People v. Beasley

Dist., 1970.] Mаr. Div. One. First 7992. No. [Crim. PEOPLE, and Appellant, Plaintiff

THE al., and Respondents. et Defendants BEASLEY KENNETH Counsel General, Harris, Jr.,

Thomas C. Albert W. At- Lynch, Assistant Attorney General, and torney General, Deraid E. Deputy Attorney Granberg, Plaintiff and Appellant.

Garry, Dreyfus, McTernan & Robert S. Marder and Brotsky, Ephraim for Defendants and Margolin Respondents.

Opinion ELKINGTON, J. The from orders of the court People appeal superior (1) two Code, counts of dismissing (Pen. 4) subd. and one rape § count of Code, to commit (Pen. 209) kidnaping defend robbery against § ant Morris, William (2) Augustus Morris granting probation following his to certain pleas guilty other and charges, two counts dismissing (Pen. 4) subd. and rape one count § to commit kidnaping (Pen. Code, robbery 209) defendant against § Kenneth Beasley.

The record before us discloses the following. The victim of the offenses Morris and was an charged against Beasley unmarried name, of 22 Lois, whose will be used young lady years given cashier as a a San Francisco hotel. On the

us. Lois was by large employed of November she left her around 11 o’clock evening employment and home bus. the bus at a transfer she started by public Leaving point would waited for another which take her about a block from her home. While defendants automobile Morris waiting, occupied by Beasley (who and one Jackson is not drove party appeal) up stopped. “Oh, However, out “started noises” and They making calling baby.” home; soon second bus arrived and continued on her unknown girl way to her the three men A few minutes later Lois the bus and followed. left started toward home where lived with her she her Almost walking parents. home, men, saw she the car with three one of whom called out again is. “There she That’s her.” fast she heard a car door after Walking open which a man her the throat one hand over the mouth grabbed screamed, with the other. She kicked and but was into the back thrown seat of the automobile. Her shoes been knocked off her feet and her mother, front door out of key screams, her hand.. Her ran to hearing window saw the abduction. Morris “was three,” Defendant who the most vile aggressive was the car’s driver. He drove while one of others his hand over placed Lois’ throat and told her to She was relieved of stop screaming. promptly of her contents valuable and told that she was purse ring, topaz ride.” The car was “going long driven somewhere in the hills” “up where the took men off the she was ordered to remove girl’s clothing; upper the remainder. She because she believed Morris would out complied carry a threat he made to one, kill her. The men then her one accom- raped six acts of sexual intercourse. One the men tried force the plishing but his sexual was somehow girl orally organ, copulate discouraged from the act. The men then over what do should next. disagreed they Morris’ was “we’re to have to her —we’re kill thought expressed going going to have rid of her.” Another her face. get suggested disfigure they Further violence was averted when the discussion turned to the “ransom” of the situation. Lois into entered this con- possibilities very intelligently that she versation. She was a hotel cаshier and she took in explained $600 about cash her shift. If her took home and didn’t “bash during they face she that the could to her men come cashier’s agreed my anything” up and next ‘All hand over and I’ll cage “say, night right, your money,’ a it to and I’ll wait for few until minutes chance to give you you get bartenders, out and and then I’ll of the tell one because the everything, cashier, said, are bartenders next to I I have and ‘I’ll been right say just said, said, held know. And I ‘That’s all there it.’ I you is to up,’ ‘Nobody hurt,’ said, will know. I T won’t lose and the hotel is get you job, my ” insured.’ went next Morris that if warned After anything wrong by being home be killed and her would she would robbery “parents’ night’s pretended bombed,” the car a block from her resi- Lois was let out of about away called; were been there Lois already again dence. The who had police and the for the hotel of the related events evening robbery “plans” and at the hotel as them. The next Morris agreed. evening Beasley appeared them out to the and both were arrested. waiting Lois police pointed of Lois’ There can be no doubt recollection concerning reliability and events for her statements to evening police question, to the were corroborated uncontested confessions later grand jury fully were thereafter released bail. of Morris and men on Beasley.

Morris, were each indicted the San Francisco and Jackson Beasley (Pen. Code, 4), on counts of subd. Grand three § County Jury rape Code, 209), (Pen. and one count of one count of § robbery kidnaping de- (Pen. 211). that one of the Each count § alleged robbery rape the act and abetted fendants had committed while aided being directly the others. case relates

The remainder factual history pertinent J. to whose before Court Bernard Glickfeld Judge proceedings Superior cases had been of the court the Morris assigned. Beasley department Jackson, Morris not to all who had guilty charges. Beasley pleaded record, him and to one of the charges against prison guilty pleaded returned to On motion of district attorney remaining charges prison. him were dismissed. against

It is conceded that Morris and arraignment Beasley following their two and otherwise unrecorded successive guilty pleas, unreported at the chambers of Glickfeld. Present conferences were held Judge and an assistant were the counsel Morris meetings judge, Beasley, reached, district the district objection were over attorney. Agreements “ disposition’ ‘package what as a attorney, for Morris describes his brief Morris and would all Under this charges.” Beasley arrangement of each five one of and to charges. charge rape guilty robbery

plead Author- the California Youth return the to refer Beasley judge promised The consid- his dismiss rape charges. remaining ity,1 kidnaping sentence would receive eration to Morris was that he suspended prison that he condition serve for three on and then be years placed Authority indeterminate for an 1Persons are committed the Californiа Youth (Welf. Code, discharged on or- before 1766). they period Ordinarily are § & Inst. (id., birthday age beyond 25th but their may not in event remain there 1771). § his under the “Work one Furlough”2 county jail program; year would also be dismissed.3 remaining charges 21, 1969, in court with their

On Morris February Beasley appeared asked leave withdraw the not guilty Counsel attorneys. pleas previous “It is and to enter “new and different” Glickfeld Judge responded: pleas. are that both of men so we understanding, get straight, you my just a and to to enter to a 211 Second [robbery], Degree, going guilty pleas 4], counsel that such which Defense is agreed charge?” [subd. rape said: “I will reached. The then was the judge understanding previously And a third I to do. there is this means and what intend tell what you And it is with intent to commit which is my robbery. charge kidnaping to dismiss come in at the time when the intention reports probation proper Code.” of the Penal to section 1385 charge pursuant “Now, a I said then said: Glickfeld upon Addressing Beasley, Judge Youth to the California what I do is refer matter would Authority. plea your make a motion for And after would probation, you your attorney plead OR[4] and bail remain on or and it about 3 weeks. And would takes you after it mailed down Sacramento we is approval get report that takes about So the Youth and it takes about days. Authority and you will set a date or we 5 weeks. And after we get acceptance the Youth be sent to then will will come in. And if are you you accepted, there. have down whatever rehabilitation they program Authority is no do, the record so there I and I it on . . . That is what intend to put to treat Morris, intent the court said: is “[I]t my Turning question.” Prison, on follows: State case as you put probation suspended, your a on a Work as condition in the for three and one county jail year years, whatever it is.” . . . You will have to night go every Furlough. to dis- intention “It would my A moment later the announced: judge Questioned Mr. and 4 Morris.” miss 1 [kidnaping] [rape], [rape], of the remainder the court as to the charges, clerk Beasley’s disposition Code, 1208) jail (Pen. county § a Furlough “Cobey Work Law” 2Under all other time prisoner jail. regular employment, spending work at his permitted is designated officials as may one of certain County supervisors name boards officer furlough probation chief adult Francisco the “work administrator.” San administrator; prisoner will be designated determines whether such his decision program. admitted to the criticized, common, “negotiated Such plea.” and sometimes 3This was not attorney. subject “negotiated” district It is plea counsel and the between defense later, report reading approval of the who to the tentative does, case, repudiate understanding may, frequently obtaining fuller (see guilty plea his arrangement of counsel and allow the defendant to withdraw the People Delles, 629]). 447 P.2d 69 Cal.2d 910 [73 is released Recognizance, a under which a defendant procedure 4OR means Own (See seq.) et giving § 1308 pending without bail. Pen. trial or sentence date of for the under submission take those “I am answered: he going to dismiss them 21st on March intention pursuant it is аnd my sentencing, made district attorney, The 1385.” by to section represented People, And the cases. intended to the disposition judge’s objection appropriate at all has been and it here is district “the was stated: attorney’s position here.” Each be denied it should is not in order that times probation motions, a “motion required then made defendant probation.” to inves- officer to the 1203), were referred (Pen. law probation § thereon was set court, the date for to the hearing tigate report March 1969. officer the time set for hearings probation

Prior probation Morris as to both be denied that filed his recommending probation report he was that stated ineligible to Morris With report respect Beasley.5 sur- the circumstances because in view of Work for the Furlough Program that candidate” for a program. the case he not rounding “proper crimes, to be was directed Lois, present the victim of the admitted On the motions. the date set for hearing probation on March courtroom to the she was hearing morning accompanied probation have been a source This circumstance aby police inspector. appears and his and he castigated inspector of irritation to Glickfeld Judge This factor should on Lois’ behalf.6 officer for their solicitude superior contained, things, a defendant among other statement report 5As to Morris this surrounding leading up charges this the events Morris of the circumstances education, case; background, pertaining to Morris’ a narrative of social factors status; employment, recommending case; parties financial condition and marital letters from interested against officer’s evaluation of the probation; probation for and requesting that In her letter Lois a Lois be denied. letter from work; had not been out of had not able to resume her that she stated the house alone since the choking she been assaults; get could over the fear of someone she off; they dragging parents had sold the home in which her that her longer they years away because no felt lived for 22 and moved from San Francisco city. safe following 6The record shows the to have occurred: “[Judge lousy inspector : deal has I think it’s a when to sit Glickfeld] ought inspector. attorney client. The district to advise I think it is ridiculous. Christensen, you Inspector you a moment. there some have can I see Is reason to sit here, you enough do? or don’t work to “Inspector go young lady by instructed down with I was Christensen: my detail. lieutenant “[Judge : Who? Glickfeld] “Inspector Christensen: Lieutenant Flahaven. “[Judge gave Bring : Who him the down instructions? Lt. Flahaven Glickfeld] sentencing procedure people here. I never heard of where have to be in court with hands; holding policeman holding their hand. was no as later indicated [There figuratively.] the term was used Tell the lieutenant I want to talk to him. Well, Honor, attorney]: your district I don’t think that this is a “Mr. [the Norman fair remark. to it verbatim in the have been of no concern to the and we allude judge as mind footnote indicative of the frame of in our analysis judge’s whether the used a sound discretion in his determination judicial judge of the matters here under discussion.

Penal Code section the district in attorney 1204 reasonably requires such to have at the cases as this the victim hearing. present probation That that hearing section at the circumstances of aggravation provides be mitigation or “must of witnesses examined by testimony presented in court” and of the officer as in Penal by open report probation provided 3.7 Code section 120 Nor is it unusual in cases such as this for the victim of the crime to be escorted to the courtroom officer by assigned police to case. There are several reasons for this one is practice; particularly law here. As but not had or apparent permitted, required, dered that Morris and remain at on bail after their might liberty Beasley relatives, their friends and would neces guilty pleas. They, possibly travel and on the of the sarily through corridors elevators public courthouse, to and from It idle Glickfeld’s courtroom. seems even Judge out to that Lois should to chance an unescorted point obliged confrontation with her self-confessed their ravagers or friends. that

Later were morning called. After some probation proceedings discussion about a continuance the in the record: following appears worth, . . .

“[Judge For what it is but anyway, Glickfeld] only me, that record, and I thing disturbs will this here is that I on say just don’t like the undercurrent of that are from the being pressures put “[Judge Norman, : Glickfeld] going Mr. a fair I am not to listen to what is remark you in ago. view what did to the a few I to court weeks don’t want hear that. I way want Lt. going Flahaven down here. That is the to be. And I don’t want things hear about what a fair remark is. There are lots that fair. are not “Mr. Norman: For record I don’t think it was. “[Judge Glickfeld]: police inspectors sitting I don’t holding want here court hands, alleged using some victim’s figuratively. I am And Lt. term want I. Flahaven down here. I want to know where these instructions came from. There is police lots more work to county for the do in sit here court. than in this I want gave instructions, bring know who so him down here.” 7The full text Code of Penal section follows: “The be presented by testimony circumstances must of witnesses examined in court, open except when a attend, witness is so sick or infirm as to be unable to his deposition may court, magistrate county, be taken out of such party notice may adverse as the testimony, court direct. No affidavit or or repre- court, kind, written, sentation of verbal or can be offered or received judge thereof, aggravation or a mitigation of the punishment, except provided preceding and the section.” “preceding Reference to the section” 1203. section When section 1204 was in 1872 preceding enacted section was Legislature 1203. Since then the has 1203.01-1203c) inserted several additional sections between sections 1203 and 1204. I don’t like the the district office. And attorney’s pressures outside on outside, believe, I on the departmеnt are on from being put with them and the in view of Furlough Program, my experience Work have been have been in the and how they doing they oper- and what past this court is And I will not tolerate on court. The any pressures ating. manner and its best and judgment, to act in an going independent I And will answer to the to my good judgment. right person, hopefully to, God, conscience and to and that is who I will answer and that is all my I can I will not and say. tolerate on the court district any pressure attorney court; or on any arm of and the is an arm of probation department the court.

“Mr. Smith defense Or the [of counsel]: police department. And I won’t tolerate on the “[Judge pressures police Glickfeld]: an^ either, and having me he is here to somebody telling somebody. protect I have some got here. So will pretty good over protection everything go to the 8th on motions. ... I will tell one if find you out thing, you direct any court, pressures been exerted on arm else, probation department, I police or will department, anything bring before the court there person and will be a aon hearing question of court. And contempt now, I will tell you right this and with all the it, that attention, follow from if consequences it comes to my and means everybody.” were then continued hearings to 8. On April day Beasley, was committed to the

promised, California Youth and the three Authority counts of the indictment him were dismissed under remaining against of Penal purported authority Code section Morris’ 1385. hearing continued to 11. April

On the April record shows the hearing other following, among to have things, occurred: : And Mr. “[Judge Morris is so he is not eligible and Glickfeld]

for that Youth and I Authority], [California had recommended Work Furlough Program. And the chief officer probation Kavanaugh] [Mr.

under a misinformation as to the of the court and he powers apparently thinks he is a and I judge, am not to let him going my preempt position or that of Karesh Judge I Judge Neubarth. am not into going get time, any discussion with him at this but the future will take care of itself. But the indicates that report should be denied and probation they say the man is ineligible for Work Furlough. And I want to out just point for the record that another man was on Work who two put Furlough felonies without previous the court and who was permission charged 487,[8] resident, and was not a local second who robbery, degree, and there was a

who was on Work one then Furlough day escaped bench for . . . warrant out him. this,

“I that the district office is opposed know attorney’s strongly background and I but in the sincerely, there is a lot say hocus-pocus here, and I am And I here and I am sit going my judgment. persist conscience, for this it is am I responsible judgment, my going answer ... I my God At this time don’t want to my judgment. make a fuss about Work but I will you Furlough, put probation years, three as a condition are to you period next 52 in the spend jail weekends county commencing Friday night o’clock, will be o’clock . released at 6 . .” you Monday morning.[9] “Counts 1 and to commit robbery], [Rape], [rape], [kidnaping which I indicated I am to to section 1385 of the dismiss going pursuant Penal I am such counts. dismissing And the record indicate the district

“Mr. is Norman: attorney may to the is objecting of those counts and it the district dismissing attorney’s and he court to those position, set matters for trial as soon as requests possible.

“[Judge I and : have dismissed I set already them can’t Glickfeld] I have dismissed. something Well, would we ask Honor to and to

“Mr. Norman: your not dismiss set them for trial.

