*1 12, 1978.] No. Dec. 20002. [Crim. PEOPLE,
THE Plaintiff and Respondent, ARBUCKLE, EUGENE
MICHAEL Appellant.
Counsel E.
David Kenner for Defendant Appellant. Winkler, General, Chief Assistant J. Jack R. Evelle Younger, Attorney General, Robert F. General, Moore, S. Clark Assistant Attorney Attorney General, Plaintiff Kaufman, M. Katz and Attorneys Deputy Stephen and Respondent.
Opinion
MOSK, J. from a sentence following appeals imposed he in a After extensive pretrial charged, negotiated plea. proceedings, information, consolidated assault with a (count I) weapon deadly Code, with intent to commit murder with a (Pen. 217), (count II) § assault Code, (Pen. subd. (a)), (count III) § deadly weapon possession for the & (Health sale Saf. 11359). marijuana purpose Pursuant to a defendant entered count plea bargain, guilty return, dismissed, I. II In it was that counts and III would agreed *4 defendant would be referred to the of Corrections for Department aof under the section 1203.03 the preparation report provisions Code, and that the would Penal “follow the recommendation” judge made in such defendant. report
In its the of Corrections concluded the report, defendant Department should receive a term because (1) was prison probation supervision him; deemed he was (2) considered an unreasonable inadequate threat to the and (3) the likelihood of recidivism in his case community; was considered to be a the high.1 Expressing minority viewpoint, correctional counselor recommended with of maxi- probation, imposition mum time. Her enumerated several factors which favor county jail report criminal (1) behavior had occurred in an unsettled probation: period life, i.e., the defendant’s divorce; after marital conflict and he is (2) behavior; remorseful and admits his he has (3) freely wrongful strong efforts; in his rehabilitation and while family allowed to live support in the under bail bond was, court community he pending proceedings, indications, from all a law and citizen—even to the abiding productive extent of the wireman’s examination of his passing local journeyman electrician’s union and in that maintaining employment category. committee, 1The composed of the and casework superintendent supervisor, reviewing was in accord with the clinical a The psychologist sentence. recommending prison evaluation indicates that the psychological General Classification tests were following administered: “Army Test, Test, California Shipley-Hartford, Achievement Minnesota Clerical, Board, Kuder, Minnesota Form DAT Mechanical Paper Minnesota Reasoning, Draw-A-Person, Sentence Multiphasic Inventory, Who- Personality Completion, Are-You, Information, Nevertheless, Personal and the Diagnostic Interview.” conclusions reached seem to be based on the nature of the crime rather itself than as the result of The concludes as follows: is a testing. and he can report “Subject ability person amake favorable an offense was interview. impression during present predatory serious act. A cannot offered at this time.” positive aggressive prognosis had been the of Corrections After from received, moved for a defendant hearing challenge alleged report, evaluation, and deficiencies in the sought subpoena psychological The motion was denied and the personnel report. both were to motion People, rulings subpoenas quashed pursuant London, made Robert H. who had being by Judge accepted bargain. then a writ to unsuccessfully sought compel hearing interim, to allow staff witnesses to be In the subpoenaed. Judge London was transferred to another of Los department Angeles County Court. The case called before Superior subsequently Judge Raymond R. Roberts. Defendant of sentence objected imposition by Judge Roberts; he insisted that he was entitled to be sentenced by Judge London under the terms of the His for a transfer plea bargain. request was denied and Roberts sentenced him to for the term Judge prison law. prescribed by *5 first contends that his to a right probation to Penal Code section 1204
sentencing was hearing pursuant effectively denied because he was not to the cross-examine of Corrections who or to introduce personnel report expert used the staff. He testimony challenging methodology by correctly asserts evidence right or present tending mitigate punishment assist in the Code, determination of his for (Pen. application probation. 1204; 932, § v. 26 939 (1972) People Barajas Cal.App.3d Cal.Rptr. [103 405]; v. 145, Valdivia 182 (1960) 148 People 832].) Cal.App.2d Cal.Rptr. [5 The defendant is entitled to an to adverse opportunity respond (In 75, information. re Calhoun 17 Cal.3d 84 (1976) [130 139, Here, 549 P.2d however, 1235].) defendant did not offer or Cal.Rptr. evidence; his own rather he to discredit the produce sought only report submitted to the court under Penal Code section Thus he 1203.03. chose not material, affirmative even has present though Legislature shall not be to a defendant expressly provided probation granted who committed an assault with intent to commit murder “[e]xcept unusual cases where the interests of would best be served . . . .” justice 1203, (Pen. subd. (d).)
