People v. BeasleyPeople v. Beasley
Lead Opinion
Opinion
Thе People appeal from orders of the superior court (1) dismissing two counts of rape (
The record before us discloses the following.
The victim of the offenses charged against Morris and Beasley was an unmarried young lady of 22 years whose given name, Lois, will be used by
Defendant Morris who “was the most aggressive and vile of the three,” was the car’s driver. He drove while one of the others placed his hand over Lois’ throat and told her to stop screaming. She was promptly relieved of the contents of her purse and a valuable topaz ring, and told that she was “going for a long ride.” The car was driven somewhere “up in the hills” where the men took off the girl’s upper clothing; she was ordered to remove the remainder. She complied because she believed Morris would carry out a threat he made to kill her. The men then raped her one by one, accomplishing six acts of sexual intercourse. One of the men tried to force the girl to orally copulate his sexual organ, but was somehow discouraged from the act. The men then disagreed over what they should do next. Morris’ expressed thought was “we’re going to have to kill her — we’re going to have to get rid of her.” Another suggested that they disfigure her face. Further violence was averted when the discussion turned to the “ransom” possibilities of the situation. Lois very intelligently entered into this conversation. She explained that she was a hotel cashier and that she took in about $600 cash during her shift. If they took her home and didn’t “bash up my face or anything” she agreed that the men could come to her cashier’s cage the next night and “say, ‘All right, hand over your money,’ and I’ll givе it to you and I’ll wait for a few minutes until you have a chance to get out and everything, and then I’ll tell one of the bartenders, because the bartenders are right next to the cashier, and I said, ‘I’ll just say I have been held up,’ you know. And I said, ‘That’s all there is to it.’ I said, ‘Nobody will get hurt,’ you know. I said, T won’t lose my job, and the hotel is insured.’ ”
There can be no doubt concerning the reliability of Lois’ recollection of the events of the evening in question, for her statements to the police and later to the grand jury were fully corroborated by uncontested confessions of Morris and Beasley. The men were thereafter released on bail.
Morris, Beasley and Jackson were each indicted by the San Francisco County Grand Jury on three counts of rape (
The remainder of the pertinent factual history of this case relates to proceedings before Superior Court Judge Bernard J. Glickfeld to whose department of the court the Morris and Beasley cases had been assigned.
Morris and Beasley pleaded not guilty to all charges. Jackson, who had a prison record, pleaded guilty to one of the charges against him and was returned to prison. On motion of the district attorney the remaining charges against him were dismissed.
It is conceded that following the arraignment of Morris and Beasley and their not guilty pleas, two successive unreported and otherwise unrecorded conferences were held in the chambers of Judge Glickfeld. Present at the meetings were the judge, counsel for Morris and Beasley, and an assistant district attorney. Agreements were reached, over the objection of the district attorney, for what Morris describes in his brief as a “ ‘package disposition’ of all the five charges.” Under this arrangement Morris and Beasley would each plead guilty to the robbery charge and to one of the rape charges. In return the judge promised to refer Beasley to the California Youth Authority,
On February 21, 1969, Morris and Beasley appeared in court with their attorneys. Counsel asked leave to withdraw the previous not guilty pleаs and to enter “new and different” pleas. Judge Glickfeld responded: “It is my understanding, just so we get this straight, that both of you men are going to enter guilty pleas to a 211 [robbery], Second Degree, and to a 261 [subd. 4], which is the rape charge?” Defense counsel agreed that such was the understanding previously reached. The judge then said: “I will tell you what this means and what I intend to do. And there is a third charge which is kidnaping with intent to commit robbery. And it is my intention at the proper time when the probation reports come in to dismiss that charge pursuant to section 1385 of the Penal Code.”
Addressing Beasley, Judge Glickfeld then said: “Now, I said upon a plea what I would do is refer your matter to the California Youth Authority. And after you plead your attorney would make a motion for probation, and it takes about 3 weeks. And you would remain on bail or OR[
A moment later the judge announced: “It would be my intention to dismiss 1 [rape], 3 [rape], and 4 [kidnaping] on Mr. Morris.” Questioned by the court clerk as to the disposition of the remainder of Beasley’s charges,
Prior to the time set for the probation hearings the probation officer filed his report recommending that probation be denied as to both Morris and Beasley.
Lois, the victim of the admitted crimes, was directed to be present on March 21, the date set for hearing on the probation motions. On the morning of the probation hearing she was aсcompanied to the courtroom by a police inspector. This circumstance appears to have been a source of irritation to Judge Glickfeld and he castigated the inspector and his superior officer for their solicitude on Lois’ behalf.
Penal Code section 1204 reasonably requires the district attorney in cases such as this to have the victim present at the probation hearing. That section provides that at the hearing circumstances of aggravation or mitigation “must be presented by the testimony of witnesses examined in open court” and by report of the probation officer as provided in Penal Code
Later that morning the probation proceedings were called. After some discussion about a continuance the following appears in the record:
“[Judge Glickfeld] . . . For what it is worth, anyway, but the only thing that disturbs me, and I will say this here on the record, is that I just don’t like the undercurrent of pressures that are being put on from the
“Mr. Smith [of defense counsel]: Or the police department.
“[Judge Glickfeld]: And I won’t tolerate an^ pressures on the police either, and having somebody telling me he is here to protect somebody. I have got some pretty good protection here. So everything will go over to the 8 th on the motions. ... I will tell you one thing, if you find out any direct pressures have been exerted on any arm of the court, the probation department, police department, or anything else, I will bring the person before the court and there will be a hearing on a question of contempt of court. And I will tell you this right now, and with all the consequences that follow from it, if it comes to my attention, and that means everybody.”
The hearings were then continued to April 8. On that day Beasley, as promised, was committed to the California Youth Authority and the three remaining counts of the indictment against him were dismissed under the purported authority of Penal Code section 1385. Morris’ hearing was continued to April 11.
On the April 11 hearing the record shows the following, among other things, to have occurred:
“[Judge Glickfeld] : And Mr. Morris is 22 and so he is not eligible for that [California Youth Authority], and I had recommended Work Furlough Program. And the chief probation officer [Mr. Kavanaugh] was under a misinformation as to the powers of the court and apparently he thinks he is a judge, and I am not going to let him preempt my position or that of Judge Karesh or Judge Neubarth. I am not going to get into any discussion with him at this time, but the future will take care of itself. But the report indicates that probation should be denied and they say the man is ineligible for Work Furlough. And I just want to point out for the record that another man was put on Work Furlough who had two previous felonies without permission of the court and who was charged
“I know that the district attorney’s office is strongly opposed to this, and I say this sincerely, but there is a lot of hocus-pocus in the background here, and I am going to persist in my judgment. And I sit here and I am responsible for this judgment, and it is my conscience, and I am going to answer to my God for my judgment. ... At this time I don’t want to make a fuss about the Work Furlough, but I will put you on probation for a period of three years, and as a condition of probation you are to spend the next 52 weekends in the county jail commencing Friday night at 7 o’clock, and you will be released at 6 o’clock Monday morning.[
“Counts 1 [Rape], 3 [rape], and 4 [kidnaping to commit robbery], which I indicated I am going to dismiss pursuant to section 1385 of the Penal Code, I am dismissing such counts.
“Mr. Norman: And may the record indicate the district attorney is objecting to the dismissing of those counts and it is the district attorney’s position, and he requests this court to set those matters for trial as soon as possible.