“[Judge them, I have dismissed and if want to already you Glickfeld]: discretion, use of appeal you have my remedy. record, Honor, Norman: We And

“Mr. understand that. Your and on behalf of the district isit felt that this one attorney, of the most vicious and most aggravated offenses has come in this in the county last years, several and we are objecting sentence in this case and feel that . in order at all. . . I probation Might of the court inquire what just court has said or to? hocus-pocus alluded “[Judge : There has been a lot here. I pressure Glickfeld] talked to Mr. I Kavanaugh Norman, indicated the Mr. hocus-pocus, by reason that was type person on Work put Furlough, I have indicated it because Mr. to Kavanaugh trying preempt grand

8Penal Code section defines theft. Furlough 9Under the Work program nights spend Morris would weekends and jail. the probation Under order as made only jail. he would spend weekends in Now, and I am not I have had a lot of information function of judge. time, and which has come attention my to talk about it at this going a lot in the and effort to background get and which shows of finagling this, I I am not into but am going go Mr. Kavanaugh pressure. them; not, naive. . . . And aware if are are you being pretty you the next time this Mr. will be in here on a Kavanaugh happens contempt And, It is that know . . . exam- my Now charge. simple. you position. I will tell one I which from you got ple, hocus-pocus probation report. in, referred some letters I had to the letters and They request sent find out who sent and what piece them in said. That is one of hocus- they I and think the court is entitled pocus, to full revelation what the file one, contains. That is I could tell more.” you many Judgment Morris against was then he was sentenced to pronounced; state each on of the counts to which he had prison guilty. Judge pleaded Glickfeld ordered that each thereupon sentences be suspended, that Morris be placed on each three count for on probation years, condition that he serve 52 weekends in the county jail. contend: Judge Glickfeld abused his discretion Morris, granting and in the unresolved dismissing charges

of rape commit kidnaping robbery against Morris and Beasley; (2) (Pen. Code, under 1203) law Morris was § ineligible probation; and that the orders of dismissal were invalid for failure of to set forth the reasons therefor “in order entered an minutes” as Penal Code section required by 1385.

The contention, first indicated, as People’s relates to “discretion” vested in courts on and dismissal probation Cali- Recently proceedings. Russel, fornia’s Court in Supreme People 69 Cal.2d 194 [70 210, 443 794], P.2d Cal.Rptr. earlier on the quoting subject, authority stated:

“ ‘The intended, discretion however, arbitrary is not a or capricious discretion, but discretion, an exer- impartial and controlled in its guided cise fixed by It legal disсretion, is not a mental to be exercised principles. ex gratia, but discretion, a legal to be exercised in conformity the law, of spirit and in a manner to defeat subserve and not to impede ‘ “ the ends of substantial . . exercise justice.’ . ‘The word imports of this discriminating judgment within bounds of reason. Discretion connection means a discretion, sound judicial intelligence enlightened by and learning, courage controlled sound by law, firm principles of of combined with the mind, calmness of a cool free from partiality, swayed of by nor kind sympathy any nor moved warped prejudice

630 to do that which overwhelming alone the passion save influence think, that all continued, 195): saying “[W]e The court (p. just.’”’” in reasoned judgment discretion must grounded exercises of legal matter particular legal appropriate guided by policies principles “ ‘ abused whenever in issue,” sense discretion is and that “In a legal at reason, all exceeds the bounds of discretion the court the exercise of its ’ ” (P. 194.) considered.” of the circumstances before being seems An observation point: appropriate California, the district are a party Stake attorney, represented 100). (Gov. criminal actions in this and all § They, plaintiff and fairness as are entitled to the same judicial impartality People; courts. other in our litigant that the order Morris

We first consider the contention granting was an the court’s discretion. abuse of section Penal Code 1238

Such an order is designates appealable. 5 Subdivision which the decisions from right appeal. an order made after such an “From that section authorizes appeal held It has been the substantial rights judgment, affecting people.” case, in Morris’ that an order granting pronouncement probation, after sentence, of sentence ap suspension judgment, imposition order made after (People as such “an judgment” pealable by 480]; Superior People v. Orrante, [20 Court, 1087]; Sargen, In re P.2d [258 407]). P.2d Cal.App. from an order is taken law that where

It is established appeal discre a clear abuse of ‍‌‌‌‌​‌​‌​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌​​​‌​​‌‌‌‌‌​​‌‌​‌​‍that there was showing granting probation, upon (See v. 219 will be reversed. tion the trial his order People Lippner, by judge, 435, 395, 457]; Ingram, v. People Cal. 400 P.2d 272 Cal.App.2d [26 Mancha, 590, 423]; 592 v. 213 439 People Cal.App.2d [77 Cal.Rptr. Privitier, 725, 72]; 730 v. 200 People [19 Cal.App.2d Cal.Rptr. [29 Hollis, 293]; 92, 640]; People Cal.Rptr. 176 96 Cal.App.2d v. [1 49]; v. 763, P.2d v. 126 776 People [273 Bartges, People Cal.App.2d Adams, 112]; v. 245, P.2d 247-248 People 103 [229 Connolly, Cal.App.2d Jackson, Cal. 841, 873]; 89 100 844 P.2d [224 181, 204]; Wiley, P.2d App.2d [200 907].) P.2d 429 [91 in exercise his discretion a trial must The manner in which grant- Court. out the has been or Supreme by ing withholding pointed probation Court, Co. v. In Times-Mirror 15 Cal.2d P.2d Superior 1029], the court declared: the

“Section 1203 of Penal Code the prescribes procedure governing for and the source from which the court receive applications probation may the information to in necessary enable it to act such matters. section By of the code the must refer court the to the officer application probation whose it is after to make a to the court which duty investigation report the court must consider in its final report decision in or making granting We find in said section nor of code denying in probation. nothing any other law of the which would different provision justify any approach the court when matters of are before it than when probation regular and at the before trial are under the . . . court’s consideration. proceedings act of defendant is of the court probation legal governed the same rules as are other before applicable any legal proceeding the court.” Wade,

More in 53 Cal.2d 337-338 recently [1 Cal.Rptr. 116], 348 P.2d the court stated: “The of offenders is for probation in section of the Penal provided Code: “. . . in case in which the defendant is every felony eligible before and whether or not an probation, any judgment pronounced, made, has been the court must refer application probation immediately the matter to the officer to and to to the court. probation investigate report . . . The officer must make of probation thereupon investigation circumstances the crime . . . of surrounding history prior defendant, must make written accom court . . . and must report said with his written ... recommendations as to pany report granting court, of ... At the time . . . withholding probation. fixed the court must hear and suitability determine . . . the probation case, and in connection therewith must consider particular report officer, and must a statment considered make that it has probation of such ... If the court shall determine that there are circumstances

report. law, or that ends mitigation justice punishment prescribed by defendant, would be shall subserved court granting probation ’ .”. . in its discretion to defendant power place probation. must The purport the statute and the is that court cases the trial [f] not decide all until it is in question possession facts, relevant those contained [Italics especially probation report. the that There is little from the record in the case at bar ours.] question at trial had the of the defendant decided judge against queston probation clear is It the time of her therefor. to file an granting request application submitted the wait the was and that did not until judge report completed to her.” Wade, Court found the trial the decision

In Supreme judge’s premature discretion, the to be abusive of the court’s on question probation therefore error. indicated,

As asserts his brief and at oral Morris repeats argument that the in “a conferences Glickfeld resulted early Judge package of all five that the He insists disposition charges.” judge’s promise pro- bation an of that The record integral supports disposition. fully part Morris’ contention. Glickfeld made clear

Throughout Judge subject proceedings reached, reve- such an and that further factual been agreement despite lation, officer, or or recommendation of the report, objection probation follow on he intended to it. This intent memorialized People, even were entered. record Morris and Beasley guilty pleas before “what do.” To at that I intend to The time told the defendants judge . to treat case as State Morris he stated: “. . it is intent my your follows: Prison, one for three on you years, year suspended, probation put words, other Jail as condition on a Work In you Furlough. County You are an and whatever that is we will work out. program apprentice l am . . that is what or whatever it is. . So will have ingo every night And, sir, them to do. two and I would make counts going got you this, abe before concurrent. And there would again, report probation added.) dis- (Italics .” The would take the of time. . . which same length conclu- would to be heard trict “We like attorney saying, interrupted “Yes, added.) (Italics what Honor sion your says.” judge responded: (Italics added.) I I am what am to do.” telling going but him fust noted, officer thereafter Morris As we have rejected probation filed his Work He also report Furlough judge’s contemplated program. and recommended court the against open responded: probation. believe, outside, I “I on from the being don’t like the that are put pressures I will ... on the and the Work Furlough Program, probation department arm or on any not tolerate court district any attorney pressure . . court; . court. and the is arm department probation toas And the chief officer was under a misinformation probation I am he ... court and he thinks judge, powers apparently time, will him but future into discussion with at this get going should be denied take care of itself. But indicates that the report . . court . This the mam is for Work they say "ineligible Furlough. do be what are will not threatened threats of going newspapers next what Mr. intends to do. And the other threats of Kavanaugh charge. time Mr. will in here on Kavanaugh contempt happens It Now know you my position.” simple. the the did

We that court endorse the recognize probation report “I read and the of the considered legally language, report required 1203, in 1st here (Pen. again, officer." But probation par.) § Wade, at which supra, Cal.2d the “During judg- proceedings the made it clear that earlier ment was court quite pronounced, pre- [its] not, fact, the in been formula reciting changed conception despite statute that ‘the court has and considered read language ” Surplice, of the Probation Officer.’ report 826], where the trial made such a state- 791-792 judge ment, court held inference appellate arising therefrortji other statements and conduct of the negated" by judge. “expressly Wade, 322, 338, As was the case Cal.2d “There is little in the at from record case bar that the trial question had decided before he was in question probation” long pos session relevant facts of the probation grant report. probation to Morris under these circumstances was an abuse of discre accordingly tion, an abuse which we think clear.

There is additional evidence to an abuse court’s pointing discretion. ante, 6) Glickfeld’s

Judge (noted tirade fn. incomprehensible against crime, victim of attendant, Morris’ her and his police inspector supe- rior officer or at least tended to obviously discouraged, her discourage,10 as to the details testimony of the offense as Penal Code section provided by 1204. And the threat judge’s “And the next time this Mr. Kava- happens naugh probation [the will in here on a charge” officer] contempt quite refers to that clearly official’s recommendation against probation rejection of Morris for the Work Yet the agreed duty Furlough program. to make such decisions is in the officer law. We reposed by probation note also court’s accusations of repeated “pressure,” “hocus-pocus,” and “finagling.” These tend impartial matters to indicate lack of discretion, guided fixed legal conformity principles spirit law, Russel, required by supra, 69 Cal.2d 194.

Furthermore, Penal Code section 1203 that the clearly requires court exercise its discretion toas therefor and the motion probation after filing officer’s This Glickfeld did do. report. Judge clear, Here it Morris, and so admitted adhering the court ato reached, before “package which included disposition” long grant of probation. This amounts ato failure to exercise discretion required law—the which abuse of discretion —for practical equivalent

10She testify did not the probation hearing.

634 In (See Morris improper. also the order granting probation reason 810, Brumback, 217]; Saidi-Tabatabai 813 P.2d 46 Cal.2d [299 re 257, 510]; Tobin Court, 262 Superior Cal.Rptr. [61 Cal.App.2d Tobin, 712].) 789, 794 [5 be reversed.11 Morris must the order granting probation

Accordingly, that Glickfeld related contention We find the Judge People’s law from discretion, instead no but was granting by probation prohibited the consent with and violence” “with force to oné convicted of except rape based contention is without merit. The thé to be of district attorney, not shall which “Probation (4th Penal Code section provides: par.), . with of . . have been convicted rape who shall granted any person . crime . . violence, . . . who in force 'or wilfully perpetration torture, (5th . . .” Section 1203 or inflicted par.), great bodily injury would best in which interests states: unusual cases ... “in justice at the district with the concurrence of be served may, thereby, torney, grant probation.” reason, that forcible

It not without some necessarily rape argued, However, has includes infliction of Legislature bodily injury.” “great term used in section as the that made clear an intent bodily injury” “great (4th in section 1203 Elsewhere (4th has a different par.) meaning. par.) to one convicted shall not be it is said that rape granted probation “armed with offense was deadly at the time of the and violence who force as a matter denies (Italics added.) Also section probation, weapon.” convicted been law, “has of such a crime if the previously perpetrator conduct added.) clear that (Italics It is thus made beyond felony.” the ac- before must forcible to commit rape appear necessarily required cused is law rendered ineligible probation. 573], the Merrill, 257, 266-267 P.2d to one who denies that section 1203

court rapes reсognized than were more or torture only force and violence where the bodily injuries the victim’s In that case bruises on necessary rape charge. prove were held to her until she and the thumb yielded, body, gouging eye section 1203. In and torture constitute the injury required bodily Lois, abused. additionally was not so case before us fortunately, with, and were that Morris and We note also Beasley charged pleaded to, subdivision Penal Code section referring rape violating guilty 11We, course, suggestion penalty upon future as to make no determination of that proceedings superior province a decision is in the exclusive in the court. Such court. “is from where victim threats and im- resisting by prevented great involved, mediate harm.” It is subdivision here section bodily or that relates to where “resistance is overcome force violence.” rape by We that the un- turn now contention dismissal of the People’s resolved under the Morris against charges Beasley, authority purported 1385, of Penal Code section was abusive the court’s discretion. 8, 1238,

Penal Code section states: “An be subdivision appeal may taken . . . From an order or or other people: judgment dismissing wise the action before the defendant has been terminating placed jeop It is observed counts of ardy.” remaining kidnaping rape Morris were dismissed before either had been against Beasley placed on those A defendant an jeopardy charges. is in for jeopardy “ (1) offense (2) offense, (3) ‘when trial the same placed on a valid indictment (4) or information or other accusatory pleading court, (5) before a awith competent competent jury, duly impaneled case; or, court, sworn and with the if the it trial is charged ’ ” Hernandez, 842, must be “entered v. 250 (People upon.” Cal.App.2d 835]; Witkin, 178, 848 1 Cal. Cal.Rptr. [58 Crimes and see p. cited.)

authorities there No or recognizable policy appears against prosecution punishment for a dismissed offense when has not attached. previously felony jeopardy Indeed, Code Penal order section 1387 “An expressly provides: action, dismissal of the made as in this includes provided [which chapter 1385], is a bar to § other for the same offense if it is any prosecution misdemeanor, but not (Italics added.) ais felony.” if on review of such a dismissal order is also question ordinarily

whether under circumstances trial exceeded bounds discretion. If there was such an abuse of discretion Court, order must judicial 714, set (See aside. v. 249 718 People Superior [57 Gonzales, 892]; 235 People Cal.Rptr. [46 Cal.App.2d Supp. Winters, 301]; People v. 880-882 Cal.App.2d Supp. 538].) P.2d [342 Code

Penal section as 1385 reads follows: “The court either of its own of the motion may, upon application and in furtherance of an action to be order prosecuting attorney, justice, dismissed. The reasons dismissal must be set forth in an order en- tered the minutes. No dismissal be made for cause which shall would be of demurrer to the ground accusatory pleading.” Gonzales, an concerned Supp. dis- an section 1385 from order under Penal Code

appeal The order on the court’s motion. a criminal action trial own missing should be reversed. carefully rights Explaining States, the court United such a considered in Singer quoted proceeding, “ 783, 790], ‘The as follows: U.S. L.Ed.2d 85 S.Ct. of de- method as Constitution recognizes system adversary proper Government, has a interest litigant, legitimate termining guilt, are tried a conviction is warranted that cases in which it believes seeing which the as most likely before the tribunal Constitution regards produce ” 890): added.) (Italics court continued fair result.’ The Gonzales (p. contentions as courts the recommendations and “[T]hfe weigh generally adver- the the . . . Under our facts forward by prosecuting attorneys. put formal course trial or the court of evidence in of sary system, prior receipt the all of not informed of of the circumstances proceedings usually the crime nor of the evidence available the alleged prosecution prove accused; available an does not the facilities of it guilt investigative of our the observation of the . . . office 892] [P. By prosecutor. nature, basic in notion a criminal basically proceeding adversary feel, the we for courts of general process, respect judicial public be will officers must all times not be Courts only judicial promoted. fact, fairness fair but also in of in be diligent preserving appearance well.” has been held to Penal Code section

Specifically referring section, of that “furtherance of considera- language justice,” requires defendant, and of the of the the interests tion both constitutional rights of society represented People, be in whether there should determining Winters, 887; a dismissal. v. (People supra, Cal.App.2d Supp. 617].) P. People Disperati, Cal.App.