The three cases cited defendant of asserted support right confrontation are of little aid in of merits his contention determining
754
since the claimed in each as instance waived or right rejected being not in the trial court. v. Label 43 (1974) protected by objection (People 766, 775 522]; v. Walker 266 (1968) Cal.App.3d Cal.Rptr. People [199 562, 224]; 568 v. Clements 202 (1962) Cal.App.2d Cal.Rptr. People [72 284, 287 There is no Cal.App.2d Cal.Rptr. statutory support [20 the asserted to confront and cross-examine as witnesses those right which, 1203.03, to section must contain a prepare pursuant and recommendation in diagnosis writing.2 of Neither does the confrontation in these circum purported right derive from Sixth and stances Fourteenth Amendments to the federal I, 15, of Constitution or article section In California Constitution. 241, 1337, 1344, v. Williams New York 337 U.S. 251 L.Ed. 69 (1949) [93 1079], S.Ct. United States Court concluded the federal Supreme due clause does extend the same at process evidentiaiy protections as exist at the trial. A sentencing proceedings sentencing judge with the Due of Process Clause the Fourteenth “may, consistently Amendment, consider unsworn or ‘out-of-court’ information responsible relative to the circumstances the crime and to the convicted person’s (Williams 576, life and characteristics.” v. Oklahoma 358 (1958) U.S. 584 521-522, 516, 79 L.Ed.2d S.Ct. 421].) [3
More several courts have held the Sixth Amendment directly, right confrontation at the a criminal inapplicable sentencing stage prosecu- (2d 509, 511, tion. United States v. 381 (See, Fischer Cir. F.2d 1967) e.g., 1185, U.S. 973 cert. den. L.Ed.2d 1064]; S.Ct. Fernandez [19 (9th Meier Cir. F.2d 1970) 427.) haveWe examined due in the context of *6 previously process protection and “While New Williams does probation sentencing hearings. [v. York] the same at as in safeguards require procedural probation hearings the of a the case trial on issue of an for is guilt, probation applicant to nevertheless entitled relief on due if the process grounds hearing are v. Peterson 9 Cal.3d (1973) procedures fundamentally (People unfair.” 717, 835, 1187]; 511 P.2d italics of added.) [108 Cal.Rptr. Reliability 2Defendant on Penal section 3 which to Code subdivision attempts rely provides defendant with the to be with the That right criminal confronted witnesses him. against is trial issue of a criminal Even to on the in action. designed during guilt provision apply to that it to were we assume was intended and arguendo apply probation the 3(a) subdivision be admitted that: evidence hearings, provides “Hearsay may it is admissible in a the law extent that otherwise criminal action under of this state.” Penal section 1203.03 for of the would come Code admission it therefore provides report; (3)(a). (See in within the set forth subdivision exception Ingram People 435, 439 Cal.Rptr. Cal.App.2d [77 the the court the in information considered issue by key determining fundamental In the of a officer at the fairness. Peterson testimony police comments made an informant probation hearing regarding hearsay by at held reliable for consideration the trial court. (Id., was sufficiently by the herein has inherent because 727-728.) Similarly, reliability pp. report it made to a court order by objective government pursuant expert, Further, does not duties. the of their official report pursuit personnel isolation; the its recommendation was stand in by probation supported for and officer’s probation statutory presumption against report 1203, subd. murder (Pen. (d)). with intent to commit assault The defendant could have factual statements con challenged evidence; tained in the his own but fundamental report by presenting fairness does not that he be allowed to such statements require challenge who nor does it by cross-examining personnel report, that he be methods require challenge professional they face; was fair on its a full on collateral employed. report hearing issues in an circle from the central issue—the emanating ever-widening sentence to be therefore not warranted. proper imposed—is We cannot be oblivious to the drain on and time resources public 2,000 3,000 demands of defendant would Between impose. diagnostic are at Corrections two reports prepared annually by men, institutions one in Northern California one (Vacaville) Southern California and one If (Chino), statewide for women (Corona). each criminal defendant the 58 could at will counties throughout all of the in the evaluation of his™ subpoena personnel participated court, rehabilitative and the to the potential preparation would be in travel to and almost department experts engaged exclusively from courts and in court Neither the appearances. express provisions statute nor the number of available at the institutions any personnel indicate a intent corrections present legislative require personnel available for such court examination It seems pervasive purposes. of in-court would apparent requirement seriously testimony hinder the therefore to courts preparation diagnostic denying reports, *7 defendants this useful device.3 Absent a many deserving contrary an attack other the 3AlIowing by on utilized to such experts methodology prepare issue, would also from the relevant reports stray would have the further consequence the with forcing in-court of the or in People respond testimony challenged experts however, of them. We that support the defendant is not from emphasize, prevented his own producing an alternative expert testimony rehabilitation present program. Code, (Pen. 1204.) § command, it should be within the sound discretion of the trial
legislative court to determine those instances when in-court is testimony required a fair No abuse of provide discretion fundamentally proceeding. appears in the instant case.
