People v. Arbuckle

• Decision Date: 12 December 1978
• Docket Number: Cr. 20002
• Citation: 587 P.2d 220,22 Cal.3d 749,150 Cal.Rptr. 778
• Court: California Supreme Court
• Parties: , 587 P.2d 220, 3 A.L.R.4th 1171 The PEOPLE, Plaintiff and Respondent, v. Michael Eugene ARBUCKLE, Defendant and Appellant.

Page 778

150 Cal.Rptr. 778

22 Cal.3d 749, 587 P.2d 220, 3 A.L.R.4th 1171

The PEOPLE, Plaintiff and Respondent, v. Michael Eugene ARBUCKLE, Defendant and Appellant.

Cr. 20002.

Supreme Court of California, In Bank.

Dec. 12, 1978.

David E. Kenner, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a sentence imposed following a negotiated plea. After extensive pretrial proceedings, he was charged, in a consolidated information, with (count I) assault with a deadly weapon with intent to commit murder (Pen.Code, § 217), (count II) assault with a deadly weapon (Pen.Code, § 245, subd. (a)), and (count III) possession of marijuana for the purpose of sale (Health & Saf. Code, § 11359).

Pursuant to a plea bargain, defendant entered a plea of guilty to count I. In return, it was agreed that counts II and III would be dismissed, that defendant would be referred to the Department of Corrections for preparation of a report under the provisions of section 1203.03 of the Penal Code, and that the judge would "follow the recommendation" made in such report in sentencing defendant.

In its report, the Department of Corrections concluded the defendant should receive a prison term because (1) probation supervision was deemed inadequate for him; (2) he was considered an unreasonable threat to the community; and (3) the likelihood of recidivism in his case was considered to be high. ¹ Expressing a minority viewpoint, the correctional counselor recommended probation with imposition of maximum county jail time. Her report enumerated several factors which favor probation: (1) criminal behavior had occurred in an unsettled period of the defendant's life, i. e., after marital conflict and divorce; (2) he is remorseful and freely admits his wrongful behavior; (3) he has strong family support in his rehabilitation efforts; and (4) while allowed to live in the community under bail bond pending court proceedings, he was, from all indications, a law abiding and productive citizen even to the extent of passing the journeyman wireman's examination of his local electrician's union and maintaining employment in that category.

After the report from the Department of Corrections had been received, defendant moved for a hearing to challenge the report, alleged deficiencies in the psychological evaluation, and sought to subpoena the personnel who prepared the report. The motion was denied and the subpoenas were quashed pursuant to a motion of the People, both rulings being made by Judge Robert H. London, the judge who had accepted the plea bargain.

Defendant then unsuccessfully sought a writ to compel the hearing and to allow the staff witnesses to be subpoenaed. In the interim, Judge London was transferred to another department of Los Angeles County Superior Court. The case subsequently was called before Judge Raymond R. Roberts. Defendant objected to imposition of sentence by Judge Roberts; he insisted that he was entitled to be sentenced by Judge London under the terms of the plea bargain. His request for a transfer was denied and Judge Roberts sentenced him to prison for the term prescribed by law.

I

Defendant first contends that his right to a probation and sentencing hearing pursuant to Penal Code section 1204 was effectively denied because he was not permitted to cross-examine the Department of Corrections personnel who prepared the report or to introduce expert testimony challenging the methodology used by the staff. He correctly asserts a right to present evidence tending to mitigate punishment or assist in the determination of his application for probation. (Pen.Code, § 1204; People v. Barajas (1972) 26 Cal.App.3d 932, 939, 103 Cal.Rptr. 405; People v. Valdivia (1960) 182 Cal.App.2d 145, 148, 5 Cal.Rptr. 832.) The defendant is entitled to an opportunity to respond to adverse sentencing information. (In re Calhoun (1976) 17 Cal.3d 75, 84, 130 Cal.Rptr. 139, 549 P.2d 1235.) Here, however, defendant did not offer or produce his own evidence; rather he sought only to discredit the report submitted to the court under Penal Code section 1203.03. Thus he chose not to present affirmative material, even though the Legislature has expressly provided that probation shall not be granted to a defendant who committed an assault with intent to commit murder "(e)xcept in unusual cases where the interests of justice would best be served . . . ." (Pen.Code, § 1203, subd. (d).)