“[Judge Glickfeld] : I have already dismissed them and I can’t set something I have dismissed.
“Mr. Norman: Well, we would ask your Honor to not dismiss and to set them for trial.
“[Judge Glickfeld]: I have already dismissed them, and if you want to appeal the use of my discretion, you have a remedy.
“Mr. Norman: We understand that. And for the record, Your Honor, and on behalf of the district attorney, it is felt that this is one of the most vicious and most aggravated offenses that has come in this county in the last several yeаrs, and we are objecting to the sentence in this case and feel that probation is not in order at all. . . . Might I inquire of the court just what hocus-pocus the court has said or alluded to?
“[Judge Glickfeld] : There has been a lot of pressure here. I have talked to Mr. Kavanaugh and I indicated the hocus-pocus, Mr. Norman, by reason of the type of person that was put on the Work Furlough, and I have indicated it because Mr. Kavanaugh was trying to preempt the
Judgment against Morris was then pronounced; he was sentenced to state prison on each of the counts to which he had pleaded guilty. Judge Glickfeld thereupon ordered that each of the sentences be suspended, and that Morris be placed on probation on each count for three years, on condition that he serve 52 weekends in the county jail.
The People contend: (1) that Judge Glickfeld abused his discretion in granting probation to Morris, and in dismissing the unresolved charges of rape and kidnaping to commit robbery against Morris and Beasley; (2) that under the law (
The People’s first contention, as indicated, relates to the “discretion” vested in courts on probation and dismissal proceedings. Recently California’s Supreme Court in People v. Russel,
“ ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ . . . ‘ “ ‘The word imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of
An observation seems appropriate at this point: The People of the Stake of California, represented by the district attorney, are a party the plaintiff in this and all criminal actions (
We first consider the contention that the order granting Morris probation was an abuse of the court’s discretion.
Such an order is appealable. Penal Code section 1238 designates the decisions from which the People have a right of appeal. Subdivision 5 of that section authorizes such an appeal “From an order made after judgment, affecting the substantial rights of the people.” It has been held that an order granting probation, as in Morris’ case, after pronouncement of judgment, imposition of sentence, and suspension of sentence is appealable by the People as such “an order made after judgment” (People v. Orrante,
It is established law that where an appeal is taken from an order granting probation, upon a showing that there was a clear abuse of discretion by the trial judge, his order will be reversed. (See People v. Lippner,
The manner in which a trial judge must exercise his discretion in granting or withholding probation has been pointed out by the Supreme Court.
“
More recently in People v. Wade,
“The probation of offenders is provided for in
As indicated, Morris asserts in his brief and repeats at oral argument that the early conferences with Judge Glickfeld resulted in “a package disposition of all five charges.” He insists that the judge’s promise of probation was an integral part of that disposition. The record fully supports Morris’ contention.
Throughout the subject proceedings Judge Glickfeld made it clear that such an agreement had been reached, and that despite further factual revelation, report, or recommendation of the probation officer, or objection of the People, he intended to follow it. This intent was memorialized on the record even before the Morris and Beasley guilty pleas were entered.
The judge at that time told the defendants “what I intend to do.” To Morris he stated: “. . . it is my intent to treat your case as follows: State Prison, suspended, and put you on probation for three years, and one year in the County Jail as a condition on a Work Furlough. In other words, you are in an apprentice program and whatever that is we will work out. You will have to go in every night or whatever it is. . . . So that is what l am going to do. And, sir, you have got two counts and I would make them concurrent. And again, there would be a probation report before this, which would take the same length of time. . . .” (Italics added.) The district attorney interrupted saying, “We would like to be heard at the conclusion of what your Honor says.” (Italics added.) The judge responded: “Yes, but I am fust telling him what I am going to do.” (Italics added.)
As we have noted, the probation officer thereafter rejected Morris for the judge’s contemplated Work Furlough program. He also filed his report and recommended against probation. In open court the judge responded: “I don’t like the pressures that are being put on from the outside, I believe, on the probation department and the Work Furlough Program, ... I will not tolerate any pressure on the court and district attorney or on any arm of the court; and the probation department is an arm of the court. . . . And the chief probation officer was under a misinformation as to the powers of the court and apparently he thinks he is a judge, ... I am not going to get into any discussion with him at this time, but the future will take care of itself. But the report indicates that probation should be denied and they say the mam is "ineligible for Work Furlough. . . . This court will not be threatened by threats of what the newspapers are going to do and by other threats of what Mr. Kavanaugh intends to do. And the next time this happens Mr. Kavanaugh will be in here on a contempt charge. It is that simple. Now you know my position.”
As was the case in People v. Wade, supra,
There is additional evidence pointing to an abuse of the court’s discretion.
Judge Glickfeld’s incomprehensible tirade (noted ante, fn. 6) against the victim of Morris’ crime, her police inspector attendant, and his superior officer obviously discouraged, or at least tended to discourage,
Furthermore, Penal Code
Accordingly, the order granting Morris probation must be reversed.
We find the People’s related contention that Judge Glickfeld had no discretion, but was instead prohibited by law from granting probation to oné convicted of rape “with force and violence” except with the consent of thé district attorney, to be without merit. The contention is based upon Penal Code
It is argued, not without some reason, that forcible rape necessarily includes infliction of “great bodily injury.” However, the Legislature has made clear an intent that “great bodily injury” as the term is used in
In People v. Merrill,
We note also that Morris and Beasley were charged with, and pleaded guilty to, violating Penal Code
We turn now to the People’s contention that the dismissal of the unresolved charges against Morris and Beasley, under the purported authority of Penal Code section 1385, was abusive of the court’s discretion.
Penal Code section 1238, subdivision 8, states: “An appeal may be taken by the people: . . . From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy.” It is observed that the remaining counts of kidnaping and rape against Morris and Beasley were dismissed before either had been placed in jeopardy on those charges. A defendant is in jeopardy for an offense “ ‘when (1) placed on trial (2) for the same offense, (3) on a valid indictment or information or other accusatory pleading (4) before a competent court, (5) with a competent jury, duly impaneled and sworn and charged with the case; or, if the trial is by the court, it must be “entered upon.” ’ ” (People v. Hernandez,
No recognizable policy appears against prosecution or punishment for a previously dismissed felony offense when jeopardy has not attached. Indeed, Penal Code section 1387 expressly provides: “An order for the dismissal of the action, made as provided in this chapter [which includes § 1385], is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.” (Italics added.)
The question on review of such a dismissal order ordinarily is also whether under the circumstances the trial judge exceeded the bounds of judicial discretion. If there was such an abuse of discretion the order must be set aside. (See People v. Superior Court,
Penal Code section 1385 reads as follows:
“The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”
People v. Gonzales, supra,
Specifically referring to Penal Code section 1385, it has been held that the language of that section, “furtherance of justice,” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. (People v. Winters, supra,
The record before us uncontrovertably shows that even before Morris and Beasley had entered their guilty pleas, and over the objection of the People, Judge Glickfeld had made up his mind to dismiss the charges in question. At that time he was without the benefit of the legally required probation officer’s report containing a full exposition of the case and the background of defendants. If the judge accepted out of court information in mitigation of defendants’ crimes, such was in violation of Penal Code section 1204. Reciting details of the early “package disposition” which included the dismissal of the kidnaping count and two rape counts against each defendant, the judge.declared: “That is what I intend to do and I put it on the record so there is no question.” (Italics added.) And the judge thereafter honored his promise.