The record before even Morris us shows that before uncontrovertably their entered and over the Beasley guilty objection pleas, in Glickfeld had made his mind to dismiss the Judge charges People, up At that time he was without the benefit of the question. required legally officer’s of the and the a full case containing exposition report of defendants. If the out of court information background judge accepted crimes, violation of Code defendants’ such Penal mitigation 1204. which section details of the early Reciting disposition” “package included the count two dismissal of counts against rape kidnaping defendant, each “That I I is what intend to do and judge.declared: added.) (Italics it on the record so there is no And the put question.” judge honored thereafter his promise.

As in case of the order Morris granting pre probation, cases, defendants’ determination with circumstances coupled demonstrates the following proceedings, atmosphere court-created the reasoned free from exercised conform- judgment, lack partiality, Russel, law, supra, Cal.2d of the spirit ity required that the conclude trial court’s dismissal kidnaping We 194. abuse of dis- Morris and was also an charges against Beasley and rаpe cretion. aside.

There is another reason the dismissals must set why yet indicated, As section 1385 that the “reasons dismissal specifies added.) upon (Italics set in an entered the minutes.” must be order forth This was not followed Glickfeld. Judge requirement

One of the of reasons is to enable purposes specification whether, court determine in view of the reasons appellate assigned dismissal, section 1385 exercise of discretion is shown. justify proper Winters, (See People 876, 880.) And Cal.App.2d Supp. “A trial, motion, criminal without own dismissing charges his must record his reasons so that all know may why great power exercised, restraint, and such declaration is indeed a public purposeful lest discretion magistral (People of laws.” away government sweep Winters, Silva, supra, 882.) People 453, v. v. p. 236 455 Cal.App.2d 87], holds: “The Cal.Rptr. [46 for the statutory entry requirement reasons for dismissals the minutes is the designed to protect public interest against . . improper dismissals. .” corrupt

The statement of reasons is not merely neither directory, trial nor courts have appellate authority It is disregard requirement. that enough on review the show the reporter’s may trial transcript motivation; court’s the minutes must reflect the that all reason “so may Winters, why know this great (See People supra, was exercised.” power v. 880-882; 876, 171 Disperati, Cal.App.2d Supp. People supra, v. 11 469, 476-477.) Cal.App.

Defendants cite certain cases as authority for that the proposition court need not state reasons for a section 1385 dismissal in the minutes. Smith, People v. 203], 133 People 777 P.2d Cal.App.2d Supp. [284 Court, Superior supra, 714, v. 249 hold that a Cal.App.2d respectively, written statement docket, of reasons on the court’s and a typewritten stated reasons transcript orally direction, forthwith filed at the court’s were the substantial of a statement equivalent on the minutes. In those cases of a requirement declaration public of reasons that all “so may met; was know” there was no such declaration in the case public at bench. Silva, People v. supra, Fox, 453, 455, 236 People v. Cal.App.2d 560, 126 832], 567 Cal.App.2d P.2d hold that “statement of [272 reasons” was made in the requirement interest and not for public

638 “ nothing of the defendant. Since ‘The section has whatever to protection ” Fox, (People supra) the defendant’ v. it was held do with rights that in effect he had no standing complain.

It is that obvious reason for counts urged dismissing remaining the fact that against guilty Morris was Beasley they pleaded the other counts. we consider it to be Were we also would speculate, far more obvious that the reason for dismissal Glickfeld’s Judge before, made weeks Such a discussion illegal do so. promise, many set in an entered points reasons “be forth order up necessity “so, (Pen. 1385) the minutes” that all know why § may Winters, great (People was exercised.” v. 171 power Cal.App.2d 876, 882.) Supp. find ourselves

We also in contention agreement People’s the orders of dismissal were invalid for reasons from their entry apart abusive of the being court’s discretion. authorization, court’s as well as the only statutory purported

justification, for the section 1385. Without dismissals Penal Code section statement of reasons under that therefore dismissal required Court, Superior invalid. This is now Cal.2d established law. v. 69 503, 330, 138], the reasons fn. 7 446 P.2d states: Cal.Rptr. [72 “If minutes, may consid dismissing are not set not be order forth ered a under (Italics added.) (See dismissal section 1385.” also Evans, 714]; Supe Cal.App.2d Cal.Rptr. [79 Court, Shaffer, 365]; People rior Cal.Rptr. [49 also, we 844].) this authority Under be invalid. must hold Glickfeld’s dismissal orders to Judge of the “kidnap the restoration We considered the effect of That 209) Beasley. against (Pen. charge robbery” to commit § ping for, of, is undergoing punishment been convicted defendant has now has not been appealed the robbery The as to robbery of Lois. judgment to commit rob Lois of it is It is the kidnaping now final. patent conduct, criminal a course of were robbery and her bery parts Ward, In re the theft of the victim’s property. of which was objective 400], which also 414 P.2d 672, 675-676 64 Cal.2d the resultant robbery, robbery charges kidnaping concerned of double the imposition 654 of the Penal Code “Section prohibits holds engaged conduct or a of criminal either a act course if single punishment convictions. multiple as basis objective charged with single for the circumstances, only can be the defendant punished Under such section 654 offense. Penal Code provides more serious [Citation.]” a defendant charge a conviction and sentence on one such related upon .12 be would therefore prosecuted under other It not may thereafter (§ 209) charge against idle to reverse the “kidnapping robbery” Beasley. note that or

We no rule multiple prosecution proscribes multiple where, here, having as a defendant is with himself charged punishment the act each of directly aiding committed abetting13 rape two in their of the same victim. accomplices rapes of this case from an present illegal results posture “package between the and defense counsel. While ordi

disposition” arranged himself, brought one on narily may of a result fact complain nevertheless remains that' each on the defendant has now served time convictions his The fairest and solution following guilty pleas. just most of the before us would be as problem nearly restoration all parties, as held possible, positions entry guilty pleas. prior This would counts, allow of the on all untrammeled action resumption procedural snarls we have But such a encountered in record. result must depend withdrawal defendants of their voluntary A guilty somewhat similar pleas. disposition permitted Delles, supra, 69 Cal.2d If defendants or either of them 910-911. shall elect so to withdraw the If either they do so. guilty pleas, may they of them shall thereafter be convicted and sentenced charges which they previously pleaded credit for time served guilty, thereon is Penal Code section required by 2900.1.

toAs defendant 11, 1969, Morris: The order of is reversed insofar April as it indictment; dismiss purports counts 4 of the the order 11, 1969, April is reversed. granting probation

As to defendant 8, 1969, The order Beasley: of April is reversed insofar as it indictment; to dismiss purports counts 2 and count the order is affirmed.

Molinari, J.,P. concurred. 12The language exact of the pertinent portion of Penal Code section 654 is: “An act or omission which punishable ways is made by provisions in different different may code punished be under provisions, either of but in it such no case can one; punished under more acquittal than or conviction and sentence 'under prosecution either one bars a the any for act same or under omission other.” ^ 13Penal Code section ‍‌‌‌‌​‌​‌​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌​​​‌​​‌‌‌‌‌​​‌‌​‌​‍pertinent as provides: here persons crime, “All concerned in the felony commission of a whether it be or mis- demeanor, they and whether directly constituting offense, commit the act the or aid commission, or, and abet in its being present, encouraged and advised its commission, . . principals . are in crime so committed.”

SIMS, J. I dissent.

Without or the personally of the approving disapproving disposition matter effected by court, the orders of the I trial find that his orders were within the of his If the proper discretion. is to scope judiciary play part in the it should not be to sentencing process bound follow recommenda- tions the district officer, or the nor should it be sub- attorney probation ject to public pressure or to reversal because on another disposition appeal might more appear the trial in some appropriate. Although judge engaged remarks, unwarranted and apparently I do not believe that the intemperate record shows aas matter of law he abused his in discretion disposing as charges he did. facts, and those to relating

In order to particularly put proceedings I have Morris’ for qualifications probation, perspective, repeated proper I neces- much which is but believe set forth the foregoing opinion, trace whether to occurred to determine sary they developments discretion, within or judge arbitrarily of a acting sphere proper violation his sworn duty. one Morris in the Beasley, acts set forth opinion

As result of and immediate (1) threat of by great indicted for Jackson were jointly rape and abetted aided Code, 4) (Pen. by subd. committed Beasley harm § Morris, aided and codefendants, committed by same offense (2) the his by Jackson, committed codefendants, (3) by offense same abetted his by codefendants, (4) purpose and abetted his kidnaping aided Code, (Pen 209), Code, robbery (Pen. § robbery committing count, was denied the first to §211). of guilty Jackson entered his plea term law for the prescribed and was sentenced state prison probation 671), term with the minimum life, 264 and (three Pen. years §§ 1202b of the of section months, reduced to six pursuant provisions 21, 1969, the Thereafter, February virtue of his age. Penal Code (5), (2) and counts as to from Morris trial received judge guilty pleas was fixed as robbery (5). (1) and The degree as to counts from Beasley of the without the objection at least of the second degree by stipulation, with to, receiving pleаs, and in connection district Prior attorney. his Authority, Youth Beasley his to refer announced intention sentence to state suspend sentence Morris prison, intention to jail in the county one year three years admití him to probation dismiss the intention to his further Program, Work Furlough under the district attorney assistant defendant. as to each counts remaining case, disposition proposed announced People’s opposition and should be order not in indicated expressly denied. were continued March at that

Both 21st and ultimately proceedings court, below, the time discussion in which is reviewed case following open different for each On was continued to dates as to defendant. disposition 8th was committed to the Youth Over the objec Beasley Authority. April of the and his have the set tion matter prosecutor, despite attempts trial, 11th, (2), (3) counts were dismissed On as to Beasley. April court, the over the the assistant made the of district protests attorney, order of dismissal order to Morris granting probation respect which the seek to have reviewed on this appeal. contend, as set in their that action forth notices of the appeal, the defendant,

of court in as to each two counts of dismissing, rape one count of for the was an of dis- of abuse kidnaping robbery, purpose cretion and resulted an On is con- order. improper illegal appeal tended that the orders were void because no for the dismissals was reason set forth in the minutes. further contend the that of They grant probation to Morris the without of the excess of concurrence district was in attorney court, vested of the powers under of section 1203 provisions Penal and was an abuse of discretion.

For the set reasons forth below I conclude that the orders dismissing counts that were unresolved void were not for failure to set forth an express minutes; reason in the that in dismissing there no abuse discretion dismissed; those counts on the record before court were at the time they that the defendant Morris without the necessity was eligible probation of concurrence him district order attorney; admitting was within the probation of discretion conferred on trial sphere and that incom- Legislature; the remarks of the trial although judge, prehensible, criticism, irregular establish subject do judge’s announced intention in the on facts which were not predicated him, record before or facts were in the which not thereafter incorporated so as report, constitute irrevocable premature preconception acts, which would vitiate his formal re- nor do such subsequent judicial marks establish that his decision exceeds the bounds of reason. The judg- ment and orders should be affirmed.

Statement Facts

The facts as stated in the in the case of Morris probation report prepared reflect the accurately each as revealed defendants part played by may, 1Section 1385 its own provides: Penal Code court either of “The or upon application prosecuting attorney, motion in furtherance justice, order an action to be The reasons dismissal must be set forth dismissed. order entered made for which No dismissal shall cause minutes. ground would be demurrer accusatory pleading.” to their indictment.2 transcript jury grand proceedings leading The recites: report reveals victim was of The grand jury transcript employee

Jack Tar Hotel. After left work November she on evening she for a at transfer was bus of 25th Avenue and waiting Geary point around 11:10 William Morris and the two co-defendants were in his p.m. car which was there traffic to They controlled started light. stopped call out to and and her A man was light changed they away. pulled also at this transfer and an older woman who standing point approached the victim and her in conversation. the bus came engaged they got When on it and sat until left Avenue and Lawton the victim 19th together Street. home when she

The victim was block from her away one approximately “there she is— observed defendant’s car down and heard them say slow she was one that’s her.” walk her and she She continued towards home to house down to the her away from it when the defendant’s car went past car. corner his and the driver and it was circled back. Morris was William her When he and grabbed car Kenneth out stopped jumped Beasley from behind the and She started neck held his hand over her mouth. was kick and then Rickie feet and she James Jackson her grabbed put with her while inside the the back seat forcibly car. Kenneth was in Beasley the defendant Jackson rode in the front with Morris. William the seat was in the defendant that

The victim was told not look at she it was indicated with and her nor to scream. She was advised to relax that he was going for a Morris indicated ride. William going long out kill kill her her. One of the other defendants told him pointing into what her she was too said that’s got Another one pretty. the back with her grabbed trouble. Then Kenneth was in who Beasley While they her and to it. face she to do him not anything pleaded $3 were and removed and wallet went riding they her through purse took her they each them topaz took one dollar. Subsequently car was- money ring. finally were she had so little They annoyed if her family stopped They inquired Beach near some bushes. Rockaway weeks for ransom. for two could hold her any money indicating they She driver. a truck told him was only were that her father they poor Beach,

While she Kenneth Beasley driven to Rockaway being 2An secured from inspector confessions regarding the content of oral testified Beasley statements, suspect as perhaps self- following These Morris their arrest. serving, events, and was the most instigator tend to indicate that Jackson was the depraved him from three; restrained Beasley and Morris violent part other who returned parties against girl, threatened were the acts overtones. has similar victim’s officer money. Morris’ statement coat, sweater, destina- arrived at this and bra. When removed her dress they did, which she take of her she was ordered to off balance clothing tion each the defendants because she afraid of killed. Then raped was being they what would do her twice. After this indicated did not they they know victim advised with her started to talk about The money. again they her, them if were interested in did not have to hurt because they they money would them she she some. She work closed out get leaving explained prior $600 and $150. she had a to her bank She them if they told key would return with her to The Jack Tar she would it for them. Hotel get indicated They then one of them decided she enough money truth, telling because cashiers do have banks that close with they each asked day. what time she would be They off the next and even day it was though her off told day $200 she them 6 Then decided they p.m. each would be good started to they talk about how would they spend their money. The victim then if explained they marred her face she would not be able to them, get for because money she would have look in order good to work on the at the Then the job hotel. victim planned scheme for them so that it would look as she was held though being up. then decided

They to take her home and enroute asked how she would to her mother the fact she was late. She told them she explain out so would inform her mother she had met a a drink. friend and out for gone asked if They she would call the and she in the police replied negative. wanted They door, to drive her to the front but the victim felt now her by mother would have called the she felt if the defendants saw police car in front of squad her house they not leave her out. Therefore she might them to leave prevailed upon her out at the corner which did. they Two of the defendants each returned the dollar had taken but one his. they kept When she asked them for her would not her. ring they give

The next day Beasley Morris were when came they apprehended hotel and were identified the victim. by

I

Right Appeal Dismissal from

“The under which the order was made is the same power substantially held attorney-general England, prosecuting court, states, officer in the American many prosequi. to enter a nolle dismissal, the order of takes purposes charge prosecution, dismiss, acts It holds the people. as the power attprney holds the general England to enter a nolle power prosequi, virtue law; the office and the and it is exercised official responsibility.” (People (1886) 546, v. More 71 Cal. 631], 547 P. also, People See [12 v. Superior (1968) 491, 330, Court 69 Cal.2d [Howard] 499 [72 Cal.Rptr.