Defendant further contends that since the elevated plea bargain the of Corrections recommendation to the sole basis for it a to cross-examine the sentencing, implicitly provided right personnel herein, section 1203.03 however, report. does not a different role than it would in the case of play fundamentally defendant; factor, other it others, one considered any simply among by his function. No or judge performing sentencing bargain agree ment can divest the of the discretion he judge sentencing inherently 248, v. Navarro 7 Cal.3d possesses. (People [102 Cal.Rptr. Thus, 497 P.2d no is created such an special procedural right by that the defendant could have withdrawn his agreement, except guilty should the have to sentence him to plea judge proposed prison contrary to the recommendation. (Pen. Because here 1192.5.) probation the court followed the recommendation in accordance with the plea defendant cannot that this was bargain, complain aspect agreement violated.
II further that Roberts’ refusal to transfer urges Judge erroneous; case to London was he one of the asserts terms Judge in the was that London would implicit plea bargain Judge perform function. We that the herein was entered in sentencing agree bargain plea of and in reliance sentence the same expectation upon being imposed Our conclusion is use of the judge. supported by judge’s repeated when in the personal pronoun referring sentencing proceeding which the plea bargain accepted.4 a moreover,
As whenever general principle, plea accepts and retains discretion under an bargain sentencing agreement, 4The reveals this statement of London: “I have transcript as has Judge agreed, your Kenner, Prison, Mr. I that before could send the State attorney, would have to you get and I would follow the recommendation.” 90-day diagnostic study we Because conclude that London’s éxercise of function was a Judge term the we need not consider defendant’s motion for leave to plea bargain, produce evidence—i.e., additional affidavits of London and defendant’s Judge attorney stating that the was entered into London would be the understanding Judge sentencing judge.
757 term of the is sentence will be implied bargain imposed by Because of the of available to a judge. range dispositions sentencing in demonstrated a judge, propensity sentencing by particular judge an factor in the defendant’s decision to enter a inherently significant 2 Cal. Criminal (See Law Practice guilty plea. (Cont.Ed.Bar 1969) Sentenc- 19.9, 137-138; al., Somit et Judicial ing, pp. Aspects Sentencing of Behavior 613; 21 (1960) U.PittX.Rev. also see discussion of judicial Frank, in Frank, Courts on Trial 201 and predictability (1949) Law ff., p. and the Modem Mind (1936) 111-112.) pp.
Because the defendant has been denied that of his aspect plea bargain, the sentence another cannot be allowed to stand. imposed by judge v. 144, Preciado 78 148 (1978) (People 102]; Cal.App.3d Cal.Rptr. [144 v. 600, Uribe 55 (1976) 604-605 People 822]; Cal.App.3d Cal.Rptr. [127 292, Newton (1974) 298-299 People 690]; Cal.App.3d Cal.Rptr. [116 see also v. Kaanehe 409, 19 Cal.3d People Cal.Rptr. [136 P.2d The defendant is entitled London, to be sentenced by Judge or if internal court administrative render that then practices impossible, in the alternative defendant should be to withdraw his plea.5 is reversed and the case remanded judgment for further proceed- in accordance with the views ings herein. expressed
Tobriner, J., J., Manuel, and concurred. NEWMAN, J., I donot with the conclu- Concurring. agree majority’s sion that “the herein has inherent because it was made reliability ato court order pursuant by expert, objective government personnel of their official duties.” Fundamental I believe, fairness pursuit requires, that a defendant in cases like this be some allowed kind confrontation of the as well as an their “experts” opportunity challenge methodology.