As in the case of the order granting Morris probation, the predetermination of defendants’ cases, coupled with the circumstances and
There is yet another reason why the dismissals must be set aside. As indicated, section 1385 specifies that the “reasons of the dismissal must be set forth in an order entered upon the minutes.” (Italics added.) This requirement was not followed by Judge Glickfeld.
One of the purposes of the specification of reasons is to enable an appellate court to determine whether, in view of the reasons assigned to justify a section 1385 dismissal, a proper exercise of discretion is shown. (See People v. Winters, supra,
The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason “so that all may know why this great power was exercised.” (See People v. Winters, supra, 171 Cal.App.2d Supp. 876, 880-882; People v. Disperati, supra,
Defendants cite certain cases as authority for the proposition that the court need not state reasons for a section 1385 dismissal in the minutes. People v. Smith, 133 Cal.App.2d Supp. 777 [
It is urged that the obvious reason for dismissing the remaining counts against Morris and Beasley was the fact that they had pleaded guilty to the other counts. Were we also to speculate, we would consider it to be far more obvious that the reason for the dismissal was Judge Glickfeld’s illegal promise, made many weeks before, to do so. Such a discussion points up the necessity that the reasons “be set forth in an order entered upon the minutes” (
We find ourselves also in agreement with the People’s contention that the orders of dismissal were invalid for reasons apart from their entry being abusive of the court’s discretion.
The only statutory authorization, as well as the court’s purported justification, for the dismissals was Penal Code
We have considered the effect of the restoration of the “kidnapping to commit robbery” (
We note that no rule proscribes multiple prosecution or multiple punishment where, as here, a defendant is charged with himself having directly committed the act of rape and with aiding and abetting
The present posture of this case results from an illegal “package disposition” arranged between the judge and defense counsel. While ordinarily one may not complain of a result brought on by himself, the fact nevertheless remains that' each defendant has now served time on the convictions following his guilty pleas. The fairest and most just solution of the problem before us would be the restoration of all parties, as nearly as possible, to the positions held prior to the entry of the guilty pleas. This would allow resumption of the action on all counts, untrammeled by the procedural snarls we have encountered in the record. But such a result must depend upon the voluntary withdrawal by defendants of their guilty pleas. A somewhat similar disposition was permitted in People v. Delles, supra,
As to defendant Morris: The order of April 11, 1969, is reversed insofar as it purports to dismiss counts 1, 3 and 4 of the indictment; the order of April 11, 1969, granting probation is reversed.
As to defendant Beasley: The order of April 8, 1969, is reversed insofar as it purports to dismiss counts 2 and 3 of the indictment; as to count 4 the order is affirmed.
Molinari, P. J., concurred.
“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence 'under either one bars a prosecution for the same act or omission under any other.”
“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed.”
Notes
Persons are committed to the California Youth Authority for an indeterminate period (
Under the “Cobey Work Furlough Law” (
This was not the common, and sometimes criticized, “negotiated plea.” Such a plea is “negotiated” between defense counsel and the district attorney. It is subject to the tentative approval of the judge who later, upon reading the probation report and obtaining a fuller understanding of the case, may, and frequently does, repudiate the arrangement of counsel and allow the defendant to withdraw his guilty plea (see People v. Delles,
OR means Own Recognizance, a procedure under which a defendant is released pending trial or sentence without giving bail. (See
As to Morris this report contained, among other things, a statement by defendant Morris of the circumstances surrounding the events leading up to the charges in this case; a narrative of the social factors pertaining to Morris’ background, education, employment, financial condition and marital status; letters from interested parties recommending for and against probation; the probation officer’s evaluation of the case; and a letter from Lois requesting that probation be denied. In her letter Lois stated that she had not been able to resume her work; that she had not been out of the house alone since the assaults; that she could not get over the fear of someone choking and dragging her off; that her parents had sold the home in which they had lived for 22 years and moved away from San Francisco because they no longer felt safe in the city.
The record shows the following to have occurred:
“[Judge Glickfeld] : I think it’s a lousy deal when an inspector has to sit with a client. The district attorney ought to advise the inspector. I think it is ridiculous. Inspector Christensen, can I see you a moment. Is there some reason you have to sit here, or don’t you have enough work to do?
“Inspector Christensen: I was instructed to go down with this young lady by the lieutenant of my detail.
“[Judge Glickfeld] : Who?
“Inspector Christensen: Lieutenant Flahaven.
“[Judge Glickfeld] : Who gave him the instructions? Bring Lt. Flahaven down here. I never heard of a sentencing procedure where people have to be in court with a policeman holding their hand. [There was no holding of hands; as later indicated by the judge the term was used figuratively.] Tell the lieutenant I want to talk to him.
“Mr. Norman [the district attorney]: Well, your Honor, I don’t think that this is a fair remark.
*626 “[Judge Glickfeld] : Mr. Norman, I am not going to listen to what is a fair remark in view of what you did to the court a few weeks ago. I don’t want to hear that. I want Lt. Flahaven down here. That is the way it is going to be. And I don’t want to hear about what a fair remark is. There are lots of things that are not fair.
“Mr. Norman: For the record I don’t think it was.
“[Judge Glickfeld]: I don’t want police inspectors sitting here in court holding some alleged victim’s hands, and I am using the term figuratively. And I. want Lt. Flahaven down here. I want to know where these instructions came from. There is lots more work for the police to do in the county than sit here in this court. I want to know who gave the instructions, so bring him down here.”
The full text of Penal Code section 1204 follows:
“The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.”
Reference to the “preceding section” is to
Penal Code section 487 defines grand theft.
Under the Work Furlough program Morris would spend weekends and nights in jail. Under the probation order as made he would spend only weekends in jail.
She did not testify at the probation hearing.
We, of course, make no determination or suggestion as to penalty upon future proceedings in the superior court. Such a decision is in the exclusive province of that court.
The exact language of the pertinent portion of Penal Code section 654 is:
Penal Code section 31 as pertinent here provides: ^
Dissenting Opinion
I dissent.
Without personally approving or disapproving the disposition of the matter effected by the orders of the trial court, I find that his orders were within the proper scope of his discretion. If the judiciary is to play a part in the sentencing process it should not be bound to follow the recommendations of the district attorney or the probation officer, nor should it be subject to public pressure or to reversal because on appeal another disposition might appear more appropriate. Although the trial judge engaged in some apparently unwarranted and intemperate remarks, I do not believe that the record shows as a matter of law that he abused his discretion in disposing of the charges as he did.
In order to put the proceedings and facts, particularly those relating to Morris’ qualifications for probation, in proper perspective, I have repeated much which is set forth in the foregoing opinion, but I believe it is necessary to trace the developments as they occurred to determine whether the judge was acting within the sphere of a proper discretion, or arbitrarily in violation of his sworn duty.