644 645, 138]; People (1962) v. Sidener Cal.2d 647-648 446 P.2d 58 [25 199, 641]; (1957) v. 49 People 375 P.2d Valenti Cal.2d Cal.Rptr. Sidener, People 58 Cal.2d at P.2d 633] [316 [limited 647]; Superior [Kasparek] (1962) Court p. Cal.App.2d 178]; v. Romero Cal.Rptr. [21 557]; P.2d (1965) 235 [57 Gonzales Supp. 301].) 3 and 84 to section 1238 7 subdivision

Prior to the addition of subdivison that, acted for the it court having of the Penal was established “The so act in their criminal and under them to granted by express people, power (People v. there their such action.” no prosecution, part appeal More, also, Superior v. Court supra, People 71 at See Cal. 547. p. Valenti, [Howard], 497-499; supra, v. supra, People 69 Cal.2d pp. 207; 199, (1967) Cal.2d Cal. People Superior [King] 49 v. Court 249 714, 892]; Court People Supеrior [Kasparek], 715 v. App.2d [57 Cal.Rptr. 850, supra, 178]; People 202 v. Ehr 852-854 Cal.App.2d [21 Cal.Rptr. (1961) 468, 606]; hart People 196 469-471 Cal.Rptr. Cal.App.2d [16 v. (1953) 46, Baxter 1093].) 119 48-50 P.2d Cal.App.2d [258

Nevertheless it was that in cases the action of a recognized exceptional court in a case superior under the of section 1385 dismissing provisions could be reviewed (People Superior for writ of v. mandate. petition [Howard], supra, 491, Court also, 69 Cal.2d People 500-501. See v. Superior (1927) Court 165, 943]; 202 Cal. 173-175 P. [Prudencio] [259 People v. Superior 714, [King], supra, 715; Court 249 People Cal.App.2d v. Superior Court (1966) 90, 240 92 [Jonsson] Cal.App.2d [49 Cal.Rptr. 365]; and v. People [Kasparek], Superior supra, Court 202 Cal.App.2d 850, 854-855.) identical with first sentence of

It that language also should noted above) 3 (see the Penal Code fn. has 1238 of been subdivision 8 of section inferior from contained in section courts since appeals 1466 governing 158, 1951, 3860); 1674, (Stats. 1951 thereto prior ch. p. § an order or “From section for an People, judgment provided appeal added to 1238: “7. From language was section an order following 3In 1967 the pursuant the court upon motion of to Section dismissing made prior a case to trial granting defendant’s an order motion to 1385 whenever order is based such hearing provided as special made at a return evidence suppress property or or 3657.) 3, 1967, 1537, this (Stats. p. § code.” ch. reading, “8. 1238 From an 4In added to section 1968 a further subdivision terminating action before the defend order judgment dismissing or or otherwise If, jeopardy. waived ant has the defendant has been or where placed jeopardy decision, pursuant any appeal subdivision, prosecute an people to this they prohibited shall be decision, review binding upon them such shall be it 1, 1185.) 532, p. 1968, (Stats. § from refiling ch. appealed.” the case which was

645 1935, (Stats. a trial.” action without terminating or otherwise dismissing 1, 2730.) 977, Such 1939, 2146; ch. p. § and Stats. 769, (a), 1 p. ch. § event in the rights necessary People’s undoubtedly protect appeal section provided because a misdemeanor charge, dismissal of of the action, made as provided for the dismissal “An order and provides, if the same offense a bar to other prosecution chapter, charge of a misdemeanor, felony The dismissal but not if it is felony." is a again. charges does not from generally prosecution pressing preclude 453, 455-456 (See, (1965) Silva People v. [46 193, Cal. 87]; (1963) and Arnold v. Williams 196 [35 35]; (1909) v. 474-477 Disperati but cf. Rptr. Cal.App. Ehrhart, also, People P. Note 196 Cal.App.2d [105 617]. Baxter,

470; supra, 119 Cal.App.2d respect court.)5 misdemeanors which are in the prosecuted superior Winters P.2d Cal.App.2d Supp. 538], the court noted the distinction which existed follows: previously “It will therefore, that in contrast appear, uncontrolled discretion of court, a trial in a 1385, under Penal section the exer superior cise of such a great is fully to review when an power subject upon appeal order of dismissal is made in the (171 court.” municipal Cal.App.2d Supp. also, Gonzales, at People 887, 880. See v. p. supra, 235 Cal.App.2d Supp. 891; and People v. (1955) Smith 777, 133 779 Cal.App.2d Supp. [284 203].) P.2d

Insofar as is material for this cаse it has been determined in from appeals inferior courts that the word “action" as used in the earlier statute “must be construed as to each distributively count in a where con complaint, one, tains more than there being effect as legal actions as many there are counts." (People v. Ring (1937) 768) 26 770 Cal.App.2d Supp. [70 281], P.2d also, See People Agnello v. (1968) 785, 259 787 Cal.App.2d 571]; [66 Cal.Rptr. People v. (1946) 74 Cal.App.2d Supp. Saffell 967, 971 P.2d497].) [168 People In Superior v. Court [Howard], supra, it was recognized the" amendments to the Penal Code had changed rule and prior granted the People right from an appeal order of dismissal made superior court under circumstances set forth in the (69 amendments. 5So in this case the People apparently scope could proceeded to test the the court’s dismissing order the three counts as to each defendant attempting to secure a new indictment charges. information for those Research has revealed no particular explanation adoption for the 1238, of subdivision 8 of section but it is noted (see that the 3, last above) sentence fn. during added passage its through Legislature. (See, Assembly Journals, Reg. and Senate Sess. 1968 re Assem. Bill 436.) People having The appealed, have right proceed waived the anew in the event of an adverse decision.

646 498, People (1970)

Cal.2d fn. 5. v. 4 123 See Curtiss p. Cal.App.3d 404, 106]; People (1969) v. McGrew Cal.3d 406 Cal. [84 Cal.Rptr. [82 473, 78, 1]; People 462 P.2d v. (1969) Evans Rptr. 275 Cal.App.2d 714]; People Superior Court v. Cal.Rptr. [79 [MacLachlin] 338, 712].) The 345-347 Cal.App.2d appeals from the orders three are counts to each of the defendants dismissing before this court. The orders terminated the properly action as to offenses before either defendant been question placed jeopardy. (Pen. Code, 1238, subd. see fn. 3 § remains as to question above.] of the review. scope in the Minutes Reasons void should be adjudged orders urge

Preliminarily, People set forth reasons the minutes fails to entered because order above.) fn. 1 (See 1385. of section the dismissal as required by provisions noted, “If the [Howard], supra, the court Superior In v. Court minutes, dismissing may set forth in the order reasons are not Court, (People Superior v. considered a dismissal under section 1385. 92; supra, Shaffer, see Curtiss, .)” (69 also, People supra, . . Cal.2d at fn. See 7. p. 123, 127.) 4 Cal.App.3d Superior [Jonsson], Court to which Supreme refers,

Court was whether a motion for notwithstand- question judgment verdict the could be in ing a criminal action. The court answered interposed in the question negative, a writ granted commanding peremptory the court to set aside the superior the and to either sentence judgment defendants, trial, newa grant as the be court grant probation might advised. The Code, recites: “Section opinion Penal in per- provides tinent ‘The court either part: of its own may, motion or the upon applica- tion the of prosecuting in attorney, furtherance of order an justice, action be to dismissed. The reasons of the dismissal must be set in forth an order entered the minutes.’ The upon court did not to be purport pro- section, under this ceeding as no reason for its action is set forth in the minutes. As said in (1960) ., 182 . 45 . Cal.App.2d Shaffer an order a criminal dismissing action cannot be considered an order of ‘ dismissal under section if it devoid is of the “reasons of dis- ’ Moreover, missal.” the order did not to order the purport action to be dismissed. It to an purported grant Section acquittal. 1385 does not give the court the to right the verdict of disregard and to jury enter judgment 92.)6 at To (240 say p. the verdict of jury.” Cal.App.2d to contrary act under to provisions that the court was that a finding purporting under section 1385 a a act of 1385 is that holding section purported a non forth reasons in minutes is the court fails set its void because sequitur. in

Similarly Shaffer 844], a under section 1385 the issue was not whether dismissal purported entered, in had been made and but whether the court action properly was made in to the defendant’s aside information setting response Code, of the Penal motion under section 995 or in to motion response dismiss on some other minutes reflected the The court theory. The former. observed, what further defendant fails to under “Secondly, although specify made, we Code now the Penal he contends the motion provision that infer from his citation of authorities that he contends argument Code, was a motion to dismiss in furtherance under Penal section of justice that such 1385. The record does not contention support [Fn. omitted.] event, motion was said section made. In it is clear from a reading any 1385 that it does not confer the defendant the of moving privilege upon defend- dismiss the furtherance . . . Additionally, of justice. [Citation.] be order ant’s contention that the minute order must construed the reason dismissal under Penal section is untenable for be set forth said section must that: reasons of dismissal requires ‘[t]he an order entered order here involved the minutes.’ The minute ” (182 devoid of statement of ‘reasons of the dismissal.’ 45.) remarks, do not viewed in their setting, These when pp. case. contention in this require approval People’s Curtiss, was dismissed case supra, 4 Cal.App.3d here.” The on the a collection court’s assertion “We are not running agency court noted the reasons failure with the requirement comply dismissal set forth in the It common recognized minutes. practice were dismissed make such a where or more counts failing notation one count, that where return for a to another observed guilty plea De- from the dismissal. moves to dismiss he would not appeal prosecutor order, the it on the the court to consider the shortcoming spite proceeded under merits, concluded, and “it is an abuse of the broad discretion granted because the an information solely 1385 of the Penal Code to dismiss section the court is this would mean that feels that prosecution type judge ” 128.) (4 at collection agency.’ ‘running Cal.App.3d p. quotation, a similar state sentence this and in the last pronouncement 6The 943], 165, Superior (1927) 173 P. People Cal. [259 Court 202 [Prudencio] impliedly v. ment People Superior v. Court were overruled disapproved in and were 330, 446 491, (1968) page 501 particularly [72 69 at Cal.2d [Howard] P.2d 138]. Evans, People supra, In v. 275 Cal.App.2d People appealed from the trial court’s order evidence and the case. suppressing dismissing (See, 1538.5, 7; (o), Pen. § subds. subd. (j) § People Superior [MacLachlin], 338, 346.) v. Court supra, Cal.App.2d stated, The court “The order must be reversed for several reasons. In first the order the evidence is place, erroneous in that it is based suppressing the mistaken that the mari- upon officer’s observation of premise arresting juana seeds debris automobile seat cushion which defend- upon ant been seated did before he from the vehicle immeditaely alighted cause for the further search which led to discov- provide probable of additional and ery usable concealed on defend- of marijuana quantities ant’s In the second with the order of dismissal fails to person. place, comply of Penal Code that dis- section 1385 ‘The reasons of the requirement ” (275 missal must set forth in an order entered minutes.’ upon 79-80.) at Nevertheless the court to address pp. proceeded itself merits of the and examined transcript appeal, on the hearing motion to ascertain the courts’ reason for granting (Id. 81.) motion and for con- dismissal. After suppress ordering pp. sideration of the evidence before the trial was reversed. court the dismissal was, course, It obvious the dismissal was the sup- predicated upon pression read, evidence. The minute order re motion under “Hearing Section 1538.5 Penal Code is resumed. All The motion is granted rest. (Id.) case is dismissed.” with cases are consistent other foregoing precedents which that resort be had recognize to the other may portions the record to ascertain the which been in the reasons should have entered minutes. People

In Superior v. [Howard], supra, Court the court acknowledged dismissal, the trial set forth at and it judge his reasons for length took the facts from a memorandum which the order. opinion accompanied (69 Smith, also, Cal.2d fn. 3. See at pp. 777, 779.) In Superior [King], supra, Court

Cal.App.2d Supp. noted, the court “Section 1385 that ‘The reasons dismissal requires be set must forth in an order minutes.’ In lieu of strict com ordered that the pliance provision before proceedings (249 him be transcribed and filed.” 717.) p. 106], observed,

Head P. the court “It is Cal.App. that the of two constituted reason apparent pendency proceedings good one, for the of dismissal the of dismissal the information the under by as contemplated the interests of justice was in obviously circumstances that the fact dismissal of state in the order The failure to section 1385. offense constituted another the identical charging proceeding pending dis the court already a to fact which the records of mere omission state a without closed and here constituted at most mere procedure irregularity by intended It that the legislature to does prejudice appear appellant. under create a bar to further the sections above mentioned to prosecution (105 335-336.) case.” the circumstances in pp. the Cal.App. present in further- that the were dismissed in this case it is charges So apparent two of of ance because defendants had entered guilty of the justice pleas conduct. The indictment the same course of arising five offenses out of which filed support of the jury transcript grand proceedings each count. establish the of the matters charged relationship 4, 1969, codefendant The clerk’s that on February reflects transcript indict- counsel, with set aside Jackson withdrew his motion to appeared Code, entered ment under the of section of the Penal provisions abetting which with of first count him plea charged aiding guilty imme- Beasley defendant commission of threats of great by rape Penal harm in violation section 261 diate of subdivision bodily Code, attorney moved At the district the same time probation. 17th, On February moved for dismissal of all counts. remaining (three Jackson was sentenced law to state for the term by prison prescribed life, term under years 671) Pen. minimum §§ modified to six section months of Penal Code pursuant provisions time, virtue 1202b defendant’s all of the other age. At the same counts were dismissed without “on motion of the District Attorney” reasons been on that con- entry in the minutes. No attack has made sentence, viction or or the order the other charges. dismissing It subsequent would be fatuous to that the the charges dismissals of say Morris, against defendants made for were not Beasley respectively, five reason that each two of the offenses entered plea guilty stated true not that the reasons were not charged. People’s complaint minutes, in the but the dismissals were ordered without approval and, of the district more that the attorney, realistically, ensuing punishment for the offenses of which defendants stood convicted their those pleas was deemed inadequate.

A series of cases in which the defendant has objected to the institution of new dismissal after the of other proceedings proceedings involving offense, same felony have established that the failure to enter the reasons for the dismissal in the minutes is not a defect which can be taken advan- defendant, tage and that the requirement entry interest. In public People Disperati, supra, the defend- Cal.App. ant contended that he had been once in because jeopardy/ only in the irregularities under which the court had procedure discharged jury which failed verdict, on a agree but also because thereafter the original dismissed, information had been and he had been tried and con- ultimately victed on a new information the same after charging offense. The court reviewing stated, reasons advanced for the dismissal and the refiling, of section respect “the statute provisions provides the order ‘as bar, in this is not a provided and the mandate in chapter’ reference to said order is that it must contain the ‘reasons of the dismissal.’

