People v. Alotis

• Decision Date: 28 January 1964
• Docket Number: Cr. 7462
• Citation: 36 Cal.Rptr. 443,60 Cal.2d 698,388 P.2d 675
• Court: California Supreme Court
• Parties: , 388 P.2d 675 The PEOPLE, Plaintiff and Appellant, v. Geraldine W. ALOTIS, Defendant and Respondent.

Page 443

36 Cal.Rptr. 443

60 Cal.2d 698, 388 P.2d 675

The PEOPLE, Plaintiff and Appellant, v. Geraldine W. ALOTIS, Defendant and Respondent.

Cr. 7462.

Supreme Court of California, In Bank.

Jan. 28, 1964.

Rehearing Denied Feb. 26, 1964.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Robert J. Lord and Harry B. Sondheim, Deputy Dist. Attys., for plaintiff and appellant.

Harold J. Ackerman and William Drake, Los Angeles, for defendant and respondent.

PETERS, Justice.

The sole question presented on this appeal is whether the trial court was prohibited from granting probation to defendant under the provisions of section 1203 of the Penal Code. For reasons hereafter stated, we are of the opinion that the trial court had such power, and that its order so providing should be affirmed.

Defendant was charged with assault with the intent to commit murder (Pen.Code, § 217), which is a felony. She pleaded not guilty, and waived a jury trial. During the trial the district attorney, by stipulation, filed an amended information charging, in a second count, assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen.Code, § 245). That section provides, in the alternative, that such offense 'is punishable by imprisonment in the state prison not exceeding 10 years, or in a county jail not exceeding one year, or by fine * * * or by both such fine and imprisonment.' Thus the very section creating the crime makes it a felony or misdemeanor, dependent solely upon the sentence imposed.

Defendant pleaded guilty to the second count, and the first count was dismissed. The court, thereupon, sentenced the defendant to one year in the county jail and suspended that sentence. After the court had thus, by its sentence, determined that the offense was a misdemeanor, it imposed three years probation, subject to conditions. The district attorney moved to vacate the probation order, admitting that the court could have sentenced defendant to one day in the county jail, and/or imposed a one dollar fine, but contended that the court had no power to grant probation under the facts of this case. The record shows that had the trial court believed it had no power to grant probation it would have imposed a one-day sentence, but since it believed it had such power, determined that it would be best for defendant and for society if that power were exercised. It denied the motion to vacate. The People appeal, contending that, since defendant was admittedly armed with a deadly weapon, the trial court was without power to grant probation under the terms of section 1203 of the Penal Code.

The record shows that defendant is the sister-in-law of the victim of the assault, whose name is Christ Alotis. Christ is the eldest of several brothers, and was the dominant and dominating member of that family. A few months after the marriage of defendant to Christ's brother, Christ forcibly seduced her. Thereafter, an intimate relationship developed between Christ and defendant. The defendant did not discourage this relationship (it continued for some 14 years), until she discovered that Christ was involved with several other women. In order to 'settle' her relationship with him defendant arranged a meeting with Christ at a motel. She armed herself with a loaded gun, which she claimed was necessary because it was the only was to make Christ 'just sit still long enough to give me a yes or no.' It is quite apparent that Christ had fully intimidated defendant.

In the motel room defendant stayed in a corner of the room holding the gun, and Christ sat on the bed drinking vodka. They carried on an apparently calm discussion for over an hour when, according to defendant's uncontradicted testimony, Christ took off his belt, made a crude and highly insulting remark to her, and began to move threateningly toward her. She fired a single shot past him into the headboard, but Christ continued to move toward her, and in the ensuing struggle Christ was shot five times. Christ's wounds were at widely scattered points on his body. Defendant sustained various bruises in the struggle.

Defendant immediately professed regret at what she had done. Christ, badly injured but coherent, ordered defendant to clean up the motel room and to drive him to a hospital. In order, apparently, to protect defendant, Christ entered the hospital alone and told defendant to leave.

Both the victim and defendant's husband candidly admitted to the probation officer that they were the ones really responsible for what had occurred. It is apparent that Christ was an uncooperative prosecution witness. He was not called at the trial, and was called during the preliminary hearing only to answer several questions concerning ownership of a certain car.

The trial court requested a probation report. The probation officer recommended against probation. The trial judge refused to follow the recommendation, imposed the light sentence, and granted probation. The trial court's reasons for imposing the light sentence and for granting probation were stated as follows:

'THE COURT: * * * Here we have a woman with three minor children, never been in any type of trouble before, has demonstrated a motherly concern for her children, has done everything to bring her children up properly. Pressures are exerted upon her and through an impulse commits a crime that she did commit. So far as her record is concerned, so far as anything we can learn about her is concerned, punishment is not the function here of the Court. It will serve no useful purpose except to break up a family that is now together again. So far as rehabilitation is concerned she is rehabilitating herself without the aid of anyone but the psychotherapist. While the crime was one of violence, yet it is understandable. I wish we could place restraints upon those who I feel are more responsible for this than she is, but they are not before this Court and I can place restraints only upon her. I am not going to follow the recommendation of the probation officer. I shall grant probation in this case. I am satisfied that she will never repeat this offense or any other type of offense. All she needs is a little help from the psychotherapist which she is receiving now.

'An additional reason why I am not sentencing her to jail is the letter which I received from Dr. Polos who has been treating her. He states 'In my opinion my prognosis is good and treatment if interrupted at this time would greatly suffer. In other words, much of what has been gained might be jeopardized and further treatment would require starting anew. It is further my opinion that she is not a danger or menace to the health and safety of herself and others at this time. In view of her need in the home I feel that much damage would be done by this women not being allowed to continue treatment on an out-patient basis."

The judge then sentenced her to one year in the county jail, suspended that sentence, and then granted probation. Before granting probation the court orally found that the gun with which defendant was shot five times 'was not used as a deadly weapon,' apparently believing that this finding was sufficient to take the case out of section 1203 of the Penal Code.

That section provides (numbers have been placed in front of each paragraph for ready reference):

(1) 'After the conviction by plea or verdict of guilty of a public offense not amounting to a felony, in cases where discretion is conferred on the court or any board or commission or other authority as to the extent of the punishment, the court, upon application of the defendant or of the people or upon its own motion, may summarily deny probation, or at a time fixed may hear and determine in the presence of the defendant the matter of probation of the defendant and the conditions of such probation, if granted. If probation is not denied, and in every felony case in which the defendant is eligible for probation, before any judgment is pronounced, and whether or not an application for probation has been made, the court must immediately refer the matter to the probation officer to investigate and to 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. The probation officer must thereupon make an investigation * * * must make a written report to the court * * * and must accompany said report with his written recommendations, * * * as to the granting or withholding of probation to the defendant and as to the conditions of probation if it shall be granted. * * * If (after considering said report) the court shall determine that there are circumstances in mitigation of punishment prescribed by law, or that the ends of justice would be subserved by granting probation to the defendant, the court shall have power in its discretion to place the defendant on probation as hereinafter provided; * * *.'

(2) 'In every misdemeanor case, the court may, at its option refer the matter to the probation officer for investigation and report or summarily deny probation or summarily grant probation.'

(3) 'The Legislature hereby expresses the policy of the people of the State of California to be that, except in unusual cases where the interest of justice demands a departure from the declared policy, no judge shall grant probation to any person who shall have been convicted of robbery, burglary or arson, and who at the time of the perpetration of said crime or any of them or at the time of his arrest was himself armed with a deadly weapon (unless at the time he had a lawful right to carry the same), nor to a defendant who used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he was convicted, nor to one who in the...