I concur in the that defendant was denied of his holding part plea however, and thus bargain, agree majority’s disposition case. courts, 5We that in recognize multi-judge judge criminal cases one month hearing be
may to other assigned departments months. However a subsequent defendant’s reasonable his expectation sentence having imposed, pursuant bargain guilty took his plea, judge ordered sentence should thwarted reports for mere administrative convenience. If the is not available for original judge after purposes plea bargain, defendant must be given option proceeding before the different available or of his withdrawing plea. *9 758
BIRD, C. J. and with the views concurring dissenting I agree expressed Justice Newman. by my colleague,
RICHARDSON, J., and I concur in that Concurring Dissenting. of the which holds that a portion while defendant a opinion has majority evidence right present or assist in the tending mitigate punishment determination of his for he has no application probation, right cross-examine the of Corrections’ who Department employees or to introduce the methods used expert testimony challenging the staff. by dissent,
I however, from that of the respectfully portion majority that, which holds as a whenever a opinion general principle, a one of the and enforceable terms of the accepts plea bargain implied is that sentence will be bargain by imposed particular judge In no should be made a accepts plea. opinion my promise express by court, the counsel; or defense nor a should such condition in prosecutor, the usual case A to a defendant a that routinely implied. promise will has sentence been held to be particular judge impose improper, it because an undesirable encourages “judge-shopping,” practice should be Preciado discouraged. (People Cal.App.3d Cal.Rptr. [144 it
Because in the matter before us that of the appears entry plea conditioned a sentence who was upon imposition by particular judge available, to meet failure the condition a breach constituted and defendant must be to withdraw his bargain plea guilty plea if he so elects. replead CLARK, J., I concur in the Concurring Dissenting. majority insofar as it holds an has no opinion probation applicant right cross-examine the of Corrections employees preparing or introduce diagnostic report expert testimony challenging methodology they employed.
I Justice Richardson in from the dissenting majority join opinion that, as it conditioned insofar holds a generally, bargain impliedly I on sentence the judge plea. being pronounced by accepting agree be made with Justice Richardson “no should promise express court, counsel; defense nor should such condition or prosecutor, the usual case be (Ante.) routinely implied.” as it further dissent from the insofar reverses majority opinion *10 and remands the cases for further in accordance judgment proceedings therein, viz., with the views that “defendant is entitled to expressed London, sentenced or if court internal administrative by Judge practices render that then in the alternative defendant should be impossible, (Ante, 757.) withdraw his plea.” p.
There was substantial with the The compliance plea bargain. bargain that defendant would be referred to the provided pertinent part of Corrections of under Department preparation diagnostic report of section 1203.03 of the Penal and that the provisions would follow the recommendation made in sentencing report The defendant.1 recommended defendant be sentenced to report prison. Defendant was so sentenced. He therefore has of which nothing complain.
I would affirm accordingly judgment. which has been on the obligation Court this placed bargain 1"[The court:]
that could send to State I not would send you directly rather. State prison; you under prison provisions of Penal Code Section 1203.03.That for a provides 90-day Corrections, to me diagnostic offered from the study report and that concludes as to usually recommendation whether or should you go Kenner, the State for the rest term. I have as prison has Mr. your agreed, your attorney, before could send State to the would have you prison. get 90-day diagnostic and would study recommendation. Do understand that? you follow Yes, “The defendant: sir. “The And court: the other would be Do charges against dismissed. understand you you that? Yes, “The defendant: sir. “The Do court: there you understand have been other made? no promises Yes, “The defendant: sir. “The Do court: you know what of a violation of Penal Code Section 217 charge carries insofar a State as sentence? prison Yes, “The defendant: sir. “The “The defendant: 1 to 14. What court: is that? “The Do court: is a you know there distinct that that is the sentence vety you possibility will as a get result this plea? Yes, “The defendant: sir. “The court: You still want your to enter plea? Yes, added.) (Italics “The defendant: sir.”