“We have no authority disregard or to that it requirement hold is merely The directory. harsh, is somewhat proceeding and imposes additional burden defendant, upon no substantial from departure of the statute plain provision (11 should be tolerated.” at Cal.App. p. also, Curtiss, 476. See 125; People v. Winters, supra, 171 876, 881.) observed, The court also Supp. “Here there is no that the order pretense court recites the reasons which it was based. It is upon true the record shows the grounds upon which the motion was made district" but in the attorney, nothing order shows that were, these was, grounds of them basis for the action of the . court. . . It is to be observed that this is no ‘technical’ [H] objection to the as the term ‘technical’ is under proceedings commonly stood, but it relates to an rule of which the important procedure legislature has for the courts, provided and the guidance omission to observe it cannot be held to be innocuous without an invasion of the of a authority co-ordinate branch of the government. If the of which practice complaint continued, is made is follow, to be it is manifest that abuse is great likely (Id. more than even dangerous at society acquittal guilty.” also, Winters, 477. See p. People v. supra, 171 at Cal.App.2d Supp. p. 882.) Disperati

The case has been several times limited. qualified Head, with the the defendant stipra, charged Cal.App. same homicide in two and the other one information proceedings, indictment. He was tried and convicted the indictment. He made following “While both the information point appeal: proceed- ing indictment were the former was proceeding dismissed pending, order of dismissal did not the reasons for such dis- set forth missal. Under the provisions section 1385 1387 of Penal Code contends that appellant the failure to set forth the reasons for the order of dismissal of the information bars further prosecution makes the of once (105 333.) sustainable.” plea jeopardy Cal.App. p. ruled, court “The of section 1385 is in its requirement mandatory terms and the reasons for the dismissal set forth should been in the mere failure However, that under those sections we cannot order. agree will in a bar to in the order result the reasons for the dismissal to embody records at such is made the where the time dismissal further prosecution for such dismissal and it show reason of the court clearly appears good as by ‘furtherance of that the dismissal was made in justice’ contemplated stated, 335.) “It is at It further (105 section 1385.” apparent Cal.App. p. for the dis- constituted reason of two that the proceedings good pendency one, under the circumstances of the information of dismissal missal 1385. as section was in interests by obviously justice contemplated the fact that another to state in the order dismissal The failure proceed- mere omission offense constituted a the identical charging ing pending and here court disclosed a fact which the records of the to state already to a without at mere in constituted most prejudice irregularity procedure the sections that the It does not intended legislature appear appellant. circum- a under the to bar to further above mentioned create prosecution People v. 335-336.) to (Id., stances case." With pp. respect in present observed, case relied, “In that the court on which the defendant Disperati, dismissal, for reasons to show the did the order of dismissal fail not only furtherance made in did that the dismissal was in addition it not but appear dismissal On that the motion contrary, appeared justice. further in for his own convenience made district securing attorney infor- to this He dismissing pending delay delay. sought accomplish defendant another mation charging filing proceeding subsequently defendant’s the same offense. Such entirely ignored procedure (Id., offense to a trial constitutional charged.” pp. right speedy 336-337.) Romero, the court was likewise

faced with the contention that a dismissal of an information which was a a bar of reason in the record was accompanied by specification courts, a on a second The after re- information. subsequent prosecution Head, concluded, both one of the “Neither Disperati viewing foregoing obvious, cases construes if not its section its according apparent, (13 670.) reviews the The legislative p. opinion purpose.” of the to enter a nolle as above from People history prosequi, quoted power More, stated, “The legislature, duty responsi- imposing however, court, further, one and has has bility gone step required upon the reason for court to the minutes reference spread upon public From action its felony prosecution. standpoint dismissing welfare, as wisdom themselves arguments suggest potent public Indeed, far has so such guard legislature gone requirement. of the court violence interest the likelihood justice doing against the furtherance such order can be made ‘in only jus- by providing tice’. The obvious function of section 1385 of the Code Penal is to impose court, on the but with certain limitations and conditions: the ‘limita- duty tion’ that such dismissal must be furtherance of and the ‘condition’ justice, that the reasons for the dismissal must entered the minutes. The section has whatsoever do with the the defendant. For nothing rights the court to fail to therefore, its not a matter about which perform duty, a defendant can court, be heard to order of the under section complain. of the Penal in a action be a matter of dismissing may felony concern, but no in either motion or can be seized public way, by by plea, a defendant as the technical means ato coveted end. Section 1387 by upon of the Penal Code that such a dis- definitely unequivocally provides missal is not a bar if the is a offense The of ‘Once in felony. plea Jeopardy’, therefore, sanction, was without and the the court legal by finding against valid, defendant on the of ‘Once in was plea Jeopardy’ assuming (Id., also, such was People finding 670-671. See v. Fox required.” pp. 832].) P.2d 566-567 Cal.App.2d Silva, The conclusion in Romero was v. Peoplе expressed epitomized contention, as follows: “Defendant’s first in- supra, of the earlier dismissals because minutes did not set forth the validity dismissals, reasons for the is without merit. The for statutory requirement of for reasons dismissals on the minutes is entry designed protect interest dismissals and is not related public against improper corrupt (236 of the of at defendants. [Citations.]” protection rights Winters, 455.) In the same People supra, p. thought expressed trial, follows: “A criminal without his own charges dismissing motion, must so all know record his reasons this may why great power exercised, restraint, and such declaration is indeed a public purposeful (171 lest of discretion laws.” magistral sweep away government 882.) at Cal.App.2d Supp. p. contend that that the rea- this makes it principle imperative minutes,

sons be stated in the and that the do so renders failure to dismissal This well in the situation inoperative. controlling policy may where defendant is exonerated of all a course criminal responsibility of conduct dismissal entered on a record which does not itself evince an In this case where the of an ad- consists bargain explanation. openly mission of of some offenses in return for an exoneration of culpability ‍‌‌‌‌​‌​‌​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌​​​‌​​‌‌‌‌‌​​‌‌​‌​‍others, there no need for a further record. The facts prosecution of alluded to were all matters record revealed which been above public court, of the and the interest was not subverted the minutes public the failure of the minutes to recite “in furtherance of because of the justice Head, supra, People (Cf. counts.” other guilty defendant’s plea 331, 336.)7 Cal.App. be directed to the therefore may properly

I that attention conclude other its discretion abused the court dismissing whether question case. facts counts under the to Dismiss Discretion

Scope court, (Howard), Court considering Superior of a writ of for issuance review by proceedings permitting propriety neces- observed, at the mandate, review request “Appellate accused, extent to which and the burdens substantial sarily imposes a delicate claimed errors involves to review should be such burdens imposed of the harassment considerations preventing balancing competing 501.) It (69 Cal.2d errors.” accused as p. correcting against possible of such im- be concluded, the matter that some cases may “Assuming determi- review the to available to that mandate be People may portance that lie, are the does satisfied balancing where not we nations proper appeal the of at the mandate review of these considerations request by prohibits a Such retrial. here, trial or where, a of further there is as danger review to the will effect limiting rule legislative policy give meaningful (Id.) the burdens on the defendant.”

The court referred to in overruling the of section 1385 language express the assertion that the court could not the to dismiss an exercise power (Id.) action over the the objection of prosecution.

The then addressed tо was an court itself the contention that it abuse of discretion after a a to dismiss the action returned verdict of jury The court referred cases to guilty. to of court upholding power an strike established . . conviction for the “. that the prior proposition discretion of the judge absolute where has Legislature except spe- (Id., 502.) observed, curtailed it.” cifically The further “It court would p. that, seem if a should anything, court have broader discretion to dismiss in furtherance of after the verdict than it should have trial. justice during verdict, After has heard evidence judge prosecution; whereas to the of the conclusion trial there is prior always possibility say People cannot complain “improper corrupt 7This is that the or dis not (See 87].) (1965) 236 Cal.App.2d missals.” v. Silva 455 going put improper corrupt It is obvious a court is an reason in the question generally presented minutes. The will have to be reference to matters expressed required dehors the either event a minutes in the reason is as statute, or in the event an reason as in appears obvious from record this case. People’s analysis The the reported proceedings they this case bear on impropriety corruption of or court’s discussed in the action is below. (Id., be in the absence of dismissal more evidence received.” may p.- 503.) concluded, court “If that the

The convinced judge only purpose trial defendant, to be served a trial or a retrial he should is harassment the fact that there is sufficient notwithstanding dismiss permitted weak, evidence of however to sustain conviction on The guilt, appeal. trial who has heard the evidence as the instant case is in judge excellent determine whether a retrial would further the interest position to has the trial court the to dismiss justice. Legislature given power under the broad standard of and in view of the caliber of our high justice, trial and their electorate we believe that judges recog- responsibility such nition of in cases of evidence will not result in power conflicting but abuse believe that the due exercise of the contrary power (69 dismiss in cases evidence will further conflicting justice.” proper 504.) Cal.2d at p. [King], recites, Superior Court “In dis opinion action,

missing the trial relied judge entirely upon transcript the evidence adduced at the There was else hearing. nothing preliminary (249 before him.” The court reviewed the tran 715.) p. and held that where there was no evidence in the record before script the trial which would of either or excus support finding justifiable able homicide it was an abuse discretion for the trial his own judge, motion to order a dismissal under section 1385 of an information charging stated, the (Id., defendant with felony manslaughter. 718.) The court p. “The ‘furtherance justice’ the statute objective sought includes jus (the tice to as well society (Id., as to the defendant. ‘People’) [Citation.]” also, 718. See In re p. (1968) 470, 264 474 Cal. Cal.App.2d [70 Pfeiffer 831]; Gonzales, People v. 887, supra, Rptr. 889- 235 Cal.App.2d Supp. 890,8 Winters, and People supra, v. 887.) 171 Cal.App.2d Supp. People

In v. Superior Court [Kasparek], supra, court, the trial a after on the hearing defendant’s motion for the probation, dismiss purported defendant, case and the discharge who had entered a previously plea a guilty ruled, felony theft. The court “As petty Stephens stated in v. Toomey, 51 . Cal.2d 864 . the . the power of court in an dealing offender to be sentenced for judgment on a or verdict of is plea guilty limited defendant, to either the sentencing execution of suspending sen- tence and entertaining an application or withhold the probation, impo- “[King]” implication 8A further in judge’s that the trial discretion to dismiss his great own motion is not as as his discretion dismiss prosecutor on motion of the Superior (1968) was criticized in v. Court page 69 at [Howard] Cal.2d 491 138], 504 446 P.2d [72 We have found defendant on probation. the and place of judgment sition the case. dismiss arbitrarily court can that the to indicate authorities no trial, the where a for a new on motion not like one is The situation entered as on a duly plea evidence reweigh has discretion to court Thus, no discre- court had to weighed. is no evidence there guilty, a man- in lawful defendant grant probation to sentence the tion except 855.) (202 at Toomey, supra)” (iStephens Cal.App.2d p. v. ner Cal. Cal.2d 217 hand, v. Polk the other On 641], that although P.2d the court stated proof Rptr. district conclusive, was for the innocence was not

defendant’s proper evidence when the for, a dismissal grant to move court attorney to the defendant’s complicity a reasonable doubt as was sufficient to raise 229.) (61 Cal.2d at charged. crime p. Silva, that the dismissal supra, defendant contended of new information of two informations and substitution prior separate of the district both offenses was erroneous because motive charging consolidation of the was to avoid an order attorney denying improperly observed, trial. “An of dismissal informations for The court order separate court, The sole limita action of that of district attorney. further tion on court’s is that the order be in order dismissal power ance of defined justice, limitation not Legislature explicitly one which has remained a Section 1385 discretion. subject judicial a useful means to correct defects substance in crim of form or provides inal to sustain without more pleadings, sufficiently comprehensive Valenti, (People an order court entered trial under its authority. Polk, .; (236 . People. .)” Cal.2d . 61 Cal.2d 217 . . Williams, 455-456.) Similarly, in Arnold v. pp. objection defendant’s he response could not be for a felony original rearrested offense after recharged for the same offense had been dismissed at the complaint preliminary witness, because of the absence hearing of material the court ruled the the basis of of sections 1385 and “the dismissal provisions rearrest, the with his is ex against complaint petitioner, subsequent authorized, 196.) (222 at by statute. pressly Cal.App.2d p. [Citations.]” However, People Disperati, supra, in v. the information original dismissed on the district because of difficulties in aрplication attorney witnesses, securing the attendance of because of a investigation pending the their in defendant and concerning alleged accomplices complicity offenses, trial the other and because of the costs of the county alleged the during then current fiscal In to defendant’s year. objection response offense, the court second information same filing charging noted, unusual, no doubt should be adopted “The proceeding quite

656 (11 it.” seem to demand Cal. when substantial and reasons only exigent 474.) indicated that the to a trial should at The court right speedy p. App. but that county to the claims of others yield against treasury, if warrant the which other would grounds, presented, procedure properly (Id., 476.) at followed. p. observed, Disperati has not at- In court further “The legislature define the ‘in furtherance and therefore tempted justice,’ expression it is left for judicial rights discretion exercised in view of constitutional of the defendant what and the interests of to determine society particular (11 People warrant the See also grounds dismissal.” at 476. p. Cal.App. Gonzales, 890; supra, People v. Win- 235 v. Cal.App.2d Supp. ters, supra, 876, 881.) 171 Cal.App.2d Supp. Winters, People ruled, v. “A supra, the court ‘in dismissal further- review,

ance of justice,’ that there must show has been exercise discretion, of a valid legal than the more substitution amounting of a for the of the predilections judge officers.” alleged predilections peace (171 also, Gonzales, supra, at 882. See v. Cal.App.2d Supp. p. 887, 890-891.) Cal.App.2d Supp.

The prosecution claims the trial abused his discretion because judge neither of the transcript grand nor the jury proceedings contain reports facts to It court’s assumed support position.9 may from a review of the cases that the could not have dis foregoing judge all missed of the counts as to either defendant and absolved him of all criminal absence of evidence in responsibility extenuation or Curtiss, justification. (People v. supra, 123, 128; Cal.App.3d Superior v. Court [King], supra, 714, 718; People Cal.App.2d Winters, 876, 882; see, People Cal.App.2d Supp. Superior Court [Jonsson], supra, 90, 93-94; Superior Court [Kasparek], supra, 850, 855.) record shows that this was not done. The defendants’ sub guilty pleas jected them to criminal responsibility for their acts. punishment

Justification for the action of the court in dismissing remaining counts is found enunciated Court principles Supreme People v. Superior [Howard], Court supra. The against harassment policy which gives (69 dismiss and a new power trial Cal.2d prevent 504), should be p. matched aby policy against multiple prosecution for similar offenses out arising same course of conduct even though it be same action. Examination of the prohibiting multiple principles 9The further contention discretion, that the failed to exercise his but acted a preconceived intent formed from facts dehors records is examined below. actions, punish- and the rules multiple prohibiting in separate prosecution reveals to one objective, are incident which for criminal offenses ment five offenses it was convicted of all had been that if the defendants these Under circumstances on all. could sentenced they clear contested. which were still counts it was not unreasonable to dismiss the to be would predicated The desire to further those counts prosecute appear which were those on the motive of harsher sentences than imposed securing were irregular with If sentences connection those original pleas. should counts they be attacked To the dismissed directly. practi- reopen if not violates the cally, multiple prosecutions. technically, against policy (1966) Cal.Rptr. 63 Cal.2d Superior [48 Court Kellett In its views on 206], multiple prosecution. the court P.2d expounded multiple prosecution the policy precluding between distinguishing After observed, “A defend the court and that multiple precluding punishment, an act that commits all on board or ant killing who blows up airplane a than subject greater punishment many injures persons properly follow, It does not a only single or harms defendant who kills person. however, should be liable to successive that such a defendant prosecutions. circumstances in such It would constitute unreasonable harassment wholly is satisfied with punish trials seriatim until prosecutor permit that failure (63 825-826.) The court ruled ment Cal.2d at pp. imposed.” a to unite all of the act or course conduct offenses out same arising any in a would result bar to single subsequent prosecution proceeding offense omitted if the initial culminate in either acquittal proceedings (Id.., at also and cases conviction and sentence. 827. See discussion p. reviewed in v. Winchell 586-590 782].) result the court made the reaching following reference, ruled that it is incon recently Illinois Court Supreme “[T]he sistent fundamental fairness to defendants convicted try previously of mürder for simultaneous another victim. The murder of essentially court that the state could have had no other motive for emphasized second than to substitute prosecution opinion prosecutor (People of the original jury adequacy punishment. Golson, .)” (Id.) 32 Ill.2d . . The rule in Kellett to prohibit applied prosecution petitioner violation Penal Code section 12021 of a concealable weapon (possession a who of a he has been convicted after guilty person felony) pled and been sentenced for violation of Penal Code (exhibiting section 417 manner) not, however, firearm in a bar would furnish threatening legal to the further counts which remained issue after prosecution sentenced, defendants’ on which if those counts were pleas they counts had not been “In dismissed. criminal action single (pleading