As a result of the acts set forth in the opinion Beasley, Morris and one Jackson were jointly indicted for (1) rape by threat of great and immediate harm (
The People contend, as set forth in their notices of appeal, that the action of the court in dismissing, as to each defendant, two counts of rape and one count of kidnaping for the purpose of robbery, was an abuse of discretion and resulted in an improper and illegal order. On appeal it is contended that the orders were void because no reason for the dismissals was set forth in the minutes. They further contend that the grant of probation to Morris without the concurrence of the district attorney was in excess of the powers vested in the court, under the provisions of
For the reasons set forth below I conclude that the orders dismissing the counts that were unresolved were not void for failure to set forth an express reason in the minutes; that there was no abuse of discretion in dismissing those counts on the record before the court at the time they were dismissed; that the defendant Morris was eligible for probation without the necessity of concurrence by the district attorney; that the order admitting him to probation was within the sphere of discretion conferred on the trial judge by the Legislature; and that the remarks of the trial judge, although incomprehensible, irregular and subject to criticism, do not establish that the judge’s announced intention was predicated on facts which were not in the record before him, or facts which were not thereafter incorporated in the probation report, so as to constitute a premature irrevocable preconception which would vitiate his subsequent formal judicial acts, nor do such remarks establish that his decision exceeds the bounds of reason. The judgment and orders should be affirmed.
Statement of Facts
The facts as stated in the probation report prepared in the case of Morris accurately reflect the part played by each of the defendants as revealed by
The grand jury transcript reveals the victim was an employee of The Jack Tar Hotel. After she left work on the evening of November 20, 1968, she was waiting for a bus at the transfer point of 25th Avenue and Geary around 11:10 p.m. William Morris and the two co-defendants were in his car which was stopped there by a controlled traffic light. They started to call out to her and the light changed and they pulled away. A man was also standing at this transfer point and an older woman who approached the victim and engaged her in conversation. When the bus came they got on it and sat together until the victim left it at 19th Avenue and Lawton Street.
The victim was approximately one block away from her home when she observed defendant’s car slow down and she heard them say “there she is— that’s her.” She continued to walk towards her home and she was one house away from it when the defendant’s car went past her down to the corner and circled back. William Morris was the driver and it was his car. When he stopped the car Kenneth Beasley jumped out and grabbed her from behind the neck and held his hand over her mouth. She started to kick and then Rickie James Jackson grabbed her feet and she was put forcibly inside the car. Kenneth Beasley was in the back seat with her while the defendant Jackson rode in the front with William Morris.
The victim was told not to look at the defendant that was in the seat with her nor to scream. She was advised to relax and it was indicated she was going for a long ride. William Morris indicated that he was going to kill her. One of the other defendants told him not to kill her pointing out that she was too pretty. Another one said that’s what got her into this trouble. Then Kenneth Beasley who was in the back with her grabbed her face and she pleaded with him not to do anything to it. While they were riding they went through her purse and wallet and removed $3 and each of them took one dollar. Subsequently they took her topaz ring. They were annoyed she had so little money and finally the car was-stopped on Rockaway Beach near some bushes. They inquired if her family had any money indicating they could hold her for two weeks for ransom. She told him they were poor that her father was only a truck driver.
While she was being driven to Rockaway Beach, Kenneth Beasley
They then decided to take her home and enroute asked how she would explain to her mother the fact that she was out so late. She told them she would inform her mother she had met a friend and gone out for a drink. They asked if she would call the police and she replied in the negative. They wanted to drive her to the front door, but the victim felt by now her mother would have called the police and she felt if the defendants saw a squad car in front of her house they might not leave her out. Therefore she prevailed upon them to leave her out at the corner which they did. Two of the defendants each returned the dollar they had taken but one kept his. When she asked them for her ring they would not give it to her.
The next day Beasley and Morris were apprehended when they came to the hotel and were identified by the victim.
I
Right of Appeal from Dismissal
“The power under which the order was made is substantially the same as that held by the attorney-general in England, and by the prosecuting officer in many of the American states, to enter a nolle prosequi. The court, for the purposes of the order of dismissal, takes charge of the prosecution, and acts for the people. It holds the power to dismiss, as the attprneygeneral in England holds the power to enter a nolle prosequi, by virtue of the office and the law; and it is exercised upon official responsibility.” (People v. More (1886)
Prior to the addition of subdivison 7
Nevertheless it was recognized that in exceptional cases the action of a superior court in dismissing a case under the provisions of
It also should be noted that language identical with the first sentence of subdivision 8 of sectiоn 1238 of the Penal Code (see fn. 3 above) has been contained in section 1466 governing appeals from inferior courts since 1951 (Stats. 1951, ch. 1674, § 158, p. 3860); and that prior thereto the section provided for an appeal by the People, “From an order or judgment
In People v. Winters (1959)
Insofar as is material for this case it has been determined in appeals from inferior courts that the word “action" as used in the earlier statute “must be construed distributively as to each count in a complaint, where it contains more than one, there being in legal effect as many actions as there are counts." (People v. Ring (1937)
In People v. Superior Court [Howard], supra, it was recognized that the" amendments to the Penal Code had changed the prior rule and granted the People a right to appeal from an order of dismissal made by the superior court under any of the circumstances set forth in the amendments. (69
Reasons in the Minutes
Preliminarily, the People urge that the orders should be adjudged void because the order entered upon the minutes fails to set forth the reasons for the dismissal as required by provisions of
In People v. Superior Court [Jonsson], supra, to which the Supreme Court refers, the question was whether a motion for judgment notwithstanding the verdict could be interposed in a criminal action. The court answered this question in the negative, and granted a peremptory writ commanding the superior court to set aside the judgment and to either sentence the defendants, grant a new trial, or grant probation as the court might be advised. The opiniоn recites: “
Similarly in People v. Shaffer (1960)
In People v. Curtiss, supra, 4 Cal.App.3d 123 the case was dismissed on the court’s assertion “We are not running a collection agency here.” The court noted the failure to comply with the requirement that the reasons of the dismissal be set forth in the minutes. It recognized the common practice of failing to make such a notation where one or more counts were dismissed in return for a guilty plea to another count, and observed that where the prosecutor moves to dismiss he would not appeal from the dismissal. Despite the shortcoming in the order, the court proceeded to consider it on the merits, and concluded, “it is an abuse of the broad discretion granted under
In People v. Superior Court [Howard], supra, the court acknowledged that the trial judge set forth at length his reasons for the dismissal, and it took the facts from a memorandum opinion which accompanied the order. (69 Cal.2d at pp. 491 and 496, fn. 3. See also, People v. Smith, supra, 133 Cal.App.2d Supp. 777, 779.) In People v. Superior Court [King], supra, the court noted, “
So in this case it is apparent that the charges were dismissed in furtherance of justice because the defendants had entered pleas of guilty to two of the five offenses arising out of the same course of conduct. The indictment and the transcript of the grand jury proceedings which was filed to support it establish the relationship of the matters charged in each count.
The clerk’s transcript reflects that on February 4, 1969, codefendant Jackson appeared with counsel, withdrew his motion to set aside the indictment under the provisions of section 995 of the Penal Code, entered a plea of guilty to the first count which charged him with aiding or abetting defendant Beasley in the commission of rape by threats of great and immediate bodily harm in violation of subdivision 4 of
It would be fatuous to say that the subsequent dismissals of the charges against the defendants Beasley and Morris, respectively, were not made for the reason that each entered a plea of guilty to two of the five offenses charged. The People’s true complaint is not that the reasons were not stated in the minutes, but that the dismissals were ordered without the approval of the district attorney, and, more realistically, that the ensuing punishment for the offenses of which those defendants stood convicted by their pleas was deemed inadequate.
