THE PEOPLE, Respondent,
v.
ERNEST GILES, Appellant.
California Court of Appeals.
Edward R. Young and Milan Medigovich for Appellant.
Frеd N. Howser, District Attorney (Los Angeles), Jere J. Sullivan and Robert Wheeler, Deputies District Attorney, for Respondent.
BISHOP, J.
The defendant, convicted on a charge of having used force and violence upon the complaining witness, was sentenced to serve six months in the county jail. We have concluded, upon his appeal from the judgment, that the evidence supports the conviction and that no reason exists for disturbing it, but that the judgment should be reversed with directions that the defendant be resentenced, because, in determining the severity of the sentence to be imposed, the trial judge erred in listening to and being influenced by accusations made against the defendant outside of court. The error referred to is not a trivial one. A person convicted of a traffic offense or of another of the many misdemeanors which have been created by state laws and local ordinances, has a real concern in the sentence which follows. Will it impose a light or a stiff fine? Or is there to be а term in jail instead of a fine? It is a matter of more than passing interest, therefore, to know whether or not the trial judge may properly take into consideration, in determining the sentence, reports against the defendant which come to the judge privately, neither in open court nor known to the defendant, and which he is given no opportunity to answer. [
[1a] As we have stated, the evidence supports the conclusion that the defendant did use force unlawfully upon the complaining witness. The latter, it appears, had been charged with a minor traffic violation by a complaint filed in the City Court of the City of Vernon, where the defendant, who was the city's chief of police, was acting as bailiff. The complaining witness was considerably incensed at having his bail set at $200 when he pleaded not guilty and asked for a jury trial. When he found himself unable immediately to post bail, he did not yield graciously to being taken into custody by the defendant. In spite of his verbal and other protestations, however, the complaining witness was taken into custody and to the booking office of the city jail. There he continued to evince his unhappiness at what had taken place, by provoking words and perhaps provoking acts, until the defendant put a stop to it by choking him, for a brief moment. But the provocation, however great, was not legally sufficient to justify the defendant's use of force in any degree upon the complaining witness, who was at the time in custody as his prisoner.
[2] Standing convicted of the crime of battery, the defendant was subject to a fine (up to one thousand dollars) or to a jail sentence (not exceeding six months) or to a combination of the two (Pen. Code, 243). To aid it, no doubt, in arriving at a just determination of the proper sentence to impose, the trial court referred the matter to the county probation officer for a report, and set the time for sentencing the defendant ahead twenty days. This course was a proper one, although the defendant was ineligiblе for probation, for the probation officer is to report not only as to matters of interest re probation, but he is further directed (Pen. Code, 1203) "to investigate and report to the court at a specified time, upon the circumstances surrounding the crime and concerning the defendant and his prior record, which may be taken into consideration either in aggravation or mitigation of punishment." In this case, however, the probation officer's report, filed two days before the date set for the hearing, proved of little, if any, guidance to the trial judge, for his views in the matter became darkly colored from other, unofficial, reports he received.
[3a] That the trial judge listened to accusations made [
The letter referred to was then read into the record. It was one from a Mr. Needle, and its gist is found in this paragraph: "The Chief of Police of Vernon should have never been allowed to come out on probation, for he is a menace to society; like myself, many other American citizens feel that he should be put away where he could do no further harm. He never did any direct harm to myself, but I am witness of some of his injustice in the performance of his duty. For instance, there was a certain day when a lady was letting out a soldier to whom she had given a lift, and in no way violating the traffic laws, and I saw an officer give that lady a citation. I saw that injustice and my heart bled when I found myself unable to do anything about it." The trial judge again referred to this letter when he said: "I might say that this probation officer's report here contains about a dozen letters from Mr. Giles' friends and he only gathered up one letter against Mr. Giles." We make no comment upon the value of this lеtter as an aid to the court in determining what punishment to inflict upon the defendant, other than to say that evidence may have graver faults than that of being hearsay.
Following the reading of the letter, two witnesses were called and interrogated by the trial judge. The first was a newspaperman who had found the office of the Chief of Police of Vernon and, upon one occasion years before, the chief himself, very uncommunicative when asked for "the names, etc." of the persons invоlved in accidents which, presumably, although it was not stated, the department had investigated. [
The second witness called by the trial judge was the Mayor of the City of Vernon. "The point is," the triаl judge announced by way of explanation, "if the Mayor instructed this sort of thing I would forgive Mr. Giles for it. If he does it on his own volition that makes him solely responsible." The Mayor testified that he had never given any instructions to the defendant with reference to the treatment of prisoners in the city of Vernon, and he had not heard that the police department had refused to cooperate with the Metropolitan press regarding persons arrested in the city of Vernon, and the trial judge expressed his conviction that the mayor "had nothing to do with the matter." This, it would seem, left the onus on the defendant for the failure of his office to cooperate with the press concerning arrests, a matter expressly stated by the witness first called to be not within his "information," and so if known to the trial judge at all was known only by virtue of the "dozens of people" who had told him about it on the outside, but who were afraid, according to the trial judge's report, to appear as witnesses in his court. There was no witness to аny mistreatment of any prisoner other than of the complaining witness; that is, no witness who testified in court.