658 counts), to, number of of no or order dismissal or guilty acquittal plea of, otherwise, offenses, or will bar the included separately pleaded of that on as to other counts. The such progress prosecution prosecution each, other merits, counts continue until its has may severally on own been and finally the defendant to conviction and sentence by bringing disposed or (People 574, acquittal.” (1962) Tideman Cal.2d Cal. 57 583 [21 207, also, P.2d Rptr. (1969) See 71 Cal.2d v. Berutko 1007]. 84, 721]; (19,63) 453 P.2d v. Seiterle Cal.Rptr. [77 59 Cal.2d 947].) In P.2d Tideman the Cal.Rptr. [31 observed, court “The trial did sentence on the wisely pronounce of guilty to Count I. plea Until sentence for the murder pronounced in II charged Count there had been neither an of either acquittal charge either; and, nor a ‘conviction and sentence’ under no manifestly, punish- therefore, (57 omitted.) ment for either.” Cal.2d at fn. The court p. count, the conviction on the second was able to set aside the following count, defendants’ and dismiss the first which plea procedure approved Seiterle, however, (Id., 577.) the defendant been appeal. p. sentenced to life without imprisonment aggravated possibility parole under the He kidnaping section 209 of Penal Code. con- provisions tended that his further for murder was because thereby barred prosecution both offenses were stated, incident to one The court two objective. “Where sentences are can erroneously error be cured on readily imposed, if appeal, important, as to the sentence. by reversing judgment lesser However, death, if one of the [Citation.] sentences is such corrective pro- cedure is and we have the death affirmed 'unnecessary, stating penalty, no useful would be served a reversal as lesser offense. purpose It immaterial in this connection whether [Citations.] penalties death and of life have been imprisonment imposed simultaneously sepa- action, one criminal rately since the purpose against protection to insure that the defendant’s will multiple punishment punishment with commensurate his criminal (59 liability. Cal.2d at [Citation.]” 712.) In however, the case each p. defendants, of these a conviction of for the aggravated and the kidnaping attendant purpose robbery, reversal of the established sentence (see for robbery discussion below regarding would multiple involve punishment), complications respect served already or suffered in punishment connection with the latter offense.10 10In 696], Breland 243 Cal.App.2d a compar prosecutions able situation (to arose with successive battery which the defend to, serve, ant had pled guilty and for which he had been sentenced and had started to days county jail), (which in the and murder resulted of murder conviction degree). the second prosecutions court held that successive main were

tainable because no homicide charged could have subsequent been until the victim’s

659 for quest indicate multiple punishment governing The principles sentences securing multiple as insofar be might illusory convictions multiple v. State in Neal is stated rule The general of California concerned. 839], as follows: 607, P.2d 357 11 (1960) Cal.Rptr. Cal.2d 55 [9 therefore gives is divisible of conduct a course criminal “Whether on section 654 of depends within the one act meaning to more than rise were incident offenses If all of the actor. of the intent objective such one of any for be defendant punished may to one objective, also, In re See at (55 Cal.2d 19. p. one.” but not for more than offenses 400]; 272, P.2d 672, 414 676 (1966) Cal.2d Cal.Rptr. Ward 64 [51 825]; 289, 178, 410 P.2d (1966) In re 64 Cal.2d 180 Cal.Rptr. [49 Cruz Court, 822, 824-825; People v. Jack- 63 Superior supra, Cal.2d Kellett v. Pax- People v. 584, 359]; (1967) son 255 587 Cal.App.2d Cal.Rptr. [63 770]; People v. Nelson 62, (1967) ton 255 72 Cal.Rptr. Cal.App.2d [62 Bynes 626]; People v. 440, 445 (1965) 233 Cal.Rptr. Cal.App.2d [43 633]; v. Mistretta 268, People (1963) 223 272 Cal.Rptr. [35 Cal.App.2d v. Fields 365]; 42, (1963) 221 43 Cal.Rptr. [34 Cal.App.2d 515, 249].) (1961) 190 518 Cal.App.2d Cal.Rptr. [12 be can the defendant Where sex offenses are and distinct acts separate Cal.2d (People (1965) Hicks 63 for each offense. v. punished separately 764, Armstrong 139, also, People v. 766 408 P.2d See Cal.Rptr. [48 747]. 324, 37]; People v. Pax- (1968) 268 326-327 Cal.Rptr. Cal.App.2d [74 ton, 62, 72-73; People (1967) 252 Cal. supra, 255 v. Cal.App.2d Gomez 844, 881]; People v. Cline 860 and cases collected App.2d Cal.Rptr. [60 Moreover, (1969) 246].) it is 993-994 Cal.App.3d Cal.Rptr. [83 that, established “The offense of forcible offense of aiding rape another in the not even commission of forcible are necessarily rape associated of with each other. We are satisfied that course normally one, conduct each was a of divisible pursued sepa- appellant consisting rate offenses which were incident within rule of to one objective case, supra. Neal The mere fact that these all took within offenses place contend, not, short relatively of time space does render appellants Cal, entire (People Bynes, supra, transaction an indivisible one.” Paxton, also, 273-274. App.2d See 255 Cal.App.2d 62, 72-73.)11 Therefore, under the foregoing application principles question punishment-by giving It resolved the of double death. credit the second also, judgment People (243 Cal.App.2d p. for the served time under first. See 652. 492).) v. Thatcher Cal.Rptr. 832-833 [63 prosecutions theory 11Insofar as rape depend for the acts several (see Bynes (1963) a conspiracy commit those acts 633].), question multiple does punishment approaches, if it not trespass principle against multiple punish that it is violation rule ment “to conspiracy sentence a defendant for crimes and for commit several apart each those conspiracy objective crimes where no crimes. from those it would that if appear of the defendants five were convicted of all counts he could act com- separately he himself punished rape mitted, and as well for the two acts which he aided and abetted. Numerous cases have reviewed the question offenses sentencing multiple arising out of a course of conduct here, such as was involved and the results appear not vary only with the involved, factual situation but in the manner which the facts have been viewed trial court court. appellate 814], People (1967)

In v. Sheppard 250 736 [58 Cal.App.2d Cal.Rptr. the defendant of was convicted of for robbery purpose kidnaping (§ 209), 487, (§211), 3), (§261, (§ theft robbery grand subd. rape 3) observed, and (§ 245). subd. assault with a The court deadly weаpon “since all five crimes were of a one could sentence part single only episode, Code, (Pen. 654), be . . . must be the lawfully sentence imposed § life 740.) sentence for (250 209.” at by section provided Cal.App.2d p.

If it that a defendant convicted of and appears robbery, rape, kidnaping for the of did not formulate the intent to his purpose robbery victim rape until after the he be and robbery for the may punished separately rape Ward, the aggravated (In but not re 64 supra, kidnaping, robbery. 672, 678.) Cal.2d

' kid- If the defendants guilty the trier of fact found simple any one (Pen. Code, 207), of rob- for rather than kidnaping purpose naping § v. (§ 209), People Nelson (see because he bery returned the girl’s money 626]), (1965) 440, 446 or because Cal.App.2d Cal.Rptr. [43 233 (see People Bynes, supra, v. an robbery afterthought kidnaping 268, 272), 223 be would Cal.App.2d multiple punishment precluded a v. People Jaquette (1967) different manner. 253 38 [61 Cal.App.2d 209], the court struck down a sentence for Cal.Rptr. kidnaping simple under circumstances: “The record here discloses that following a continuous act motivated one kidnaping, part objective, rape. committed, were before the were kidnaping, although complete rapes incidental a to and means of committing Double rapes. pun- [Citation.] ishment therefore is (253 49. prohibited. [Citation.]” Cal.App.2d p. also, 630, Livingston (1967) See v. People 252 636-637 Cal.App.2d 728]; People (1965) 599, v. Curtis [60 237 600 Cal.Rptr. Cal.App.2d 123]; Nelson, 440, People 602 v. supra, 233 Cal.Rptr. Cal.App.2d [47 If, however, conspiracy objective apart from an offense which the for may punished, properly defendant he conspiracy be sentenced for as well (In 178, for that (1966) offense. re [Citation.]’’ 64 Cal.2d 180-181 Cal. [49 Cruz 289, 825], also, (1966) 826, Rptr. 410 See P.2d In re Romano 64 Cal.2d 828-829 798]; Cal.Rptr. 910, People 313, (1967) 415 P.2d v. Cal.App.2d [51 Blackwell 257 642]; People (1965) 84, Cal.Rptr. 323 Cal.App.2d v. Thomsen [64 239 97 Cal. [48 455]; Rptr. 901].) (1963) 444, Finch Cal.App.2d Cal.Rptr. 216 456-457 [30 272-273; 445-446; 268, but Bynes, cf. supra, 223 Paxton, 62, 72-74.) supra, 255 for robbery kidnaping would arise sentencing Similar problems course an indivisible Where robbery. kidnaping part the purpose victim, the offender can directed to the objective of conduct robbing If defendant is for both the robbery kidnaping. punished (Pen. robbery convicted of sentenced for kidnaping purpose Cede, 209) sentence for robbery he cannot also be the lesser punished by § 211, 252, (Pen. 671). (In Malloy, re 66 Cal.2d §§ 154, 929]; (1967) In re Pratt 66 Cal.2d 156- P.2d Cal.Rptr. [57 335]; Wright 424 P.2d In re 65 Cal.2d [56 Cal.Rptr. Ward, 998]; In re 64 Cal.2d 422 P.2d 672, 677-678; 675-676 and People Spaniel (1968) v. 262 Cal.App.2d 878, Paxton, 202]; 892-895 People supra, v. 255 Cal.Rptr. Gomez, [69 Cal.App.2d 62, 73; People v. 844, 860; supra, People 252 and v. Cal.App.2d (1964) 707, Morrison 228 874].) On the Cal.App.2d Cal.Rptr. 715 [39 hand, other if the defendant (Pen. is found guilty simple kidnaping 207), § the five to (§§ life term 671) for first and degree 213 is robbery greater than the 208), one (§ for 25-year term and simple kidnaping the latter sentence must be stricken. v. (People (1963) 219 Cal. Houston 187, App.2d 195 26].) [33 Cal.Rptr.

It therefore it when a suc- only the circumstances show appears cession without of acts a common that the objective offender may sepa- (Pen. Code, rately 261, 3), for punished subd. first degree rape robbery § 211), (§ and (§ 207) as and simple a lesser included offense kidnaping of a charged 209). for (§ (People v. kidnaping purpose robbery Jackson, supra, 584, 255 also, People 587-589. v. Roth Cal.App.2d See (1964) 228 522, 582]; 534-535 v. Cal.App.2d People Mis- [39 Cal.Rptr.

tretta, supra, 42, 44-46; Fields, 221 People and v. 190 Cal.App.2d 515, 518-519; Paxton, Cal.App.2d and People see v. supra, 255 Cal. 62, 72-74.) App.2d

From the that the foregoing objections apparent prosecution’s the dismissal of the counts and be set its insistence for remaining they trial called for a determination of whether ends would judicial justice be served further by of those counts. the facts before the Since prosecution court in the grand would jury transcript probation report permit that the finding for not for kidnaping rape robbery, question resolved itself into whether further two prosecution aiding abetting other acts rape warranted. Since the in the joint part played each and several assaults was established the statements of the victim and the defendants, admissions no than extended good purpose pun- —other ishment —will be served further That it is prosecution. the prosecution’s dissatisfaction dismissals, with the and not with the punishment, is evidenced the dismissal and acquiescence recommendation prosecution’s Jackson. defendant against

four counts in dismissing discretion I find no abuse of these circumstances Under each of as to dismissed three counts which were respectively and Morris. Beasley defendants

II on Morris of the sentence The order imposed suspending imposition of subdivi him under the is appealable provisions granting Superior v. Court (People 5 of section Code. sion 1238 of the Penal see, re 700, 1087]; Sargen (1953) 118 P.2d Cal.App.2d [258 (1933) Cf., P.2d where 405-406 imposition Cal.App. [27 407]. 6; (1967) Thatcher subd. sentence suspended, § 492]; Orrante 831-832 Cal.App.2d Cal.Rptr. [63 note, 480]; 556-558 but Cal.Rptr. [20 Superior Court (1962) 199 [Guerrero] (mandate).) 557]

Eligibility Probation Sargen) it was deter- (other

In each of the cited than In re cases last mined that the for order grant- defendant was ineligible probation contend that him reversed or annulled. The ing probation People of the former12 Morris under the ineligible probation provisions fourth and fifth section 1203 the Penal which pro- paragraphs in vide follows: in this as as hereafter pertinent part “Except provided section, shall not be who shall been probation granted any person convicted of . . . with force or violence . . . and who the time rape . . of said crime . was armed with a perpetration himself deadly . . . nor to one who in the the crime of weapon which perpetration convicted, he was inflicted . . or torture . willfully great nor bodily injury defendant convicted of the crime of . . . with force or vio- rape . . lence . unless the court shall be satisfied that he has never been previ- convicted of a ously .... felony cases, in

“In unusual which otherwise subject preceding paragraph, the interests of would best be served may, justice thereby, the concurrence of district attorney, grant probation.”

The prosecutor’s objection repeated grant probation precludes 1203, 10, 12A second paragraph new inserted in section effective November (Stats. 1969, 522, 2, 1134), provisions p. § ch. renders the referred to fifth and paragraphs, respectively. sixth fact falls within the last if the offense in pro- application paragraph, visions of the preceding paragraph. with, and by the defendant was charged

The acknowledge People of, his was convicted which the victim was from plea rape prevented harm, and immediate by bodily by threats resisting great accompanied 261, (§ 4), of execution subd. and that a when the apparent power rape violence, resists, victim but her is force is resistance overcome or desig nated (id. 3). therefore, as offense subd. It would separate appear, a defendant are intended provisions rendering ineligible probation to refer to the latter offense.

The out that the forcible abduction in People point this case fact evidences the use Nevertheless, of force and violence. even if the language of section 1203 is construed to conviction under subdivision applying 4 as well as 261, under subdivision 3 of section the defendant is not ineligible for probation he unless was armed with additionally a deadly (cf. 146, weapon Harshaw Cal.App.2d [161 978]), P.2d or suffered a conviction. prior felony must, inflicted torture" phrase “willfully great or bodily injury discussed, with the comparison just mean more than force provisions violence used to (See, overcome victim’s resistance. v. Merrill (1951) 104 257, 573]; 266-267 P.2d note second as added §264 paragraph by Stats. ch. 1217 to § p. increase minimum term to 15 when is years inten- rape accompanied tional great victim.) bodily injury

“Authority vested in the court to grant those cases except in which authority withheld." (People Superior specifically Court [Guerrero], 305. Accord: v. A is lot (1964) 698, 60 Cal.2d 443, 708 675].) here, 388 P.2d Cal.Rptr. [36 So despite offense, of the gravity defendant, as conceded by was majority, He, therefore, eligible probation. was entitled to have the court consider such a of the disposition case.