A series of cases in which the defendant has objected to the institution of new proceedings after the dismissal of other proceedings involving the same felony offense, have established that the failure to enter the reasons for the dismissal in the minutes is not a defect which can be taken advantage of by the defendant, and that the requirement of the entry is for the
“We have no authority to disregard this requirement or to hold that it is merely directory. The proceeding is somewhat harsh, and imposes an additional burden upon the defendant, and no substantial departure from the plain provision of the statute should be tolerated.” (
The Disperati case has been several times qualified and limited. In People v. Head, stipra,
In People v. Romero, supra,
The conclusion expressed in Romero was epitomized in People v. Silva, supra,
The People contend that this principle makes it imperative that the reasons be stated in the minutes, and that the failure to do so renders any dismissal inoperative. This policy may well be controlling in the situation where a defendant is exonerated of all criminal responsibility for a course of conduct by a dismissal entered on a record which does not itself evince an explanation. In this case where the bargain openly consists of an admission of culpability of some offenses in return for an exoneration of prosecution for others, there is no need for a further record. The facts which have been alluded to above were all matters of public record revealed by the minutes of the court, and the public interest was not subverted by the failure of the minutes to recite “in furtherance of justice because of the
I conclude that attention may therefore properly be directed to the question of whether the court abused its discretion in dismissing the other counts under the facts of this case.
Scope of Discretion to Dismiss
In People v. Superior Court (Howard), supra, the court, in considering the propriety of permitting review by proceedings for issuance of a writ of mandate, observed, “Appellate review at the request of the People necessarily imposes substantial burdens on an accused, and the extent to which such burdens should be imposed to review claimed errors involves a delicate balancing of the competing considerations of preventing harassment of the accused as against correcting possible errors.” (
The court referred to the express language of
The court then addressed itself to the contention that it was an abuse of discretion to dismiss the action after a jury had returned a verdict of guilty. The court referred to cases upholding the power of the court to strike an established prior conviction for the proposition “. . . that the discretion of the judge is absolute except where the Legislature has specifically curtailed it.” (Id., p. 502.) The court further observed, “It would seem that, if anything, a court should have broader discretion to dismiss in furtherance of justice after the verdict than it should have during trial. After the verdict, the judge has heard the evidence of the prosecution; whereas prior to the conclusion of the trial there is always the possibility
The court concluded, “If a trial judge is convinced that the only purpose to be served by a trial or a retrial is harassment of the defendant, he should be permitted to dismiss notwithstanding the fact that there is sufficient evidence of guilt, however weak, to sustain a conviction on appeal. The trial judge who has heard the evidence as in the instant case is in an excellent position to determine whether a retrial would further the interest of justice. The Legislature has given the trial court the power to dismiss under the broad standard of justice, and in view of the high caliber of our trial judges and their responsibility to the electorate we believe that recognition of such power in cases of conflicting evidence will not result in abuse but to the contrary believe that the due exercise of the power to dismiss in proper cases of conflicting evidence will further justice.” (
In People v. Superior Court [King], supra, the opinion recites, “In dismissing the action, the trial judge relied entirely upon the transcript of the evidence adduced at the preliminary hearing. There was nothing else before him.” (
In People v. Superior Court [Kasparek], supra, the trial court, after a hearing on the defendant’s motion for probation, purported to dismiss the case and discharge the defendant, who had previously entered a plea of guilty to a felony petty theft. The court ruled, “As stated in Stephens v. Toomey,
On the other hand, in People v. Polk (1964)
In People v. Silva, supra, the defendant contended that the dismissal of two prior separate informations and the substitution of new information charging both offenses was erroneous because the motive of the district attorney was to avoid improperly an order denying consolidation of the separate informations for trial. The court observed, “An order of dismissal is the action of the court, not that of the district attorney. The sole limitation on the court’s power to order dismissal is that the order be in furtherance of justice, a limitation not explicitly defined by the Legislature and one which has remained a subject of judicial discretion.
In Disperati the court further observed, “The legislature has not attempted to define the expression ‘in furtherance of justice,’ and therefore it is left for judicial discretion exercised in view of the constitutional rights of the defendant and the interests of society to determine what particular grounds warrant the dismissal.” (
In People v. Winters, supra, the court ruled, “A dismissal ‘in furtherance of justice,’ upon review, must show that there has been the exercise of a valid legal discretion, amounting to more than the substitution of the predilections of a judge for the alleged predilections of the peace officers.” (
The prosecution claims that the trial judge abused his discretion because neither the transcript of the grand jury proceedings nor the probation reports contain facts to support the court’s position.
Justification for the action of the court in dismissing the remaining counts is found in the principles enunciated by the Supreme Court in People v. Superior Court [Howard], supra. The policy against harassment which gives the judge power to dismiss and prevent a new trial (
In Kellett v. Superior Court (1966)
The rule applied in Kellett to prohibit the prosecution of petitioner for violation of Penal Code section 12021 (possession of a concealable weapon by a person who has been convicted of a felony) after he had pled guilty and been sentenced for violation of Penal Code section 417 (exhibiting a firearm in a threatening manner) would not, however, furnish a legal bar to the further prosecution of the counts which remained at issue after the defendants’ pleas to the counts on which they were sentenced, if those counts had not been dismissed. “In a single criminal action (pleading any
Where sex offenses are separate and distinct acts the defendant can be punished separately for each offense. (People v. Hicks (1965)
In People v. Sheppard (1967)
If it appears that a defendant convicted of rape, robbery, and kidnaping for the purpose of robbery did not formulate the intent to rape his victim until after the robbery he may be separately punished for the rape and the aggravated kidnaping, but not the robbery. (In re Ward, supra,
' If the trier of fact found any one of the defendants guilty of simple kidnaping (
Similar problems would arise in sentencing for robbery and kidnaping for the purpose of robbery. Where a kidnaping is part of an indivisible course of conduct directed to the objective of robbing the victim, the offender cannot be punished for both the robbery and the kidnaping. If a defendant is convicted of and sentenced for kidnaping for the purpose of robbery (Pen. Cede,
It therefore appears that it is only when the circumstances show a succession of acts without a common objective that the offender may be separately punished for rape (
From the foregoing it is apparent that the prosecution’s objections to the dismissal of the remaining counts and its insistence that they be set for trial called for a judicial determination of whether the ends of justice would be served by further prosecution of those counts. Since the facts before the court in the grand jury transcript and probation report would permit a finding that the kidnaping was for rape and not for robbery, the question resolved itself into whether further prosecution for aiding and abetting two other acts of rape was warranted. Since the part each played in the joint and several assaults was established by the statements of the victim and the admissions of the defendants, no good purpose — other than extended punishment — will be served by further prosecution. That it is the prosecution’s dissatisfaction with the punishment, and not with the dismissals, is evidenced
Under these circumstances I find no abuse of discretion in dismissing the three counts which were respectively dismissed as to each of the defendants Beasley and Morris.
II
The order suspending the imposition of the sentence imposed on Morris and granting him probation is appealable under the provisions of subdivision 5 of
Eligibility for Probation
In each of the cases last cited (other than In re Sargen) it was determined that the defendant was ineligible for probation and the order granting him probation was reversed or annulled. The People contend that Morris was ineligible for probation under the provisions of the former
“In unusual cases, otherwise subject to the preceding paragraph, in which the interests of justice would best be served thereby, the judge may, with the concurrence of the district attorney, grant probation.”