The City Attorney of Vernon was called by the defendant as a witness, but was immediately taken over by the trial judge, who addressed to him these statements and questions, each revealing a state of mind, existing in the trial judge, not brought about by any court witness or judicial proceeding: "Do you know anything about his reputation that he seems [
We are not undertaking to answer the question: What relevancy did thе matter of jury trials, and the several other matters inquired about, have to the problem then before the court, the problem of determining what was a just and proper sentence to be imposed on the defendant? Nor are we passing upon the propriety of making the proceeding by which the sentence to be imposed upon the defendant was to be determined, a proceeding "to rescue the City of Vernon and bring it back into the United States," as the trial court stated he was trying his bеst to do. Our attention is centered upon an inquiry into the legal propriety of the practice of a trial judge who, in making up his mind as to the punishment to be imposed upon a convicted defendant, receives and gives heed to charges leveled at the defendant out of court and out of the defendant's hearing. [
[4] In section 1204, Penal Code, we discover the Legislature expressly condemning the practice followed by the trial court. That section, referring to circumstances which mаy either aggravate or mitigate the punishment, states: "The circumstances must be presented by the testimony of witnesses examined in open court. ... No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section." We are not exploring the field of speculation arising out of the repeated and drastic changes made through the years in the "preceding section" to determine the effect of the amendments upon the provisions of section 1204, for we are persuaded (we are not elaborating the matter) that the provisions of section 1204 are limited in their application to proceedings in the superior court; they do not constitute legislation governing proceedings in justices' courts. But we note that there is not a word in that chapter of the Penal Code which does presсribe the proceedings for justices' courts ( 1425-1461) which is in any way inconsistent with the policy enunciated in section 1204, and that policy, we find, is the policy that governs in the absence of express legislation on the subject.
[5a] In the first place, "The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed." (Italics ours.) (Pen. Cоde, 12.) "Whenever in this code the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by this code." (Pen Code, 13.) The words of these two sections (to which we have added the emphasis) need no interpretation. Plainly they stamp the steps to be taken to determine the severity of a sentence as a part of the judicial proceedings in the case. The duty here imposed upon the court is closely analogous to that imposed upon the court in these words of section 1192 of the Penal Code: "Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree." Of these two duties we find the Supreme Court speaking in People v. Gilbert (1943), 22 [
"The universal aid is evidence. This was the means employed by the lower court in determining the degree of crime in the case at bar. It is the only means by which a judicial determination can be had, and was the means which it was contemplated by the legislature should be invoked by the court."
"If there could be any doubt of this general rule, we are satisfied that the course pursued by the lower court is provided for and sanctioned by section 187 of the Code of Civil Procedure, which declares that 'When jurisdiction is, by the constitution or this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to thе spirit of this code."
[7a] Our conclusion that the determination of the sentence to be imposed upon a defendant convicted of a misdemeanor should not be based even in part upon statements which come to the ear or eye of the trial judge in an unofficial way, finds further support in these two legal principles: the defendant has a right to be present when judgment is imposed upon him, and he has a right to be confronted by the witnesses who have accusations to make against him. As tо the first of these principles, again we find the Penal Code silent, but the common law is not silent. [8] While it is true that "In this state the common law is of no effect so far as the specification of what acts or conduct shall constitute a crime is concerned. (Sec. 6, Pen. Code; 7 Cal.Jur. 841)," (People v. Whipple (1929),
[10] Closely allied to the principle just considered is the second of the two to which we made reference. We find it to be recognized in People v. Beatty (1923),
We find two decisions from sister states which condemn the practice followed by the trial court in the present case as being in violation of the fundamental right of a person to be confronted by the witnesses against him. The first of these is State v. Simms (1925), 131 S. C. 420 [
The second of the two cases from sister states is Commonwealth v. Johnson (1944),
"However, when a judge is faced with the duty of determining whether or not a convicted murderer is to be sentenced to death or life imprisonment the seriousness of the problem is such that a judge who is possessed of that zeal to do justice [
Our conclusions, then, are these. [1b] The defendant was regularly convicted, on sufficient evidence, of the charge of battery. [5b] In undertaking to ascertain facts from which it could determine what sentence should be imposed on the defendant, the trial court was engaged in a judicial proceeding. [3b] Such facts as were not supplied by the probation officer's report and by the record of the trial, which had been held, should have been obtained from the lips of witnesses called in open court, in the presence of the defendant. Instead of limiting his search for the facts to these proper sources, the trial judge listened and gave great weight to reports received outside of court, with the result that the judgment entered was prejudicially influenced by these improperly received accusations. For these reasons we reverse the judgment with directions that the defendant be rearraigned for sentence after proceedings conducted in harmony with the principles set forth in this opinion.
Shaw, P. J., and Kincaid, J., concurred.