Abuse Discretion of (1933) Cal. from 219 395 People following v. Lippner [26 passage in

P.2d still cases which the defendant is in 457] governs eligible pro bation: “The defendant has directed our attention to case decided no by state, matter, the courts of this or elsewhere for that in which an appellate grant has an matter either court reversed order of the trial court in the of or on the that the action ing, denying revoking ground It We have such trial court not discovered authority. arbitrary. follow, however, does not that such a not has case arise or may possibly

664 above arisen, cases demonstrates assertion dearth of such but the not an court interfere case a extreme should that in appellate very only matter of or trial court in the the discretion revoking pro- denying 400.)13 (219 at bation.” Cal. p. 210, (1968) v. 187 443 P.2d People Russel 69 Cal.2d Cal.Rptr. [70

794], the exercise observation the court made concerning following discretion “The have never ascribed discretion: courts judicial judicial (1866) v. In the case of a without restraint. Bailey early potential Taaffe 422, 424, at court to delineate limits 29 Cаl. this took judicial pains page however, intended, not is ‘The discretion discretion in terms: following discretion, discretion, but guided impartial capricious arbitrary dis It a mental is not controlled in its exercise fixed legal principles. discretion, in cretion, to be exercised ex to be exercised but gratia, legal law, not subserve and and in manner to with the conformity spirit were Similar standards substantial or defeat the ends of justice.’ impede ., 184, .. (1942) v. 52 195 Gossman Gossman in Cal.App.2d expressed (1920) 235 Co. Davis v. Boston Elevated where the court from Ry. quoted ‘ exercise 482, “The word ... as follows: Mass. 496-497 imports reason. Discretion the bounds of within of discriminating judgment discretion, enlightened by intelligence a sound judicial connection means law, com of firm controlled sound courage principles learning, mind, free from cool swayed of a bined with calmness partiality, of influence kind moved nor nor by any by sympathy warped by prejudice ’ do which save alone just.” overwhelming passion authorities, “The from foregoing particularly passages quoted Gossman, think, clear, make we all exercises Bailey quite discretion must be reasoned legal grounded judgment guided matter issue.” at legal principles policies appropriate particular Wiley (1939) 907], Cal.App.2d 13In v. 33 424 P.2d also court [91 recognized might that there be review if it were shown “that there an abuse 429.) (33 Cal.App.2d many p. principle expressed that discretion." This (See, e.g., People Ingram (1969) cases. Cal.App.2d Cal.Rptr. 272 439 [77 423]; People 72]; (1963) Cal.App.2d Cal.Rptr. v. Mancha 592 [29 (1962) 640]; People v. Privitier Cal.Rptr. Hollis [19 293]; Bartges (1954) Cal. 763, People (1951) App.2d 49]; Connolly 245, 776 P.2d v. 103 Cal.App.2d [293 112]; People (1950) 841, 247-248 Cal.App.2d P.2d v. Adams 100 844 [229 [224 873]; (1948) 181, 204].) v. Cal.App.2d P.2d Jackson 182 P.2d [200 89 probation eligible granting No case has been where an order to an defendant found hand, erroneously the "‘Where a has been a defendant On other court concludes overturned. eligible probation pronounces judgment is not without consider trial, reversed, ing the application, judgment merits of his must be not for a new (People (1959) application but with directions consider its to on merits.” Hollis 293].) ‍‌‌‌‌​‌​‌​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌​​​‌​​‌‌‌‌‌​​‌‌​‌​‍Cal.App.2d 176 Cal.Rptr. 99 [1 also, (69 (1959) See Cal.2d 194-195. Wade 53 Cal.2d pp. 116]; Brown (1966) 348 P.2d v. Gordon Cal.Rptr. 901]; 659, 666-667 [49 Cal.Rptr. Surplice 826].) 791 [21 to order determine whether there has been an abuse of these principles, crime,” be had resort must to “the circumstances only surrounding but also record and of the defendant” as found in the history “prior or adduced evidence at the on probation report, any hearing application (See, 1204.14) 1203 and The circumstances probation. surrounding §§ the crime have been set forth above. The record of the defendant history Morris is as follows:

The face sheet of the under “Prior Record” Criminal probation report reflects one arrest a for misdemeanor no convictions. No prior attempt is made offense, nature or the circumstances under explain which the defendant was arrested in the although body report, same data is reiterated. The indicates that was found in marijuana report car, Morris’ and that he denied it. no There is elaborаtion as smoking the amount or other use. circumstances its or any concerning discovery embodies the district report attorney’s recommendation prison sentence, and the from “The In- Police following police department: in his spector, briefly outlined the offense reply, victim told indicating William him Morris is her, the one who threatened to kill threatened to kill her and bomb her home. Victim told the William family, inspector Morris was the most and vile of the three defendants and he aggressive does not recommend for this defendant.” The officer probation commented, offense he no true remorse “Concerning present expressed he because do his advised him indicating plead guilty attorney rape, so. He also denied that he and Kenneth Hotel went to the Jack Tar Beasley victim, from the but one of the get money duty inspectors heard two of them ‘We’llhit in minutes’. ten Another night say inspector heard defendants Morris and ask where the restaurant was located.” Beasley

An attached “William of a letter from the victim relates in copy part: provides: 14Penal section presented Code “The circumstances must testimony Court, except of witnesses in open examined that when a witness magi attend, so sick or infirm as to be deposition may unable to his be taken court, county, court strate of the may out party notice such to the adverse as written, kind, direct. No affidavit or testimony, representation or verbal or court, mitiga thereof, can be offered to or received aggravation or (Refer of the punishment, except tion provided preceding in this and the section." “preceding ence to the section” is to enacted section 1203. When section 1204 preceding several section was Legislature 1203. Since inserted then the has 1872_the (1203.01-1203c) 1204.) additional sections between sections he kill because have to me that were to going said at one point they

Morris . . . as was out I being kidnaped. had seen mother run to street my to work. I have never have not been able has I Since all happened I the fear this date. cannot over alone to out house been get my off. me and me someone dragging suddenly choking a witness done I what this has “I wish could tell my Being parents. you has sold take. Father mother could was more than My my kidnap Mother no because our where we’ve lived for home my years past We’ve a Francisco. feels safe. home out San bought longer life—all left have ruined life and what’s “These my parents’ boys my Please, don’t with them. Mr. be lenient for a two-hour Cavanaugh, joyride. to me.” do to another what done Don’t let them they’ve girl that defendant was born On the other hand it appears September He lived of his life in that in San Francisco and has all community. and is the child of who were both only continually employed pro- parents a vided a His that he had normal him home. stated develop- good parents ment; from a and was he was education wrong; given good taught right He and that all his were decent church friends graduated рeople. type fall, in the but from in commenced school 1964 and high college January out his second semester as result of injury. dropped ex- He took an He worked for a clothier for six or seven months 1966. field and amination in the electrical for some 250 prospective apprentices that he was the be in the Electricians represented Negro first accepted 28, 1966, He he took Union. when worked since December steadily electrician, Point as an employment Hunter’s Naval Shipyard apprentice 15, 1968, with since he the same had been July capacity employed it was electric His wrote that private coop- employer pleased company. under work erate continued defendant’s employment proposed the letter his The author of furlough work plan, satisfactory. observes, “We have had him work with a number of different foremen his work been this sad has It does seem satisfactory. possible experience assist citizen.” may him in into a maturing growing responsible indicates, also “Five letters of reference were submitted report individuals for a many who have known defendant his family great are years. all indicate his are citizens who They parents outstanding deeply concerned over the welfare and wish for his defendant’s development growth always into a Three them indicate they citizen. worthy (Let- found the character.” defendant and of moral trustworthy good individuals, ters are attached to from seven in addition the employer, the report.)

667 The nature of this crime shocking rise to a immediately gives feeling that the for, lenient which was is in sense punishment no imposed adequate to officer, “The and quote mental torture inflicted physical on this victim the mental torture inflicted on her ...” parents.

The of retribution in the scheme place of was con punishment recently Floyd (1970) sidered in 608, 1 Cal.3d 694 464 [83 Cal.Rptr. 64], P.2d as follows: this court has never that it held “Although improper for a prosecutor in a closing trial ask argument penalty jury -the death for reasons of retribution impose vengeance, or we have penalty stated in other contexts that ‘There is no in the scheme for place punish sake, ment for its own of or retribution.’ vengeance product simply (In Estrada, re 740, .)” 63 . . (1 721-722.) Cal.2d Cal.3d at The pp. court ruled that there was no misconduct in to consider asking jury when retribution such was included of with a discussion other request factors, pertinent and that the defendant barred from was assigning remarks as error because of a failure admoni object timely secure tion. The thus it is a majority leaves uncertain whether retribution proper end of or adverted to punishment, end when is just proper punishment without objection. (concurred The Peters dissenting Justice opinion (1 Chief Justice Tobriner) Cal.3d Justice reviews the Traynor subject 748-754), and reiterates with which following pp. approval principle Estrada, Inin re Cal.2d at quoted page [48 172, 408 P.2d “This of statutes reducing 948]: application punishment accords with the best modern theories the functions concerning punish ment, thеories, or treat According criminal law. to these the punishment ment criminal offenders is directed toward one more of three ends: (1) to (2) act as a discourage activity, deterrent future criminal confine the (3) offender that he harm to correct and so may society rehabilitate the offender. There in the for is no scheme place punishment sake, (People its own or retribution.” simply vengeance product 197, v. Oliver N.Y.2d N.E.2d 201-202] quoted also, 1 Cal.3d at Sanc “Deterrent Effects Criminal 749-750. See pp. tions,” Proced Criminal Committee on Progress Assembly Report ure, May Assembly, to the Journal Supp. Appendix 10.) Vol. No. at p.

It consider to determine whether the unnecessary judge may properly that the retribution in It is obvious fixing offense. punishment and her family incarceration of the defendant cannot the victim restore the state was com- of mental before the offense tranquility they enjoyed mitted; consider it is obvious that many reasonable equally persons retribution or in the sentencing should no vengeance process. place therefore, emotions to his entitled to judge, disregard appeals

which be otherwise the relation of the collateral from might engendered effects of the crime. is to in the last

Attention directed to the other criteria referred quotation. members, court, cannot of its This individual regardless of predilections will law trial a matter of that the say by imposed punishment In fact there is not correct or rehabilitate offender. some particular evidence that the suggested work which furlough originally program, below, reha- judge, achieving as discussed is a successful method of (See, bilitation. Institute for of Proceedings Sentencing Superior reasonable 47.) Court It certainly is Judges, Appendix, Cal.Rptr. p. and rehabilitation of the defendant entertain belief that correction factors— be better on those effected environmental may by capitalizing church, stability, he has demonstrated which family, employment —in will, ex- as an future date he than to him that at some uproot hope convict, off, and virtuous a he left where pick completely penitent up outlook toward his to society. responsibilities furlough work pro-

The from the as distinguished punishment imposed, defendant, and confine the recommended does not gram judge, conduct. minded, criminal free, his between he if so weekends is repeat record The or This must be with any parolee. a calculated risk probationer education of defendant’s employment, family upbringing, is risk that such record, a conclusion absence of criminal prior support minimal. if not most would take the many,

Undoubtedly judges, position fail and act as deterrent would to discourage punishment imposed (See, Sentencing future criminal of others. of the 1968 activity Proceedings #1, Institute for Case Judges, Court Superior Appendix, 16-21.) are of the extent to which offenders pp. question potential of fear aware of criminal and the related of whether penalties, question incarceration, fear is a force in or of more apрrehension, lengthy potent (See, Deterrent free from doubt. criminal activity prevention case of Sanctions, supra, Effects of Criminal passim.) hypothetical Institute, the offense referred to at the 1968 robbery Sentencing rape a far here, and the defendant was more than that involved aggravated Nevertheless, less stable than defendant Morris. percent background time, with various lengths probation. judges voting jail proposed involves the trial judge, To substitute the this court for judgment in endless sentencing process appeals. to Morris It that the shown leniency cannot be demonstrated empirically act as counter-deterrent because of his race and achievements may theo- (who would of others for similar acts on the part encouragement if he It themselves knew went to they restrain retically prison). equally to his achievements his chosen field recognition that the given possible others to emulate that facet of his encourage character may employment his weaknesses. forego I abuse matter of law from the find of discretion as a in determining no were mitigation record before the court that there circumstances in law and ends would be served justice that the punishment prescribed 1203). (§ to the defendant by granting probation

Ill

Manner Exercise Discretion of of Wade, People 322, v. supra, 53 Cal.2d court after receiving

defendant’s and her counsel’s plea guilty granting request post- that a be and ponement sentencing so could prepared probation report studied announced that it considered the defendant ineligible for proba- tion. This at when the hearing conclusion reiterated the subsequent defendant’s motion (53 at Cf. denied. Cal.2d 337. probation p.

People 888, 28, v. Hogan (1969) 71 Cal.2d 891-892 Cal.Rptr. [80 868]; 457 People P.2d (1963) 587, v. Lichens Cal.2d 589-590 [30 59 468, 204]; 381 (1960) 300, P.2d Cal.Rptr. People v. Cartier 54 Cal.2d 573, 311-313 53]; People (1963) [5 353 P.2d v. Hutson Cal.Rptr. and 751, 221 Cal.App.2d 790].) ruled, 753-755 The court Cal.Rptr. [34 is, therefore, “Probation be exercised in the power may discretion of the . . court. . But that be discretion not exercised in an may arbitrary or capricious manner. It must be impartial, ‘fixed guided by legal princi- exercised ples, in with the (People of the law.’ conformity v. spirit Jones, 482, .)” 87 . Cal.App. (53 493-499 . 338.) Cal.2d at The p. recites, opinion additionally “The statute and the purport cases is that the trial court must not decide the until it question probation is in possession facts, of all of the relevant those especially contained in the probation There report. is little from the question record in the case at bar that the trial judge had decided the question probation against defendant at the time of her granting to file an request there- application' (Id. for.” See People also v. Causey (1964) 576, 230 579-580 Cal.App.2d 116]; People Cal.Rptr. [41 v. (1963) 676, Williams 223 680 805]; [35 Cal.Rptr. People Surplice, supra, 784, 203 Cal.App.2d 791-792.) It is contended that the record in this case reflects that the decided

the question of probation, as well the of the question dismissal of the counts, adversely position defendants and favor

unresolved It has the revelant facts. of all he was before possession the People information have received considered that he may been intimated also introduced in the report properly aside that contained from above). (see (See Times- fn. section 1204 at a hearing required 99, P.2d 113-114 (1940) 15 Cal.2d Superior [98 Mirror Co. v. Court 192, 190)]; 62 S.Ct. (86 L.Ed. (1941) 314 U.S. 252 1029] [reversed Lich- People v. 792. Cf. Surplice, supra, ens, 587, 588-589.) Cal.2d invaded field questionable record discloses that the judge

The of the defendants Beasley on behalf negotiating pleas propriety (See, Institute Sentencing for.Superior of the 1966 Morris. Proceedings 37-39; and cf. Court Judges, Appendix, Cal.Rptr. pp. 629]; (1968) 447 P.2d Delles 69 Cal.2d [73 Cal. 319-321 v. Santana 206 Cal.App.2d record, however, the inference 602].) does support Rptr. him the grand he considered were before in matters which not properly the in which were jury ultimately incorporated matters transcript at His the although remarks probation throughout proceedings, report. unwarranted, times the that do not conclusion intemperate compel he failed to exercise the sur- his discretion circumstances judicial the as rounding crime and the record and of the defendant history prior revealed in the record before him. continuances,

After defendants arraignment and several each of the of section a motion to dismiss pursuant provisions interposed time of the Penal These were continued time to Code. motions from stated, tran- decision. On the the for 21st “I have read February judge I have had to connection various and it is a motions script. pretty with I am bit of conduct. There is that. rugged rough no about question I not and know the District look.” condoning taking severe Attorney 4, 1969, dis- On the defendant his to Jackson withdrew motion February miss, count, entered his and made a one guilty plea .motion This sentenced motion was denied when that defendant was probation. (not It on 17th. must assumed that a February report part record) time, of this at the that which set forth circumstances prepared were officer. surrounding they crime known to the probation court The in this record commences in open with transcript proceedings their changed on 21st when defendants February Beasley Morris It had been previously is obvious from record that matter pleas. It discussed at in chambers. is not contended unreported proceedings were such conference or conferences. represented Appar- had been advised that ently judge Morris was as an electrical working and was aware of some apprentice, letters. Whether these letters related to Morris’ clear, or to is not but in event employment all Beasley letters mentioned were referred to the properly probation department. court open counsel for Beasley Morris announced the intention

of their clients to their The change then “It is pleas. judge my interposed, understanding, so we just get this both men straight, you going are to enter guilty to a pleas 261.4, Second and to a which is Degree, charge?”; rape correct, counsel Morris “That replied, your Honor”; and the continued, “And I judge will tell what you this means and what I intend to do. And there ais third which is charge kidnapping with intent to commit And it is robbery. intention at the my time proper when the probation come in to dismiss that reports charge pursuant Section 1385 of the Penal Code.” The then advised the defendants of the effect of a trial, guilty on on plea right to confront right them, witnesses against and on the right witnesses on their produce own behalf. understanding