The prosecutor’s repeated objection to the grant of probation precludes
The People acknowledge that the defendant was charged with, and by his plea was convicted of, a rape in which the victim was prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution (
The People point out that the forcible abduction in this case in fact evidences the usе of force and violence. Nevertheless, even if the language of
The phrase “willfully inflicted great bodily injury or torture" must, by comparison with the provisions just discussed, mean more than the force or violence used to overcome the victim’s resistance. (See, People v. Merrill (1951)
“Authority is vested in the court to grant probation except in those cases in which authority is specifically withheld." (People v. Superior Court [Guerrero], supra,
Abuse of Discretion
The following passage from People v. Lippner (1933)
In People v. Russel (1968)
“The foregoing authorities, and particularly the passages quoted from Bailey and Gossman, make it quite clear, we think, that all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.”
In order to determine whether there has been an abuse of these principles, resort must be had not only to “the circumstances surrounding the crime,” but also to the “prior record and history of the defendant” as found in the probation report, or any evidence adduced at the hearing on the application for probation. (See,
The face sheet of the probation report under “Prior Criminal Record” reflects one prior arrest for a misdemeanor and no convictions. No attempt is made to explain the nature of the offense, or the circumstances under which the defendant was arrested in the body of the report, although the same data is reiterated. The report indicates that marijuana was found in Morris’ car, and that he denied smoking it. There is no elaboration as to the amount or any other circumstances concerning its discovery or use.
The report embodies the district attorney’s recommendation of a prison sentence, and the following from the police department: “The Police Inspector, in his reply, briefly outlined the offense indicating the victim told him William Morris is the one who threatened to kill her, threatened to kill her family, and bomb her home. Victim told the inspector William Morris was the most aggressive and vile of the three defendants and he does not recommend probation for this defendant.” The probation officer commented, “Concerning the present offense he expressed no true remorse indicating he plead guilty to rape, because his attorney advised him to do so. He also denied that he and Kenneth Beasley went to the Jack Tar Hotel to get the money from the victim, but one of the inspectors on duty that night heard the two of them say ‘We’ll hit in ten minutes’. Another inspector heard defendants Morris and Beasley ask where the restaurant was located.”
An attached copy of a letter from the victim relates in part: “William
“I wish I could tell you what this has done to my parents. Being a witness to the kidnap was more than my mother could take. My Father has sold our home where we’ve lived for the past 21 years because my Mother no longer feels safe. We’ve bought a home out of San Francisco.
“These boys have ruined my life and what’s left of my parents’ life — all for a two-hour joyride. Please, Mr. Cavanaugh, don’t be lenient with them. Don’t let them do to another girl what they’ve done to me.”
On the other hand it appears that the defendant was born September 4, 1946, in San Francisco and has lived all of his life in that community. He is the only child of parents who were both continually employed and provided him a good home. His parents stated that he had a normal development; that he was given a good education and was taught right from wrong; and that all of his friends were decent church type people. He graduated from high school in January 1964 and commenced college in the fall, but dropped out in his second semester as a result of an injury.
He worked for a clothier for six or seven months in 1966. He took an examination for some 250 prospective apprentices in the electrical field and represented that he was the first Negro to be accepted in the Electricians Union. He had worked steadily since December 28, 1966, when he took employment at Hunter’s Point Naval Shipyard as an apprentice electrician, and since July 15, 1968, he had been employed in the same capacity with a private electric company. His employer wrote that it was pleased to cooperate with defendant’s continued employment as proposed under a work furlough plan, and that his work was satisfactory. The author of the letter observes, “We have had him work with a number of different foremen and his work has been satisfactory. It does seem possible this sad experience may assist him in maturing and growing into a responsible citizen.”
The report also indicates, “Five letters of reference were submitted by individuals who have known the defendant and his family for a great many years. They all indicate his parents are outstanding citizens who are deeply concerned over the defendant’s welfare and wish for his development and growth into a worthy citizen. Three of them indicate they have always found the defendant to be trustworthy and of good moral character.” (Letters from seven individuals, in addition to the employer, are attached to the report.)
The place of retribution in the scheme of punishment was recently considered in People v. Floyd (1970)
It is unnecessary to determine whether the judge may properly consider retribution in fixing the punishment for an offense. It is obvious that the incarceration of the defendant cannot restore the victim and her family to the state of mental tranquility they enjoyed before the offense was committed; and it is equally obvious that many reasonable persons consider that retribution or vengeance should have no place in the sentencing process. The judge, therefore, was entitled to disregard the appeals to his emotions
Attention is directed to the other criteria referred to in the last quotation. This court, regardless of the individual predilections of its members, cannot say as a matter of law that the punishment imposed by the trial judge will not correct or rehabilitate the particular offender. In fact there is some evidence that the work furlough program, which was originally suggested by the judge, as discussed below, is a successful method of achieving rehabilitation. (See, Proceedings of the 1967 Sentencing Institute for Superior Court Judges, Appendix, 62 Cal.Rptr. p. 47.) It is certainly reasonable to entertain the belief that the correction and rehabilitation of the defendant may be better effected by capitаlizing on those environmental factors— family, church, and employment — in which he has demonstrated stability, than to uproot him and hope that at some future date he will, as an ex-convict, pick up where he left off, with a completely penitent and virtuous outlook toward his responsibilities to society.
The punishment imposed, as distinguished from the work furlough program recommended by the judge, does not confine the defendant, and between weekends he is free, if so minded, to repeat his criminal conduct. This must be a calculated risk with any probationer or parolee. The record of defendant’s family upbringing, education and employment, and the absence of a prior criminal record, support a conclusion that such risk is minimal.
Undoubtedly many, if not most judges, would take the position that the punishment imposed would fail to discourage and act as a deterrent to future criminal activity of others. (See, Proceedings of the 1968 Sentencing Institute for Superior Court Judges, Case #1, Appendix, 77 Cal.Rptr. at pp. 16-21.) The question of the extent to which potential offenders are aware of criminal penalties, and the related question of whether fear of apprehension, or fear of lengthy incarceration, is a more potent force in the prevention of criminal activity is not free from doubt. (See, Deterrent Effects of Criminal Sanctions, supra, passim.) In the hypothetical case of robbery and rape referred to at the 1968 Sentencing Institute, the offense was more aggravated than that involved here, and the defendant had a far less stable background than defendant Morris. Nevertheless, 12 percent of the judges voting proposed jail for various lengths of time, with probation. To substitute the judgment of this court for that of the trial judge, involves the sentencing process in endless appeals.
It cannot be demonstrated empirically that the leniency shown to Morris because of his race and achievements may act as a counter-deterrent or encouragement for similar acts on the part of others (who would theo
I find no abuse of discretion as a matter of law in determining from the record before the court that there were circumstances in mitigation of the punishment prescribed by law and that the ends of justice would be served by granting probation to the defendant (
Ill
Manner of Exercise of Discretion
In People v. Wade, supra,
It is contended that the record in this case reflects that the judge decided the question of probation, and as well the question of the dismissal of the
The record discloses that the judge invaded a field of questionable propriety in negotiating pleas on behalf of the defendants Beasley and Morris. (See, Proceedings of the 1966 Sentencing Institute for.Superior Court Judges, Appendix, 52 Cal.Rptr. at pp. 37-39; and cf. People v. Delles (1968)
After arraignment and several continuances, each of the defendants interposed a motion to dismiss pursuant to the provisions of section 995 of the Penal Code. These motions were continued from time to time for decision. On February 21st the judge stated, “I have read the transcript. I have had to in connection with various motions and it is a pretty rugged and rough bit of conduct. There is no question about that. I am not condoning it and I know the District Attorney is taking a severe look.” On February 4, 1969, the defendant Jackson withdrew his motion to dismiss, entered his plea of guilty to one count, and made a .motion for probation. This motion was denied when that defendant was sеntenced on February 17th. It must be assumed that a probation report (not a part of this record) was prepared at that time, which set forth the circumstances surrounding the crime as they were known to the probation officer.
