People v. Clay

Decision Date27 July 1971
Docket NumberCr. 4387
Citation18 Cal.App.3d 964,96 Cal.Rptr. 213
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Thelma CLAY, Defendant and Appellant.

GARDNER, Presiding Justice.

The defendant was charged with the murder of her illegitimate grandson. Within two hours of the birth of the child, she placed the child in a towel in a paper sack. She then put the child in a trash container, poured lighter fluid over him, and ignited the lighter fluid. There is no trash pick-up where defendant lived; trash is disposed of by burning. She presented evidence that she believed the child was dead before she placed him in the trash and further evidence that she (the defendant) had a mental defect and was of limited intelligence. 1

The jury found her guilty of second degree murder. The trial court reduced the offense to 'non-statutory' voluntary manslaughter and sent her to prison. She was returned to court under the provisions of Penal Code, § 1168, with a recommendation from the prison authorities that she be placed on probation. The probation officer's supplemental report also recommended probation. She had no previous history of delinquent behavior.

The district attorney opposed the granting of probation. The court was of the opinion that under these circumstances probation was prohibited by the provisions of Penal Code, § 1203. It properly found that the case came within the fifth unnumbered paragraph of that section in which probation is prohibited to one who in the perpetration of the crime of which she is convicted willfully inflicts great bodily injury. 2 (See People v. Villegas, 14 Cal.App.3d 700, 704, 92 Cal.Rptr. 663.) In referring to the sixth unnumbered paragraph of section 1203, 3 which allows the court to grant probation with the concurrence of the district attorney in cases in which a grant of probation would otherwise be forbidden by the fifth unnumbered paragraph, the court did not in explicit terms say, 'I find this case to be an unusual one in which the interest of justice would be served by granting probation,' but did say, '* * * I think this is a case where probation could be granted * * *,' and further that, '* * * were it not for the fact that the law exists as it does, I would forthwith grant probation * * *.' But, 'in light' of the position of the district attorney, the court felt 'compelled' to deny probation. Thus, while an affirmative finding of the judge that the case is unusual is necessary to bring the sixth paragraph into play (People v. Brown, 260 Cal.App.2d 434, 439, 67 Cal.Rptr. 238; People v. Cox, 259 Cal.App.2d 653, 658, 66 Cal.Rptr. 576), the Attorney General concedes that the court made an implied finding that the case came within the sixth paragraph of Penal Code, § 1203, and that denial of probation was due to refusal of the district attorney to so agree.

Therefore, this court is faced squarely with the issue of whether vesting such a power in the district attorney is unconstitutional under the rationale of People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, and Esteybar v. Municipal Court (filed June 22, 1971), 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140. This 'very fundamental issue' which was prematurely raised in People v. Villegas, Supra, 14 Cal.App.3d 700, 92 Cal.Rptr. 663, and therefore not decided, must be decided here.

In Tenorio, the Supreme Court found the portion of Health and Safety Code, § 11718, which specified that no allegation of fact which, if admitted or found true, would change the penalty for a narcotics offense could be dismissed by the court or stricken from the pleadings except on motion of the district attorney was unconstitutional as a violation of the doctrine of separation of powers. (Article III of the California Constitution.) The court held a prosecutor, as an advocate, could not be given authority to prevent the exercise of the judicial power to dismiss the allegation of a prior conviction.

In Esteybar, the Supreme Court held unconstitutional on the same grounds Penal Code, § 17(b)(5), insofar as it requires the consent of the prosecutor before a magistrate may exercise his discretion to determine that a charged offense should be tried as a misdemeanor instead of a felony.

The court in Tenorio indicated the sentencing power, i.e., the power to grant or deny probation, is an important part of the power of the judiciary in the following language:

'When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature. * * * The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise.

'Finally, analogies to other forms of sentencing discretion, vested in individual judges and the Adult Authority, cannot excuse section 11718's invasion of the judicial power. When an individual judge exercises sentencing discretion, he exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him, and which is subject to review for abuse.' (Emphasis added.) (People v. Tenorio, Supra, 3 Cal.3d 89, 94--95, 89 Cal.Rptr. 249, 252, 473 P.2d 993, 996.)

Tenorio relied heavily on the dissent of Justice Schauer in People v. Sidener, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641. In Sidener, Justice Schauer said:

'Certainly the Legislature could absolutely prohibit the granting of probation or parole to anyone convicted of a narcotics (or any other) offense; or it could ordain any minimum and maximum terms it sees fit, or a mandatory life term without parole or even a nondiscretionary death penalty for such offenses. But the Legislature cannot--without transgressing our constitutional division of powers--transfer from the judicial to the executive branch of government the power either to grant or to deny, or to preclude judicial resolution of, a motion made prior to entry of judgment in a felony criminal action, the ruling on which will affect the substantial rights of the defendant under the judgment to follow.' (People v. Sidener, Supra, 58 Cal.2d 645, p. 653, 25 Cal.Rptr. 697, p. 702, 375 P.2d 641, p. 646, dissenting opinion of Justice Schauer.)

Even more specifically, Justice Schauer said:

'It bears reiteration that the Legislature, of course, By general laws can control eligibility for probation, parole and the term of imprisonment, but it cannot abort the Judicial process by subjecting a judge to the control of the district attorney.' (Emphasis in original.) (People v. Sidener, Supra, 58 Cal.2d 645, p. 654, 25 Cal.Rptr. 697, p. 702, 375 P.2d 641, p. 646, dissenting opinion of Justice Schauer.)

The Attorney General contends the Tenorio holding is based on the 'inherent' judicial power to dismiss allegations of prior convictions, and the instant case is distinguishable because the power to grant probation, involved in Penal Code, § 1203, is wholly statutory--not a part of inherent judicial power. He asserts the Legislature may give the court power to grant probation, specify certain cases in which it may not be granted, then provide for exceptions to these exceptions, subject to the safeguard of the district attorney's concurrence. He reasons that since the Legislature need not provide for probation at all, it can constitutionally impose any conditions it wishes if it does choose to give the courts authority to grant probation. In support of this position, the Attorney General points out that the power to fix penalties for crime is exclusively a legislative function (Keeler v. Superior Court, 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617), and the courts have no inherent power to grant probation. (People v. Brown, 172 Cal.App.2d 30, 34, 342 P.2d 410; see also Bennett v. Superior Court, 131 Cal.App.2d 841, 845--846, 281 P.2d 285; People v. Hess, 104 Cal.App.2d 642, 685--686, 234 P.2d 65.) The Attorney General's well thought out argument, expressed in a brief filed in the interim between the Tenorio and Esteybar decisions, is made untenable by Esteybar. 4

In Esteybar, the Attorney General made the similar argument that the functions of the magistrate and the classification of offenses as felonies or misdemeanors are legislatively determined rather than drawn from the Constitution. The Supreme Court in response to this argument observed:

'While it may be conceded that the Legislature in the first instance was not required to give the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature cannot condition its grant upon the approval of the district attorney.' (Esteybar v. Municipal Court, Supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 529, 485 P.2d 1140, 1145.)

Likewise here, the Legislature was not required in the first instance to give the court power to grant probation, but having done so, it cannot condition the exercise of that power on the approval of the district attorney.

The court in Tenorio pointed out the discretion Health and Safety Code, § 11718, purported to vest in prosecutors was unreviewable and could be exercised in a totally arbitrary fashion both in individual cases and by the adoption of county-wide policies. (People v. Tenorio, Supra, 3 Cal.3d 89, 95, 89 Cal.Rptr. 249, 473 P.2d 993.) In Esteybar, the record revealed the existence of just such an arbitrary county-wide...

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