The court then disclosed his regard Beasley15 and Morris.16 It that the is obvious from the content execution understanding Authority Youth dependent approval case of case of Morris. Beasley, upon probation report of a to Morris violation of judge explained consequences pro- bation in event of a sentence. When the assistant district suspended heard, a desire be the attorney interjected again to court referred to his intentions, and the them.17 reasons for said, “Now, 15Addressing Beasley judge plea a the I said what I would do your Authority. you plead your is refer matter to California Youth And after the attorney you and probation, would make a for it takes about 3 weeks. And motion report get on we the

would remain bail or OR and after it is mailed down to Sacra Authority approval days. mento for Youth and it takes about 10 So that the get acceptance you takes about 4 or we will a date and weeks. And after the we set you you accepted, Authority will come And if are then be sent to Youth in. will program they you for whatever rehabilitation have down Do understand that? there. put do, Beasley: Defendant Yes. The Court: That is what I intend to and I it on question.” the record so there is no stated, 16Addressing judge my your Morris the “. . . it is case intent to treat as Prison, you suspended, put probation State follows: and on three years, County words, year furlough. in the a you one Jail as condition on a work In other program apprentice are in an whatever that we is work out. You have will will go in every night to or whatever it is. And you couple nights I understand have a of And, sir, you go where you work or to school? going ... So that is what I to am do. got have two counts and I would again, make them there concurrent. And this, probation report would be a length before which would take the same of time.” stated, judge “Yes, just telling 17The but going I am I him what am to do. I do this this because is what I I I you feel must do. don’t condone what did and the to which counts

Thereafter, Morris for two in arraigning plea to dismiss the intention he to indicated his was guilty, judge plead to two his of guilty Morris entered plea counts. remaining Thereupon, follows, the clerk advised judge counts and moved probation. counts, “I to take those under three am going with to the respect remaining it is intention on March 21st for the date of sentencing, my submission to dismiss them Section 1385.” to pursuant counts, two and moved arraigned, guilty was

Beasley similarly pled for a a recommendation for referral to the with department counts, remaining Authority Youth commitment. With respect under stated, I will take them sub- court “And as to 3 and Counts mission, to Section and it intention dismiss thоse matters my pursuant that Penal Code on date.” I disregard find no of intention foregoing expression the facts or conclusions that recommendation of Youth or Authority a might but a deference expressed probation report, proper by law. procedures provided 13th, continued to On

On March was March 21st. sentencing Beasley’s called, case was before defendant’s engaged morning tirade (cid:127)what be an unwarranted against police inspector appears has not re- General the assistant district Although Attorney attorney.18 involved, maybe I my daughter wife were would are or circumstances such if something emotional gone horrible picked up gun have out and done that, token, judge, the reason but same I sit here as a And I realize state. decision, that is I take into consideration. And make this I have to all factors Quentin. He doing your in San I But realize that co-defendant reason am it. I 1202(b) culpable.” up sent on a we feel he more because Holt, For 18“The Mr. Duchow: the defendant. Clerk: Line James W. Junior. inspector a client. The The District to sit with lousy Court: I think it’s deal when an has ought inspector. In Attorney I think it is ridiculous. to advise here, spector ., you sit you there some reason have to . . can I see a moment? Is Inspector go you enough . . I was instructed to down don’t work to do? .: Inspector The Court : young my Lieutenant Detail. Who? lady by gave Bring . down court Lt. . . . . .: The Who him the instructions? Lieutenant .... Court: sentencing to people where procedure I never heard of a here. to with want to talk him. holding a hand. Tell the Lieutenant I policeman their Well, Honor, Atty.]: your [Ass’t. this a fair The I don’t think that remark. Dist. you Court: did a what going am to listen to what is fair remark in view of ... I ago. the I want . . . down to a don’t want to hear that. I Lt. Court few weeks way going That to And don’t want to about what a fair here. is the it is be. I hear things Atty.]: the remark is. that are Dist. For There are lots of not fair. [Ass’t. Inspectors sitting record I Court: I don’t want Police here don’t think it was. The hands, figuratively. in court alleged using the holding and I am term And some victim’s I want came Lt. know where these instructions from. . . . down I want to here. County There is police the than this lots more the to do in sit here in work for instructions, bring court. I gave so down here.” want to know who the him record, it, of the ferred to this the record not reveal does has part been that the victim suggested inspector accompanying offenses which rise to these that remarks gave judge’s proceedings, were calculated to her to the details of the offense as discourage testifying above). (see section 1204 fn. 14 Since the court had permitted by already been furnished with a of her before the and the copy testimony grand jury, her statements and probation one of her two letters report encompassed to officer, it would have probation been and an superfluous, unnecessarily distressful to her to her experience herself request repeat story, subject to cross-examination. It is that her she, if it were equally presence, probable was occasioned a desire to incite in her favоr and sympathy prejudice against defendants.

Thereafter the court took stated, the case of and the up Beasley judge “It is intention and to at the my time understanding deny probation proper and refer the matter Youth a continuance Authority.” discussing observed, the court “I will wait until we back to get probation report be sure whether he is to be going accepted.” Morris,

With the court had the respect apparently probation report, 21, 1969, which is it, dated March and the letters attached to including 20, 1969, recommendation dated (see March from officer the.work furlough 1208), Pen. who in himself, § this case was the officer probation that the defendant was because, for the work ineligible furlough program “In view of the circumstances case, our office is of the surrounding firm that this is not candidate for the work opinion subject proper furlough program.” stated that he was to continue the matter Morris so judge going he

that could officer. The alluded letters speak probation attached to the as follows: “And in connection with the work report I have a letter from the Decker Electric He furlough program, Company. was Number and that is a recommendation. And I have all pretty good here I these letters which didn’t have the time original report. reference, I had ask for them. There was I had a but letter from the other attached There are about letters here?” He party report. eight then indicated that there were on various officials concerned pressures case.19 The fact that the district office was on attorney’s insisting me, only thing 19These remarks are as . the disturbs and I follows: “. . that will record, say just pressures this here on the I like the don’t undercurrent of being Attorney’s put are on on the I like from outside District office. And don’t believe, outside, pressures being put that are I on Probation from Program, Department Furlough experience my and the Work in view of with them they and doing past they operating. what have the and been how have been And I any going will not inde- pressures tolerate on this Court. The Court is to act an Jackson, than were on and Morris

more convictions for Beasley imposed who, record, furnish if not greater may from the was equal culpability, as It is for the remarks. some warrant unnecessary, suggested judge’s defendants, formal or informal to take notice editorializing any judicial (Cf. Times-Mirror Co. Su- that have occurred in may press. public Court, 99, 107-113.) Cal.2d perior 8th, from the Youth received On Authority, having acceptance April without further comment to that institution the court committed Beasley and, over the dismissed or court objection prosecutor prosecutor; the three unresolved counts. 11th, indicated was for

On Morris arraigned judgment. April remarks are These that he read and considered probation report. unbracketed, remarks, that he show set forth in the The judge’s margin.20 good judgment. And I judgment, hopefully and and in its best pendent manner God, is who I my conscience to and that right person, my to and will answer to to, any pressure on the Court say. and is can I will not tolerate will answer all I Court; is Attorney any Department on and Probation and District an arm of the or arm of the Atty.]: Department. The Court: And I Or the Court. Police [Morris’ either, pressures somebody any having telling me won’t tolerate on the Police and protection somebody. got good to I here . . . protect pretty he is here I will tell have some you thing, you Probation any pressures if exerted on one find out direct been Court, Department, anything any else, Department, arm of the Police or Court, bring hearing person will a a I will before and. there on you now, contempt right And I this and of Court. will tell with all question attention, it, my every- comes from if it and that means consequences follow body.” bearing remarks of not ease inference those the court on the circumstances 20For crime, surrounding history and prior or the record the defendant have been placed in brackets. boys. Let a few This is the last of the three We me make remarks. “The Court: 1202(b) Penitentiary boy under of the Penal Code first of who went to had the because record, Authority his past Beasley was sent the Youth be and Mr. recall, thought just disposition was or it was cause he I the Court previous speak was no and there record to of. eligible Mr. Morris is 22 and so not that and I had “And he is recommended Furlough was Program. Work Officer under misinforma- [And Chief Probation judge, he I powers apparently Court he thinks and Judge tion as to Judge going preempt my that of Karesh or position let him am time, get going I discussion with him at but the Neubarth. .am not into report But the indicates that should be will care of itself.] take future ineligible Furlough. just I they say the man is Work want denied and [And Furlough put another man was who had two the record that Work point out for charged permission robbery, Court who previous felonies without resident, Furlough Work degree, was not a local who was on and who second and there a bench warrant out for day escaped him.] one then believe, case, on the he 22 and finished Number I Electrical this man’s “In Program. all life he And he has been in San Francisco his Apprentice Workers’ would be an person I it out for the reason appropriate program. point for this [And and in the in considered matters in record exercising probation report above, and, as has been set forth Morris’ his discretion to grant probation, no so there was abuse of discretion in doing. pleas, two and hocus-pocus accepted case.]

that there has been a lot of the in this And I robbery. acceptance rape a would be concurrent to forcible and deny disgraceful and “I don’t the conduct. I think was vicious I think it was it and parents feel the you shameful. I don’t know what other word I can And I know use. way, you same with and have to to to to stand in court next and to have share shame you tragedy. enough going you a And be what is is this should to make realize retribution; token, sentencing on. But I is it purpose same don’t think the rehabilitation, extent, you never has been. To is a and punishment some means of punished, many be primary say will reasons. The which were from Yori happens but I our considerаtion is rehabilitation. this probation report finally which were included included letters back, going requested. first received and which there letters I And were Wada, YMCA, who is executive who also an director with the and to on the Civil Service Commission. Att’y]: formerly And the Youth Authority. on “[Morris’ “The Court: And there are letters of young recommendation on this man. There Shifs, Uptown a letter from the Clothiers. And is a there letter from who Mr. a Jury former Grand member. again Att’y] : I checked that and I believe he was the panel. on “[Morris’ Housing Court: And a Authority letter from the and “The and Mr. Mrs. Wilson. a also, And letter from the Reverend Edwin important, Smith. And most a letter from Decker Electric Company, thought to they going indicate you were to be on furlough, work knew they pleased and were you good that they work record and you in Minority connection with Program you Work and that were Number in examination taken some 250 prospective apprentices, every- and that body has been satisfied your you work and very that are acceptable. And there is a notation that there is a recommendation for advancement in this connection have, which I and which was made. “So, this, Attorney’s strongly view of all know that in and I the District Office is this, opposed background here,] say sincerely, hocus-pocus to I but there is a lot of in [and going persist my judgment. .and I am to I here I And sit and conscience, responsible judgment, going for this is my am it and I am to answer my my judgment. to way God for And I feel best this is the to handle this. And I Prison, counts, going you suspended, am to sentence to to to State both , concurrently. run furlough, time put “At this I don’t want to make a fuss I will about the work but you period years, probation you for a of three and as a condition spend commencing Friday are to County night next weekends Jail o’clock, morning. you will be Monday released at 6 o’clock will And that 7_ give you opportunity complete your program. you get again, And if in trouble you go Penitentiary. will simple. the State is that It “Now, up I you, it is Mr. Morris. “So, again, condoning you doing, what are we live am not but have to in this something wrong, knowing you you world and I think that have done can’t undo bells, you unring time speak. can’t undo what has been You done. can’t so to son, always myself I put position my like to in the if this were and I I think must, judge, exhibited, my opinion, what I would do. You haven’t token, criminality, pattern shameful act. And if this had vicious, say again, but it same I awas again, your they parents stand here and I know how feel. I know one, daughter, happened your you you if how would feel. And I might initially know how I react.” thereupon, objection The court the prosecutor, over the dismissed the three un- resolved counts and denied his motion set them for trial. remarks, and those which followed the that bracketed

It is suggested intention, earlier of his with the statements combined judge’s sentencing21 demonstrate, and his views on tirade about his pressures, inspector, to which aof and grant purpose probation finding compel preconceived determination, and an amounts to disposition, capricious arbitrary exercise of whimsical such as to discriminatory judg preclude thinking (See, 203 v. supra, of reason. People ment within bounds Surplice, 791.) at p. Cal.App.2d of the extraneous remarks for

Whatever be said or against may law, cir did, consider the he as the fact remains that required judge, of the record and and the cumstances the crime history surrounding prior discretion, of shows no abuse in that defendant. the record Since regard “[Wjhere a statements rule: is case judge’s following governed no of the law and its as a whole disclose a correct application, concept determination.” his to have deemed remarks should be impeached secondary 573, 53], 300, 353 P.2d (People (1960) v. 54 Cal.2d 313 Cartier Cal.Rptr. [5 Lichens, 587, also, See 590. v. 59 Cal.2d as quoted Hutson, 892; supra, 221 888, People v. and Hogan, supra, 71 Cal.2d 751, 753-755.) Cal.App.2d observed, record, Honor, of your and on behalf prosecutor . for the 21The “. . aggra and most Attorney, it that this one of the most vicious District is felt is we are County years, and in the last several that has come in this vated offenses at all. and is not in order objecting to the sentence in this case feel already indi right. already my decision and I have Court: All I have made my judgment of my question I is a attitude and that don’t condone it. It cated my boy. judgment isn’t Society and what best for this And if is best for is what error, Penitentiary.

justified, up [Morris’ and if he makes he ends the State that, Atty.]: right.” response prose He understands he do intends to hocus-pocus the has inquiry, “Might inquire just what Court I Court cutor’s said I to?,” pressure judge responded. been a lot of here. “There has or alluded hocus-pocus Kavanaugh by reason of and 1 indicated the ... talked to Mr. have Furlough, indicated it because put that was the Work and I have type person Now, Kavanaugh trying judge. I preempt the function of Mr. time, has going talk and which of information and I am not about lot come to finagling background effort my shows a lot of attention which this, go I am pressure. going into but get Kavanaugh I am not to Mr. them; not, pretty not be you you being are are naive. This Court will and if aware going newspapers of what are to do other threats by threats threatened what Mr. will Kavanaugh Kavanaugh happens the next time this Mr. intends to do. And simple. charge. you my contempt position. It know be in here on a is Now And, you hocus-pocus got proba I example, one which from the . I will tell . . in, and and They request letters sent and I had to the letters report. referred to some tion hocus-pocus, they piece and what said. That is one out sent them in find who one, the file revelation of what contains. That 1 and I could tell is entitled to a full think Court here, long be again as I sit you many happen It will never more. matter the Court. As a permit anybody preempt I the function of lieve me. don’t fact, benefit.” Department of the Court Court’s the Probation is an arm

677 court, further noted in It should be orders of the that it support (Evid. that official has been duty regularly performed. presumed 664; (1970) v. Moran 1 Cal.3d § [83 Cal.Rptr. 763]; (1968)

P.2d People Sparks [68 909]; ‍‌‌‌‌​‌​‌​​​‌​‌​​‌​​‌‌​​​​​‌‌​‌​​​‌​​‌‌‌‌‌​​‌‌​‌​‍P.2d People Connolly 112].) this court or of members

The issue is not whether its or dis- agree (See with the court. v. Keller trial agree punishment imposed by 154].) In the absence of discretion, record, an abuse of which has not been demonstrated on the I believe the orders should be affirmed. Court were denied hearing by

Respondents’ petitions Supreme Sullivan, J., did not 1970. therein. May participate

Case Details

Case Name: People v. Beasley

Court Name: California Court of Appeal

Date Published: Mar 19, 1970

Citation: 85 Cal. Rptr. 501

Docket Number: Crim. 7992

Court Abbreviation: Cal. Ct. App.