The transcript in this record commences with proceedings in open court on February 21st when the defendants Beasley and Morris changed their pleas. It is obvious from the record that the matter had been previously discussed at unreported proceedings in chambers. It is not contended that the People were not represented at such conference or conferences. Appar
In open court counsel for Beasley and Morris announced the intention of their clients to change their pleas. The judge then interposed, “It is my understanding, just so we get this straight, that both of you men are going to enter guilty pleas to a 211, Second Degree, and to a 261.4, which is the rape charge?”; counsel for Morris replied, “That is correct, your Honor”; and the judge continued, “And I will tell you what this means and what I intend to do. And there is a third charge which is kidnapping with intent to commit robbery. And it is my intention at the proper time when the probation reports come in to dismiss that charge pursuant to
The court then disclosed his understanding with regard to Beasley
The judge explained to Morris the consequences of a violation of probation in the event of a suspended sentence. When the assistant district attorney interjected a desire to be heard, the court again referred to his intentions, and the reasons for them.
Beasley similarly was arraigned, pled guilty to two counts, and moved for referral to the probation department with a recommendation for a Youth Authority commitment. With respеct to the remaining counts, the court stated, “And as to Counts 2, 3 and 4, I will take them under submission, and it is my intention to dismiss those matters pursuant to
In the foregoing I find no expression of intention to disregard the recommendation of the Youth Authority or the facts or conclusions that might be expressed in a probation report, but a proper deference to the procedures provided by law.
On March 13th, Beasley’s sentencing was continued to March 21st. On that morning before the defendant’s case was called, the judge engaged in •what appears to be an unwarranted tirade against a police inspector and the assistant district attorney.
Thereafter the court took up the case of Beasley and the judge stated, “It is my intention and understanding to deny probation at the proper time and refer the matter to the Youth Authority.” In discussing a continuance the court observed, “I will wait until we get the probation report back to be sure whether he is going to be accepted.”
With respect to Morris, the court apparently had the probation report, which is dated March 21, 1969, and the letters attached to it, including a recommendation dated March 20, 1969, from the.work furlough officer (see
The judge stated that he was going to continue the Morris matter so that he could speak to the probation officer. The judge alluded to the letters attached to the probation report as follows: “And in connection with the work furlough program, I have a letter from the Decker Electric Company. He was Number 1, and that is a pretty good recommendation. And I have all these letters here which I didn’t have at the time of the original report. I had to ask for them. There was a reference, but I had a letter from the other party attached to the report. There are about eight letters here?” He then indicated that there were pressures on the various officials concerned with the case.
On April 8th, having received an acceptance from the Youth Authority, the court committed Beasley to that institution without further comment by court or prosecutor; and, over the objection of the prosecutor dismissed the three unresolved counts.
On April 11th, Morris was arraigned for judgment. The judge indicated that he had read and considered the probation report. These remarks are set forth in the margin.
“So, in view of all this, and I know that the District Attorney’s Office is strongly opposed to this, [and I say this sincerely, but there is a lot of hocus-pocus in the background here,] .and I am going to persist in my judgment. And I sit here and I am responsible for this judgment, and it is my conscience, and I am going to answer to my God for my judgment. And I feel this is the best way to handle this. And I am going to sentence you to State Prison, suspended, and that is to both counts, to run concurrently. ,
Whatever may be said for or against the extraneous remarks of the judge, the fact remains that he did, as required by law, consider the circumstances surrounding the crime and the prior record and history of the defendant. Since the record in that regard shows no abuse of discretion, the case is governed by the following rule: “[Wjhere a judge’s statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his determination.” (People v. Cartier (1960)
The issue is not whether this court or any of its members agree or disagree with the punishment imposed by the trial court. (See People v. Keller (1966)
Respondents’ petitions for a hearing by the Supreme Court were denied May 15, 1970. Sullivan, J., did not participate therein.
An inspector testified regarding the content of oral confessions secured from Beasley and Morris following their arrest. These statements, perhaps suspect as self-serving, tend to indicate that Jackson was the instigator of events, and was the most depraved and violent of the three; and that Beasley and Morris restrained him from other threatened acts against the girl, and were the parties who returned a part of the victim’s money. Morris’ statement to the probation officer has similar overtones.
In 1967 the following language was added to
In 1968 a further subdivision was added to
So in this case the People could apparently have proceeded to test the scope of the court’s order dismissing the three counts as to each defendant by attempting to secure a new indictment or information for those charges. Research has revealed no particular explanation for the adoption of subdivision 8 of
The pronouncement in the last sentence of this quotation, and a similar statement in People v. Superior Court [Prudencio] (1927)
This is not to say that the People cannot complain of “improper or corrupt dismissals.” (See People v. Silva (1965)
A further implication in “[King]” that the trial judge’s discretion to dismiss on his own motion is not as great as his discretion to dismiss on motion of the prosecutor was criticized in People v. Superior Court [Howard] (1968)
The further contention that the judge failed to exercise his discretion, but acted on a preconceived intent formed from facts dehors the records is examined below.
In People v. Breland (1966)
Insofar as the prosecutions for the several acts of rape depend upon a theory of a conspiracy to commit those acts (see People v. Bynes (1963)
A new second paragraph inserted in
In People v. Wiley (1939)
Penal Code section 1204 provides: “The circumstances must be presented by the testimony of witnesses examined in open Court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court mаy direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section." (Reference to the “preceding section” is to
Addressing Beasley the judge said, “Now, I said upon a plea what I would do is refer your matter to the California Youth Authority. And after you plead your attorney would make a motion for probation, and it takes about 3 weeks. And you would remain on bail or OR and after we get the report it is mailed down to Sacramento for approval by the Youth Authority and it takes about 10 days. So that takes about 4 or 5 weeks. And after we get the acceptance we will set a date and you will come in. And if you are accepted, then you will be sent to the Youth Authority for whatever rehabilitation program they have down there. Do you understand that? Defendant Beasley: Yes. The Court: That is what I intend to do, and I put it on the record so there is no question.”
Addressing Morris the judge stated, “. . . it is my intent to treat your case as follows: State Prison, suspended, and put you on probation for three years, and one year in the County Jail as a condition on a work furlough. In other words, you are in an apprentice program and whatever that is we will work out. You will have to go in every night or whatever it is. And I understand you have a couple of nights where you work or go to school? ... So that is what I am going to do. And, sir, you have got two counts and I would make them concurrent. And again, there would be a probation report before this, which would take the same length of time.”