The three cases cited by defendant to support the asserted right of confrontation are of little aid in determining the merits of his contention since the claimed right was rejected in each instance as being waived or not protected by objection in the trial court. (People v. Label (1974) 43 Cal.App.3d 766, 775, 119 Cal.Rptr. 522; People v. Walker (1968) 266 Cal.App.2d 562, 568, 72 Cal.Rptr. 224; People v. Clements (1962) 202 Cal.App.2d 284, 287, 20 Cal.Rptr. 766.) There is no statutory support for the asserted right to confront and cross-examine as witnesses those who prepare a report which, pursuant to section 1203.03, must contain a diagnosis and recommendation in writing. ²

Neither does the purported right of confrontation in these circumstances derive from the Sixth and Fourteenth Amendments to the federal Constitution or article I, section 15, of the California Constitution. In Williams v. New York (1949) 337 U.S. 241, 251, 69 S.Ct. 1079, 93 L.Ed. 1337, the United States Supreme Court concluded that the federal due process clause does not extend the same evidentiary protections at sentencing proceedings as exist at the trial. A sentencing judge "may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or 'out-of-court' information relative to the circumstances of the crime and to the convicted person's life and characteristics." (Williams v. Oklahoma (1958) 358 U.S. 576, 584, 79 S.Ct. 421, 426, 3 L.Ed.2d 516.)

More directly, several courts have held the Sixth Amendment right of confrontation inapplicable at the sentencing stage of a criminal prosecution. (See, e. g., United States v. Fischer (2d Cir. 1967) 381 F.2d 509, 511, cert. den. (1968) 390 U.S. 973, 88 S.Ct. 1064, 19 L.Ed.2d 1185; Fernandez v. Meier (9th Cir. 1970) 432 F.2d 426, 427.)

We have previously examined due process protection in the context of probation and sentencing hearings. "While Williams (v. New York) does not require the same procedural safeguards at probation hearings as in the case of a trial on the issue of guilt, an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are Fundamentally unfair." (People v. Peterson (1973) 9 Cal.3d 717, 726, 108 Cal.Rptr. 835, 842, 511 P.2d 1187, 1194; emphasis added.) Reliability of the information considered by the court is the key issue in determining fundamental fairness. In Peterson the testimony of a police officer at the probation hearing regarding hearsay comments made by an informant was held sufficiently reliable for consideration by the trial court. (Id. at pp. 727-728, 108 Cal.Rptr. 835, 511 P.2d 1187.) Similarly, the report herein has inherent reliability because it was made pursuant to a court order by expert, objective government personnel in pursuit of their official duties. Further, the report does not stand in isolation; its recommendation was supported by the probation officer's report and by the statutory presumption against probation for assault with intent to commit murder (Pen.Code, § 1203, subd. (d)).

The defendant could have challenged factual statements contained in the report by presenting his own evidence; but fundamental fairness does not require that he be allowed to challenge such statements by cross-examining the personnel who prepared the report, nor does it require that he be permitted to challenge the professional methods they employed. The report was fair on its face; a full hearing on collateral issues emanating in an ever-widening circle from the central issue the proper sentence to be imposed is therefore not warranted.

We cannot be oblivious to the drain on time and public resources the demands of defendant would impose. Between 2,000 and 3,000 diagnostic reports are prepared annually by the Department of Corrections at two institutions for men, one in Northern California (Vacaville) and one in Southern California (Chino), and one statewide for women (Corona). If each criminal defendant throughout the 58 counties could at will subpoena all of the personnel who participated in the valuation of his rehabilitative potential and the preparation of the report to the court, the department experts would be engaged almost exclusively in travel to and from courts and in court appearances. Neither the express provisions of any statute nor the number of personnel available at the institutions indicate a present legislative intent to require corrections personnel to be available for such pervasive court examination purposes. It seems apparent that the requirement of in-court testimony would seriously hinder the preparation of diagnostic reports, therefore denying to courts and many deserving defendants this useful device. ³ Absent a contrary legislative command, it should be within the sound discretion of the trial court to determine those instances when in-court testimony is required to provide a fundamentally fair proceeding. No abuse of discretion appears in the instant case.

Defendant further contends that since the plea bargain elevated the Department of Corrections recommendation to the sole basis for sentencing, it implicitly provided a right to cross-examine the personnel who prepared the report. The section 1203.03 report herein, however, does not play a fundamentally different role...