Gulbrandsen

*1551 Opinion

This appeal involves a federal prisoner awaiting transfer who escaped without force from a county jail, promptly committed a burglary, and received two consecutive sentences for his criminal efforts. The case raises two sentencing issues. The first is whether, given the crimes committed, the imposition of a state term of imprisonment consecutive to a federal term constitutes a “sentence choice” requiring the recitation of reasons. We hold that it does. Under the circumstances of this case, we cannot conclude the failure to state reasons was harmless, so we must remand the case to the trial court.

The second issue is whether we should direct on remand that a new judge preside at resentencing. We conclude that mere sentencing error by the original judge does not justify such a direction and therefore decline to issue it in this case.

Facts and Procedural History

Defendant was incarcerated in the Colusa County jail awaiting transportation to a federal prison where he was to commence serving a 20-year sentence for the federal offense of bank robbery. ( 18 U.S.C. § 2113 .) On August 6, 1984, he escaped from jail without force or violence and then burglarized a…

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 *1564 escapes 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,…