The judge stated, “Yes, but I am just telling him what I am going to do. I do this because this is what I feel I must do. I don’t condone what you did and the
“The Clerk: Line 7, James W. Holt, Junior. Mr. Duchow: For the defendant. The Court: I think it’s a lousy deal when an inspector has to sit with a client. The District Attorney ought to advise the inspector. I think it is ridiculous. Inspector . . ., can I see you a moment? Is there some reason you have to sit here, or don’t you have enough work to do? Inspector . . .: I was instructed to go down with this young lady by the Lieutenant of my Detail. The Court : Who? Inspector . . .: Lieutenant .... The Court: Who gave him the instructions? Bring Lt. . . . down here. I never heard of a sentencing procedure where people have to be in court with a policeman holding their hand. Tell the Lieutenant I want to talk to him. [Ass’t. Dist. Atty.]: Well, your Honor, I don’t think that this is a fair remark. The Court: ... I am not going to listen to what is a fair remark in view of what you did to the Court a few weeks ago. I don’t want to hear that. I want Lt. . . . down here. That is the way it is going to be. And I don’t want to hear about what a fair remark is. There are lots of things that are not fair. [Ass’t. Dist. Atty.]: For the record I don’t think it was. The Court: I don’t want Police Inspectors sitting here in court holding some alleged victim’s hands, and I am using the term figuratively. And I want Lt. . . . down here. I want to know where these instructions came from. There is lots more work for the police to do in the County than sit here in this court. I want to know who gave the instructions, so bring him down here.”
These remarks are as follows: “. . . the only thing that disturbs me, and I will say this here on the record, is that I just don’t like the undercurrent of pressures that are being put on from the outside on the District Attorney’s office. And I don’t like the pressures that are being put on from the outside, I believe, on the Probation Department and the Work Furlough Program, in view of my experience with them and what they have been doing in the past and how they have been operating. And I will not tolerate any pressures on this Court. The Court is going to act in an inde
For ease of inference those remarks of the court not bearing on the circumstances surrounding the crime, or the prior record and history of the defendant have been placed in brackets.
“The Court: Let me make a few remarks. This is the last of the three boys. We had the first boy who went to the Penitentiary under 1202(b) of the Penal Code because of his past record, and Mr. Beasley was sent to the Youth Authority because he was 18 or 19, as I recall, and the Court thought it was a just disposition and there was no previous record to speak of.
“And Mr. Morris is 22 and so he is not eligible for that and I had recommended Work Furlough Program. [And the Chief Probation Officer was under a misinformation as to the powers of the Court and apparently he thinks he is a judge, and I am not going to let him preempt my pоsition or that of Judge Karesh or Judge Neubarth. I .am not going to get into any discussion with him at this time, but the future will take care of itself.] But the report indicates that probation should be denied and they say the man is ineligible for Work Furlough. [And I just want to point out for the record that another man was put on Work Furlough who had two previous felonies without permission of the Court and who was charged with robbery, second degree, 487, and who was not a local resident, and who was on Work Furlough one day and then escaped and there was a bench warrant out for him.]
“In this man’s case, he is 22 and finished Number 2, I believe, on the Electrical Workers’ Apprentice Program. And he has been in San Francisco all his life and he would be an appropriate person for this program. [And I point it out for the reason*675 that there has been a lot of hocus-pocus in this case.] And I accepted two pleas, and the acceptance would be concurrent to a forcible rape and robbery.
“I don’t deny the conduct. I think it was vicious and I think it was disgraceful and shameful. I don’t know what other word I can use. And I know you parents feel the same way, and to have to stand in court next to you and to have to share the shame with you is a tragedy. And this should be enough to make you realize what is going on. But by the same token, I don’t think the purpose of sentencing is retribution; it never has been. To some extent, punishment is a means of rehabilitation, and you will be punished, but our primary consideration is rehabilitation. I say this for many reasons. The probation report finally included the letters which were not included which were first received and which I requested. And going back, there were letters from Yori Wada, who is an executive director with the YMCA, and who also happens to be on the Civil Service Commission.
“[Morris’ Att’y]: And formerly on the Youth Authority.
“The Court: And there are letters of recommendation on this young man. There is a letter from the Uptown Clothiers. And there is a letter from Mr. Shifs, who was a former Grand Jury member.
“[Morris’ Att’y] : I checked that again and I believe he was on the panel.
“The Court: And a letter from the Housing Authority and Mr. and Mrs. Wilson. And a letter from the Reverend Edwin Smith. And also, most important, a letter from Decker Electric Company, to indicate they thought you were going to be on work furlough, and they were pleased that you had a good work record and they knew you in connection with the Minority Work Program and that you were Number 1 in the examination taken by some 250 prospective apprentices, and that everybody has been satisfied with your work and that you are very acceptable. And there is a notation that there is a recommendation for advancement in this connection which I have, and which was made.
“At this time I don’t want to make a fuss about the work furlough, but I will put you on probation for a period of three years, and as a condition of probation you are to spend the next 52 weekends in the County Jail commencing Friday night at 7_ o’clock, and you will be released at 6 o’clock Monday morning. And that will give you an opportunity to complete your program. And if you get in trouble again, you will go to the State Penitentiary. It is that simple.
“Now, it is up to you, Mr. Morris.
“So, again, I am not condoning what you are doing, but we have to live in this world and I think that knowing that you have done something wrong, you can’t undo time and you can’t undo what has been done. You can’t unring the bells, so to speak. I always like to put myself in the position if this were my son, and I think I must, as a judge, and what I would do. You haven’t exhibited, in my opinion, a pattern of criminality, but by the same token, and I say it again, it was a vicious, shameful act. And again, your parents stand here and I know how they feel. I know if this had happened to your daughter, if you have one, how you would feel. And I know how I might initially react.”
The court thereupon, over the objection of the prosecutor, dismissed the three unresolved counts and denied his motion to set them for trial.
The prosecutor observed, “. . . for the record, your Honor, and on behalf of the District Attorney, it is felt that this is one of the most vicious and most aggravated offenses that has come in this County in the last several years, and we are objecting to the sentence in this case and feel that probation is not in order at all. The Court: All right. I have already made my decision and I have already indicated my attitude and that I don’t condone it. It is a question of my judgment of what is best for Society and what is best for this boy. And if my judgment isn’t justified, and if he makes an error, he ends up in the State Penitentiary. [Morris’ Atty.]: He understands that, and he intends to do right.” In response to the prosecutor’s inquiry, “Might I inquire of the Court just what hocus-pocus the Court has said or alluded to?,” the judge responded. “There has been a lot of pressure here. I have talked to Mr. Kavanaugh and 1 indicated the hocus-pocus ... by reason of the type of person that was put on the Work Furlough, and I have indicated it because Mr. Kavanaugh was trying to preempt the function of the judge. Now, I have had a lot of information and I am not going to talk about it at this time, and which has come to my attention and which shows a lot of finagling in the background and effort to get to Mr. Kavanaugh with pressure. I am not going to go into this, but I am aware of them; and if you are not, you are being pretty naive. This Court will not be threatened by threats of what the newspapers are going to do and by other threats of what Mr. Kavanaugh intends to do. And the next time this happens Mr. Kavanaugh will be in here on a contempt charge. It is that simple. Now you know my position. . . . And, for example, I will tell you one hocus-pocus which I got from the probation report. They referred to some letters sent in, and I had to request the letters and find out who sent them in and what they said. That is one piece of hocus-pocus, and 1 think the Court is entitled to a full revelation of what the file contains. That is one, and I could tell you many more. It will never happen again as long as I sit here, believe me. I don’t permit anybody to preempt the function of the Court. As a matter of fact, the Probation Department is an arm of the Court and for the Court’s benefit.”