(a) In the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he had committed it after July 1, 1977, the [Community Release Board] shall determine what the length of time of imprisonment would have been under Section 1170 without consideration of good-time credit and utilizing the middle term of the offense bearing the longest term of imprisonment of which the prisoner was convicted increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony....

“(b) If the calculation required under subdivision (a) is less than the time to be served prior to a release date set prior to July 1, 1977, or if a release date had not been set, the [Community Release Board] shall establish the prisoner’s parole date, subject to subdivision (d), on the date calculated under subdivision (a) unless at least two of the members of the [Community Release Board] after reviewing the prisoner’s file, determine that due to the number of crimes of which the prisoner was convicted, or due to the number of prior convictions suffered by the prisoner, or due to the fact that the prisoner was armed with a deadly weapon when the crime was committed, or used a deadly weapon during the commission of the crime, or inflicted or attempted to inflict great bodily injury on the victim of the crime, the prisoner should serve a term longer than that calculated in subdivision (a), in which event the prisoner shall be entitled to a hearing before a panel consisting of at least two members of the [Community Release Board] as provided for in Section 3041.5. The [Community Release Board] shall notify each prisoner who is scheduled for such a hearing within 90 days of July 1, 1977, or within 90 days of the date the prisoner is received by or returned to the custody of the Department of Corrections, whichever is later. The hearing shall be held before October 1, 1978, or within 120 days of receipt of the prisoner, whichever is later. It is the intent of the Legislature that the hearings provided for in this subdivision shall be accomplished in the most expeditious manner possible. At such hearing the prisoner shall be entitled to be represented by legal counsel, a release date shall be set, and the prisoner shall be informed in writing of the extraordinary factors specifically considered determinative and on what basis the release date has been calculated. In fixing a term under this section the board shall be guided by, but not limited to, the term which reasonably could be imposed on a person who committed a similar offense under similar circumstances on or after July 1, 1977, and further, the board shall be guided by the following finding and declaration hereby made by the Legislature: that the necessity to protect the public from repetition of extraordinary crimes of violence against the person is the paramount consideration.

“(c) Nothing in this section shall be deemed to keep an inmate in the custody of the Department of Corrections for a period of time longer than he would have been kept in its custody under the provisions of law applicable to him prior to July 1, 1977.” (Italics added.)

* Assigned by the Acting Chairperson of the Judicial Council.